Hariomdas S/O. Govinddas Bainade vs The State Of Maharashtra
2025 Latest Caselaw 6313 Bom

Bombay High Court

Hariomdas S/O. Govinddas Bainade vs The State Of Maharashtra on 1 October, 2025

Author: Nitin B. Suryawanshi

Bench: Nitin B. Suryawanshi

2025:BHC-AUG:27327-DB
                                                (1)
                                                                 criappeal-1253.2019.odt
                        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                   BENCH AT AURANGABAD

                              CRIMINAL APPEAL NO.1253 OF 2019


                 Hariomdas Govinddas Bainade
                 Age : 37 yrs, occ : labour
                 R/o Kathor Bazar, Tal. Bhokardan,
                 District Jalna.
                 At Present r/o Plot No. 18,
                 Marutinagar, Mayurpark,
                 Harsool, Aurangabad.                                   Appellant
                             Versus
                 The State of Maharashtra                               Respondent

                                                ...
                 Mr. S.G. Ladda, Advocate holding for Mr. Sagar S. Ladda,
                 Advocate for the appellant.
                 Mrs. Uma Bhosale, A.P.P. for respondent - State.
                                               ...

                                        CORAM : NITIN B. SURYAWANSHI AND
                                                      SANDIPKUMAR C. MORE, JJ.

Reserved on : 14.08.2025 Pronounced on: 01.10.2025

Judgment (Per Sandipkumar C. More, J.) :

1. By way of this appeal, the appellant Hariomdas

Govinddas Bainade i.e. the original sole accused, is

challenging his conviction recorded by the learned Additional

Sessions Judge, Aurangabad (hereinafter referred to as,

"learned trial Judge") for the offences punishable under

Sections 302 and 309 of the Indian Penal Code ("I.P.C." for

criappeal-1253.2019.odt short) in Sessions Case No. 26 of 2018, under judgment and

order dated 06.11.2019. Learned trial Judge has convicted

the appellant for the offence punishable under Section 302 of

I.P.C. and sentenced him to undergo imprisonment of life and

to pay fine of Rs. 1,000/- i/d to suffer rigorous imprisonment

for six months. The appellant is also convicted for the offence

punishable under Section 309 of I.P.C. whereby he is

sentenced to undergo rigorous imprisonment for two months

and to pay fine of Rs. 500/-, i/d to suffer rigorous

imprisonment for three months.

2. According to prosecution case, one Gendabai

Laxman Pawar i.e. PW-2 lodged report with Harsul Police

Station on 05.10.2017 alleging that she was residing in rented

premises at Marutinagar, Mayur Park, Harsool, Aurangabad.

Her younger daughter Kalpana got married with

appellant/accused in the year 2004 and gave birth to two

daughters and one son. Kalpana was residing with the

appellant and children in a rented premises of one Bakal i.e.

PW-7 at Marutinagar, Mayurpark. Appellant/accused was

Mason by profession, whereas Kalpana was Sweeper in Sai

Hospital. Appellant/accused used to suspect about chastity

of his wife. On that count he used to beat Kalpana frequently.

criappeal-1253.2019.odt

3. In the intervening night of 04.10.2017 and

05.10.2017 at about 2.00 a.m. informant Gendabai received

telephonic call from her grand daughter Netal i.e. daughter of

Kalpana and Netal told her that the appellant hit hammer on

the head of Kalpana and also tried to cut his own throat by

means of marble cutter machine. Netal further informed that

blood was oozing from the head injury of Kalpana and injury

sustained by the appellant. After receiving such information,

Gendabai immediately rushed to the spot of incident where

she saw her daughter Kalpana and son-in-law i.e. the

appellant/accused lying in injured condition on the bed. On

making enquiry with Netal, she told that on 04.10.2017 at

about 6.00 p.m. appellant returned home by finishing his

work. At the relevant time, Kalpana told the appellant that

she was to attend certain work by visiting Hedgewar Hospital

in early morning at about 6.00 a.m. On this count appellant

got angry and quarreled with Kalpana. He made telephonic

call to his brother and told him that Kalpana had destroyed

his matrimonial relations and he did not want to live.

