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Ajay Marotrao Thakre, R/O Wadgaon … vs State Of Mah, Through P.,S.O. … on 27 April, 2020

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

Criminal Appeal No. 241 of 2019

Appellant : Ajay son of Marotrao Thakre, aged about 40

years, Occ: Labour, resident of Wadgaon (Rajadi),

Tahsil Chandur Railway, District Amravati

(Presently in Central Prison, Amravati)

versus

Respondent: State of Maharashtra, through PSO, Chandur Railway,

Tahsil Chandur Railway, District Amravati

Coram : Sunil B. Shukre And
Madhav J. Jamdar, JJ

Dated : 27th April 2020

Ms H. S. Dhande, Advocate (appointed) for appellant

Shri T. A. Mirza, APP for respondent-State

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Judgment (Per Sunil B. Shukre, J)

1. Being aggrieved by the judgment and order dated 14 th

November 2017 rendered in Sessions Trial No. 230 of 2014, the appellant

has preferred the present appeal.

2. Briefly stated, the facts of the case are as under:

(a). The appellant was husband of deceased Nanda. He was

cohabiting with deceased Nanda at his house at village Wadgaon (Rajadi),

Tahsil Chandur (Railway), District Amravati. During the wedlock,

deceased Nanda had two sons with him and at the time of incident, sons

Sojwal and Chetan were aged about 9 years and 5 years respectively.

(b). It is alleged that on 19.3.2014, deceased Nanda, appellant

and their children were present in their house when the incident

occurred. The incident took place at about 12.30 noon of that day. There

was some quarrel between the deceased and the appellant which enraged

the appellant so much so that he picked up a can containing kerosene oil,

opened it, poured some of the kerosene on the person of deceased and

set her ablaze by means of a lit match-stick.

(c). It was the case of prosecution that the appellant did not do

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anything to extinguish the fire of the deceased and it were the neighbours

who rushed to the house of accused after they heard the shouts of the

deceased seeking some help to relieve herself of the agony of the flames.

The neighbours put out the fire of the deceased and rushed her to the

hospital which was Rural Hospital, Dhamangaon Railway, it being a

nearby hospital. The deceased had sustained extensive burns to the

extent of 92% and she was required to be shifted to the Government

Hospital, Yavatmal.

(d). Deceased Nanda was administered treatment for her burn

injuries. On the next day i.e. 20 th March 2014, a dying declaration of the

deceased was recorded by a police officer which blamed the appellant.

Though treatment was being given to the deceased, it had no beneficial

effect for the deceased and ultimately, she succumbed to her injuries on

22.3.2014. A post-mortem report was obtained. It disclosed the cause of

death as septicemic shock due to burns. Meanwhile, spot panchanama of

the spot of incident and seizure of articles lying at the spot of incident was

made.

(e). As the police had already swung into action after receipt of

information regarding hospitalization of deceased Nanda at Rural

Hospital, Dhamangaon Railway and her dying declaration had also

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incriminated the appellant, first information report was registered against

the appellant at Police Station, Chandur Railway against the appellant on

21.3.2014. Initially, the offence registered against the appellant was of

attempt to commit murder which was later on converted into that of

murder punishable under Section 302 of the Indian Penal Code. The

investigation was carried out and after completion of investigation, police

filed a charge-sheet against the appellant. After the case was committed

for trial to the Sessions Court, charge for the offences punishable under

Sections 302 and 498A of the Indian Penal Code was framed against the

appellant to which he pleaded not guilty and thus was prosecuted for

these offences.

(f). On merits of the case, the learned Additional Sessions Judge

found the appellant as not guilty for an offence of cruelty punishable

under Section 498A of the Indian Penal Code, but found him guilty for the

offence of murder punishable under Section 302 of the Indian Penal Code

and thus convicted him to suffer imprisonment for life and also to pay a

fine of Rs. 2000/- and in default, to suffer simple imprisonment for six

months, by the impugned judgment and order.

3. We have heard Ms Hemlata Dhande, learned appointed

counsel for the appellant and Shri T. A. Mirza, learned Additional Public

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Prosecutor for respondent-State. We have perused record of the case

including impugned judgment and order.

