apeal-380-2017.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO.380 OF 2017

Maroti s/o Vitthal Honrao,

Age: 31 years, Occu.: Agri.,

R/o. Marshivani, Tq. Kandhar,

Dist. Nanded. .. Appellant

Versus

The State of Maharashtra

Through Police Station, Kandhar,

Tq. Kandhar, Dist. Nanded. .. Respondent

…

Mr. A. M. Gaikwad, Advocate for the appellant.

Mr. S. J. Salgare, APP for the respondent – State.

…

CORAM : SMT. VIBHA KANKANWADI AND

ABHAY S. WAGHWASE, JJ.

DATE : 5

th

September, 2023

JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :-

. Present appeal has been filed by the original accused challenging his

conviction by learned Additional Sessions Judge, Kandhar, District Nanded

on 11.07.2017 after holding him guilty of committing offence punishable

under Section 302 of Indian Penal Code in Sessions Case No.06 of 2016.

The accused has been convicted for allegedly committing murder of his

own daughter aged three months.

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2.It is not in dispute that P.W.1 Annapurna is the wife of accused. They

were blessed with son Shyam and daughter Shivkanya. Accused was an

agriculturist. They were resident of village Marshivni, Taluka Kandhar,

District, Nanded.

3.The prosecution has come with the case that P.W.1 Annapurna lodged

report with police on 22.11.2015 stating that she had returned from her

parents house on 13.11.2015 with daughter Shivkanya, who was then aged

three months. On 20.11.2015 around 10.00 a.m., she had made Shivkanya

to sleep on cot in the house (locally called as Baaj ). Accused was at home.

He told her that she should go to field and bring firewood. Therefore, she

went to field. She came back around 11.30 a.m. The girl was groaning

and therefore, she tried to take the girl, but accused was resisting her. She

tried to breastfeed the girl, but the girl was not taking the milk. Therefore,

she untied the cap tied to the neck of the girl (the cap is locally called as

Kunchi/Kulai/Topda). Then she realized that there was scar like

strangulating the neck. Thereupon she asked husband as to why he has

done it, at that time, he told that the girl fell down from the cot (Baaj) and

he has not strangulated her. Annapurna then raised shouts, as a result of

which nephew came, then she herself, nephew and accused took the girl in

Jeep for treatment at Dr. Jadhav’s hospital, at Kandhar, however, he had not

admitted the girl and, therefore, they went to Government Hospital,

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Vishnupuri, Nanded. After the Doctor examined Shivkanya, it was told that

as the strangulation has been done, she is unable to breathe and, therefore,

she was admitted, however, she expired at about 8.15 a.m. on 22.11.2015.

On the basis of said FIR, offence vide Crime No.141 of 2015 was registered

for the offence punishable under Section 302 of Indian Penal Code with

Kandhar Police Station and further investigation was taken up.

4.It appears that on the basis of Medico Legal Certificate, inquest

panchanama was executed with the help of two panchas and the dead body

was sent for postmortem. After the registration of the offence, panchanama

of the spot was got executed and statements of witnesses were recorded.

Accused came to be arrested. After the completion of the investigation,

charge-sheet was filed. The accused was not released on bail.

5.After the committal of the case, the learned Additional Sessions

Judge, Kandhar has framed charge at Exhibit-04. The prosecution has in

all examined eight witnesses to bring home the guilt of the accused, after

the accused pleaded not guilty. Taking into consideration the incriminating

circumstances, the statement under Section 313 of the Code of Criminal

Procedure has been recorded. The defence of the accused is of total denial.

After hearing both sides and perusing the evidence on record, the learned

Trial Judge has held that the prosecution has proved the offence beyond

reasonable doubt and, therefore, the accused has been sentenced to suffer

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imprisonment for life and to pay fine of Rs.5,000/-, in default, to suffer

simple imprisonment for four months for the offence punishable under

Section 302 of Indian Penal Code. Set off has been granted under Section

428 of the Code of Criminal Procedure. This is the order challenged in the

present appeal.

6.Heard learned Advocate Mr. A. M. Gaikwad for the appellant and

learned APP Mr. S. J. Salgare for the respondent – State.

