Datta Keshav Karale C.No.7752 vs The State Of Maharashtra
2021 Latest Caselaw 15816 Bom

                                                    954-CriAppeal-460-2014
                                     -1-

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO. 460 OF 2014

 Datta s/o Keshavrao Karhale,
 Age : 42 years, Occu.: Agricultural Labour,
 R/o : Girgaon, Tq. Basmath,
 District Hingoli.                         ... Appellant
                                           (Original Accused)

                  Versus

 1.       The State of Maharashtra,
          Through Police Station, Basmath,
          Tq. Basmath, District Hingoli.

 2.       Dashrath s/o Baliram Tipre (deceased)

 2-A. Gayabai w/o Dashrath Tipre,
      Age : 69 years, Occu.: Household,
      R/o Ambedkarnagar, Basmath,
      District Hingoli.

 2-B. Madhav s/o Ambadas Gaikwad,
      Age : 21, Occu.: Labour,
      R/o Donwada, Tq. Basmath,
      District Hingoli.                               ...      Respondents
                               .....

 Mr. Avishkar Shelke, Advocate for the Appellant (appointed).
 Mr. R. D. Sanap, APP for Respondent No.1-State.
 Mr. Govind A. Kulkarni, Advocate for Respondent Nos. 2-A and
 2-B (appointed).
                                .....

                               CORAM : V. K. JADHAV AND
                                       SANDIPKUMAR. C. MORE, JJ.

DATED : 16th NOVEMBER, 2021

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

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

conviction dated 24.01.2014 passed by the Additional Sessions

Judge, Basmath in Spl. C. (Atrocities) No. 5/2012.

2. Brief facts, giving rise to the prosecution story are as under:

a. Deceased Rekha was residing at Gautamnagar, Kawatha

Road, Basmath. She was married to Ambadas Gaikwad and gave

birth to three children out of their wedlock. Subsequently, their

relations became strained and Rekha started residing separately

along with her two children at Basmath. The appellant-accused no.

1 and the acquitted accused no.2 are also residents of Basmath. As

per the prosecution story, appellant-accused no.1 and the acquitted

accused no.2 had called Rekha to satisfy their sexual urge and they

have committed sexual intercourse with her by consent. Though

appellant-accused no.1 and the acquitted accused no.2 were ready

to pay Rs.200/- to Rekha, she demanded Rs.500/-. Thus, both the

accused persons got annoyed because of the said excessive demand

and committed her murder.

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b. On 22.09.2011 at about 7.30 a.m., one Apparao Kadam, who

is the servant of PW 2 Vithal Magar, had informed him on phone

that in their land gat no. 316, a dead body of one unknown lady

was lying. There were injuries on her person. Thus, PW 2 Vithal

along with said servant Apparao went to the land gat no. 316 and

seen the dead body of one unknown lady lying in the cotton crop.

Thereafter, PW 2 Vithal had given the said information to PW 1

Prakash Jadhav, who happened to be the Police Patil of village

Borala. There were marks of violence on the dead body. PW 1

Prakash Jadhav has lodged report at Police Station Basmath Exhibit

32. On its basis, Crime No. 214 of 2011 came to be registered at

Basmath Police Station for the offence punishable under Sections

302 and 201 of IPC.

c. On 22.09.2011, PW 14 P.I. Sarjerao Patil took over the

investigation of crime no. 214 of 2011. PW 14 P.I. Sarjerao Patil

has visited the spot where the dead body was lying. He has drawn

inquest panchanama of the dead body at the spot of incident. He

has also noticed compression marks on the neck. There was a green

colour sari, petti coat and a blouse on the person of the dead body

along with a scarf. There was also a pair of foot rings, ear tops and

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one bangle. PW P.I. Sarjerao Patil has seized those articles at the

time of drawing of inquest panchanama Exhibit 59. He has

thereafter sent the dead body for postmortem examination. He has

drawn panchanama of the place of incident in presence of the

pancha witnesses. He has collected the soil mixed with blood and

the soil without blood from the place of incident. One chapple

(footwear) was found and that was seized. The said place was in

the land gat no. 316. The spot panchanama is marked at Exhibit

56.

d. He has snapped the photographs of the dead body with the

help of a photographer for identification purpose and those

photographs were given for publicity on internet and he has also

circulated those photographs to the local Police Station.

