Sohel Shoukat Jamadar vs The State Of Maharashtra
2017 Latest Caselaw 7312 Bom

Dixit


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION


                           CRIMINAL APPEAL NO.813 OF 2013

        Sohel Shoukat Jamadar                          ]
        Age : 21 Years,                                ]
        Resident of Nandre, Tal. Miraj,                ]
        District Sangli                                ] .... Appellant /
        (At present in Sangole District Prison)        ] (Org. Accused No.1)
                Versus
        The State of Maharashtra                       ] .... Respondent

ALONG WITH CRIMINAL APPEAL NO.1248 OF 2013

Khalid @ Tipu Kamruddin Mujawar ] Age : 22 Years, Occu.: Worker, ] R/o. Nandre, Tal. Miraj, Dist. Sangli ] (Presently lodged at Central Prison, ] .... Appellant / Kolhapur) ] (Org. Accused No.2) Versus State of Maharashtra ] (Through Tasgaon Police Station, ] C.R. No.74/2011) ] .... Respondent

ALONG WITH CRIMINAL APPEAL NO.142 OF 2014

Rafiq Kasam Naikwadi ] Prisoner No.C/5948, ] .... Appellant / Kolhapur Central Prison, Kolhapur ] (Org. Accused No.3) Versus The State of Maharashtra ] .... Respondent

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Mr. Rajaram V. Bansode for the Appellant-Original Accused No.1 in Criminal Appeal No.813 of 2013.

Mr. Mahindra B. Deshmukh for the Appellant-Original Accused No.2 in Criminal Appeal No.1248 of 2013.

Ms. Payoshi Roy, i/by Dr. Yug Mohit Chaudhary, for the Appellant-Original Accused No.3 in Criminal Appeal No.142 of 2014.

Mr. Arfan Sait, A.P.P., for the Respondent-State.

CORAM : SMT. V.K. TAHILRAMANI & DR. SHALINI PHANSALKAR-JOSHI, J.J.

RESERVED ON : 13 TH SEPTEMBER, 2017.

PRONOUNCED ON : 20 TH SEPTEMBER, 2017.

JUDGMENT : [Per Dr. Shalini Phansalkar-Joshi, J.]

1. These three separate Appeals are preferred by original

Accused Nos.1, 2 and 3, challenging the Judgment and Order

dated 10th July 2013 of Sessions Judge, Sangli in Sessions Case

No.141 of 2011. By the said Judgment and Order, these

Appellants are convicted for the offence punishable under

Sections 302 and 201, read with Section 34, of Indian Penal Code

and sentenced to suffer life imprisonment and to pay fine of

Rs.5,000/-, each; in default, to suffer R.I. for one year on the first

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count and R.I. for five years and to pay fine of Rs.10,000/-, each;

in default, to suffer R.I. for one month.

2. Factual matrix of the prosecution case can be depicted

as follows :-

Deceased Sagar was the younger brother of PW-8

Santosh. After taking education of 'D.Pharmacy', he has started

assisting his brother in agricultural work. He was in love with PW-

12 Ayesha Mulla. Accused No.1-Sohel has also taken a fancy for

Ayesha and was trying to woo her, so as to dissuade her from her

love-affair with Sagar. On that count, just fifteen days prior to the

incident, Accused Nos.1, 2 and 3 had raised quarrel with Sagar.

PW-8 Santosh and PW-16 Vijay Kinikar had intervened in the

quarrel and separated Sagar; however, Accused had left the spot

giving threatening to Sagar that he will not remain alive.

3. In this backdrop, the incident took place on 12 th June

2011. On that day, at about 6 pm, Sagar left the house and

thereafter he did not return. His brother Santosh thought that

Sagar might have gone to his friend or relative, as he frequently

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used to do. Therefore, though he made enquiry, he did not lodge

any missing complaint with Police. The dead-body of Sagar was

found four days thereafter on 16th June 2011 in the early

morning at Bandh near the first turn of the Village Kavathe

Ekand. PW-8 Santosh went to the spot and found that dead-body

of Sagar was kept inside one cement pipe below the road, which

was reserved for flowing of the water. He also noticed one foot-

wear (chappal) of Sagar lying on the road and the blood stains,

two broken teeth and two broken buttons at the spot. One Axe

stained with blood was also lying by the side of the said pipe. He

pulled out body of Sagar by holding the legs and found that there

were various injuries on the face and neck. He immediately

suspected that his brother Sagar was killed by the Appellants

herein on account of his love-affair with Ayesha. Hence, he went

to Tasgaon Police Station and lodged complaint against all the

three Appellants.

