Bombay High Court

Baban Laxman Garde vs The State Of Mah.Thr.Pso Yavatmal on 7 October, 2025

2025:BHC-NAG:10306-DB

                                                  1               CRI. APEAL.115-2006.JUDGMENT.odt




                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  NAGPUR BENCH : NAGPUR

                                CRIMINAL APPEAL NO. 115 OF 2006


                        Baban s/o Laxman Garde,
                        Aged 32 Years,
                        R/o. Jalaram Baba Ward, Pusad,
                        Tq. Pusad, Dist. Yavatmal.                  APPELLANT

                          Versus

                        The State of Maharashtra,
                        Thr. P.I. Police Station, Pusad City,
                        Dist. Yavatmal.                             RESPONDENT

                 -----------------------------------------------
                 Mr. V.R. Thote, Advocate for the Appellant.
                 Mr. N.B. Jawade, APP for the Respondent/State.
                 -----------------------------------------------


                            CORAM                     : URMILA JOSHI PHALKE AND
                                                        NANDESH S. DESHPANDE, JJ.

                            RESERVED ON               :   26th SEPTEMBER, 2025.
                            PRONOUNCED ON :               07th OCTOBER 2025.

                 ORAL JUDGMENT :- (PER : URMILA JOSHI PHALKE, J.)

1. This Appeal is directed against the judgment and

order of sentence passed in Sessions Trial No.60/2003 dated

20.01.2006 by Additional Sessions Judge, Pusad convicting the 2 CRI. APEAL.115-2006.JUDGMENT.odt

accused Baban Laxman Garde of the offence punishable under

Section 302 of the Indian Penal Code and sentenced to suffer

imprisonment for life and to pay fine of Rs.5,000/- in default to

suffer rigorous imprisonment for six months.

2. Brief facts of the prosecution case emerges from the

Police papers and recorded evidence are as under:

2(i). Deceased Sudha was daughter of Informant

Shakuntala Gangaram Chavan. Her marriage was performed

with the present accused prior to one and half year of the

incident and she begotten a daughter. The couple was residing

at Pusad, whereas the parental home of the deceased is at

Village Hingni which is few KM from Pusad. Deceased used to

visit her parents house frequently. Prior to the incident during

Diwali she visited her mother's place and disclosed that the

accused is raising disputes frequently with her, beat her at the

instigation of one Surekha with whom he is having extra marital

relations. The accused also visited the house of Informant after

Diwali to fetch the deceased, at the relevant time, Informant has

given understanding to him and he told that he would behave

properly with the deceased. Thereafter the Informant has visited

3 CRI. APEAL.115-2006.JUDGMENT.odt

the matrimonial house of her daughter but she could not talk

with her daughter since the accused has not allowed to do so.

Thereafter, after one month the accused committed murder of

her daughter by strangulating her with the help of rope. The

Informant was informed by one Dilip. She immediately rushed

to the house of the accused and seen the dead body of the

deceased which was kept on the bed. She noticed wheel marks

of the rope around her neck and some injuries on her palm.

Thereafter, she lodged the report. On the basis of the said

report, Police have registered the crime against the present

accused.

2(ii). After registration of the crime wheels of the

investigation started rotating. During investigation the

Investigating Officer has drawn Inquest panchnama and dead

body was referred for Post Mortem examination. He has also

carried out the Spot panchnama and arrested the accused. On

the basis of the Memorandum statement of the accused, the

incriminating article rope was seized. The statements of various

witnesses were recorded and after completion of the

investigation, charge-sheet was filed against the accused.

4 CRI. APEAL.115-2006.JUDGMENT.odt

2(iii). As the offence registered under Section 302 of the

IPC, which is exclusively triable by the Court of Sessions,

learned Magistrate committed the case to the Court of Sessions.

