Parubai vs The State Of Maharashtra

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1154 OF 2018

Parubai .…Appellant(s) Versus

The State of Maharashtra …. Respondent(s)

JUDGMENT

A.S. Bopanna,J.

1. The appellant is before this Court in this appeal

assailing the judgment dated 12.10.2017 passed by the

High Court of Judicature at Bombay, Bench at

Aurangabad in Criminal Appeal No.488/2007. By the

said judgment the High Court has dismissed the appeal

filed by the appellant herein and the judgment dated

16.11.2007 passed by the Learned Sessions Judge

Parbhani in Sessions Case No.27/2007, convicting the Signature Not Verified Digitally signed by R Natarajan appellant in respect of the offence punishable under Date: 2021.08.10 17:35:12 IST Reason: Page 1 of 23 Section 302 and 436 of the Indian Penal Code (‘IPC’ for

short) is confirmed.

2. The appellant was charged of the offence as

accused No.1 while her husband Gulab and his mother

i.e., mother­in­law of the appellant were charged as

accused Nos. 2 and 3. The accused Nos. 2 and 3 were

acquitted by the Sessions Court. In that view, the appeal

before the High Court and the present consideration is

limited to the conviction of the appellant herein who is

accused No.1. The case of the prosecution is that Gulab

son of Gajanan Watane was married to the deceased

Mandabai and they had two children namely Akash, a

son aged 5 years and Nikita, the daughter aged 2 years.

The said Gulab had an extra marital affair with the

appellant and ultimately married her on 02.01.2006 and

got their marriage registered on 18.02.2006. Thereafter

the appellant was also living with her husband and

Mandabai, the wife from the first marriage. The parents of

Gulab were also living with them and were residing in the

small house which consisted of three rooms. One of the

rooms in the house was occupied by their servant named

Page 2 of 23 Piraji Mankari. When this was the position the husband

of the appellant Gulab had gone to Jalna on 02.08.2006

to procure tyres for the tractor. The mother­in­law had

gone to her daughter’s place to assist her for delivery.

3. When this was the position, on the intervening

night of 2/3.08.2006 at about 2.30 to 3.00 am an

incident of fire occurred and the house in which the

appellant and her family were residing was engulfed in

flames. The appellant who was also in the house had

come out of the house unscathed while Mandabai the

first wife of Gulab and their daughter Nikita rushed out of

the house with burn injuries, while their son Akash got

burnt to death inside the house. The father­in­law of the

appellant was stated to be sleeping outside the house on

a cot and having woken up in the confusion, noticing the

injuries suffered by his daughter­in­law Mandabai and

granddaughter Nikita had instructed the servant Piraji

Mankari to secure a jeep and shift them to hospital.

Accordingly, they were shifted to the hospital where on

the next day the said Mandabai and her daughter Nikita

died due to the burn injuries suffered by them.

Page 3 of 23

4. The father­in­law of the appellant namely Gajanan

had lodged a complaint and had also implicated the

appellant. In that light, keeping in view the allegation

made by Chhaya, the sister of the deceased, the husband

of the appellant and mother­in­law were also included

and charged for the offence as accused No.2 and 3. The

prosecution had examined PW­1 to PW­9 and the trial

court on taking note of the evidence had arrived at the

conclusion that the case against the accused No. 2 and 3

had not been proved and the evidence of PW­2 to

implicate them was not trustworthy. However, insofar as

the appellant herein, the Sessions Court had taken note

of the evidence tendered by PW­1 and PW­3 that the

appellant was also sleeping along with the deceased and

in that circumstance was of the opinion that if the house

caught fire accidently then the appellant also should have

suffered burn injuries. Since she had come out of the

house without any injuries it was held that she is guilty.