4. On his complaint (Exhibit-50), P.S.O. at Tasgaon Police

Station registered C.R. No.74/2011 and investigation started. The

said investigation was taken over by PW-21 API Waghmare. He

went to the spot and after conducting Inquest Panchanama, sent

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dead-body of Sagar to the Rural Hospital, Tasgaon, for

postmortem examination. PW-17 Dr. Prakash Hankare conducted

the autopsy and found that the cause of the death was on account

of "head injury". PW-21 API Waghmare then conducted the Spot

Panchnama (Exhibit-28) and from the spot, he collected various

articles, like, the chappal, two buttons of shirt, two broken teeth,

the axe and the identity card of Accused No.1-Sohel, which was

lying in the shrubs. On the same day, he recorded the statements

of two witnesses and arrested all the three Accused under various

Panchanamas (Exhibits "117", "118" and "119").

5. During the course of investigation, Accused No.1-Sohel

gave a disclosing statement and at his instance, the motor-cycle of

the deceased, which was found thrown in the Well, came to be

recovered under Panchanama (Exhibit-42). Thereafter, at the

instance of Accused No.2-Khalid @ Tipu, the pieces of his burnt T-

Shirt and the ash came to be seized under Panchanama (Exhibit-

34). At the instance of Accused No.3-Rafiq, his blood-stained

clothes were seized under Panchanama (Exhibit-39). The valet of

the deceased containing Driving License and also mobile phones

were seized at the instance of Accused No.1-Sohel in pursuance of

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his Memorandum Panchanama (Exhibit-47) and Seizure

Panchanama (Exhibit-48).

6. In the course of further investigation, the mobile phone

of Accused No.2-Khalid was produced by his father Kamruddin. It

also came to be seized under Panchanama. The Call Detail

Records of mobile phones of Accused Nos.1, 2 and the Deceased

were called for from the relevant Internet Companies. The seized

muddemal articles were sent to the Chemical Analyzer. The

Postmortem Report (Exhibit-76) was collected. On receipt of the

C.A. Certificates and conclusion of the investigation, the

Investigating Officer PW-21 API Waghmare filed the Charge-Sheet

against all the three Accused in the Court of Judicial Magistrate,

First Class, Tasgaon.

7. On committal of the case to the Sessions Court at

Sangli, the Trial Court framed 'Charge' against the Appellants vide

Exhibit-5. The 'Charge' was read over and explained to the

Accused. The Appellants pleaded not guilty and claimed trial,

raising the defence of denial and false implication.

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8. In support of its case, the Prosecution has examined in

all twenty-one witnesses and on appreciation of their evidence,

the learned Trial Court was pleased to hold guilt of all the three

Appellants as proved beyond reasonable doubt and convicted and

sentenced them as aforesaid.

9. In these Appeals, we have heard learned counsel for

the Appellants and learned A.P.P. for the Respondent-State.

10. Learned counsel for the Appellants have challenged

the Judgment of the Trial Court on the count that it is based on

surmises, conjectures and assumptions. According to learned

counsel for the Appellants, this is a case based on circumstantial

evidence alone and in such a case, to prove the guilt of the

Accused beyond reasonable doubt, each of the circumstance relied

upon by the Prosecution is required to be proved beyond

reasonable doubt and there should be a chain of circumstances,

which should consistently point to the guilt of the Accused alone

and should be inconsistent with his innocence. Here in the case,

according to learned counsel for the Appellants, the Prosecution

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has failed to establish this chain of circumstances with the help of

cogent, firm and reliable evidence; the Trial Court has, therefore,

committed an error in holding guilt of the Appellants to be proved

beyond reasonable doubt.

11. Per contra, learned A.P.P., has supported the

impugned Judgment and Order of the Trial Court by submitting

that, each of the incriminating circumstance relied upon by the

Prosecution in the present case is clinching and it is firmly and

cogently established by the Prosecution. The circumstances, thus,

established by the Prosecution are of a conclusive nature and

tendency and they exclude every other hypothesis, but the one

proposed to be proved by the Prosecution, that of the Appellants

alone and none else are the authors of the ghastly crime proved in

the case.

12. In the backdrop of these rival submissions advanced

by learned counsel for the Appellants and learned A.P.P. and after

giving our anxious consideration to the evidence on record, we

are of the considered view that, this is a case, though based on

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circumstantial evidence alone, the Prosecution has succeeded in

proving the guilt of the Appellants beyond all reasonable doubts.

The circumstances which are alleged and proved by the

Prosecution against the Appellants can be stated as follows :-

(A) Motive;

(B) Deceased last seen in the company of the Appellants; (C) Homicidal death;

(D) Extra-judicial confession of the Appellants; (E) Recovery of incriminating articles; and (F) Call Detail Records.

