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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.524 of 2004
Tatyasaheb Limbraj Patil ..Appellant
Vs.
The State of Maharashtra ..Respondent
Mr. Prakash Naik for the Appellant
Mr. J. P. Yagnik APP for State
CORAM:- NARESH H. PATIL, &
Mrs. MRIDULA R. BHATKAR, JJ
DATED :- JUNE 8, 2011.
ORAL JUDGMENT (PER Mrs. MRIDULA BHATKAR, J.)
1 This appeal is directed against the Judgment and order dated
6-3-2004 passed by 5th Additional Sessions Judge, Solapur, convicting the
Appellant-accused for the offence punishable under Section 302, 498-A and 201
of the Indian Penal Code (IPC). He is sentenced to suffer life imprisonment under
Section 302 of IPC.
2 The incident of murder has taken place on 26-4-2003 at Barshi,
District Solapur in the morning at 6.30 to 7.00 a.m. Victim Renuka Tatyasaheb
Patil was the wife of the Appellant. The Appellant and the Victim got married on
6-2-2003, hardly 2 1/2 months prior to the incident. At the time of marriage two
tolas of gold, some utensils and an amount of Rs.50,000/- by way of dowry was
given to the Appellant. As per the case of the prosecution, the Appellant and the
victim had a smooth married life just for one month, but thereafter a demand of
Rs.1 lac was made by the Appellant and the said demand of Rs.1 lac could not be
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fulfilled by the father P.W.-1 of the victim or her relatives. Deceased Renuka had
complained to her father P.W.-1 and brother P.W.-6 about the demand of Rs.1 lac
made by her husband. Immediately, after the marriage, on the festival of
Gudipadwa, she had visited her maiden home and at that time she voiced about
the said demand. Thereafter telephonically she has communicated about the
harassment and assault at the hands of the Appellant, to her brother. On
26-4-2003, the victim’s father was informed on telephone about the death of his
daughter, therefore, he along with his relatives and some villagers rushed to the
house of his daughter where they found that she was burnt and was dead. P.W.1-
the father of the Victim lodged an FIR and the offence under Section 498A, 302
and 201 was registered at C.R. No.58 of 2003 at Barshi Police Station against the
Appellant. The police carried out the investigation. The postmortem was
performed and the cause of death was declared as Asphyxia due to throttling. In
the course of investigation, the police drew panchanamas on the same date and
the statements of the witnesses were recorded within the couple of days. Police
sent the articles to C.A. and obtained report. After completion of the investigation
the charge sheet was filed. This being a case of the murder, it was committed to
the Court of Session and charges under the relevant sections was framed
accordingly. The trial was conducted before the Sessions Judge and was
concluded in the conviction. Being aggrieved by this Judgment and Order the
present Appeal is filed by the Accused.
3 The Learned Counsel appearing for the Appellant has raised the
challenge mainly on the ground that there is no eye witness and the case is based
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only on circumstantial evidence and motive is also not established. The motive
brought on record by the prosecution is an after thought. How and in what
manner the victim has died is not proved by the prosecution and the Learned
Sessions Judge has erred in appreciating the evidence of witnesses on the point
of the incident. The evidence of the police witness P.W. 7, 8, 9 & 10 is
inconsistent and ought not to have been relied. The learned Counsel argued that
the prosecution has brought a very weak evidence on the point of motive that
there was a demand of Rs.1 lac by the Appellant-Accused and the victim has
complained about the said demand and the harassment including assault at the
hands of the Accused, to her family members i.e. P.W 1 her father and P.W.6 her
brother. He has submitted that in a short span of their married life i.e 2 1/2
months, they had smooth married life for a month and as per the prosecution,
thereafter the demand was made. Thus, the period of harassment and demand
was very short i.e. hardly a month and it appears improbable. He further pointed
out that in the evidence of P.W.6, he had stated that a phone call was made by the
victim in the house of PW-3 who was their neighbour. At that time according to
the prosecution the witness was informed that her husband has given her a threat
that if the amount of Rs.1 lac was not paid then there would be a serious
consequence. The Leaned Counsel submitted that if this would have been the
position, then it was natural on the part of the family members to lodge a
complaint and make inquiry about the said demand. However, no such complaint
of harassment and demand was made by the family members to the police
against the Appellant. The Learned Counsel pointed out that in the cross-
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examination of P.W.-1-father of the victim has given admission that he decided to
lodge a complaint against the Appellant only when he was informed about the
cause of death of his daughter was Asphyxia due to throttling. The Learned
Counsel argued on the background of the communication of harassment and
demand of Rs.1 lac. The appellant was a prime suspect and P.W.-1ought to have
been lodged complaint against the Appellant, as soon as they reached to the
house of the daughter. Why father P.W.-1 waited to lodge complaint till
postmortem report was known ? P.W.-3 at whose residence telephone call of the
victim about the harassment was received by P.W-6, did not say a word about
such telephone call and conversation between the victim and P.W.-6 and,
therefore, the story of the demand of Rs.1 lac and so also the communication in
respect of the harassment or assault at the hands of the Accused to the victim,
false and cooked up.
