Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1154 OF 2018
Parubai .…Appellant(s)
Versus
The State of Maharashtra …. Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
1. The appellant is before this Court in this appeal
assailing the judgment dated 12.10.2017 passed by the
High Court of Judicature at Bombay, Bench at
Aurangabad in Criminal Appeal No.488/2007. By the
said judgment the High Court has dismissed the appeal
filed by the appellant herein and the judgment dated
16.11.2007 passed by the Learned Sessions Judge
Parbhani in Sessions Case No.27/2007, convicting the
Signature Not Verified
appellant in respect of the offence punishable under
Digitally signed by R
Natarajan
Date: 2021.08.10
17:35:12 IST
Reason:
Page 1 of 23
Section 302 and 436 of the Indian Penal Code (‘IPC’ for
short) is confirmed.
2. The appellant was charged of the offence as
accused No.1 while her husband Gulab and his mother
i.e., motherinlaw of the appellant were charged as
accused Nos. 2 and 3. The accused Nos. 2 and 3 were
acquitted by the Sessions Court. In that view, the appeal
before the High Court and the present consideration is
limited to the conviction of the appellant herein who is
accused No.1. The case of the prosecution is that Gulab
son of Gajanan Watane was married to the deceased
Mandabai and they had two children namely Akash, a
son aged 5 years and Nikita, the daughter aged 2 years.
The said Gulab had an extra marital affair with the
appellant and ultimately married her on 02.01.2006 and
got their marriage registered on 18.02.2006. Thereafter
the appellant was also living with her husband and
Mandabai, the wife from the first marriage. The parents of
Gulab were also living with them and were residing in the
small house which consisted of three rooms. One of the
rooms in the house was occupied by their servant named
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Piraji Mankari. When this was the position the husband
of the appellant Gulab had gone to Jalna on 02.08.2006
to procure tyres for the tractor. The motherinlaw had
gone to her daughter’s place to assist her for delivery.
When this was the position, on the intervening
3.
night of 2/3.08.2006 at about 2.30 to 3.00 am an
incident of fire occurred and the house in which the
appellant and her family were residing was engulfed in
flames. The appellant who was also in the house had
come out of the house unscathed while Mandabai the
first wife of Gulab and their daughter Nikita rushed out of
the house with burn injuries, while their son Akash got
burnt to death inside the house. The fatherinlaw of the
appellant was stated to be sleeping outside the house on
a cot and having woken up in the confusion, noticing the
injuries suffered by his daughterinlaw Mandabai and
granddaughter Nikita had instructed the servant Piraji
Mankari to secure a jeep and shift them to hospital.
Accordingly, they were shifted to the hospital where on
the next day the said Mandabai and her daughter Nikita
died due to the burn injuries suffered by them.
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4. The fatherinlaw of the appellant namely Gajanan
had lodged a complaint and had also implicated the
appellant. In that light, keeping in view the allegation
made by Chhaya, the sister of the deceased, the husband
of the appellant and motherinlaw were also included
and charged for the offence as accused No.2 and 3. The
prosecution had examined PW1 to PW9 and the trial
court on taking note of the evidence had arrived at the
conclusion that the case against the accused No. 2 and 3
had not been proved and the evidence of PW2 to
implicate them was not trustworthy. However, insofar as
the appellant herein, the Sessions Court had taken note
of the evidence tendered by PW1 and PW3 that the
appellant was also sleeping along with the deceased and
in that circumstance was of the opinion that if the house
caught fire accidently then the appellant also should have
suffered burn injuries. Since she had come out of the
house without any injuries it was held that she is guilty.
The other circumstances noticed by the trial court was
that the spot Panchnama indicated that the frock of the
deceased Nikita had been seized from the place of
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occurrence and the Chemical analysis report was that it
had kerosene stains. The recovery of a can which smelt of
kerosene from the bushes as stated by PW8 Kerba
Balajirao Phad, P.S.I., was taken into consideration with
reference to the recovery Panchnama at Exhibit 41.
