The State Of Maharashtra vs Manohar Reshmaji Bochra
2017 Latest Caselaw 7045 Bom

                                                         Cri. Appeal No. 550/2001
                                           1


                     IN THE HIGH COURT AT BOMBAY
                 APPELLATE SIDE, BENCH AT AURANGABAD

                              CRIMINAL APPEAL NO. 550 OF 2001

The State of Maharashtra
Through PSO Police Station
Palam, Dist. Parbhani                               ....Appellant.
                                                    (Ori. Complainant)
          Versus

Manohar Rashmaji Bochra,
Age 28 years, Occu. Private Service,
R/o. Ranisawargaon, Tq. Gangakhed,
Dist. Parbhani                                      ....Respondent.
                                                    (Ori. Accused No. 1)

Mr. S.J. Salgare, APP for appellant/State.
Mr. N.S. Ghanekar, Advocate for respondent.
                                       CORAM    :    T.V. NALAWADE AND
                                                     S.M. GAVHANE, JJ.

RESERVED ON : September 07, 2017.

PRONOUNCED ON :September 13, 2017.

JUDGMENT : [PER T.V. NALAWADE,J.]

. The appeal is filed against judgment and order of

Sessions Case No. 46/2001, which was pending in the Court of 2nd

Additional Sessions Judge, Parbhani. The respondent and two other

accused were tried for the offences punishable under sections 302,

201 r/w. 34 of Indian Penal Code ('IPC' for short). All the accused

are acquitted by the Trial Court. The State has filed appeal only

against present respondent/accused No. 1, who is the husband of

the deceased. Both the sides are heard.

Cri. Appeal No. 550/2001

2) Deceased Sheetal alias Anjana was daughter of first

informant Piraji (PW 3). Piraji is resident of Borgaon, Tahsil Fulambri,

District Aurangabad. She was given in marriage to present

respondent/accused No. 1 on 19.4.2000. Accused is resident of

Ranisavargaon, Tahsil Gangakhed, District Parbhani. Accused was

working as Supervisor in the Government Project, Human

Development Project and he was posted at Ranisavargaon. After the

marriage, Sheetal cohabited with respondent at Ranisavargaon in

the house of prosecution witness Dashrath Hake (PW 7). The

incident took place in this matrimonial house.

3) It is the case of prosecution that accused used to avoid

to send Sheetal to parents' house under false pretexts. It is the case

of prosecution that accused wanted to see that the deceased does

not get an opportunity to have free talk with her parents or brother.

It is the contention of the State, prosecution that ultimately on one

day, when accused came with deceased on the day of Panchami to

the house of parents of the deceased and he was there for about one

hour, the deceased disclosed that respondent/accused had illicit

relations with a woman who was working with him in aforesaid

office. She disclosed that on that count there was illtreatment given

to her by the husband and his mother. The mother of the husband

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was also living in the same house and the said woman was living in

the vicinity of the place of resident of respondent/accused No. 1.

She had expressed that there was danger to her life as when she

had raised grievance about the relationship, threats of life were

given to her and she was warned to keep mum. Piraji made inquiry

with respondent/husband after learning about the aforesaid things.

The husband gave evasive answers by saying that Sheetal was

taking the suspicion unnecessarily and he had no such illicit

relations.

4) Few days prior to to the date of incident, when Piraji

visited the house of respondent, on that occasion also the deceased

made similar disclosure. The incident in question took place on

7.9.2000 and the news about the incident was given by another son

in law of Piraji. It was informed that Sheetal had died due to burn

injuries.

5) On 7.9.2000 the neighbours of respondent noticed that

smoke was coming out through ventilator, door and windows

situated on the side of public road. They broke open the door from

outside as the door was found to be closed from inside by putting on

latch. After entering the kitchen, they noticed that Sheetal was

already dead. The mother of husband viz. accused No. 3 was

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present when the neighbours gathered and after seeing the dead

body, she informed that due to bursting of stove, the clothes caught

fired and incident took place. After some time, the husband also

arrived to the spot. He used to leave house for work in the morning.

He saw the dead body and then he gave A.D. report that Sheetal

died due to burn injuries and the incident had taken place probably

due to bursting of kerosene wick stove.

6) The A.D. was registered on the basis of report given by

the husband and dead body was referred for P.M. examination. On

7.9.2000 itself P.M. was conducted on the dead body. Doctor gave

opinion that the death had taken place due to throttling and burn

injuries were post-mortem in nature. The parents of deceased

reached the matrimonial house subsequent to conducting of P.M.

