950-apeal-165-2020.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH CRIMINAL APPEAL NO. 165 OF 2020 Arvind s/o Baban Gawai, aged about 25 years, Occ. Driver, R/o Khairav, Tah. Chikhli, Dist. Buldhana. ...APPELLANT Versus The State of Maharashtra, through Police Station Officer, Police Station Chikhli, Tah. and Dist. Buldhana. ...RESPONDENT Mr. R.M. Daga, Counsel for the appellant. Mr. K.R. Lule, A.P.P. for the respondent/State. CORAM : ANIL L. PANSARE AND Y.G. KHOBRAGADE, JJ. ARGUMENTS WERE HEARD ON : 8/10/2025 JUDGMENT IS PRONOUNCED ON : 3/11/2025 JUDGMENT (PER : ANIL L. PANSARE, J.) : This appeal arises out of a judgment and order dated 6/2/2020 passed by the Sessions Judge, Buldhana, in Sessions Case No. 24/2019, whereby, the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC), and sentenced to suffer imprisonment for life and to pay fine of Rs.50,000/-. Briefly stated, the facts of the case are as under : 2025:BHC-NAG:11325-DB 950-apeal-165-2020.odt 2 2] That on 8/12/2018, at Khairav - Ambashi Shiv Road, near the field of one Konduba Kathole, the appellant committed murder of one Khushal Vinayak Dhanwe by beating him by stick, leather belt and kicks. The reason behind such a fatal attack was because Khushal defamed him in the Village. Khushal suspected illicit relationship between his wife and the appellant. 3] On 17/11/2018, i.e., prior to the incident, the appellant had been to the house of Khushal to meet his wife. Khushal found them in his house and took-up a quarrel with his wife. He beat her, and removed her from the house. Khushal’s wife had, accordingly, lodged a report with the Police Station on 18/11/2018. The appellant got annoyed with the behaviour of Khushal and, therefore, decided to eliminate him. Accordingly, on 8/12/2018, the appellant killed Khushal. 4] As such, nobody has witnessed the incident. The case of the prosecution is based on circumstantial evidence, which includes conduct of the appellant. Khushal’s body was found on Khairav Shiv Road by PW2 – Vishnu. He informed the said fact to PW1 – Charudatta, the real brother of Khushal. 950-apeal-165-2020.odt 3 PW1 lodged report with the Police Station against an unknown person. 5] This is how law was set in motion. The investigation was completed. The role of the appellant was unearthed in investigation. Accordingly, charge-sheet came to be filed against him. He pleaded not guilty to the charge. The prosecution examined eleven witnesses. The defence of the appellant was of total denial and of false implication. The trial Court, after going through the evidence and other documents placed before it and having heard both sides, found the appellant guilty of the offence punishable under Section 302 of the IPC. The appellant is aggrieved by the said finding. Hence, the present appeal. 6] We have heard Mr. R.M. Daga, learned Counsel for the appellant, and Mr. K.R. Lule, learned A.P.P. for the respondent/State. We have gone through the evidence, documents, the impugned judgment, etc. We will refer to the same to the extent necessary to decide following points that arise for our consideration. We have recorded our findings thereon for the reasons to follow. 950-apeal-165-2020.odt 4 Sr. No. Points Finding 1 Has the prosecution proved that Khushal suffered homicidal death ? In the affirmative 2 Has the prosecution proved that on 18/12/2018, the appellant has committed murder of Khushal ? In the affirmative 3 Whether interference in the impugned judgment is called for ? In the negative 4 What order ? As per final order REASONS As to point nos. 1 to 3 7] These points are interlinked and, hence, are being decided by common reasoning. 8] The prosecution was under an obligation to prove that Khushal suffered homicidal death and that the appellant is responsible for such death. 9] PW2’s evidence indicates that on 9/12/2018, when he was proceeding towards Chikhli on a motorcycle from Ambashi Shiv Road, he saw Khushal’s body lying on shiv, near the field of one Sanjay Kathole. There were blood stains on his pant. There were abrasions on his face. He informed the said fact on phone to PW1, who, in turn, informed it to few 950-apeal-165-2020.odt 5 villagers, and they all went to the spot. They noticed blood stains on left side pant with abrasions on right side eye. Accordingly, they approached Police Patil, and along with Police Patil, they went to the Police Station, where PW1 lodged oral report (Exhibit 22). 