7.It has been vehemently submitted on behalf of the appellant that the

learned Trial Judge has not appreciated the evidence properly. Though the

prosecution had come with the case that P.W.1 Annapurna had lodged the

report, yet she had turned hostile. The contents of the FIR were not proved

at all by her. The admissions given by her in her cross-examination taken

on behalf of the accused have not been considered at all. After she was

declared hostile, permission was granted to the prosecution to put the

questions in the nature of cross. Those facts which she admitted were

never put to the accused in his statement under Section 313 of the Code of

Criminal Procedure. Therefore, the accused has been deprived of offering

the explanation to those circumstances and, therefore, those circumstances

which had come on record by way of cross by learned APP ought not to

have been used against the accused. Same is the case with the testimony of

P.W.3 Vishnu Honrao and P.W.4 Dnyanoba Jadhav. Both have turned hostile.

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They have allegedly given admissions in the cross taken by the prosecution,

but those circumstances were never put to the accused. The prosecution

has examined the autopsy doctor P.W.6 Dr. Maroti Dake, who has stated

that the cause of death was “asphyxia due to ligature strangulation.” He

has not clearly stated that it was a case of homicidal death by ruling out the

possibility of accident. P.W.6 Dr. Dake has stated that he had found two

shallow, brownish, complete ligature marks around the neck one above the

other at a distance of 0.3 cm apart from one another. Here, the prosecution

is coming with the case that a small strip of cloth has been used to

strangulate deceased, then the question arises as to how two marks were

present and in spite of those two strangulation marks, the girl had not died

instantaneously though she was aged three months, but she died after two

days. Therefore, the opinion given by P.W.6 Dr. Dake is doubtful.

8.It has been submitted on behalf of the appellant that the learned

Trial Judge has not considered that P.W.1 Annapurna, P.W.3 Vishnu and

P.W.4 Dnyanoba have admitted in their cross taken on behalf of the accused

that when they went inside the house, at that time, the accused was not

present. P.W.1 Annapurna rather says that her mother-in-law came when

she raised shouts and told her that the accused has gone for answering

natures call. She has specifically stated that there is no arrangement of W.C.

or bathroom in their house. Even P.W.3 Vishnu says that accused arrived

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after about 15 to 20 minutes. When the accused was not present when it

was realized that something has occurred to the girl, then the Trial Court

was not justified in invoking the theory under Section 106 of the Indian

Evidence Act. P.W.5 Kailash Jadhav is the person who had taken accused,

P.W.1 Annapurna and the child in his vehicle to hospital at Kandhar and

then to Nanded. He has also turned hostile, thereby his testimony cannot

be used. Though the spot panchanama is not seriously challenged by the

accused, yet the fact remains is that there was nothing at the spot which

can be said to be incriminating against the accused and the spot

panchanama has also been executed on 22.11.2015, when the alleged

incident has taken place on 20.11.2015. The alleged murder weapon that

is the strip of the cloth was found lying on the cot. There is no evidence on

record adduced by the prosecution to prove that the spot of the incident

was secured. P.W.7 Police Head Constable Ramsinha Bayas is the police

officer, who had executed inquest panchanama and P.W.8 PSI Kalpana

Chavan is the investigating officer. With this kind of evidence, the learned

Trial Judge ought not to have convicted the accused.

9.Learned APP strongly opposed the appeal and supported the reasons

given by the learned Trial Judge. He submitted that though the informant

P.W.1 Annapurna has turned hostile, yet it is the settled legal position that

entire evidence of a hostile witness need not be discarded. Same is the rule

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as regards the testimony of P.W.3 Vishnu and P.W.4 Dnyanoba and P.W.5

