Bombay High Court
Durgaprasad Omprakash Mishra vs The State Of Maharashtra on 14 August, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:17900-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 887 OF 2022
Samsher S/o Sardar Pathan
Age: 46 years, Occu: Labour,
R/o: Punam Nagar, Shirdi,
Tq. Rahata, Dist. Ahmednagar ... Appellant
Versus
The State of Maharashtra ... Respondent
...
AND
CRIMINAL APPEAL NO.267 OF 2024
Durgaprasad S/o Omprakash Mishra,
Age: 38 Years, Occu- Labour/Now: Nil,
R/o: Newada, Varanasi (U.P.)/Kature Vasti, Shirdi,
Ta. Rahata, Dist. Anmednagar.
At present in Aurangabad Central Prison ... Appellant
Versus
The State of Maharashtra
Through Police Station Offcer,
Shivoor Police Station, Ta. Vaijapur,
Dist. Aurangabad. ... Respondent
.......
Appearance :-
Mr. Narwade Narayan B., Advocate for the Appellant in
Criminal Appeal No.887/2022
Mr. Patil Indrale Anand Vinayakrao, Advocate for the Appellant
in Criminal Appeal No.267/2024
Mr. S. V. Hange, APP for Respondent - State in both Appeals
.....
CORAM : R. G. AVACHAT &
NEERAJ P. DHOTE, JJ.
Reserved on : 11th July, 2024
Pronounced On : 14th August, 2024
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COMMON JUDGMENT : [ PER NEERAJ P. DHOTE, J.]
1. These two Appeals, fled under 374 [2] of the Code of
Criminal Procedure, 1973 [hereinafter referred to as 'Cr.PC'],
challenges the Appellants conviction and sentence awarded by
the learned Additional Sessions Judge, Vaijapur, Aurangabad, in
Sessions Case No.78/2016, vide Judgment and Order dated
19/10/2022, as under:
(a) For the offence punishable under Section 302 r/w Section
120-B of the Indian Penal Code, 1860 [hereinafter referred to
as 'IPC'], to suffer imprisonment for life and to pay fne of
Rs.3000/-, in default, to suffer rigorous imprisonment for six
[6] months.
(b) For the offence punishable under Section 364 r/w Section
120-B of IPC, to suffer rigorous imprisonment for ten [10] years
and to pay fne of Rs.2000/-, in default, to suffer rigorous
imprisonment for two [2] months.
(c) For the offence punishable under Section 3 read with
Section 25 of the Arms Act, 1959 [hereinafter referred to as
'the Arms Act'], to suffer rigorous imprisonment for three [3]
years and to pay fne of Rs.1000/-, in default, to suffer rigorous
imprisonment for two [2] months.
2. Prosecution's case as revealed from the Police Report is
as under : -
2.1 Deceased - Nishikant Pande [hereinafter referred to as
'Deceased'] and his entire family was in the business since last
many years. They had their business at Shirdi and Shani-
Shingnapur. On 16/07/2016 around 10.00 a.m., he proceeded
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for Shani-Shingnapur from Shirdi. As he did not return home,
his family members enquired about him. Around 7.00 p.m., he
telephonically informed his wife that he would be returning
home within 15 to 20 minutes. However, he did not return
home. When his brother tried to call him, his mobile phone
came switched off. On the next day i.e. 17/07/2016, his younger
brother - Shashikant P. Pande along with his friends started for
his search. From shopkeeper - Ramrao Hiware, it was revealed
that Deceased had come to Shani-Singnapur and left in the
evening for Shirdi on 16/07/2016. They viewed the footages
from the CCTV's installed at the Temple premises. It was seen
that Deceased went in the car with Accused No.1 [Durgaprasad
Omprakash Mishra] and Accused No.2 [Iqbal Musa Shaikh] was
on the driving seat. He lodged the missing report with the Loni
Police Station. On 17/07/2016, the Police Patil - Ashok Eknath
Jadhav of village Safyabadwadi received a phone call from his son
informing him of one dead body lying in Saiprasad Hotel. He
passed over the said information to the Police. The Police Patil
and the Police reached the said Hotel. The dead body was of male
aged between 25 and 30 years having injuries, was lying at the
Hotel. The FIR was lodged and the criminal law was set in motion.
The Inquest was conducted. Spot Panchnama came to be drawn.
The dead body was referred for postmortem. In the postmortem,
the cause of death was revealed as 'frearm injury to head'.
2.2 During investigation, the Police recorded the statement of
witnesses and viewed the CCTV footages of the relevant spots. The
relevant CCTV footages came to be secured. In all, fve [5]
Accused came to be arrested. The relevant Articles came to be
seized, including the frearm pursuant to the discovery under
Section 27 of the Indian Evidence Act, 1872 [hereinafter referred
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to as 'the Evidence Act']. The call details of mobile phones of the
Accused and Deceased came to be collected. Investigation
revealed that the Accused kidnapped Deceased for ransom and as
the Deceased could not meet their demand of money, he was
killed. As suffcient proof of involvement of Accused was collected,
the Police fled the Charge-sheet against the fve [5] Accused
persons for the offence punishable under Sections 302, 120-B,
364, 364-A of IPC and for the offence punishable under Section 3
r/w 25 of the Arms Act.
3. On committal, the learned Additional Sessions Judge framed
the Charge against the Charge-sheeted Accused for the offence
punishable under Sections 302 r/w 34, 120-B r/w 34, 364 r/w 34,
364-A r/w 34 of IPC and for the offence punishable under Sections
3 r/w 25 of the Arms Act, vide Exhibit - 23. The Accused denied
the Charge and claimed to be tried. In support of the Charge, the
Prosecution examined in all twenty two [22] witnesses and
brought on record the relevant documents. On completion of
Prosecution's evidence, the learned Trial Court recorded the
statement of Accused under Section 313[1][b] of Cr.PC. The
Accused denied the evidence and the case of Prosecution. After
hearing both the sides and appreciating the evidence on record,
the learned Trial Court passed the impugned Judgment and Order.
4. Heard the learned Advocates for the Appellants and learned
APP for the Respondent - State.
5. It is submitted by the learned Advocates for the Appellants
that the case is based on circumstantial evidence. It is necessary
for the Prosecution to establish all the circumstances and rule out
the possibility of involvement of any other person in the Crime,
except the Accused persons. On the same set of evidence, the co-
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accused are acquitted. The evidence brought on record is not
suffcient to prove the involvement of the Appellants. The
evidence in respect of identifcation of the Appellants was not
credible. There is no credible evidence to show that fnger ring
seized during the course of investigation at the instance of one of
the Appellant was that of the Deceased. The Prosecution failed to
prove the Motive for commission of the Crime. The chemical
analysis [CA] reports do not support the case of Prosecution.
Considering the overall evidence on record, the Appellants are
entitled for acquittal by setting aside the impugned Judgment and
Order. The Judgments relied by them would be considered in the
later part.
6. It is submitted by the learned APP that the evidence on
record show that the Deceased was lastly seen in the company of
the Accused. There is evidence in the nature of CCTV footages,
discovery and incriminating Articles at the instance of the
Appellants, ballistic reports, CDR / SDR of the mobile phones,
which establishes the Crime against the Appellants. The
circumstances are conclusive in nature and establishes
involvement of Appellants in the Crime. No interference is called
for in the impugned Judgment and Order and the Appeals are
liable to be dismissed. The Judgments relied by him would be
considered in later part.
7. Admittedly, the Prosecution's case is based on
circumstantial evidence. The law in respect of circumstantial
evidence is well settled by catena of decisions of Hon'ble Supreme
Court of India from the decision in Sharad Birdhichand Sarda Vs.