10] Thus, the report was immediately lodged. The evidence of PW2 indicates that he noticed the body at about 11:00 a.m. 11] PW4 – Valmik is a panch to inquest panchanama. He stated that there was an injury on leg, and blood had oozed from that injury, which became dry. There were bluish and blackish colour-marks of beating on the entire body. Those marks may be of stick or belt. There was an abrasion injury on right side testicle. There was a big abrasion injury on right eyebrow. 12] PW9 – Dr. Afshan, is the doctor, who conducted postmortem examination. This was done on 10/12/2018 during the period from 10:05 a.m. to 11:15 a.m. Eighteen external injuries were found. Two internal injuries were also found, which includes fracture at fourth and fifth rib antero 950-apeal-165-2020.odt 6 lateral side and contusion over anterior wall of chest (right side). In addition, three lacerated wounds on right lung were also noticed. All the injuries were antemortem. The probable cause of death was shock due to injury on vital organ, viz., right lung associated with fracture rib. 13] The above evidence, in our view, satisfies the requirement of homicidal death, which the prosecution has successfully proved. 14] Next comes the proof of murder at the hands of appellant. 15] PW6 – Rupali is a star witness. She is wife of Khushal. She deposed that she got married in the year 2006. They were blessed with one daughter. They own 1 ½ acres of land on Ambashi Shiv Road. They used to cultivate the land with the help of the appellant. In the year 2016, appellant’s services were taken for ploughing the field. She got acquainted with the appellant. They used to talk to each other on phone. On that count, quarrel used to take place between her and Khushal. He was addicted to liquor as well and had a doubt on relationship between her and appellant. She deposed that she 950-apeal-165-2020.odt 7 and appellant indulged into physical relationship, because of which, quarrel used to take place between her and Khushal. On 17/11/2018, the appellant had been to their house at 10:00 p.m. He came from back side door. Khushal came from main door. He quarreled with his wife and asked as to why appellant had come in night hours. He beat her and drove her out of the house. She stayed outside whole night, and on next day, lodged report with the Police Station. It was registered as a non- cognizable report (Exhibit 57). She went to her parental house at Deulgaon Raja, and since then, was residing there. 16] She then deposed that the incident occurred on 8/12/2018. At that time, she was at parental house. She received a call from the appellant at about 7:00 to 8:00 p.m. He said that he is taking her husband for consumption of liquor. After some time, he again called her. At that time, she heard a sound of beating on phone. Her husband’s sound of screaming was also heard. The appellant, at that time, said to her that Khushal defamed him and he will teach him a lesson. After some time, she called appellant and asked him to not beat her husband, to which, he said that her husband has escaped 950-apeal-165-2020.odt 8 from his clutches. 17] On next date, she called appellant couple of times, to which, he said that her husband did not return to the house. Later on, he said that her husband escaped from his clutches and he doesn’t know where he is. Thereafter, in evening, she came to know of her husband’s death. She narrated all the facts to the relatives. Her statement was recorded by Police, and also in Court (Exhibit 58). 18] In cross-examination, she admitted that the appellant has his own Tractor and is used for ploughing and other works of fields owned by the villagers. She also admitted that in the year 2016, the accused ploughed their field as well. A case was then put-up that on 8/12/2018, she repeatedly called appellant and asked him about her husband. She denied the same but volunteered that she enquired only once or twice. She also denied that she used to frequently call him and, therefore, he blocked her number. She admitted that prior to blocking number, the appellant used to receive her call. She denied that on 8/12/2018, the accused never called her. She admitted that on 8/12/2018, at 8:00 p.m., she called appellant 950-apeal-165-2020.odt 9 and enquired about her husband. She further admitted that after the said call, there was no contact between her and appellant on phone. Further cross-examination was to test the veracity of witness as regards she giving statement to Police and Court. She successfully withstood the cross-examination. 