Devdas Mahadeo Kad vs The State of Maharashtra

B.P. Dharmadhikari, J—Appellant Devidas, husband of deceased Sunita has been convicted only under S. 302 IPC while he, along with other 7 accused i.e. his parents, brothers and wives of those brothers are acquitted of the offences punishable under Sections 498A, 304-B of the IPC and Section 3 of the Dowry Prohibition Act. Sunita was found dead in her room at about 4 to 4.30 in the afternoon of 22.02.1996.

Facts in brief show that appellant Devidas and his other relatives were charge-sheeted for murder of Sunita wife of Devidas by strangulating with rope in a room in occupation of the couple on 22.02.1996.

Senior Counsel Shri Anil Mardikar with Shri Tekade, learned counsel is critical about the narration of the circumstances as constituting a chain in paragraph 33 of the impugned judgment. He contends that the prosecution has fabricated the story to implicate somehow the appellant and his family members. Though Sunita is found dead on 22.02.1996, it has not been doubted till 24.02.1996. Her maternal relatives lodge the complaint belatedly after deliberations and this crucial aspect is lost site of by the Trial Court. Though all were tried under Sections 302, 498A, 304-B r/w Section 34 of the IPC and Section 3 of the Dowry Prohibition Act, only one of them i.e. the appellant-husband Devidas has been found guilty, that too only under Section 302 Indian Penal Code and he as also all others have been acquitted of all other offences. Trial Court has indirectly relied upon the Section 106 of the Evidence Act, when basic fact of last seen together is not brought on record. There is no eye witness and only circumstance that death took place in room in occupation of the couple or then Devidas was seen sitting by the side of body of his wife are not sufficient to pronounce him guilty. Material on record reveals that Devidas returned from agricultural labour work and found Sunita hanging by neck. He immediately removed the noose, brought her body down and then informed his brother about it. His brother Samadhan (acquitted accused 2) communicated it to police. PW-3 Janardan came to spot on 23.02.1996 and he did summon the maternal relatives but, then the relatives did not find it necessary to doubt the position and lodged no complaint either of harassment or ill-treatment or any dowry. They prepared the report after joint meeting, got it typed and then filed it. It was signed by the father of Sunita as complainant. He expired and hence, his son i.e. brother of deceased has been examined as PW-4. None of these witnesses have brought any incriminating material on record. Neither evidence of these relatives nor any other evidence is useful nor can support the conviction of Devidas under Section 302 of Indian Penal Code. Evidence of IO or spot panchanama also contains any such material. Seizure of sickle which is not connected to Devidas, allegedly under Section 27 of the Evidence Act is alleged to be at the instance of Kailalsh, another brother of Devidas acquitted by the Trial Court. Alleged letters of Sunita seized by the prosecution are lost and neither any such letter or report of the handwriting expert is filed. Hence, husband could not rely upon the tendencies of Sunita as evident therefrom. The attitude of the prosecution to harass Devidas can be seen as police did not produce those statements of witnesses which were in favour of accused.

Shri Mardikar, learned Senior Counsel argues that PW-6 Dr. Patil also could not demonstrate that left shoulder of the deceased was dislocated at any time before her death. Prosecution did not collect any such evidence and fact of dislocation itself is in dispute. Such a story could not have been used to convict the appellant. Adverse inference needed to be drawn against prosecution for suppressing the letters of Sunita and witnesses in favour of accused.

He relies upon certain judgments to substantiate his contentions. We will refer to the same at appropriate place.

Shri R.S. Nayak, learned APP urges that the death of wife is unnatural and taken place in a room occupied by her husband Devidas. It being custodial death, burden was upon Devidas to explain it. Medical evidence shows that left shoulder of Sunita was dislocated before hanging and hence, suicide is ruled out. Devidas claims to have cut the rope or removed noose and brought Sunita down. Hence, he is the person who unauthorizedly destroyed the evidence. No intimation was given to police for 4 hours and Sunita''s parents or other relatives were also not informed. Thus, Devidas and his family are bound to disclose everything. No such explanation is offered even in Section 313 examination. It is necessary to treat this conduct as "missing link" and to draw an adverse inference. He also submits the ligature mark was around entire neck i.e. on its all sides indicating strangulation. He points out spot panchnama, post mortem report to submit that in a small room filled with several articles, a 5''.3" (Five feet Three Inch) tall lady could not have committed suicide at all. As the challenge in appeal is only to conviction under Section 302, non-production of letters is not relevant. Burden was upon accused and his relatives to show that accused Devidas was not in the house at the relevant time and that has not been discharged. He also relies upon certain precedents which we will appreciate later on in this judgment.

