Bombay High Court
Hanumant S/O. Hausrao Kavchale vs The State Of Maharashtra on 16 April, 2025
Author: R.G. Avachat
Bench: R.G. Avachat
2025:BHC-AUG:10981-DB
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
:: 1 ::
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.174 OF 2018
Amir Bhaiya Sayed
Age 20 years, Occ. Agriculturist,
R/at Shirapur, Tal. Ashti,
District Beed ...APPELLANT
VERSUS
The State of Maharashtra
(Copy to be served on P.P.
High Court of Judicature of Bombay,
Bench at Aurangabad) ...RESPONDENT
.......
Mr. S.J. Salunke, Advocate for appellants
Mrs. K.B. Patil Bharaswadkar, A.P.P. for respondent
.......
WITH
CRIMINAL APPEAL NO.278 OF 2019
Hanumant s/o Hausrao kavchale,
Age 22 years, Occ. Agriculture,
R/o Shirpur, Tq. Ashti, Dist. Beed
(At present as in Central Prison,
at Nashik) ...APPELLANT
VERSUS
1) The State of Maharashtra
(Copy of respondent to be served
on Public Prosecutor, High Court
of Judicature of Bombay,
Bench at Aurangabad)
2) Meena w/o Balasaheb Chavan,
Age major, Occ. Household,
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
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R/o Pimparkhed, Tq. Ashti,
Dist. Beed. ...RESPONDENTS
.......
Mr. S.J. Salunke, Advocate for appellants
Mrs. K.B. Patil Bharaswadkar, A.P.P. for respondent
.......
WITH
CRIMINAL APPEAL NO.833 OF 2022
Ajit Mahadeo Ithape
Age 29 years, Occu. Agri,
R/o Chincholi, Tq. Ashti,
Dist. Beed ...APPELLANT
VERSUS
The State of Maharashtra
through the Police Inspector,
Ashti Police Station,
Tq. Ashti, Dist. Beed ...RESPONDENTS
.......
Mr. Sanjiv Deshpande, Senior Advocate with
Mr. A.L. Kanade, Advocate for appellant
Mrs. K.B. Patil Bharaswadkar, A.P.P. for respondent
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 5th March, 2025
Date of pronouncing judgment : 16th April, 2025
J U D G M E N T (PER : R.G. AVACHAT, J.) :
This group of three appeals takes exception to a
judgment and order of conviction and consequential sentence,
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
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dated 18/1/2018, passed by the Court of Additional Sessions
Judge, Beed in Sessions Case No.61/2016. The appellants
herein were the accused in the said Sessions Case. They
have been convicted and consequently sentenced for the
offence of murder and causing disappearance of evidence
thereof. The details of their conviction and consequential
sentences is given in tabular form below :
Sr. Sections Conviction & Sentence
No.
1 302 r/w 120-B Appellants Hanumant & Ajit
IPC Imprisonment for life and fine of
Rs.10,000/- each, in default R.I. for 4
monthsAppellant Amir
Imprisonment for life and fine of
Rs.1000/-, in default R.I. for 4
months.
2 201 r/w 34 IPC R.I. for 3 years and fine of Rs.1000/-
each, in default, R.I. for 2 months
Both the substantive sentences have been directed to run
concurrently.
Along with the appellants, one more person
(original accused No.4) was tried. He stood acquitted. Neither
the State nor the victim preferred appeal against his acquittal.
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
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2. The facts, in short, giving rise to the appeals are as
under :
Balasaheb Chavan (deceased) was a resident of
Pimparkhed. He was agriculturist by profession. Besides
agriculture, he was in the business of a husk and money
lending as well. He did not hold licence for money lending. He
had lent money to number of persons. Since his second
daughter was of marriageable age, in the year 2016, he was in
need of money. He, therefore, started asking the borrowers to
pay back his money. The appellants were said to have been
indebted to him. With a view to avoid repayment of loan
amount, the appellants conspired to eliminate him.
Deceased Balasaheb left the house in the
afternoon on 10/1/2016. He informed his family members that
he was going with Hanumant (Accused No.1, appellant in
Criminal Appeal No.278/2019) to the place of his in-laws for
purchase of husk. He also informed that, if there was late for
him, he would stay overnight at the place of in-laws of
Hanumant. Both Hanumant and deceased went to one Dhaba,
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
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“Ranmala”. The appellants Ajit and Amir joined them there.
