Sachin Jalindar Chavan And ... vs The State Of Maharashtra
2021 Latest Caselaw 8961 Bom

                                               CriAppeal-245-2014.odt
                                     -1-


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO. 245 OF 2014

 1.       Sachin S/o Jalindar Chavan
          Age : 27 years, Occ - Labour
          R/o. Pawalwadi, Taluka Pathardi
          District Ahmednagar.

 2.       Babasaheb S/o Jalindar Chavan
          Age : 31 years, Occ - Labour
          R/o. Pawalwadi, Taluka Pathardi
          District Ahmednagar.                         ... Appellants
                                                       (Orig. Accuses)

                  Versus

          The State of Maharashtra                     ... Respondent

                                     .....
                Mr. N. C. Garud, Advocate for the Appellants
               Mr. S. D. Ghayal, APP for the Respondent-State.
                                      .....

                                   CORAM :    V. K. JADHAV AND
                                              S. G. DIGE, JJ.

                                   RESERVED ON   : 30.06.2021
                                   PRONOUNCED ON : 09.07.2021



 JUDGMENT (PER V. K. JADHAV, J.) :

1. This appeal is directed against the judgment and order of

conviction dated 24.02.2014 passed by the Additional Sessions

Judge, Ahmednagar in Sessions Case No. 132 of 2013.

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2. Brief facts giving rise to the present appeal are as under:

a. The informant Sanjay Ware is having an agricultural land at

Lohasar, taluka Pathardi and he has constructed his residential

house in the field itself. He was residing there along with his wife

Vaishali (deceased), two sons and one daughter. The appellant-

accused no.1 Sachin Chavan was working in his field since one and

half year prior to the incident. The informant's wife, namely

deceased Vaishali, was having a sim-card of Idea Cellular Company.

It was given to appellant-accused no.1 Sachin. The informant or his

wife Vaishali used to contact appellant-accused no.1 Sachin on the

said sim-card/cell phone in connection with the agricultural work.

According to the prosecution, due to frequent visits to the house of

the informant by appellant-accused no.1 Sachin and also due to

use of the said sim-card for contact purposes, the appellant-accused

no.1 Sachin had developed intimacy with the wife of the informant,

namely, Vaishali (deceased). It is also the case of the prosecution

that the appellant-accused no.1 Sachin had developed an evil eye

on deceased Vaishali. Even deceased Vaishali had informed the

same to the informant Sanjay. About two months prior to the

incident, the appellant-accused no.1 Sachin had made an attempt

to outrage the modesty of deceased Vaishali and she had beaten

him with the help of her slippers. It is also the case of the

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prosecution that thereafter, informant Sanjay and deceased Vaishali

both had asked the appellant-accused no.1 Sachin not to come to

their house. However, accused no.1 Sachin was trying to remain in

contact with deceased Vaishali.

b. On 08.01.2013, deceased Vaishali had gone to the weekly

market at Karanji for purchasing the essentials on the eve of the

Sankrant festival. She had taken Rs.5,00/- from the informant-

husband Sanjay and left the house at about 9.00 a.m. However, she

did not return to the house from the weekly market. The informant

Sanjay and his brother-in-law had tried to search Vaishali, however

they could not trace out her for about two days.

c. On 11.01.2013, informant Sanjay Ware lodged a missing

report Exhibit 28 in Pathardi Police Station. Thereafter, while

searching for deceased Vaishali, informant Sanjay noticed that

there was a call from the cell number of his wife Vaishali which was

handed over to accused no.1 Sachin Chavan. Informant Sanjay had

informed this fact to the Pathardi Police Station. Thus, Pathardi

Police Station obtained the call details and noticed that the call was

from accused no.1 Sachin Chavan.

