Full Judgment Text
2026:BHC-KOL:3722-DB
Appeal 755-2022 (J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 755 OF 2022
Tipanna Gangaram Mali, ]
Age 55 yrs, Occ : Agriculturist, ]
R/at Madgyal, Jath, Tal. Jath, Dist Sangli. ] ...Appellant.
Versus
The State of Maharashtra. ] ...Respondent.
——————
Ms. Seema Patil, Appointed Advocate for the appellant.
Mr. Avinash A. Naik, APP for the Respondent-State.
——————
Coram : Madhav J. Jamdar &
Pravin S. Patil, JJ.
Date : April 28, 2026.
Judgment (Per Madhav J. Jamdar, J.) :
1. Heard Ms. Seema Patil, learned advocate appointed to represent
the interest of the appellant and Mr. Naik, learned APP for the
Respondent-State.
2. By the present criminal appeal, the challenge is to the legality and
th
validity of the judgment and order dated 26 May 2022 passed by the
learned Additional Sessions Judge, Sangli at Sangli in Sessions Case No.
93 of 2018. By the impugned judgment and order, the appellant-
Tipanna Gangaram Mali has been convicted for the ofence punishable
under Section 302 of the Indian Penal Code, 1860 [for short “IPC” ] and
sentenced to sufer life imprisonment and to pay ine of Rs.5,000/- and
in default of payment of ine, to sufer rigorous imprisonment of one
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month. The appellant is also convicted for the ofence punishable
under Section 201 of the IPC and sentenced to sufer rigorous
imprisonment for 2 years and pay ine of Rs.1,000/- and in default of
payment of ine, to sufer the simple imprisonment for one month.
Both the sentences are directed to run concurrently. Accused No.2
Vimal Tipanna Mali has been acquitted of the ofence punishable under
Sections 302 and 201 of IPC.
3. It is the submission of Ms. Seema Patil, learned appointed
advocate for the appellant that the entire case of the prosecution is
based on circumstantial evidence. She submitted that as per the settled
legal position, 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; the circumstances from
which the conclusion of guilt is to be drawn should be fully established
and the facts so established should be consistent only with the
hypothesis of the guilt of the accused and they should not be
explainable on any other hypothesis except that the accused is guilty;
the circumstances should be of a conclusive nature and tendency, and
they should exclude every possible hypothesis except the one to be
proved. To buttress her argument, she relied on the judgment of the
Supreme Court in the case of Sharad Birdhichand Sarda v. State of
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1
Maharashtra . She also relied upon the decision of the Supreme Court
2
in the case of Laxman Prasad v. State of MP .
4. She has taken us through the evidence of prosecution witnesses
and submitted that none of the circumstances on which the prosecution
has relied, conclusively establishes that the appellant has committed
the murder of deceased. She submitted that various circumstances
discussed by the learned trial Court from paragraph no.58 onwards do
not conclusively establish that the appellant has committed crime and
that is the only conclusion possible from the circumstances so
established. She pointed out various contradictions in the evidence of
prosecution. She submitted that the entire prosecution case is based on
the recovery of a blood-stained stone at the instance of the appellant,
and on the fact that the blood found on the said stone was of Group ‘A’,
which was the blood group of the deceased. She submitted that the
said evidence of recovery is doubtful evidence as the recovery of some
articles at the instance of accused no.2 had been done from the same
th th
room on 24 February 2018 and again from the very same room on 25
February 2018, one porter’s hook and one stone kept under one gunny
bag containing grains and one bandi and one towel were recovered at
the instance of the appellant. She submitted that the only evidence is
of recovery under Section 27 of the Indian Evidence Act, 1871 and the
1
(1984) 4 SCC 116.
2
(2023) 6 SCC 399.
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same is not reliable.
5. She also pointed out various discrepancies in the evidence of
prosecution witnesses and submitted that the evidence is not reliable to
convict the appellant on the basis of circumstantial evidence.
6. Mr. Naik, learned APP, on the other hand, submitted that the
motive is well established. The hypothesis of commission of crime for
theft as contended by the appellant is not established. He relied on the
recovery of blood stained stone and matching of the blood group found
on the stone with the blood group of deceased. He submitted that as
the recovery of the stone is at the instance of appellant, the chain of
circumstances is well established and therefore no interference in the
impugned judgment of conviction and sentence is warranted.
