Rahul S/O Raju Kalamkar ... vs The State Of Maharashtra Through ...
2017 Latest Caselaw 6352 Bom

APEAL 364 to 366, 379 & 530 of 2013                 1                 Common  Judgment

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR.

                   CRIMINAL APPEAL No. 364/2013
Amol @ Chintu s/o Krushna Lanjewar, 
Aged about 19 years, Occ. - Private, 
R/o Nehru Nagar, Near the house of Bandu 
Telwale, Prajapati Nagar Chowk, 
P.S. Nandanvan, Nagpur.                                                  ... APPELLANT

                      .....VERSUS.....

The State of Maharashtra, 
Through P.S.O., P.S. Nandanvan, 
Dist. Nagpur.                                                             ... RESPONDE
                                                                                       NT
Shri R. M. Daga, Counsel for the appellant.
Shri S. S. Doifode, Additional Public Prosecutor for the respondent

                                  WITH
                   CRIMINAL APPEAL No. 365/2013
Jagdish @ Jaggu s/o Vitthalrao Kosurkar, 
Aged about 28 years, Occ. - Private, 
R/o Garoba Maidan, Mate Chowk, 
Plot No. 286, PS Lakadganj, 
Nagpur.                                                                  ... APPELLANT

                      .....VERSUS.....

The State of Maharashtra, 
Through Police Station Officer, 
Polce Station Nandanvan, 
District Nagpur.                                                          ... RESPONDE
                                                                                       NT
Shri R. M. Daga, Counsel for the appellant.
Shri S. S. Doifode, Additional Public Prosecutor for the respondent
                                     WITH
                      CRIMINAL APPEAL No. 366/2013
(1) Palash Sanjay Suryawanshi, 
      Aged 20 years, Occ. - Private Service, 
      R/o Garoba Maidan, In front of 
      Buki Clinic, P.S. Lakadganj, 
      Nagpur.

(2) Manoj @ Chaman s/o Ashok Dasarwar,
      Aged about 30 years, 
      Occ. - Private Service, 



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 APEAL 364 to 366, 379 & 530 of 2013                 2                 Common  Judgment

 (3) Kusum w/o Ashok Dasarwar, 
       Aged about 56 years, 
       Occ. - Household 
       Nos. 2 & 3 R/o. Garoba Maidan, 
       Nagpur & Vyankatesh Nagar, 
       Nandanwan Area, Block F, 
       Flat No. 222, P.S. Nandanwan, 
       Nagpur.                                                             ... APPELLANTS

                      .....VERSUS.....

State of Maharashtra, 
Through P.S.O., Nandanvan, 
District Nagpur.                                                          ... RESPONDE
                                                                                       NT
Shri R. M. Patwardhan, Counsel for the appellants.
Shri S. S. Doifode, Additional Public Prosecutor for the respondent
                                  WITH
                   CRIMINAL APPEAL No. 379/2013
Rahul s/o Raju Kalamkar, 
Aged about 24 years, Occ. - Private, 
R/o. Flat No. 265, C/o. Gendlal Kalse, 
Near Durga Mandir, Ganesh Nagar, 
P.S. Kotwali, Nagpur.                                                    ... APPELLANT

                      .....VERSUS.....

The State of Maharashtra, 
Through Police Station Officer, 
Police Station Nandanvan, 
Dist. Nagpur.                                                             ... RESPONDE
                                                                                       NT
Shri L. B. Khergade Counsel for the appellant.
Shri S. S. Doifode, Additional Public Prosecutor for the respondent
                                WITH
                    CRIMINAL APPEAL No. 530/2013
Girish @ Nanu s/o Ashok Dasarwar 
Aged 24 years, Occ. - Private, 
R/o Vyanktesh Nagar, 
Nandanvan Area, Block F, 
Flat No. 222, P.S. Nandanvan, 
Nagpur.                                                                  ... APPELLANT


                      .....VERSUS.....




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 APEAL 364 to 366, 379 & 530 of 2013                 3                 Common  Judgment

State of Maharashtra, 
Through P.S.O., P.S. Nandanvan.                                           ... RESPONDE
                                                                                       NT
Shri A. K. Bhangde, Counsel for the appellant.
Shri S. S. Doifode, Additional Public Prosecutor for the respondent


                                     CORAM : SMT VASANTI  A  NAIK AND
                                                M.G. GIRATKAR, JJ.                

DATE : 16 & 18 TH AUGUST, 2017.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

Since these criminal appeals arise out of the judgment of the

Ad-hoc Additional Sessions Judge, Nagpur, dated 27-6-2013 in Sessions

Trial No. 158 of 2012, they are heard together and are decided by this

common judgment.

2. According to the prosecution case, Dinesh Bukkawan, aged

about 29 years was residing in Vyankatesh Nagar, Nagpur and was

running a pool parlour in the name 'Master Snookers', near the main gate

of Vyankatesh Nagar. Dinesh was earning sufficient income from the pool

parlour but he closed down the same in the month of October-2011 and

shifted to Bhandara. According to the prosecution, accused no.3-Rahul

Kalamkar, the appellant in Criminal Appeal No. 379 of 2013 was working

as a servant in the pool parlour of Dinesh. It is alleged that accused Girish

@ Nanu, the appellant in Criminal Appeal No. 530 of 2013 and Jagdish @

Jaggu, the appellant in Criminal Appeal No. 365 of 2013, were regularly

APEAL 364 to 366, 379 & 530 of 2013 4 Common Judgment

visiting the pool parlour run by Dinesh for playing games. The accused

nos.1 to 5 are friends and accused no.6-Manoj and accused no.7 Kusum

are the brother and mother respectively of accused no.1-Girish. After

Dinesh closed his pool parlour, accused no.3-Rahul became jobless and

the accused nos.1 and 2-Girish @ Nanu and Jagdish @ Jaggu started

pressurizing Dinesh to sell the pool parlour to them. Dinesh was not ready

to sell the pool parlour to accused no.1-Girish @ Nanu and accused

no.2-Jagdish @ Jaggu and he had informed about this fact to his brother

Pankaj. It is the case of the prosecution that on 9-11-2011, Dinesh left

Bhandara for going to Nagpur on his Bajaj Pulsar motorcycle. It is alleged

that while leaving the house at Bhandara, Dinesh had told his family

members that he would return by evening. The relatives of Dinesh had

called him in the afternoon and Dinesh had told them that he would

return to Bhandara by evening. That after some time Dinesh stopped

receiving the phone calls as his phone was switched off. It is the case of

the prosecution that the family members and friends of Dinesh started

searching for Dinesh and the brother-in-law of Dinesh - Anil Ambade

(PW3) reported the matter to Nandanvan Police Station. The 'missing'

complaint was lodged but Dinesh was not traced till 16-12-2012.