State of Maharashtra; [1984] 4 SCC 116, wherein, following
principles are laid down:-
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"(1) The circumstances from which the conclusion of guilt is to be
drawn should be fully established.
(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."
8. Admittedly, in the case in hand, in all, fve [5] Accused
persons were Charge-Sheeted and tried. By the impugned
Judgment and Order, Accused Nos. 2, 3 and 4 came to be
acquitted. Admittedly, there is no Appeal against acquittal. The
Appellants, who were Accused Nos.1 and 5 came to be convicted.
As per the learned Trial Court, the following circumstances were
relied by the Prosecution in support of the Charge :-
[I] Deceased Nishikant was missing from the evening of
16/07/2016, and on 17/07/2016 he was found died
homicidal death ;
[II] On 16/07/2016 in the evening, Deceased Nishikant
was lastly seen in the company of Accused Nos.1 and
3;
[III] Disclosure statement of Accused No.5 leading to
recovery of pistol, live cartridges and golden fnger
rings, and the ballistic expert report ;
[IV] Presence of accused in Shivoor area in between 9.00
p.m. to 9.30 p.m. as established by SIM detail record,
call detail record and tower location ;
[V] The disclosure statement of Accused No.1 leading to
show the place where he threw the clothes, diary and
mobile hand set of Deceased Nishikant ;
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[VI] Presence of the Accused at the Hotel of Yogesh PW-13
at Vaijapur at 10.30 p.m. on 16/07/2016 ;
[VII] Absence of Accused No.3 from the noon of 15/07/2016
from his job from the Hotel ;
[VIII]Motive for the Accused to commit murder of
Nishikant ;
[IX] Seizure of Indica Car and motorcycle used in the
crime ;
[X] Seizure of clothes of Accused and forensic reports ;
9. The learned Trial Court held that the Prosecution succeeded
in establishing the following fve [5] circumstances against the
Appellants which unerringly connect the Appellants with the
Crime.
[1] Deceased Nishikant was missing from the evening of
16/07/2016, and on 17/07/2016 he was found died
homicidal death.
[2] On 16/07/2016 in the evening, Deceased Nishikant
was lastly seen in the company of Accused No.1
[3] There is no explanation by the Accused No.1 about
the said circumstance.
[4] Disclosure statement of Accused No.5 leading to
recovery of Pistol article T and live cartridges.
[5] Ballistic reports show that bullet found in the body of
Deceased Nishikant was fred from Pistol article - T
recovered from Accused No.5.
10. These being the Appeals against conviction, we are required
to re-appreciate the evidence on record and record our fndings.
Thus, we proceed to deal with the circumstances and evidence
available on record :-
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[I] Deceased Nishikant was missing from the evening
of 16/07/2016, and on 17/07/2016 he was found
died homicidal death ;
11. PW - 3 [Shashikant Prabhunarayan Pande] is the brother
of Deceased. They have family business since last many years
at Shirdi and Shani-Shingnapur. On 16/07/2016, Deceased left
for Shani-Shingnapur, however, did not return. In the evening
around 7.00 p.m., Deceased called his wife over the mobile and
informed that he will reach home within 15 to 20 minutes.
However, Deceased did not return and so, he called on the cell
phone of Deceased, which came switched off. On the next day
i.e. 17/07/2016, he along with his friend - Pappu Agrawal went
in search of Deceased. From PW - 6 [Ramrao Uttam Hiware],
they learnt that at about 5.00 p.m on 16/07/2016, Deceased
started for Shirdi from Shani-Shingnapur. They viewed the
CCTV footages installed by the Temple Administration, wherein,
Deceased was seen with Accused Nos.1 and 2. Thereafter, they
went to Shani-Shingnapur Police Station from where, they were
directed to Loni Police Station. He lodged the missing report at
Exhibit - 77. The cross-examination show that the said
evidence of this witness was not seriously challenged.
12. PW - 6 [Ramrao Uttam Hiware] was the resident of Shani-
Shingnapur. He was having the cutlery and stationary shop.
He was having business relation with Deceased. On 16/07/2016
between 12.00 p.m. and 1:00 p.m., Deceased visited his shop
and after some time went for lunch and again came to his shop
for taking articles and thereafter left his shop. On 17/07/2016
around 10.00 a.m., PW - 3 [Shashikant Prabhunarayan Pande]
came to his shop and enquired about Deceased. He informed
PW - 3 [Shashikant Prabhunarayan Pande] about the previous
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day visit of Deceased to his shop. They viewed the CCTV
footages of the Temple and noticed that Deceased boarded one
car from the area of Shani Temple in the evening. Except that
his statement was recorded by the Police on 7 th day, nothing has
come to doubt his testimony.
13. PW - 1 [Ashok Eknath Jadhav] was the Police Patil of
village Safyabadwadi since 1993. On 17/07/2016, when he was
in the Police Station, he received the phone call from his son -
Nitin informing that, one dead body was lying in the Hotel
Saiprasad. The said Hotel was on the northern side of his feld
near the village Safyabadwadi. He along with Police Constable -
Shaikh reached the said Hotel around 11.00 a.m. and noticed
the body of male person lying in the Hotel. The handkerchief
was tied on the head, the sticky tape was put over the mouth
and both the hands were tied with the sticky tape. Blood was
seen near his head. One empty cartridge was found near the
body. He lodged the Report at Exhibit - 46 with the Shivoor
Police Station against unknown person. Nothing has come in
his cross-examination to doubt his said testimony. His evidence
show that the Report corroborate his evidence.
14. PW - 2 [Rajendra Narayan Pathade] acted as the Panch
for the Spot Panchnama at Exhibit - 70 and Inquest at Exhibit -
72. His evidence show that the empty cartridge was found on
the spot. He corroborate the evidence of PW - 1 [ Ashok Eknath
Jadhav] about the condition of dead body. The said Hotel
belonged to his father. His evidence show that he was not the
regular panch.
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15. The evidence of PW - 18 [Ramhari Madhavrao Jadhav],
who was the Assistant Police Inspector at Shivoor Police Station
on 17/07/2016, show that he registered the Crime on the Report
of PW - 1 [Ashok Eknath Jadhav] at Exhibit - 46 on
17/07/2016. He went to the Saiprasad Dhaba. The dead body of
male person was lying, the mouth of which was tied with the
handkerchief and sticky plastic tape was put over the
handkerchief. There was bleeding injury near left ear, both
hands were tied with the sticky tape and one empty cartridge
was lying near the body. He prepared the Spot Panchnama and
Inquest. He referred the dead body for postmortem vide
Exhibit - 202.
16. The evidence of PW - 19 [Dhananjay Ramrao Farate], who
was working as the Assistant Police Inspector at Shivoor Police
Station on 17/07/2016, show that the investigation of the Crime
was handed over to him. He circulated the photos of Deceased
to different Police Stations to know the identity of Deceased. On
that very day, he came to know about the missing report lodged
with Loni Police Station in respect of Deceased. Identity of
Deceased was ascertained. He called the brother and relatives
of Deceased at Ghati Hospital, who identifed the dead body as
that of Nishikant Pande.
17. PW - 14 [Dr. Vikas Madan Rathod], who was working as
the Medical Offcer at the Government Medical College and
Hospital, Aurangabad, at the relevant time, deposed of
receiving the dead body of Nishikant Pande. His evidence show
that along with other Doctors, he performed the postmortem
and found external and internal injuries, which were mentioned
in Column Nos.17 and 19, respectively of the Postmortem
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Report and opined that the external and internal injuries were
antemortem and corresponding to each other and were
suffcient to cause the death of person in ordinary course of
nature. He opined the cause of death as 'frearm injury to head'.
