Bombay High Court
Dada @ Mahendra Shivaji Jagtap vs The State Of Maharashtra on 28 July, 2021
Bench: V.K. Jadhav, S. G. Dige
crapl20.14-
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 20 OF 2014
Dada @ Mahendra s/o Shivaji Jagtap,
Age 28 years, Occ. Agriculture
R/o. Kolgaon, Tq. Shrigonda ...Appellant
District Ahmednagar (Ori. Accused No.2)
versus
The State of Maharashtra
Through Police Officer
Shrigonda Police Station,
Tq. Shrigonda, District Ahmednagar ...Respondent
.....
Mr. Nitin V. Gaware, advocate for the appellant
Mr. M. M. Nerlikar, A.P.P. for respondent-State
.....
WITH
CRIMINAL APPEAL NO. 51 OF 2014
Rohan @ Sunny Uday Hazare,
Age 31 years, Occ. Driver
R/o. Navi Sangvi Pune, ...Appellant
Tq. and District Pune (Ori. Accused No.1)
versus
The State of Maharashtra ...Respondent
.....
Mr. Naseem R. Shaikh, advocate for the appellant (appointed)
Mr. M. M. Nerlikar, A.P.P. for respondent-State
.....
WITH
CRIMINAL APPLICATION NO. 573 OF 2020
IN
CRIMINAL APPEAL NO. 20 OF 2014
The State of Maharashtra ...Applicant
versus
::: Uploaded on - 28/07/2021 ::: Downloaded on - 29/07/2021 07:47:26 :::
crapl20.14-
-2-
1. Dada s/o Mahendra s/o Shivaji Jagtap
Age major, Occ. Agriculture
R/o. Kolgaon, Tq. Shrigonda
District Ahmednagar
2. Rohan @ Sunny Uday Hazare
Age major, Occ. Driver
R/o. Navi Sangvi Pune
Tq. and District Pune ...Respondents
.....
Mr. M. M. Nerlikar, A.P.P. for applicant-State
Mr. N. V. Gaware, advocate for respondent No.1.
Mr. N. R. Shaikh, advocate for respondent No.2
.....
CORAM : V. K. JADHAV AND
S. G. DIGE, JJ.
Date of Reserving
the Judgment : 14.07.2021
Date of pronouncing
the Judgment : 28.07.2021
JUDGMENT (PER V.K. JADHAV, J.) :-
1. These appeals are directed against the judgment and order of
conviction passed by the Additional Sessions Judge, Ahmednagar
dated 31.7.2013 in Sessions Case No. 41 of 2011 convicting thereby
both the appellants for the offence punishable under Section 302 r.w.
34 of I.P.C. and sentencing them to suffer life imprisonment and to
pay fine of Rs.1000/- each i/d of payment of fine to suffer R.I. for six
months each.
2. Brief facts giving rise to the present appeals are as follows:-
crapl20.14-
(a) Deceased Kiran Sudam Bhingardive and accused No.1
Rohan Hajare were friends inter se. On 9.10.2010 deceased Kiran
Bhingardive left the house informing in the house that he was going
out of station alongwith appellant-accused No.1 Rohan Hajare.
However, deceased Kiran did not return to his house. After waiting
for about 8 days, on 18.10.2010 the younger brother of deceased
Kiran, viz. Kuldip Sudam Bhingardive approached the Tophkhana
police station and lodged a missing report. The said missing report
was registered in Tophkhana police station on 18.10.2010 at 9.00
p.m. vide missing Register No. 123 of 2010. Meanwhile, on
10.10.2010 one Madhukar Krishnaji Shelar R/o. Belwandi rushed to
Shrigonda police station and lodged a report about a dead body of
unknown male person, age 40 years lying adjacent to the streamlet
near well situated in the field of Vithoba Ghodekar. On the basis of
his report, A.D. No. 129 of 2010 came to be registered at Shrigonda
police station on 10.10.2010 itself. During the course of investigation
of said A.D. the police Officer of Shrigonda police station visited the
spot, inspected the dead body lying on the spot, prepared inquest
panchnama and drew spot panchnama. The police officials of
Shrigonda police station have collected and attached articles lying on
the spot including plain earth and blood mixed earth. The dead body
was thereafter sent to the rural hospital Shrigonda for post mortem
examination. After conclusion of the inquiry of accidental death, Mr.
Markas Uttam Magar, Police Head Constable attached to Shrigonda
police station lodged a report on behalf of the State regarding murder
crapl20.14-
of unknown person by unknown offenders, for unknown reason by
giving severe blows of heavy stones on vital parts viz. head, chest
etc. On the basis of his report, crime No. 350 of 2010 for the offence
punishable under Sections 302 and 201 of I.P.C. came to be
registered at Shrigonda police station on 10.10.2010 at about 11.15
p.m. During the course of investigation, the statements of material
witnesses came to be recorded. During investigation, it transpired
that in the intervening night of 9.10.2010 and 10.10.2010, both the
accused alongwith deceased stayed at Hotel Mahendra and during
that night cash of Rs.5,000/- was stolen away from accused No.1
Rohan Hajare. When he asked about the same to deceased Kiran
Bhingardive, deceased Kiran Bhingardive got annoyed and abused
both of them in filthy language. Consequently, both the accused, in
furtherance of their common intention, on 10.10.2010 prior to 3.10
p.m. carried Kiran Bhingardive on his motorcycle to the spot of
incident and committed his murder by assaulting him heavily on head
and chest with stones. During further investigation, both the accused
came to be arrested. The motorcycle and shoes of deceased Kiran
Bhingardive were seized at the instance of accused No.1 Rohan.
Even clothes of both accused came to be seized during investigation
and all seized articles were sent to the forensic laboratory for
chemical analysis. After completion of investigation, on 31.1.2011
charge sheet came to be submitted under Sections 302, 201 r.w. 34
of I.P.C. against the appellants-accused persons.
crapl20.14-
(b) The learned Additional Sessions Judge, Ahmednagar by
order dated 2.7.2011 has framed charge under Section 302, 201 r.w.
34 of I.P.C. against both the accused vide Exh.4. The said charge
was read over and explained to both the accused and they have
pleaded not guilty and claimed to be tried. Their defence was of total
denial. The prosecution has examined 15 witnesses to substantiate
the charges levelled against the accused persons. After completion
of prosecution evidence, the statements of appellants-accused
persons under Section 313 of Cr.P.C. came to be recorded.
