Bombay High Court
Sanjay S/O Dinkar Kakade vs The State Of Maharashtra on 8 February, 2022
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
1
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 563 OF 2014
Mangesh s/o Pandurang Gund,
Age : 28 years, Occ.: Petty Trader,
R/o.: Medical Campus, Ambajogai,
Tal. Ambajogai, Dist. Beed. ... APPELLANT
VERSUS
The State of Maharashtra,
Through Police Station-Ambajogai (City),
Tal.: Ambajogai, Dist. Beed. ... RESPONDENT
...
Mr. Anand Chaware, h/f Mr. P. K. Chaware, Advocate for Appellant.
Mr. K. S. Patil, APP for Respondent/State.
...
AND
CRIMINAL APPEAL NO. 572 OF 2014
Sanjay S/o Dinkar Kakade,
Age : 23 years, Occ : Service, now Nil,
R/o. Medical Campus, Ambajogai,
Tq. Ambajogai, Dist. Beed. ... APPELLANT
(ORI. ACCUSED NO.5)
VERSUS
The State of Maharashtra. ... RESPONDENT
...
Mr. R. N. Dhorde, Senior Counsel, i/b Mr. V. R. Dhorde, Advocate for
Appellant.
Mr. K. S. Patil, APP for Respondent/State.
...
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2
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
AND
CRIMINAL APPEAL NO. 526 OF 2015
Swapnil s/o Nandkumar Kamble,
Age : 25 years, Occu : Nil,
R/o : Kadoli, Tq. Sengaon,
Dist. Hingoli. ... APPELLANT
(Orig. Accused No.4)
VERSUS
The State of Maharashtra,
Through Police Inspector,
Ambajogai (City) Police Station,
Tq. Ambajogai, Dist. Beed. ... RESPONDENT
(Orig. Complainant)
...
Mr. V. D. Sapkal, Senior Counsel, i/b Mr. A. B. Jagtap, Advocate for
Appellant.
Mr. K. S. Patil, APP for Respondent/State.
...
CORAM : V. K. JADHAV AND
SHRIKANT D. KULKARNI, JJ.
RESERVED ON : 22nd October, 2021.
PRONOUNCED ON : 08th February, 2022.
J U D G M E N T: ( Per Shrikant D. Kulkarni, J. )
. Feeling aggrieved by the impugned judgment and order of
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
conviction and sentence passed in Sessions Case No.54 of 2012 by
the learned Additional Sessions Judge, Ambajogai, original Accused
Nos.4 to 6 have preferred these appeals by taking aid of Section 374
of the Code of Criminal Procedure.
2 The facts of the prosecution case in narrow compass are
as under:
i. Ganesh Sadre (since deceased) was serving in Swami
Ramanand Teerth Rural Medical College and Hospital,
Ambajogai (hereinafter referred to as "SRTRMCH
Ambajogai") on the post of clerk at the time of incident.
Sarubai Kashinath Sadre (first informant) is happened to
be the mother of the deceased. Accused
No.1/Nandkumar Tolaji Kamble was also serving in
SRTRMCH Ambajogai as a clerk. The deceased and
Accused No.1 were well acquainted with each other.
ii. Accused No.1/Nandkumar was transferred to Latur and
he was in need of money while giving charge to another
clerk. By considering the genuine need of Accused
No.1/Nandkumar, deceased had advanced him
Rs.1,65,000/- as hand loan. It was agreed by Accused
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
No.1/Nandkumar that he would repay the same, but he
did not stickup to his words. Therefore, the deceased
was insisting to Accused No.1/Nandkumar to repay his
hand loan amount, but Accused No.1/Nandkumar
refused to repay the same.
iii. The deceased had narrated the said fact to his mother
and also disclosed apprehension to his life from Accused
No.1/Nandkumar. The deceased and his mother went to
the house of Accused No.1 and asked him to repay the
hand loan. Due to which, Accused No.1/Nandkumar felt
it as insult. Accused No.1 asked to the deceased and
his mother as to why they had come to his house for
demanding money. It was nothing but an insult in
presence of his relatives and public at large. Accused
No.2/Ganesh Nandkumar Kamble and Accused
No.4/Swapnil Nandkumar Kamble, who are the sons of
Accused No.1 also present. The relatives of Accused
No.1 intervened in the dispute of hand loan and settled
at Rs.1,20,000/-. Accused No.1/Nandkumar agreed to
pay Rs.1,00,000/- on the very next day and the
remaining balance amount of Rs.20,000/- was to be paid
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
after some days. Accused No.1/Nandkumar accordingly
paid Rs.1,00,000/- to the deceased as agreed.
iv. On 22nd April, 2012, the deceased left his house in the
morning alongwith cash amount of Rs.1,00,000/-. His
mother Sarubai left for Tuljapur for taking Darshan of
Goddess Tuljabhavani. Sarubai returned to the home at
about 11:00 p.m. She noticed that her son was not at
home. She made inquiry with her daughter-in-law
Dipmala and came to know that her son had left in the
morning and did not return to home. Later on, Sarubai
received phone call of her son deceased Ganesh, who
informed to his mother that he was going to Latur with
one patient and he may come back in the morning.
Deceased Ganesh did not return to home even in the
morning of 23rd April, 2012. Sarubai went to SRTRMCH
Ambajogai and made inquiry about her son Ganesh.
One peon attached to OPD, disclosed that on the last
night deceased Ganesh and Accused No.3/Sunil Pratap
Patil had heavy drinks and both of them left together
about 09:30 p.m. Sarubai gave call to her neighbouring
boy Vikas and asked him to go to the house of Accused
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
No.3/Sunil Pratap Patil. Vikas Paradwad, a
neighbouring boy came back to the house of Sarubai
and informed about 07:30 a.m. that Ganesh Sadre is
murdered and is no more. The dead body of Ganesh
Sadre was found near the Engineering College at
Ambajogai. The police officials rushed to the spot.
v. After conducting inquest and spot Panchanamas, the
dead body was sent to SRTRMCH Ambajogai for
postmortem examination and report.
vi. Sarubai Sadre (mother of the deceased) rushed to
Ambajogai City Police Station and lodged FIR on 23rd
April, 2012 about 09:00 a.m. It is stated in the FIR that
Accused No.1/Nandkumar Kamble, Accused
No.2/Ganesh Nandkumar Kamble, Accused No.3/Sunil
Pratap Patil and Accused No.4/Swapnil Nandkumar
Kamble, have committed murder of her son Ganesh
Sadre on account of money transactions. Crime No. 46
of 2012, for the offence punishable under Section 302
read with 34 of the Indian Penal Code came to be
registered at Ambajogai City Police Station on the basis
of FIR lodged by Sarubai Sadre against the abovesaid
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
accused persons.
vii. The probe was handed over to Police Inspector Gitte,
who arrested Nandkumar Tolaji Kamble, Sunil Pratap
Patil and Ganesh Nandkumar Kamble on the very same
day. When investigation was going on, Accused
No.5/Sanjay Dinkar Kakde and Accused No.4/Swapnil
Nandkumar Kamble surrendered themselves before the
Gangakhed Police Station and accordingly, arrangement
was made through PSI Bansode to bring them at
Ambajogai. Accordingly, Accused No.5/Sanjay and
Accused No.4/Swapnil were brought to Ambajogai. Both
of them came to be arrested.
