NILESH BABURAO GITTEversusSTATE OF MAHARASHTRA

                 [2025] 11 S.C.R. 37 : 2025 INSC 1191

                           Nilesh Baburao Gitte
                                     v.
                           State of Maharashtra
                     (Criminal Appeal No. 1471 of 2013)
                                07 October 2025
           [K.V. Viswanathan* and K. Vinod Chandran, JJ.]


                            Issue for Consideration
       Appellant was convicted for matricide-killing of one’s own mother.
       By the present appeal, the appellant calls in question the correctness
       of the judgment of the High Court.

                                   Headnotes†
       Penal Code, 1860 – s.302 – Matricide-killing of one’s own
       mother – Prosecution case that Police received an unknown
       call informing that there was a doubtful death – Police reached
       the spot – Last rites of the dead body was hurriedly carried
       out – The body was inspected and it was found that there was
       strangulation mark on the neck and injury on the backside of
       skull with blood oozing – Body was removed from the pyre
       and inquest was carried out – Chargesheet was filed against
       two persons: appellant and one B – Trial Court convicted
       both the accused – However, the High Court acquitted B and
       conviction of appellant was maintained – Correctness:
       Held: The evidence of PW-8-Deputy Superintendent of Police
       reveals that she received a call from an unknown person, however,
       no efforts were made to track down the said person to elicit more
       details – No leads from the crowd, who gathered there, were picked
       out and nobody was examined in Court – There is no evidence
       to show that the present appellant was present at the site of the
       first attempted cremation, or any of the relatives of the deceased –
       The doctor-PW-6 opined that the cause of death was asphyxia by
       strangulation – There was no ligature mark from the back side of
       the neck – During cross-examination, the doctor clearly deposed
       that the absence of ligature mark on the back side of neck is
       possible in case of hanging – He further deposed that in case
       of strangulation; the ligature mark should be present all around
       the neck – He further deposed that that the imprint injury of the


* Author
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      nylon rope is possible in case of hanging as there were weight
      and force of body – A document also reveals that deceased was
      treated for relapsed schizophrenia – Based on the deposition of Dr.
      PW-6 examined by the prosecution, a serious doubt arises as to
      whether at all the deceased died a homicidal death – There is no
      definite medical opinion and in view of the considerable ambiguity
      in the evidence of PW-6, death by suicide, cannot be said to be
      completely ruled out – Besides that, on same evidence, the High
      Court has acquitted B – Also, there is nothing on record to show
      that appellant resided with deceased – PW-9-Investigating Officer
      stated that appellant was residing in the house of M on rental
      basis – Further, the evidence of PW-2 is also contradictory to the
      evidence of PW-9 insofar as the travel to the place of recovery is
      concerned – All this present a very unsatisfactory state of affairs –
      As far as angle of property is concerned, it has come on record
      that the appellant has his father as well as two sisters who are
      alive – It is not as if that the property would, on the death of the
      deceased, immediately devolve on the appellant in the event of
      the alleged murder by him going undetected – The courts below
      have fallen into a serious error in convicting the appellant on
      the basis of the evidence on record – For the reasons stated
      above, appellant is acquitted of all charges framed against him.
      [Paras 28, 29, 31-34, 38, 40, 49, 53, 56, 57]

                               Case Law Cited
      Sharad Birdhichand Sarda v. State of Maharashtra [1985] 1
      SCR 88 : (1984) 4 SCC 116; Trimukh Maroti Kirkan v. State of
      Maharashtra [2006] Supp. 7 SCR 156 : (2006) 10 SCC 681 –
      relied on.
      Ramaiah alias Rama v. State of Karnataka [2014] 7 SCR 995 :
      (2014) 9 SCC 365; Shambu Nath Mehra v. The State of Ajmer
      [1956] 1 SCR 199; Hanumant v. State of Madhya Pradesh [1952]
      1 SCR 1091 : (1952) 2 SCC 71 – referred to.

                        Books and Periodicals Cited
      Modi’s Medical Jurisprudence and Toxicology (Twenty Third
      Edition) – referred to.

                                 List of Acts
      Penal Code, 1860; Evidence Act, 1872; Code of Criminal Procedure,
      1973; Bharatiya Sakshya Adhiniyam, 2023.
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              Nilesh Baburao Gitte v. State of Maharashtra


                             List of Keywords
     Matricide-killing of one’s own mother; Strangulation marks on neck;
     Injury on back side of skull; Motive; Discovery u/s.27 of Evidence
     Act; Recovery of nylon rope; Circumstantial evidence; Asphyxia
     due to strangulation; Ligature mark; Schizophrenia; Strangulation
     ligature marks; Suicide.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     1471 of 2013
     From the Judgment and Order dated 23.07.2013 of the High Court
     of Judicature at Bombay at Aurangabad in CRLA No. 447 of 2012

                         Appearances for Parties
     Advs. for the Appellant:
     K Parmeshwar, Sr. Adv., Anil Kumar, Ms. Veda, Paras Hegde, Dilip
     Annasaheb Taur, Amol V Deshmukh.
     Advs. for the Respondent:
     Adarsh Dubey, Siddharth Dharmadhikari, Aaditya Aniruddha Pande,
     Shrirang B. Varma, Bharat Bagla, Sourav Singh, Aditya Krishna,
     Ms. Chitransha Singh Sikarwar.

                Judgment / Order of the Supreme Court

                                Judgment

     K.V. Viswanathan, J.