(c) By judgment and order dated 31.7.2013 the learned Additional
Sessions Judge, Ahmednagar in Sessions Case No. 41 of 2011 has
convicted both the appellants accused as follows:-
i) The accused No.1 Rohan @ Sunny Uday Hajare and accused
No.2 Dada @ Mahendra Shivaji Jagtap are convicted for the
offence punishable under Section 302 r.w. 34 of I.P.C. and
they are sentenced to suffer life imprisonment and to pay fine
of Rs.1000/- each i/d of payment of fine, to suffer R.I. for six
months each.
ii) The accused Nos. 1 Rohan @ Sunny Uday Hajare and
accused No.2 Dada @ Mahendra Shivaji Jagtap are acquitted
of the offence punishable under Section 201 r.w. 34 of I.P.C.
iii) Period of detention undergone by accused Nos. 1 and 2 be set
off against the sentence of imprisonment referred above vide
Section 428 of Cr.P.C.
crapl20.14-
3. Hence, this appeal.
4. Learned counsel for the appellants accused in both the
appeals submit that the prosecution case entirely rests upon
circumstantial evidence and there is no direct evidence in this case.
The prosecution has failed to prove the case by establishing the
chain of circumstantial evidence. The prosecution has also failed to
establish the motive on the part of the appellants-accused to commit
murder of deceased Kiran Bhingardive.
5. Learned counsel appearing for the appellants accused submit
that in order to prove the chain of circumstantial evidence, the
prosecution relied upon the evidence of P.W. 14 Dnyaneshwar
Warade, P.W.7 Vishal Dattatraya Darade, P.W.11 Sanjay Wadekar
and P.W.12 Dinesh Harianna Shetty. The prosecution case mainly
rests upon the circumstance of last seen together and blood stains
on the clothes of the appellants.
6. Learned counsel for the appellants submit that P.W.14
Dnyaneshwar Warade has no previous acquaintance with the
appellant accused Rohan and the appellant accused Rohan asked
deceased Kiran to accompany him as he wanted to go for enjoyment.
It is transpired during investigation that the appellant accused Rohan
was not knowing deceased Kiran till the day before the incident.
crapl20.14-
Therefore, the evidence of P.W.14 Dnyaneshwar Warade is not
reliable and trustworthy. Learned counsel submit that P.W.7 Vishal
Darade has deposed before the court that on 7.10.2010 at about
4.00 p.m. the appellant accused Rohan met him at Sarjepura and he
was having a Hero Honda CBZ of black colour with yellow shade.
According to him, accused Rohan stayed with him for two days. On
9.10.2010 in the morning, accused Rohan went outside and
contacted P.W.7 Vishal Darade on his phone. P.W.7 Vishal Darade
thereafter deposed that accused Rohan thereafter met him at Delhi
gate at about 5.00 p.m. to 5.30 p.m. At that time, the appellant
accused Rohan introduced deceased Kiran to him. Accused Rohan
had demanded an amount of Rs.5000/- and P.W.7 Vishal Darade
had given the said amount to accused Rohan. Accused Rohan had
kept his motorcycle as security. Thereafter, accused Rohan and
deceased Kiran went away.
7. Learned counsel for the appellants submit that P.W.11 Sanjay
Kashinath Wadekar was working in the Hotel Mahendra of which one
Ravindra Gade is the owner. On 20.10.2010 the police from
Tophkhana police station have shown a photograph and made
inquiry as to whether the person appearing in the said photograph
had come to his hotel. P.W.11 Sanjay Wadekar disclosed to the
police that three persons, including deceased had been to the Hotel
and one of them was accused Dada @ Mahendra Jagtap. Room No.
101 was made available to them and all of them halted overnight in
crapl20.14-
the hotel. They had drinks. According to him, on the next day
between 9.00 to 9.30 a.m. those persons had vacated the room,
however, before leaving the hotel, all of them came in the garden and
took drinks. After 3/4 days, accused Rohan alongwith one male
person and two ladies came to the hotel and collected some clothes
and footwear, which were remained in the hotel. P.W.11 has
identified the appellants accused persons before the court. There
was no test identification parade conducted by the investigating
officer during the course of investigation. Learned counsel for the
appellants submit that the evidence of this witness could not be
believed. Even in cross-examination he has admitted that he has
mentioned the name of accused Dada @ Mahendra Jagtap on the
say of police.
8. Learned counsel for the appellants-accused submit that
P.W.12 Dinesh Shetty is the manager of the hotel. He has identified
accused Dada @ Mahendra Jagtap as the person who took the room
in the hotel. He was accompanied by two persons. This witness also
identified the appellant-accused Rohan before the court for the first
time. According to him, he left the hotel on the next day at about
11.00 a.m. to 11.30 a.m. After 2/3 days of the said incident, the
appellant accused No.1 had been to the hotel and collected the
footwear and other articles. This witness has noticed the injury over
his forehead. According to this witness, accused Rohan informed him
that a quarrel took place amongst three and as a result thereof he
crapl20.14-
had sustained injury over his forehead. Learned counsel for both the
appellants submit that it is difficult to believe that the manager of the
hotel could identify the customers in the manner in which this witness
has deposed before the court. Learned counsel for the appellants
submit that the dead body though found on the same day at 3.00
p.m., however, as per the spot panchanama, near the dead body one
plastic packet containing ganja and also broken instrument which is
meant for inhaling ganja were found alongwith other articles. Learned
counsel submits that there is no further connecting evidence against
the accused. Merely on the basis of last seen together in the hotel, it
would not be safe to draw inference that the appellants-accused had
committed the murder of deceased and none others. The prosecution
could not explain about the recovery of ganja and the instrument for
inhaling of ganja on the spot. Learned counsel submit that the
possibility of use of those articles by the deceased alongwith some
other persons on the spot could not be ruled out. Learned counsel
submit that though there is recovery of the motorcycle Bajaj CT 100
of black shed, however, none has identified any of the articles as
belonging to deceased. Learned counsel submits that the result of
blood stains appearing on the clothes of accused persons are
inconclusive as per report of Chemical Analyzer. Both learned
counsel submit that it is well settled that suspicion, however grave or
strong may be, but it cannot take the form of legal proof. Both the
accused persons are entitled for benefit of doubt.
crapl20.14-
9. Learned counsel appearing for the appellants accused submit
that during pendency of these appeals, without there being any
permission from this court, the investigation has been carried as
explained in criminal application filed on behalf of the State and now
the prosecution is seeking permission to fill up the lacunae. Learned
counsel for the appellants submit that even though the said
documents pertaining to the motorcycle are accepted as it is, there is
nothing to indicate that the accused persons and deceased had used
the same motorcycle during the alleged stay in the hotel and
thereafter accused No.1 used the said motorcycle in the commission
of crime, in any manner. Learned counsel for the appellants submit
that this futile exercise carries no meaning.
