Bombay High Court
DATTU ROHIDAS MOREversusTHE STATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
Holding
The conviction under Section 302 IPC stands as the prosecution proved the case and the appellant failed to discharge the burden imposed by Section 106 of the Evidence Act.
Summary
The appellant was convicted of murder under Section 302 IPC for allegedly killing his wife with an axe and was sentenced to life imprisonment. The prosecution relied on testimony of the appellant's father, other family members, a doctor’s post‑mortem report, forensic blood‑group analysis linking the appellant’s clothing to the victim, and the investigating officer’s evidence of recovered weapons, despite several panch witnesses turning hostile. The defence argued lack of direct eye‑witness, challenged the reliability of the recovered items, and claimed an alibi. The Court held that the prosecution had discharged its burden of proof, that Section 106 of the Evidence Act shifted the burden to the accused to explain the injuries, and that hostile witnesses do not invalidate recovery evidence when the investigating officer’s testimony is credible. Consequently, the appeal was dismissed and the conviction affirmed.
Issues considered
- The prosecution must prove the appellant's guilt beyond reasonable doubt despite the absence of an eye‑witness.
- Whether Section 106 of the Indian Evidence Act applies to shift the burden of explanation to the husband in a homicide within the marital home.
- Whether the turning hostile of panch witnesses defeats the admissibility of the recovered axe and blood‑stained clothing.
- The evidentiary value of forensic blood‑group matches between the victim and the appellant’s clothing.
- The viability of the appellant's alibi defence in the absence of corroboration.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 164, 313
- Indian Evidence Act, 1872 — s. 101, 106
- Indian Penal Code, 1860 — s. 302
Subjects
- murder
- Section 302 IPC
- life imprisonment
- burden of proof
- Section 106 Evidence Act
- hostile witnesses
- forensic blood group evidence
- alibi defence
- appeal
Judgment
APEAL_455_21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO. 455 OF 2021
WITH
INTERIM APPLICATION NO. 1359 OF 2021
WITH
INTERIM APPLICATION NO. 1360 OF 2021
WITH
INTERIM APPLICATION NO. 3010 OF 2024
Dattu Rohidas More … Appellant/Applicant
vs.
The State of Maharashtra … Respondent
Ms. Reshmarani Nathani for appellant/applicant.
Ms. Sharmila S. Kaushik, APP for respondent-State.
CORAM : MANISH PITALE &
SHREERAM V. SHIRSAT, JJ
RESERVED ON: 19th JANUARY, 2026
PRONOUNCED ON: 23rd JANUARY, 2026
ORDER: (Per Justice Manish Pitale, J):
. The appellant (original accused) has filed this appeal,
challenging judgment and order dated 29.12.2018 passed by
Additional Sessions Judge, Niphad in Sessions Case No.55 of 2015,
whereby he has been convicted for offence punishable under Section
302 of the Indian Penal Code, 1860 (IPC) and sentenced to suffer life
imprisonment and to pay fine of ₹ 5,000/-, and in default of
payment of fine, to further suffer rigorous imprisonment for a period
of 6 months.
2. The prosecution case in brief is that the appellant caused the
death of his wife on 28.12.2014 by assaulting her with an axe and
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then attempted to run away. It is the case of the prosecution that the
appellant got married to the deceased in the year 2006 and that two
children were born to them. There were certain quarrels between
husband and wife and it is stated that one day prior to the incident
i.e. on 27.12.2014, the appellant had attempted to commit suicide by
jumping into a well. He was taken out of the well and the family
members as also the father of the deceased had tried to reason with
him, due to which he came back home.
3. On the next day i.e. on 28.12.2014, early in the morning,
according to appellant’s father i.e. PW3-Rohidas More, the appellant
assaulted his wife with an axe in their room and when he attempted
to run away, PW3 caught hold of him and with the help of his other
son, restrained the appellant by tying him with rope. The police was
informed, who reached at the spot and arrested the appellant. PW3
stated that he saw the deceased i.e. his daughter-in-law lying on bed
in a pool of blood with grievous injuries on her head. He also saw the
axe at the spot of the incident.
4. The first informant in the present case was the father-in-law of
the appellant. When he was informed that an incident had taken
place involving his daughter, he rushed to the spot and lodged an
FIR. The investigation was undertaken and on completion thereof,
charge-sheet was filed. Upon charge being framed, the Trial Court
took up the matter for recording of evidence. Eventually, the
impugned judgment and order was delivered, holding the appellant
guilty of the offence.