Some of them did take wine and meal. Appellants Ajit and
Amir went back and returned with four-wheeler of appellant
Hanumant. In the meanwhile, both the deceased and
appellant Hanumant went towards Karjat on the motorcycle of
the deceased. On way, the four got together. Again they went
to one hotel. Bought liquor bottle and consumed. Then all the
appellants took Balasaheb to a secluded place. He was
strangled with a seat belt of the car. He was assaulted with.
The four-wheeler was run over his head. Then his dead body
was taken and thrown by the side of Waki-Kanadi Road in the
night. The police patil of the village noticed the dead body. A
report to that effect was made to the Police Station Ashti.
3. The police officer visited to the spot. Inquest
panchanama was drawn. The mortal remains of Balasaheb
was subjected to autopsy. The medical officer opined the
deceased died of strangulation and severe head injury with
multiple injuries all over body.
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
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4. P.W.1 Satish, brother of the deceased was
informed. He lodged the F.I.R. (Exh.51), alleging the
appellants to have killed his brother. The appellants were
arrested. Clothes on the person of appellants were seized
pursuant to the disclosure statement made by appellants
Hanumant and Amir. A seat belt was recovered pursuant to
the disclosure statements made by appellant Ajit. Scorpio
vehicle was seized. The officials from Forensic Science
Laboratory (FSL), Aurangabad inspected the vehicle from
inside. They collected pieces of seat of the vehicle and other
items of the vehicle. Clothes on the person of the deceased
were also seized. The appellant Hanumant took the
investigating officer to the place whereat the deceased was
done to death. From that place, liquor bottles and other
articles were seized besides earth. All the seized articles were
forwarded to FSL. CCTV footages captured in the CCTV
installed at liquor shop/s were obtained. Hart Disk was also
taken charge of. Cell phones were seized. CDRs. And SDRs.
Were obtained. Upon completion of the investigation, the
appellants were proceeded against by filing a charge sheet.
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278/2019 & 833/2022
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5. The Trial Court framed the charge. The appellants
pleaded not guilty. Their defence was of false implication.
6. To bring home the charge, the prosecution
examined 22 witnesses and produced in evidence certain
documents.
7. The Trial Court, on appreciation of the evidence in
the case, convicted and consequently sentenced the
appellants as stated above.
8. The appellant Ajit was reported to have absconded
from jail. Other appellants are behind the bars for little over 9
years. Initially we were not inclined to hear the appeal of the
absconding appellant Ajit. Later on, we allowed learned Senior
Advocate to work out the appeal. Learned Senior Advocate
relied on the judgment of the Apex Court in case of Dhananjay
Rai @ Guddi Rai Vs. State of Bihar, 2022 LiveLaw (SC) 597,
wherein it has been observed :
“8. The anguish expressed by the Division
Bench about the brazen action of the appellant of
absconding and defeating the administration of
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
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justice can be well understood. However, that is
no ground to dismiss an appeal against
conviction, which was already admitted for final
hearing, for non-prosecution without adverting to
merits. Therefore, the impugned judgment will
have to be set aside and the appeal will have to be
remanded to the High Court for consideration on
merits.”
9. Learned Advocates for the appellants would submit
that, the case was based on circumstantial evidence. They
relied on the principles enunciated in the case of Sharad
Birdichand Sarda Vs. State of Maharashtra (1984 CJ
(SC) 262). They would also submit that, even the case of
the prosecution was accepted as it is, there was a long gap
between the appellants to have been last seen inthe
company of the deceased and finding of the dead body.
