Ganesh Balbhim Kshirsagar Vs the State of… — Murder and Culpable Homicide | Bombay HC (2018)

Ganesh Balbhim Kshirsagar Vs the State of… — Murder and Culpable Homicide | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO.366 OF 2013

Ganesh Balbhim Kshirsagar,
Age-26 years, Occu:Agril.,
R/o-Lohara, Tq-Lohara,
Dist-Osmanabad

...APPELLANT

 VERSUS

The State of Maharashtra

...RESPONDENT

...

 Mr.Satej S. Jadhav Advocate for Appellant.
 Mr.S.W. Munde, A.P.P. for Respondent-State.
 ...

CORAM: S.S. SHINDE AND
 V.K. JADHAV, JJ.

DATE OF RESERVING JUDGMENT : 11TH JULY, 2018.

 DATE OF PRONOUNCING JUDGMENT: 18TH JULY, 2018.

JUDGMENT [PER S.S. SHINDE, J.]:

1. This Appeal is directed against the

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Judgment and order dated 17th August, 2013, passed

by the Additional Sessions Judge, Omerga in
Sessions Case No.11 of 2012, thereby convicting
the accused-appellant - Ganesh Balbhim Kshirsagar
for the offence punishable under Section 302 of
the Indian Penal Code (for short "I.P. Code") and
sentencing him to suffer imprisonment for life and
to pay fine of Rs.2,000/- (Rupees Two Thousand),
and in default of payment of fine, to suffer
rigorous imprisonment for three months. The trial
Court also convicted the accused-appellant for the
offence punishable under Section 201 of the I.P.

Code and sentenced him to suffer rigorous
imprisonment for two years and to pay a fine of
Rs.1,000/- (Rupees One Thousand), and in default

of payment of fine, to suffer rigorous
imprisonment for one month. Both the sentences
were directed to be run concurrently. Hence this
Appeal is filed by the Appellant challenging the
conviction and sentence.

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2.The prosecution case, in brief, is as

under:-

A)The accused-Appellant is originally

resident of Lohara, Tq-Lohara, Dist-Osmanabad. He
was married to deceased Akshata. After marriage,
the accused along with his wife Akshata was
staying at Chaufla Shikrapur, Pune. The accused

was doing the work of supplying tiffins to the
employees in the private company at Pune. However,
his agreement with the company had expired and
therefore, he became unemployed. The accused had
no source of income, due to which, he addicted to
consume liquor and indebted. Therefore, the
accused was insisting his wife to bring money from
her father and grand-father.

B)On 16th October, 2011, Balbhim Shivram
Kshirsagar, resident of Lohara, at about
2.30 p.m., saw dead body of one unknown woman
floating in the water of well in his field. Age of

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said dead body was about 25 to 26 years. Said

Balbhim Kshirsagar informed the said fact to
Lohara police station. On the basis of
information, A.D. No.29 of 2011 under Section 174
of the Code of Criminal Procedure came to be
registered in Lohara police station. Police head
constable Rajendra Jadhav had conducted inquiry of
said A.D. During inquiry, he went to the said well
and found dead body of a woman floating in the
water. One liquor bottle of Royal Stag brand was
also found on the spot. Mr. Jadhav seized said
bottle in presence of the panchas. Then he took

out said body from the well with the help of one
Santosh Dube and Sheshrao Sarvade. Mr. Jadhav then
prepared spot panchnama and also drawn inquest
panchnama on the dead body. Thereafter he sent
said dead body to the civil hospital, Lohara for
postmortem. He received postmortem report on the
next day and as per opinion of the doctor, the

cause of death of said lady was "asphyxia due to
strangulation". Therefore, Mr. Jadhav, police head

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constable, lodged complaint of murder against
unknown person and accordingly an offence was
registered.

