Dada @ Mahendra Shivaji Jagtap v. The State Of Maharashtra
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD CRIMINAL APPEAL NO. 20 OF 2014 Dada @ Mahendra s/o Shivaji Jagtap, Age 28 years, Occ. Agriculture R/o. Kolgaon, Tq. Shrigonda ...Appellant District Ahmednagar (Ori. Accused No.2) versus The State of Maharashtra Through Police Officer Shrigonda Police Station, Tq. Shrigonda, District Ahmednagar
...Respondent
.....
Mr. Nitin V. Gaware, advocate for the appellant Mr. M. M. Nerlikar, A.P.P. for respondent-State .....
WITH CRIMINAL APPEAL NO. 51 OF 2014 Rohan @ Sunny Uday Hazare, Age 31 years, Occ. Driver R/o. Navi Sangvi Pune, ...Appellant Tq. and District Pune (Ori. Accused No.1) versus The State of Maharashtra
...Respondent
.....
Mr. Naseem R. Shaikh, advocate for the appellant (appointed) Mr. M. M. Nerlikar, A.P.P. for respondent-State .....
WITH CRIMINAL APPLICATION NO. 573 OF 2020 IN CRIMINAL APPEAL NO. 20 OF 2014 The State of Maharashtra ...Applicant versus
-21.
Dada s/o Mahendra s/o Shivaji Jagtap Age major, Occ. Agriculture R/o. Kolgaon, Tq. Shrigonda District Ahmednagar 2.
Rohan @ Sunny Uday Hazare Age major, Occ. Driver R/o. Navi Sangvi Pune Tq. and District Pune
...Respondents
.....
Mr. M. M. Nerlikar, A.P.P. for applicant-State Mr. N. V. Gaware, advocate for respondent No.1. Mr. N. R. Shaikh, advocate for respondent No.2 .....
CORAM : V. K. JADHAV AND S. G. DIGE, JJ.
Date of Reserving the Judgment : 14.07.2021 Date of pronouncing the Judgment : 28.07.2021 JUDGMENT (PER V.K. JADHAV, J.) :- 1.
These appeals are directed against the judgment and order of conviction passed by the Additional Sessions Judge, Ahmednagar dated 31.7.2013 in Sessions Case No. 41 of 2011 convicting thereby both the appellants for the offence punishable under Section 302 r.w. 34 of I.P.C. and sentencing them to suffer life imprisonment and to pay fine of Rs.1000/- each i/d of payment of fine to suffer R.I. for six months each.
2.
Brief facts giving rise to the present appeals are as follows:-
-3- (a) Deceased Kiran Sudam Bhingardive and accused No.1 Rohan Hajare were friends inter se. On 9.10.2010 deceased Kiran Bhingardive left the house informing in the house that he was going out of station alongwith appellant-accused No.1 Rohan Hajare. However, deceased Kiran did not return to his house. After waiting for about 8 days, on 18.10.2010 the younger brother of deceased Kiran, viz. Kuldip Sudam Bhingardive approached the Tophkhana police station and lodged a missing report. The said missing report was registered in Tophkhana police station on 18.10.2010 at 9.00 p.m. vide missing Register No. 123 of 2010. Meanwhile, on 10.10.2010 one Madhukar Krishnaji Shelar R/o.
Belwandi rushed to Shrigonda police station and lodged a report about a dead body of unknown male person, age 40 years lying adjacent to the streamlet near well situated in the field of Vithoba Ghodekar. On the basis of his report, A.D. No. 129 of 2010 came to be registered at Shrigonda police station on 10.10.2010 itself. During the course of investigation of said A.D. the police Officer of Shrigonda police station visited the spot, inspected the dead body lying on the spot, prepared inquest panchnama and drew spot panchnama. The police officials of Shrigonda police station have collected and attached articles lying on the spot including plain earth and blood mixed earth. The dead body was thereafter sent to the rural hospital Shrigonda for post mortem examination. After conclusion of the inquiry of accidental death, Mr.
-4of unknown person by unknown offenders, for unknown reason by giving severe blows of heavy stones on vital parts viz. head, chest etc. On the basis of his report, crime No. 350 of 2010 for the offence punishable under Sections 302 and 201 of I.P.C. came to be registered at Shrigonda police station on 10.10.2010 at about 11.15 p.m. During the course of investigation, the statements of material witnesses came to be recorded. During investigation, it transpired that in the intervening night of 9.10.2010 and 10.10.2010, both the accused alongwith deceased stayed at Hotel Mahendra and during that night cash of Rs.5,000/- was stolen away from accused No.1 Rohan Hajare. When he asked about the same to deceased Kiran Bhingardive, deceased Kiran Bhingardive got annoyed and abused both of them in filthy language.
Consequently, both the accused, in furtherance of their common intention, on 10.10.2010 prior to 3.10 p.m. carried Kiran Bhingardive on his motorcycle to the spot of incident and committed his murder by assaulting him heavily on head and chest with stones. During further investigation, both the accused came to be arrested. The motorcycle and shoes of deceased Kiran Bhingardive were seized at the instance of accused No.1 Rohan. Even clothes of both accused came to be seized during investigation and all seized articles were sent to the forensic laboratory for chemical analysis. After completion of investigation, on 31.1.2011 charge sheet came to be submitted under Sections 302, 201 r.w. 34 of I.P.C. against the appellants-accused persons.
