Dilip Ratilal Jadhav And Others vs The State Of Maharashtra
2021 Latest Caselaw 12639 Bom

                                   1                 criappeal 216.2014.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                   CRIMINAL APPEAL NO.216 OF 2014

     1.      Dilip s/o Ratilal Jadhav,
             age 25 yrs, Occ. Agril.

     2.      Ratilal s/o Rama Jadhav,
             age 45 yrs, Occ. Agril.

     3.      Dhupibai w/o. Ratilal Jadhav,
             age 40 yrs, Occ. Household.

     4.      Jasubai @ Jayashree d/o Ratilal Jadhav,
             age 27 yrs, Occ. Household.

             All R/o. Mandana,
             Tq. Shahada,
             District-Nandurbar.                   ..Appellants..
                                                  (orig. accused)
             Versus

         State of Maharashtra,
         Through Investigating Offcer
         of Shahada Police Station,
         District Nandurbar.               ..Respondent..
                               ...
       Advocate for Appellants : Mr. S S Bora (appointed)
            APP for Respondents : Mr. R V Dasalkar
                               ...
     CORAM : V.K. JADHAV & SHRIKANT D. KULKARNI, JJ.

...

Reserved on : 13.8.2021 Pronounced on : 06.09.2021 ...

JUDGMENT :- ( Per V. K. JADHAV, J.)

1. This appeal is directed against the judgment and

order of conviction passed by the Additional Sessions

2 criappeal 216.2014.odt

Judge, Shahada dated 26.3.2014 in Sessions Case

No.23 of 2012.

2. Brief facts of the prosecution case, are as follows :-

a] Deceased Lalitabai was given in marriage to the

appellant/accused no.1 Dilip Jadhav prior to one and

half years of lodging of the FIR. After marriage,

deceased Lalilabai started cohabiting with the

appellant/accused no.1 at his residence at village

Mandane, Tq. Shahada, District Nandurbar. All the

appellants/accused were residing together in a joint

family in the same house at village Mandane. Deceased

Lalitabai was treated well for a period of one year only.

Thereafter, she was subjected to ill-treatment and

torture for various reasons. Appellant/accused no.1

Dilip used to suspect about her character and on that

count, all the accused used to beat deceased Lalitabai.

Deceased Lalitabai had disclosed to her parents and

other family members about the ill-treatment and

harassment being extended to her by the accused

persons when she had been to her parents home.

Parents and other family members tried their level best

3 criappeal 216.2014.odt

to persuade the appellant/accused no.1 Dilip. Further,

one day prior to the incident i.e. on 3.3.2012 brother of

the informant namely Dadulal Kalu Rathod went to the

matrimonial home of deceased Lalitabai at village

Mandane to meet her. That time, deceased Lalitabai told

him about the ill-treatment and torture. Deceased

Lalitabai had disclosed to him that her husband,

mother-in-law, sister-in-law i.e. accused nos.1,3 and 4

had driven her out from the house. Her mother-in-law

and sister-in-law i.e. appellants/accused nos.3 and 4

had pulled her hair and extended beating to her.

Deceased Lalitabai also disclosed to him that the

appellant/accused no.1 Dilip put a sickle on her neck

and threatened her to kill her. Father-in-law/accused

no.2 also abused her and asked her to leave the house.

Deceased Lalitabai also disclosed that the

appellant/accused no.1 Dilip Jadhav used to threaten

her to kill her by strangulating her neck with rope.

Thus, said brother of the complainant namely Dadulal

had requested the appellant/accused no.3, who was

present there as not to ill-treat and torture Lalitabai.

On the very next day i.e. on 4.3.2012 at about 2 p.m.

4 criappeal 216.2014.odt

elder brother of the complainant/informant namely

Birbal Kalu Rathod had received a phone call from one

Makhram Soma Banjara of village Mandane informing

him about serious condition of Lalitabai. Said Makram

had also informed that deceased Lalitabai was admitted

in Municipal Hospital, Shahada. Thus, the informant

alongwith his family members immediately rushed to

the hospital. They found dead body of the deceased

Lalitabai in the hospital. On examination of the dead

body, they found ligature marks around her neck. Blood

was also coming from her both nostrils. Thus, the

informant went to Shahada police station and lodged

the FIR against appellant/accused nos.1 to 5 for the

offence punishable under sections 498-A, 302, 323,

504, 506 r/w 34 of the Indian Penal Code.