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d. On 16.01.2013, the Pathardi Police caught hold of accused

no.1 Sachin at Nepti Naka. During the course of investigation, it

was transpired that both the appellants-accused took deceased

Vaishali with them under the pretext of going to the temple

situated in the Vruddheshwar valley. Thereafter, both the

appellants-accused had committed murder of deceased Vaishali by

smashing her head with the help of a stone. During investigation,

accused no.1 Sachin pointed out the spot of incident where the

dead body was lying. PW Sanjay Ware-informant identified the

dead body as of his wife Vaishali. PW Sanjay Ware then lodged a

report at the Pathardi Police Station. The said report is marked at

Exhibit 29. On the basis of his complaint, crime no. 8 of 2013 for

the offence punishable under Sections 302, 201 read with 34 of

Indian Penal Code came to be registered in the Pathardi Police

Station.

e. During the course of investigation, the Investigating Officer

Ashok Amle (PW 14) prepared spot panchanama Exhibit 31 in the

presence of the panchas and seized certain articles including the

blood stained stone lying at the spot. He also prepared the inquest

panchanama Exhibit 37 on the dead body. He also sent the dead

body of deceased Vaishali to Sub-District Hospital, Pathardi for

postmortem examination. After receipt of the report of viscera, the

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medical officer, who has conducted the postmortem examination,

gave opinion that deceased died due to head injury. PW 14

Investigating Officer Ashok Amle has also seized the cloths on the

dead body and seizure panchanama was also drawn. During the

course of investigation, while in police custody, accused no.1

Sachin has made a disclosure statement to produce the sim-card

which was handed over to him by Vaishali and accordingly the

same was recovered by drawing memorandum panchanama.

Appellant-accused no.2 Babasaheb Chavan also made a voluntary

statement to produce mangalsutra and ear-rings belonging to

deceased Vaishali and accordingly, the memorandum of recovery

was drawn in presence of the panchas. PW 14 Investigating Officer

Ashok Amle also seized the cloths on the person of both the

accused under the panchanama. During investigation, the call

detail record of both the accused persons was collected from the

Idea Cellular Company. The Investigating Officer then sent the

cloths having blood stains and the articles seized from the spot to

the Chemical Analyzer and after receipt of the report from the

Chemical Analyzer, submitted charge sheet against both the

accused for having committed offence punishable under Sections

302, 201 read with 34 of IPC.

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f. The learned Additional Sessions Judge framed charge

against both the accused under Sections 302, 201, 404 read with

34 of IPC. Both the accused pleaded not guilty to the charge and

claimed to be tried. The prosecution has examined in all 14

witnesses to substantiate the charge leveled against the accused.

The defence of both the accused is of total denial and false

implication. Their statements under Section 313 of Cr.P.C. came to

be recorded.

g. The learned Additional Sessions Judge, Ahmednagar, by the

impugned judgment and order dated 24.02.2014, has convicted the

accused persons as follows:

1. Accused No. 1 Sachin Chavan is hereby convicted of the offence of murder punishable under section 302 of Indian Penal Code and sentenced to suffer imprisonment for life.

2. Accused No. 2 Babasaheb Chavan is hereby acquitted of the offence punishable under section 302 of Indian Penal Code.

3. Accused Nos. 1 Sachin Chavan and No. 2 Babasaheb Chavan are hereby acquitted under section 201 of Indian Penal Code.

4. Accused Nos. 1 Sachin Chavan & accused No.2 Babasaheb Chavan are hereby convicted under section 404 of Indian Penal Code and sentenced to suffer

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Rigorous Imprisonment for period of one year and to pay fine of Rs.1,000/- (Rs. One thousand) each, in default of fine to undergo simple imprisonment for further period of Three Months.

5. Both sentences awarded to accused Nos. 1 Sachin Chavan and No.2 Babasaheb Chavan shall run concurrently.

6. Accused Nos. 1 Sachin Chavan and No. 2 Babasaheb Chavan are entitled for set off/remission under section 428 of the Code of Criminal Procedure.

7. ......

3. Hence this Appeal.

4. Learned counsel for the appellants-accused submits that the

prosecution case rests entirely upon circumstantial evidence and

there is no direct evidence in this case. PW Sanjay Ware has lodged

the missing report in Pathardi Police Station after a considerable

gap. Deceased Vaishali was found missing from 08.01.2013.