13. (A) MOTIVE

For proving the first circumstance of 'motive', the

Prosecution is relying on the evidence of PW-8 Santosh, PW-12

Ayesha and PW-16 Vijay Kinikar. It is the case of Prosecution, as

deposed by these witnesses, that Sagar and Ayesha were in love

with each other. Accused No.1-Sohel was not approving the said

relationship. He has also, thereafter, taken fancy for Ayesha and

hence he was trying to dissuade Ayesha from her relationship

with Sagar. The evidence of PW-12 Ayesha in this respect is of

utmost relevance. She has categorically deposed that in the year

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2011, she was taking education in Second Year of B.E. She was

knowing Sagar and had a love-affair with him. According to her

evidence, she had good love-affair with Sagar for about one year

and till his death, she was in love with him. On 9 th May 2011,

which was her birth-day, she has become major and, hence, both

of them had decided to marry with each other. However, the

atmosphere in their house was not proper. Hence, they had not

got married.

14. It is her further evidence that she was knowing

Accused No.1-Sohel also. PW-10 Akshay Patil, who was residing

near her house, has introduced her to Accused No.1-Sohel.

Accused No.1-Sohel has given her a friendship band in the

presence of PW-10 Akshay Patil. Thereafter, on 28th September

2011, there was birth-day of Accused No.1-Sohel and hence, at

the insistence of PW-10 Akshay Patil, she, along with Akshay,

Accused No.1-Sohel and Accused No.3-Rafiq, went to the

Multiplex at Sangli for watching the movie " Wanted". Then, in the

month of October, 2011, she had again gone with Akshay,

Accused No.1-Sohel and Accused No.3-Rafiq to Multiplex at Sangli

to watch the movie "Mr. and Mrs. Khanna".

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15. As per her evidence, Sagar was not happy about her

friendship with Accused No.1-Sohel and was calling upon her not

to talk with Sohel, as he was defaming her in the locality and in

the community. On that count, before Diwali, there was some

exchange of hot words between her and Sagar. Sagar even

suggested her that they should consume poison and commit

suicide. It is her evidence that Accused No.1-Sohel was only her

friend, but she was having love-affair with Sagar alone and,

therefore, on 9th May 2011, just few days or a month before the

incident, they had decided to get married, but due to atmosphere

in the house, they could not do so.

16. According to her evidence, from 6th June 2011, she

joined Mahabal Company for training. She used to come to Sangli

Stand by bus from Village Nandre, where she, Accused and Sagar

were residing. From Sangli Bus Stand, Sagar used to carry her on

his motor-cycle to Mahabal Company. In the evening also, Sagar

used to pick-up her from the said Company and drop her at S.T.

Stand, Sangli at 4:30 p.m.

17. It is deposed by Ayesha that, on the day of the incident

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also, as usual, Sagar left her at the Company, carrying her from

Sangli Bus Stand on his motor-cycle. At 12:40 pm, she received

call from Sagar, informing her that one person came to meet him

and he has to talk about Sohel. Thereafter, Sagar contacted her on

phone on two to three times. At about 3:15 pm, when she came

out of the Company, Sagar came there on Bike of PW-5 Nilesh

Mahajan. Then, she and Sagar, along with Nilesh, went to the field

at Kupwad Road. Three of them discussed about Sohel. Sagar

again told her that Sohel was defaming her and, hence, he will

beat Sohel and seek apology from him. As per her evidence, then

she herself and Sagar went on the motor-cycle to Ganpati Mandir

of Haripur. They were there for about one hour. Thereafter Sagar

left her at Sangli S.T. Stand. Then she went to her house. At 7:45

pm, she received one call from Sagar enquiring whether she has

reached home safely and about the atmosphere at home.

Thereafter, at about 10 p.m., she tried to contact Sagar, but his

mobile was switched off. On the next day also, she tried to contact

him on phone, but could not succeed.

18. This witness, Ayesha, is cross-examined at length on

behalf of the Appellants. However, nothing useful is elicited

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through her cross-examination to disbelieve her. Conversely, her

cross-examination goes to show that she and Sagar were deeply in

love with each other. They used to meet each other at secluded

places. They were coming to Sangli for meeting. Once, they even

met in Anandi Lodge in Sangli. In her cross-examination, it is

again brought out that her parents were of the view that she

should marry a boy from Muslim community. It is her evidence

that she had disclosed to her parents about her relations with

Sagar only after his death, when Police came to make inquiry with

her. It is her evidence that, even the mobile was given to her by

Sagar. Thus, her evidence sufficiently proves her relations with

deceased Sagar and the fact that, as Sagar belonged to Jain

community, whereas she was from Muslim community, Accused

No.1-Sohel was not approving the said relationship and he was

trying to woo or win her. This relationship between Sagar and

Ayesha was also known to PW-8 Santosh, PW-5 Nilesh and PW-16

Vijay Kinikar.

