High Court
Legal Reasoning
1CriAppeal-24-20.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 24 OF 2020Nilesh Laxmikant VyasAge: 30 years, Occu: Nil,R/o: Ter Tq. & Dist. Osmanabad… AppellantVersus1. The State of MaharashtraThrough the Police Inspector Ter (Dhoki) Police Station,Ter Tq. & Dist. Osmanabad2. Sau. Anita Madansingh ThakurAge: 45 yrs. Occu. LabourR/o. Nanded Tq. & Dist. Nanded… Respondents...Mr. Hemraj P. Kshirsagar (Appointed), Advocate for theAppellant Mr. B. B. Bhise, APP for the Respondent - State… CORAM : R. G. AVACHAT & NEERAJ P. DHOTE, JJ.Reserved on : 15th April, 2024Pronounced on : 29th April, 2024JUDGMENT : [PER NEERAJ P. DHOTE, J.] 1.This is an Appeal under Section 374 (2) of the Code ofCriminal Procedure, 1973 [for short ‘Cr.PC’] against theJudgment and Order dated 18.12.2015, passed by the learnedAdditional Sessions Judge, Osmanabad, in Sessions CaseNo.129/2014 convicting the Appellant for the offencepunishable under Section 302 of the Indian Penal Code, 1860[for short ‘IPC’] and sentencing him to suffer imprisonmentfor life and to pay fne of Rs.1000/-, in default, to sufferrigorous imprisonment for three months. 2CriAppeal-24-20.odt2. Prosecution’s case as revealed from the Police Report is asunder:(a)The Appellant, resident of village Ter, Taluka andDistrict Osmanabad killed his wife – Neha @ Pooja (hereinafterreferred as ‘Deceased’) by strangulation with the Janeu[Sacred Thread] at their home on 05.01.2014 when the othermembers of their house were not present. The motive behindkilling his wife was that she was opposing the extra materialrelation of the Appellant with another woman. The mother ofdeceased i.e. Informant, was informed by the father ofAppellant over telephone that, her daughter suffered attack.The Informant reached the village Ter. The Informant went tothe Civil Hospital where the dead body was kept. She noticedligature marks over the neck of Deceased. She lodged theReport with the concerned Police Station and CrimeNo.2/2014 came to be registered against the Appellant. (b)The Investigating Offcer conducted Inquest and referredthe dead body for postmortem. The spot panchnama wasprepared. The statements of witnesses came to be recorded.The Appellant came to be arrested. The Janeu which was usedby the Appellant for commission of crime came to be seized atthe instance of the Appellant. The postmortem report came tobe collected. On completion of investigation, the Appellantcame to be Charge-sheeted. 3.On committal, the learned Additional Sessions Judgeframed the Charge against the Appellant for the offencepunishable under Section 302 of IPC vide Exhibit – 4, towhich, the Appellant pleaded not guilty and claimed to be 3CriAppeal-24-20.odttried. To prove the Charge, the Prosecution examined in allseventeen (17) witnesses and brought on record the relevantdocuments. After the Prosecution closed it’s evidence, theAppellant’s statement came to be recorded under Section313(1)(b) of Cr.PC. The Appellant denied the Prosecution’scase and evidence. On appreciation of the evidence, thelearned Trial Court passed the aforementioned impugnedJudgment.4.It is submitted by the learned Advocate for the Appellantthat the evidence available on record do not prove the Chargeagainst the Appellant. He submitted that the Appellant’s wifecommitted suicide as her marriage with the Appellant wasagainst her wish. He submitted that merely because theAppellant’s wife was found dead in her matrimonial homewhich was shared by in-laws, the Appellant cannot beconvicted merely because he was the husband. He submittedthat there is no evidence on record to show that the Appellantwas at home at the time of incident or the deceased was lastlyseen with the Appellant. He relied on the Judgment of SikkimHigh Court in the case of Garja Bir Rai Vs. State of Sikkim;LAWS(SIK)-2019-5-8 in support of his submissions. Hesubmits that the Trial Court has erred in convicting theAppellant on the basis of insuffcient evidence and the Appealbe allowed.5.It is submitted by the learned APP that the Appellantwas the husband of Deceased and death occurred in theAppellant’s house. He submitted that the deceased - Poojabeing the wife, was in the custody of the Appellant andtherefore, the burden shifts on the Appellant by virtue of 4CriAppeal-24-20.odtSection 106 of the Evidence Act, 1872 [For short ‘theEvidence Act’]. He submitted that the Trial Court has rightlyconvicted the Appellant and the Appeal be dismissed.6.There are no eye witnesses to the incident. TheProsecution’s case is based on circumstantial evidence. As perthe settled position in law, the circumstances from which aninference of guilt is sought to be drawn must be cogently andfrmly established, the circumstances should be of a defnitetendency unerringly pointing towards the guilt of the accused,the circumstances taken cumulatively should form a completechain, which would lead to the only conclusion that in allprobability, the crime is committed by the accused and ruleout the hypothesis other than that of the guilt of the accused. 