4. Learned counsel for the appellant submits that this case being

based upon the sole dying declaration, learned Additional Sessions Judge

ought to have seen that the dying declaration was voluntarily made while

being in mentally and physically fit condition and thus, was a reliable

document. She submits that the police officer PW 2 Gopika Kodape who

recorded dying declaration in the afternoon of 20.3.2014 did not even

satisfy herself by putting adequate questions to the deceased about her

being mentally and physically fit to make the statement and to worsen the

case of the prosecution, the Medical Officer who allegedly gave fitness

certificate, was not examined. She further submits that the dying

declaration, in her opinion, could never have inspired confidence of the

Court and thus, it was worthy of rejection. She finally submits that the

dying declaration relied upon by the trial Court being a suspect document

and there being no other evidence available on record to nail the

appellant in the offence alleged against him, the appellant deserves to be

acquitted of the same in the present case.

5. Learned Additional Public Prosecutor disagrees. He submits

that though it is true that the Medical Officer who gave the fitness

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certificate was not examined, the dying declaration together with the

medical certificate proved through the evidence of PW 2 Gopika Kodape is

worthy of acceptance in evidence and capable of forming basis for

conviction of the appellant. He also submits that there is no explanation

whatsoever given by the appellant as to how did his wife die, what did he

do when she was in flames and whether he attended to her during her

period of hospitalization. This conduct of the appellantmakes dying

declaration even more reliable, so submits the learned Addl. PP.

6. The argument made on behalf of the appellant and the

counter argument made in response thereto by the learned Additional

Public Prosecutor would have to be appreciated in the light of evidence

available on record. On doing so, we are convinced that this is a case of

insufficient and unreliable evidence and, therefore, we would uphold the

argument made on behalf of the appellant.

7. While appreciating the evidence brought on record by the

prosecution, we would first take up the aspect of nature of death of

deceased Nanda. While the prosecution maintained that death of Nanda

was homicidal and the trial Court too found that her death was homicidal

in nature, the appellant kept complete silence on the nature of death of

his wife. To worsen the things, the neighbours who had extinguished the

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fire of the deceased and had taken her to the hospital, as per the original

prosecution story, were not examined. So, it is an uphill task for us to

make any conclusion about nature of death of Nanda. Howsoever

difficult it may be, must we perform it and we do so by delving into

whatever prosecution evidence is available on record. We think, post-

mortem report is the only evidence which helps in this regard and when

it is considered, along with other relevant circumstances, we should be

able to unravel the mystery behind nature of death of Nanda. Of course,

dying declaration is also there and if it is taken into account, the nature of

death could be commented upon in a definite manner. But, we have our

own doubt about the creditworthiness of the dying declaration and,

therefore, at this moment, we would keep it aside and only consider the

post-mortem report vide exhibit 37 and the other relevant circumstances

of the case.

8. The post-mortem report discloses that the deceased had

sustained in all 92% of burn injuries out of which there were ten deep

burn injuries. The cause of death as disclosed in the post-mortem report

is septicemic shock due to burns. Sustaining of such extensive burn

injuries suggests that the cause for the same could hardly be accidental

and mostly could be suicidal or be some deliberate act on the part of

somebody. Suffering of extensive burn injuries in one’s own house at a

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time when other family members were present and during day time, as

per prosecution case, would not ordinarily suggest any accident being the

cause for catching of fire by the deceased. Besides, the spot panchanama

(exhibit 18) does not show that any other articles in the house had been

burnt or partially burnt which otherwise would have been the case had

the deceased caught fire due to an accident. There were also no such

articles as oil lamp or kerosene stove found lying in the house. If the

person catches fire accidentally, he or she would try to save

himself/herself, run helter skelter in the house or perhaps, may come

outside the house in a frantic bid to save himself or herself. But, no such

signs of struggle were seen in the house. Therefore, in this case,

possibility of accidentally suffering of burn injuries by the deceased has

been ruled out. This is the reason why we would say that the death

possibly could have been either suicidal or homicidal.

