Sandesh D. Patil, J.
1. The present appeal is directed against the judgment and order dated 10-10-2018 passed by the learned Additional Sessions Judge, Solapur in Session Case No. 260 of 2014 whereby the appellant was convicted under section 302 of the IPC and was sentenced to undergo life imprisonment and to pay fine of Rs. 10,000. In default of fine, the accused was to undergo further simple imprisonment of 6 months. The appellant was given benefit of set off under section 428 of CrPC.
2. The appellant is the sole accused in the present case. The FIR was filed by the appellant himself. The case of the appellant, being the first informant, was that the appellant was married to one Sunanda (deceased). He was working as a senior teacher in the school run by the Municipal Corporation. His first wife died in 1997 due to T.B. His second wife committed suicide in 2005. He married in the year 2013 with the deceased.
3. It is stated by the appellant in the First Information Report that on 28-05-2014, he along with the deceased left from Mumbra at about 5:00 PM by car to see his ailing mother at his native village in Masale-Choudhari, Taluka Mohol. During the travel, the duo took rest for half an hour and thereafter again took rest in front of Tembhurni ST stand for one hour. While proceeding at about 3:00 AM, when they were at about the distance of 9 kilometers from Tembhurni, one car followed their car in which two persons were there. One person was driving the car and another person was sitting on the rear side of the car. They asked the first informant to stop his car. They stopped their car in front of his car. The person sitting on the rear side alighted. His face was covered. He approached the first informant, slapped him, pointed a knife towards his body, and asked the first informant to pull the car to the side of the road.
4. The first informant accordingly took his car to the side of the road. The two strangers approached him and asked the first informant to come out of the car. They asked the first informant to give money and gold. The first informant took out an amount of Rs. 3,500 from his pocket. Thereafter they threatened him. At that time, the deceased, who was asleep by now, asked what had happened. The first informant informed her that the thieves are demanding money and gold. She came out from the car and abused the thieves as to why they are demanding money. One of the robbers caught hold of the mouth of the deceased. The other person caught hold of the first informant and took him to his car and made him sit in the car and threatened him not to move. Thereafter, he went to the deceased and started assaulting her. They took away the golden ornaments from the body of the deceased. The deceased fell down.
5. At that time, the first informant told them that there is a bag and suitcase in his car and that the said person should look into it. The robbers went to the car, they looked into the bag and suitcase and took 10,000 rupees from it. They came to their car, pushed the first informant onto the rear seat, and they drove towards Solapur. After about 5 minutes, the car stopped beside a road. They kicked the first informant out of the car and they went towards Solapur. At that time, it was 4:00 AM in the morning. The place where they had left the first informant was Sapatne Pati. There was a juice center nearby. Since it was dark, the first informant waited till the sun rise. After it was dawn, he woke up the person in the juice center. He narrated the incident to him. In the meanwhile, a black color Trax Jeep came. He informed the driver of the said vehicle about the incident. The said driver called the police station. The first informant went along with the police to the spot. At that time, they saw that his wife was lying dead in front of the car. She had a serious injury on her head and blood was oozing out of it. The door of the car was open and the belongings were lying haphazardly. At that time, he found that the robbers had taken away money as well as golden ornaments worth Rs. 60,500.
6. Based on this complaint, the FIR was lodged. The charge was framed on 26-02-2016. Trial began. The prosecution examined 11 witnesses in all. After the trial, the statement of the accused under section 313 of the CrPC was recorded. The learned Additional Sessions Judge, Solapur, vide judgment and order dated 10-10-2018, convicted the appellant for the offences mentioned in the foregoing paragraphs.
7. This appeal was filed by the appellant in this court. The appeal was admitted. The same is taken up for final hearing today before this court.
8. The prosecution had examined the following witnesses:
9. PW1-Nagesh Gunge; he was the panch witness to the spot panchanama. The said witness was declared hostile. PW2-Bapu Khute was also the witness to the spot panchanama. He was also declared hostile. PW3-Sharada Magar was the panch to the inquest panchanama and PW4-Saudagar Waghmare was also a witness to the inquest panchanama. They both were declared hostile and cross-examined on behalf of the APP.
10. PW5-Maruti There was the father of the deceased. He stated that there was a domestic quarrel between the accused and his daughter. In the cross-examination, the said witness stated that he did not know about the exact nature of the dispute between the accused and his deceased daughter.
