High Court
Facts
APEAL-734-23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 734 OF 2023Suresh Suklal MahajanAge: 53 years, Occu.: Labour,R/o Saptshrungi Colony, Jalgaon,Dist. Jalgaon..APPELLANTVERSUSState of MaharashtraThrough MIDC Police Inspector,Jalgaon, Dist. Jalgaon..RESPONDENT....Mr. B.R. Waramaa, Advocate for appellantMr. N.S. Tekale, A.P.P. for respondent - State....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 08th JANUARY, 2025PRONOUNCED ON : 15th JANUARY, 2025JUDGMENT ( PER : R.G. AVACHAT ,J. ) :1.The challenge in this appeal is to the judgment and order ofconviction and consequential sentence passed by the Court of AdditionalSessions Judge, Jalgaon (‘trial Court’) in Sessions Case, No. 255 of 2021 on12th July, 2023. Vide the impugned order, the appellant has been convictedfor the offence of murder, and therefore, sentenced to suffer imprisonmentfor life and to pay a fine of Rs.5,000/- with default stipulation.2.The facts in brief giving rise to the present appeal are as follows :-Vandana (deceased) would reside alongwith her son, Dipak (PW4) and his wife, Amruta as a tenant in one room premises belonging to PW 11 / 15 APEAL-734-23.odt– Ramesh. Vandana was a vegetable vendor. She was acquainted with theappellant. The acquaintance developed into emotional relationship. Theappellant would frequently visit the house of Vandana. The son of thedeceased deposed that the appellant and deceased would reside ashusband and wife for many years. There is, however evidence that theappellant was already married and blessed with children. He has parents aswell. His permanent residence was somewhere else.In the early morning of 27th August, 2021, Vandana was founddead in her room. On the previous evening i.e. by little past 07:00 p.m.Vandana and the appellant were seen together. They had been to the houseof PW 3 - Ramlal to get their money back. It was a sum of Rs.50,000/-.According to the prosecution, there used to be frequent quarrels between theappellant and the deceased. The appellant, therefore, committed hermurder.3.The First Information Report (‘F.I.R.’) (Exh.17) was lodged by thelandlord, PW 1 – Ramesh. A crime vide C.R. No. 567 was, therefore,registered. The appellant was arrested. Crime scene panchanama (Exh.64)was drawn. Mortal remains of Vandana was subjected to inquest andautopsy as well. Before arrest, the appellant too was subjected to medicalexamination. Clothes on the person of both, the appellant and the deceased,were taken charge of. The articles found at the crime scene were alsoseized. All the seized articles were sent to R.F.S.L., Nashik. Statements ofthe persons acquainted with the facts and circumstances of the case were2 / 15
Legal Reasoning
APEAL-734-23.odtdescribed him as an old person, who used to visit Vandana. According tohim, both of them had been to his residence. In our view, when PW 3 –Ramlal was not knowing the appellant (suspect of committing murder ofVandana), the Investigating Officer ought to have arranged for the testidentification parade to have lead in the investigation that the appellant tohave been lastly seen in the company of the deceased.18.Admittedly, there were four rooms on the ground floor and two onthe upper floor of the said premise. Each room was occupied by a separatetenant. None of them claimed to have heard a quarrel / noise or evenpresence of the appellant at/in the room of Vandana from 07:30 p.m.onwards or any time thereafter until before Vandana was noticed dead in herroom. In our view, the evidence as regards the last seen theory is very hazy.True, the appellant to each and every question put to him gave negativeresponse. He did not offer any explanation.(IV) Recovery of knife and trouser of the appellant, stained with blood :-19.On arrest of the appellant, he made a disclosure statement in thepresence of PW 13 – Vijay, Investigating Officer and PW 7 – Satish, panchwitness. The disclosure statement made by the appellant finds place atExhibit 72. He then led them to an isolated place in bushes and took out aknife and his trouser. Now let us see whether this disclosure statementconclusively lead us to infer the appellant’s complicity in the crime inquestion. The blood grouping of blood of the deceased was inconclusive.11 / 15 APEAL-734-23.odtMeaning thereby, her blood group could not be ascertained. Admittedly, theblood group of the appellant is ‘O’. The trouser, which was recoveredpursuant to his disclosure statement, borne a blood stain of the blood group‘O’ (Exh.44). So far as the blood grouping of the blood found on the knife isconcerned, the