7. As per the prosecution case the appellant and deceased-Radhabai
were married in the year 1991 and they had a daughter. Thereafter, the
appellant got married for the second time with accused No.2-Vimal in
the year 1995 and quarrels started between the deceased-Radhabai on
one side and the appellant and accused no.2-Vimal on the other side.
Fed up with quarrels, deceased-Radhabai left the matrimonial home in
the year 2000 to stay with her brother. In 2016, family members
mediated, and deceased-Radhabai returned to cohabit with appellant,
but the quarrels resumed with the appellant and accused no.2-Vimal.
Deceased-Radhabai then lived separately, sustaining herself through
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labor, and she reported that both appellant and his second wife abused
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and ill-treated her. On 23 February 2018, the First Informant-
Sharnappa Kore, brother of the deceased at about 7.00 a.m. received a
call from his neighbour Santaji Dagdu Sawant informing him that said
Santaji Sawant received a telephonic message from Dagdu Mali,
neighbour of his sister, i.e., deceased-Radhabai that someone has
murdered his sister-Radhabai. Thereafter, the First Informant-
Sharnappa Kore rushed to the scene and noticed that deceased-
Radhabai was lying on the ground and did not make any movement.
Thereby the First Informant-Sharnappa Kore concluded that the
appellant and accused no.2-Vimal had committed murder of deceased-
Radhabai. Accordingly, he lodged the FIR with Umadi Police Station
bearing C.R. No.15 of 2018.
8. Before considering the rival submissions, it is necessary to set out
the well established parameters required to be taken into consideration
while considering the case of circumstantial evidence. The Supreme
Court in the case of Sharad Birdhichand Sarda (supra) in paragraph
no.153 has held as follows :
“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.
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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 [(1973) 2
SCC 793] where the observations were made:
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 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,
(4) they should exclude every possible 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. ”
[Emphasis added].
9. In the case of Laxman Prasad (supra), the Supreme Court has
held thus :
“3……. In a case of circumstantial evidence, the chain has to
be complete in all respects so as to indicate the guilt of the
accused and also exclude any other theory of the crime….”
10. Thus, what the supreme Court has held is that the circumstances
from which the conclusion of guilt is to be drawn should be fully
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established. The primary principle is that accused must be and not
merely may be guilty before a Court can convict. The facts so
established must be so consistent only with the hypothesis of the guilt
of the accused. The circumstances should be of conclusive nature and
tendency and they should exclude every possible hypothesis except the
one to be proved. It has been further held that there should 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.
11. Before considering the evidence on record and examining the
same on the touchstone of above parameters, it is necessary to set out
the circumstances which the learned trial Court has taken into account.
The trial Court has considered these circumstances in paragraph nos.58
to 73, which can be summarised as under :
[i] The relationship between the appellant and the deceased
(husband and wife) was strained.
[ii] With the eforts of their daughter-Sangita (PW-4), other
relatives and mediators, the dispute between the appellant and
the deceased was amicably settled and the appellant allowed
the deceased to cohabit with him.
[iii] Again there were quarrels between the deceased on one hand
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and the appellant and accused no.2 (second wife of appellant)
on the other hand, the villagers made separate arrangement for
the stay of deceased by erecting tin-shed behind the house of
appellant.
[iv] Deceased was not treated properly by the accused.
[v] It is the contention of the appellant that during night time,
someone with the intention of committing theft, they have
committed murder of Radhabai. However, all her gold
ornaments were found in said tin-shed.
[vi] There was strong motive for the appellant to commit the
ofence.
[vii] Deceased Radhabai had sustained sever external and internal
injuries. Thus, she was brutally beaten by the assailant and also
strangulated by means of blouse.
[viii] There is recovery of weapon – porter’s hook, blood stained
stone, bandi and towel at the instance of appellant and the
blood group on the said stone matches with the blood group of
the deceased.
[ix] The memorandum of panchnama and recovery panchnama at
Exhibit-33 and Exhibit-34 shows that recovery of stone is from
beneath the gunny bags from the house of the appellant and at
his instance.
The above circumstances were taken into consideration by the trial
Court while convicting the appellant under Section 302 of IPC.