Appellant then without having meal, went to sleep. However,

during the night Netal heard shout of victim, and therefore,

she, her sister and brother woke up from the sleep. The

quarrel between Kalpana and appellant was going on and

criappeal-1253.2019.odt appellant was holding iron hammer in his hand. Appellant

told Netal to keep her mouth shut. Blood was oozing from the

mouth, nose and head of Kalpana. Thereafter appellant took

marble cutting machine and made an attempt to cut his

throat. Eventually some part of throat of the appellant was

cut in that attempt. Meanwhile a call was received from

police on the mobile handset possessed by Netal and the

informant Gendabai went near Maruti temple and brought

police to the spot of incident. Police then immediately shifted

the victim and appellant to Ghati Hospital by calling

ambulance. However, Gendabai then learnt that her

daughter Kalpana died in Ghati Hospital.

4. On lodging report by Gendabai Pawar, Harsul

police station authorities registered Crime No. 123/2017

against the appellant for the offence punishable under

Sections 302 and 309 of I.P.C. P.S.I. Kailas Pawar (PW-9) took

over investigation of the said crime. During investigation he

prepared inquest panchnama, spot panchnama and referred

the dead body for postmortem. He also seized the hammer,

marble cutting machine, blood mixed soil, simple soil and one

blood stained bed sheet from the spot of incident. He also

seized clothes of deceased and clothes of appellant/accused.

criappeal-1253.2019.odt The seized articles were referred for chemical analysis and

statements of witnesses were also recorded. On completion of

investigation, appellant/accused was charge-sheeted for the

aforesaid offence.

5. Learned trial Judge, after committal of case,

conducted trial and convicted the appellant as mentioned

above. Appellant had come with defence of total denial and

his false implication at the hands of one Deelip Pawar i.e.

PW-6.

6. Learned counsel for the appellant/accused

submits that the trial Judge has definitely erred in

appreciating the evidence on record and by drawing inference,

convicted the appellant. According to him, the prosecution

has examined Netal i.e. daughter of deceased Kalpana as an

eye witness, but Netal (PW-5) has not supported the case of

prosecution. He pointed out that the only eye witness to the

incident has thus resiled from her statement, and therefore,

her confessional statement recorded by police under Section

164 of the Code of Criminal Procedure, cannot be read in

evidence. According to him, the learned trial Judge used the

same as evidence of the guilt of appellant by ignoring vital

provision of law that such statement is only having

criappeal-1253.2019.odt corroborative value and cannot be treated as evidence. He

pointed out that the landlord Devidas Bakal i.e. PW-7 has not

stated anything about the presence of Gendabai i.e. the

informant, PW-6 Deelip or PW-5 Netal on the spot of incident

when he visited the spot just after the incident. He made

specific reference to the statement made by A.S.I. Jadhav i.e.

PW-4, who had taken deceased and appellant to Ghati

Hospital.

7. Learned counsel for the appellant categorically

pointed out that A.S.I. Jadhav has stated that he received

information that one person had inflicted injuries on the

person of deceased Kalpana and appellant accused. He

further submitted that the alleged murder weapon hammer

was not shown to PW-10 Dr. Ganakwar who conducted

postmortem of the deceased. Further, according to the

learned counsel for the appellant, Dr. Ganakwar has also not

stated that the injuries sustained by deceased Kalpana was

not in ordinary course of time likely to cause death which is

necessary ingredient of the definition of murder. He further

pointed out that PW-11 Dr. Meghna, who had examined the

appellant, was not certain as to whether the injury sustained

by the appellant, was self inflicted. The cutter machine with

criappeal-1253.2019.odt which it was caused, was not shown to PW-11 Dr. Meghna

and the nature of injury sustained by the appellant was also

not disclosed. He pointed out that the prosecution suppressed

further treatment of the appellant and cause of his injury.

Thus, he submitted that merely on the basis of postmortem

examination, the learned trial Judge erroneously held that

the appellant committed murder of his wife.

