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PETITIONER: SHIVAJI DAYANU PATIL

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT12/07/1989

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) NATRAJAN, S. (J)

CITATION:  1989 AIR 1762            1989 SCR  (3) 400  1989 SCC  Supl.  (1) 758 JT 1989 (3)   166  1989 SCALE  (2)66

ACT:     Indian   Penal  Code,  1860:   Section  302--Murder--Ac- cused acquitted by trial court--High Court reversed  acquit- tal  order--Held  wife’s  conduct in  not  naming  assailant highly improbable and unnatural--Accused entitled to benefit of doubt--Acquitted.

HEADNOTE:     The  appellant was charged under Section 302 I.P.C.  for committing the murder of the deceased. At the trial,  prose- cution produced P.W.3, wife of the deceased, and P.Ws.10, 11 and  12, all eye witnesses. Except for P.W.3, all other  eye witnesses  were  declared  hostile.  Thus,  the  prosecution depended on the sole testimony of P.W.3.     P.W.3  deposed  that she saw the appellant  hitting  her husband  with a stick. But admittedly, she did not  disclose the  name of the appellant to anybody including the  Police. The  doctor,  who came to the house of the  deceased  little later, examined and treated the deceased and removed him  to the  hospital deposed that he was told by the mother of  the deceased  that the family did not suspect  anybody.  Another witness  who  was passing by the scene  of  occurrence  also testified  that nobody informed him about the  appellant  or any other person, who injured the deceased.     The  Additional Sessions Judge acquitted the  appellant. But,  on  appeal, the High Court, set  aside  the  acquittal order, and convicted and sentenced the appellant to  impris- onment for life. Hence, the appeal by the accused. Allowing the appeal, this Court,     HELD:  The  conduct of the deceased’s  wife  was  highly unnatural.  A wife, who has seen an assailant  giving  fatal blows with a stick to her husband, would name the  assailant to all present and to the police at an earliest opportunity. There  is  nothing in the evidence to  justify  this  highly unnatural  and  improbable conduct of the  deceased’s  wife. Even  her  statement recorded by police head  constable,  is entirely  different than what she stated at the  trial.  The prosecution has, thus, not 401 been  able  to prove its case against the  appellant  beyond reasonable doubt. [404F-G]

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   Therefore, the appellant is given benefit of doubt,  the judgment  of the High Court is set aside, and the  appellant is acquitted of the charge under section 302, IPC. [404H]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  75 of 1979.     From  the  Judgment  and Order dated 6.2.  1976  of  the Bombay High Court in Criminal Appeal No. 636 of 1973. Raghunath Singh (Amicus Curiae) for the Appellant. A.S. Bhasme and A.M. Khanwilkar for the Respondents. The Judgment of the Court was delivered by     KULDIP  SINGH, J. The appellant, Shivaji Patil  was  ac- quitted  by the Additional Sessions Judge, Kolhapur  of  the charge  under Section 302, Indian Penal Code for  committing murder of one Tulashiram Sutar, but on appeal the High Court by  its judgment dated February 6, 1976 set aside the  order of  acquittal  and convicted him under section  302  of  the Indian  Penal  Code and sentenced him  to  imprisonment  for life.     The  house of deceased Tulashiram in  Village  Rashivade adjoins  the  temple  of Shri Ambabai and in  front  of  the temple,  there  is open place. The deceased along  with  his wife Parvatibai, two children and parents was living in  the house. Cousin brothers of the deceased and their mother were living in the adjoining house.     Vyanku  Sutar belonging to the brother-hood of  deceased was also living in the same village. The deceased had illic- it  relation with Vyanku’s wife Akkatai. Parvatibai  claimed to have caught them in the sex-act in sugarcane fields.  The accused Shivaji and Vyanku were friends.     On  January 30,1972 at about 7 or 7.30  P.M.  Tulashiram returned to the house after performing his role described as "Sasankathi"  in  the festival of "Mahi  Poornima".  In  the house  Parvatibai, her mother-in-law Tanubai, her  husband’s sister Malutai, 402 and  her  husband’s  cousin brother’s  wife  Shalubai,  were present. The male members, namely, deceased’s father  Pandu- rang  Sutar, his brother Soundappa and servant  named  Shama had  gone to another village called Kote.  Tulashiram  asked his mother Tanubai to prepare tea and thereafter he went out and  sat  on the foot-steps of the temple at a  distance  of about 15 to 20 feet from the house.     What followed can best be reproduced in words of Parvat- ibai as P.W. 3 at the trial:               "After the tea was ready, I started going  out               of  the house to call for my husband,  when  I               went to the front door of my house, I saw  the               accused  Shivaji  hitting my  husband  with  a               stick on his head and running away. I saw  him               running in the direction of the by lane. I saw               my  husband  failing down from the  steps  and               lying on the ground near the "Deepmal". I  saw               him  rubbing his feet on the ground  in  agony               and  blood was coming from the injury  on  his               head.  I  could see this in the light  of  the               tube-light. I went near my husband and started               calling  him.  He could not  speak.  Hence,  I               raise  a hue and cry and my mother-in-law  and               sister-in-law Malubai and Shalibai and  Vishnu               Patil  came there. I did not see anybody  else               nearby  then  as I was busy  attending  to  my

