GOVARDHAN AND ORS. Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by judgment and order dated 15.05.2012 in Sessions Case No. 132/2009 passed by Additional Sessions Judge, Chandrapur, convicting the appellants for an offence punishable under Sections 302 and 201 of the Indian Penal Code, the present appeal has been preferred by appellants.

(2.) In support of the appeal, Dr. De, learned counsel for the appellants, took us through the entire evidence on record, oral as well as documentary, and argued that the prosecution had miserably failed to prove its case beyond any reasonable doubt. Therefore, judgment of conviction of the appellants is clearly illegal. He submitted that admittedly, there is no eye witness to the incident in question and the appellants having been acquitted of the charge of dowry death or demand for dowry and in the absence of any charge under Section 306 of the IPC, the only way out is to acquit the appellants from the offence for which they were charged. He vehemently argued that the writing on the wall with lipstick has been found to be in the handwriting of the deceased Sharda by handwriting expert and not only that the trial Judge has also recorded a finding of fact to that effect. In the wake of the writing on the wall that the deceased Sharda wanted to commit suicide and she had accordingly committed suicide, the trial Court ought to have treated the said writing as dying declaration and believed the same and recorded an order of acquittal. The trial Court, however, incorrectly ignored the said dying declaration within the meaning of Section 32 of the Indian Evidence Act, which is nothing but a perversity. He further argued that the trial Court erred in drawing inference that merely because there was no soot in the trachea or respiratory tract, the burn injuries were post mortem. As a matter of fact, the deceased Sharda having committed suicide, the burn injuries were obviously ante mortem. He then submitted that there is no straight-jacket formula that in the absence of soot in the respiratory tract or trachea, necessarily the injuries could be said to be post mortem. Dr. De relied on certain authorities and scientific data as well. Learned counsel for the appellants then argued that there is a possibility of deceased Sharda committing suicide and that being so the benefit of doubt ought to have been extended by the learned trial Judge to the appellants. The trial Judge, however, refused to extend the benefit of doubt to the appellants. The learned counsel for the appellants then contended that the defence has probabilized the case, the one of suicide and not of homicidal death and no strict proof from the defence is expected. He submitted that the defence of the prosecution witness that the appellants had received burn marks on the palms of the hands while attempting to extinguish the fire was an indicator of the conduct of the appellants not in consonance with the guilt. But the trial Court has not given any importance thereto. Dr. De, then contended that the trial Court wrongly held that there was a throttling of the neck in the absence of any evidence to that effect since the ligature marks were not found, there was no evidence of throttling as stated by the trial Judge. The trial Judge committed error in relying upon the mere fact that the tongue of the deceased Sharda had protruded out but that by itself is not an evidence of throttling. Dr. De then contended that the trial Judge, for no reason, convicted the appellant Nos. 2 and 3 since there is no even remote evidence against them except for the fact that they happen to be the mother and father of appellant No. 1 and nothing more and were residing in the same house. In the absence of any evidence, according to Dr. De, the conviction of the appellant Nos. 2 and 3 is clearly illegal and, therefore, they should be acquitted of the charges levelled against them. He relied on the judgments in Archi Nawal Kishore Kujur v. State of Bhiar, 1995 4 Crimes 855, Ram Kumar..vs.. State of Madhya Pradesh, 1998 CrLJ 952, Surjeet Kaur..vs.. State of Madhya Pradesh, 1994 CrLJ 1886, Inspector of Customs, Akhnoor J & K..vs.. Yash Pal and anr, 2009 3 JT 577and Asraf Ali..vs.. State of Assam, 2009 Supp AIR(SC) 654.

(3.) Per contra, Mr. R.S. Nayak, learned A.P.P. for respondent-State supported the impugned judgment and order of conviction. The learned A.P.P. argued that the trial Judge has based the order of conviction on the oral as well as documentary evidence and, therefore, no fault could be found out with the impugned judgment of conviction. He, therefore, prayed for dismissal of the appeal.