8. Leaned counsel for the appellant further

submitted that the injury found on the head of Kalpana was

not possible by hammer. According to him, the learned trial

Judge erred in drawing inference that PW-5 Netal was tutored

and therefore she did not support the case of prosecution. He

further submitted that the informant Gendabai i.e. PW-2 has

deposed on the basis of information gathered from Netal, and

therefore, her evidence is only hearsay evidence which is not

admissible. Thus, while summing up, the learned counsel for

the appellant submited that the prosecution could not

eliminate all the possibilities to come at a conclusion that

there was no intervention of any third person. He also

pointed out certain contradictions in the evidence of PW-2

Gendabai and PW-6 Deelip, who are close relatives of the

deceased. Thus, he prayed for clear-cut acquittal of the

criappeal-1253.2019.odt appellant/accused since the eye witness did not support the

prosecution and the prosecution could not establish the chain

of circumstances against the appellant/accused. Lastly, he

submitted that no aid of Section 106 of Indian Evidence Act

can be taken for conviction of the appellant/accused. He

relied on the following judgments :

(i) Shankarlal Gyarasilal Dixit vs State of Maharashtra (1981) 2 Supreme Court Cases 35

(ii) Sharad Birdhichand Sarda vs State of Maharashtra (1984) 4 Supreme Court Cases 116

(iii) Shambhu Nath Mehra vs State of Ajmer 1956 SCC Online SC 27

(iv) Nagendra Sah vs State of Bihar, (2021) 10 SCC 725

(v) Murlidhar and others vs State of Rajasthan, (2005) 11 Supreme Court Cases 133

(vi) George and others vs State of Kerala and another (1998) 4 Supreme Court Cases 605

(vii) Guruvindapalli Anna Rao vs State of Andhra Pradesh 2003 SCC OnLine AP 1231

(viii) Sheo Raj vs State of UP, 19063 SCC OnLine All 123

(ix) Suo Moto Writ (Cri.) No. 1 of 2017 (Supreme Court)

(x) Purushottam Ishvar Amin vs Emperor, AIR 1921 Bom.3

(xi) State of Karnataka vs P. Ravikumar @ Ravi and others (2018) 9 Supreme Court Cases 614

(xii) Chandigarh Administration, Chandigarh vs Dharamsing 1985 Supp. Supreme Court Cases 266

(xiii) State of Punjab vs Pritam Singh; (1077) 4 SCC 56

criappeal-1253.2019.odt

(xiv) Koli Trikram Jivraj vs State of Gujrat; 1969 Cri LJ 409

9. On the contrary, learned A.P.P. supported the

conviction of appellant/accused under the impugned

judgment. According to her, the prosecution has definitely

established the chain of circumstances pointing towards guilt

of accused. According to her, as soon as Gendabai received

information of the crime, she immediately lodged the report.

Further, the inquest panchnama speaks about head injury

and postmortem conducted by PW-10 Dr. Ganakwar has also

supported the cause of death i.e. due to head injury. She

further pointed out that it would only the daughter of

deceased i.e. PW-5 Netal must have informed about the

incident to Gendabai, otherwise there was no chance of

getting knowledge in respect of incident at such odd hours, to

Gendabai. According to learned A.P.P., PW-2 and PW-6

namely Gendabai and Deelip have corroborated each other on

the point that they received information about the incident

from PW-5 Netal. Moreover, PW-4 A.S.I. Jadhav also stated

that call of information about the incident was also received

at control room. So far as scientific evidence is concerned,

she pointed out that human blood was found on all the

articles and specifically blood of deceased was found on towel

criappeal-1253.2019.odt seized from the spot. She further pointed out that human

blood was also found on the cutter machine leading towards

guilt of accused. She specifically pointed out that the defence

taken by appellant/accused is most improbable and there

was no intervention of third person as there was no

possibility of theft, since cupboard in the house remained

unopened. According to her, the attempt of appellant to

commit suicide by cutting his throat, itself indicates his guilty

mind and the appellant also failed to give plausible

explanation about the death of Kalpana taking place within

four walls of the house. She thus prayed for dismissal of the

appeal by maintaining conviction of the appellant. She also

relied on the following judgments.

(i) Vijaya Singh abnd another vs State of Uttarakhand 2024 SCC OnLine SC 3510

(ii) Balvir Singh vs State of Uttarakhand, AIR Online SC 836

10. Heard rival submissions. Perused documents on

record alongwith impugned judgment and citations. Also

perused the original record and proceeding of Sessions Case

No. 26 of 2018.

11. In short, the prosecution is contending that the

deceased i.e. Kalpana, wife of appellant, was sleeping in her

criappeal-1253.2019.odt house where appellant and her children were also present.

The appellant, on account of his suspicion regarding her

chastity, committed murder of his wife Kalpana by assaulting

her on head with an iron hammer and thereafter also

attempted to commit suicide by cutting his own throat with

the help of marble cutting machine.