7.In the case in hand, the Prosecution relied on thefollowing circumstances in support of the Charge;[i]Homicidal Death in the Matrimonial House.[ii]Motive.[iii]Discovery / Recovery of thread at the instance of Appellant[i] Homicidal Death in the Matrimonial House8.PW – 5 [Anita Madansingh Thakur] is the mother ofdeceased – Pooja @ Neha and she was the resident of Nanded.Deceased was married to the Appellant in the year 2012.After marriage, Deceased went to reside with the Appellant atVillage Ter. On 05.01.2014, the father of Appellant [father-in-law of Deceased telephonically informed her around 3:00 pm 5CriAppeal-24-20.odtthat, Deceased – Pooja suffered attack and asked her to comeimmediately. She reached village Ter at about 10:00 pm andwent to the Appellant’s house and inquired about Deceased.The mother of Appellant [mother-in-law of Deceased]informed her that Deceased was in the Hospital. She went tothe Hospital and found Pooja in dead condition. She noticedscar on the right side of the neck of Pooja. She inquired withthe Doctor, who told her that Deceased was killed by pressingthe throat. She deposed of lodging the Report at Exhibit – 23which culminated in registration of crime. She denied thesuggestion that she was deposing false that she saw the scaron the right side of the neck of Pooja and the Doctor told herthat Deceased died due to pressing of her throat.9.PW – 6 [Asha Ramrao Jadhav] is the owner of the housewhere the Informant was residing as a tenant at Nanded. Sheknew the Appellant and Deceased. She deposed that, as PW –5 [Anita Madansingh Thakur] received a phone call of father-in-law of Deceased that she suffered attack, mother of Poojawent to village Ter. Her further evidence show that she wentto the Government Hospital and saw the Deceased. She saw ascar on the throat of Deceased. After the postmortem, funeraltook place. Report was lodged by PW – 5 [Anita MadansinghThakur] in the Police Station. Nothing has come in the cross-examination to disbelieve the said evidence of hers.10.The evidence of PW – 15 [Dr. Khushalchand BrijlalBaheti] show that he was the resident of village Ter where theincident took place and was a practicing Doctor. He knew theAppellant. On 05.01.2014 in between 2:00 to 2:30 pm, hereceived a phone that the Appellant’s wife had fallen downdue to giddiness and he was asked to check her. Accordingly, 6CriAppeal-24-20.odthe went to the house of the Appellant where the patient wasnot seen. The patient was found in the vehicle. He did notcheck the patient. His evidence show that as he did notsupport the Prosecution, he was cross-examined by thelearned APP. Nothing has come in his evidence to support thecase of Prosecution.11.PW – 16 [Dr. Mukund Parmeshwar Mane] was theMedical Offcer at Rural Hospital, Ter at the relevant timesince 31.01.2011. He received the dead body of Neha Vyas forpostmortem on 05.01.2014. He performed the postmortem on06.01.2014. The body was well nourished and rigor mortispresent in all four limbs. He did not notice any external injuryon genital area. On internal and external examination, henoticed the following external injuries;“Horizontal mark on antirorior aspect of neck and right lateralaspect of name on thyroid cartilage of width 1cm size andlength about 15 cm, on fne dissection ecchmosed sub cutaneousaxolor tissue.” He noticed fracture of hyoid bone. He noted the saidinjuries in Paragraph Nos.17 and 18 of the postmortemreport, which was at Exhibit – 47. He gave the cause of deathas ‘asphyxia due to strangulation’ [asphyxia secondary tostrangulation]. The injury no.17 was suffcient to cause thedeath due to asphyxia secondary to strangulation. He deposedthat the injury noted in Paragraph No.17 of the postmortemreport was possible by use of thread [Article – 1].12.In the cross-examination, he denied the suggestion thatin the case of hanging, there will be entire encircle markaround the neck. It has come in his cross-examination that incase of strangulation, struggle signs can be noted and while 7CriAppeal-24-20.odtstrangulation, there may be marks of Mangalsutra, Bangle.The witness on his own [volunteered] that in case ofstrangulation due to sudden pressure on neck, there is vagalstrangulation and patient becomes unconscious and helplessand there may not be any sign of struggle. Only when thethread is put completely around the neck, only then therewould be encircle mark