Kailash. All of them have given admissions in their cross taken on behalf of

the prosecution. P.W.1 Annapurna was firm in her examination-in-chief in

saying that on the day of incident, she herself and son had gone out of the

house. She had made Shivkanya to lie on the cot and had instructed the

accused to look after her. Further, after she was declared hostile and her

cross has been taken by the learned APP, she has admitted that after her

return, she found Shivkanya was groaning. When she tried to breastfeed

her, accused prevented her, but when still she attempted, the girl was not in

a position to take the milk. Therefore, she had untied Kulai, tied around

her neck and she found abrasions on the neck. Accused had replied that the

girl had fallen down from the cot and he has not strangulated her. It has

been observed on this point by the learned Trial Judge that if the accused

was not present at all in the house as per the defence, then it was not

necessary for him to give explanation to the wife in such a manner. When

P.W.1 Annapurna left, the girl was alive in the company of father, but

unfortunately, the father has committed murder of the daughter. As regards

motive also, the learned Trial Judge has said that it is not always necessary

to prove the motive even in the cases based on circumstantial evidence.

Here, it might be that the girl has been born and then he will have to make

arrangements for her marriage. The testimony of P.W.6 Dr. Dake would

prove that it is a homicidal death. In all three injuries were found

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externally. Therefore, the conclusion of the learned Trial Court that the

case was proved beyond reasonable doubt needs to be upheld.

10.Before we proceed to appreciate the evidence from record, we are

constrained to observe that the learned Trial judge, who has recorded the

evidence, has not followed the parameters as to when the permission can

be given under Section 154 of the Indian Evidence Act. It appears that

merely because it is asked on behalf of the prosecution, the said permission

has been granted. Only one sentence not supporting the prosecution case

will not give right to the prosecution to seek permission under Section 154

of the Evidence Act.

The scheme of Section 154 of the Indian Evidence Act actually

permits the party who calls a witness to put any questions which might be

put in cross-examination by the adverse party. Therefore, something more

is required than the mere denial of the earlier statement for the Courts to

exercise the said discretion regarding granting such permission. It is

expected that while granting such permission Court should assign certain

reasons. We would like to rely on the decision in Sri Rabindra Kumar Dey

Vs. State of Orissa, [(1976) 4 SCC 233], wherein guidelines have been

stated where the discretion to permit cross-examination can be granted and

it has been held that :-

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“Section 154 confers a judicial discretion on the Court to

permit cross-examination and does not contain any conditions

or principles which may govern the exercise of such

discretion. The discretion must be judiciously and properly

exercised in the interest of justice. The law on the subject is

well-settled that a party will not normally be allowed to cross-

examine its own witness and declare the same hostile, unless

the Court is satisfied that the statement of the witness

exhibits an element of hostility or that he has resiled from a

material statement which he made before an earlier authority

or where the Court is satisfied that the witness is made before

an earlier authority or where the Court is satisfied that the

witness is not speaking the truth and it may be necessary to

cross-examine him to get out the truth. One such instance is

where the witness resiles from a very material statement

regarding the manner in which the accused committed the

offence. Merely because a witness is an unguarded moment

speaks the truth which may not suit the prosecution or which

may be favourable to the accused, the discretion to allow the

party concerned to cross-examine its own witnesses cannot be

allowed.

… In other words a witness should be regarded as adverse

and liable to be cross-examined by the party calling him only

when the Court is satisfied that the witness bears hostile

animus against the party for which he is deposing or that he

does not appear to be willing to tell the truth. In order to

ascertain the intention of the witness or his conduct, the

Judge concerned may look into the statements made by the

witness before the Investigating Officer or the previous

authorities to find out as to whether or not there is any

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indication of the witness making a statement inconsistent on

a most material point with the one which he gave before the

previous authorities. The Court must however distinguish

between the statement made by the witness by way of an

unfriendly act and one which lets out the truth without any

hostile intention. Hence, the Court must scan and weigh the

circumstances properly and should not exercise its discretion

in a casual or routine manner. The matter will largely

depend on the facts and circumstances of each case and on

the satisfaction of the Court on the basis of those

circumstances.”

[Stress supplied]

Further, we would also like to rely on the decision in Gura Singh Vs.

