PARUBAI versus THE STATE OF MAHARASHTRA on 10 August 2021

[2021] 8 S.C.R. 135

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 incidentat mid-night wherein house of appellant and her family engulfed inflames – Appellant-second wife came out of the house unscathed,whereas the first wife and her two children caught by flames andtwo of them died later – Conviction and sentence of the appellantu/ss. 302 and 436 by the courts below, though her husband andher mother-in-law acquitted by the trial court – On appeal, held:Links in the chain of circumstances is necessary to be establishedfor conviction on the basis of circumstantial evidence – Meresuspicion would not be sufficient, unless the circumstantial evidencetendered by the prosecution leads to the conclusion that it “must betrue” and not “may be true” – Courts below made suspicion thereason for rendering conviction without there being any strong basis– Suspicion, however strong, cannot take the place of proof – Asregards the circumstance which raise a doubt that the appellantwas not injured in the incident, it is to be noted that the naturalhuman conduct is that when there is any incident or accident theimmediate reaction is to get away from the scene and save oneself –It cannot be a circumstance to hold a person guilty of a seriouscrime as murder unless the other circumstances in the chain pointto the guilt of the accused – Circumstances in the chain are notestablished, the same cannot be held against the appellant – Inview 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 isnecessary to be established for conviction on the basis ofcircumstantial evidence. The mere suspicion would not besufficient, unless the circumstantial evidence tendered by the

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Aprosecution leads to the conclusion that it “must be true” andnot “may be true”. [Paras 13, 14][145-F; 147-C-D]

1.2 The High Court held the appellant guilty more onpreponderance of probability rather than reaching a conclusionbeyond reasonable doubt. Though it has employed the phraseB‘beyond reasonable doubt’ in its concluding paragraph, thereasoning preceding the same are only conjectures and surmises.The sole circumstance noted by the High Court with referenceto the evidence is that the burnt frock of deceased N was seized,vide a Panchnama and the evidence of PW-8 that the frock hadbeen sent for chemical analysis and the report shows thatCKerosene residues were detected thereon. In that circumstance,the High Court held that kerosene was used for setting thedeceased N on fire. Even if that was taken as a circumstance inthe chain, the same was insufficient unless the other circumstancesin the chain were connected to point at the appellant. In that

Dregard, what is relevant to be noted is that the High Court has inits earlier part of the reasoning disbelieved the recovery of thecan which is stated who have smelt of kerosene since the saidcan had not been sent for chemical analysis and also thecircumstance under which it was said to have been recovered. Ifthat be the position, even if the chemical analysis report referringEto the frock is accepted there is nothing on record to connectthat the appellant was responsible for the sprinkling of thekerosene or for the kerosene to have come in contact with thefrock of N which is said to have been recovered from the place ofoccurrence. That apart, the declaration of M, the deceasedFdiscloses that since there is no electricity in the agricultural field,they sleep in the house and keep a lantern light in the night forwhich kerosene is obviously used. Further, it has come inevidence that in the said house cooking is also done and thematerial pertaining to the tractor including diesel can was alsokept therein. Therefore, the circumstance that the appellant wasGnot injured in the incident cannot be the basis to rely on thepresence of kerosene stains on the frock as a circumstance thatshe 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 Courtas well as the High Court for its ultimate conclusion madesuspicion the reason for rendering conviction without there beingany strong basis. The suspicion, however strong, cannot takethe place of proof. Unfortunately, with the nature of observationsmade by the High Court, it has ultimately held that the prosecutionhad established beyond reasonable doubt that it is the appellantonly who has set the deceased M and her children on fire with aview to remove them from her marital life with accused No.2. Ifthe facts as noted by the High Court lead to such suspicion, equallythere are also circumstances which raise a doubt whether theappellant can be held guilty only because she was not injured inthe incident. In that regard, what is to be noted is that the naturalhuman conduct is that when there is any incident or accident theimmediate reaction is to get away from the scene and save oneself.If in the middle of the night for whatever reason there was fireand if the appellant had woken up and noticed it a little earlier,the natural conduct is to run out of the house instead of goinginto the house which is burning to check on the other inmates. Ittakes a person lot of courage or be overdriven with compassionto get back into the house to save somebody else and not doingso may be considered as morally wrong for not coming to the aidof fellow human being in distress, but it cannot be a circumstanceto hold a person guilty of a crime which is as serious as murderunless the other circumstances in the chain point to the accusedso as to lead to an irresistible conclusion of being guilty. [Para15][148-D-H; 149-A-B]