5. The Sessions Court was of the opinion that the
appellant had a strong motive and had the opportunity of
committing the act. It held that if the appellant is to be
excluded, there should have been a reasonable possibility
of anyone else being the real culprit, as such the chain of
evidence can be considered to be complete as to show
that in all probabilities the crime must have been
committed by the appellant. For this the appellant
sleeping in the same room as the deceased was sleeping
and that the appellant did not suffer any injuries were
held as the circumstances to rule out the possibility of
accidental fire. Since the appellant had not explained how
she came out of the room without any burn injuries and
deceased Mandabai had suffered injuries, coupled with
the kerosene residues traced on the frock of Nikita, the
Sessions Court held that adverse inference can be drawn
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that the appellant set fire to the house. The fact that she
was the second wife and the husband of the appellant
had executed an agreement transferring his land in
favour of deceased Mandabai was held as the motive to
commit the offence, more particularly since she wanted to
establish her dominance in the house.
6. The High Court while considering the matter and
reappreciating the evidence had discarded the extra
judicial confession and further disbelieved the evidence of
PW1 which had been relied upon by the Sessions Court.
The High Court was of the view that Gajanan (PW1) the
fatherinlaw who was the informant could not have
happily accepted the appellant as the second wife of his
son when he had already got married to deceased
Mandabai. This was the reason for the High Court for not
finding it worthy of placing reliance on the extrajudicial
confession stated to have been made to him that she had
sprinkled kerosene and set fire. In that regard, the High
Court had appropriately taken note from the decision
rendered by this Court indicating that extrajudicial
confession is a weak evidence by itself.
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7. The High Court has thereafter taken note of the
evidence tendered through Vijay (PW4) and the Police
SubInspector Phad (PW8) with regard to the recovery of
the kerosene can at the instance of the appellant when
she was in police custody. The recovery was disbelieved
since the said can had not been sent for chemical
analysis. As such the said circumstance accepted by the
Sessions Court was also discarded. Further, the oral
dying declaration said to have been made to a sister of
the deceased Chhaya (PW2) had been disbelieved by the
trial court which was also approved and was noted as not
reliable, by the High Court. The dying declaration
recorded by the police head constable was taken note.
The High Court ultimately arrived at its conclusion that
the appellant is guilty of committing the offence since
admittedly the appellant had not sustained the slightest
injury due to the fire which means that she left the house
well in advance to the spreading of fire. The circumstance
held against the appellant is that she did not try to alarm
the deceased Mandabai and her children to leave the
house so as to save them from fire, nor did she try to
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bring the small children out of the house to save their
lives. The High Court further assumed that she did not
shout immediately and waited until the deceased
Mandabai and her children were fully caught by flames.
After referring to the abovesaid circumstance, the
8.
High Court ultimately recorded its conclusion as
hereunder:
“26. All the above circumstances speak
volumes about the guilty mind of the
appellant. It is only after she saw the
deceased Mandabai coming out of the house
along with her burning daughter, that she
raised shouts to make a show that she was
totally innocent. In the circumstances, the
absence of any injury on her person also
would be a material circumstance to prove the
guilty mind of the appellant. If that be so, only
because the deceased Mandabai stated that
she had no suspicion against anybody and
particularly did not raise suspicion against
the appellant behind the incident, it cannot be
said that the dying declarations (Exhs. 37 and
38) would be helpful to the appellant to
establish her innocence.
27. The burnt frock of the deceased Nikita
was seized vide panchnama (Exh. 34). PSI
Phad (PW 8) (Exh.48) deposes that he sent the
said frock to the C.A. for analysis and report
vide letter (Exh.50). The C.A. report (Exh.50)
shows that kerosene residues were detected
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thereon. It is, thus, clear that kerosene was
used for setting the deceased Nikita on fire.
28. The marriage certificate (Exh.29) shows
that the marriage of the appellant and
accused No.2 was registered on 18.02.2006.
The agreement (Exh.31) has been executed on
17.02.2006 i.e. one day prior to registration of
marriage of the appellant with accused no.2.
From the contents of this agreement, it seems
that the deceased Mandabai was rather
skeptic about her future after the marriage of
the appellant with accused no.2. Therefore,
she obtained a written assurance from
accused no.2 that after his marriage with the
appellant, he would maintain the deceased
Mandabai and her children properly. Accused
no.2 further assured to transfer certain land
in the name of the deceased Mandabai. The
appellant started residing in the house of
accused no.2 after the marriage. It was quite
natural on the part of the appellant as well as
that of the deceased Mandabai to dominate
each other to have control over the family
matters. The deceased Mandabai and her
children certainly would have come in the way
of the appellant in establishing her primacy in
the house. It is difficult to establish motive by
any direct evidence. It has to be inferred on
the basis of the attending circumstances.