e. On 26.11.2011, one Gayabai, PW Dashrath, Devidas and

Balaji went to the Basmath Police Station and informed that since

21.09.2011, sister of Devidas and Balaji, namely, Rekha Ambadas

Gaikwad is missing from the house. PW P.I. Sarjerao Patil has

shown them the photographs, cloths and ornaments and also

shown the dead body. They have identified the dead body. They

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also told that one gold mangalsutra was on the person of Rekha

and also one silver painjan (anklets) and a nose ring were on the

person of Rekha. However, those ornaments were not found on her

dead body. PW P.I. Sarjerao Patil has recorded their statements and

also recorded the statement of the husband, son and mother-in-law

of deceased Rekha.

f. Further, during the course of investigation, it was transpired

that one mobile was with deceased Rekha. She was working with

one Gulam Mohammad for two hours in the morning and two

hours in the evening. Said Gulam Mohammad used to contact

deceased Rekha on her mobile and he informed the police about

the mobile number of Rekha. PW P.I. Sarjerao Patil thus collected

the call detail record (CDR) of the said mobile number. It was

revealed that the last call on the said mobile was received from the

mobile belonging to the appellant-accused no.1.

g. On 27.09.2011, while drawing arrest panchanama, one

mangalsutra of nine gold beads, two anklets, one nose ring and two

mobile handsets were found with the appellant-accused no.1. One

mobile handset was of Samsung company and another was of

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Rocker company. PW P.I. Sarjerao Patil has also seized one election

I.D. card of accused no.1 and one pocket diary containing Rs.450/-.

The said arrest panchanama is marked at Exhibit 68.

h. It was revealed during investigation that the accused persons

are from Maratha caste and the deceased was from Scheduled

Caste. Thus, PW P.I. Sarjerao Patil added the offence under the

provisions of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (for short, "Atrocities Act") and

the further investigation was thus handed over to PW 11 Dy. S.P.

Shri Manik Shivram Perke.

i. PW 11 Dy.S.P. Perke has recorded the statements of

witnesses including PW 12 Suresh Khandekar. During the course of

investigation, on 01.10.2021, appellant-accused no.1 while in the

police custody, has made a disclosure statement that he is ready to

show the place of incident. Accordingly, memorandum

panchanama was prepared to that effect which is marked at Exhibit

46. The appellant-accused no.1 has accordingly shown the place of

incident and PW 11 Dy.S.P. Perke has drawn the panchanama

Exhibit 47. During the course of drawing the said panchanama,

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appellant-accused no.1 has again made a statement that he is ready

to show the place where he has concealed the wooden rod and the

cloths which were on his person at the time of incident.

Accordingly memorandum panchanama Exhibit 49 was prepared

and thereafter, the appellant-accused led the panchas and the

police party to the place where he has concealed the clothes and

the said weapon. One black colour pant, one white shirt, one

underpant and one wooden rod came to be seized and sealed

under panchanama Exhibit 50. Similarly, accused no.2 has also

made a statement and in terms of his statement, his clothes also

came to be seized by drawing panchanama Exhibit 51 and recovery

panchanama Exhibit 52.

j. PW 11 Dy.S.P. Perke has collected blood samples of the

mother and father of Rekha for identification and he has sent all

the articles for DNA test, along with some parts of bones of the

dead body preserved for DNA test, to the lab at Kalina, Mumbai

along with P. C. Rathod (B.No. 194) with a covering letter Exhibit

63. He has also collected the caste certificate of Rekha. After

completion of investigation, charge-sheet came to be submitted.

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k. On 06.06.2012, learned Additional Sessions Judge, Basmath

has framed charge against both the accused persons vide Exhibit 18

for the offence punishable under Sections 3(1)(x), 3(1)(xi) of the

Atrocities Act, Section 302 r/w 34 of IPC, Section 201 r/w 34 of

IPC and Section 404 r/w 34 of IPC. The contents of the charge

were read over and explained to both the accused persons for

which they pleaded not guilty and claimed to be tried. The

prosecution has examined in all 15 witnesses to substantiate the

charge leveled against the accused persons. After completion of the

prosecution evidence, statements of both the accused came to be

recorded under Section 313 of Cr.P.C. The defence of both the

accused is of total denial.

l. Learned Additional Sessions Judge, Basmath, by judgment

and order dated 24.01.2014 in Spl.C. (Atrocities) No. 5/2012, has

acquitted accused no.2 Sopan Anna Ingole, however, convicted the

present appellant accused no.1 for the offence punishable under

Section 302 of IPC and sentenced him to suffer imprisonment for

life and to pay fine of Rs.500/-, in default to suffer R.I. for one

month. The learned Additional Sessions Judge, Basmath has

further convicted appellant accused no.1 for the offence punishable

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under Section 404 of IPC and sentenced him to suffer R.I. for one

year and fine of Rs.500/- in default to suffer R.I. for one month.