1.   Nilesh Baburao Gitte (the appellant) stands convicted for matricide-
     killing of one’s own mother. By the present appeal, the appellant
     calls in question the correctness of the judgment of the High Court
     of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal
     No.447 of 2012 dated 23.07.2013. By the said judgment, the High
     Court, while dismissing the appeal of the appellant, confirmed the
     conviction and sentence imposed on him by the Additional Sessions
     Judge-2, Ambajogai in Sessions Case No. 42 of 2011. The Sessions
     Judge had convicted the appellant along with one Balasaheb
     Gangadhar Gitte (appellant before the High Court in Criminal Appeal
     No.502 of 2012 and since acquitted by the High Court) for offence
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      punishable under Section 302 of Indian Penal Code, 1860 (for short
      the “IPC”) and sentenced them for life imprisonment.

      THE PROSECUTION CASE: -
2.    The prosecution case unfolded this way. PW-8 – Swati Bhore,
      Deputy Superintendent of Police, was on duty on 22.07.2010 when
      she received a phone call from an unknown person informing that
      there was doubtful death of the deceased-Sunanda (also known
      as Nanda Gitte) of Talani village. She intimated PW-7 – Vidyadhar
      Murlidhar Kale, Assistant Police Inspector (API), of Parali Police
      Station. Thereafter, PW-7 – Kale asked PW-4 – Dadarao Kondiram
      Bankar, Police Sub-Inspector, to go to the spot and inform as to
      what the situation was. On receiving information from PW-4 that
      suspicious things were going on, PW-7 reached there with his staff.
      According to PW-7, the last rites of the dead body of the deceased
      were being hurriedly carried out. According to him, when he wanted
      to inspect the dead body, the mob obstructed him. However, he
      convinced them and inspected the body and found that there was
      strangulation mark on the neck and injury on the backside of skull
      with blood oozing. The crowd, when informed that it was a case of
      murder, ran away. PW-8 -Swati Bhore also reached the spot and
      noticed the strangulation mark on the neck and injury on the head.
      The dead body was removed from the pyre and inquest was carried
      out. Postmortem was also performed that afternoon.
3.    Since the area fell within the jurisdiction of Bardapur Police Station,
      PW-7 informed PW-9 -Sunil Srinavas Birla, Police Inspector. PW-7
      also handed over the inquest panchnama, the letter given to medical
      officer for postmortem as well as the postmortem report to PW-9 who
      had also by then reached the spot. PW-9 came back to Bardapur
      Police Station and registered the FIR on 23.07.2010 at 00.45 hours.
      Investigation was carried out and chargesheet was laid against two
      accused – the appellant-Nilesh Baburao Gitte and the acquitted
      accused-Balasaheb Gangadhar Gitte.
4.    At the trial, the prosecution examined 11 witnesses and marked
      a large number of Exhibits. The accused were examined under
      Section 313 of the Code of Criminal Procedure, 1973.
5.    The case rests entirely on circumstantial evidence. The Trial Court
      and the High Court, while convicting the accused, have relied on
      the following circumstances:-
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              Nilesh Baburao Gitte v. State of Maharashtra


     5.1 That the evidence of PW-6 –Dr. Salunke Radhakishan Sarjerao
         who also conducted the postmortem, established that the
         deceased-Sunanda met with homicidal death.
     5.2 That the appellant has proximate presence with the deceased
         and in spite of that he did not intimate the police.
     5.3 That the appellant arranged cremation of his mother in the
         open field behind his house. The story of the defence that the
         appellant lived in a separate residence has not been proved.
     5.4 That the conduct of the appellant in attempting to dispose of the
         dead body without following the due procedure established by
         law, which is relevant under Section 8 of the Indian Evidence
         Act, 1872 (for short the “Evidence Act”).
     5.5 That there was discovery admissible under Section 27 of the
         Evidence Act, and there was corroboration of the FSL report
         matching with the blood of accused-Nilesh on the clothes worn
         by him and the petticoat of deceased-Sunanda.
     5.6 That the motive for the appellant appears to be to acquire the
         property of the deceased.
6.   Though the Trial Court convicted accused-Balasaheb also, the High
     Court found that except the recovery of the nylon rope at the instance
     of appellant-Balasaheb, the prosecution has failed to bring home
     the guilt of Balasaheb.
7.   We have heard Mr. K. Parmeshwar, learned senior counsel for the
     appellant and Mr. Adarsh Dubey, learned counsel for the State of
     Maharashtra.

     CONTENTIONS OF THE APPELLANT: -
8.   Mr. K. Parmeshwar, learned senior counsel, ably assisted by
     Sh. Dilip Annasaheb Taur, learned counsel contended that there is
     serious uncertainty as to whether at all the death of the deceased
     was homicidal. Learned senior counsel referred to the evidence of
     PW-6 -Dr. Salunke and the postmortem report Ext.-36 to contend
     that ligature mark was admittedly absent from the backside of the
     neck. Learned senior counsel referred to the evidence of PW-6 to the
     effect that the absence of the ligature mark on the backside of the
     neck is possible in cases of hanging and that in case of strangulation
     ligature mark would be present all around the neck.
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9.    Learned senior counsel contended that during investigation PW-9 had
      obtained a certificate dated 26.09.1989 issued by the Vivekanand
      Hospital, Latur which indicated that the deceased was suffering
      from schizophrenia. According to the learned senior counsel, though
      PW-9 admitted that such a certificate was obtained, the same was
      not exhibited at the Trial.
10. Learned senior counsel contended that PW-6 had deposed that
    some injuries on the body of the deceased were possible if a
    person suffering from schizophrenia attempts suicide by hanging.
    Further it was contended that PW-6 had deposed that if death was
    by strangulation with a nylon rope, imprint injury of the rope is not
    possible as force is applied by some other person. PW-6 had deposed
    that imprint injury is possible in the case of hanging as there was
    weight and force of the body. PW-6 had also deposed that in case
    of strangulation force is mostly on the thyroid region and not on the
    other region of the neck.
11. Learned senior counsel drew attention to the deposition of PW-6 to
    demonstrate how the iron pipe allegedly recovered from the appellant
    being not a sharp-edged weapon, could not have caused the injury
    on the scalp of the deceased. In view of this, learned senior counsel
    submitted that there is uncertainty on as to whether the death was
    suicide or homicide and it will be very unsafe on this evidence to
    conclude that the death of the deceased was by homicide.
12. Learned senior counsel submitted that no blood group analysis of
    the deceased was carried out and in any event, no DNA test was
    done rendering the FSL analysis inconclusive. In any event, it is
    submitted that neither the FSL report nor the evidence collected from
    the appellant, namely, the blood sample and the chemical analyzer
    report Ext.85 and Ext.35 respectively were put to the appellant during
    his examination under Section 313.
13. Learned senior counsel contended that the recovery attributed to the
    appellant does not inspire confidence at all in as much as PW-2, the
    witness examined to support the recovery, admits that he went to
    the police station at the instance of PW-3 -Sudhakar Nagargoje, the
    uncle of the appellant, who was inimically disposed off towards the
    appellant. Learned senior counsel also draws attention to the fact
    that there is material contradiction in the evidence of PW-2 and PW-9
    as to the manner in which PW-2 reached the place of occurrence.
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              Nilesh Baburao Gitte v. State of Maharashtra