-5- (b) The learned Additional Sessions Judge, Ahmednagar by order dated 2.7.2011 has framed charge under Section 302, 201 r.w. 34 of I.P.C. against both the accused vide Exh.4. The said charge was read over and explained to both the accused and they have pleaded not guilty and claimed to be tried. Their defence was of total denial. The prosecution has examined 15 witnesses to substantiate the charges levelled against the accused persons. After completion of prosecution evidence, the statements of appellants-accused persons under Section 313 of Cr.P.C. came to be recorded. (c) By judgment and order dated 31.7.2013 the learned Additional Sessions Judge, Ahmednagar in Sessions Case No. 41 of 2011 has convicted both the appellants accused as follows:- i) The accused No.1 Rohan @ Sunny Uday Hajare and accused No.2 Dada @ Mahendra Shivaji Jagtap are convicted for the offence punishable under Section 302 r.w. 34 of I.P.C. and they are sentenced to suffer life imprisonment and to pay fine of Rs.1000/- each i/d of payment of fine, to suffer R.I. for six months each.
ii) The accused Nos. 1 Rohan @ Sunny Uday Hajare and accused No.2 Dada @ Mahendra Shivaji Jagtap are acquitted of the offence punishable under Section 201 r.w. 34 of I.P.C. iii) Period of detention undergone by accused Nos. 1 and 2 be set off against the sentence of imprisonment referred above vide Section 428 of Cr.P.C.
-6- 3.
Hence, this appeal.
4.
Learned counsel for the appellants accused in both the appeals submit that the prosecution case entirely rests upon circumstantial evidence and there is no direct evidence in this case. The prosecution has failed to prove the case by establishing the chain of circumstantial evidence. The prosecution has also failed to establish the motive on the part of the appellants-accused to commit murder of deceased Kiran Bhingardive.
5.
Learned counsel appearing for the appellants accused submit that in order to prove the chain of circumstantial evidence, the prosecution relied upon the evidence of P.W. 14 Dnyaneshwar Warade, P.W.7 Vishal Dattatraya Darade, P.W.11 Sanjay Wadekar and P.W.12 Dinesh Harianna Shetty. The prosecution case mainly rests upon the circumstance of last seen together and blood stains on the clothes of the appellants.
6.
Learned counsel for the appellants submit that P.W.14 Dnyaneshwar Warade has no previous acquaintance with the appellant accused Rohan and the appellant accused Rohan asked deceased Kiran to accompany him as he wanted to go for enjoyment. It is transpired during investigation that the appellant accused Rohan was not knowing deceased Kiran till the day before the incident.
-7Therefore, the evidence of P.W.14 Dnyaneshwar Warade is not reliable and trustworthy. Learned counsel submit that P.W.7 Vishal Darade has deposed before the court that on 7.10.2010 at about 4.00 p.m. the appellant accused Rohan met him at Sarjepura and he was having a Hero Honda CBZ of black colour with yellow shade. According to him, accused Rohan stayed with him for two days. On 9.10.2010 in the morning, accused Rohan went outside and contacted P.W.7 Vishal Darade on his phone. P.W.7 Vishal Darade thereafter deposed that accused Rohan thereafter met him at Delhi gate at about 5.00 p.m. to 5.30 p.m. At that time, the appellant accused Rohan introduced deceased Kiran to him. Accused Rohan had demanded an amount of Rs.5000/- and P.W.7 Vishal Darade had given the said amount to accused Rohan. Accused Rohan had kept his motorcycle as security. Thereafter, accused Rohan and deceased Kiran went away.
7.
Learned counsel for the appellants submit that P.W.11 Sanjay Kashinath Wadekar was working in the Hotel Mahendra of which one Ravindra Gade is the owner. On 20.10.2010 the police from Tophkhana police station have shown a photograph and made inquiry as to whether the person appearing in the said photograph had come to his hotel. P.W.11 Sanjay Wadekar disclosed to the police that three persons, including deceased had been to the Hotel and one of them was accused Dada @ Mahendra Jagtap. Room No. 101 was made available to them and all of them halted overnight in
-8the hotel. They had drinks. According to him, on the next day between 9.00 to 9.30 a.m. those persons had vacated the room, however, before leaving the hotel, all of them came in the garden and took drinks. After 3/4 days, accused Rohan alongwith one male person and two ladies came to the hotel and collected some clothes and footwear, which were remained in the hotel. P.W.11 has identified the appellants accused persons before the court. There was no test identification parade conducted by the investigating officer during the course of investigation. Learned counsel for the appellants submit that the evidence of this witness could not be believed. Even in cross-examination he has admitted that he has mentioned the name of accused Dada @ Mahendra Jagtap on the say of police.
8.
Learned counsel for the appellants-accused submit that P.W.12 Dinesh Shetty is the manager of the hotel. He has identified accused Dada @ Mahendra Jagtap as the person who took the room in the hotel. He was accompanied by two persons. This witness also identified the appellant-accused Rohan before the court for the first time. According to him, he left the hotel on the next day at about 11.00 a.m. to 11.30 a.m. After 2/3 days of the said incident, the appellant accused No.1 had been to the hotel and collected the footwear and other articles. This witness has noticed the injury over his forehead. According to this witness, accused Rohan informed him that a quarrel took place amongst three and as a result thereof he
-9had sustained injury over his forehead. Learned counsel for both the appellants submit that it is difficult to believe that the manager of the hotel could identify the customers in the manner in which this witness has deposed before the court. Learned counsel for the appellants submit that the dead body though found on the same day at 3.00 p.m., however, as per the spot panchanama, near the dead body one plastic packet containing ganja and also broken instrument which is meant for inhaling ganja were found alongwith other articles. Learned counsel submits that there is no further connecting evidence against the accused. Merely on the basis of last seen together in the hotel, it would not be safe to draw inference that the appellants-accused had committed the murder of deceased and none others.
The prosecution could not explain about the recovery of ganja and the instrument for inhaling of ganja on the spot. Learned counsel submit that the possibility of use of those articles by the deceased alongwith some other persons on the spot could not be ruled out. Learned counsel submit that though there is recovery of the motorcycle Bajaj CT 100 of black shed, however, none has identified any of the articles as belonging to deceased. Learned counsel submits that the result of blood stains appearing on the clothes of accused persons are inconclusive as per report of Chemical Analyzer. Both learned counsel submit that it is well settled that suspicion, however grave or strong may be, but it cannot take the form of legal proof. Both the accused persons are entitled for benefit of doubt.