around the neck. It has come that onexamination of nail clipping of deceased, he did not noticemarks of scratch or struggle. In case of hanging, there is rarepossibility of fracture of hyoid bone. He accepted the defenceversion that in case of strangulation, fracture of hyoid boneusually occurs. He further accepted the version of defencethat in case of hanging, there is less chance of fracture of neckbone. He denied the suggestion that he could not say defnitelywhether the death was caused due to strangulation orhanging. He also denied the suggestion that strangulation wasnot possible due to use of thread [Article – 1].13.What is seen from the above discussed cross-examination is that, it is the defence version that Deceasedcommitted suicide by hanging herself. However, the abovediscussed evidence of Medical Offcer and the admissionsgiven by him in the cross-examination rules out thepossibility of suicidal death. 14.As discussed above in her evidence of PW – 5 [AnitaMadansingh Thakur] was informed by the Appellant’s fatherthat Pooja suffered attack. However, there is nothing in themedical evidence that Deceased suffered attack. 8CriAppeal-24-20.odt15.The evidence on record show that the panch witness forspot panchnama – PW – 1 [Bhima Sampat Mane] did notsupport the Prosecution and therefore, he was cross-examined on behalf of the Prosecution. However, nothingcould be elicited in favour of the Prosecution.16.The evidence of PW - 12 [Balaji Digambar Samudre]show that at the relevant time, he was working as a CircleOffcer at Ter and on the request of Ter Police Station, heprepared a sketch, which was at Exhibit – 32, of the place ofincident, which was the house of Nilesh Shantanu Vyas[Appellant]. Not knowing the boundaries, length and width ofthe spot of incident is not expected from this witness. Nothinghas come in his cross-examination to disbelieve him.17.The evidence of PW – 17 [Rameshwar BhagojiraoKhanal] show that at the relevant time i.e. on 06.01.2014, hewas Assistant Police Inspector [A.P.I] at Dhoki Police Station.On 05.01.2014, he performed the Inquest on the dead bodyunder the accidental death [AD], which was at Exhibit – 51.His evidence show that on 06.01.2014, he conducted spotpanchnama in the presence of two panchas, which was atExhibit – 52. Except suggestion that he was not present forthe Inquest and spot panchnama, nothing has come to discardthe said evidence of the Investigating Offcer. 18.From the above discussed evidence on record, theProsecution has successfully established that Pooja diedhomicidal death in her matrimonial home. As such there is no 9CriAppeal-24-20.odtdispute in respect of death of Appellant’s wife in hermatrimonial house. Hence, the circumstance no.1 is proved.[ii] Motive19.In her evidence PW – 5 [Anita Madansingh Thakur]deposed that after marriage, Deceased was residing happilyfor nine [09] months and she used to phone her and informthat the Appellant was having illicit relations with a woman.She further deposed that Deceased told her that when sheused to question the Appellant in that regard, Appellant usedto abuse and beat her. She called the Appellant to her houseand gave him understanding and the Appellant promised tomaintain Deceased nicely, however, the Appellant continuedhis ill-treatment to the Deceased. As regards this evidence isconcerned, except that she called the Appellant to her houseand gave understanding, it would be in-admissible beinghearsay.20.In her evidence, PW – 6 [Asha Ramrao Jadhav] deposedthat after the marriage with the Appellant, Deceased livedhappily for eight to nine months at her matrimonial house.When she visited Nanded, she called Deceased and theAppellant to her house for tea. Deceased told her that theAppellant was having illicit relations with a Muslim womanand as the said woman used to give missed call on the phoneof Appellant, she was feeling mentally harassed. Deceased toldher that the Appellant asked her why she was creatinghurdles. As regards this evidence is concerned, it would be in-admissible being hearsay.
Decision