19] Thus, her evidence indicates that the appellant and Khushal’s wife were indulged into an extramarital affair. They also indulged into physical relationship. Khushal was annoyed of the same and used to quarrel. On the fateful night, Khushal’s wife spoke with appellant on phone. As such, she stated about multiple calls, some of which were after 8:00 p.m., however, in cross-examination, it is elicited from her that last call was at 8:00 p.m. However, what is relevant is her evidence that the appellant informed her that he will teach Khushal a lesson for defaming him. She also heard sound of beating as also sound of screaming of her husband. Most importantly, the defence brought it on record that at 8:00 p.m., she called appellant and enquired about her husband. Thus, her version that she spoke to appellant on phone is substantiated by the defence. 20] PW7 – Nandkishor is having grocery shop. On 950-apeal-165-2020.odt 10 8/12/2018, at about 7:00 p.m., Khushal came near his shop. He was under the influence of liquor. He was not in a position to walk. The appellant came there on motorcycle and took Khushal with him. On next day, he came to know that Khushal was murdered. There is nothing in the cross-examination except that Khushal was heavily drunk. 21] PW8 – Bhikaji is yet another important witness. He runs a hotel. He knew appellant and deceased. They used to come to his hotel for breakfast/snacks. On 8/12/2018, at about 8:00 p.m., he was closing the hotel. Appellant and Khushal came on motorcycle. They demanded Chiwda and Bisleri, which the witness gave. The appellant gave him Rs.150/- for bringing liquor. PW8 brought it from Yuvraj Bar and handed it over to the appellant, who, in turn, handed over the entire bottle to Khushal. He consumed liquor with water. Thereafter, they left the hotel on motorcycle, which was driven by the appellant. Later on, he came to know about the incident. 22] In cross-examination, it is brought on record that the distance between Khairav Fata (spot of incident) and Eklara Fata (spot of hotel) is two to three kilometers. It is also brought 950-apeal-165-2020.odt 11 on record that Yuvraj Bar is at a distance of around five- hundred meters from his hotel, and if one goes by walk, it requires ten minutes. It is further brought on record that construction work of Chikhli – Mehkar Road was on going, because of which, to cover distance of half kilometer by motorcycle, fifteen to twenty minutes were required. The witness admitted that when he was closing the hotel, both, appellant and Khushal came to his hotel. Khushal had consumed liquor. He denied that he was not in a position to stand. He then said that it took twenty minutes to bring liquor. He admitted that liquor was consumed only by Khushal. He then closed the hotel and left the place. He doesn’t know as to where had appellant and Khushal gone. 23] Thus, in his evidence, the defence has cemented the prosecution story that at about 8:00 p.m., both, appellant and Khushal had been to his hotel, liquor was brought at the instance of appellant, it took twenty minutes to bring liquor, liquor was consumed only by Khushal for which some more time must have been spent. Thus, at least, till 8:30 p.m., both, appellant and Khushal, were together, and thereafter, 950-apeal-165-2020.odt 12 proceeded further on motorcycle. 24] So far as evidence of PW9 is concerned, as stated earlier, he conducted postmortem. In cross-examination, he admitted that all eighteen injuries were simple injuries. He further admitted that contused wounds may occur due to falling on hard and blunt surface. The witness, however, said that pattern in the case, viz., railway line type injuries, were not possible by falling on hard and blunt surface. He denied that such injuries could be caused if a person falls on Gitti/ Murum. He admitted that if a heavy drunken person falls on hard surface, his ribs can be fractured. He, however, explained that it depends on the circumstances, i.e., distance, size of hard substance, stones, etc. He admitted that in postmortem report, approximate time of death is not mentioned. He also admitted that excessive consumption of alcohol may cause death. 25] Mr. R.M. Daga, learned Counsel for the appellant, argued that possibility of death by excessive consumption of alcohol is not denied. He further said that if a heavy drunken person falls on hard surface, his ribs can be fractured, is something that prosecution should have explained. We, 950-apeal-165-2020.odt 13 however, do not find merit in such submissions, inasmuch as, the evidence that a person may die because of excessive consumption of alcohol, is a generalized statement and can be common cause for all. The witness has not said that Khushal died because of heavy consumption of alcohol. So far as falling on hard surface is concerned, whether a heavily drunken or a normal person falls on hard surface, his ribs can be fractured, and is again a generalized statement. There is nothing in the evidence of PW9 that Khushal sustained rib injuries because of felling down. Thus, the evidence of PW9 will be of no help to the appellant, which otherwise will only establish homicidal death of Khushal. 