C)A.P.I. Mr. Andurkar then attached to

Lohara police station had taken further
investigation of said crime. Since the dead body
was of unknown lady, Mr. Andurkar had got made
announcement in the nearby villages on beat of

drum for identification of the dead body and also

published news in the news paper. Thereafter one
Ashish Nannaware, who is brother of deceased and

one Dinkar Gadhave went to Lohara police station,
they identified photograph and clothes of the
deceased. Accordingly, Mr. Andurkar recorded their
statements. Then he arrested the accused on 4th
November, 2011. During interrogation, the accused

made disclosure statement that "Odhani/scarf"
which was used for strangulation is thrown by him

in the said well by tiding stone in it and he is
ready to produce the said "Odhani". Accordingly,

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the statement of accused was recorded in presence
of two panchas. Then accused laid two panchas and
police staff to the said well and one "Odhani"

with stone was recovered from the said well which
was seized by Mr. Andurkar under panchnama, in
presence of two panchas.

D)Then, Mr. Andurkar recorded statements of

various witnesses and after due investigation,
found that it is the accused who has committed
murder of his wife Akshata, by strangulation and
then threw her dead body in the well with intent
to disappear the evidence of murder. After
completing the investigation, police filed charge-
sheet against the accused in the Court of
J.M.F.C., Lohara. In due course, the case was
committed to the Court of Sessions.

E)A charge for an offence punishable under

Sections 302 and 201 of the I.P. Code was framed

against the accused and the contents of the charge

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were read over and explained to the accused in
vernacular. The accused pleaded not guilty and
claimed to be tried, with the defence of total
denial and that of false implication.

3.After recording the evidence and

conducting full fledged trial, the trial Court
convicted the accused-appellant for the offence
punishable under Section 302 of the I.P. Code and
sentenced him to suffer imprisonment for life and
to pay a fine, as afore-stated. The trial Court
also convicted the accused-appellant for the
offence punishable under Section 201 of the I.P.
Code and sentenced him to suffer rigorous
imprisonment for two years and to pay a fine, as
afore-stated. Hence this Appeal by the Appellant.

4.Mr. Jadhav, learned counsel appearing for

the accused-appellant, submitted that there was no

eye witness to the incident and case of the
prosecution is based only upon the circumstantial

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evidence. There is no direct evidence against the
accused. He further submitted that the chain of
circumstances on which reliance was placed by the
prosecution has not been established beyond
reasonable doubt. In support of his submissions,
learned counsel placed reliance upon the
exposition of law by the Supreme Court in the case
of Nar Singh vs. State of Haryana1. Learned
counsel submits that PW-2 Dr. Balaji Bidwe, who
conducted autopsy on deceased Akshata, has
admitted in cross-examination that he cannot
definitely say as to whether in this case death is
homicidal, suicidal or accidental. Therefore, the
prosecution has failed to establish that this is a
case of homicidal death and there is no other
possibility, hence the accused deserves benefit of
doubt. He further submits that no reliance can be
placed upon the recovery of Odhani at the instance
of accused, as the witness to recovery panchnama

is interested witness. He further submits that the

1AIR 2015 S.C. 310

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dead body was fully decomposed and therefore

identification of dead body is not conclusive.

5.Learned counsel further submits that the
prosecution failed to prove that the deceased was
last seen in the company of the accused. Akshata
was not in exclusive custody of the accused, when
the incident took place. In support of his
submissions, learned counsel placed reliance upon

the exposition of law in the case of Ashok vs.
State of Maharashtra2. Learned counsel further
submits that confessional statement of the accused

before the police cannot be read in the evidence,
as while recording the statement under Section 313
of the Code of Criminal Procedure, the accused has
reciled from his confessional statement and denied
that he has given any confessional statement.

Learned counsel further submits that already
report was filed by the accused that his wife
Akshata was missing, but no steps in that regard

2(2015) 4 S.C.C. 393

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were taken by the Investigating Officer. It is
submitted that though five bus tickets were found

in the purse of deceased Akshata, the
investigating officer has not carried out proper
investigation about the said tickets. Learned
counsel further submits that one note (Exhibit-32)
written by deceased Akshata was found in the
house, which leads to reasonable inference that
Akshata might have committed suicide due to
frustration. Learned counsel further submits that

on the basis of circumstantial evidence if two
views are possible, the view which favours the

accused, needs to be taken. He further submits
that the trial Court has not properly appreciated
the evidence brought on record and came to the
wrong conclusion. In support of his submissions,
learned counsel also placed reliance upon the
exposition of law in the case of Sawal Das vs.
State of Bihar3, Sahabuddin and another vs. State