9. Now, coming to the possibility of suicidal death, we find that

it is neither the case of the prosecution nor of the appellant that deceased

Nanda died a suicidal death. There is also no evidence whatsoever

regarding deceased Nanda being ill-treated, tortured and harassed by the

appellant. There is no evidence that deceased Nanda was suffering from

any depression or any terminal disease or was going through any phase of

extreme frustration. All these factors would rule out the possibility of

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suicidal death of Nanda. Then what remains is only the homicidal nature

of death and this is what we find to be the cause here by applying the law

of probability to the fact situation discussed earlier. Thus, we uphold the

finding recorded by the Additional Sessions Judge that deceased Nanda’s

death was homicidal in nature. Now, the question would be, who did it,

appellant or somebody else ? Answer to the question is difficult, given the

nature of prosecution evidence.

10. In this case, there are no eye witnesses and as stated by us

earlier, there are also no witnesses examined by the prosecution post

catching of fire by deceased Nanda though they were available. These

witnesses were the neighbours of the deceased who had taken her to the

hospital. But, alas, they were not examined and no reasons came forward

for their non-examination. Even, the Medical Officer, Dhamangaon

(Railway) Hospital or the Medical Officers, Government Hospital,

Yavatmal who had occasions to medically examine deceased Nanda were

not examined by the prosecution. Had they been examined, some useful

light could have been thrown on the question of identification of real

culprit. That opportunity, however, was not given to us by the

prosecution.

11. As if the above deficiencies were not enough, even the

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Medical Officer who conducted post-mortem examination of the dead

body of Nanda was not examined by the prosecution and it appears that

the reason for the same was that the post-mortem report’s genuineness

was not disputed by the defence.

12. The post-mortem report is a document which is like any other

document and primary evidence of such document is the report itself. It

can be received in evidence on its authenticity being established by the

mode of its proof provided under Sections 67 to 71 of the Evidence Act,

1872. Section 294 (1) of the Code of Criminal Procedure enables the

accused to waive this mode of proof by admitting it or raising no dispute

as to its genuineness when called upon to do so under sub-section (1).

Sub-section (3) of Section 294 Cr. P. C. enables the Court to read such

document in evidence without requiring the same to be proved in

accordance with the Evidence Act. Therefore, in the present case also,

there being no dispute raised as to the genuineness of post-mortem

report, it could have been and in fact, it has been admitted in evidence.

However, there is a difference between authenticity of a document and its

probative value. A document proved by adopting the mode of proof

prescribed under Section 67 to Section 71 of the Evidence Act or as

prescribed under Section 294 Cr. P. C. would be treated as genuine and

authentic. But authenticity of the document would not by itself clothe the

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document with high evidentiary value. Evidentiary or probative value of

a document would depend upon facts and circumstances of the case and

there may be some cases wherein inspite of the genuiness of a document

having been established, there may be need to examine as a witness, the

author of the document. These cases are those wherein there is a

possibility of miscarriage of justice upon failure to examine the author.

Sometimes, a document like post-mortem report may not throw adequate

light on location of injuries, extent of depth and width of injuries and

details as to the nature thereof and possibility of their being caused by

somebody other than the one put on trial. In such cases, there may not

also be available any other evidence to offer explanation as regards these

important factors and, therefore, doctor’s answer to some pertinent

questions put up in evidence, can make a difference to the result of the

case, though this may not be true of each and every case. This is a view

taken by the Full Bench of this Court in Shaikh Farid v. State of

Maharashtra reported in (1981) 83 Bom.LR 278. In the present case,

the facts and circumstances narrated earlier, in our opinion, warranted

examination of the doctor who conducted post-mortem examination as a

witness before the Court. Had he been examined in the present case, it

could have possibly made a world of difference.

13. Thus, the whole prosecution case boils down to just one

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piece of evidence, the dying declaration (exhibit 31) made by deceased

Nanda in the afternoon of 20.3.2014 for throwing light, if any, on the

involvement of appellant or any other person in commission of present

crime. Before we deal with the evidence relating to the dying declaration,

we would like to take a brief review of the law on the subject.