The other circumstances noticed by the trial court was

that the spot Panchnama indicated that the frock of the

deceased Nikita had been seized from the place of

Page 4 of 23 occurrence and the Chemical analysis report was that it

had kerosene stains. The recovery of a can which smelt of

kerosene from the bushes as stated by PW­8 Kerba

Balajirao Phad, P.S.I., was taken into consideration with

reference to the recovery Panchnama at Exhibit 41.

5. The Sessions Court was of the opinion that the

appellant had a strong motive and had the opportunity of

committing the act. It held that if the appellant is to be

excluded, there should have been a reasonable possibility

of anyone else being the real culprit, as such the chain of

evidence can be considered to be complete as to show

that in all probabilities the crime must have been

committed by the appellant. For this the appellant

sleeping in the same room as the deceased was sleeping

and that the appellant did not suffer any injuries were

held as the circumstances to rule out the possibility of

accidental fire. Since the appellant had not explained how

she came out of the room without any burn injuries and

deceased Mandabai had suffered injuries, coupled with

the kerosene residues traced on the frock of Nikita, the

Sessions Court held that adverse inference can be drawn

Page 5 of 23 that the appellant set fire to the house. The fact that she

was the second wife and the husband of the appellant

had executed an agreement transferring his land in

favour of deceased Mandabai was held as the motive to

commit the offence, more particularly since she wanted to

establish her dominance in the house.

6. The High Court while considering the matter and

reappreciating the evidence had discarded the extra­

judicial confession and further disbelieved the evidence of

PW­1 which had been relied upon by the Sessions Court.

The High Court was of the view that Gajanan (PW­1) the

father­in­law who was the informant could not have

happily accepted the appellant as the second wife of his

son when he had already got married to deceased

Mandabai. This was the reason for the High Court for not

finding it worthy of placing reliance on the extra­judicial

confession stated to have been made to him that she had

sprinkled kerosene and set fire. In that regard, the High

Court had appropriately taken note from the decision

rendered by this Court indicating that extra­judicial

confession is a weak evidence by itself.

Page 6 of 23

7. The High Court has thereafter taken note of the

evidence tendered through Vijay (PW­4) and the Police

Sub­Inspector Phad (PW­8) with regard to the recovery of

the kerosene can at the instance of the appellant when

she was in police custody. The recovery was disbelieved

since the said can had not been sent for chemical

analysis. As such the said circumstance accepted by the

Sessions Court was also discarded. Further, the oral

dying declaration said to have been made to a sister of

the deceased Chhaya (PW­2) had been disbelieved by the

trial court which was also approved and was noted as not

reliable, by the High Court. The dying declaration

recorded by the police head constable was taken note.

The High Court ultimately arrived at its conclusion that

the appellant is guilty of committing the offence since

admittedly the appellant had not sustained the slightest

injury due to the fire which means that she left the house

well in advance to the spreading of fire. The circumstance

held against the appellant is that she did not try to alarm

the deceased Mandabai and her children to leave the

house so as to save them from fire, nor did she try to

Page 7 of 23 bring the small children out of the house to save their

lives. The High Court further assumed that she did not

shout immediately and waited until the deceased

Mandabai and her children were fully caught by flames.

8. After referring to the abovesaid circumstance, the

High Court ultimately recorded its conclusion as

hereunder: ­

“26. All the above circumstances speak volumes about the guilty mind of the appellant. It is only after she saw the deceased Mandabai coming out of the house along with her burning daughter, that she raised shouts to make a show that she was totally innocent. In the circumstances, the absence of any injury on her person also would be a material circumstance to prove the guilty mind of the appellant. If that be so, only because the deceased Mandabai stated that she had no suspicion against anybody and particularly did not raise suspicion against the appellant behind the incident, it cannot be said that the dying declarations (Exhs. 37 and

38) would be helpful to the appellant to establish her innocence.

27. The burnt frock of the deceased Nikita was seized vide panchnama (Exh. 34). PSI Phad (PW 8) (Exh.48) deposes that he sent the said frock to the C.A. for analysis and report vide letter (Exh.50). The C.A. report (Exh.50) shows that kerosene residues were detected

Page 8 of 23 thereon. It is, thus, clear that kerosene was used for setting the deceased Nikita on fire.