10CriAppeal-24-20.odt21.The Prosecution examined PW – 8 [Mumtaz Wali KhanTamboli]. She did not support the Prosecution and therefore,she was cross-examined by the learned APP. However,nothing has come in her evidence, which would further thecase of Prosecution in any manner.22.There is no substantive evidence on record to establishthe illicit relations of the Appellant with a woman. Even theevidence of PW – 17 [Rameshwar Bhagojirao Khanal], whoinvestigated the crime nowhere show that any Motive wasunearthed during investigation. The evidence of thisInvestigating Offcer is completely silent on the aspect ofMotive. Mere suspicion is immaterial without there beingpositive evidence in support of the theory of illicit relations.Thus, we hold that the Prosecution has miserably failed toprove the Motive behind the crime.[iii]Discovery / Recovery of thread at the instance of Appellant23.Though the Prosecution examined PW – 4 [Imran ShaikhHattiwale] as a panch witness to the discovery / recovery, hisevidence show that there was accident of his vehicle andpolice told him that they have seized thread and showed himthe Appellant and asked him to sign on the panchnama. Hisevidence show that as he did not support the Prosecution, hewas cross-examined by the learned APP, however, nothing hascome in his evidence which would further the case ofProsecution.24.On this point, evidence of PW - 17 [RameshwarBhagojirao Khanal], Investigating Offcer show that he 11CriAppeal-24-20.odtarrested the Appellant under the panchnama at Exhibit – 59.On 08.01.2014 while the Appellant was under the policecustody remand, he gave statement to produce the threadwhich was kept in the house and the memorandum was drawnaccordingly, which was at Exhibit – 60. Thereafter, the police,panch and Appellant went to village Ter in the vehicle, whichwas stopped at the square. The Appellant pointed towards hishouse and they entered inside the said house. The Appellantwent inside the house, removed the thread and producedbefore them. The thread was having the steel key. It wasseized under seizure panchnama at Exhibit – 61.25.The aforementioned evidence is in respect of Discovery /Recovery pursuant to Section 27 of the Evidence Act, whichreads as under:“27. How much of information received from accused may beproved.––Provided that, when any fact is deposed to as discoveredin consequence of information received from a person accused ofany offence, in the custody of a police-offcer, so much of suchinformation, whether it amounts to a confession or not, as relatesdistinctly to the fact thereby discovered, may be proved.” 26.In the recent decision of Babu SahebagoudaRudragoudar and Others Vs. State of Karnataka;MANU/SC/0329/2024, the Hon’ble Apex Court considered theaforesaid provision in respect of discovery. The relevantParagraphs are reproduced below;“59. The statement of an accused recorded by a police offcerunder Section 27 of the Evidence Act is basically a memorandumof confession of the accused recorded by the Investigating Offcerduring interrogation which has been taken down in writing. Theconfessional part of such statement is inadmissible and only thepart which distinctly leads to discovery of fact is admissible inevidence as laid down by this Court in the case of State of UttarPradesh v. Deoman Upadhyaya3.60. Thus, when the Investigating Offcer steps into the witness boxfor proving such disclosure statement, he would be required to 12CriAppeal-24-20.odtnarrate what the accused stated to him. The Investigating Offceressentially testifes about the conversation held between himselfand the accused which has been taken down into writing leading tothe discovery of incriminating fact(s).61. As per Section 60 of the Evidence Act, oral evidence in allcases must be direct. The section leaves no ambiguity andmandates that no secondary/hearsay evidence can be given incase of oral evidence, except for the circumstances enumerated inthe section. In case of a person who asserts to have heard a fact,only his evidence must be given in respect of the same.62. The manner of proving the disclosure statement under Section27 of the Evidence Act has been the subject matter ofconsideration by this Court in various judgments, some of whichare being referred to below.63. In the case of Mohd. Abdul Hafeez v. State of Andhra Pradesh4,it was held by this Court as follows: -“5. ....If evidence otherwise confessional in character isadmissible under Section 27 of the Indian Evidence Act,it is obligatory upon the Investigating Offcer to state andrecord who gave the information; when he is dealingwith more than one accused, what words were used byhim so that a recovery pursuant to the informationreceived may be connected to the person giving theinformation so as to provide incriminating evidenceagainst that person.”64. Further, in the case of Subramanya v. State of Karnataka5, itwas held as under: -“82. Keeping in mind the aforesaid evidence, we proceedto consider whether the prosecution has been able toprove and establish the discoveries in accordance withlaw. Section 27 of the Evidence Act reads thus:“27. How much of information received from accusedmay be proved. —Provided that, when any fact is deposed to as discoveredin consequence of information received from a personaccused of any offence, in the custody of a police offcer,so much of such information, whether it amounts to