State of Rajasthan, [(2001) 2 SCC 205], wherein it has been held that :-

“11. There appears to be a misconception regarding the

effect on the testimony of a witness declared hostile. It is a

misconceived notion that merely because a witness is

declared hostile his entire evidence should be excluded or

rendered unworthy of consideration. This Court in Bhagwan

Singh Vs. State of Haryana, (1976) 1 SCC 389 held that

merely because the Court gave permission to the Public

Prosecutor to cross-examine his own witness describing him

as hostile witness does not completely effact his evidence.

The evidence remains admissible in the trial and there is no

legal bar to base the conviction upon the testimony of such

witness. In Rabindra Kumar Dey (Supra), it was observed

that by giving permission to cross-examine nothing adverse

to the credit of the witness is decided and the witness does

not become unreliable only by his declaration as hostile.

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Merely on this ground his whole testimony cannot be

excluded from consideration. In a criminal trial where a

prosecution witness is cross-examined and contradicted with

the leave of the Court by the party calling him for evidence

cannot, as a matter of general rule, be treated as washed off

the record altogether. It is for the Court of fact to consider in

each case whether as a result of such cross-examination and

contradiction the witness stands discredited or can still be

believed in regard to any part of his testimony. In

appropriate cases the Court can rely upon the part of

testimony of such witness if that part of the deposition is

found to be creditworthy.”

It has been further held in Gura Singh (Supra) that “on facts we find

that said witness was wrongly permitted to be cross-examined. It was only

on a post event detail that he did not concur with the suggestion made by

the Public Prosecutor. That single point in our opinion was too insufficient

for the Public Prosecutor to proclaim that the witness was made a volte-

face and became totally hostile to the prosecution.”

Therefore, allowing a party to cross-examine its own witness without

recording any reason for doing so cannot be taken as a valid exercise of

discretion under Section 154 of the Indian Evidence Act.

11.P.W.1 Annapurna, the informant, has deposed that her daughter

Shivkanya was aged three months at the time of death, on the day of

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incident which had taken place about a year prior to her deposition. She

had gone along with her son out of the house. Shivkanya was in a sleep

and she had put her on cot by instructing the accused to look after her.

Thereafter, she returned to the house and she says that nothing had

happened in between Shivkanya and accused. When this sentence has been

stated, immediately the prayer was made to declare her hostile and

permission was sought to cross-examine her and immediately the

permission has been granted. This is not contemplated as per the above

settled law. Thereafter the questions have been put in the nature of cross

by learned APP and then she has denied that she had gone along with her

son out of the house at about 8.00 a.m. This suggestion itself is wrong

taking into consideration the FIR. In the FIR, it was 10.00 a.m. when she

went out of the house. That means, even the learned APP had not studied

the case properly, nor the Presiding Officer, who was recording the

evidence, was not vigilant. P.W.1 Annapurna has then admitted that when

she returned to the house, Shivkanya was groaning and when she wanted

to breastfeed her, at that time, he prevented her from feeding daughter.

Now, here the care ought to have been taken to state that it was the

accused who was preventing P.W.1 Annapurna. Merely by using word ‘he’

the suggestion ought not to have been taken. When the girl was not taking

the milk, she had loosen the Kulai and she found abrasions on the neck.

Then she says that she had not asked accused as to why he had done. Then

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again she answers that accused replied that daughter had fallen down from

the cot and he had not strangulated her. P.W.1 Annapurna states that she

started shouting and then her cousin came (as per FIR, he is the nephew

and not cousin), then with accused and Vishnu, she took daughter to

Dr. Jadhav and as he refused to admit her, they went to Civil Hospital,

Nanded. P.W.1 Annapurna denied the suggestion that the doctor told her

that Shivkanya was having difficulty in breathing on account of

strangulation. Informant then admitted that Shivkanya was admitted in

ward No.6 and died after two days. She says that her statement was

recorded by police in Civil Hospital, Nanded. She has denied the thumb

impression on the FIR as that of her own thumb and, thereafter, the

suggestions have been put which she has denied. It appears that she has

made a statement that matter was settled in between them out of Court

and then she denied the suggestion that on that count in order to save the

accused from the punishment, she was deposing falsely. Before we proceed

to appreciate her cross taken on behalf of accused, we would like to say

that all those admissions or circumstances which were in favour of the

prosecution, were not put to the accused in his statement under Section

313 of the Code of Criminal Procedure. We would like to deal with that

aspect taking into consideration the cross of P.W.3 Vishnu, P.W.4 Dnyanoba

and P.W.5 Kailash at a later point of time.