     While PW-2 stated that he was travelling by motorcycle, PW-9 states
     that himself, PW-2, the other panch witness (not examined), and
     the appellant went in a jeep. Further, it is submitted that PW-2 has
     deposed that he signed the recovery panchnama after the police
     reduced it into writing but states that he does not know how to read
     Marathi and that PW-2 further deposed that the appellant did not
     give the memorandum to the police in his presence.
14. Learned senior counsel launched a frontal attack on the evidence
    of PW-3 -Sudhakar Nagargoje on whom strong reliance was placed
    by the prosecution. According to the learned senior counsel, PW-3
    has a serious property dispute with the family of the deceased.
    PW-3 had admitted disputes with regard to Hindu Undivided Family
    properties which are to be divided between PW-3, the deceased and
    their brother-Prabhakar. PW-3 has admitted that 30 acres of land
    in Takalgaon was their family land with one guntha valued at Rs.5
    lakhs. PW-3 further admitted that during partition, the deceased
    got 15 gunthas of land and that there was no mutation entry of
    the partition and more land has been shown in the name of the
    deceased-Sunanda on 7/12 extract. According to PW-3, except 15
    gunthas of land, the other land shown in 7/12 extract in the name
    of the deceased-Sunanda was his land. He admitted that he filed
    Civil Suit No.205/2003 and his brother Prabhakar filed Civil Suit
    No.195/2005. He states that he does not know whether his sister-
    Sunanda was a party in those suits. PW-3 admitted that he settled
    the matter in the Lok Adalat.
15. According to the learned senior counsel, it was PW-3 who had a
    dispute with the deceased over the property and not the appellant.
    Learned senior counsel further contends that PW-3 speaks about
    having received a phone call from the appellant requesting him to
    sell out the property which fell to the share of Sunanda, five days
    before the incident. He also claims that he gave a xerox copy of
    the incoming phone call as proof to the police, however, the proof
    of the incoming call was not exhibited nor has the appellant been
    confronted under Section 313 about the said circumstance. Learned
    senior counsel also submits that PW-3 is instrumental in planting
    PW-2 as a recovery witness. Further, PW-3 has stated that at the
    Parali Police Station PW-7 and 8 showed him the 7/12 extract with
    blood stains recovered from the appellant, when PW-3 visited police
    station a day after the incident. However, PW-8 stated that she does
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      not recollect meeting PW-3 either on the day of incident or a day
      later. PW-8 further deposed that she does not remember anything
      about the 7/12 extract. On this aspect, PW-7 takes a contradictory
      stand. While he deposed that he does not know person by name
      Sudhakar Nagargoje, and that he did not remember to have met
      with person by name Sudhakar Nagargoje till the day of deposition,
      he however, states that he showed blood stained 7/12 extract to
      Sudhakar Nagargoje. In view of the above, learned senior counsel
      submits that it is very unsafe to place any reliance on the evidence
      of PW-3 to convict the appellant.
16. It is further submitted that the evidence of PW-4, 7, 8 and 9 do not
    indicate as to whether they carried out any investigation to find out
    as to how the attempted cremation in the morning of 22.07.2010 was
    organised and if so by whom. Admittedly, nobody has spotted the
    appellant at that site in the morning. There was nothing emerging
    from the evidence as to who organised the cremation. They all speak
    to the fact that there were several people at the site but nobody was
    examined. Further the submission of PW-3 is recorded as late as
    on 10.09.2010, even though PW-3 states that he visited the police
    station on 23.07.2010.
17. Further, it is contended that admittedly PW-9 – the Investigating
    Officer, states that the appellant was residing in the house of one
    Motiram Gitte. In spite of the same, burden has been cast upon
    him to explain as to how death occurred on the presumption that
    the appellant and the deceased lived together. In view of all this,
    it is submitted that the appellant is entitled to his acquittal since
    the prosecution has not established a cogent link in the chain of
    circumstances suggesting a sole hypothesis.