aconfession or not, as relates distinctly to the fact therebydiscovered, may be proved.”83. The frst and the basic infrmity in the evidence of allthe aforesaid prosecution witnesses is that none of themhave deposed the exact statement said to have been madeby the appellant herein which ultimately led to thediscovery of a fact relevant under Section 27 of theEvidence Act.84. If, it is say of the investigating offcer that the accused 13CriAppeal-24-20.odtappellant while in custody on his own free will andvolition made a statement that he would lead to the placewhere he had hidden the weapon of offence, the site ofburial of the dead body, clothes etc., then the frst thingthat the investigating offcer should have done was to callfor two independent witnesses at the police station itself.Once the two independent witnesses would arrive at thepolice station thereafter in their presence the accusedshould be asked to make an appropriate statement as hemay desire in regard to pointing out the place where he issaid to have hidden the weapon of offence etc. When theaccused while in custody makes such statement beforethe two independent witnesses (panch-witnesses) theexact statement or rather the exact words uttered by theaccused should be incorporated in the frst part of thepanchnama that the investigating offcer may draw inaccordance with law. This frst part of the panchnama forthe purpose of Section 27 of the Evidence Act is alwaysdrawn at the police station in the presence of theindependent witnesses so as to lend credence that aparticular statement was made by the accusedexpressing his willingness on his own free will andvolition to point out the place where the weapon ofoffence or any other article used in the commission of theoffence had been hidden. Once the frst part of thepanchnama is completed thereafter the police partyalong with the accused and the two independentwitnesses (panch-witnesses) would proceed to theparticular place as may be led by the accused. If fromthat particular place anything like the weapon of offenceor blood stained clothes or any other article is discoveredthen that part of the entire process would form thesecond part of the panchnama. This is how the lawexpects the investigating offcer to draw the discoverypanchnama as contemplated under Section 27 of theEvidence Act. If we read the entire oral evidence of theinvestigating offcer then it is clear that the same isdefcient in all the aforesaid relevant aspects of thematter.” (emphasis supplied)65. Similar view was taken by this Court in the case of Ramanand@ Nandlal Bharti v. State of Uttar Pradesh6, wherein this Courtheld that mere exhibiting of memorandum prepared by theInvestigating Offcer during investigation cannot tantamount toproof of its contents. While testifying on oath, the InvestigatingOffcer would be required to narrate the sequence of events whichtranspired leading to the recording of the disclosure statement.”27.There is no evidence that the house from where the saidthread having the key was seized was in exclusive possessionof the Appellant. The scrutiny of the above discussed evidencein respect of discovery / recovery in the light of the above 14CriAppeal-24-20.odtdiscussed legal position show that the discovery/recoverycannot be said to be in-consonance with the principles laiddown in that regard. Even if the Prosecution’s case in respectof discovery and seizure of the said thread [Article - 1] isaccepted, there is no evidence to connect the said article withthe crime. The opinion of PW – 16 [Dr. Mukund ParmeshwarMane] that the injury noted in Paragraph No.17 of thepostmortem report can occur due to use of the said thread[Article – 1], is merely an opinion and cannot form the basisto connect the said thread [Article – 1] with the crime. Thus,seizure of thread [Article – 1] is of no consequence to furtherthe case of Prosecution in proving the Charge. ‘Whether the burden would shift on the Appellant’28.As discussed above the homicidal death of theAppellant’s wife in her matrimonial house is established.What the evidence of PW – 5 [Anita Madansingh Thakur]show is that the Deceased was residing in her matrimonialhouse with the Appellant and her in-laws. PW – 11[Laxmikant Shantanurao Vyas] is the father of Appellant. Hisevidence show that as he did not support the Prosecution, hewas cross-examined by the learned APP. His evidence showthat he, the Appellant and Deceased were residing together. 