1/16 apeal-324-21.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPEAL NO. 324 OF 2021 Santosh S/o Gajanan @ Daina Ingle, Aged about 23 years, Occ. Labour R/o Belgaon, Tah. Mehkar, Dist. Buldhana. … Appellant. // VERSUS // State of Maharashtra through Police Station Officer, Dongaon, Dist. Buldhana … Respondent. Shri D.A. Sonwane, Appointed Counsel for the appellant. Ms. R.V. Sharma, Addl.P.P. for the respondent/State. CORAM : ANIL L. PANSARE NIVEDITA P. MEHTA, JJ. Reserved on : 22.01.2026 Pronounced on : 02.02.2026 JUDGMENT : (PER : NIVEDITA P. MEHTA J.) The appellant has challenged the judgment and order dated 20.03.2020 passed by the learned Additional Sessions Judge, Mehkar, in Sessions Trial No. 179 of 2019, whereby the appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code (for short ‘’IPC’’) and sentenced to suffer life imprisonment and to pay a fine of Rs.10,000/-, in default of payment of fine, to undergo simple imprisonment for six months. 2. The case of the prosecution is that an oral report was lodged by informant Ashru Jankiram Maindkar (P.W. 4) on 01.11.2013, stating that his daughter Reshma (deceased), was married in September 2013 to the appellant Santosh Gajanan alias Daina Ingale, resident of the same village. Initially, the marital relations were Sknair 2026:BHC-NAG:1636-DB 2/16 apeal-324-21.odt cordial. However, within a short period, the appellant started suspecting the character of the deceased and frequently doubted her of having illicit relations, thereby subjecting her to mental harassment. 2.1. About fifteen days prior to the incident, deceased had come to her parental home and disclosed to her parents that although the appellant initially treated her well, he had started restricting her interaction with others and began suspecting her character, alleging that she was having a love affair. The informant and his wife thereafter explained appellant and advised him to maintain cordial marital relations. 2.2. On 31.10.2013, the deceased was brought to her parental house for the Diwali festival, where she stayed overnight. On 1.11.2013 at about 10.00 a.m., the appellant came to the house of the informant and insisted on taking the deceased along with him. Though the informant initially requested that she be taken after Diwali, the appellant assured that he would bring her back in the evening. 2.3. Thereafter, at about 2.00 p.m., the informant received phone call of Ramkor Tajne, a resident of the same village, informing him that the appellant had assaulted the deceased at his house by inflicting a deep blow on her neck with a pickaxe, resulting in profuse bleeding. The injured was immediately shifted to Hospital of Dr. Dhadkar by Dinkar Maindkar and Ravi Waghmare. Dr. Dhadkar sent deceased to General Hospital, Dongaon. However, she succumbed to the injuries. The medical officer subsequently declared her dead. Consequently, the informant lodged the report before Police Station Officer, Dongaon. Sknair 3/16 apeal-324-21.odt 3. On the basis of the said report, Crime No. 66 of 2013 came to be registered against the appellant for the offence punishable under Section 302 of the IPC. During the course of investigation, the Investigating Officer visited the spot of the incident and prepared the spot panchnama. From the house of the appellant, a blood-stained pickaxe and soil mixed with blood were seized. The inquest panchnama of the dead body was drawn, and the body was forwarded for post- mortem examination. The clothes of the deceased as well as the clothes worn by the appellant were seized. The seized articles were forwarded to the Chemical Analyser for examination. Statements of witnesses were recorded and, upon completion of the investigation, the Investigating Officer submitted the charge- sheet before the learned Judicial Magistrate First Class, Mehkar, who committed the case to the Court of Sessions. 4. The Charge (Exh.6) for the offence punishable under Section 302 of the IPC was framed against the appellant, who pleaded not guilty and claimed to be tried. The prosecution examined eleven witnesses. The incriminating material was put to the appellant, and his statement under Section 313 of the Code of Criminal Procedure was recorded. 5. After appreciating the evidence on record, the Trial Court observed that the death of Reshma was homicidal, as conclusively established by the medical evidence, which ruled out any possibility of accidental injury. It was found that on the day of the incident, the appellant had forcibly taken the deceased from her parental home in the morning, and within a short span of time, she was found fatally injured inside the house of the appellant, with the weapon of assault lying nearby. The Trial Court held that the chain of circumstantial evidence was Sknair 4/16 apeal-324-21.odt complete, establishing the presence of the appellant with the deceased immediately prior to the incident and his failure to explain the circumstances leading to her death, thereby attracting the presumption under Section 106 of the Evidence Act. The motive, namely suspicion regarding the character of the deceased, also stood proved. 