{"id":40703,"date":"2011-06-08T00:00:00","date_gmt":"2011-06-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tatyasaheb-limbraj-patil-vs-the-state-of-maharashtra-on-8-june-2011"},"modified":"2016-08-29T12:45:49","modified_gmt":"2016-08-29T07:15:49","slug":"tatyasaheb-limbraj-patil-vs-the-state-of-maharashtra-on-8-june-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tatyasaheb-limbraj-patil-vs-the-state-of-maharashtra-on-8-june-2011","title":{"rendered":"Tatyasaheb Limbraj Patil vs The State Of Maharashtra on 8 June, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Tatyasaheb Limbraj Patil vs The State Of Maharashtra on 8 June, 2011<\/div>\n
Bench: Naresh H. Patil, Mridula Bhatkar<\/div>\n
                                                 1                              app-524-04.sxw\n\n    mmj\n                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         CRIMINAL APPELLATE JURISDICTION          \n\n\n\n\n                                                                                           \n                                 CRIMINAL APPEAL NO.524 of 2004\n\n\n\n\n                                                                   \n      Tatyasaheb Limbraj Patil                                            ..Appellant\n            Vs.\n      The State of Maharashtra                                            ..Respondent<\/pre>\n
      Mr. Prakash Naik for the Appellant
\n      Mr. J. P. Yagnik APP for State<\/p>\n
                                            CORAM:- NARESH H. PATIL,  &
\n                                                       Mrs. MRIDULA R. BHATKAR, JJ<\/p>\n
                                             DATED  :- JUNE 8,  2011.\n<\/p>\n
      ORAL JUDGMENT (PER Mrs. MRIDULA BHATKAR, J.)<\/p>\n
      1             This   appeal   is   directed   against   the   Judgment   and   order   dated <\/p>\n
      6-3-2004   passed   by   5th  Additional   Sessions   Judge,   Solapur,   convicting   the <\/p>\n
      Appellant-accused for the offence punishable under Section 302, 498-A and 201 <\/p>\n
      of the Indian Penal Code (IPC). He is sentenced to suffer life imprisonment under <\/p>\n
      Section 302 of IPC.\n<\/p>\n
      2             The  incident  of  murder   has  taken  place   on  26-4-2003   at  Barshi, <\/p>\n
      District Solapur in the morning at 6.30 to 7.00 a.m. Victim Renuka Tatyasaheb <\/p>\n
      Patil was the wife of the Appellant. The Appellant and the Victim got married on <\/p>\n
      6-2-2003, hardly 2 1\/2 months prior to the incident. At the time of marriage two <\/p>\n
      tolas of gold, some utensils and an amount of Rs.50,000\/- by way of dowry was <\/p>\n
      given to the Appellant. As per the case of the prosecution, the Appellant and the <\/p>\n
      victim had a smooth married life just for one month, but thereafter a demand of <\/p>\n
      Rs.1 lac was made by the Appellant and the said demand of Rs.1 lac could not be <\/p>\n
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\n                                                   2                              app-524-04.sxw<\/p>\n
    fulfilled by the father P.W.-1 of the victim or her relatives. Deceased Renuka had <\/p>\n
    complained to her father P.W.-1 and brother P.W.-6 about the demand of Rs.1 lac <\/p>\n
    made   by   her   husband.   Immediately,   after   the   marriage,   on   the   festival   of <\/p>\n
    Gudipadwa, she had visited her maiden home and at that time she voiced about <\/p>\n
    the   said   demand.   Thereafter   telephonically   she   has   communicated   about   the <\/p>\n
    harassment   and   assault   at   the   hands   of   the   Appellant,   to   her   brother.   On <\/p>\n
    26-4-2003, the victim’s father was informed on telephone about the death of his <\/p>\n
    daughter, therefore, he along with his relatives and some villagers rushed to the <\/p>\n
    house of his daughter where they found that she was burnt and was dead. P.W.1-\n<\/p>\n
    the father of the Victim lodged an FIR and the offence under Section 498A, 302 <\/p>\n
    and 201 was registered at C.R. No.58 of 2003 at Barshi Police Station against the <\/p>\n
    Appellant.   The   police   carried   out   the   investigation.   The   postmortem   was <\/p>\n
    performed and the cause of death was declared as Asphyxia due to throttling. In <\/p>\n
    the course of investigation, the police drew panchanamas on the same date and <\/p>\n
    the statements of the witnesses were recorded within the couple of days. Police <\/p>\n
    sent the articles to C.A. and obtained report. After completion of the investigation <\/p>\n
    the charge sheet was filed. This being a case of the murder, it was committed to <\/p>\n
    the   Court   of   Session   and   charges   under   the   relevant   sections   was   framed <\/p>\n
    accordingly.   The   trial   was   conducted   before   the   Sessions   Judge   and   was <\/p>\n
    concluded in the conviction. Being aggrieved by this Judgment and Order the <\/p>\n
    present Appeal is filed by the Accused.\n<\/p>\n
    3              The   Learned   Counsel   appearing   for   the   Appellant   has  raised   the <\/p>\n