The trial court has however acquitted the appellant-accused no.1

for the offence punishable under Section 201 of IPC and also for

the offence punishable under Sections 3(1)(x) and 3(1)(xi) of the

Atrocities Act. Operative part of the order dated 24.01.2014 passed

by the learned Additional Sessions Judge, Basmath is reproduced

herein below:

"1. Accused no.2 Sopan Anna Ingole is hereby acquitted under Section 235(1) of Cr.P.C. of the offences punishable under Section 302, 201, 404 of the Indian Penal Code and also for the offence punishable under Section 3(1)(x) and 3(1)(xi) of S.C. and S.T (Prevention of Atrocities) Act.

2. Bail bonds of accused no.2 Sopan Anna Ingole shall stand cancelled.

3. Accused no.1 Datta Keshav Karhale is acquitted under Section 235(1) of Cr.P.C. of the offence punishable under Section 201 of the Indian Penal Code and also acquitted of the offence punishable under Section 3(1)(x) and 3(1)(xi) of SC and ST (Prevention of Atrocities) Act.

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4. Accused no.1 Datta Keshav Karhale is hereby convicted under Section 235 (2) of Cr.P.C. for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.500/- (Rs. Five hundred) in default to suffer R.I. for one month.

5. In case of commutation of imprisonment for life to a lessor punishment by Govt. the accused will be entitled to the set off under Sec. 428 of Cr.P.C. for the period for which he is in jail in this case.

6. Accused no.1 Datta Keshav Karhale is convicted for the offence punishable under Section 404 of IPC and sentenced to suffer R.I. for one year and fine of Rs.500/- in default to suffer R.I. for one month.

7. Muddemal article nos. 1 to 7, 10, 17, 19, 21 and 22 to 28 are being worthless hence they be destroyed after appeal period is over.

shall be given to the father of deceased Rekha Ambadas Gaikwad i.e. p.w. no.4 Dashrath Baliram Tipre on proper identification.

9. Muddemal article no. 13 mobile of rocker company was used in commission of Crime. It shall

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be sell in public auction after the appeal period is over and the sale proceeds shall be credited to Govt.

10. Muddemal article nos. 15 - election card of accused no.1, Muddemal article no. 17 - pocket diary are marked at Exh. 93 and 94 respectively. Article No. 17 will be destroyed as per rules of destroying 'C' file. Article no. 15 shall be returned to accused no.1 after taking zerox copy.

11. Article no. 16 i.e. an amount of Rs.540/- (Rs. Five hundred and forty) were seized from accused no.1 so that amount shall be returned to accused no.1 after appeal period is over."

3. Learned counsel for the appellant-accused submits that the

prosecution case entirely rests upon circumstantial evidence and

there is no direct evidence in this case. Learned counsel submits

that the prosecution has altogether brought a new concept of "last

call theory". The prosecution case almost entirely rests upon the

said last call theory. On 22.09.2011, the dead body of one

unknown lady was found in land gat no. 316. There is no proper

identification of the dead body. PW 4 Dashrath could not identify

the dead body and he has merely identified the clothes. Learned

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counsel submits that even keeping the said thing in mind, PW 11

Dy.S.P. Perke has also collected blood samples of the parents of

deceased Rekha for DNA test purposes and the same, along with

the samples of bone and other parts of the dead body of Rekha,

were forwarded to the lab at Kalina, Mumbai. However, the

prosecution has neither produced the said DNA report nor

examined any witness on the said point. Apart from that, even

though the dead body was found on 22.09.2011 in the morning, on

the basis of the 'last call theory', appellant-accused no. 1 came to be

arrested in connection with the crime merely on suspicion. The

appellant-accused allegedly made a phone call to deceased Rekha

on her mobile at about 7.00 p.m. on 21.09.2011. Learned counsel

submits that the said phone call indicates that the appellant-

accused no.1 and deceased Rekha were not together and they had

merely contacted each other on phone.

4. Learned counsel has pointed out from the call detail record

that there were some other calls received by deceased Rekha before

the said call allegedly made by appellant-accused no.1. One of such

calls is at about 6.30 p.m. and onwards which is of maximum

duration. However, there is no investigation carried out by the

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Investigating Officer in connection with the said call. It is not clear

as to who has made the said call to deceased Rekha.