6. On cumulative appreciation of the evidence, the Trial Court convicted the appellant under Section 302 IPC and sentenced him to imprisonment for life. Hence the present appeal. 7. We have heard the learned Counsel Mr. D.A. Sonwane for the appellant and the learned Additional Public Prosecutor Mrs. R.V. Sharma for the State. 8. Learned Counsel for the appellant submitted that the trial Court failed to consider material contradictions and omissions in the evidence of the mother of the deceased, which could have led to a different conclusion. It was further submitted that the marriage between the appellant and deceased was a love marriage opposed by the parents of the deceased, and therefore a false report was lodged. It was also contended that the prosecution failed to examine material witnesses, namely Lahu, the brother of the deceased, Ramkuwar Tajne, who allegedly informed the informant about the assault and the grandmother of the appellant who was present near the house at the relevant time, thereby creating serious doubt in the prosecution case. It was argued that the bloodstains on the clothes of the appellant occurred while taking deceased from Dr. Dhadkar’s hospital to the Government Hospital, which fact was admitted by P.W.3. Learned Counsel contended that the evidence on record does not establish homicidal death beyond Sknair 5/16 apeal-324-21.odt reasonable doubt and that the possibility of accidental death has not been ruled out. The trial Court erred in relying upon presumptions and conjectures. It was further submitted that the “last seen” theory was not established. Hence, prayed that the appellant is entitled to acquittal. The learned Counsel for the appellant has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Kanhaiyalal v. State of Rajasthan, (2014) 4 SCC 715. 9. Per contra, the learned Additional Public Prosecutor submitted that the deceased was residing with the appellant, fact which was admitted by him in his statement under Section 313 of the Code of Criminal Procedure. The appellant suspected the character of deceased, and on the date of the incident, he took her to his house. The incident occurred inside the house of the appellant, where a pickaxe was found. The evidence of P.W.4 and P.W.5 corroborates each other, and there is no possibility of accidental death. The chemical analysis report conclusively establishes the presence of the blood of the deceased on the clothes of the appellant. 10. Before delving into the merits of the case by framing the points for determination and recording findings thereon, it is necessary to evaluate and appreciate the evidence led by the prosecution. 11. PW 1-Vimalbai Mainkaris projected as an independent witness who allegedly reached the spot soon after the incident. However, her testimony does not advance the prosecution case. She categorically stated that she did not witness the appellant present at the spot with bloodstains, nor did she depose that the appellant assaulted the deceased. In cross examination, she specifically denied the suggestion that appellant was standing in an undergarment with bloodstains on his chest. Her Sknair 6/16 apeal-324-21.odt statement is limited to seeing the deceased lying injured and a pickaxe lying nearby, without connecting the appellant to the act. Importantly, she resiled from her police statement and was declared hostile. Nothing incriminating was elicited. The omissions regarding alleged quarrel and presence of appellant at the spot weaken her credibility. Thus, PW-1 does not support the prosecution version and, at best, establishes the injured condition of the deceased, which is not in dispute. 12. PW2, Gajanan Jadhao, the panch witness to the spot and inquest panchnama, denied that the police prepared spot panchnama or inquest panchnama in his presence and claimed ignorance of their contents despite admitting his signatures. He further denied seizure of pickaxe or blood-stained soil in his presence. He completely disowned the prosecution case. His evidence renders the panchnamas doubtful and seriously affects the credibility of the alleged recovery and spot inspection. 