      CONTENTIONS OF THE STATE: -
18. Mr. Adarsh Dubey, who very ably presented the case on behalf of the
    State, vehemently countered the submissions of the learned senior
    counsel for the appellant. Learned counsel for the State relied on the
    evidence of PW-3 to contend that the appellant and the deceased
    lived in the same premises. He further referred to the evidence of
    PW-9 to contend that the place where the incident happened is
    owned by the appellant. Learned counsel for the State developing
    on the same submitted that the fact that the appellant called PW-3
[2025] 11 S.C.R.                                                       45

                Nilesh Baburao Gitte v. State of Maharashtra


     is admitted by the appellant in his Section 313-Statement. Learned
     counsel submits that it was for the appellant to explain how the
     deceased suffered injuries and relied on the judgment of this Court
     in Trimukh Maroti Kirkan vs. State of Maharashtra1.
19. Learned counsel for the State vehemently argued that the conduct
    of the appellant subsequent to the incident was very unnatural.
    Learned counsel harped on the fact that the appellant did not bother
    to lodge any formal report to the police and contended that his act
    of silence showed his complicity in the present offence. According
    to the learned counsel, common course of human conduct would
    be that a son would raise a hue and cry if he sees his mother in an
    injured condition. It was only because the appellant was wanting to
    hastily cremate the mother, he did not raise any hue and cry and
    relied on Section 8 of the Evidence Act, to bring home the aspect
    of subsequent conduct pointing to the guilt of the accused.
20. Learned counsel for the State relied on the evidence of PW-6 –
    Dr. Salunke to contend that the injuries on the deceased were
    antemortem in nature and that the age of the injury was 24 hours
    within the postmortem. Learned counsel for the State further submitted
    that PW-6 had clearly deposed that the injuries were not self-inflicted
    and that the cause of the death, as opined by the doctor, was
    asphyxia due to strangulation. PW-6 has further deposed that the
    injuries were possible by nylon rope and iron pipe. Learned counsel
    for the State contended that the absence of the ligature mark on
    the backside of the neck was on account of the force being mostly
    on the thyroid region and contended that there was hemorrhage to
    the thyroid cartilage. Learned counsel for the State contended that
    there was nothing to show that the deceased was suffering from
    schizophrenia and questioned the reliance placed on the certificate
    dated 26.09.1989 issued by the Vivekanand Hospital.
21. Learned counsel for the State relied on FSL/CA report which,
    according to the learned counsel, clearly demonstrated the link
    between the appellant and the present offence. Learned counsel for
    the State relied on the fact that the nylon rope pieces were stained
    with blood and the blood group “A” detected on the nylon rope was
    also the blood group of the appellant.


1   (2006) 10 SCC 681
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22. Learned counsel for the State contended that the appellant had a
    motive and relied on the evidence of PW-3 to bring home the point
    that the appellant anticipated direct gain of property from the death
    of the deceased. Learned counsel contended that PW-3 was not
    going to directly benefit from the death of the deceased since apart
    from the appellant the deceased had a husband and two daughters.
23. Learned counsel for the State contended that investigating officer
    can also prove the recovery and the mere fact that the panch
    witness turned hostile would not be fatal to the prosecution. In any
    event, learned counsel for the State contended that PW-2 was
    permitted to be cross-examined by the prosecution and in the said
    cross-examination he has given positive evidence in respect of the
    recovery. So contending, the learned counsel for the State prayed
    that there was no case for interference with the concurrent findings
    by the courts below.

      ANALYSIS: -
24. We have carefully considered the submissions of the learned counsel
    for the parties and perused the records.

      LAW ON CIRCUMSTANTIAL EVIDENCE: -
25. This case rests entirely on circumstantial evidence. This Court has,
    time and again, reiterated the five golden principles to be kept in
    mind while appreciating a case based on circumstantial evidence.
    In Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4
    SCC 116, this Court held as under:-
          “153. A close analysis of this decision would show that
          the following conditions must be fulfilled before a case
          against an accused can be said to be fully established:
          “(1) the circumstances from which the conclusion of guilt
          is to be drawn should be fully established.
          It may be noted here that this Court indicated that the
          circumstances concerned “must or should” and not “may
          be” established. There is not only a grammatical but a
          legal distinction between “may be proved” and “must be
          or should be proved” as was held by this Court in Shivaji
          Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC
          793] where the observations were made:
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              Nilesh Baburao Gitte v. State of Maharashtra


          “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.”

     MYSTERY SURROUNDING THE ALLEGED ATTEMPTED
     CREMATION: -
26. There is a mystery surrounding the genesis and origin of the
    prosecution case. We say so for the reason that on a complete
    reading of the evidence of Swati Rambhau Bhore (PW-8), Vidhayadhar
    Murlidhar Kale (PW-7), Dadarao Kondiram Bankar (PW-4) and Sunil
    Shrinivas Birla (PW-9), who all admittedly landed up on the morning
    of 22.07.2010 at the site of the alleged attempted first cremation,
    a lingering doubt still remains in our mind as to why further leads
    from that time, place and alleged event were not picked up and
    why no further investigation as to who organized the cremation was
    carried out.
27. PW-8 claims to have received a phone call from an unknown person
    about the doubtful death of the deceased and about the fact that
    the deceased has been put on pyre and claims to have intimated
    PW-7 who deputed PW-4 first and also himself reached thereafter.
    Even PW-9, who was in charge of the jurisdictional police station,
    also reached there. All four admit to have seen a pile of wood for
    funeral being organized and the body of the deceased kept on it.
    Admittedly, there were lots of people who had gathered.
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28. The police team noticed injuries on the body of the deceased and
    had the body taken down from the pyre. When it was announced
    that the deceased had been murdered, evidence is that the crowd
    ran away from the spot. Thereafter, as per the prosecution case,
    an inquest was got done followed by a post mortem by PW-6 and
    papers handed over to Sunil Shrinivas (PW-9) who registered a FIR
    at 0045 hours on 23.07.2010. No leads from the crowd, who gathered
    there, have been picked out and nobody has been examined in
    Court. There is no evidence to show that the present appellant was
    present at the site of the first attempted cremation, or any of the
    relatives of the deceased.
29. It is the case of the prosecution that cremation was performed by
    the appellant on the evening of 22.07.2010 between 6-7 PM. The
    evidence of PW-8 that she received a call from an unknown person
    even if true as to why no effort has been made to track down the
    said person to elicit more details or at least to investigate from the
    members of the crowd and put before the court as to what their
    version of the story was, indicates that there is something more than
    what meets the eye in this case.