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12.P.W.1 Annapurna in her cross taken on behalf of the accused has

admitted that there is a partition made from Tatta in between the house of

accused and house of Kishan, who is her elder brother-in-law, meaning

thereby the two houses are adjacent to each other and separated by

partition, which can be said to be a temporary partition. Her in-laws used

to stay sometimes in her house and sometimes with the elder brother-in-

law. On the day of incident, the in-laws were residing with the elder

brother-in-law. As regards the day of incident is concerned, she states that

when she had gone for picking firewood sticks and returned, he could not

see the accused at home. When she took the daughter in her hand, the

daughter started crying and then she saw the abrasions around her neck

and, therefore, she started shouting. On hearing shouts, her in-laws came.

Her cousin brother-in-law Vishnu and Dnyanoba arrived there and she

made inquiry with them as to where the accused is. Her mother-in-law

informed her that the accused had gone for answering natures call. There

is no facility of latrine in their house. She then says that they are required

to go to their field which is about a kilometer away for answering natures

call. Accused arrived after about 15 minutes and she asked him also about

the same and received the same answer. She has admitted that the

husband and sister-in-law had taken active role in admitting Shivkanya to

Civil Hospital, Nanded. She herself had not stated anything to police, but

the police had recorded the statement as stated by the husband of her

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sister-in-law. She has given answers to the income of her husband and says

that they were cohabiting happily. Important point to be noted is that the

learned Trial Judge has not considered all these answers in proper

perspective. Only pick and choose method appears to have been adopted.

When the contents of the FIR were not proved, then heavy burden was on

the prosecution to prove those contents of the FIR and also the other

circumstances beyond reasonable doubt.

13.At this stage itself, we would consider the testimony of P.W.3 Vishnu

and P.W.4 Dnyanoba Jadhav. As aforesaid only after one sentence, P.W.3

Vishnu has been declared hostile and after three sentences P.W.4 Dnyanoba

has been declared hostile. This procedure itself is therefore not adopted

properly and, therefore, the admissions so called extracted by utilizing

Section 154 of the Indian Evidence Act cannot be considered at all. They

both have stated that they went to the house of accused after they heard

shouts of Annapurna. The learned Trial Judge is very much harping upon

the admission that has been given by both of them that when they were

present, accused told Annapurna that he has not strangulated Shivkanya. In

this context, the learned Trial Judge says that if at all he was not present,

he ought not to have offered the explanation. This admission ought not to

have been considered in isolation. In Paramjeet Singh Alias Pamma Vs.

State of Uttarakhand, [(2010) 10 SCC 439], after taking note of the

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observations in State of Gujarat Vs. Anirudhsingh, [(1997) 6 SCC 514] and

based on the decision in State of Rajasthan Vs. Bhavani, [2003 (7) SCC

291], it has been observed that :-

“16.The fact that the witness was declared hostile at the

instance of the Public Prosecutor and he was allowed to

cross-examine the witness furnishes no justification for

rejecting en bloc the evidence of the witness. However, the

Court has to be very careful, as prima facie, a witness who

makes different statements at different times, has no regard

for the truth. His evidence has to be read and considered

as a whole with a view to find out whether any weight

should be attached to it. The Court should be slow to act

on the testimony of such a witness; normally, it should look

for corroboration to his testimony.”

Further, taking into consideration earlier decisions of the Hon’ble

Supreme Court, it has been further observed that :-

“20.In view of the above, it is evidence that the evidence

of a person does not become effaced from the record

merely because he turned hostile and his deposition must

be examined more cautiously to find out as to what extent

he has supported the case of the prosecution.”

14.Therefore, taking into consideration this legal position, though it can

be said that the entire testimony of these three witnesses cannot be

discarded, yet the learned Trial Court was not justified in considering their

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cross taken by learned APP only. Whether that cross has been further

shattered in the cross taken by the accused ought to have been considered.