The charge was framed against the accused vide Exh.8. The

contents of the charge were read over to the accused. He

pleaded not guilty and claimed to be tried. In support of the

prosecution case, the prosecution has examined in all 8

witnesses, as follows:

(i) PW-1 Shakuntala Gangaram Exh.19 Mother of the Chavan deceased and the Informant.


      (ii)   PW-2 Kantabai      Prabhakar Exh.22 Panch on Inquest
                  Zamre

     (iii)   PW-3 Datta Piraji Patange    Exh.36 Panch              on
                                                 Memorandum
                                                 statement          of
                                                 accused,    discovery
                                                 panchanama, seizure
                                                 of the clothes of the
                                                 deceased, spot panc
                                                 etc.


     (iv)    PW-4 Pandurang s/o Dattarao Exh.42 Relative             of       the
                  Tekade                        deceased.


      (v)    PW-5 Surekha                 Exh.43
                  Chandrashekhar
                  Kasture

     (vi)    PW-6 Lata w/o Arun Garde     Exh.47
                                 5                 CRI. APEAL.115-2006.JUDGMENT.odt




    (vii) PW-7 Dilip Niwrutti Jadhao     Exh.48

(viii) PW-8 Motilal s/o Ramji Shere Exh.53 Investigating Officer.

2(iv). Besides the oral evidence, the prosecution placed

reliance on Oral report-Exh.20, FIR-Exh. 21, Inquest

panchnama-Exh.23, CA report-Exh.24, Seizure memo-Exh.37,

Spot panchnama-Exh.38, Arrest panchnama-Exh.39, PM

notes-Exh.44, Requisition to Medical Officer-Exh.51,

Map-Exh.57, Memorandum statement of accused-Exh.58,

Recovery panchnama-Exh.59 and Requisition to CA-Exh.60.

2(v). After recording the evidence, the incriminating

evidence is put to the accused for seeking his explanation by

recording his statement under Section 313 of Cr.P.C. The

defence of the accused is of a total denial and alibi. As per the

defence of the accused he was not at home on the earlier night

of the incident. The learned Sessions Judge appreciated the

evidence and held the accused guilty and sentenced him as

aforestated. Being aggrieved and dissatisfied with the same, the

present Appeal is preferred by the accused on the ground that

there is no evidence against him to show that he has caused the

death of the deceased. In fact, he was not at home at the 6 CRI. APEAL.115-2006.JUDGMENT.odt

relevant time time. The learned Trial Court has ignored the

evidence of PW-7/Dilip Jadhao. The prosecution miserably

failed to prove the chain of circumstances on which the

prosecution placed reliance on.

3. Heard Mr. Thote, learned Counsel for the accused.

He reiterated that the accused was not at home. The

ill-treatment at the hands of the accused is not proved as the

evidence of PW-1/Shakuntala the mother and PW-4/Pandurang

who is the relative of the deceased, nowhere establishes that the

deceased was illtreated by the accused. The allegations made by

PW-1/Shakuntala and PW-4/Pandurang are vague in nature and

no specific instances are stated by them. The evidence regarding

ill-treatment by the accused is not proved. The evidence

adduced by the prosecution is also not sufficient to prove the

homicidal death of the deceased. The specific defence of the

accused that he was not at home is not considered by the Trial

Court. Thus, the prosecution failed to prove the charges against

the accused.

4. On the other hand, Mr. Jawade, learned APP

submitted that, the evidence of PW-1/Shakuntala and 7 CRI. APEAL.115-2006.JUDGMENT.odt

PW-4/Pandurang who are the mother and relative of the

deceased categorically stated that, the deceased was illtreated

as accused was having illicit relations with PW-5/Surekha. The

death of the deceased is caused due to strangulation. The

accused, deceased and their minor daughter were residing in

the house. There is no cross-examination on record to show that

there was any possibility of committal of murder by any third

person as no such circumstances are brought on record. The

accused has not offered any explanation to show that there is

possibility of any third person entered in the house and

committed murder of the deceased. On the contrary, the alleged

incident has taken place inside the house. In view of Section

106 of the Indian Evidence Act, burden is on the accused to

establish the facts which are within his special knowledge. In

view of that, the Appeal being devoid of merits liable to be

dismissed.