viii. During the course of investigation, it was revealed that
Accused No.4/Swapnil alongwith Accused Nos.5 and 6
had committed murder of Ganesh Sadre by using the
weapon sickle. The role of remaining accused persons
was also revealed. The weapon allegedly used in the
commission of offence came to be recovered at the
instance of Accused No.4/Swapnil Kamble. The
motorcycle allegedly used while fleeing away also came
to be recovered and seized. During the course of
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
investigation, the Muddemal articles, which were seized,
sent to CA for analysis and report. The Investigation
Officer found sufficient incriminating evidence against in
all six accused persons in causing murder of Ganesh
Sadre as well as destruction of evidence of murder. The
Investigation Officer filed charge-sheet against all the
accused for the offences punishable under Sections 302
and 201 read with 34 of the Indian Penal Code in the
Court of Judicial Magistrate First Class at Ambajogai.
ix. After committal of case to the Sessions Division at
Ambajogai, the learned Additional Sessions Judge at
Ambajogai was pleased to frame the charge against all
the accused for the offences punishable under Sections
302 and 201 read with 34 of the Indian Penal Code. The
trial was commenced before the Additional Sessions
Judge at Ambajogai. The prosecution agency had
examined in all 17 witnesses to bring home the guilt of
accused. None of the accused had preferred to adduce
any evidence by way of defence. They defended that
they have been falsely foisted upon in this case.
x. The learned Additional Sessions Judge after
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
appreciating the oral and documentary evidence
produced by the prosecution agency and considering the
argument advanced by the APP and the defence
counsels, arrived at conclusion that Accused
No.4/Swapnil Nandkumar Kamble, Accused No.5/Sanjay
Dinkar Kakde and Accused No.6/Mangesh Pandurang
Gund had committed offence punishable under Section
302 read with 34 of the Indian Penal Code. Accused
No.4/Swapnil also came to be convicted for the offence
punishable under Section 201 of the Indian Penal Code.
Accused Nos.1 to 3 namely (Nandkumar Tolaji Kamble,
Ganesh Nandkumar Kamble and Sunil Pratap Patil)
came to be acquitted from the charge of murder and
destruction of evidence punishable under Sections 302
and 201 read with 34 of the Indian Penal Code. The
learned Additional Sessions Judge was pleased to pass
the following order of sentence against Accused Nos.4
to 6, which reads thus:
"ORDER
1] Accused Nos.4, 5 and 6 namely:-
[4] Swapnil Nandkumar Kamble
[5] Sanjay Dinkar Kakade and
[6] Mangesh Pandurang Gund
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
all R/o Medical Campus, Ambajogai, District
Beed are hereby convicted vide Section 235(2)
of Cr.P.C. for the offence punishable under
Sections 302 r.w. 34 of the Indian Penal Code
and sentenced to suffer Life Imprisonment and
to pay a fine of Rs.1000/- ( Rs. One thousand
only) each. In default, Rigorous Imprisonment
for One month.
2] Accused Swapnil Nandkumar Kamble further
convicted vide Section 235(2) of Cr.P.C. for the
offence punishable under Section 201 of the
Indian Penal Code and sentenced to suffer
Rigorous Imprisonment for 7 years and to pay a
fine of Rs.1000/- ( Rs. One thousand only ). In
default, R I. for One month.
3] Separate sentence awarded to accused Swapnil
Kamble for two different Sessions shall run
concurrently.
4] Accused Nos.1, 2 and 3 namely:-
[1] Nandkumar Tolaji Kamble,
[2] Ganesh Nandkumar Kamble &
[3] Sunil Pratprao Patil
all R/o. Medical Campus, Ambajogai, Taluka
Ambajogai, District Beed are hereby acquitted
under Section 235(1) of the Code of Criminal
Procedure of the offence punishable under
Sections 302 and 201 r.w.s. 34 of the Indian
Penal Code.
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
5] Their bail bonds shall stand cancelled.
6] Accused Nos.1, 2 & 3 shall furnish bail of Rs.
25,000/- (Rs.Twenty Five Thousand) each for
the compliance of Section 437-A of the Code of
Criminal Procedure.
7] One or two sureties allowed.
8] Muddemal Property Motorcycle be returned to its
registered owner after verification of documents
and identification. Rest of the Mudemal property
be destroyed after appeal period is over.
9] Copy of judgment be provided to the convicted
accused free of costs.
10] Copy of judgment be sent to the District
Magistrate for compliance of Section 365 of
Cr.P.C.
Dictated in open Court."
3 In the above background, original Accused Nos.4 to 6 are
before us by way of their respective criminal appeals.
4 It may not be out of place to mention here that the State
has filed Criminal Application No.5722 of 2014 thereby seeking leave
to file an appeal under Section 378(1)(b) of the Code of Criminal
Procedure challenging the judgment and order of acquittal of original
Accused Nos.1 to 3 (Nandkumar Tolaji Kamble, Ganesh Nandkumar
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
Kamble and Sunil Pratap Patil) whereby they were set at liberty from
the charges under Section 302 and 201 read with 34 of the Indian
Penal Code.
5 During the pendency of appeals, original Accused
No.2/Ganesh Nandkumar Kamble had passed away and his appeal
therefore, came to be abated. So fare as original Accused Nos.1 and
3 are concerned, the Division Bench of this Court (Coram: Ravindra V.
Ghuge and B. U. Debadwar, JJ.) vide order dated 15 th January, 2021
was pleased to reject Criminal Application No.5722 of 2014.
Resultant, the order of acquittal passed against original Accused
Nos.1 and 3 came to be upheld.
6 In the above scenario, original Accused Nos.4 to 6 are
only before us, who had challenged their conviction and sentence
awarded by the learned Additional Sessions Judge, Ambajogai.
7 We have heard Mr. R. N. Dhorde, learned Senior
Counsel, instructed by Mr. V. R. Dhorde, learned counsel for
Appellant/original Accused No.5 (Sanjay Dinkar Kakde) in Criminal
Appeal No.572 of 2014, Mr. V. D. Sapkal, learned Senior Counsel,
instructed by Mr. A. B. Jagtap, learned counsel for Appellant/original
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
Accused No.4/Swapnil Nandkumar Kamble in Criminal Appeal No.526
of 2015, Mr. Anand Chaware, learned counsel holding for Mr. P. K.
Chaware, learned counsel for Appellant/original Accused
No.6/Mangesh Pandurang Gund in Criminal Appeal No.563 of 2014
and Mr. K. S. Patil, learned APP for the Respondent/State, at length.
SUBMISSIONS OF MR. R. N. DHORDE, LEARNED SENIOR
COUNSEL APPEARING FOR APPELLANT/ACCUSED NO.5
8 Mr. R. N. Dhorde, learned Senior Counsel for
appellant/accused No.5 submitted that the case is entirely rest upon
circumstantial evidence. There is no direct evidence, which may
focus light on the alleged incident. He submitted that the theory of
last seen together projected by the prosecution agency is based upon
weak piece of evidence. There is long time gap between
appellant/accused No.5, last seen together in the company of Ganesh
Sadre and his time of death. He pointed out the testimony of PW-7
Prakash Chintamani, who is brother of owner of Pan shop. He has
stated that he had seen three persons namely Mangesh Gund, son of
Kamble and one more person. If this is to be believed, the test
identification parade ought to have been held to prove that said
person was this accused No.5/appellant Sanjay. He further pointed
out the variance in the evidence of PW-7 Prakash Chintamani and
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
PW-4 Prakash Paradwad. He submitted that the prosecution
witnesses had given different versions about time and same place.
The prosecution has failed to prove the story of last seen together
with deceased Ganesh Sadre.
9 Mr. R. N. Dhorde, learned Senior Counsel submitted that
the testimony of PW-6 Imran is not at all trustworthy and reliable.