Relying on the judgment of the Apex Court in case of
Suresh Chandra Tiwari & anr. Vs. State of Uttarakhand,
2024 DGLS (SC) 1199, the learned Advocates would
submit that, in the factual backdrop, the appellants could
not be expected to offer explanation as to when did they
part with the company of the deceased or what they did with
him. It was further submitted that, most of the witnesses
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
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were the relatives of the deceased. One of the witnesses
was detained by the police officials on suspicion. His
evidence would, therefore, could not be said to be
voluntary. As regards the evidence in the nature of CCTV
footage, the learned Advocates would submit that there was
no Section 65-B Certificate in proof of secondary evidence
in the nature of screen shots obtained in a DVD or pen
drive. The original Hard Disk was never played before the
Court. So far as recovery of clothes, seat belt and the
vehicle are concerned, the learned Advocates would submit
that, these articles were found at open places accessible to
one and all. The seat belt could not be connected with the
seized vehicle. While the articles were seized, the seizure
panchanamas do not demonstrate the articles to have been
stained with blood. The seized articles were sent to FSL
very late. There was no evidence about these articles to
have been properly seized and kept in safe until they were
submitted to FSL. The learned Advocates meant to say that
the possibility of tampering with the seized articles could not
be ruled out. They would further submit that, the blood
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
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group of deceased and two of the appellants was one and
the same i.e. “A”. There was no evidence to indicate that
the clothes seized were on the person of the appellants at
the time the crime was said to have been committed. The
learned Advocate for the appellants Hanumant and Amir
would submit that, the investigating officer has admitted in
so many words that these persons did not avail hand loan
from the deceased. These appellants did not have motive
to eliminate the deceased Balasaheb. It was also submitted
that, the diaries maintained by the deceased have not been
duly proved. None of the prosecution witness pointed out
any entry therein indicating appellant Ajit to have raised
loan from the deceased. It has also not been proved that,
the entries were in the handwriting of the deceased. The
learned Advocates made submissions threadbare to
ultimately submit for allowing the appeals.
10. The learned A.P.P. would, on the other hand,
submit that, there is voluminous evidence to indicate the
appellants and the deceased were together on 10 January.
They visited the Hotel Ranmala. Some of them wined and
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
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dined there. The deceased had informed his widow and
other family members that he would be going to the place of
in-laws of appellant Hanumant for purchase of husk and if
there was late, he would stay overnight there. The CCTV
footages indicate the deceased and appellants Hanumant
and Amir were together until 7.30 p.m. They were seen
going on motorcycle of Hanumant. The medical officer has
opined that the death took place beyond 12 hours of the
post mortem examination. The time of death indicate that
at the material time the appellants were in the company of
the deceased. The appellants, therefore, owe explanation
as to when did they part with company of the deceased or
what they did with him. The appellants made disclosure
statement, pursuant to which the clothes, seat belt and the
vehicle came to be seized. The seized articles were
stained with blood of the Group “A”. The blood of the
deceased was of the very group. The appellant Hanumant
made a disclosure statement and pointed out the crime
scene wherefrom liquor bottles were seized besides other
articles. The DVD was sent to FSL along with photographs.
Cri.Appeal No.174/2018 with
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The FSL report indicate the vehicle of the deceased was
seen at the liquor shop. The photographs of appellants
Hanumant and Amir matched with the persons appearing in
the scene captured in the DVD. The learned A.P.P. would
further submit that, the CDRs. and SDRs. vouch for the
prosecution case. The tower location indicate the appellant
Hanumant was in the vicinity at the crime scene and at the
place where the dead body was dumped. In the
circumstances, the appellants owed explanation. Their
silence and mere denial go a long way to add to the
prosecution case. According to learned A.P.P., although
some of the prosecution witnesses were related to the
deceased, they were natural witnesses. Their evidence
cannot be disbelieved merely on the ground of being
relatives of the deceased. According to learned A.P.P., no
interference with the impugned order of conviction and
consequential sentences is warranted. She, therefore,
urged for dismissal of the appeals.
11. Considered the submissions advanced. Perused
the judgment impugned herein. Since the case is based on
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
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circumstantial evidence, the following circumstances were
sought to be proved, to bring home the charge.
(1) Homicidal death,
(2) Motive,
(3) Last seen together,
(4) Recoveries pursuant to disclosure statements,
(5) CCTV footages,
(6) CDRs/ SDRs and tower locations of cell phones.
12. In case of Sharad Sarda (supra), the Apex Court
observed :
“152. A close analysis of the 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
Sahebrao Bobade v. State of Maharashtra,
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
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(1973) 2 SCC 793, where the following
observations were made :
“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 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.”
Homicidal Death :-
13. It is not in dispute that the dead body of Balasaheb
was found by the side of the road by 10.00 in the morning. A
report to that effect was made to the concerned Police Station.
The police officers rushed to the spot. The inquest
Cri.Appeal No.174/2018 with
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panchanama (Exh.52) was drawn on the spot. Mortal remains
of Balasaheb were sent to the hospital for autopsy. P.W.17 Dr.