-109.
Learned counsel appearing for the appellants accused submit that during pendency of these appeals, without there being any permission from this court, the investigation has been carried as explained in criminal application filed on behalf of the State and now the prosecution is seeking permission to fill up the lacunae. Learned counsel for the appellants submit that even though the said documents pertaining to the motorcycle are accepted as it is, there is nothing to indicate that the accused persons and deceased had used the same motorcycle during the alleged stay in the hotel and thereafter accused No.1 used the said motorcycle in the commission of crime, in any manner. Learned counsel for the appellants submit that this futile exercise carries no meaning. 10.
Learned counsel for the appellant in criminal appeal No. 20 of 2014, in order to substantiate his submissions, placed reliance on the following cases:- i) Prabhoo vs. State of Uttar Pradesh, reported in 1963 AIR (SC) 1113;
ii) Kiran Ashok Jadhav vs. State of Maharashtra, reported in 2014 (3) Bom.C.R. (Cri.) 33;
iii) State of West Bengal vs. Mir Mohammad Omar, reported in 2000 AIR (SC) 2988;
iv) Sohel Mehaboob Shaikh vs. State of Maharashtra, reported in 2009 AIR (SC) 2702;
v) Janardhan Ramaji @ Ramrao Bannagare vs. State of
-11Maharashtra, reported in 2016 All M.R. (Cri.) 1667; vi) Raju Brijmohan Maurya vs. State of Maharashtra, reported in 2008 All M.R. (Cri.) 2632;
vii) Durgadevi Ramparvesh Sharma vs. State of Maharashtra, reported in 2011 (2) Bom.C.R. (Cri.) 652;
viii) Shrirang Nagorao Chavan and Anr. vs. State of Maharashtra, reported in 2013 (10) LJSOFT 150;
ix) Rambhau vs. State of Maharashtra, reported in 2001 AIR (SC) 2120;
x) Rajeshwar Prasad Misra vs. State of West Bengal, reported in 1965 AIR (SC) 1887;
11.
Learned counsel for the appellant in criminal appeal No. 51 of 2014, in order to substantiate his submissions, placed reliance on the following cases:- i) Peddireddy Subbareddi and others vs. State of A.P., reported in AIR 1991 SC 1356;
ii) Surendra vs. State of Rajasthan, reported in AIR 2012 SC (Supp) 78;
iii) Rabindra Kumar Pal @ Dara Singh vs. Republic of India, reported in AIR 2011 SC 1436;
iv) Anjan Kumar Sarma and Ors. vs. State of Assam, reported in AIR 2017 SC 2617;
v) Roopsena Khatun vs. State of West Bengal, reported in AIR 2011 SC 2256;
vi) State of Goa vs. Sanjay Thakran and Anr, reported in AIR 2007 SC (Supp) 61;
-1212.
Learned A.P.P. for the respondent State in both the appeals submits that the prosecution case entirely rests upon circumstantial evidence and the prosecution has established the chain of circumstantial evidence. The prosecution has proved the case and relied upon circumstance of last seen together. Deceased Kiran was lastly seen alive in the company of accused persons and thereafter his dead body was found within a short gap. Learned A.P.P. submits that the homicidal death is not disputed in this case. The trial court has correctly appreciated the evidence and convicted both the appellants-accused for the offence punishable under Section 302 r.w. 34 of I.P.C. The prosecution has established the motive on the part of accused persons to commit murder. Learned A.P.P. submits that there is no explanation under Section 106 of the Evidence Act from accused persons and as such there is an additional link of the circumstance against the accused persons.
13.
Learned A.P.P. submits that so far as the recovery of motorcycle from accused Dada @ Mahendra is concerned, the said motorcycle was having no number. However, it is black colour Bajaj CT 100 with chassis and engine number and said recovery panchanama was proved by P.W.6. Learned A.P.P. submits that said motorcycle belongs to Dhiraj Sudam Bhingardive, brother of deceased Kiran. Learned A.P.P. submits that photo copy of R.C. book was collected by the then investigating officer during the course
-13of investigation which is already on record. However, the prosecution has not proved the said important document by calling upon any person from the R.T.O. office as witness. Learned A.P.P. submits that the missing report of deceased Kiran was given by his brother Kuldip, however, during the trial he was not examined. Learned A.P.P. submits that as per the communication dated 13.1.2020 made to the Police Inspector, Shrigonda police station by the Deputy Regional Transport Officer, Ahmednagar, it appears that said motorcycle Bajaj CT 100 with chassis and engine numbers, as detailed in the panchanama, is recovered at the behest of accused Dada @ Mahendra Jagtap and it belongs to one Dhiraj Sudam Bhingardive, brother of deceased Kiran. Deceased Kiran had taken the said motorcycle and went alongwith accused Rohan. 14.
So far as criminal application No. 573 of 2020 is concerned, learned A.P.P. submits that the prosecution may be permitted to give additional evidence to the extent of examination of two witnesses i.e. Dipak Patil, Deputy Regional Transport Officer and Kuldip Sudam Bhingardive for proving the letter dated 13.1.2020. 15.
We have carefully considered the submissions advanced by learned counsel for the appellants-accused in both the appeals and learned A.P.P. for the respondent State. With their able assistance, we have perused the grounds taken in the appeals, annexures thereto, the record and proceeding and the case laws cited by the
-14respective parties.
16.