3. On the basis of his complaint, crime bearing no.40

of 2012 came to be registered in the concerned police

station. After completion of the investigation,

Investigating offcer has submitted the charge-sheet

against accused nos.1 to 5 for the offence punishable

under sections 498-A, 302, 323, 504, 506, 34 of the

5 criappeal 216.2014.odt

Indian Penal Code. After committal, the learned

Additional Sessions Judge, Shahada on 12.9.2012

framed the charge against all the accused persons

under the aforesaid sections vide exhibit 12. All

accused pleaded not guilty to the charge and claimed to

be tried. Their defence is of total denial and false

implication in the offence. Prosecution has examined in

all 17 witnesses to substantiate the charges levelled

against the accused.

4. By judgment and order dated 26.3.2014 the

learned Additional Sessions Judge, Shahada in Sessions

case No.23 of 2012 has convicted the

appellants/accused for the offence punishable under

sections 498-A, 323, 302 r/w 34 of the Indian Penal

Code, which is as follows :-

1- The accused no.1 Dilip Jadhav is hereby convicted of the offence punishable under section 302 of the I.P.C.

2- He is sentenced to imprisonment for life and to pay a fne of Rs.5000/- (Rupees Five thousand only), in default to undergo further rigorous imprisonment for the period of 1 year.

3- The accused no.1 Dilip Ratilal Jadhav, accused no.2 Ratilal Rama Jadhav, accused No.3 Dhupibai Ratilal Jadhav and the accused no.4 Jasubai @ Jayashri

6 criappeal 216.2014.odt

Ratilal Jadhav are hereby convicted of the offence punishable u/s 498-A r/w 34 of the I.P.C.

4- They are sentenced to undergo rigorous imprisonment for a period of three years and to pay a fne of Rs.1000/- (Rupees one thousand) each, in default to undergo further rigorous imprisonment for a period of six months.

5- The accused no.1 to 4 are acquitted of the offence punishable under sections 323, 504, 506 r/w 34 of the I.P.C.

6- The accused no.5 Munna alias Dashrath Ratilal Jadhav, is acquitted of the offence punishable u/s 302, 498-A, 323, 504, 506 r/w 34 of the I.P.C.

7- The accused no.1 is in jail, whereas the accused no.2 to 5 are on bail. Hence, the accused nos.2 to 4 are taken into custody. The bail bonds of accused no.5 stand cancelled.

8- The accused no.1 shall undergo both the sentences i.e. sentence for offence under section 498-A and 302 of IPC concurrently.

9- The accused no.1 is in jail. Hence, set off u/s 428 of Cr.P.C. be given to him, for the period he has already undergone in imprisonment, but against the substantive sentence only.

11- The seized property, being worthless, be destroyed, after the period of appeal is over.

5. The learned Additional Sessions Judge, Shahada

has acquitted the original accused no.5 Munna for all

the offences.

                                           7                   criappeal 216.2014.odt

     6.      Learned           counsel    for   the    appellants/accused

submits that the prosecution case entirely rests upon

the circumstantial evidence and there is no direct

evidence in this case. Learned counsel submits that

except PW-1 Kailas Kalu Rathod/informant and PW-2

Dadu Kalu Rathod, who is the brother of the informant,

PW 3-Makhram Rathod, PW-4 Jamunabai Rathod, PW-5

Limba Pawar, PW-6 Pundlik Marathe, PW-7 Dr. Ranjana

Lendhe, PW-8 Motilal Jadhav, PW-9 Shantibai Jadhav,

PW-10 Rasal Rathod, PW-12 Nago Patil, PW-14

Najmoddin Khatik, PW-15 Sanjiv Sonawane and PW-16

Dhanraj Mali have not supported the prosecution case

at all. So far as PW-11 Dr. Suresh Palusing Thakre is

concerned, he is the Medical Offcer, who has conducted

the postmortem examination on the dead body of the

deceased and PW 13 Ajmal Chavan is the panch on the

inquest panchnama. Learned counsel submits that

even the panchas on the memorandum and recovery

panchnama of the rope shown to have been recovered at

the instance of the appellant/accused no.1 Dilip have

also not supported the prosecution case. Learned

counsel submits that in a case of circumstantial

8 criappeal 216.2014.odt

evidence, the prosecution is required to establish the

chain of circumstances, so as to lead to the only

inescapable conclusion about involvement of the

accused in the crime. Learned counsel submits that

there is no satisfactory evidence about homicidal death.