4 The authenticity of the FIR Exhibit-16 is challenged as P.W.-1 has
admitted that the contents of the FIR were narrated by the Sarpanch of the
Village and he merely signed the same. The learned Counsel further pointed out
that the postmortem report shows the timing as 2.00 p.m. and the FIR was
registered at 1.55 p.m., thus it is obvious the postmortem was performed before
the recording of the FIR. The Learned Counsel drew our attention to Exhibit-29
which is a statement/FIR given by the Appellant. The Learned Counsel submitted
that Exhibit-29 is so called FIR or statement of the Appellant is not recorded
honestly but it is false document fabricated by the investigating agency. These
submissions are based on the discrepancies in the evidence of P.W.-7, P.W.-9, and
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P.W.-10. He pointed out that scribe P.W.-7 in his chief had stated that he reduced
into writing the contents of Exhibit-29 and has signed below. However,
subsequently when he was recalled he admitted that he did not record
Exhibit-29. The Learned Counsel pointed out that the case of the prosecution in
respect of the time of the incident and how it had occurred is not proved as the
evidence of the police witnesses is inconsistent. He submitted that the timing of
the FIR and the statement of the Accused and who recorded which statement
could have been ascertained on the basis of the relevant entries in the station
diary. However, prosecution did not produce such entries in the station diary.
5
While assailing medical evidence Learned Counsel has submitted
that evidence of the Medical Officer i.e P.W.-2 is not accurate and cannot be
believed. The rough notes which is a primary documentary evidence, is
admittedly not produced before the Court. The Medical Officer has admitted that
histopathology is conducted to ascertain whether the fracture of the hyoid bone
is antemortem or postmortem and in the absence of histopathology the
prosecution could not prove that the fracture of hyoid bone was antemortem.
Moreover, while burning if the person inhales the smoke then the particles of the
carbon are also inhaled by the person and such particles are definitely found in
the trachea and larynx. It was necessary on the part of the Medical Officer -P.W.-2
to mention about presence or absence of soot particles in the postmortem
report. The Learned Counsel highlighting these deficiencies in the medical
evidence rendered by the prosecution submitted that the benefit of these
deficiencies is to be given to the Appellant, as the prosecution could not come
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with full proof case.
6 The Learned Counsel further on the point of scene of offence
panchanama Exhibit-23 argued that the colour of the walls of the kitchen which
was originally white was turned grey because of the smoke and the pieces of the
clothes of the victim were lying scattered in the room. The Learned Counsel
argued that if as per the case of the prosecution the victim would have been
throttled first and burnt subsequently, then she must have been burnt in lying
horizontal position and in that event the walls of the room would not have
become smoky and the pieces of her clothes would not have also seen scattered
in the room. The condition of the walls and the pieces of her clothes suggest that
victim must have been standing or her body posture must have been vertical
when she was on fire. The Learned Counsel argued that the medical evidence is
not concrete and credible and circumstances do not support to hold that the
fracture of the hyoid bone was antemortem. Circumstantial evidence produced by
the prosecution is not trust worthy. Therefore, finding of the Learned Sessions
Judge of convicting the Accused on the basis of this insufficient evidence is illegal
and deserves to be set aside. He further points out that conduct of the accused
cannot be given much importance when prosecution case is weak and unreliable.