Similarly, the testimony of PW-15 Sanjay Pawar is full of omissions
and contradictions and therefore, the same should be kept out of
consideration. Mr. Dhorde, learned Senior Counsel also invited our
attention to the evidence of PW-3 Rajendrakumar More, Panch
witness, regarding seizure of clothes of this appellant Sanjay. He
submitted that there are material omissions and contradictions in his
evidence. He has also categorically stated that the clothes vide
articles 15 and 16 and the clothes in the photographs are not the
same. As such, there is no recovery from this appellant Sanjay.
10 Mr. Dhorde, learned Senior Counsel submitted that the
complete chain of circumstances is not proved. The motive is also not
proved. The deceased was involved in money lending business and
as such, he might be having number of enemies. The prosecution
has failed to prove the charge of murder against appellant Sanjay
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
beyond reasonable doubt. The evidence of PW-11, who is Manager
of Ashirwad Lodge, did not prove the link in respect of stay of
appellant Sanjay. Mr. Dhorde, learned Senior Counsel also invited
our attention to the testimony of PW-12, who is Manager of Anjali Bar,
Ambajogai. He pointed out that deceased was daily visitor of said
Anjali Bar and paying the bills of many customers, which reflects
about his money lending business. Mr. Dhorde, learned Senior
Counsel submits that the learned Additional Sessions judge has
committed an error in convicting appellant/original Accused No.5 on
the basis of evidence, which is very weak. The original accused
Nos.1 to 3 came to be acquitted on the same set of facts and
evidence on record. The present appellant/accused No.5 needs
same treatment. He needs to be acquitted when last seen together
theory is not proved. The chain of circumstances is also not proved
as contemplated in the eye of law.
11 Mr. Dhorde, learned Senior Counsel has placed his
reliance on the following stock of citations in support of his
submissions:
a) Anjan Kumar Sarma and others Vs. State of Assam ,
reported in, (2017) 14 Supreme Court Cases 359 ;
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
b) Baiju Kumar Soni and another Vs. State of
Jharkhand, reported in, (2019) 7 Supreme Court
Cases 773 ;
c) Kanhaiyalal Vs. State of Rajasthan, reported in,
(2014) 4 Supreme Court Cases 715 ;
d) Raj Kumar alias Raju Vs. State (NCT of Delhi) ,
reported in, (2017) 11 Supreme Court Cases 160 ;
e) Malaichamy and another Vs. State of Tamil Nadu ,
reported in, (2019) 17 Supreme Court Cases 568 ;
f) Amarjit Singh alias Babbu Vs. State of Punjab ,
reported in, 1995 Supp (3) Supreme Court cases
217 ;
g) Salim Akhtar alias Mota Vs. State of U.P. , reported
in, (2003) 5 Supreme Court Cases 499 ;
h) VIP Industries Ltd. Vs. Commissioner of Customs &
Central Excise, Aurangabad, reported in, (2003) 5
Supreme Court Cases 507 ;
i) Khalil Khan Vs. State of M.P., reported in, (2003) 11
Supreme Court Cases 19 ;
j) Kansa Behera Vs. State of Orissa, reported in, AIR
1987 Supreme Court 1507 ;
k) Sattatiya @ Satish Raj anna Kartalla Vs. State of
Maharashtra, reported in, 2008 CRI. L. J. 1816 ;
l) Mustkeem alias Sirajudeen Vs. State of Rajasthan,
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
reported in, (2011) 11 Supreme Court Cases 724 ;
m) Brijesh Mavi Vs. State of NCT of Delhi , reported in,
2012 ALL SCR 2509 ;
n) State of Rajasthan Vs. Ramanand, reported in,
(2017) 5 Supreme Court Cases 695 ;
o) Kumar VS. State Represented By Inspector Of
Police, reported in, (2018) 7 Supreme Court Cases
536 ;
p) State of Uttar Pradesh Vs. Wasif Haider and others,
reported in, (2019) 2 Supreme Court Cases 303 ;
q) Ramaiah @ Rama Vs. State of Karnataka, reported
in, 2014 (9) SCC 365 ;
r) Vikramjit Singh alias Vicky Vs. State of Punjab ,
reported in, (2006) 12 Supreme Court Cases 306 ;
and
s) Asraf Ali Vs. State of Assam, reported in, (2008) 16
Supreme Court Cases 328.
SUBMISSIONS OF MR. V. D. SAPKAL, LEARNED SENIOR
COUNSEL APPEARING FOR APPELLANT/ACCUSED NO.4
12 Mr. V. D. Sapkal, learned Senior Counsel submitted that
the learned Trial Judge has committed an error in holding this
appellant/accused No.4 guilty under Sections 302 and 201 read with
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
34 of the Indian Penal Code when the prosecution has failed to prove
its case beyond reasonable doubt. The evidence produced by the
prosecution agency is not sufficient to prove the charge of murder
against this appellant. The case is based upon circumstantial
evidence. The prosecution has failed to establish the chain of
circumstantial evidence. The evidence of material witnesses is found
to be unreliable in view of contradictions and omissions brought on
record through their cross-examination.
13 Mr. V. D. Sapkal, learned Senior Counsel submitted that
the theory of last seen together is also found to be unreliable and
baseless in view of material contradictions and omissions brought on
record through the evidence of respective prosecution witnesses. He
submitted that, according to the prosecution case, blood stained
clothes of accused No.5/Sanjay were recovered at the time of his
arrest. As such, the said recovery cannot be said to be a recovery in
pursuant to statement made under Section 27 of the Evidence Act.
Apart from that, the person whose clothes are blood stained may not
move for two days, cannot be believed. He further submitted that,
according to the prosecution case, the appellant/accused No.4
alongwith his associates alleged to have tried to destroy the evidence.
The present appellant/accused No.4 alleged to have burnt his clothes
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
in the field of PW-10, but PW-10 Suryakant Tone has turned hostile
and not supported to the prosecution case. It is a vital blow to the
prosecution case.
14 Mr. V. D. Sapkal, learned Senior Counsel further invited
our attention to the recovery of weapon (sickle). He pointed out that
the recovery of weapon is from open place and not admissible in
evidence. That apart, the CA report pertaining to the weapon (sickle)
is concerned, the blood report is found to be not conclusive. In that
background, the prosecution cannot take help of said alleged
recovery of weapon. According to Mr. V. D. Sapkal, learned Senior
Counsel money transaction/money dispute stated to be the motive for
causing murder of Ganesh Sadre. Accused No.1/Nandkumar had
already repaid the amount of Rs.1,00,000/- to the deceased, which
was borrowed. If it is so, there was no reason for any quarrel
between the deceased and accused on account of money transaction.
The prosecution has failed to prove the motive in this case.
15 Mr. V. D. Sapkal, learned Senior Counsel submitted that
the deceased was doing business of real estate and money lending.
He had advanced loans to various persons by way of private money
lending business. He had invited so many enemies because of such
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
illegal money lending business. The possibility cannot be ruled out for
committing murder of deceased/Ganesh Sadre by somebody else.
The learned Trial Judge has not considered this aspect. Mr. Sapkal,
learned Senior Counsel submitted that the impugned judgment and
order of conviction passed against this appellant/accused No.4 is
based upon assumptions and presumptions. The impugned judgment
and order of conviction is bad in law. The appellant/original accused
No.4 is liable to be acquitted by giving him benefit of doubt.