1.4 If the appellant was responsible for causing the fire withthe intention to kill M, would not she have closed the door aftercoming 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 hasnot blamed or suspected anybody including the appellant. Furthereven as per the statement of PW -1, the father-in-law, he wassleeping just outside the house and on hearing the appellantshouting he woke up and the deceased had stated that he wasawake when she came out. Neither has he stated of the effortsmade by him to save the deceased. But it is only after the deceasedand the granddaughter came out, steps were taken. One othercircumstance is also that the admitted position is that the house AB

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Ahad three rooms, one of which was occupied by PW- 3 and hisfamily, the fire accident was of the nature which had destroyedthe entire house and also the adjoining cowshed etc. Even in thatposition the said PW- 3 and others were also not injured.Therefore, not being injured alone cannot be held as acircumstance to hold one guilty of having set fire to the house.B[Para 16][149-B-E]

1.5 The High Court held the second marriage; the desirefor domestic dominance and the execution of document formaintenance, a day before registration of the marriage as acircumstance and motive, cannot be accepted. This is for theCreason that the marriage had been registered after an arrangementfor maintenance was made in favour of the first wife for only aportion of the property which is a normal thing in suchcircumstance and it cannot be held as a strong motive for analleged crime of the present nature where the appellant wouldDdestroy her own house and that too without there being any otherincident when they have lived together in the same house andthe fire incident has occurred after more than six months fromthe date of marriage. Therefore, if all these aspects are takeninto consideration the doubts which arise in the mind wouldoutweigh the reasons given by the High Court for pointing to theEsuspicion on the appellant and in that circumstance certainly thebenefit 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 pouringkerosene around the deceased and her children and setting themFon fire since the appellant had failed to explain the reason foreruption of fire in view of such obligation to explain under Section106 is also not sustainable in the present circumstance. The failureto explain can only be held as an additional link to complete thechain of circumstance. In the instant case, since the otherGcircumstances in the chain are not established, the same cannotbe held against the appellant. On the other hand, the case itselfis that the fire had erupted at midnight when the appellant andothers were sleeping and she come out shouting. The explanationfor the cause of fire by the appellant would have arisen only ifthere was any other evidence to the effect that the appellant wasH

already awake and was outside even before the fire erupted. [Para18][150-B-D]

1.7 Taking into consideration all these aspects in the factsand circumstance of the instant case, the appellant is entitled tobe acquitted as the benefit of doubt weighs in her favour. Theorder of conviction of the appellant cannot be sustained. Thejudgment passed by the High Court affirming the conviction andsentence 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. Stateof Rajasthan (2019) 19 SCC 447 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1154 of 2018.

From the Judgment and Order dated 12.10.2017 of the High Courtof 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 thejudgment dated 12.10.2017 passed by the High Court of Judicature atBombay, Bench at Aurangabad in Criminal Appeal No.488/2007. By thesaid judgment the High Court has dismissed the appeal filed by theappellant herein and the judgment dated 16.11.2007 passed by the LearnedSessions Judge Parbhani in Sessions Case No.27/2007, convicting theappellant in respect of the offence punishable under Section 302 and436 of the Indian Penal Code (‘IPC’ for short) is confirmed.