Piraji gave report on 8.9.2000 and the crime came to be registered

at about 3.15 hours for the offences punishable under sections 302

and 201 r/w. 34 of IPC. He had taken the names of husband, his

mother and aforesaid woman with whom the husband had illicit

relations.

7) On 8.9.2000 the spot panchanama was prepared and the

articles like kerosene wick stove etc. were taken over. The

respondent/accused came to be arrested. During the course of

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investigation, he gave statement about the use of kerosene by him

for setting fire to dead body and on the basis of statement given

under section 27 of the Evidence Act, can of kerosene which was

kept on wall of the kitchen came to be recovered and seized. The

clothes of the husband were taken over as there was smell of

kerosene to his clothes.

8) During the course of investigation, statements of some

neighbours who include the persons who had broke open the door to

enter the house came to be recorded. The statement of Dashrath

Hake (PW 7), the landlord of respondent came to be recorded. The

articles taken over were sent to C.A. Office. Kerosene was detected

on the clothes of the husband and also in the can recovered on the

basis of statement given under section 27 of the Evidence Act.

Chargesheet came to be filed against aforesaid three persons for

aforesaid offences. Charge was framed. The accused pleaded not

guilty. They took the defence of total denial. The prosecution

examined in all ten witnesses to prove the offences. The statements

of accused under section 313 of Criminal Procedure Code ('Cr.P.C.'

for short) came to be recorded. No defence evidence is given. The

Trial Court has acquitted the accused persons by holding that

prosecution has failed to prove convincingly that it is homicidal

death. It is also held that the chain of circumstances is not complete

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for basing the conviction.

9) In view of the nature of case of prosecution and the

evidence given before the Trial Court, it is certain that if the

prosecution is able to prove that it is homicidal death, then only the

other circumstances, if they are established satisfactorily, can be

considered. The charge was framed only for the offence of murder

and for the offence of destroying the evidence of murder. There was

no charge for offence punishable under section 306 of IPC. In view

of these circumstances, this Court is considering and appreciating

the evidence given on homicidal death first.

10) To prove homicidal death, the prosecution has mainly

relied on medical evidence. Dr. Kalidas Niras (PW 1) conducted P.M.

examination on the dead body of Sheetal on 7.9.2000 between 2.15

p.m. and 3.15 p.m. He found burn injuries over the dead body which

were surface wounds. On opening of neck, he found fracture of hyoid

bone and fracture of trachea rings. He found that carnio of hyoid

bone were displaced inwards. He found that lungs were congested

and pericardium was intact. He found that right cavity of heart was

filled with blood and left cavity was empty. He found that there was

no soot in trachea. He found that there was no line of redness

around the burn injuries and there was no blister formation.

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11) On the basis of aforesaid things noticed by him Dr.

Kalidas (PW 1) has given opinion in evidence that the burn injuries

were post-mortem in nature. He has given specific reasons for his

opinion like absence of line of redness, absence of blister formation

and absence of soot in trachea. He has given other reason like

internal injuries found inside of neck which are quoted above. No

probability is created that such internal injuries could have been

caused during the incident of fire or after the death. On the basis of

aforesaid circumstances, doctor has given specific opinion in

evidence that the death took place due to throttling. In the evidence

of doctor, P.M. report is proved as Exh. 27 and it is consistent with

substantive evidence of doctor.

12) Dr. Kalidas is cross examined by the defence at length.

The cross examination is also on the possibility of strangulation. The

evidence of doctor shows that there were burn injuries over the neck

and he could not notice other surface wounds over the neck due to

burn injuries. However, doctor is certain due to aforesaid things

noticed by him and particularly internal injuries of the neck that it is

the case of throttling and not of strangulation. Not a single

circumstance is brought on the record to show that there was

possibility of strangulation. It can be said that the defence was

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indirectly suggesting the possibility of hanging by showing that there

was possibility of existence of ligature mark.

13) In the cross examination of Dr. Kalidas (PW 1), it is put

to him that in P.M. report he has not mentioned whether injuries

mentioned in column No. 20 of P.M. report, the injuries found inside

of the neck were anti-mortem or post-mortem. It is already

observed that doctor could not see the corresponding surface wound

over the neck. However, the opinion of the doctor is based on the

injuries found not only inside of the neck, but other corresponding

things found by him which are already quoted. In view of these

circumstances, it needs to be presumed that doctor had indirectly

mentioned in the P.M. report that the injuries like fracture to hyoid

bone were anti-mortem in nature. So many suggestions were given

to the doctor which were hypothetical in nature and even answers

were recorded on those questions by the Trial Court.