10. Learned counsel for the appellant in criminal appeal No. 20 of
2014, in order to substantiate his submissions, placed reliance on the
following cases:-
i) Prabhoo vs. State of Uttar Pradesh, reported in 1963 AIR (SC)
1113;
ii) Kiran Ashok Jadhav vs. State of Maharashtra, reported in
2014 (3) Bom.C.R. (Cri.) 33;
iii) State of West Bengal vs. Mir Mohammad Omar, reported in
2000 AIR (SC) 2988;
iv) Sohel Mehaboob Shaikh vs. State of Maharashtra, reported in
2009 AIR (SC) 2702;
v) Janardhan Ramaji @ Ramrao Bannagare vs. State of
crapl20.14-
Maharashtra, reported in 2016 All M.R. (Cri.) 1667;
vi) Raju Brijmohan Maurya vs. State of Maharashtra, reported in
2008 All M.R. (Cri.) 2632;
vii) Durgadevi Ramparvesh Sharma vs. State of Maharashtra,
reported in 2011 (2) Bom.C.R. (Cri.) 652;
viii) Shrirang Nagorao Chavan and Anr. vs. State of Maharashtra,
reported in 2013 (10) LJSOFT 150;
ix) Rambhau vs. State of Maharashtra, reported in 2001 AIR (SC)
2120;
x) Rajeshwar Prasad Misra vs. State of West Bengal, reported in
1965 AIR (SC) 1887;
11. Learned counsel for the appellant in criminal appeal No. 51 of
2014, in order to substantiate his submissions, placed reliance on the
following cases:-
i) Peddireddy Subbareddi and others vs. State of A.P., reported in AIR
1991 SC 1356;
ii) Surendra vs. State of Rajasthan, reported in AIR 2012 SC (Supp)
78;
iii) Rabindra Kumar Pal @ Dara Singh vs. Republic of India, reported in
AIR 2011 SC 1436;
iv) Anjan Kumar Sarma and Ors. vs. State of Assam, reported in AIR
2017 SC 2617;
v) Roopsena Khatun vs. State of West Bengal, reported in AIR 2011
SC 2256;
vi) State of Goa vs. Sanjay Thakran and Anr, reported in AIR 2007 SC
(Supp) 61;
crapl20.14-
12. Learned A.P.P. for the respondent State in both the appeals
submits that the prosecution case entirely rests upon circumstantial
evidence and the prosecution has established the chain of
circumstantial evidence. The prosecution has proved the case and
relied upon circumstance of last seen together. Deceased Kiran was
lastly seen alive in the company of accused persons and thereafter
his dead body was found within a short gap. Learned A.P.P. submits
that the homicidal death is not disputed in this case. The trial court
has correctly appreciated the evidence and convicted both the
appellants-accused for the offence punishable under Section 302 r.w.
34 of I.P.C. The prosecution has established the motive on the part
of accused persons to commit murder. Learned A.P.P. submits that
there is no explanation under Section 106 of the Evidence Act from
accused persons and as such there is an additional link of the
circumstance against the accused persons.
13. Learned A.P.P. submits that so far as the recovery of
motorcycle from accused Dada @ Mahendra is concerned, the said
motorcycle was having no number. However, it is black colour Bajaj
CT 100 with chassis and engine number and said recovery
panchanama was proved by P.W.6. Learned A.P.P. submits that said
motorcycle belongs to Dhiraj Sudam Bhingardive, brother of
deceased Kiran. Learned A.P.P. submits that photo copy of R.C.
book was collected by the then investigating officer during the course
crapl20.14-
of investigation which is already on record. However, the prosecution
has not proved the said important document by calling upon any
person from the R.T.O. office as witness. Learned A.P.P. submits
that the missing report of deceased Kiran was given by his brother
Kuldip, however, during the trial he was not examined. Learned
A.P.P. submits that as per the communication dated 13.1.2020 made
to the Police Inspector, Shrigonda police station by the Deputy
Regional Transport Officer, Ahmednagar, it appears that said
motorcycle Bajaj CT 100 with chassis and engine numbers, as
detailed in the panchanama, is recovered at the behest of accused
Dada @ Mahendra Jagtap and it belongs to one Dhiraj Sudam
Bhingardive, brother of deceased Kiran. Deceased Kiran had taken
the said motorcycle and went alongwith accused Rohan.
14. So far as criminal application No. 573 of 2020 is concerned,
learned A.P.P. submits that the prosecution may be permitted to give
additional evidence to the extent of examination of two witnesses i.e.
Dipak Patil, Deputy Regional Transport Officer and Kuldip Sudam
Bhingardive for proving the letter dated 13.1.2020.
15. We have carefully considered the submissions advanced by
learned counsel for the appellants-accused in both the appeals and
learned A.P.P. for the respondent State. With their able assistance,
we have perused the grounds taken in the appeals, annexures
thereto, the record and proceeding and the case laws cited by the
crapl20.14-
respective parties.
16. So far as the homicidal death of deceased Kiran is
concerned, the defence has not disputed the same. The inquest
panchanama Exh.34 demonstrates that the head of deceased Kiran
was severally crushed and brain came out of the skull. P.W.9 Dr.
Sandip Pund, Medical Officer attached to Rural Hospital, Shrigonda
had conducted post-mortem examination on the dead body of
deceased Kiran on 11.10.2010. He had noticed in all 13 injuries on
the person of deceased Kiran, which are detailed in column No.17 of
the post mortem report. P.W.9 Dr. Sandip Pund has deposed that
except injury Nos. 10 and 11, other injuries on the dead body were
anti mortem injuries. In his opinion, the external injuries as mentioned
in column No.17 are corresponding to internal injuries mentioned in
column No. 19 and 20 of the post mortem report Exh.36. P.W.9 Dr.
Sandip Pund has opined that death of Kiran was homicidal and
injuries on head and chest of deceased Kiran are possible by big
stone. The prosecution has examined P.W.2 Sangram Pawar to
prove the contents of spot pancahnama Exh.33. Besides other
articles, one blood stained stone weighing 15 Kg and one another
circular stone having blood stains weighing 3 Kg came to be seized
under spot panchanama. The appellants accused have not disputed
the identity of the dead body. They have also not seriously disputed
the nature of death.
crapl20.14-
17. The prosecution case mainly rests upon the circumstantial
evidence and there is no direct evidence in this case. In a case
which rests upon circumstantial evidence, "motive" plays an
important role. The trial court has not discussed as to what is the
motive for appellants-accused persons to commit brutal murder of the
deceased. The prosecution case entirely rests upon circumstance of
last seen together. The trial court has also discussed the evidence of
last seen together chronologically by referring evidence of P.W.14
Dnyaneshwar Warade, P.W.7 Vishal Darade, P.W.11 Sanjay
Wadekar and P.W.12 Dinesh Shetty. We have carefully gone
through the evidence of prosecution witnesses to find out the motive
for the accused persons to commit murder of deceased Kiran. We
find no evidence as to the motive in the instant case. We would
examine the evidence about last seen together in chronological
sequence:-
i) P.W.14 Dnyaneshwar Warade has deposed that on
9.10.2010 he was present near bungalow of deceased Kiran.
