Mahdav J. Jamdar, J.

1. By the present criminal appeal, challenge is to the legality and validity of the judgment and order dated 24th May 2012 passed by the learned Additional Sessions Judge, Solapur in Sessions case No. 109 of 2011.

2. By the impugned judgment and order, the appellant is convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 and sentenced to suffer life imprisonment and to pay fine of Rs.10,000/- and in default of payment of fine, to suffer simple imprisonment for 6 months. Accused no.2 who is the brother of appellant has been acquitted of the charge.

3. This appeal has been filed at the Principal Seat of this Court by advocate Ms. Megha Bajoria, appointed by Legal Aid and the same has been admitted on 30th November 2022. Pursuant to formation of Circuit Bench at Kolhapur, the appeal stands transferred to this Circuit Bench on 18th August 2026.

4. The appellant addressed a letter dated 30th September 2025 to the Registrar of this Court at Principal Seat, Mumbai stating that as the sentence imposed on him is nearing the completion, he is not interested in prosecuting criminal appeal. This letter was placed before this Court at Circuit Bench, Kolhapur for the first time on 9th April 2026. As the sentence imposed on the appellant is of life imprisonment, we appointed Advocate Ms. Neha Farakate, learned counsel of this Court to represent the interest of the appellant. Today, Ms. Farakate, learned Counsel informed that she had taken instructions from the appellant through video conferencing and the appellant insisted that his appeal be allowed to be withdrawn as he is likely to be released from prison on 1st July 2026 after completion of the sentence. She further submitted that she had informed the appellant that if the Court does not allow withdrawal of appeal, then, she would be arguing the appeal and the appellant had consented for the same.

5. Before considering the merits of the appeal, it is necessary to refer to the relevant observations of the Supreme Court in the case of Bani Singh v. State of UP((1996) 4 SCC 720.) wherein the supreme Court was considering the conflict between two decisions of the Supreme Court in the case of Shyam Deo Pandey v. State of Bihar((1971) 1 SCC 855.) and Ram Naresh Yadav v. State of Bihar(AIR 1987 SC 1500.). The Supreme Court in Shyam Deo Pandey (supra) has held that once the criminal Court has admitted the appeal, to be heard on merits, it cannot dismiss the appeal for non-prosecution for non-appearance of the appellant or his counsel, but must dispose of the appeal on merits after examining the record of the case. In Ram Naresh Yadav (supra), the Supreme Court has held that if the appellant's counsel is absent, the proper course would be to dismiss the appeal for non-prosecution but not on merits and it can be disposed of on merits only after hearing the appellant or his counsel or after appointing another counsel at State cost to argue the case on behalf of the accused. In Shyam Deo Pandey (supra), the Supreme Court has further held that if the appellant or his counsel is absent, the appellate court is not bound to adjourn the appeal but it can dispose it of on merits after perusing the record. The said conflict was decided by the Supreme Court in the case of Bani Singh (supra). The relevant observations of the Supreme Court are in paragraph No.14, which reads thus:

                   “14. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo case [(1971) 1 SCC 855 ] appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it ‘must’ call for the record and Section 386 mandates that after the record is received, the appellate court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the appellate court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross- checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav case [AIR 1987 SC 1500] that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non- prosecution.”

6. Thus, what the Supreme Court has held that Section 385 of the Code of Criminal Procedure, 1973 makes it clear that if the appellate Court does not consider the appeal fit for summary dismissal, it must call for the record and Section 386 mandates that after the record is received, the appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385 and 386 of the Code of Criminal Procedure, 1973 does not contemplate dismissal of appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law contemplates that the appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record.

7. As noted hereinabove, we have appointed Ms. Neha Farakate, learned counsel of this Court to represent the interest of the appellant and she has accordingly contacted the appellant through video conferencing mode and informed him that if the Court does not allow withdrawal of appeal, she would be arguing the appeal on merits and he has consented for the same.

