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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2057 OF 2010

GAJANAN DASHRATH KHARATE                                  ...Appellant  

Versus

STATE OF MAHARASHTRA             …Respondent  

J U D G M E N T

R. BANUMATHI, J  .   

This appeal arises out of the judgment of the High Court  

of  Judicature  at  Bombay,  Nagpur  Bench  dated  02.12.2009  in  

Criminal  Appeal  No.247  of  2004  affirming  the  conviction  of  the  

appellant under Section 302 IPC and sentence of life imprisonment  

imposed on him.

2. Briefly  stated  case  of  the  prosecution  is  as  under:-  

PW-1-Nagorao  Kharate,  cousin  of  the  deceased-Dashrath  was  

residing adjacent to the house of Dashrath and his son appellant-

accused  in  village  Dapura.  PW-1-Nagorao  Kharate  lodged  a  

complaint  at  Police  Station  Boregaon  Manju  on  the  evening  of  

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08.04.2002 stating that on the preceding night i.e. 07.04.2002 at  

around 08.30 p.m. he heard an altercation between Gajanan-the  

appellant-accused  and  his  father-Dashrath  and  Dashrath  was  

wailing till about 10.00 p.m. According to PW-1-Nagorao Kharate,  

such  incidents  of  altercations  and  assault  were  frequent  in  the  

house of the appellant-accused and therefore he paid no attention  

to the incident.    On the next day morning at about 7.30 a.m.,  

PW-1-Nagorao Kharate was informed by Madhukar Kharate-PW-4  

that he had found Dashrath lying dead in a pool of blood inside his  

house.  PW-1 rushed to the house of the appellant and found his  

cousin  Dashrath-father  of  the  appellant  lying  dead  in  a  pool  of  

blood  and  a  stone  smeared  with  blood  lying  next  to  his  body.  

PW-1-Nagorao Kharate then went to the Police Station, Boregaon  

Manju lodged a complaint, on the basis of which, First Information  

Report  was  registered  vide  RC  No.40/2002  for  the  offence  

punishable under Section 302 IPC.  Investigation was taken up by  

PW-7-Hanuman Rathod, who was incharge of the police station and  

PW-7  recorded  the  statement  of  witnesses.  PW-6-Dr.Prashant  

Agrawal conducted autopsy on the body of deceased-Dashrath and  

noted number of injuries on his eyes, forehead, cheek, shoulder,  

elbow etc. and opined that Dashrath died due to injuries to vital  

organs and head injuries.   Accused was arrested on 09.04.2002  2

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and while in police custody he gave a confession statement which  

led to the recovery of blood stained clothes of the accused inside his  

house.   On chemical  analysis,  recovered  clothes  of  the  accused  

found to contain ‘B’ Group blood which is the blood group of the  

deceased.  On  completion  of  the  investigation,  police  filed  the  

chargesheet against the appellant-Gajanan under Section 302 IPC  

and the case was committed to the Court of Sessions, Akola.

3. To  substantiate  the  charges  against  the  appellant,  

prosecution  has  examined  as  many  as  seven  witnesses  and  

exhibited number of documents and material objects. The accused  

was questioned under Section 313 Cr. P.C. about the incriminating  

evidence and circumstances and the appellant denied all of them  

and pleaded that  false case has been foisted against him. Upon  

appreciation  of  oral  evidence  and  the  circumstances  and  the  

conduct of the appellant-accused in not giving explanation for the  

homicidal death of his father, the trial court convicted the appellant  

for  the  offence  under  Section  302  IPC  and  sentenced  him  to  

undergo  imprisonment  for  life  and  to  pay  a  fine  of  rupees  one  

thousand  with  default  clause.  Being  aggrieved,  the  appellant  

preferred  appeal  before  the  High  Court  and  by  the  impugned  

judgment,  the  High  Court  dismissed  the  same  confirming  the  

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conviction of the appellant and the sentence of life imprisonment  

imposed on him.