    challenge mainly on the ground that there is no eye witness and the case is based <\/p>\n
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\n                                                       3                                app-524-04.sxw<\/p>\n
    only on circumstantial evidence and motive is also not established. The motive <\/p>\n
    brought   on   record   by   the   prosecution   is   an   after   thought.   How   and   in   what <\/p>\n
    manner the victim has died is not proved by the prosecution and the Learned <\/p>\n
    Sessions Judge has erred in appreciating the evidence of witnesses on the point <\/p>\n
    of   the   incident.   The   evidence   of   the   police   witness     P.W.   7,   8,   9   &   10   is <\/p>\n
    inconsistent and ought not to have been relied. The learned Counsel argued that <\/p>\n
    the prosecution has brought a very weak evidence on the point of motive that <\/p>\n
    there was a demand of Rs.1  lac by the Appellant-Accused and the victim has <\/p>\n
    complained about the said demand and the harassment including assault at the <\/p>\n
    hands of the Accused, to her family members i.e. P.W 1 her father and P.W.6 her <\/p>\n
    brother. He has submitted that in a short span of their married life i.e 2 1\/2 <\/p>\n
    months, they had smooth married life for a month and as per the prosecution, <\/p>\n
    thereafter the demand was made. Thus, the period of harassment and demand <\/p>\n
    was very short i.e. hardly a month and it appears improbable. He further pointed <\/p>\n
    out that in the evidence of P.W.6, he had stated that a phone call was made by the <\/p>\n
    victim in the house of PW-3 who was their neighbour. At that time according to <\/p>\n
    the prosecution the witness was informed that her husband has given her a threat <\/p>\n
    that   if   the   amount   of   Rs.1   lac   was   not   paid   then   there   would   be   a   serious <\/p>\n
    consequence. The Leaned Counsel submitted that if this would have been the <\/p>\n
    position,   then   it   was   natural   on   the   part   of   the   family   members   to   lodge   a <\/p>\n
    complaint and make inquiry about the said demand. However, no such complaint <\/p>\n
    of   harassment   and   demand   was   made   by   the   family   members   to   the   police <\/p>\n
    against   the   Appellant.   The   Learned   Counsel   pointed   out   that   in   the   cross-\n<\/p>\n
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                                                     4                               app-524-04.sxw<\/p>\n
    examination of P.W.-1-father of the victim has given admission that he decided to <\/p>\n
    lodge a complaint against the Appellant only when he was informed about the <\/p>\n
    cause   of   death   of   his   daughter   was   Asphyxia   due   to   throttling.   The   Learned <\/p>\n
    Counsel   argued   on   the   background   of   the   communication   of   harassment   and <\/p>\n
    demand of Rs.1 lac. The appellant was a prime suspect and  P.W.-1ought to have <\/p>\n
    been  lodged  complaint   against  the   Appellant,  as   soon  as   they   reached   to   the <\/p>\n
    house   of   the   daughter.   Why   father   P.W.-1   waited   to   lodge   complaint   till <\/p>\n
    postmortem report was known ?  P.W.-3 at whose residence telephone call of the <\/p>\n
    victim about the harassment was received by P.W-6, did not say a word about <\/p>\n
    such   telephone   call   and   conversation   between   the   victim   and   P.W.-6   and, <\/p>\n
    therefore, the story of the demand of Rs.1 lac and so also the communication in <\/p>\n
    respect of the harassment or assault at the hands of the Accused to the victim, <\/p>\n
    false and cooked up.\n<\/p>\n
    4               The authenticity of the FIR Exhibit-16 is challenged as P.W.-1 has <\/p>\n
    admitted   that   the   contents   of   the   FIR   were   narrated   by   the   Sarpanch   of   the <\/p>\n
    Village and he merely signed the same. The learned Counsel further pointed out <\/p>\n
    that   the   postmortem   report   shows   the   timing   as   2.00   p.m.   and   the   FIR   was <\/p>\n
    registered at 1.55 p.m., thus it is obvious the postmortem was performed before <\/p>\n
    the recording of the FIR. The Learned Counsel drew our attention to Exhibit-29 <\/p>\n
    which is a statement\/FIR given by the Appellant. The Learned Counsel submitted <\/p>\n
    that Exhibit-29 is so called FIR or statement of the Appellant is not recorded <\/p>\n
    honestly but it is false document fabricated   by the investigating agency. These <\/p>\n
    submissions are  based on the discrepancies in the evidence of P.W.-7, P.W.-9, and <\/p>\n
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\n                                                      5                                app-524-04.sxw<\/p>\n
    P.W.-10. He pointed out that scribe P.W.-7 in his chief had stated that he reduced <\/p>\n
    into   writing   the   contents   of   Exhibit-29   and   has   signed   below.   However, <\/p>\n