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12. Perusal of the record shows that the prosecution has examined in
all 11 witnesses. Following are the material witnesses:
PW-2 Sagar Mahadev Mhatre, the panch witness to recovery
panchnama at Exhibits-31 to 34;
PW-3 Sharnappa Vitthal Kore, the brother of deceased-Radhabai;
PW-4 Sangita Shivaji Godase, the daughter of deceased;
PW-5 Dr. Deepak Ganpati Shinde, the medical oicer who performed
the post mortem on deceased.
PW-6 Pandurang Parsappa Mali, neighbour.
PW-7 Dagadu Vithoba Mali, neighbour.
PW-8 Vinod Eknath Kamble, the panch-witness to spot panchnama.
PW-10 Danappa Malappa Guddapure, the panch-witness to seizure
panchnama of the clothes of deceased.
PW-11 Bhagwan Bapu Shinde, the Investigating oicer.
13. The evidence of PW-3 Sharnappa Kore, i.e., the brother of
deceased, the evidence of PW-4 Sangita, the daughter of deceased, the
evidence of PW-6 Pandurang and PW-7 Dagadu, neighbours establishes
the following aspects :-
(i) The marriage between the appellant and deceased took place in
the year 1991.
(ii) A girl child, i.e., Sangita, was born to the appellant and deceased.
(iii) In the year 1995, the appellant performed second marriage with
accused No.2-Vimal and 3 children are born from the said wedlock.
(iv) From the year 1995 to 2000, the appellant, deceased and
accused no.2 resided together, however, there were frequent ights
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between them and therefore from the year 2000, the deceased
started staying with her brother at village Utagi, Taluka Jat, District
Sangli and the appellant and accused no.2 were residing at village
Madgyal, Taluka Jath, District Sangli.
(v) The deceased stayed away from the appellant and accused no.2
from the year 2000 to 2016. However, after 16 years of separation,
due to the intervention of daughter of deceased, relatives and
villagers, the deceased started residing with the appellant and
accused no.2. For a period of about 5 to 6 months, they stayed
together.
(vi) Thereafter as disputes again started between the appellant and
accused no.2 on one hand and the deceased on the other hand,
deceased started residing in a tin-shed constructed by the villagers
adjoining to the house of appellant.
rd
(vii) On 23 February 2018, in the morning the deceased was found
lying adjoining to a road, blouse was tied to her neck and blood was
oozing from upper side of her right ear.
The above circumstances conclusively establish the strained relationship
between the appellant and the deceased.
14. The most important evidence is of the recovery of stone at the
instance of the appellant and that the blood found on the said stone is
of the same blood group as that of the deceased. The evidence of Sagar
Mhatre, i.e., PW-2 who is the panch witness to the recovery panchnama
is most important and signiicant. The examination-in-chief of PW-2
reads as under :
“1] I am serving with State Electricity Board as a Wireman.
From July 2013 I am appointed as Senior Technician at village
Madgyal, Tq. Jath. On 24-2-2018 as usual I was on duty. On
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that day my superior informed me over phone call that in
connection with panchanama I had to go to police. That time
one Lahu Pawar, Wireman was alongwith me. After phone call of
superior we both went to Umadi police station. In police station
officer Shinde, his staff and one unknown person were present.
Unknown person was the woman. Said woman disclosed
the incident and told that she will produce the clothes on
her person at the time of incident and we should
accompany her at house. Whatever she disclosed was
reduced into writing. I can identify said writing. We read the
contents of said writing and signed it. Writing now shown to me
is the same. It bears my signature ans signature of Lahu Pawar.
It also bears thumb impression of accused. (Admissible portion
in the writing is marked with Exh. 31).
2] Thereafter, we two panchas, officer Shinde, his
staff and accused were to the house of accused. We went to
Madgyal via Nigadi, Utagi and Sonval. Accused showed the
house. Vehicle was parked away about 20 to 30 ft. away from
the house. We all alighted from the vehicle. Accused showed
her house pointing it and stating it was her house. Said
woman entered into the house. We followed her. There in
the house she took out sari and blouse from the string
arranged to place clothes. Sari was coloured green and blue.
Blouse was of purple colour. I can identify those clothes. Police
seized those clothes. Lable bearing signatures of police officer
and we panchas affixed on those clothes. I can identify said
lable. Police prepared seizure panchanama ans we signed it.
Panchanama now shown to me is the same. It bears my
signature. Contents therein are correct. (It is marked with Exh.
32). Sari and blouse now shown to me are the same clothes.
(For the purpose of identification clothes are marked with Article
B1 and B2). Said woman accused is present before the court.