11. PW6-is an important witness. This witness, Nagnath Gapate, was the driver of a Jeep vehicle. He deposed that in the year 2014, his vehicle was requisitioned by the police. On the date of incident, when he was returning towards his house from Tembhurni, near Sapatne Pati, he saw one person standing near one car. That person asked him to stop his Jeep. That person informed him that some thieves came on a motorcycle and assaulted him and his wife. Those robbers looted his gold ornaments and cash amount. He saw one lady in dead condition lying near the said car. The said lady sustained an injury on her head. He made a call to Tembhurni police station and accordingly informed the fact. The police came there. The lady was already dead. There was one bag lying near the said lady. Said bag contained a steel pot having golden ornaments. Police took the said person along with them towards the police station. The dead body was moved by an ambulance. He identified the person as the Appellant. In cross-examination, he admitted that his vehicle was requisitioned by the police. He admitted that he was getting fare from the police. He narrated that when the person (appellant) informed him about the alleged incident, the appellant was frightened. He believed the said person and made a call to the police. The said person informed him that a cash amount of Rs. 60,500 as well as golden ornaments worn by his wife were looted. Police heard the person and, after verifying the same, took the said person along with them towards the police station.
12. The next witness is PW7 Shrinivas Andure, who was the in-charge of the dog squad, Solapur. He was a PSI at that time. He deposed that on 29-05-2014 at about 8:00 AM, they received a call from the control room about the crime which took place within the limits of Tembhurni. He reached there along with the dog squad at 11:00 AM in a government vehicle. At that spot, they found one Maruti car and a Tommy (iron rod), as well as broken pieces of mangalsutra lying near the car. The said witness gave the smell of that Tommy to the dog. At that time, the PI and the DYSP were present. The dog went towards the accused, who was present there, and identified him by barking over him. Thereafter, the other policemen took the accused with them. The said witness gave a report to that effect on 29-05-2014, which was exhibited below Exhibit 50. The Tommy-Article 6, which was shown to him, was identified by him.
In cross-examination, he stated that before his arrival, policemen had seized the Tommy from the spot by preparing a panchanama. He admitted that before giving the smell of anything to the dog, nobody should have handled the said thing prior. His report was silent about the names of those 10 to 15 persons, who were present at the spot at that time. He admitted that besides the report, he has not prepared any panchanama relating to the alleged process. He admitted that no photographs or video shooting of that process was taken at that time.
13. The next witness, PW8, was the medical officer, Dr. Abhilash Belpatre. The said medical officer carried out the post-mortem on 29-05-2014. He found on external examination, the injuries mentioned in column 18 at Exhibit 53. This head injury was caused to the right parietal region and occipital region admeasuring 7.5 cm X 5 cm. The skull bone was fractured and brain tissues were coming out. The viscera was preserved. The cause of death was shock due to cardio respiratory system due to severe head injury. The post-mortem notes were exhibited below Exhibit 53. The Article 6 Tommy (iron rod) was shown to him. He opined that the injury mentioned in the post-mortem report can be caused due to the blow of the said iron rod. He opined that the injuries caused to the deceased mentioned in column 18 and internal injuries caused to the head are sufficient in the normal course to cause death.