    subsequently   when   he   was   recalled   he   admitted   that   he   did   not   record <\/p>\n
    Exhibit-29. The Learned Counsel pointed out that the case of the prosecution in <\/p>\n
    respect of the time of the incident and how it had occurred is not proved as  the <\/p>\n
    evidence of the police witnesses is inconsistent. He submitted that the timing of <\/p>\n
    the FIR and the statement of the Accused and who recorded which statement <\/p>\n
    could have been ascertained on the basis of the relevant entries in the station <\/p>\n
    diary. However, prosecution did not produce such entries in the station diary.\n<\/p>\n
    5<\/span><\/p>\n
                     While   assailing   medical   evidence   Learned   Counsel   has  submitted <\/p>\n
    that   evidence   of   the   Medical   Officer   i.e   P.W.-2   is   not   accurate   and   cannot   be <\/p>\n
    believed.   The   rough   notes   which   is   a   primary   documentary   evidence,   is <\/p>\n
    admittedly not produced before the Court. The Medical Officer has admitted  that <\/p>\n
    histopathology is conducted to ascertain whether the fracture of the hyoid bone <\/p>\n
    is   antemortem   or   postmortem   and   in   the   absence   of   histopathology   the <\/p>\n
    prosecution could not prove that the fracture of hyoid bone was antemortem.\n<\/p>\n
    Moreover, while burning if the person inhales the smoke then the particles of the <\/p>\n
    carbon are also inhaled by the person and such particles are definitely found in <\/p>\n
    the trachea and larynx. It was necessary on the part of the Medical Officer -P.W.-2 <\/p>\n
    to   mention   about   presence   or   absence   of   soot   particles       in   the   postmortem <\/p>\n
    report.   The   Learned   Counsel   highlighting   these   deficiencies   in   the     medical <\/p>\n
    evidence   rendered   by   the   prosecution   submitted   that   the   benefit   of   these <\/p>\n
    deficiencies is to be given to the Appellant, as the prosecution could not come <\/p>\n
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\n                                                     6                               app-524-04.sxw<\/p>\n
    with full proof case.\n<\/p>\n
    6               The   Learned   Counsel   further   on   the   point   of   scene   of   offence <\/p>\n
    panchanama Exhibit-23 argued that the colour of the walls of the kitchen which <\/p>\n
    was originally white was turned grey because of the smoke and the pieces of the <\/p>\n
    clothes   of   the   victim   were   lying   scattered   in   the   room.   The   Learned   Counsel <\/p>\n
    argued that if as per the case of the prosecution the victim would have  been <\/p>\n
    throttled first and burnt subsequently, then she must have been burnt in lying <\/p>\n
    horizontal   position   and   in   that   event   the   walls   of   the   room   would   not   have <\/p>\n
    become smoky and the pieces of her clothes would not have also seen scattered <\/p>\n
    in the room. The condition of the walls and the pieces of her clothes suggest that <\/p>\n
    victim must  have  been  standing  or  her body posture  must have  been vertical <\/p>\n
    when she was on fire. The Learned Counsel argued that the medical evidence is <\/p>\n
    not   concrete  and   credible   and   circumstances  do   not  support  to  hold   that   the <\/p>\n
    fracture of the hyoid bone was antemortem. Circumstantial evidence produced by <\/p>\n
    the prosecution is not trust worthy. Therefore, finding of the Learned Sessions <\/p>\n
    Judge of convicting the Accused on the basis of this insufficient evidence is illegal <\/p>\n
    and deserves to be set aside. He further points out that conduct of the accused <\/p>\n
    cannot be given much importance when prosecution case is weak and unreliable.\n<\/p>\n
    The Supreme Court has laid down the guide lines on appreciation of evidence <\/p>\n
    and on this point the Learned Counsel placed reliance on  Mulakraj & ors Vs. <\/p>\n
    State of Maharashtra reported in (1996) 7 Supreme Court Cases 308,  and <\/p>\n
    Mula Devi & Anr Vs. State of Uttarakhand reported in (2008) 14 Supreme <\/p>\n
    Court Cases 511, wherein the manner in which the victim wife was died and the <\/p>\n
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\n                                                     7                               app-524-04.sxw<\/p>\n
    other facts in both the cases and the present case are more or less similar. In both <\/p>\n
    the cases, the cause of death of the victim was Asphyxia and thereafter the bodies <\/p>\n
    were burnt. On the point of appreciation of evidence a reliance was placed on <\/p>\n
    Judgment   of   Division   Bench   in  Jagannath   s\/o   Damaji   Pol   Vs.   State   of <\/p>\n
    Maharashtra reported in 2009 ALL MR (Cri) 2231.\n<\/p>\n
    7               Per contra, the Learned Prosecutor argued that while appreciating <\/p>\n
    the evidence of the prosecution, this Court needs to consider the date of   the <\/p>\n
    marriage and the short span of the married life of the Appellant and the victim.\n<\/p>\n
