Bombay High Court

Dhanraj Malkappa Dhale vs The State Of Maharashtra on 2 May, 2025

Author: R.G. Avachat

Bench: R.G. Avachat

2025:BHC-AUG:13193-DB
                                                               Cri.Appeal No.492/2021
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                    IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                  BENCH AT AURANGABAD

                             CRIMINAL APPEAL NO.492 OF 2021


                 Dhanraj Malkappa Dhale
                 Age 47 years, Occu. Nil,
                 R/o Khade Galli, Murum,
                 Tq. Omerga, Dist. Osmanabad              ...APPELLANT

                        VERSUS

                 The State of Maharashtra
                 Through Police Station, Murum,
                 Tq. Omerga, Dist. Osmanabad
                 (Copy to be served on P.P. High Court
                 of Bombay, Bench at Aurangabad)       ...RESPONDENT

                                             .......
                 Mr. Ravindra Nirmal, Advocate for appellant
                 Mrs. S.N. Deshmukh, A.P.P. for respondent
                                             .......

                                  CORAM : R.G. AVACHAT AND
                                          PRAFULLA S. KHUBALKAR, JJ.

                            Date of reserving judgment : 18th March, 2025
                            Date of pronouncing judgment : 2nd May, 2025


                 J U D G M E N T (PER : R.G. AVACHAT, J.) :

The challenge in this appeal is to the judgment and

order of conviction and consequential sentence, passed by the

Court of Additional Sessions, Omerga, District Osmanabad

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(Trial Court), in Sessions Case, No.5/2017 on 29/1/2021. Vide

impugned judgment and order, the appellant has been

convicted for offence punishable under Sections 302 and 435

of the Indian Penal Code and, therefore, sentenced to suffer

life imprisonment with fine of Rs.5000/- and sentence of 5

years rigorous imprisonment with fine of Rs.4000/-

respectively, in addition to default stipulation. The substantive

sentences were directed to run concurrently.

2. The facts giving rise to the present appeal are as

follows :-

P.W.2 Shantabai (informant) is mother of the

appellant. The appellant has 5 married sisters. His father -

Malkappa (deceased) and his wife Shantabai would reside

together in a house on an agricultural field at village Murum,

Taluka Omerga, District Osmanabad. The appellant along with

his wife, mother Shantabai and their two children, would reside

separately, but in the house in which his parents would reside.

The appellant was addict of alcohol. Deceased Malkappa had

two acres of land. The appellant would insist his parents to

lease out the said land and pay him money. He would beat up

his parents. On the given day i.e. on 3/4/2017, he picked up a

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quarrel with his parents. He even assaulted his mother (P.W.2

Shantabai). She, therefore, went to stay at the house of her

neighbour. She stayed there overnight. Deceased Malkappa

was little over 80 years of age. He was unable to walk or even

stand on his own. He would require a walking stick. On the

fateful night, Malkappa went to sleep on an iron cot in the front

yard of his house. The cot was closed by haystack of one

Mulla. The appellant poured kerosene on the person of his

father, haystack and set a fire. His father was charred to

death. His neighbours woke up on having seen the flames.

They came out of their respective residences. They enquired

with the appellant. The appellant, however, fled.

3. P.W.2 Shantabai was informed of the incident. She

came to her residence and realised the appellant to have

committed murder of Malkappa. She, therefore, lodged the

First Information Report (F.I.R. Exh.30) with Murum Police

Station.

4. A crime vide C.R. No.56/2017 was registered. The

appellant was arrested. Crime scene panchanama was drawn.

Autopsy was conducted on the spot. Pursuant to the

disclosure statement made by the appellant, a kerosene can

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and a match stick came to be seized. Statements of persons

acquainted with the facts and circumstances of the case were

recorded. On completion of the investigation, the charge sheet

was filed. The Trial Court framed the charge. The appellant

pleaded not guilty. His defence was of false implication.

5. To bring home the charge, the prosecution

examined 9 witnesses and produced in evidence certain

documents. On appreciation of the evidence in the case, the

Trial Court passed the order impugned herein.

6. Heard. Learned Advocate for the appellant would

submit that, the case is based on circumstantial evidence. He,

therefore, adverted our attention to the parameters to be

considered while appreciating the criminal case based on

circumstantial evidence. A reference to the judgment of the

Apex Court in case of Sharad Birdichand Sarda Vs. State

of Maharashtra (1984 CJ (SC) 262) was made. The

learned Advocate then took us through the evidence of

P.W.2 Shantabai to submit that the F.I.R. is silent to record

therein very many aspects deposed to by the informant.

The appellant was not at his residence on the fateful night.

It was an accidental fire. The learned Advocate would

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further submit that the identity of the deceased was not

established. He would further submit that, the neighbours

were inimical with the appellant. Their evidence at the most

indicate the appellant to have gone away. The mere fact

that the appellant fled from the crime scene would in no way

be a conclusive evidence to attribute him with the serious

offence of murder. The learned Advocate, therefore, urged

for allowing the appeal.