14) In the cross examination of Dr. Kalidas (PW 1), it is

suggested to him that line of redness around the burn injuries may

be absent if a person of weak constitution dies immediately due to

shock due to burn injuries. Doctor has admitted such possibility. But

in the present matter the deceased was aged about 20 years and the

P.M. report at Exh. 27 shows that the body was nourished. Doctor

Cri. Appeal No. 550/2001

was not cross examined on this point and so, this point is not that

relevant in the present matter.

15) In the cross examination of Dr. Kalidas (PW 1), it is

suggested to him on the basis of opinion given by Dr. Modi in 21st

Edition at Page No. 237 that "it is not possible to establish either by

naked eyes or pathological examination whether burn occurred

shortly before death or soon after the death". Dr. Kalidas (PW 1) has

agreed to this suggestion. Dr. Kalidas has admitted further

suggestion that the burn produced by flames may or may not

produce blisters. He has also admitted that to distinguish between

anti-mortem and post-mortem burn injuries, complete necropsies

needs to be performed. Though these admissions are there, on the

basis of these circumstances, no further suggestion was given that

inference can be drawn that the burn injuries were anti-mortem in

nature. Doctor remained firm with the opinion given that the death

took place due to throttling. Doctor who conducts P.M. examination

is expected to consider all the symptoms and things noticed by him

on the dead body and on that basis he is expected to give opinion

regarding cause of death. These circumstances need to be

considered cumulatively and not in isolation. In view of these

circumstances and other circumstances which this Court is

discussing hereinafter, there was no reason for the Trial Court to

Cri. Appeal No. 550/2001

discard the opinion given by the doctor that the death took place

due to throttling and burn injuries were post-mortem in nature. This

Court has no hesitation to hold that the Trial Court has committed

grave error in not accepting the opinion given by the doctor

regarding the cause of death.

16) The P.M. report at Exh. 27 shows that doctor noticed 100

M.L. of liquid in stomach, but no solid food material was found in

stomach. In the cross examination, Dr. Kalidas (PW 1) admitted as "I

cannot give exact period when the death occurred from last meal". It

needs to be mentioned that no substantive evidence was brought on

the record by the prosecution on this point even when opinion was

written in P.M. report in column No. 21 by doctor on such period. The

noting of the doctor regarding contents of the stomach that only

liquid was found and no food material was found in the stomach can

be considered in the present matter against the accused indicating

that on the morning the deceased had not taken solid food. This

circumstance is material as according to the accused he used to

leave the house for work in the morning and he used to go to other

station to discharge his duty. In view of such defence, in ordinary

course, the accused would have taken tiffin or would have taken

breakfast in his house along with his wife and mother in routine

course and even on the day of incident. This did not happen on that

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day.

17) The inquest panchanama at Exh. 53 is admitted by

defence. It shows that the dead body was facing towards the floor of

the kitchen and it was not facing towards the sky, roof of the room.

There was no blouse on the dead body. But, there was petticoat

which was in burnt condition. There were no burn injuries noticed by

panchas on both the feet.

18) In column No. 17 of P.M. report, Exh. 27 areas over

which burn injuries were absent are specifically described as "areas

spared by burns are around the waist below umbilicus, genitals,

medial sides of both thighs and both lower legs below knee". This

circumstance is consistent with opinion of doctor (PW 1).

19) The spot panchanama at Exh. 36 is proved in the

evidence of panch witness Jadhav (PW 5). The Investigating Officer

has also given evidence on spot panchanama. The tenor of oral

evidence of these two witness and other oral evidence show that

respondent/accused No. 1 was living there as tenant of Dashrath

Hake (PW 7). The premises taken on rent basis consisted of one

kitchen room and one living room. The incident of fire took place in

kitchen portion and kitchen portion was separated by wall having

Cri. Appeal No. 550/2001

door between kitchen room and living room. On the western side of

the kitchen, there is a public road which is north-south in direction

and the western wall of kitchen had door opening towards the road

on western side. This door used to remain in closed condition and

the latch and lock were put on it from the inside. On that day also, it

was in closed condition from inside. The panchas noticed that force

was used to open this door and due to that latch was broken and

one lock was hanging at the latch. The Trial Court has given much

importance to this circumstance for giving the findings in favour of

the defence. The Trial Court has almost ignored the other

circumstances appearing in the evidence of the witnesses and also

the evidence on spot panchanama.

20) The evidence on spot panchanama and other oral

evidence shows that the kitchen was of the size of 8 ft. x 11.6 ft.