29.Part – III, Chapter – VII of the evidence Act is in respectof the burden of proof. As per Section 106 of the EvidenceAct, when any fact is especially within the knowledge of anyperson, the burden of proving that fact is upon him. In thecase of Trimukh Maroti Kirkan Vs. The State of Maharashtra;(2006) 10 SCC 681, following are the observations: 15CriAppeal-24-20.odt“22. Where an accused is alleged to have committed the murder ofhis wife and the prosecution succeeds in leading evidence to showthat shortly before the commission of crime they were seentogether or the offence takes placed in the dwelling home wherethe husband also normally resided, it has been consistently heldthat if the accused does not offer any explanation how the wifereceived injuries or offers an explanation which is found to befalse, it is a strong circumstance which indicates that he isresponsible for commission of the crime. In Nika Ram v. State ofH.P.13 it was observed that the fact that the accused alone was withhis wife in the house when she was murdered there with 'khokhri'and the fact that the relations of the accused with her werestrained would, in the absence of any cogent explanation by him,point to his guilt. In Ganeshlal v. State of Maharashtra14 theappellant was prosecuted for the murder of his wife which tookplace inside his house. It was observed that when the death hadoccurred in his custody, the appellant is under an obligation togive a plausible explanation for the cause of her death in hisstatement under Section 313 Cr.P.C. The mere denial of theprosecution case coupled with absence of any explanation wereheld to be inconsistent with the innocence of the accused, butconsistent with the hypothesis that the appellant is a primeaccused in the commission of murder of his wife. In State of U.P. v.Dr. Ravindra Prakash Mittal9 the medical evidence disclosed thatthe wife died of strangulation during late night hours or earlymorning and her body was set on fre after sprinkling kerosene.The defence of the husband was that wife had committed suicideby burning herself and that he was not at home at that time. Theletters written by the wife to her relatives showed that thehusband ill-treated her and their relations were strained andfurther the evidence showed that both of them were in one room inthe night. It was held that the chain of circumstances wascomplete and it was the husband who committed the murder of hiswife by strangulation and accordingly this Court reversed thejudgment of the High Court acquitting the accused and convictedhim under Section 302 IPC. In State of T. N. v. Rajendran8 the wifewas found dead in a hut which had caught fre. The evidenceshowed that the accused and his wife were seen together in the hutat about 9.00 p.m. and the accused came out in the morningthrough the roof when the hut had caught fre. His explanationwas that it was a case of accidental fre which resulted in the deathof his wife and a daughter. The medical evidence showed that thewife died due to asphyxia as a result of strangulation and not onaccount of burn injuries. It was held that there cannot be anyhesitation to come to the conclusion that it was the accused(husband) who was the perpetrator of the crime.”30.The said Judgment in the case of Trimukh MarotiKirkan [Supra] has been considered in Darshan Singh Vs.State of Punjab; (2024) 3 SCC 164, wherein, it was the case ofProsecution that because of illicit relationship, the husband 16CriAppeal-24-20.odtand co-accused, administered poison in tea and intentionallycaused death of wife inside the house. In this case, thepresence of husband in his house where his wife was founddead was not proved by the Prosecution, as is seen from theobservation in Paragraph No.35, which reads as under:“35. ….. ….. ….. ….. …… …… However, we have come to the fndingabove that the circumstance of appellant and Rani Kaur beingpresent in the house has not been convincingly proved beyonddoubt. ………………………………………………...” 31.Further, reference to the relevant observations from thefollowing authorities would not be out of context : -(a) In Sawal Das Vs. State of Bihar; (1974) 4 SCC 193,wherein, it is observed thus:“10. Neither an application of Section 103 nor of 106 of theEvidence Act could, however, absolve the prosecution from theduty of discharging its general or primary burden of proving theprosecution case beyond reasonable doubt. It is only when theprosecution has led evidence which, if believed, will sustain aconviction, or, which makes out a prima facie case, that thequestion arises of considering facts of which the burden of proofmay lie upon the accused. The crucial question in the case before usis has the prosecution discharged its initial or general and primaryburden of proving the guilt of the appellant beyond reasonabledoubt? (b) In Kalu Alias Laxminarayan Vs. State of MadhyaPradesh; (2019) 10 SCC 211, wherein, it is observed thus;“14. In Tulshiram Sahadu Suryawanshi v. State of Maharashtra6,this Court observed : (SCC pp. 381 – 