3] On next day our superior by informing over phone
call asked to go to police in connection with panchanama.
On that day myself and Lahu Pawar went to police station.
That time officer Shinde Saheb, his staff and one unknown
person were present. That unknown person disclosed his
name as Tippanna Gangaram Mali. That unknown man
stating about the incident disclosed that he would show the
clothes on person at the time of incident and related things
and he should go with him. Police reduced into writing the
disclosure made by him. I can identify said panchanama. We
signed said writing after reading the contents. Panchanama now
shown to me is the same. It bears signature of myself and Lahu
Pawar. Contents therein are correct. Admissible portion in the
writing is marked with Exh. 33 .
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4] Thereafter accused, officer Shinde, his staff and we
panchas by vehicle went to village Madgyal as per the
directions of accused. As per the say of accused we stopped
the vehicle away about 20 to 30 ft from his house. We all
alighted from the vehicle. There accused pointing one house
stated it belonged to me. Thereafter, accused went inside
the house and we followed him. There in the house accused
took out one porter's hook and one stone under one gunny
bag containing grains. I can identify said hook and stone.
There were reddish blood spots on the hook and stone.
Then he took out one bandi and one towel from one corner
of the house and produced. I can identify said bandi and
towel. Bandi was dough-mixer. There were reddish blood spot on
bandi and towel. I do not remember the colour of towel. Bandi
was of white colour. Police seized all those article. Police pasted
lables of our signatures on said article. Those articles were
sealed. All four articles now shown to me are the same.
Bandi police article no.12, towel article no.13, stone police
article no.11 and hook police article no.10 are for
identification purpose marked with Article C1 to C4
respectively. Police prepared seizure panchanama.
Panchanama now shown to me is the same. It bears my
signature. Contents therein are correct. It is marked with Exh.
34 . Accused who were produced all these articles is not present
before the court.”
[Emphasis added.]
15. The cross-examination of PW-2, in paragraph 8, 9 and 10 is as
under :
“8] We went to Umadi on motorcycle. On both
occasion we were 7 to 8 persons in the jeep. It is true to say
that surrounding to said house there are residential houses. The
said house is of one room. On 24-2-2018 when we went to
Madgyal door of the said house closed putting latch. It did
not happen that after reaching at house police officer called local
person. It is not true to say that on said arranged string for
placing clothes there were many clothes. Witness volunteers that
on said string there were other clothes. It is not true to say that
I cannot tell four boundaries of said house.
9] On 25-2-2018 we went into same house. On 25-2-
2018 no one found present in the said house. At the time of
both occasion I did not notice police Bandobast at the said
house.
10] It is not true to say I depose false that on 25-2-2018
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accused took out porter's hook and stone under gunny bag
containing grain and produced. While writing panchanama we
panchas did not tell police form which corner of said house
accused took out the clothes and produced. It is not true to say I
depose false that on all four articles blood stains found. It is true
to say that in village Madgyal there is police outpost of Umadi
police station. It is not true to say all writing was done in the
police chowky at Madgyal. It is not true to say that we signed
said writing in said police chowky. It is not true to say that myself
and Lahu Pawar have acted as a panch witnesses in other
criminal cases of Umadi police station.”
[Emphasis added.]
16. Thus, what is established by the above evidence of PW-2-the
panch witness to the recovery panchnama at Exhibit-31 and 32 is that
statement of accused no.2-Vimal, i.e., the second wife of appellant
th
under Section 27 of the Indian Evidence Act, 1871 was recorded on 24
February 2018 at about 12.50 p.m. and at her instance saree and blouse
were recovered from the residence of appellant. The recovery
panchnama of the recovery of the said articles is exhibited as Exhibit-32.
The relevant portion of Exhibit-32 reads as under :
“ dPP;k jLR;kus lqekjs 100 ehVj xsY;kuarj jLR;kps mtos cktwl
vlys mRRkjkfHkeq[k i«;kps ?kjkleksj fti Fkkacfo.;kl lkafxrys o lnj
?kjkdMs cksV d#.k gs ek>s jkgrs ?kj vlY;kps lkafxrys- R;k uarj fti
mHkh dsY;kuarj ftie/kqu izFke vkjksih efgyk [kkyh mrjyh rhps
ikBksikB vkEgh iap o iks- LVkQ vls [kkyh mrjyks- [kkyh mr#u
vkjksih gh lnj ?kjkps njoktkrwu vkr tkowu ?kjkps Ikf’pe fHkarhyk
vlys nksjhps oG.khoj BsoysY;k diM~;kae/kqu ,d lkMh o ,d
CykÅt dk<qu fnyk- ”
[Emphasis added.]