Prosecution has failed to establish that deceased

Lalitabai was subjected to cruelty as defned under

section 498-A of the Indian Penal Code prior to her

death by suspecting about her character. The same is

the motive for committing her murder. There are several

loopholes in the prosecution case. Learned counsel

submits that the trial court has proceeded on the

assumptions that section 106 of the Indian Evidence Act

directly operates against the appellants. Learned

counsel submits that by application of section 106 of

the Evidence Act, the prosecution could not be absolved

from the duty of its general or primary burden of

proving the prosecution case beyond reasonable doubt.

It is only when the prosecution is led evidence which if

believed will sustain a conviction or which makes a

parima facie case that question arises of considering the

fact of which the burden of proof lie upon the accused.

9 criappeal 216.2014.odt

Learned counsel submits that prosecution has failed to

prove that appellant/accused no.1, who is convicted for

the offence punishable under section 302 of the IPC

was lastly seen in the company of his deceased wife

Lalitabai. There is no evidence that deceased Lalitabai

was lastly seen alive in the company of accused no.1

Dilip. Appellant/accused no.1 has also given plausible

explanation about death of deceased Lalitabai in their

matrimonial home. Learned counsel submits that there

is no satisfactory evidence about the ill-treatment

allegedly extended to the deceased Lalitabai by the

appellants-accused persons. Thus, appellants/accused

are entitled for the beneft of doubt.

7. Learned counsel for the appellants/accused, in

order to substantiate his contentions, placed reliance on

the following judgments :-

1. Reena Hazarika Vs. State of Assam reported in AIR 2018 SC 5361.

2. Digamber Vaishnav and ors. Vs. State of Chattisgarh reported in 2019 (4) SCC 522.

3. Gargi Vs. State of Haryana reported in 2019 (9) SCC

738.

4. State of Rajasthan Vs. Mahesh Kumar and ors reported in 2019 (7) SCC 678.

10 criappeal 216.2014.odt

8. Learned APP for the respondent-State submits

that the prosecution has proved it's case beyond

reasonable doubt against the appellants/accused.

There is evidence about the homicidal death. As per the

opinion given by PW 11 Dr. Suresh Thakre, the probable

cause of death is due to "asphyxia and compression of

cervical vasculature due to strangulation". Learned APP

submits that PW 11 Dr. Suresh Thakre has noted

multiple ligature marks over the left neck region. He

has also noted ligature marks over left region above

cricoid cartilage and ligature mark over back of neck

region two in numbers. He has also noted fracture of

cricothyroid cartilage on palpation, abrasions over left

region iliac region of abdomen. Learned APP submits

that the evidence of PW 1 Kailas/informant and PW 2

Dadu, who is the brother of the informant, is trust

worthy, consistent on the point of ill-treatment being

extended to the deceased Lalitabai by suspecting about

her character by the appellants/accused persons.

Prosecution has thus proved the motive. Learned APP

submits that it was a custodial death. The

appellant/accused no.1-Dilip Jadhav the husband of

11 criappeal 216.2014.odt

deceased Lalitabai had committed the crime in complete

secrecy inside the house/hut. Thus, the nature and

amount of evidence required to establish the charge

cannot be of the same degree as required in other cases

of circumstantial evidence. There is a evidence about

the ill-treatment being extended to the deceased

Lalitabai by the appellant/accused no.1 by suspecting

about her character. She was subjected to frequent

beating, life threats, etc. The appellant/accused no.1

Dilip had not given any explanation as to how deceased

Lalitabai had ligature marks around neck and how she

died homicidal death. Learned APP submits that on the

other hand on 4.3.2012 deceased Lalitabai was taken to

Primary Health Center, Mandane and PW 7 Dr. Ranjana

Lendhe had examined the deceased. It was informed to

PW 7 Dr. Ranjana Lendhe that one cow had hit the

woman, due to which she had suffered the bleeding

injury. Learned APP submits that even the false

explanation has been given to the concerned doctor of

P.H.C. of village Mandane when the deceased Lalitabai

was taken to P.H.C. Mandane.