However PW Sanjay Ware has lodged the missing report Exhibit 28

on 11.01.2013 in Pathardi Police Station. In the said missing report

Exhibit 28, PW Sanjay Ware has neither made any allegations

against accused no.1 Sachin nor expressed any suspicion against

him. PW 3 Laxman Auti, Police Naik was entrusted with the inquiry

of the missing report Exhibit 28. According to said Police Naik PW

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3 Laxman Auti, he came to know from PW Sanjay Ware (the

informant) that several calls were made on the cell number of

deceased Vaishali and those calls were received from one particular

number. Thus, he obtained the call details of the said number and

also traced out the location of the said cell phone. The said call

detail reports are marked at Exhibits 34 and 35 respectively. PW

Sanjay Ware has informed the Police Naik PW 3 Laxman Auti that

those calls are from the cell phone of accused no.1 Sachin Chavan.

On 14.01.2013, the Police party went to Nepti Naka and effected

arrest of accused no.1 Sachin Chavan in presence of the

complainant PW Sanjay and his brother-in-law. Learned counsel for

the appellants submits that it is the case of the prosecution that

accused Sachin has made a voluntary statement to show the spot

where the dead body was lying and accordingly the police party,

the informant and others went to the spot of incident and the

police had drawn the spot panchanama Exhibit 31. Only thereafter,

PW Sanjay Ware has lodged the complaint Exhibit 29. Learned

counsel submits that there is no memorandum panchanama drawn

by the police for the alleged statement made by accused Sachin

before showing the spot of incident where the dead body was lying.

The learned counsel submits that the statement to that effect

recorded in the spot panchanama Exhibit 31 is not admissible in

evidence.

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5. Learned counsel for the appellants submits that the

prosecution has failed to prove the chain of circumstantial

evidence. The motive as alleged by the prosecution is very weak in

this case. The prosecution case entirely rests upon the sole

circumstance that deceased Vaishali was lastly seen alive in the

company of accused no.1 Sachin in the weekly market of village

Karanji. The prosecution has examined one Mithu Gite (PW 5) on

that point. According to PW 5 Mithu Gite, on 08.01.2013, at about

11 a.m. to 11.30 a.m., he had seen deceased Vaishali on the

motorcycle of accused no.1 Sachin Chavan. Learned counsel

submits that this evidence is contrary to the motive as alleged by

the prosecution. If at all deceased Vaishali had extended beating to

accused no.1 Sachin because of his mis-behaviour some two

months prior to the incident, and even though deceased Vaishali

and her husband PW Sanjay had told accused no.1 Sachin not to

come to their house, it was very unlikely on the part of deceased

Vaishali to sit on the motorcycle of accused no.1 Sachin in the

weekly market. In the backdrop of the evidence of PW 5 Mithu

Gite, there was no apparent reason for accused no.1 Sachin to

murder deceased Vaishali by taking her to an isolated place in the

valley of Vrudhheshwar. Learned counsel submits that even if this

circumstance of last seen together is accepted as it is, there is

considerable time gap between the said last seen together and the

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death of deceased Vaishali. Some eight days after the said

circumstance of last seen together, the dead body of deceased was

located.

6. Learned counsel for the appellants submits that there was no

identification of the dead body and as per the opinion expressed by

the medical officer, who has conducted the postmortem

examination (PW 8 Dr. Manisha Hange), the dead body was in

decomposed condition with disfigurement of face. Thus, personal

identification of the body could not have been ascertained.

7. Learned counsel for the appellants submits that so far as the

recovery of sim-cards from accused no.1 Sachin is concerned, the

said recovery is meaningless for the reason that admittedly the said

sim-card was given to him by PW Sanjay and deceased Vaishali

during the course of employment of accused Sachin with them.

Furthermore, the recovery of motorcycle has also no meaning.

Learned counsel submits that even though one mangalsutra shown

to have been recovered at the instance of accused no.2 Babasaheb

Chavan, however, there is no further connecting evidence through

PW Sanjay Ware that the said mangalsutra was belonging to

deceased Vaishali. Learned counsel submits that as per the

allegations made in the complaint, two sim-cards were given to

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accused Sachin and the same shown to have been recovered under

memorandum of recovery panchanama Exhibits 53 and 54

respectively. Learned counsel submits that even though the call

detail records Exhibits 34 and 35 are accepted as it is, it indicates

that several calls were made using the cell number of Vaishali and

even till 15.01.2013 calls were made on the cell number of

deceased Vaishali from those sim-cards. Learned counsel submits

that if at all accused no.1 Sachin along with his brother accused

no.2 Babasaheb have committed murder of deceased Vaishali, there

was no reason for accused no.1 to make phone calls on the cell

phone of deceased Vaishali. Learned counsel submits that there is

no chain of circumstantial evidence unerringly pointing out the

guilt of the accused. Both the appellants-accused nos. 1 and 2 are

entitled for the benefit of doubt.