Deceased Kiran was with him. According to him one fair and
tall boy i.e. appellant accused No.1 (Rohan) came there. The
appellant accused Rohan asked deceased Kiran to
accompany him as he wanted to go for enjoyment. It has
further come in the evidence of this witness that appellant
accused Rohan also stated to Kiran that he wanted to go to
P.W.7 Vishal Darade at Delhi Gate to obtain money.
Accordingly, appellant accused Rohan and deceased left the
crapl20.14-
spot. He has identified the appellant accused Rohan before
the Court.
ii) P.W.7 Vishal Dattatraya Darade has deposed that on
7.10.2010 at about 4.00 p.m. appellant accused Rohan met
him. Appellant accused Rohan stayed in his house for two
days. On 9.10.2010 in the morning appellant accused Rohan
went outside. He has further deposed that appellant accused
Rohan intimated to him on phone at about 2.00 p.m. that he is
in the locality known as Savedi. P.W.7 Vishal has thus asked
him to come. P.W.7 Vishal has further deposed that appellant
accused Rohan came to the point known as Delhi gate at
about 5.00 to 5.30 p.m. He was accompanied by one person,
to whom he has introduced as Kiran Bhingardive. The
appellant accused Rohan has demanded Rs.5000/- to P.W.7
Vishal under the pretext that he had to give that amount to his
mother. P.W.7 Vishal has accordingly brought Rs.5000/- from
one person and handed it over to him. The appellant accused
Rohan had assured that the amount will be returned within
two days and kept his motorcycle as security. The appellant
accused Rohan has kept CBZ motorcycle with P.W.7 Vishal.
The documents of the said motorcycle were in the name of
one Jagan Shridhar. P.W.7 Vishal has further deposed that
the appellant accused Rohan and deceased Kiran left that
place on foot. It would not be out of place to mention here that
there are no details by way of connecting evidence as to from
whom P.W.7 Vishal had collected the said amount of
Rs.5000/-, nor the police has seized the said CBZ motorcycle
from his custody kept by the appellant accused Rohan
towards the security of said amount of Rs.5000/-.
iii) P.W.11 Sanjay Wadekar, who was working at Hotel
Mahendra at the relevant time, has deposed that on
crapl20.14-
20.10.2010 the police from Tophkhana police station had
come to the hotel and shown him a photograph. The police
had made inquiry, whether the person appearing in it, had
come to the hotel. P.W.11 Sanjay has disclosed to the police
that some three persons had been to the hotel and one of
them was the appellant accused No.2 Dada @ Mahendra
Jagtap. The appellant accused Dada @ Mahendra used to
supply water by tanker at the construction site of the road and
he used to come to the hotel to drink. According to P.W.11
Sanjay Wadekar, on 9.10.2010, in all three persons including
appellant accused Dada @ Mahendra came to the hotel.
They had demanded drinks. They had consumed drinks there
only. P.W.11 Sanjay Wadekar has further deposed that those
persons had demanded a room. Thus, waiter of the hotel had
taken entry in the register of the hotel. Entry was taken in the
name of appellant accused Rohan and room No.101 was
made available to them. Those three persons took halt at
night. On the next day i.e. on 10.10.2010 at about 9.00 to
9.30 a.m. before leaving, those persons had again consumed
drinks in the garden. After 3/4 days, the appellant accused
Rohan alongwith one male and two female members came to
their hotel for collecting the footwear and clothes. P.W.11
Sanjay Wadekar has identified the appellant accused Rohan
before the court.
iv) P.W.12 Dinesh Shetty was working as Manager in
hotel Mahendra. The Hotel Mahendra is on ground floor
whereas Shivkrupa Lodge is on the upper floor. In case of
demand of liquor or food by the customers, the same was
provided from the hotel as per the order. On 9.10.2010 he was
present in the Hotel Mahendra. P.W.12 Dinesh deposed that
on the said day in the night appellant accused Dada @
Mahendra Jagtap came to the hotel and demanded a room.
crapl20.14-
He was accompanied by two persons and room No.101 was
made available to those persons. P.W.12 Dinesh Shetty has
further deposed that all three persons stayed in the night and
vacated the room in the morning. All three consumed liquor
on the next day morning in the garden while leaving the hotel
at about 11.00 to 11.30 a.m. They had also taken snacks,
omelet. P.W.12 Dinesh has deposed that 2/3 days thereafter,
one slim person came there alongwith one male and two
females for collecting the footwear and other articles remained
in the room. P.W.12 Dinesh identified the said slim person as
appellant accused Rohan before the court. According to
P.W.12 Dinesh, he has noticed one injury over the forehead of
appellant accused Rohan. According to him, the appellant
accused Rohan informed him that there was a quarrel
amongst the three and as a result thereof, he had sustained
injury over his forehead.
18. In terms of the contents of spot Panchnama Exh.33 (admitted
by the defence) and inquest Panchnama Exh.34 (admitted by the
defence) the dead body of deceased Kiran was found on 10.10.2010
at about 3.00 to 3.30 p.m. near the streamlet at village Shindewadi.
It is a settled legal position that law presumes that it is the person,
who was last seen with deceased, would have killed the deceased
and burden to rebut the same lies on accused to prove that they had
departed. The last seen theory is an important circumstance in the
chain of circumstantial evidence which would point out the guilt of the
accused with some certainty. However, such evidence alone cannot
discharge the burden of establishing the guilt of accused beyond
reasonable doubt and requires corroboration.
crapl20.14-
19. On 19.10.2010 the brother of deceased Kiran viz. Kuldip had
lodged a missing report at Tophkhana police station, Ahmednagar. It
was registered in the missing register at Sr. No.123 of 2010. P.W.8
Somnath Shende was assigned with the missing inquiry. So far as
the missing report Exh.52, which is admitted by the defence, is
concerned, it has been mentioned in the report that on 9.10.2010
deceased Kiran left the house by disclosing that he was going out of
station and he did not return. It is also stated in the missing report
that it has been revealed during inquiry that appellant accused
Rohan took deceased Kiran with him. P.W.8 Somnath has deposed
that on 19.10.2010 he went to Hotel Mahendra at 9.00 a.m. in village
Narayangavan on Nagar-Pune Road. There is Shiv Shakti Lodging
near the Hotel. He had verified the register. He noticed the name of
the appellant accused Rohan written with his full name and the
mobile number in the said register in his own hand writing. It was
mentioned in the register that other two persons were alongwith the
appellant accused Rohan. P.W. 8 Somnath had collected the photo
copy of the said register. As per the address mentioned in the
register, he went to block no. 603, Navi Sangavi, which was locked.