2. The appellant was charged of the offence as accused No.1while her husband Gulab and his mother i.e., mother-in-law of the appellant AB

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Awere charged as accused Nos. 2 and 3. The accused Nos. 2 and 3 wereacquitted by the Sessions Court. In that view, the appeal before the HighCourt and the present consideration is limited to the conviction of theappellant herein who is accused No.1. The case of the prosecution isthat Gulab son of Gajanan Watane was married to the deceasedMandabai and they had two children namely Akash, a son aged 5 yearsBand Nikita, the daughter aged 2 years. The said Gulab had an extramarital affair with the appellant and ultimately married her on 02.01.2006and got their marriage registered on 18.02.2006. Thereafter the appellantwas also living with her husband and Mandabai, the wife from the firstmarriage. The parents of Gulab were also living with them and wereCresiding in the small house which consisted of three rooms. One of therooms in the house was occupied by their servant named Piraji Mankari.When this was the position the husband of the appellant Gulab had goneto 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.

D3. When this was the position, on the intervening night of2/3.08.2006 at about 2.30 to 3.00 am an incident of fire occurred and thehouse in which the appellant and her family were residing was engulfedin flames. The appellant who was also in the house had come out of thehouse unscathed while Mandabai the first wife of Gulab and their daughterNikita rushed out of the house with burn injuries, while their son AkashEgot burnt to death inside the house. The father-in-law of the appellantwas stated to be sleeping outside the house on a cot and having wokenup in the confusion, noticing the injuries suffered by his daughter-in-lawMandabai and granddaughter Nikita had instructed the servant PirajiMankari to secure a jeep and shift them to hospital. Accordingly, theyFwere shifted to the hospital where on the next day the said Mandabaiand her daughter Nikita died due to the burn injuries suffered by them.

4. The father-in-law of the appellant namely Gajanan had lodgeda complaint and had also implicated the appellant. In that light, keepingin view the allegation made by Chhaya, the sister of the deceased, theGhusband of the appellant and mother-in-law were also included andcharged for the offence as accused No.2 and 3. The prosecution hadexamined PW-1 to PW-9 and the trial court on taking note of the evidencehad arrived at the conclusion that the case against the accused No. 2and 3 had not been proved and the evidence of PW-2 to implicate themwas not trustworthy. However, insofar as the appellant herein, theH

Sessions Court had taken note of the evidence tendered by PW-1 andPW-3 that the appellant was also sleeping along with the deceased andin that circumstance was of the opinion that if the house caught fireaccidently then the appellant also should have suffered burn injuries.Since she had come out of the house without any injuries it was held thatshe is guilty. The other circumstances noticed by the trial court was thatthe spot Panchnama indicated that the frock of the deceased Nikita hadbeen seized from the place of occurrence and the Chemical analysisreport was that it had kerosene stains. The recovery of a can whichsmelt of kerosene from the bushes as stated by PW-8 Kerba BalajiraoPhad, P.S.I., was taken into consideration with reference to the recoveryPanchnama at Exhibit 41.

5. The Sessions Court was of the opinion that the appellant had astrong motive and had the opportunity of committing the act. It held thatif the appellant is to be excluded, there should have been a reasonablepossibility of anyone else being the real culprit, as such the chain ofevidence can be considered to be complete as to show that in allprobabilities the crime must have been committed by the appellant. Forthis the appellant sleeping in the same room as the deceased was sleepingand that the appellant did not suffer any injuries were held as thecircumstances to rule out the possibility of accidental fire. Since theappellant had not explained how she came out of the room without anyburn injuries and deceased Mandabai had suffered injuries, coupled withthe kerosene residues traced on the frock of Nikita, the Sessions Courtheld that adverse inference can be drawn that the appellant set fire tothe house. The fact that she was the second wife and the husband of theappellant had executed an agreement transferring his land in favour ofdeceased Mandabai was held as the motive to commit the offence, moreparticularly since she wanted to establish her dominance in the house.