8. Learned APP submits that the prosecution has proved its case

beyond reasonable doubt. The prosecution has proved the

homicidal death beyond doubt and the dead body was duly

identified by PW Sanjay as of his wife deceased Vaishali on the

basis of the cloths and other articles found on the dead body.

Learned APP submits that there is strong motive for the appellant

accused no.1 Sachin to commit murder of deceased Vaishali.

Deceased Vaishali had beaten accused no.1 Sachin because of his

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mis-behaviour. Thus accused no.1 Sachin had a grudge against her.

On the day of incident i.e. on 08.01.2013 deceased Vaishali was

lastly seen alive in the company of accused no.1 Sachin at about 11

a.m. to 11.30 a.m. in the weekly market at village Karanji by PW 5

Mithu Gite. Prosecution has examined PW 5 Mithu Gite to prove

the said circumstance of last seen together. The dead body was

recovered on the basis of the disclosure statement made by accused

no.1 Sachin. Learned APP submits that at the instance of accused

no.1 Sachin, the sim-cards came to be seized by drawing

memorandum of recovery panchanama Exhibits 53 and 54 and also

recovered the mangalsutra of deceased Vaishali at the instance of

accused no.2 Babasaheb by drawing memorandum panchanama

and recovery panchanama Exhibit 52 and 52A. Learned APP

submits that learned Additional Sessions Judge, Ahmednagar has

rightly convicted accused no.1 Sachin for the offence punishable

under Section 302 of IPC and also convicted both the accused

persons for the offence punishable under Section 404 of IPC. There

is no substance in this appeal and the appeal is thus liable to be

dismissed.

9. The prosecution case entirely rests upon circumstantial

evidence and there is no direct evidence in this case.

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10. The prosecution has examined PW 8 Dr. Manisha Hange and

PW 12 Dr. Pandit Raosaheb Shirsath. Both the doctors have

conducted postmortem examination on the dead body of Vaishali.

In column no. 17 of the report Exhibit 48, it is mentioned as :

"Surface wound injuries over face & head are noted as follows : there is total disfigurement of jaw and facial structure, fragmentary remains of maxillary arch, fracture mandible, total dislodgment from TM joint, absence of facial structure including facial skin, soft tissue, eyeballs, nose, tongue, lips and cheek. Skull has been crushed with fragmentary remains of skull bone, absence of brain tissue noted."

In addition to this, in column no. 16 :

"there is absence of right hand, right forearm, lower 2/3rd of right arm exposing right humerus shaft"

Certain injuries are also noted those may be due to body part eaten

by animals. It is mentioned that the injuries mentioned over the

extrimities are postmortem in nature. However, the injuries

mentioned in column no. 17 are anti mortem in nature.

11. Initially, the opinion was reserved till the report of viscera.

However, after receipt of viscera PW 12 Dr. Pandit Shirsath has

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opined that deceased might have died due to head injury. Both the

medical experts have accepted that the body was in highly

decomposed condition and therefore, the final cause of death could

not be given. On the basis of certain injuries on head, Dr. Pandit

Shirsath (PW 12) has given the opinion that deceased might have

died due to head injury. It appears from the evidence of both the

medical experts that due to disfigurement of face, personal identity

of the body could not be ascertained. On the basis of the injuries as

detailed in column no. 17 of the postmortem report Exhibit 48, an

inference could be drawn about homicidal death. However, the

prosecution has not firmly established that the said dead body was

of deceased Vaishali.