He had also called appellant accused Rohan on his mobile, which
was received by his mother. She was at Sangamner. Even after
contacting the mother, she could not give any useful information.
However, she had promised him to bring her son to the concerned
police station. He had received phone call from the owner of hotel
crapl20.14-
Mahendra and his name was Mr. Wadekar. Said Wadekar has
informed him that the person with appellant accused Rohan was
known as Dada. Except this, nothing has come in his evidence.
P.W.8 - A.S.I. Somanth Shende has thereafter handed over the
inquiry paper of the said missing report to P.W. 16 - P.S.I. Deepak
Barde, who was investigating the crime registered at Shrigonda
police station. It is pertinent to note that neither P.W.8--Somnath
Shende nor P.W.16-P.S.I. Barde seized the original customer
register of Hotel Mahendra/Hotel Shivkrupa, during the course of
investigation of the crime.
20. P.W.16 A.P.I. Deepak Barde, who was working as P.S.I. at
Shrigonda police station at the relevant time was assigned with the
investigation of crime No. 350 of 2010 on 10.10.2010. He got the
papers including spot Panchnama, inquest Panchnama pertaining to
A.D. No. 129 of 2010. He had received the other documents
pertaining to missing report from Tophkhana police station.
According to him, it was transpired during inquiry of missing as to the
persons accompanying deceased Kiran. He has further stated that
as per the missing report, deceased was accompanied by appellant
accused Rohan and they had stayed at Hotel Mahendra at
Vadegavan. They were also accompanied by the appellant accused
Dada @ Mahendra.
21. We have considered the evidence of P.W.14 Dnyaneshwar
crapl20.14-
and P.W.7 Vishal together. It appears that from 4.00 p.m. on
7.10.2010 till the morning of 9.10.2010, appellant accused Rohan
stayed in the house of P.W.7 Vishal. According to P.W.7 Vishal, at
9.00 a.m. on 9.10.2010 the appellant accused Rohan went outside
and further contacted P.W.7 Vishal at about 2.00 p.m. Accordingly
P.W.7 Vishal and appellant accused Rohan met at Delhi gate at
about 5.00 to 5.30 p.m. It is the prosecution case that by keeping the
motorcycle as security with P.W.7 Vishal, the appellant accused
Rohan had obtained Rs.5000/- from him. As disclosed by appellant
accused Rohan, the documents of the said vehicle were in the name
of one Jagan Shridhar. P.W.7 Vishal has deposed that appellant
accused Rohan had kept the said CBZ motorcycle with him and he
did not come back to take it. He was unable to explain as to from
whom he had collected the said amount of Rs.5000/- and gave it to
the appellant accused Rohan. P.W.7 Vishal has admitted in his
cross-examination that he was using the said motorcycle even at the
time of his evidence before the court. However, the investigating
officer has neither seized the said motorcycle from him nor collected
the documents. Even the investigating officer has not recorded the
statement of the person viz. Jagan Shridhar, in whose name the said
motorcycle was allegedly registered. According to P.W.7 Vishal, the
appellant accused Rohan had introduced deceased Kiran to him.
P.W.14 Dnyaneshwar has deposed that on 9.10.2010 deceased
Kiran left his house from Yashodanagar alongwith appellant accused
Rohan. P.W.14 Dnyaneshwar has deposed that appellant accused
crapl20.14-
Rohan asked deceased Kiran to accompany him as he wanted to go
for enjoyment. P.W. 16- A.P.I. Deepak Barde (investigating officer),
in para 3 of his cross-examination has admitted that "it was
transpired that accused Rohan was not knowing deceased till the day
before incident". It is pertinent to note that if accused Rohan was not
knowing deceased Kiran till the day before the incident, still then,
insisted deceased Kiran to accompany him for enjoyment. We have
already made observations in the foregoing paras that we find no
evidence about motive for the appellants accused persons to commit
murder of deceased Kiran. If it was transpired during investigation
that appellant-accused Rohan was not knowing deceased Kiran till
the day before the incident, then there was no reason for the
appellant-accused Rohan to commit brutal murder of deceased
Kiran. We also find it very strange on the part of deceased Kiran to
accompany accused Rohan to whom he was not knowing. Even
assuming for the sake of discussion that P.W.7 and P.W.14 are
telling truth to some extent, however, we do not find definite tendency
in the circumstances, as explained by these two witnesses, to come
to the conclusion about the guilt of appellant-accused Rohan.
22. P.W.11 Sanjay Wadekar has deposed that on 9.10.2010
three persons including the appellant accused Dada @ Mahendra
came to the hotel. All of them consumed liquor and occupied room
No.101 which was made available to them. All three took halt in the
night. The appellant-accused Rohan had entered his name in the
crapl20.14-
register. We must again repeat here that original register of the said
hotel was neither seized by the police nor P.W. 11 - Sanjay Wadekar
has brought the said register before the Court. According to him, on
the next day at about 9.00 to 9.30 a.m., those persons had vacated
the room. At the time of leaving the hotel, they had drinks together
alongwith breakfast. After 3/4 days the appellant accused Rohan
alongwith one male person and two ladies came to the hotel and
collected his clothes and footwear which were remained in the hotel.
The deposition of P.W.12 Dinesh Shetty who happened to be the
manager of the Hotel is on the same lines. According to him, at that
time the appellant-accused Rohan had disclosed to him that during
their halt in the hotel they had fight and accordingly he had sustained
injury over his forehead. P.W.12 Dinesh Shetty was working as
Manager in the Hotel Mahendra and he has admitted in his cross-
examination that he has no concern with the work of taking entry of
the customers who stayed in the lodge or to make available the
rooms for them. It is also none of his business to find out as to
whether the customer stayed during the night and which room was
made available to them. Both the witnesses have admitted that there
are 16 rooms in the hotel and there used to be daily customers in the
hotel. The customers occupy 7 to 8 rooms daily. P.W.12 Dinesh
Shetty has deposed that he has noticed injury over the forehead of
appellant-accused Rohan. The trial court has believed the evidence
of P.W. 12 Dinesh Shetty as duly corroborated by P.W.5 Dr. Pradnya
Badge. We have carefully perused the evidence of P.W.5 Dr.
crapl20.14-
Pradnya Badge. On 11.10.2010 at about 2.00 to 2.30 p.m. the
appellant-accused Rohan had been to her hospital for medical
examination. She had noticed abrasion below his left eye and also
injury over chin. She had advised him X-Ray. On inquiry the
appellant-accused Rohan disclosed to her that he had sustained the
injury in an accident. She had not given any reference to the injury
over forehead as deposed by P.W.12 Dinesh Shetty. Furthermore,
we find no substance in the said extra judicial confession. Even
assuming for the sake of discussion that the appellant-accused
Rohan alongwith deceased Kiran had stayed in the said hotel
overnight and left that hotel in the morning at about 9.00 a.m. to 9.30
a.m., still then there is no further connecting evidence against the
appellants accused. The same is important for the reason that the
prosecution has failed to bring on record the evidence about motive.