Vishal conducted the autopsy. The autopsy report (Exh.118)
does indicate number of injuries were noticed on the person of
the deceased. He died due to strangulation. The deceased
met with homicidal death is not disputed before us.
Motive :
14. The deceased was an agriculturist. Besides
agriculture, he was in the business of husk. He, however, also
said to have been lending money on interest. P.W.1 Satish,
brother of the deceased, P.W.13 Meena (widow of the
deceased) and even his son-in-law P.W.7 Sanjay testified that,
the deceased would lend money for interest. Since his
daughter was of marriageable age, he was in need of money.
He had, therefore, started asking his debtors to pay back the
amount advanced as loan. The investigating officer has,
however, admitted that, he did not get any evidence indicating
the appellants Hanumant and Gajanan had not received any
amount from the deceased as hand loan. Although three
pocket diaries were seized under the panchanama (Exh.67) in
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
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the presence of Ajinath (P.W.4), not a single prosecution
witness referred to any of the pages in those diaries to show
the names of appellants Ajit and Amir appearing therein as
persons to whom money was advanced. No witness testified
that the entries in the diaries were in the handwriting of the
deceased.
15. P.W.3 Bapu testified that, he would run a Bhishi
(Chit Fund). Appellant Ajit and acquitted accused Gajanan
were members of his Bhishi. He claimed to have heard both
the appellants Ajit and Gajanan to have talked inter-se
regarding the deceased to have been harassing appellant Ajit
for refund of money advanced by him. Ajit was also said to
have told Gajanan that the deceased would visit his poultry
farm and take away hens. He further testified that, both have
discussed of doing away with the deceased so that the amount
due to him would be saved.
16. According to P.W.3, the said incident took place
one year before the deceased was done to death. He did not
report the said incident to anyone else no sooner he heard
Cri.Appeal No.174/2018 with
278/2019 & 833/2022
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such talk between appellant Ajit and Gajanan. The evidence of
P.W.3 Bapu is, therefore, found to be unreliable.
17. P.W.1 Satish (brother of the deceased) lodged the
F.I.R. (Exh.51). Whatever narrated by him in the F.I.R. and in
his oral evidence was totally based on hear-say as regards the
deceased to have been in the company of the appellant
Hanumant and others since the day prior to the incident.
Admittedly, he lodged the F.I.R. on suspicion. True, he testified
that the deceased would lend money and the appellants had
borrowed money from the deceased. Except his bare words,
there is no evidence to reinforce the same. His evidence
would, therefore, be relevant only to the extent of setting the
criminal law in motion.
Last seen together :
18. P.W.2 Chandrakant testified that, he would run a
Tea Stall and do husk business. Deceased Balasaheb was his
partner in the husk business. He was in the company of the
deceased on 9/1/2016. At village Rui Nalkol they purchased
husk and sent to Sahajpur. Balasaheb (deceased) called him
Cri.Appeal No.174/2018 with
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to Dhanora on the next day. Since they proposed to go to
village Chobha Nimgaon for purchase of husk, he, therefore,
went to Dhanora by 10.00 in the morning. Balasaheb
(deceased) was not there. He received his phone call. He
gave the cell phone numbers of the deceased as 9420302924
and the other one with the last digits 5151. Deceased
Balasaheb asked him to come to Kada. He went there in
autorickshaw. He met the deceased Balasaheb. Both of them
went to the field of one Ishwar Thete. They could not purchase
husk there. Then they went to Rui Nalkol. Both of them went
to Hotel Radhai for lunch. It was 1.30 p.m. Deceased
received a phone call from Hanumant (A/1). After the call was
over, deceased Balasaheb told him that Hanumant (A/1) told
him that husk was available at cheaper rate at the village of his
in-laws in Karjat Taluq. He also informed him that if he got
delayed, he would stay at the place of in-laws of Hanumant
(A/1). Therefrom both of them went to Kada on the motorcycle
of the deceased. There they went to the house of one Dada
Shelke. He gave deceased Rs.18,600/- as a price of husk.
The deceased gave Rs.6600/- to Shelke and kept remaining
Cri.Appeal No.174/2018 with
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amount with him. Therefrom both of them went to the house of
the deceased. The deceased Balasaheb changed the clothes.