14. The post mortem report produced by the doctor is at Exhibit 53. Injuries mentioned in column No.18 of the Exhibit 53 reads as under :
| Sr. No. | General Particulars | |
| 18. | Other injuries discovered external examination or palpation as fractures etc. | skull vault # over rt. parieto-occipital region 7.5 X 5 cm. |
| (a) can you say definitely that the injuries shown against serial Nos. 7 to 18 are ante-mortem injuries ? | Yes, definitely. | |
| Internal Examination --Head - | ||
| (i) injuries under the scalp, their nature. | ||
| (ii) Skull- valut and base-describe fractures, their sites, dimensions, directions etc. | # over rt. parieto-occipital region 7.5 X 5 cm. | |
| (iii) Brain- The appearance of its coverings, size, weight, # and general condition of the organ itself and any abnormality found in its examination to be carefully noted (weight M.3 gram F. 276 grams) | brain substance oozing out from site” |
16. PW10-Kondiram Patil was the PI who carried out the investigation. He stated that the first informant had lodged the FIR. He stated that he carried out the panchanama below Exhibit 55. The same was the spot and seizure panchanama. He carried out the inquest panchanama which was exhibited at Exhibit 56. He seized the clothes of the dead body of the deceased, as well as the ornaments found therein, by preparing a panchanama which was below Exhibit 57. He recorded the statement of the owner of the juice center and the driver of the Jeep. He specifically stated that he found no injury on the person of the accused and he found that the articles which were allegedly looted were found on the spot itself. Hence, during the investigation, it was revealed that the accused had prepared the plot about the alleged robbery. He therefore interrogated the accused, who admitted his guilt. He recorded statements of relatives of the deceased. During the investigation, it was confirmed that the accused committed murder of his wife due to suspicion about her character. He arrested the accused on 30-05-2014 by preparing an arrest panchanama which was produced at Exhibit 58. He collected the advance PM report. He referred the seized muddemal to the office of chemical analysis on 10-06-2014. The copy of the covering letter bears his signature and was exhibited below Exhibit 59. The dog squad used by him in the investigation identified the accused. He collected the copies of CR number 115 of 2005 registered against the accused at Kalwa police station relating to an offence under sections 498A and 306 of the IPC. This was pertaining to the suicide committed by the ex-wife of the appellant. The said FIR was produced at Exhibit 60.
17. In the cross-examination he admitted that he had not verified whether his first wife died due to T.B. He had not recorded the statement of the mother of the accused. The accused had given necessary particulars about the persons who allegedly looted them. He did not make any communication to other police stations. He admitted that there is one toll naka on the way between Tembhurni to Mohol. He admitted that he had not obtained any information from the said toll naka about the passing of the car through the said naka. He admitted that the report of the accused was taken in the police station itself. The spot panchanama was prepared at about 10:00 to 11:30 AM. He admitted that the golden ganthan as well as the golden necklace weighing 1.5 tola were not found on the spot. He admitted that no statement of the concerned person who carried out the weight of the ornaments seized by him from the spot was recorded. He admitted that no certificate of goldsmith was obtained by him showing the type of metal or ornament seized by him. He admitted that he took fingerprints found on the iron rod and sent them to the office of an expert; however, the report was not yet received. He admitted that the vehicle of Nagnath Ghapate was requisitioned by the police for night rounds seven days before the incident. He admitted that no medical certificate was obtained by him relating to the presence or absence of injury on the body of the person of the accused.
18. PW11-Suresh Mengal; he was the person who had recorded the statement of the accused which was treated as the First Information Report. He has exhibited the said First Information Report below Exhibit 66. Nothing much was asked to him in his cross-examination.
19. The statement of the accused under section 313 of the CrPC was recorded. The accused filed say below Exhibit 70 in support of his contention. This was in response to the question number 77. In the said say, the accused made the following statements. He informed that on 28-05-2014, he and his wife Sunanda were going from Mumbra to Solapur in his car. After going further from Tembhurni, at about 3:00 AM, some persons stopped them and assaulted his wife with an iron pipe in the head and murdered her. They took the ornaments from the body of his wife and also took seven notes of 500 rupees denomination from the pocket of his shirt. They threw the bags haphazardly and went away. He informed the same to the Tembhurni police station by lodging an FIR on 29-05-2014. The police, instead of investigating the same, on the contrary, arrayed him as an accused.
20. The learned Sessions Judge, after appreciating the evidence before him, came to a conclusion that the accused himself, who was the first informant, had committed the murder of his wife. The learned Sessions Judge relied upon the statement of PW6-Nagnath Ghapate. The learned court noted the unusual behavior of the appellant of not going to the wife immediately after knowing that she was assaulted very badly. He instead waited near the juice owner's shop till sunrise. The learned judge, therefore, convicted the appellant.
SUBMISSIONS ON BEHALF OF MR. RAHUL AROTE, LEARNED COUNSEL FOR THE APPELLANT :-
21. The learned counsel Mr. Rahul Arote, appearing for the appellant, made the following submissions. He submitted that the Appellant is falsely implicated in this case. He submitted that the police have not investigated the matter properly. He submitted that the appellant was taken away to a distance far away from the scene of crime. At that time, he waited for the owner of the juice center as it was dark and, after there was some light, he woke the owner of the juice center. He submitted that the said person, i.e. the owner of the juice center, is deliberately not examined by the prosecution. He submitted that as far as PW1 to PW4 are concerned, all of them are hostile and that none of them had supported the case of the prosecution. He submitted that the father-in-law of the appellant was examined in order to show the motive. Although he submitted that there was a domestic quarrel between the accused and Sunanda, he in cross-examination submitted that he did not know the exact nature of the dispute between the accused and the deceased Sunanda.