The Supreme Court has laid down the guide lines on appreciation of evidence
and on this point the Learned Counsel placed reliance on Mulakraj & ors Vs.
State of Maharashtra reported in (1996) 7 Supreme Court Cases 308, and
Mula Devi & Anr Vs. State of Uttarakhand reported in (2008) 14 Supreme
Court Cases 511, wherein the manner in which the victim wife was died and the
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other facts in both the cases and the present case are more or less similar. In both
the cases, the cause of death of the victim was Asphyxia and thereafter the bodies
were burnt. On the point of appreciation of evidence a reliance was placed on
Judgment of Division Bench in Jagannath s/o Damaji Pol Vs. State of
Maharashtra reported in 2009 ALL MR (Cri) 2231.
7 Per contra, the Learned Prosecutor argued that while appreciating
the evidence of the prosecution, this Court needs to consider the date of the
marriage and the short span of the married life of the Appellant and the victim.
The Learned Counsel pointed out that the victim was residing with her husband
and she did not complained for one month and thereafter she complained about
the demand of Rs.1 lac. He point out that there was a demand of dowry of Rs.
50,000/- at the time of marriage. On the point of demand of dowry of Rs.
50,000/- and the terms and conditions of the settlement of the marriage, the
Learned Prosecutor relied on the evidence of P.W.-1 and P.W.-6 and so also P.W.-5
Haridas Kale, who happened to be a middle man at the time of marriage. The
Learned Prosecutor argued that the demand of dowry or money is never made
openly and no documentary evidence is possible and available to prove such
demand. On the basis of three witnesses the prosecution has proved that
monetary gain was the motive. The Learned Counsel argued that while
appreciating the medical evidence the injury sustained by the victim which are
mentioned in the postmortem exhibit-18 are also to be taken into account. He
drew our attention to the description of the injuries and observations of the
Medical Officer in respect of the said injuries. Non production of notes by the
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Medical officer could not be given weightage as the notes are produced only to
refresh the memory. He submitted that spot of the Panchanama Exhibit-23 reveals
that the stove and tube of the gas were melted when the victim was burnt. If it
would have been an accidental death and if the accused and other persons would
have come to rescue her to extinguish fire then melting or damage to the
property to such a high degree would not have been caused. He drew our
attention to the fact that the body had sustained 100% burn injuries. The
Learned prosecutor further submitted that two defence witnesses D.W.-1 Bhimrao
Nandvate and D.W.-2 – Muzafarali Akbarali Patel were examined. These
witnesses have stated that the fire brigade arrived and fire was extinguished.
Thus the water was inside the room and this must have led the clothes of the
victim into pieces; scattered in the room. He further pointed out that through
defence witnesses the accused has admitted his presence at the time of the
incident. He further argued that non production of station diary and recording of
Exhibit-29 i.e. statement of Appellant moreover non verification of the said
statement by higher officer, are the lapses in the investigation. However, these
lapses could not help the defence to dislodged the case of the prosecution which
is proved beyond the reasonable doubt.