Though the dead body was not there when the spot panchanama

was prepared, the inquest panchanama at Exh. 33 which is admitted

document shows that the head of the dead body was towards north

and legs were towards south. The dead body was lying more

towards western side. The evidence shows that on north corner near

western wall there was earthen pot containing water. On eastern

side of the earthen pot, there was table and on that there were

some articles. The distance between the earthen pot and the table

Cri. Appeal No. 550/2001

was around 4 ft. At the distance of 4 ft. from this table there was

head of the dead body and when spot panchanama was drawn, there

was still some blood which had come out from the mouth etc.

Kerosene wick stove, not of air pressure was near the eastern wall of

the kitchen. There was 50 M.L. kerosene in the wick stove. There

was no sign showing that the fire had started due to the flames of

stove and there was nothing of that sort on the stove itself. The side

cover of the stove and top cover of the stove were found to be kept

separately. Here only it needs to be mentioned that no evidence is

brought on the record by the defence to show that anybody had

seen that the kerosene wick stove was in burning condition.

21) All valuable articles were found on or near southern wall

and neither the heat of the fire nor the fire had reached these

articles. There were two steel tanks containing water in the kitchen

and there was also plastic backet in the kitchen and all these articles

were found filled with water showing that no water from the kitchen

was used for extinguishing the fire. These circumstances also need

to be kept in mind as the evidence of the witnesses saying that they

entered the kitchen to extinguish the fire and they used water from

the kitchen needs to be appreciated in the background of these

circumstances.

Cri. Appeal No. 550/2001

22) The spot panchanama at Exh. 36 further shows that in

the eastern wall of kitchen, there was door opening towards living

room cum hall cum bed room. This room was having size of 8.6 ft. x

11.6 ft. There was no sign of burning in this room. In this room,

there was a door in southern wall, opening towards the courtyard of

Wada. After the courtyard of Wada, there were rooms of tin sheets

of one Sheetal Bochare and after climbing some steps, there was the

first floor, having one room which was occupied by landlord Dashrath

Hake (PW 7). These circumstances show that the space occupied by

accused had access from inside portion to Wada and the access

towards the road on western side used to remain in closed condition

and it was done by putting latch and lock from inside to that door. It

can be said that the entrance door of the space which was in use

was not in closed condition, but the persons gathered on western

side, on public road, after seeing the smoke broke open the door

from that side which was not in use of the family of accused.

23) The evidence given by the prosecution witnesses shows

that the neighbours rushed to the house of accused as smoke was

coming through ventilators towards western side, towards road side.

The evidence of the witnesses does not show that anybody had

heard shouting or crying of the deceased.

Cri. Appeal No. 550/2001

24) The circumstances mentioned in the spot panchanama

which are already quoted and also the inquest panchanam do not

show that any attempt was made by the deceased to save herself, if

her clothes had really caught fire due to any reason when and if she

was alive. If she was alive when fire started, in ordinary course, she

would have raised shouts and she would have run here and there,

she would have tried to come out of that room and she would have

tried to use the water from the kitchen. But these things did not

happen. The description given in the spot panchanama and other

circumstances quoted do not show that she had run from place to

place even in the kitchen.

25) The aforesaid circumstances show that only the entrance

door on eastern side of the space in possession of accused was in

use and from there, the family members of accused were having

access. From the nature of evidence given by the landlord Dashrath

Hake (PW 7), it can be said that it was not possible for strangers to

enter this space without getting noticed from the persons of that

side. These circumstances show that there was opportunity only to

the persons living in that space, two rooms, to set fire and then

escape from eastern side by using the door for access available in

the hall.

Cri. Appeal No. 550/2001

26) The oral evidence of the witnesses needs to be

appreciated by keeping in mind the aforesaid circumstances. Witness

may lie, but the circumstances never lie. In case like present one,

the veracity of the witnesses needs to be tested on the basis of such

circumstances. Even if the witnesses are not confronted with such

circumstances to test them, such circumstances can be used to

ascertain the truth and that job needs to be done by the Court.

27) Piraji (PW 3), father of the deceased has given evidence

on motive. The deceased was given in marriage to present

respondent/husband on 19.4.2000. The death took place within five

months of the date of marriage. Piraji (PW 3) has deposed that on

one occasion, the deceased and the accused had visited his house

and by using that opportunity, the deceased had disclosed that

accused had extra marital affair with a woman who was working in

his office. He has deposed that he had made inquiry with the

accused about it on that occasion, but the accused had said that the

deceased was unnecessarily taking suspicion against him. Piraji (PW

3) has deposed that few days prior to the date of incident when he

had visited the house of accused, on that occasion also similar

disclosure was made by the deceased and she had further expressed

that she was feeling danger to her life due to relationship of the

accused with the said woman and that danger was from the

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accused.