5. After hearing both the sides and after perusal of the

evidence, the first and foremost question which arises for

consideration is that, whether the prosecution succeeded to

prove the charge against the accused on the basis of 8 CRI. APEAL.115-2006.JUDGMENT.odt

circumstantial evidence. To prove the homicidal death of the

deceased, the prosecution mainly placed reliance on the PM

report. Admittedly, the Medical Officer is not examined by the

prosecution. The PM report is admitted by the defence which is

at Exh.44. On perusal of the PM report it reveals that, the body

is decomposed and Medical Officer observed that fracture of

Hyoid bone. The features observed by the Medical Officer are

swollen face, abdomen fluid oozing foul smell and peeling of

skin. In column Nos.18 and 20, again the Medical Officer

observed that, Hyoid bone was fractured and opined that the

deceased may have died due to asphyxia due to strangulation.

6. The evidence of PW-1/Shakuntala Chavan also

shows that when she seen the deceased she has witnessed the

marks on the neck of the deceased. Though she is

cross-examined, however her evidence as to the marks of the

injuries observed by her on the neck of the deceased remained

unchallenged. There is absolutely no cross as far as the injuries

of the deceased are concerned.

7. PW-2/Kantabai Zamre is examined as a Panch on

Inquest Panchnama. Her evidence also shows that she had seen 9 CRI. APEAL.115-2006.JUDGMENT.odt

the dead body of the deceased in presence of the Police and

marks around her throat and injuries on the palm are noted.

The Inquest panchnama also shows that an oval shaped

contusion mark is visible on the portion of the throat of the

deceased resembling to the mark resulted due to strangulation

with the rope. An injury resembling to the slight abrasion is

visible on the right palm. The Inquest panchnama further

discloses that, there is oval shaped ligature mark to the extent of

7 inches on the throat portion of the deceased extending from

the portion below her left ear up to the portion below her right

ear, resembling to the mark resulted due to strangulating it by

the rope and it is measuring about 1/2 inch in width. There is a

small injury resembling on the right palm. Though PW-2/

Kantabai Zamre has not stated the details about the injury but

she has stated that she has noted the injuries on the person of

the deceased. Admittedly, the dead body of the deceased is

found in her matrimonial home. The evidence of

PW-1/Shakuntala, PW-2/Kantabai and recitals of the

panchnama shows that witnesses have noted the injuries on her

person and the defence has not challenged the said evidence. It

corroborates the finding of the Medical Officer that the death of 10 CRI. APEAL.115-2006.JUDGMENT.odt

the deceased is probably due to strangulation. The defence of

the accused is that he was not at home at the relevant time.

8. As per the medical jurisprudence, there are

differences between hanging and strangulation which have been

highlighted in Modi's Medical Jurisprudence and Toxicology.

9. As per the medical jurisprudence the differences

between hanging and strangulation is as follows:

     Hanging                          Strangulation

 1   Suicidal usually.                Homicidal usually.

 2   No signs of struggle.            Signs of struggle.

 3   Ligature found in position,      Ligature may not be with the
     above thyroid cartilage, mark    body but when found, usually

incomplete, directed obliquely completely encircles the neck upward with a gap indicating horizontally below thyroid position of the knot with no cartilage. There may be more damage to the skin in the gap. than one turn of ligature and there is always some damage to skin underneath.

4 Abrasions and bruises around Abrasions and bruises around ligature mark rare. ligature mark common.

5 Dissection of ligature mark Dissection of ligature mark reveals a dry and glistening reveals ecchymosed white band of subcutaneous subcutaneous tissue. tissue

6 Neck usually stretched. Neck not stretched.

11 CRI. APEAL.115-2006.JUDGMENT.odt

7 Fracture of hyoid rare. Fracture of hyoid not rate in throttling cases (in the aged).

8 Fracture of laryngeal cartilages Fracture of laryngeal cartilages and tracheal rings rare. and tracheal rings common.


 9    Injury to carotid arteries in      Injury to       carotid        arteries
      cases with a long drop.            common.