      EVIDENCE OF THE DOCTOR (PW-6) AND THE P. M. REPORT : -
30. Be that as it may. Dr. Salunke Radhakishan Sarjerao (PW-6) performed
    the postmortem on the dead body of the deceased between 3.10
    PM and 4.35 PM on 22.07.2010. The doctor found blood stains on
    the forehead of the deceased. On the probable cause of death, the
    doctor opined that it was asphyxia due to strangulation. The doctor
    made the following observations in the postmortem report (Ex.36):-
          "i)    No evidence of injury to external genitals.
                 No evidence of purging.
          ii)    upper extremities flexed at elbow, figure flexed.
          iii)   lower extremities extended.
                 (1)   Ligature mark encircles the neck 22 cm. in
                       length and 1/2 cm. in breadth. Absent as back
                       side of neck, at the level of Thyroid cartilage
                       and horizontal. Dry, hard, brown as a depressed
                       groove. On dissection subcutaneous issue is
                       echymossed, hemorrhage to thyroid cartilage.
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              Nilesh Baburao Gitte v. State of Maharashtra


                2)   Abrasions on chin 5 cm. in length and 1/2 cm.
                     in breadth. Extending to body of mandible Rt.
                     side 6 cm. in length and 1/2 cm. in breadth.
                3)   Abrasion on left side of neck. 8 to 9 cm. in length
                     and ½ cm. in breadth. Encircle the left side of
                     Neck. Abrasion mark absent on front of neck
                     below the level of thyroid cartilage.
                4)   Abrasion on Rt. Side of neck. 4 to 5 cm. in
                     length and 1/2 cm. in breadth below the level
                     of thyroid cartilage and encircle the Rt. side of
                     neck absent in front of neck.
                5)   Imprint abrasion on the Rt. Wrist joint 78 cm.
                     in length and 1/2 cm. in breadth, absent back
                     side of wrist found.
                6)   Imprint abrasion on left wrist joint 78 cm. in
                     length and 1/2 cm. in breadth absent back side
                     of the wrist.
                7)   Imprint abrasion around the Rt. Calf muscle,
                     below the knee joint on outer side of 23-24 cm.
                     in length and 1/2 cm. in breadth.
                8)   Imprint abrasion on the Lt. calf muscle below
                     the knee joint on outside of 23-24 cm. in length
                     and 1/2 cm. in breadth and absent on inner side.
                9)   Abrasion on Rt. Side of upper and outer gluteal
                     region extending 12 cm. and 3 cm. in breadth
                     above ones Rt. side of back.
                10) Abrasion marks on both thighs and back side
                    reddish brown in colour.
                Age of above injury are within 24 hrs.
                Injury no. 1 and 10 – only colour is mentioned
                Ext. 37 (Provisional cause of death- 22.07.2010)
                This is to certify that I Dr. Salunke R. S. M.O PHC
                Ghatnandur performed P.M. examination on deceased
                Nandubai Baburao Gitte age 50 yrs.
50                                                       [2025] 11 S.C.R.

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                Provisional Cause of Death is due to Asphyxia due
                to strangulation.”
31. The doctor opined that the cause of death was asphyxia by
    strangulation. It will be noticed that there was no ligature mark from
    the back side of the neck. During cross-examination, the doctor
    clearly deposed that the absence of ligature mark on the back side
    of neck is possible in case of hanging. He further deposed that in
    case of strangulation; the ligature mark should be present all around
    the neck.
32. The doctor further opined that injury nos. 2,3 and 4 may be possible
    for a schizophrenia patient during attack and that injury nos. 5 and
    6 may be possible if a person bangs his head on the wall and due
    to broken bangles. Dealing with the injury on the scalp, the doctor
    opined that it is possible with a sharp-edged weapon. He further
    deposed that that the imprint injury of the nylon rope is possible in
    case of hanging as there were weight and force of body. The doctor
    further stated that in case of strangulation, imprint injury of rope is
    not possible as force is applied by some other person and that in
    case of strangulation force is mostly on thyroid region and not on
    other region of the neck.
33. One more fact which we need to notice is that PW-9 had deposed
    that he collected the certificate dated 26.09.1989 from the Vivekanand
    Hospital, Latur. However, this certificate was not marked during trial
    and remained as part of the records produced by the prosecution. The
    said document reveals that the deceased was treated for relapsed
    schizophrenia. PW-9, however, stated that it was not revealed in his
    investigation that the deceased was suffering from schizophrenia.
34. We are constrained to hold that, based on the deposition of Dr. PW-6
    examined by the prosecution, a serious doubt arises as to whether
    at all the deceased died a homicidal death. The candid admission
    of PW-6 that in the absence of ligature mark on the back side of the
    neck hanging cannot be ruled out and the further reinforcement that
    in strangulation ligature mark should be present all around the neck
    lead us to conclude that this is not a case where we can safely opine
    that the death was by homicide. There is no definite medical opinion
    and in view of the considerable ambiguity in the evidence of PW-6,
    death by suicide, cannot be said to be completely ruled out. We are
[2025] 11 S.C.R.                                                          51

                Nilesh Baburao Gitte v. State of Maharashtra


     also reinforced in our view by Modi’s Medical Jurisprudence and
     Toxicology (Twenty Third Edition) which states that normally in case
     of strangulation, ligature marks are horizontal or traverse continuous.
            “round the neck low down in the neck below the thyroid…”
35. Added to this is the fact that PW-9, after procuring the certificate
    from Vivekanand Hospital, Latur has not only not exhibited it but
    has simply stated that the investigation did not reveal that the
    deceased suffered from schizophrenia. What is that investigation, is
    not forthcoming. A document produced by the prosecution as part of
    the chargesheet pursuant to the investigation though not exhibited
    can be relied upon by the defence. In Ramaiah alias Rama v. State
    of Karnataka2 this Court held thus:-
            “14. ….Strangely, the High Court has discarded the
            mahazar drawn by PW 8 by giving a specious reason
            viz. it was not an exhibited document before the court,
            little realizing that this was the document produced by the
            prosecution itself and even without formal proof thereto
            by the prosecution, it was always open for the defence to
            seek reliance on such an evidence to falsify the prosecution
            version…..”
36. Let us, however, proceed on the assumption that death was by
    homicide and examine whether the evidence is sufficient to implicate
    the appellant.