3AIR 1974 S.C. 778

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of Assam4, Ram Das vs. State of Maharashtra5 and

Narendra Singh and another vs. State of M.P.6

6.Learned A.P.P. appearing for the State

submits that though the case of the prosecution is
based upon the circumstantial evidence, the chain
of circumstances on which reliance was placed by
the prosecution has been established beyond
reasonable doubt. He further submits that the
accused has made extra judicial confession before
the investigating officer, wherein he has clearly
admitted that he has killed his wife by throttling

her neck and thrown her dead body in the well
water. He further submits that after considering
the entire evidence on record, the trial Court has
convicted the accused, and the findings recorded
by the trial Court are in consonance with the
evidence brought on record. He therefore, submits
that the Appeal may be dismissed.

4 (2012) 13 S.C.C. 213

5 AIR 1977 S.C. 1164

6 AIR 2004 S.C. 3249

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7.First we will consider the medical

evidence. The prosecution has examined PW-2 Dr.
Balaji Sambhajirao Bidwe. He deposed that on 17th
October, 2011, he was working as a medical officer

in Rural Hospital, Lohara. When initially dead
body was referred to the hospital by police

station, Lohara, it was unknown. He has conducted
postmortem on the dead body which was of 25 years

female. Punjabee dress was on the dead body and

the clothes were wet with water. Condition of body
was well nourished moderately built, old and
decomposed. Rigour mortis were well developed all
over body. PM lividity present over face, neck
loins, thighs and lower extremities. Eyes were

swollen, tongue protruding, mouth was open, teeth
were intact. He found ligature marks all around

neck below thyroid cartilage of breadth 4 cm.
Said injury was ante-mortem. In his opinion, cause

of death was "due to asphyxia due to
strangulation". Accordingly he had issued PM

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report (Exhibit-23). He further deposed that this
is a case of homicidal death. The injury shown in
Column No.17 of PM report may be possible by
strangulation, by seized article-18 (Odhani/
scarf). Tongue protruding presents in case of
strangulation.

.During the course of cross-examination,
PW-2 Dr. Balaji Bidwe admitted that in case of
manual strangulation by other, there will be
fracture of larynx, trachea and hyoid bone. He
further admits that in such case scratches and
bruises on face and neck also appear. He further
stated that there may be death in case of
accidental strangulation. It may happen that in
case if highly intoxicated person sitting nearby
well and while falling in the well loosing balance

and if the scarf around his neck is pressed by
jerk to his both hands, in that case wind pipe of

his neck may block and he may die. He further
admits that in such type of case, it may be an

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accidental death. He further admits that in this
case, he cannot say definitely whether it was
homicidal or suicidal death.

8.Thus after careful perusal of entire

evidence of PW-2 Dr. Balaji Bidwe it is clear
that during the course of cross examination, he
has specifically admitted that in the present
case, he cannot say definitely whether it was
homicidal or suicidal death. This is the only
medical evidence. Thus, we find considerable force
in the argument advanced by learned counsel
appearing for the Appellant that the prosecution
has failed to establish conclusively that death of
Akshata was homicidal. PW-2 Dr. Balaji Bidwe has

not ruled out the possibility of suicidal or
accidental death.

9.The prosecution has examined PW-1

Rajendra Nilappa Jadhav, police head constable,

who has drawn to the spot panchnama and inquest

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panchnama. He deposed that on 16th October, 2011,
ASI of Lohara police station registered accidental
death and handed over further inquiry to him. Then
he along with police constable Rathod, went to the
spot of incident. They went near the well and
found that dead body of one lady was floating in
the water. Bottle of liquor having brand of Royal
Stag was found on the spot. He seized said bottle
in presence of panchas. Spot Panchnama (Exhibit-
18) was carried out. Then he took out said dead
body with the help of others and drawn inquest
panchnama (Exhibit-19) on the dead body. Then he
sent said dead body to civil hospital, Lohara for
post-mortem. Since it was a night time, post-
mortem was conducted on the next day morning.
After post-mortem, doctor opined that she was
killed by strangulation. Then on 18th October,
2011, he lodged complaint (Exhibit-20) against
unknown person under Section 302 and 201 of I.P.