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             husband.               My  husband had become unconscious due to  the               head  injuries and froth had come out  of  his               mouth. Myself, Vishnu Patil and  sister-in-law               bodily  lifted my husband and took him to  the               house   .....   Somebody went  and  brought  a               local  doctor named Jayant Patil.  The  doctor               came  there, examined and treated  my  husband               and  advised him to be removed to his  dispen-               sary. My husband was accordingly taken  there,               but  I did not go, as my small  children  were               crying  and I was prevented from going  there.               My  children  had frightened. In  the  morning               next  day, I came to know that my husband  was               removed to C.P.R. Hospital at Kolhapur.  Hence               in  the morning, myself my  mother-in-law  and               others  went to Kolhapur by  Yelavade-Kolhapur               Bus reaching there at about 8.30 A.M. When  we               reached the C.P.R. Hospital my  brother-in-law               came  there crying saying that my husband  had               overnight  succumbed  to his  injuries.  Hence               myself and my mother-in-law started crying and               shouting. Hence some villagers brought a taxi,               we were               403               asked to sit in the taxi and we were taken  to               Rashivade  even without showing the  dead-body               to  us. We reached Rashivade at about 11  A.M.               After  reaching home, we were crying in  agony               and  our house became full with females and  I               did not notice who others had come there."     Vishnu  Patil  deposed that he was  returning  from  his sugarcane  crushing site and while passing by the temple  he found  deceased  Tulashiram lying injured in  front  of  the steps  of  the temple and his wife was crying nearby.  At  a distance of about 5 or 6 feet from there, he saw Nana  Patil and  asked him what was the matter. Nana Patil replied  that he  did not know anything. Vishnu Patil asked Nana Patil  to call  the  doctor. Dr.Jaywant Patil a  private  practitioner reached  the  house of the deceased and on  his  advice  the deceased was removed to the dispensary. When for two  hours, Tulashiram  did not regain consciousness, Dr.Patil at  about 11/12  P.M. took him to the hospital at Kolhapur in his  own car.  Dr.Patil at the trial stated that Tanubai said to  him and also gave in writing (Ex. 26) to the effect that she had no complaint against anybody.     The  prosecution  produced  P.W. 3  Parvatibai,  P.W.  9 Krishan  Wadkar,  P.W.  10 Shankar Patil,  P.W.  11  Krishna Sadashiv  Patil and P.W. 12 Nanu Patil, all  eye  witnesses. Except  P.W. 3 Parvatibai all other eye witnesses  were  de- clared  hostile. The prosecution case, thus, hinges  on  the sole testimony of Parvatibai.     Parvatibai  has deposed that she saw on the  evening  of January  30, 1972, Shivaji Patil hitting her husband with  a stick. Admittedly her mother-in-law, her two  sisters-in-law and  Shivaji  Patil  came present on  the  spot  immediately thereafter.  Parvatibai  did not disclose the  name  of  the assailant  to them or to anybody else. Rather Dr. Patil  who came to the house little later was told by Tanubai that  the family  did not suspect anybody. Vishnu Patil stated at  the trial  that  nobody informed him about the  accused  or  any other person who gave injuries to the deceased.     The  Police Patil in his report dated  31.1.1972  stated that  at  10.30  A.M. on that day he went to  the  house  of deceased. The father of the deceased, an uncle and a distant

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relation  were present in the house. The Police Patil  asked them  about  the  incident. They replied that  they  had  no knowledge about the incident as they were not present in the house  at the time of occurrence. The Police  Patil  further says that while he was present in the house a taxi came from Kolhapur and the 404 mother  and  wife of Tulashiram deceased got down  from  the taxi.  The  Police  Patil questioned the ladies  as  to  how Tulashiram was injured. The ladies were not prepared to talk and  no  information regarding the  alleged  occurrence  was given  to him. He made further enquiries from  other  people but  nobody gave him any information regarding  the  assail- ants.  On the basis of the Police Patil’s report a case  was registered  at  police station Rachanagari  wherein  it  was mentioned  that  the cause of death of  Tulashiram  was  not known.     Head constable B.S. Patharvat sent a complaint on 1st of February, 1972 wherein he stated that he came to know  about the incident on the morning of 31st of January, 1972 and  he went  to  the house of Tulashiram at about  10/11  A.M.  and asked the in-mates about the occurrence but nobody gave  him any  information. He again went to the house  of  Tulashiram deceased on 1st of February, 1972 and recorded the statement of  Parvatibai. She stated that when she came to  the  front door  she saw Shivaji Patil running with a stick  from  near about  her husband. She said that the relations between  her husband and Vyanku were not good and Shivaji Patil and  Nana Patil were friends of Vyanku Sutar. She further stated  that Vyanku Sutar, Shivaji Patil and Nana Patil made company  and assaulted  her  husband. On the basis of  the  statement  of Parvatibai the head constable sent the complaint for  regis- tering the case against Vyanku Sutar, Shivaji Patil and Nana Patil  under sections 302/34, IPC, though ultimately  charge was filed by police only against Shivaji Patil.     The question for consideration is as to why was Parvati- bai  mum  from 30.1.1972 to 1.2. 1972? The High  Court  felt satisfied by saying that she was in a dazed mood. We do  not agree  with the High Court. Parvatibai’s conduct was  highly unnatural.  A wife, who has seen an assailant  giving  fatal blows with a stick to her husband, would name the  assailant to all present and to the police at an earliest opportunity. There  is  nothing in the evidence to  justify  this  highly unnatural and improbable conduct of Parvatibai. Even on 1.2. 1972  the  statement of Parvatibai recorded by  police  head constable is entirely different than what she stated at  the trial. The prosecution has, thus, not been able to prove its case against the appellant beyond reasonable doubt.     We,  therefore, give benefit of doubt to  the  appellant and accept the appeal. The judgment of the High Court is set aside  and  the appellant is acquitted of the  charge  under section  302, IPC. The appellant is on bail and as such  his bail-bond is cancelled. N.P.V.                                 Appeal allowed. 405