8 Admittedly present case stands on the circumstantial evidence
wherein the medical evidence is a vital and decisive issue. The death of the
victim was an unnatural. It may be accidental, suicidal or homicidal. Nothing is
suggested that it could be suicidal. The victim was married to the appellant 2 ½
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months back and there was no reason to commit suicide. Prosecution labels it not
accidental but homicidal death mainly on the basis of medical evidence. The first
question needs to be answered whether the prosecution has proved that the
death was caused due to Asphyxia by throttling or it was a death due to burn
injuries. We went through the medical evidence of P.W.-2, postmortem notes
Exhibit-18, so also the assessment of medical evidence by the Learned Sessions
Judge especially on the point of Asphyxia and burn injuries. The material portion
in the postmortem notes Exhibit-18 clause 17, is as follows:
(a) Swelling in front of neck of size 6 x 4 cm
(b) 100% burns
(c) on examination of base of tongue bruising present
(d) on palpation fracture of hyoid bone present
Thus the injuries (a), (c) and (d) are mentioned as definitely
Antemortem and injury (b) 100% burns is postmortem. Histopathology was not
conducted. The Medical Officer has deposed that it being the rural hospital, the
facility/equipments which are required for histopathology were not available, but
the postmortem was performed by two Medical Officers who were strongly in
agreement that fracture of hyoid bone was antemortem, swelling to neck was
also Antemortem. Moreover the tongue was protruded in between the teeth.
About the mention of the soot particles in larynx and trachea, the Medical officer
has given admission that in the burn cases if the person inhales the smoke then
such carbon /soot particles are found in trachea and larynx. Therefore not
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mentioning the negative fact i.e. carbon particles not found in larynx and trachea
in the postmortem does not dilute the evidentary value of the postmortem report.
On the other hand, if the presence of soot particles would have been mentioned
in the postmortem report, then benefit could have been given to the Accused but
not in the other way. The evidence of Medical Officer is found credible. Defence
could not shake this evidence. We therefore, accept the finding given by the
Learned Judge that the cause of death was asphyxia due to throttling and
burning was not antemortem but postmortem. Thus medical evidence unerringly
lead us to a conclusion that the burn injuries were postmortem and victim had
fracture and the cause of her death was Asphyxia due to throttling. This medical
evidence is not dislodged by the defence. If the medical report is accepted then
we have to consider the entire evidence on that background.
9 On the point of motive, the prosecution has tendered evidence of
P.W.-1 and P.W.-6. As per the evidence of the witnesses there was a demand of
money by the Appellant since one moth prior to the death of the victim. We
accept the submissions of learner Prosecutor that such demand of Rs.1 lac made
by a husband to his wife and persuasion of the said made to the family members
of the wife, may not have any documentary but the oral evidence. In the present
case P.W.-1 has stated about it and this evidence is corroborated with the evidence
of P.W.-6 brother of the victim. The evidence of P.W.-5- Hardas Kale supports that
earlier there was a demand of dowry of Rs.50,000/-. The prosecution has proved
the motive that the monetary demand was a reason for assault or harassment.
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10 After killing Renuka the culprit wanted to burn her body
undoubtedly in order to destroy the real cause of the death. We also take note
that the victim was burnt 100%. Panchanama Exhibit 21 reveals that her face,
chest and the entire body was completely burnt. It shows the act of burning was
going on for some period. 100% burn in very short period is not possible if stove
blasted in small house and somebody has rushed to extinguish the fire. The
incident has taken place in the house where the accused and the deceased were
residing as husband and wife since 2 ½ months. Burning was noticed at about
6.30 a.m when the incident takes place within the four walls of the house and
fire was extinguished by calling fire-brigade. In that event, the presence of any
other witness is not possible. It is not expected that any outsider to visit the
house in such early hours of the morning and can throw light on how the murder
has been committed. When the husband and wife are residing together in the
house and incident takes place in the odd hours and no other consistent fact is
introduced showing the absence of the husband, then we do not find any reason
to accept the case of the prosecution about the presence of the accused who is
the husband of the deceased. We have considered all three rulings produced
before us by the defence. Apparently the facts in Mulkhraj & Ors. (supra) and
Muladevi & Anr. (supra) look similar to the facts of the present case, however, on
careful reading we found that the facts of the present case are distinguishable
especially on the point of the presence of the accused on the spot. In all the three
cases, the victim was the wife of the respective accused. All of them died due to
asphyxia and medical evidence shows that the burning injuries found on their
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bodies were postmortem and not antemortem. In both the cases the Apex Court
held that the victims were murdered in the house and no information was given
by the husband to the relatives of the victims. Yet the Supreme Court while
appreciating the evidence on the conduct of the accused in Mulakraj case (supra)
in paragraph 21 has observed as follows:
“Consequently the aforesaid subsequent conduct on
which strong reliance has been placed by the High
Court to bring home the offence to the accused cannot
really assist the prosecution and it does not represent
a strong and clinching link in the chain ofcircumstantial evidence which is incompatible with
any other hypothesis save and except the guilt of the
accused.”