We are unable to pursue ourselves that the appellant-accused
Rohan took deceased Kiran from his house under the pretext of
enjoyment, stayed with him in one hotel, enjoyed drinks and food
together and on the next day, at about 3.00 to 3.30 p.m. (when the
dead body of deceased Kiran was found far away from the said
Hotel) committed brutal murder of deceased Kiran for no reason.
23. In terms of the contents of memorandum panchnama and
recovery panchnama Exh.44 and 45 respectively, the recovery of
clothes of appellant-accused Rohan shown to have been made at his
instance. There were no blood stains on jean pant, however, there
crapl20.14-
were blood stains on the shirt. As per the C.A. report Exh.85, human
blood was detected on the full white shirt of deceased Kiran (article
13). So far as appellant accused Dada @ Mahendra Jagtap is
concerned, in terms of the memorandum panchnama and recovery
panchnama Exh.48 and 49 respectively, certain articles shown to
have been seized at his instance. There were blood stains on his
white colour shirt. As per C. A. report Exh.85, human blood was
detected on it. One motorcycle of Bajaj CT 100 make with chassis
and engine number, as detailed in the panchnama, came to be
seized at his instance. It is informed to us that said motorcycle
belongs to deceased Kiran. We will discuss this evidence at the later
part of the judgment in the light of the application submitted by the
prosecution seeking permission to adduce evidence about said
motorcycle. So far as the recovery of these articles, that too very
belatedly on 5.11.2010 and 20.10.2020 respectively, we are not
inclined to consider this as connecting evidence against the
appellants accused.
24. In the case of Navaneethakrishnan vs. The State by
Inspector of Police, reported in (2018) 16 SCC 161 in para 18 and
22 of the judgment, the Supreme Court has made the following
observations:-
"18. In the present case, there is no witness of the
occurrence and it is only based on circumstantial evidence.
crapl20.14-
Before moving further, it would be apposite to refer the law
regarding reliability of circumstantial evidence to acquit or
convict an accused. The law regarding circumstantial
evidence was aptly dealt with by this Court in Padala Veera
Reddy vs. State of Andhra Pradesh and others 1989 Supp.
(2) SCC 706 wherein this Court has observed as under:-
"10. .... (1) The circumstances from which an inference
of guilt is sought to be drawn, must be cogently and
firmly established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively, should form
a chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of guilt of
the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence."
22. PW-11 was able to identify all the three accused in
the Court itself by recapitulating his memory as those
persons who came at the time when he was washing his car
along with John Bosco and further that he had last seen all of
them sitting in the Omni van on that day and his testimony to
that effect remains intact even during the cross examination
in the light of the fact that the said witness has no enmity
whatsoever against the appellants herein and he is an
crapl20.14-
independent witness. Once the testimony of PW-11 is
established and inspires full confidence, it is well established
that it is the accused who were last seen with the deceased
specially in the circumstances when there is nothing on
record to show that they parted from the accused and since
then no activity of the deceased can be traced and their dead
bodies were recovered later on. It is a settled legal position
that the law presumes that it is the person, who was last seen
with the deceased, would have killed the deceased and the
burden to rebut the same lies on the accused to prove that
they had departed. Undoubtedly, the last seen theory is an
important event in the chain of circumstances that would
completely establish and/or could point to the guilt of the
accused with some certainty. However, this evidence alone
can't discharge the burden of establishing the guilt of
accused beyond reasonable doubt and requires
corroboration."
25. In the case of Prabhoo vs. State of Uttar Pradesh, reported
in 1963 AIR (SC) 1113; relied upon by Mr. Gaware, learned counsel
for the appellant in criminal appeal No. 20 of 20214, the Supreme
Court in para 10 has made the following observations;-
"10. Therefore, the question before us is this. Is the
production of the blood stained axe and clothes read in the
light of the evidence regarding motive sufficient to lead to the
conclusion that the appellant must be the murderer? It is well-
settled that circumstantial evidence must be such as to lead to
a conclusion which on any reasonable hypothesis is consistent
only with the guilt of the accused person and not with his
innocence. The motive alleged in this case would operate not
only on the appellant but on his father as well. From the mere
production of the blood stained articles by the appellant one
crapl20.14-
cannot come to the conclusion that the appellant committed
the murder. Even if somebody else had committed the murder
and the blood stained articles had been kept in the house, the
appellant might produce the blood stained articles when
interrogated by the Sub-Inspector of Police. It cannot be said
that the fact of production is consistent only with the guilt of
the appellant and inconsistent with his innocence. We are of
the opinion that the chain of circumstantial evidence is not
complete in this case and the prosecution has unfortunately
left missing links, probably because the prosecution adopted
the short out of ascribing certain statements to the appellant
which were clearly inadmissible."
26. In the instant case, C.A. report Exh.85 was not put to the
appellants accused during their statement recorded under Section
313 of Cr.P.C.
27. In the case of Kiran Ashok Jadhav vs. State of
Maharashtra, reported in 2014 (3) Bom.C.R. (Cri.) 33; relied upon
by Mr. Gaware, learned counsel for the appellant in criminal appeal
No. 20 of 20214, the Division Bench of this court by referring the
observations of the Supreme Court in the case of SujitBiswas v.
State of Assam (AIR 2013 SC 3817), in para 21 and 22 of the
judgment has made the following observations;-
"21. Learned counsel appearing for the Appellant has urged
before us that the Chemical Analyzer's report which has been
relied upon by the prosecution was not put in the form of
question to the Appellant while recording his statement under
Section 313 of the Criminal Procedure Code which has
crapl20.14-
caused great prejudice thereby affecting his right of being
heard in the matter i.e. to say the requirement of following the
principles of natural justice having been violated by the
learned Trial Court. Learned counsel appearing for the
Appellant relied upon the judgment of the Hon'ble Supreme
Court in the case of (SujitBiswas v. State of Assam, AIR 2013
SC 3817). The Hon'ble Supreme Court in paragraph 12 of the
said judgment has observed thus:
"12. It is a settled legal proposition that in a criminal
trial, the purpose of examining the accused person
under Section 313, Cr. P.C., is to meet the
requirement of the principles of natural justice, i.e.
audi alteram partem. This means that the accused
may be asked to furnish some explanation as regards
the incriminating circumstances associated with him,
and the court must take note of such explanation. In a
case of circumstantial evidence, the same is essential
to decide whether or not the chain of circumstances is
complete. No matter how weak the evidence of the
prosecution may be, it is the duty of the court to
examine the accused, and to seek his explanation as
regards the incriminating material that has surfaced
against him. The circumstances which are not put to
the accused in his examination under Section 313, Cr.
