Sarjerao Kisan Kale And Others vs The State Of Maharashtra
2023 Latest Caselaw 1819 Bom

                                                                        CRI APPEAL 218 OF 2015.odt


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD

                              CRIMINAL APPEAL NO.218 OF 2015

1.      Sarjerao s/o Kisan Kale
        Age: 64 years, Occu.: Agriculture,
        R/o. Bhambarda,
        Taluka and District - Aurangabad.                           Appellants
        (Appeal is abated against appellant No.1                    (Original Accused)
        vide order dated 09-03-2021)

2.      Laxman s/o Sarjerao Kale
        Age: 26 years, Occu.: Agriculture,
        R/o. Bhambarda,
        Taluka and District - Aurangabad.                           (Original Accused)

3.      Phulabai w/o Sarjerao Kale
        Age - 58 years, Occu.: Household,
        R/o. Bhambarda,
        Taluka and District - Aurangabad.                           (Original Accused)

                                    Versus

        The State of Maharashtra                                    .. Respondent
                                          ...
                   Advocate for Appellants : Mr. Santosh S. Jadhavar
                   APP for Respondent - State : Mrs. Preeti Diggikar
                                          ...

                                             CORAM : SMT. VIBHA KANKANWADI AND
                                                     ABHAY S. WAGHWASE, JJ.

                                RESERVED ON   : 16th February, 2023
                                PRONOUNCED ON : 23rd February, 2023

JUDGMENT (PER ABHAY S. WAGHWASE, J.) :

1. Original accused nos. 1, 2 and 3, who stood convicted by learned

Additional Sessions Judge-4, Aurangabad in Sessions Case No. 375 of 2011 for

commission of offence punishable under Section 302 r/w 34 of the Indian

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Penal code (IPC), are hereby assailing the said judgment and order of

conviction dated 19.09.2014 by invoking Section 374 of the Code of Criminal

Procedure (Cr.P.C.). During pendency of this appeal, accused-appellant no.1

Sarjerao died. Hence, vide order dated 09.03.2021, the appeal stood abated to

his extent.

PROSECUTION CASE

2. Accused no.1 Sarjerao and his wife accused no.3 Phulabai had two sons,

namely, Laxman (accused no.2) and deceased Dnyaneshwar. Wife of deceased

Dnyaneshwar stayed with accused persons and her husband for six to seven

months only. Thereafter she left deceased and went to her parents' house. Wife

of accused had instituted proceedings and she wanted her husband to have

distinct share in the land. Therefore she had left company of husband

Dnyaneshwar and was put up with her parents. Dnyaneshwar was keen in

bringing her back for cohabitation and this was precisely opposed by accused

persons.

3. In the above backdrop, on 30.06.2011 accused nos. 1 to 3, i.e. parents

and brother, beat Dnyaneshwar in their own house and all three of them

strangulated him with a rope and committed his murder. Neighbour PW1

Bhimrao Kale set law in motion alleging that he heard shouts and cries of

deceased from the house of accused. Deceased was screaming for help. Door

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of the house of accused persons was closed from inside. After short time,

accused appellants only came out of the house. Informant and neighbours

entered the house and saw Dnyaneshwar lying on the cot with strangulation

mark and blood oozing from his ear. On the strength of above information, FIR

was lodged and investigation was entrusted to PW8 API Budhwant, who

carried out investigation which included arrest of accused, drawing spot

panchanama, inquest panchanama and causing seizure under Section 27 of

the Evidence Act. After gathering sufficient evidence, PW8 API Budhwant

chargesheeted accused persons for commission of offence under Section 302

r/w 34 of IPC.

4. Case was on the file of learned Additional Sessions Judge-4,

Aurangabad, who after framing charge and recording plea of the accused,

proceeded to record evidence adduced by prosecution. Defence denied leading

evidence. Learned trial Judge scrutinized the entire oral and documentary

evidence and after hearing both sides, held that prosecution has succeeded in

bringing home the charge and thereby convicted accused and sentenced them

to suffer life imprisonment and to pay fine.

5. Above judgment is impugned herein by all accused by raising various

grounds mentioned in the appeal memo.