82, para 23)‘23. It is settled law that presumption of fact is a rule in law ofevidence that a fact otherwise doubtful may be inferred fromcertain other proved facts. When inferring the existence of a factfrom other set of proved facts, the court exercises a process ofreasoning and reaches a logical conclusion as the most probableposition. The above position is strengthened in view of Section 114of the Evidence Act, 1872. It empowers the court to presume theexistence of any fact which it thinks likely to have happened. Inthat process, the courts shall have regard to the common course ofnatural events, human conduct, etc. in addition to the facts of thecase. In these circumstances, the principles embodied in Section106 of the Evidence Act can also be utilised. We make it clear thatthis section is not intended to relieve the prosecution of its burden 17CriAppeal-24-20.odtto prove the guilt of the accused beyond reasonable doubt, but itwould apply to cases where the prosecution has succeeded inproving facts from which a reasonable inference can be drawnregarding the existence of certain other facts, unless the accusedby virtue of his special knowledge regarding such facts, failed tooffer any explanation which might drive the court to draw adifferent inference. It is useful to quote the following observation inState of W.B. v. Mir Mohammad Omar7: (SCC p. 393, para 38) ‘38. Vivian Bose, J., had observed that Section 106 of theEvidence Act is designed to meet certain exceptionalcases in which it would be impossible for the prosecutionto establish certain facts which are particularly withinthe knowledge of the accused. In Shambhu Nath Mehrav. State of Ajmer2 the learned Judge has stated the legalprinciple thus: (AIR p. 406, para 11)‘11. This lays down the general rule that in acriminal case the burden of proof is on theprosecution and Section 106 is certainly notintended to relieve it of that duty. On the contrary,it is designed to meet certain exceptional cases inwhich it would be impossible, or at any ratedisproportionately diffcult, for the prosecution toestablish facts which are “especially” within theknowledge of the accused and which he couldprove without diffculty or inconvenience.’ The word “especially” stresses that. Itmeans facts that are preeminently or exceptionallywithin his knowledge.” (c) In Surendra Kumar and Another Vs. State of UttarPradesh; (2021) 20 SCC 430, wherein, it is observed thus:“17. We may now examine the role and conduct of the appellantNo.1 Surendra Kumar who was escorting the deceased from herparental home on his scooter and is the last person seen in thecompany of the deceased. The Courts below however has reliedupon Section 106 of the Indian Evidence Act to connect him withthe crime. This according to us was the incorrect approachinasmuch as the burden to prove the guilt is always on theprosecution and cannot be shifted to the accused by virtue ofSection 106 of the Evidence Act. This proposition of law on criminaljurisprudence stood the test of time since Emperor V. Santa Singh4where Din Mohammad J., observed as under:- (SCC online Lahpara 28)‘28…… Section 106 of the Evidence Act, cannot beused to strengthen the evidence for theprosecution. The prosecution must stand or fall onthe evidence adduced by it and until a prima faciecase is established by such evidence, the onus doesnot shift on to the accused. Mere proof that anincriminating article is found in premises occupiedby a number of persons does not in itself establishprima facie the guilt of any particular person or allof them jointly. That being so, they cannot be calledupon after such evidence to establish their 18CriAppeal-24-20.odtinnocence. They can only be called upon to do thatwhen the evidence has established a prima faciecase against any one or more of them or all ofthem’.”(d)In P. Mani Vs. State of Tamil Nadu; (2006) 3 SCC 161,wherein, it is observed thus:“10. We do not agree with the High Court. In a criminal case, it wasfor the prosecution to prove the involvement of an accused beyondall reasonable doubt. It was not a case where both, husband andwife, were last seen together inside a room. The incident mighthave taken place in a room but the prosecution itself has broughtout evidences to the effect that the children who had beenwitnessing television were asked to go out by the deceased andthen she bolted the room from inside. As they saw smoke comingout from the room, they rushed towards the same and broke openthe door. Section 106 of the Evidence Act, to which reference wasmade by the High Court in the aforementioned situation, cannot besaid to have any application whatsoever.”