28) In the examination in chief itself Piraji (PW 3) has

admitted that when he learnt from others, after conducting P.M.

examination on the dead body that it is a case of murder, he gave

report. Some contradictions with regard to the time of disclosures

made by the deceased about the illtreatment are brought on the

record by the defence in the cross examination. But the evidence on

aforesaid motive remained unshattered. There is corroboration of

F.I.R. to the substantive evidence. Specific allegations are there and

the name of woman is also given and so, it does not look probable

that the grievance of the deceased was imaginary and Piraji had no

knowledge about this circumstance. Police made investigation on the

basis of these allegations and case was filed against the said woman

also. Due to the absence of convincing material against that

accused, she got acquittal. The evidence of the witnesses show that

the said woman was working in the office where the accused/

husband was working. It can be said that the witnesses including

Dashrath Hake (PW 7) turned hostile and so, the evidence on motive

could not be given through such witnesses. In any case, even when

the case rests only on circumstantial evidence, the other evidence

cannot be thrown away due to absence of evidence on motive.

Motive is relevant in such cases, but due to absence of motive,

Cri. Appeal No. 550/2001

acquittal cannot be given if there is other admissible evidence which

is sufficient to prove that the accused committed the offence.

29) Dashrath Hake (PW 7), the landlord has turned hostile,

he has resiled from the version given before the police. He was

expected to give evidence on the presence of accused at the spot at

the relevant time and also on the presence of accused No. 2, the

aforesaid woman on the spot at the relevant time. Only this witness

could have given evidence on such presence. The evidence of spot

panchanama already discussed shows that Dashrath Hake (PW 7)

has avoided to tell the truth. Accused/respondent was occupying the

two rooms having R.C.C. construction and the landlord was living in

comparatively ordinary room. It can be said that the landlord helped

the tenant in the present matter. However, the evidence of Dashrath

Hake also does not show that he heard shouting of the deceased. His

evidence shows that he heard shouting of his wife, who felt the

smoke coming out of the room which was in possession of

respondent/accused. He has given evidence that after hearing that

shouting he returned from road and he entered the kitchen, but at

that time there was no fire in the kitchen and Sheetal was dead.

30) Prakash (PW 8) lives at the distance of 200 ft. from the

house of respondent/husband. He has deposed that on that day, he

Cri. Appeal No. 550/2001

learnt from his wife that smoke was coming from the rooms of the

accused and so, he went to the spot. He has deposed that already

many persons of that locality had gathered there, but he was the

person who used force and broke open the door of kitchen situated

on the road side. He has given evidence that he used water which

was present in the barrels from the kitchen and he used some water

from outside. The circumstances mentioned in the spot panchanama

show that no water from kitchen was used for extinguishing the fire

and it can be said that this witness has also to some extent tried to

save the accused. In the cross examination, he has admitted that on

that day in the morning he had seen the accused leaving for job. On

this part of evidence Prakash (PW 8) cannot be believed.

31) The evidence of Prakash (PW 8) shows that when he

entered the kitchen, Sheetal was not alive. It can at the most be

said that there was fire only on the dead body, but the clothes had

burnt to much extent and other articles from kitchen had not caught

fire and there was not much work left for the persons who entered

the kitchen after seeing the smoke.

32) Kishan Kamble (PW 10) is the Secretary of the office

where respondent/husband was working. He has deposed that

accused No. 1/present respondent and Dnyanoba Munde (husband

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of accused No. 2) had come to his house to report that they had

come for reporting on the duty on that day at about 7.30 a.m. to

7.45 p.m. He has given evidence that a motorcycle was supplied by

him. He has deposed that accused No. 2 had also come to him and

she had informed that on that day she was attending the meeting of

ladies of village Balewadi. He has given evidence that when these

accused left, he learnt that there was fire in the house of accused

and so, he went there. His evidence shows that the distance

between his place and the place of accused is hardly half furlong.

33) Kulkarni (PW 9), Investigating Officer has also given

evidence on the distance between the place where the accused was

expected to go and the place of offence which was five kilometers.

The evidence of Kamble (PW 10) shows that accused arrived to spot

after some time of his reaching to the spot.