From the facts and circumstances emerging
from the evidence, it is clear that in order to
have the dominating position in the house,
the appellant finished the deceased Mandabai
and her children.
29. The appellant alone was inside the
house in the night of the incident besides the
deceased Mandabai and her children. As
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stated above, she went out of the house much
prior to spreading of the fire, In view of
Section 106 of the Evidence Act, she was
under an obligation to explain the
circumstances, which were within her special
knowledge, under which the fire erupted. She
did not at all discharge this burden by giving
any explanation behind eruption of fire. All
these circumstances clearly show that it is the
appellant, who poured kerosene around the
persons of the deceased Mandabai and her
children and set them on fire.
30. The prosecution established beyond
reasonable doubt that it is the appellant only,
who set the deceased Mandabai and her
children on fire with a view to remove them
from her marital life with accused no.2. If that
be so, in view of the medical evidence, the
deaths of the deceased Mandabai and her
children would certainly be homicidal. The
appellant set the dwelling house on fire. The
learned trial Judge rightly convicted the
appellant of the offences punishable under
Sections 302 and 436 of the I.P.C.
We concur with the findings recorded by the
learned trial Judge holding the appellant
guilty of the said offences. We further concur
with the order of sentence passed by the
learned trial Judge against the appellant. The
appeal is devoid of substance. It is liable to be
dismissed.”
In the above background, having heard Mr.
9.
Sudhanshu S. Choudhari, learned counsel for the
Page 10 of 23
appellant and Mr. Sachin Patil, learned counsel on behalf
the respondentState of Maharashtra we have perused
the material on record.
As noted, the conclusion as reached by the High
10.
Court would indicate that the evidence tendered on behalf
of the prosecution has been discarded as not trustworthy
but ultimately the conclusion has been reached on the
assumption made only due to the fact that the appellant
had not suffered injuries in the fire accident. It is no
doubt true that the incident which occurred in this case,
if caused by any person with an intention to cause death,
is certainly gruesome as it resulted in the death of three
persons of which two were small children and is
unpardonable. However, in a case where the appellant
was proceeded against mainly based on the extrajudicial
confession said to have been made to her fatherinlaw
namely Gajanan (PW1) and the said evidence has been
disbelieved by the High Court as not being trustworthy,
the issue would be as to whether the chain of
circumstances to convict the appellant is complete.
Page 11 of 23
11. We have extracted the reasons assigned and
conclusion reached by the High Court in the earlier
portion of this order only to note that the High Court has
held the appellant guilty more on preponderance of
probability rather than reaching a conclusion beyond
reasonable doubt. Though it has employed the phrase
‘beyond reasonable doubt’ in its concluding paragraph,
the reasoning preceding the same are only conjectures
and surmises. The sole circumstance noted by the High
Court with reference to the evidence is that the burnt
frock of deceased Nikita was seized, vide a Panchnama
(Exhibit 34) and the evidence of PW8 that the frock had
been sent for chemical analysis and the report as per
Exhibit 50 shows that Kerosene residues were detected
thereon. In that circumstance, the High Court has held
that kerosene was used for setting the deceased Nikita on
fire. Even if that was taken as a circumstance in the
chain, the same was insufficient unless the other
circumstances in the chain were connected to point at the
appellant. In that regard, what is relevant to be noted is
that the High Court has in its earlier part of the
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reasoning disbelieved the recovery of the can which is
stated who have smelt of kerosene since the said can had
not been sent for chemical analysis and also the
circumstance under which it was said to have been
recovered.
12. If that be the position, even if the chemical
analysis report referring to the frock is accepted there is
nothing on record to connect that the appellant was
responsible for the sprinkling of the kerosene or for the
kerosene to have come in contact with the frock of Nikita
which is said to have been recovered from the place of
occurrence. That apart, the declaration of Mandabai, the
deceased on 03.08.2006 discloses that since there is no
electricity in the agricultural field, they sleep in the house
and keep a lantern light in the night for which kerosene
is obviously used. Further, it has come in evidence that
in the said house cooking is also done and the material
pertaining to the tractor including diesel can was also
kept therein. Therefore, the circumstance that the
appellant was not injured in the incident cannot be the
basis to rely on the presence of kerosene stains on the
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frock as a circumstance that she had set fire by
sprinkling kerosene.