In his brief reply, Shri Mardikar, learned Senior Counsel points out that as per PW-5 Tulsabai mother of Sunita, all accused persons killed her daughter. He urges that therefore all were charged and offence under Section 302 can not be made out only against Devidas on the strength of assumptions and presumptions.

This being the conviction based on circumstantial evidence only, we first find it necessary to consider facts having bearing on the issue of custodial death. Position as settled on availability of or recourse to Section 106 of the Evidence Act explained by the Hon''ble Apex Court in various judgments, can be applied thereafter. We also find it convenient to evaluate the law on drawing of an adverse inference, where the accused during his Section 313 Criminal Procedure Code examination, takes an incorrect or false stand, at the end of this judgment. From Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 : (1984) CriLJ 1738 : (1984) 2 SCALE 445 : (1984) 4 SCC 116 : (1985) 1 SCR 88 , law on the point of circumstantial evidence as settled by the Hon''ble Apex Court shows the approach to be adopted that Court should scrutinize entire evidence on record link wise without any prejudice against the accused and by keeping in mind the presumption of their innocence. After each such link, presumption could have been then drawn about involvement of the appellant if no other view of the matter was possible on the basis of such chain. In very judgment, Hon''ble Apex Court also observes:--

"159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved,

(2) the said circumstance points to the guilt of the accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.

If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal case where this Court observed thus: [SCC para 30, p. 43 : SCC (Cri) p. 322]

"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstances, if other circumstances point unfailingly to the guilt of the accused."

The law regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of Hon''ble Apex Court and the locus classicus of the decision of is the one rendered in the case of Hanumant Vs. The State of Madhya Pradesh, AIR 1952 SC 343 : (1953) CriLJ 129 : (1952) 1 SCR 1091 where Mahajan, J, clearly expounded the various concomitants of the proof of a case based purely on circumstantial evidence, and pointed out thus: "...the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved...it must be such as to show that within all human probability the act must have been done by the accused."

Thus, if any circumstance or situation appearing on record is left unattended, involvement of third party cannot be ruled out or overlooked and hence, presumption of innocence of accused cannot be defeated.

In Sandeep Vs. State of U.P., (2013) 115 CLT 366 : (2012) 5 SCALE 444 : (2012) 6 SCC 107 , in para 45 Hon''ble Apex Court in this context, refers to its decision reported in Prithipal Singh etc. Vs. State of Punjab and Another etc., (2012) 1 JCC 254 : (2011) 4 RCR(Criminal) 791 : (2011) 12 SCALE 411(1) : (2012) 1 SCC 10 : (2012) 1 UJ 245 , wherein at paragraph No. 53 it has been held as under:

"53. In State of West Bengal Vs. Mir Mohammad Omar and Others etc., AIR 2000 SC 2988 : (2000) CriLJ 4047 : (2000) 9 JT 467 : (2000) 6 SCALE 148 : (2000) 8 SCC 382 : (2000) 2 SCR 712 Supp : (2000) AIRSCW 3230 : (2000) 6 Supreme 172 this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 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. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."

Having mentioned the perspective to be adopted, we shall revert back to this exposition while considering the precedents cited by the respective Counsel.

Perusal of the impugned judgment reveals that accused Nos. 1, 3, 5, 7, 8 and 9 have been acquitted of offences punishable under Sections 498-A, 304-B and Section 302 read with Section 34 of Indian Penal Code. Present appellant - accused No. 6 Devidas is convicted of offences punishable under Section 302 of Indian Penal Code. Contention of Shri Mardikar, learned Senior Counsel about availability of Section 106 of Indian Evidence Act needs to be examined in this background.

In paragraph No. 33 of the impugned judgment, the learned Trial Court has mentioned total 5 circumstances, which according to it constitute a chain, so complete that it rules out any other conclusion or facts which are inconsistent with presumption of his innocence. Those 5 circumstances are:

(i) Sunita was asked by Devidas to bring T.V. From her parental house and she was later on asked to bring Rs. 10,000/- from her parental house.

(ii) Accused No. 6 Devidas was found sitting beside the dead body of Sunita and death of Sunita is held homicidal.

(iii) Parents of Sunita raised suspicion about her death by lodging prompt FIR to the police station.