8. Although it is the insistence of the appellant that the appeal be allowed to be withdrawn, in the light of the law laid down by the Apex Court in Bani Singh (supra), we have heard submissions of Ms. Neha Farakate, learned appointed advocate for the appellant as also Mr. Naik, learned APP for the Respondent-State.

9. Ms. Neha Farakate, learned Counsel appearing for Appellant pointed out the evidence of witnesses who have been examined and also the copy of FIR (pages-23 to 27), inquest panchanama at Exhibit-27 (pages-40 to 43), spot panchanama at Exhibit-31 (pages-49 to 51), post mortem report at Exhibit-35 (pages-57 to 64) and Chemical Analyser’s report at Exhibit- 44 and 45 (pages-79 to 81).

10. Ms. Farakate, learned Counsel pointed out the contradictions in the deposition of PW-1. She submitted that in the examination-in-chief, PW-1 has stated that the appellant assaulted his sister, i.e., deceased-Fatima, and he did not try to intervene, however, in the cross-examination, PW-1 has stated that when the said quarrel took place he had went outside to offer namaz. She further submitted that in the FIR as well as in the examination-in-chief, PW-1 has not stated that accused No.1 gave Rs.30,000/- to deceased-Fatima on the very day in the morning by going to the bank and withdrawing the said amount and when he was present. She submitted that PW-1 is the main witness of the prosecution and therefore as this is a case of circumstantial evidence, evidence of PW-1 is not reliable.

11. Ms. Farakate, learned counsel also pointed out the contradictions in the evidence of PW-3 as PW-3 in the examination-in-chief has stated that he knows the complainant, accused and deceased-Fatima, whereas in the cross-examination he has stated that he was not knowing the accused prior to the incident. Learned counsel further submitted that there is contradictions in the evidence of PW-1 as well as PW-3 as PW-1 has stated that he went to the bank for withdrawing the amount along with the appellant as well as the deceased whereas PW-3 has stated that the appellant went to the bank with the deceased. She submitted that, therefore, as the case is of circumstantial evidence, it is not safe to rely on the evidence of PW-1 and PW-3. She further submitted that the evidence on record does not show that the deceased resisted the appellant when the alleged incident of murder by strangulation took place.

12. It is further submitted that as per the Chemical Analyser’s Report, the viscera tested negative for poison. Furthermore, while the post mortem report mentions preservation of nail clippings, the CA report is silent on any human skin or DNA found under the deceased’s nails. She submitted that evidence of Dr. Santosh Bhoi (PW-5) although records the cause of death as asphyxia due to strangulation, no injuries were found on the hands, chest, back or legs of the deceased as doctor admits that he received inquest panchnama prior to the post mortem examination. She further submitted that PW-5 Dr. Bhoi has further admitted that no protective marks were found on the body of deceased. Learned counsel for the appellant further submitted that there is lack of premeditation and there is absence of motive. She submitted that the incident took place on 26th November 2010 and on the very same day, the appellant had returned from Dubai after 1 and half year and went to the residence of complainant in Solapur. He made phonecall to deceased-Fatima and asked her to come to Solapur from Almatti where deceased-Fatima was staying with the mother of appellant. At about 2.00 p.m. on 26th November 2010, Fatima along with her children came to Solapur and they went to a bank and withdrew Rs.30,000/- and the said amount was handed over to the deceased-Fatima. Learned counsel for the appellant submitted that therefore the said act demonstrates lack of hostility between the appellant and deceased and on the contrary indicates that the relationship between them was cordial / stable prior to the incident. It is submitted that the appellant was residing at his wife’s maternal home and it is highly improbable that a person planning murder would choose the residence full of victim’s relatives as the venue for such crime. It is submitted that the appellant and the deceased had married for a decade and had 4 children and therefore it is highly improbable that the appellant would kill the deceased. It is submitted that the prosecution has heavily relied on the extra-judicial confession of appellant. It is submitted that as per the settled legal position, an extra-judicial confession is a weak piece of evidence. It is submitted that given the contradictions in the evidence of PW-1 and PW-3, the extra-judicial confession cannot form the sole basis for conviction under Section 302 of IPC. It is submitted that in view of the contradictory evidence, the case of prosecution regarding quarrel in the afternoon between the appellant and the deceased on the alleged ground that appellant was having suspicion about the character of deceased- Fatima is not established. She submitted that therefore even the motive is also not proved. She submitted that in any case, the benefit of doubt should be given to the appellant.