22. He submitted that reliance on the deposition of PW6 was not proper. PW6, according to him, was a person who was in close contact with the police. He was the person whose Jeep was requisitioned by the police. He submitted that the said person being working for the police, no reliance ought to have been placed on the statement of the said person. As far as PW7 is concerned, the learned counsel submitted that the evidence of a sniffer dog cannot be relied upon at all. He submitted that, in any event, the weapon in question, i.e. the Tommy (iron rod), had changed several hands and therefore it was not safe to rely upon the evidence of the sniffer dog. He submitted that the appellant did not dispute the post-mortem note and post-mortem report. He attacked the evidence of PW10. He submitted that the said witness did not examine the owner of the juice center. He submitted that even the information from the toll naka which was on the way between Tembhurni to Mohol was not obtained to show the details of the said car passing through the toll naka.
23. He argued that the golden ganthan as well as golden necklace were not found on the spot and no statement of the concerned person who carried out the weight of the ornaments seized on the spot was recorded. He submitted that no certificate of a goldsmith was obtained showing the type of metal or ornament seized. He argued that even the report of the fingerprints allegedly found on the rod was not received. He further argued that no document was obtained to show the absence of injury on the body of the person of the accused. He argued that the present case is a case of flawed investigation. In support of his contention, he relied upon following judgments.
* Nazim and Others vs. State of Uttarakhand [2025 SCC OnLine SC 2117];
* Nagamma alias Nagarathna and Others vs. State of Karnataka [2025 SCC OnLine SC 2038];
* Gautam Satnami vs. State of Chhattisgarh [2026 SCC OnLine SC 536];
* Santosh alias Bhure vs. State (G.N.C.T.) of Delhi [(2023) 19 SCC 321];
* Anwar Ali And Another vs. State of Himachal Pradesh [(2020) 10 SCC 166].
24. He submitted that in cases based on circumstantial evidence, motive would assume utmost importance. He submitted that the chain has to be completed and that even if a single link is missing, it cannot be submitted that the case of the prosecution is proved beyond doubt. He submitted that when the evidence admits two possibilities, that is, one pointing to guilt and the other to innocence, then the accused must receive the benefit of doubt. Absence of motive in a circumstantial case assumes significance and tilts the balance in favor of the accused. He argued that section 106 of the Evidence Act, 1872, does not directly operate against the appellant. He argued that unless there is an evidence to sustain a conviction or which makes out a prima facie case, the question of burden of proof placed upon the accused to offer an explanation does not arise. He argued that unless and until the prosecution discharges the onus, the question of burden upon the appellant under section 106 of the Evidence Act would not arise. He relied upon the Judgment of Sharad Birdhichand Sarda vs. State of Maharashtra [(1984) 4 SCC 116] to contend that the chain must be complete in order to rest a case on circumstantial evidence. He prayed for allowing the appeal and setting aside the judgment and order passed by the court below.
SUBMISSIONS ON BEHALF OF MR. SHRIRAM S. CHAUDHARI, LEARNED APP FOR THE RESPONDENT-STATE :-
25. The learned APP, on the other hand, argued that the conduct of the appellant is totally suspicious. He submitted that when the house of the appellant was nearly one hour from the place where he had halted, there was no reason why he should have halted there for one hour. He submitted that the very fact that the applicant was carrying huge cash and ornaments was also doubtful. He invited our attention to the First Information Report where the appellant submitted that two people came in a four-wheeler, and on the other hand, the evidence of PW6, submitted that the appellant had informed him that the two people had come on a motorcycle. He submitted that there was no cross on this issue.
26. He submitted that the accused was in the car, yet he had not suffered any injury. He submitted that the accused, being a teacher, was not a layman and that he would have easily noted the number of the car which had robbed him and had also assaulted his wife. However, the appellant had not even noted the number of the car. He also expressed doubt upon the conduct of the appellant that there was no scuffle between the appellant and the alleged robbers.