According to the prosecution, on 16-12-2012, Pankaj, the brother of

Dinesh (PW1) and Anil Ambade, the brother-in-law of Dinesh went to the

house of accused no.1-Girish, at Flat No.222-F in Vyankatesh Nagar and at

APEAL 364 to 366, 379 & 530 of 2013 5 Common Judgment

that time accused nos. 6 and 7, the brother and the mother of accused

no.1-Girish, were present in the flat. Since Pankaj and Anil Ambade

noticed some foul smell, they enquired with the accused no.7 Kusum

about the same and accused no.7 told that it was possible that a rat may

have died. PW1 Pankaj and PW3 Anil Ambade then went in the direction

from where the foul smell was coming and they noticed a blue coloured

drum kept in the bedroom of the flat. Since the foul smell seemed to have

been coming from the drum, the cover of the drum was opened and

Pankaj (PW1) and Anil Ambade (PW3) saw the dead body of Dinesh in

the drum in the sitting position. Immediately, Pankaj, went to Nandanvan

Police Station to lodge a report and the first information report was

registered.

3. After the recovery of the dead body of Dinesh from Flat No.

222-F, the investigating officer conducted the investigation and a charge-

sheet was filed. The charge was read over and explained to the accused

persons and since they pleaded not guilty and claimed to be tried, the

statements of the accused were recorded under the provisions of Section

313 of the Code of Criminal Procedure. After recording the evidence and

hearing the parties, by the judgment and order dated 27-6-2013, the trial

Court convicted accused no.1-Girish @ Nanu, accused no.2-Jagdish @

Jaggu, accused no.3-Rahul, accused no.4-Amol and accused no.5-Palash

for the offences punishable under Section 302 read with Section 34 of

APEAL 364 to 366, 379 & 530 of 2013 6 Common Judgment

the Penal Code and sentenced them to suffer imprisonment for life and

to pay fine of Rs. 2,000/- each and in default of payment of fine to suffer

rigorous imprisonment for six months. The accused nos.1 to 3 were

convicted for the offences punishable under Section 120(b) of the Penal

Code and were sentenced to suffer life imprisonment and to pay fine of

Rs. 2,000/- each and in default of payment of fine to suffer rigorous

imprisonment for six months. All the accused were held to be guilty of

the offences punishable under Section 201 read with Section 34 of the

Penal Code and were sentenced to suffer rigorous imprisonment for seven

years and to pay fine of Rs. 2,000/- each and in default of payment of fine

to suffer rigorous imprisonment for three months. While convicting the

accused, the trial Court held that the accused nos.1 to 3 had a motive to

kill Dinesh as they wanted the pool parlour and he was not ready to sell

the same. The trial Court held that the accused nos.1 to 3 had hatched

the conspiracy to kill Dinesh in order to grab the pool parlour and that

accused no.1-Girish @ Nanu had called accused nos.4 and 5 to Flat

No.222-F with a view to convince Dinesh to sell the pool parlour. The trial

Court held that the accused nos.1 to 7 had caused the disappearance of

the evidence i.e. the dead body of Dinesh, his motorcycle, his mobile

phones, his shoes, etc. and had thereby destroyed the evidence of murder

and hence, they were guilty of the offences punishable under Section 201

read with Section 34 of the Penal Code. The trial Court held that in

APEAL 364 to 366, 379 & 530 of 2013 7 Common Judgment

furtherance of the common intention, the accused nos.1 to 5 committed

the murder of Dinesh and therefore, they were liable to be convicted for

the offences punishable under Section 302 read with Section 34 of the

Penal Code. Being aggrieved by the judgment of the trial Court, the

accused nos.1 to 4 have filed separate appeals and the accused nos.5 to 7

have filed Criminal Appeal No. 366 of 2013.

4. Shri Bhangde, the learned counsel for accused no.1-Girish @

Nanu submitted that the trial Court has not considered the entire evidence

on record, specially the evidence that could have falsified the case of the

prosecution. It is submitted that the prosecution has failed to prove

beyond reasonable doubt that the death of Dinesh was homicidal. It is

submitted that the postmortem report would clearly show that there were

no external injuries on the body of the deceased and the hyoid bone and

vertebrae was intact. It is submitted that the opinion that the death could

be homicidal is not based on medical evidence but is based on the

circumstance that the body of the deceased was found in a drum. It is

submitted that neither is the cause of the death of the deceased

mentioned in the postmortem report nor is the time of the death of the

deceased stated in the same. It is stated that it is vaguely observed in the

report that the death could have occurred between 7 to 30 days prior to

the conducting of the postmortem procedure. It is stated that there is

ample evidence on record to point out that accused Girish @ Nanu was

APEAL 364 to 366, 379 & 530 of 2013 8 Common Judgment

not residing in Flat No.222-F at Vyankatesh Nagar, Nagpur and the case of

the prosecution in that regard is false. It is submitted that the panch

witness to the statement of the accused no's 2, 4 and 5 under Section 27

of the Evidence Act and the alleged recovery has turned hostile and the

admissions of the Investigating Officer Shri Nandurkar in his cross-

examination would falsify the alleged recovery of the motorcycle and the

mobile phones. It is submitted that it is apparent from the admissions of

the investigating officer in his cross-examination that the mobile phones,

the motorcycle and the shoes that were purportedly recovered by the

investigating officer on the basis of the alleged statements made by the

accused under Section 27 of the Evidence Act were not identified to be

that of deceased Dinesh. It is submitted that the 'last seen together' theory

of the prosecution should also fail as Pradeep Rehpade (PW2) has clearly

admitted in his cross-examination that though he was called to

Nandanvan Police Station 10-12 days after the incident dated 9-11-2011,

he had not told the police that he had seen deceased Dinesh along with

accused no.1-Girish @ Nanu and accused no.3-Rahul, on 9-11-2011. It is

stated that since the time of the death is not known and as per the

postmortem examination the death could have occurred between 7 to

30 days before the postmortem procedure was conducted, the 'last

seen together' theory cannot be applied even assuming that the

prosecution has proved that Pradeep Rehpade had seen accused nos.1 and

APEAL 364 to 366, 379 & 530 of 2013 9 Common Judgment

3 with the deceased on 9-11-2011. It is submitted that there has to be a

proximity of time between the occurrence of death and the time when the

accused and the deceased were last seen together. It is submitted that

since the offences could not have been proved against the accused on the

basis of prosecution evidence, the trial Court ought to have acquitted the

accused.