6. The High Court while considering the matter and reappreciatingthe evidence had discarded the extra-judicial confession and furtherdisbelieved the evidence of PW-1 which had been relied upon by theSessions Court. The High Court was of the view that Gajanan (PW-1)the father-in-law who was the informant could not have happily acceptedthe appellant as the second wife of his son when he had already gotmarried to deceased Mandabai. This was the reason for the High Courtfor not finding it worthy of placing reliance on the extra-judicial confessionstated to have been made to him that she had sprinkled kerosene and set AB

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Afire. In that regard, the High Court had appropriately taken note fromthe decision rendered by this Court indicating that extra-judicial confessionis a weak evidence by itself.

7. The High Court has thereafter taken note of the evidencetendered through Vijay (PW-4) and the Police Sub-Inspector PhadB(PW-8) with regard to the recovery of the kerosene can at the instanceof the appellant when she was in police custody. The recovery wasdisbelieved since the said can had not been sent for chemical analysis.As such the said circumstance accepted by the Sessions Court was alsodiscarded. Further, the oral dying declaration said to have been made toa sister of the deceased Chhaya (PW-2) had been disbelieved by theCtrial court which was also approved and was noted as not reliable, by theHigh Court. The dying declaration recorded by the police head constablewas taken note. The High Court ultimately arrived at its conclusion thatthe appellant is guilty of committing the offence since admittedly theappellant had not sustained the slightest injury due to the fire whichDmeans 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 toalarm the deceased Mandabai and her children to leave the house so asto save them from fire, nor did she try to bring the small children out ofthe house to save their lives. The High Court further assumed that shedid not shout immediately and waited until the deceased Mandabai andEher children were fully caught by flames.8. After referring to the abovesaid circumstance, the High Courtultimately recorded its conclusion as hereunder: -

“26. All the above circumstances speak volumes about the guiltyFmind of the appellant. It is only after she saw the deceasedMandabai 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 personalso would be a material circumstance to prove the guilty mind ofthe appellant. If that be so, only because the deceased MandabaiGstated that she had no suspicion against anybody and particularlydid not raise suspicion against the appellant behind the incident, itcannot be said that the dying declarations (Exhs. 37 and 38) wouldbe helpful to the appellant to establish her innocence.

27. The burnt frock of the deceased Nikita was seized videHpanchnama (Exh. 34). PSI Phad (PW 8) (Exh.48) deposes that he sent the said frock to the C.A. for analysis and report videletter (Exh.50). The C.A. report (Exh.50) shows that keroseneresidues were detected thereon. It is, thus, clear that kerosenewas used for setting the deceased Nikita on fire.

28. The marriage certificate (Exh.29) shows that the marriage ofthe 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 withaccused no.2. From the contents of this agreement, it seems thatthe deceased Mandabai was rather skeptic about her future afterthe marriage of the appellant with accused no.2. Therefore, sheobtained a written assurance from accused no.2 that after hismarriage with the appellant, he would maintain the deceasedMandabai and her children properly. Accused no.2 further assuredto transfer certain land in the name of the deceased Mandabai.The appellant started residing in the house of accused no.2 afterthe marriage. It was quite natural on the part of the appellant aswell as that of the deceased Mandabai to dominate each other tohave control over the family matters. The deceased Mandabaiand her children certainly would have come in the way of theappellant in establishing her primacy in the house. It is difficult toestablish motive by any direct evidence. It has to be inferred onthe basis of the attending circumstances. From the facts andcircumstances emerging from the evidence, it is clear that in orderto have the dominating position in the house, the appellant finishedthe deceased Mandabai and her children.

29. The appellant alone was inside the house in the night of theincident besides the deceased Mandabai and her children. As statedabove, she went out of the house much prior to spreading of thefire, In view of Section 106 of the Evidence Act, she was underan obligation to explain the circumstances, which were within herspecial knowledge, under which the fire erupted. She did not at alldischarge this burden by giving any explanation behind eruptionof fire. All these circumstances clearly show that it is the appellant,who poured kerosene around the persons of the deceasedMandabai and her children and set them on fire.