    The Learned Counsel pointed out that the victim was residing with her husband <\/p>\n
    and she did not complained for one month and thereafter she complained about <\/p>\n
    the demand of Rs.1 lac. He point out that there was a demand of dowry of Rs.\n<\/p>\n
    50,000\/-   at   the   time   of   marriage.   On   the   point   of   demand   of   dowry   of   Rs.\n<\/p>\n
    50,000\/- and the terms and conditions of the settlement of the marriage, the <\/p>\n
    Learned Prosecutor relied on the evidence of P.W.-1 and P.W.-6 and so also P.W.-5 <\/p>\n
    Haridas Kale, who happened to be a middle man at the time of marriage. The <\/p>\n
    Learned Prosecutor argued that the demand of dowry or money is never made <\/p>\n
    openly   and   no   documentary   evidence   is   possible   and   available   to   prove   such <\/p>\n
    demand.   On   the   basis   of   three   witnesses   the   prosecution   has   proved   that <\/p>\n
    monetary   gain   was   the   motive.   The   Learned   Counsel   argued   that   while <\/p>\n
    appreciating the medical evidence the injury sustained by the victim which are <\/p>\n
    mentioned in the postmortem exhibit-18 are also to be taken into account. He <\/p>\n
    drew   our   attention   to   the   description   of   the   injuries   and   observations   of   the <\/p>\n
    Medical Officer in respect of the said injuries. Non production of notes by the <\/p>\n
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\n                                                      8                               app-524-04.sxw<\/p>\n
    Medical officer could not be given weightage as the notes are produced only to <\/p>\n
    refresh the memory. He submitted that spot of the Panchanama Exhibit-23 reveals <\/p>\n
    that the stove and tube of the gas were melted when the victim was burnt. If it <\/p>\n
    would have been an accidental death and if the accused and other persons would <\/p>\n
    have   come   to   rescue   her   to   extinguish   fire   then   melting   or   damage   to   the <\/p>\n
    property   to   such   a   high   degree   would   not   have   been   caused.   He   drew   our <\/p>\n
    attention   to   the   fact   that   the   body   had   sustained   100%   burn   injuries.   The <\/p>\n
    Learned prosecutor further submitted that two defence witnesses D.W.-1 Bhimrao <\/p>\n
    Nandvate   and   D.W.-2   –   Muzafarali   Akbarali   Patel   were   examined.   These <\/p>\n
    witnesses have  stated that the fire  brigade  arrived  and  fire  was  extinguished.\n<\/p>\n
    Thus the water was inside the room and this must have led the clothes of the <\/p>\n
    victim into pieces; scattered in the room. He further pointed out that through <\/p>\n
    defence   witnesses   the   accused   has   admitted   his   presence   at   the   time   of   the <\/p>\n
    incident. He further argued that non production of station diary and recording of <\/p>\n
    Exhibit-29   i.e.   statement   of   Appellant   moreover   non   verification   of   the   said <\/p>\n
    statement by higher officer, are the lapses in the investigation. However, these <\/p>\n
    lapses could not help the defence to dislodged the case of the prosecution which <\/p>\n
    is proved beyond the reasonable doubt.\n<\/p>\n
    8               Admittedly   present   case   stands   on   the   circumstantial   evidence <\/p>\n
    wherein   the   medical   evidence   is   a   vital   and   decisive   issue.   The   death   of   the <\/p>\n
    victim was an unnatural. It may be accidental, suicidal or homicidal. Nothing is <\/p>\n
    suggested that it could be suicidal. The victim was married to the appellant 2 \u00bd <\/p>\n
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\n                                                   9                              app-524-04.sxw<\/p>\n
    months back and there was no reason to commit suicide. Prosecution labels it not <\/p>\n
    accidental but homicidal death mainly on the basis of medical evidence.  The first <\/p>\n
    question   needs   to   be   answered   whether   the   prosecution   has   proved   that   the <\/p>\n
    death was caused due to Asphyxia by throttling or it was a death due to burn <\/p>\n
    injuries.   We   went   through   the   medical   evidence   of   P.W.-2,   postmortem   notes <\/p>\n
    Exhibit-18, so also the assessment of medical evidence by the Learned Sessions <\/p>\n
    Judge especially on the point of Asphyxia and burn injuries. The material portion <\/p>\n
    in the postmortem notes  Exhibit-18 clause 17, is as follows:\n<\/p>\n
                    (a) Swelling in front of neck of size 6 x 4 cm<\/p>\n<\/blockquote>\n
                    (b) 100% burns<\/p>\n<\/blockquote>\n
                    (c) on examination of base of tongue bruising present<\/p>\n<\/blockquote>\n
                    (d) on palpation fracture of hyoid bone present<\/p>\n
                   Thus   the   injuries   (a),   (c)   and   (d)   are   mentioned   as  definitely <\/p>\n
    Antemortem  and injury (b) 100% burns is postmortem.  Histopathology was not <\/p>\n