5. Shri Daga, the learned counsel for accused no.2-Jagdish and

accused no.4-Amol, submitted that the only evidence against accused-

Jagdish and accused no.4-Amol is the recovery of the motorcycle

and the mobile phone on the statements made by Jagdish and Amol

respectively under Section 27 of the Evidence Act. It is submitted

by referring to the cross-examination of the investigating officer

Shri Nandurkar that the identity of the mobile phone is not proved by the

prosecution. It is submitted that it is apparent from the cross-examination

of the investigating officer that the prosecution did not take any steps

to identify the handset that was recovered from the house of accused

no.4-Amol to be the mobile phone of Dinesh. It is submitted that it is clear

from the cross-examination of the investigating officer that he had not

made any enquiry in whose name the company had issued the handset

and in whose name the sim card was issued by the company. It is

submitted that the investigating officer had also admitted that he did not

find out the IMEI number of the mobile phone and also did not make an

APEAL 364 to 366, 379 & 530 of 2013 10 Common Judgment

enquiry to whom the said mobile phone was sold by the company. It is

stated that it is clear from the cross-examination of the investigating

officer that the handset that was allegedly recovered from the house of

accused no.4-Amol was not identified to be the handset of deceased

Dinesh. It is stated that similarly the investigating officer had admitted in

his cross-examination that he had not recorded the statement of the

contractor of the parking area in the railway station where the Bajaj

Pulsar motorcycle of Dinesh was parked. It is stated that it appears

from the cross-examination of the investigating officer that he did not

ask the contractor whether he had made any complaint about the vehicle

lying in the parking area for past several days and had also not asked

the contractor of the parking area or the workers in the parking area,

who had parked the said vehicle in the parking area by showing the

photographs of deceased Dinesh or accused no.2-Jagdish. It is stated

that in the aforesaid set of facts, it cannot be said that on the statements

allegedly made by the accused nos.2 and 4, the motorcycle and the

handset were recovered, more so when the panch witness had turned

hostile and has denied that the statements under Section 27 of the

Evidence Act were made by the accused nos.2 and 4 in his presence. It

is stated that even assuming that the recovery is proved, an offence

under Section 302 of the Penal Code cannot be made out against the

accused nos.2 and 4 on the basis of the evidence on record.

APEAL 364 to 366, 379 & 530 of 2013 11 Common Judgment

6. Shri Khergade, the learned counsel for accused no.3-Rahul

submitted that the only evidence that was sought to be produced by the

prosecution against the accused no.3 is his statement in regard to the

recovery of the shoes of Dinesh from Nandanvan layout. It is submitted

by taking this Court through the evidence of the panch witness that the

case of recovery of the shoes from the open space is not proved. It is

further stated that since the recovery is made from an open space, the

same is not reliable. It is submitted that the trial Court has wrongly relied

on the evidence of PW2-Pradeep Rehpade in regard to the 'last seen

together' theory. It is submitted that it is admitted by PW2-Pradeep in his

cross-examination that he had not informed the police at any point of time

before his statement was recorded on 2-2-2012 that he had seen deceased

Dinesh along with accused no.3-Rahul on 9-11-2011 when he was going

to the house of his friend Katekhaye in Vyankatesh Nagar. It is submitted

that on the basis of such weak pieces of evidence, which are further not

proved, accused no.3-Rahul could not be convicted for any of the offences.

It is submitted that there is absence of convincing evidence that accused

no.3-Rahul was a servant of deceased Dinesh in the pool parlour and that

the accused no.3 had any role to play in the murder of deceased Dinesh.

7.

-- Shri Patwardhan, the learned counsel for the accused nos. 5, 6

and 7 submitted that the clothes on the body of deceased Dinesh as per

the description in the 'missing' complaint and the clothes that were found

APEAL 364 to 366, 379 & 530 of 2013 12 Common Judgment

on the body of deceased on 16-12-2011 are totally different but this

aspect of the matter was not considered by the trial Court while deciding

the matter. It is further submitted that the panch witness to the statement

allegedly made by accused no. 5 - Palash under Section 27 of the

Evidence Act had flatly denied that Palash had made such statement

before the police authorities and that the recovery of LG phone of

deceased Dinesh was made in his presence. It is stated that the evidence

of the investigating officer in respect of the recovery is also not convincing

and hence there is nothing against accused no. 5 Palash that could result

in his conviction, more so for the offence punishable under Section 302 of

the Penal Code. It is stated that the case of the prosecution is unbelievable

and the trial Court has erred in not considering the evidence which could

have falsified the case of the prosecution. It is stated that the trial Court

ought to have considered that the accused nos. 6 and 7 were not present

in Flat No. 222-F on 16-12-2011 when the body of Dinesh was allegedly

recovered from the drum in the bed room of Flat No. 222-F. It is stated

that there is ample evidence on record that would falsify the case of the

prosecution that accused no. 1 Girish @ Nanu was in possession of Flat

No. 222-F when the offence was allegedly committed on 9-11-2011. It is

submitted that in the circumstances of the case, the accused are entitled to

be acquitted.

8. Shri Doifode, the learned Additional Public Prosecutor

APEAL 364 to 366, 379 & 530 of 2013 13 Common Judgment

appearing for the State of Maharashtra has supported the judgment of the

trial Court. It is submitted that the trial Court has rightly convicted the

appellants after the motive for murder of Dinesh was proved and the

recovery of the mobile phones were made on the statement of Palash

and Amol and the Bajaj Pulsar motorcycle of deceased Dinesh was

recovered on the statement made by Jagdish under Section 27 of the

Evidence Act. It is submitted that there is ample evidence on record to

prove that accused nos. 1 to 3 had hatched a conspiracy to kill Dinesh

with a view to grab his pool parlour. It is stated that accused nos. 1 to 5

had murdered Dinesh in Flat No. 222-F which was in possession of Girish

@ Nanu and had dumped the dead body in the drum inside the bed room

of the said flat. It is submitted that when the dead body of Dinesh was

recovered from Flat No. 222-F on 16-12-2011, accused nos. 6 and 7 were

present in the said flat. It is submitted that on the basis of Exhibit 100, the

rent note executed between the landlord Shri Barapatre and accused no. 1

Girish @ Nanu Dasarwar, it could be proved that Girish was the tenant

in Flat No. 222-F and that he was in possession of the said flat. It is

submitted that since the recovery of the mobile phones, motorcycle and

the shoes of Dinesh were made on the statements made by the accused

nos. 2, 3 and 4, the trial Court has rightly held that there was ample

evidence on record to convict the accused for the murder of Dinesh and

destroying the evidence, specially when the motive for killing Dinesh was

APEAL 364 to 366, 379 & 530 of 2013 14 Common Judgment

proved by the prosecution. The learned Additional Public Prosecutor

sought for the dismissal of the appeals.

9. On hearing the learned counsel for the parties and on a

perusal of the original record and proceedings, it appears that the

following points arise for determination in these appeals :-

(1) Whether the prosecution has proved beyond reasonable doubt that the accused/appellants were guilty of the offences and were liable to be convicted for the same ?

(2) What order ?

10. We would proceed to decide the appeals by noting that the

prosecution case is not based on direct evidence and there are no eye

witnesses to the alleged murder of Dinesh. The case of prosecution is

based on circumstantial evidence. While deciding a case based on

circumstantial evidence, the court would be obliged to bear in mind, the

well settled principles of law laid down by the Hon'ble Supreme Court

from time to time. As early as in the year 1952 the Hon'ble Supreme

Court has held in the judgment in the case of Hanumant Govind

Nargundkar and anr. Vs. State of Madhya Pradesh reported in AIR

1952 SC 343 that :

"In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence

APEAL 364 to 366, 379 & 530 of 2013 15 Common Judgment

is of a circumstantial nature, 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. Again, the circumstances should be of a conclusive nature and tendency 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 far 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."

The aforesaid principles were reiterated by the Hon'ble Supreme Court

time and again and it was held in judgment in the case of Sharad

Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC

116 that :-

"The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence :

(1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

 APEAL 364 to 366, 379 & 530 of 2013                    16               Common  Judgment

             .......
                          Moreover the prosecution must stand or fall on

its own legs and it cannot derive any strength from the weakness of the defence. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court."