P.C., cannot be used against him and must be
excluded from consideration. The said statement
cannot be treated as evidence within the meaning of
Section 3 of the Evidence Act, as the accused cannot
be cross-examined with reference to such statement."
22. It is thus clear that the object of examination of the
accused under Section 313 is to give an opportunity to him to
explain the incriminating circumstances put forth by the
prosecution against him. Section 313 also meets the
crapl20.14-
requirements of principles of natural justice. In the present
case the prosecution has relied upon the Chemical Analyzer's
report as an incriminating circumstance against the Appellant
because bloodstains of Blood Group 'A' were found on the
chopper, so also on the clothes of the accused. It was the duty
of the Trial Court to examine the Appellant and to seek his
explanation as regards the said incriminating material that has
surfaced against him. As has been held by the Hon'ble
Supreme Court in the case of SujitBiswas (supra), the
circumstances which are not put to the Appellant in his
examination under Section 313 of the Criminal Procedure
Code, cannot be used against him and must be excluded from
consideration."
28. In the case of Raju Brijmohan Maurya vs. State of
Maharashtra, reported in 2008 All M.R. (Cri.) 2632; relied upon by
Mr. Gaware, learned counsel for the appellant in criminal appeal No.
20 of 20214, the Division Bench of this court in para 10 of the
judgment has made the following observations;-
"10. As a matter of principle a mere recovery alone would
not be sufficient to convict the accused on a substantive
charge of murder under Section 302 of the Penal Code in the
absence of substantive evidence. This principle would emerge
from the judgment of the Supreme Court in (Baboo v. The
State of Madhya Pradesh, AIR 1979 SC 1042). In a case
which is based on circumstantial evidence, the Court would
also have to be mindful of the fundamental principle of law that
it is for the prosecution to establish all the links in the case
which connect the accused to the offence beyond reasonable
doubt. Moreover, in a case founded on circumstantial
evidence, all the circumstances must be consistent only with
crapl20.14-
the guilt of the accused".
29. In the case of Surendra vs. State of Rajasthan, reported in
AIR 2012 SC (Supp) 78; relied upon by Mr. Shaikh, learned counsel
for the appellant in criminal appeal No. 51 of 20214, the Supreme
Court in para 4 has made the following observations;-
"4. We now come to the recoveries of the alleged murder
weapons. The appellants were arrested on the 11 th January,
2001 and the recoveries were made 2/3 days thereafter but the
article were sent to the laboratory on the 19 th of March, 2001.
Even otherwise, we are of the opinion that as the evidence of
last seen itself is unacceptable the recoveries by themselves
would not make any difference. Moreover even if a false plea
had been taken by the accused that by itself will not be enough
to maintain their conviction and as the prosecution story itself
suffers from glaring infirmities, the infirmities in the prosecution
case cannot be filled up by a false plea of alibi. We are
conscious of the fact that this is a case of double murder but in
the absence of any cogent evidence, we are unable to sustain
the conviction, We, accordingly, allow both the appeals and set
aside the orders of the trial court as well as the High Court and
direct the acquittal of the appellants."
30. In the case of Anjan Kumar Sarma and Ors. vs. State of
Assam, reported in AIR 2017 SC 2617; relied upon by Mr. Shaikh,
learned counsel for the appellant in criminal appeal No. 51 of 20214,
the Supreme Court in para 21 has made the following observations;-
"21. It is clear from the above that in a case where the other
crapl20.14-
links have been satisfactorily made out and the circumstances
point to the guilt of the accused, the circumstance of last seen
together and absence of explanation would provide an
additional link which completes the chain. In the absence of
proof of other circumstances, the only circumstance of last seen
together and absence of satisfactory explanation cannot be
made the basis of conviction. The other judgments on this point
that are cited by Mr. Venkataramani do not take a different view
and, thus, need not be adverted to. He also relied upon the
judgment of this Court in State of Goa v. Sanjay Thakran,
(2007) 3 SCC 755 in support of his submission that the
circumstance of last seen together would be a relevant
circumstance in a case where there was no possibility of any
other persons meeting or approaching the deceased at the
place of incident or before the commission of crime in the
intervening period. It was held in the above judgment as under:-
"34. From the principle laid down by this Court, the
circumstance of last seen together would normally
be taken into consideration for finding the accused
guilty of the offence charged with when it is
established by the prosecution that the time gap
between the point of time when the accused and the
deceased were found together alive and when the
deceased was found dead is so small that possibility
of any other person being with the deceased could
completely be ruled out. The time gap between the
accused persons seen in the company of the
deceased and the detection of the crime would be a
material consideration for appreciation of the
evidence and placing reliance on it as a
circumstance against the accused. But, in all cases,
it cannot be said that the evidence of last seen
together is to be rejected merely because the time
gap between the accused persons and the
crapl20.14-
deceased last seen together and the crime coming
to light is after (sic of) a considerable long duration.
There can be no fixed or straitjacket formula for the
duration of time gap in this regard and it would
depend upon the evidence led by the prosecution to
remove the possibility of any other person meeting
the deceased in the intervening period, that is to
say, if the prosecution is able to lead such an
evidence that likelihood of any person other than the
accused, being the author of the crime, becomes
impossible, then the evidence of circumstance of
last seen together, although there is long duration of
time, can be considered as one of the
circumstances in the chain of circumstances to
prove the guilt against such accused persons.
Hence, if the prosecution proves that in the light of
the facts and circumstances of the case, there was
no possibility of any other person meeting or
approaching the deceased at the place of incident or
before the commission of the crime, in the
intervening period, the proof of last seen together
would be relevant evidence. For instance, if it can
be demonstrated by showing that the accused
persons were in exclusive possession of the place
where the incident occurred or where they were last
seen together with the deceased, and there was no
possibility of any intrusion to that place by any third
party, then a relatively wider time gap would not
affect the prosecution case."
As we have held that the other circumstances relied
upon by the prosecution are not proved and that the
circumstances of last seen together along with the absence of
satisfactory explanation are not sufficient for convicting the
accused. Therefore the findings recorded in the above judgment
crapl20.14-
are not applicable to the facts of this case."