12 criappeal 216.2014.odt

9. Learned APP submits that in view of the provisions

of section 106 of the Indian Evidence Act, corresponding

burden is on the appellant/accused no.1 Dilip to give

cogent explanation as to how homicidal death of

deceased Lalitabai was occurred in the house. Learned

APP submits that the prosecution has proved the case

beyond reasonable doubt against all the

appellants/accused. There is no substance in the

appeal. Thus, the appeal is liable to be dismissed.

10. Learned APP submits that, in view of Section 106

of the Indian Evidence Act, corresponding burden is on

the appellants/accused to give cogent explanation as to

how the homicidal death of deceased Lalitabai occurred

in the house. Furthermore, post incident conduct of the

appellant no.1/accused Dilip Jadhav is also suspicious.

Appellant no.1/accused has not informed the incident to

anyone including the parents of the deceased. Learned

APP submits that prosecution has proved the case

beyond reasonable doubt against the

appellants/accused. There is no substance in this

appeal. Appeal is liable to be dismissed.

                                            13               criappeal 216.2014.odt

     11.     Learned           APP,   in   order   to   substantiate           his

contentions, placed reliance on following judgments :-

1. Trimukh Maroti Kirkan Vs. State of Maharashtra reported in 2007 Cri.L.J. 20.

2. State of Rajasthan Vs. Thakur Singh in criminal appeal no.357 of 2005 decided on 30.6.2014.

3. Kalu Alias Laxminarayan Vs. State of Madhya Pradesh in criminal appeal no.1677 of 2010 dated 7.11.2019.

4. Jayantilal Verma Vs. State of M.P. (now Chattisgarh) in criminal appeal no.590 of 2015 dated 19.11.2020.

12. We have carefully considered the submissions

advanced by the learned counsel for the appellants-

accused and the learned APP for the respondent-State.

With their able assistance, we have perused the grounds

taken in the appeal, annexures thereto, the record and

proceeding and the case laws cited by the respective

parties.

13. The prosecution has examined PW-11 Dr. Suresh

Thakre. On 5.3.2012 PW-11 Dr. Suresh Thakre had

conducted the postmortem examination on the dead

body of the deceased Lalitabai. He has noted following

injuries on the dead body of Lalitabai.

                                        14                criappeal 216.2014.odt


                               * EXTERNAL INJURIES *

Multiple ligature marks over left neck region.

i] Ligature over left neck region, size about 7 x 2 cm.

ii] Ligature mark over left region above cricoid cartilage, size about 2x2 cm.

iii] Ligature mark over back of neck region 2 in number.

iv] Fracture of cricothyroid cartilage on palpation.

v] Abrasions over left iliac region of abdomen.

14. According to him, nature of the above injuries are

grievous and age was more than twelve hours. The

cause of the injuries was due to ligature mark, caused

by soft linear object like rope. All the injuries were ante-

mortem. PW 11 Dr. Suresh has also recorded internal

injuries as under :-

*INTERNAL INJURIES*

i. Larynx, trachea and bronchi observed congested with oedematal changes.

ii. Large vissles observed congested and ready matter changes around in vissles at the site of compression.

15. According to him, internal injuries were occurred

due to compression of neck. Postmortem report is

marked at Exhibit 52. According to Dr. Suresh Thakre,

the probable cause of death is due to "asphyxia and

15 criappeal 216.2014.odt

compression of Cervical vasculature due to

strangulation". PW 11 Dr. Suresh has further opined

that injuries as mentioned in the report can be caused

by rope, article 'A' now shown to him. There is nothing

in the cross-examination to draw any other inference

about death of deceased Lalitabai. The multiple ligature

marks over the left neck region and further ligature over

the back of neck region and left region alongwith

fracture of cricothyroid cartilage on palpation unerringly

point out that deceased Lalitabai was subjected to

constriction/compression of neck till she took her last

breathe. The prosecution has proved homicidal death of

deceased Lalitabai. Learned counsel for the appellants

has also not seriously disputed the homicidal death of

deceased Lalitabai.