In the judgment in the case of Kishore Chand Vs. State of Himachal

Pradesh reported in AIR 1990 SC 2140, the Hon'ble Supreme Court held

thus :

"In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or

APEAL 364 to 366, 379 & 530 of 2013 17 Common Judgment

the chain of the continuity of the circumstances is broken the accused is entitled to the benefit of doubt."

It is apparent from the aforesaid judgments of the Supreme Court that

while dealing with the case based on circumstantial evidence, it would not

be permissible for the Court to pass its judgment on conjectures and

suspicion can never take the place of legal proof. It is clear from the

aforesaid judgments that in the case based on circumstantial evidence,

there must be a chain of evidence so far 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. Apart from this, the Court

must also bear in mind that the prosecution must stand or fall on its own

legs and it cannot derive any strength from the weakness of the defence.

It is in this background that we are required to appreciate the evidence

tendered by the prosecution to prove the guilt of the accused.

11. To prove the case based on circumstantial evidence the

prosecution examined as many as 20 witnesses. P. W. No.1 Pankaj, the

brother of deceased Dinesh was examined in support of the case of the

prosecution that Dinesh had informed him that accused No.1 Girish and

accused No.2 Jagdish were pressurising Dinesh for selling his pool parlour

and also in support of the case that on 16-12-2011, when Pankaj and Anil

Ambade-P.W. 3 had visited Flat No. 222-F in possession of accused No.1

APEAL 364 to 366, 379 & 530 of 2013 18 Common Judgment

Girish, they had found that the dead body of deceased Dinesh was kept in

a drum inside the bedroom of the flat. Pankaj admitted in his cross-

examination that the pool parlour was run in a rented room and Dinesh

used to earn a sum of Rs.25,000/- to Rs.30,000/- from the pool parlour.

Pankaj also admitted in his cross-examination that whenever he had

called accused No.1 Girish, after the incident he always talked to him and

helped them in searching Dinesh. The prosecution examined P.W. 2

Pradeep Rehpade, who had testified that when he came to Nagpur on

9-11-2011 along with his friend Raghunath Bhure for visiting his friend

Katekhaye in Vyankatesh Nagar, he saw accused No.3 Rahul, accused

No.1 Girish and Dinesh on a motorcycle, triple seat at 2.30 p.m. Pradeep

Rehpade, however admitted in his cross-examination that when he was

called to the police station, 10 to 12 days after 9-11-2011 he did not

inform the police that he had seen Dinesh with accused Nos.1 and 3 on

the motorcycle. He also admitted that the police did not ask the address

of his friend Katekhaye and also did not verify from Katekhaye whether

Pradeep Rehpade had gone to his house. P.W. 3 Anil Ambade deposed in

his evidence that he and Pankaj had been to the flat of accused No.1

Girish on 16-12-2011 at 10.30 p.m. and at that time the mother and

brother of accused No.1 were present in the flat. He stated in his evidence

that when they noticed foul smell, they entered the flat and went in the

direction of the smell and opened a blue drum in the bedroom of the flat

APEAL 364 to 366, 379 & 530 of 2013 19 Common Judgment

and saw the dead body of Dinesh in the drum. In the cross-examination

Anil Ambade however admitted that whenever they had called accused

No.1 Girish to search Dinesh, he was ready to help them. P.W. 4

Sudarshan Barapatre was examined by the prosecution to prove that Flat

No. 222-F belonging to him was given on rent to accused No.1 Girish

and he had executed a rent note at exhibit-100. P.W. 5 Lalit Bais was

examined to prove that the dead body of Dinesh was recovered from the

drum. This panch witness however stated in his cross-examination that

the drum was kept in the balcony. He admitted in his cross-examination

that he was a friend of Pankaj, the brother of deceased and both of them

resided in Matru-Shruti Nagar, Bhandara. He admitted that he knew

Pankaj since ten years. Jagdish Pardeshi, the Police Sub-Inspector to

whom the investigation was handed over by Police Inspector Sonvane

was examined as P.W. 6 and P.W. 7 Chandrahar Godse, who was posted

as Police Sub-Inspector at Nandanvan Police Station was also examined to

prove that the dead body of Dinesh was recovered from Flat No. 222-F in

Vyankatesh Nagar. P.W. 8 Dr. Rhishikesh Pathak, was working in the

Department of Forensic Medicine. The said witness deposed that Dinesh

had died approximately seven days to one month before the date of the

postmortem examination. He admitted that no opinion was possible about

the cause of death of Dinesh due to advanced decomposition of the dead

body but the death appeared to be homicidal, considering the

APEAL 364 to 366, 379 & 530 of 2013 20 Common Judgment

circumstances. The said witness stated that the early stage of

decomposition starts within 24 to 36 hours of death and in the instant

case, the dead body was in the advanced stage of decomposition. The

witness admitted in his cross-examination that there was no injury on the

dead body as could be seen from the postmortem report. He admitted

that the hyoid bone and the vertebrae was intact. P.W. 9 Vijay Gadhave

was examined as he was the witness for the inquest panchnama. The said

witness was also the friend of Pankaj. P.W. 10-Sheikh Kalam was

examined for proving the recovery of shoes of Dinesh. In his cross-

examination Sheikh Kalam admitted that he was acquainted with the

police and that he cannot read and write. He admitted that all the

panchnamas were already written and he could not read the

panchanamas. He admitted that on the next day, the police had secured

his signatures on the papers. P.W. 11, Satish Tambe was examined for

proving the recovery of the motorcycle and the mobile phones on the

statements made by accused No.2 Jagdish, accused No.4 Amol and

accused No.5 Palash. The said witness flatly denied that the recovery was

made in his presence and that the aforesaid accused had made such

statements. P.W. 12 Anil Banode, the stamp vendor was examined to

prove that accused No.1 Girish had purchased two stamp papers of

Rs.100/- on 05-11-2011. P.W. 13 Vijay Jane-Police Sub-Inspector was

examined to prove that the dead body was recovered from the drum

APEAL 364 to 366, 379 & 530 of 2013 21 Common Judgment

from Flat No. 222-F. P.W. 14 Rajkumar Tekam and P.W. 15

Chandrashekhar Maske were examined to prove the inquest panchnama.

P.W. 16 Mohammad Ishaq was examined to prove the seizure of the

clothes of the accused persons but he did not support the prosecution.

P.W. 17 Dr. Vaishali Mahajan was examined to prove the DNA report for

proving that the dead body recovered from the drum was that of Dinesh.