(iv) Sunita died on 22.2.1996 as she on 19.2.1996 sent letter to her father which is missing.

(v) Her death occurred within nine months after the marriage and it is custodial death.

Devidas is acquitted of offence punishable under Section 304 Part-B of Indian Penal Code, and as such first circumstance that he had asked Sunita to bring T.V. from her parental house or later on to bring Rs. 10,000/- cannot be decisive in so far as her death on 22.02.1996 is, concerned. Fact that he was found sitting beside dead both of Sunita, cannot be an incriminating circumstance at all. Similarly, fact that Sunita did not die natural death, cannot be a circumstance which connects Devidas with said death. Third circumstance of parents of deceased Sunita expressing suspicion about her death by lodging FIR, again cannot be an incriminating circumstance. Fourth circumstance is about letter sent by Sunita on 19.02.1996 to her father, which is found to be missing. As the letter is missing, its contents are not known and hence, mere death of Sunita on 22.02.1996 cannot again constitute this missing letter, an incriminating circumstance. Last circumstance narrated by the trial Court is a custodial death within 9 months. The trial Court however, has not addressed the question whether Devidas was present at his residence when said death occurred.

P.W.4 Haribhau is brother of complainant Sukhdeo. He has been examined as his father Namdeo, who lodged FIR in the matter of death of Sunita expired in the meanwhile. He, in paragraph No. 1 points out that the alleged ill-treatment and harassment of Sunita by her in-laws. In paragraph No. 2, he states that at about 1.30 a.m. Dr. Kad of Marakhed came to their house and informed that Sunita was suffering from Typhoid. Sukhdeo was then sent along with Dr. Kad to Marakhed. Sukhdeo, is brother of deceased. 3 to 4 hours thereafter Haribhau along with his sister Pramila went to Marakhed. He found dead body of Sunita lying on mattresses in the house and police were preparing panchnama. Accused was then whispering that Sunita committed suicide by hanging. He has deposed that looking to over all circumstances, according to him Sunita did not commit suicide. Hence, all of them went to Jalgaon Jamod police station where Sukhdeo lodged report against the accused persons. He identified signature of Sukhdeo on report. Exh.66 is stated to be that report, while Exh.67 is its printed copy. Thus, this witness does not have any knowledge of what transpired exactly on 22.02.1996. It is interesting to note that report Exh.66 is filed on next day i.e. 24.02.1996. He has accepted that there was discussion between him and Sukhdeo, prior to lodging of that report. He further states that he had shown all letters sent by Sunita, to police and police had seized few letters.

As per prosecution, the incidence took place at about 2 p.m. on 22.02.1996 and report has been lodged on 24.02.1996 at about 8.30 p.m. Perusal of evidence of P.W.7 - Dnyandeo Andhale, who then worked as AS.I., shows that Sukhdeo has tendered a typed report which was then registered as FIR.

P.W.5 - Smt. Tulsabai Mankar is mother of the deceased. She states that Dr. Kad came to their house at midnight on 23.02.1996 and informed them that Sunita was suffering from typhoid. He has brought jeep to take them to Marakhed. Tulsabai, her husband - Sukhdeo and other relatives went in the jeep and reached there at 4 a.m. Sunita was lying in one of the rooms of her marital house, and her husband Devidas was sitting near her dead body. She deposes that they enquired from Devidas as to how Sunita died. Devidas told them that early in the morning i.e. on 22.02.1996, there was a quarrel in between the ladies and he separated it. He thereafter went to the field and when he came back, he found dead body of Sunita in the house. Tulsabai has alleged that all in-laws of Sunita killed her. She also deposes that letters written by Sunita were given to the police for investigation.

Evidence of P.W.8 - Anil Bobde, Police Inspector shows that on 22.02.1996, A.D. No. 10/1996 was registered at Jalgaon Jamod Police Station on the basis of a report given by Samadhan Mahadeo Kad pertaining to death of Sunita. This Samadhan is brother of Devidas and was co-accused No. 2, who died during the pendency of the trial. This A.D. is at Exh.78. This witness has further deposed that a written chit was found by him on 25.02.1996 and he seized it wide Panchnama Exh.51, and it was then forwarded to handwriting expert. Trial Court remarks that he was found negligent in giving evidence and adjourned its recording till noon. He has thereafter given details of the chit. Perusal of AD report at Exh.78 shows that therein date and hour of incident is mentioned as 16.30 hours on 22.02.1996, and report has been lodged at 20 hours on very same day. Cause of death is stated to be strangulation. Copy of the oral report given by Samadhan reveals that he has about 2 acres of agricultural land and he has three brothers. He is the eldest one. Devidas is his brother No. 4. He points out that all were residing separately. He was present in his grocery shop and small children from the village came and informed him that he was called at the house. He went to the house and found that his younger brother Devidas was crying. Devidas told him that when he returned home after doing labour work between 4 to 4.30 in the afternoon, he saw his wife Sunita hanging on wooden pole by a rope, in their residential house. She strangulated herself by the said rope. He removed the noose around her neck and took her down. He also informed Samadhan that she was dead. Samathan stated that he could not give any reason why she committed suicide.