4. Learned  counsel  for  the  appellant  Mr.  Praveen  

Chaturvedi contended that PW-1-Nagorao Kharate came to know  

about the death of  Dashrath only from PW-4-Madhukar Kharate  

and the High Court failed to appreciate that PW-1-Nagorao Kharate  

was not an eye-witness to the occurrence.  It was further contended  

that the evidence of PWs 1 and 2 are untrustworthy and conviction  

of the appellant was based on mere suspicion and the High Court  

erred in not appreciating the lapses in the prosecution case and  

therefore conviction of the appellant is not sustainable.

5. Learned  counsel  for  the  respondent-State  Mr.  Kunal  

Cheema  submitted  that  prosecution  adduced  direct  evidence  

against  the appellant  to prove that  he committed murder of  his  

father-Dashrath and the evidence of two eye-witnesses PWs 1 and 2  

corroborates  each  other  and  the  courts  below rightly  based  the  

conviction upon the testimonies of PWs 1 and 2.  It was further  

submitted that prosecution has proved presence of the appellant at  

his house at the time of incident and there was no explanation from  

the appellant as to how his father-Dashrath sustained injuries and  

the courts below rightly convicted the appellant under Section 302  

IPC. 4

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6. We have carefully considered the rival contentions and  

perused the impugned judgment and material on record.

7. As seen from the evidence adduced by the prosecution,  

deceased-Dashrath, his wife-Mankarnabai and their son accused-

Gajanan  were  residing  together.  PW-1-Nagorao  Kharate  whose  

house was adjacent to the house of Dashrath and was also closely  

related to him had deposed that the appellant was addicted to bad  

habits of liquor and gambling and appellant used to demand money  

frequently from his father and quarrelled with his father.  In his  

evidence,  PW-1-Nagorao  Kharate  stated  that  on  07.04.2002  at  

about 5.00 p.m. accused-Gajanan demanded money from his father  

and when his father refused to give money to the appellant, the  

appellant  abused his  father  and thereafter  left  the house.  PW-1  

further stated that appellant-accused returned home at about 8.30  

p.m., he again started abusing his father and also assaulted him  

and Dashrath was wailing till about 10.00 p.m. The testimony of  

PW-2-Ratnaprabha-wife of PW-1 is to the same effect which amply  

corroborates the version of PW-1.

8. PW-1-Nagorao  Kharate  stated  that  he  and  his  wife  

PW-2-Ratnaprabha  and  grand-daughter  have  witnessed  the  

occurrence but due to fear of the appellant they did not intervene  

in the occurrence on the night of 07.04.2002.  On the next day,  5

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they  were  informed  by  PW-4-Madhukar  Kharate  that  deceased-

Dashrath was lying dead in a pool of blood.  PW-1 in his evidence  

stated that on 08.04.2002 at about 7.00-7.30 a.m. he learnt about  

death of his cousin through PW-4-Madhukar Kharate and when he  

went to the house of Dashrath, he saw him dead lying in a pool of  

blood.  Assailing  trustworthiness  of  PW-1,  it  was  submitted  that  

PW-1 came to know about the death of Dashrath only from PW-4-

Madhukar  Kharate  and  PW-1  could  not  have  witnessed  the  

occurrence.  Evidence of PWs 1 and 2 is assailed contending that  

had they witnessed the occurrence, they would have certainly tried  

to intervene in the quarrel to pacify the appellant and the deceased  

and  the  conduct  of  PWs  1  and  2  in  not  trying  to  intervene  is  

unnatural  and the  courts  below ought  to  have  disbelieved  their  

version.  