The Postmortem Report is at Exhibit - 165, which corroborate
his testimony. Though he was cross-examined, nothing has
come so as to disbelieve his testimony.
18. With the above discussed overwhelming evidence on
record, which remained unshaken in the cross-examination, the
Prosecution has established the circumstance that Deceased -
Nishikant Pande went missing on 16/07/2016, his dead body
was found in an unusual condition at the Hotel on 17/07/2016
and his death was Homicidal.
[II] On 16/07/2016 in the evening, Deceased Nishikant
was lastly seen in the company of Accused Nos.1 and 3
19. The evidence to prove the circumstance of last seen, the
Prosecution has brought on record the electronic evidence. It is
needless to state that Section 65 - B of the Evidence Act
provides for the admissibility of electronic record.
20. The evidence of PW - 22 [Sachin Ashok Shete] show that
since last eight [8] years, he was working as the CCTV In-
charge at the Shani-Shingnapur Temple. He was looking after
the CCTV services at the said Temple. The CCTV cameras were
installed in the Temple premises, Bhakt Niwas and on road
adjacent to the Temple. The CCTV footages were stored in the
hard-disk of computer. Pursuant to the communication at
Exhibit - 210, which was issued by Shivoor Police Station to the
Trust for CCTV footages dated 16/07/2016 for the time between
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17.00 to 17.30 hours from the Camera Nos.1, 2 and 3 which were
installed at the square, he copied the CCTV footages of the said
date and time in the CD at Exhibit - 251 from the hard-disk of
computer and handed over the same to the Police. His evidence
show that he brought the certifcate under Section 65-B of the
Evidence Act at Exhibit - 250, which was signed by him.
Though the oral evidence of the contents of document is
impermissible under the law, he deposed that it was mentioned
in the said certifcate that he copied the CCTV footage from the
hard-disk of computer and there was no tampering with the
said footages. His evidence show that he had knowledge about
operating CCTV cameras, storing and copying the said data. His
evidence establishes that the said electronic record had come
from proper custody.
21. Merely because there was no permission or directions
from the Trust to him to appear in the Court as the witness and
non fling of any document about his knowledge regarding
collection of CCTV footages, cannot be the reason to disbelieve
him. Being the Prosecution witness, permission from the
higher ups would be immaterial. It is tried to be brought on
record in the cross-examination that the certifcate under
Section 65-B was not given to the Police at earlier point of time.
That would not affect the admissibility of the said electronic
evidence / record and certifcate in view of the observation in
Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal;
[2020] 7 SCC 1 that, Section 65-B does not speak of the stage at
which such certifcate must be furnished to the Court and so
long as the hearing in a trial is not over, the requisite certifcate
can be directed to be produced by the learned Judge at any
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stage, so that information contained in electronic record form
can then be admitted and relied upon in evidence. What is seen
from the observations of the learned Trial Court in the
impugned Judgment, is that the said certifcate was produced
pursuant to the directions and summons issued by the learned
Trial Court and it was produced at the time of tendering CCTV
footage in evidence and the Appellants had cross-examined the
witness on the certifcate. Thus, the said electronic evidence
satisfes the requirement of law and becomes admissible in
evidence and can be relied.
22. The evidence of PW - 10 [Ramnath Eknath Jadhav] show
that on 28/07/2016, he was called by Shivoor Police Station for
Panchnama in respect of compact disk [CD]. The police sealed
one compact disk in his presence, kept in an envelope under the
Panchnama at Exhibit - 111. His evidence show that one
person by name Dixit produced the said CD. Non examination
of the said person - Dixit will not affect the evidence in respect
of electronic evidence in view of the examination of PW - 22
[Sachin Ashok Shete], who was the In-charge of CCTV at the
Temple, who deposed of copying the CCTV footage in the CD.
Mentioning his profession as Sarpanch in the Panchnama and
his evidence that the compact disk are easily available in the
market, will not affect his testimony.
23. PW - 19 [Dhananjay Ramrao Farate], the Police Offcer,
who was entrusted with the investigation of the Crime, show
that he gave letter on 23/07/2016 to the Lord Shani-
Shingnapur Trust at Exhibit - 210 for getting CCTV footages.
His cross-examination show that he collected the CCTV
footages.
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24. Not preparing the Panchnama in the premises of Temple
in respect of collecting CCTV footages and preparing the
Panchnama in respect of compact disk of CCTV footages in the
Police Station, as seen from the evidence of PW - 21 [Harsh
Vishwanath Potdar], who was assigned with the Investigation of
this case from 19/07/2016, would not affect the Prosecution's
electronic evidence due to the cogent evidence of PW - 22
[Sachin Ashok Shete], who was In-charge of CCTV at the said
Temple.
25. The evidence of PW - 3 [Shashikant Prabhunarayan
Pande] show that electronic record / evidence in the nature of
aforesaid CCTV footage copied in the Exhibit - 251 CD were
played and he viewed the same at the time of his testimony. For
better appreciation, the relevant part from the evidence of PW -
3 [Shashikant Prabhunarayan Pande] is reproduced below :-
"13. Now, video clip No.1 in the CD started playing with the help of
laptop on big monitor. The camera is named as Shani Thorat Parking
chowk camera No.1. The first video clip is dated 16.07.2016 from
17.10.00 to 17.17.48. In the said video clip the persons and vehicle are
seen going on the road. At 17.11.53 one white colour car is seen and
coming and standing to the side of the road. At 17.12.06 one person
wearing brick colour strips T-shirt (Horizontal) is seen sitting in the
said car. The witness says that said person is accused Durgaprasad
Mishra. At 17.13.04 the said person is seen getting down from the car.
Until 17.15.32 the car was standing there. At 17.15.33 the car is seen
going ahead. At 17.15.38, the registration number of said car is seen
as MH-28-C-1791. At 17.17.01 the said car is seen coming again by
another side of the road. At 17.17.01 the number of said (backside)
car is seen as 1791. Thereafter said car went away. The said video clip
is upto 17.17.48.
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14. Now, the CCTV footage contained in second video clip is
started. The camera is named as Shani Thorat parking chowk camera
No.1. The said video clip is dated 16.07.2016 from 17.17.50 to
17.22.05. The said video clip started playing. At 17.18.01 one person
wearing brick colour strips T-shirt and black colour pant is seen. The
witness says that this person is accused Durgaprasad Mishra. At
17.18.08 the said person out of footage. At 17.20.51 one person with
his face towards camera one person having black and white colour T-
shirt is seen walking on the road. His face is towards camera. He is
holding one white colour polythene bag. The witness says that said
person is his brother Deceased Nshikant. At 17.20.50 the screenshot is
taken. The print out of the said image. It is marked at Exh.280. At
17.21.00 the said person out of camera. At 17.21.21 the above number
car MH-28-C-1791 is seen coming. The clip ended on 17.22.05.