13. PW3, Dinkar Mahitkar is a crucial witness as he allegedly took the deceased to hospital. However, he expressly stated that he had no knowledge of how the incident occurred and denied having seen the deceased injured inside the appellant’s house. He also denied the contents of his police statement and was declared hostile. Significantly, during cross-examination, PW3 admitted that the appellant assisted in taking deceased to the hospital and that his clothes got stained with blood while doing so. This admission supports the defence explanation for bloodstains on the appellant’s clothes and creates a reasonable alternative hypothesis consistent with innocence. Sknair 7/16 apeal-324-21.odt 14. PW 4, Ashru Maindkar (Father of the Deceased) is the informant and an interested witness. His evidence establishes the matrimonial relationship and previous disputes but does not provide direct evidence of the assault. His knowledge about the incident is entirely based on information allegedly given by Ramkuwarbai Tajne, who was not examined by the prosecution. Thus, his testimony is hearsay insofar as the actual assault is concerned. In cross- examination, PW 4 admitted the love affair between the deceased and the appellant and that they had eloped, causing social embarrassment to him. This admission lends support to the defence plea of animosity and possibility of false implication. His evidence, therefore, does not conclusively establish the guilt of the appellant. 15. PW-5 Dhrupadabai Maindkar (Mother of the Deceased) made substantial improvements over her police statement, particularly regarding alleged threats by the appellant and forcible taking of the deceased. These material facts were not stated to the police and were admitted as omissions during cross-examination. Her version of the appellant threatening to kill the deceased and assaulting her son is not corroborated by any independent witness, including the son Lahu, who was not examined. Such material improvements render her testimony unreliable. Being an interested witness with admitted resentment arising out of the love marriage, her evidence requires corroboration, which is conspicuously absent. 16. PW-6 Dr. Nandkishore Chavan conducted the post-mortem on the body of the deceased. On external examination, he found following injuries : Sknair 8/16 apeal-324-21.odt (i) Lacerated wound over the neck situated above 2 inches of eternal notch in transverse position over the neck having dimensions approximately of 3 x 1 x 6 inches going down inside into the thoracic cavity mainly right side. It can be caused by pointed, hard and heavy object. (ii) Abrasion over the left chick of size 4 x 2 cm. (iii) Abrasion over the left chick of size 3 x 2 cm. (iv) Abrasion over the left clavicle 2 x 1 cm. All these injuries were anti- mortem. On internal examination, he found following injuries : (i) Pleura left intact and tear at right side. There was blood collection approximately 300 ML. (ii) Right lung injury present at apex Lobe of size 2 x 1 x 3 inches. PW 6 opined that death was due to neurogenic shock resulting from injury to vital organs, and that the injuries were sufficient in the ordinary course of nature to cause death. PW 6 categorically ruled out accidental fall, which only proves the nature of death, it does not establish who inflicted the injury. The medical evidence, therefore, does not bridge the gap in the prosecution case. 17. PW 7, Varsha Khadse initially disagreed with the inquest panchnama and stated that nothing was written or read over to her. Though she partially supported the prosecution, during cross-examination her admission that she signed documents without knowing their contents weakens the reliability of the inquest panchnama. Her evidence does not advance the prosecution case beyond confirming the injury, which is otherwise proved. 18. PW 8, Sk. Rafique Sk. Gawaju, Panch Witness, also did not support the prosecution and denied that any panchnama or seizure was conducted in his presence. He admitted that he signed documents at the instance of police without Sknair 9/16 apeal-324-21.odt reading them. Such testimony further erodes the credibility of the alleged recoveries and procedural compliance. 19. PW 9, Gajanan Jadhav, completely denied any knowledge of the incident and denied informing the mother of the deceased about the assault. His hostility nullifies the prosecution’s attempt to rely upon him as a link witness conveying information about the incident. 20. PW 10, PSI Sadashiv Bhadikar, Investigating Officer, registered the offence against the appellant, prepared inquest panchnama (Exh.49), spot panchnama (Exh. 50), sent dead body for post-mortem, arrested the appellant, prepared seizure panchnamas and recorded statements of the witnesses. He admitted significant lapses in investigation. Notably, he admitted that the grandmother of the appellant was present near the spot but her statement was not recorded. The non- examination of this material witness creates a serious dent in the prosecution case. He also admitted that certain facts stated by PW-1 were not mentioned in her statement. Such omissions and lapses weaken the prosecution story and create reasonable doubt regarding the fairness and completeness of the investigation. 21. PW 11-Vijaysihg Rajput, Police Inspector recorded statement of three witness, sent seized articles and viscera for analysis for Chemical Analysis and after completion of investigation filed charge-sheet against the appellant. 