C.A. report (Exh.44) is inconclusive. True, human blood wasfound on the knife. The very C.A. report indicates clothes of the deceasedborne blood stains of blood group ‘O’. One may, therefore, infer that theblood group of the deceased might be ‘O’(V) Failure of the appellant to explain the incriminating circumstancesappearing in the evidence against him :-20.Then our attention was drawn to the arrest panchanama of theappellant (Exh.107), which suggests there was injury to his thumb and blunttrauma on his chest. Admittedly, PW 11 – Dr. Nita had examined theappellant soon before his arrest. Her evidence indicates that on localexamination, she did not notice any external injury or even swelling on theperson of the appellant. She was examined as a prosecution witness. Thecontents of arrest panchanama gets eclipsed by the the evidence of PW 11 –Dr.Nita.21.The CDRs of the cell phone of the appellant were relied on.Those find place at Exhibit 109. The appellant admitted these documents.True, the cell phone of the appellant was shown at a location falling underRameshwar Nagar tower. The very information supplied by the cellularcompany indicates that the said SIM card was issued to the appellant on his12 / 15 APEAL-734-23.odtaddress, “15 A, Rameshwar Colony, Kadil Bhag, Rameshwar Colony Parisar,Mehrun, Jalgaon”. It needs no mention that each tower covers at least adistance of 3-4 kilometers in radius. When the very SIM card was issued tothe appellant on his residential address of Rameshwar Nagar, he has everyreason to contend that he was residing at Rameshwar Nagar at the relevanttime. It is true that PW 4 – Dipak in his cross-examination testified that theappellant would reside at Saptashrungi Colony. To be specific, whether theappellant is residing at Saptashrungi Colony, the answer is in present tense.His cross-examination was conducted in November 2022, i.e. about sixteenmonths after the incident. The appellant is charged with an offence ofmurder and the punishment therefor is either death or imprisonment for life.There should have been, therefore, direct or concrete circumstantialevidence. The circumstances relied on should be conclusive in nature. Wedo not reiterate what has been observed by the Apex Court in SharadSarda’s case referred to hereinabove.22.It is true that PW 10 – Dr. Vaibhav has given the time of deathbetween twenty-four hours to to thirty-six hours before the conduct ofautopsy. The same is very vague. Although the first hour thereof may befalling or corresponding to the time of 07:00 p.m. by which PW 3 – Ramlalclaimed to have seen the appellant and the deceased together as they hadcome to him. We had already observed that the evidence of this witness ishazy for want of holding T.I. parade. This witness neither known theappellant nor has he given his description.13 / 15 APEAL-734-23.odt23.At the cost of repetition, it is observed that burden of proof incriminal case remains static. True, the incriminating circumstance appearingin the evidence needs to be explained by the accused. In our view, theincriminating circumstances taken together do not form the chain so as toconclude that it was the appellant and none else, who committed murder ofVandana. The facts of the case of Kashi Ram (supra) relied on by learnedA.P.P. indicate that the accused – respondent therein was married toKalawati (deceased). They were blessed with two children. There was nocordial relationship. There were incidents of the respondents assaultingKalawati and treat her with cruelty. A panchayat had also been convened atthe house of father of the respondent. From the facts of the said case, itwould be crystal clear that the respondent therein (accused) was staying withhis wife (deceased) and two children, and thereafter he disappeared. Thefacts of the present case would indicate that the appellant was married andblessed with children. His parents were alive. He would stay somewhereelse. He would intermittently visit the house of Vandana (deceased).Nobody had seen him in the room of Vandana on the fateful night. Neitherhe was seen entering Vandana’s room or exiting the same at the materialtime. That makes all the difference.24.In short, appreciation of the aforesaid entire evidence lead us toconclude the prosecution to have failed to bring home the charge beyondreasonable doubt. Based on such quality of evidence, the trial Court oughtnot to have convicted the appellant. Interference with the impugned order of14 / 15
Arguments