34) Respondent/accused gave A.D. report at Exh. 29 on

7.9.2000. The time of recording A.D. report is mentioned as 14.05

hours. The P.M. examination on the dead body was started at 2.15

p.m. on that day and the incident of fire had started at about 9.00

a.m. on the same day. The A.D. report is proved in the evidence of

Tukaram (PW 2), Police Head Constable. It is brought on the record

in the cross examination of this witness that the report was given by

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the accused at 10.00 a.m. The contents of the report show that

accused No. 1 had informed that he had left for village Ghatangra at

8.00 a.m. on that day and he had returned after learning about the

incident. He gave the name of different person who was in his

company and not the name of Munde, husband of accused No. 2.

Here only it needs to be mentioned that nobody from village

Ghatangra is examined by the prosecution and the accused.

35) Kishan Kamble (PW 10), Superior Officer of the accused

has given evidence that accused was expected to start work at

village Ghatangra at 10.00 a.m. on that day. In the evidence of

Kulkarni, Investigating Officer (PW 9), the defence has brought on

record that the distance between Ghatangra and the place of offence

is around 5 k.m. Accused had a motorcycle. All these circumstances

need to be kept in mind while considering the defence of the

accused that he was at Ghatangra at the relevant time, time of

starting fire, at about 9.00 a.m. on that day and he was not present

at village Ranisavargaon.

36) It is true that initial burden shown in section 101 and

102 of the Evidence Act to prove the case is on the prosecution.

These provisions need to be read with the provisions made to take

care of peculiar circumstances like one mentioned in section 106 of

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the Evidence Act. In cases like present one, the initial burden is on

the prosecution to show that it is a case of murder and in view of the

circumstances of the case, the accused had the opportunity to

commit the offence. As soon as such case is made out by the

prosecution, the burden shifts and it becomes necessary for the

accused to explain the things as required in section 106 of the

Evidence Act. If he fails to explain the circumstances, the inference

as available under section 114 of the Evidence Act can be safely

drawn against him.

37) In the present matter, the evidence given by the

prosecution shows that present respondent/accused No.1, his

mother/accused No. 3 and the deceased were living in these rooms.

The evidence of prosecution witnesses shows that when persons

gathered, they saw accused No. 3 and inquiry was also made with

accused No. 3. However, when the persons were breaking open the

door, accused No. 3 was not seen there, towards that side. Thus, it

can be said that even when accused No. 3 was living in the same

rooms with the deceased, she had no reason to leave that place at

that time, she did not raise hue and cry. She became available to

narrate the incident when people gathered there and broke open the

door. In view of these circumstances, mother of accused/accused

No. 3 was implicated and the provision of section 201 of IPC was

Cri. Appeal No. 550/2001

used against her. Due to all these circumstances, it needs to be

presumed that accused Nos. 1 and 3 had opportunity to murder

Sheetal and to set fire to dead body.

38) Prosecution has examined Ramkishan Niras (PW 6),

panch witness to prove the panchanama of seizure of clothes of

accused No. 1/husband. He has not supported the prosecution. He

has deposed that police had shown him clothes like pant and shirt

and his signature was obtained on that panchanama which is at Exh.

38. He has avoided to say that these were the clothes taken over

from the person of the accused. So, he was cross examined by

learned APP with the permission of the Court. Kulkarni, Investigating

Officer (PW 9) has given evidence on seizure of clothes of accused

on 8.9.2000 at about 4.30 a.m. He has given evidence that he had

sent these clothes to C.A. Office. C.A. report at Exh. 50 shows that

kerosene was detected on the clothes of respondent/accused. Some

cross examination is made of the Investigating Officer to create

probability that the articles were not properly closed and sealed.

39) Niras (PW 6), panch witness was expected to give

evidence on the statement given by accused under section 27 of the

Evidence Act. It is the case of prosecution that on the basis of this

statement, can of kerosene was recovered from the aforesaid

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kitchen and it was seized by police. Niras turned hostile and so, the

seizure panchanama is proved in the evidence of Kulkarni (PW 9).

C.A. report shows that kerosene was detected in this can.

40) Discovery of can of kerosene is shown to be made on

14.9.2000. The spot panchanama was prepared on 8.9.2000. As the

spot panchanama was already prepared of the same room and

description of articles was expected to be given in the spot

panchanama, it cannot be believed that police had not made an

attempt to see and recover the kerosene can on 8.9.2000. Due to

these circumstances and as there is evidence of Kulkarni (PW 9),

Investigating Officer only on the aforesaid circumstances, this Court

holds that these two circumstances cannot be used against the

accused. Further, it is always open to the accused to say that the

dead body was shifted by him and police from the room on

7.9.2000.