30. The prosecution established beyond reasonable doubt that it isthe appellant only, who set the deceased Mandabai and her children A

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on fire with a view to remove them from her marital life withaccused no.2. If that be so, in view of the medical evidence, thedeaths of the deceased Mandabai and her children would certainlybe homicidal. The appellant set the dwelling house on fire. Thelearned trial Judge rightly convicted the appellant of the offencespunishable under Sections 302 and 436 of the I.P.C.

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We concur with the findings recorded by the learned trial Judgeholding the appellant guilty of the said offences. We further concurwith the order of sentence passed by the learned trial Judge againstthe appellant. The appeal is devoid of substance. It is liable to bedismissed.”

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9. In the above background, having heard Mr. Sudhanshu S.Choudhari, learned counsel for the appellant and Mr. Sachin Patil, learnedcounsel on behalf the respondent-State of Maharashtra we have perusedthe material on record.

D10. As noted, the conclusion as reached by the High Court wouldindicate that the evidence tendered on behalf of the prosecution hasbeen discarded as not trustworthy but ultimately the conclusion has beenreached on the assumption made only due to the fact that the appellanthad not suffered injuries in the fire accident. It is no doubt true that theincident which occurred in this case, if caused by any person with anEintention to cause death, is certainly gruesome as it resulted in the deathof three persons of which two were small children and is unpardonable.However, in a case where the appellant was proceeded against mainlybased on the extra-judicial confession said to have been made to herfather-in-law namely Gajanan (PW-1) and the said evidence has beenFdisbelieved by the High Court as not being trustworthy, the issue wouldbe as to whether the chain of circumstances to convict the appellant iscomplete.

11. We have extracted the reasons assigned and conclusionreached by the High Court in the earlier portion of this order only to noteGthat the High Court has held the appellant guilty more on preponderanceof probability rather than reaching a conclusion beyond reasonable doubt.Though it has employed the phrase ‘beyond reasonable doubt’ in itsconcluding paragraph, the reasoning preceding the same are onlyconjectures and surmises. The sole circumstance noted by the HighCourt with reference to the evidence is that the burnt frock of deceasedH

Nikita was seized, vide a Panchnama (Exhibit 34) and the evidence ofPW-8 that the frock had been sent for chemical analysis and the reportas per Exhibit 50 shows that Kerosene residues were detected thereon.In that circumstance, the High Court has held that kerosene was usedfor setting the deceased Nikita on fire. Even if that was taken as acircumstance in the chain, the same was insufficient unless the othercircumstances in the chain were connected to point at the appellant. Inthat regard, what is relevant to be noted is that the High Court has in itsearlier part of the reasoning disbelieved the recovery of the can which isstated who have smelt of kerosene since the said can had not been sentfor chemical analysis and also the circumstance under which it was saidto have been recovered.

12. If that be the position, even if the chemical analysis reportreferring to the frock is accepted there is nothing on record to connectthat the appellant was responsible for the sprinkling of the kerosene orfor the kerosene to have come in contact with the frock of Nikita whichis said to have been recovered from the place of occurrence. That apart,the declaration of Mandabai, the deceased on 03.08.2006 discloses thatsince there is no electricity in the agricultural field, they sleep in thehouse and keep a lantern light in the night for which kerosene is obviouslyused. Further, it has come in evidence that in the said house cooking isalso done and the material pertaining to the tractor including diesel canwas also kept therein. Therefore, the circumstance that the appellantwas not injured in the incident cannot be the basis to rely on the presenceof kerosene stains on the frock as a circumstance that she had set fireby sprinkling kerosene.