APEAL-734-23.odtrecorded. On completion of investigation, the appellant was proceededagainst by filing the charge-sheet.4.The trial Court framed the charge (Exh.8). The appellant pleadednot guilty. His defence was of total denial.5.To bring home the charge, prosecution examined thirteenwitnesses and produced in evidence certain documents. On appreciation ofthe evidence in the case, the trial Court convicted and consequentlysentenced the appellant as stated above.6.Learned counsel for the appellant would submit that the case isbased on circumstantial evidence. The room in which the deceased wouldreside, was located on the ground floor. The three adjoining rooms had alsobeen occupied by three different tenants. The upstairs premise was also inoccupation of someone else. None of the occupants of those premise hadseen the appellant in the room of the deceased on the fateful night.According to him, the burden of proof remains static. It is for the prosecutionto bring home the charge beyond reasonable doubt. No motive has beenproved or even alleged. The substantial evidence, in the nature of recoveryof a trouser and knife at the instance of the appellant was from an openspace, which was accessible to one and all. The C.A. report (Exh.44) ofthose articles do not conclusively indicate them to have blood stains of bloodgroup of the deceased. Learned counsel relied on the following twoauthorities to ultimately urge for allowing the appeal :-3 / 15 APEAL-734-23.odtI)Mulak Raj & Ors. Vs. State of Haryana, 1996 AIR (SC)2868II)Harish Shamsundar Chhangani & Ors. Vs. State ofMaharashtra & Ors., 2016 All.M.R.(Cri.) 52907.Learned A.P.P. would, on the other hand, submit that there wasvoluminous evidence to indicate the appellant did have extra maritalrelationship with the deceased. Both of them would reside together for long.A day before the incident, the appellant and the deceased were last seentogether. According to learned A.P.P., it is therefore for the appellant toexplain when did he part with the company of the deceased. He offered noexplanation. Learned A.P.P. then adverted our attention to the postmortemreport (Exh.85) and opinion of the Medical Officer that time of death waswithin twenty-four hours to thirty-six hours, within which the appellant and thedeceased were together. He then brought to our notice the arrestpanchanama of the appellant (Exh.107) to indicate there was blunt trauma onhis chest (injury). Learned A.P.P. meant to say that there must have beenresistance on the part of the deceased. He then adverted our attention to theCall Data Records (CDRs) of the cell phone of the appellant to indicate thaton the fateful night his location was at Rameshwar Nagar, whereat thedeceased would reside. According to learned A.P.P. it is, therefore, for theappellant to come clean and explain the incriminating circumstancesappearing against him. He relied on the judgment of the Apex Court in caseof State of Rajasthan Vs. Kashi Ram, (2006) 12 SCC 254 and particularlythe following observations made therein :-4 / 15 APEAL-734-23.odt“17.We have been taken through the entire evidence on record. Themedical evidence on record clearly proves that the death of Kalawatiand her two minor daughters was homicidal caused by strangulation.The cause of death was asphyxia. It is also established on record thatthe deceased was last seen alive in the company of respondent on 3-2-1998 at her house. The prosecution has also successfully established thefact that the house was found locked on the morning of 4-2-1998 andcontinued to remain locked till it was opened after removing the dooron 6-2-1998. Throughout this period the respondent was not to be seenand he was arrested only on 17-2-1998. Neither at the time of hisarrest, nor in the course of investigation, nor before the Court, has therespondent given any explanation in defence. He has not even furnishedany explanation as to where he was between 4-2-1998 and 17-2-1998.It has been argued on behalf of the prosecution that this most importantcircumstance has been completely ignored by the High Court. The caseof the prosecution substantially rested on this circumstance. Therespondent was obliged to furnish some explanation in defence. Hecould have explained where he was during this period, or he could havefurnished any other explanation to prove his innocence. Counsel for therespondent on the other hand, contends that though the respondentfurnished no explanation whatsoever, there is evidence on record toprove that he had gone to attend Suratgarh fair with his familymembers. A question, therefore, arises whether the presumption underSection 106 of the Evidence Act may be drawn against the respondentin the facts of the case, since