Bombay High Court
Nandabai Dilip Kadam vs The State Of Maharashtra And Anr on 31 July, 2025
ia-898-2025-in-apeal-220-2025.doc
2025:BHC-AS:32437-DB
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 898 OF 2025
IN
CRIMINAL APPEAL NO. 220 OF 2025
Nandabai Dilip Kadam,
Adult Indian Inhabitant,
Aged about 41 years,
Occupation: Housewife,
having address at House No. 814/11,
Mali Galli, Wadalagaon, Nashik,
currently lodged in Jail ...Applicant/Appellant
~ versus ~
1. The State of Maharashtra
2. The Inspector of Police,
SHEPHALI Indira Nagar Police Station, Nashik ...Respondents
SANJAY
MORMARE
A PPEARANCES
Digitally signed by
SHEPHALI
SANJAY
MORMARE For the Applicant/Appellant Mr Ujjwal Gandhi.
Date: 2025.07.31
18:38:14 +0530
For the Respondent-State Ms Pallavi N. Dabholkar, APP.
CORAM : SUMAN SHYAM &
SHYAM C. CHANDAK, JJ
RESERVED ON : 28TH JULY 2025.
PRONOUNCED ON : 31ST JULY 2025.
ORDER (Per Suman Shyam, J):
-
1. Heard Mr Ujjwal Gandhi, learned legal aid counsel
appearing for the Applicant/Appellant. Also heard Ms Pallavi N
Dabholkar, learned APP appearing for the Respondent-State.
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2. Based on the FIR dated 24/09/2022 lodged by the son of
the deceased i.e. Roshan Dilip Kadam(PW-1) C.R. No. 155 of
2022 was registered with the Indira Nagar Police Station under
Sections 302 and 201 of the Indian Penal Code ("IPC") against the
sole Applicant for committing the murder of her husband Dilip
Rangnath Kadam. Upon completion of investigation Charge-Sheet
was submitted by the Police. Thereafter, charge was framed
against the Applicant under sections 302 and 201 of the IPC and
she was made to face trial. On completion of trial, by the
Judgment and Order dated 3rd December 2024 passed by the
learned Sessions Judge, Nashik in Sessions Case No. 6 of 2023,
the Applicant was convicted under Sections 302 and 201 of the
IPC. She was sentenced to undergo rigorous imprisonment for life
and also to pay fine of Rs. 5,000/- with default stipulation for
committing offence punishable under section 302 IPC. For
committing the offence punishable under Section 201 of the IPC,
the Applicant was sentenced to suffer rigorous imprisonment for
two years and to pay fine of Rs. 1,000/- i/d to suffer simple
imprisonment for one month. Being aggrieved by the Judgment
and Order dated 3rd December 2024 passed in Sessions Case No.
6 of 2023, the Applicant as Appellant has preferred Criminal
Appeal No. 220 of 2025, which is pending disposal before this
Court.
3. The Applicant was arrested on 26/09/2022 and since then,
she is in confinement. The instant Application has been filed
under Section 430 of Bhartiya Nagrik Suraksha Sanhita, 2023
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("BNSS") with a prayer to suspend the jail sentence of the
Applicant and also to release her on bail.
4. The case of the prosecution, in a nutshell, is that after the
demise of his first wife, the deceased Dilip Ranganath Kadam
entered into a second marriage with the Applicant. Both of them
were living as husband and wife in the house situated at Mali-
lane, Wadala, Nashik. The deceased did not have any issue born
out of his marriage with the Applicant. The son (PW-1) Roshan
and daughter (PW-10) Ashwini born to the deceased through his
first wife lived in a separate house with their aunt (PW-14)
Mandabai. Frequent quarrels used to take place between the
Applicant and the deceased as a result of which the former started
to live with her parents at Yeola. However, just 2/3 days before the
incident deceased Dilip got his wife back to his house. It is alleged
that being fed-up with the ill-treatment meted out to the Applicant
by her husband, she had committed the murder of Dilip by
inflicting multiple lacerated, stab and incised injuries with the
help of knife and wooden plank and thereafter, tried to conceal
the dead body under the cot. The hands of the deceased were
found to have been tied in the back.
5. The prosecution case is based on circumstantial evidence.
The learned Sessions Judge has also heavily relied upon the last
seen together circumstance to arrive at a conclusion that the
charge brought against the Accused/Applicant has been
established on the basis of circumstantial evidence. The learned
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trial court was also of the view that since the Applicant and the
deceased were residing in the same house, hence, in view of
section 106 of the Indian Evidence Act, failure on the part of the
Applicant to offer plausible explanation as to the circumstances
under which the deceased had suffered injuries would be an
additional link in the chain of circumstances establishing the guilt
of the Applicant.
6. By referring to the evidence brought on record, Mr Gandhi,
learned legal aid counsel appearing for the Applicant, has argued
that evidence brought on record by the prosecution is wholly
insufficient to sustain the conviction of the Applicant. According to
Mr. Gandhi, the last seen together circumstance has not been
properly established in this case and there is no other evidence to
establish the murder charge brought against the Applicant.
Contending that the prosecution has failed to prove the motive
behind the crime, Mr. Gandhi has further argued that the learned
Trial Court has convicted the Applicant merely on conjectures and
surmisals and by relying upon testimony of witnesses who were
tutored by the police and hence, wholly untrustworthy. It is also
the submission of Mr Gandhi that even the recovery of gown of
the applicant allegedly on being led by the accused has not been
proved in accordance with law. That apart, the failure on the part
of the Investigating Officer to inquire into the circumstances under
which two Aadhar cards of unidentified persons were found near
the dead body would constitute a serious lacunae in the
prosecution case. On such grounds, Mr Gandhi has urged that the
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present is a fit case for acquittal of the Applicant. Therefore, the
bail prayer made in the present application be granted by this
court.
