Mr. Nasimoddin Rafiyoddin Shaikh, Advocate for v. Lavte, APP for
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1 of 17 914-APEAL.239.2019-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 239 OF 2019Convict Prisoner C/11701,Tukaram Bhagwat Kamble,Age : 38 years,R/o. Kakramba (Hutment),Tq. Tuljapur, Dist. Osmanabad,Presently through SuperintendentCentral Prison, Nashik Road, Nashik. … Appellant Versus1.The State of Maharashtra,Through Police Inspector,Tuljapur Police Station, Tuljapur,Dist. Osmanabad.2.The Superintendent,Nashik Road, Nashik. … Respondents … Mr. Nasimoddin Rafiyoddin Shaikh, Advocate for Appellant. Mr. A. V. Lavte, APP for Respondent Nos.1 and 2/State.…CORAM : SANDIPKUMAR C. MORE ANDMEHROZ K. PATHAN, JJ. RESERVED ON :11th SEPTEMBER 2025 PRONOUNCED ON :25th SEPTEMBER 2025JUDGMENT (Per Mehroz K. Pathan, J.) :-1.The Appellant has filed present appeal thereby challengingthe judgment dated 2nd May 2018, passed by the Additional SessionsJudge, Osmanabad in Sessions Case No.7 of 2018, thereby convictingthe Appellant under Section 302 of the Indian Penal Code (IPC) andSections 4 and 25(1-B) of the Arms Act for allegedly committingmurder of Rajashree (wife of the present Appellant). 2 of 17 914-APEAL.239.2019-J.odt2.The prosecution has examined 9 witnesses in support of itscase, whereas the defence has not examined any witness. Thestatement of the Accused under Section 313 of Code of CriminalProcedure, 1973 (Cr.P.C.) was recorded by the learned Trial Court,wherein the defence taken is that of total denial. In addition, it isstated under Section 313 of the Cr.P.C. statement that his wife-Rajashree, sustained injuries due to an attack by a bullock with itshorns.3.The learned Trial Court, after considering the evidenceadduced by the prosecution and the cross-examination conducted onbehalf of the defence, was pleased to convict the Appellant for theaforesaid charges.4.The main thrust of the arguments advanced by Mr. N. R.Shaikh, learned Advocate for the Appellant, is that although a swordwas recovered at the instance of the Accused at the time of his arrest,there are no sharp-cutting or incised wounds on the person of thedeceased to corroborate the allegation that he was assaulted with thesaid sword. The post-mortem report reveals that the deceased died dueto hemorrhagic shock with injury to vital organs, and Column No. 17does not disclose the presence of any incised or cutting wounds.The submission, therefore, is that the weapon allegedly 3 of 17 914-APEAL.239.2019-J.odtrecovered does not correspond with the nature of the injuries sustainedby the deceased. 5.Another submission of the learned Advocate for theAppellant is that the Doctor has opined the age of the injuries to beabout 8 to 9 hours prior to the post-mortem examination. The post-mortem was conducted at 8:00 p.m. on 18th October 2017, whereas thedeath had occurred at 10:00 a.m. on the same day.6.A further submission advanced by the learned Advocate forthe Appellant is that PW1–Zumber Tupsunder (father of the deceased)has specifically deposed about the cordial relationship between theAppellant and the deceased. He has categorically stated that there wasno reason or motive for the Appellant to commit the offence. Thetestimony of the witnesses also indicates that the deceased and theAppellant used to regularly visit their in-laws during festivals. Hence,in the absence of any established motive to kill, the prosecution hasfailed to complete the chain of circumstances connecting the Appellantwith the crime.7.The next submission made by learned Advocate for theAppellant is that the testimony of PW5–Balis Kamble, who is relative ofthe Accused, indicates that there was only a normal quarrel betweenthe deceased and the Appellant, and that he had even suggested calling 4 of 17 914-APEAL.239.2019-J.odtsome more persons to pacify the quarrel. This, according to thedefence, shows that the Appellant had attempted to defuse thesituation and, therefore, it cannot be said that he acted in a fit of ragebefore the commission of the alleged offence. Hence, a convictionbased merely on suspicion cannot be sustained by this Court.8.The learned Advocate for the Appellant has further submittedthat the extra-judicial confession relied upon by the prosecution is aweak piece of evidence, particularly in the absence of any corroborativematerial to support the prosecution case so as to base a convictionupon it. The testimony of PW6–Balaji Kolekar, a President of FreeVillage Litigation Committee and PW7–Parmeshwar Khatal, a villagePolice Patil, cannot be safely relied upon for accepting the allegedextra-judicial confession of the Accused.9.Learned Advocate for the Appellant further submitted thatthe basic element of trust is missing as extra-judicial confession is onlygiven before a person in whom the Accused can confide. Theprosecution witness Nos.6 and 7, merely being the villager would notfall into the category of such confidantes and as such, their testimoniesare not trust worthy and may not be believed. 10.Learned Advocate for the Appellant has further argued thatthe alleged weapon, i.e., iron rod was recovered from the spot and as