    conducted. The Medical Officer has deposed that it being the rural hospital, the <\/p>\n
    facility\/equipments which are required for histopathology were not available, but <\/p>\n
    the postmortem was performed by two Medical Officers who were strongly in <\/p>\n
    agreement that fracture of hyoid bone was antemortem, swelling to neck was <\/p>\n
    also   Antemortem.   Moreover   the   tongue   was   protruded   in   between   the   teeth.\n<\/p><\/blockquote>\n
    About the mention of the soot particles in larynx and trachea, the Medical officer <\/p>\n
    has given admission that in the burn cases if the person inhales the smoke then <\/p>\n
    such   carbon   \/soot   particles   are   found   in   trachea   and   larynx.   Therefore   not <\/p>\n
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\n                                                     10                               app-524-04.sxw<\/p>\n
    mentioning the negative fact i.e. carbon particles not found in larynx and trachea <\/p>\n
    in the postmortem does not dilute the evidentary value of the postmortem report.\n<\/p>\n
    On the other hand, if the presence of soot particles would have been mentioned <\/p>\n
    in the postmortem report, then benefit could have been given to the Accused but <\/p>\n
    not in the other way.  The evidence of Medical Officer is found credible. Defence <\/p>\n
    could   not   shake   this   evidence.   We   therefore,   accept   the   finding   given   by   the <\/p>\n
    Learned   Judge   that   the   cause   of   death   was   asphyxia   due   to   throttling   and <\/p>\n
    burning was not antemortem but postmortem.  Thus medical evidence unerringly <\/p>\n
    lead us to a conclusion that the burn injuries were postmortem and victim had <\/p>\n
    fracture and the cause of her death was Asphyxia due to throttling. This medical <\/p>\n
    evidence is not dislodged by the defence. If the medical report is accepted then <\/p>\n
    we have to consider the entire evidence on that background.\n<\/p>\n
    9                 On the point of motive, the prosecution has tendered evidence of <\/p>\n
    P.W.-1 and P.W.-6. As per the evidence of the witnesses there was a demand of <\/p>\n
    money by the  Appellant since  one  moth  prior  to  the  death  of the  victim. We <\/p>\n
    accept the submissions of learner Prosecutor that such demand of Rs.1 lac made <\/p>\n
    by a husband to his wife and persuasion of the said made to the family members <\/p>\n
    of the wife,  may not have any documentary but the oral evidence. In the present <\/p>\n
    case P.W.-1 has stated about it and this evidence is corroborated with the evidence <\/p>\n
    of P.W.-6 brother of the victim. The evidence of P.W.-5- Hardas Kale supports that <\/p>\n
    earlier there was a demand of dowry of Rs.50,000\/-. The prosecution has proved <\/p>\n
    the motive that the monetary demand was a reason for assault or harassment.\n<\/p>\n
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                                                    11                              app-524-04.sxw\n\n    10              After   killing   Renuka   the   culprit   wanted   to   burn   her   body \n\n<\/pre>\n
    undoubtedly in order to destroy the real cause of the death. We also take note <\/p>\n
    that the victim was burnt 100%. Panchanama Exhibit 21 reveals that   her face, <\/p>\n
    chest and the entire body was completely burnt. It shows the act of burning was <\/p>\n
    going on for some period. 100% burn in very short period is not possible if stove <\/p>\n
    blasted   in   small   house   and   somebody   has   rushed   to   extinguish   the   fire.   The <\/p>\n
    incident has taken place in the house where the accused and the deceased were <\/p>\n
    residing as husband and wife since 2 \u00bd months. Burning was noticed at about <\/p>\n
    6.30 a.m when the incident takes place within the four walls of the house and <\/p>\n
    fire was extinguished by calling fire-brigade. In that event, the presence of any <\/p>\n
    other   witness is not  possible.  It is not expected  that any  outsider   to   visit  the <\/p>\n
    house in such early hours of the morning and can throw light on how the murder <\/p>\n
    has been committed. When the husband and wife are residing together in the <\/p>\n
    house and incident takes place in the odd hours and no other consistent fact is <\/p>\n
    introduced showing the absence of the husband, then we do not find any reason <\/p>\n
    to accept the case of the prosecution about the presence of the accused who is <\/p>\n
    the   husband   of   the   deceased.   We   have   considered   all   three   rulings   produced <\/p>\n
    before us by the defence. Apparently the facts in Mulkhraj & Ors. (supra) and <\/p>\n
    Muladevi & Anr. (supra) look similar to the facts of the present case, however, on <\/p>\n
    careful reading we found that the facts of the present case are distinguishable <\/p>\n
    especially on the point of the presence of the accused on the spot. In all the three <\/p>\n