5. Learned counsel submits that certain incriminating articles

shown to have been recovered from the possession of appellant-

accused no.1 at the time of drawing of his arrest panchanama in

the police station. Learned counsel submits that if the incident has

taken place on 21.09.2011, it is unlikely on the part of the

appellant-accused to keep the muddemal and certain articles

belonging to deceased Rekha in his pocket till 27.09.2011.

6. Learned counsel submits that the cause of death as opined by

PW 3 Dr. Ashok Mundhe is 'asphyxial death due to throttling'. PW

3 Dr. Ashok Mundhe has explained that there is no evidence of

injury to scalp or skull. Even the weapon wooden log allegedly

recovered at the instance of appellant-accused no.1 was not shown

to PW 3 Dr. Ashok Mundhe to obtain his opinion as to whether

certain injuries as noted and mentioned by him in column no. 17 of

the postmortem report are possible by the use of said weapon

wooden log. On the other hand, so far as the cause of death i.e.

'asphyxial death due to throttling' is concerned, the weapon like

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wooden log has hardly any role to play. Learned counsel submits

that even though the prosecution has come with the evidence

through the C.A. report marked at Exhibit 110 indicating that the

muddemal article wooden log and the full shirt on the person of

appellant-accused no.1 were having blood stains and the blood

detected on it is human, however, this incriminating circumstance

was not put to appellant-accused no.1 in his examination under

Section 313 of Cr.P.C. and as such, no opportunity was given to

him to explain the said incriminating circumstance.

7. Learned counsel for the appellant-accused submits that the

prosecution has come with a unique case of 'last call theory' and on

the basis of the said last call theory, the trial court has observed

that it is incumbent upon the appellant-accused no.1 to explain the

said circumstance in terms of the provisions of Section 106 of the

Indian Evidence Act. Learned counsel submits that the prosecution

has failed to prove the case by establishing a chain of

circumstantial evidence and the circumstances brought on record

have no conclusive tendency to point out unerringly the guilt of the

accused. Thus, the accused cannot be convicted merely on the basis

of his non-explanation for such a scanty incriminating evidence in

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the form of last call theory.

8. Learned counsel submits that when the prosecution case rests

upon circumstantial evidence, motive plays a great role. In the

instant case, there is no evidence about motive. Learned counsel

submits that PW 14 P.I. Sarjerao Patil has deposed before the court

that since the deceased made a demand of excess amount to the

accused for having sexual intercourse with her, appellant-accused

and the co-accused have committed her murder. Learned counsel

submits that PW 14 P.I. Sarjerao Patil has no personal knowledge

about it and the prosecution has not examined any witness to

substantiate the said theory. Consequently, there is no evidence

about motive. Learned counsel submits that on the same set of

evidence, the trial court has acquitted accused no.2, however,

convicted appellant-accused no.1 only on the basis of last call

theory. Learned counsel submits that the appellant-accused thus

deserves to be acquitted.

9. Learned counsel for the appellant-accused, in order to

substantiate his submissions, placed reliance on the following

cases:

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1. Shambhu Nath Mehra v. The State of Ajmer [AIR 1956 SC 404].

2. Digamber Vaishnav & another v. State of Chhattisgarh [2019 All SCR (Cri) 1009].

3. Ratan Lal v. State of Rajasthan [2018 ALL SCR (Cri) 472].

4. Sahadevan and another v. State of T.N. [2012 Cri.L.J. 3014].

5. Sk. Yusuf v. State of West Bengal [(2011) 11 SCC 754].

6. State of U.P. v. Shyam Behari and another [2009 AIR SCW 5258].

7. State of Karnataka v. M. V. Mahesh [(2003) 3 SCC 353].

10. Learned counsel for respondent nos. 2-A and 2-B submits

that the prosecution has proved its case beyond reasonable doubt

on the basis of the chain of circumstantial evidence. Though there

is satisfactory evidence about the fact that the last phone call

received on the mobile number of deceased Rekha was made by

appellant-accused no.1, he has not explained the same. Learned

counsel submits that the prosecution has examined the service

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providers of two companies i.e. Idea Cellular Ltd. and Vodafone.