Code. Thus, it is clear from the evidence of PW-1
Rajendra Jadhav, that, initially a complaint was

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lodged against unknown person.

10.The prosecution has examined PW-3

Mahendra Dinkar Gade. He deposed that on 6th
November 2011, he himself and Manoj Nannaware were

called by Lohara police station. At that time,
accused Ganesh Kshirsagar was in police lock-up.
One Andurkar was police inspector. The accused
made a statement that Chockleti black colour

Odhani tied with 3 Kgs. stone is thrown by him in
the well, near one field. He further deposed that
the accused stated that he is ready to produce

the same. Mr. Andurkar prepared panchnama of this

fact. Then said panchnama (Exhibit-27) was read
over to them, then they put their signatures on
it. Then accused, both panchas and Mr. Andurkar
went near well. Then accused took out Odhani and

stone from the well. Police prepared panchnama
(Exhibit-28) of the same and seized said articles.

He identified seized Odhani and stone, Article 18

and 19 respectively, to be same. He further

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deposed that on the same day in the evening at
about 6.00 p.m., Dinesh Kshirsagar, brother of the
accused has produced Karnaphule, Nokia mobile,
Painjan, Chockleti colour sandles, three finger
rings, cash amount Rs.1843/- and one purse, in
Lohara police station. Police seized all the
articles and prepared panchnama (Exhibit-29). The
said panchnama bears his signature. Thereafter one
motorcycle was seized by police in police chowki
under panchnama (Exhibit-30).

.During the course of cross-examination,
PW-3 Mahendra Gade stated that deceased Akshata
was daughter of his real sister. Dinkar Mahadeo
Gadhve is his father. He further admitted that
Hanmant Kisan Nannaware is husband of his sister.
He further admits that Manoj Nannaware (another
panch to seizure panchnamas Exhibit-27, 28, 29 and
30) is his cousin brother-in-law.

 PW-3 Mahendra Gade further admits that

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on 6th November, 2011, his signatures were
obtained by police on two panchnamas, in the
police station. Besides these two panchnamas, his
signature on seizure panchnama of motorcycle was
also obtained by the police. He further admits
that his signatures on all the panchnamas were
obtained in the police station.

11.Thus, upon careful perusal of the

evidence of PW-3 Mahendra Gade, it is crystal
clear that he is close relative of deceased
Akshata. Another panch to the seizure panchnamas

Exhibit-27 to 30, namely Manoj Nannaware is also
relative of deceased Akshata. PW-3 Mahendra Gade
has specifically admitted in his cross-examination

that, his signatures on all seizure panchnamas,
including seizure panchnama of Odhani, were

obtained in the police station itself. It is
pertinent to note that the dead body of Akshata

was recovered on 16th October, 2011, and the
Odhani was alleged to be recovered at the instance

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of the Appellant on 6th November, 2011, almost 20
days after the incident. Thus, it is difficult to
believe that really the Odhani was recovered from
the well, at the instance of the accused.

12.The prosecution examined PW-4 Ashish
Hanumant Nannaware. He deposed that Akshata was
his sister. She was married to Ganesh Kshirsagar,
resident of Lohara. After marriage, she had gone

along with Ganesh at Chaufula-Sikhrapur, Pune.
Ganesh was supplying tiffin to the employees in
private company. His sister was studying in 2nd
year B.Sc. in Wadiya College, Pune. On expiry of
the agreement with the company, Ganesh became
unemployed. He further deposed that Ganesh used to
assault his sister and insisting her to bring
money from her father and grand-father. His sister
had informed this fact to him on phone. He further
deposed that on 16th October, 2011, he was present

in Toramba village. On that day announcement was
made on beat of drum that a dead body of unknown

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lady was lying in the well of Balbhim Kshirsagar.