19. The evidence of Ayesha further establishes that, both,

Sagar and Accused No.1-Sohel were having grudge against each

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other. Sagar was having a suspicion or feeling that Accused No.1-

Sohel was defaming Ayesha and, hence, on account of this, just

few days before the incident, a quarrel had taken place between

Sagar and the Appellants. PW-16 Vijay Kinikar is the witness

examined by the Prosecution to prove this incident of quarrel. He

was knowing about the love-affair between Sagar and Ayesha. He

was also knowing that Accused No.1-Sohel has taken a fancy for

Ayesha. According to his evidence, just fifteen days prior to the

incident, after taking dinner at about 10 p.m., when he went near

Darga in front of the office of Bhagyalaxmi, these three Accused

were quarreling with the Deceased and the subject of the quarrel

was the love-affair of Ayesha and Sagar. Then, he himself, PW-8

Santosh and Amol intervened in the quarrel and separated them.

When he was leaving the spot, he heard Appellants giving threats

to Sagar that they will kill him. This evidence of PW-16 Vijay

Kinikar is also corroborated by the evidence of PW-8 Santosh,

who was also present there and had tried to intervene in the

quarrel to separate Sagar from the Appellants. He has also

deposed about the presence of PW-16 Vijay Kinikar at the

relevant time. Thus, in our considered opinion, in this case, the

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'motive' and 'genesis' of the incident is sufficiently proved on

record by the Prosecution.

20. (B) DECEASED LAST SEEN IN THE COMPANY

OF THE APPELLANTS

The second circumstance on which the Prosecution is

relying upon is of the Deceased last seen in the company of the

Appellants. In this respect, the Prosecution is relying on the

evidence of PW-14 Vijay Patil, who has seen Accused No.2-Khalid

and deceased Sagar together near Varad Pan Shop at 8 p.m. on

the date of incident. This witness is of the same village and,

therefore, knowing Deceased and Appellants. He was also

knowing about the love-affair of Sagar and Ayesha and about the

quarrel that took place between Sagar and Accused persons, just

fifteen days prior to the incident.

21. According to his evidence, on 12th June 2011, at about

8 pm, when he was in front of Varad Pan Shop, along with his

friends Satish Herle and Ramgonda Patil, Sagar came there on

black colour 'Pulsar' motor-cycle for taking mava. After

purchasing the mava, he came to talk with this witness and his

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friends. At that time, Accused No.2-Khalid also came there.

Accused No.2-Khalid asked Sagar to arrange the dinner and he

will pay for the dinner. Sagar told him that they will go tomorrow

or day after tomorrow. However, Accused No.2-Khalid insisted

that they will go on that day only and then he forced Sagar to sit

on his motor-cycle. Then Accused No.2-Khalid sat on his motor-

cycle as pillion rider. This witness saw that both of them

proceeded towards Vasagade Road on their motor-cycle.

According to his evidence, that was the last time he has seen the

Deceased.

22. In his cross-examination, it is brought on record that

Sagar always used to visit the said Pan Shop. Hence, there was

nothing abnormal on that day in Sagar coming there. The only

material brought out in his cross-examination is that, till 18 th

June 2011 , when his statement was recorded, he did not disclose

this fact to anybody and, hence, there is delay of two days in

recording of his statement. However, his cross-examination goes

to prove that, after the homicidal death of Sagar, there was heavy

Police bandobast in the village. PW-15 Sunil Chougule has also

deposed that there was fifteen days' curfew imposed in the village,

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as there were riots after this incident between the two

communities of 'Hindu' and 'Muslim'. Therefore, the delay of these

two days in recording of his statement can hardly become fatal,

considering these facts.

23. Then there is evidence of PW-11 Nandkumar Patil, who

has seen the Deceased and Accused No.2-Khalid leaving the Beer-

Bar at 10 pm on that day. He is running this Beer-Bar under the

name and style as "Hotel Sargam" at Khotwadi. According to his

evidence, on 12th June 2011, at about 8:30 p.m., Accused No.2-

Khalid came to the Bar along with deceased Sagar. They were

sitting on the table in front of the counter. Accused No.2-Khalid

was facing towards him and was talking on mobile. It is his

evidence that, as Deceased and Accused persons always used to

visit his hotel/permit room, he was knowing them. According to

him, they ordered liquor, which was served to them. Accused

No.2-Khalid paid the bill of Rs.320/- and they left his Dhaba at 10

pm. On the next day, in the evening, Accused No.2-Khalid alone

came in front of his Dhaba for about fifteen minutes and then left.

