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IN SUPREME COURT OF INDIA Page 1 of 4

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