the facts as to where he was during therelevant period and when he parted company with the deceased, werematters within his special knowledge the burden of proving which wascast upon him by law.23.It is not necessary to multiply with authorities. The principle iswell settled. The provisions of Section 106 of the Evidence Act itself areunambiguous and categoric in laying down that when any fact isespecially within the knowledge of a person, the burden of proving thatfact is upon him. Thus, if a person is last seen with the deceased, hemust offer an explanation as to how and when he parted company. Hemust furnish an explanation which appears to the Court to be probableand satisfactory. If he does so he must be held to have discharged hisburden. If he fails to offer an explanation on the basis of facts within hisspecial knowledge, he fails to discharge the burden cast upon him bySection 106 of the Evidence Act. In a case resting on circumstantialevidence if the accused fails to offer a reasonable explanation indischarge of the burden placed on him, that itself provides an additional5 / 15 APEAL-734-23.odtlink in the chain of circumstances proved against him. Section 106 doesnot shift the burden of proof in a criminal trial, which is always uponthe prosecution. It lays down the rule that when the accused does notthrow any light upon facts which are specially within his knowledge andwhich could not support any theory or hypothesis compatible with hisinnocence, the Court can consider his failure to adduce any explanation,as an additional link which completes the chain. The principle has beensuccinctly stated in Naina Mohd., AIR 1960 Mad 218.24.There is considerable force in the argument of counsel for theState that in the facts of this case as well it should be held that therespondent having been seen last with the deceased, the burden wasupon him to prove what happened thereafter, since those facts werewithin his special knowledge. Since, the respondent failed to do so, itmust be held that he failed to discharge the burden cast upon him bySection 106 of the Evidence Act. This circumstance, therefore, providesthe missing link in the chain of circumstances which prove his guiltbeyond reasonable doubt.”According to learned A.P.P., the trial Court has rightly convictedthe appellant. The evidence on record warrants no interference with theimpugned order. He, therefore, urged for dismissal of the appeal.8.Considered the submissions advanced. Perused the judgmentimpugned herein and the authorities relied on. Needless to mention, eachcriminal case has to be decided on the facts and circumstances appearingtherein. True, principle of law emerged from the judgment of the Apex Courtor the Bench of co-equal strength of the High Court would be binding on thisCourt. Learned counsel for the appellant was not right in submitting that thejudgment of this Court relied on by him has no precedential effect of theBench of co-equal strength, is incorrect. Be that as it may.6 / 15 APEAL-734-23.odt9.Since the case is based on circumstantial evidence, we first needto have reference to the judgment of the Apex Court in case of SharadBirdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, whereinit has been observed thus :-“(1) The circumstances from which the conclusion of guilt is to bedrawn should be fully established. The circumstances concerned‘must or should’ and not merely “may be” established;(2) The facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that theaccused is guilty;(3) The circumstances should be of a conclusive nature andtendency;(4) They should exclude every possible hypothesis except the oneto be proved; and(5) There must be a chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.”10.In the case in hand, the following circumstances are relied on tobring home the charge :-(I)Homicidal death;(II)Extra-marital relationship between the appellant and the deceased;(III)Last seen together;(IV)Recovery of knife and trouser of the appellant, stained with blood;(V)Failure of the appellant to explain the incriminating circumstances appearing in the evidence against him;7 / 15 APEAL-734-23.odt(I) Homicidal death :-11.Vandana (deceased) met with homicidal death is a fact not indispute before us. It was PW 10 – Dr. Vaibhav, who conducted autopsy onthe mortal remains of Vandana. He noticed twenty-six antemortem injuries.In his opinion, the cause of death was head injury. He further opined thatinjury nos. 1 to 26, collectively, were sufficient to cause death in the ordinarycourse of nature. Six injuries suffered by the deceased were incised injuries.