16 Mr. V. D. Sapkal, learned Senior Counsel has placed his
reliance on the following citations in support of his argument:
a) The State Vs. Motia and others, reported in, AIR
1955 Rajasthan 82 ;
b) Deoraj Deju Suvarna and others Vs. State of
Maharashtra, reported in, 1994 (4) Bom.C.R. 85 ;
c) Bhanudas Bagaji Salve VS. State of Maharashtra,
reported in, 2006 (1) Bom.C.R.(Cri.) 22 ;
d) Chandru @ Chandrasekaran Vs. State Rep. By
Deputy Superintendent of Police CB CID and anr.,
decided on 12th February, 2019 by the Honourable
Supreme Court in Criminal Appeal No.1193 of 2011 ;
e) Mulak Raj and others Vs. State of Haryana , reported
in, AIR 1996 Supreme Court 2868 ;
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
f) Raj Kumar Singh alias Raju alias Batya Vs. State of
Rajasthan, reported in, AIR 2013 Supreme Court
3150 ; and
g) Popat Bapu Mandale Vs. State of Maharashtra,
reported in, 2019 (4) Bom.C.R.(Cri.) 279.
SUBMISSIONS OF MR. ANAND CHAWARE, LEARNED COUNSEL
APPEARING FOR APPELLANT/ACCUSED NO.6
17 Mr. Anand Chaware, learned counsel for appellant/original
accused No.6 argued on the lines of submissions made earlier by
Mr.R.N.Dhorde, learned Senior Counsel and Mr.V.D.Sapkal, learned
Senior Counsel appearing for original accused Nos.4 and 5. In
addition to that, Mr. Chaware, learned counsel invited our attention to
the impugned judgment and order passed by the learned Additional
Sessions Judge. He submitted that the prosecution case is rest upon
story of last seen together coupled with circumstantial evidence.
According to Mr. Chaware, learned counsel, the story of last seen
together does not inspire confidence of the Court in view of quality of
evidence of respective prosecution witnesses. The chain of
circumstantial evidence is not completed. There are major gaps. The
link to the involvement of this appellant/accused No.6 is not
established.
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
18 Mr. Chaware, learned counsel for appellant/accused No.6
submitted that accused Mangesh Gund has no relation with accused
Nos.1, 2 and 4. There is no evidence to connect this
appellant/accused speaking about business relations with any of the
accused as to why this accused joined the company of other accused
when he had no motive. The postmortem report shows that there
were 17 external injuries on the body. In normal circumstances,
clothes of accused No.6 ought to have been stained with human
blood, but the prosecution has failed to establish that link, which has
resulted in serious doubt about the part played by appellant/accused
No.6.
19 According to Mr. Chaware, learned counsel, the
prosecution has come out with a case that accused No.6 Mangesh
had joined the company of accused No.5 Sanjay and accused No.4
Swapnil and all of them went to Parli, Udgir, Nanded, Selgaon etc.
The prosecution has not produced such supporting evidence. There
is no material to show that this appellant/accused No.6 Mangesh has
absconded after the alleged incident. Nothing is recovered or
discovered much less seized from this appellant/accused No.6
Mangesh.
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
20 Mr. Chaware, learned counsel for appellant/accused No.6
vehemently submitted that there is absolutely no evidence to connect
this appellant with the crime. The evidence of last seen in the
company of deceased is found to be unreliable. The
appellant/accused No.6 Mangesh is liable to be acquitted by giving
him benefit of doubt.
21 Mr. Chaware, learned counsel for appellant/accused No.6
has placed his reliance on the following stock of citations in support of
his submissions:
a) Anter Singh Vs. State of Rajasthan, reported in,
(2004) 10 SCC 657 ;
b) Abdulwahab Abdulmajid Shaikh and Ors Vs. State of
Gujarat, reported in, 2007 AIR SCW 2721 ;
c) State of Gujarat Vs. Mohammed Atik and others ,
reported in, (1998) 4 Supreme Court Cases 351 ;
d) Kusal Toppo and another Vs. State of Jharkhand ,
reported in, (2019) 13 Supreme Court Cases 676 ; and
e) State of Goa Vs. Pandurang Mohite, reported in, 2009
AIR SCW 222.
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
SUBMISSIONS OF MR. K. S. PATIL, LEARNED APP FOR
RESPONDENT / STATE
22 Mr. K. S. Patil, learned APP for the State, per contra,
submitted that the prosecution agency has proved its case of last
seen together as well as completed the chain of circumstantial
evidence in order to prove the charges levelled against the appellants/
accused Nos.4 to 6. He submitted that there was money transaction
between the deceased and accused No.1. Just two days before the
incident, there was quarrel between the deceased and accused No.1/
Nandkumar and his family on account of repayment of hand loan
advanced by deceased Ganesh. After intervention of relatives of
accused No.1, accused No.1 had agreed to pay Rs.1,20,000/- to the
deceased by way of settlement and accordingly, accused No.1 had
paid Rs.1,00,000/- to the deceased. Rs.20,000/- was remained to be
paid by accused No.1. The dispute on account of money lending
transaction between the deceased and accused No.1 and his family,
is the motive in eliminating the deceased.
23 Mr. K. S. Patil, learned APP invited our attention to the
impugned judgment and evidence of prosecution witnesses. He
submitted that the prosecution machinery has examined in all 17
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
witnesses to prove the charges against appellants/accused. The
prosecution has proved with the help of medical evidence that the
deceased met with homicidal death. It was unnatural death.
Seventeen external injuries were found on the dead body at the time
of postmortem examination. The weapon has been recovered from
the scene of offence, which is used in causing murder of the
deceased. Mr. Patil, learned APP took us to the findings recorded by
the learned Trial Judge vis a vis evidence of relevant prosecution
witnesses. He pointed out that accused Nos.4 to 6 were lastly seen
roaming in the company of deceased Ganesh in a distance between
Yeshwantrao Chavan Square to SRTRMCH Campus Ambajogai. On
the same road, the dead body of Ganesh was found.
24 Mr. Patil, learned APP submitted that soon after the
incident of murder, these three accused went absconding. Two
accused stayed at Ashirwad Lodge, Nanded, who subsequently
surrendered before the police. Blood stains were found on the clothes
of accused No.5/Sanjay. The prosecution agency has proved the
recovery of weapon, vehicle used for running away and clothes buried
in the land, at the instance of accused No.4/Swapnil. The Muddemal
articles seized in this case, were sent to CA for analysis and report.
The prosecution machinery has placed on record the CA reports,
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
which are supporting to the prosecution case. Thus, the prosecution
has established the chain of circumstances. The story of last seen
together is also proved by examining the relevant witnesses. The
prosecution has proved the charge of murder and destruction of
evidence against appellant/accused beyond reasonable doubt.
According to Mr. K. S. Patil, learned APP the learned Additional
Sessions Judge has rightly convicted these appellants/accused. He
submitted that the order of conviction and sentence passed by the
learned Additional Sessions Judge, Ambajogai needs to be upheld in
the appeals. He submitted that there is no merit in the appeals and
the same are liable to be dismissed.
25 Mr. K. S. Patil, learned APP has placed his reliance on the
following citations in support of his argument:
a) Bodh Raj Vs. State of Jammu and Kashmir , reported
in, 2002 AIR (SC) 3164 ;
b) Shyamal Ghosh Vs. State of West Bengal , reported
in, 2012 (7) SCC 646 ;
c) Madhu @ Madhuranatha & Anr Vs. State of
Karnataka, reported in, 2014 (12) SCC 419 ; and
d) Prakash Vs. State of Rajasthan, reported in, 2013
(4) SCC 668.