12. PW Sanjay Ware has deposed that he had identified the dead

body as of his wife Vaishali on the basis of her ear-rings,

mangalsutra, scarf and slippers. He has further explained that

accused no.2 Babasaheb had taken out the ornaments and other

articles from the dead body of Vaishali. According to him, he had

identified the dead body of Vaishali on the basis of the sari on her

body, bangles and slippers. We have carefully gone through the

contents of the spot panchanama and the articles seized from the

spot. It appears that the said spot panchanama Exhibit 31 was

drawn on 17.01.2013 and the Investigating Officer has seized five

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articles. Those articles are (1) the long hairs socked in blood of

deceased, (2) stones stained with blood, (3) the blood mixed earth,

(4) black scarf from the head of the deceased and (5) the sample of

simple earth. The inquest panchanama Exhibit 37 was drawn on

16.01.2013 and there is no reference to the scarf on the head of the

deceased. One seizure panchanama Exhibit 56 of the seizure of the

clothes on the person of deceased shown to have been drawn on

18.01.2013 wherein for the first time a reference has come about

the sari and the blouse. PW Sanjay Ware has deposed that he has

identified the dead body of Vaishali on the basis of the sari on her

body, bangles and slippers. So far as the bangles and slippers are

concerned, those are neither shown in the spot panchanama nor

the inquest panchanama, nor seized by the Investigating Officer at

any point of time. Even though PW Sanjay Ware allegedly

identified the dead body on the basis of the sari, however, said sari

was not shown as an article seized during the spot panchanama

Exhibit 31. The said sari shown to have been seized only on

18.01.2013 i.e. two days after the said dead body was found. We

are of the considered opinion that there is no proper identification

of the dead body in this case. Even the Investigating Officer has

failed to opt for a DNA test to identify the dead body.

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13. It is needless to say that motive plays a prominent role when

the prosecution case rests upon circumstantial evidence. In the

instant case, the prosecution has shown the motive of accused no.1

Sachin that some two months prior to the incident, deceased

Vaishali had beaten him with slippers on account of his mis-

behaviour and therefore, accused no.1 Sachin along with his

brother accused no.2 Babasaheb had committed murder of

deceased Vaishali. We find the motive very weak in this case.

According to PW Sanjay, two months prior to the incident, accused

no.1 Sachin had made an attempt to outrage the modesty of

deceased Vaishali and thus, deceased Vaishali had beaten him and

told him not to come to their house. In the backdrop of this, it is

surprising that PW Sanjay Ware though searched his wife

extensively from 08.01.2013 to 11.01.2013, however, he has not

expressed any suspicion against accused no.1 Sachin in the missing

report. It is also equally surprising that till 11.01.2013 PW Sanjay

Ware has not filed the missing report Exhibit 28 in the concerned

police station.

14. The prosecution has come with a story of last seen together.

PW 5 Mithu Gite has seen deceased Vaishali on the motorcycle of

accused Sachin on 08.01.2013 at about 11.00 a.m. to 11.30 a.m. in

the weekly market at Karanji. We will discuss this circumstance in

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detail. However, so far as the motive as alleged by the prosecution

is concerned, the evidence of PW 5 Mithu Gite appears to be

contrary to it. If at all deceased Vaishali was unhappy and reacted

in harsh manner due to mis-behaviour of accused no.1 Sachin two

months prior to the incident and she further directed accused no.1

Sachin as not to come to their house, it was very unlikely on her

part to sit on the motorcycle of accused no.1 Sachin as a pillion

rider at the crowed place of weekly market at village Karanji. We

are of the considered opinion that the prosecution could not

establish the motive of accused no.1 Sachin to commit murder of

Vaishali.

15. So far as the circumstance of last seen together is concerned,

the prosecution has examined witness PW 5 Mithu Tatyaba Gite.

On 08.01.2013 in the morning deceased Vaishali left the house for

purchasing the essentials from the weekly market at Karanji on the

eve of Sankrant festival. PW Mithu Gite has seen deceased Vaishali

on the motorcycle of accused Sachin on the same day at about

11.00 a.m. to 11.30 a.m. in the weekly market at village Karanji.