12. It has been alleged by the prosecution that the

elder daughter of deceased and appellant by name Netal had

witnessed the incident. Though Netal (PW-5) has not

supported the case of prosecution and resiled from her earlier

statement, but according to learned counsel for the appellant,

the learned trial Judge treated her statement recorded under

Section 164 of the Code of Criminal Procedure (for short,

"Cr.P.C.") as substantive piece of evidence. He also relied on

the observation in the case of George vs State of Kerla, Sheo

Raj vs State of UP, Suo Moto Writ (Cri) Petition No. 1 of 2017

and Purushottam Ishwar Amin vs Emperor (supra). On going

through the aforesaid judgments carefully, it appears that

sum and substance of these judgments is that, a statement

recorded under Section 164 of Cr.P.C. cannot be a piece of

substantive evidence under the provisions of Indian Evidence

Act, but it is only to be used for corroboration or

criappeal-1253.2019.odt contradiction. On this background, if we peruse the

testimony of PW-5 Netal, it reveals that she has not supported

the prosecution case by stating that she did not witness the

incident at all. So far as her statement under Section 164 of

Cr.P.C. is concerned, it has come on record in her cross-

examination taken by the learned Prosecutor that she gone

through the said statement and admitted it to be true.

However, the cross-examination further indicates that there

was intervention of the advocate of appellant/accused and

thereafter she again stated that she did not recollect the

contents of her statement under Section 164 of Cr.P.C. It is to

be noted that by recording the conduct of PW-5 Netal, the

learned trial Judge made observation that she was actually

won over by the appellant/accused and thereafter her

statement under Section 164 of Cr.P.C. was exhibited at

Exh.68 after giving full opportunity of hearing to both sides.

Learned counsel for the appellant, thus, submitted that use

of statement recorded under Section 164 of Cr.P.C. is limited

only for corroboration and contradiction.

13. Though the learned counsel for the appellant

vehemently argued that how such statement cannot be used

as evidence, but after going through the entire judgment, we

criappeal-1253.2019.odt do not find anything that the learned trial Judge has

convicted the appellant by considering the statement recorded

under Section 164 of Cr.P.C. of PW-5 Netal as substantive

piece of evidence. On the contrary, learned trial Judge has

also observed that if the witness has not supported the

contents of her statement under Section 164 of Cr.P.C. then it

is only to be used for the purpose of corroboration and

contradiction. Therefore, the submission of learned counsel

for the appellant in respect of use of such statement wholly

unnecessary, since the learned trial Judge has not based his

conviction on this statement.

14. Admittedly, when the alleged eye witness has not

supported the case of prosecution, then the nature of case

changes to the case based on circumstantial evidence.

Learned counsel for the appellant relied on judgments in the

cases namely Shankarlal vs State of Maharashtra and Sharad

Sarda vs State of Maharashtra (supra). In the case of

Shankarlal, it has been observed that, "in a case of

circumstantial evidence, the circumstances on which the

prosecution relies must be consistent with the sole

hypothesis of the guilt of the accused. In the test as to

whether cumulative effect of the circumstances establishes

criappeal-1253.2019.odt the guilt of the accused beyond the "shadow of doubt", the

"shadow of doubt", even in the cases which depend on direct

evidence, is shadow of "reasonable" doubt. Secondly in its

practical application, the test which requires the exclusion of

other alternative hypotheses is far more rigorous than the

test of proof beyond reasonable doubt".

Moreover, in the case of Sharad Sarda, the Hon'ble

Apex Court has laid down five golden principles :

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

2. The facts so established should be consistent with the hypothesis of guilt and 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 a conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

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.

The aforesaid observations are not in dispute and

it is settled position that in cases resting solely on the

circumstantial evidence, the prosecution must establish a

complete chain of circumstances consistent only with the

criappeal-1253.2019.odt guilt of accused.

15. It has come in the evidence of PW-1 Dattatraya

Gawali, who is panch of the seizure of clothes of appellant/

accused and also a panch of the spot panchanama, that he

was called by Harsul police under a letter issued to his

Manager. Accordingly he alongwith other panch Samadhan

Patil went to Harsul Police Station and from there to Ghati

Hospital, Ward No.18 alongwith the police. Police then seized

ash coloured pant and one underwear from the person of the

appellant, who was admitted there. He has further deposed

that on the same day at about 3.30 to 4.00 p.m. they were

called by police at Mayur Park, Plot No.18, Maruti Nagar,

Harsul i.e. the place of residence of appellant and deceased.