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
26 We have considered the submissions of Mr. R. N. Dhorde,
learned Senior Counsel, Mr. V. D. Sapkal, learned Senior Counsel,
and Mr. Anand Chaware, learned counsel, appearing for the
respective appellant/accused and Mr. K. S. Patil, learned APP for
respondent/State. We have also studied the impugned judgment and
order of conviction passed in Sessions Case No.54 of 2012 by the
learned Additional Sessions Judge, Ambajogai, Sessions Division,
District Beed. We have also gone through the evidence of
prosecution witnesses with the assistance of learned APP and the
learned Senior Counsels and the learned counsel, appearing for the
respective appellant/original accused.
27 In order to prove the charges levelled against the
appellants/accused, the prosecution agency has examined in all 17
witnesses, which can be classified as under:
i) PW-1 Sarubai w/o Kashinath Sadre, Exhibit-60
(mother of the deceased and first informant);
ii) PW-2 Rambhau s/o Pandurang Panchal, Exhibit-109
(Panch witness on the scene of offence, inquest
Panchanama and seizure of clothes of the deceased);
iii) PW-3 Rajendrakumar s/o Vithal More, Exhibit-113,
(Panch witness on the seizure of clothes of accused
No.5/Sanjay Dinkar Kakde);
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
iv) PW-4 Prakash Tanaji Paradwar, Exhibit-116
(Witness to the money transaction between deceased
and accused No.1/Nandkumar)
v) PW-5 Manik s/o Ganpati Dahiphale, Exhibit-122
(Witness serving in the SRTRMCH Ambajogai and
acquainted with deceased and accused No.1 and also
witness on the last seen theory)
vi) PW-6 Shaikh Imran Shaikh Nijamoddin, Exhibit-123
(Pan shop owner and witness on last seen theory)
vii) PW-7 Prakash s/o Kashinath Chintamani, Exhibit-124
(Witness on last seen theory)
viii) PW-8 Pablik s/o Rambhau Maske, Exhibit-126
(Panch witness on disclosure statement given by
accused No.4/Swapnil and recovery of sharp weapon)
ix) PW-9 Mahadeo Vishwnath Valse, Exhibit-131
(witness to the money transaction between deceased
and accused No.1 and last seen theory)
x) PW-10 Suryakant s/o Ramchandra Tone, Exhibit-132
(Land owner, resident of Selgaon)
xi) PW-11 Sambhaji Sopan Bhise, Exhibit-134
(Manager of Ashirwad Lodge, Nanded)
xii) PW-12 Balaji s/o Shankarappa Kale, Exhibit-139
(Manager of Hotel Anjali Beer Bar, Morewadi,
Ambajogai)
xiii) PW-13 Dr. Raju s/o Rustumrao Surwase, Exhibit-143
(Associate Professor, Forensic Medicine, who
conducted postmortem examination on the dead body
of Ganesh Sadre);
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
xiv) PW-14 Dhammpal s/o Shivaji Sarwade, Exhibit-164
(Witness on money lending transaction between
deceased and accused No.1/Nandkumar and witness
on last seen theory)
xv) PW-15 Sanjay s/o Shriram Pawar, Exhibit-165
(Witness on money transaction between deceased
and accused No.1/Nandkumar and witness on last
seen theory);
xvi) PW-16 Satish s/o Damodhar Bansode, Exhibit-177
(Then PSI, Police Station Ambajogai (City) /
Investigation Officer)
xvii) PW-17 Baliram Rakhamaji Gitte, Exhibit-193
(Then API, Police Station Ambajogai (City) and
Investigation Officer)
28 Apart from oral stock of evidence, the prosecution agency
has pressed into service the documentary evidence, which is as
under:
i) FIR, Exhibit-61;
ii) Inquest Panchanama, Exhibit-101;
iii) Postmortem Report, Exhibit-144;
iv) Provisional Death Certificate, Exhibit-145; and
v) Seizure Panchanamas vide Exhibit-102, Exhibit-112
and Exhibit-114 and extract of Ashirwad Lodge,
Nanded vide Exhibit-135.
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
29 In the case in hand, there is no eye-witness of the
occurrence and the prosecution case rests on circumstantial
evidence. The normal principle in a case based on circumstantial
evidence is that the circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly established; that
those circumstances should be of a definite tendency unerringly
pointing towards the guilt of the accused; that 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 they should be incapable of
explanation on any hypothesis other than that of the guilt of the
accused and inconsistent with their innocence.
30 Event though the learned Senior Counsels for appellants/
accused Nos.4 and 5 and the learned counsel for appellant/accused
No.6, have referred number of citations on the point of circumstantial
evidence and need to establish complete chain of circumstantial
evidence, the law is settled by the Honourable Supreme Court in a
landmark case known as Sharad Birdhichand Sarda Vs. State of
Maharashtra, reported in, (1984) 4 Supreme Court Cases 116. The
Honourable Supreme Court has laid down the following conditions,
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
which need to be fulfilled before a case against an accused can be
said to be fully established on circumstantial evidence:
(1) the circumstances from which the conclusion of
guilt is to be drawn must be or should be and not
merely 'may be' fully established,
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that
is to say, they should not be explainable on any
other hypothesis except that the accused is guilty,
(3) The circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.
31 The decision in the case of Sharad Birdhichand Sarda Vs.
State of Maharashtra (supra) is followed consistently even in recent
times in the case of Bodh Raj Vs. State of Jammu and Kashmir
(supra). Thus, law is clear that onus is on the prosecution to prove
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
that the chain is complete and the infirmity or lacuna in prosecution
cannot be cured by false defence or plea.
32 The learned Senior Counsels for accused Nos.4 and 5
and the learned counsel for accused No.6 have not much disputed
that Ganesh Sadre (since deceased) met with homicidal death.
However, it would be necessary to have a look on medical evidence
produced by the prosecution agency in order to determine the death
of Ganesh Sadre in the category of homicidal or otherwise.
33 The prosecution agency has examined PW-13 Dr. Raju
Surwase a Assistant Professor attached to SRTRMCH Ambajogai
vide Exhibit-143, who has conducted the postmortem examination on
the dead body of Ganesh Sadre. According to PW-13 Dr. Raju
Surwase, on external examination, he noticed following injuries on the
dead body:
[i] Deep incised wound over front and lateral aspect of
neck [cut throat] above level of thyroid cartilage of
size 18 X 3 X bone deep. Edges sharp & reddish
cutting of trachea, oesophagus, both sides major
vessel and sternocleidomastoid muscles on both
sides and platysma, partially on right side of neck.
Incised injury seen over anterior aspect of body of
third cervical vertebra.
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
[ii] A deep incised wound seen over right side of neck
below angle of mandible of size 8 X 2 X 4 cm. above
level injury no.1. Both above injuries were horizontally
placed and edges were sharp & reddish.
[iii] Incised wound over center of fore head, vertically
placed of size 7 X 1.5 cm X bone deep.
[iv] Incised wound over right side of forehead and front
parietal region, vertically placed of size 9 X 1 cm X
bone deep.
[v] Incised wound over right perito occipital region
obliquely placed of size 8 X 1.5 cm X bone deep.
[vi] Incised wound over left side of occipital region,
vertically placed of size 7 X 1 cm X bone deep. Edges
of all above injuries were sharp and reddish.
[vii] Superficial incised wound over front of neck below
level of thyroid cartilage, of size 3 X 0.25 cm.
involving only skin, reddish in colour.
[viii] Superficial incised wound over front of neck, below
level of thyroid cartilage, below injury no.7 of size 7 X
2 cm reddish in colour.
[ix] Incised wound over front of chest, over sternal area of
size 3 X 1 X 1cm, reddish in colour.