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SUBMISSIONS

6. The sum and substance of arguments advanced by learned counsel for

the appellants is that there is no cogent evidence about involvement of

accused persons in alleged death of Dnyaneshwar. It is pointed out that merely

on the evidence of neighbours, FIR is entertained and only relying on their

testimonies, conviction has been recorded. According to learned counsel,

nobody had seen accused persons coming out of the house and the versions of

witnesses to that extent are not sufficiently corroborated. According to him,

testimonies of all neighbours are not only inconsistent, but also full of material

contradictions, omissions and there are lot of improvements which are brought

in their cross-examination rendering their testimonies doubtful and unreliable.

7. Learned Advocate for the appellants pointed out that here, there is

allegation of strangulation, but said charge is attributed to all three accused.

There is no evidence as to who played which role and therefore, according to

him, learned trial court ought to have appreciated this aspect and ought not to

have accepted prosecution case. Learned counsel emphasized that infact there

is no evidence to show that accused no.3 Phulabai was also involved in alleged

strangulation. He pointed out that though prosecution claims that there is

recovery of a rope, it is only against accused no.1 Sarjerao. Said recovery

ought not to have been applied against all accused. Learned trial Judge failed

to appreciate the legal position and has erred in holding all accused persons

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guilty. He also emphasized that here prosecution has also not established

motive behind the occurrence and this infact turns out to be fatal for

prosecution, more particularly when the case is based entirely on

circumstantial evidence. That, it was responsibility of prosecution to prove

their case beyond reasonable doubt, but in this case prosecution has failed to

do so. However, still learned trial court has misconstrued the evidence on

record and erred in convicting the accused persons. Lastly, it is submitted that

so-called findings reached at by the trial court are not based on sound reasons

and therefore, judgment being perverse and illegal, is liable to be set aside by

allowing the appeal.

8. Per contra, learned APP would strenuously submit that there is

voluminous evidence of immediate neighbours who had no animosity

whatsoever against the accused to falsely implicate them. Taking us through

the testimonies of prosecution witnesses, more particularly PW1 Bhimrao Kale

(informant), PW3 Baliram, PW4 Dattu and PW5 Shahdeo, she would

strenuously submit that their evidence is consistent about shouts and cries of

Dnyaneshwar being heard around 9.00 p.m. from the house of accused. They

had all rushed to the scene of occurrence i.e. house of accused. She pointed

out that attempt was also made to open the door and call was given to accused

no.1 Sarjerao, but accused persons did not open the door and after a short

while, when it was opened, only accused persons came out of the house

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whereas Dnyaneshwar did not came out and therefore, these witnesses

entered the house of accused and they had seen deceased Dnyaneshwar lying

on the cot. Therefore, she vehemently pointed out that none other than

accused are responsible for death of Dnyaneshwar. According to her, by

examining PW7 Dr. Girish in the trial court, prosecution has established death

of Dnyaneshwar to be homicidal one. Land dispute was the motive behind the

occurrence. There is evidence to that extent in the record. Resultantly, while

summing up, she would submit that there being trustworthy, cogent and

reliable evidence, learned trial Judge has committed no error whatsoever in

holding accused persons guilty. According to her, the judgment is reasoned

one. Legal position has also been applied in appreciating the evidence and

therefore, she prays that, such judgment need not be interfered or disturbed.

EVIDENCE BEFORE THE TRIAL COURT

9. PW1 Bhimrao Kale is the informant and he is immediate neighbour of

accused persons. PW2 Bhimrao Pathade is also a resident of the same locality

and he has acted as pancha to spot panchanama Exhibit 55 and inquest

panchanama Exhibit 31. PW3 Baliram is the Sarpanch of the village. PW4

Dattu and PW5 Shahdeo both are neighbours of accused. PW6 Ganesh is the

pancha to seizure panchanama, PW7 Dr. Ganesh is the autopsy doctor and

PW8 API Budhwant is the Investigating Officer.

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10. On the strength of testimonies of above witnesses, prosecution has

succeeded in the trial court and the judgment and order of trial court now

being impugned herein, we, as the first appellate Court, are called upon to test

the legality and maintainability of the judgment and order of conviction

passed by learned Additional Sessions Judge.