13. The position of law is well settled that the links in the chain ofcircumstances is necessary to be established for conviction on the basisof circumstantial evidence. This has been articulated in one of the earlydecisions of this Court in the case of Sharad Birdhichand Sarda v.State of Maharashtra, (1984) 4 SCC 116. The relevant paragraphs areas hereunder: - “153. A close analysis of this decision would show that thefollowing conditions must be fulfilled before a case against anaccused can be said to be fully established:

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

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It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only a grammatical but a legal distinctionbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra where the observations were made: [SCC para19, p. 807: SCC (Cri) p. 1047]

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Certainly, it is a primary principle that the accused must beand not merely may be guilty before a court can convict and themental distance between ‘may be’ and ‘must be’ is long and dividesvague conjectures from sure conclusions.”

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(2) the facts so established should be consistent only withthe hypothesis of the guilt of the accused, that is to say, theyshould not be explainable on any other hypothesis except that theaccused is guilty,

(3) the circumstances should be of a conclusive nature andtendency, D

(4) they should exclude every possible hypothesis exceptthe one to be proved, and

(5) there must be a chain of evidence so complete as not toleave any reasonable ground for the conclusion consistent withthe innocence of the accused and must show that in all humanprobability the act must have been done by the accused.

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

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

(1) various links in the chain of evidence led by theprosecution have been satisfactorily proved,

(2) the said circumstance points to the guilt of the accusedwith reasonable definiteness, and H

(3) the circumstance is in proximity to the time and situation.

160. If these conditions are fulfilled only then a court can use afalse explanation or a false defence as an additional link to lendan assurance to the court and not otherwise. On the facts andcircumstances of the present case, this does not appear to besuch a case. This aspect of the matter was examined inShankarlal case where this Court observed thus: [SCC para 30,p. 43: SCC (Cri) p. 322]

“Besides, falsity of defence cannot take the place of proofof facts which the prosecution has to establish in order to succeed.A false plea can at best be considered as an additionalcircumstances, if other circumstances point unfailingly to the guiltof the accused.”

14. Further the mere suspicion would not be sufficient, unless thecircumstantial evidence tendered by the prosecution leads to theconclusion 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 ofDevilal vs. State of Rajasthan (2019) 19 SCC 447, wherein this Courton 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 Biswasv. State of Assam 2013(12) SCC 406 and Raja v. State of Haryana2015(11) SCC 43. It has been propounded that while scrutinisingthe circumstantial evidence, a court has to evaluate it to ensurethe chain of events is established clearly and completely to ruleout any reasonable likelihood of innocence of the accused. Theunderlying principle is whether the chain is complete or not, indeedit would depend on the facts of each case emanating from theevidence and there cannot be a straightjacket formula which canbe laid down for the purpose. But the circumstances adducedwhen considered collectively, it must lead only to the conclusionthat there cannot be a person other than the accused who alone isthe perpetrator of the crime alleged and the circumstances mustestablish the conclusive nature consistent only with the hypothesisof 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 AB

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Aby the prosecution and noticed by the High Court in the impugnedjudgment, to prove the charge is visibly incomplete and incoherentto permit conviction of the appellants on the basis thereof withoutany trace of doubt. Though the materials on record hold somesuspicion towards them, but the prosecution has failed to elevateits case from the realm of “may be true” to the plane of “must beBtrue” as is indispensably required in law for conviction on a criminalcharge. It is trite to state that in a criminal trial, suspicion, howsoevergrave, cannot substitute proof.

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

15. In that backdrop, a perusal of the judgment passed by theSession’s Court as well as the High Court in the instant case, for itsultimate conclusion has made suspicion the reason for rendering convictionwithout there being any strong basis. The suspicion, however strong,Ecannot take the place of proof. Unfortunately, with the nature ofobservations made by the High Court as extracted above, it has ultimatelyheld that the prosecution has established beyond reasonable doubt that itis the appellant only who has set the deceased Mandabai and her childrenon fire with a view to remove them from her marital life with accusedNo.2. If the facts as noted by the High Court lead to such suspicion,Fequally there are also circumstances which raise a doubt whether theappellant can be held guilty only because she was not injured in theincident. In that regard, what is to be noted is that the natural humanconduct is that when there is any incident or accident the immediatereaction is to get away from the scene and save oneself. If in the middleGof the night for whatever reason there was fire and if the appellant hadwoken up and noticed it a little earlier, the natural conduct is to run out ofthe house instead of going into the house which is burning to check onthe other inmates. It takes a person lot of courage or be overdriven withcompassion to get back into the house to save somebody else and notdoing so may be considered as morally wrong for not coming to the aidH