Legal Reasoning
5 of 17 914-APEAL.239.2019-J.odtsuch, the same is not recovered from the Appellant on a memorandumunder Section 27 of the Evidence Act. It is further argued that theclothes of the Accused and the sword were also not recovered inconsequence of any such memorandum. Therefore, neither the saidclothes nor the alleged weapons can be connected to the Accused, andthe recovery thereof deserves to be disbelieved.11.It is further argued that the son of the Accused, Dinesh, whowas projected by the prosecution as an alleged eye-witness to theincident, has not supported the case of the prosecution. The report atExhibit-52, submitted by Snehalaya Child Care Home through theChild Welfare Committee, reveals that Dinesh had refused to deposeagainst the Accused. Learned Advocate for the Appellant, therefore,submits that in the absence of such crucial testimony, there is hardlyany evidence on record to sustain the conviction of the Appellant forthe alleged murder of his wife.12.Mr. N. R. Shaikh, learned Advocate for the Appellant hasrelied upon various judgments of Hon’ble Supreme Court and thisCourt, which are as under:-(i).Ratnu Yadav Vs. State of Chhattisgarh, reported in AIROnline 2024 SC 449.(ii). Sovran Singh Prajapati Vs. The State of Uttar Pradesh,reported in 2025 SCC Online SC 351. 6 of 17 914-APEAL.239.2019-J.odt(iii). Dauvaram Nirmalkar Vs. State of Chhattisgarh,reported in AIR Online 2022 SC 1218.(iv). Pramod Baban Sonawale Vs. State of Maharashtra,reported in MANU/MH/0443/2011.(v). Imranali Babuali Sayyed Vs. State of Maharashtra,reported in 2023 All MR (Cri) 872. 13.On the point that extra-judicial confession is a weak piece ofevidence and Accused must have a trust in the person to whom hegives the extra-judicial confession and that the Court may not relyupon the same in the absence of a chain of cogent circumstances torecord the conviction. 14.The other judgment relied upon by Mr. N. R. Shaikh is Shri.Sovran Singh Prajapati Vs. The State of Uttar Pradesh (supra), tobuttress his submission that failure to put relevant questions to theAccused under Section 313 of Cr.P.C. would vitiate the trial. 15.Another judgment relied upon by Mr. N. R. Shaikh isDauvaram Nirmalkar Vs. State of Chhattisgarh (supra), wherein theHon’ble Supreme Court considered the aspect of sudden provocationand held that, in appropriate cases, the offence may be converted toone under Section 304 Part II of the IPC. Reliance is also placed on thedecisions in Pramod Baban Sonawale Vs. State of Maharashtra (supra)and Imranali Babuali Sayyed Vs. State of Maharashtra (supra). 7 of 17 914-APEAL.239.2019-J.odt16.The aforesaid judgments are relied upon to contend thatwhen, due to grave and sudden provocation, the offender, beingdeprived of the power of self-control, causes the death of the personwho gave such provocation, the benefit of Exception 1 to Section 300of IPC would enure to the Accused. Consequently, the conviction underSection 302 of IPC would require to be altered to one under Section304 Part II of IPC. 17.The last judgment relied upon by the Appellant is NagendraSah Vs. State of Bihar, reported in (2021) 10 SCC 725. The aforesaidjudgment is relied upon to submit that the failure of the Accused todischarge the burden under Section 106 of the Evidence Act is notrelevant, if the chain of the circumstances is not complete. Theprosecution cannot shift his burden to the defence and the prosecutionis required to establish each and every circumstance and to make thechain of circumstances complete. The falsity of the defence cannot bea ground to convict the Accused unless the prosecution has excludedall other hypothesis, except the hypothesis that of the guilt of theAccused. 