7. Contesting the above submissions, Ms Dabholkar, learned
APP, has argued that considering the evidence of PW-1 and PW-10
as well as the medical evidence available on record, it is clear that
that the deceased had suffered a homicidal death inside his house
caused by none other than the Applicant. She further submits that
the deceased was last seen in the company of the Applicant hours
before the incident and the last seen together circumstance has
also been established by PW-1. It has also been proved that the
Applicant and the deceased Dilip lived together under one roof.
Under these circumstances, the failure on the part to
Accused/Applicant to offer any plausible explanation as to the
circumstances leading to death of the deceased would
undoubtedly lead to the presumption of guilt against the accused.
8. From the evidence available on record, it appears that the
deceased Dilip used to live separately with the accused and the
PW-1 and PW-10 lived with their aunt Mandabai, who was
examined as PW-14. From the evidence of PW-1, it is established
that the deceased was last seen together with the Accused on
22nd September 2022 at around 7.30 pm. The dead-body of the
deceased was, however, recovered after 7.30 pm on 24th
September 2022. Therefore, it is evident that there was
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considerable gap between the time on which the deceased was last
seen together with the Accused and the recovery of the dead-body.
9. It has further come out from the evidence of PW-10 and PW-
14 that on 23rd September 2022, the Applicant had stayed in the
house of PW-14. She left the house only on the next morning, i.e.
on 24th September 2022 at around 6.00 am and went to her
parents place at Yeola. On 26th September 2022, the Applicant
was brought from her parents' house and arrested by the
Investigating officer. The house of the deceased was found to be
locked from the outside and the dead-body was recovered on
24/09/2022 after breaking the lock open.
10. It is no doubt correct that the homicidal death of the
deceased has been duly established from the medical evidence
brought on record. However, from a preliminary assessment of the
evidence brought on record it prima facie appears that there is no
conclusive evidence to establish the fact that the Applicant had
resided in the same house with the deceased on the day of the
incident. The seized muddemal also could not be conclusively
connected with the accused. The claim of the prosecution of
having seized the wearing gown of the accused on discovery, on
being led by the accused, also does not appear to have been
proved in accordance with law. Moreover, there is no explanation
by the prosecution as regards the presence of two Aadhar cards
near the dead body. From the manner in which the dead body was
found, it looks highly improbable that the accused, being a
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women, could all by herself, manage to overpower the deceased
and inflict such injuries on him without there being any signs of
resistance by the deceased. The prosecution has also failed to
establish the motive behind the crime. Under such circumstances,
we find force in the submission of the learned legal aid counsel
that there is considerable doubt as to whether the prosecution has
succeeded in proving the charge brought against the accused
beyond reasonable doubt by circumstantial evidence.
11. It is correct that in her statement recorded under Section
313 of the Cr.P.C the accused has failed to offer any explanation
as to the circumstances under which the deceased has suffered
death. However, what is also borne in mind is that section 106 of
the Evidence Act would not relieve the prosecution of prima facie
establishing the charge brought against the accused. In the case
of Trimukh Maroti Kirkan vs State of Maharashtra ,1 the Hon'ble
Supreme Court has observed that when crime is committed in the
secrecy of house, the inmates would have a burdened under
Section 106 of the Evidence to offer explanation as to the
circumstance under which the incident took place. However, it
was also observed that the mandate of Section 106 of the
Evidence Act would not relieve the prosecution of its burden to
establish the charge although it might lessen the burden of the
prosecution.
1 2006 (10) SCC 681.
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12. Law is well settled that last seen together circumstance is a
weak piece of evidence and cannot be the sole basis of conviction.
Moreover, in the present case, there is a considerable time gap
between the time when the accused was last seen in the company
of the deceased and the recovery of the dead body. It is no doubt
correct that the conduct of the accused raises a strong suspicion as
regards her involvement in committing the crime. However,
suspicion, how so ever strong, cannot take the place of proof.
From a review of the evidence on record, we are of the opinion
that there is some doubt as to whether the prosecution has been
able to prove the charge brought against the Applicant beyond
reasonable doubt. However, whether the charge brought against
the Applicant has been established beyond reasonable doubt can
be ascertained only after a full length hearing which is unlikely in
the near future.
13. Considering the peculiar facts and circumstances of the
present case, we are of the considered opinion that the Applicant
has made out a good case for suspension of sentence and for her
release on bail. As such, we pass the following order -:
ORDER
(a) The Applicant, Nandabai Dilip Kadam shall be
forthwith released on bail in connection with C.R. No.
155 of 2022, registered with the Indira Nagar Police
Station, Nashik on her executing P .R. bond of a sum
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of Rs. 30,000/- with one or two sureties in like
amount to the satisfaction of the learned Trial Court,
subject to fulfillment of the following further
conditions:
(i) The Applicant shall maintain good
behaviour and shall not indulge in any anti
social activity while on bail.
(ii) The Applicant shall keep the surety alive for
the purpose of this bail.
(iii) The Applicant shall appear before the
concerned Police Station on the first
Saturday of every month between 1:00 p.m.
to 4:00 p.m. and shall not leave the area of
Nashik District without prior permission of
the learned Trial Court.
(iv) The Applicant shall not threaten or interfere
in any manner with the complainant or any
of other witness connected with this case.
14. It is made clear that violation of the above conditions shall
be viewed seriously.
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15. The observations made herein-above are prima-facie in
nature and have been made for the limited purpose of disposing of
the bail application.
16. The Interim Application is allowed in the aforesaid terms.
17. The Registry is directed to forthwith communicate this order
to the concerned Jail Authorities at Nashik.
(SHYAM C. CHANDAK, J.) (SUMAN SHYAM, J.)
{
31st July 2025