27. He relied upon the spot panchanama and argued that the spot panchanama shows that the amount which the appellant alleged to have been stolen by the robbers was found very well in the suitcase. He argued that the ornaments were also found over the body of the deceased as well as near the spot. He argued that the weapon of murder was also found on the spot. He argued that all the things were lying as they were. He submitted that, assuming that the alleged robbers robbed the appellant, they would not have kept the things as they were. He invited our attention to the question put to the appellant at serial number 77 in the examination of the accused under section 313 of Cr.P.C. The said explanation which is offered by the accused by filing a written say clearly shows that the appellant was never taken away from the spot and that the entire theory of the appellant that he was put in the car by the robbers and taken away to a far-away place is also falsified.
28. He submitted that as far as the murder weapon is concerned, the very fact that the recovery of the murder weapon was from the spot and that the appellant also admitted that the deceased was killed by using an iron pipe, no much importance can be given to the fact that the chemical analysis report was not received. He submitted that, in any event, the investigating officer had forwarded the murder weapon for chemical analysis by making an application. He pointed our attention to Exhibit-59.
29. Learned APP further argued that although the panch witnesses turned hostile, however, the investigating officer had produced the panchanama of the spot as well as the inquest panchanama. He relied upon section 106 of the Indian Evidence Act to contend that the appellant was traveling alone with his wife at about 3:00 AM when the alleged incident took place; it was for the appellant to explain the incident. He submitted that the accused has not explained the incident properly. He relied upon the judgment in the matter of Sabitri Samantaray vs. State of Odisha [(2023) 11 SCC 813] to contend that whenever an incriminating question is posed to the accused and he evades response or offers a response which is not true, then such response itself becomes an additional link in the chain of evidence. He submitted that the accused had not offered a reasonable explanation as contemplated under section 106 of the Indian Evidence Act. He, in the end, sought dismissal of the appeal.
ANALYSIS AND CONCLUSION :-
30. We have heard the counsel appearing for the respective parties. We have perused the paper book minutely. The FIR in the present case was lodged by the appellant. The appellant had informed the police that he was traveling from Mumbra to Solapur. On 29-05-2014, when the said appellant was going towards Solapur, he took a halt for one hour near Tembhurni ST depot. Thereafter, he travelled for about 9 kilometers from Tembhurni. Two robbers came in a four-wheeler car at about 3:00 AM. They threatened the appellant with a knife. Thereafter, they took money from the appellant. When the deceased wife of the appellant woke up, she asked what had happened. At that time, the appellant informed her that the robbers wanted to rob them. She started abusing the robbers. The robbers thereafter assaulted the deceased. They put the appellant under the rear seat of their vehicle, drove for about 5 minutes, and at about 4:00 AM they threw the appellant out of the car by kicking the appellant. The first informant informed that he saw there was one juice center; since it was very dark, he waited there itself till it was bright. He woke up the owner of the juice center. At that time, one person, that is, PW6, came in a black color Jeep. He told PW6 about the incident. PW6 called the police station, and this is how the FIR in question was lodged. An amount of Rs. 3,500 in cash was taken by the robbers from the appellant. An amount of Rs. 10,000 was taken from the suitcase which was there in the car. Two ornaments weighing about half tola and one ornament of one and a half tola were taken away by the robbers. This, in a nutshell, is the case of the appellant.
31. PW6, who was the star witness of the prosecution, stated that when he was returning towards his house from Tembhurni, he saw one person standing near one car. The appellant informed PW6 that some thieves came on a motorcycle and assaulted him and his wife when he was proceeding by car and looted the golden ornaments. He stated that he had seen the lady in dead condition lying near the said car. Thus, there is no cross-examination on two important aspects, namely, that the appellant was near the car and that the appellant informed the said witness that some thieves came on a motorcycle. If the evidence of this witness is considered carefully, it is clear that the theory of the appellant that he was driven away to a distance of 5 minutes is totally inconsistent with the evidence of this witness. If the robbers had come on motorcycle, the entire theory of the first informant that he was put on the rear side of the car, and he was taken away at a distant place and thrown away becomes totally unbelievable. As on today, going by the evidence which is there on the record, it is clear that the robbers had come on a motorcycle. In absence of any cross-examination on this issue of the PW6, the evidence as is before the court today is that the robbers had come on motorcycle. This witness also informs that near the car he saw one lady in dead condition. If this is so, and if there is no cross-examination on this point, then the statement of the appellant in the First Information Report that he was standing near the juice center and he went along with the police to the spot becomes really doubtful.