11. Here, admittedly there is no eye witness account and the entire case of

prosecution is rested on circumstantial evidence. Whenever case of

prosecution is based on circumstantial evidence, there are certain settled

cardinal principles and canons of law which are to be borne in mind while

appreciating the case. Few landmark Judgments from which the settled legal

position can be culled out are as under:

a) Hanuman Govind Nargundkar and Another vs. State of M.P.; AIR 1952 SC 343;

b) Sharad Birdhichand Sarda vs. State of Maharashtra; (1984) 4 SCC 116.

c) Dhananajoy Chatterjee @ Dhana vs. State of W.B.; 1994 (2) SCC 220.

d) Shyamal Ghosh vs. State of West Bengal; (2012) 7 SCC 646;

e) State of U.P. vs Satish; (2005) 3 SCC 114;

f) Mohd. Mannan @ Abdul Mannan vs. State of Bihar; (2011) 5 SCC 317.

g) Gambhir v. State of Maharashtra (1982) 2 SCC 351.

h) Earabhadrappa alias Krishnappa v. State of Karnataka (1983) 2 SCC

330.

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12. The ratio that is settled by way of above rulings is that to prove guilt of

the accused persons by adducing circumstantial evidence, it is essential for

prosecution to demonstrate and establish the following aspects :

1. The circumstances from which conclusion is drawn should be fully proved.

2. The circumstances should be conclusive in nature.

3. All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence.

4. The circumstances should, to the moral certainty, exclude the possibility of guilt of any person other than accused.

13. Equally, in administration of criminal justice, Courts are expected to

always borne in mind the following cardinal principles :

1. The accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show himguilty of offence with which he is charged.

2. If two views are possible on the basis of evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted.

3. Where the court entertains reasonable doubt regarding the guilt of the accused, the benefit of such doubt should go in favour of the accused.

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4. The court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on the ground or on the basis of conjectures and surmises.

5. The case of the prosecution must be judged as a whole having regard to the totality of the evidence.

6. In appreciating the evidence the approach of the court must be integrated and not truncated or isolated. In other words, the impact of evidence in totality on the prosecution case or innocence of accused has to be kept in mind in coming to the conclusion as to the guilt or innocence of the accused.

7. In reaching to the conclusion about the guilt of the accused, the court has to appreciate, analyze and assess the evidence placed before it by yardstick of probabilities, it's intrinsic and animus of witnesses.

8. The court has to keep in mind that the accused 'must be' and not merely 'may be' of guilty of an offence. The mainly distance between 'must be' and 'may be' is long and divides vague conjectures from sure conclusions.

9. Suspicion, however grave it may be, cannot take the place of legal proof.

10. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, the benefit of doubt must be given to the accused. However, the Court must borne in mind that the reasons of doubt should not be trivial or merely a probable. It must be fair doubt i.e. based upon the reasons and common sense.

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14. Keeping the above legal requirements and settled position in mind, we

propose to re-examine, re-evaluate and re-assess the oral accounts and

circumstances pressed into service by prosecution by formulating impelling

circumstances attending the case and then examine whether the cumulative

effect of those circumstances negatives the innocence of the accused and

serves as a definite pointer towards their guilt thereby unerringly leading to

the only conclusion that within all probabilities crime was committed by

appellants and none other. On hearing prosecution, following are the

circumstances which seem to be relied by prosecution:

          i)     Homicidal death.
          ii)    Deceased in custody of accused persons.
          iii) Motive.
          iv) Recovery under Section 27 of the Evidence Act.



                                     FIRST CIRCUMSTANCE

i)       Homicidal Death.

15. As in this case there is charge under Section 302 of IPC, it is incumbent

upon the prosecution, at the threshold to establish that death of Dnyaneshwar

was homicidal one and not otherwise. Therefore, we visit the prosecution

evidence to ascertain whether burden has been discharged by prosecution to

establish death of Dnyaneshwar to be homicidal one. To ascertain the same, it

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is desirable to visit inquest panchanama and then, testimony of PW7 Dr. Girish

who conducted postmortem.

16. We have come across inquest panchanama drawn in presence of PW2

Bhimrao Pathade. The said panchanama is at Exhibit 31. It seems that in the

trial court defence has fairly admitted inquest panchanama Exhibit 31. On

going through the same, it is emerging that dead body of Dnyaneshwar was

lying on the cot in the house of the accused and there is noting about black

mark on the neck of his dead body.

17. Prosecution has also examined PW7 Dr. Girish at Exhibit 63 and this

autopsy doctor testified about receiving dead body of Dnyaneshwar Sarjerao

Kale along with inquest. He claims that on external examination, he came

across following features :

Face - Congested.

Eye - Partly open, petechial haemorrhages in conjunctivae on both sides.

Mouth-Partly open, tongue present inside the oral cavity.