    cases, the victim was the wife of the respective accused. All of them died due to <\/p>\n
    asphyxia and medical evidence shows that the burning injuries found on their <\/p>\n
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\n                                                     12                                app-524-04.sxw<\/p>\n
    bodies were postmortem and not antemortem. In both the cases the Apex Court <\/p>\n
    held that the victims were murdered in the house and no information was given <\/p>\n
    by   the   husband   to   the   relatives   of   the   victims.   Yet   the   Supreme   Court   while <\/p>\n
    appreciating the evidence on the conduct of the accused in Mulakraj case (supra) <\/p>\n
    in paragraph 21 has observed as follows:\n<\/p>\n
                    “Consequently   the   aforesaid   subsequent   conduct   on
\n                    which   strong   reliance   has   been   placed   by   the   High
\n                    Court to bring home the offence to the accused cannot
\n                    really assist the prosecution and it does not represent
\n                    a   strong   and   clinching   link   in   the   chain   of <\/p>\n
                    circumstantial   evidence   which   is   incompatible   with
\n                    any other hypothesis save and except the guilt of the
\n                    accused.”        <\/p><\/blockquote>\n
                    While setting aside the Judgment of conviction of the trial court <\/p>\n
    and High Court, the Supreme Court in Muladevi’s case (supra) in paragraph 12 <\/p>\n
    has held as follows:\n<\/p>\n
                    “It has been consistently laid down by this Court that <\/p>\n
                    where   a   case   rests   squarely   on   circumstantial
\n                    evidence, the inference of guilt can be justified only
\n                    when   all   the   incriminating   facts   and   circumstances
\n                    are found to be incompatible with the innocence of
\n                    the accused or the guilt of any other person”<\/p><\/blockquote>\n
                    In the said Judgment the guide lines in  Padala Veera Reddy Vs. <\/p>\n
    State   of   A.P  reported   in  1989   Supp(2)   SCC   706  which   are   reproduced   in <\/p>\n
    paragraph 11 as follows:\n<\/p>\n
                    (1)   The   circumstances   from   which   an   inference   of
\n                    guilt   is   sought   to   be   drawn,   must   be   cogently   and <\/p>\n
                                                                       ::: Downloaded on – 09\/06\/2013 17:19:31 :::<\/span>
\n                                                    13                               app-524-04.sxw<\/p>\n
                   firmly established;\n<\/p><\/blockquote>\n
                   (2)   those   circumstances   should   be   of   a   definite
\n                   tendency   unerringly   pointing   towards   guilt   of   the <\/p>\n
                   accused;\n<\/p><\/blockquote>\n
                   (3)   the   circumstances,   taken   cumulatively,   should
\n                   form a chain so complete that there is no escape from <\/p>\n
                   the conclusion that within all human probability the
\n                   crime was committed by the accused and none else;
\n                   and
\n                   (4)   the   circumstantial   evidence   in   order   to   sustain <\/p>\n
                   conviction   must   be   complete   and   incapable   of
\n                   explanation of any other hypothesis than that of the
\n                   guilt   of   the   accused   and   such   evidence   should   not
\n                   only be consistent with the guilt of the accused but
\n                   should be inconsistent with his innocence.”               <\/p><\/blockquote>\n
                   Keeping   in   mind   the   settled   law   on  the   point   of   appreciation   of <\/p>\n
    circumstantial evidence, we considered the entire evidence and the facts of the <\/p>\n
    present case. In the present case, no other person except accused and the victim <\/p>\n
    were in the house. It was a small house of two rooms. Unlike facts in Mulakraj <\/p>\n
    case(supra)  no   defence   of   alibi   was   taken   by   the   Accused   when   incident  has <\/p>\n
    taken place. The presence of Accused is denied by the defence, however in the <\/p>\n
    evidence of D.W.-2 he has specifically stated that when he reached to the spot in <\/p>\n
    the morning   he saw the victim has burnt and the Accused and other persons <\/p>\n
    were trying to extinguish the fire. Thereafter fire brigade came and extinguished <\/p>\n
    the fire by watering it.\n<\/p>\n
    11             It is necessary to  construct the sequence  of all the incidents. On <\/p>\n
    26-4-2003 in the morning a phone call was received by the family members and <\/p>\n
    they rush to the spot. The panchnama Exhibit-21 was drawn at about 11.00a.m. <\/p>\n