16. In the case of Mohibur Rahman and another v. State of

Assam, reported in (2002) 6 SCC 715, in para 10 the Supreme

Court has made the following observations:

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"10. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. As already noted the dead body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30- 40 kms. The event of the two accused persons having departed with the deceased and thus last seen together (by Lilima Rajbongshi, PW 6) does not bear such close proximity with the death of the victim by reference to time or place. According to Dr Ratan Ch. Das the death occurred 5 to 10 days before 9-2-1991. The medical evidence does not establish, and there is no other evidence available to hold, that the deceased had died on 24-1-1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular piece of circumstantial evidence available against him. We have already discussed the evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far

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as the offence under Section 201 IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal."

17. The Supreme Court has observed that the circumstance of

last seen together does not by itself and necessarily lead to the

inference that it was the accused who committed the crime. There

must be something more establishing the connectivity between the

accused and the crime. On account of the close proximity of place

and time between the event of accused having been last seen with

the deceased and the factum, an irresistible conclusion can be

drawn that either the accused should explain the circumstance or

he should own the liability for the homicide.

18. In the instant case, there is no such proximity of time and

place. The dead body of Vaishali was recovered on 16.01.2013 from

Vrudhheshwar valley which is at a distance of 40 kms from

Pathardi. Village Lohasar, where PW Sajnay Ware and deceased

Vaishali were residing, is at a distance of 3 kms from the weekly

market of village Karanji. Deceased Vaishali was found missing on

08.01.2013 and the dead body was recovered eight days after the

date on which deceased was last seen in the company of accused

no.1 Sachin. The medical evidence does not positively establish

that deceased Vaishali died on 08.01.2013 or soon thereafter.

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Admittedly, there is no other evidence indicating the exact time of

death of Vaishali.

19. Furthermore, PW 5 Mithu Gite has admitted in his cross-

examination that he had not informed anyone the fact of last seen

together till his statement was recorded by the police. He has

further admitted in his cross-examination that he was aware that

people were searching Vaishali and Police had also come to his

village to search Vaishali. He has also admitted in his cross-

examination that he has gone twice to the police. First time he had

gone to the police when Vaishali had died and at that time he had

not told about the said incident of seeing Vaishali in the weekly

market of Karanji to the police. PW Sanjay Ware has also admitted

in his cross-examination that PW 5 Mithu Gite and one Sarangdhar

Gite met him on 09.01.2013 at Lohasar, Taluka Pathardi. PW

Sanjay Ware has also admitted in his cross-examination that on

08.01.2013 his wife deceased Vaishali first went to her maternal

house before going to the weekly market. PW Sanjay Ware has

voluntarily stated in his cross-examination that deceased Vaishali

left her maternal home for going to the weekly market at about

12.30 p.m. In view of this admission, the theory of last seen

together, put forth by the prosecution as a material circumstance,

appears to be unbelievable. We are of the opinion that witness PW

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Mithu Gite is a got up witness. His evidence is unreliable, not

inspiring confidence.

20. We have carefully gone through the call detail record. We are

surprised to note that as per the call detail record from 08.01.2013

to 15.01.2013, there are calls from a particular cell phone to the

cell phone of deceased Vaishali or the informant. Accused no.1

Sachin along with his brother, if committed murder of deceased

Vaishali, then it is very unlikely on his part to make phone calls on

the cell phone of deceased Vaishali by using the sim-cards given to

him by deceased Vaishali during her life time when accused no.1

was working in their field. Otherwise also, we do not find any

relevancy in the call detail record to establish the guilt of the

accused. Even if the frequency of calls between the sim-card/cell

phone in possession of accused no.1 Sachin and the cell phone of

deceased Vaishali is considered, it appears that there were intimate

relations between them. However, the same is contrary to the

motive as put forth by the prosecution to prove the involvement of

accused no.1 Sachin in commission of murder of Vaishali. Similarly,

even though there is recovery of the sim-cards at the instance of

accused no. 1 Sachin, however, admittedly those sim-cards were

given to him by PW Sanjay Ware and his wife deceased Vaishali

when he was working in their field. There is no further evidence to

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indicate that despite their insistence, accused no.1 Sachin did not

return those sim-cards to them.