Oozing of reddish fluid from nose and mouth. Evidence of dry blood stains in right ear.

Column No.16: Evidence of bluish purple discolouration of nail beds of both the hands.

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He further claims to have come across following external injuries:

1. Two ligature marks around neck.

2. Abrasion on neck.

3. Abrasion of left shin.

4. Abrasion on left knee.

5. Abrasion of left wrist, dorsal aspect.

6. Abrasion on left arm, lower 1/3rd lateral aspect.

7. Three abrasions parallel to each other, situated above and medial to injury No.6.

On internal examination, he claims to have found following internal

injuries:

1. Brain - Congested and Oedematous. Patechial haemorrhages in white brain matter. On neck dissection- Contusion on right side strap muscles of size 5x4 cm, and on left side strap muscles of 3x2 cm, dark reddish in colour alongwith contusion of subcutaneous tissue beneath the ligature mark. No evidence of fracture of thyroid, cricoid cartilages or hyoid bone. And there is evidence of submucosal petechial haemorrhages in larynx, epiglottis and trachea.

In para 5 of his examination-in-chief, Doctor has opined that probable

cause of death is "strangulation". He has identified the provisional postmortem

report as well as postmortem report authored by him at Exhibits 65 and 66

respectively.

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Here, though defence has cross-examined Doctor, the same does not

seem to be on the medico legal aspect, Doctor has flatly denied that he cannot

state whether death was due to strangulation or suicidal strangulation. He has

completely ruled out possibility of suicidal strangulation. Considering the

nature and location of mark coupled with sign of bleeding from ear, opinion

reached at by autopsy doctor is supported by sound reasons and has scientific

base. Moreover, he has admitted that the rope which was shown to him can be

used for self strangulation resulting in death. However, as stated above, in trial

court, defence has already admitted the postmortem report. Taking into

account the medico legal expert's evidence and the inquest panchanama, we

are of the opinion that here, death of Dnyaneshwar is proved to be due to

strangulation and hence homicidal.

18. The another aspect which confirms death to be homicidal is that here,

on visiting the scene of occurrence panchanama at Exhibit 55, it is apparent

that there are no circumstances suggesting suicidal hanging resulting into

ligature mark. There is no material in the spot panchanama suggesting

deceased Dnyaneshwar hanging himself or there is any possibility, taking the

spot panchanama into consideration, that deceased might have met accidental

strangulation or accidental suicide or deceased himself committed suicide and

thereafter accused persons took down the dead body. Therefore, possibility of

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suicidal or accidental hanging being completely ruled out by the

circumstances, the only conclusion that gets drawn is that death is only and

only homicidal.

                                SECOND CIRCUMSTANCE


ii)      Deceased in custody of accused persons.

19. Prosecution having proved death to be homicidal, it is now required to

be seen as to whether, as alleged by prosecution, accused persons are

responsible for strangulation and whether their culpability has been

established by prosecution.

In support of such second circumstance, it is necessary to visit the

testimony of prosecution witnesses.

20. PW1 Bhimrao Kale, i.e. the informant, testified that house of accused

no.1 Sarjerao is situated adjacent to his house. Regarding the occurrence it is

his testimony that around 11.00 a.m. he had been to bazar for purchasing

bullock and he returned home by 06.00 p.m. and after taking dinner, around

8.30 p.m. to 09.00 p.m., he was watching television. He claims that he heard

shouts as "vachwa vachwa" from the house of accused. He testified that he and

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his wife immediately rushed towards the house of accused. Many people had

also gathered there. He saw doors and windows of house of accused in closed

condition and after some time, accused nos. 1, 2 and 3 came out of their

house. Dnyaneshwar did not come outside the house. He stated that all three

accused came and sat on the oota. PW3 Baliram became suspicious and called

police, who came and directed accused Sarjerao to open the door and

accordingly Sarjerao opened it. Thereafter, this witness claims that he entered

the house along with police and they saw Dnyaneshwar lying on the cot and

there were strangulation marks on his neck and blood was oozing from his

ears. Therefore, he lodged report which he identified at Exhibit 50.