18.Mr. A. V. Lavte, learned APP appearing for the Respondents-State has countered the submissions made by Mr. N. R. Shaikh and hasvehemently submitted that the prosecution has successfully proved theguilt of the Accused. It is submitted that the prosecution has not only 8 of 17 914-APEAL.239.2019-J.odtexamined related witnesses, but has also examined PW6 and PW7, whoare independent witnesses from the village, being the President of FreeVillage Litigation Committee and village Police Patil, respectively. Thetestimonies of PW6 and PW7 clearly establish that the Appellant waspresent at the spot armed with a sword. Further, other witnesses havecorroborated the fact that after committing the murder of his wife, theAppellant was seen roaming in the village with a sword in his hand andwas ultimately apprehended by the Police Patil upon receivinginformation regarding the said incident. 19.Learned APP has further argued that the Accused made anextra-judicial confession before PW6 and PW7, who are residents of thesame village and hold the positions of President of Free VillageLitigation Committee and village Police Patil respectively. It issubmitted that, by virtue of these positions, PW6 and PW7 are amongthe most trusted persons in the village, to whom the villagers ordinarilyconfide. Hence, the argument advanced by the learned Advocate forthe Appellant, challenging the reliability of their testimonies, is whollymisconceived and liable to be rejected. Learned APP has furthersubmitted that the prosecution has successfully established each andevery circumstance, which unerringly points towards the guilt of theAccused and excludes all other hypothesis. The chain of circumstancesis complete inasmuch as the deceased was last seen alive with theAppellant, the deceased died in her matrimonial home, and the CA 9 of 17 914-APEAL.239.2019-J.odtreports of the seized weapon are positive. Learned APP has, therefore,prayed for dismissal of the appeal.20.We have heard Mr. N. R. Shaikh, learned Advocate appearingfor the Appellant and Mr. A. V. Lavte, learned APP for the Respondents-State. 21.The incident occurred on 18th January 2017. Upon receivinginformation at the police station that the Accused was roaming with asword after committing the murder of his wife, PW11–Police Inspector,Babar rushed to the spot along with his staff. PW11 found the Accusedarmed with a sword loitering on the outskirts of the village. With theassistance of Mr. Bhandari, PW11 apprehended the Accused, snatchedthe sword from him, and took him into custody. The sword, along withthe short pant and sando banyan worn by the Accused, was seizedunder Panchanama (Exhibit-22) on the same day. Meanwhile, thecomplainant (PW1) was informed by his neighbours about the murderof his daughter. He, along with his wife, immediately proceeded tovillage Kakaramba, where they learned that deceased–Rajashree hadbeen taken to the hospital for post-mortem. Thereafter, PW1 lodged theFirst Information Report (FIR), which came to be registered as CrimeNo.351 of 2017. 22.The Investigating Officer thereafter arrived at the 10 of 17 914-APEAL.239.2019-J.odtmatrimonial home of deceased–Rajashree in village Kakaramba, whereher dead body was found. He prepared the spot panchanama in thepresence of panch witness, i.e., Mr. Sanjay Sontakke and seized thearticles lying at the spot, namely, an iron bar, a piece of glass, seizureand a kadai (pan). The inquest panchanama was also drawn, and theblood-stained clothes of the deceased along with her blood samplewere collected from the Medical Officer. 23.The Medical Officer has also conducted the post-mortemexamination of deceased–Rajashree and noted multiple brutal injurieson her person. The details of the injuries have been recorded inColumn No. 17 of the post-mortem report, which reads as under: “1-Large oval completely lacerated wound involving whole face areawith destruction of whole face, nose, eyes, lips, cheeks adm. 25 X 21c.m. and 1-2 c.m. deep.2-There is complete destruction of eyes on both sides.3-Complete destruction of nose of maxilla upper lip, upper jaw seen.4-Complete destruction of maxilla upper lip, upper jaw.5-markings of above injuries are semicircular shaped.6-On palpation all above mentioned facial bones are seen fractureddestructed.The all injures were ante mortem.”24.The external injuries noted by PW9-Dr. Bharate in columnNo.19 of the post-mortem report are as under:-“1-Scalp over forehead completely lacerated and there is fracture ofunderlying bone.2-scale area on right occipital area also lacerated.3-Fracture of skull vault on forehead area seen. There is fracture of 11 of 17 914-APEAL.239.2019-J.odtnasal bone, facial bone, mandibular bones, fracture of cribriform plateand orbital bones seen. Fracture of base of skull bone. All abovefractures are severely lacerated and irregular in dimension. Infracerebral bleeding seen Brain matter is also lacerated.”25.The aforesaid injuries were found to be dangerous, life-threatening, and sufficient in the ordinary course of