15. Now, third video clip from the CD is started playing. The camera
is named as Shani Fhorat parking chowk No.1. The CCTV footage in
3rd clip dated 16.07.2016. Said clip started from 17.10.35. From
17.10.35 to 17.19.42 the peoples and the vehicles are seen coming and
going on the road. At 17.19.41 person wearing brick colour strips T-
shirt is seen standing other road. The witness says that he is accused
Durgaprasad Mishra. At 17.19.42 the screenshots is taken. The print
out of the said image. It is marked at Exh.281. I am now shown the
said print. The person standing on the road is the said scree shot is
accused Durgaprasad Mishra. At Until 17.21.01 the said person is
standing on the road. At 17.21.02 one person wearing white and black
colours strips T-shirt having polythene white bag is seen going ahead
with his back side towards camera. The witness says that said person
wearing black and white strips T-shirt is his brother Deceased
Nshikant. At 17.21.17 both persons are seen going ahead together. At
17.21.31 above numbered car (MH-28- C-1791) is seen going and
stopping near the said two persons. At 17.21.31 the screenshot is
taken. The print out of the said image is taken on printer. I am now
shown the said image. In the said image my Deceased brother
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Nshikant and accused Durgaprasad Mishra are seen together. It is
marked at Exh.282. At 17.21.45 the person wearing black and white
strips T-shirt is seen sitting on the back seat of the car and the person
wearing brick colour strips T-shirt is seen sitting on the front seat of
the car. At 17.21.45 the screenshot is taken. The print out of the said
image is taken on printer. I am now shown the said image. In the said
image my Deceased brother Nshikant and accused Durgaprasad Mishra
are seen together. It is marked at Exh.283. At 17.21.52 the said car is
seen going ahead. The witness says that said car is going towards
Sonai. At 17.22.25 the said car goes out of camera. The video clip ends
as 17.23.26.
16. Now, 6th clip from CD started playing. Camera is named as Shani
Sonawane Hotel road camera No.1. At 17.17.33 the above numbered
car is seen going from the road. It is seen halted at one point for some
time. At 17.19.15 the person wearing black and white colour T-shirt is
seen going ahead with his back towards camera. At 17.20.06 said
person is seen is out of camera. At 17.24.32 said video clip ends."
26. The evidence of PW - 3 [Shashikant Prabhunarayan
Pande] show that Accused No.1 and Accused No.2 were known
to him due to business. As seen earlier while discussing the
Circumstance No.1, this witness had viewed the CCTV footages
from CCTV installed at Shani-Shingnapur Temple and he saw
Deceased - Nishikant Pande boarding the car along with
Accused No.1. The above referred evidence of PW - 3
[Shashikant Prabhunarayan Pande] clearly established that in
the said CCTV footages dated 16/07/2016 between 17.10.00
hours to 17.24.32 hours, Deceased and Accused No.1 were seen
together. His evidence show that though he identifed Accused
No.2 as the one who was driving the car, in which, Accused No.1
and Deceased boarded, he further deposed that the driver's face
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was not clearly visible, which was fortifed from his cross-
examination. Not providing the description of Accused No.1 to
the Police while recording his statement is inconsequential for
the reason that Accused No.1 was acquainted to this witness by
name as is clearly seen from his evidence.
27. The evidence of PW - 3 [Shashikant Prabhunarayan
Pande] show that after viewing the CCTV footages on
17/07/2016 at the Temple, he lodged the Missing Report. His
evidence show that while recording his statement, he stated
about the CCTV footages having timing 5.21 p.m. The omissions
shown in Paragraph No.8 in the evidence of this witness does
not affect the core of his evidence. Moreover the admissible
electronic record / evidence brought on record, was shown to
him. The further cross-examination of this witness in no way
creates any dent in his evidence. The evidence of this witness
gives the minute details from the CCTV footages. He being the
brother of Deceased and Accused No.1 being of his
acquaintance, his identifcation of them is well founded. There
is nothing to show to disbelieve the testimony of PW - 3
[Shashikant Prabhunarayan Pande]. From the evidence of this
witness, it is established by the Prosecution that Accused No.1
was seen in the company of Deceased in the evening of
16/07/2016 in between 17.10.00 hours and 17.24.32 hours and
they boarded one four-wheeler and proceeded further.
Undisputedly, this evidence of PW - 3 regarding Deceased seen
in the company of Appellant No.1 is corroborated by his
previous Missing Report. The evidence on record show that the
Prosecution has conclusively established the last seen
circumstance against Appellant No.1.
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[III] Disclosure statement of Accused No.5 leading to
recovery of pistol, live cartridges and golden
fnger rings, and the ballistic expert report
28. The evidence of PW - 21 [Harsh Vishwanath Potdar], who
investigated the Crime from 19/07/2016 on-wards show that
Appellant / Accused No.5 was arrested on 21/07/2016 under
the arrest memorandum at Exhibit - 237. The Police custody of
Appellant / Accused No.5 was taken on 22/07/2016. Appellant /
Accused No.5 made disclosure statement to him before two
panchas that he had concealed the country made pistol, two
golden rings and three live cartridges near his house at Poonam
Nagar, Shirdi. The memorandum of his statement was at
Exhibit - 122. Thereafter, Appellant No.1 led him, panchas and
policemen to his house at Poonam Nagar, Shirdi where he dug
the soil near the bathroom and produced one country made
pistol [Article - T], three live cartridges [Article - U] and two
golden rings [Article - V], which came to be seized under the
Panchnama at Exhibit-123. Except suggestion that no
disclosure statement was made by Appellant / Accused No.5
and there was no discovery of the said articles, there is nothing
which would render the said testimony in respect of discovery
and seizure unworthy of acceptance.
29. There is evidence of PW - 11 [Vishnu Vankatrao Pillewar],
who was the public servant, to show that on 22/07/2016, his
superior received the communication from Shivoor Police
Station and he was directed to act as the panch. Another public
servant from his offce by named Shaikh Riyaz was also
directed by his superior to act as the panch. They both went to
the offec of Dy.S.P., Vaijapur where Appellant / Accused No.5
was present. Appellant / Accused No.5 showed his
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willingness to produce the weapon of offence and other articles
which were kept by him in his house at Shirdi. The
memorandum to that effect was prepared at Exhibit - 122.
Appellant / Accused No.5 led the panchas and the Police to
Shirdi, where frstly they went to the Shirdi Police Station and
thereafter, proceeded towards the house of Appellant / Accused
No.5 and reached at Poonam Nagar, Shirdi. After parking the
vehicle, they followed Appellant / Accused No.5 in one lane,
where one house was pointed by Appellant / Accused No.5 and
there was bathroom adjacent to the said house, wherein, black
can of water was kept. Appellant / Accused No.5 kept aside the
said can and removed one gun [Article - T], three bullets
[Article - U] and two fnger rings [Article - V]. The said articles
were seized under the panchnama at Exhibit - 123.
30. Not knowing the full registration number of the vehicle by
PW - 11 [Vishnu Vankatrao Pillewar], in which, he and other
went to Shirdi, is not expected, however, he deposed that the
vehicle number started as MH-20. Though it has come in his
cross-examination that no one entered the house of Appellant /
Accused No.5, would not create any dent to his evidence as
there is consistency in the evidence of this panch witness and
Police Offcer that the said articles were seized at the instance
of Appellant / Accused No. 5 from near the bathroom which was
outside the house.
31. The evidence of PW - 21, Investigating Offcer, satisfes the
requirement of 27 discovery as laid down by the Hon'ble
Supreme Court of India in the case of Babu Sahebagouda
Rudragoudar Vs. State of Karnataka; AIR 2024 SC 2252,
wherein, the following observations are made ;
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"when the Investigating Officer steps into the witness box for
proving such disclosure statement, he would be required to narrate
what the Accused stated to him. The Investigating Officer
essentially testifies about the conversation held between himself
and the Accused which has been taken down into writing leading to
the discovery of incriminating fact(s). It is further observed that,
'Similar view was taken by the Hon'ble Apex Court in the case of
Ramanand @ Nandlal Bharti Vs. State of Pradesh, wherein this
Court held that mere exhibiting of Memorandum prepared by the
Investigating Officer during investigation cannot tantamount to
proof of its contents. While testifying on oath, the Investigating
Officer would be required to narrate the sequence of events which
transpired leading to the recording of the disclosure statement."