P.W.3 Janardhan Damre is ASI to whom investigation of said A.D. was entrusted. He went to the spot on 23.02.1996, prepared spot panchnama. He also forwarded the dead body of Sunita for post mortem. His cross examination shows that on 22.02.1996, a police constable was deputed to guard the spot. He inspected the scene of offence throughly and a stool found on the spot was seized under panchnama. Parents of deceased were present when he reached the spot. Her parents and material uncle were issued notice requiring them to remain present on spot for preparation of inquest panchnama. He did not record statements of those relatives. Parents and maternal uncle of Sunita did not complain to him at the time of preparing inquest panchnama. Except for ligature marks, no other injury was found on the person of the deceased. Panchnama Exh.47 shows that it was drawn between 8 a.m. to 9 a.m on 23.02.1996. Exh.49, is the map of spot i.e. of room in which Sunita died.

P.W.1 Ramnath Pachpor is witness on spot panchnama and inquest panchnama. P.W.2 Shaligram Bawaskar is panch on articles seized by the police on 25.02.1996 from the spot. He stated that he could identify the chit seized on 25.02.1996, if shown to him. In cross examination he stated that chit was shown to him by the police in front of house of accused Kailash. House of accused Kailash is a separate room on Eastern side of the room in possession of Devidas.

P.W.3 Janardhan Damre, P.W.4 Haribhau Mankar, P.W.5 Tulsabai Mankar, P.W.7 - Dnyandeo Andhale and P.W.8 Anil Bobde, are already discussed/mentioned by us supra. P.W.6 - is a Lady Doctor, Dr. Ujwala Patil, who has performed post mortem of Sunita. This Doctor is not on point of presence of Devidas at house. Thus this is the only evidence available on record.

In report of accused No. 2 taken down while registering A.D., the fact that Devidas was not at his residence, when the alleged incident occurred, finds mention. P.W.5 Tulsabai, in chief itself stated that Devidas had informed her that incident occurred behind his back. Police authorities have not taken any pains to find out whether Devidas was present in his room on second floor of house, when the death of Sunita took place or then he was working as labour. Thus, a material or circumstance on record, which if correct, negates his involvement in the crime, has not been investigated into.

In Sohel Mehaboob Shaikh Vs. State of Maharashtra, AIR 2009 SC 2702 : (2009) 8 JT 297 : (2009) 5 SCALE 704 : (2009) 12 SCC 588 : (2009) 6 SCR 483 : (2009) AIRSCW 4145 , Hon''ble Apex Court points out the three circumstances brought on record by the prosecution and highlighted by the trial court and the High Court viz. "(i) Deceased Sofiya met with an unnatural death; (ii) Deceased Sofiya had died in the room which was solely and exclusively occupied by her and her husband i.e. Accused No. 1 and (iii) the appellant did not offered any explanation in respect of the incident in which deceased Sofiya had sustained burns." In paragraph 6, having gone through the evidence on record, it finds that the High Court had arrived at some conclusions which were based on surmises and conjectures, without there being any evidence in support. It held that the charge against the appellant was not established. The first and third circumstances are not found to be relevant either separately or collectively. So far as the second circumstance is concerned, there was no evidence to show circumstantially that the accused was present in the room at the time of occurrence. The time of occurrence, even by approximation has not been established by the prosecution. Hon. Apex Court, therefore, has set aside the judgment of conviction recorded by the trial court and upheld by the High Court.