\n\n    to   11.30   a.m.   P.W.-3   is   a   panch   for   inquest   panchanama.   Though   she     is \n\n\n\n\n                                                                     ::: Downloaded on - 09\/06\/2013 17:19:31 :::<\/span>\n                                                      14                                app-524-04.sxw\n\n<\/pre>\n
    considered  as  interested   witness  yet   the   inquest  panchanama,  nothing   can  be <\/p>\n
    disputed in respect of inquest panchanama as the burnt body of the victim was <\/p>\n
    found. From the evidence of the prosecution, it shows that the incident has taken <\/p>\n
    place in the morning between 6.30 a.m. to 7.00 a.m, then the question  comes in <\/p>\n
    mind that if the incident has taken place at 6.30 a.m. and thereafter the fire <\/p>\n
    brigade had come to extinguish the fire immediately, her body was lying in the <\/p>\n
    house as it is from morning till 11.00 a.m. The Appellant-accused at the relevant <\/p>\n
    time   was   residing   in   the   said   house   along   with   the   victim   and   they   being   a <\/p>\n
    husband and wife, we can not be oblivious to the relevant facts pointed out about <\/p>\n
    the conduct of the Accused as per section 8 of the Evidence Act. On Exhibit 29 no <\/p>\n
    verification of Senior officer is found as it is seen on Exhibit 16. In the light of <\/p>\n
    contradictory evidence of police personnel as regards recording of Exhibit 29, <\/p>\n
    submissions   of   the   Learned   Defence   Counsel   that   Exhibit   29   is   fabricated <\/p>\n
    document   and  the  said   statement   of   Appellant   is   false   and  manufactured   are <\/p>\n
    accepted. Thus even the evidence to that point if discarded, it will at the most <\/p>\n
    prove that the Appellant-Accused did not go to the police station on that date to <\/p>\n
    give report in respect of burning of his wife in the house. However, not going to <\/p>\n
    the police or not approaching to the hospital for medical aid are the facts which <\/p>\n
    definitely go against the Accused.  The prosecution has to prove its case on its <\/p>\n
    own merits and the falsity in the defence can not be substituted to plug off the <\/p>\n
    holes in the case of the prosecution. On this point we considered the land mark <\/p>\n
    ruling   of  Sharad   Birdhichand   Sarda   Vs.   State   of   Maharashtra  reported   in <\/p>\n
    (1984) 4 SCC 116. While answering questions put to the Accused under Section <\/p>\n
                                                                        ::: Downloaded on – 09\/06\/2013 17:19:31 :::<\/span>
\n                                                    15                               app-524-04.sxw<\/p>\n
    313 of Cr.P.C. the Accused is supposed to unfold his defence. He has right to be <\/p>\n
    silent   throughout   and   his   silence   cannot   be   taken   as   an   incriminating <\/p>\n
    circumstance   against   him   generally.   However,   if   he   chooses   to   answer   the <\/p>\n
    questions and his answer is found totally false or his answer amounts to a fact <\/p>\n
    inconsistent   with   his   plea   of   innocence   but   consistent   with   the   case   of   the <\/p>\n
    prosecution, due weightage is to be given to the defence especially when the <\/p>\n
    crime is committed in the four walls and where one spouse is victim and other is <\/p>\n
    on the seat of the accused. It is impossible for the prosecution in such situation to <\/p>\n
    break a wall of secrecy without relying on the defence of the accused. Criminal <\/p>\n
    law cannot turn nelson’s eye to the ground realities which is a genuine hurdle to <\/p>\n
    prove the complete chain of circumstances. While explaining the appreciation of <\/p>\n
    evidence under Section 313 of Cr.P.C. the Apex Court in the case of  Mannu Sao <\/p>\n
    Vs. State of Bihar reported in JT 2010(8) SC 449 has in paragraph 8 held as <\/p>\n
    follows:\n<\/p>\n
                   “Let us examine the essential features of this Section
\n                   313 Cr.P.C. and the principles of law as enunciated by
\n                   judgments, which are the guiding factors for proper
\n                   application and consequences which shall flow from <\/p>\n
                   the provisions of Section 313 of the Code. As already
\n                   noticed, the object of recording the statement of the
\n                   accused under Section 313 of the Code is to put all
\n                   incriminating   evidence  against  the   accused   so   as to
\n                   provide   him   an   opportunity   to   explain   such <\/p>\n
                   incriminating circumstances appearing against him in
\n                   the evidence of the prosecution. At the same time also
\n                   to   permit   him   to   put   forward   his   own   version   or
\n                   reasons if he so chooses in relation to his involvement
\n                   or   otherwise   in   the   crime.   The   Court   has   been
\n                   empowered to examine the accused but only after the
\n                   prosecution evidence has been concluded.”\n<\/p><\/blockquote>\n