41) The learned Additional Sessions Judge has not given

clear finding on the cause of death and nature of death. It can be

said that indirectly the learned Additional Sessions Judge has tried to

observe that there is possibility of accidental death. The learned

Additional Sessions Judge has refused to place reliance on the

evidence of doctor that the burn injuries were post-mortem in

Cri. Appeal No. 550/2001

nature. The circumstance that the spot panchanama was prepared

on 8th, next day of incident is also considered by the Trial Court

against the prosecution. The evidence on the record shows that the

stove taken over on the spot was in working condition and there was

no damage caused to the stove. But due to circumstance that

panchanama was prepared on 8th, the Trial Court has not believed

that part of evidence. Due to some admissions given by the

witnesses, but not by the father of deceased, the Trial Court has held

that prosecution has failed to prove motive. The Trial Court has

further held that accused had no opportunity as aforesaid door was

required to be broken for entering the kitchen. It is already observed

that the Trial Court has not considered the circumstance that the

rooms had access from other side, eastern side and not from

western side.

42) The discussion of the evidence made by the Trial Court

and the reasoning given show that the evidence as a whole is not

considered by the Trial Court. At the time of appreciation of

evidence, the aforesaid provisions of the Evidence Act were not kept

in mind by the Trial Court. When the provisions of sections 106 and

114 of the Evidence Act are available and the accused wants to

make out the case that he was present at other place, the burden

was on him, though of different nature, to create such probability as

Cri. Appeal No. 550/2001

provided in section 11 read with sections 103 and 106 of the

Evidence Act. This position of law was also not in the mind of the

Trial Court when the Trial Court considered the case of defence which

was of alibi. Thus, the Trial Court has committed grave error in not

properly appreciating the evidence. The most important

circumstance viz. homicidal death is proved by the prosecution and

the Trial Court has committed grave error in holding indirectly that

homicidal death is not proved. It can be said that much importance

is given by the Trial Court to some admissions which are already

quoted and which are given in cross examination by Dr. Kalidas (PW

1). In spite of those admissions, the fact remains that the doctor

stuck up to the opinion and there are convincing reasons for giving

the opinion of homicide. Thus, the medical evidence as a whole is

also not considered and appreciated by the Trial Court.

43) This Court has quoted the medical evidence of

prosecution and also the other evidence which establishes the

circumstances corroborating homicidal death. As homicidal death is

proved, that circumstance needs to be kept in mind as a background

for appreciating the other evidence and also the probability

suggested by the accused.

44) The learned counsel for the accused placed reliance on

Cri. Appeal No. 550/2001

some observations made by this Court in the decision given in

Criminal Appeal No. 437/2011 [Ramdeo Pannalal Kodel Vs.

The State of Maharashtra] decided with connected appeals on

14.8.2015 and also the observations made by the Apex Court in the

case reported as 2009 ALL MR (Cri) 2118 (S.C.) [Subramaniam

Vs. State of Tamil Nadu and Anr.]. On the other hand, the

learned APP placed reliance on some observations made in the case

reported as AIR 2002 SC 1961 [Mandhari Vs. State of

Chattisgarh]. The facts and circumstances of each and every

criminal case are always different. The relevant facts and provisions

of law are already quoted and discussed by this Court. The

observations made in the aforesaid cases cannot be squarely applied

in the present matter though there cannot be dispute over the

propositions of law mentioned in these cases.

45) In the present matter, following important circumstances

are established by the prosecution. They are relevant in view of

provisions of sections 7, 8 and 106 of Evidence Act.

(i) The accused/husband of deceased and deceased

were living together in the rooms where the incident took

place.

(ii) Sheetal, wife of respondent/accused died homicidal

death and the incident took place in these rooms.

Cri. Appeal No. 550/2001

(iii) By setting fire to the dead body, attempt was made

to destroy the evidence of murder in these rooms. If

outsider had committed the murder, there was no reason

for outsider to create show that the death had taken place

due to fire.

(iv) The outsider could not have entered or left the

kitchen where the incident took place without getting

noticed by the inmates of house like by accused Nos. 1 and

3 and also to some extent by the landlord Hake (PW 7).

Thus, involvement of the outsider is ruled out.

(v) The deceased was aged about 20 years and she was

healthy, well nourished. The death took place due to

throttling which requires use of physical power. Accused

No. 3, mother of present respondent was aged about 65

years at the relevant time and for throttling, only one

person is expected and sufficient to use force at neck.