Perusal of judgment of Hon''ble Apex Court in case of Dinesh Borthakur Vs. State of Assam, AIR 2008 SC 2205 : (2008) 4 SCALE 487 : (2008) 5 SCC 697 : (2008) AIRSCW 3301 , shows that it is on conduct of accused and also explains how theory of last seem can be applied. It observes in paragraph 47 that no hard-and-fast rule having any universal application with regard to the reaction of a person in a given circumstance can be laid down. One person may lose equilibrium and balance of mind, but, another may remain a silent spectator till he is able to reconcile himself and then react in his own way. Thus, merely because the appellant did not cry or weep on witnessing the dead bodies of his wife and daughter, can not form the basis for inferring his guilt. In facts before it the Hon''ble Court mentions that:--

"48. If he had gone to his office and come back therefrom between 11.30 a.m. till 4/5 p.m., the matter might have been different. If the theory that he could have committed the murder within a couple of minutes is ruled out, we fail to see on what basis even a suspicion could have been raised that the appellant had committed the crime. It is not the case of the prosecution that the deceased were last seen in the company of the appellant. Nobody had seen him going inside his house or coming out at the time of or near about the commission of the crime. The matter might have been different if some evidence had been introduced to suggest that the offence was committed sometime between 11.30 a.m. and 4/5 p.m. Ordinarily, an accused person after commission of such a ghastly crime would run away from the scene of occurrence but he did not do so. Even if he was to pretend that he did not know about the said occurrence, he could have stayed back in his office waiting for the call of his neighbours about the death of his wife and daughter.

His conduct or reaction (or lack of it) by itself, thus, cannot be a ground for arriving at a conclusion that he is guilty of commission of crime. Formation of another opinion is also possible."

In Dinesh Borthakur Vs. State of Assam, AIR 2008 SC 2205 : (2008) 4 SCALE 487 : (2008) 5 SCC 697 : (2008) AIRSCW 3301 , the Hon''ble Apex Court refers to importance of proof of motive in case based on circumstantial evidence and states that a finding of guilt cannot be based on a presumption. Before arriving at an inference that the appellant committed an offence, existence of materials therefor ought to have been found. Hon''ble Court notices that no motive for committing the crime was identified which, in the facts and circumstances of the case, was relevant. How the links in the chain of the circumstances led to only one conclusion that the appellant accused and he alone was guilty of commission of the offence was not found spelt out by the learned trial Judge.

In The State of Maharashtra Vs. Vivek Gangadhar Thakare, Gangadhar Balwant Thakare and Mrs. Muktabai Gangadhar Thakare, (2005) 107 BOMLR 180 : (2005) CriLJ 3625 , the Division Bench of this Court holds that there was no possibility of torture as there were no earlier complaints and deceased did visit house of her parents within span of five months. Thus, it only records a finding of fact.

Learned APP has relied upon a judgment in case of Ganeshlal Vs. State of Maharashtra, (1992) CriLJ 1545 : (1992) 2 Crimes 161 : (1993) 1 DMC 326 : (1992) 2 JT 592 : (1992) 1 SCALE 811 : (1992) 3 SCC 106 : (1992) 2 SCR 502 , where the Hon''ble Apex Court has found that the evidence on record does establish that more than one would be participant to murder Kanchana. The absence of an appeal against acquittal of A-1 and A-3 to A-6, namely, Hiralal, Ayodhyabai, Premlata, Aruna and Rameshwar, all of them or who among them shared common intention with the appellant was held obviated. The appellant was the principal perpetrator of the crime or one among the accused that shared common intention to murder Kanchana. The conviction of the appellant was accordingly altered to one under Section 302 read with Section 34 I.P.C. Hon''ble Court convicted him for the murder of his wife, Kanchana under Section 302 read with Section 34 I.P.C. and sentenced to undergo rigorous imprisonment for life. His conviction under Section 201 was set aside. Learned APP submits that in this matter before the Hon''ble Apex Court, the incident had taken place in a room on third floor and was found to be custodial death. Facts seen in paragraph 6 of this judgment and appreciation thereafter is sufficient to repel this argument of APP. We find from paragraph 11 of said judgment that Hon''ble Apex Court concluded from the evidence on record that the accused appellant and his family members were present in the house at the time when the deceased was burning due to fire lit after pouring kerosene on her and they made no attempt to save her. Appellant''s contention that the Doctor had stated that the death was instantaneous and nothing was left for the appellant and the other family members to save her, was held unacceptable. The normal ordinary human conduct that when one of their inmates, namely Kanchana was in flames, they would have made every endeavor to save her life, if it were a case of suicide, and call the people to come to their rescue to save her life or at least would have sought first aid from PW 6, a next door neighbour, to save the life of the deceased; was absent.