P.W.3 and P.W.4 have both admitted in the cross-examination that accused

was not present when they came to the house of accused and he arrived

after about 15 to 20 minutes. Therefore, the so called admission in the

cross of learned APP that accused told Annapurna that he has not

strangulated Shivkanya’s neck, he was not at all present as per his defence,

then explanation ought not to have been offered; should not have been so

interpreted by the learned Trial Judge.

15.Now, turning towards the point that, the facts, which had come in

the cross by learned APP (after the exercise of powers by the learned Trial

Court under Section 154 of the Indian Evidence Act), questions were not

put in statement under Section 313 of the Code of Criminal Procedure, in

Sharad Birdhichand Sarda Vs. State of Maharashtra, [(1984) 4 SCC 116], it

has been held that, “the provisions of Section 313 of the Code of Criminal

Procedure especially the second part is mandatory in nature. The Court is

under legal obligation to put the incriminating circumstances before the

accused and solicit his response. Circumstances which were not put to the

accused in his examination under Section 313 of the Code of Criminal

Procedure cannot be used against him and have to be excluded from

consideration.” Further in S. Harnam Singh Vs. State (Delhi

Administration), [(1976) 2 SCC 819], Hon’ble Apex Court has held that

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“non-indication of inculpatory material and its relevant facts by the Trial

Court to the accused adds to the vulnerability of the prosecution case. The

recording of the statement of the accused under Section 313 of the Code of

Criminal Procedure is not a purposeless exercise.” Similar view was taken

in Ashraf Ali Vs. State of Assam, [(2008) 16 SCC 328], however, in Shivaji

Sahabrao Bobade Vs. State of Maharashtra, [(1973) 2 SCC 793], it has

been held :-

“16. … It is trite law, nevertheless fundamental, that the

prisoner’s attention should be drawn to every inculpatory

material so as to enable him to explain it. This is the basic

fairness of a criminal trial and failures in this area may gravely

imperil the validity of the trial itself, if consequential miscarriage

of justice has flowed. However, where such an omission has

occurred it does not ipso facto vitiate the proceedings and

prejudice occasioned by such defect must be established by the

accused. In the event of evidentiary material not being put to

the accused, the court must ordinarily eschew such material

from consideration. It is also open to the appellate Court to call

upon the counsel for the accused to show what explanation the

accused has as regards the circumstances established against

him but not put to him and if the accused is unable to offer the

appellate Court any plausible or reasonable explanation of such

circumstances, the Court may assume that no acceptable answer

exists and that even if the accused had been questioned at the

proper time in the trial Court he would not have been able to

furnish any good ground to get out of the circumstances on

which the trial Court had relied for his conviction.”

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16.It is well settled principle that the exercise required to be undertaken

while putting questions as contemplated under Section 313 of the Code of

Criminal Procedure is not an empty formality. It, in fact, gives an

opportunity to the accused to explain the circumstances, which may be

used against him. In Paramjeet Singh (Supra), it has been observed that an

improper examination/inadequate question under Section 313 of the Code

of Criminal Procedure amounts to a serious lapse on the part of the Trial

Court and is a ground for interference with conviction. However, in

Paramjeet Singh (Supra) itself it is held that the accused will have to show

as to what prejudice has been caused to him. The said point was summed

up with the following observations :-

“13. Though a conviction may be based solely on

circumstantial evidence, this is something that the court must

bear in mind while deciding a case involving the commission of

a serious offence in a gruesome manner. In Sharad Birdhichand

Sarda v. State of Maharashtra, AIR 1984 SC 1622, this Court

observed that it is well settled that the prosecution's case must

stand or fall on its own legs and cannot derive any strength from

the weakness of the defence put up by the accused. However, a

false defence may be called into aid only to lend assurance to

the court where various links in the chain of circumstantial

evidence are in themselves complete. This Court also discussed

the nature, character and essential proof required in a criminal

case which rests on circumstantial evidence alone and held as

under :-

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(1) The circumstances from which the conclusion of guilt

is to be drawn should be fully established;

(2) The facts so established should be consistent only with

the hypothesis of the guilt of the accused, that is to say, they

should not be explainable on any other hypothesis except that

the accused is guilty;

(3) The circumstances should be of a conclusive nature

and tendency;

(4) They should exclude every possible hypothesis except

the one to be proved, and

(5) There must be a chain of evidence so complete as not

to leave any reasonable ground for the conclusion consistent

with the innocence of the accused and must show that in all

human probability the act must have been done by the accused.”