10 Injury to muscles of neck rare.       Injury to    muscles        of     neck
                                         common.

11 Fracture dislocation of cervical      Fracture dislocation of cervical
   vertebrae common in judicial          vertebrae rare.
   hanging.

12 Saliva running out of the angle       Saliva may not have escaped
   of the mouth vertically down          from mouth but if so, usually
   along the neck and front of           blood tinged and may not be
   chest and abdomen.                    vertically down.

13 External signs of asphyxia may        External signs of asphyxia
   not be well marked when death         usually well marked because of
   is due to any cause other than        considerable violence that is
   asphyxia.                             commonly employed.

14 Face usually pale.                    Face congested and                 with
                                         pronounced petechiae.

15 Bleeding from nose and mouth          Bleeding from nose and mouth
   very rare.                            common.

10. Thus, as far as the cause of death of the deceased is

concerned, there is no doubt that the death of the deceased is

caused by strangulation and no other possibility is brought on

record.

11. Admittedly, the entire case of the prosecution is 12 CRI. APEAL.115-2006.JUDGMENT.odt

based on the circumstantial evidence. The law is settled

regarding the circumstantial evidence which are as under:

"(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.

(ii) Though circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused.

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

(iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of a guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence."

12. Accordingly, to Sir Alfred Wills in his admirable

book "Wills' Circumstantial Evidence" (Chapter VI) lays down

the following rules specially to be observed in case of

circumstantial evidence which are as under :

13 CRI. APEAL.115-2006.JUDGMENT.odt

(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum of probandum;

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."

13. In the present case, the prosecution mainly relied

upon the circumstances that:

(i) The deceased, accused and their minor

daughter where residing at Pusad and no other

person was residing alongwith them.

(ii) The accused was harassing the deceased as he

was having illicit relations with other woman.

(iii) As per the prosecution case, prior to the

incident the deceased has informed to 14 CRI. APEAL.115-2006.JUDGMENT.odt

PW-1/Shakuntala the mother and PW-4/Pandurang

who was the relative about her harassment at the

hands of the accused.

(iv) The death of the deceased is occurred in a

matrimonial home and till decomposition of body

the accused has not informed anybody.

(v) Though PW-7/Dilip Jadhao has stated that he

has sent the accused in forest to collect the wood a

night before the incident and the defence of the

accused is of alibi but considering the observation

on the PM report that the body was decomposed.

The death was not occurred on the earlier night but

prior to that.

(iv) The PM report shows that the death of the

deceased occurred within 6 hours of a meal.

(vii) The accused failed to explain the

circumstances in which the death of the deceased

occurred when the dead body of the deceased was

found in the house.

14. To prove the alleged circumstances regarding the 15 CRI. APEAL.115-2006.JUDGMENT.odt

ill-treatment at the hands of the accused and in-laws the implicit

reliance was placed on the evidence of PW-1/Shakuntala

Chavan who is the mother of the deceased. She testified that

her daughter had been to the house at the time of Diwali and

disclosed her about the harassment at the hands of the accused

on account of having illicit relations with one woman. Her

evidence further shows that, after Diwali she visited the house

of the accused but the accused has not allowed her to meet the

deceased and thereafter the death of the deceased was

occurred. She received the information as to the death of the

deceased on 28.01.2003 at about 11.30 in the morning. Her

evidence further shows that, after receipt of the information she

rushed to the house of the accused. The dead body of the

deceased was kept. She noted the injuries around the neck of

the deceased and she stated that the accused has committed the

murder of the deceased.