Learned APP also places reliance upon a judgment in case of State of T.N. Vs. P. Muniappan, AIR 1998 SC 504 : (1998) CriLJ 694 : (1998) 1 Crimes 74 : (1998) 2 DMC 342 : (1997) 9 JT 572 : (1997) 7 SCALE 358 : (1998) 1 SCC 515 : (1997) 6 SCR 124 Supp : (1998) AIRSCW 90 : (1997) 10 Supreme 580 , to urge that burden was upon appellant Devidas here to explain the circumstances in which death of his wife Sunita occurred. We find the reliance on this precedent misplaced as Hon''ble Apex Court, in paragraph 11 of this judgment observes that according to the respondent he had coitus with deceased and she wanted to get up early in the morning, clean the house and go to the temple. Obviously she had no reason to commit suicide. It is in this background that the following circumstances have been evaluated by Hon''ble Apex Court:--

(i) The respondent had strong motive to put her out of the way before the petition for divorce fixed for 8-7-1982 finally was taken up for hearing. The respondent had developed hatred towards her and drove her out of the house (vide Ex. P-2 para 5). He refused to withdraw the petition for divorce though she came to live with him. He was repeatedly insisting upon her consent for his second marriage or divorce.

(ii) He was the only other occupant of the house in which she met with the unnatural end.

(iii) His varied explanations for sleeping separately outside the house are totally unbelievable.

(iv) The burn injuries on the body of Nagammal which were not in existence on the evening of 1-7-1982. There being no resist injuries the only inference possible in the circumstances is that the respondent caused them before or after her death.

(v) The dishevelled hair and the disturbed dress with the blouse and bra being open show that there was a struggle before her death. The witnesses who saw her body have deposed that the saree was just put around the body. Her feet were touching the floor. There is no evidence to show that the cardboard box alleged to have been by the side of the body could have borne her weight.

(vi) The conduct of the respondent in rushing to the police station without going inside the house and finding out whether she was dead is also relevant.

The ''thali'' (mangalsutra) was not on the neck of the deceased but it was with the respondent.

In the light of this material on record, Hon''ble Apex Court found that the above circumstances lead to only one conclusion, that is, of guilt of the respondent. Other judgment of the Hon''ble Apex Court reported at Trimukh Maroti Kirkan Vs. State of Maharashtra, (2007) CLT 471 Supp : (2007) CriLJ 20 : (2006) 2 DMC 757 : (2006) 9 JT 50 : (2006) 10 SCALE 190 : (2006) 10 SCC 681 : (2006) 8 SCR 156 Supp : (2006) 148 STC 638 , relied upon by him to buttress very same proposition is again distinguishable on facts. There the Hon''ble Court explains that where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case is undoubtedly upon the prosecution, but, the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. The other principle of law which must be kept in mind in a case based on circumstantial evidence where no eye- witness account is available pointed out by it is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. In present case, the other inmates of the house i.e. all in-laws of the deceased Sunita are already acquitted and that acquittal is not assailed before this Court. Devidas has brought on record a circumstance of his absence from the house when the unfortunate death occurred. This circumstance has not been inquired into and as such, principles noted supra and illustrated in judgment of Hon''ble Apex Court have no bearing here.

The finding that death is homicidal has also been seriously attacked by pointing out that P.W.6 - Doctor does not point out the prompt time of death in post mortem report at Exh.72. It is further submitted that her finding about dislocation of left shoulder joint is not supported on record. The answers given by her in response to the query letter are also pressed into service with submission that the police authorities after receipt of the post mortem report or then in any case, answer to query vide Exh.73, ought to have undertaken investigation to find out whether there was dislocation of left shoulder at the time of hanging. Our attention is invited to cross examination of said Doctor to urge that Doctor has supported said finding by pointing a capsular tear, but, then there is no such observation in the post mortem report. It is further pointed out that though brain asphyxia is the reason disclosed for death, compression of carotid artery, is not mentioned in the report. It is submitted that thus, the finding that death was homicidal and there was no suicide, cannot be accepted.

Query report contains answer given on 04.03.1996 by the said Doctor vide Exh.73. In it, she has stated that there was shoulder dislocation on left side. Capsular tear existed. That injury was ante mortem i.e. "just before death few hours". The literature on shoulder dislocation shows that it is normally associated with capsular tear. It is obvious that said capsular tear cannot be seen externally and Doctor has not mentioned any internal injury at shoulder either to muscles or tissues. She has answered in cross examination that there is science to ascertain age of injury. She has further deposed that old dislocation may be ascertained by scar tissue in and above the capsule. However, there is no such examination undertaken by her. At least the post mortem report does not support said exercise. Question therefore is - Whether dislocation was old or was caused during hanging? Material on record does not enable us to answer it definitely.