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17. The prosecution evidence also shows that on the next day, i.e., on
th
25 February 2018, again recovery was at the instance of appellant, i.e.,
accused no.1 from the same residential premises which consisted of
only one room. The relevant portion is as under :
“ lnj jLR;kus lqekjs 100 ehVj xsY;kuarj vkjksihus fti ,dk i«;kps
mRrjkfHkeq[k ?kjkleksj mHkh dj.;kl lkafxrys- o lnj ?kjkdMs CkksV
nk[kowu gs ek>s jkgrs ?kj vlY;kps lkafxrys- fti mHkh dsY;kuarj
ftie/kqu vkjksih [kkyh mrjyk- R;kps ikBksikB vkEgh iap o iks-
LVkQ vls [kkyh mrjyks- vkjksih lnj ?kjkps njoktkrqu vkr tkoqu
?kjkps njoktk ‘kstkjh mRrj cktqps fHkarhyxr vlys /kkU;kps iksR;kps
FkIihps [kkyh gkr ?kkyqu ,d yks[kaMh gqd o ,d nxM dk<qu fnyk- ”
[Emphasis added.]
18. Thus, what is signiicant to note is that from the said room, there
th
was recovery at the instance of accused no.2 on 24 February 2018 and
th
recovery at the instance of accused no.1 (appellant) on 25 February
2018. It is most signiicant to note that there is nothing in the recovery
panchnama to show that the said room has been in locked condition and
opened by the accused. In view of this position, it is relevant to note
that in the cross-examination of PW-2 Sagar Mhatre, panch witness to
the recovery panchnama, has stated that when they went to Madgyal,
the door of the said house was closed by putting latch. However, the
same is not stated in the recovery panchnama Exhibits-32 and 34, the
relevant portion of the same is set out hereinabove.
19. It is also relevant to note that the said house is consisting of one
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room only. Recovery at the instance of accused no.2, the second wife of
th
the appellant, was done on 24 February 2018 and at the same place
th
recovery was at the instance of appellant on 25 February 2018. This is
the only circumstance against the appellant as the other circumstances
that the blood group found on the stone is of the same blood group as
that of the deceased, is connected with this evidence of recovery. The
evidence on record clearly indicates that it is not safe to rely on the said
evidence of recovery.
20. This is a case of circumstantial evidence where as per the settled
legal position every circumstance is required to be proved and the
circumstances should be of conclusive nature. The primary principle is
that accused must be and not merely may be guilty before a Court can
convict.
21. In the facts and circumstances of the present case, it cannot be
said that all the circumstances are proved, muchless conclusively
proved. Learned trial Court has not taken into consideration the above
evidence and that the most important evidence of recovery is not
proved. In any case, it is not safe to rely on the said evidence.
22. For the above reasons, the impugned judgment and order is
required to be quashed and set aside. Accordingly, we pass the
following order.
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-: O R D E R :-
th
[i] The impugned judgment and order dated 26 May 2022
passed by the learned Additional Sessions Judge, Sangli at
Sangli in Sessions Case No. 93 of 2018 is hereby quashed and
set aside.
[ii] The Appellant-Tipanna Gangaram Mali is hereby acquitted
of the ofence punishable under Sections 302 and 201 of the
IPC in Sessions Case No. 93 of 2018.
[iii] The Appellant-Tipanna Gangaram Mali be released from
jail forthwith, if not required in any other case.
23. As the transcribing of the detailed judgment and order will take
some time, this operative part of the judgment and order is to be
uploaded immediately.
24. We appreciate the assistance rendered by Ms. Seema Patil,
learned Advocate appointed to represent the interest of the appellant
and direct the High Court Legal Aid Services Committee to pay a
professional fee of Rs.25,000/- to Advocate Ms. Seema Patil.
25. Criminal appeal stands disposed of.
26. In view of the disposal of criminal appeal, nothing survives for
consideration in the pending interim application and the same also
stands disposed of.
[Pravin S. Patil, J.] [Madhav J. Jamdar, J.]
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