15. Similar is the evidence of PW-4/Pandurang Tekade

who is the relative of the deceased who also testified that at the

time of Diwali deceased had been to the house of the mother.

He has invited her to his house and deceased started weeping.

16 CRI. APEAL.115-2006.JUDGMENT.odt

On enquiry she disclosed that the accused assaults her and beat

her as he is having relations with one Surekha. The accused had

been to the house of his mother-in-law after Diwali to take the

deceased back. He advised the accused not to assault the

deceased and accused undertook fair treatment to her. After two

and half months after Diwali the death of the deceased was

occurred. He noticed impression mark of rope around her neck.

16. The cross-examination of PW-1/Shakuntala shows

that the accused was a daily wager and was working wherever

work is available. Though it is suggested that she has not stated

in her oral report that the accused beat her daughter at the

instance of Surekha but in fact the said facts are appearing in

the report. The omission that the accused did not allow her to

talk with her daughter is not stated by her but this omission is

not put to the Investigating Officer and not proved. She

admitted that, the deceased resided with the accused till the

alleged incident has taken place. There were no talks between

her and the accused before filing of the report. As per the

defence of the accused, as he denied to perform the marriage

with the another girl of the Informant, the false report is lodged 17 CRI. APEAL.115-2006.JUDGMENT.odt

against him.

17. PW-4/Pandurang is also cross-examined, who stated

that, he made enquiry about the death of the deceased with

accused as he suspected the cause of the death. He admits that,

he did not call meeting of villagers to solve the dispute between

the deceased and the accused. He also admits that, he has not

made any enquiry about Sudha after she resumed cohabitation

with the accused. It further came in his evidence that, he has

having love and affection for deceased and her mother. Except

this cross-examination, nothing incriminating is brought on

record.

18. As already observed that, PW-2/Kantabai Zamre

who acted as a Panch on Inquest panchnama also narrated

about the injuries on the person of the deceased. PW-3/Datta

Patange who acted as a Panch on the Memorandum statement

of the accused and discovery of place where the rope was

concealed but he has not supported the prosecution case.

PW-5/Surekha Kasture with whom the accused allegedly had

extra marital relation is not useful for the prosecution.

PW-6/Lata Garde who is the sister-in-law of the accused, has 18 CRI. APEAL.115-2006.JUDGMENT.odt

also not stated anything which is incriminating against the

accused. PW-7/Dilip Jadhao has also not supported the

prosecution case. During his cross-examination it is brought on

record that, he has sent the accused in forest to collect the wood

a night before the incident. PW-8/Motilal Shere the

Investigating Officer who has narrated about the investigation

carried out by him. His evidence shows that during the course of

investigation it revealed that the accused had extra marital

relations with one Surekha. The deceased had seen the accused

while communicating with Surkha on the day of incident and on

that count there was quarrel between them and the accused had

committed the murder of the deceased.

19. The learned Counsel for the accused, vehemently

submitted that the evidence of PW-7/Dilip Jadhao shows that,

he was not at home. The evidence of PW-1/Shakuntala and

PW-4/Pandurang are also not sufficient to show any harassment

at the hands of the accused. The case is based on the

circumstantial evidence and the chain of the circumstances are

not established.

20. In support of his contention he placed reliance on 19 CRI. APEAL.115-2006.JUDGMENT.odt

Jose Alias Pappachan Vs. Sub-Inspector of Police, Koyilandy and

Anr., reported in (2016) 10 SCC 519 , wherein in para 56 the

Hon'ble Apex Court has observed as under:

"it is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true." In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touchstone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted."

21. He further placed reliance on Munikrishna alias

Krishna etc. Vs. State by Ulsoor PS, reported in 2022 SCC

OnLine SC 1449, wherein the Hon'ble Apex Court has observed

that, in a case of circumstantial evidence, the Court has to

scrutinize each and every circumstantial possibility, which is

placed before it in the form of an evidence and the evidence

must point towards only one conclusion, which is the guilt of 20 CRI. APEAL.115-2006.JUDGMENT.odt

the accused.