24. The evidence of this witness thus supports the

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evidence of PW-14 Vijay Patil, who has deposed about Accused

No.2-Khalid and deceased Sagar leaving Varad Pan Shop on the

motor-cycle of the Deceased at about 8 pm, in order to go for

dinner.

25. Further, there is evidence of PW-15 Sunil Chougule,

who was also the resident of the same village and, therefore,

knowing the Deceased and the Accused persons. He is dealing in

the business of purchase of vegetables from Sangli and selling

those in Weekly Bazars of different villages. He owned an auto-

rickshaw bearing No.MH-10-AQ-2011 for carrying vegetables.

According to his evidence, on 12th June, 2011, he had been to

Bazar of Kavathe-Ekand in his auto-rickshaw. After selling

vegetables there, he was returning in his auto-rickshaw at about

10 pm. He was coming from Shirgaon and then proceeding to

Nandre. While coming from Kavathe, at first turn, he saw Accused

No.1-Sohel and Accused No.3-Rafiq standing there at the right

side with one motor-cycle parked nearby. He saw them in the light

of his auto-rickshaw. Both of them were sitting on their motor-

cycle. It is his evidence that the spot of incident, where the dead-

body was found, was just at the distance of 5 to 6 ft. from the spot

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where Accused No.1-Sohel and Accused No.3-Rafiq were standing

on that night.

26. The evidence of this witness is assailed on the ground

that he has not disclosed about his seeing Accused Nos.1 and 3

near the spot of incident for three months. His statement came to

be recorded only on 9th September 2011. In our considered

opinion, having regard to the admitted position on record that,

after this incident, there was curfew for fifteen days on account of

the riots in the village between these two communities of 'Hindu'

and 'Muslim' and there was heavy Police bandobast, creating the

atmosphere of terror and fright, if there is hesitation or delay on

the part of the witnesses to come forward to give the statements,

no fault can be found so as to make this delay fatal to the

prosecution case. Even otherwise, in our considered opinion, the

evidence of other two witnesses sufficiently proves that Deceased

was last seen in the company of the Accused and, thereafter,

there was no trace of the Deceased.

27. This circumstance of Deceased last seen in the

company of the Accused persons assumes significance in the

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instant case, as the time-gap between the point of time when the

Accused persons and the Deceased were last seen alive and when

the Deceased is found to be dead is so small, that the possibility of

any person other than the Accused persons, being the

perpetrators of the crime, becomes impossible. Here in the case,

the evidence on record proves that the Deceased was last seen in

the company of Accused at about 10 p.m. and the evidence of PW-

12 Ayesha proves that the last call she had with Deceased was at

about 7:45 p.m. to 8:00 p.m. and, thereafter, when she tried to call

the Deceased at about 10 p.m., his phone was switched off. Thus,

here is a case, where the Prosecution has, on the basis of reliable

evidence, established that Sagar was last seen in the company of

the Accused and was never seen thereafter; then, it was

obligatory on the part of Accused No.2-Khalid to explain the

circumstances in which he and Sagar parted company.

28. As held by the Apex Court in the case of State of

Rajasthan Vs. Kashi Ram, (2006) 12 SCC 254;

"The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the

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knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the Deceased, he must offer explanation as to how and when he parted company. He must furnish an explanation, which appears to the Court to be probable and satisfactory. If he does so, he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge burden cast upon him by Section 106 of Evidence Act. In a case resting on circumstantial evidence, if Accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him."

29. (C) HOMICIDAL DEATH

To prove that Sagar has succumbed to the homicidal

death, the Prosecution has relied upon the evidence of PW-1

Chavgonda Pachore, the Panch to the Inquest Panchanama, and

the evidence of PW-8 Santosh, who has seen the dead-body of

deceased Sagar. According to their evidence, the dead-body was

found kept in the cement pipe with injuries on various parts.

30. There is also the evidence of PW-17 Dr. Prakash

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Hankare, who has conducted the autopsy at Rural Hospital,

Tasgaon. According to his evidence, there were, as many as, five

injuries on the dead-body; out of them one was on the left side of

fronto parietal region; the bones in that region were fractured; the

skull was burst opened and the brain matter was absent. Further,

there was one de-gloving injury over left orbital, maxillary

zygomatic region with depressed fracture of left orbital

zygomatic, maxillary bones. Another incised wound was found on

neck and then the fingers of left and right hand were amputated.