13. On the other hand, Mr. Naik, learned APP fairly admitted that there are certain contradictions in the prosecution evidence, however he submitted that the circumstances which are against the appellant are that the appellant and deceased were sleeping in one bedroom and when the police came to the spot and the appellant opened the door, Fatima was found lying dead on the bed and only the appellant was present inside the bedroom. He further submitted that in the post mortem report it has been found that the deceased died by asphyxia due to strangulation. He has submitted that as far as chain of circumstances is concerned, the same is complete and this chain is established and, therefore, no interference in the impugned judgment and order is warranted. Mr. Naik, learned APP submitted that the contradictions in the evidence are not of much significance and the chain of circumstantial evidence establishing that the appellant has committed the crime is not at all affected.

14. Perusal of the record shows that the prosecution has examined in all 8 witnesses. PW-1 is the brother of deceased-Fatima. He has stated that on 26th November 2010, the appellant came to Solapur at his residence and made a phonecall to his sister-Fatima and called her to Solapur along with children. Fatima came to Solapur along with her children at about 1.30 p.m. The appellant was discussing with the deceased-Fatima and taking suspicion on her character and the appellant assaulted deceased- Fatima. At that time, he did not try to intervene. When the appellant went out of the house, the deceased-Fatima told PW-1 that accused No.2 used to give false information to appellant about her on phone and accused no.2 used to tell that accused no.1 should not send money to her and was asking to send money on his name. PW-1 has further deposed that on 26th November 2010 at night, after dinner the appellant and deceased went to bed in other room and at about 4.30 a.m. they heard noise of knocking on the door. The room was closed from inside and accused no.1 informed that he had killed Fatima by pressing her neck. The appellant told them to call the police otherwise he would commit suicide. Thereafter PW-1 went to PW-3 Javed and informed him about the incident and sent him to bring the police. Thereafter, police came with PW-3 Javed and the appellant opened the door. After entering the room, he saw Fatima in dead condition and thereafter FIR was lodged by him, which is at Exhibit-21. In the cross-examination, PW-1 has stated that the appellant gave Rs.30,000/- to Fatima in the bank and he went with the appellant and deceased in the bank. He has further admitted that when the quarrel took place between Fatima and the appellant in the afternoon, he was not present as he had gone out to offer namaz

15. The prosecution has examined PW-2, who is the panch to the inquest panchnama. The following portion of the inquest panchnama is relevant as it is the submission of Ms. Farakate, learned Counsel appearing for the appellant that there is no evidence of struggle / resistance when the incident took place.

“Position of dead body :

                  

16. As far as evidence of PW-3 is concerned, in the examination-in-chief he has stated that he knows the appellant, complainant and deceased- Fatima and as PW-1 has informed him about the murder of Fatima, he went to the police station and brought the police to the house of PW-1. PW-3 has stated that as police told the appellant that they are waiting outside, the appellant opened the door of bedroom and thereafter it was found that Fatima was lying dead on the bed, her tongue was entangled in the teeth. In the cross-examination, he has stated that he was not knowing the accused prior to the incident. There is further cross- examination, however, the same is not of much significance.

17. Following portion of spot panchnama is relevant :

                  

18. PW-5 Dr. Santosh Bhoi who has conducted the post mortem on the dead body of Fatima on 27th November 2010, has stated about the injuries on the dead body as follows :

                   “…….. On internal examination I found fracture of hyoid bone, thyroid cartilage and cricoid cartilage present. Petechial hemorrhage present on mucosa of larynx. On dissection of neck contusion present in dermis and under line muscles of the neck and in the substance of thyroid gland.