Told his wife that he was going with Hanumant (A/1). He
further testified that, both of them then went to “Ranmala
Dhaba” at Chincholi Phata. They reached there by 3.00 p.m.
Hanumant (A/1) and Ajit (A/2) along with one Atul Ekshinge
and owner of the Dhaba- Akash Adagale were present there.
They were taking meals. Hanumant (A/1) went on motorcycle
and returned with two liquor bottles (quarters). He and
deceased Balasaheb sat together. Both of them consumed
liquor. Appellant Ajit went to them. They discussed over
money transaction. After meals were over, the appellant
Hanumant and deceased together went on motorcycle. Then
appellant Ajit and Atul went to Kada on the motorcycle. He
was also with them. All of them took tea at the Tea Stall of one
Bokke Khod. Appellant Ajit received a phone call. He
immediately left after telling him that there was some problem
with hens (poultry). He left him (P.W.2 Chandrakant) at
Chincholi Phata and went to Dhanora. He then went to
Pimparkhed on the motorcycle of one Krishna Chaudhary. On
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the following day, he learnt about the dead body of Balasaheb
to have been found.
19. P.W.2 Chandrakant was subjected to a searching
cross-examination. He testified that, the deceased was his
relative. He was not on visiting terms with P.W.1 Satish
(brother of the deceased). Both Satish and Balasaheb were
residing separately. He was confronted with his police
statement, which was silent to record therein that he was friend
of Balasaheb (deceased) and would do business of husk in
partnership with him. He had no reason to visit “Hotel
Ranmala”. He did not see the appellant Hanumant and the
deceased Balasaheb on motorcycle on Karjat Road or at
Damalwadi. He admitted that, he did not have money for husk
business. He admitted that, he had never been in the
business of husk. He was prompt to state that he was not
doing such business independently. He meant to say that he
was doing the said business in partnership with deceased
Balasaheb. It was, however, suggested to him that, he was in
the company of the deceased up to 3.30 p.m. on 10/1/2016.
He further admitted that, thereafter he was not in his company.
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20. The appreciation of the evidence of this witness
indicate that he was the relative of the deceased. There is no
evidence to indicate that he was doing business of husk in
partnership with the deceased. It was, however, suggested to
him on behalf of the appellant Hanumant that, he was in the
company of the deceased until 3.30 p.m. This suggests this
appellant admits both of them to have been together at least
by that time.
21. P.W.13 Meena (widow of the deceased) testified
that, deceased and P.W.2 Chandrakant had come to the
house. The deceased changed the clothes and left. He
informed her that he was going to buy husk at the place of in-
laws of appellant Hanumant. He also told her that if there was
late, he would stay there overnight.
22. We have no reason to disbelieve the evidence of
the widow of the deceased. But, what can be proved by her
evidence is that the deceased left the house informing that he
would be in the company of the appellant Hanumant.
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23. P.W.5 Akash would run a hotel taken on lease from
the father of appellant Ajit. He testified that, by 10.00 in the
morning of 10 January, he was at his hotel. Appellant
Hanumant brought with him a chicken for dining. Appellant Ajit
was also with him. Atul Ekshinge had already been at the
hotel. Both the appellants Hanumant and Ajit consumed liquor
and took meals. Thereafter Balasaheb (deceased) joined
them. He was accompanied by one person. He had not
known Balasaheb. He had facial acquaintance with him as he
used to visit his hotel for tea. After taking the meal, all of them
left. Appellant Ajit and Atul left on one motorcycle. While
appellant Hanumant and deceased Balasaheb left on another.
They left in different directions. He further testified that, again
after a while, appellant Ajit and Atul came to his hotel. They
were there for 10 minutes. They informed him to have been
called by appellant Hanumant and they were proceeding to join
him. He, however, testified that, he did not know towards
which village they went.
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24. In the cross-examination, he testified that, the
police had detained him for 2-3 days in connection with the
very crime. He was scared of police.
The evidence of this witness does not further the
prosecution case. According to learned Advocate for the
appellants, his testimony was not voluntary as he deposed
under pressure of police. Even we accept his testimony as it
is, it does only make a case of deceased and appellants
Hanumant and Ajit to have been together at his hotel and then
did part ways. The appellant Hanumant and deceased
Balasaheb went together. While Ajit and Atul went in different
directions. This witness did not state to have seen all the four
again together. He even did not state at what time they left his
hotel. It was afternoon according to the witness. It would,
therefore, be anybody’s guess whether the four parted ways by
12.00 noon or by 3.00 p.m.