We may add that medical Literature also shows that asphyxia means lack of oxygen. This can happen without anyone knowing. Without oxygen, cells cannot work properly. Waste products (acids) build up in the cells and cause temporary or permanent damage. Carotid arteries are two and placed at the front in the neck on side of the windpipe. and carry blood from the heart to the brain. They supply blood in excess of 90% to the brain. The carotids get interconnected in the brain matter and blocking a single artery has little effect. Compressing of its both branches can lead to unconsciousness first and then death in 2 to 4 minutes. A little study to understand the exact meaning of shoulder dislocation reveals that the capsular ligament of the shoulder is surrounded and reinforced by muscles, tendons, and ligaments, which keep the adjoining components together. A capsule is described as a membrane or sac enclosing a body part, usually a joint. Though it completely covers the joint, the capsule is very loose and is unable to keep the bones of joint in close contact of itself without the aid of fibers around it. When the ligaments stretch or tear, the shoulder is likely to dislocate. Thus, though brain asphyxia is proved, the shoulder dislocation has not been established by bringing on record the examination undertaken by Dr. Patil during postmortem.

The time of death mentioned in the AD has not been disputed by the prosecution. The report thereof has been lodged belatedly, but, there is no investigation into the cause of said delay. The spot panchnama of room in possession of the deceased and appellant as also its map shows East-West wooden pole [rafter] to which rope could have been tied. The East-West length of the room is 8.3 feet, part of it is occupied by an iron cot, which is 3 1/2 feet in width and its part falls under the above mentioned rafter. The said rafter is at height of 7 feet from the floor of the room. Height of deceased as per the inquest panchnama was about 5.3 feet. Considering the height of the cot i.e. 21 inches and its position, it is apparent that anyone with height of 5.3 feet could have easily reached the rafter by standing on the cot. The portion of room left open after said cot is about 5 feet. North- South width of the room is about 8 feet. In this open portion there is one almirah at its Southern end and a T.V. set at the Northern end. Thus, this rafter could have been used for hanging, if knot is slid in Eastern direction. However, position of the rope is shown at the center of the said pole. This hanging nylon rope is tied to this pole at its one end and it is at a distance of 17 inches from Southern wall with one iron hook fitter in the running knot. Question is, whether a person with physic like the deceased could have avoided standing on cot when she was attempting suicide? If a person fighting for breath may involuntarily stand on such cot as a natural reflex, perhaps the suicide may be ruled out. If death occurs even in such circumstance, whether it is murder? There is no definite answer even to this question.

We therefore, find that the investigation has not been carried out properly. It was essential for the prosecution to find out whether suicide could have been committed in the said room. It was also essential for the prosecution to find out whether in the month of February, 1996 Devidas was doing any labour work in the afternoon, as claimed by him. Thus, circumstances which could have brought on record the role of or nexus of appellant Devidas with said death have been ignored or avoided by the investigating officer. It cannot be therefore said that the chain of circumstances on record in so far as the appellant Devidas is concerned, is so complete as to lead to only conclusion of his involvement in death of Sunita or to rule out involvement of anybody else in the matter. There were other persons in the family and prosecution does not point out that they were not present in the house. Moreover, the trial Court has acquitted them and it has attained finality. Investigation into the circumstance which if found correct, is sufficient to rule out involvement of Devidas or may further presumption of innocence in his favour has not been done. If the appellant''s stand is correct, it may show that some third person may have murdered Sunita. Hence, even if we presume that finding on homicidal death of Sunita is correct, Devidas alone can not be blamed for it. In this situation, we are inclined to give benefit of doubt to the appellant Devidas also.