So far as the homicidal death of deceased Kiran is concerned, the defence has not disputed the same. The inquest panchanama Exh.34 demonstrates that the head of deceased Kiran was severally crushed and brain came out of the skull. P.W.9 Dr. Sandip Pund, Medical Officer attached to Rural Hospital, Shrigonda had conducted post-mortem examination on the dead body of deceased Kiran on 11.10.2010. He had noticed in all 13 injuries on the person of deceased Kiran, which are detailed in column No.17 of the post mortem report. P.W.9 Dr. Sandip Pund has deposed that except injury Nos. 10 and 11, other injuries on the dead body were anti mortem injuries. In his opinion, the external injuries as mentioned in column No.17 are corresponding to internal injuries mentioned in column No. 19 and 20 of the post mortem report Exh.36. P.W.9 Dr.
Sandip Pund has opined that death of Kiran was homicidal and injuries on head and chest of deceased Kiran are possible by big stone. The prosecution has examined P.W.2 Sangram Pawar to prove the contents of spot pancahnama Exh.33. Besides other articles, one blood stained stone weighing 15 Kg and one another circular stone having blood stains weighing 3 Kg came to be seized under spot panchanama. The appellants accused have not disputed the identity of the dead body. They have also not seriously disputed the nature of death.
-1517.
The prosecution case mainly rests upon the circumstantial evidence and there is no direct evidence in this case. In a case which rests upon circumstantial evidence, "motive" plays an important role. The trial court has not discussed as to what is the motive for appellants-accused persons to commit brutal murder of the deceased. The prosecution case entirely rests upon circumstance of last seen together. The trial court has also discussed the evidence of last seen together chronologically by referring evidence of P.W.14 Dnyaneshwar Warade, P.W.7 Vishal Darade, P.W.11 Sanjay Wadekar and P.W.12 Dinesh Shetty. We have carefully gone through the evidence of prosecution witnesses to find out the motive for the accused persons to commit murder of deceased Kiran. We find no evidence as to the motive in the instant case.
We would examine the evidence about last seen together in chronological sequence:- i) P.W.14 Dnyaneshwar Warade has deposed that on 9.10.2010 he was present near bungalow of deceased Kiran. Deceased Kiran was with him. According to him one fair and tall boy i.e. appellant accused No.1 (Rohan) came there. The appellant accused Rohan asked deceased Kiran to accompany him as he wanted to go for enjoyment. It has further come in the evidence of this witness that appellant accused Rohan also stated to Kiran that he wanted to go to P.W.7 Vishal Darade at Delhi Gate to obtain money.
-16spot. He has identified the appellant accused Rohan before the Court.
ii) P.W.7 Vishal Dattatraya Darade has deposed that on 7.10.2010 at about 4.00 p.m. appellant accused Rohan met him. Appellant accused Rohan stayed in his house for two days. On 9.10.2010 in the morning appellant accused Rohan went outside. He has further deposed that appellant accused Rohan intimated to him on phone at about 2.00 p.m. that he is in the locality known as Savedi. P.W.7 Vishal has thus asked him to come. P.W.7 Vishal has further deposed that appellant accused Rohan came to the point known as Delhi gate at about 5.00 to 5.30 p.m. He was accompanied by one person, to whom he has introduced as Kiran Bhingardive. The appellant accused Rohan has demanded Rs.5000/- to P.W.7 Vishal under the pretext that he had to give that amount to his mother. P.W.7 Vishal has accordingly brought Rs.
5000/- from one person and handed it over to him. The appellant accused Rohan had assured that the amount will be returned within two days and kept his motorcycle as security. The appellant accused Rohan has kept CBZ motorcycle with P.W.7 Vishal. The documents of the said motorcycle were in the name of one Jagan Shridhar. P.W.7 Vishal has further deposed that the appellant accused Rohan and deceased Kiran left that place on foot. It would not be out of place to mention here that there are no details by way of connecting evidence as to from whom P.W.7 Vishal had collected the said amount of Rs.5000/-, nor the police has seized the said CBZ motorcycle from his custody kept by the appellant accused Rohan towards the security of said amount of Rs.5000/-. iii) P.W.
-1720.10.2010 the police from Tophkhana police station had come to the hotel and shown him a photograph. The police had made inquiry, whether the person appearing in it, had come to the hotel. P.W.11 Sanjay has disclosed to the police that some three persons had been to the hotel and one of them was the appellant accused No.2 Dada @ Mahendra Jagtap. The appellant accused Dada @ Mahendra used to supply water by tanker at the construction site of the road and he used to come to the hotel to drink. According to P.W.11 Sanjay Wadekar, on 9.10.2010, in all three persons including appellant accused Dada @ Mahendra came to the hotel. They had demanded drinks. They had consumed drinks there only. P.W.11 Sanjay Wadekar has further deposed that those persons had demanded a room.
Thus, waiter of the hotel had taken entry in the register of the hotel. Entry was taken in the name of appellant accused Rohan and room No.101 was made available to them. Those three persons took halt at night. On the next day i.e. on 10.10.2010 at about 9.00 to 9.30 a.m. before leaving, those persons had again consumed drinks in the garden. After 3/4 days, the appellant accused Rohan alongwith one male and two female members came to their hotel for collecting the footwear and clothes. P.W.11 Sanjay Wadekar has identified the appellant accused Rohan before the court.
iv) P.W.12 Dinesh Shetty was working as Manager in hotel Mahendra. The Hotel Mahendra is on ground floor whereas Shivkrupa Lodge is on the upper floor. In case of demand of liquor or food by the customers, the same was provided from the hotel as per the order. On 9.10.2010 he was present in the Hotel Mahendra. P.W.12 Dinesh deposed that on the said day in the night appellant accused Dada @ Mahendra Jagtap came to the hotel and demanded a room.