17.Here, in this case, as aforesaid, all these three witnesses had turned

hostile and certain admissions were extracted in the cross taken by the

learned APP, however, those circumstances have not been put to the

accused in his statement under Section 313 of the Code of Criminal

Procedure. Only question No.2 relates to what the informant P.W.1

Annapurna has stated in her examination-in-chief. There is absolutely no

reference to the testimony of P.W.3 and P.W.4. Thus, absolutely no

opportunity was given to the accused to put forth his say and then those

admissions in the cross-examination have been used against the accused. If

that opportunity would have been given, the accused might have given

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some explanation and then the Trial Court might have interpreted the said

explanation. The learned Trial Court has made reference to Section 106 of

the Evidence Act which attributes to the fact within the knowledge of a

person, but here the fact that emerged was that in her examination-in-chief

P.W.1 Annapurna only stated that when she left the house she had asked

accused to look after the daughter and thereafter she has turned hostile.

She has not supported the prosecution story. In her cross-examination by

the accused she has given so many admissions, especially that when she

returned the accused was not present and the mother-in-law told that

accused had gone for answering nature’s call. Possibility is that all these

answers coming on record after the alleged compromise or with an

intention to save the accused were given, yet we cannot give a go-by to the

legal principles and the procedure. Therefore, non-examination of the

accused in his statement under Section 313 of the Code of Criminal

Procedure on the point of admissions extracted in view of the questions,

which were put in the nature of cross after seeking permission under

Section 154 of the Evidence Act, have caused prejudice to the accused and,

therefore, trial has vitiated. Courts are bound to put each and every

circumstance which may be used against the accused/incriminating against

the accused or which is capable of incriminating him in his statement under

Section 313 of the Code of Criminal Procedure.

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18.Important point further to be noted is that a doubt is created in the

mind of this Court as to whether the suggestion that was put to P.W.3

Vishnu and P.W.4 Dnyanoba by learned APP that accused told Annapurna

that he has not strangulated Shivkanya was properly conveying the

prosecution story. Prosecution story is that accused had strangulated his

daughter. It was not suggesting or has not coming on record that on his

own the accused was saying that he has not strangulated Shivkanya. If we

read the contents of the FIR, then it is said that after the Kulai was untied

by Annapurna, she saw the strangulation mark and thereupon she asked

the accused as to why he has done the act. Thereupon that was the answer,

but that is not the sequence that was put to P.W.3 Vishnu and P.W.4

Dnyanoba. As per the FIR Annapurna raised shouts, After this statement by

the accused and then P.W.3 Vishnu came. In the FIR, there is no mention of

arrival of P.W.4 Dnyanoba Jadhav. FIR is not the encyclopedia, but the said

sequence of arrival of P.W.3 Vishnu and P.W.4 Dnyanoba has not been

sought from P.W.1 Annapurna. If they had not arrived when the alleged

statement was made by the accused to Annapurna, then where was the

question of hearing the said statement by these two witnesses, but

unnecessarily the learned Trial Judge has given much importance to the

said circumstance and inferred that if accused was not present, then why he

should give explanation that daughter fell down from the cot and he has

not strangulated her. The said inference is absurd and prejudicial without

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giving any opportunity to the accused to give his explanation on the same.

19.P.W.6 Dr. Maroti Dake had noticed two strangulation marks. There is

no explanation by the prosecution as to what could have been the

possibility of two strangulation marks. The distance between two marks

was 0.3 cm and it has been so noticed though the girl was only three

months old. We can imagine the size of neck. In his examination-in-chief,

he has stated that the strangulation is possible by Article No.1 i.e. strip of

cloth, but then he says that the said strip of cloth should have been twisted.