31. In the instant case, we have carefully perused the contents of
spot Panchnama Exh.33. It appears that alongwith other articles,
one glass, one broken chillum meant for inhaling the Ganja and a
Ganja packet came to be seized from the spot. The prosecution has
failed to explain about the said articles. It is not the case of the
prosecution that accused persons and deceased were addicted to
Ganja also. It is well settled that the circumstance of last seen
together may be relevant circumstance in a case where there was no
possibility of any other person meeting or approaching the deceased
at the place of incident or before commission of crime in the
intervening period. It appears from the recovery of those articles as
referred above from the spot and recorded in the contents of spot
panchnama Exh.33 that the possibility of involvement of any other
person meeting or approaching the deceased at the place of incident
or before commission of the crime could not be ruled out.
32. We are of the considered opinion that the prosecution has
failed to fully establish the circumstance from which the conclusion of
guilt of the accused is to be drawn. We do not find the circumstance
having conclusive nature and tendency. There is no chain of
evidence so complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused. Even
accepting the prosecution case as it is, we do not think that in all
crapl20.14-
human probabilities, the act must have been done by the accused.
The Supreme Court in the case of Anjan Kumar Sarma and Ors.
vs. State of Assam (supra) has observed that in absence of proof of
other circumstances, the only circumstance of last seen together and
absence of satisfactory explanation cannot be made basis of
conviction.
33. In the instant case, though the recovery of pair of shoes at the
instance of appellant accused Dada @ Mahendra Jagtap is shown in
panchnama Exh. 49, there is no further identification of the said pair
of shoes as belonging to deceased. The prosecution has not
examined any witness to link the said recovery of shoes with the
commission of crime. Similarly, so far as the seizure of motorcycle at
the instance of appellant accused Dada @ Mahendra is concerned, it
is submitted that the said motorcycle belongs to brother of deceased
Kuldip.
34. The prosecution has filed criminal application No. 573 of 2020
seeking permission to adduce further evidence by examining two
witnesses i.e. Dipak Patil, Deputy Regional Transport Officer for
proving the letter dated 13.1.2020 and another Mr. Kuldip Sudam
Bhingardive. It appears from the annexures of the said application
that without there being any permission from the court and even
without submitting any supplementary charge sheet, one letter issued
by Regional Transport Officer, Ahmednagar is placed on record
crapl20.14-
which is dated 13.1.2020. The said motorcycle bearing registration
No. MH-16-Y-1431 seized at the instance of the appellant accused
Dada @ Mahendra belongs to one Dhiraj Sudam Bhingardive, who
happened to be brother of deceased Kiran. According to learned
A.P.P. crime was registered at Shrigonda police station and brother
of deceased Kiran viz. Kuldip had lodged missing report at
Tophkhana police station. It appears from the prosecution evidence
that P.W.8 A.S.I. Somnath Shende was assigned with the inquiry of
missing report. The said missing report is marked at Exh.52 which is
admitted by the defence. Learned A.P.P. submitted that it is
mentioned in the report submitted alongwith the record and
proceeding that deceased Kiran left the house on his motorcycle
alongwith the appellant-accused Rohan and the said motorcycle was
seized from appellant-accused Dada @ Mahendra. It is well settled
that additional evidence may be necessary because there would be
failure of justice without it. Even if the prosecution is permitted to
adduce the additional evidence to the extent as prayed for in the said
criminal application, however, there is no further connecting evidence
in the entire prosecution story that deceased Kiran had been to the
said Hotel alongwith the appellants accused persons on the same
motorcycle. The prosecution story however, runs contrary to it. It has
come in the prosecution case that the appellant accused Rohan has
kept the motorcycle with P.W.7 Vishal Darade as a security for the
hand loan of Rs.5000/- and thereafter the appellant accused Rohan
and deceased Kiran left that place on foot. There is no reference at
crapl20.14-
all that said motorcycle allegedly seized at the instance of the
appellant accused Dada @ Mahendra was used in the commission of
crime, in any manner.
35. We find no reason to allow the criminal application No. 573 of
2020 filed seeking permission to adduce additional evidence by the
prosecution, as no useful purpose would be served by allowing the
same. Thus, we are not inclined to allow the said application.
36. In view of the above discussion and the ratio laid down by the
Supreme Court and this Court in various cases, as referred above,
we are of the firm opinion that the prosecution has failed to establish
the case beyond reasonable doubt against the appellants accused.
According to us, at the most, strong suspicion is created against the
appellants-accused suggesting their involvement in the crime. The
said suspicion, however strong it may be, cannot take the form of
legal proof. Both the appellants accused are thus entitled for the
benefit of doubt. In view of above, we proceed to pass the following
order:-
ORDER
I. Criminal appeal No. 20 of 2014 (Dada @ Mahendra s/o
Shivaji Jagtap vs. State of Maharashtra) and criminal
appeal No. 51 of 2014 (Rohan @ Sunny Uday Hazare
crapl20.14-
vs. State of Maharashtra) are hereby allowed.
II. The impugned the judgment and order of conviction
passed by the Additional Sessions Judge, Ahmednagar
dated 31.7.2013 in Sessions Case No. 41 of 2011
convicting thereby both the appellants i.e. Dada @
Mahendra s/o Shivaji Jagtap and Rohan @ Sunny
Uday Hazare for the offence punishable under Section
302 r.w. 34 of I.P.C. and sentencing them to suffer life
imprisonment and to pay fine of Rs.1000/- each i/d of
payment of fine to suffer R.I. for six months each, is
hereby quashed and set aside.
III. The appellants accused Dada @ Mahendra s/o Shivaji
Jagtap and Rohan @ Sunny Uday Hazare are hereby
acquitted of all the charges. The appellants accused
shall be set at free forthwith if not required in
connection with any other case.
IV. The fine amount, if deposited, shall be refunded to
them.
V. The appellants-accused Dada @ Mahendra s/o Shivaji
Jagtap and Rohan @ Sunny Uday Hazare shall
execute P.B. of Rs.15,000/- each with one surety
each of the like amount to appear before the higher
court as and when the notice is issued in respect of
any appeal or petition filed against the judgment of
this Court. Such bail bonds shall remain in force for a
period of six months from the date of its execution.
VI. Criminal Appeal No. 20 of 2014 and criminal appeal
crapl20.14-
No. 51 of 2014 are accordingly disposed of.
VII. Criminal application No. 573 of 2020 is hereby rejected.
35. Since Mr. N.R. Shaikh, learned counsel is appointed to
prosecute the cause of the appellant in criminal appeal No. 51 of
2014, we quantify his legal fees and expenses at Rs.5000/- (Rupees
Five thousand only) to be paid by the High Court Legal Services,
Sub-Committee, Aurangabad.
(S. G. DIGE, J.) (V. K. JADHAV, J.)
rlj/