16. Prosecution case entirely rests upon the

circumstantial evidence and there is no direct evidence

in this case. It is well settled that the circumstances

from which conclusion of guilt is to be drawn should be

fully established and the facts so established should be

consistent only with the hypothesis of the guilt of the

16 criappeal 216.2014.odt

accused. The circumstances should be of a conclusive

nature and tendency and exclude every possible

hypothesis except the one to be proved. There must be

a chain of evidence so complete as not to leave any

reasonable ground for the conclusion consistent with

the innocence of the accused and must show that in all

human probability the act must have been done by the

accused.

17. Learned counsel for the appellants/accused has

placed his reliance on a case Reena Hazariak Vs. State

of Assam (supra) and State of Rajasthan Vs. Mahesh

Kumar (supra), wherein chain of circumstantial

evidence are considered. This legal position is not

disputed.

18. In the instant case, the prosecution has examined

PW 1 Kailas/father of the deceased Lalitabai and PW 2

Dadu, who is the brother of PW 1/informant. It is their

consistent evidence that deceased Lalitabai was

subjected to cruelty by suspecting about her character.

She was treated well for a period of one year after

marriage or till the birth of her male child. Deceased

17 criappeal 216.2014.odt

was given in marriage to appellant/accused no.1 Dilip

Jadhav one and half year prior to the date of incident.

Their evidence is consistent about the ill-treatment

being extended to deceased Lalitabai by suspecting

about her character as against the appellant/accused

no.1 Dilip. PW 1 Kailas has deposed that accused no.1

used to suspect about her chastity, whereas PW 2 Dadu

has deposed that accused no.4 Jasubai @ Jayashri used

to suspect chastity of Lalitabai. However, their evidence

is consistent on the point that the appellant/accused

no.1 Dilip used to beat deceased Lalitabai by suspecting

about her chastity. PW 1 Kailas has admitted in his

cross-examination that, after marriage, he had invited

deceased Lalitabai and appellant/accused no.1 Dilip to

celebrate the custom of 'Mandava Chipala' which is

prevalent in their community. PW-1 Kailas has also

admitted in his cross-examination that,

appellant/accused no.1 Dilip Jadhav and deceased

Lalitabai had come to his house at village Mortalai to

attend the marriage of his nephew. According to him,

everything was going smoothly till that time. He has

further admitted that on account of birth of male child

18 criappeal 216.2014.odt

to deceased Lalitabai, members of both the family were

happy. There are allegations only against accused nos.

2 to 4 about extending beating and abuses to deceased

Lalitabai. However, they have not elaborated the

reasons for extending such abuses or beating to

deceased Lalitabai by the appellants/accused no.2 to 4.

Their evidence is consistent as against the

appellant/accused no.1 Dilip Jadhav subjecting the

deceased Lalitabai to cruelty by suspecting about her

character. Evidence of the prosecution witnesses PW 1

and PW 2 appears to be trust worthy and reliable as

against the appellant/accused no.1 Dilip for the reason

that he must be the person who suspects about the

chastity and none others.

19. It appears from the prosecution evidence that dead

body of deceased Lalitabai was found in the hut in the

threshing feld of the accused. The prosecution has

relied upon the spot panchnama exhibit 50 to establish

the same. It has been specifcally mentioned in the spot

panchnama exhibit 50 that spot of the incident is in one

hut situated in the threshing feld owned by the

19 criappeal 216.2014.odt

appellant/accused no.1 Dilip. There is one another

panchnama exhibit 60. Said panchanama was drawn in

respect of the house of the appellants/accused persons

situated in the village. Prosecution has examined the

villagers of village Mandane, however, none of them have

supported the prosecution case, still then, their

evidence can be considered to the extent that all the

appellants/accused were residing jointly in their

residential house situated in the village. It is thus for

the appellant/accused no.1 Dilip to explain about

homicidal death of his wife Lalitabai in the hut of the

threshing feld owned by him, which is at a considerable

distance from his house.