Therefore, he himself and his father went to
Lohara police station. Police showed clothes to
him and he said that the same belong to his
sister. Then he made an inquiry with his maternal
uncle and relatives about his sister on telephone,
but they told that she did not come to them.
Thereafter he himself and his grand-father went to
police station and his grand-father told to police
that she was his grand-daughter. He further
deposed that Ganesh has killed his sister by
strangulation by Odhani and thrown in the well.

.During the course of cross-examination,
PW-4 Ashish Nannaware admitted that his sister

Akshata was favourite of his mother. He has denied
the suggestion that because of death of his
mother, Akshata was mentally disturbed and
therefore she habituated to consume liquor. He
further denied that she has attempted to commit
suicide. However, he admitted that his grand-

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father has performed marriage of Akshata with
Ganesh, as he is their close relative. He further
stated that on 16th October, 2011, they did not
lodge complaint in police station that accused has
killed his sister Akshata. One document at Sr. No.

D-68 of charge-sheet was shown to the witness and
asked about handwriting of said document. Witness
stated that it was not handwriting of Akshata.
Since the said document was referred in cross-
examination, the trial Court exhibited the said
document as Exhibit-32. He further stated that he
had not made any complaint against accused about
assaulting by him to his sister.

13.Thus, oral testimony of PW-4 Ashish

Nannaware reveals that police showed clothes to
him and he said that the same belong to his
sister. This witness nowhere says that dead body
was shown to him and he identified the same to be

of his sister. PW-4 Ashish has not stated
specifically on which date he has visited the

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police station. It is significant to note that
identification of dead body is doubtful. The dead

body was highly decomposed. In the investigation
papers, there is a statement of one Shrishailya
Baburao Mitkari (at page No.188 of the original
Record and Proceedings), working as peon in Lohara
Grampanchayat. He has categorically stated that as
per the letter received from police station
Lohara, he along with three others, have took out

the dead body of one unknown lady from Rural
Hospital, Lohara and performed the funeral of said

unknown lady on 17th October, 2011. Thus,
statement of said Mitkari shows that till 17th
October, 2011, the dead body of said lady was
unidentified, and in such unidentified condition,

her funeral was performed. PW-4 Ashish Nannaware
further stated that on 16th October, 2011, when
they received information that his sister Akshata
died, he did not lodge complaint in police station

that accused has killed his sister Akshata. He was
shown one document attached with the charge-sheet

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at Sr. No. D-68. He denied that the said document

was in the handwriting of his sister Akshata.
Relying upon this letter Exhibit-32 the defence
has tried to bring on record that due to sudden
death of her mother, mental condition of Akshata

was not sound and therefore, the possibility of
suicidal death cannot be ruled out. It is the case
of defence that said note (chit) was written by
Akshata before her death and the same was kept in

the house. The defence has produced on record
further part of Exhibit-32, which, according to
the defence, bears signature of Akshata. The gist
of Exhibit-32 is that due to frequent quarrel
between the couple and sudden death of her mother,
mental condition of Akshata was not sound and
therefore Akshata decided to commit suicide.
Relying upon the text of Exhibit-32 it is tried to
suggest by the defence that, Akshata might have
committed suicide. The same is even corroborated

by PW-2 Dr. Balaji Bidwe. He specifically admitted
in his cross-examination that in this case he

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cannot say definitely whether it was homicidal
death or suicidal death. Learned counsel appearing
for the Appellant argued that the investigating
officer has not sent the said chit Exhibit-32 to
handwriting expert, in order to examine whether
it was really written by deceased Akshata or not,
and thus the investigating officer has not carried
out the investigation in proper manner.

14.PW-5 Hanmant Kishan Nannaware is father

of Akshata. He turned hostile and did not support
the prosecution case. Therefore, his evidence is
of no use to the prosecution.