He stated that complainant Gendabai i.e. the mother of

deceased was present there, who showed them the place of

incident which was situated at the ground floor hall. He

found a bed with pink coloured cover, stained with blood.

According to him, the police seized following articles at the

time of preparing spot panchnama (Exh.16):

1. Pink coloured bed cover with blood stains.

2. Faint green coloured towel having blood stains.

3. Faint yellow coloured pillow with blood stains.

criappeal-1253.2019.odt

4. One steel knife with plastic handle stained with blood.

5. Iron hammer with wooden handle, stained with blood.

6. Marble cutter machine with plastic handle stained with blood.

He further deposed that police then took ten

photographs of the spot which are at Article Nos.A to J and he

also identified the aforesaid articles seized from the spot in

open Court, being Article Nos.1 to 6. Nothing adverse to the

case of prosecution has been elicited in his cross-

examination. Thus, the seizure and condition of spot as

stated by this witness, cannot be doubted.

16. Further, the evidence of PW-3 Parvati Shantilal

Gaikwad, who is panch on the inquest panchnama of

deceased, indicates that on 05.10.2017 police had called her

to Ghati Hospital to inspect the dead body of deceased. She

found the deceased wearing red coloured top and brown

coloured legging, both soaked in blood. According to her,

there was head injury to the deceased and blood was oozing

from the said injury above the right ear. She also noticed

blood coming out from nose and mouth of the deceased and

there was swelling on her right wrist. She admitted the

contents of inquest panchnama which is at Exh.22. Though

criappeal-1253.2019.odt she admitted in the cross-examination that she and deceased

used to reside in the same locality and her family was on

visiting terms with the deceased family, but nothing adverse

to the case of prosecution has come on record in her cross-

examination.

17. Further, if the evidence of PW-7 Devidas Bhaurao

Bakal, the landlord of the appellant, is perused, then it is

evident that he had rented two rooms on first floor to

Gendabai on monthly rent of Rs. 3,000/- wherein deceased

and appellant were residing alongwith their children. This

fact is not seriously disputed by the appellant. This witness

has categorically stated that on 05.10.2017 at about 1.30 to

2.30 a.m. he heard someone shouting as "Bakal, Bakal" from

downstairs. When he went to gallery, he realized that police

were calling him. He further stated that when he went down

and entered the room of appellant, he saw appellant and his

wife lying unconscious on the bed and blood was spread in

the room. Thus, he alongwith police took both of them to

Ghati Hospital in Ambulance. Though he stated that

Gendabai told him that appellant killed her daughter, but he

has not witnessed the actual incident in respect of the alleged

criminal act of appellant. However, his evidence definitely

criappeal-1253.2019.odt indicates that the appellant and deceased were lying on the

bed in injured condition and there was blood spread in the

room. He also identified the photographs taken by police on

the spot of incident. Moreover, he also identified the

appellant in the court as son in law of Gendabai. Though the

evidence of this witness is not helpful in respect of the alleged

criminal act of the appellant, but at least it establishes the

fact that the appellant and deceased were found lying on the

spot of incident in injured condition.

18. On perusal of the evidence of PW-10 Dr. Amul

Garibdas Ganakwar i.e. the Medical Officer, who conducted

autopsy of deceased Kalpana, it is evident that when the

deceased was brought to him on 05.10.2017, he was working

in Mortuary as resident doctor in Government Hospital,

Aurangabad. He has stated that clothes of deceased

comprising red coloured Kurta, purple coloured bra, cream

coloured Pajama with white dots, purple coloured panty with

gray coloured panty used as sanitary pad were sealed and

handed over to Investigating Officer. According to him, there

were blood stains on Kurta, Pajama and bra at various places.

He found "C" shaped lacerated would over right fronto parieto

occipital region of size 18 cm x 3 cm. brain tissue deep on the

criappeal-1253.2019.odt person of deceased and brain matter was exposed. There was

under-scalp contusion of size 25 cm x 28 cm, dark red in

colour. He also observed depressed, displaced multiple

communited fractures on right fronto temporal occipital bone.