14. The dying declaration is a piece of evidence which can form

sole basis for conviction, it being admissible under Section 32 (1) of the

Evidence Act, 1872. However, before it is made admissible in evidence

and relied upon, its veracity, truthfulness and voluntariness must all be

proved. It should be seen that it does not suffer from any kind of

infirmity and suspicious circumstances or otherwise, it would evoke no

positive response from law. Once a dying declaration is proved in

evidence, it would be accepted and relied upon without any hesitation

although the maker of the declaration is not available for being subjected

to test of veracity through his cross-examination. This is owing to the

principle that a man seeing his death as imminent, tends to elevate

himself to a plane higher than the one on which ordinary mortals stand

and thus frees himself from the weaknesses such as, anger, malice,

prejudices, hatred, wants and desires that may afflict a human being

leading a mundane life. In such a state of mind, a person on the death

bed tends to speak the truth. A British Poet Mathew Arnold has

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incisively commented on the truthfulness of words of a dying man when

he said, “Truth sits on the lips of a dying man”. But, as said by us, there

being no cross-examination of the maker of the dying declaration to test

veracity of the statement that he makes before death, the courts have to

be cautious and must ensure that the dying declaration inspires

confidence before it is read in evidence.

15. Certain safeguards have been laid down in various judgments

of the Hon’ble Apex Court in order that reliance on the sole evidence of

dying declaration for finding guilt of the accused can be placed. In

Khushal Rao vs. State of Bombay reported in AIR 1958 SC 22, Hon’ble

Apex Court has held that in order to pass the test of reliability, dying

declaration must be subjected to a very close scrutiny keeping in view the

fact that the same has been made in the absence of the accused who had

no opportunity of testing the veracity of the statement by cross-

examination. It has been further held that once it is found by the Court

that the dying declaration was truthful version as to the circumstances of

death and the involvement of assailant or those responsible for the death,

no further corroboration is required. What is important is that a dying

declaration is truthful, voluntary and should reveal facts and

circumstances relevant to ascertain the circumstances surrounding the

death and/or those which led to the death. This is the law consistently

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laid down by the Hon’ble Supreme Court in its various cases including the

cases of Kusa ors v. State of Orissa reported in AIR 1980 SC 559,

Meesala Ramkrishnan v. State of AP reported in 1994 SCC (4) 182 and

Shama v. State of Haryana ors reported in 2017 ALL MR (Cri) 448

(SC). The above referred principles have now set a direction in which we

must proceed while appreciating evidence relating to dying declaration

(exhibit 31). We would now deal with it.

16. The dying declaration (exhibit 31) has been proved by the

prosecution through the evidence of its recorder, PW 2 Gopika Kodape,

the then PSI from Police Station, Yavatmal (City). By 20 th march 2014,

the deceased was already under the care of the medical authorities at the

Government Hospital, Yavatmal and the Police Station, Yavatmal (City)

had been duly informed by them of the extensive burn injuries that she

had suffered. PW 2 Gopika received an oral order from her superior

officer to go and see the patient with a view to possibly recording her

statement. The superior officer had issued a letter on 19.3.2014 to the

Medical Officer of Yavatmal Hospital to examine the patient and give his

opinion regarding fitness of the deceased to make a statement. PW 2

Gopika followed the instructions, went to the hospital on 20.3.2014 and

consulted the Medical Officer on duty. The Medical Officer, it appears,

examined deceased Nanda and gave a positive opinion that the patient

was fit for the dying declaration. It appears that earlier on 19.3.2014, one

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medical Officer had given a negative opinion as regards fitness of the

deceased to make a dying declaration.