25. The other evidence on the point of last seen is that
of P.W.19 Vitthal. He would run “Shivani Wine Shop” at Karjat.
He testified that, on 15/1/2016, the police had come to his
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shop and asked for CCTV footage of 10/1/2016. He, therefore,
called the Operator. The CCTV footage of the day was seen.
Three persons were seen taking away liquor and water bottles
from his shop. A motorcycle was parked in front of the shop.
The police officer Shri Aher (P.W.22) took the CCTV footage in
a pen drive.
26. P.W.14 Rajendra was a panch witness, in whose
presence CCTV footage was obtained by the police officer Shri
Aher. According to this witness, the appellant Hanumant made
a disclosure statement and took them to the wine shop on
15/1/2016. The police officials seen the CCTV footage at the
shop. He along with the police watched the same. In the
footage, A/1 and A/3 were seen. Appellant Hanumant then
took them to a secluded place at a hilly area towards village
Dawalwadi (Khandobache Malran). At the spot, there were
empty liquor and water bottles. There was blood on the
ground. Police seized those articles and collected blood mixed
soil. Then he took them to a place nearby Gosavi Temple. At
the spot, there were wheel marks on the road. A blue Chappal
was found. Then the appellant Hanumant took them to one
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Nim tree at village Waki. In the cross-examination, the witness
testified that, except statement that he will show the spot,
nothing was disclosed by appellant Hanumant. A DVD was
played in the open Court. He identified the A/1 and A/3 seen
on the screen.
27. The seized Hard Disk was sent to FSL along with
some photographs of appellants Hanumant and Amir. The
report thereof was heavily relied by the learned A.P.P. It is at
Exh.147. Close reading of the report would indicate that the
persons seen on the screen were similar to that the persons
appearing in the photographs. Not a single witness testified
that during investigation photographs of any of the appellants
were snapped. Although it was stated that the report was
accompanied with Section 65-B Certificate, we did not come
across such certificate. The Hard Disk was played to P.W.19.
So far as regards other aspects are concerned, the FSL could
not give its report.
28. On the question of the CCTV footage collected in
pen drive and played in the open Court, while evidence of
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P.W.14 was being recorded, the same has not been supported
by Section 65-B Certificate. The contents of the pen drive
being secondary evidence, uncertified by Section 65-B
Certificate, is inadmissible in evidence. Same is the case
relating to contents of Hard Disk.
29. With a view to do complete justice and with the
consent of parties, we tried to play the Hard Disk in the open
Court. The official of the Computer Department told us that the
DVD was blank.
Other circumstantial evidence:-
30. Although the Scorpio jeep was seized pursuant to
the disclosure statement made by the appellant Hanumant, it
was inspected by the investigating officer and nothing
incriminating was found. After 8 days of the seizure of the
vehicle, experts from FSL were summoned to inspect the
vehicle from inside. They allegedly collected some seat cover
parts from the vehicle. Who was that official is not known. He
has not been examined. While the witness in whose presence
the vehicle was seized and inspected (P.W.9 Ashok) testified
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nothing incriminating was seen in the vehicle. The C.A. report
as regards those articles even though borne blood stains,
would, therefore, be of little consequence to further the
prosecution case. Discovery of the spot whereat liquor and
water bottles were found with blood mixed soil too is of little
consequence. Since Blood Group “A” although was of the
deceased, even two of the appellants have the same blood
group.
31. The appellant Ajit made a disclosure statement,
pursuant to which a seat belt was recovered. The seat belt
was sent for chemical analysis. The report thereof indicates it
borne blood stains of Group “A”. The investigating officer did
no exercise to suggest that the said seat belt was of the seat of
the seized Scorpio jeep since such was the prosecution case.
32. Although a shirt and trouser of appellants
Hanumant and Ajit came to be seized pursuant to disclosure
statement made by appellant Hanumant, not a single witness
testified that on 10 January, both of them were sporting these
clothes. There is also no evidence to indicate as to whether
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those clothes were matching with the measurement so as to fit
on their person.