In his opinion that the cause of the death was on account of "head

injury with burst open fracture skull" . The Postmortem Report is

at Exhibit-76. Having regard to the condition in which the dead-

body was found as kept in the cement pipe and the multiple

injuries on the body, the Defence has also not seriously challenged

the fact that Sagar has succumbed to homicidal death.

31.              (D) EXTRA-JUDICIAL                  CONFESSION               OF      THE

                          ACCUSED

To prove the extra-judicial confession made by the

Accused, the Prosecution has placed reliance on the evidence of

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PW-10 Akshay Patil. He is resident of the same village and

knowing Deceased and Accused persons. Accused No.1-Sohel and

Accused No.3-Rafiq were his classmates also. He was also

knowing PW-12 Ayesha and the love-affair between Sagar and

Ayesha. He was also witness to Accused No.1-Sohel giving

friendship band to Ayesha and, thereafter, all of them going for

watching movie "Wanted" on the birth-day of Accused No.1-Sohel.

It is his evidence that Accused No.1-Sohel had told him that Sagar

had love-affair with Ayesha and he had told, therefore, to Ayesha

that she should not keep relations with Sagar. Accused No.1-Sohel

has also told him about the quarrel between the Accused persons

and the Deceased fifteen days prior to the incident. Therefore, it is

clear that this witness is sufficiently close to the Accused persons

and appears to be a friend of confidence, as he is knowing

everything that has transpired not only between the Deceased

and Ayesha, but also between the Accused and the Deceased. He

was also part of some of those incidents, like, Accused No.1-Sohel

giving friendship band to Ayesha and then all of them going for a

movie.

32. As per his evidence, on the date of the incident,

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Accused No.3-Rafiq talked with him on phone at about 5:00 p.m.

to 5:30 p.m. and enquired with him when he will come to village

fare (Urus) at Nandre. When this witness told Accused No.3-Rafiq

that he will come within a day or two, Accused No.3 has asked

him to come on the next day and he will give him one good news.

According to his evidence, therefore, on 13th June 2011, he came

to village Nandre, along with his mother, at 11 a.m. He met

Accused No.3-Rafiq at 3 p.m. and, thereafter, they went to Urus.

At that time, he enquired with Accused No.3 what was the good

news, but, Accused No.3 assured him that he will tell the good

news afterwards. Then at 7 p.m., they met Accused No.1-Sohel in

the Urus. This witness again enquired as to what was the good

news, but he was not informed.

33. It is deposed by him that on the next day, in the noon

time, Accused No.3-Rafiq came to him and they again went for

Urus and, thereafter, to the school premises. There Accused No.3

told him that on 10th June 2011, he and other co-accused planned

to murder Sagar. The plan was hatched in the school premises.

Accordingly, on 12th June 2011, Accused No.2-Khalid took Sagar

to one Dhaba, near Kavathe-Ekand, on the motor-cycle of Sagar

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and gave liquor to Sagar. Thereafter, at the first turn of Nandre to

Kavathe-Ekand, Accused No.1-Sohel and Accused No.3-Rafiq were

waiting. Accused No.2-Khalid took Sagar on his motor-cycle to

that spot. When Sagar was getting down from the motor-cycle,

Accused No.1-Sohel assaulted him with an Axe on his neck. Sagar

fell down. Then Accused No.2-Khalid took the said Axe from the

hands of Accused No.1-Sohel and gave blows of that Axe on the

face of Sagar. Sagar tried to resist it by his hands. In that attempt,

his fingers were cut. Thereafter, ascertaining that Sagar was

dead, they put the dead-body in cement pipe, which was below the

said road, in the place reserved for flowing water. While

returning, they pushed the motor-cycle of Sagar in one Well and

then they went to their respective houses. As per the evidence of

this witness, he enquired with Accused No.3-Rafiq whether he

was making fun, Accused No.3-Rafiq, however, assured him that

he was not making fun, but it was a fact. This witness also

enquired with Accused No.3 as to why they killed Sagar and

Accused No.3 told him that, if they had not killed him, Sagar

would have killed them.

34. The evidence of this witness further discloses that, on

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the same day, in the evening, he and Accused No.2-Khalid again

went to Urus. There, they met Accused No.1-Sohel and Accused

No.3-Rafiq at about 7:00 p.m. to 7:15 p.m. He enquired with them

whether they had killed Sagar and they confirmed that they had

killed Sagar. They also reiterated to him what was told to him by

Accused No.3-Rafiq.

35. As per evidence of this witness, when the news of this

incident appeared in the newspapers, when his father made

enquiries with him, he informed about the same to his father.

Then his father told him to inform the Police and, hence, on 25 th

June 2011, he went to Tasgaon Police Station, where his

statement came to be recorded.