32. The appellant, in his statement under section 313, had filed a say below Exhibit 70. In this say also, all that the appellant informs is that at about 3:00 AM, some people assaulted his wife with an iron pipe and killed her. They thereafter took away golden ornaments on the person of the wife of the appellant. They took some money from the pocket of the shirt of the appellant. They went away thereafter. They also threw the bag of the appellant in the car haphazardly and went away. If this explanation is considered, then also it is clear that the entire theory of the appellant that he was thrown away from the car at Sapatne Pati, and that he was kicked away from the car, at that time he saw a juice center, he interacted with the person in the juice center after it was dawn, thereafter PW6 came to the spot, they called the police, and thereafter the appellant and PW6 went along with the police to the spot is totally falsified.
33. The appellant was traveling alone at 3:00 AM on 29-05-2014 with his wife in the car. Such a gruesome act of murder of his wife had taken place. It was for the appellant to explain the circumstances clearly, correctly, and honestly. The entire theory of the appellant appears to be incorrect. If, as per the evidence of PW6, which is not controverted in the cross-examination, it is believed to be true, then the appellant was standing near the car which was on the spot of the incident. It is PW6 who saw the dead body of the wife of the appellant. The theory of the appellant that he had met the juice owner totally pales into insignificance. Even in the say which was filed by the appellant to explain the circumstances under section 313 of the Cr.P.C., he has not mentioned meeting with the juice center owner. The appellant has miserably failed to explain his case, as this was a case under section 106 of the Evidence Act. Section 106 of the Evidence Act reads as under:
Section 106
"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
34. It was for the appellant to discharge his burden. The appellant has miserably failed to do so. As a matter of fact, what emerges is that the appellant is not honest in disclosing the entire facts. The argument of the learned counsel appearing for the appellant that non-examination of the juice center person is fatal to the case of the prosecution is therefore totally preposterous. In the evidence which is before the court, namely, the evidence of PW6, who had seen the incident for the first time before anybody else saw it, so also the say filed by the appellant to question number 77 asked in the section 313 statement, also does not find place of any juice center owner in the story. Hence, non-examination of the juice center owner was not fatal to the case of the prosecution.
35. This apart, the conduct of the appellant is highly unnatural. Believing the case of the appellant in the FIR, the appellant was taken away to a distant place, namely, Sapatne Pati. There he was thrown out of the car. According to the appellant himself, the distance was about 5 minutes. He knew that his wife was assaulted badly by an iron pipe and the robbers fled away in the car. The appellant was not a layman. He is a senior teacher in a school. He would have easily noted the number of the car which was seen by him before the incident of murder, which could also have been seen by him after he was dropped at a place; however, he has not done so. This raises doubt about the conduct of the appellant.
36. After being thrown away at a distance of 5 minutes from the place of incident, the most natural conduct would be to go back to the place where his wife was injured or murdered. Instead of doing so, he waited till the dawn and thereafter he went and woke up the person in the juice center. This conduct also is quite unnatural. A person whose wife is assaulted by an iron rod, and his belongings including cash and golden ornaments, his car are lying on the spot of incident; the most natural conduct was to go and first see about the position on the spot of the incident. He would, in the most natural course, go and see his wife who was assaulted by an iron pipe. Instead of doing so, waiting there for few hours i.e. from 4:00 AM to 6:30 AM until the dawn creeps in, was the most unnatural conduct.
37. The murder weapon was found on the spot. The murder weapon was a Iron Pipe/Tommy of the car. The appellant also stated that the deceased was assaulted by the said Iron Pipe/Tommy. The doctor who conducted the post-mortem, namely, PW8, also in his deposition confirmed that the injuries in question are possible to be caused by the said weapon, that is, the Tommy. He also stated that the injuries mentioned in column No.18 and internal injuries caused to the head are sufficient in the normal course for causing death. When the accused also admitted that the murder weapon was the same Tommy which was lying on the spot, and further the prosecution also relies upon the same Tommy as a murder weapon, only because the report of the chemical analysis qua the murder weapon was not received, it should not lead to acquittal of the appellant. As a matter of fact, PW10 has specifically stated that the murder weapon was sent for chemical analysis. He has produced the covering letter below Exhibit 59. Interestingly enough, there is no cross of PW10 on Exhibit 59.