P.W. 18 Vaishali Ambade, the sister of Dinesh was examined to prove that

she had called Dinesh in the afternoon on 9-11-2011 and that he had

informed her that he was in the company of accused No.3 Rahul and that

he would return to Bhandara at about 5.00 to 5.30 p.m. P.W. 19

Sattyaveer Bandewar, Police Sub-Inspector was examined to prove about

the police investigation before the dead body was recovered. The witness,

however admitted in his cross-examination that none of the flat owners

had informed him that there was any noise in Flat No.222-F on 9-11-2011

or that foul smell was coming from the said flat. The witness admitted

that the signature of Pankaj-the brother of Dinesh was not taken on the

panchnama for the identification of the boots of Dinesh. He admitted in

his cross-examination that before 13-01-2012 there was no statement of

any witness that he had seen Dinesh with any of the accused. The witness

further admitted that he had not recorded the statements of the adjoining

flat owners. He admitted that in the record of the stamp vendor, the

address of accused No.1 Girish was shown to be Garoba Maidan. He

APEAL 364 to 366, 379 & 530 of 2013 22 Common Judgment

admitted that he had not made any inquiry about the other brothers and

sisters of accused No.1 Girish. Lastly, the prosecution examined P.W. 20,

Police Inspector Satish Nandurkar, who was attached to the police station

on 16-12-2011. He was examined for proving the statements made by

accused Nos.2, 4 and 5 under section 27 of the Evidence Act leading to

the alleged recovery of the motorcycle, the mobile phones and the boots

of the deceased. In his cross-examination, he made some glaring

admissions which could show that he had not identified the said articles to

be that of deceased Dinesh. At this juncture, we may note that it is always

not the quantity of evidence that could lead in proving the case of the

prosecution, but it is the quality of the evidence that would matter. We

would refer to the relevant evidence tendered by the prosecution

witnesses and the significance thereof, later.

12. In defence, accused No.1 Girish alias Nanu examined himself

only with a view to prove that he was not residing in flat No.222-F in

Vyankatesh Nagar but was residing at Adarsh Nagar, Garoba Maidan

Chowk. Accused No.1 Girish alias Nanu produced the ration card to prove

that he was residing at Garoba Maidan. When a query was made to the

accused No.1 in his cross-examination whether the signature on the

agreement exhibit-100 was his signature, he had denied the said

suggestion. Accused No.1 Girish examined Dhiraj Kshirsagar, his

neighbour for proving that he was residing at Adarsh Nagar, Garoba

APEAL 364 to 366, 379 & 530 of 2013 23 Common Judgment

Maidan Chowk and was not a resident of Flat No. 222-F.

13. It would be necessary to first recapitulate the prosecution

case. According to the prosecution story, in the month of October, 2011,

deceased Dinesh Bukkawan, had closed down his pool parlour at Nagpur

and had shifted to Bhandara. Accused no. 3 Rahul was working in the

pool parlour as a servant. Accused no. 1 Girish @ Nanu and accused no. 2

Jagdish who were frequently visiting the pool parlour of Dinesh were

pressurising Dinesh for selling his pool parlour to them. Dinesh was

however not willing to sell his pool parlour to accused no. 1 Girish and

accused no. 2 Jagdish. In this background, according to the prosecution,

accused nos. 1 to 3 hatched a conspiracy to murder Dinesh with a view to

grab the pool parlour. It is the case of the prosecution that the accused

nos. 1 to 5 murdered Dinesh on 9-11-2011 in Flat No. 222-F which was in

possession of accused no. 1 Girish @ Nanu. The 'missing' complaint about

Dinesh was lodged by Anil Ambade (P.W. 3) who is the husband of the

sister of Dinesh. Dinesh was however, not traced till 16-12-2011, on

which day, according to the prosecution, his body was recovered from a

drum in the bed room of Flat No. 222-F. It is the case of the prosecution

that at about 10.30 p.m., Pankaj, P.W. 1, the brother of Dinesh and Anil

Ambade, P.W. 3 went to Flat No. 222-F and noticed some foul smell. It is

alleged that at that time, accused no. 1 Girish @ Nanu was not in the flat

and his brother- accused no. 6 and his mother Kusum, accused no. 7

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were present. It is alleged that Pankaj, the brother of Dinesh and Anil

Ambade went inside the flat in the direction from which the smell was

coming and after going into the bed room of the said flat, opened the lid

of the blue drum that was lying inside the bed room to find the dead body

of Dinesh in the drum in the sitting condition.

14. The case of the prosecution as aforesaid, does not appeal to

us. Pankaj (P.W. 1) and Anil Ambade were not closely related or

associated with accused no. 1 Girish. It is not disclosed by the prosecution

i.e. by P.W. 1 Pankaj or P.W. 3 Anil Ambade as to why they went to the

flat of Girish at about 10.30 at night and as to how they went inside the

flat right till the bed room and opened the lid of the drum which was lying

inside the bed room of the flat. The normal human conduct does not

permit that persons who are not closely acquainted and familiar to the

occupants of a house would straightaway walk into the bedroom of the

house and open the lid of a drum located in the bedroom. It is not the

case of the prosecution that Pankaj (P.W. 1) and Anil Ambade (P.W.3)

were closely associated with Girish or his brother and mother. Pankaj had

only met Girish on a few occasions when he had been to the pool parlour

of Dinesh. If that is so, we find it difficult to accept that Pankaj, the

brother of the deceased and Anil Ambade, the brother-in-law of the

deceased would walk into the house of accused no. 1 to whom they were

not very closely acquainted and enter into the bed room of his house in

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his absence and open the drum from which they thought that the foul

smell was coming. We find that this part of the case of the prosecution is

somewhat doubtful. The said case is not worthy of acceptance, as it

would not be for a person who is not closely acquainted with another to

go into the bed room of the other person in his absence and open the

drum in the bed room merely because he had noticed some foul smell.

The normal conduct would be, even if they had suspected anything foul,

to go to the Police Station immediately and ask the police to come to Flat

No. 222-F and make an investigation in respect of the foul smell.

15. Since it is a case of circumstantial evidence, motive would

play a somewhat important role in proving the guilt of the accused. It

would be necessary to consider whether the prosecution has sufficiently

proved that the accused nos. 1 to 5 had a motive to kill Dinesh. It is the

case of the prosecution that Dinesh has closed down the pool parlour in

the month of October, 2011 and he had shifted to Bhandara. It is

noteworthy that the alleged crime was committed on 9-11-2011. It is

difficult to accept that within one week from the date of closure of the

pool parlour by deceased Dinesh, accused nos. 1 to 3 would hatch the

conspiracy to eliminate Dinesh with a view to grab the pool parlour. We

fail to fathom as to how the pool parlour could be grabbed by the accused

nos. 1 to 3, if Dinesh was murdered. The pool parlour is run in the rented

premises as could be seen from the cross-examination of P.W. 1 Pankaj.