-18He was accompanied by two persons and room No.101 was made available to those persons. P.W.12 Dinesh Shetty has further deposed that all three persons stayed in the night and vacated the room in the morning. All three consumed liquor on the next day morning in the garden while leaving the hotel at about 11.00 to 11.30 a.m. They had also taken snacks, omelet. P.W.12 Dinesh has deposed that 2/3 days thereafter, one slim person came there alongwith one male and two females for collecting the footwear and other articles remained in the room. P.W.12 Dinesh identified the said slim person as appellant accused Rohan before the court. According to P.W.12 Dinesh, he has noticed one injury over the forehead of appellant accused Rohan. According to him, the appellant accused Rohan informed him that there was a quarrel amongst the three and as a result thereof, he had sustained injury over his forehead.
18.
In terms of the contents of spot Panchnama Exh.33 (admitted by the defence) and inquest Panchnama Exh.34 (admitted by the defence) the dead body of deceased Kiran was found on 10.10.2010 at about 3.00 to 3.30 p.m. near the streamlet at village Shindewadi. It is a settled legal position that law presumes that it is the person, who was last seen with deceased, would have killed the deceased and burden to rebut the same lies on accused to prove that they had departed. The last seen theory is an important circumstance in the chain of circumstantial evidence which would point out the guilt of the accused with some certainty. However, such evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration.
-1919.
On 19.10.2010 the brother of deceased Kiran viz. Kuldip had lodged a missing report at Tophkhana police station, Ahmednagar. It was registered in the missing register at Sr. No.123 of 2010. P.W.8 Somnath Shende was assigned with the missing inquiry. So far as the missing report Exh.52, which is admitted by the defence, is concerned, it has been mentioned in the report that on 9.10.2010 deceased Kiran left the house by disclosing that he was going out of station and he did not return. It is also stated in the missing report that it has been revealed during inquiry that appellant accused Rohan took deceased Kiran with him. P.W.8 Somnath has deposed that on 19.10.2010 he went to Hotel Mahendra at 9.00 a.m. in village Narayangavan on Nagar-Pune Road. There is Shiv Shakti Lodging near the Hotel. He had verified the register.
He noticed the name of the appellant accused Rohan written with his full name and the mobile number in the said register in his own hand writing. It was mentioned in the register that other two persons were alongwith the appellant accused Rohan. P.W. 8 Somnath had collected the photo copy of the said register. As per the address mentioned in the register, he went to block no. 603, Navi Sangavi, which was locked. He had also called appellant accused Rohan on his mobile, which was received by his mother. She was at Sangamner. Even after contacting the mother, she could not give any useful information. However, she had promised him to bring her son to the concerned police station.
-20Mahendra and his name was Mr. Wadekar. Said Wadekar has informed him that the person with appellant accused Rohan was known as Dada. Except this, nothing has come in his evidence. P.W.8 - A.S.I. Somanth Shende has thereafter handed over the inquiry paper of the said missing report to P.W. 16 - P.S.I. Deepak Barde, who was investigating the crime registered at Shrigonda police station. It is pertinent to note that neither P.W.8-Somnath Shende nor P.W.16-P.S.I. Barde seized the original customer register of Hotel Mahendra/Hotel Shivkrupa, during the course of investigation of the crime.
20.
P.W.16 A.P.I. Deepak Barde, who was working as P.S.I. at Shrigonda police station at the relevant time was assigned with the investigation of crime No. 350 of 2010 on 10.10.2010. He got the papers including spot Panchnama, inquest Panchnama pertaining to A.D. No. 129 of 2010. He had received the other documents pertaining to missing report from Tophkhana police station. According to him, it was transpired during inquiry of missing as to the persons accompanying deceased Kiran. He has further stated that as per the missing report, deceased was accompanied by appellant accused Rohan and they had stayed at Hotel Mahendra at Vadegavan. They were also accompanied by the appellant accused Dada @ Mahendra.
21.
We have considered the evidence of P.W.14 Dnyaneshwar
-21and P.W.7 Vishal together. It appears that from 4.00 p.m. on 7.10.2010 till the morning of 9.10.2010, appellant accused Rohan stayed in the house of P.W.7 Vishal. According to P.W.7 Vishal, at 9.00 a.m. on 9.10.2010 the appellant accused Rohan went outside and further contacted P.W.7 Vishal at about 2.00 p.m. Accordingly P.W.7 Vishal and appellant accused Rohan met at Delhi gate at about 5.00 to 5.30 p.m. It is the prosecution case that by keeping the motorcycle as security with P.W.7 Vishal, the appellant accused Rohan had obtained Rs.5000/- from him. As disclosed by appellant accused Rohan, the documents of the said vehicle were in the name of one Jagan Shridhar. P.W.7 Vishal has deposed that appellant accused Rohan had kept the said CBZ motorcycle with him and he did not come back to take it.
He was unable to explain as to from whom he had collected the said amount of Rs.5000/- and gave it to the appellant accused Rohan. P.W.7 Vishal has admitted in his cross-examination that he was using the said motorcycle even at the time of his evidence before the court. However, the investigating officer has neither seized the said motorcycle from him nor collected the documents. Even the investigating officer has not recorded the statement of the person viz. Jagan Shridhar, in whose name the said motorcycle was allegedly registered. According to P.W.7 Vishal, the appellant accused Rohan had introduced deceased Kiran to him. P.W.14 Dnyaneshwar has deposed that on 9.10.2010 deceased Kiran left his house from Yashodanagar alongwith appellant accused Rohan. P.W.
-22Rohan asked deceased Kiran to accompany him as he wanted to go for enjoyment. P.W. 16- A.P.I. Deepak Barde (investigating officer), in para 3 of his cross-examination has admitted that "it was transpired that accused Rohan was not knowing deceased till the day before incident". It is pertinent to note that if accused Rohan was not knowing deceased Kiran till the day before the incident, still then, insisted deceased Kiran to accompany him for enjoyment. We have already made observations in the foregoing paras that we find no evidence about motive for the appellants accused persons to commit murder of deceased Kiran.