                   On external there is (1) confusion present on anterior lateral part of the neck size 2cm x 1cm. It is situated 8 cm below the inferior boarder of manual and 7 cm to the right side of mid land.

                   (2) Contusion present on anterior part of neck on left side size 1cm x 1cm red. It is situated 3 cm below the angle of mature and 8 cm red from the mid line.

                   (3) Abrasion crescent present on the right side of the neck i.e. 4 cm below the inferior border of mandible and 6 cm from the mid line on right side size 1.5 cm x 0.2 cm red.

                   (4) Abrasion crescentic shaped present on the right side of the neck, it is 3 cm below the inferior border of mandible and 4 cm from the mid line on the right side, size 1.3 cm x 0.2 cm red.

                   (5) Abrasion crescentic shaped present on the right side of neck, 4cm below the inferior border of mandible and 2 cm from mid line on right side size 1.3cm x 0.2cm red.

                   (6) Abrasion crescentic shaped on the left side of the neck, 3cm below the inferior border of mandible and 3cm from the mid line from on left side 1.3 cm x 0.2 cm red.

                   (7) Abrasion crescentic shaped on the left side of the neck, it is 4cm below the inferior border of mandible and 5 cm from the mid line on left side, size 1cm x 0.5 cm red.

                   Cause of death asphyxia due to strangulation. The death was homicide. Accordingly, I prepared the P.M report. It bears my signature. Contents of it are true and correct. It is at exh.35. All injuries mentioned in P.M report Anti-mortem injuries. Injuries mentioned in column no.17 are possible due to compression of the neck and are sufficient to cause death.”

19. Thus, in the examination-in-chief, PW-5 Dr. Bhoi has stated that the cause of death as asphyxia due to strangulation and all injuries mentioned in the post mortem report are ante mortem injuries and injuries mentioned in column no.17 are possible due to compression of neck and are sufficient to cause death. In the cross-examination, PW-5 has stated that there were 4 bangles in the hands of deceased, no injuries were found on the hands of deceased or on the chest or back or legs. The protective marks were not found on the body of deceased, viscera nail clippings and gauge piece soaked with blood were preserved.

20. It is true that chemical analyser’s report at Exhibit-44 and 45 do not mention anything about nail clippings of the hands of deceased and if there was any human skin under it, but the said aspect is not important for establishing the chain of circumstances.

21. The prosecution has also examined PW-6 who is the sister of deceased-Fatima. PW-6 has stated that the appellant asked deceased- Fatima what was she doing in his absence and assaulted Fatima with a slap. PW-6 further deposed that her sister, i.e., the deceased-Fatima told her that accused no.2, i.e., brother of appellant suspected on her character and used to inform about it to the appellant. She has further stated that in the night, appellant and deceased-Fatima went to bed in one room and on the next day at about 4.00 a.m., the appellant started to knock the door and told that he had killed Fatima by pressing her neck and police should be called immediately and when police came, the appellant opened the door, Fatima was found lying dead on the bed, her tongue was entangled between the tooth. Although PW-6 has been cross-examined extensively, nothing material has been brought on record to shaken her testimony.

22. PW-7 is the investigating officer. He has stated that the appellant has been arrested vide arrest panchnama at Exhibit-39, dated 27th November 2010. He has stated about the investigation carried out by him.

23. PW-8 Gorak Machindra Bendre is the Police Naik. He has stated that he went to the spot with PW-3 Javed and at that time, the door of the bedroom was closed. He informed the appellant that he is police officer and asked him to open the door, the appellant opened the door partly and thereafter appellant was arrested. He saw one woman lying dead on the bed, her tongue was under the teeth. He called the photographer and photographs of the deceased were taken.

24. The analysis of above evidence clearly shows that the following circumstances are well established :

                   [i] On 26th November 2010 in the morning, the appellant came to the house of First Informant, brother of the deceased, from Dubai.

                   [ii] On the same day, deceased-Fatima came to the house of First Informant along with her children to meet the appellant.