33. On arrest of the appellants, although cell phones
were seized, the cell phones of two of them namely Ajit and
Amir did not bear any SIM Card. The SIM cards of particular
number alleged to have been used by both of them were in the
name of someone else, namely P.W.11 Bandu and P.W.15
Machindra. Although CDRs and SDRs placed on record were
admitted in evidence on behalf of appellant Hanumant, the
same could not be used against other appellants for want of
Section 65-B Certificate or they are proved through the
concerned Nodal officer of the Cellular Companies. The said
record was not relied on before us. Same is the case about
the cell phone number of appellant Hanumant. The SIM Card
that was used by him too stood in the name of his employee.
Although these witnesses have testified accordingly, it cannot
be said that those facts have been proved conclusively so as
to connect the appellants with the crime in question.
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34. Reliance was placed on the judgment of the Apex
Court in case of Suresh Chandra Tiwari & anr. Vs. State of
Uttarakhand [ 2024 DGLS (SC) 1199 ], wherein the Apex
Court observed thus :
“26. The circumstances of deceased being last
seen alive in the company of the deceased is a vital
link in the chain of other circumstances but on its
own strength it is insufficient to sustain conviction
unless the time-gap between the deceased being last
seen alive with the accused and recovery of dead
body of the deceased is so small that possibility of
any other person being the author of the crime is
just about impossible. Where the time-gap is large,
intervening circumstances including act by some
third person cannot be ruled out. In such a case,
adverse inference cannot be drawn against the
accused merely because he has failed to prove as to
when he parted company of the deceased.”
35. Similarly, in case of Malleshappa Vs. State of
Karnataka [ 2007 DGLS (SC) 1063 ], the Apex Court
observed :-
“23. In the light of the evidence available on record,
can it be said that the circumstances of last seen
together by itself and necessarily lead to the inference
that it was the appellant who committed the crime? The
High Court took the view that accused Nos. 6 and 7 are
entitled to the benefit of doubt though, PW-10 stated in
her evidence that the appellant, accused Nos. 6 and 7
took her son Yankanna on the fateful day. No motive
was shown with regard to accused Nos. 6 and 7 for their
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involvement in the crime. It is under those
circumstances, the High Court said that the burden
shifts to the appellant to show as to what happened to
the deceased-Yankanna. In our considered opinion, the
High Court committed serious error in arriving at such
conclusion. The first information report lodged by PW-
10 itself is highly doubtful. PW-10’s evidence itself does
not reveal any circumstances to hold that the
prosecution has established the charge against the
appellant. The appellant’s failure to offer any
explanation in his statement under Section 313 Cr.P.C.
is not a circumstance to hold appellant guilty of the
charge. The prosecution has failed to establish as to
when the death of Yankanna took place, it could be at
any time between 12th July, 2001 to 21st July, 2001.
There is nothing on record to show as to what transpired
between 12th July, 2001 to 21st July, 2001. Mere non-
explanation on the part of the appellant, in our
considered opinion, by itself cannot lead to proof of
guilt against the appellant. Learned Counsel for the
State relied upon the decision in Mohibur Rahman and
Anr. v. State of Assam which in fact is in support of the
defence and nor the prosecution.
..The circumstance of last seen together does not by
itself and necessarily lead to the inference that it was the
accused who committed the crime. There must be
something more establishing connectivity between the
accused and the crime. There may be cases where on
account of close proximity of place and time between
the event of the accused having been last seen with the
deceased and the factum of death a rational mind may
be persuaded to reach an irresistible conclusion that
either the accused should explain how and in what
circumstances the victim suffered the death or should
own the liability for the homicide. In the present case
there is no such proximity of time and place. As already
noted the death body has been recovered about 14 days
after the date on which the deceased was last seen in the
company of the accused. The distance between the two
places is about 30-40 kms. The event of the two accused
persons having departed with the deceased and thus last
seen together (by Lilima Rajbongshi, PW6) does not
bear such close proximity with the death of victim by
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reference to time or place. According to Dr. Ratan Ch.
Das the death occurred 5 to 10 days before 9.2.1991.
The medical evidence does not establish, and there is no
other evidence available to hold, that the deceased had
died on 24.1.1991 or soon thereafter. So far as the
accused Mohibur Rahman is concerned this is the
singular piece of circumstantial evidence available
against him. We have already discussed the evidence as
to recovery and held that he cannot be connected with
any recovery. Merely because he was last seen with the
deceased a few unascertainable number of days before
his death, he cannot be held liable for the offence of
having caused the death of the deceased. So far as the
offence under Section 201 IPC is concerned there is no
evidence worth the name available against him. He is
entitled to an acquittal.