If it was transpired during investigation that appellant-accused Rohan was not knowing deceased Kiran till the day before the incident, then there was no reason for the appellant-accused Rohan to commit brutal murder of deceased Kiran. We also find it very strange on the part of deceased Kiran to accompany accused Rohan to whom he was not knowing. Even assuming for the sake of discussion that P.W.7 and P.W.14 are telling truth to some extent, however, we do not find definite tendency in the circumstances, as explained by these two witnesses, to come to the conclusion about the guilt of appellant-accused Rohan. 22.
P.W.11 Sanjay Wadekar has deposed that on 9.10.2010 three persons including the appellant accused Dada @ Mahendra came to the hotel. All of them consumed liquor and occupied room No.101 which was made available to them. All three took halt in the night. The appellant-accused Rohan had entered his name in the
-23register. We must again repeat here that original register of the said hotel was neither seized by the police nor P.W. 11 - Sanjay Wadekar has brought the said register before the Court. According to him, on the next day at about 9.00 to 9.30 a.m., those persons had vacated the room. At the time of leaving the hotel, they had drinks together alongwith breakfast. After 3/4 days the appellant accused Rohan alongwith one male person and two ladies came to the hotel and collected his clothes and footwear which were remained in the hotel. The deposition of P.W.12 Dinesh Shetty who happened to be the manager of the Hotel is on the same lines. According to him, at that time the appellant-accused Rohan had disclosed to him that during their halt in the hotel they had fight and accordingly he had sustained injury over his forehead. P.W.
12 Dinesh Shetty was working as Manager in the Hotel Mahendra and he has admitted in his crossexamination that he has no concern with the work of taking entry of the customers who stayed in the lodge or to make available the rooms for them. It is also none of his business to find out as to whether the customer stayed during the night and which room was made available to them. Both the witnesses have admitted that there are 16 rooms in the hotel and there used to be daily customers in the hotel. The customers occupy 7 to 8 rooms daily. P.W.12 Dinesh Shetty has deposed that he has noticed injury over the forehead of appellant-accused Rohan. The trial court has believed the evidence of P.W. 12 Dinesh Shetty as duly corroborated by P.W.5 Dr. Pradnya Badge. We have carefully perused the evidence of P.W.5 Dr.
-24Pradnya Badge. On 11.10.2010 at about 2.00 to 2.30 p.m. the appellant-accused Rohan had been to her hospital for medical examination. She had noticed abrasion below his left eye and also injury over chin. She had advised him X-Ray. On inquiry the appellant-accused Rohan disclosed to her that he had sustained the injury in an accident. She had not given any reference to the injury over forehead as deposed by P.W.12 Dinesh Shetty. Furthermore, we find no substance in the said extra judicial confession. Even assuming for the sake of discussion that the appellant-accused Rohan alongwith deceased Kiran had stayed in the said hotel overnight and left that hotel in the morning at about 9.00 a.m. to 9.30 a.m., still then there is no further connecting evidence against the appellants accused.
The same is important for the reason that the prosecution has failed to bring on record the evidence about motive. We are unable to pursue ourselves that the appellant-accused Rohan took deceased Kiran from his house under the pretext of enjoyment, stayed with him in one hotel, enjoyed drinks and food together and on the next day, at about 3.00 to 3.30 p.m. (when the dead body of deceased Kiran was found far away from the said Hotel) committed brutal murder of deceased Kiran for no reason. 23.
In terms of the contents of memorandum panchnama and recovery panchnama Exh.44 and 45 respectively, the recovery of clothes of appellant-accused Rohan shown to have been made at his instance. There were no blood stains on jean pant, however, there
-25were blood stains on the shirt. As per the C.A. report Exh.85, human blood was detected on the full white shirt of deceased Kiran (article 13). So far as appellant accused Dada @ Mahendra Jagtap is concerned, in terms of the memorandum panchnama and recovery panchnama Exh.48 and 49 respectively, certain articles shown to have been seized at his instance. There were blood stains on his white colour shirt. As per C. A. report Exh.85, human blood was detected on it. One motorcycle of Bajaj CT 100 make with chassis and engine number, as detailed in the panchnama, came to be seized at his instance. It is informed to us that said motorcycle belongs to deceased Kiran. We will discuss this evidence at the later part of the judgment in the light of the application submitted by the prosecution seeking permission to adduce evidence about said motorcycle. So far as the recovery of these articles, that too very belatedly on 5.11.2010 and 20.10.2020 respectively, we are not inclined to consider this as connecting evidence against the appellants accused.
24.
In the case of Navaneethakrishnan vs. The State by Inspector of Police, reported in (2018) 16 SCC 161 in para 18 and 22 of the judgment, the Supreme Court has made the following observations:- "18.
In the present case, there is no witness of the occurrence and it is only based on circumstantial evidence.
-26Before moving further, it would be apposite to refer the law regarding reliability of circumstantial evidence to acquit or convict an accused. The law regarding circumstantial evidence was aptly dealt with by this Court in Padala Veera Reddy vs. State of Andhra Pradesh and others 1989 Supp.
(2) SCC 706 wherein this Court has observed as under:- "10. .... (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
22.
PW-11 was able to identify all the three accused in the Court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the cross examination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an
-27independent witness. Once the testimony of PW-11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone can't discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration."
25.
In the case of Prabhoo vs. State of Uttar Pradesh, reported in 1963 AIR (SC) 1113; relied upon by Mr. Gaware, learned counsel for the appellant in criminal appeal No. 20 of 20214, the Supreme Court in para 10 has made the following observations;- "10. Therefore, the question before us is this. Is the production of the blood stained axe and clothes read in the light of the evidence regarding motive sufficient to lead to the conclusion that the appellant must be the murderer? It is wellsettled that circumstantial evidence must be such as to lead to a conclusion which on any reasonable hypothesis is consistent only with the guilt of the accused person and not with his innocence. The motive alleged in this case would operate not only on the appellant but on his father as well. From the mere production of the blood stained articles by the appellant one
-28cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated by the Sub-Inspector of Police. It cannot be said that the fact of production is consistent only with the guilt of the appellant and inconsistent with his innocence. We are of the opinion that the chain of circumstantial evidence is not complete in this case and the prosecution has unfortunately left missing links, probably because the prosecution adopted the short out of ascribing certain statements to the appellant which were clearly inadmissible."