5. During the course of trial, the prosecution examined the
following 10 witnesses:
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(i) PW1-Bhagwant Pawar was the first informant and father of the
deceased.
(ii) PW2-Vijay Pawar was the cousin of PW1, who accompanied him
on the date of the incident to the house of the appellant.
(iii) PW3-Rohidas More was the father of the appellant, who first
saw the appellant coming out of his room, after having
assaulted the deceased.
(iv) PW4 and PW5 were panch witnesses for the spot panchanama
and the axe being taken to the Medical Officer for examination.
Both of them turned hostile and they were cross-examined on
behalf of the prosecution.
(v) PW6 was the doctor who conducted the postmortem and
deposed with regard to the extent of injuries suffered by the
deceased and prepared the postmortem report.
(vi) PW7 and PW8 were panch witnesses for the panchanama drawn
with regard to the weapon of assault i.e. the axe being taken to
the Medical Officer as also, for collection of clothes of the
deceased and the appellant. Both turned hostile and they were
cross-examined by the prosecution.
(vii) PW9 was the panch witness for inquest panchanama. In his
cross-examination, he stated that he did not know the contents
of the panchnama.
(viii)PW10 was the investigating officer, who deposed regarding the
recoveries and panchanamas drawn during the course of
investigation.
6. The articles, including axe and clothes, recovered during the
course of investigation, were sent for chemical analysis. The
Chemical Analysis Reports (CA reports) were on record, including
report regarding blood group of the deceased. Upon completion of
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recording of evidence, the incriminating circumstances were put to
the appellant and his statement was recorded under Section 313 of
Code of Criminal Procedure, 1973 (CrPC). He raised the defence of
alibi, claiming that he was at a paan stall of one Sunil Sathe during
the night and he also raised the defence of false implication. As
noted hereinabove, the Trial Court accepted the prosecution case and
convicted and sentenced the appellant in the aforesaid manner.
7. Ms. Reshmarani Nathani, the learned counsel appearing for the
appellant, submitted that in the present case, there was no direct
evidence in the form of an eye-witness, who had seen the actual
assault on the deceased. It was submitted that the star witness i.e.
PW3-appellant’s father, conceded that he did not hear any shouting
or cries, when the alleged assault was undertaken by the appellant. It
is further submitted that specific questions were put to the said
witness with regard to the property dispute between the appellant
and his own father-PW3, which indicated the possibility of false
implication.
8. It was further submitted that in the present case, all the panch
witnesses had turned hostile and therefore, recoveries were not
proved at all. It was submitted that the recovery of weapon of assault
i.e. the axe was also in serious cloud of doubt and therefore, the
prosecution had failed to prove its case beyond reasonable doubt.
PW1-first informant deposed only on the basis of hearsay material
and therefore, the evidence fell short of proving that the appellant
was responsible for the gruesome assault on his wife i.e. the
deceased. On this basis, it was submitted that this Court may allow
the appeal.
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9. On the other hand, Ms. Sharmila Kaushik, the learned APP
submitted that there was sufficient oral and documentary material on
record to prove the guilt of the appellant. The Trial Court had
analyzed the evidence in a cogent manner to come to proper
conclusions against the appellant. It was submitted that in the
present case, since the dead body of the victim was found with
grievous injuries on her body and the appellant was the only person
with her in the room, Section 106 of the Indian Evidence Act, 1872
(Evidence Act) clearly applied and the burden was on the appellant
to explain the circumstances in which the deceased suffered such
serious injuries. It was submitted that the surrounding circumstances
and the evidence on record clearly pointed towards the guilt of the
appellant.
10. It was further submitted that merely because the panch
witnesses had turned hostile, it cannot be concluded that the
recoveries were not believable. As per settled law, the investigating
officer can certainly prove the panchanamas and the recovery of
weapon of assault, as also other incriminating material. Reliance was
also placed on the CA reports, which demonstrated that the deceased
had blood group ‘O’ and the blood found on the clothes of the
appellant also had the same blood group, thereby proving the
involvement of only the appellant in the aforesaid incident. It was
submitted that the postmortem report demonstrated the ferocity of
the assault and in the backdrop of matrimonial dispute between the
two, it was clear that the appellant had assaulted his wife, which
resulted in her death. On this basis, it was submitted that the appeal
deserved to be dismissed.