Thus, it was an act of a male. Respondent/accused was

aged about 28 years at the relevant time and so, out of

accused Nos. 1 and 3, only accused No.1/present

respondent could have done the said act. Thus, the manner

in which the offence was committed points finger to

accused No. 1 and not to accused No. 3. Accused No. 2 was

not living there and so, these circumstances cannot be

Cri. Appeal No. 550/2001

used against accused No. 2.

(vi) The absence of solid food in stomach is also a

circumstance leading to inference that the deceased had no

opportunity to take food on that day. This again

strengthens the circumstance of opportunity against

respondent/accused.

(vii) Except injuries mentioned above of use of

force, no other injuries were found on the dead body and it

shows that there was no opportunity to the deceased to

resist and could not shout for help. This again creates a

circumstance against respondent/accused by creating

probability that the act was started when the deceased was

sleeping.

(viii) The accused gave false information by giving report

to police that fire started probably due to bursting of

kerosene stove and it is accidental death.

46) As the aforesaid circumstances are established, the

burden had shifted to the accused as provided in section 106 of

Evidence Act. The accused tried to use few admissions given by his

neighbours in his favour which are already discussed. But, these

admissions are not explaining the aforesaid circumstances. In view

of the aforesaid circumstances, it was necessary for accused to

Cri. Appeal No. 550/2001

create a clear probability that it was not possible for him to remain

present in the house at the relevant time, means at the time of

offence of murder and not at the time of setting fire to the dead

body. Such burden is not discharged. On the other hand, he gave

A.D. report to supply false information that there was bursting of

stove and it was accidental fire. It can be said that police did not act

efficiently or competently and did not prepare the spot panchanama

on 7th itself. Benefit of that circumstance cannot be given to the

accused. Father of the deceased gave report after reaching

Ranisavargaon and when the P.M. was already conducted. Some

evidence is brought on the record about the financial condition of the

accused and it shows that it was good. These circumstances need to

be kept in mind while considering the circumstance that the spot

panchanama was prepared on 8th and not on 7th. In any case,

father of the deceased had no opportunity to manipulate the things

and there is nothing on the record to show that he had influence of

any kind. This Court has already discussed the contents of spot

panchanama and from that also, it is not possible to interfere that

the fire had started due to bursting of the stove. In any case, when

it is homicidal death caused by throttling, not much can be made out

due to circumstances of preparing spot panchanama late.

47) The discussion made above shows that for the offence of

Cri. Appeal No. 550/2001

murder and for the offence of destroying the evidence of murder, the

circumstances point finger only to accused No. 1 as culprit. Thus, the

Trial Court has committed grave error in acquitting the

accused/respondent, husband of the deceased. This Court holds that

respondent/accused needs to be convicted and sentenced for

offences punishable under sections 302 and 201 of IPC. As there

are aforesaid circumstances, this Court holds that life imprisonment

is just and proper sentence in the present matter and due to that

there is no need to give hearing to the accused on the point of

sentence. This Court is giving minimum penalty. In the result,

following order :-

ORDER

(I) The appeal is allowed.

(II) The judgment and order of the Trial Court

giving acquittal to respondent/accused - Manohar Rashmaji

Bochra for the offences punishable under sections 302 and

201 of IPC is hereby set aside.

(III) Respondent/accused- Manohar Rashmaji Bochra

stands convicted for the offence of murder of Sheetal

Manohar Bochra punishable under section 302 of IPC and

he is sentenced to suffer life imprisonment and to pay fine

of Rs.1,000/- (Rupees one thousand). In default of

payment of fine, he is to further undergo rigorous

Cri. Appeal No. 550/2001

imprisonment for one month.

(IV) Respondent/accused- Manohar Rashmaji Bochra

stands convicted for destroying the evidence of murder of

Sheetal Manohar Bochra punishable under section 201 of

IPC and he is sentenced to suffer rigorous imprisonment

for one year and to pay fine of Rs.500/- (Rupees five

hundred). In default of payment of fine, he is to further

undergo rigorous imprisonment for fifteen days.

            (V)                 Both the substantive sentences are to run

            concurrently.

            (VI)                Respondent/accused is entitled to set off in

respect of the period for which he was behind bars in this

crime. This period is to be mentioned by the office in the

warrant which is to be sent to the Jail authority.

(VII) Respondent/accused is to surrender to his bail

bonds for undergoing the sentence.

(VIII) Copy of this judgment is to be given to the

accused free of cost.

       [S.M. GAVHANE, J.]                         [T.V. NALAWADE, J.]


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