36. On factual aspects, there is absolutely no cross-

examination about the confession made by the Accused persons

before him. The only ground on which his evidence is assailed is

that, there is delay of about eleven days in recording of his

statement. Secondly, it is submitted that the evidence of extra-

judicial confession being a weak piece of evidence, this Court

should not place reliance thereon.

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37. However, we are unable to accept this submission. As

regards the delayed disclosure, we have already noted as to what

was the cause of delay in recording statements of these witnesses.

The first being there were, admittedly, communal riots in the

village, creating the atmosphere of terror and awe, as a result of

which, curfew was imposed for fifteen days and there was heavy

police bandobast; therefore, it is quite possible that witnesses may

not have gathered courage to disclose the information they had

about the incident to the Police immediately. The delay in such

case, therefore, cannot become fatal in any way.

38. As regards the submission that the evidence of extra-

judicial confession is of a weak type, we would like to quote that

the Apex Court has held in the case of Gura Singh Vs. State of

Rajasthan, (2001) 2 SCC 205. It is as follows :

"The Courts cannot start with the presumption that extra-judicial confession is always suspect or a weak type of evidence. Ultimately, it would depend on the nature of the circumstances, the time when confession is made and the credibility of the witnesses, who speak about such a confession and

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whether confession is voluntary and truthful. It is eventually the satisfaction of the Court".

39. This legal position is confirmed by the Apex Court in

the decision of R. Kuppusamy Vs. State, (2013) 3 SCC 322,

wherein, relying upon the above said decision of Gura Singh Vs.

State of Rajasthan (Supra), it was held by the Apex Court that,

"Despite the inherent weakness of an extra-judicial confession as a piece of evidence, the same cannot be ignored, if it is otherwise shown to be voluntary and truthful. The extra judicial confession cannot always be termed as 'tainted evidence' and that corroboration of such evidence is required only as a measure of abundant caution. If the Court found the witness to whom the confession was made to be trustworthy and that the confession was found to be true and voluntary, a conviction can be founded on such evidence alone. More particularly, the Court declared that Courts cannot start with the presumption that extra judicial confession is always suspect or weak type of evidence, but it would depend on the nature of the circumstances, the time when confession is made and the credibility of the witnesses who speak about such a confession and whether the confession is voluntary and truthful. It is eventually the satisfaction of the Court."

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40. Here in the case, we have already stated that this

witness was on quite friendly terms with the Accused. He was

knowing the details of the relationship of deceased Sagar and

Ayesha and also of Accused No.1-Sohel with Ayesha. He was also,

as stated above, witness to the Accused No.1-Sohel giving Ayesha

the friendship band. He was also with them when they went for

the movie. He was also of the same village and, hence, knowing

the Deceased, Accused and Ayesha since childhood. Therefore, he

was not a stranger or unknown.

41. It may be true, that Accused persons have not made

these extra-judicial confessions before him out of remorse as

such, but it was in the nature of boasting by the Accused. He has

confirmed whatever was disclosed or confessed before him by

Accused No.3-Rafiq with Accused No.1-Sohel and Accused No.2-

Khalid. There is nothing unnatural amongst the friends of

boasting or confessing whatever acts they have committed.

42. Therefore, there is no reason, in our opinion, to

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disbelieve his evidence about extra-judicial confession of the

Accused persons before him; especially, when this extra-judicial

confession is also getting corroboration from other evidence on

record, like the confession made by the Accused and they were

planning about murder of the Deceased since two to three days

prior to the incident is corroborated from the evidence of PW-9

Javed Mulla. He has deposed that Accused No.2-Khalid had

borrowed his motor-cycle and an Axe from him on a day before

the incident. The motor-cycle was returned to him on the night of

the incident. However, the Axe was not returned to him. When

Muddemal Article No.1-Blade of the Axe and Muddemal Article

No.2-Handle of the Axe, which were recovered from the spot of

incident, were shown to him, he has identified the same as

belonging to him.

43. The recovery of the dead-body with incised wounds

caused by sharp weapon like Axe from the spot, along with the

Axe and the articles of the Deceased, gives further corroboration

to the evidence of extra-judicial confession, as deposed by this

witness PW-10 Akshay Patil.