7. The learned A.P.P. would, on the other hand,

reiterate the reasons given by the Trial Court and urged for

dismissal of the appeal.

8. We have considered the submissions advanced.

Perused the judgment impugned herein. Let us advert to

the evidence on record and appreciate the same.

9. The crime scene panchanama (Exh.44) indicate

the fire incident took place in front of the house of P.W.2

Shantabai (informant) on the night of 3/4/2017. In the

incident, her husband Malkappa was charred to death.

Although the identity of the deceased was taken exception

to by the learned Advocate during his submissions made

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before us, it was specifically suggested in the cross-

examination of P.W.2 Shantabai that Malkappa died due to

burns suffered on account of the fodder (haystack) to have

caught fire accidentally.

10. P.W.1 Dr. Satyajit conducted autopsy on the

spot, since Malkappa had suffered 100% burns. The post

mortem report is at Exh.26. The cause of death of

Malkappa is shock due to thermal burns and deep burns.

Although the Medical Officer was subjected to a searching

cross-examination, we have no reason to disbelieve his

evidence. More so, when the cause of death of Malkappa

was admitted in view of suggestion referred to hereinabove,

given to P.W.2 Shantabai.

11. P.W.2 Shantabai (informant) testified that, the

appellant is her son. She has 5 married daughters. The

appellant has a wife and two children. All of them were

residing in one house, but separately. She further testified

that, her husband did have two acres of agricultural land.

The appellant was alcoholic. The appellant had even in the

past beaten up her and Malkappa. He had even once

attempted to set Malkappa on fire. The appellant would

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insist them to pay money by leasing out the agricultural

land.

12. P.W.2 Shantabai further testified that, on the

fateful day, the appellant beat her up at 8.00 in the morning

and drove her out of the house. She, therefore, took shelter

at the house of her neighbour, Malu Patale. She even did

not take meals that day. She slept overnight at the house of

Malu. She further testified that, Malkappa went to sleep on

iron cot in front yard of her house. There was a fodder/

haystack belonging to Mulla. It was closed by the cot. Her

husband was little over 80 years of age. He was unable to

walk and even stand without support. She further testified

that, in the morning one Shiv Kumbhar visited Malu's house

and informed her of the incident. She, therefore, came to

her residence and noticed her husband to have been burnt.

She enquired with her daughter-in-law, who told her that the

appellant left the house after taking dinner. She was,

however, informed by Siraj and Malang that they had seen

the appellant igniting fire. She, therefore, went to the Police

Station and lodged the report.

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13. P.W.2 Shantabai was subjected to a searching

cross-examination. Some omissions in her F.I.R. were

sought to be brought on record. She testified that, she

disclosed to the police that her daughter-in-law informed her

that the appellant took dinner and left the house. The same

is not in the F.I.R.

14. Both P.W.3 Malang and P.W.4 Siraj, neighbours

of the appellant, testified that, having seen the flame, they

came out of their respective houses. They have seen the

appellant present at the scene. When both of them

enquired with him, the appellant fled.

Both of them were, however, subjected to a

searching cross-examination. They were confronted with

police statements. Close scrutiny of their evidence,

however, do not lead us to find them to have not been

present to observe the presence of the appellant at the

relevant time and on their enquiry, the appellant fled.

15. The evidence of rest of the witnesses is not of

much importance.

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16. In case of Sharad Sarda (supra), the Apex Court

observed :

"152. A close analysis of the decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned must or should and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in (Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, where the following observations were made :

"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) 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. Here is a case, wherein the 75 year old mother

of the appellant testified against her only son (appellant).

We find no reason to disbelieve her testimony. According to

her, the appellant was alcoholic. He would beat up her and

her husband. The appellant had even attempted to set his

father ablaze in the past, and on the morning of 2/4/2017,

the appellant had beaten her up. She had, therefore, taken

shelter at the residence of her neighbour. When the

appellant's father was in flame, both P.W.3 Malang and

P.W.4 Siraj, neighbours had come out of their respective

homes. They had seen the appellant present there. They

enquired with him. Instead of remaining at the crime scene

or make efforts to save his father, he ran away. This speaks

in volumes to corroborate the testimony of his mother.

During the investigation, the appellant made a disclosure

statement, pursuant to which a kerosene can was seized.

Although the recovery may not be relevant under Section

27 of the Evidence Act, the conduct of the appellant in

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making a disclosure statement and consequential recovery

is admissible as his conduct. There is nothing to suggest

the fire to have broke out accidentally. It is true that the

burden of proof is on the prosecution. The evidence of the

appellant's mother coupled with the evidence of prosecution

witnesses, besides the conduct of the appellant in fleeing

away from the spot and during investigation, making a

disclosure statement lead us to infer that it is the appellant

and none else who was responsible to the incident. We,

therefore, find no reason to interfere with the order

impugned herein. The appeal is thus liable to be dismissed.

Hence the same is dismissed.