While under cross-examination, he answered that Dnyaneshwar was

married to Rukhminibai, but she left home and started residing with her

parents. This witness denied the suggestion that there was sound of television

and as such he did not hear any shouts. He answered that his house is just

adjacent to the house of accused and he volunteered that there is mere

common wall between their houses and after hearing voice, he immediately

went to the house of accused. He admitted that there are two doors to the

house of accused i.e. one at front side and one at the backside. He admitted

that entry was not attempted to be made by using rear door. Then he was

questioned about court cases filed by wife of deceased Dnyaneshwar. There is

clear suggestion that there was dispute between Dnyaneshwar and accused on

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account of share in the agricultural land. He was questioned about distance

between house of Baliram and house of accused. Omissions are brought about

accused persons sitting on oota, about he and his wife immediately running

towards house of accused. Rest is all denial.

21. PW3 Baliram seems to be Sarpanch of village. He seems to be

acquainted with deceased and accused being residents of the village. He stated

that on 30.06.2011 around 08.30 p.m. while he was taking dinner, PW4 Dattu

came to him and informed him about quarrel going on in the house of accused

no.1. PW4 Dattu also told him that there was fight in the house of accused

Sarjerao and asked him to immediately come there. Therefore he and Dattu

went to the house of Sarjerao. This witness stated that door of the house of

Sarjerao was closed. Many people had gathered. He stated that he gave call to

Sarjerao to open the door but he did not respond and put off the lights of the

house. This witness stated that he gave call to police and he remained present

there. After some time, Sarjerao opened the door. Only Sarjerao, Laxman and

Phulabai came out of the house. This witness stated that he asked Sarjerao

where Dnyaneshwar was and accused allegedly told him that they had killed

Dnyaneshwar. He gave call to police who reached at the spot and made

Sarjerao open the door. This witness went inside the house alongwith police

and saw Dnyaneshwar lying on the cot. There was blood oozing from his ear

and mark of strangulation on his neck. In the presence of this witness police

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prepared spot panchanama and referred the body for postmortem.

In cross-examination, this witness was asked since when he is Sarpanch

and he answered that he is Sarpanch of village Bhambharda since last three

years. He gave distance between his house and house of accused as 100 to 150

ft. Then he was asked as to whether he indulges in disputes in the village, to

which he answered in affirmative by saying that he tries to solve their

disputes. He was unable to state about cases filed by wife of deceased against

deceased and other accused and he stated that Bhimrao never told him about

it. He stated that house of Bhimrao is approximately at 1000 ft. away from the

house of accused. He stated that when PW4 Dattu came to his house, he

immediately made call to PW2 Bhimrao. He also was asked about two doors to

the house of accused. He answered in cross-examination that when he asked

accused to open the door of the house, at that time police officer Budhwant

was not present there. He answered that he did not feel it necessary to use the

backside door to enter the house of accused. He answered that he had asked

Sarjerao to open the door and he accordingly opened it. He further answered

that he made call to police twice and then stated that first time accused did

not open the door and therefore he made phone call to police. Thereafter,

Sarjerao opened the door and that time he again made phone call to police.

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22. PW4 Dattu also is a resident of the village and a neighbour of accused.

He stated in his testimony that he was residing near the house of accused who

had two sons by name Dnyaneshwar and Laxman. He stated that wife of

Dnyaneshwar was not residing with Dnyaneshwar but was residing at her

maternal house. He stated that Dnyaneshwar was residing along with his

father Sarjerao, mother Phulabai and brother Laxman. He too stated that on

30.06.2011 around 9.00 p.m. to 9.30 p.m. he heard shouts from the house of

accused and therefore, he and one Shamrao went towards the house of

accused. They saw front door to be closed and therefore he immediately went

to Baliram (PW3) who was Sarpanch of their village. Thereafter he and

Baliram came towards the house of accused. He stated that Baliram asked

Sarjerao to open the door. He stated that before opening door of the house,

they heard voice of Dnyaneshwar as "sodva sodva". After some time, on the

say of Baliram, accused Sarjerao opened the door and at that time, Sarjerao,

Phulabai and Laxman came out of the house and Sarjerao again locked the

door of the house and while they were about to leave, villagers stopped them

and Baliram informed police on phone to come and thereafter Sarjerao was

made to open the door and all villagers, including the Sarpanch, went inside

the house. He Stated that he saw marks of hanging on the neck of

Dnyaneshwar and blood oozing from his ear. He stated about his statement

being recorded by Magistrate under Section 164 of Cr.P.C.

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In cross-examination, he answered that his house is 25 to 30 ft. away

from the house of accused. This witness was questioned about marriage of

Dnyaneshwar and whether there was dispute between him and his wife and

this witness admitted about it and that wife of Dnyaneshwar had left

matrimonial house and was staying with her parents. Omission is brought

about Baliram telling Sarjerao to open the door of house and then Sarjerao

opened it, about uttering "sodva sodva".