24. In the present case also, there is no proximity of
time and place. We have already noted that the dead
body, even if it is to be accepted, was that of the
deceased-Yankanna, had been recovered after 10 days
after the date of which the deceased was last seen in the
company of the appellant. This singular piece of
circumstantial evidence available against the appellant,
even if the version of PW-10 is to be accepted, is not
enough. It is fairly well settled that the circumstantial
evidence in order to sustain the conviction must be
complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused. It is true
as has been held by this Court in Lakshmi and Ors. v.
State of U.P. that it is not an inflexible rule that the
identification of the body, cause of death and recovery
of weapon with which the injury may have been
inflicted on the deceased though are factors to be
established by the prosecution but it cannot be held as a
general rule and broad proposition of law that where
these aspects are not established, it would be fatal to the
case of the prosecution and in all eventualities, it ought
to result in acquittal of those who may be charged with
the offence of murder provided the charges against the
accused otherwise can be established on the basis of the
other reliable and trustworthy evidence.”
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36. P.W.2 Satish (informant/ brother of the deceased)
has testified that, all the four accused (3 of the appellants
herein and acquitted one) were of different villages. They did
not share common caste. Even two of them namely appellant
Hanumant (A/1) and the acquitted one had admittedly not
taken any amount as a hand loan from the deceased. There is
also no witness to indicate appellant Ajit and the other
appellant had borrowed some money from the deceased.
While all the four were together along with the deceased at the
hotel, it was not beyond 3.00 p.m. Even therebefore, appellant
Ajit had left the company of the deceased and appellant
Hanumant. There is no evidence at all to indicate the
appellant Ajit had thereafter joined them. The dead body of the
deceased was found on the following day by little past 10.00 in
the morning. Although the deceased admittedly met with
homicidal death, the Medical Officer who conducted the
autopsy did not state in examination-in-chief even approximate
time of death. It was only brought on record through cross-
examination undertaken on behalf of A/1. The Medical Officer
then testified that death had occurred 12 Hours beyond the last
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meal. Even this evidence may take us to presume that the
deceased was alive on the night of 10 January, there being a
long gap between the appellant to have been seen by P.W.5
Akash and admitted by appellant Hanumant himself that he
was with the deceased by 3.00 p.m. In view of the
observations of the Apex Court in the cases referred to
hereinabove, the time gap between last seen together and
finding of the dead body was so large, possibility of the crime
to have been committed by someone else could not be ruled
out. More so when the prosecution case is that the appellants
and one acquitted accused to have committed murder in
furtherance of their common intention and conspiracy as well.
It is reiterated that, one of the four has already been acquitted.
There is no evidence to indicate the appellant Ajit was seen in
the company of the deceased and appellant Hanumant or
appellant Amir. As such, the case of the prosecution that the
four came together and did eliminate deceased Balasaheb
would be a far-fetched inference. The evidence of each and
every witness has been appreciated while adverted thereto
hereinabove. The circumstantial evidence in the nature of
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seizure of articles such as clothes, seat belt, vehicle and C.A.
report pertaining thereto, indicating some of them to have
borne blood of Group “A” does not lead us to conclude the
prosecution to have conclusively established involvement of
the appellants in the crime in question. The seized articles
were sent to FSL on 9/2/2015 i.e. 27 days after the seizure.
There is no evidence that those were kept safet ill date of
delivery at FSL. The appellants are behind the bars for little
over nine years. In our view, the appreciation of the aforesaid
evidence lead us to conclude the prosecution to have failed to
bring home the charge beyond reasonable doubt. Interference
with the impugned order is, therefore, called for.
37. In the result, the appeals succeed. Hence the
order :-
ORDER
(i) The Criminal Appeals are allowed.
(ii) The order of conviction and consequential sentence,
dated 18/1/2018, passed by the Additional Sessions Judge,
Beed in Sessions Case No.61/2016 is hereby set aside. The
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appellants are acquitted of the offences punishable under
Sections 302 r/w 120-B and 201 r/w 34 of the Indian Penal
Code.
(iii) The appellants be set at liberty forthwith if not required in
any other case. Fine amount, if paid, be refunded to them.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-