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44. (E) RECOVERY OF INCRIMINATING ARTICLES

The crucial circumstance, on which the Prosecution is

placing reliance, is the recovery of incriminating articles from the

spot of incident and at the instance of Accused persons. The

evidence of PW-2 Panch Satish Patil, corroborated with the

evidence of the Investigating Officer PW-21 API Waghmare, goes

to prove that, during Police custody on 17 th June 2011, i.e. very

next day, Accused No.1-Sohel gave a disclosing statement that he

will produce the motor-cycle, which was pushed in the Well. The

Memorandum Panchanama of the statement was made vide

Exhibit-30. Thereafter, Accused No.1-Sohel guided the Police and

Panch to the Well, which was near the first turn from the side of

Nandre. There, in the Well of one Upadhyay, Accused No.1 pointed

out the 'Pulsar' motor-cycle of black colour. It was removed from

the Well and it was bearing No.MH-10-AD-3677. It was seized

under Panchanama (Exhibit-31). PW-8 Santosh has stated that

this motor-cycle was belonging to deceased Sagar.

45. Then, there is also evidence of PW-1 Panch Chavgonda

Pachore, proving that at the spot of incident, they found the

Identity-Card of Accused No.1-Sohel lying in the shrubs. The Spot

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Panchanama was made immediately, after the dead-body was

found, and the Spot Panchanama (Exhibit-28) sufficiently

corroborates his oral evidence to prove that the Identity-Card was

lying in the shrub on the northern side of the pipe, in which the

dead-body was found, and the said pipe was at the distance of 3 ft.

The Spot Panchanama also contains the description of the

Identity-Card, proving that it was of Accused No.1-Sohel. It was a

laminated Identity-Card of Accused No.1-Sohel, issued by

Kasturbai Walchand College, Sangli. His Roll number and

photograph was appearing on the said Identity-Card. Prosecution

has also examined PW-13 Bahubali Kante, the Junior Clerk from

the said College, to prove the fact that the Identity-Card was of

Accused No.1-Sohel. Accused No.1 has not offered any

explanation about the presence of his Identity-Card just near the

spot of incident.

46. There is then evidence of PW-7 Panch Sheetal

Kogmole, proving the recovery of wallet and mobile phone of the

Deceased at the instance of Accused No.1-Sohel, in pursuance of

the disclosing statement given by Accused No.1-Sohel. The

recovery was made from the spot pointed out by Accused No.1,

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which was a space in between the wall of his house and the wall of

his neighbour. The Driving License of deceased Sagar, with his

photo and one SIM Card, were found in the said wallet. They were

seized under Panchanama (Exhibit-48). Again no explanation is

offered by Accused No.1-Sohel as to how he came into possession

of this wallet, containing Driving License and mobile phone of the

Deceased. The recovery is at his instance and, that too, from the

place known exclusively to him. Recovery of these incriminating

articles, therefore, constitute a clinching piece of circumstantial

evidence.

47. The prosecution has further placed reliance on the

evidence of PW-5 Panch Nilesh Mahajan to prove the seizure of

the clothes of Accused No.3-Rafiq, at his instance under

Panchanama (Exhibits "38" and "39"). The clothes were having

blood stains thereon and the C.A. Report sufficiently proves this

fact. The blood stains were found to be of a human blood and again

no explanation is offered by Accused No.3-Rafiq for the same. In

this case, the Axe was also found to be having human blood of "A"

group, which was the blood group of the Deceased. Apart from

that, in the C.A. Report (Exhibit-128), it is categorically brought

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out that the open shirt having blood-stains thereon, which was

seized at the instance of Accused No.1-Sohel, was not having the

two buttons. The C.A. Report (Exhibit-131) revealed that those

two buttons, which were seized from the spot of incident, were

found to be tallying with the other buttons of the shirt of Accused

No.1-Sohel, in respect of hue and physical characteristics.

48. In our considered opinion, each and every

incriminating circumstance, therefore, alleged is proved by the

Prosecution with cogent, convincing and reliable evidence on

record and all these incriminating circumstances, taken

cumulatively, form a chain so complete that no other inference

but that of the guilt of the Accused persons alone can be drawn

therefrom.

49. (F) CALL DETAIL RECORDS

In addition thereto, the Prosecution has also relied

upon the evidence of PW-18 Satish Mali, Nodal Officer from

B.S.N.L.; PW-19 Ravi Pardeshi, Nodal Officer from Vodafone; and

PW-20 Chandrakant Bhor, Nodal Officer from Reliance Internet

Company, to prove that there was exchange of several calls on the

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mobile of Accused No.1-Sohel and Accused No.2-Khalid at the

relevant time of incident. Here, in this case, none of the Accused

have offered any explanation about this circumstance also.

50. In our considered opinion, therefore, there is more

than sufficient evidence on record to hold that the Prosecution

has established its case against the Accused beyond reasonable

doubt. The Appeals, therefore, hold no merit; hence, stand

dismissed.

[DR. SHALINI PHANSALKAR-JOSHI, J.] [SMT. V.K. TAHILRAMANI, J.]

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