17. The letter issued by the Police Inspector of Yavatmal (City)

Police Station is at exhibit 30. This letter bears two certificates in the

nature of endorsements issued by the Medical Officer, one on 19.3.2014

and the other on 20.3.2014. The first endorsement is to the effect, “pt is

unfit for DD” and it is signed on 19.3.2014. The second endorsement

reading “pt is fit for DD” bears signature made on 20.3.2014. These two

endorsements appearing to be issued by either one Medical Officer or two

different Medical Officers have not been duly proved by the prosecution

by examining the authors of these two endorsements. The prosecution

has proved this letter (exhibit 30) through the evidence of PW 2 Gopika

Kodape. However, PW 2 Gopika never deposed that she saw the medical

officer (s) write the opinions and sign below them. She also did not state

that she was well acquainted with the hand-writing and signatures of the

medical officers. Thus, the requirements of Section 67 of the Evidence

Act were not met. These two endorsements, therefore, cannot be read in

evidence. Even if we ignore these two fundamental defects in the

medical endorsements and decide to consider them, still, that does not

help the prosecution case. Reason being that they do not contain any

clarification regarding examination of the patient by the concerned

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Medical Officer (s) before issuing the certificates. So, it was all the more

necessary for the prosecution to have examined the concerned Medical

Officer (s) as prosecution witness or witnesses. But, that was not done by

the prosecution. So, a big question mark is placed over the authencity of

the dying declaration (exhibit 31).

18. The dying declaration (exhibit 31), apart from fitness

certificates issued on the letter vide exhibit 30, also bears two

endorsements, one at the top and the other at the bottom. These two

endorsements have not been independently proved by the prosecution as

the maker of these endorsements was not examined as a prosecution

witness. The top endorsement is only for the namesake as it does not

contain any certificate regarding fitness or otherwise of the deceased to

make the dying declaration. It bears signature of one Medical Officer

whose name is not mentioned below the signature. Below the signature,

only the designation is stated and it is as “Medical Officer”. It also does

not bear any date. The bottom endorsement, however, contains a

certificate that the patient is fit for dying declaration. It is of the date of

20.3.2014 and the time mentioned therein is of 12.15 pm. Below the

signature, the name of Medical Officer is not given, but his designation to

be so is.

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19. The dying declaration (exhibit 31) is in a printed form and

only gaps have been filled in and they are stated to be filled in by PW 2

Gopika Kodape. PW 2 Gopika has stated in her evidence that she had

enquired with the concerned Medical Officer regarding the condition of

the deceased to make a statement and that she had obtained signature

with the remark of concerned Medical Officer regarding fitness of the

patient. She, however, does not say that when she asked for fitness

certificate from the concerned Medical Officer, the medical Officer had

examined the patient and gave his opinion. She also does not state that

the concerned Medical Officer had given his opinion to the effect that the

patient was fit to make the dying declaration. PW 2 Gopika emphatically

states that she obtained signature with remark of the concerned Medical

Officer regarding fitness of the patient. She also asserts that after the

relevant facts were stated to her by the deceased and those facts were put

down in writing by her, she obtained signature of the deceased below the

writing that she had made and then she put her signature below the

same. She further states that she obtained remark of doctor and then

according to her, the doctor concerned gave a remark that the patient was

fit while recording her statement and put her signature.

20. From such evidence of PW 2 Gopika, an impression is created

that before starting recording of the dying declaration, she had obtained

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opinion of the Medical Officer regarding fitness of the deceased to give a

statement and after completion of recording of the dying declaration also,

she had obtained another certificate from the Medical Officer regarding

physical and mental condition of the deceased. We have already stated

that there are two signatures of the Medical Officers concerned appearing

on exhibit 31, one at the top and the other, at the bottom. But, the top

signature of the Medical Officer, as we have already noted, does not bear

any certificate about fitness or otherwise of the deceased. The bottom

signature carries with it a certificate of fitness given by the Medical

Officer. However, this so-called fitness certificate does not say that the

concerned Medical Officer was present throughout recording of the dying

declaration. This bottom remark also does not certify one crucial fact of

the patient being all throughout fit while recording her statement. These

glaring defects stare on the face of PW 2 Gopika Kodape who has

deposed that it was the opinion of the doctor that the patient was fit all

throughout. It is clear that PW 2 Gopika has added something to the

dying declaration (exhibit 31) which is conspicuously absent in it. Added

to it and as we have noted earlier, the concerned Medical Officer (s)

was/were not examined at all as a witness or witnesses by the

prosecution. His or their examination as witness or witnesses was all the

more necessary as Nanda had suffered 92% burns, very extensive by all

means. A serious doubt, therefore, arises about the veracity of the alleged

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statement of the deceased contained in the dying declaration (exhibit 31).