15.PW-6 Ajij Mohammad Hussen Andurkar is the

investigating officer of this crime. In his
examination-in-chief, he has deposed about the

manner in which he has carried out the
investigation. During the course of cross-
examination, PW-6 Ajij Andurkar denied the
suggestion that during investigation it was

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discovered that deceased Akshata had written some
letters prior to her death. When Exhibit-32 was
shown to him, he stated that he has not seized
said document, however he has received said
document from Shikrapur police station and
therefore he has filed the same along with charge-
sheet. He has made inquiry as to whether the
documents like Exhibit-32 are also in existence or
not. He did not try to obtain original copy of
Exhibit-32. He denied that during investigation he
came to know that Akshata had written another part

of Exhibit-32 and that in the said document

Akshata had mentioned about committal of suicide
and therefore he has not seized the same.

16.Though seizure panchnama Exhibit-29 shows

that along with golden ornaments and some cash,

five bus tickets were also found in the purse of
deceased Akshata. Nothing has been brought on

record by the prosecution showing that the
investigating officer has made any inquiry about

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said five bus tickets to find out from where
Akshata had started her journey and at which
destination she had reached. The missing report
was already filed by the accused stating that his
wife Akshata was missing. The investigating
officer has not taken any immediate steps to find
out Akshata.

17.First of all the prosecution has not

conclusively proved that Akshata died homicidal
death. As already observed, PW-2 Dr. Balaji Bidwe,

who conducted autopsy on dead body of Akshata, has
categorically admitted in cross-examination that,
he cannot definitely say as to whether in this
case death is homicidal, suicidal or accidental.
Therefore, the prosecution has failed to establish
that this is a case of homicidal death and there

is not at all any other possibility. Secondly, the
prosecution has not brought on record any evidence

to show that deceased Akshata was last seen in the

company of accused Ganesh within the proximity of

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time and date of the incident. It is the case of
the prosecution that after marriage, Akshata had
gone along with her husband Ganesh to reside at
Chaufula-Sikhrapur, Pune. However, the dead body
of Akshata was found in the well situated at
Lohara, Dist-Osmanabad. The prosecution has not
brought on record any evidence to show that soon
before the incident, Akshata was seen in the
company of the accused. In the case of Ashok vs.
State of Maharashtra, cited supra, in Para-20 of
the Judgment, observed as under:-

"20. From the above discussion, we
conclude that the prosecution has not
brought any clinching evidence in
support of the last seen together
theory so as to shift the burden of
proof on the appellant-accused. In
light of this, the prosecution has
evidently failed to prove the guilt of
the appellant-accused beyond doubt.
Therefore, the appeal is allowed and
the judgment and order passed by the

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High Court as also by the trial Court
are set aside. The appellant is
directed to be released forthwith if
not required in connection with any
other case."

18.In the present case also, the prosecution
has not brought on record any clinching evidence
to establish that deceased Akshata was last seen
in the company of accused Ganesh within the
proximity of time and date of the incident, so as
to shift the burden of proof on the appellant-
accused as per Section 106 of the Evidence Act.

19.So far as the recovery of Odhani/scarf at
the instance of accused is concerned, PW-3
Mahendra Gade, panch to recovery panchnama of
Odhani, is close relative of deceased Akshata.
Further he has specifically admitted in cross-
examination, that his signatures on all panchnamas

were obtained in the police station itself.
Therefore, it is difficult to accept whether said

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Odhani was really recovered at the instance of
accused.

20.So far as the confession of the accused
recorded by the in-charge police station officer
when he was in custody is concerned, while
recording the statement under Section 313 of the
Code of Criminal Procedure, the accused has
specifically stated that he has not given any
confessional statement before the police.
Therefore, no reliance can be placed on said
alleged confessional statement. The Supreme Court

in the case of case of Sahadevan and another vs.
State of T.N.7, in Para 12 of the Judgment,
observed as under:-

"12. There is no doubt that in the present
case, there is no eye-witness. It is a case
based upon circumstantial evidence. In case
of circumstantial evidence, the onus lies
upon the prosecution to prove the complete
chain of events which shall undoubtedly

