PARUBAI versus THE STATE OF MAHARASHTRA
[2021] 8 S.C.R. 135, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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PARUBAI
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal No.1154 of 2018)
AUGUST 10, 2021
[HEMANT GUPTA AND A. S. BOPANNA, JJ.]
Penal Code, 1860: ss. 302 and 436 – Murder – Fire incident
at mid-night wherein house of appellant and her family engulfed in
flames – Appellant-second wife came out of the house unscathed,
whereas the first wife and her two children caught by flames and
two of them died later – Conviction and sentence of the appellant
u/ss. 302 and 436 by the courts below, though her husband and
her mother-in-law acquitted by the trial court – On appeal, held:
Links in the chain of circumstances is necessary to be established
for conviction on the basis of circumstantial evidence – 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” – Courts below made suspicion the
reason for rendering conviction without there being any strong basis
– Suspicion, however strong, cannot take the place of proof – As
regards the circumstance which raise a doubt that the appellant
was not injured in the incident, it is to be noted 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 –
It cannot be a circumstance to hold a person guilty of a serious
crime as murder unless the other circumstances in the chain point
to the guilt of the accused – Circumstances in
the chain are not
established, the same cannot be held against the appellant – In
view thereof, the appellant to be given the benefit of doubt – Thus,
the order of conviction cannot be sustained and is set aside –
Evidence.
Allowing the appeal, the Court
HELD: 1.1 The links in the chain of circumstances is
necessary to be established for conviction on the basis of
circumstantial evidence. The mere suspicion would not be
sufficient, unless the circumstantial evidence tendered by the
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prosecution leads to the conclusion that it “must be true” and
not “may be true”. [Paras 13, 14][145-F; 147-C-D]
1.2 The High Court 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 N was seized,
vide a Panchnama and the evidence of PW-8 that the frock had
been sent for chemical analysis and the report shows that
Kerosene residues were detected thereon. In that circumstance,
the High Court held that kerosene was used for setting the
deceased N 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 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. 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 N which is said to have been recovered from the place of
occurrence. That apart, the declaration of M, the deceased
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 frock as a circumstance that
she had set fire by sprinkling kerosene. [Para 11, 12][144-G-H;
145-A-F]
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1.3 A perusal of the judgment passed by the Session’s Court
as well as the High Court for its ultimate conclusion 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, it has ultimately held that the prosecution
had established beyond reasonable doubt that it is the appellant
only who has set the deceased M 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 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. [Para
15][148-D-H; 149-A-B]
1.4 If the appellant was responsible for causing the fire with
the intention to kill M, would not she have closed the door after
coming out of the house to ensure that she does not come out.
On the other hand, M who came out alive and lived for a day has
not blamed or suspected anybody including the appellant. Further
even as per the statement of PW -1, the father-in-law, 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
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had three rooms, one of which was occupied by PW- 3 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 PW- 3 and others were also not injured.
Therefore, not being injured alone cannot be held as a
circumstance to hold one guilty of having set fire to the house.
[Para 16][149-B-E]
1.5 The High Court held the second marriage; the desire
for domestic dominance and the execution of document for
maintenance, a day before registration of the marriage as a
circumstance and motive, cannot be accepted. 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 the appellant and in that circumstance certainly the
benefit of doubt should go in favour of the appellant. [Para
17][149-
F-H; 150-A]
1.6 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. 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
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already awake and was outside even before the fire erupted. [Para
18][150-B-D]
1.7 Taking into consideration all these aspects in the facts
and circumstance of the instant case, the appellant is entitled to
be acquitted as the benefit of doubt weighs in her favour. The
order of conviction of the appellant cannot be sustained. The
judgment  passed by the High Court affirming the conviction and
sentence ordered by the Sessions Court is set aside. [Para 19,
20][150-D-F]
Sharad Birdhichand Sarda v. State of Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88; Devilal v. State
of Rajasthan (2019) 19 SCC 447 – referred to.
Case Law Reference
[1985] 1 SCR 88
referred to.
para 13
(2019) 19 SCC 447
referred to.
para 14
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1154 of 2018.
From the Judgment and Order dated 12.10.2017 of the High Court
of Bombay, Bench at Aurangabad in Criminal Appeal No.488 of 2007.
Sudhanshu S. Choudhari, Adv. for the Appellant.
Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Advs.
for the Respondent.
The Judgment of the Court was delivered by
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
appellant in respect of the offence punishable under 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., mother-in-law of the appellant
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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 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 mother-in-
law 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 father-in-law 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 daughter-in-law
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.
4. The father-in-law 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 mother-in-law were also included and
charged for the offence as accused No.2 and 3. The prosecution had
examined PW-1 to PW-9 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 PW-2 to implicate them
was not trustworthy. However, insofar as the appellant herein, the
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Sessions Court had taken note of the evidence tendered by PW-1 and
PW-3 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 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 PW-8 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 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 PW-1 which had been relied upon by the
Sessions Court. The High Court was of the view that Gajanan (PW-1)
the father-in-law 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 extra-judicial confession
stated to have been made to him that she had sprinkled kerosene and set
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fire. In that regard, the High Court had appropriately taken note from
the decision rendered by this Court indicating that extra-judicial confession
is a weak evidence by itself.
7. The High Court has thereafter taken note of the evidence
tendered through Vijay (PW-4) and the Police Sub-Inspector Phad
(PW-8) 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 (PW-2) 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 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
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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 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 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
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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 appellant and Mr. Sachin Patil, learned
counsel on behalf the respondent-State 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 extra-judicial confession said to have been made to her
father-in-law namely Gajanan (PW-1) 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.
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
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Nikita was seized, vide a Panchnama (Exhibit 34) and the evidence of
PW-8 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 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 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.
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It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal distinction
between “may be proved” and “must be or should be proved” as
was held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra 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 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
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(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;
“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
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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.
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 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
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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 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 PW-1, that is
Gajanan, the father-in-law, 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. 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
PARUBAI v. THE STATE OF MAHARASHTRA
[A. S. BOPANNA, J.]
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outweigh the reasons given by the High Court for pointing to the suspicion
on 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.
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.
Nidhi Jain
Appeal allowed.