22. On overall appreciation of the prosecution evidence, it is apparent that the case rests entirely on circumstantial evidence, with no eyewitness account of the assault. Several independent and panch witnesses have resiled from their earlier Sknair 10/16 apeal-324-21.odt statements, thereby weakening the prosecution version regarding the scene of offence and recovery. The evidence of the parents of the deceased, though relevant, suffers from material omissions and improvements, and remains uncorroborated on crucial aspects. The medical evidence establishes the nature of death but does not by itself connect the appellant with the act, thus necessitating careful scrutiny of the remaining circumstances while determining the points for consideration. 23. Points for Determination: Sr.No. Points Findings (i) Whether the prosecution proved that the death of Reshma was homicidal? In the affirmative. (ii) Whether the prosecution proves that the appellant Santosh alone committed the murder of Reshma? In the negative. (iii) Whether the chain of circumstantial evidence is complete and consistent only with the guilt of the appellant? In the negative. (iv) Whether any interference is called in for from the impugned judgment? In the affirmative. (v) What Order? As per final order. As to Point No.(i) : 24. Medical evidence conclusively establishes that the death was homicidal. The prosecution has examined P.W.6 Dr. Nandkishore Kashinath, the Medical Officer who conducted the post-mortem examination on the dead body of Reshma. His evidence is cogent and remains unshaken in cross-examination. 25. The post-mortem report (Exh.39) records a deep lacerated wound on the neck, measuring approximately 3 × 1 × 6 inches, extending into the thoracic Sknair 11/16 apeal-324-21.odt cavity, along with internal injuries to the right lung and collection of blood in the pleural cavity. The doctor has clearly opined that the injuries were ante-mortem, caused by a hard, heavy, and pointed object, and that injury No.1 was sufficient in the ordinary course of nature to cause death. 26. The medical opinion that death was caused due to neurogenic shock resulting from extensive injury to vital organs has not been challenged effectively. The suggestion that such injury could have occurred accidentally by falling on a pickaxe was expressly denied by the doctor. Accordingly, P.W.6 proves that the death was homicidal. Hence, we answer point No.(i) in the affirmative. As to Point Nos.(ii) & (iii): 27. There is no direct eyewitness to the alleged assault. The prosecution case is entirely based on circumstantial evidence, which must satisfy the well-settled parameters laid down by the Hon’ble Supreme Court, namely that each circumstance must be proved beyond reasonable doubt and that all circumstances cumulatively must lead to the sole inference of guilt of the appellant. 28. P.W.1 Vimalbai, who was a neighbour, merely states that deceased was found lying injured and a pickaxe was found lying there. She categorically denies the presence of the appellant with bloodstains or any incriminating conduct. She was declared hostile and nothing supporting the prosecution could be elicited from her. 29. P.W.2, P.W.7, and P.W.8, who were examined as panch witnesses, denied that the panchnamas were prepared in their presence, and stated that the contents were not read over to them. Such evidence casts a serious shadow on the authenticity of Sknair 12/16 apeal-324-21.odt the spot and inquest panchnamas, which are foundational in a case based on circumstantial evidence. P.W.9, who allegedly informed the mother of the deceased about the assault, completely denied the prosecution case. Thus, the prosecution has failed to secure support from any independent witness. 30. The prosecution relies heavily on P.W.4 (father) and P.W.5 (mother) of the deceased. Their evidence, though admissible, requires cautious scrutiny as they are interested witnesses. P.W. 4 admits that the marriage was a love marriage, the deceased had eloped with the appellant, and that he suffered social defamation due to the elopement. These admissions introduce a possible motive for false implication or exaggeration. P.W.5 makes serious allegations regarding threats, forceful taking of the deceased, and assault on her son. However, these material facts are absent in her police statement, amounting to material omissions and improvements, which adversely affect her credibility. No witness has deposed to having seen the appellant assaulting the deceased. The prosecution has also failed to establish that the appellant was last seen assaulting or alone with the deceased immediately prior to death. Therefore, the prosecution has failed to establish that the appellant was the perpetrator of the crime. 