     ACQUITTAL OF A2-BALASAHEB ON THE SAME EVIDENCE
37. It must be remembered that on the same evidence, the High Court
    has acquitted Balasaheb Gangadhar Gitte (A2). Satta Patwekar
    (PW-2) was examined by the prosecution to speak of the recoveries.
    In the chief-examination, he deposed that “nothing happened in the
    police station”. He was cross-examined by the prosecutor with the
    permission of the court. In cross, insofar as accused No.2-Balasaheb
    was concerned, he deposed that it was accused No.2-Balasaheb,
    who gave a memorandum to the effect that he will take out the
    nylon rope and it was Balasaheb who took to the place and took
    the nylon rope out. We will deal with this witness and his proximity


2   (2014) 9 SCC 365
52                                                       [2025] 11 S.C.R.

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      to PW-3 a little later in this judgment. However, the High Court was
      not satisfied with the evidence against Balasaheb and held that the
      alleged recovery of nylon rope on the statement of Balasaheb was
      not incriminating in nature and the prosecution evidence was lacking
      to establish the active involvement of Balasaheb, apart from the fact
      that there was no motive for Balasaheb. We are recording this only
      to show that Balasaheb has since been acquitted and the alleged
      recovery alone held insufficient to sustain a conviction. The State
      has accepted the acquittal. This is an important aspect which one
      needs to bear in mind while discussing the case of the appellant.

      POSITIVE EVIDENCE OF PW-9 (I.O.) THAT APPELLANT LIVED
      SEPARATELY
38. The other important aspect is that none of the witnesses PWs – 8,
    7, 4 and 9 spoke about the presence of the appellant at the time of
    the first alleged attempt to cremate the deceased. The entire case
    of the prosecution including the submission of learned counsel for
    the State here proceeds on the assumption that the appellant lived
    with the deceased and, as such, on the principle of Trimukh Maroti
    Kirkan (supra), the appellant owed an explanation as to how the
    deceased suffered serious injuries. We are unable to accept this
    line of argument. PW-9 Sunil Shrinivas, the Investigating Officer
    is categoric in his evidence, that the appellant Nilesh was residing
    in the house of Motiram Gitte on rental basis. When specifically
    asked as to what documentary evidence he possess to show that
    Nilesh was the tenant of Motiram Gitte, he answered stating that the
    appellant Nilesh was residing in the house of Motiram Gitte but it
    was not revealed that he was his tenant. The statement of Motiram
    Gitte was not recorded. Today in the teeth of the evidence of the
    Investigating Officer that the accused was a resident in the house
    of Motiram Gitte, it cannot be concluded that the accused resided
    with the deceased and was with the deceased at the time when she
    breathed her last. In view of this, to apply the principle of Trimukh
    Maroti Kirkan (supra) by attributing any special knowledge of facts
    on this score to the appellant cannot arise.
39. In Trimukh Maroti Kirkan (supra) this Court was dealing with
    corresponding burden on the inmates of the house to give cogent
    explanation. The following is what this Court has stated: -
[2025] 11 S.C.R.                                                        53

              Nilesh Baburao Gitte v. State of Maharashtra


          “15. Where an offence like murder is committed in secrecy
          inside a house, the initial burden to establish the case
          would undoubtedly be upon the prosecution, but the nature
          and amount of evidence to be led by it to establish the
          charge cannot be of the same degree as is required in
          other cases of circumstantial evidence. The burden would
          be of a comparatively lighter character. In view of Section
          106 of the Evidence Act there will be a corresponding
          burden on the inmates of the house to give a 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 an accused to
          offer any explanation.”
40. Undeterred, learned counsel for the State sought to rely on the
    evidence of PW-3 Sudhakar and PW-10 Narshingh, the Circle Officer,
    to establish the factum of common residence between the appellant
    and the deceased. We have carefully scanned the evidence of PW 10.
    However, there is nothing in the deposition to show that PW-10 has
    deposed that the appellant resided with the deceased. PW-10 was
    the Circle Officer for Ghatnandur Circle. He has drawn the spot
    map (Ex.65). He says that he has not taken the map from the office
    and did not have the assured survey number and gut no. of spot
    of offence. He also admitted that he had not mentioned the survey
    number or gut number in Ex.65 spot map. In cross-examination, he
    was shown certain extracts which are in the name of Nilesh, the
    appellant. They are marked as Ex. 70-74.
41. We are really at a loss to understand how this can establish the fact
    that the accused resided with the deceased especially in the teeth
    of the categoric evidence of I.O. PW-9.
42. The other evidence relied upon is the evidence of PW-3 – Sudhakar
    Nagargoje. No doubt, he has deposed that in the house at Talani
    Village, the appellant and his mother were residing and sometimes, the
    appellant’s sister also used to come there. However, the appellant’s
    counsel has launched a serious attack on the evidence of PW-3 and
    has highlighted several circumstances which indicated that PW-3 was
    inimically disposed of towards the appellant. We have in the later
54                                                               [2025] 11 S.C.R.

