JUDGMENT
V.G. Palshikar, J.
1. Being aggrieved by the judgment and order of conviction passed on 20th January 2000 by the Sessions Judge, Ratnagiri in Sessions case No. 59/1999 convicting the accused under Section 302 of IPC and sentencing him to suffer R.I. for life, the appellant has filed this appeal on the ground mentioned in the memo of appeal as also verbally canvassed by the learned counsel appearing on behalf of the
accused/appellant.
2. With the assistance of the learned counsel for the defence and the learned Prosecutor we have scrutinised the evidence and have reappreciated the evidence on record.
3. The prosecution story as emerges from our reappreciation of the evidence stated briefly is that the accused was married to the deceased and there were quarels between the two. In the evening of 25-12-1998 dead body of deceased Laxmibai, wife of the appellant was located. Investigation was carried out and suspecting the accused he was prosecuted for murdering his wife.
4. The prosecution has examined five witnesses to prove its case, and it was on appreciation of the evidence of these five witnesses that the learned trial Judge passed the order of conviction.
5. P.W.1 Sandesh Deokar saw the accused and the deceased together on the sea shore. When he saw them the accused and the deceased were sitting side by side on the sea shore and the witness asked the accused as to what he was doing. The accused, according to the witness replied that he was just sitting there. This witness on the next day morning at about 7.30 a.m. was going to the sea shore when he saw a human leg protruding out of the sand on the sea shore. He went to the police and informed the incident. In his cross examination this witness has stated that he saw the accused and the victim sitting on the sea shore on 25-12-1998. He admits in his cross examination that both the accused and his wife, i.e. the victim were accustomed to heavy consumption of liquor and quarrelling thereafter.
6. P.w.2 Mayekar is the panch witness who performed the panchanama of stick seized by the police. It is this stick which according to police, was used for commission of murder.
7. P.w.3 Rajesh Karekar states that on 25-12-1998 he was going to see cricket match. When he was so going, he saw that the accused was beating his wife with a stick. He did not stop there and when he was returning from the match between 5.30 and 6 p.m. he again saw the accused and the victim sitting on the sea shore. Next day he learnt of the discovery of the dead body of the victim.
8. P.w.4 Kashiram Jadhav is examined to say that the accused came to him at 7 a.m. on the next day and refused to talk to him. He was then arrested. P.w.5 Sanjay Kurundkar is the investigating officer.
9. The entire evidence on record is therefore of two witnesses, seeing the accused and the victim together alive last. One of them appears to be a chance witness. Assuming that the testimony of each of them is accepted completely, still the prosecution has not made out any case that the accused committed murder of his wife. There is no evidence of sick blow being given by the accused. The accused is not connected to the stick. Merely because the accused and his wife were quarrelling for sometime and the accused was seen by somebody along with his wife at the sea shore, a conclusion cannot be reached that it was the accused who killed her because there is another eye witness who claims to have seen them alive when he was returning from watching the match.
10. It is pertinent to note that both the witnesses had gone to the sea shore to see the cricket match and while so going witnessed the accused and the victim at the sea shore quarrelling and while returning also they saw them on the sea shore. One of them saw the accused beating his wife. This much evidence, in my opinion, is grossly insufficient to come to the conclusion of guilt under Section 362 of IPC. The prosecution has miserably failed to prove that death, which is proved to be homicidal, was committed by the accused. In the result therefore the appeal succeeds and is allowed. The judgment and order, convicting the accused and sentencing him to life imprisonment is set aside. Instead the accused is acquitted of the charge. He be set at liberty forthwith if not otherwise required in any other case.
11. Office to expedite despatch of the writ of acquittal.