32. The cross-examination of these two [2] witnesses referred
above, could not create any dent in their testimony. Their
evidence is corroborated by the memorandum and seizure
memo. From the above referred evidence of PW - 11 [Vishnu
Vankatrao Pillewar] and PW - 21 [Harsh Vishwanath Potdar],
the Prosecution has frmly established the discovery and
seizure of the aforesaid articles i.e. frearm, bullets and fnger
rings at the instance of Appellant / Accused No.5.
33. The evidence of PW - 21 [Harsh Vishwanath Potdar]
further show that on 28/07/2016, he referred the country made
pistol [Article - T] to the Forensic Laboratary for examination
vide letter at Exhibit - 238. The Prosecution has brought on
record the examination report in respect of frearm, three
cartridges and one empty cartridge and one deformed copper
jacketed bullet at Exhibits - 20, 21 and 22. The said reports are
admissible by virtue of Section 293 of Cr.PC. Being the scientifc
evidence, we propose to reproduce the relevant part from the
said reports as under :-
"Exhibit - 20
6] Description of articles contained in the parcel:
Exhibit 1:- One countrymade pistol with magazine wrapped in plastic
Ex. No.A
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Exhibit 2 :- Three intact KF 7.65 mm pistol cartridges wrapped in
plastic marked Ex. No - A3
Exhibit 3 :- One KF 7.65 mm pistol empty without primer cap put in
an envelope marked Ex. No - A1
Exhibit 1 to 3 also labelled Po. Station Shivur C.R. No.0101/16 U/S
302 IPC
Results of Analysis
Exhibit 1 is a countrymade pistol in working condition. It is
capable of chambering and firing 7.65 mm pistol cartridges. Residue
of fired ammunition-nitrite was detected in the barrel washings of the
countrymade pistol in Exhibit 1, showing that Exhibit 1 was used for
firing prior to its receipt in the laboratory.
Randomly selected two 7.65 mm pistol cartridges from Exhibit
2 were successfully test fired through the countrymade pistol in
Exhibit 1.
Exhibit 3 is a fired 7.65 mm pistol cartridge case without
primer cap. The characteristic breech face marks & chamber marks on
the empty in Exhibit 3 tally with those on the cartridges test fired fro
the countrymade pistol in Exhibit 1, (examined under comparison
microscope) Showing that the Empty in Exhibit 3 has been fired from
countrymade pistol in Exhibit 1.
The deformed copper jacketed 7.65 mm pistol bullet in Exhibit
1 of BL - 562/16 (Received from Autopsy Surgeon, Department of
Forensic Medicine, G.M.C. Aurangabad, PM No.1400/16, Dt. 18-Jul-
16, Shivur Police Station, C.R. No. 0101/16), tally with the bullets test
fired from countrymade pistol in Exhibit 1 in respect of superficial
lenghtwise brushing marks (examined under comparison microscope),
Showing that the bullet in Exhibit 1 of Bl - 562/16 has been fired
from countrymade pistol in Exhibit 1 of present case.
Exhibit - 21
6] Description of articles contained in the parcel:
Exhibit 1:- One deformed copper jacketed bullet having brushing
marks put in a cardboard box again put in a plastic container labelled
P.M. No.1400/16, Date: 18/7/16, Police Station:Shivur, Dt.
Aurangabad, Name: Nishikant Prabhunarayan Pande, Age/Sex-65 Yrs/
male, Contents: Bullet for ballistic examination marked, Ex. No.A-2.
Results of Analysis
Exhibit 1 is a deformed fired copper jacketed 7.65 cm pistol
bullet having brushing marks.
Exhibit - 22
6] Description of articles contained in the parcel:
Exhibit 1A & 1B:- Two cotton swab sucks put in a plastic container
labelled contents - Two swabs from pals fro detection of gun powder
marked Ex. No. B.
Exhibit 2A & 2B:- Two cotton swab sticks put in a plastic container
labelled contents - Two swabs from firearm entry wound fro detection
.
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of gun power marked Ex. No. C.
Exhibit 1 and 2 also labelled P.M. No. 1400/16, Date - 18/7/2016,
Police Station - Shivur, Tal. Vaijapur.
Name - Nishikant Prabhunarayan Pande, Age/Sex-35 yr Male
Results of Analysis
Nothing of note in relevance to the fired gunshot residues
(GSR) were detected on cotton swab sticks in Exhibit 1A and 1B.
Nothing of note in relevance to the fired gunshot residues
(GSR) were detected on cotton swab sticks in Exhibit 2A and 2B."
34. As discussed earlier while dealing with the circumstance
of homicidal death, the evidence of PW - 2 [Rajendra Narayan
Pathade] and PW - 18 [Ramhari Madhavrao Jadhav], the
Prosecution established that one empty cartridge was seized
from the spot of incident. Further, as discussed above the
evidence of PW - 14 [Dr. Vikas Madan Rathod], show that the
bullet was found in the left side of supra-tentorial region. His
further evidence show that the said bullet was preserved for
Forensic Analysis. The cross-examination could not create
even slightest dent in the above discussed evidence.
35. The above discussed evidence available on record frmly
established that the bullet found in the dead boy and empty
cartridge seized from the spot of incident where body was lying
were fred from the frearm [Article - T], which was in working
condition, discovered and seized at the instance of Appellant /
Accused No.5.
[IV] Presence of Accused in Shivoor area in between
9.00 p.m. to 9.30 p.m. as established by SIM detail
record, call detail record and tower location
36. Through the evidence of PW - 16 [Dattaram Shantaram
Angre], the Prosecution has brought on record the call details
of the mobile numbers of Accused No.4 [Bhaginath Vishwanath
Shinde], Appellant /Accused No.5 [Samsher Sardar Pathan]
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and Deceased. The evidence of this witness show that he was
working as the Nodal Offcer with the Vodafone - Idea Company
at Pune. His company preserved all the data relating to calls
from Vodafone - Idea SIM vide letter dated 05/10/2016. The
offce of Superintendent of Police, Aurangabad called the call
detail records of the following SIM numbers :-
[1] 8806083620
[2] 9763298832
[3] 9850645160
Accordingly, the call details of the said three [3]
numbers were provided to the offce of Superintendent of Police,
Aurangabad.
37. His further evidence show that as per the record of the
company, the SIM number - 8806083620 was registered in the
name of Bhaginath Vishwanath Shinde [Accused No.4],
resident of Sant Nagar, Shirdi and the application of the
registered owner was at Exhibit - 178.
The SIM number - 9763298832 was registered in
the name of Samsher Sardar Pathan [Appellant / Accused
No.5], resident of Islamnagar, Shirdi and the Application of the
registered owner was at Exhibit - 179.
The SIM number - 9850645160 was registered in
the name of Deceased - Babbu Prabhunarayan Pande and the
Application of the registered owner was at Exhibit - 180.
38. The call details of the said three [3] numbers were
brought on record in his evidence at Exhibit - 181. The lists
issued by his company relating to tower location of the said
three [3] SIM cards were brought on record at Exhibit - 183.
His evidence show that the certifcate under Section 65-B of the
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Evidence Act in respect of the said three [3] SIM numbers was
brought on record at Exhibit - 182.
39. His further evidence show that the call record dated
16/07/2016 for the SIM number - 8806083620 [Accused No.4]
and SIM number - 9763298832 [Appellant / Accused No.5] for
09.36 p.m. was under the tower location of Gat No.1149, village
Shivoor, Tq. Vaijapur, Dist. Aurangabad. His further evidence
show that the call record dated 16/07/2016 for the SIM number
- 9850645160 [Deceased] for 09.12.40 p.m. was under the
tower location of Gat No.1149, village Shivoor, Tq. Vaijapur, Dist.