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Dinesh was earning only sum of Rs. 25,000/- to 30,000/- per month,

from the pool parlour. If accused nos. 1 to 3 could not have become

the owners or possessors of the pool parlour, by killing Dinesh, it cannot

be said that the accused nos. 1 to 3 had a motive for killing Dinesh

with a view to grab the pool parlour. If a particular property would

come to an accused person by killing another, it could be said that

the said person who allegedly kills the other, would have a motive to kill

him. In this case, the pool parlour could not have been transferred to the

accused nos. 1 to 3 on the death of Dinesh. The pool parlour could

not have been grabbed by killing Dinesh. The motive as alleged by

the prosecution cannot be a motive to kill Dinesh. In any case, we find

that the motive, as alleged by the prosecution is not sufficient enough

for committing the heinous crime of murder of Dinesh. The prosecution

case in respect of motive cannot be said to be proved on the basis of

the evidence of P.W. 1, Pankaj that the accused were pressurizing Dinesh

to sell the pool parlour to them. The case of the prosecution that the

accused nos. 4 and 5, Amol and Palash were involved in the crime

after they were called in Flat No. 222-F by accused no. 1 Girish to

convince Dinesh to sell the pool parlour to accused nos. 1 to 3, appears to

be improbable. It also cannot be said that the 100 Rupees Stamps secured

from the house of accused no. 3 Rahul were purchased by accused no. 1

Girish for purchasing the pool parlour. We are therefore not in agreement

APEAL 364 to 366, 379 & 530 of 2013 27 Common Judgment

with the finding of the trial Court that the prosecution had succeeded in

proving that the accused nos. 1 to 3 had hatched the conspiracy to murder

Dinesh for grabbing the pool parlour.

16. It would now be necessary to consider whether the

prosecution has proved beyond reasonable doubt that the death of

Dinesh was homicidal. The dead body of Dinesh was sent for post

mortem examination after it was recovered on 16-12-2011. The post

mortem procedure was conducted on 17-12-2011. According to the post

mortem report, the cause of death is not known. Even according to the

prosecution case, the cause of death is not known. In the post mortem

report, it is noted that no injury was found on the body of the deceased.

The hyoid bone was intact and so was the vertebrae. It is further opined

in the post mortem report that the death must have occurred between

7 to 30 days before the conducting of the post mortem procedure. The

prosecution has examined P.W. 8 Dr. Rishikesh Pathak who was

working in the Department of Forensic Medicine and who had conducted

the post-mortem procedure. The doctor opined that it was not possible

to state about the cause of death due to advanced decomposition of the

dead body but considering the circumstances in which the body was

found, the death appears to be homicidal. P.W. 8 Pathak has stated in his

evidence that the early stage of decomposition starts within 24 to 36

hours after death. The witness had admitted that in the instant case, the

APEAL 364 to 366, 379 & 530 of 2013 28 Common Judgment

dead body was in the advanced stage of decomposition. P.W. 8 admitted

in his cross-examination that there was no injury on the body, as

mentioned in the post mortem report, the hyoid bone was intact and the

vertebrae was also intact. When a query was posed to P.W. 8 in his cross-

examination whether in such type of cases, the exact cause of death or

time of death could be given, he had stated that it depends upon the case.

The witness admitted that though a concrete opinion could not be given in

respect of the cause of death of the deceased as also whether the death

was homicidal on the basis of medical evidence, the body was not sent to

the Anatomy Department. It is difficult to gauge on what basis the

prosecution has proved that the death of Dinesh was homicidal. It was

necessary for the investigating officer and the doctors to ensure that the

decomposed body was sent to the Anatomy Department for further

examination so as to give an opinion in regard to the cause of the death of

the deceased. In the case of the State of Punjab Vs. Bhajan Singh and

ors. reported in 1975 SCC (Cri) 584, it is held by the Hon'ble Supreme

Court that when the dead body was highly decomposed and the doctor

was unable to find out the reason of the death, the failure on the part of

the doctor to send the body to the Anatomy Expert may be a ground for

drawing an adverse inference against the prosecution. In almost similar

set of facts, when the decomposed body was sent for medical examination

and the post mortem report did not state about the cause of the death of

APEAL 364 to 366, 379 & 530 of 2013 29 Common Judgment

the deceased, the Hon'ble Supreme Court held that it was not possible to

hold that the death of the deceased was homicidal, specially, when the

decomposed body was not sent for further examination to the Anatomy

Expert and there were no marks of ligature on the dead body. In the

present case, the post mortem report shows that there were no external

injuries on the body, the hyoid bone was intact and there was no injury

to the vertebrae. The doctors could not have opined that the death could

be homicidal only because the dead body was recovered from a drum,

when there was no medical evidence, whatsoever to prove that the death

of Dinesh was homicidal. It is held by the Rajasthan High Court in the

judgment reported in 1988 Cri. L. J. 1054 that when a dead body is

found after 1½ months in a decomposed condition and the same is not

referred to an anatomy expert, it would be a serious lacuna and the

accused would be entitled to the benefit of doubt. In the circumstances of

the case, it cannot be said that the prosecution has proved beyond

reasonable doubt that the death of Dinesh was homicidal. The trial Court

has erred in not considering these aspects of the matter while recording a

finding that the death was homicidal on the basis of the recovery of the

dead body of Dinesh from the drum, specially when the opinion of the

doctors was not based on medical evidence. In the judgment reported in

AIR 1991 SC 1224, the Hon'ble Supreme Court had held that when there

is no specific evidence as to the cause of death, the prosecution cannot

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proceed on the presumption on the basis of the recovery of an empty

cartridge seized from the side of the dead body that the deceased should

have been murdered by shooting. In the instant case also, merely because

the body of deceased Dinesh was allegedly recovered from a drum, it

cannot be said beyond reasonable doubt that the death of Dinesh was

homicidal.

17. In view of the aforesaid finding, though the prosecution would

not be able to prove the offence against the accused, it would be necessary

to deal with the prosecution case in regard to the recovery of the dead

body of Dinesh from Flat No. 222-F which according to the prosecution

was in possession of Girish. The prosecution has based its case in regard

to the possession of accused no. 1 Girish @ Nanu over Flat No. 222-F,

solely on the basis of the rent note, Exhibit 100 allegedly executed

between accused no. 1 Girish @ Nanu and Shri Barapatre who is said to

be the owner of Flat No. 222-F and the deposition of P.W. 4 Barapatre.

The case of the prosecution is based on Exhibit 100 - the rent note and

the same is sought to be proved on the basis of the deposition of

Sudarshan Barapatre - P.W. 4. The prosecution has relied on Exhibit 100

- rent note, the deposition of P.W. 4 Sudarshan Barapatre and the so

called presence of accused no. 6 and 7 in the said flat when the body was

recovered. The trial Court has relied only on the evidence of Sudarshan

Baraptre, P.W. 4 and the rent note, Exhibit 100 to hold that Girish @

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Nanu was in possession of Flat No. 222-F. It would be necessary to

consider Exhibit 100, the rent note allegedly executed between Girish @

Nanu and Sudarshan Barapatre. It is conspicuous to note that Flat

No. 222-F was purportedly leased to the accused no. 1 by Sudarshan

Barapatre for the period from 1-5-2010 to 1-4-2011 and this period

expired a long time before 9-11-2011. The very basis for proving that the

flat was leased to the accused no. 1 is shaken by the answer to the query

made to the accused no. 1 in his cross-examination. The learned A.P.P.

had posed a question to the accused no. 1 as to whether the rent

agreement, Exhibit 100 bears his signature and the accused no. 1 had

answered in the negative. The prosecution case pertaining to the

possession of the accused no. 1 over Flat No. 222-F receives a big jolt by

the said answer. The trial Court has however, not considered the

evidence of accused no. 1 Girish in his cross-examination. Also, the trial

Court has failed to consider that the accused no. 1 Girish had tendered

oral and documentary evidence to prove that he was residing at Adarsha

Nagar, Garoba Maidan, Mate Chowk for past 22 years. The accused no. 1,

Girish had also examined his neighbour, Shri Dhiraj Kshirsagar to prove

that he was residing at Garoba Maidan and not in Flat No. 222-F.