21. Learned Additional Public Prosecutor for the State submits

that even though the concerned doctors were not examined and the

fitness certificates issued by them were not properly proved, the fact

remains that PW 2 Gopika had, after ascertaining the fitness of deceased,

proceeded to record her dying declaration. He submits that in law, there

is no need for any certification of doctors as regards the fitness of mind of

the declarant to make a declaration. According to learned counsel for

appellant, the evidence of PW 2 Gopika would show that she failed even

on this count and did not perform her duty diligently in satisfying herself

regarding the state of mind of the declarant.

22. Sofar as the law on the point is concerned, there can be no

quarrel. It is not necessary that a dying declaration must have support of

a certificate of fitness issued by the doctor. It is not the law that in the

absence of a medical certificate, a dying declaration would be rendered

inadmissible in evidence. The only requirement of law is that a person

who records the statement must be satisfied that the deceased is in fit

state of mind to make a statement and certificate of doctor is only a rule

of caution. This principle of law has been laid down by the Hon’ble Apex

Court in the case of Laxman v. State of Maharashtra reported in AIR

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2002 SC 2973. The relevant observations, as they appear in paragraph 3,

are reproduced thus –

“What is essentially required is that the person who records a
dying declaration must be satisfied that the deceased was in a fit
state of mind. Where it is proved by the testimony of the
magistrate that the declarant was fit to make the statement even
without examination by the doctor the declaration can be acted
upon provided the court ultimately holds the same to be
voluntary and truthful. A certificate by the doctor is essentially a
rule of caution and therefore the voluntary and truthful nature of
the declaration can be established otherwise.”

If we consider the evidence of PW 2 Gopika and also the dying

declaration, we would find that PW 2 Gopika did not put any question to

the deceased to ascertain her state of mind to make the declaration. No

where in her evidence has PW 2 Gopika stated that apart from the fitness

certificate issued by the doctor, she herself was satisfied regarding the fit

condition of the deceased to make the statement. Thus, this is a case

wherein there is neither any certificate of the doctor regarding fit state of

mind of the declarant duly proved before the Court nor the satisfaction of

the person who recorded the dying declaration as to the fitness of the

deceased to make a declaration. Therefore, such a dying declaration

cannot be relied upon and it would be risky for this Court to give any

credence to such a dying declaration. The evidence in the nature of dying

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declaration is rejected by us.

23. Apart from the rejected evidence of dying declaration, there

is no evidence brought on record in the present case against the appellant.

The prosecution has also not examined any neighbours of the deceased

although some of them had taken the deceased to the hospital. No

explanation for their non-examination has been given either. The

prosecution has not explained as to where the appellant was at the time

when his wife deceased Nanda received burn injuries. There is no

evidence brought on record by the prosecution showing presence of

appellant at the spot of incident at the relevant time. Therefore, conduct

of appellant would not be of any significance here. The appellant was

arrested on 21.3.2014 and whereas the incident occurred on 19.3.2014.

It is not known as to where the appellant was between the date of

incident and the date of his arrest. The appellant has taken a defence of

complete denial. So, it is difficult to say anything about the background

of the death of Nanda and as to what were the circumstances surrounding

her death. But, sofar as the prosecution case against the appellant is

concerned, it has to fail on account of extremely insufficient evidence and

evidence of doubtful character. All these aspects of the matter have not

been considered by the trial Court. The impugned judgment and order is

replete with flawed inferences based upon sketchy and unreliable

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evidence and, therefore, deserves to be quashed and set aside by

acquitting the appellant of the offence of murder charged against him, by

giving him benefit of doubt.

24. In the result, appeal is allowed. Impugned judgment and

order are quashed and set aside. Appellant/accused is acquitted of the

offence of murder punishable under Section 302 of the Indian Penal Code

and he be set at liberty forthwith, if not required in any other case.

Muddemal property, being worthless, be destroyed.

Amount of Rs. 5000/- be paid to the learned appointed

counsel as her remuneration in the case.

MADHAV J. JAMDAR, J SUNIL B. SHUKRE, J

joshi

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