CDJ Law Journals

Shreeram V. Shirsat, J.

1. The present Appeal has been filed challenging the impugned Judgment and Order dated 18.12.2019 passed by the Additional Sessions Judge, Pune Dist. in Sessions Case no. 823/2016 whereby the Appellant was convicted of the offence punishable under section 302 r/w 34 of the Indian Penal Code (IPC) and has been sentenced to undergo Imprisonment for Life and pay a fine of Rs. 5,000/- and in default to undergo Simple Imprisonment for 3 months.

2. Briefly stated facts of the prosecution’s case are as under:

                   a. On 26.05.2016, at about 10.30 p.m., the informant (mother of deceased Suraj @ Bablu) observed that her son’s mobile phone was ringing. Upon answering the call, the caller had disclosed his name as Prakash. Thereafter, Suraj woke up and called him back. After some time, both the Accused, Prakash Bhosale and Subhash Kengar, arrived at the house of Suraj on motorcycle and took away the deceased Suraj on their motorcycle at about 11 p.m.

                   b. On 27.05.2016, at about 04.00 a.m., person named Gaikwad, accompanied by police personnel, came to the house of the mother of the deceased and informed her that one boy is lying in injured condition near Renuka Mata Temple, Keshav Nagar, Mundhwa, at Amrai. The mother identified him to be her son who was lying in a pool of blood in an injured condition with injuries on his face and head.

                   c. On the basis of her report, Crime No. 108/2016 came to be registered with Mundhwa Police Station, Pune, for an offence punishable under Section 302 r/w Section 34 of the Indian Penal Code against the present Appellant and Subash Kengar.

                   d. Thereafter, the investigation commenced. The post-mortem was performed by Dr. Amol Shinde, which disclosed that the deceased died due to a crush injury to the head with blunt trauma to the chest and abdomen. The present Appellant and the other Accused came to be arrested on 27.05.2016.

3. Charges were framed under Sections 302 r/w 34 of the Indian Penal Code against the present Accused-Appellant and co-Accused Subash Kengar to which they pleaded not guilty and claimed to be tried.

4. To bring home the guilt of the Accused, the prosecution in all examined 16 witnesses (PW 1 to PW 16). No defence evidence was led.

PW 1	Rama Vilas Atole	Mother of the deceased. Informant who lodged F.I.R.
PW 2	Vicky Vilas Atole	Brother of the deceased.
PW 3	Ishwar Vithoba Tikone	Watchman at Amrai and neighbour of the deceased.
PW 4	Pradeep Babasaheb Gaikwad	Owner of the Tea stall at Mundhwa Signal Chowk, who had accompanied the police to the spot of incident and identified the deceased.
PW 5	Shakur Alam Khan Pathan	Police Naik who was on night patrolling duty on 26.5.2016.
PW 6	Rameshwar Lohakare	Police Constable and the carrier who carried Muddemal to FSL Pune.
PW 7	Kisan Madhukar Gawali	Spot Panch for seizure of blood stained stone, Beer Bottle and one Pair of Chappal seized on 27.05.2016.
PW 8	Lomesh Siddharam Gaikwad	Panch witness for seizure of clothes of both the accused.
PW 9	Dr. Amol Balwant Shinde	Doctor who conducted autopsy on the dead body of deceased on 27.05.2016.
PW 10	Kailas Dagadu Chavan	Police Constable and the friend of the deceased whom the deceased had called at 12 mid-night to inform about the quarrel.
PW 11	Yogesh Kakade	Police Constable and carrier who took 6 sealed bottles at FSL, Pune.
PW 12	Sachin Pawar	Panch witness for Seizure of Bajaj Pulsar Motorcycle.
PW 13	Mandar Godambe	Nodal Officer- Bharti Airtel Ltd.
PW 14	Dattaram Angre	Nodal Officer - Vodafone Idea Ltd.
PW 15	Rajendra Bapu Chavan	Investigating Officer - I
PW 16	Mahendra Jagtap	Investigating Officer – II

5. After hearing the arguments of prosecution and defence, vide order dated 18.12.2019, the Sessions Court was pleased to convict the Accused- Appellant under Section 302 r/w 34 of the Indian Penal Code (IPC) and has been sentenced to undergo Imprisonment for life and pay a fine of Rs. 5,000/- and in default to undergo Simple Imprisonment for 3 months.

6. Being aggrieved by the said judgment and order of conviction in Sessions Case No. 823/2016, dated 18.12.2019, passed by the Additional Sessions Judge, Pune Dist., the Appellant has approached this Hon'ble Court by way of Appeal.