(e) In Sohel Mehaboob Shaikh Vs. State of Maharashtra; 2009(5) SCR 483, wherein, it is observed thus:“7. The three circumstances brought on record by the prosecutionand highlighted by the Trial Court and High Court are as follows:‘(i) Deceased Sofya met with an unnatural death;(ii) Deceased Sofya had died in the room which wassolely and exclusively occupied by her and herhusband i.e. accused No.1;(iii) The appellant has not offered any explanation inrespect of the incident in which deceased Sofya hadsustained burns.’8. We have gone through the evidence on record and we fnd thatthe High Court has arrived at some conclusions which, in ouropinion, are based on surmises and conjectures, without therebeing any evidence to support the conclusions. That being so, wefnd that the charge against the appellant has not been established.9. The frst and third circumstances cannot be considered to berelevant either separately or collectively. So far as the secondcircumstance is concerned, there is no evidence to showcircumstantially that accused was present in the room at the timeof occurrence. The time of occurrence, even by approximation hasnot been established by the prosecution.10. We, therefore, set aside the judgment of conviction recorded bythe Trial Court and upheld by the High Court. The appeal isallowed.” 19CriAppeal-24-20.odt32.Coming to the case in hand, though the place of incidentwas the matrimonial house of Deceased, there is nosubstantive evidence to establish that the Appellant was inthe house at the relevant time, or he entered or left the housein close proximity to the time of incident. It has come in theevidence of PW – 5 [Anita Madansingh Thakur] that theAppellant was a Jeep Driver and he owned a Jeep and theAppellant once left the house in the morning, used to returnhome in the evening. Her evidence show that she volunteeredthat even he [Appellant] did not use to come home in thenight. As seen from the evidence of PW – 5 [Anita MadansinghThakur], the incident took place in the afternoon as shereceived a phone call around 3:00 pm. With this evidence onrecord, it was for the Prosecution to establish that theAppellant was present in his house, which was the place ofincident. Unless the Prosecution proves that the Appellantwas present in his house or he entered or came out of thehouse in the close proximity to the time of incident, theburden would not shift on the Appellant by virtue of Section106 of the Evidence Act. It is not that the Appellant andDeceased were only residing at the place of incident. The placeof incident was shared by in-laws of Deceased. However, thein-laws of Deceased were not the accused in this case.33.In the case of Garja Bir Rai [Supra], relied by theAppellant’s Advocate, the husband was Charged forcommission of murder of his wife at his home. The decision isrendered on appreciation of the evidence available in thatcase. 20CriAppeal-24-20.odt34.As discussed above except the homicidal death of theAppellant’s wife at her matrimonial home, the Prosecutionfailed to prove the other circumstance. When the chain ofproved circumstance is not complete, the Charge fails. Thecircumstances brought on record by the Prosecution do notunerringly point to the involvement of the Appellant in theHomicidal Death of his wife. The evidence available on recorddo not conclusively establish the Charge against theAppellant. True it is that in his statement recorded underSection 313 of Cr.PC, the Appellant stated that their marriagewas against wish of his deceased wife and therefore, shecommitted suicide by hanging, however, that cannot form thebasis to confrm the conviction recorded by the learned TrialCourt, as it is well settled position under the law that thestatement of accused under Section 313 of Cr.PC is not theevidence because, frstly, it is not on oath and secondly, theother party i.e. the Prosecution does not get an opportunity tocross-examine the accused, as seen from the observationsmade in Paragraph No.37 of Darshan Singh [Supra]. All in all,the conviction of the Appellant recorded by the learned TrialCourt cannot be allowed to sustain. Hence, we proceed to passthe following order:ORDER(i) Criminal Appeal is allowed.(ii) The Judgment and Order dated 18.12.2015, passed by thelearned Additional Sessions Judge, Osmanabad, in SessionsCase No.129/2014 convicting and sentencing the Appellant forthe offence punishable under Sections 302 of IPC, is quashedand set aside.(iii)The Appellant stands acquitted for the offencepunishable under Sections 302 of IPC. 21CriAppeal-24-20.odt(iv) The Appellant be released, if not required in any othercase.(v)The fne amount, if deposited by the Appellant, berefunded to him.(vi)The Record and Proceedings be sent back to the learnedTrial Court.(NEERAJ P. DHOTE, J.) (R. G. AVACHAT, J.) Sameer