23. PW5 Shahdeo also stated that accused persons were residing jointly

with deceased Dnyaneshwar. On 30.06.2011, he claims to have heard sound of

something falling in the house of accused and so he went there. He stated that

he heard voice "bhau mala yeodhya veli soda, me gao sodun jato " and

according to him, the voice was of Dnyaneshwar. People had gathered in front

of house of accused and after five minutes, accused Sarjerao, Phulabai and

Laxman came out of the house and Sarjerao locked the door and while

accused were leaving, people restrained them and after short time police

came. He stated that thereafter, they all went in the house and saw

Dnyaneshwar lying on the cot on his back and he saw blackish mark on the

neck of Dnyaneshwar and blood oozing from his ear.

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In cross-examination he answered that when he went to the spot, at that

time Baliram was not present there. He came subsequently. He claims that

once he knocked the door but it was closed from inside. He was questioned

about his statement to police and he denied about giving false statement.

ANALYSIS OF THE ABOVE TESTIMONIES

24. From the above discussed oral accounts of above named witnesses, it is

emerging that accused and deceased were residing in one house. Exhibits 80

to 83 confirm that they all resided in one house. All witnesses are found to be

consistent about occurrence taking place on 30.06.2011 between 8.30 p.m. to

09.00 p.m. They are all consistent about hearing shouts and cries from the

house of accused. All of them speak about door of the house of accused to be

closed from inside. On arrival of villagers and Sarpanch, accused persons were

called upon to open the door and after short time, all above witnesses claim to

have seen accused nos. 1, 2 and 3 coming out of house. They are also

unanimous about accused Sarjerao locking the door from outside and on

arrival of police he being made to open the door and thereafter these

witnesses entering the house and seeing Dnyaneshwar lying on the cot with

mark on his neck and blood oozing from his ear. Though all above witnesses

are cross-examined at length, they have withstood and remained steadfast

about the shouts and cries coming from the house of accused, about only

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accused nos. 1, 2 and 3 emerging and later on, when all others entered the

house of accused, deceased was found dead. None of them had reason to

implicate the accused persons. Therefore, their testimonies are trustworthy.

25. Therefore, in our considered opinion, it is apparent that accused and

deceased were together in the house that night. No doubt what happened

within the closed house is not known to anyone as there is no direct evidence.

Under such circumstances, infact, there cannot be direct evidence because

whatever events took place were in the closed house. However, aspect of

presence of all the three accused in the house has clearly come on record.

Independent witnesses, who are neighbours, are speaking about accused as

well as deceased residing and sharing the same house and deceased being

found dead in suspicious circumstances. Admittedly, it is also not defence of

accused that they were elsewhere and thereby even none of them have taken

plea of alibi. Consequently, there does not seem to be any dispute that accused

were not incumbents of the house that day.

26. Therefore, in the light of above circumstances, law demands explanation

from incumbents of the house as to how unnatural death of the deceased has

taken place while he was in their company.

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27. Section 106 of the Evidence Act, which comes into play, is reproduced as

below:

"106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

28. Application of above provision is an important aspect. By series of

pronouncements, the Hon'ble Apex Court has examined the scope of said

provision in landmark cases like Shambu Nath Mehra v. State of Ajmer [AIR

1956 SC 404]; State of W.B. v. Mir Mohammad Omar [(2000) SCC (Cri)

1516]; Sucha Singh v. State of Punjab [(2001) SCC (Cri) 717; Munawwar v.

State of Uttar Pradesh [(2019) 3 SCC (Cri) 314]; Rajender v. State (NCT of

Delhi) [(2020) 1 SCC (Cri) 63];

29. In Shambu Nath Mehra (supra) the Hon'ble Apex Court has observed as

under :

"Section 106 must be considered in a commonsense way; and the balance of convenience and the disproportion of labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to

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undermine the well-established rule of law that, save in a very exceptional class of cases, the burden is on prosecution and never shifts."

In para 11 it is elaborated as under:

"11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to a very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder, because who could know better than he whether he did it or did not. It is evident that, that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried". Emphasis laid.

30. Likewise in the case of State of W.B. v. Mir Mohammad Omar (supra) it

is observed in para 31 as under:

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"31. that 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."