of fellow human being in distress, but it cannot be a circumstance to holda person guilty of a crime which is as serious as murder unless the othercircumstances in the chain point to the accused so as to lead to anirresistible conclusion of being guilty.

16. If the appellant was responsible for causing the fire with theintention to kill Mandabai, would not she have closed the door aftercoming out of the house to ensure that she does not come out. On theother hand, Mandabai who came out alive and lived for a day has notblamed or suspected anybody including the appellant. She would havestated about the overt act if any was indulged in by the appellant. Herdeclaration is clear that the house caught fire and she and her childrenwere caught in the fire. She did not state that the fire set on her hadspread to the house. Further even as per the statement of PW-1, that isGajanan, the father-in-law, he was sleeping just outside the house andon hearing the appellant shouting he woke up and the deceased hadstated that he was awake when she came out. Neither has he stated ofthe efforts made by him to save the deceased. But it is only after thedeceased and the granddaughter came out, steps were taken. One othercircumstance is also that the admitted position is that the house hadthree rooms, one of which was occupied by PW- 3 Piraji Mankari andhis family, the fire accident was of the nature which had destroyed theentire house and also the adjoining cowshed etc. Even in that positionthe said Piraji Mankari and others were also not injured. Therefore, notbeing injured alone cannot be held as a circumstance to hold one guiltyof having set fire to the house.

17. The High Court has further held the second marriage; thedesire for domestic dominance and the execution of document formaintenance on 17.02.2006, that is, a day before registration of themarriage as a circumstance and motive, which we are unable to accept.This is for the reason that the marriage had been registered after anarrangement for maintenance was made in favour of the first wife foronly a portion of the property which is a normal thing in such circumstanceand it cannot be held as a strong motive for an alleged crime of thepresent nature where the appellant would destroy her own house andthat too without there being any other incident when they have livedtogether in the same house and the fire incident has occurred after morethan six months from the date of marriage. Therefore, if all these aspectsare taken into consideration the doubts which arise in the mind would A

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[2021] 8 S.C.R.

Aoutweigh the reasons given by the High Court for pointing to the suspicionon the appellant and in that circumstance certainly the benefit of doubtshould go in favour of the appellant.

18. The High Court holding the appellant guilty of pouring kerosenearound the deceased and her children and setting them on fire since theBappellant had failed to explain the reason for eruption of fire in view ofsuch obligation to explain under Section 106 is also not sustainable in thepresent circumstance. As held in Sharad Birdhichand Sarda (supra)the failure to explain can only be held as an additional link to completethe chain of circumstance. In the instant case, since the othercircumstances in the chain are not established, the same cannot be heldCagainst the appellant. On the other hand, the case itself is that the firehad erupted at midnight when the appellant and others were sleepingand she come out shouting. The explanation for the cause of fire by theappellant would have arisen only if there was any other evidence to theeffect that the appellant was already awake and was outside even beforeDthe fire erupted.

19. Thus, taking into consideration all these aspects in the factsand circumstance of this case we are of the opinion that the appellant isentitled to be acquitted as the benefit of doubt weighs in her favour. Weare therefore, unable to sustain the order of conviction of the appellant.

E20. In the result, the judgment dated 12.10.2017 passed by theHigh Court affirming the conviction and sentence ordered by the SessionsCourt is set aside. The appellant Parubai who is on interim bail is set atliberty and her bail bond shall stand discharged.

21. The appeal is, accordingly, allowed.F

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

Nidhi Jain

Appeal allowed.

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