The prosecution has proved that deceased Rekha was having

mobile handset of Samsung company with the particular sim on

which appellant-accused no.1 has made a phone call on

21.09.2011 at about 7.00 p.m. There is satisfactory evidence about

the motive. Furthermore, at the time of drawing of the arrest

panchanama, certain incriminating articles came to be seized from

the appellant-accused which include the ornaments of the deceased

along with her mobile handset. The appellant-accused has failed to

explain the circumstance under which he has got possession of the

mobile handset of deceased Rekha. The burden is on the appellant-

accused to explain the same in terms of the provisions of Section

114 (a) of the Indian Evidence Act. Furthermore, at the instance of

the appellant-accused, the spot, where murder has been

committed, was found. Learned counsel submits that the trial court

has rightly convicted the appellant-accused. There is no substance

in this appeal and the same is liable to be dismissed.

11. Learned counsel for respondent nos. 2-A and 2-B, in order to

substantiate his contention, placed reliance on the case of

Mohinder Sharma v. State [2013 SCC Online Del 740 : (2013) 2

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DLT (Cri) 193].

12. Learned APP for the respondent-State submits that the

prosecution has established the chain of circumstantial evidence.

There is evidence about motive. There is evidence that the

appellant-accused has made the last call to deceased Rekha and

thereafter the dead body of Rekha was found lying in the

agricultural land gat no. 316. Learned APP submits that at the

instance of the appellant-accused, the incriminating articles such as

the wooden log used in commission of the crime and his blood

stained clothes came to be seized from the hidden place. Learned

APP submits that the C.A. report Exhibit 110 indicates that human

blood was found on the weapon wooden log so also on the shirt of

the appellant-accused. Learned APP submits that certain

incriminating articles including the mobile handset of deceased

Rekha came to be recovered at the time of drawing of the arrest

panchanama from the possession of the appellant-accused, for

which no explanation has been tendered. Even the appellant-

accused has not explained in terms of the provisions of Section 106

of the Indian Evidence Act about the said last call made by him to

deceased Rekha. Learned APP submits that the trial court has

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therefore rightly drawn the adverse inference about non-explaining

the said circumstance. Learned APP submits that the trial court has

rightly convicted appellant-accused no.1 for having committed

murder of Rekha. There is no substance in the appeal and the

appeal is thus liable to be dismissed.

13. We have perused the material exhibits tendered by the

prosecution, the evidence of the prosecution witnesses, the

statements of the appellant-accused no.1 and co-accused no.2

recorded under Section 313 of Cr.P.C. and the impugned judgment.

After giving our thoughtful reflection to the matter, we are wholly

satisfied that there is substance in this appeal filed by the

appellant-accused no.1 and the same must be allowed.

14. On 22.09.2011 at about 8.00 a.m., the dead body of one

unknown lady was found lying in the agricultural land gat no. 316

in the crop of cotton. There were injuries and marks of violence on

the dead body. There were ligature marks on the neck and there

was bleeding from the mouth. There was a green colour sari and a

green colour blouse. On the basis of the report Exhibit 32 lodged by

PW 1 Prakash Jadhav, Police Patil of village Borala, crime no. 214

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of 2011 for the offence punishable under Sections 302 and 201 of

IPC came to be registered in the concerned police station against

unknown assailant.

15. The prosecution has examined PW 4 Dashrath Tipre, father

of the deceased. PW 4 Dashrath was informed by the other

relatives that Rekha was missing. Thus, he went to the Basmath

Police Station to lodge missing report. At that time, he was shown

the dead body at the Rural Hospital, Basmath. PW 4 Dashrath has

deposed that he could not identify deceased Rekha. He was shown

the clothes. He has identified the said clothes as belonging to

Rekha. Except this witness, the prosecution has not examined any

other witness to identify the dead body. Furthermore, PW 11

Dy.S.P. Manik Perke, during the course of investigation, by noticing

the same, collected blood samples of the mother and father of

Rekha for DNA test and he has sent all the articles, including the

blood samples and some parts of bone of the dead body preserved

for DNA test, to the laboratory at Kalina, Mumbai along with the

covering letter Exhibit 63. However, the prosecution, for the

reasons best known to it, has not placed on record the DNA report,

nor examined any witness on the point of the DNA examination.

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16. Even assuming that PW 4 Dashrath, father of Rekha, has

identified the clothes of Rekha and as such, it was the dead body of

Rekha, the prosecution has examined PW 3 Dr. Ashok Mundhe who

has conducted the postmortem examination on the dead body.