[x] Stab injury of size 4 X 2 X cm X cavity deep over left
side of chest laterally and below left nipple, edges
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
sharp and reddish,
[xi] Incised wound over epigastic region of size 6 X 2 X 2
cm. edges sharp and reddish obliquely placed.
[xii] Stab injury over left side of chest at level of 10th and
11th ribs. of size 8 X 3 cm X cavity deep vertically
placed, edges sharp and reddish.
[xiii] Stab injury over left iliac region parallel to inguinal
canal obliquely placed of size 7 X 2 cm X cavity deep,
edges sharp and reddish.
[xiv] Incised wound over lumbar region at level of L1,L2
vertebra obliquely placed over back, of size 3 X 1 X
1cm. edges sharp and reddish.
[xv] Incised wound over left lumbar region at level of L4
vertebra of size 4 X 2 X 2 cm. edges reddish.
[xvi] Abrasion of size 3 X 2 cm over right knee, anterior
aspect reddish in colour.
[xvii] Abrasion over left elbow posterior aspect of size 3 X 2
cm, reddish in colour. Edges of all above mentioned
stab and incised wound were clean cut and reddish.
On internal examination, Dr. Raju Surwase noticed the following
injuries:
[a] On internal examination of Head:
Subgalial haemorrhage present beneath scalp
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
corresponding to injury no.5, of size 8 X 3 cm reddish
in colour. No fracture to skull found. Meninges intact,
brain matter pale and oedematous.
[b] On internal examination of chest:
[i] Haemorrhage in walls corresponding to injury
nos.9,10,11 & 12, mentioned in column no.17.
[ii] Fracture of 7th rib in midclavicular line corresponding
to injury no.10 in filtration staining seen.
[iii] Fracture of 10th and 11th ribs in midclavicular line
corresponding to injury no.12, in filtration staining
seen.
[c] Internal examination of abdomen:
[i] Haemorrhages in abdominal wall present in relation to
injury no.13.
[ii] Tear of Peritoneum in relation of injury.
[iii] No blood and clots seen .
[iv] Oesophagus as per injury no.1.
[v] Stomach empty, Mucosa congested, no abnormal
smell perceived.
[vi] Large and small intestine distended with feces and
gases.
34 Dr. Raju Surwase had conducted postmortem
examination with the assistance of Dr. S. L. Ghorpade and
accordingly issued postmortem report, which is at Exhibit-144.
According to the opinion given in the postmortem report, the cause of
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
death is "death due to haemorrhagic shock due to cut throat injury",
[incised would over neck] associated with multiple stabs and incised
wounds. Accordingly, provisional death certificate is issued, which is
at Exhibit-145.
35 Having regard to the internal and external injuries found
on the dead body of Ganesh Sadre as described above and in view of
the opinion given by Dr. Raju Surwase and Dr. Ghorpade, it is a clear
case of homicidal death. The learned Additional Sessions Judge has
rightly recorded the finding after discussing the medical evidence
coupled with postmortem report that it is a case of homicidal death.
The finding recorded by the learned Additional Sessions Judge needs
to be upheld.
36 The learned Additional Sessions Judge has formulated
the following circumstances, which are against the
appellants/accused:
i) Deceased Ganesh Sadre had advanced hand loan
of Rs.1,65,000/- to accused No.1/Nandkumar ;
ii) On account of repayment of hand loan, there was
brawl between the deceased and sons of accused
No.1 on 19th April, 2012.
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
iii) The incident has happened within three days of
threat given by the sons of accused
No.1/Nandkumar ;
iv) Accused Nos.4 to 6 (present appellants) were lastly
seen on 22nd April, 2012 in the company of
deceased Ganesh Sadre at the Pan shop and Hotel
Anjali Beer Bar and Restaurant situated in the area
of Yeshwantrao Chavan Square to SRTRMCH
Ambajogai ;
v) The dead body of Ganesh Sadre was found on the
very next day in the morning i.e. on 23rd April, 2012 ;
vi) Ganesh Sadre met with homicidal death;
vii) Immediately after the incident, three accused
persons were absconded;
viii) Two accused persons had stayed in Ashirwad
Lodge, Nanded;
ix) Both the accused surrendered themselves before
the police;
x) Blood stains were found on the clothes of accused
Sanjay Kakde;
xi) Recovery of weapon, motorcycle and clothes buried
in the land at the instance of accused Swapnil
Kamble; and
xii) CA reports.
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
37 In a case of circumstantial evidence, it is the duty of the
Court to satisfy itself, that various circumstances in the chain of
evidence must have been established clearly and that completed the
chain is such as to rule out a reasonable likelihood of innocence of
accused as held in the case of Malaichamy and another Vs. State of
Tamil Nadu (supra). In a case of Anjan Kumar Sarma and others Vs.
State of Assam (supra), it is held by the Honourable Supreme Court
that when a case of murder is entirely rest upon circumstantial
evidence, only circumstance of last seen together and absence of
satisfactory explanation cannot be made basis of conviction.
Suspicion cannot take place of legal proof. Inferences drawn by the
Court have to be on basis of established facts and not on conjectures.
It is also held by the Honourable Supreme Court that mere failure of
accused to offer any explanation while recording his statement under
Section 313 of the Code of Criminal Procedure alone is not sufficient
to establish charge against the accused.
38 In a case of Baiju Kumar Soni and another Vs. State of
Jharkhand (supra), it is held by the Honourable Supreme Court that in
a case of circumstantial evidence when chain of circumstances not
fully established against accused, they are entitled to benefit of doubt.
In a case of Raj Kumar alias Raju Vs. State (NCT of Delhi) (supra), it
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
is held by the Honourable Supreme Court that in a case based on
circumstantial evidence, chain must lead to sole conclusion that
accused persons only and nobody else had committed crime of
murder. Relevance of time-gap between when accused were last
seen with victim and time of occurrence is also important.
39 In a case of Raj Kumar Singh alias Raju alias Batya Vs.
State of Rajasthan (supra), it is held by the Honourable Supreme
Court that in a criminal trial, suspicion, however grave it may be,
cannot take place of proof. The same view finds place in a case of
Mulak Raj and others Vs. State of Haryana (supra).
40 In a case of Abdulwahab Abdulmajid Shaikh and Ors Vs.
State of Gujarat (supra), it is held by the Honourable Supreme Court
that conviction of accused based on confession of co-accused is liable
to be set aside. Confession of co-accused is a fragile. In a case of
State of Goa Vs. Pandurang Mohite (supra), it is held by the
Honourable Supreme Court that in a case of last seen together, time
gap between last seen alive and recovery of dead body must be
small.
41 Even though number of citations are referred by the
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
learned defence counsels appearing for the respective accused, the
law in respect of case based on circumstantial evidence is now well
settled. The view taken by the Honourable Supreme Court in a case
of Sharad Birdhichand Sarda Vs. State of Maharashtra (supra) has
been followed till now. Therefore, there is no need to refer and
discuss every citation relied on by the defence counsels when legal
position is very much clear.
42 It is revealed during the course of argument as well as
while appreciating the evidence of relevant witnesses that deceased
Ganesh Sadre was a private money lender and also a real estate
agent. The money dispute/hand loan transaction between deceased
Ganesh Sadre and accused No.1/Nandkumar, is foundation of this
case. It was attempted by the learned defence counsels to show that
accused No.1 had repaid the loan before the death of Ganesh Sadre.
As such, there was no intention on the part of accused or the family of
accused No.1 to eliminate the deceased on account of money
transaction. According to the learned defence counsels, money
dispute cannot be termed as a motive to commit murder of Ganesh
Sadre.