28. The marriage certificate (Exh.29) shows that the marriage of the appellant and accused No.2 was registered on 18.02.2006. The agreement (Exh.31) has been executed on 17.02.2006 i.e. one day prior to registration of marriage of the appellant with accused no.2. From the contents of this agreement, it seems that the deceased Mandabai was rather skeptic about her future after the marriage of the appellant with accused no.2. Therefore, she obtained a written assurance from accused no.2 that after his marriage with the appellant, he would maintain the deceased Mandabai and her children properly. Accused no.2 further assured to transfer certain land in the name of the deceased Mandabai. The appellant started residing in the house of accused no.2 after the marriage. It was quite natural on the part of the appellant as well as that of the deceased Mandabai to dominate each other to have control over the family matters. The deceased Mandabai and her children certainly would have come in the way of the appellant in establishing her primacy in the house. It is difficult to establish motive by any direct evidence. It has to be inferred on the basis of the attending circumstances. From the facts and circumstances emerging from the evidence, it is clear that in order to have the dominating position in the house, the appellant finished the deceased Mandabai and her children.

29. The appellant alone was inside the house in the night of the incident besides the deceased Mandabai and her children. As

Page 9 of 23 stated above, she went out of the house much prior to spreading of the fire, In view of Section 106 of the Evidence Act, she was under an obligation to explain the circumstances, which were within her special knowledge, under which the fire erupted. She did not at all discharge this burden by giving any explanation behind eruption of fire. All these circumstances clearly show that it is the appellant, who poured kerosene around the persons of the deceased Mandabai and her children and set them on fire.

30. The prosecution established beyond reasonable doubt that it is the appellant only, who set the deceased Mandabai and her children on fire with a view to remove them from her marital life with accused no.2. If that be so, in view of the medical evidence, the deaths of the deceased Mandabai and her children would certainly be homicidal. The appellant set the dwelling house on fire. The learned trial Judge rightly convicted the appellant of the offences punishable under Sections 302 and 436 of the I.P.C.

We concur with the findings recorded by the learned trial Judge holding the appellant guilty of the said offences. We further concur with the order of sentence passed by the learned trial Judge against the appellant. The appeal is devoid of substance. It is liable to be dismissed.”

9. In the above background, having heard Mr.

Sudhanshu S. Choudhari, learned counsel for the

Page 10 of 23 appellant and Mr. Sachin Patil, learned counsel on behalf

the respondent­State of Maharashtra we have perused

the material on record.

10. As noted, the conclusion as reached by the High

Court would indicate that the evidence tendered on behalf

of the prosecution has been discarded as not trustworthy

but ultimately the conclusion has been reached on the

assumption made only due to the fact that the appellant

had not suffered injuries in the fire accident. It is no

doubt true that the incident which occurred in this case,

if caused by any person with an intention to cause death,

is certainly gruesome as it resulted in the death of three

persons of which two were small children and is

unpardonable. However, in a case where the appellant

was proceeded against mainly based on the extra­judicial

confession said to have been made to her father­in­law

namely Gajanan (PW­1) and the said evidence has been

disbelieved by the High Court as not being trustworthy,

the issue would be as to whether the chain of

circumstances to convict the appellant is complete.