Aurangabad. His further evidence show that the call record
dated 16/07/2016 for the SIM numbers of Accused Nos.4 and 5
for 09.36.42 p.m. was under the tower location of open farm of
Mr. Bodkhe, Shivoor Bungalow Corner, Shivoor village, Tq.
Vaijapur, Dist. Aurangabad.
40. Though this witness was cross-examined, nothing
material has come so as to create any dent in his above
discussed evidence. The issuance of 65-B certifcate by the then
Nodal Offcer Mr. Sachin Shinde will not affect his evidence, as
the certifcate is of the above referred service provider and the
evidence of PW - 16 [Dattaram Shantaram Angre] show that he
was in a position to identify the signature of the then Nodal
Offcer and the call detail records were taken from the computer
of the offce of the said service provider. Further, the merger of
the Vodafone and Idea companies in August - 2018 will not
affect the credibility of the evidence of this witness and the
above discussed documentary evidence brought on record in
his evidence. Though it has come in his cross-examination that
in rural areas, the range of mobile tower can be upto 4 to 5 k.m.
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surrounding the tower and from the tower location, the exact
place of the mobile user cannot be ascertained, it is frmly
established from his evidence that in the evening of 16/07/2017,
the tower location of the SIM numbers registered in the name of
Accused Nos.4 and 5 and Deceased were under the same tower
location in between 09.12.40 to 09.36 p.m. It is nowhere the
case of the Appellants that the said SIM numbers were not used
by them or were not registered in their names.
41. Though the Prosecution has examined the Nodal Offcer of
Bharti Airtel Company as PW - 17 [Mandar Bhupendra
Godambe] and brought on record the call details and tower
location in respect of SIM numbers - 9970676280, 9175514592
and 7058207207, his evidence nowhere show that the
applications and related documentary evidence were brought
on record to establish as to who obtained or secured the said
SIM numbers as is done in the evidence of PW - 16 [Dattaram
Shantaram Angre]. Thus, the evidence of PW - 17 [Mandar
Bhupendra Godambe] was of no assistance to the Prosecution.
[V] The disclosure statement of Accused No.1 leading
to show the place where he threw the clothes,
diary and mobile hand set of Deceased
42. On this point, the Prosecution has examined PW - 5 [Amol
Sukhdeo Dehade] as the panch witness. In his evidence, he
deposed that on 20/07/2016, he was called by the Police at
Shivoor Police Station. Three Accused were in the lockup.
Accused No.1 [Durgaprasad Omprakash Mishra] stated that the
clothes, mobile and diary of Deceased will have to be searched
in Godavari river. The memorandum of his statement was
recorded vide Exhibit - 94. Thereafter, all the three Accused,
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Police Offcers and panchas left the Police Station in the police
vehicle towards Godavari river. At the instance of Accused No.1
[Durgaprasad Omprakash Mishra], the vehicle was stopped at
one place. All the Accused, Police Offcers and panchas alighted
the Jeep and proceeded towards the river at the instance of
Accused No.1 [Durgaprasad Omprakash Mishra]. However, they
could not fnd anything from the said place. The panchnama to
that effect was drawn vide Exhibit - 95.
43. The evidence of PW - 21 [ Harsh Vishwanath Potdar] show
that Accused No.1 [Durgaprasad Omprakash Mishra] made
disclosure statement to show the clothes and articles of
Deceased, which were thrown in the Godavari river. The
memorandum at Exhibit - 94 was prepared. Thereafter,
Accused No.1 led them to the bank of river Godavari, where he
pointed out a place, which was searched with the help of
swimmers, however, no article was found and panchnama at
Exhibit - 95 to that effect was prepared.
44. It is clear from the above discussed evidence that nothing
was discovered at the instance of Accused No.1 [Durgaprasad
Omprakash Mishra] and therefore, the said evidence will not be
relevant under Section 27 of the Evidence Act.
[VI] Presence of the Accused at the Hotel of PW - 13
[Yogesh Dnyaneshwar Teke] at Vaijapur at 10.30
p.m. on 16/07/2016
45. The evidence of PW - 13 [Yogesh Dnyaneshwar Teke]
show that he was having the Hotel at Yevla Road, Vaijapur. In
between 10.15 p.m. and 10.30 p.m. on 16/07/2016, fve [5]
persons had come to his Hotel in one four-wheeler. They
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Criappeal-887-2022 and 267-2024.odt
ordered the food and while eating, they shouted, therefore, he
went near them. After having food, those persons went away.
His further evidence show that his evidence that he heard the
shouts from the said fve [5] persons was an omission. The said
omission is proved in the evidence of PW - 21 [Harsh
Vishwanath Potdar], who recorded his statement. This is the
material omission. There is nothing in his evidence to show that
he had any reason to keep in mind the features of the said fve
[5] persons so as to identify them at later point of time. It is
nowhere his case that he was the only one in his Hotel to serve
the customers. His evidence also do not show that at that point
of time, there were no other customers except those fve [5]
persons so as to register in his mind their features for
identifcation purpose at later point of time.
46. His further evidence show that he identifed Accused
Nos.1 and 5 in the TIP and thereafter in the Court while
deposing. His further evidence show that the TIP was conduced
on 06/10/2016. From the evidence of PW - 15 [ Deepali
Shankar Khedekar], who was the Nayab Tahsildar at the
relevant point of time, show that the TIP was conducted on
06/10/2016. The evidence of Investigating Offcer show that the
Accused were arrested by 19/07/2016. This shows that the TIP
was conducted after eighty [80] days from the date of arrest.
This delayed TIP further affects the identifcation of the
Accused persons by PW - 13 [Yogesh Dnyaneshwar Teke], as
the possibility of Accused being seen by the said witness after
their arrest cannot be ruled out.
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47. In view of the above discussion, the identifcation of the
Accused by PW - 13 [Yogesh Dnyaneshwar Teke] is required to
be seen with doubt and is kept out of consideration.
[VII] Seizure of Indica Car and motorcycle used
in the crime
48. PW - 8 [Bhausaheb Sahebrao Jagtap] was examined as
the panch witness by the Prosecution on the point of seizure of
four-wheeler and motorcycle on 20/07/2016. However, the said
witness did not support the case of Prosecution. True it is that,
PW - 21 [Harsh Vishwanath Potdar] deposed of seizure of four-
wheeler from the house of one Amol Borade. Firstly, the said
person - Amol Borade is not examined by the Prosecution.
Secondly, the Prosecution failed to establish as to how the
seizure of the said four-wheeler would be incriminating against
the Appellants.
49. Further, the evidence of PW - 21 [Harsh Vishwanath
Potdar] show that on 20/07/201, he seized one motorcycle from
the house of Accused No.2 [acquitted by the learned Trial
Court]. The panch witness i.e. PW - 9 [Manoj Bhausaheb
Kulhal] examined to prove the said seizure did not support the
case of Prosecution. There is no evidence to connect the
Appellants with the seizure of the said motorcycle. Thus, it
cannot become an incriminating circumstance against the
Appellants.
[VIII] Seizure of clothes of the Accused and Forensic
Reports
50. The evidence of Investigating Offcers i.e. PW - 19
[Dhananjay Ramrao Farate] and PW - 21 [Harsh Vishwanath
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Potdar] show that during the course of investigation, the
clothes of the Accused persons came to be seized under the
panchnama at Exhibits - 85, 86 and 87. The evidence of PW -
21 [Harsh Vishwanath Potdar] show that the clothes of Accused
were referred to the Forensic Science Laboratory on
26/09/2016. The Prosecution has brought on record the
Chemical Analysis Report in respect of the articles / clothes
seized from the Accused persons at Exhibits - 31, 32 and 267.