21. So far as the involvement of accused no.2 Babasaheb in

connection with the present crime is concerned, he has been

convicted for the offence punishable under Section 404 of IPC

along with accused no.1 Sachin only due to recovery of

mangalsutra and ear-rings at his instance. The prosecution has

examined PW 10 Raju Sontakke to prove the memorandum of

recovery panchanama Exhibit 52 and the recovery panchanama

Exhibit 52A for the recovery of mangalsutra and the ear-rings. PW

Raju Saotakke has not supported the prosecution. If for the sake of

discussion we accept that the said recovery of mangalsutra and ear-

rings was at the instance of accused no.2 Babasaheb, as deposed by

PW 14 Investigating Officer Ashok Amle, however, we do not find

any further connecting evidence so far as the said recovery is

concerned. PW Sanjay Ware has deposed that he has identified the

dead body of Vaishali on the basis of the sari on her body, bangles

and slippers. We have already dealt with this part of the evidence.

Even PW 14 Investigating Officer Ashok Amle has also admitted

that he has not seen bangles and slippers. Even the sari was not

seized at the time of drawing of the spot panchanama or the

inquest panchanama. It is pertinent that the sari was seized by

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drawing a separate panchanama on 18.01.2013, i.e. two days after

the dead body was found. Even there is no reference in the

complaint Exhibit 29 that the mangalsutra and the ear-rings on the

dead body are missing. Further, we do not find any evidence to

indicate that the said mangalsutra and ear-rings were shown to PW

Sanjay Ware and he has identified the said articles as belonging to

his wife. Even those articles were not shown to PW Sanjay Ware in

the court for identification purpose. On the other hand, PW Sanjay

Ware has initially stated in his examination-in-chief itself that he

has identified the dead body of Vaishali on the basis of her ear-

rings, mangalsutra, scarf and slippers. He has corrected himself.

However, we cannot ignore that initially he has given the fatal

admissions in respect of the mangalsutra and ear-rings. Further, the

said memorandum of recovery as per Exhibits 52 and 52A is much

later i.e. on 18.01.2013.

22. We have also carefully gone through the contents of the C.A.

report Exhibit 47. It appears that the cloths on the person of the

accused are marked as articles 9, 10, 11 and 12. As per the result of

analysis, no blood is detected on Exhibits 9, 10, 11 and 12. Even

though there is recovery of motorcycle at the instance of accused

no.1 Sachin, however, we find no connecting evidence by way of

recovery of the motorcycle. The Investing Officer PW Ashok Amle

CriAppeal-245-2014.odt

has deposed that during investigation, it was revealed that accused

no.1 smashed the head of deceased by means of stone. Accused

no.1 Sachin had demanded sexual relations from Vaishali and so

Vaishali had assaulted accused Sachin and on that count murder

had taken place out of revenge with the help of accused no.2.

However, we hardly find any evidence to draw a conclusion to that

effect as deposed by the Investigating Officer. On the contrary, the

evidence indicates otherwise. We are of the considered opinion that

the prosecution has failed to prove the case beyond reasonable

doubt against both the accused persons. Thus, both the appellants-

accused are entitled for the benefit of doubt. We accordingly

proceed to pass the following order:

ORDER

I. Criminal Appeal No. 245 of 2014 is hereby allowed.

II. The impugned judgment and order dated 24.02.2014 passed by the Additional Sessions Judge, Ahmednagar in Sessions Case No. 132 of 2013 is hereby quashed and set aside.

III. Accused No.1 Sachin Jalinder Chavan and accused no.2- Babasaheb Jalinder Chavan are hereby acquitted of all the charges.

CriAppeal-245-2014.odt

IV. The fine amount, if deposited, shall be refunded to them.

         V.    The      appellant-accused         no.1     Sachin       Jalinder
               Chavan          and   the     appellant-accused              no.2-

Babasaheb Jalinder Chavan shall execute P.B. of Rs.15,000/- each, with one surety of the like amount each to appear before the higher court as and when the notice is issued in respect of any appeal or petition filed against the judgment of this Court. Such bail bonds shall remain in force for a period of six months from the date of its execution.

VI. Criminal Appeal No. 245 of 2014 is accordingly disposed off.

       (S. G. DIGE, J.)                                           (V. K. JADHAV, J.)

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