STATE OF MAHARASHTRA Vs. DIPAK POPAT KEDARE

JUDGEMENT

(1.) Present application has been filed under Sec. 378(1)(b) of the Code of Criminal Procedure seeking leave to file an appeal challenging the judgment and order dtd. 22/3/2018 passed by the learned Additional Sessions Judge, Ahmednagar in Sessions Case No.315 of 2015; thereby acquitting the respondent from the offence punishable under Sec. 302 of Indian Penal Code.

(2.) Heard learned APP Mr. A. M. Phule for the applicant - State. With the able assistance of learned APP, we have gone through the record, which was before the learned Trial Judge.

(3.) The prosecution has in all examined seven witnesses to bring home the guilt of the accused. The case of the prosecution is based on circumstantial evidence. P.W.3 is the informant, who is brother of deceased - Jayshree, who is the wife of accused. P.W.5 Suresh is the father of deceased. Both of them were not present in the house of the deceased, nor they were residing in the same village also. P.W.1 Nandu Salve and P.W.2 Ramdas Salve are both the panchas to the inquest panchanama. P.W.6 Dr. Mohd. Shahid Mohd. Taher is the medical officer who has conducted autopsy and has proved that the probable cause of death was "hemorrhagic shock with liver laceration with head injury intracranial bleed". Taking into consideration the inquest panchanama as well as postmortem report Exhibit-45, it can be certainly said that the cause of death is homicidal in nature. The place of death is stated to be the house of the accused. Both the panchas i.e. P.W.1 and P.W.2 are the panch to the spot panchanama also. The place of incident was a sitting room. Only on the basis of the said fact whether provisions of Sec. 106 of the Indian Evidence Act can be raised or not will have to be considered. Important point to be noted is that the prosecution has not examined any neighbouring person and incident is stated to have occurred between two to three hours on 11/8/2015. No doubt, normally a person should be at home at night hours, but no presumption can be drawn. Not a single person has been examined to show that at night time, the accused had arrived at the house. Unless basic facts are proved, the presumption under Sec. 106 of Indian Evidence Act cannot be pressed into service. The learned Trial Judge has considered the said principle. Merely because the deceased was found in the house in dead condition; the prosecution cannot adopt an approach that it will not lead any evidence in the matter. Basic rule of law is that the prosecution should prove the guilt of the accused beyond reasonable doubt. If those basic facts are brought on record, then only the question of shifting of burden on the accused to disclose whatever was within his knowledge would arise under Sec. 106 of Indian Evidence Act.