The aforesaid CA reports show that the blood group from
Exhibit No.3 - blood stained gauze piece having the name of
Deceased could not be determined as the results were
inconclusive. True it is that the blood group of the blood stains
found on the handkerchief, which was tied on the head of
Deceased, was found to be of 'B' Group, that by itself would not
be suffcient to hold that the blood group of Deceased was 'B', as
it cannot be said with all certainty that the blood found on the
said handkerchief was only and only that of Deceased.
51. The above referred report show that the hair found in the
car were stained with blood group of 'B' and rexine piece was
having human blood. As the blood group of Deceased was
inconclusive, the said result of analysis in the CA report will be
of no assistance for the Prosecution that the said blood was that
of Deceased and none other.
52. The evidence on record go to show that the blood stains of
blood group 'B' was found on the clothes seized from Accused
Nos.3 and 4. The said Accused are acquitted by the learned
Trial Court. The CA report show that no blood was detected on
the clothes of the Appellants i.e. Accused Nos.1 and 5. Thus,
this circumstance in respect of seizure of the clothes from the
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Appellants would be of no assistance to the Prosecution.
[XI] Motive for the Accused to commit murder of
Nishikant
53. Scrutiny of the evidence on record show that there is no
consistency on the point of motive. According to PW - 3
[Shashikant Prabhunarayan Pande], who was the brother of
Deceased, Accused No.3 [acquitted Accused] owed Rs. 65000/-
from them and he was not paying the same. Except his bare
words, there is nothing to corroborate his said testimony that
there were fnancial transactions between Deceased and
acquitted Accused No.3 [Rasul Ayub Shaikh].
54. According to PW - 21 [Harsh Vishwanath Potdar],
Investigating Offcer, the motive behind the Crime was ransom.
Admittedly, there is no iota of evidence that the Appellants
demanded any ransom from the family members of Deceased.
Thus, the said bare version of Investigating Offcer will not be
suffcient.
55. As discussed earlier, two gold rings came to be seized at
the instance of Appellant / Accused No.5 - Samsher Sardar
Pathan pursuant to his disclosure statement. There is no
evidence to show that the said gold rings were that of Deceased.
The evidence of PW - 3 [Shashikant Prabhunarayan Pande],
who was the brother of Deceased, nowhere show that the said
gold rings were confronted to him for identifcation. Thus, the
said seizure will not help the Prosecution to establish that the
motive was to rob Deceased.
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56. The conspectus of the above discussion is that the
Prosecution has frmly established the following circumstances
which are conclusive in nature, against the Appellants, who
were the original Accused Nos.1 and 5.
[1] Deceased Nishikant was missing from the evening
of 16/07/2016, and on 17/07/2016 he was found died
homicidal death.
[2] On 16/07/2016 in the evening, Deceased Nishikant
was lastly seen in the company of Accused No.1
[3] Disclosure statement of Accused No.5 leading to
discovery and seizure of Pistol article T and live
cartridges.
[4] Ballistic reports show that bullet found in the body
of Deceased Nishikant was fred from Pistol article - T
seized at the instance of Accused No.5.
Judgments cited by the learned Advocates for the Appellants
and learned APP
i] Judgments cited by the learned Advocates for the Appellants :-
(a) In Shailendra Rajdev Pasvan and Ors. Vs. State of
Gujarat ; 2019 DGLS (SC) 1631, the following observations are
made in Paragraph No.14 :-
"14. Another important aspect to be considered in a case resting on
circumstantial evidence is the lapse of time between the point when the
Accused and deceased were seen together and when the deceased is
found dead. It ought to be so minimal so as to exclude the possibility of
any intervening event involving the death at the hands of some other
person. In the case of Bodh Raj Alias Bodha v. State of Jammu and
Kashmir, (2002) 8 SCC 45, Rambraksh v. State of Chhattisgarh, (2016)
12 SCC 251, Anjan Kumar Sharma v. State of Assam, (2017) (6) SCALE
556 following principle of law, in this regard, has been enunciated:
The last seen theory comes into play where the time gap
between the point of time when the Accused and deceased
were seen last alive and when the deceased is found dead is
so small that possibility of any person other than the Accused
being the author of crime becomes impossible. It would be
difficult in some cases to positively establish that the deceased
was last seen with the Accused when there is a long gap and
possibility of other persons coming in between exists. In the
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absence of any other positive evidence to conclude that
Accused and deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in those cases."
(b) In Laxman Prasad @ Laxman Vs. The State of Madhya
Pradesh of the Supreme Court of India, in Criminal Appeal
No(S).821/2012, it is observed in Paragraph Nos.3 and 4 as
follows:
"3. We do not find such conclusion of the High Court to be strictly in
accordance with law. In a case of circumstantial evidence, the chain has
to be complete in all respects so as to indicate the guilt of the accused
and also exclude any other theory of the crime. The law is well settled on
the above point. Reference may be had to the following cases:
(i) Sharad Birdhichand Sarda v. State of Maharashtra1;
(ii) Sailendra Rajdev Pasvan v. State of Gujarat Etc.2
4. Thus, if the High Court found one of the links to be missing and
not proved in view of the settled law on the point, the conviction ought
to have been interfered with."
ii] Judgments cited by the learned APP :-
(a) Rohtash Kumar Vs. State of Haryana; (2013) 14 SCC 434,
wherein, the following observations are made in respect of
motive and last seen together theory:-
"Motive
28. The evidence regarding the existence of a motive which operates in
the mind of the accused is very often very limited, and may not be
within the reach of others. The motive driving the accused to commit
an offence may be known only to him and to no other. In a case of
circumstantial evidence, motive may be a very relevatn factor. However,
it is the perpetrator of the crime alone who is aware of the
circumstances that prompted him to adopt a certain course of action,
leading to the commission of the crime. Therefore, if the evidence on
record suggests adequately, the existence of the necessary motive
required to commit a crime, it may be conceived that the accused has in
fact, committed the same.
Last seen together theory
32. In cases where the accused was last seen with the deceased victim
(last seen together theory) just before the incident, it becomes the duty
of the accused to explain the circumstances under which the death of
the victim occurred.
33. In Trimukh Maroti Kirkan v. State of Maharashtra 30 this Court
held as under:
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"22. Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in leading
evidence to show that shortly before the commission of crime
they were seen togetehr or the offence takes place in the
dwelling home where husband also normally resided, it has
been consistently held that if the accused does not offer any
explanation how the wife received injuries or offers an
explanation which is found to be false, it is a strong
circumstance which indicates that he is responsible for
commission of the crime."
34. Thus, the doctrine of "last seen together" shifts the burden of
proof on the accused, requiring him to explain how the incident had
occurred. Failure on the part of the accused to furnish any explanation
in this regard, would give rise to a very strong presumption against
him."
(b) State of Rajasthan Vs. Kashi Ram; (2006) 12 SCC 254,
wherein, the following observations are made in Paragraph
Nos.19, 23 and 24:-
"19. Before adverting to the decisions relied upon by the counsel for
the State, we may observe that whether an inference ought to be
drawn under Section 106 IPC is a question which must be determined
by reference to proved. It is ultimately a matter of appreciation of
evidence and, therefore, each case must rest on its own facts.