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       part of this judgment discussed the evidence of PW-3 separately.
       As far as the aspect of residence is concerned, we are inclined to
       believe the deposition of PW-9 I.O which has clearly brought out
       that the appellant was not residing with the appellant.
43. From the above evidence, it could not said that the appellant owed
    an explanation for the cause of death of the deceased as nothing
    has been demonstrated by the prosecution to show that there was
    any fact about the alleged incident which was especially within the
    knowledge of the appellant. It is trite to recall the following memorable
    words of Vivian Bose, J. in Shambu Nath Mehra v. The State of
    Ajmer3:-
              “……in a criminal case the burden of proof is on the
              prosecution and section 106 is certainly not intended
              to relieve it of that duty. On the contrary, it is designed
              to meet certain exceptional cases in which it would be
              impossible, or at any rate disproportionately difficult, for the
              prosecution to establish facts which are “especially” within
              the knowledge of the accused and which he could prove
              without difficulty or inconvenience. The word “especially”
              stresses that. It means facts that are pre-eminently or
              exceptionally within his knowledge. If the section were to
              be interpreted otherwise, it would lead to the very startling
              conclusion that in a murder case the burden lies on the
              accused to prove that he did not commit the murder
              because who could know better than he whether he did
              or did not.”

       EVIDENCE OF PW-2 – THE PANCH WITNESS
44. PW-2, as adverted to earlier, was cross examined by the Public
    Prosecutor. He, in the Chief examination, deposed that nothing
    happened in the police station. However, during the cross by the
    public prosecutor, he deposed that the appellant gave a memorandum
    of 23.07.2010 and his signature was appended to it. Under the
    admissible portion of the memorandum, the appellant agreed to
    show the iron pipe and nylon rope. He stated that the panch witness,
    the appellant and the police went in a private jeep and at the site


3     [1956] 1 SCR 199
[2025] 11 S.C.R.                                                        55

              Nilesh Baburao Gitte v. State of Maharashtra


     took out the iron pipe and his clothes from the wooden diwan. He
     deposed that the police seized the objects under the seizure memo
     and took his signature.
45. It should be remembered that this was the same witness who deposed
    about the accused Balasaheb Gitte taking out the nylon rope and the
    clothes from the fields of Manikrao Gitte. However, the said accused
    has been acquitted. The deposition of PW-2 is to the effect that the
    appellant took out the material objects from his house which read
    with the evidence of PW-9 is clear that according the prosecution
    it was the house of Manikrao Gitte where the appellant was living.
46. In the cross-examination by the appellant’s lawyer, he admitted that
    he had visiting terms with PW-3 Sudhakar and that Sudhakar had
    faith in him and also that he was doing political work of Sudhakar. He
    also admitted that it was Sudhakar who asked him to go Bardapur
    Police Station. He admitted in cross by the appellant’s lawyer that the
    accused did not give memorandum to police in his presence. Though
    initially, he stated that he went with the appellant and the police in a
    jeep, in cross by the defence, he stated that he is not aware as to
    who showed the place to the police as he was following the police
    jeep on a motor cycle. He admitted that he could not read Marathi
    but signed the document once the police reduced it to writing. He
    further admitted that there was no talk with the police when they
    reduced into writing the document and took his signature. To put it
    mildly, the witness has materially contradicted himself and we have
    no doubt that he is taking enormous liberties with truth.
47. One other fact which requires mention is the fact that PW-2 speaks of
    the recovery of iron pipe on the statement of the appellant. However,
    as adverted to above, Dr Salunke- PW-6 has categorically stated
    that the iron pipe shown to him was not a sharp-edged weapon and
    that the ½ cm injury seen on the scalp is possible by sharp-edged
    weapon. We are only flagging this to show that we have more than
    one reason to discount the testimony of PW-2.
48. Once we are not inclined to believe the recovery at all as an aspect
    implicating the appellant, we do not have to labour upon the argument
    on the inconclusive nature of the FSL analysis and the failure to
    conduct the DNA test. It is important to note, however, that the FSL
    analysis report was not put to the accused when questioned under
    313. Further, the State has not denied the assertion of the counsel
56                                                         [2025] 11 S.C.R.

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      for the appellant that the blood group analysis of the deceased was
      not carried out. Finally, what resolves this issue completely against
      the State is the fact that A2, was acquitted on the finding that except
      the recovery there was nothing against the said accused and that
      the recovery was not incriminating in nature. That acquittal has been
      accepted by the State.
49. The evidence of PW-2 is also contradictory to the evidence of PW-9
    insofar as the travel to the place of recovery is concerned. While
    PW-9 stated that the panch witness, the appellant and the police
    travelled by a jeep, PW-2 has taken a contradictory position. While
    he first stated that they went by jeep from Bandanur Police Station
    to the place, he later stated that he does not know who identified
    the place as he was following the police in his motor vehicle. All this
    present a very unsatisfactory state of affairs and we are not able to
    consider the recovery as a link at all in the chain of circumstances.

      EVIDENCE OF PW-3 – THE APPELLANT’S UNCLE: -
50. The appellant has a strong case that it was PW-3 who has
    masterminded the prosecution against him. To start with, PW-3 set
    up a case that the appellant murdered his mother for the purpose of
    property. To give legitimacy to this theory, he deposed that the accused
    called him five days before the death and requested to sell out the
    property which fell to the share of his mother. He further deposed
    that he gave a xerox copy of proof of that incoming call to the police.
    That document or Call Details Record (CDR) establishing this fact
    is not exhibited. The State has a case that the appellant in Section
    313 examination admitted to have called PW-3. This contention is
    erroneous because there are two calls from the appellant which PW-3
    speaks about. In the 313-examination, the appellant has specifically
    denied under question No.11 about him calling PW-3 and requesting
    to sell out property which fell to the share of his mother. The appellant
    replied stating that the said statement was “false”. The second call
    which PW-3 speaks about and which the appellant admits in Section
    313 in answer to question No.8 is the call informing PW-3 of the
    death of his mother by the appellant.
51. The angle of property adverted to by PW-3 is not convincing for the
    reason that the appellant too has a similar allegation against PW 3.
    It was suggested to PW-3, in cross-examination by the counsel for
[2025] 11 S.C.R.                                                       57