There is nothing in the postmortem report Exhibit 38 to indicate

that the dead body, particularly the face, was not in identifiable

condition. Apart from this, PW 3 Dr. Ashok Mundhe, has noticed

seven injuries on the dead body of the said unknown lady and in

his opinion, the cause of death is 'asphyxial death due to throttling'.

Learned counsel appearing for the appellant-accused has not

seriously disputed the homicidal death of the unknown woman.

The prosecution has established the homicidal death so far as the

dead body of said unknown lady is concerned. Even assuming that

the said dead body was of Rekha, the prosecution has established

the homicidal death of Rekha. Injury no. 3 -contused abrasion on

right side neck, injury no. 4 - contusion on left side neck and injury

no. 5 - multiple contusions over chest below thyroid lever indicate

homicidal death due to asphyxia due to throttling. The other

injuries on the dead body, as opined by PW Dr. Mundhe, are

indicative of violence since the deceased had resisted the said

assault.

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17. It is needless to state that motive plays a great role when the

prosecution case rests upon circumstantial evidence. In the instant

case, the prosecution case entirely rests upon circumstantial

evidence and there is no direct evidence. We find no evidence

about motive. PW 14 P.I. Sarjerao Patil has deposed about the

motive as revealed during the course of investigation. However,

PW 14 P.I. Sarjerao has no personal knowledge and the

prosecution has not examined any witness on the same. According

to PW 14 P.I. Sarjerao Patil, the deceased had consented for sexual

intercourse to the appellant-accused and the acquitted co-accused

for certain amount. However, after completion of the same,

deceased had demanded more amount than agreed. PW 14 P.I.

Sarjerao Patil has deposed that appellant-accused and the acquitted

accused therefore committed murder of Rekha. It is not clear on

what basis PW 14 P.I. Sarjerao Patil has deposed in the said

manner. We find that there is no evidence at all upon the motive.

18. We agree with the submission made by learned counsel

Mr. Shelke on behalf of the appellant-accused that the prosecution

has come with a unique concept of "last call theory". In the instant

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case, admittedly there is no evidence of last seen together. The

prosecution has also not claimed that deceased Rekha was lastly

seen alive in the company of the appellant-accused at any point of

time prior to her death. Even assuming that the appellant-accused

has made a phone call to deceased Rekha on her mobile handset on

21.09.2011 at about 7.00 p.m., her dead body was found in the

morning at about 8.00 a.m. on 22.09.2011 in one agricultural land.

The postmortem of the dead body was conducted on 23.09.2011 at

about 9.00 to 10.30 a.m. PW 3 Dr. Ashok Mundhe has admitted in

para 6 of his cross-examination that the lady died 20 to 24 hours

prior to postmortem examination. Thus, considering the time when

the postmortem was conducted on the dead body, at the most it

can be said that deceased Rekha died homicidal death in the

morning of 22.09.2011.

19. So far as the last call theory is concerned, we have carefully

gone through the call detail record Exhibit 76/1 to 76/14. It

appears that at serial no. 607 and 608, there were two calls on the

mobile of deceased from the mobile of the appellant-accused at

about 19.00.55 and 19.02.10 hours for 43 seconds and 30 seconds

respectively. However, we also find that as per serial no. 606 there

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was a call received on the mobile of deceased at about 18.53.59

hours and the duration of the said call is of 208 seconds. However

there is no investigation as to who has made the said phone call

which is of maximum duration and which is prior to the call

allegedly made from the mobile of the appellant-accused. It further

appears that no witness has particularly identified the mobile of

deceased Rekha. It was not shown to any of the prosecution

witnesses except PW 12 Suresh Khandekar. PW 12 Suresh

Khandekar allegedly sold the said mobile, which was belonging to

him, to deceased Rekha for Rs.500/-. However, there is no positive

evidence to indicate that deceased Rekha was using the said mobile

bearing sim card no. 7507149722. PW 12 Suresh Khandekar was

serving at Kurunda 132 KV Sub-station, MSEB since 1999 to 2009.

He was also holding the additional charge of 132 KV Sub-station,

Basmath. He has admitted in his cross-examination that the

villagers use to contact him in case of any electrical difficulty and

he used the above mentioned sim card for two to three months

before giving it to Rekha. Thus, the evidence of this witness is not

helpful for the prosecution in any manner.