However, the learned APP has drawn our attention to the law laid down by the Hon''ble Apex Court in Anthony D''Souza and Others Vs. State of Karnataka, AIR 2003 SC 258 : (2003) CriLJ 434 : (2002) 9 JT 257 : (2003) 1 SCC 259 . There, in paragraph 15, Apex Court points out that in Swapan Patra v. State of W.B. (1999) 9 SCC 242) it has said that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found not to be true then the same offers an additional link in the chain of circumstances to complete the chain. The same principle has been followed and reiterated in State of Maharashtra Vs. Suresh, (1999) 9 JT 513 : (1999) 7 SCALE 386 : (2000) 1 SCC 471 : (1999) 5 SCR 215 Supp : (2000) 1 UJ 326 where it has been said that a false answer offered by the accused when his attention was drawn to a circumstance, renders that circumstance capable of inculpating him. Hon''ble Apex Court further pointed out that in such a situation false answer can also be counted as providing a missing link for completing the chain. The aforesaid principle has been again followed and reiterated by it in Kuldeep Singh and Others Vs. State of Rajasthan, AIR 2000 SC 3649 : (2001) CriLJ 479 : (2000) 5 JT 161 : (2000) 4 SCALE 38 : (2000) 5 SCC 7 : (2000) 2 UJ 1443 : (2000) AIRSCW 4266 : (2000) 3 Supreme 458 . However, reason for this perspective can be seen in paragraph 14 where the fact that accused were injured in very same accident and were treated at various hospitals has also been found established on record. Such facts to enable us to hold that appellant Devidas has given a false answer in his examination under Section 313 Criminal Procedure Code are not brought on record by the prosecution in present matter. Reliance upon Rajkumar Vs. State of M.P., (2014) AIRSCW 1795 : (2014) CriLJ 1943 : (2014) 3 JT 587 : (2014) 2 RCR(Criminal) 45 : (2014) 3 SCALE 42 : (2014) 5 SCC 353 , by the learned APP is again misconceived. There the Hon''ble Apex Court points out in paragraph Nos. 22 and 23 that the accused has a duty to furnish an explanation in his statement under Section 313 Criminal Procedure Code regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Criminal Procedure Code is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. (Vide Ramnaresh v. State of Chhattisgarh, Munish Mubar v. State of Haryana and Raj Kumar Singh v. State of Rajasthan.) In case before the Hon''ble Apex Court, as the appellant had not taken any defence or furnished any explanation as to any of the incriminating material placed to him by the trial court, the courts below were rightly held to have drawn an adverse inference against him. That appellant had not denied his presence in the house on that night. Hon''ble Apex Court, in this background, observed that when the children were left in the custody of the appellant, he was bound to explain as under what circumstances the prosecutrix, aged 14 years died. In Rumi Bora Dutta Vs. State of Assam, (2013) 6 AD 511 : AIR 2013 SC 2422 : (2013) CriLJ 3260 : (2013) 9 JT 296 : (2013) 7 SCALE 535 : (2013) 7 SCC 417 : (2013) AIRSCW 3517 : (2013) 4 Supreme 488 , the Hon''ble Apex Court adverts to the issue pertaining to falsehood by citing State of Maharashtra v. Suresh (supra) wherein it has been held that a false answer offered by the accused when his attention is drawn to the circumstances, it renders the circumstances to be of inculpating nature. It reiterated that in such a situation a false answer can also be counted as providing "a missing link" for completing the chain. In the case at its hand, Hon''ble Apex Court notes that the accused persons had led to recovery was proved. When it was put to accused, they had given an answer in the negative in a nonchalant manner. As presence of accused Devidas at the time of death or then his absence in the field to do labour work is not brought on record by the prosecution, it is apparent that there is no scope to draw an adverse inference against him or to construe it as a "missing link". In Rohtash Kumar Vs. State of Haryana, (2013) 6 AD 580 : (2013) CriLJ 3183 : (2013) 8 JT 181 : (2013) 3 RCR(Criminal) 355 : (2013) 7 SCALE 472 : (2013) 14 SCC 434 also needs to be distinguished for same reasons. There the Hon''ble Apex Court in para 18, lays down that minor discrepancies, omissions or contradictions not going to root of matter need to be ignored and cannot be given undue weightage. However, in present facts when other occupants are already acquitted, we find that this law can not save the situation for prosecution.

Accordingly, we pass the following order:--

(i) Criminal Appeal is allowed.

(ii) The appellant - Devidas Mahadeo Kad is acquitted of the offence punishable under Section 302 of the Indian Penal Code. Judgment dated 16.06.2005 delivered by the Additional Sessions Judge, Khamgaon in Sessions Trial No. 44/1996 is quashed and set aside, so far as it relates to conviction of the appellant - Devidas.

(iii) Bail bonds furnished by him are cancelled.

(iv) Seized property i.e. rope and sickle be destroyed after the appeal period is over.

(v) Similarly, seized property i.e. T.V. be returned to P.W.5-Tulsabai, after the appeal period is over.