While setting aside the Judgment of conviction of the trial court
and High Court, the Supreme Court in Muladevi’s case (supra) in paragraph 12
has held as follows:
“It has been consistently laid down by this Court that
where a case rests squarely on circumstantial
evidence, the inference of guilt can be justified only
when all the incriminating facts and circumstances
are found to be incompatible with the innocence of
the accused or the guilt of any other person”
In the said Judgment the guide lines in Padala Veera Reddy Vs.
State of A.P reported in 1989 Supp(2) SCC 706 which are reproduced in
paragraph 11 as follows:
(1) The circumstances from which an inference of
guilt is sought to be drawn, must be cogently and::: Downloaded on – 09/06/2013 17:19:31 :::
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(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of theaccused;
(3) the circumstances, taken cumulatively, should
form a chain so complete that there is no escape fromthe conclusion that within all human probability the
crime was committed by the accused and none else;
and
(4) the circumstantial evidence in order to sustainconviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but
should be inconsistent with his innocence.”
Keeping in mind the settled law on the point of appreciation of
circumstantial evidence, we considered the entire evidence and the facts of the
present case. In the present case, no other person except accused and the victim
were in the house. It was a small house of two rooms. Unlike facts in Mulakraj
case(supra) no defence of alibi was taken by the Accused when incident has
taken place. The presence of Accused is denied by the defence, however in the
evidence of D.W.-2 he has specifically stated that when he reached to the spot in
the morning he saw the victim has burnt and the Accused and other persons
were trying to extinguish the fire. Thereafter fire brigade came and extinguished
the fire by watering it.
11 It is necessary to construct the sequence of all the incidents. On
26-4-2003 in the morning a phone call was received by the family members and
they rush to the spot. The panchnama Exhibit-21 was drawn at about 11.00a.m.
to 11.30 a.m. P.W.-3 is a panch for inquest panchanama. Though she is
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considered as interested witness yet the inquest panchanama, nothing can be
disputed in respect of inquest panchanama as the burnt body of the victim was
found. From the evidence of the prosecution, it shows that the incident has taken
place in the morning between 6.30 a.m. to 7.00 a.m, then the question comes in
mind that if the incident has taken place at 6.30 a.m. and thereafter the fire
brigade had come to extinguish the fire immediately, her body was lying in the
house as it is from morning till 11.00 a.m. The Appellant-accused at the relevant
time was residing in the said house along with the victim and they being a
husband and wife, we can not be oblivious to the relevant facts pointed out about
the conduct of the Accused as per section 8 of the Evidence Act. On Exhibit 29 no
verification of Senior officer is found as it is seen on Exhibit 16. In the light of
contradictory evidence of police personnel as regards recording of Exhibit 29,
submissions of the Learned Defence Counsel that Exhibit 29 is fabricated
document and the said statement of Appellant is false and manufactured are
accepted. Thus even the evidence to that point if discarded, it will at the most
prove that the Appellant-Accused did not go to the police station on that date to
give report in respect of burning of his wife in the house. However, not going to
the police or not approaching to the hospital for medical aid are the facts which
definitely go against the Accused. The prosecution has to prove its case on its
own merits and the falsity in the defence can not be substituted to plug off the
holes in the case of the prosecution. On this point we considered the land mark
ruling of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in
(1984) 4 SCC 116. While answering questions put to the Accused under Section
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313 of Cr.P.C. the Accused is supposed to unfold his defence. He has right to be
silent throughout and his silence cannot be taken as an incriminating
circumstance against him generally. However, if he chooses to answer the
questions and his answer is found totally false or his answer amounts to a fact
inconsistent with his plea of innocence but consistent with the case of the
prosecution, due weightage is to be given to the defence especially when the
crime is committed in the four walls and where one spouse is victim and other is