20. The prosecution has examined PW 9 Sharad Naval, the

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pancha witness. According to him, on 27.09.2011, he was called by

the police at police station, Basmath at about 4.45 p.m. and one

another pancha was Ashish Gaikwad. The appellant-accused was

present in the police station. At the time of personal search of

appellant-accused, certain muddemal articles were found in

possession of the appellant-accused and those include (1) seven

beads of yellow metal, (2) two mangalsutra of yellow metal, (3)

seven disco beads, (4) two chains of white metal, (5) one mobile of

Rocker company with sim card, (6) one mobile of Samsung

company of black colour with sim card, (7) four currency notes of

the denomination of Rs.100/- each, (8) two currency notes of the

denomination of Rs. 50/- each, (9) three currency notes of the

denomination of Rs.10/- each, (10) two currency notes of the

denomination of Rs.5/- each, (11) Election I.D. Card of accused

no.1, (12) one pocked diary containing some mobile numbers, (13)

one mobile charger, (14) one nose ornament of yellow metal and

(15) one money purse of black colour. The prosecution claims that

particularly the mangalsutra and the beads and the mobile of

Samsung company belongs to deceased Rekha along with one nose

ornament of yellow metal. However, it is highly improbable and it

is also unlikely on the part of the appellant-accused to keep those

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incriminating articles in his pocket right from the date of the

incident i.e. 21.09.2011 till he was arrested on 27.09.2011 in

connection with the crime. Furthermore, none of the prosecution

witnesses has identified the said ornaments i.e. seven beads of

yellow metal, two mangalsutra of yellow metal, seven disco beads,

two chains of white metal, one black colour mobile of Samsung

company and one nose ornament of yellow metal as belonging to

deceased Rekha. This so-called seizure of certain incriminating

articles from the possession of the accused is highly suspicious and

we are not inclined to place reliance on it.

21. It further appears that during the course of investigation, at

the instance of the appellant-accused, the weapon wooden log

having blood stains on it and his clothes including a shirt having

blood stains and a pant came to be seized from the hidden place.

However, if we consider the cause of death i.e. 'asphyxial death

due to throttling' and so far as the nature of other injuries on the

dead body, we hardly find that the weapon like wooden log has

been used in the alleged commission of crime. Furthermore, the

said article wooden log was not shown to PW 3 Dr. Ashok Mundhe

to obtain his opinion as to whether the injuries as mentioned in

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column no. 17 of the postmortem report of the dead body are

possible or some of the injuries mentioned in column no. 17 are

possible by the use of the article wooden log. It appears from the

C.A. report Exhibit 110 that human blood was detected on the

wooden log so also on the shirt of the appellant-accused. However,

the blood group of deceased Rekha was not detected and the

results were not conclusive. Furthermore, this particular

incriminating evidence was not put to the appellant-accused during

his examination under Section 313 of Cr.P.C. Thus, the appellant-

accused has no opportunity to explain the said incriminating

circumstance.

22. It appears that the learned judge of the trial court has

convicted the appellant-accused mainly on the basis of the last call

theory and particularly, for not giving any explanation to the

incriminating circumstance of the last call theory as required under

Section 106 of the Indian Evidence Act.

23. In the case of Sk. Yusuf v. State of West Bengal [(2011) 11

SCC 754], relied upon by learned counsel for the appellant-

accused, the Supreme Court, in para 32 and 33 of the judgment has

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held has under:

32. Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (Vide Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, Krishnan v. State (2008) 15 SCC 430 and Wakkar v. State of U.P. (2011) 3 SCC 306).

33. No presumption could be drawn on the issue of

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last seen together merely on the fact that Abdul Rajak (PW.2), father of the deceased had stated that Sahanara Khatun had gone to pluck jhinga and her dead body was recovered from there. The witnesses merely stated that the accused was present in the close proximity of that area. That does not itself establish the last seen theory because none of the witnesses said that the accused and deceased were seen together. Most of the witnesses had deposed that the accused was having spade. It may connect the appellant to the factum of digging the earth. A person going for catching fish normally does not take a spade with him.

24. The Supreme Court in the above case has referred the

observations made in Sharad Birdhichand Sarda v. State of

Maharashtra [(1984) 4 SCC 116], Krishnan v. State [(2008) 15

SCC 430 and Wakkar v. State of U.P. [(2011) 3 SCC 306. It is well

settled that while deciding a case involving the commission of

serious offence based on circumstantial evidence, the prosecution

case must stand or fall on its own legs and cannot derive any

strength from the weakness of the defence case. The circumstances

from which the conclusion of guilt is to be drawn should be fully

established. The facts so established should be consistent only with

the hypothesis of the guilt of the accused and they should not be

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explainable on any other hypothesis except that the accused is

guilty. The circumstances should be of a conclusive nature and

tendency. There must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent with the

innocence of the accused and must show that in all human

probability the act must have been done by the accused.