He found another injury in the form of contusion of size 3 cm

x 2 cm, red in colour over posterio medial aspect of left

forearm (upper one-third). Accordingly he has mentioned the

said injuries in column No.17 of the postmortem report which

is at Exh.64. He also found head injuries as mentioned in

column No.19 of the postmortem report. As such, he opined

that deceased died due to head injury which was caused by

hard and blunt object when hit hard. In the cross-

examination, he has specially denied the suggestions given on

behalf of the appellant that the injuries found on the person

of deceased were possible in ordinary course or by accident or

suicide or if a person running fast, fell on hard and sharp

object. He has opined that the injuries sustained by the

deceased, in ordinary course, were sufficient to cause death.

Thus, his evidence indicates that the deceased died due to

violent assault and not by any accidental fall.

19. Besides, there is evidence of PW-2 Gendabai Pawar

i.e. the mother of deceased, who had occasion to see Kalpana

criappeal-1253.2019.odt and the appellant in injured condition on the spot of incident.

Therefore, from the evidence of PW-1, PW-2, PW-3, PW-7 and

PW-10 Medical officer, it has been clearly established that

death of Kalpana was unnatural and not accidental or

suicidal.

20. It is alleged by the prosecution that the deceased

and the appellant were residing in a rented house where the

incident had taken place. Admittedly, the appellant was

Mason by profession and deceased used to work in Sai

Hospital. Further, it is the case of prosecution that the

appellant used to pick up quarrel on account of his suspicion

on the character of his wife Kalpana and on the day of

incident also when Kalpana told him that she searched the

work of Hegdewar Hospital and for that she was to go to the

said hospital early in the morning at 6.00 a.m. on the next

day, the appellant picked up quarrel with her and thereafter

in the intervening night of 04.10.2017 and 05.10.2017 at

about 1.30 a.m. the appellant committed murder of his wife

Kalpana by inflicting blow of iron hammer on her head and

then attempted to cut his own throat with marble cutter

machine. Therefore, we now have to see the circumstances

leading to the guilt of appellant/accused on the basis of the

criappeal-1253.2019.odt evidence on record.

21. It has come in the evidence of PW-2 Gendabai that

Kalpana was her younger daughter who got married with the

appellant in the year 2004 and they were having two

daughters and a son. Admittedly, the deceased was residing

with the appellant at Mayur Park, Harsul and the appellant

was doing mason work, whereas deceased was Sweeper in the

hospital. PW-2 Gendabai has stated that there were strained

relations between deceased Kalpana and appellant since the

appellant was suspecting about her chastity and also used to

harass her. This witness has stated that she tried to convince

her daughter that one day there will be improvement in the

behaviour of appellant towards her. She has specifically

stated that the incident took place on 05.10.2017 and at

about 1.30 a.m. she received call from her grand-daughter

Netal i.e. PW-5 who informed her that the appellant assaulted

Kalpana with hammer on her head. Accordingly, she rushed

to the spot of incident and noticed that Kalpana had received

head injury and blood was oozing from it and also from her

nose and mouth. According to her, Netal further told her that

the appellant suspected the character of Kalpana and

assaulted her with hammer. Thereafter police van came to

criappeal-1253.2019.odt the spot of incident and they took Kalpana and appellant in

the Ambulance to Ghati Hospital. It is also mentioned in her

evidence that the appellant himself cut his throat by means of

marble cutter machine. Thereafter it is stated by her that the

victim died in hospital and she then lodged report of the

incident on 05.10.2017 as per Exh.18. She also stated that

Special Judicial Magistrate recorded her statement under

Section 164 of Cr.P.C. as per Exh.19.

22. Though PW-2 Gendabai had not witnessed the

actual incident, but her evidence has established the fact that

the appellant and deceased Kalpana were there in the house

together and that the fact of suspecting character of Kalpana

by the appellant. It is to be noted that this witness in her

cross-examination has denied the suggestions given by

defence counsel that on the day of incident the appellant,

after consuming medicinal tablets had become unconscious

and Kalpana herself inflicted blow of hammer and fell down.

Further, it was also suggested that she alongwith her son

Deelip had demanded amount from the appellant and on non

payment of the same, they filed false case against him, to

which she denied. Thus, the evidence of this witness is not

shattered during the searching cross-examination. No

criappeal-1253.2019.odt material omission or contradiction is there in her cross-

examination to discredit her version.