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11. We have considered the rival submissions after perusal of
evidence and material on record as also, the impugned judgment and
order passed by the Trial Court. An analysis of the evidence shows
that the FIR was registered at the behest of the father-in-law of the
appellant. He was not present at the time of the incident and
therefore, he reported the matter after visiting the appellant’s house
in the morning immediately after the incident. He clearly stated that
his daughter i.e. the deceased was lying in a pool of blood on her bed
and she had multiple injuries on her head and chest. Appellant’s
parents and brother were also present and that the appellant was
tied by rope by his father. He also deposed about a big axe lying in a
corner with blood-stains on it.
12. The said witness PW1 also specifically stated that the deceased
had suffered ill-treatment in the matrimonial home and that one day
prior to the incident, i.e. on 27.12.2014, he had received a call from
one Sunil Sathe that his son-in-law i.e. the appellant had jumped into
a well. PW1 stated that he immediately went to the house of the
appellant and along with his family members, went to the well, from
where the appellant was taken out. Thereafter, PW1 stated that he
spoke to the appellant and tried to make him understand about not
taking such an extreme step. In cross-examination, nothing much
could be extracted from the said witness.
13. Thus, the testimony of the said witness (PW1) gives the
backdrop of the matrimonial discord between the appellant and his
wife i.e. the deceased, to the extent that one day prior to the
incident, the appellant had even attempted to commit suicide by
jumping into a well. This is significant as it demonstrates that the
relationship between the appellant and his wife i.e. the deceased was
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not normal and this could have been a reason to take extreme step of
assaulting his wife.
14. PW2-Vijay Pawar i.e. cousin of PW1, had accompanied him on
both days i.e. on the date of the incident (28.12.2014) as also one
day prior (27.12.2014). This witness also deposed about the
appellant having jumped into the well on 27.12.2014, from where he
had to be taken out. PW2 further stated that he had accompanied
PW1, when information about the incident was received in the
morning of 28.12.2014. He also saw the deceased lying in a pool of
blood on the bed and a big, blood-stained axe lying near her body.
The appellant was tied with a rope and the parents as well as brother
of the appellant were present in the house. Thus, the testimony of
this witness supports the version of PW1.
15. PW3-Rohidas More, being the father of the appellant, is a
crucial prosecution witness. He has described as to the manner in
which the entire family was residing in the house. It was stated that
the two rooms in the house were occupied by his two sons and their
wives, while he along with his wife, used to reside with them and
they used to sleep in the verandah. He stated about the manner in
which the appellant had jumped into the well one day prior to the
incident and how he had to be extricated. It was stated that PW1 i.e.
the father-in-law of the appellant, had tried to reason with the
appellant and all of them had returned home. As regards the day of
the incident, PW3 stated that the appellant i.e. his own son assaulted
his wife i.e. the daughter-in-law of PW3 with a big axe at about
05:00 a.m. It was stated that PW3 was outside the house and he saw
the appellant attempting to run away. PW3 caught hold of the
appellant and tied him with a rope. Thereafter, he saw his daughter-
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in-law dead on the bed in a pool of blood, with a big, blood-stained
axe lying at the spot.
16. The aforesaid description of the incident by PW3 does clearly
support the prosecution version. Being the father of the appellant
and living in the same house, his evidence assumes great
significance. In the cross-examination, attempts were made to
indicate that there were disputes between PW3 on the one hand and
the appellant as also his wife on the other hand, with regard to their
demand of share in an agricultural field. Such suggestions were
stoutly denied by PW3.
17. Much emphasis was placed on behalf of the appellant on a
statement by PW3 made in cross-examination that on the day of the
incident in the morning, when he woke up from sleep, he did not
hear any noise of quarrel or beating. We find that the aforesaid
aspect cannot come to the aid of the appellant, simply for the reason
that PW3 clearly stated that he saw the appellant trying to run away
from the room at about 05:00 a.m. At such an early hour in the
morning, PW3 would have woken up due to some commotion and
thereafter, when he saw the appellant (his son) trying to run away,
he caught hold of him and with the help of his other son, restrained
and tied him. The said witness also specifically stated that he saw his
daughter-in-law lying dead in a pool of blood on her bed in the room
occupied by the appellant and the deceased, with the blood-stained
axe lying at the spot. The aforesaid testimony of PW3 does
clinchingly prove the prosecution case and therefore, it cannot be
said that his testimony was disturbed in any manner in the cross-
examination.