nature to causedeath. The Doctor has further opined that such injuries could havebeen caused by the weapons seized from the spot, namely the iron rod,iron pan, seizure, and the sword. Since the prosecution relied oncircumstantial evidence, it is necessary to re-examine whether thechain of events was duly established. PW1 and PW5 have deposed thatthe Appellant was suspicious of the character of the deceased. PW1 hasspecifically stated that on the occasion of Dussehra, when the Appellanthad come along with deceased–Rajashree, he had assaulted her bybiting, suspecting her character; however, Rajashree did not lodge anycomplaint against the Accused. PW5–Balis Kamble has also testifiedthat the Appellant had disclosed to him about his suspicion that hiswife was having illicit relations with another person. The testimonies ofPW1 and PW5, insofar as they establish motive, have not been shakenin cross-examination on behalf of the Accused. The prosecution can,therefore, be said to have established the motive behind the crime. 26.The recovery of incriminating material from the spot has alsobeen established through the testimonies of PW2 and PW11–Investigating Officer. The incriminating articles, namely the iron rod, 12 of 17 914-APEAL.239.2019-J.odtiron pan, and seizure were recovered from the spot, whereas the swordwas seized from the person of the Accused at the time of his arrest.PW9–Dr. Barate has opined that the injuries sustained by the deceasedcould have been caused by the seized articles. Thus, the prosecutionhas successfully established another vital link by proving the recoveryof incriminating articles from the matrimonial home of the deceased. 27.The important circumstance established by the prosecution isthe “last seen together” theory, namely, that the deceased was last seenalive in the company of the Appellant, and that the incident occurred inthe matrimonial home of the Accused-husband and the deceased-wife.The testimony of PW5–Balis Kamble substantiates this theory. PW5 hascategorically stated that while returning from Tuljapur in a Tamtamrickshaw, both the Appellant and the deceased were co-passengersalong with him. During the journey, the Appellant and the deceasedwere quarreling, to the extent that even the driver of the rickshawasked them not to quarrel. After reaching the village, they parted totheir respective homes. PW5 further deposed that shortly thereafter,the son of the Accused called him to the Accused’s house, where theAppellant was insisting that his wife swear before PW5. The Appellantthen asked PW5 to call Mahadev Bhise and some other villagers tointervene in the quarrel. However, when PW5 returned after contactingPW6-Balaji Kolekar, the President of Free Village Litigation Committee,he found that the deceased had already been killed and the Accused 13 of 17 914-APEAL.239.2019-J.odtwas standing ferociously with bloodstains on his clothes. Thus, thetestimony of PW5 firmly establishes the “last seen together”circumstance relied upon by the prosecution, which remains unshakenin cross-examination. 28.The extra-judicial confession relied upon by the prosecutionis to PW6 and PW7 by the accused who have categorically stated thatthe Appellant–Accused, while holding a sword in his hand, specificallyadmitted before them that he had committed the murder of deceased–Rajashree. It is well settled that an extra-judicial confession is a weakpiece of evidence and cannot, by itself, be made the sole basis forconviction. However, in the present case, the extra-judicial confessionmade before PW6 and PW7 assumes significance as it forms animportant link in the chain of circumstances established by theprosecution. This confession is duly corroborated by other evidence onrecord, thereby lending assurance to its reliability. While extra cautionis undoubtedly required while placing reliance upon an extra-judicialconfession, in the facts of the present case, the prosecution hassuccessfully established a complete chain of circumstances; whenconsidered cumulatively with the confession, it inspires confidence andpoints unerringly towards the guilt of the Appellant. 