20. Learned counsel for the appellants/accused has

vehemently submitted that the burden of proof squarely

rests upon the prosecution and said general burden

never shifts. There can be no conviction on the basis of

surmises and conjectures or suspicion howsoever grave

it may be. Learned counsel submits that, section 106 of

the Indian Evidence Act does not absolve the

prosecution of its primary burden.

20 criappeal 216.2014.odt

Learned counsel in order to substantiate his

contentions placed reliance on the judgments in case of

Digamber Vaishnav and ors. Vs. State of Chattisgarh

reported in 2019 (4) SCC 522 and the judgment in case

of Gargi Vs. State of Haryana reported in 2019 (9) SCC

738.

21. In a case of Digamber Vaishnav and ors. Vs. State

of Chattisgarh (supra) relied upon by the learned

counsel for the appellants, in paragraph nos. 15 to 19

the Supreme Court has made following observations :-

"15. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt.

16. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:

i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

21 criappeal 216.2014.odt

ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and

iii.) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.

17. In Varkey Joseph v. State of Kerala, 1993 Suppl (3) SCC 745, this Court has held that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt.

18.In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under: "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense".

19.It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808].

22 criappeal 216.2014.odt

22. In a case of Gargi Vs. State of Haryana (supra)

relied upon by the learned counsel for the appellants in

paragraph nos.28 and 28.1 has made following

observations :-

"28. The prosecution has relied upon another circumstance that the deceased was lastly in the company of the appellant and she had failed to explain his whereabouts as also the circumstances leading to his death.

28.1. Insofar as the 'last seen theory' is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Indian Evidence Act directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Indian Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das (supra) in the following :- "10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused......"

23. The learned APP has vehemently submitted that it

was a custodial death and deceased Lalitabai was

murdered in complete secrecy inside the hut. Thus, the

nature and evidence required to establish the charge

cannot be of the same degree as required in other cases

of circumstantial evidence. In view of section 106 of the

Evidence Act, corresponding burden is on the

23 criappeal 216.2014.odt

appellants/accused to give cogent explanation as to how

homicidal death of deceased Lalitabai occurred in the

house.

24. In a case of Trimukh Maroti Kirkan vs. State of

Maharashtra reported in 2007 Cri.L.J. 20 relied upon

by the learned APP for the respondent/State, the

Supreme Court in paragraph no.12 of the judgment has

made following observations :-

"12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads : 2003 AIR SCW 4065

(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by

24 criappeal 216.2014.odt

simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

25. In a case of State of West Bengal Vs. Mir

Mohammad Omar and Ors. reported in (2000) 8 SCC

382 relied upon by the learned APP, the Supreme Court

has dealt with the provisions of Section 106 of the

Evidence Act and laid down the following principles in

paragraph nos.31 to 34 of the reports : 2000 AIR SCW

3230.

"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on in conditions such as this.

33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.

25 criappeal 216.2014.odt

34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody."

Applying the aforesaid principle, this Court while maintaining the conviction under Section 364 read with Section 34 IPC reversed the order of acquittal under Section 302 read with Section 34 IPC and convicted the accused under the said provision and sentenced them to imprisonment for life."

26. In a case of State of Rajasthan Vs. Thakur Singh

reported in 2014 AIR (SCW) 4479, relied upon by the

learned APP, in paragraph nos.22 and 26, the Supreme

Court has made the following observations :-

22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts.

26. In our opinion, the High Court has very cursorily dealt with the evidence on record and has upset a finding of guilt by the Trial Court in a situation where Thakur Singh failed to give any explanation whatsoever for the death of his wife by asphyxia in his room. Moreover, the very fact that all the relatives of Thakur Singh turned hostile clearly gives room for suspicion and an impression that there is much more to the case than meets the eye. Even the complainant, Himmat Singh who squarely blamed Thakur Singh (in the FIR) for the murder of his wife, turned hostile to the extent of denying his relationship with Thakur Singh.

27. In a case of Kalu @ Laxminarayan Vs. State of

Madhya Pradesh reported in 2019 (4) J.K.J. 578, relied

upon by the learned APP, by referring the observations

26 criappeal 216.2014.odt

made in a case of Trimukh Maroti Kirkan's case (supra),

in paragraph no.15, the Supreme Court has made

following observations :-

15. In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered relevant in the facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313, Cr.P.C. with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased.