26] The trial Court took note of date and time of conducting postmortem. As stated earlier, the postmortem was conducted between 10:05 a.m. to 11:15 a.m. on 10/12/2018. The Court then referred to medical jurisprudence and toxicology, wherein, on the point of duration, it is noted that in temperate regions, rigor mortis usually lasts for two to three days. In northern India, usual duration of rigor mortis is twenty-four to forty-eight hours in winter and eighteen to 950-apeal-165-2020.odt 14 thirty-six hours in summer. Considering the said duration, the trial Court held that the deceased must have been killed after 8:00 p.m. on 8/12/2018. 27] In our view, for such a finding, there was no necessity to refer to medical jurisprudence, inasmuch as, the evidence is writ large that appellant and Khushal were together at 8:30 p.m. on 8/12/2018 and Khushal’s body was found lying on shiv on 9/12/2018 at about 11:00 a.m. Thus, it is obvious that his death occurred after 8:30 p.m. on 8/12/2018 and prior to 11:00 a.m. on 9/12/2018. 28] What is important is whether the prosecution has proved the circumstances that would require the appellant to discharge his burden under Section 106 of the Indian Evidence Act, 1872 (for short “Evidence Act”). 29] Mr. R.M. Daga, learned Counsel for the appellant, submits that the case is based on circumstantial evidence and, therefore, the prosecution was under an obligation to establish a complete chain of circumstances indicating guilt of accused, and it must be to the exclusion of all other hypothesis. He submits that the prosecution failed to show that the appellant 950-apeal-165-2020.odt 15 and Khushal were last seen together in close proximity of his death. According to him, nobody is aware as to when was Khushal assaulted and by whom. The prosecution has, at the most, proved that they were together at 8:30 p.m. What transpired thereafter is not known to anyone. He further submits that the appellant, on phone call with Khushal’s wife, has said that Khushal has escaped from his clutches and, therefore, merely on the basis of two being together at 8:30 p.m. on 8/12/2018, cannot be a decisive factor for his guilt. He further submits that suspicion alone will not be sufficient to expect the appellant to discharge burden under Section 106 of the Evidence Act. 30] In support of his contentions, he relied upon a judgment of the Hon’ble Supreme Court in the case of Suresh Chandra Tiwari and Another Vs. State of Uttarakhand [2024 SCC OnLine SC 3531], wherein, the Court held that in order to sustain a conviction based on circumstantial evidence, the evidence must be thoroughly tested and must establish a complete chain of circumstances that unerringly point to the guilt of the accused, excluding all other hypothesis. The 950-apeal-165-2020.odt 16 circumstances relied upon must be proved beyond reasonable doubt, be of a definite tendency towards guilt, and must collectively form a complete chain that makes it impossible for any other person to be the perpetrator. Moreover, the evidence must demonstrate that the accused ‘must be’ guilty, rather than merely ‘may be’ guilty, and the evidence must be admissible and reliable. If these conditions are not met, the evidence cannot be considered sufficient to prove guilt beyond reasonable doubt, and the accused must be acquitted. 31] A reference was then made to a judgment of the Supreme Court in the case of Kanhaiya Lal Vs. State of Rajasthan [(2014) 4 SCC 715], wherein, the Court held that circumstantial evidence such as ‘last seen together’ theory, cannot by itself establish guilt beyond reasonable doubt. The Court emphasized that the prosecution must prove motive and establish a direct link between the accused and the crime through credible and sufficient evidence. In absence of concrete evidence connecting the accused to the crime or providing motive, suspicion alone is insufficient to sustain a conviction. Therefore, when the evidence fails to conclusively 950-apeal-165-2020.odt 17 prove guilt and leaves reasonable doubt, the proper legal course is to acquit the accused. 