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18. It is to be noted that the statements of PW3 as well as his wife
i.e. appellant’s mother, were recorded under Section 164 of CrPC
before the Magistrate. In the said statements also, they described the
incident in the aforesaid manner. No questions were put to PW3 in
cross-examination, with regard to his statement made under Section
164 of CrPC, which was exhibited. Hence, we find the testimony of
PW3 to be believable.
19. At this stage, a crucial aspect needs to be discussed with regard
to Section 106 of the Evidence Act, which pertains to the burden of
proving a fact especially within the knowledge of a person. The said
provision is an exception to the general rule of evidence of burden of
proof, found in Section 101 of the Evidence Act. In the present case,
the evidence led by the prosecution, particularly the testimony of
PW3-appellant’s father, sufficiently proves that only the appellant
and his wife i.e. the deceased were in the room, when the incident
took place. The appellant was found running away from the room,
when he was apprehended by his father-PW3 and the deceased was
found lying in a pool of blood inside the room with grievous injuries
on her head and other parts of her body. The blood-stained axe was
also found in the room.
20. In such a situation, the burden was on the appellant to explain
as to how his wife i.e. the deceased suffered such grievous injuries,
leading to her death and also, the presence of blood-stained axe in
the room. The appellant was unable to give any explanation for the
same in his defence. He merely stated that he was not at home and
that he was with one Sunil Sathe and he had reached home in the
morning, thereby indicating that he was falsely implicated.
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21. The aspect of alibi was not taken forward by the appellant as
the aforesaid Sunil Sathe was never examined. In any case, the
defence of alibi appeared to be self-contradictory, as the appellant
also claimed that he was to repay certain amount to the said Sunil
Sathe, which could also have led to the incident. We are unable to
accept that a person, who could be responsible for assault on the
appellant’s wife, was the very person with whom the appellant was
spending time during the night immediately prior to the incident.
22. The law with regard to the burden of proof, as per Section 106
of the Evidence Act, has been explained by the Supreme Court in
various judgments, including judgments in the cases of Shambhu
Nath Mehra vs. State of Ajmer [(1956) 1 SCC 337], Trimukh Maroti
Kirkan vs. State of Maharashtra [(2006) 10 SCC 681], State of
Rajasthan vs. Thakur Singh [(2014) 12 SCC 211] and Shivaji
Chintappa Patil vs. State of Maharashtra [(2021) 5 SCC 626].
23. In Shivaji Chintappa Patil vs. State of Maharashtra (supra), the
Supreme Court has observed as follows:
“20. That leads us to the reliance placed by the High
Court as well as the trial court on the provisions of
Section 106 of the Evidence Act. In Subramaniam
vs. State of T.N. [(2009) 14 SCC 415] this Court had
occasion to consider the similar case of the husband
and wife remaining within the four walls of a house
and death taking place. It will be relevant to refer to
the following observations of this Court: (SCC p.
426, para 23)
‘23. So far as the circumstance that they had been
living together is concerned, indisputably, the
entirety of the situation should be taken into
consideration. Ordinarily when the husband
and wife remained within the four walls of a
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house and a death by homicide takes place it
will be for the husband to explain the
circumstances in which she might have died.
However, we cannot lose sight of the fact that
although the same may be considered to be a
strong circumstance but that by alone in the
absence of any evidence of violence on the
deceased cannot be held to be conclusive. It
may be difficult to arrive at a conclusion that
the husband and the husband alone was
responsible therefor.’
24. In the said judgment, the Supreme Court also clarified that
Section 106 of the Evidence Act would not directly operate against
either the husband or the wife staying under the same roof. It is only
when the prosecution discharges its primary burden that the accused
would have to give a cogent explanation in his or her defence. We
are conscious of the fact that merely because the appellant is the
husband of the deceased, the said fact cannot ipso facto lead to his
conviction by applying Section 106 of the Evidence Act. But as noted
hereinabove, the prosecution has indeed discharged its burden of
proof. The circumstances were duly proved by the prosecution
witnesses, particularly PW3 i.e. appellant’s father himself,
demonstrating that the deceased had been brutally assaulted with
axe, which was found in the very room with blood stains on it and
that the appellant was seen running out of the room by his own
father, who had to restrain him. We find that the rigour of Section
106 of the Evidence Act applied with full force against the appellant
and he failed to discharge the burden, to explain the circumstances
especially within his knowledge. Thus, the prosecution case stood
proved against the appellant.