(II) Extra-marital relationship between the appellant and the deceased :-12.The motive attributed to the appellant was that his frequentquarrels with the deceased. There is, however no evidence to indicate overwhat issue both fought/quarreled with each other. The F.I.R. (Exh.17) waslodged by the landlord, PW 1 – Ramesh. After having informed him by PW 3– Dipak, he went to his premises and peeped into the room. He noticedVandana was lying. A rope was tied to her neck and the other end wastagged to a hook of a rafter. On his reporting, the police arrived. A crimescene panchanama (Exh.64) was drawn. Some articles including 500 mg.weighing weight (iron) was seized. The evidence of PW 1- Ramesh wouldindicate that the appellant would intermittently visit the deceased.During his cross-examination, he testified that several personsused to visit his premise since number of tenants were residing thereinseparately. The evidence of PW 1 – Ramesh is relevant only to the extent ofsetting the criminal law in motion and the fact that the deceased was residingin one of his rooms as a tenant.8 / 15 APEAL-734-23.odt13.PW 2 – Kunal was a friend of PW 3 – Dipak (son of thedeceased). Kunal was residing in the adjoining room of the deceased. Hetestified that the incident took place during the intervening night of 27th and28th August, 2021. He was asleep in his room. On receiving the phone callof Dipak, he went to the room of the deceased and knocked on the door of it.There was, however no response. No door was opened in response to hisknock. He, therefore, peeped in through the window to see Vandana waslying down in the condition of hanging with a rope. The evidence of thiswitness too does not further the prosecution case, except to the extent thathis evidence further tells that one old person would visit Vandana frequently.He identified the appellant, who was present before the Court through videoconferencing as that person, who used to visit Vandana.14.Evidence of this witness is, however silent to indicate that on theintervening night or sometime there before, the appellant was with Vandanain her room.15.PW 4 – Dipak, son of the deceased, deposed that on the givenday he was away. He was residing at village Tondar, Tq. Udgir, Dist. Laturalong with his wife – Amruta. His father died in the year 1995. Vandana(deceased) would reside at Jalgaon alongwith the appellant. They hadintimate relationship. They stayed together for about twenty years. He toowas residing with his mother. He further testified that there used to be9 / 15 APEAL-734-23.odtfrequent quarrels between his mother and the appellant. He, therefore,started residing at Tondar, Tq. Udgir.There is no concrete evidence as to since when Dipak startedresiding away from his mother, because PW 1 and 2 had deposed that thedeceased would reside alongwith her son – Dipak and his wife in the roomowned by PW 1 – Ramesh.(III) Last seen together :-16.PW 3 – Ramlal would reside in the very vicinity i.e. RameshwarNagar. He testified that deceased – Vandana was acquainted with him. Oneole person used to visit Vandana’s residence. He identified the appellantbefore the Court as that old person. He further testified that both, theappellant and Vandana had come to his residence by little past 07:30 p.m. ofthe fateful night and took away Rs.50,000/- kept with him by them. Hefurther testified that thereafter he took the dinner and went to sleep. On thefollowing morning he learned about the incident.During his cross-examination, he deposed that he did not knowthe occupation of the appellant. He admitted to have no personalacquaintance with the appellant. He, however denied that Vandana hadalone come to him to get back the money.17.Based on the evidence of this witness, the prosecution wants tomake out a case of the appellant to have been lastly seen in the company ofthe deceased. Admittedly, this witness did not know the appellant. He only10 / 15
Decision
APEAL-734-23.odtconviction and consequential sentence is, therefore, warranted. In the result,appeal succeeds. Hence, the following order :-ORDER(I)Criminal appeal is allowed.(II)Impugned judgment and order dated 12th July, 2023 passedby the Court of Additional Sessions Judge, Jalgaon inSessions Case No. 255 of 2021 convicting the appellant forthe offence punishable under Section 302 of the IndianPenal Code is hereby set aside. He stands acquittedthereof.(III)The appellant be released forthwith, if not required in anyother case.(IV)Fine amount paid, if any, be refunded to him.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD15 / 15