22. He further placed reliance on Shivaji Chintappa

Patil Vs. State of Maharashtra, reported in (2021) 5 SCC 626 ,

wherein Hon'ble Apex Court has observed that, Section 106 of

the Evidence Act does not directly operate against either a

husband or wife staying under same roof and being last person

seen with deceased. Section 106 of the Evidence Act, does not

absolve prosecution of discharging its primary burden of

proving prosecution case beyond reasonable doubt. It is only

when prosecution has led evidence which, if believed, will

sustain a conviction, or which makes out a prima facie case, that

question arises of considering facts of which burden of proof

would lie upon accused.

23. Learned APP submitted that, the evidence on record

shows that the marriage of the deceased and accused had taken

place one and half year prior to the incident. The evidence of

PW-1/Shakuntala the mother and PW-4/Pandurang, discloses

that the deceased was illtreated on account of accused having

relationship with another lady. The death of the deceased was

occurred when she was residing with the accused and no other 21 CRI. APEAL.115-2006.JUDGMENT.odt

third person was residing with them. The dead body of the

deceased was found in a decomposed condition and in that light

the defence of the accused that he was not at home at earlier

night, and therefore, he was not aware as to the cause of the

death is a false defence as the condition of the dead body shows

the death was occurred prior to 48 hours. In support of his

contention, he placed reliance on the decision of the Hon'ble

Apex Court in the case of Trimukh Maroti Kirkan Vs. State of

Maharashtra, reported in (2006) 10 SCC 681.

24. On appreciation of the evidence there is no dispute

that the death of the deceased is caused in her matrimonial

home. The evidence of PW-1/Shakuntala and PW-4/Pandurang

shows that she was illtreated by the accused which is disclosed

by her to that when she had been to the house of the mother for

Diwali festival. The defence of the accused is that he was not at

home on the earlier night. The defence of the accused is to be

considered in the light that the dead body was in a decomposed

condition. As per the medical jurisprudence the process of

decomposition starts in 12 to 18 hours in summer and 1 to 2

days in winter. Emission of foul smell from body occurs in 24 to 22 CRI. APEAL.115-2006.JUDGMENT.odt

48 hours. Peeling of the skin occurs in 36 to 48 hours.

25. The PM report shows that foul smell was there, skin

started peeling of it means that the death of the deceased was

occurred prior to 18 hours of the PM report, and therefore, the

defence of the accused that he was not at home on the earlier

night is not helpful to him. The PM report further shows that,

the death occurred within 6 hours after last meal. The conduct

of the accused that he has not informed anybody even accepting

that he left the house in the earlier night. Admittedly, at the

relevant time, the deceased and the accused were only residing

in the house. There is no evidence of possibility of any third

person entered in the house and caused the death of the

deceased. The possibility of any third person entered in the

house and committed murder is also ruled out in the present

case. As already observed that, the defence raised by the

accused is not supported by any material, therefore it would be

relevant at this juncture to examine some provisions of the

Evidence Act governing burden of proof and some legal

principles.

26. Section 106 of the Evidence Act provides that, when 23 CRI. APEAL.115-2006.JUDGMENT.odt

any fact is especially within the knowledge of any person, the

burden of proving that fact is upon him. This is an exception to

the general rule contended in Section 101 that, the burden is on

the person who asserts a fact. The principle underlined in

Section 106 of the Evidence Act, which is an exception to the

general rule governing the burden of proof applies only to such

matters defence which are supposed to be especially within the

knowledge of the opposite party.