Further, the trial Court failed to consider that accused no. 1 Girish was not

the owner of Flat No. 222-F and on the date of incident on 9-11-2011,

there was no agreement of lease between Sudarshan Barapatre and

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accused no. 1 Girish, as even assuming that there was any lease deed

executed between the parties, the same had expired on 1-4-2011. The

trial Court failed to consider that there was no renewal of lease, after

1-4-2011. We are not inclined to accept, on the basis of the evidence on

record, specially the answer of the accused no. 1 to the query made by

the A.P.P. that he had not signed on Exhibit 100, that an agreement was

executed between Sudarshan Barapatre and the accused no. 1. Sudarshan

Barapatre had admitted in his cross-examination that the lease agreement

had expired as per the document on 1-4-2011. It is conspicuous to note

that though about five other flat owners were residing on the same floor

of the building i.e. the third floor of the building, the prosecution has not

examined any of the owners or possessors of the neighbouring flats to

prove that Girish @ Nanu was in possession of Flat No. 222-F. PSI

Nandurkar (P.W. 20), the Investigating Officer had admitted in his cross-

examination that the statements of the residents of the adjoining flats i.e.

Flat No. 223, 224, 225 and 226 were not on record. The accused no. 1

Girish, had produced the ration card showing that he was the resident of

Garoba Maidan. The stamp vendors register, from whom Girish @ Nanu

had according to prosecution purchased the stamps for entering into an

agreement with Dinesh for the transfer of the pool parlour, had an entry

that Girish was residing at Garoba Maidan. Accused no. 1 Girish had

denied in his cross-examination that he had taken Flat No. 222-F on rent

APEAL 364 to 366, 379 & 530 of 2013 33 Common Judgment

from Sudarshan Barapatre and that he was residing in the said flat. Also,

the investigating officer had admitted in his cross-examination that he had

not made any enquiry as to who were the brothers and sisters of Dinesh

and where they were residing. We are afraid that in the aforesaid set of

facts it cannot be said that the prosecution has proved beyond reasonable

doubt that at the relevant time on 9-11-2011, accused no. 1 Girish @

Nanu was in possession of Flat No. 222-F, from where the body of

deceased Dinesh was recovered. The trial Court has only relied on the

evidence of Sudarshan Barapatre and the lease deed at Exhibit 100,

though the term of the lease had admittedly expired, to hold that accused

no. 1 Girish was the possessor of Flat No. 222-F, without even referring to

the other evidence on record which could have created a serious doubt in

the mind of the Court whether accused no. 1 Girish was residing in Flat

No. 222-F at the relevant time or not.

18. We are also surprised that the body of deceased Dinesh was

allegedly recovered from Flat No. 222-F, nearly 38 days after the death.

There are 500 to 600 flats in the complex at Vyankatesh Nagar, where

Flat No. 222-F is located. In each building, there were 50 to 60 flats.

On each floor, there were about six flats. On the third floor where Flat

No. 222-F is located, there are other five flats. A dead body, according to

the evidence of Dr. Rishikesh Pathak, starts decomposing within 24 Hours

from the death. In the instant case, the body was in the advanced stage of

APEAL 364 to 366, 379 & 530 of 2013 34 Common Judgment

decomposition. We are surprised that none of the flat owners had ever

complained about any foul smell in their locality. There is an admission

of P.W. 20, PSI Nandurkar in his cross-examination as also the other

Investigating Officer, P.W. 19 Satyaveer Bandiwar that the residents of the

complex did not mention in their statements that foul smell was coming

from Flat No. 222-F or from anywhere in the complex. It is admitted by

P.W. 19 PSI Bandiwar in his cross-examination that there always used to

be a rush of visitors in the colony. It is admitted by Shri Bandiwar that

the statements of the adjoining flat owners were not recorded and the

other flat owners, whose statements were recorded did not mention about

any foul smell coming out of Flat No. 222-F or from the building in which

Flat No. 222-F is located. We normally find that even when a rat or a

small bird dies in a house or a flat, it is not possible for the inhabitants of

that house or flat to reside in the house even for a hour, as the foul smell

of the dead animal or bird would be unbearable after a couple of days

from its death. It is difficult to digest that a human dead body was

dumped inside a drum in the bed room of a small flat which was

admeasuring 350 sq.ft. where three persons were allegedly residing i.e.

accused no. 1, his mother who is about 60 to 65 years of age and his

brother. It is difficult to digest that a woman aged 60 to 65 years would

reside in a house with a decomposed dead body in a drum which bears

water to the extent of 1 ft. in height, without complaining. The foul smell

APEAL 364 to 366, 379 & 530 of 2013 35 Common Judgment

produced by a human dead body i.e. a highly decomposed dead body

would be unbearable even on the third day. Not only would the

inhabitants of that flat or house not be able to reside in the same but the

adjoining flat owners would also not be able to live peacefully, if a dead

body which is in the advanced stage of decomposition, is retained for

38 days. It is difficult to accept that three persons residing in a small flat

would retain a dead body in the bedroom for 38 days. Even if a murder is

committed in a flat, where some persons reside, in normal circumstances

within a short time, the body of the person so murdered would be shifted

to some other place. It is possible that a dead body may be dumped in a

flat which is not in use at all, however, such is not the case of the

prosecution. According to the prosecution, the dead body of Dinesh was

retained for 38 days in the flat where accused no. 1 Girish, his mother,

aged 60-65 years and his brother were actually residing. We are not

inclined to accept the case of the prosecution in regard to the body of

deceased Dinesh being dumped in a drum in the bedroom of the flat,

where the accused no. 1 Girish @ Nanu and his mother and his brother

were residing.

19. In regard to the recovery of the motorcycle, the mobile phones

and the boots of Dinesh, it is necessary to note that P.W. 11 Satish Tambe,

the witness to the statements under Section 27 and recovery panchanama

has flatly denied that the mobile phones were recovered in his presence

APEAL 364 to 366, 379 & 530 of 2013 36 Common Judgment

from the house of accused no. 3 Amol and accused no. 5 Palash. He has

bluntly stated that nothing has taken place in his presence. The other

panch witness to the statement under Section 27 of the Evidence Act and

the recovery panchanamas has not been examined, for the reasons best

known to the prosecution. It is no doubt true that where the panch

witness to the recovery panchanama turns hostile, the recovery could be

proved by the prosecution on the basis of the evidence of the investigating

officer. However, in such a case, the evidence of the investigating officer

should be convincing and reliable. We however, find on a reading of the

evidence of the Investigating Officer, P.W. 20, PSI Nandurkar that the

said evidence is not convincing. Though in his examination-in-chief, PSI

Nandurkar has mentioned about the statements under Section 27 and the

recovery of the motorcycle, the mobile phones and the boots, the contents

of the panchanamas are not proved by him. Apart from the aforesaid, it

could be seen from the cross-examination of the Investigating Officer,

PSI Nandurkar that articles that were recovered in pursuance of the

statements allegedly made by the accused nos. 2, 3 and 4 were not

identified as that of the deceased. P.W. 20- PSI Nandurkar admitted in his

cross-examination that he did not make any enquiry about the person in

whose name the sim card and the mobiles were issued by the company.