26.
In the instant case, C.A. report Exh.85 was not put to the appellants accused during their statement recorded under Section 313 of Cr.P.C.
27.
In the case of Kiran Ashok Jadhav vs. State of Maharashtra, reported in 2014 (3) Bom.C.R. (Cri.) 33; relied upon by Mr. Gaware, learned counsel for the appellant in criminal appeal No. 20 of 20214, the Division Bench of this court by referring the observations of the Supreme Court in the case of SujitBiswas v. State of Assam (AIR 2013 SC 3817), in para 21 and 22 of the judgment has made the following observations;- "21. Learned counsel appearing for the Appellant has urged before us that the Chemical Analyzer's report which has been relied upon by the prosecution was not put in the form of question to the Appellant while recording his statement under Section 313 of the Criminal Procedure Code which has
-29caused great prejudice thereby affecting his right of being heard in the matter i.e. to say the requirement of following the principles of natural justice having been violated by the learned Trial Court. Learned counsel appearing for the Appellant relied upon the judgment of the Hon'ble Supreme Court in the case of (SujitBiswas v. State of Assam, AIR 2013 SC 3817). The Hon'ble Supreme Court in paragraph 12 of the said judgment has observed thus:
"12. It is a settled legal proposition that in a criminal trial, the purpose of examining the accused person under Section 313, Cr. P.C., is to meet the requirement of the principles of natural justice, i.e. audi alteram partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313, Cr. P.C., cannot be used against him and must be excluded from consideration. The said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement."
22. It is thus clear that the object of examination of the accused under Section 313 is to give an opportunity to him to explain the incriminating circumstances put forth by the prosecution against him. Section 313 also meets the
-30requirements of principles of natural justice. In the present case the prosecution has relied upon the Chemical Analyzer's report as an incriminating circumstance against the Appellant because bloodstains of Blood Group 'A' were found on the chopper, so also on the clothes of the accused. It was the duty of the Trial Court to examine the Appellant and to seek his explanation as regards the said incriminating material that has surfaced against him. As has been held by the Hon'ble Supreme Court in the case of SujitBiswas (supra), the circumstances which are not put to the Appellant in his examination under Section 313 of the Criminal Procedure Code, cannot be used against him and must be excluded from consideration."
28.
In the case of Raju Brijmohan Maurya vs. State of Maharashtra, reported in 2008 All M.R. (Cri.) 2632; relied upon by Mr. Gaware, learned counsel for the appellant in criminal appeal No. 20 of 20214, the Division Bench of this court in para 10 of the judgment has made the following observations;- "10.
As a matter of principle a mere recovery alone would not be sufficient to convict the accused on a substantive charge of murder under Section 302 of the Penal Code in the absence of substantive evidence. This principle would emerge from the judgment of the Supreme Court in (Baboo v. The State of Madhya Pradesh, AIR 1979 SC 1042). In a case which is based on circumstantial evidence, the Court would also have to be mindful of the fundamental principle of law that it is for the prosecution to establish all the links in the case which connect the accused to the offence beyond reasonable doubt. Moreover, in a case founded on circumstantial evidence, all the circumstances must be consistent only with
-31the guilt of the accused".
29.
In the case of Surendra vs. State of Rajasthan, reported in AIR 2012 SC (Supp) 78; relied upon by Mr. Shaikh, learned counsel for the appellant in criminal appeal No. 51 of 20214, the Supreme Court in para 4 has made the following observations;- "4.
We now come to the recoveries of the alleged murder weapons. The appellants were arrested on the 11th January, 2001 and the recoveries were made 2/3 days thereafter but the article were sent to the laboratory on the 19th of March, 2001. Even otherwise, we are of the opinion that as the evidence of last seen itself is unacceptable the recoveries by themselves would not make any difference. Moreover even if a false plea had been taken by the accused that by itself will not be enough to maintain their conviction and as the prosecution story itself suffers from glaring infirmities, the infirmities in the prosecution case cannot be filled up by a false plea of alibi. We are conscious of the fact that this is a case of double murder but in the absence of any cogent evidence, we are unable to sustain the conviction, We, accordingly, allow both the appeals and set aside the orders of the trial court as well as the High Court and direct the acquittal of the appellants."
30.
In the case of Anjan Kumar Sarma and Ors. vs. State of Assam, reported in AIR 2017 SC 2617; relied upon by Mr. Shaikh, learned counsel for the appellant in criminal appeal No. 51 of 20214, the Supreme Court in para 21 has made the following observations;- "21. It is clear from the above that in a case where the other
-32links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v.
Sanjay Thakran, (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under:- "34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out.
The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused.
-33deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons.
Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."
As we have held that the other circumstances relied upon by the prosecution are not proved and that the circumstances of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment
-34are not applicable to the facts of this case." 31.
In the instant case, we have carefully perused the contents of spot Panchnama Exh.33. It appears that alongwith other articles, one glass, one broken chillum meant for inhaling the Ganja and a Ganja packet came to be seized from the spot. The prosecution has failed to explain about the said articles. It is not the case of the prosecution that accused persons and deceased were addicted to Ganja also. It is well settled that the circumstance of last seen together may be relevant circumstance in a case where there was no possibility of any other person meeting or approaching the deceased at the place of incident or before commission of crime in the intervening period. It appears from the recovery of those articles as referred above from the spot and recorded in the contents of spot panchnama Exh.33 that the possibility of involvement of any other person meeting or approaching the deceased at the place of incident or before commission of the crime could not be ruled out. 32.