7. The co-Accused had also preferred the Appeal being Criminal Appeal No.1061 of 2021 challenging the conviction. The Appeal was admitted. However, during the pendency of the Appeal, the co-Accused expired and therefore his Appeal stood abated. This Court vide order dated 12th February 2025 recorded the said fact.

8. We have heard Mr. Priyal Sarda, Learned Counsel for the Appellant and Ms. Sharmila Kaushik, Learned APP for the Respondent-State.

9. The Ld. Counsel for the Appellant has submitted that there is no eye witness and the case is based on circumstantial evidence. He submitted that although the Accused were last seen with the deceased, there was nothing amiss or unusual as they were known to each other and in the natural course of events, the Appellants had telephoned the deceased and thereafter had gone with him. He further submitted that there was no quarrel which had taken place and therefore there was no ostensible motive which has been brought on record by the prosecution. The Ld. Counsel further submitted that the only motive according to prosecution is that there was some quarrel 4 to 6 months back, however there was no complaint lodged for the same and therefore it cannot be said that motive is established. The Ld. Counsel has further submitted that PW 3 claims that he saw the deceased being assaulted by two accused at around 12:00 a.m., however he did not inform the family of the deceased, despite residing in the neighbourhood and instead he went back to sleep, which is an unnatural conduct. He submitted that PW 3 deposing that he had seen the deceased being assaulted by the Accused has come by way of omission and therefore no credence can be placed on his evidence. He further submitted that PW 3 did not know the Accused and therefore the Investigating Agency ought to have conducted TI Parade to establish the identity of the Accused. Lastly, he submitted that even the CA report is inconclusive and therefore there is nothing to connect the Appellant with the alleged crime in question and that the last seen theory cannot be considered in isolation.

10. The Ld. Counsel for the Appellant relied upon the judgment of Kanhaiyalal vs. State of Rajasthan((2014) 4 Supreme Court Cases 715.).

11. Per Contra the Learned Addl. Public Prosecutor has submitted that the Ld. Trial Court has rightly convicted the Appellant and the other co-Accused and therefore the conviction deserves to be confirmed. She has further submitted that the last seen theory is absolutely believable and there is nothing to disbelieve the said witness who is the mother and the brother of the deceased. Ld. APP has submitted that the injuries inflicted are brutal and as many as 24 injuries have been found on the body of the deceased. She further submitted that the Accused called the deceased out of the house and took him away on the motorcycle, however under Section 313 CrPC the Appellant and the other co-Accused have failed to explain why they took him away with them and till what time they were with the deceased and therefore the theory of last seen has been established beyond reasonable doubt, in the absence of any explanation offered by the Appellant.

12. This is a case based on circumstantial evidence. There is no eyewitness. Therefore, as held time and again by this Court as well by various courts and the Hon’ble Apex Court, where the evidence is of a circumstantial nature or where the case is based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the Accused. Therefore, the circumstances should be of a conclusive nature and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the Accused and it must be such as to show that within all human probability the act must have been done by the Accused.

13. Although the Ld. Trial Court in the judgment acknowledges that the case is based on circumstantial evidence, however the Ld. Trial Court has not enumerated the chain of circumstances by which, according to the Ld. Trial Court, the prosecution has proved its case. Therefore, this Court from the evidence on record, finds the following circumstances to be relevant to ascertain whether the entire chain of circumstances leading to the conviction of the Appellant has been proved or not.

14. The following are circumstances which can be derived from the evidence on record and which are discussed herein below in seriatim.

                   (a) Last Seen Together

                   (b) Motive

                   (c) Call Detail Records between the Appellant and the Deceased on 26.5.2016.

                   (d) Recovery of blood stained clothes

LAST SEEN TOGETHER :

15. On the point of Last Seen Together theory, the prosecution is relying upon evidence of PW 1 - Mother of the deceased, PW 2 – Brother of the deceased and to an extent PW 3 – Watchman at the Amrai who is also the neighbor of PW 1 and 2.