31. In the case of Sucha Singh (supra), the Hon'ble Apex Court observed in

para 19 as under:

"19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference."

32. Very recently the Hon'ble Apex Court in the case of Ram Gopal S/o

Mansharam v. State of Madhya Pradesh [2023 LiveLaw (SC) 120] reiterated

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that, "once theory of last scene together was established, the accused was

expected to offer some explanation as to when under what circumstance he

had parted the company of the deceased. If the accused offers no explanation

or furnishes a wrong explanation, absconds, motive is established and some

other corroborative evidence in the form of recovery etc. forming a chain of

circumstance is established, conviction is based on such evidence".

It is further observed that it is true that burden to prove to the guilt of

accused is always on prosecution, however, in view of Section 106 of the

Evidence Act, when any fact is within the knowledge of any person, the

burden of proving that fact is upon accused.

33. In the light of above discussion, the ratio of above provision that is

culled is that initial burden of proving the case is always on prosecution, but

when certain circumstances are attributable exclusively to the knowledge of

accused, then onus shifts on him to discharge the same by offering plausible

explanation and law does not permit him to escape without offering

explanation. In the light of such legal requirements, here, we have already

examined the prosecution evidence in toto and have already reached to a

conclusion that undisputedly deceased, who was son of accused nos.1 and 3

and brother of accused no. 2, is demonstrated to be jointly residing with

accused persons under one roof. Unfortunately, deceased had met homicidal

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death in the very house jointly occupied by accused persons. Therefore, it falls

upon the accused persons to offer an explanation for the homicidal death met

in the house. We have gone through the answers given by accused while facing

questions under Section 313 of Cr.P.C. There is simplicitor denial. Under such

circumstances it is open for this Court to draw adverse inference. Opportunity

to explain incriminating material has been lost by the accused persons.

Resultantly, there is no hesitation on our part to hold that accused are solely

responsible for death of Dnyaneshwar. Hence even this circumstance can be

accepted as proved.

                                      THIRD CIRCUMSTANCE

iii)      Motive.

34. Learned counsel for the appellants criticized the evidence of prosecution

by submitting that here prosecution has utterly failed to prove the very motive

behind the occurrence. However, while cross-examining PW1 Bhimrao Kale

(informant), there is suggestion from defence itself and it is admitted by this

witness in para 7 of his cross-examination that there were always disputes

between Dnyaneshwar and the accused on account of share in the agricultural

land. Even wife of Dnyaneshwar had left his company in the backdrop of civil

dispute and Dnyaneshwar was eager to bring her and cohabit with her in the

house, to which there was said to be resistance by accused persons. Here,

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during cross-examination, Investing Officer seems to have admitted that wife

of deceased had filed complaint against Dnyaneshwar as well as his parents

and brother for commission of offence under Section 498-A of IPC. PW1

Bhimrao Kale (informant) has also answered in cross that wife of

Dnyaneshwar had filed suite for getting share in agricultural land which was

in the name of Sarjerao. With such material on record, it does not lie in the

mouth of accused to put forth a case about failure of prosecution to prove

motive.

35. Our own Hon'ble High Court in the case of Sheikh Jahangir Ali v. State

of Maharashtra [2001 (2) Mh.L.J. 67], while invoking Section 8 of the Indian

Evidence Act, held that motive is always locked in the heart of the accused and

it is well known dictum that even devil may not know the thoughts of man.

Motive, no doubt, assumes importance in a case resting of circumstantial

evidence, yet the absence of motive is not fatal if circumstantial evidence is

established with cogent evidence.

                                     FOURTH CIRCUMSTANCE


iv)      Recovery under Section 27 of the Evidence Act.

36. The Investigating Officer PW8 API Budhwant in his testimony speaks

about accused Sarjerao, while in custody, making memorandum of disclosure

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and in presence of pancha, the same to be noted and thereafter accused

Sarjerao taking them and handing over rope. Prosecution has examined the

pancha to said memorandum and disclosure i.e. PW6 Ganesh who in his

testimony at Exhibit 62 stated that on 01.07.2011 he was called by Karmad

Police Station. His friend Raju Kulkarni was also present there. Then he stated

that police read over panchanama and showed one rope. Then he stated that

accused were in the lockup and that he had not seen the accused. He denied

that accused Sarjerao gave any memorandum in his presence. Therefore,

finding him not supporting, learned APP sought permission of the court to

cross-examine its own witness and while crossed at the hands of learned APP,

this witness stuck up to his earlier version about accused Sarjerao giving

statement showing his readiness to produce one rope. However, this witness

has admitted his own signature on the memorandum. Then he answered that

he read the panchanama and then signed it. He also is found to be giving

measurement and colour of rope and he has also identified the said rope. The

Investigating Officer PW8 API Budhwant has also reiterated about accused

giving memorandum of disclosure and recovery of rope being caused in

pursuance to it. It needs to be noted that occurrence is of the night of

30.06.2011 and immediately on the next day after arrest, accused seems to

have given memorandum and the rope is before the court.