We are of the considered opinion that the prosecution has failed to fully establish the circumstance from which the conclusion of guilt of the accused is to be drawn. We do not find the circumstance having conclusive nature and tendency. There is no chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. Even accepting the prosecution case as it is, we do not think that in all
-35human probabilities, the act must have been done by the accused. The Supreme Court in the case of Anjan Kumar Sarma and Ors. vs. State of Assam (supra) has observed that in absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made basis of conviction.
33.
In the instant case, though the recovery of pair of shoes at the instance of appellant accused Dada @ Mahendra Jagtap is shown in panchnama Exh. 49, there is no further identification of the said pair of shoes as belonging to deceased. The prosecution has not examined any witness to link the said recovery of shoes with the commission of crime. Similarly, so far as the seizure of motorcycle at the instance of appellant accused Dada @ Mahendra is concerned, it is submitted that the said motorcycle belongs to brother of deceased Kuldip.
34.
The prosecution has filed criminal application No. 573 of 2020 seeking permission to adduce further evidence by examining two witnesses i.e. Dipak Patil, Deputy Regional Transport Officer for proving the letter dated 13.1.2020 and another Mr. Kuldip Sudam Bhingardive. It appears from the annexures of the said application that without there being any permission from the court and even without submitting any supplementary charge sheet, one letter issued by Regional Transport Officer, Ahmednagar is placed on record
-36which is dated 13.1.2020. The said motorcycle bearing registration No. MH-16-Y-1431 seized at the instance of the appellant accused Dada @ Mahendra belongs to one Dhiraj Sudam Bhingardive, who happened to be brother of deceased Kiran. According to learned A.P.P. crime was registered at Shrigonda police station and brother of deceased Kiran viz. Kuldip had lodged missing report at Tophkhana police station. It appears from the prosecution evidence that P.W.8 A.S.I. Somnath Shende was assigned with the inquiry of missing report. The said missing report is marked at Exh.52 which is admitted by the defence. Learned A.P.P.
submitted that it is mentioned in the report submitted alongwith the record and proceeding that deceased Kiran left the house on his motorcycle alongwith the appellant-accused Rohan and the said motorcycle was seized from appellant-accused Dada @ Mahendra. It is well settled that additional evidence may be necessary because there would be failure of justice without it. Even if the prosecution is permitted to adduce the additional evidence to the extent as prayed for in the said criminal application, however, there is no further connecting evidence in the entire prosecution story that deceased Kiran had been to the said Hotel alongwith the appellants accused persons on the same motorcycle. The prosecution story however, runs contrary to it. It has come in the prosecution case that the appellant accused Rohan has kept the motorcycle with P.
W.7 Vishal Darade as a security for the hand loan of Rs.5000/- and thereafter the appellant accused Rohan and deceased Kiran left that place on foot.
-37all that said motorcycle allegedly seized at the instance of the appellant accused Dada @ Mahendra was used in the commission of crime, in any manner.
35.
We find no reason to allow the criminal application No. 573 of 2020 filed seeking permission to adduce additional evidence by the prosecution, as no useful purpose would be served by allowing the same. Thus, we are not inclined to allow the said application. 36.
In view of the above discussion and the ratio laid down by the Supreme Court and this Court in various cases, as referred above, we are of the firm opinion that the prosecution has failed to establish the case beyond reasonable doubt against the appellants accused. According to us, at the most, strong suspicion is created against the appellants-accused suggesting their involvement in the crime. The said suspicion, however strong it may be, cannot take the form of legal proof. Both the appellants accused are thus entitled for the benefit of doubt. In view of above, we proceed to pass the following order:-
O R D E R
I.
Criminal appeal No. 20 of 2014 (Dada @ Mahendra s/o Shivaji Jagtap vs. State of Maharashtra) and criminal appeal No. 51 of 2014 (Rohan @ Sunny Uday Hazare
-38vs. State of Maharashtra) are hereby allowed. II.
The impugned the judgment and order of conviction passed by the Additional Sessions Judge, Ahmednagar dated 31.7.2013 in Sessions Case No. 41 of 2011 convicting thereby both the appellants i.e. Dada @ Mahendra s/o Shivaji Jagtap and Rohan @ Sunny Uday Hazare for the offence punishable under Section 302 r.w. 34 of I.P.C. and sentencing them to suffer life imprisonment and to pay fine of Rs.1000/- each i/d of payment of fine to suffer R.I. for six months each, is hereby quashed and set aside.
III.
The appellants accused Dada @ Mahendra s/o Shivaji Jagtap and Rohan @ Sunny Uday Hazare are hereby acquitted of all the charges. The appellants accused shall be set at free forthwith if not required in connection with any other case.
IV.
The fine amount, if deposited, shall be refunded to them.
V.
The appellants-accused Dada @ Mahendra s/o Shivaji Jagtap and Rohan @ Sunny Uday Hazare shall execute P.B. of Rs.15,000/- each with one surety each of the like amount to appear before the higher court as and when the notice is issued in respect of any appeal or petition filed against the judgment of this Court. Such bail bonds shall remain in force for a period of six months from the date of its execution. VI.
Criminal Appeal No. 20 of 2014 and criminal appeal
-39No. 51 of 2014 are accordingly disposed of. VII. Criminal application No. 573 of 2020 is hereby rejected. 35.
Since Mr. N.R. Shaikh, learned counsel is appointed to prosecute the cause of the appellant in criminal appeal No. 51 of 2014, we quantify his legal fees and expenses at Rs.5000/- (Rupees Five thousand only) to be paid by the High Court Legal Services, Sub-Committee, Aurangabad.
(S. G. DIGE, J.) (V. K. JADHAV, J.) rlj/