31. The prosecution seeks to rely on the following circumstances that the appellant took the deceased to his house, the incident occurred inside the house of the appellant, a pickaxe was found at the spot, bloodstains were found on the clothes of the appellant. However, upon scrutiny, none of these circumstances, either individually or collectively, form a complete chain. Sknair 13/16 apeal-324-21.odt 32. The time gap between the deceased being taken and her being found injured is not precisely established. Several villagers were present near the house, as admitted by witnesses. Therefore, the last seen theory is not conclusively proved, and even if partially established, it cannot, by itself, form the basis of conviction without corroborative circumstances. The same has been observed by the Hon’ble Supreme Court in Kanhaiyalal (supra) as under: “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non- explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.” 33. The pickaxe is a commonly available agricultural tool, and no independent witness supports its seizure. No forensic evidence connects the weapon exclusively to the appellant. The prosecution relies on bloodstains found on the clothes of the appellant. P.W.3 admits in cross-examination that the appellant helped in taking the injured Reshma to the hospital, during which clothes could be stained with blood. This explanation is plausible and probable. Once a reasonable explanation is available, the presence of bloodstains alone cannot be treated as conclusive incriminating evidence. 34. The trial Court invoked Section 106 of the Indian Evidence Act, holding that the appellant failed to explain the circumstances. However, it is settled law that Section 106 does not relieve the prosecution of its primary burden. It applies only after the prosecution establishes a strong prima facie chain of circumstances. The Hon’ble Supreme Court in State of Madhya Pradesh v. Balveer Singh, in Criminal Sknair 14/16 apeal-324-21.odt Appeal No. 1669 of 2012 has observed in Paras 82, 83 and 84 respectively as under: “82. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding guilt of the accused. 83. The presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. 84. To explain what constitutes a prima facie case to make Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in Mir Mohammad (supra), wherein this Court has observed in paras 36 and 37 respectively as under: “36. In this context we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follows: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.” In the present case, the prosecution has failed to establish such a chain, and therefore, adverse inference under Section 106 is legally impermissible. Thus, the chain of circumstantial evidence is incomplete, and alternative hypotheses consistent with innocence cannot be ruled out. Hence, we answer Point Nos. (ii) & (iii) in the negative. As to Point No.(iv): 35. The prosecution case rests substantially on circumstantial evidence, as there is no direct eyewitness to the actual act of assault. It is, therefore, incumbent upon the prosecution to establish a complete and unbroken chain of circumstances Sknair 15/16 apeal-324-21.odt leading to the sole inference that the appellant alone committed the crime, excluding every other hypothesis consistent with innocence. Criminal law mandates that the guilt of the appellant must be proved beyond reasonable doubt, and any reasonable doubt must enure to the benefit of the appellant. In the present case, all independent witnesses and panch witnesses have turned hostile, evidence of interested witnesses suffers from contradictions and improvements, the last seen theory is not proved, forensic evidence is explainable, serious lapses exist in investigation, including non-examination of material witnesses. These deficiencies create multiple reasonable doubts regarding the prosecution version. Hence, the appellant is entitled to the benefit of doubt. Therefore, we answer point No.(iv) in the affirmative. As to Point No.(v): 36. Upon a cumulative assessment of the evidence, we find that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. The conviction recorded by the trial Court is primarily based on presumptions, hostile evidence, and an erroneous application of Section 106 of the Indian Evidence Act. The possibility of an alternative hypothesis consistent with the innocence of the appellant cannot be ruled out. In criminal jurisprudence, suspicion, however strong, cannot take the place of proof. Accordingly, the appellant is entitled to acquittal by extending the benefit of doubt. Hence, we proceed to pass the following order. Sknair 16/16 apeal-324-21.odt ORDER (i) The Criminal Appeal is allowed. (ii) The judgment and order dated 20.03.2020 passed by the learned Additional Sessions Judge, Mehkar, in Sessions Trial No. 179 of 2019 is hereby quashed and set aside. (iii) The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. (iv) The appellant shall be released forthwith, if not required in any other case. (v) Fine amount, if paid, shall be refunded to the appellant. (vi) Fees of the learned Counsel appointed for the appellant be quantified and paid as per rules. [NIVEDITA P. MEHTA, J.] [ANIL L. PANSARE, J.] Sknair