23. PW-4 Namdeo Jadhav is the witness who was on

patrolling duty on Mobile van from 09.00 p.m. of 04.10.2017

to 09.00 a.m. of 05.10.2017. As per his evidence, on receiving

information he visited the spot of incident, took injured

Kalpana and appellant from the spot of incident to Ghati

Hospital in Ambulance van. There is nothing doubtful in the

evidence of this witness as his evidence corroborates with the

fact that the deceased Kalpana and accused were lying in the

injured condition on the spot of incident. Further, the

evidence of PW-6 Deelip Pawar, who is brother of deceased

Kalpana, indicates that Kalpana and the appellant were

residing at Mayur Park, Harsul, Aurangabad at the relevant

time and the appellant was doing work of installation of floor,

whereas Kalpana was doing job in the hospital. It has come

on record in his evidence that the appellant was suspecting

the character of Kalpana and used to beat her on that count.

Further, it has also come on record that there were two lanes

between his house and the house of Kalpana and appellant.

According to him, Netal made telephonic call to him and told

that the appellant inflicted blow of hammer on the head of

criappeal-1253.2019.odt Kalpana resulting bleeding injury to her head. He also learnt

that the victim was lying on the bed and appellant also tried

to cut his throat. He stated that after the incident all the

children of Kalpana and appellant were residing with the

brother of appellant.

24. Though PW-2 Gendabai and PW-6 Deelip had not

witnessed the incident, but their evidence is consistent on the

point that they came to know about the actual incident from

PW-5 Netal. Further, despite searching cross-examination, no

vital admissions are elicited which could shatter the case of

prosecution. On the contrary, it has come on record during

the evidence of these witnesses that Kalpana was found in

her own house with the appellant and both were in injured

condition, especially Kalpana was having head injury, which

according to PW-10 Dr. Ghanakwar, was possible by hard and

blunt object. Thus, it has been already established that

death of Kalpana took place in suspicious condition.

Prosecution is claiming that the appellant, by doubting the

character of Kalpana, assaulted her with iron hammer and

inflicted its blow on her head resulting into her death. The

spot panchnama (Exh.16) is indicative of the fact that

Kalpana had sustained head injury and was lying on the bed

criappeal-1253.2019.odt after the incident in pool of blood. It is extremely important

to note that PW-1 Dattatraya Gawali i.e. panch of spot

panchnama has established the fact that one iron hammer

with wooden handle stained with blood was seized from the

spot of incident. According to him, one marble cutter

machine with plastic handle which was also stained with

blood, was seized. It is to be noted that the appellant has not

disputed his job of Mason, and therefore, presence of these

articles in his house, cannot be said unnatural. Further, the

evidence of Dr. Amul Ganakwar i.e. PW-10 is also supportive

to the fact that the injury sustained by Kalpana on her head

was possible due to hard and blunt object. As such, iron

hammer found on the spot of incident is definitely hard and

blunt object which could cause head injury to Kalpana.

Though the learned counsel for the appellant raised objection

that "C" shaped injury was not possible by the hammer seized

from the spot, however no such suggestion was given to the

Medical Officer PW-10 Dr. Ganakwar as to whether the injury,

specially "C" shaped injury, was not possible by the hammer

at Article No.5. Therefore, such objection on the part of the

appellant has no force. It is to be noted that human blood

has been found on the iron hammer suggestive of the fact

that the appellant must have given blow of the said hammer

criappeal-1253.2019.odt on the head of deceased.

25. Learned A.P.P. argued that when the death in the

instant case had taken place within four walls of the house

occupied by deceased and the appellant, then as per Section

106 of the Indian Evidence Act, the appellant/accused is

under obligation to give proper explanation in what

circumstances the deceased had sustained such fatal injury.

For that purpose she relied on the judgment of of the Hon'ble

Apex Court in the case of Balvir Singh vs State of Uttarkhand

(supra) wherein it is held that, " until a prima facie case is

established by the prosecution, the onus does not shift to the

accused. If the accused does not give any explanation or gives

a false or unacceptable explanation, that by itself will a

circumstance against the accused and it would then be an

additional link that completes the chain of circumstantial

evidence". As against this, the learned counsel for the

appellant has relied on the judgments of the Hon'ble Apex

Court discussing the scope of Section 106 of the Evidence

Act.