7A.I.R. 2012 S.C. 2435

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point towards the guilt of the accused.
Furthermore, in case of circumstantial
evidence, where the prosecution relies upon
an extra-judicial confession, the court has
to examine the same with a greater degree of
care and caution. It is a settled principle
of criminal jurisprudence that extra-
judicial confession is a weak piece of
evidence. Wherever the Court, upon due
appreciation of the entire prosecution
evidence, intends to base a conviction on an
extra-judicial confession, it must ensure
that the same inspires confidence and is
corroborated by other prosecution evidence.
If, however, the extra-judicial confession
suffers from material discrepancies or
inherent improbabilities and does not appear
to be cogent as per the prosecution version,
it may be difficult for the court to base a
conviction on such a confession. In such
circumstances, the court would be fully
justified in ruling such evidence out of
consideration."

21.Admittedly, in the present case there is
no eye witness and entire prosecution case is

based upon circumstantial evidence. In the present
case chain of circumstances is not all

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established.The Supreme Court in the case of

Hanuman Govind Nargundkar and another vs. State of
M.P.8, held thus:

"It is well to remember that in cases
wheretheevidenceisofa
circumstantialnature,the
circumstances from which the conclusion
of guilt is to be drawn should in the
first instance be fully established,
and all the facts so established should
be consistent only with the hypothesis
of the guilt of the accused. Again, the
circumstances should be of a conclusive
nature and tendency and they should be
such as to exclude every hypothesis but
the one proposed to be proved. In other
words, there must be a chain of
evidence so far complete as not to
leave any reasonable ground for a
conclusionconsistentwiththe
innocence of the accused and it must be
such as to show that within all human
probability the act must have been done
by the accused."

8AIR 1952 S.C. 343

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22.In the light of discussion in foregoing

paragraphs, we are of the considered view that the
entire prosecution rests upon the circumstantial
evidence and the evidence brought on record by the
prosecution is not cogent, sufficient and
convincing so as to prove the offence against the
Appellant beyond reasonable doubt.In the case of
Sharad Birdhichand Sarda vs. State of Maharashtra9
the Supreme Court has held that, the prosecution
must stand or fall on its own legs and it cannot
derive any strength from the weakness of the
defence. It is not the law that where there is any
infirmity or lacuna in the prosecution case, the
same could be cured or supplied by a false defence
or a plea which is not accepted by a Court. It is
to be born in mind that the case in hand is a case
of circumstantial evidence and if two views are
possible on the evidence on record, one pointing

to the guilt of the accused and other his

9(1984) 4 S.C.C. 166

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innocence, the accused is entitled to have the

benefit of one which is favourable to him.

23.It is to be noted here that the probable
defence taken by the accused cannot be lost sight

of. It is the defence of the accused that since
sudden death of the mother of Akshata, she was
mentally disturbed and therefore she has committed
suicide, and that he has been falsely implicated
in the crime.

24.The prosecution has utterly failed to

brought on record any positive act on the part of
the appellant to connect him with the crime. The
case of the prosecution is surrounded by
suspicious circumstances. Therefore, an inevitable
conclusion is that the Appellant is entitled for
the benefit of of doubt. Hence we pass the
following order:

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O R D E R

(I) The Criminal Appeal is allowed.

(II) The impugned Judgment and order
dated 17th August, 2013, passed by the
Additional Sessions Judge, Omerga in
Sessions Case No. 11 of 2012 convicting

and sentencing the Appellant - Ganesh

Balbhim Kshirsagar for the offence
punishable under Section 302, Section
201 of the Indian Penal Code, is
quashed and set aside.

(III) The Appellant is acquitted of
the offence punishable under Section
302, Section 201 of the Indian Penal
Code. Fine amount, if deposited as per

the impugned Judgment and order, be
refunded to the Appellant.

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(IV) The Appellant - Ganesh Balbhim
Kshirsagar is in jail, he be set at
liberty forthwith, if not required in
any other case.

(V) The Appellant shall furnish
Personal Bond of Rs.15,000/- and surety
in like amount under Section 437-A of
the Code of Criminal Procedure, before
the concerned trial Court at Omerga.

[V.K. JADHAV, J.] [S.S. SHINDE, J.]
asb/JUL18