Page 11 of 23

11. We have extracted the reasons assigned and

conclusion reached by the High Court in the earlier

portion of this order only to note that the High Court has

held the appellant guilty more on preponderance of

probability rather than reaching a conclusion beyond

reasonable doubt. Though it has employed the phrase

‘beyond reasonable doubt’ in its concluding paragraph,

the reasoning preceding the same are only conjectures

and surmises. The sole circumstance noted by the High

Court with reference to the evidence is that the burnt

frock of deceased Nikita was seized, vide a Panchnama

(Exhibit 34) and the evidence of PW­8 that the frock had

been sent for chemical analysis and the report as per

Exhibit 50 shows that Kerosene residues were detected

thereon. In that circumstance, the High Court has held

that kerosene was used for setting the deceased Nikita on

fire. Even if that was taken as a circumstance in the

chain, the same was insufficient unless the other

circumstances in the chain were connected to point at the

appellant. In that regard, what is relevant to be noted is

that the High Court has in its earlier part of the

Page 12 of 23 reasoning disbelieved the recovery of the can which is

stated who have smelt of kerosene since the said can had

not been sent for chemical analysis and also the

circumstance under which it was said to have been

recovered.

12. If that be the position, even if the chemical

analysis report referring to the frock is accepted there is

nothing on record to connect that the appellant was

responsible for the sprinkling of the kerosene or for the

kerosene to have come in contact with the frock of Nikita

which is said to have been recovered from the place of

occurrence. That apart, the declaration of Mandabai, the

deceased on 03.08.2006 discloses that since there is no

electricity in the agricultural field, they sleep in the house

and keep a lantern light in the night for which kerosene

is obviously used. Further, it has come in evidence that

in the said house cooking is also done and the material

pertaining to the tractor including diesel can was also

kept therein. Therefore, the circumstance that the

appellant was not injured in the incident cannot be the

basis to rely on the presence of kerosene stains on the

Page 13 of 23 frock as a circumstance that she had set fire by

sprinkling kerosene.

13. The position of law is well settled that the links in

the chain of circumstances is necessary to be established

for conviction on the basis of circumstantial evidence.

This has been articulated in one of the early decisions of

this Court in the case of Sharad Birdhichand Sarda v.

State of Maharashtra, (1984) 4 SCC 116. The relevant

paragraphs are as hereunder: ­

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental

Page 14 of 23 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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

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

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and

Page 15 of 23 (3) the circumstance is in proximity to the time and situation.

160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal case where this Court observed thus: [SCC para 30, p. 43: SCC (Cri) p. 322] “Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstances, if other circumstances point unfailingly to the guilt of the accused.”

14. Further the mere suspicion would not be sufficient,

unless the circumstantial evidence tendered by the

prosecution leads to the conclusion that it “must be true”

and not “may be true”. In that regard, it is necessary to

take note of the decision of this Court in the case of

Devilal Vs. State of Rajasthan (2019) 19 SCC 447,

wherein this Court on noting the decision of the case

Sharad Birdhichand Sarda (supra) has held as

hereunder;

Page 16 of 23 “17. It has further been considered by this Court in Sujit Biswas v. State of Assam 2013(12) SCC 406 and Raja v. State of Haryana 2015(11) SCC 43. It has been propounded that while scrutinising the circumstantial evidence, a court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straightjacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused.

18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of “may be true” to the plane of “must be true” as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.

Page 17 of 23

19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same.”

15. In that backdrop, a perusal of the judgment passed

by the Session’s Court as well as the High Court in the

instant case, for its ultimate conclusion has made

suspicion the reason for rendering conviction without

there being any strong basis. The suspicion, however

strong, cannot take the place of proof. Unfortunately,

with the nature of observations made by the High Court

as extracted above, it has ultimately held that the

prosecution has established beyond reasonable doubt

that it is the appellant only who has set the deceased

Mandabai and her children on fire with a view to remove

them from her marital life with accused No.2. If the facts

as noted by the High Court lead to such suspicion,

equally there are also circumstances which raise a doubt

Page 18 of 23 whether the appellant can be held guilty only because she

was not injured in the incident. In that regard, what is to

be noted is that the natural human conduct is that when

there is any incident or accident the immediate reaction

is to get away from the scene and save oneself. If in the

middle of the night for whatever reason there was fire and

if the appellant had woken up and noticed it a little

earlier, the natural conduct is to run out of the house

instead of going into the house which is burning to check

on the other inmates. It takes a person lot of courage or

be overdriven with compassion to get back into the house

to save somebody else and not doing so may be

considered as morally wrong for not coming to the aid of

fellow human being in distress, but it cannot be a

circumstance to hold a person guilty of a crime which is

as serious as murder unless the other circumstances in

the chain point to the accused so as to lead to an

irresistible conclusion of being guilty.