28. In a case of Jayantilal Verma Vs. State of M.P

(Now Chattisgarh) reported in 2020 (13) Scale 143

relied upon by the learned APP for the State, while

referring the observations made in the case of Trimukh

Maroti Kirkan (supra), the Supreme Court has observed

that when the incident had taken place inside, the onus

is on the person residing in the house to give such

explanation. In such a situation, it is diffcult for the

prosecution to lead any direct evidence to establish the

guilt of the accused.

29. The prosecution evidence is consistent about the

ill-treatment being extended to deceased Lalitabai by

suspecting about her chastity as against

27 criappeal 216.2014.odt

appellant/accused no.1 Dilip. She was subjected to

frequent beating, abuses and life threats. Soon before

the death, deceased was subjected to cruelty by the

appellant/accused no.1 Dilip by suspecting about her

character and deceased Lalitabai had disclosed the

same to PW 2 her uncle a day before the incident. The

prosecution has proved the act of cruelty as defned

under section 498-A of the Indian Penal Code against

the appellant/accused no.1 Dilip Jadhav. However, the

appellants/accused nos.2 to 4 are entitled for the

beneft of doubt to the extent of the charge of cruelty as

defned under section 498-A of the Indian Penal Code is

concerned. The prosecution has thus proved the motive

in this case.

30. Deceased Lalitabai met with the homicidal death

in the hut of the threshing feld of appellant/accused

no.1 Dilip Jadhav. Deceased Lalitabai was brutally

murdered. There were multiple ligature marks over and

around the neck. She died due to "asphyxia and

compression of cervical vasculature due to

strangulation" as opined by PW 11 Dr. Suresh Thakare.

28 criappeal 216.2014.odt

31. PW 11 Dr. Suresh Thakare has also opined that

said ligature marks are possible by rope article 'A' before

the Court. So far as recovery of article 'A' is concerned,

learned counsel for the appellants has vehemently

submitted that prosecution has failed to prove the

memorandum and recovery panchnama since panch

witnesses have not supported the prosecution case.

However, PW 17 Purushottam Sonawane, Investigating

Offcer has deposed about it. In order to comply with

the provisions of section 27, if the Investigating Offcer

deposed about recording of the memorandum on the

basis of the information disclosed by the

appellant/accused no.1 and recovery in connection

thereto, we have no hesitation to hold that the

prosecution has proved the recovery of rope at the

instance of the appellant/accused no.1 Dilip.

32. In the instant case, the appellant/accused no.1

Dilip has not tendered his explanation about homicidal

death of his wife in the hut of his threshing feld. On

the other hand, deceased Lalitabai was taken to P.H.C.

Mandane under the false pretext that one cow hit her

29 criappeal 216.2014.odt

and, therefore, she had sustained bleeding injury.

Appellant/accused no.1 Dilip has merely stated in his

statement recorded under section 313 of Criminal

Procedure Code that he has been falsely implicated in

this crime. The appellant/accused no.1 has not

examined himself on oath. Further, the post incident

conduct of the appellant/accused no.1 Dilip is also

questionable. The appellant/accused no.1 has not

informed to the parents of the deceased Lalitabai nor

anyone in the village. In the facts and circumstances of

the present case, the ratio laid down by the Supreme

Court in the case of Trimukh Maroti Kirkan (supra)

relied squarely applies to the present case. It was

extremely diffcult for the prosecution to lead the

evidence to establish the guilt of the accused, if strict

principle of circumstantial evidence is insisted upon. In

the facts of the present case, initial burden to establish

the case has been discharged by the prosecution. As

held in the cases cited and relied upon by the learned

APP, said initial burden on the prosecution is

comparatively lighter in character.