16. PW 1, Rama Vilas Atole, the mother of the deceased has deposed that at 11.00 p.m. one phone call was received on the mobile of her son Suraj (@ Bablu), i.e., the deceased which she had attended since the deceased was sleeping. She has deposed that the Accused Prakash told her to wake up Bablu. She has further deposed that at the same time the deceased woke up and asked her as to who had made a call to which she replied that Prakash had telephoned. She has further deposed that Prakash had a conversation with her son on the mobile phone and Prakash told him to come outside the house as one program was arranged. She has further deposed that after present Appellant and Subhash Kengar came outside the house, she herself, her son Vicky, daughter-in-law and the deceased went outside the house. She has deposed that the Accused parked their vehicle at some distance from the house and they were having a talk with her son and after sometime they took him away on their vehicle. She has further deposed that as her son did not return back till 3 a.m., she got frightened because earlier prior to 4 to 6 months, there was a quarrel between her son with both the Accused. She has further deposed that at 3:30 a.m. to 4 a.m., police and one Gaikwad of their locality came to her house to inform that one person was lying near Renuka Mata Mandir, Keshav Nagar Ambrai Kondhwa. She has further deposed that after reaching there, she saw her son lying in a pool of blood, having several injuries on his body, and at the spot, there was one big stone and bottles of beer. She has deposed that she lodged a complaint. In the cross-examination, she has replied that at the spot of the incident, there was darkness. She has also admitted that they had not lodged any report about the quarrel which took place 4 to 6 months ago.

17. PW 2 who is the brother of the deceased has deposed that at 11.00 p.m. he woke up and found the door in an open condition and he had seen his mother, brother and the deceased and his wife were outside the house. He has deposed that he also came outside the house and had seen a friend of Suraj, i.e., the present Appellant and Subhash Kengar had come near their house and were talking to his brother Suraj. He has further deposed that the Appellant and Subhash took his brother on a two-wheeler. He has further deposed that he knows the Appellant and the co-Accused Subash. He has further deposed that after the police came to his house and informed about the deceased, he and his father went to the spot and saw Suraj in injured condition. He also saw one stone and beer bottles. In the cross-examination, PW 2 has admitted that Prakash and Subhash had come in front of their house between 10.00 p.m. to 11.00 p.m. and were there for 15 to 20 minutes. He has further answered that they were talking in low voice and no quarrel took place at that time.

18. PW 3, the watchman at Amrai (Mango Orchard) and also the neighbor of PW 1 and PW 2 has deposed he was working as a watchman at the time of incident at Amrai and his duty hours were 08.00 p.m. to 08.00 a.m. He has deposed that at about 11.00 p.m, he went towards his house for dinner and in front of Renuka Mata Mandir, he saw both the Accused and deceased Suraj. He has further deposed that he went to house, took dinner and returned back at 12.00 midnight when he saw both the Accused and deceased at Amrai. He has also deposed that both the Accused and Suraj were consuming liquor. He has also deposed that the Accused assaulted the deceased by beer bottle and upon seeing this he got frightened and went towards his house and slept and woke up at 6.00 a.m. He has deposed that he had seen the dead body of Suraj @ Bablu at Amrai. In the cross-examination, he has admitted that he had no document to show that he was working as a watchman with one Dhume Saheb. He has also admitted that he had not informed the police about assault by the Accused. He has further admitted in the cross examination that he is acquainted with the police officer and Police Officer Chavan told him to give evidence before the Court. He has further deposed that he had not stated anything to the police at the spot and on the next day he was called to the police station and was shown the two arrested persons and told that these are those persons who assaulted. He has further deposed that he identified both the Accused at the instance of the police. Further he volunteers that he told the police that both the persons are the same.

19. Although the accused and deceased were last seen as deposed by PW 1, PW 2 and PW 3, the same cannot be the sole factor to come to a conclusion that the authors of the crime were the Accused only. In the case of circumstantial evidence where the circumstance of last seen together is considered, there must be something more establishing the nexus between the accused and crime. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who has committed the crime. In the present case, apart from the fact of PW 1 and PW 2 having last seen the deceased and the Accused together, the prosecution has not been able to bring on record any other evidence of the events which happened thereafter which would connect the Appellant to the crime in question. The recovery of the bloodstained clothes of the Appellant has also not been conclusively proved as the report of the CA report records the findings to be inconclusive.

20. PW 3 seems to be a got up witness by the prosecution as he has in no uncertain terms stated that he has identified the Accused at the instance of the police and the police had told him that these are those persons who assaulted. PW 3 thereafter tried to salvage the situation by volunteering that he told the police that both the persons are the same but overall this witness does not inspire confidence.