on the seat of the accused. It is impossible for the prosecution in such situation to
break a wall of secrecy without relying on the defence of the accused. Criminal
law cannot turn nelson’s eye to the ground realities which is a genuine hurdle to
prove the complete chain of circumstances. While explaining the appreciation of
evidence under Section 313 of Cr.P.C. the Apex Court in the case of Mannu Sao
Vs. State of Bihar reported in JT 2010(8) SC 449 has in paragraph 8 held as
follows:
“Let us examine the essential features of this Section
313 Cr.P.C. and the principles of law as enunciated by
judgments, which are the guiding factors for proper
application and consequences which shall flow fromthe provisions of Section 313 of the Code. As already
noticed, the object of recording the statement of the
accused under Section 313 of the Code is to put all
incriminating evidence against the accused so as to
provide him an opportunity to explain suchincriminating circumstances appearing against him in
the evidence of the prosecution. At the same time also
to permit him to put forward his own version or
reasons if he so chooses in relation to his involvement
or otherwise in the crime. The Court has been
empowered to examine the accused but only after the
prosecution evidence has been concluded.”
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12 Learned Counsel for the appellant has denied the presence of the
accused at the spot, however the presence of the Accused is brought on record
through D.W.-2, rather the evidence of D.W.-2 is a boomerang and so we have to
accept the case of the Prosecution that at the time of the incident the Appellant-
Accused was present in the house. If the Appellant was present then it was very
natural for the Appellant to come forward to rescue his wife and to extinguish
the fire or to call the doctor or police. However, it appears that nothing as such
was done by the Accused. We reiterate that Appellant and the victim were newly
married couple. If the evidence of D.W-2 is accepted that accused was trying to
extinguish the fire, then it was natural for Accused to sustain some burn injuries
to his hands when the victim was burnt 100%. In the arrest panchanama
Exhibit-31 P.W.-2 disclosed that no burn injuries were found on the hands of the
accused and these circumstances are definitely incriminatory circumstances. The
points which are argued by the Learned Counsel in respect of lapses in the
investigation i.e. non production of station diary, the evidence of P.W.-7, 8, 9 and
10 cannot be considered as mitigating circumstances. Further, the submissions of
the Learned Counsel that there was no complaint of torture /harassment or
demand of Rs.1 lac by the family members of the victim and therefore, the fact of
motive cannot be proved are also not convincing so also the admission given by
P.W.-1 that when he heard about the cause of death as Asphyxia due to throttling
then the decision to lodge a complaint against the Appellant is not a reason to
disbelieve the motive. We do accept that Exhibit-16 which is an FIR, is not an FIR
in true sense. That investigation has started prior to the lodging of the FIR and
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therefore, Exhibit-16 is not the FIR recorded under Section 154 of Cr.P.C., but it is
only a statement recorded under Section 161 of Cr.P.C. and, therefore, we do not
want to look into that statement for corroboration. In the absence of this FIR
further the investigation which was carried out by the police does not loose the
value and, therefore even though the contents of the FIR could have been
narrated by Sarpanch of the Village, we do not give any weightage to that
particular document. We believe substantiate evidence of P.W.-1. It was very
natural for the family members of victim to discuss amongst themselves about the
occurrence and the cause of death of daughter who got married only 2 ½ months
back. It was a great shock and definitely we do consider the condition of a father
who has to recover from the trauma and then he approached the police and
therefore, we do not agree that there was any material delay in giving complaint
against the Accused.
12 On the basis of evidence we find that the chain of circumstantial
evidence is consistent and complete to hold the accused guilty of the offence of
the murder of his wife. We conclude that the prosecution has proved the case
against the Appellant and there is no case on merit and the Judgment and Order
passed by the Learned Sessions judge is hereby confirmed. Appeal is dismissed.
(Mrs. MRIDULA R. BHATKAR, J.) (NARESH H. PATIL, J.)
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