27. In the case of Kalu alias Laxminarayan Vs. State of

Madhya Pradesh, reported in (2019) 10 SCC 211 , wherein it is

held as under:

"the prosecution has been able to successfully establish a case for a homicidal death inside the house where the deceased resided with the appellant alone. Manner in which the deceased met a homicidal death in the matrimonial home, was a fact specifically and exclusive to his knowledge. It was not the case of appellant that there had been an intruder in the house at night. Once the prosecution established a prima facie case, appellant was obliged to furnish some explanation under Section 313, Cr.P.C. with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased."

24 CRI. APEAL.115-2006.JUDGMENT.odt

28. In the present case, the accused is also facing the

charge that he has committed the murder of the deceased by

strangulation. As far as the evidence as to the ill-treatment is

concerned, is not sufficient however, the fact remains that the

death of the deceased is occurred in the matrimonial house only.

Admittedly, the deceased was residing alongwith the accused

and her minor daughter. It is well settled that, if an offence

takes place inside the privacy of the house, in view of Section

106 of the Evidence Act, burden is on the accused to give an

explanation regarding the fact which is especially within the

knowledge of the accused.

29. The Hon'ble Apex Court in the case of Trimukh

Maroti Kirkan (supra) has observed that, if an offence takes

place inside the privacy of a house and in such circumstances

where the assailants have all the opportunity to plan and

commit the offence at the time and in circumstances of their

choice, it will be extremely difficult for the prosecution to lead

evidence to establish the guilt of the accused if the strict

principle of circumstantial evidence, as noticed above, is insisted

upon by the Courts. The Hon'ble Apex Court held that a Judge 25 CRI. APEAL.115-2006.JUDGMENT.odt

does not preside over a criminal trial merely to see that no

innocent man in punished. A Judge also presides to see that a

guilty man does not escape. Both are public duties.

30. The Hon'ble Apex Court also referred the decision in

the case of Stirland Vs. Director of Public Prosecution, reported

in (1944) 2 ALL ER 13 (HL), and observed that the law does not

enjoin a duty on the prosecution to lead evidence of such

character which is almost impossible to be led or at any rate

extremely difficult to be led. The duty on the prosecution is to

lead such evidence which it is capable of leading, having regard

to the facts and circumstances of the case. Where an offence like

murder is committed in secrecy inside a house, the initial

burden to establish the case would undoubtedly be upon the

prosecution, but the nature and the amount of evidence to be

led by it to establish the charge cannot be of the same degree as

is required in other cases of circumstantial evidence. The burden

would be of a comparatively lighter character. In view of Section

106 of the Evidence Act, there will be a corresponding burden

on the inmates of the house to give a cogent explanation as to

how the crime was committed. The inmates of the house cannot 26 CRI. APEAL.115-2006.JUDGMENT.odt

get away by simply keeping quiet and offering no explanation

on the supposed premise that the burden to establish its case

lies entirely upon the prosecution and there is no duty at all on

an accused to offer any explanation.

31. In the present case, the death of the deceased is

occurred in the matrimonial house. The Inquest panchnama and

the evidence of PW-1/Shakuntala, PW-2/Kantabai and

PW-4/Pandurang and recitals of the Inquest panchnama shows

injuries around the neck of the deceased. The finding of the

Medical Officer that the death of the deceased is probably that

of strangulation. The false defence of the accused that he was

not at home which is an additional link in the chain of the

circumstances as put up by the prosecution sufficiently

establishes the guilt of the accused.

32. As observed earlier that, the death of the deceased

was occurred when she was residing alongwith the accused and

no possibility was brought on record of intruder entering in the

house and possibility of murder by third person, it is the

accused who has to give an explanation. By applying these

principles if evidence of the prosecution is considered, the 27 CRI. APEAL.115-2006.JUDGMENT.odt

prosecution has proved that:

(i) The death of the deceased had occurred in the matrimonial house when she was residing with the accused and her minor daughter.

(ii) The medical evidence shows that the death of the deceased is by strangulation.

(iii) The evidence of the PW-1, PW-2 and PW-4 show that the injuries on the person of the deceased and their evidence are not challenged during the cross-examination on this aspect.