32] Our attention was further invited to a judgment of the Supreme Court in the case of Anjan Kumar Sarma And Others Vs. State of Assam [(2017) 14 SCC 359], wherein, the Court held that a conviction based solely on circumstantial evidence requires a complete and reliable chain of circumstances that conclusively points to the guilt of the accused. The evidence must be such that it excludes all reasonable hypothesis except that of the accused guilt. In the case before the Supreme Court, the prosecution’s evidence, including last seen theory, recovery of weapon, and the circumstances of the victim’s mutilated body, was found insufficient to establish a direct or conclusive link to the accused. The absence of corroborative evidence and failure to establish an unbroken chain of circumstances led the Court to hold that the evidence did not meet the standard required for conviction. Accordingly, the Supreme Court held that suspicion alone or circumstances that are not definitively connected cannot serve as basis for conviction. 950-apeal-165-2020.odt 18 33] Thus, the well settled principles on circumstantial evidence have been re-iterated by the Hon’ble Supreme Court, that is to say that where conviction is based solely on circumstantial evidence, it would require complete and reliable chain of circumstances that conclusively points to the guilt of the accused. The Court further held that suspicion alone or circumstances that are not definitively connected cannot serve as basis of conviction. The Court emphasized that prosecution must prove motive and establish a direct link between the accused and the crime through credible and sufficient evidence. Most importantly, the evidence must demonstrate that the accused ‘must be’ guilty, rather than merely ‘may be’ guilty, and the evidence must be admissible and reliable. 34] In response to the aforesaid contentions, Mr. K.R. Lule, learned A.P.P. for the respondent/State, has invited our attention to the judgment passed by the trial Court, where the evidence has been analyzed in detail. He submits that the evidence of PW6 is of such a nature that not only proves motive but also involvement of the appellant. Her evidence that she heard husband’s screaming coupled with the statement 950-apeal-165-2020.odt 19 of the appellant that he will teach him a lesson, coupled with PW8’s evidence that they were together at 8:30 p.m. and proceeded on motorcycle, will establish appellant’s guilt. He further submits that silence of the appellant as to what happened after 8:30 p.m. on 8/12/2018 will attract inference of guilt in terms of Section 106 of the Evidence Act. 35] The learned A.P.P. has then invited our attention to the evidence of PW5 – Ramprasad on recovery of weapon under Section 27 of the Evidence Act. The appellant made a disclosure saying that he will show the place of incident and place of stick and belt. Accordingly, Police Patil and PW5 followed him. He showed the spot of incident as Ambashi – Khairav Shiv Road. He took them to the field of Kute near Babool Tree, from where, he took out one stick and belt. The witness identified the same to be the weapons recovered at his instance. 36] In cross-examination, it is elicited from the witness that the stick and belt, seized allegedly at the instance of the appellant, were easily available in the field and other places. The learned A.P.P. submits that recovery of weapons is one 950-apeal-165-2020.odt 20 thing and availability of similar such weapons is another. He submits that the witness has identified the weapons recovered at the instance of the appellant. Thus, the weapons were concealed by the appellant. He further submits that though the spot of incident is accessible to all, the place where weapons were concealed, was not. He then invited our attention to the doctor’s opinion, wherein, the doctor has opined that the injuries on the person of Khushal may be caused by these two weapons. Accordingly, the weapons are connected with the offence and, therefore, its discovery at the instance of the appellant will be an additional link to establish his guilt. 37] At this stage, Mr. R.M. Daga, learned Counsel for the appellant, submits that the recovery, even if presumed to be admissible, will not connect with the crime. He submits that the injuries sustained by Khushal could be caused for multiple reasons, including by falling on hard and blunt surface. He further submits that in the evidence, it transpired that Khushal was heavily drunk and was not able to walk properly. In addition, he consumed another bottle of liquor. In such circumstances, there is every possibility that he fell down on 950-apeal-165-2020.odt 21 hard and blunt surface and sustained injuries. 