23. It is not necessary to multiply with authorities. The principle
is well settled. The provisions of Section 106 of the Evidence Act
itself are unambiguous and categoric in laying down that when any
fact is especially within the knowledge of a person, the burden of
proving that fact is upon him. Thus, if a person is last seen with the
deceased, he must offer an explanation as to how and when he parted
company. He must furnish an explanation which appears to the Court
to be probable and satisfactory. If he does so he must be held to have
discharged his burden. If he fails to offer an explanation on the basis
of facts within his special knowledge, he fails to discharge the burden
cast upon him by Section 106 of the Evidence Act. In a case resting
on circumstantial evidence if the accused fails to offer a reasonable
explanation in discharge of the burden placed on him, that itself
provides an additional link in the chain of circumstances proved
against him. Section 106 does not shift the burden of proof in a
criminal trial, which is always upon the prosecution. It lays down the
rule that when the accused does not throw any light upon facts which
are specially within his knowledge and which could not support any
theory or hypothesis compatiable with his innocence, the Court can
consider his failure to adduce any explanation, as an additional link
which completes the chain. The principle has been succinctly stated
in Naina Mohd., Re.5
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24. There is considerable force in the argument of counsel for the
State that in the facts of this case as well it should be held that the
respondent having been seen last with the deceased, the burden was
upon him to prove what happened thereafter, since those facts were
within his special knowledge. Since, the respondent failed to do so, it
must be held that he failed to discharge the burden cast upon him by
Section 106 of the Evidence Act. This circumstance, therefore,
provides the missing link in the chain of circumstances which prove
his guilt beyond reasonable doubt.
(c) State of Rajasthan Vs. Thakur Singh; (2014) 12 SCC 211,
wherein, following observations are made in Paragraph No.22:
"22. Th law, therefore, is quite well settled that the burden of proving
the guilt of an accused is on the prosecution, but there may be certain
facts pertaining to a crime that can be known only to the accused, or
are virtually impossible for the prosecution to prove. There facts need
to be explained by the accused and if he does not do so, then it is a
strong circumstance pointing to his guilt based on those facts."
57. Coming to the case in hand, as regards the proximity of time
between the last seen together and death is concerned, the
evidence of PW - 14 [Dr. Vikas Madan Rathod], who performed
the postmortem show that on 26/09/2016, the Shivoor Police
Station sought his opinion relating to the frearm and probable
time of death of Nishikant Pande. He responded to the said
communication vide Exhibit - 166 and opined that opinion of
ballistic expert be taken in respect of query pertaining to the
frearm and opined that death of Nishikant Pande might have
caused within 36 to 40 hours before the postmortem
examination. Non mentioning of the probable time of death in
the postmortem would not lead to discrediting his evidence in
view of the previous communications at Exhibit - 166. His
evidence show that the postmortem was performed on
18/07/2016 between 11.15 a.m. to 01.05 p.m.
58. The evidence of PW - 21 [Harsh Vishwanath Potdar], the
Assistant Superintendent of Police posted at Vaijapur at the
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relevant time, show that he corroborate the above version of
PW - 14 [Dr. Vikas Madan Rathod] in respect of queries /
opinion issued vide Exhibit - 166. From this evidence available
on record, the Prosecution has established that Nishikant
Pande died homicidal death within 36 to 40 hours before the
postmortem.
59. The evidence of PW - 3 [Shashikant Prabhunarayan
Pande], as discussed above, show that in the CCTV footages
Deceased was seen in the company of Appellant No.1 between
17.10 to 17.21 on 16/07/2016. It is further clear from his
evidence that Appellant No.1 and Deceased boarded the car and
the car went ahead. Further, the evidence of PW - 22 [Sachin
Ashok Shete], CCTV In-charge, who viewed the said CCTV
footages, though could not identify Appellant No.1 and
Deceased, which he had no reason to identify, show that after
the two persons boarded the car, the car proceeded further.
From this evidence on record, it is clearly established by the
Prosecution that Deceased and Appellant No.1 were together
and both left in the four-wheeler from Shani-Shingnapur at
17.21.53 hrs. on 16/07/2016.
60. As seen from the evidence discussed while dealing with
the circumstance of homicidal death, the dead body of
Nishikant Pande was found in the said Saiprasad Dhaba / Hotel
around 10.00 a.m on the very next day i.e. 17/07/2016. This
can be seen from the cross-examination of PW - 1 [Ashok
Eknath Jadhav], Police Patil, wherein, it has come that he
received the phone call of his son at about 10.00 a.m. informing
of dead body at the Dhaba / Hotel and thereafter, he and Police
left for the said spot at about 11.00 a.m.
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61. There is no evidence, even slightest, to show that after
Deceased left with the Appellant No.1 as discussed above in the
car, Deceased was seen in the company of any other person. The
Appellant No.1 [Durgaprasad Omprakash Mishra] offered no
explanation that he had parted company with the Deceased at
any stage. He simply denied the incriminating circumstances
put to him. This becomes additional incriminating circumstance
against him.
62. As regards the conclusive circumstance established
against the Appellant - Samsher Sardar Pathan i.e. Accused
No.5, he denied the incriminating circumstances put to him.
63. As seen from the answers given by the Appellants to the
incriminating circumstances put to them under Section 313 of
Cr.PC show that except denying the Prosecution's case, no
explanation is offered by them.
64. From the above discussed conclusive circumstances, we
see no merit in the submission of the learned Advocate for the
Appellants that on the basis of same evidence, co-accused have
been acquitted.
65. In the cases based on circumstantial evidence, motive
assumes importance. However, it is not always possible for the
Prosecution to establish the motive. The motive is always in the
mind of the Accused persons. In the light of settled legal
position, failure to establish the Motive behind the Crime by
itself will not be fatal for the Prosecution, if other circumstances
are cogently established. The failure to prove the motive of the
offence does not signify the non-existence of the Crime. Failure
to establish the motive for the Appellants to commit the Crime
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will not be fatal in the light of the conclusive nature of
circumstances proved by the Prosecution against the
Appellants. The proved circumstances unerringly connect the
Appellants with the commission of the Crime, living no room for
reasonable doubt. The proved circumstances are clear and
unambiguous.
66. However, the evidence on record do not show the
necessary ingredient for the offence punishable under Sections
120-B and 364 of IPC. There is also no evidence to show that
the prior Sanction as mandated under Section 39 of the Arms
Act was obtained for Prosecution under the provisions of Arms
Act. Thus, the conviction recorded by the learned Trial Court
with the aid of and for the offence punishable under Section
120-B and for the offence punishable under Section 364 of IPC
and for the offence punishable under Section 3 r/w 25 of the
Arms Act and sentence imposed in that regard would be
unsustainable.
67. The proved circumstances discussed above are complete
and consistent with the only conclusion that the Appellants
have committed the offence punishable under Section 302 of
IPC. The proved circumstances are completely inconsistent
with the innocence, but consistent with the hypothesis that the
Appellants have committed the murder of Deceased. The
conclusive circumstances as discussed above clearly establishes
that the Appellants were Participis Criminis. Thus, the
conviction of the Appellants is accordingly modifed/altered to
one under Section 302 r/w 34 of IPC. Hence, the following
order:
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ORDER
[i] The Criminal Appeals are partly allowed.
[ii] The conviction of the Appellants for the offence punishable under Sections 364 and 120-B of IPC and for the offence punishable under Section 3 r/w 25 of the Arms Act, is quashed and set aside.
[iii] The Appellants are acquitted for the offence punishable under Sections 364 and 120-B of IPC and for the offence punishable under Section 3 r/w 25 of the Arms Act.
[iv] The conviction of the Appellants for the offence punishable under Section 302 of IPC is confrmed with the aid of Section 34 of IPC and sentence imposed on the Appellants by the learned Trial Court for life imprisonment with fne of Rs.3000/-, in default, to suffer rigorous imprisonment for six [6] months is maintained.
68. Criminal Appeals are accordingly disposed of.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) Sameer Signed by: Md. Sameer Q. Designation: PA To Honourable Judge Date: 14/08/2024 15:34:52