                   [iii] In the night, the appellant and deceased went to bed in one room.

                   [iv] When the police came at the spot, the appellant opened the door of the bedroom and at that time, Fatima was found in the bedroom lying on the bed in dead condition.

                   [v] The post mortem report records in column no.17 following injuries :

                   (1) Contusion present on anterolateral part of the neck, size 2cm x 1cm. It is situated 8cm below the interior border of mandible and 7 cm right side of midline.

                   (2) Contusion present on anterolateral part of neck on left side size 1cm x 1cm red, situated 3 cm below the angle of mandible and 8 cm left side from midline.

                   (3) Abrasion, crescentic shaped on the right side of the neck i.e. 4 cm below the inferior border of mandible and 6 cm from the mid line on right side size 1.5 cm x 0.2 cm red.

                   (4) Abrasion crescentic shaped present on the right side of the neck, it is 3 cm below the interior border of mandible and 4 cm from the mid line on the right side, size 1.3 cm x 0.2 cm red.

                   (5) Abrasion crescentic shaped present on the right side of neck, 4 cm below the interior border of mandible and 2 cm from mid line on right side size 1.3cm x 0.2cm red.

                   (6) Abrasion crescentic shaped on the left side of the neck, 3cm below the inferior border of mandible and 3cm from the mid line on left side, size 1.3 cm x 0.2 cm red.

                   (7) Abrasion crescentic shaped present on the left side of the neck, it is 4cm below the inferior border of mandible and 5 cm from the mid line on left side, size 1cm x 0.5 cm red. Age of all injuries is less than 24 hours.

25. The appellant was found with the dead body of the Fatima in a room which was latched from inside and the appellant opened the said room. This circumstance alongwith above circumstances clearly show that the appellant is involved in the crime and the chain of circumstances is complete and conclusively establishes that the Appellant has committed the crime.

26. There is some substance in the contention raised by learned Counsel for the appellant that there are contradictions in the evidence of PW-1 and PW-3 and the said contradictions are with respect to withdrawal of amount of Rs.30,000/- by the appellant and handing over the same to deceased-Fatima. Nonetheless, what is significant to note is that the above circumstances conclusively establish that the appellant has committed the crime and the said contradictions are material for proving the chain of circumstances.

27. In his statement recorded under Section 313 of the Code of Criminal Procedure, 1973, except denial the appellant has not offered any explanation about the deceased-Fatima lying on bed in dead condition in the bedroom and he was found in the bedroom along with the dead body and he had opened the door of the bedroom from inside. It is significant to note that the evidence on record clearly establishes that the appellant along with deceased-Fatima went to the bed and in the morning when the door was opened in the presence of police by the appellant, only the appellant was inside the room and Fatima was lying on bed in dead condition. Thus, the contradictions on which the learned counsel for the appellant has relied upon are not of much significance. The chain of circumstances is not at all affected. The above circumstances clearly establish the chain of circumstances showing conclusively that the appellant has committed the crime.

28. At this place, it would be apposite 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.

                   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].

29. Thus, what the supreme Court has held is that the circumstances from which the conclusion of guilt is to be drawn should be fully 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.

30. If the chain of circumstances established in this case is examined on the touchstone of the above parameters, then, it is clear that the circumstances from which the conclusion of guilt is to be drawn are fully established. The circumstances are of conclusive nature and they exclude every possible hypothesis except that the appellant has committed the crime.

31. In the above facts and circumstances, in our opinion, no case is made out for interference in the impugned judgment and order. Hence, appeal is dismissed.

32. In view of the disposal of appeal, nothing survives for consideration in the pending interim applications and the same stand disposed of.

33. This Court places on record the appreciation for the able assistance rendered by Ms. Neha Farakate, learned counsel of this Court, who has been appointed to represent the interest of appellant in this appeal The High Court Legal Aid Services Committee is directed to pay professional fees quantified as Rs.25,000/- to Advocate Ms. Neha Farakate.