13. The position of law is well settled that the links in
the chain of circumstances is necessary to be established
for conviction on the basis of circumstantial evidence.
This has been articulated in one of the early decisions of
this Court in the case of Sharad Birdhichand Sarda v.
, (1984) 4 SCC 116. The relevant
State of Maharashtra
paragraphs are as hereunder:
“153. A close analysis of this decision would
show that the following conditions must be
fulfilled before a case against an accused can
be said to be fully established:
( 1 ) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
It may be noted here that this Court indicated
that the circumstances concerned “must or
should” and not “may be” established. There
is not only a grammatical but a legal
distinction between “may be proved” and
“must be or should be proved” as was held by
this Court in Shivaji Sahabrao Bobade v.
State of Maharashtra where the observations
were made: [SCC para 19, p. 807: SCC (Cri) p.
1047]
Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
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distance between ‘may be’ and ‘must be’ is
long and divides vague conjectures from sure
conclusions.”
( 2 ) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,
( 3 ) the circumstances should be of a
conclusive nature and tendency,
( ) they should exclude every possible
4
hypothesis except the one to be proved, and
( 5 ) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that
in all human probability the act must have
been done by the accused.
154. These five golden principles, if we may
say so, constitute the panchsheel of the proof
of a case based on circumstantial evidence.
It will be seen that this Court while
159.
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
Page 15 of 23
( 3 ) the circumstance is in proximity to the
time and situation.
If these conditions are fulfilled only then
160.
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.”
14. Further the mere suspicion would not be sufficient,
unless the circumstantial evidence tendered by the
prosecution leads to the conclusion that it “must be true”
and not “may be true”. In that regard, it is necessary to
take note of the decision of this Court in the case of
Devilal Vs. State of Rajasthan (2019) 19 SCC 447,
wherein this Court on noting the decision of the case
(supra) has held as
Sharad Birdhichand Sarda
hereunder;
Page 16 of 23
“17. It has further been considered by this
Court in Sujit Biswas v. State of Assam
2013(12) SCC 406 and Raja v. State of
Haryana 2015(11) SCC 43. It has been
propounded that while scrutinising the
circumstantial evidence, a court has to
evaluate it to ensure the chain of events is
established clearly and completely to rule out
any reasonable likelihood of innocence of the
accused. The underlying principle is whether
the chain is complete or not, indeed it would
depend on the facts of each case emanating
from the evidence and there cannot be a
straightjacket formula which can be laid down
for the purpose. But the circumstances
adduced when considered collectively, it must
lead only to the conclusion that there cannot
be a person other than the accused who alone
is the perpetrator of the crime alleged and the
circumstances must establish the conclusive
nature consistent only with the hypothesis of
the guilt of the accused.
18. On an analysis of the overall fact situation
in the instant case, and considering the chain
of circumstantial evidence relied upon by the
prosecution and noticed by the High Court in
the impugned judgment, to prove the charge
is visibly incomplete and incoherent to permit
conviction of the appellants on the basis
thereof without any trace of doubt. Though
the materials on record hold some suspicion
towards them, but the prosecution has failed
to elevate its case from the realm of “may be
true” to the plane of “must be true” as is
indispensably required in law for conviction
on a criminal charge. It is trite to state that in
a criminal trial, suspicion, howsoever grave,
cannot substitute proof.
Page 17 of 23
19. That apart, in the case of circumstantial
evidence, two views are possible on the case of
record, one pointing to the guilt of the
accused and the other his innocence. The
accused is indeed entitled to have the benefit
of one which is favourable to him. All the
judicially laid parameters, defining the quality
and content of the circumstantial evidence,
bring home the guilt of the accused on a
criminal charge, we find no difficulty to hold
that the prosecution, in the case in hand, has
failed to meet the same.”