25. It was vehemently submitted on behalf of the appellant that in
the present case, the panch witnesses i.e. PW4, PW5, PW7 and PW8
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had all turned hostile. Even PW9 i.e. the only remaining panch
witness stated in his cross-examination that he did not know the
contents of the panchanama. On this basis, it was submitted that
none of the panchanamas were proved and therefore, the recoveries,
including recovery of weapon of assault, were not proved. This was
claimed to be fatal to the prosecution case.
26. In such cases, where the panch witnesses turn hostile, it has
been laid down by the Supreme Court that the recoveries could still
be proved by the investigating officer. In the case of Modan Singh vs.
State of Rajasthan [(1978) 4 SCC 435], the Supreme Court
categorically held that if 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.
27. The said position of law has been consistently followed in
various judgments, including in the cases of Rameshbhai Mohanbhai
Koli and others vs. State of Gujarat [(2011) 11 SCC 111] and
Mallikarjun and others vs. State of Karnataka [(2019) 8 SCC 359].
28. The relevant portion of the judgment of the Supreme Court in
the case of Rameshbhai Mohanbhai Koli and others vs. State of
Gujarat (supra) reads as follows:
Evidence of the investigating officer
“32. An argument was advanced about reliance based on
the evidence of investigating officer. This Court in
State of U.P. v. Krishna Gopal [(1988) 4 SCC 302]
has held that courts of law have to judge the
evidence before them by applying the well-
recognised test of basic human probabilities.
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‘3.... prima facie public servants must be presumed
to act honestly and conscientiously and their
evidence has to be assessed on its intrinsic
worth and cannot be discarded merely on the
ground that being public servants they are
interested in the success of their case.’ (Vide
State of Kerala v. M.M. Mathew [(1978) 4 SCC
65] at SCC p. 68, para 3.)
33. In Modan Singh v. State of Rajasthan [(1978) 4 SCC
435] 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 [(2001) 9 SCC
362].
34. In Anter Singh v. State of Rajasthan [(2004) 10 SCC
657], 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)”
29. Thus, the position of law is sufficiently clear that even if the
panch witnesses turned hostile, the evidence regarding recovery of
the material objects can be proved on the basis of testimony of the
investigating officer alone.
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30. In this context, we have perused the evidence of PW10-
Investigating Officer. We find that he has deposed in detail about the
panchanamas executed during the course of investigation. These
include the panchanamas executed, when the blood-stained axe was
produced before the Medical Officer for opinion as to whether the
axe could cause the injuries suffered by the victim. The opinion of
the Medical Officer supported the prosecution case. PW10-
Investigating Officer also proved recovery of blood-stained clothes of
the deceased as well as the appellant and the manner in which they
were sent for obtaining CA reports. He has also deposed about the
recovery of axe from the spot of the incident and the manner in
which the panchanamas, including the spot panchanama and inquest
panchanama, were executed. There is no reason to disbelieve the
testimony of PW10-Investigating Officer and the cross-examination
has not brought out any discrepancy in the evidence of the said
witness. Therefore, following the aforesaid position of law, we accept
the evidence of PW10 as the basis for proving the panchanamas.
31. The evidence of PW6-doctor shows that the postmortem report
was proved, which recorded as many as 12 injuries on the body of
the deceased, including 8 chop wounds on her head, face and neck.
The said witness specifically opined that such injuries could be
caused by the axe recovered during the course of investigation. The
said witness also deposed about the manner in which the blood
sample of the deceased was collected and sent for examination.
32. We find substance in the contention of the learned APP that
the CA reports also bring out incriminating circumstance against the
appellant. A perusal of the CA reports at Exhibits 40 and 41 show
that the blood group of the deceased was ‘O’ and that blood of the
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same group was found on the appellant’s T-shirt. This further
strengthens the prosecution case.
33. We find that in the present case, the Trial Court considered the
evidence and material on record in the correct perspective and
reached the conclusion regarding guilt of the appellant. We also find
that the prosecution has proved its case beyond reasonable doubt
and that therefore, the impugned judgment and order does not
deserve any interference.
34. In view of the above, the appeal is dismissed. The conviction
and sentence imposed upon the appellant is confirmed. Pending
applications are also disposed of.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)
Digitally
signed by
PRIYA PRIYA KAMBLI
Date:
KAMBLI 2026.01.23
18:29:36
+0530
Priya Kambli
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