Important point to be noted is that the investigation appears to be not fair

as the Kulai i.e. the cap which was around the neck of the girl was not

seized by the prosecution. The said cap is always to be tied with the help

of strips and if the cap is made up of wool, then it will have the twisting

marks. The said Kulai was never shown to P.W.6 Dr. Dake. If the said strip

of Kulai or cap was already in the neck, why another strip would have been

used, if at all the girl was to be killed. In his cross-examination, P.W.5

Dr. Dake has admitted that width of Article No.1 is approximately 3 to 4

inch. He had not noted the width of the ligature mark of 3 to 4 inch in the

postmortem report. He volunteered that he has already explained while

describing injury No.1 in column No.17. The description of injury No.1

does not make a mention of the width. The maximum width of upper mark

is said to be 1.00 cm. on the right side of neck and he has given different

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dimensions, but mostly are the length. Nothing is corresponding to 3 to 4

inches. If he would have been shown the Kulai, he would have given a

better opinion, but the investigation as well as the prosecution has not laid

proper evidence. The expert has then tried to volunteer by saying that

there must be two rounds taken around the neck of deceased. This is the

explanation to ligature marks which has come as a voluntary thing at a

later point of time. Even if we consider that the death of Shivkanya is

homicidal in nature, yet as aforesaid there was no cogent and conclusive

evidence against the accused.

20.Now, turning to the most important point regarding motive, the

prosecution has not brought on record what was the motive or what could

have been the motive for the accused to commit the crime. The learned

Trial Judge has relied on the decision in Narayan Vs. State of Maharashtra,

[AIR 1971 SC 1656] and Rajendra Kumar Vs. State of Punjab, [AIR 1966

SC 1322]. We do not want to dispute the ratio, however, it is one of the

circumstance that is required to be considered in a case based on

circumstantial evidence that if the evidence led by the prosecution though

circumstantial in nature is unerringly pointing out towards the accused as

culprit i.e. based on the golden principles laid down in Sharad Birdhichand

Sarda Vs. State of Maharashtra, [(1984) 4 SCC 116], then in that case, the

ratio laid down in Narayan (Supra) and Rajendra Kumar (Supra) would be

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helpful. Here, in this case, the girl was only three months old. P.W.1

Annapurna has not stated or it has not been extracted from her as to

whether the accused was not happy with the birth of the daughter, was

worried about her, expressed anguish. Here, the accused has a son and,

therefore, unless it would have been pointed out that the accused was not

happy with the birth of the daughter, why he would have thought of

committing murder of his own daughter, is a question. Further, as per the

FIR Exhibit-30 itself, Annapurna had returned from her parents house on

13.11.2015 and incident has taken place on 20.11.2015. No doubt, it has

not been brought on record that she had gone for delivery at the time of

Shivkanya and had returned only seven days prior to the incident. If that is

so then it is hard to believe that within a period of seven days, the accused

would have thought of committing murder of his own daughter. The

prosecution has not proved the story beyond reasonable doubt. The

evidence adduced by the prosecution was not sufficient to convict the

accused and as aforesaid, because of the procedure that was undertaken,

the trial has got vitiated and, therefore, the appeal deserves to be allowed.

Hence, the following order :-

ORDER

1.The appeal is hereby allowed.

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2.The conviction awarded to the appellant by learned Additional

Sessions Judge, Kandhar, Dist. Nanded in Sessions Case No.6 of 2016

after holding him guilty for the offence punishable under Section 302

of the Indian Penal Code stands quashed and set aside.

3.The appellant stands acquitted of the offence punishable under

Section 302 of the Indian Penal Code.

4.He be set at liberty, if not required in any other case.

5.The fine amount deposited, if any, be refunded to the appellant

after the statutory period.

6.We clarify that there is no change as regards the order in

respect of disposal of muddemal.

[ ABHAY S. WAGHWASE ] [ SMT. VIBHA KANKANWADI ]

JUDGE JUDGE

scm

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