29.Another circumstance relied upon by the prosecution is thetestimony of PW8–Prashant Sonawane, who has specifically stated that 14 of 17 914-APEAL.239.2019-J.odthe had snatched the sword from the hands of the Accused, who wasroaming in the village after committing the murder of the deceased.His testimony stands corroborated by other witnesses from the village.The cross-examination of PW8 does not in any manner weaken hisversion; rather, it reinforces the prosecution case by establishing thatthe Accused made no attempt to abscond when PSI-Bhandariapprehended him. 30.Thus, another important piece of evidence, which providesan additional link to the chain of circumstances relied upon by theprosecution is the false plea and denial put forth by the Accused in hisstatement under Section 313 of the Cr.P.C. On perusal of his statement,it is seen that the Appellant claimed that the deceased died as a resultof injuries caused by bullock horns. The defence, however, has failed tolead any evidence to substantiate this claim. Consequently, this plea ispalpably false and serves as an additional link in the chain ofcircumstances established by the prosecution. Once the chain ofcircumstances has been established, the burden naturally shifts to thedefence to provide a plausible explanation regarding the cause of deathof the deceased, who was the wife of the Accused, residing in the samematrimonial home, and last seen in his company. Learned APP for theRespondent-State has rightly relied upon the judgment in TrimukhMaroti Kirkan v. State of Maharashtra, reported in AIR 2006 SCW5300, wherein the Hon’ble Supreme Court has categorically observed 15 of 17 914-APEAL.239.2019-J.odtas follows:-16. In a case based on circumstantial evidence where no eyewitnessaccount is available, there is another principle of law which must bekept in mind. The principle is that when an incriminating circumstanceis put to the accused and the said accused either offers no explanationor offers an explanation which is found to be untrue, then the samebecomes an additional link in the chain of circumstances to make itcomplete. 31.Another important aspect supporting the prosecution case isthe forensic evidence contained in the CA report. As per Exhibit-48, theblood group of the deceased was “B,” and the full pant of the Accusedwas found to contain blood of the same group. The other incriminatingarticles, namely the iron pipe, iron kadai (pan), and sword, were alsofound to contain human blood. Thus, the prosecution has establishedthe guilt of the Accused beyond reasonable doubt. The cumulativeeffect of the entire evidence-comprising ocular testimony, recovery ofincriminating articles, medical evidence, CA report, motive, and extra-judicial confession-unequivocally proves that the homicidal death ofdeceased-Rajashree was caused by none other than the presentAppellant. 32.The prosecution has also established that the Accused wasfound in possession of the weapon, namely the sword. Consequently,the learned Sessions Judge rightly convicted the Appellant underSection 25 of the Arms Act, with the sentence directed to runconcurrently with the substantive sentence of life imprisonment 16 of 17 914-APEAL.239.2019-J.odtimposed for the offence under Section 302 IPC. In view of theforegoing, the appeal does not merit any interference and is,accordingly, dismissed. 33.It is pertinent to note that the Appellant had filed an appealchallenging the judgment of the learned Sessions Judge convicting himfor the murder of his wife. The Appellant also filed an application forsuspension of sentence. The said application was rejected by this Courtby an order dated 2nd April 2019, after a detailed consideration of thematter. 34.Thereafter, the Appellant filed an application for grant oftemporary bail. The jail authorities allowed the Appellant to go onparole; however, he failed to report back to the prison after his release.When the appeal came up for hearing, this Court issued a non-bailablewarrant against the Appellant vide order dated 15th January 2024. Itwas subsequently reported that the warrant could not be executed asthe Appellant was unable to move due to paralysis. Consequently, thisCourt granted temporary bail to the Appellant on 6th September 2024for a period of one year. The one-year period expired on 6th September2025. This appeal was taken up for hearing and concluded forjudgment on 11th September 2025. Upon query to the Advocate for theAppellant and the learned APP, it was informed that the Appellant hasstill failed to report back to prison even after the expiry of the 17 of 17 914-APEAL.239.2019-J.odttemporary bail period on 6th September 2025. 35.In view of the dismissal of the appeal by this detailedjudgment, the Appellant is hereby directed to surrender before the jailauthorities forthwith. The concerned police station shall arrest theAppellant and put him in jail. 36.The fees of the Legal Aid Counsel is quantified as Rs.15000/-.We put on record the appreciation of the efforts put in by the Legal AidCounsel Mr. N.R. Shaikh appearing for the accused. [ MEHROZ K. PATHAN ] [ SANDIPKUMAR C. MORE ] JUDGE JUDGENajeeb..