15. In that backdrop, a perusal of the judgment passed
by the Session’s Court as well as the High Court in the
instant case, for its ultimate conclusion has made
suspicion the reason for rendering conviction without
there being any strong basis. The suspicion, however
strong, cannot take the place of proof. Unfortunately,
with the nature of observations made by the High Court
as extracted above, it has ultimately held that the
prosecution has established beyond reasonable doubt
that it is the appellant only who has set the deceased
Mandabai and her children on fire with a view to remove
them from her marital life with accused No.2. If the facts
as noted by the High Court lead to such suspicion,
equally there are also circumstances which raise a doubt
Page 18 of 23
whether the appellant can be held guilty only because she
was not injured in the incident. In that regard, what is to
be noted is that the natural human conduct is that when
there is any incident or accident the immediate reaction
is to get away from the scene and save oneself. If in the
middle of the night for whatever reason there was fire and
if the appellant had woken up and noticed it a little
earlier, the natural conduct is to run out of the house
instead of going into the house which is burning to check
on the other inmates. It takes a person lot of courage or
be overdriven with compassion to get back into the house
to save somebody else and not doing so may be
considered as morally wrong for not coming to the aid of
fellow human being in distress, but it cannot be a
circumstance to hold a person guilty of a crime which is
as serious as murder unless the other circumstances in
the chain point to the accused so as to lead to an
irresistible conclusion of being guilty.
16. If the appellant was responsible for causing the fire
with the intention to kill Mandabai, would not she have
closed the door after coming out of the house to ensure
Page 19 of 23
that she does not come out. On the other hand,
Mandabai who came out alive and lived for a day has not
blamed or suspected anybody including the appellant.
She would have stated about the overt act if any was
indulged in by the appellant. Her declaration is clear that
the house caught fire and she and her children were
caught in the fire. She did not state that the fire set on
her had spread to the house. Further even as per the
statement of PW1, that is Gajanan, the fatherinlaw, he
was sleeping just outside the house and on hearing the
appellant shouting he woke up and the deceased had
stated that he was awake when she came out. Neither
has he stated of the efforts made by him to save the
deceased. But it is only after the deceased and the
granddaughter came out, steps were taken. One other
circumstance is also that the admitted position is that the
house had three rooms, one of which was occupied by
PW 3 Piraji Mankari and his family, the fire accident was
of the nature which had destroyed the entire house and
also the adjoining cowshed etc. Even in that position the
said Piraji Mankari and others were also not injured.
Page 20 of 23
Therefore, not being injured alone cannot be held as a
circumstance to hold one guilty of having set fire to the
house.
The High Court has further held the second
17.
marriage; the desire for domestic dominance and the
execution of document for maintenance on 17.02.2006,
that is, a day before registration of the marriage as a
circumstance and motive, which we are unable to accept.
This is for the reason that the marriage had been
registered after an arrangement for maintenance was
made in favour of the first wife for only a portion of the
property which is a normal thing in such circumstance
and it cannot be held as a strong motive for an alleged
crime of the present nature where the appellant would
destroy her own house and that too without there being
any other incident when they have lived together in the
same house and the fire incident has occurred after more
than six months from the date of marriage. Therefore, if
all these aspects are taken into consideration the doubts
which arise in the mind would outweigh the reasons
given by the High Court for pointing to the suspicion on
Page 21 of 23
the appellant and in that circumstance certainly the
benefit of doubt should go in favour of the appellant.
18. The High Court holding the appellant guilty of
pouring kerosene around the deceased and her children
and setting them on fire since the appellant had failed to
explain the reason for eruption of fire in view of such
obligation to explain under Section 106 is also not
sustainable in the present circumstance. As held in
(supra) the failure to
Sharad Birdhichand Sarda
explain can only be held as an additional link to complete
the chain of circumstance. In the instant case, since the
other circumstances in the chain are not established, the
same cannot be held against the appellant. On the other
hand, the case itself is that the fire had erupted at
midnight when the appellant and others were sleeping
and she come out shouting. The explanation for the
cause of fire by the appellant would have arisen only if
there was any other evidence to the effect that the
appellant was already awake and was outside even before
the fire erupted.
Page 22 of 23
19. Thus, taking into consideration all these aspects in
the facts and circumstance of this case we are of the
opinion that the appellant is entitled to be acquitted as
the benefit of doubt weighs in her favour. We are
therefore, unable to sustain the order of conviction of the
appellant.
20. In the result, the judgment dated 12.10.2017
passed by the High Court affirming the conviction and
sentence ordered by the Sessions Court is set aside. The
appellant Parubai who is on interim bail is set at liberty
and her bail bond shall stand discharged.
21. The appeal is, accordingly, allowed.
22. Pending applications, if any, shall stand disposed
of.
……………………….J.
(HEMANT GUPTA)
……………………….J.
(A.S. BOPANNA)
New Delhi,
August 10, 2021
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