16. If the appellant was responsible for causing the fire

with the intention to kill Mandabai, would not she have

closed the door after coming out of the house to ensure

Page 19 of 23 that she does not come out. On the other hand,

Mandabai who came out alive and lived for a day has not

blamed or suspected anybody including the appellant.

She would have stated about the overt act if any was

indulged in by the appellant. Her declaration is clear that

the house caught fire and she and her children were

caught in the fire. She did not state that the fire set on

her had spread to the house. Further even as per the

statement of PW­1, that is Gajanan, the father­in­law, he

was sleeping just outside the house and on hearing the

appellant shouting he woke up and the deceased had

stated that he was awake when she came out. Neither

has he stated of the efforts made by him to save the

deceased. But it is only after the deceased and the

granddaughter came out, steps were taken. One other

circumstance is also that the admitted position is that the

house had three rooms, one of which was occupied by

PW­ 3 Piraji Mankari and his family, the fire accident was

of the nature which had destroyed the entire house and

also the adjoining cowshed etc. Even in that position the

said Piraji Mankari and others were also not injured.

Page 20 of 23 Therefore, not being injured alone cannot be held as a

circumstance to hold one guilty of having set fire to the

house.

17. The High Court has further held the second

marriage; the desire for domestic dominance and the

execution of document for maintenance on 17.02.2006,

that is, a day before registration of the marriage as a

circumstance and motive, which we are unable to accept.

This is for the reason that the marriage had been

registered after an arrangement for maintenance was

made in favour of the first wife for only a portion of the

property which is a normal thing in such circumstance

and it cannot be held as a strong motive for an alleged

crime of the present nature where the appellant would

destroy her own house and that too without there being

any other incident when they have lived together in the

same house and the fire incident has occurred after more

than six months from the date of marriage. Therefore, if

all these aspects are taken into consideration the doubts

which arise in the mind would outweigh the reasons

given by the High Court for pointing to the suspicion on

Page 21 of 23 the appellant and in that circumstance certainly the

benefit of doubt should go in favour of the appellant.

18. The High Court holding the appellant guilty of

pouring kerosene around the deceased and her children

and setting them on fire since the appellant had failed to

explain the reason for eruption of fire in view of such

obligation to explain under Section 106 is also not

sustainable in the present circumstance. As held in

Sharad Birdhichand Sarda (supra) the failure to

explain can only be held as an additional link to complete

the chain of circumstance. In the instant case, since the

other circumstances in the chain are not established, the

same cannot be held against the appellant. On the other

hand, the case itself is that the fire had erupted at

midnight when the appellant and others were sleeping

and she come out shouting. The explanation for the

cause of fire by the appellant would have arisen only if

there was any other evidence to the effect that the

appellant was already awake and was outside even before

the fire erupted.

Page 22 of 23

19. Thus, taking into consideration all these aspects in

the facts and circumstance of this case we are of the

opinion that the appellant is entitled to be acquitted as

the benefit of doubt weighs in her favour. We are

therefore, unable to sustain the order of conviction of the

appellant.

20. In the result, the judgment dated 12.10.2017

passed by the High Court affirming the conviction and

sentence ordered by the Sessions Court is set aside. The

appellant Parubai who is on interim bail is set at liberty

and her bail bond shall stand discharged.

21. The appeal is, accordingly, allowed.

22. Pending applications, if any, shall stand disposed of.

……………………….J. (HEMANT GUPTA)

……………………….J. (A.S. BOPANNA) New Delhi, August 10, 2021

Page 23 of 23