              Nilesh Baburao Gitte v. State of Maharashtra


     the appellant that Civil Suit No. 205 of 2003 filed by him (PW 3)
     at Civil Court Ahmednagar and Civil Suit No. 195 of 2005 filed
     by Prabhakar are pending in the Civil Court of Ambajogai. On a
     suggestion as to whether the deceased was a party, PW-3 feigned
     ignorance. PW-3 also admitted to have settled the dispute in the Lok
     Adalat. A suggestion was put to the effect that the sister was not
     present when the dispute was settled, which however, he denied.
     PW-3 admitted to the suggestion that he has made an application
     after the decree for mutation of his name for the rent. He further
     denied the suggestion that the Tehsildar asked him to bring the son
     of the deceased for mutating the records. It is also admitted by him
     that he did not mention in the police statement about the call made
     by the appellant 4-5 days before the death of the deceased.
52. What is intriguing is that the statement of PW-3 was recorded only
    on 10.09.2010, a good 50 days after the death of the deceased.
    PW-3 admits that he visited Parli Police Station on the next day of
    the death of the deceased when he came for immersion of ashes.
    He even deposed to the effect that blood stained extract of the 7/12
    land at Ahmadpur, recovered from the appellant was shown to him
    by PW-7 and PW-8, though PW-8 and PW-7 gave a contradictory
    version, which we have adverted to hereinabove, while discussing the
    contentions of the learned counsel. As to why his statement was not
    recorded by the police for a period of 50 days was for the prosecution
    to explain, which they have not. If this is coupled with the fact that
    PW-2, the panch witness’s categoric deposition that it was due to PW-3
    Sudhakar’s message that PW-2 went to Badanapur Police Station,
    the mystery about the delayed recording of PW-3’s statement gets
    only confounded. PW-2 also deposed that PW-3 knew Ramakant
    Barule, the other panch witness (not examined). PW-2 deposed that
    both he and Ramakant Barule were on visiting terms with Sudhakar.
    PW-2, Sudhakar and Ramakant Barule allegedly went to the Police
    Station on 23.07.2010 if so, it is inexplicable why the statement of
    PW-3 Sudhakar was not recorded till 10.09.2010. No explanation
    is forthcoming for the delayed recording of the statement of PW-3.
53. In this background, we are not able to believe PW-3 on the motive
    attributed to the appellant. Having come out with a case of motive,
    prosecution has miserably failed to establish the same. It has come
    on record that the appellant has his father as well as two sisters who
    are alive. It is not as if that the property would, on the death of the
58                                                      [2025] 11 S.C.R.

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      deceased, immediately devolve on the appellant in the event of the
      alleged murder by him going undetected. There was no statement
      recorded from even the immediate family of the deceased.
54. Much was made about the fact that the appellant never raised hue
    and cry about the death of his mother and it was the police through
    the efforts of PWs 4,7,8 and 9 who unearthed the offence. Section
    8 of the Evidence Act (Section 6 of Bharatiya Sakshya Adhiniyam,
    2023) was invoked to make out a case of unnatural subsequent
    conduct against the appellant.
55. We have already recorded a finding that the story of PWs 4,7,8
    and 9 about the genesis and origin has not been convincing. That
    failure to investigate the alleged crowd which had assembled and
    disbursed at the first alleged attempted cremation of the deceased
    baffles one’s comprehension. It has already been demonstrated
    from the evidence of PW-9 that the appellant was not living with the
    deceased. It has also come on evidence (PW-1 Dinkar Manikrao)
    that the cremation which took place at around 6-7 PM on the evening
    of 22.07.2010, the appellant participated and even poured water in
    the mouth of his mother. The appellant has even admitted that he
    called his uncle to inform of the death of his mother which appears
    to be a natural conduct. The medical evidence adduced through
    PW-6 Dr. Salunke and the post mortem report Ex.36 has also not
    conclusively established homicide. The recoveries alleged, to say the
    least, do not lend assurance to our minds about their genuineness.
    The motive alleged has not been established. The acquittal of the
    second accused-Balasaheb and the rejection of the evidence of
    PW-2 insofar as recovery of the nylon rope only reinforces our view.
56. The courts below have fallen into a serious error in convicting the
    appellant on the basis of the evidence on record. Not only the tests
    laid down in Sharad Birdhichand Sarda (supra) have not been
    satisfied, recording the conviction based on the material on record
    would be disregarding the warning of Baron Alderson, J. in Hodge,
    In re (1838) 2 Lewin 227 as reiterated in Hanumant vs. State of
    Madhya Pradesh, (1952) 2 SCC 71 about the caution to be exercised
    in cases based on circumstantial evidence: -
           “The mind was apt to take a pleasure in adapting
           circumstances to one another, and even in straining
           them a little, if need be, to force them to form parts of
[2025] 11 S.C.R.                                                          59

                 Nilesh Baburao Gitte v. State of Maharashtra


             one connected whole; and the more ingenious the mind
             of the individual, the more likely was it, considering such
             matters, to overreach and mislead itself, to supply some
             little link that is wanting, to take for granted some fact
             consistent with its previous theories and necessary to
             render them complete.”
57. For the reasons stated above, we allow the appeal, set aside the
    judgment of the High Court in Criminal Appeal No. 447 of 2012
    dated 23.07.2013 and acquit the appellant of all the charges framed
    against him.
58. The appellant is on bail. The bail bonds shall stand discharged.

     Result of the case: Appeal allowed.




     †
         Headnotes prepared by: Ankit Gyan