9. On  the  night  of  07.04.2002  after  witnessing  the  

incident, PWs 1 and 2 retired to bed.  PWs 1 and 2 did not try to  

intervene in the quarrel between the appellant and the deceased as  

they  assumed that  it  was  a  routine  and  usual  quarrel  between  

father and son.  On the next day morning, when they were in their  

house, they came to know about the death of Dashrath-deceased  

through PW-4-Madhukar Kharate.  At the time of incident, as the  

appellant was in a drunken state, as noted by the courts below,  6

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PW-1 did not try to intervene in their dispute.  Further PWs 1 and 2  

are persons of advance age.  Trial court noticed that PW-1-Nagorao  

Kharate was of 71 years and PW-2-Ratnaprabha was of 65 years  

and therefore it was quite natural on their part to keep themselves  

away from the appellant;  more so,  when the appellant was in a  

drunken state.  Credibility of PWs 1 and 2 cannot be doubted on  

the ground that they did not try to intervene in the incident.   

10. On behalf of the appellant, it was submitted that delay  

in  registration of  first  information  report  creates  serious  doubts  

about  the  prosecution  case  and  the  prosecution  has  not  

satisfactorily explained the delay.   PW-1-Nagorao Kharate lodged  

the complaint at Boregaon Manju Police Station on 08.04.2002 at  

about  5.00 p.m.   In  his  evidence,  PW-1-Nagorao  Kharate  stated  

that Boregaon Manju Police Station is about eight miles from their  

village and that they had to go to Boregaon Manju Police Station via  

Akola.  PW-1 further stated that he went to Akola at 3.00 p.m. and  

from Akola he went to Boregaon Manju Police Station at about 5.00  

p.m., as no vehicle was available at that time.  PW-1 further stated  

that it takes two to three hours by walk to reach Boregaon Manju  

Police Station from his village.  Delay in setting the law into motion  

by lodging of complaint and registration of first information report  

is  normally  viewed  by  courts  with  suspicion  because  there  is  7

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possibility of concoction and embellishment of the occurrence. So it  

becomes necessary for the  prosecution to satisfactorily explain the  

delay.  The object of insisting upon a prompt lodging of the report is  

to obtain early information not only regarding the assailants but  

also  about  the  part  played  by  the  accused,  the  nature  of  the  

incident  and  the  names  of  witnesses.  In  the  case  at  hand,  

prosecution has  satisfactorily  explained the delay  in  lodging the  

complaint.   When  the  prosecution  has  explained  the  delay  in  

lodging the complaint, prosecution case cannot be doubted on the  

small delay between the time of occurrence and in registration of  

first information report.   

11. Apart from the oral evidence, case of prosecution is also  

strengthened by recovery of blood stained clothes of the appellant.  

During  chemical  analysis,  it  was  found  that  the  shirt  of  the  

appellant contained ‘B’ Group blood which is the blood group of  

deceased-Dashrath. The appellant has not offered any explanation  

as  to  presence  of  ‘B’  Group  blood  in  his  clothes,  which  is  yet  

another incriminating circumstance against the appellant.

12. As seen from the evidence, appellant-Gajanan and his  

father-Dashrath and mother-Mankarnabai were living together.  On  

07.04.2002, mother of the appellant-accused had gone to another  

village-Dahigaon.  Prosecution has proved presence of the appellant  8

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at his home on the night of 07.04.2002.  Therefore, the appellant is  

duty  bound  to  explain  as  to  how  the  death  of  his  father  was  

caused.  When  an  offence  like  murder  is  committed  in  secrecy  

inside  a  house,  the  initial  burden  to  establish  the  case  would  

undoubtedly be upon the prosecution.  In view of Section 106 of the  

Evidence Act, there will be a corresponding burden on the inmates  

of the house to give cogent explanation as to how the crime was  

committed.  The inmates of the house cannot get away by simply  

keeping quiet and offering no explanation on the supposed premise  

that  the  burden  to  establish  its  case  lies  entirely  upon  the  

prosecution and there is no duty at all on the accused to offer.  On  

the date of occurrence, when accused and his father Dashrath were  

in the house and when the father of the accused was found dead, it  

was for the accused to offer an explanation as to how his father  

sustained  injuries.  When  the  accused  could  not  offer  any  

explanation as to the homicidal death of his father, it is a strong  

circumstance against  the accused that  he is  responsible  for  the  

commission of the crime.   