43 PW-1 Sarubai (mother of the deceased), PW-4 Prakash
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
Paradwar (witness to money transaction) and PW-9 Mahadeo Valse
(witness to money transaction) have categorically stated in their
deposition about the money transaction between the deceased and
accused No.1/Nandkumar. The learned Additional Sessions Judge
has appreciated the evidence of PW-1 Sarubai, PW-4 Prakash
Paradwar and PW-9 Mahadeo Valse, in the light of defence taken by
the respective accused. The learned Additional Sessions Judge after
appreciating the evidence of above referred three witnesses, arrived
at the conclusion that the deceased had advanced hand loan of
Rs.1,65,000/- to accused No.1/Nandkumar. There was dispute
between deceased and accused No.1 regarding repayment. The
deceased alongwith his mother PW-1 Sarubai had been to the house
of accused No.1/Nandkumar for repayment of hand loan just before
two days of the incident. The relatives of accused No.1 intervened in
the matter and the disputed was settled at Rs.1,20,000/- due to
intervention of relatives of accused No.1. Accordingly, accused No.1
had paid Rs.1,00,000/- to deceased Ganesh Sadre and remaining
amount was to be paid within a short time. The learned Trial Judge
has rightly concluded that there was money transaction between
deceased Ganesh Sadre and accused No.1/Nandkumar. Money
dispute was the root cause and the Trial Judge held that money
dispute was the motive to kill Ganesh Sadre.
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
44 The learned defence counsels vehemently submitted that
deceased was a private money lender and real estate agent had
many enemies. As such, the possibility cannot be ruled out to kill the
deceased by someone else in the background of his private money
lending business and real estate business. We are not impressed by
such argument advanced by the learned defence counsels. There is
absolutely no evidence to support such defence. There is no iota of
evidence to show that deceased was lastly seen in the company of
some other persons, who had taken private loan from the deceased
and on the next day, the dead body of Ganesh Sadre was found. It is
difficult to accept such defence in the absence of any iota of evidence.
Though onus is not much higher on the accused, but there must be
some evidence, which may focus on the defence and probability of
eliminating the deceased at the hands of some other persons
because of private money lending business. We do not find any merit
in that line of argument advanced by the learned counsels for the
respective accused. Money dispute between deceased and the family
of accused No.1 is found to be the motive in eliminating the deceased.
The family of accused No.1 was felt insulted and humiliated due to
gathering of deceased and his mother at his house and insistence of
repayment of hand loan in presence of large gathering of his relatives,
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
which ultimately prompted the family of accused No.1 to plan about
killing of Ganesh Sadre.
EVIDENCE ON STORY OF LAST SEEN TOGETHER
45 According to the prosecution case, accused Nos.4 to 6
(preset appellants) were lastly seen in the night of 22 nd April, 2012 in
the company of deceased Ganesh Sadre at the pan shop and Hotel
Anjali Beer Bar and Restaurant situated in the area of Yeshwantrao
Chavan Square to SRTRMCH Ambajogai.
46 In order to prove the story of last seen together, the
prosecution machinery has pressed into service the evidence of
following prosecution witnesses :
i) PW-5 Manik s/o Ganpati Dahiphale ;
ii) PW-6 Shaikh Imran Shaikh Nijamoddin ;
iii) PW-7 Prakash s/o Kashinath Chintamani ;
iv) PW-9 Mahadeo Vishwnath Valse ;
v) PW-12 Balaji s/o Shankarappa Kale ;
vi) PW-14 Dhammpal s/o Shivaji Sarwade ; and
vii) PW-15 Sanjay s/o Shriram Pawar.
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
47 On going through the testimony of PW-5 Manik Ganpati
Dahiphale, it is evident that he is serving in the SRTRMCH Ambajogai
in the OPD on the post of clerk. On 22 nd April, 2012, he was on duty
in the OPD section. His evidence further disclosed that on 22 nd April,
2012 about 08:30 p.m. Ganesh Sadre and accused Sunil Patil had
been to the OPD. Both of them were in drunken condition. They went
away about 08:45 p.m. on motorcycle.
48 PW-6 Shaikh Imran Shaikh Nijamoddin is running his pan
shop in the medical campus at Ambajogai. It is situated at the main
entrance of the Medical College and Hospital, Ambajogai. He is well
acquainted with deceased Ganesh Sadre and all the accused since
they were his regular customers. He has further disclosed that on
22nd April, 2012 at about 11:15 to 11:30 p.m., deceased Ganesh
Sadre, accused No.5/Sanjay Kakade, accused No.4/Swapnil Kamble
and accused No.6/Mangesh Gund had been to his pan shop when he
was about to close his shop. They purchased Gold Flake Cigarette
and Gutka. All of them went towards Chanai road. Two went on
motorcycle and remaining two went on foot. The evidence of PW-6
Shaikh Imran is found to be trustworthy and reliable. It is not any way
shaken by way of cross-examination. He is the important witness,
who had seen deceased Ganesh Sadre in the company of accused
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
Nos.4 to 6 on 22nd April, 2012 in the night about 11:30 p.m. when they
left towards Chanai road.
49 Now coming to PW-7 Prakash Kashinath Chintamani, who
is also serving in the SRTRMCH Ambajogai. His brother Macchindrao
runs a pan shop, which is situated at Yeshwantrao Chavan Square,
Ambajogai. His evidence further disclosed that one day before the
incident during night hours he was standing near pan shop of his
brother when accused Mangesh Gund, son of Kamble (Swapnil
Kamble) and one more (Sanjay Kakade) had been to the pan shop of
his brother. They purchased Pan, Tobacco, etc. and went towards
medical college. He had lastly seen the above name accused
persons at Yeshwantrao Chavan Square, Ambajogai.
50 Now coming to PW-9 Mahadeo Vishwnath Valse. His
evidence also disclosed about money transaction between deceased
Ganesh Sadre and accused No.1/Nandkumar and quarrel on account
of repayment. His evidence further disclosed about real estate
business of deceased and plots to be purchased situated at Pokhari
road. Next part of evidence of PW-9 Mahadeo Valse disclosed that
on 22nd April, 2012 deceased Ganesh Sadre had called him at Anjali
hotel. He noticed that deceased Ganesh Sadre and accused Sunil
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
Patil were in the hotel and they had drinks. This witness Mahadeo
Valse also joined them. There was discussion regarding transaction
of five plots and Ganesh Sadre paid Rs.2,000/- as an earnest money
to Mr. Nikam towards purchase of five plots. They had meals and
they left the hotel about 05:00 to 05:30 p.m. He has noticed
deceased in the company of accused Sunil Patil on 22 nd April, 2012
from morning to evening.
51 The prosecution machinery has also examined Manager
of Hotel Anjali Beer Bar as PW-12 Balaji Shankarappa Kale. His
evidence disclosed that deceased Ganesh Sadre was regular
customer of hotel Anjali and he had credit account. On 22 nd April,
2012, deceased had been to hotel Anjali with his two friends about
02:00 to 02:30 p.m. and after taking beer, they left about 03:30 p.m.
His evidence further disclosed that deceased Ganesh Sadre again
came back to the hotel with 4-5 friends. They had drinks. After taking
meals, they left the hotel about 07:30 to 08:00 p.m. His evidence
further disclosed that deceased Ganesh Sadre again came back to
hotel with two friends about 9:00 to 9:15 p.m. and had drinks. They
left the hotel about 10:45 p.m. The testimony of Manager of Hotel
Anjali Beer Bar gave clear picture that deceased Ganesh Sadre had
visited Hotel Anjali Beer Bar on multiple times and had drinks. The
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
deceased and his friends left the hotel in the night about 10:45 p.m. It
is shown by the prosecution that the deceased had drinks on that day
with his friends.