38. The argument of the learned counsel appearing for the appellant that the person who weighed the gold which was allegedly collected from the spot was not certified by the goldsmith also is irrelevant. The very fact that the articles were seized, and the panchanama is exhibited by PW10, is sufficient to infer that the articles were seized on the spot. Merely not getting the said articles certified from the goldsmith would not be fatal to the case of the prosecution.
39. The next argument of the appellant that the appellant was not medically examined is also incorrect. When the appellant was produced before the learned JMFC, Madha, on 30-05-2014, the report shows that the medical examination of the accused was carried out. Further, it is also not the case of the appellant that he was injured and therefore it was necessary to carry out the medical examination of the appellant.
40. The presence of a huge amount of cash at the spot of incident, the presence of the gold ornaments on the spot of incident, the said ornaments being seized in the seizure panchanama, clearly point out that the theory of the appellant that there was a robbery and that the robbers killed his wife and fled with the jewelry is totally inconsistent with the evidence on record.
41. The contention of the learned counsel for the appellant that all the panch witnesses are hostile, hence, the panchanama shoud not be relied upon deserves to be dismissed. It is a settled law that evidence of investigating officer can be relied upon to prove the recovery even when panch witness turn hostile. The Apex Court in the case of Mallikarjun & Ors. vs. State of Karnataka [(2019) 8 SCC 359] has held as under :
“23.…..There is no merit in the contention that merely because the panch witnesses turned hostile, the recovery of the weapon would stand vitiated. It is fairly well settled that the evidence of the investigating officer can be relied upon to prove the recovery even when the panch witnesses turned hostile. In Rameshbhai Mohanbhai Koli v. State of Gujarat, it was held as under: (SCC pp. 121-22, paras 33-35)
"33. In Modan Singh v. State of Rajasthan it was observed (at SCC p. 438, para 9) that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam v. State of Maharashtra.
34. In Anter Singh v. State of Rajasthan, it was further held that: (SCC p. 661, para 10)
10. ... even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.'
35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence.
if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt. (Vide Modan Singh case, Krishna Gopal case and Anter Singh case.)"
PW 17 PSI has clearly spoken about the recovery of MO 1 dagger at the behest of Accused 1 and MO 2 dagger and MO 3 handle of the axe from the scene of occurrence and his evidence cannot be discarded merely because panch witnesses have turned hostile.”
42. One aspect also is very important to be noted; that in the entire narration of the alleged robbery by the robbers at the night, especially when the appellant's wife was being assaulted mercilessly, the appellant does not even make an attempt to save his wife or resist the robbery. This fact also does not exhibit natural conduct of the appellant. The evidence of PW10 shows that in both the ears of the deceased there were tops of yellow metal, and there were bangles of yellow metal, one on each hand of the deceased. It is quite surprising that if a robbery was conducted during the wee hours of 3.00 AM on 29-05-2014, and jewellery and money were found in the suitcase on the spot, it doesn't stand to reason as to why the robbers did not flee with this money and the golden ornaments. This is yet another conduct which does not inspire confidence in the theory of the appellant.
43. The argument of the appellant that the chain should be complete in all respects and that the conclusion of the guilt to be drawn fully established so also the facts so established should be consistent only with the hypothesis of guilt of the accused and that they should not be explainable on any other hypothesis except that of the accused is guilty is not warranted in this case. The prosecution has discharged their burden by proving that the the appellant was standing near the car when PW6 saw him for the first time. The dead body was lying near the car and the belongings were scattered. The prosecution also successfully established that the golden ornaments and money were lying on the spot. The prosecution also established that it was the appellant and the deceased who were alone in the car. Thus, the burden was successfully discharged by the prosecution. Once that burden was discharged the onus shifted upon the appellant.
44. We are conscious of the position of law that Section 106 refers to cases where the guilt of the accused is established on the evidence produced by the prosecution, unless the accused is able to prove some other facts, especially within his knowledge, which would render the evidence of the prosecution nary. If in such situation, the accused gives an explanation which may be true in the circumstances, the accused obviously would get a benefit of doubt, but if the accused does not give any explanation at all, or gives a false or unacceptable explanation, this by itself is a circumstance which may return the scale against him. The Hon’ble Apex Court in the matter of Balvir Singh vs. State of Uttarakhand [(2023), 16 SCC 575] had observed in paragraph No. 55 as under:
“55. ….....