13. In  Trimukh  Maroti  Kirkan  v.  State  of  Maharashtra  

(2006) 10 SCC 681, it was held as under:-

“22. Where an accused is alleged to have committed the murder of his  wife and the prosecution succeeds in leading evidence to show that  shortly before the commission of crime they were seen together or the  

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offence takes place in  the dwelling home where  the husband also  normally resided, it  has been consistently held that if  the accused  does not offer any explanation how the wife received injuries or offers  an explanation which is found to be false, it is a strong circumstance  which indicates that he is responsible for commission of the crime. In  Nika Ram v.  State of H.P.(1972) 2 SCC 80   it was observed that the  fact that the accused alone was with his wife in the house when she  was murdered there with “khukhri” and the fact that the relations of  the accused with  her  were  strained  would,  in  the  absence  of  any  cogent explanation by him, point to his guilt. In Ganeshlal v. State of  Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the  murder of his wife which took place inside his house. It was observed  that when the death had occurred in his custody, the appellant is  under an obligation to give a plausible explanation for the cause of  her death in his statement under Section 313 CrPC. The mere denial  of the prosecution case coupled with absence of any explanation was  held  to  be  inconsistent  with  the  innocence  of  the  accused,  but  consistent with the hypothesis that the appellant is a prime accused  in  the  commission  of  murder  of  his  wife.  In  State  of  U.P. v.  Dr.  Ravindra  Prakash  Mittal  (1992)  3  SCC  300 the  medical  evidence  disclosed that the wife died of strangulation during late night hours  or  early  morning  and  her  body  was  set  on  fire  after  sprinkling  kerosene.  The  defence  of  the  husband  was  that  the  wife  had  committed suicide by burning herself and that he was not at home at  that time. The letters written by the wife to her relatives showed that  the  husband  ill-treated  her  and  their  relations  were  strained  and  further the evidence showed that both of them were in one room in  the night. It was held that the chain of circumstances was complete  and it was the husband who committed the murder of his wife by  strangulation and accordingly this Court reversed the judgment of the  High Court acquitting the accused and convicted him under Section  302 IPC. In State of T.N. v. Rajendran (1999) 8 SCC 679 the wife was  found dead in a hut which had caught fire. The evidence showed that  the accused and his wife were seen together in the hut at about 9.00  p.m. and the accused came out in the morning through the roof when  the hut had caught fire. His explanation was that it was a case of  accidental fire which resulted in the death of his wife and a daughter.  The medical evidence showed that the wife died due to asphyxia as a  result of strangulation and not on account of burn injuries. It was  held that there cannot be any hesitation to come to the conclusion  that it  was the accused (husband)  who was the perpetrator of the  crime.”

Same view was reiterated by this Court in  State of  Rajasthan v.   

Parthu (2007) 12 SCC 754.

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14. Upon  appreciation  of  oral  evidence  and  the  

circumstance  of  the  recovery  of  blood  stained  clothes  of  the  

accused  and  the  conduct  of  the  accused  in  not  offering  any  

explanation for the homicidal  death of  his father,  by concurrent  

findings, the trial court and the High Court rightly convicted the  

appellant-accused under Section 302 IPC and we do not find any  

reason to interfere with the impugned judgment.  

15. In  the  result,  the  conviction  of  the  appellant  under  

Section 302 IPC and the sentence of life imprisonment imposed on  

him is confirmed and this appeal is dismissed.   The appellant is on  

bail and his bail bonds are cancelled.  The appellant be taken to  

custody to serve out the remaining sentence.

       ...……………………CJI.   (T.S. THAKUR)   

                                                               ...…..……………………J.   (R. BANUMATHI)   

        New Delhi; February  26, 2016

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