25. In the case of Anjan Kumar Sarma and others v. State of

Assam, [(2017) 14 SCC 359], in para 23, the Supreme Court has

made the following observations:

"23. It is clear from the above that in a case where the other 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

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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

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together is to be rejected merely because the time gap between the accused persons and the 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

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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."

The Supreme Court has observed that the only circumstance

of last seen together and absence of satisfactory explanation cannot

be made the basis of conviction. In the instant case, there is no

evidence about last seen together and the prosecution has come

with a unique case of last call theory. We do not think that it is

incumbent upon the appellant-accused to explain the said

circumstance in terms of the provisions of Section 106 of the Indian

Evidence Act and in absence of any such explanation, the same

cannot be made the basis of his conviction.

26. In the case of Mohinder Sharma v. State [2013 SCC Online

Del 740 : (2013) 2 DLT (Cri) 193], relied upon by learned counsel

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for respondent nos.2-A and 2-B, in the facts of the said case, the

Supreme Court has observed that the burder shifts on the accused

to explain the circumstances under which he has got possession of

the mobile phone of the deceased person and it applies to all

crimes including murder. Further, the Supreme Court has also

observed that each case has to be examined on its own factual

matrix. In the instant case, the circumstance of seizure of certain

incriminating articles including the mobile handset of deceased

Rekha from the possession of the appellant-accused at the time of

drawing of his arrest panchanama after a gap of six days is a highly

suspicious circumstance and it is very unlikely on the part of the

assailant to keep the incriminating articles such as the ornaments

of the deceased and her mobile handset in his pocket from the date

of the incident that i.e. 21.09.2011 till his arrest i.e. 27.09.2011.

27. In view of the above, discussion, we find no satisfactory

evidence against the applicant-accused to convict him for having

committed the offence punishable under Section 302 of IPC. The

prosecution has failed to prove the case against the appellant-

accused beyond reasonable doubt. On the same set of allegations,

the trial court has acquitted the co-accused i.e. accused no.2,

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however, convicted the present applicant merely on the basis of

"last call theory". We do not think that the approach of the trial

court is proper, correct and legal while appreciating the evidence

so also applying the law to the factual matrix of the case. The

appellant-accused is thus entitled for the benefit of doubt. We

accordingly proceed to pass the following order:

ORDER

I. Criminal Appeal No. 460 of 2014 is hereby allowed.

II. The judgment and order of conviction dated 24.01.2014 passed by the Additional Sessions Judge, Basmath in Spl. C. (Atrocities) No. 5/2012 convicting thereby the appellant accused no.1 Datta s/o Keshavrao Karhale for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.500/- (Rs. Five hundred) in default to suffer R.I. for one month and further convicting the appellant-accused no.1 Datta s/o Keshavrao Karhale for the offence punishable under Section 404 of IPC and sentenced to suffer R.I. for one year and fine of Rs.500/-, in default to suffer R.I. for one month, is hereby quashed and set aside.

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III. The appellant-accused no.1 Datta s/o Keshavrao Karhale is hereby acquitted of the offence punishable under Sections 302 and 404 of IPC in connection with the Spl. C. (Atrocities) No. 5/2012 (The State of Maharashtra Through Police-station, Basmath Tq. Basmath, Dist. Hingoli v. Datta s/o Keshavrao Karhale and another).

IV. The appellant-accused no.1 Datta s/o Keshavrao Karhale shall execute P.B. of Rs.20,000/-, with one surety 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 bond shall remain in force for a period of six months from the date of its execution.

V. Upon executing the P.B. as above, the appellant-accused no.1 be released forthwith, if not required in any other offence.

VI. We quantify the fees of learned counsel Mr. Avishkar Shelke, appointed for the appellant, at Rs.15,000/- and the fees of appointed counsel Mr. Govind A. Kulkarni, appointed for respondent nos. 2-A and 2-B, at Rs. 10,000/-, which shall be paid by the High Court Legal Services Sub-committee, Aurangabad.

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VII. At the request of learned counsel Mr. Avishkar Shelke, the legal fees of Rs.15,000/- quantified for his services shall be paid to the Bar Library, Advocate's Association of Bombay High, Bench at Aurangabad.

VIII. Criminal Appeal No. 460 of 2014 is accordingly disposed off.

(SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.)

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