21. Another aspect which needs to be taken into consideration is that the deceased and the Accused were last seen together by PW 1, PW 2 at 11.00 p.m. and the body is seen at around 3.00 a.m. in the morning. Therefore, the time gap is also wide and therefore the possibility of any third person intervening cannot be ruled out. It has come in the evidence of PW 3 that at around 12.00 midnight, he after seeing the Accused assaulting the deceased with a beer bottle, got frightened and went home. That PW 3 saw the Accused assaulting the deceased by beer bottle has come as by way of omission. Nonetheless to draw an inference as to what happened after 12.00 midnight when PW 3 had gone back to his house, till the body was found in an injured condition, there must be some material to connect the Accused-Appellant and also some cogent material to show that possibility of any third person intervening was improbable. It is not even the case of the prosecution that the Amrai was guarded by any other watchman at night or the gate was locked. Therefore, even though the testimony of PW 1 and PW 2 cannot be doubted to the extent that they had last seen Appellant and the deceased together at 11 p.m., when the Accused took the deceased on a motorcycle, there is no other circumstance brought on record as to what happened thereafter between 12 mid-night and in the intervening hours till 3 a.m. which would connect the present Appellant to the incident in question. The other material which could have connected the Appellant to the death of the deceased was the recovery of blood stained clothes of the Accused-Appellant. However, the result of the Chemical Analyser about blood stains on the clothes of the Appellant is inconclusive. The blood stains found on stone are also inconclusive. There are no finger prints found on the beer bottles as per Finger Print Expert report at Exhibit 67. Therefore, there is no other evidence to connect the present Appellant to the death of the deceased even if this Court takes into consideration the evidence of PW 1 and PW 2 about last seen together which is a singular piece of circumstantial evidence available against the Appellant.

22. The Learned Counsel for the Appellant has rightly relied upon the judgement of Kanhaiyalal vs. State of Rajasthan (supra) wherein it is observed as under :

                   “12. 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. Mere nonexplanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.”

                   “15. The theory of last seen – the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh vs. State of Rajasthan (2010) 15 SCC 588.”

23. In the latest judgment of the Hon’ble Supreme Court in the case of Nazim & Ors. vs. The State of Uttarakhand([2025] 10 S.C.R. 263), it has been held as under :

                   “Even apart from the deficiencies in identification, the ‘last-seen’ theory is itself a weak link unless the prosecution establishes a narrow time gap between when the accused and the deceased were seen together and the recovery of the body, such that the possibility of intervention by a third person is excluded.

                   At this juncture, it is relevant to refer to the following decisions:

                   a. This Court has consistently cautioned against treating the lastseen circumstance as conclusive proof of guilt. In State of U.P. v. Satish4, it was observed :

                   “22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases....”

MOTIVE :

24. The other circumstance which the prosecution has relied upon is the “Motive”. The prosecution through PW 1 and PW 2 has tried to bring on record the motive behind the murder of the deceased. PW 1 in her deposition has stated that prior to four to six months there was quarrel between her son and both the Accused. Even though a feeble attempt is made by the prosecution through PW 1 who in her deposition has stated that prior to four to six months there was quarrel between her son and both the Accused, the prosecution has failed to bring convincing material in support of her version. In the crossexamination she has admitted that there was no complaint lodged about the quarrel which took place 4 to 6 months ago about the alleged incident. PW 15 has also admitted in the cross examination that he had not collected any evidence about the previous quarrel of the Accused No. 1 and the deceased.

25. Further to prove motive, the prosecution has also examined PW 10 - Kailash Chavan, Police Constable attached to Mundhwa Police Station and friend of the deceased to show that the deceased had informed PW 10 about the quarrel which was going on between them at 12 mid-night. The said witness has deposed that he received a phone call at about 12.00 midnight from the deceased who told him that he alongwith his friend Prakash Bhosale and one Kengar went drinking liquor at Gairan Vasti, Amrai. He has further deposed that due to previous quarrel they were quarreling with him. He has further deposed that he told the deceased that he was at Hyderabad and to call on No. 100 so that police will come there. If the deposition of this witness is analyzed at the most it can be inferred that till 12.00 midnight the Accused and the deceased were together and on account of previous quarrel, they were quarreling with the deceased. However, that itself cannot be a sufficient ground to come to a conclusion that the present Appellant must have committed the murder of the deceased. As far as the previous quarrel is concerned there is no material on record. PW 16 has also admitted that he had not filed any documents about the conversation between the deceased and PW 10. Motive may be an important circumstance in a case based on circumstantial evidence but cannot take the place as a conclusive proof that the person concerned was the author of the crime. One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the Accused, but suspicion, however strong, cannot be a substitute for proof of the guilt of the Accused beyond reasonable doubt. Therefore, this Court cannot come to a conclusion that Motive has been successfully proved by the prosecution. Further, PW 9 Dr. Amol Shinde in his cross examination has replied that it is not mentioned in the PM Notes that the deceased had consumed alcohol.