30 criappeal 216.2014.odt

33. In the instant case, the prosecution has proved the

circumstances against the appellant/accused no.1-Dilip

Jadhav, which are as follows :-

i. Deceased Lalitabai was subjected to ill-treatment, beating and life threats by the appellant/accused no.1 Dilip by suspecting about her character.

ii. The prosecution has established the motive of the appellant/accused no.1 Dilip to commit murder of his wife deceased Lalitabai.

iii. Homicidal death of deceased Lalitabai.

iv. Dead body of deceased Lalitabai was found in the hut of the threshing feld of the appellant/accused no.1 Dilip having multiple ligature marks over and around the neck with the corresponding internal injuries.

v. Recovery of the article 'A' rope at the instance of the appellant/accused no.1 Dilip Jadhav, which can be used for compression of the neck of the deceased as opined by PW 11, who conducted postmortem examination on the dead body of the deceased Lalita.

vi. Questionable post incident conduct of the deceased.

34. Thus, in terms of the provisions of section 106 of

the Indian Evidence Act, there is corresponding burden

on the appellant/accused no.1 Dilip to give cogent

explanation. The appellant/accused no.1 has failed to

discharge the burden by giving cogent explanation. It is

a strong circumstance pointing out his guilt. However,

31 criappeal 216.2014.odt

the appellants/accused nos.2 to 4 who are convicted for

the offence punishable under section 498-A of the IPC

and sentenced to undergo rigorous imprisonment for a

period of three years and to pay a fne of Rs.1000/-

(Rupees one thousand) each, in default to undergo

further rigorous imprisonment for a period of six

months are concerned, they are entitled for the beneft

of doubt. The appeal is partly allowed to their extent.

We upheld the conviction and sentence passed by the

Additional Sessions Judge, Shahada as against the

appellant/accused no.1 Dilip Jadhav. Hence, we

proceed to pass the following order.

ORDER

i. Criminal Appeal is hereby partly allowed.

ii. The judgment and order passed by the Additional Sessions Judge, Shahada dated 26.3.2014 in Sessions Case No.23 of 2012 convicting thereby the appellant/accused no.1 Dilip Jadhav for the offence punishable under section 302 of the Indian Penal Code and sentencing him to imprisonment for life and to pay a fne of Rs.5,000/- (Rs. Five Thousand only), in default to undergo further rigorous imprisonment for a period of one year and also

32 criappeal 216.2014.odt

convicting him under section 498-A of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of three years and to pay a fne of Rs.1,000/-, in default to undergo rigorous imprisonment for six months stands confrmed.

iii. The judgment and order passed by the Additional Sessions Judge, Shahada dated 26.3.2014 in Sessions Case No.23 of 2012 convicting thereby the appellant/accused no.2- Ratilal Rama Jadhav, appellant/accused no.3 Dhupibai Ratilal Jadhav and appellant/accused no.4 Jasubai @ Jayshree Ratilal Jadhav thereby convicting them under section 498-A of the I.P.C. and sentencing them to undergo rigorous imprisonment for a period of three years and to pay a fne of Rs.1,000/- (Rupees one thousand) each, in default to undergo further rigorous imprisonment for a period of six months, is hereby quashed and set aside.

iv. Appellant/accused no.2-Ratilal Rama Jadhav, appellant/accused no.3-Dhupibai Ratilal Jadhav and appellant/accused no.4-Jasubai @ Jayshree Ratilal Jadhav are hereby acquitted for the offence punishable under section 498-A r/w 34 of the Indian Penal Code.

                                              33                  criappeal 216.2014.odt

            v.     The         appellant/accused         no.2-Ratilal          Rama
                   Jadhav,         appellant/accused           no.3       Dhupibai

Ratilal Jadhav and appellant/accused no.4 Jasubai @ Jayshree Ratilal Jadhav shall execute a P.B. of Rs.15,000/- (Rs. Fifteen Thousand) each with one surety each of the like amount to appear before the higher Court as and when the notice is issued in respect of any appeal or petition fled against the judgment of this court. Such bail bonds shall remain in force for a period of six months from the date of its execution.

vi. Fine amount if deposited shall be refunded to them.

vii. Criminal appeal is accordingly disposed off.

viii. Since Advocate Mr. S.S.Bora is appointed to represent the cause of the appellants/accused, we quantify his legal fees and expenses @ Rs.10,000/- (Rs. Ten Thousand) to be paid by the High Court Legal Services Sub-Committee, Aurangabad.

( SHRIKANT D. KULKARNI, J. ) ( V.K. JADHAV, J. ) ...

aaa/-