“9. ...It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links… have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain.”
45. The facts which were specially within the knowledge of the appellant that the burden was upon him to prove that fact. The superficial argument made by the appellant was that the goldsmith was not examined or the weight of the ornaments was not done, does not amount to discharging the burden upon him under section 106 of the Indian Evidence Act.
46. One important aspect is required to be noted at this juncture is that the father of the deceased was examined as PW5 Maruti There. He categorically stated that there was a domestic quarrel between appellant and Sunanda, although in the cross, he stated that he did not know the exact nature of the dispute between Sunanda and the appellant. Motive always remains to be hidden in the mind of the perpetrator. It would be beneficial to rely upon the Judgment of the apex court in the matter of Subhash Aggarwal vs. State (NCT of Delhi) [2025 8 SCC 440] Paragraph No.33 of the said Judgment is reads as under:
“33. Motive remains hidden in the inner recesses of the mind of the perpetrator, which cannot, oftener than ever, be ferreted out by the investigation agency. Though in a case of circumstantial evidence, the complete absence of motive would weigh in favour of the accused, it cannot be declared as a general proposition of universal application that, in the absence of motive, the entire inculpatory circumstances should be ignored and the accused acquitted.”
47. Thus, the argument of the learned counsel for the appellant that absence of motive would be fatal to the case of the prosecution does not stand to reason. Even otherwise, the statement of PW5 clearly shows that there was a dispute between the appellant and the deceased. There definitely was a motive. Assuming for argument's purpose without admitting that there was no motive brought on record by the appellant, yet by relying upon the judgment in the matter of Subhash Aggarwal (supra) mentioned above, it clearly establishes that the appellant had killed the deceased.
48. Section 313 of the Cr.P.C. is not an empty formality. It enables the accused to give a plausible explanation. In the present case, the accused, while answering the circumstances against him, has filed a say. This say is totally incongruent and inconsistent with the case of the appellant in the first information report. Although the appellant had the opportunity of explaining the circumstances which were against him and which were in his special knowledge, yet the appellant has not done so. Instead, he has given a totally different version than what was given by him in the first information report. This is an additional link in the circumstances against the appellant. For this reason also, no fault can be found in the Judgment and Order passed by the learned Sessions Judge.
49. We are conscious of the fact that the accused is not bound to answer the questions put to him in statement under section 313. However, when the incriminating circumstances were spoken to him, he was bound to give correct answers. The Apex Court in the matter of Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681] had held as under :
“21. In a case based on circumstantial evidence, when no eyewitness account is available, there is another principal of law which must be kept in mind. The principal 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.”
50. The Apex Court, in the Judgment of Sabitri Samantaray (supra), has observed as under:
“19. Thus, although Section 106 is in no way aimed at relieving the prosecution from its burden to establish the guilt of an accused, it applies to cases where chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused. Moreover, in a case based on circumstantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, then such a response in itself becomes an additional link in the chain of events. [See Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681].”
51. In the case in hand, the prosecution was successful in proving the chain of circumstances against the accused. They were successful in proving that the accused and his wife travelled together towards their native place, the prosecution proved that the accused and his wife were alone in the car at 3.00 AM on the highway. The prosecution proved that PW6 saw the accused standing near the car in the morning. PW6 also saw the dead body of the wife of the accused lying over their. He also saw the belongings of the accused scattered. The weapon of assault was found on the spot. There is no quarrel about the weapon of assault. In such circumstances, the prosecution had successfully discharged the burden of proof. The prosecution has completed the chain of circumstances as mentioned in the Judgement of Sharad Sarda vs state of Maharashtra [1984 AIR 1622].
52. The learned Sessions Judge has correctly appreciated the evidence. The learned Sessions Judge has considered the Judgments relied upon them correctly. The learned Sessions Judge has rightly rejected the testimony of the dog handler that is Shrinivas Andure below Exhibit 49. The learned Sessions Judge correctly observed that the accused was the last person in whose company the deceased was found. As far as sentence is concerned, no arguments were advanced by the appellant.
53. For the reasons mentioned above, no substance is found in the appeal. Consequently, the appeal is DISMISSED.
54. In view of disposal of the appeal, pending interim applications do not survive for consideration and are accordingly DISPOSED OF.
55. A copy of the present Judgment be sent to the accused who is in jail.