CALL DETAIL RECORDS :

26. By examining PW 13 and PW 14, the Nodal Officers of mobile companies, the prosecution tried to prove that the calls were made by the Appellant on 26.5.2016 to the deceased. If the evidence of these two witnesses is perused, it would reveal that as per the CDRs the Appellant had made phone calls from his mobile number 9766273394 on the number of the deceased on 9146372344. PW 13 ascertained from the records that there were 3 calls made after 10 p.m. and onwards, from mobile number 9766273394 to mobile number 9146372344. PW 14 also confirms the said fact. PW 16, the IO has deposed that after going through the CDRs, he came to know that the present Appellant made three calls on 26.5.2016 i.e. at 22:48, 22:51, 23:14 to the deceased. Even if the CDRs are taken into consideration to show the nexus between the Appellant and the deceased, it will at the most prove that the Appellant had contacted the deceased at around 11 p.m. on 26.5.2016 which fact this Court also does not disbelieve. As stated above the theory of last seen as deposed by PW 1 and PW 2 is found to be believable, so also the evidence about the Appellant calling the deceased on his cell number cannot be disputed, however the fact remains whether this piece of evidence by itself is sufficient to hold the Appellant guilty of the murder of the deceased, as there is no evidence or other incriminating material brought on record against the Appellant to connect him with this incident. Therefore, even this circumstance cannot be said to be conclusively proved to indict the present Appellant.

RECOVERY OF BLOOD STAINED CLOTHES :

27. The other circumstance which is discussed by the Ld. Trial Court is the recovery of blood stained clothes of the Appellant. To prove this circumstance, the prosecution has examined PW 8 Panch witness. Although in the examination in chief he has deposed that the police seized the clothes of the Accused-Appellant, in the cross examination has clearly stated that police did not show him the clothes and Accused and that police had obtained his signature on already prepared panchnama. Therefore, evidence of this witness is of no avail to the prosecution. Further as per the report of Chemical Analyser at Exhibit 15, the blood grouping result is inconclusive and therefore no further discussion is warranted on this issue.

OTHER CIRCUMSTANCES :

28. The prosecution has also relied upon PW 5 to establish the indictment against the Appellant.

29. PW 5 is the Police Constable who was on the patrolling duty at night on 26.5.2016 alongwith one Police Head Constable Sarode. He has deposed that at about 2 a.m. when they were on patrolling duty some boys told that there was a quarrel near Renuka Mata Temple and the noise was being heard. He has deposed that he called PSI Giri at Renuka Mata Temple. He has further deposed that they saw one boy in an injured condition who had sustained injury on his head, face and blood was oozing out. He has further deposed about how he contacted the local tea stall person in the vicinity to find out the identity of the injured person. In the cross examination he has admitted that there was no electricity at the spot of the incident. He has also admitted that the family member of the deceased Bablu had disclosed that the deceased had gone with one Laxman. Examining this witness has not taken the case of the prosecution any further. However, it has further created a doubt as to whether the deceased had gone out with the Appellant and one Subash or with one Laxman, as according to this witness the family member of the deceased had disclosed to him that deceased had gone with one Laxman.

30. Thus, if the entire evidence is meticulously analyzed, no doubt it raises suspicion, but in the absence of any cogent and convincing material being brought on record showing involvement of the present Appellant it will be hazardous to confirm the conviction of the Appellant. Mere suspicion, however strong it may be, is not enough and cannot take the place of proof. This Court therefore is of the considered opinion that from the facts and evidence, none of the circumstances have been proved which could sustain the conviction of the Appellant. As the result, this Court is of the opinion that the Ld. Trial Court has erroneously returned a finding of conviction and therefore the judgment and order convicting the Appellant deserves to be set aside.

31. As a result, we pass the following order :

                   ORDER

                   i. The Appeal is allowed.

                   ii. The conviction and sentence of the Appellant under Section 302 of the Indian Penal Code recorded vide impugned judgment and order dated 18.12.2019 in Sessions Case No. 823/16, passed by the Additional Sessions Judge, Pune, is quashed and set aside, and the Appellant is acquitted of the charges he is charged with.

                   iii. The Appellant be released forthwith, if not required in any other case. iv. Before his release the Appellant shall execute P R Bond in the sum of Rs.25,000/- under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (corresponding to Section 437A of the Cr.PC) for his appearance, in the event an Appeal is preferred against acquittal.

32. Appeal stands disposed of accordingly. Pending Applications, if any, also stand disposed of.

This Product is Licensed to ,

Change Font Style & Size Show / Hide