26. In the case of Shambhunath Mehra vs State of

Ajmer (supra) it is observed that, " purpose of Section 106 is

only for exceptional situations where facts are especially

criappeal-1253.2019.odt within the knowledge of the accused and it cannot override

the settled rule that the burden of proving guilt is always on

the prosecution except in very exceptional cases ". In the case

of Nagendra Shah vs State of Bihar (supra) the Hon'ble Apex

Court observed that, "Section 106 of Indian Evidence Act

applies only where the prosecution has first established facts

from which a reasonable inference can be drawn about the

existence of certain other facts lying within the special

knowledge of the accused. If the accused fails to offer a

proper explanation, the Court may draw an adverse inference.

In cases based on circumstantial evidence, such failure of the

accused may provide an additional link in the chain of

circumstances, but if the prosecution has not established a

complete chain, silence of accused or falsity of defence cannot

by itself justify the conviction".

27. Further, in the case of Murlidhar vs State of

Rajasthan (supra) it has been held that, "burden of proving

guilt always lies on the prosecution. Section 106 of Evidence

Act does not dilute or shift this obligation. It merely

supplements it in certain limited situations" . It is further

observed that, "High Court wrongly relied on Section 106

since the prosecution case was not built on the facts

criappeal-1253.2019.odt exclusively within the knowledge of accused but rather on the

testimony of eye witnesses. Therefore, the principle under

Section 106 of Indian Evidence Act was inapplicable to the

facts of the case". Thus, the learned counsel for the

appellant, by relying on the aforesaid observations of the

Hon'ble Apex Court, submitted that in the instant case also

the burden never shifted to accused, and therefore, aid of

Section 106 of Indian Evidence Act cannot be taken, since the

prosecution has failed to establish the complete chain.

28. The evidence on record in this case indicates that

the appellant and deceased were in the house where the

incident took place. It is settled that part of the evidence of

hostile witness can be considered if found beneficial to the

prosecution. Even if we go by the theory put up by PW-5

Netal, who did not support the prosecution in her cross-

examination on behalf of the appellant/accused, then also it

is evident that she had stated, that after arrival of appellant

in the night of 04.10.2017 in their house her mother Kalpana

i.e. the deceased, after having meal, dropped Netal alongwith

her brother and sister at the house of her maternal uncle i.e.

PW-6 Deelip and returned back to their house i.e. the place

where the incident had taken place. The other witnesses

criappeal-1253.2019.odt namely PW-2 Gendabai and PW-6 Deelip have already stated

that the appellant was there on the spot of incident where

Kalpana was found in injured condition. Thus, it has been

clearly established by the prosecution that at the time of

incident appellant and deceased Kalpana were present in the

house. Under such circumstances and in view of the

observation of the Hon'ble Apex Court in the case of Balvir

Singh (supra), the appellant is under obligation to offer

plausible explanation as to how the deceased Kalpana

sustained fatal injury to her head.

29. Let us consider the defence of the appellant/

accused to ascertain whether the appellant has succeeded in

giving such acceptable explanation which absolves him from

the crime. On perusal of cross-examination of PW-2 it has

come on record that that defence counsel had suggested her

that on the day of incident appellant / accused consumed

medicinal tablets, fell down and became unconscious and

thereafter victim herself inflicted the injury to her head by

hammer and she fell down. Such type of defence is highly

improbable considering the fact that how the victim was able

to inflict such severe blow of hammer on her own head which

led to her death. Further, the appellant had also taken

criappeal-1253.2019.odt defence as reflected from his statement under Section 313 of

Cr.P.C. that when he took the medicine, his wife went to the

house of Krishna i.e. the son of Deelip and thereafter he

heard noise of uplifting glass on the ground. Somebody

entered in his house and hit the glass on his throat and

caused injury to his throat. Thereafter he fell down and

received injury on his forearm. He claimed that he did not

know anything what happened to his wife. By any stretch of

imagination such type of defence cannot be digested, specially

when both appellant and deceased Kalpana were found in

injured condition on the spot of incident by prosecution

witnesses. Even if it is presumed that some intruder might

have entered in their house,but that must be with an

intention of theft. However, nothing is there on record to

indicate that somebody had committed theft of articles kept

in their house, especially in cupboard. As such, it can be

said that the appellant has definitely failed to give acceptable

explanation as to how his wife received head injury leading to

her death. Thus, in view of the observation in the case of

Balvir Singh (supra), failure of accused to give plausible

explanation about the aforesaid circumstance itself is an

additional link against him in the chain of circumstantial

evidence.

(SANDIPKUMAR C. MORE)                (NITIN B. SURYAWANSHI)
       JUDGE                                 JUDGE




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