                                                                      ::: Downloaded on – 09\/06\/2013 17:19:31 :::<\/span><\/p>\n
                                                     16                               app-524-04.sxw\n\n    12              Learned Counsel for the appellant has denied the presence of the \n\n<\/pre>\n
    accused at the spot, however the presence of the Accused is brought on record <\/p>\n
    through D.W.-2, rather the evidence of D.W.-2 is a boomerang and so we have to <\/p>\n
    accept the case of the Prosecution that at the time of the incident the Appellant-\n<\/p><\/blockquote>\n
    Accused was present in the house. If the Appellant was present then it was very <\/p>\n
    natural for the Appellant to come forward to rescue his wife and to extinguish <\/p>\n
    the fire or to call the doctor or police. However, it appears that nothing as such <\/p>\n
    was done by the Accused. We reiterate that Appellant and the victim were newly <\/p>\n
    married couple. If the evidence of D.W-2 is accepted that accused was trying to <\/p>\n
    extinguish the fire, then it was natural for Accused to sustain some burn injuries <\/p>\n
    to   his   hands   when   the   victim   was   burnt   100%.   In   the   arrest   panchanama <\/p>\n
    Exhibit-31 P.W.-2 disclosed that no burn injuries were found on the hands of the <\/p>\n
    accused and these circumstances are definitely incriminatory circumstances. The <\/p>\n
    points   which   are   argued   by   the   Learned   Counsel   in   respect   of   lapses   in   the <\/p>\n
    investigation i.e. non production of station diary, the evidence of P.W.-7, 8, 9 and <\/p>\n
    10 cannot be considered as mitigating circumstances. Further, the submissions of <\/p>\n
    the   Learned   Counsel   that   there   was   no   complaint   of   torture   \/harassment   or <\/p>\n
    demand of Rs.1 lac by the family members of the victim and therefore, the fact of <\/p>\n
    motive cannot be proved are also not convincing so also the admission given by <\/p>\n
    P.W.-1 that when he heard about the cause of death as Asphyxia due to throttling <\/p>\n
    then the decision to lodge a complaint against the Appellant is not a reason to <\/p>\n
    disbelieve the motive. We do accept that Exhibit-16 which is an FIR, is not an FIR <\/p>\n
    in true sense. That investigation has started prior to the lodging of the FIR and <\/p>\n
                                                                       ::: Downloaded on – 09\/06\/2013 17:19:31 :::<\/span>
\n                                                    17                               app-524-04.sxw<\/p>\n
    therefore, Exhibit-16 is not the FIR recorded under Section 154 of Cr.P.C., but it is <\/p>\n
    only a statement recorded under Section 161 of Cr.P.C. and, therefore, we do not <\/p>\n
    want to look into that statement for corroboration. In the absence of this FIR <\/p>\n
    further the investigation which was carried out by the police does not loose the <\/p>\n
    value   and,   therefore   even   though   the   contents     of   the   FIR   could   have   been <\/p>\n
    narrated   by   Sarpanch   of   the   Village,   we   do   not   give   any   weightage   to   that <\/p>\n
    particular   document.     We   believe   substantiate   evidence   of   P.W.-1.   It   was   very <\/p>\n
    natural for the family members of victim to discuss amongst themselves about the <\/p>\n
    occurrence and the cause of death of daughter who got married only 2 \u00bd months <\/p>\n
    back. It was a great shock and definitely we do consider the condition of a father <\/p>\n
    who  has to  recover   from the  trauma  and   then  he   approached  the  police  and <\/p>\n
    therefore, we do not agree that there was any material delay in giving complaint <\/p>\n
    against the Accused.\n<\/p>\n
    12                   On the basis of evidence we find that the chain of circumstantial <\/p>\n
    evidence is consistent and complete to hold the accused guilty of the offence of <\/p>\n
    the murder of his wife. We conclude that the prosecution has proved the case <\/p>\n
    against the Appellant and there is no case on merit and the Judgment and Order <\/p>\n
    passed by the Learned Sessions judge is hereby confirmed. Appeal is dismissed.\n<\/p>\n
    (Mrs. MRIDULA R. BHATKAR, J.)                                  (NARESH H. PATIL, J.)\n\n\n\n\n                                                                      ::: Downloaded on - 09\/06\/2013 17:19:31 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Tatyasaheb Limbraj Patil vs The State Of Maharashtra on 8 June, 2011 Bench: Naresh H. Patil, Mridula Bhatkar 1 app-524-04.sxw mmj 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-40703","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nTatyasaheb Limbraj Patil vs The State Of Maharashtra on 8 June, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tatyasaheb-limbraj-patil-vs-the-state-of-maharashtra-on-8-june-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tatyasaheb Limbraj Patil vs The State Of Maharashtra on 8 June, 2011 - 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