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37. It is true that as put forth by defence, pancha witness PW6 Ganesh has

at one point of time denied that accused Sarjerao gave memorandum in his

presence and thereby having resiled and not supported prosecution and

therefore declared hostile, his entire evidence need not be discarded. It is

settled law that so much of the statement on oath which is found to be worthy

of credence, that much part can be relied and taken into consideration. In the

light of such legal position, here, the initial part of testimony of this witness

about his visit to police station on 01.07.2011 and he going there along with

another pancha whose name he supplies, and about drawing of panchanama

and seeing a rope, and subsequently in cross-examination admitting that

accused showed his readiness to produce rope and accordingly he took police

and panchas to a place and thereby recovery of rope being caused, can very

well be taken into consideration and applied in evidence.

38. Much emphasis was laid by learned defence counsel in questioning

recovery under Section 27 of the Evidence Act by attacking prosecution case

and submitting that here, there are three accused and when it is not clear as to

who amongst three strangulated, according to him, it is unsafe to attribute

recovery to any of the accused persons, more particularly, no role having being

defined. The above submission do not impress us for the simple reason that

there is evidence suggesting all three accused persons to be present in the

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closed house wherein deceased was found dead with strangulation marks.

Learned APP has already invited our attention to the scene of occurrence

panchanama wherein there are pieces of bangle lying in the house at the spot.

These circumstances clearly indicate that there was manhandling and scuffle

prior to strangulation. Deceased was moderately built. Strangulation is

impossible in that view by only one person. Accused no.3 also had suffered

abrasions. Therefore, such material clearly indicates that deceased was initially

either incapacitated, held by two persons facilitating strangulation at the

hands of one person. It is not handy work of one person. Only joint efforts

would yield such strangulation. Therefore above objection raised by learned

defence counsel has no substance. On the contrary, even if there is recovery at

the instance of only accused no.1, in the light of above discussion, the said

recovery can very well be used against all accused persons. When there

recovery of article like rope, there is no need for each of the accused to go

together to hide it. Hence, even this circumstance is established by

prosecution.

SUMMATION

39. In the light of above discussion, we are convinced that deceased

Dnyaneshwar was son of accused nos. 1 and 3 and brother of accused no.2.

Death of Dnyaneshwar has taken place in the house which was shared by all

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accused as well as deceased. Villagers, who are immediate neighbours, are

witness to the episode of hearing shouts and cries from the closed house of

accused. Some of the villagers, who are immediate neighbours, are made to

step into the witness-box. They are unanimous about accused persons

emerging from their closed house and thereafter, in presence of police, when

entry was made in the house of accused, deceased Dnyaneshwar was found

dead with strangulation mark and blood oozing from his ear. The autopsy

doctor PW7 Dr. Girish has confirmed death to be due to strangulation.

Possibility of any outsider entering the house is ruled out. Rather, presence of

accused persons is confirmed by almost all prosecution witnesses. Resultantly,

finger of guilt is rightly pointed towards accused persons and they are solely

responsible for homicidal death of Dnyaneshwar. Motive about share in the

agricultural land has also surfaced in the evidence of witnesses. Therefore,

according to us, prosecution has proved beyond reasonable doubt that accused

strangulated deceased and are solely responsible for committing his murder.

40. We have carefully gone through the impugned judgment and order

passed by learned Additional Sessions Judge. It seems that there is proper

appreciation of prosecution evidence. The answers given by witnesses in cross-

examination are also taken into account before reaching to the findings which

are supported by sound reasons. In appeal before us, no illegality, perversity or

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error at the hands of trial Judge in appreciating the evidence is brought to our

notice. No case being made out on merits for interfering in the judgment and

order of conviction, we proceed to pass the following order:

ORDER

The appeal is hereby dismissed.

(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)

VRE