P.W. 20 further admitted that he did not take out the EMI number of the

mobile phones and also did not make an enquiry from the company by

APEAL 364 to 366, 379 & 530 of 2013 37 Common Judgment

issuing letter, to whom the mobile seized under panchanama at Exhibit

151 was sold by the companies. P.W. 20 also did not take out the CDR of

the said mobiles. It is admitted by P.W. 20 that he did not record the

statements of the relatives of the deceased in order to consider what was

the description of the mobile phones and the names of the companies of

the mobile phones of Dinesh. He further admitted that he did not record

the statement of Prakash Achalwar, the contractor of the parking area in

the Railway Station from where the Bajaj Pulsar motorcycle was

recovered. Though it was admitted by the investigating officer that

Government Railway Police and Railway Protection Force would be

working in the said premises, he had not made any enquiry whether any

complaint was made by the contractor to the Government Railway Police

that the motorcycle was lying in the parking area for more than a month.

The investigating officer further admitted that he did not show the

photographs of either Dinesh or accused no. 2 Jagdish @ Jaggu to the

contractor or the workers that were present at the parking area from

where the motorcycle was recovered, to consider who had parked the

motorcycle in the parking area in the railway station. The evidence of

P.W. 20 PSI Nandurkar does not appear to be reliable and convincing. On

the basis of such evidence of the investigating officer, the recovery of the

motorcycle, the mobile phones and the boots becomes doubtful, more so,

when the panch witness that is examined by the prosecution has bluntly

APEAL 364 to 366, 379 & 530 of 2013 38 Common Judgment

denied that the recoveries were made in his presence and the other panch

witness was not examined by the prosecution.

20. While recording the aforesaid findings, it would also be

necessary to record that the trial Court has erroneously held that the

prosecution has succeeded in proving that the accused no. 1 Girish @

Nanu and accused no. 3 Rahul were last seen together with deceased

Dinesh at about 2.30 to 3.00 p.m. in Vyankatesh Nagar on 9-11-2011. For

holding so, the trial Court has relied on the evidence of Pradeep Rehpade

(P.W. 2). Even as per the prosecution case, Pradeep Rehpade is a very

good friend of Pankaj, the brother of deceased Dinesh. Pradeep Rehpade

has stated in his evidence that his statement was recorded by the

investigating officer for the first time on 2-2-2012. Pradeep stated in his

evidence that while he was going along with Raghunath to the house of

his friend Katekhaye in Vyankatesh Nagar on 9-11-2011, he saw accused

no. 1 Girish, accused no. 3 Rahul and Dinesh on a motorcycle - triple seat.

It is surprising that though Pradeep Rehpade, P.W. 2 was called to the

Police Station by the investigating officer within 10 -12 days from

9-11-2011 after Dinesh went missing, he had not told the investigating

officer that he has seen Dinesh with accused no. 1 Girish and accused

no. 3 Rahul. It is improbable that when a person is called to the Police

Station by the investigating officer in respect of the investigation of a

missing person, the person coming to the Police Station would not inform

APEAL 364 to 366, 379 & 530 of 2013 39 Common Judgment

the investigating officer that on the date on which the person went

missing, he had seen the missing person along with two other persons

which he could name. Pradeep Rehpade has admitted in his cross-

examination that when he was called to the Police Station 10-12 days

after 9-11-2011 by the investigating officer in the matter of the missing

complaint of Dinesh, he had not informed the investigating officer that he

had seen Dinesh with accused no. 1 Girish and accused no. 3 Rahul. The

first thing Pradeep Rehpade could have and should have told the

investigating officer when he was called to the Police Station 10-12 days

after 9-11-2011 that he had seen accused no. 1 Girish and accused no. 3

Rahul on a motorcycle with Dinesh, on the day when Dinesh went

missing. In our view, the case of the prosecution in regard to the 'last

seen' theory is untrue. In our view, after the body of Dinesh was

recovered on 16-12-2011, Pradeep Rehpade, the friend of Pankaj could

not have made a statement on 2-2-2012 about seeing Dinesh with accused

no. 1 Girish and accused no. 3 Rahul on 9-11-2011, specially when he had

not made the said statement when he was called to the Police Station by

the investigating officer 10-12 days after 9-11-2011. Even assuming that

Pradeep Rehpade had seen Dinesh with accused nos. 1 and 3 on

9-11-2011, the 'last seen together' cannot be a circumstance which would

prove the prosecution case as according to the post mortem report, the

death of Dinesh had occurred between 7 to 30 days, before the post

APEAL 364 to 366, 379 & 530 of 2013 40 Common Judgment

mortem procedure was conducted. It is held by the Hon'ble Supreme

Court in the judgment reported in (2005) 3 SCC 114 that the principle of

'last seen together' comes into play when the time gap between the point

of time when the accused and deceased were last seen alive and the

deceased is found dead is so small that the possibility of any person other

than the accused being the author of crime become impossible. The trial

Court could not have considered the last seen together theory as one of

the major links in the chain of evidence tendered by the prosecution for

holding that the prosecution had brought home the guilt of the accused.

In the instant case, we find that the prosecution has utterly failed to prove

beyond reasonable doubt that the accused nos. 1 to 5 were involved in the

murder of Dinesh and the accused nos. 1 to 3 had hatched a conspiracy

to eliminate Dinesh with a view to grab his pool parlour and that the

accused nos. 1 to 7 had committed the offence of destruction of the

evidence. It is well settled that the prosecution case must stand or fall on

its own legs and it cannot derive any strength from the weakness of the

defence. In this case, we find that there is serious infirmity and lacuna in

the prosecution case and the prosecution has failed to prove beyond

reasonable doubt that the accused were involved in the commission of the

offences, for which they are convicted by the trial Court.

21. For the reasons aforesaid, we allow the appeals filed by the

appellants. Criminal Appeal Nos. 364, 365, 366, 379 and 530 of 2013 are

APEAL 364 to 366, 379 & 530 of 2013 41 Common Judgment

allowed.

The accused nos. 1 to 5 are acquitted of the offences

punishable under Section 302 read with Section 34 of the Penal Code.

The accused nos. 1 to 3 are acquitted of the offence

punishable under Section 120(b) of the Penal Code. The accused nos. 1

to 7 are acquitted of the offences punishable under Section 201 read with

Section 34 of the Penal Code.

Since the accused no. 1 is in jail, he may be set at liberty, if he

is not required in some other crime.

The bail bonds of accused nos. 2 to 7 stand cancelled.

The record and proceedings should be remitted to the trial

Court at the earliest.

In the circumstances of the case, no order as to costs.

              JUDGE                                         JUDGE



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