38] He then submits that the weapons, so used, would not be sufficient to prove the intention of the appellant to cause death. In support, he has relied upon a judgment of the Hon’ble Supreme Court in the case of Joseph Vs. State of Kerala [AIR 1994 SC 34]. The question before the Court was whether the appellant therein acted with an intention to cause death or with knowledge that the act was likely to cause death. In the said case, the incident occurred because of trivial quarrel, weapon used was non-deadly (lathi), and there was no proven intent to kill. The Court held that in such circumstances, though the appellant can be said to have knowledge of the act that was likely to cause death, he did not intend to cause death. Accordingly, the conviction was scaled- down to culpable homicide not amounting to murder. 39] The above judgment, in our view, will not help the appellant. In the said case, the incident occurred on a trivial quarrel/issue. In the present case, the incident has not occurred because of a trivial quarrel but has a long history. Further, the appellant was annoyed by the defamation at the 950-apeal-165-2020.odt 22 hands of Khushal. Moreover, the relationship of the appellant and Khushal’s wife and Khushal’s interference was yet another reason to suggest that the appellant had motive to kill Khushal. That apart, his statement that he will teach him a lesson and the screaming of Khushal on appellant beating him, which PW6 heard on phone, is an evidence that will complete the chain so as to transfer the burden of the appellant to disclose the information, which was within his exclusive knowledge. The least that was expected from the appellant, in these circumstances, was to inform as to where did he drop Khushal on that day. The complete silence on this point will only prove his involvement in the crime. The recovery of weapons, in such circumstances, can also be treated as corroborative peace of evidence to complete the chain. The learned A.P.P. has rightly argued that recovery of weapons at the instance of the appellant is one thing and availability of similar such weapons in market is another. The fact remains that injuries on person of Khushal were antemortem and that those injuries were possible by weapons that were seized at the instance of the appellant. 950-apeal-165-2020.odt 23 40] Put all together, the evidence of PW6 read with PW7 and PW8, will establish that the appellant and Khushal were together at 8:30 p.m. on 8/12/2018. The conduct of the appellant to purchase liquor at his expense and to make Khushal drink entire bottle, speaks volumes about his intentions. Further, the evidence of PW6 stating that she heard noise of appellant beating her husband by saying that he will teach him a lesson coupled with screaming voice of Khushal, is sufficient to establish his involvement in the crime and to shift burden upon the appellant in terms of Section 106 of the Evidence Act. 41] With such an evidence, merely because Khushal’s body was found at open space on next day morning will not be a reason to jump to the conclusion that there could be multiple possibilities for his death. Further, the plea taken by the appellant that Khushal escaped from his clutches is unacceptable, considering his (appellant’s) stand and also the evidence that Khushal was not in a position to walk freely because of excessive consumption of alcohol. In fact, the appellant, by encouraging Khushal to consume additional 950-apeal-165-2020.odt 24 bottle of liquor, ensured that he cannot escape from his clutches. The additional consumption of liquor can be treated as weapon used to eliminate Khushal. 42] Thus, the evidence is such that would exclude all reasonable hypothesis, except the appellant’s guilt. The prosecution has not only proved motive but also established a direct link between the appellant and the crime. The silence of the appellant will only substantiate his guilt. The trial Court has, in detail, considered the evidence and evaluated the same in the light of the settled principles of law. The finding appears to us to be well reasoned. No interference, therefore, is called for in the impugned judgment. 43] Accordingly, point nos. 1 and 2 are answered in the affirmative and point no.3 is answered in the negative. As to point no.4 44] Having answered first three points in the manner hereinabove, there is no merit in the appeal. The appeal is accordingly dismissed. JUDGE JUDGE Sumit