52 Now coming to PW-14 Dhammpal Shivaji Sarwade. His
father is serving in SRTRMCH Ambajogai. He is well acquainted with
deceased Ganesh Sadre and the accused persons. His evidence
disclosed that on 22nd April, 2012, deceased Ganesh Sadre alongwith
Dhammpal Sarwade and Manoj Gaikwad had been to hotel Anjali
about 06:30 to 07:00 p.m. Deceased Ganesh Sadre, one Burge,
accused Sunil Patil and one more friend were in the hotel. Dhammpal
Sarwade occupied the table with his friends beside deceased.
Dhammpal Sarwade had seen accused Swapnil Kamble, Mangesh
Gund and Sanjay Kakade, who was sitting beside the table.
Deceased Ganesh Sadre and others left the hotel about 08:30 p.m.
Thus, the evidence of PW-14 Dhammpal Sarwade also focuses that
the deceased was in the company of accused Nos.4 to 6 and they
had drinks.
53 PW-15 Sanjay Shriram Pawar is another witness on the
story of last seen together. On going through the testimony of PW-15
Sanjay Pawar, it is revealed that he is residing in the medical campus
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
and the quarter of deceased Ganesh Sadre was close to him. He was
also aware about the money transaction between deceased Ganesh
Sadre and accused No.1/Nandkumar and quarrel on account of
money dispute on 19th April, 2012. He has further disclosed that on
22nd April, 2012 about 11:15 to 11:30 p.m. he was at medical shop.
He had parked his motorcycle in front of the hotel. He was taking out
his motorcycle when he noticed that accused Swapnil Kamble and
accused Mangesh Gund were proceeding to Vaidhye Chowk on foot
and deceased Ganesh Sadre and accused Sanjay Kakade also went
towards the same direction. Therefore, it is clear that PW-15 Sanjay
Pawar is the last witness, who had seen deceased Ganesh Sadre in
the company of accused Nos.4 to 6. The deceased was alive till
01:30 p.m. when PW-15 Sanjay Pawar had seen him in the company
of these three accused persons.
54 On careful scrutiny of above stock evidence of
prosecution witnesses on the point of last seen together, it is very
much clear that their evidence is corroborating each other. Their
evidence is consistent on the point of last seen. All of them have
categorically stated that they had seen the deceased in the company
of accused Nos.4 to 6 while roaming in the medical campus to
Yeshwantrao Chavan Square, Ambajogai. The learned Additional
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
Sessions Judge has appreciated the evidence of above stock
witnesses very carefully and minutely and after exercise of scanning,
accepted their evidence. The learned Trial Judge has also considered
about the omissions and contradictions produced on record by the
defence counsels during their cross-examination and found that those
are not any way fatal to the prosecution. The evidence of above
referred prosecution witnesses cannot be discarded on account of
simple contradictions and omissions. We do not see any error on the
part of the learned Trial Judge while accepting the evidence of above
referred stock of witnesses. The prosecution has been successful in
proving with the help of evidence of above referred stock of witnesses
that the deceased was lastly seen roaming in the company of accused
Nos.4 to 6. The deceased was in the company of accused Nos.4 to 6
till 11:30 p.m. of 22nd April, 2012. It is very important to note that the
deceased was lastly seen in the company of accused Nos.4 to 6 on
22nd April, 2012 about 11:30 p.m. and on the very next day i.e. on 23rd
April, 2012 in the morning about 07:00 a.m. the dead body of Ganesh
Sadre was found near Girwalkar Engineering College, Ambajogai, in
an isolated place. The time gap of noticing Ganesh Sadre alive and
noticing his dead body is small. It can be said to be gap of six hours
approximately when the deceased was last seen while roaming in the
company of accused Nos.4 to 6.
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
55 Having regard to the appreciation of evidence of above
referred stock of prosecution witnesses, we do not find any difficulty in
arriving at conclusion that the prosecution agency has been
successful in proving the story of last seen together. The learned Trial
Judge has rightly accepted the story of last seen together projected by
the prosecution agency. We endorse the same.
56 Now coming to one more incriminating circumstance
appearing against the accused. According to the prosecution story,
accused Nos.4 to 6 namely (Swapnil Kamble, Sanjay Kakade and
Mangesh Gund) after committing the crime proceeded to Parli
Vaijnath by motorcycle. They parked their motorcycle at Deshmukh
Petrol Pump, Parli Vaijnath. They boarded train and reached at Udgir.
They boarded bus from Udgir and reached to Nanded and stayed in
one lodge namely Ashirwad Lodge on 23rd April, 2012. According to
the prosecution, the conduct of the accused and their fleeing away
from the place and taking shelter in one lodge, speaks about their
involvement in the commission of crime. The prosecution machinery
has taken help of Manager of Ashirwad Lodge examined as PW-11
Sambhaji Sopan Bhise vide Exhibit-134. His evidence disclosed that
at the relevant point of time he was working as Manager of Ashirwad
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
Lodge, Vajirabad, Nanded. His evidence further disclosed that
accused Swapnil Kamble arrived at hotel Ashirwad on 23rd April, 2012
about 08:30 a.m. One person was accompanied with Swapnil
Kamble. Swapnil Kamble filled the register of hotel Ashirwad as well
as name of another person (Sanjay Kakade). They stayed in Room
No.202 and also paid Rs.450/-. One of them signed the register. On
the very day, they vacated the room in the evening. The extract of
Ashirwad Lodge is also duly proved at the hands of PW-11 Sambhaji
Bhise and the same is vide Exhibit-135. On going through the extract
of Ashirwad Lodge vide Exhibit-135, we have noticed the entry of
accused Swapnil Kamble and Sanjay Kakade for 23rd April, 2012 at
serial No.2. Their arrival time is mentioned as 08:40 a.m. Their
address is from Ambajogai. The evidence of Manager of Ashirwad
Lodge was attempted to be shaken mainly on the ground that the
lodge register is in printed format. The name of "Ashirwad" is
mentioned in handwriting. The learned Trial Judge has considered
this aspect and rightly discarded the objection raised by the defence
side. On careful scrutiny of evidence of PW-11 Sambhaji Bhise,
Manager of Ashirwad Lodge, we found that his evidence is trustworthy
and reliable and supported by documentary evidence vide Exhibit-
135. Thus, the prosecution has further travelled its journey by
establishing that accused Nos.4 and 5 had taken shelter in Ashirwad
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
Lodge at Nanded on 23rd April, 2012 i.e. soon after committing the
crime.
57 Further it is evident from the testimony of police officer,
API Baliram Rakhamaji Gitte (PW-17) that accused Nos.4 and 5 had
surrendered themselves before Gangakhed Police on 24th April, 2012
and they were brought back by Ambajogai Police through PSI Satish
Bansode (PW-16). The report submitted by PSI Bansode is also
placed on record vide Exhibit-179 to that effect. Letter given by Police
Officer Gangakhed Police Station is also produced vide Exhibit-178.
The entry of station diary is also produced to corroborate such fact
vide Exhibit-180. This incriminating circumstance is also duly proved
by the prosecution agency.
58 Another incriminating evidence is about recovery of blood
stained clothes of accused No.5/Sanjay Kakade. The prosecution
machinery has examined one of the Panch witnesses vide PW-3
Rajendrakumar Vithal More vide Exhibit-113. On going through the
evidence of PW-3 Rajendrakumar More, it is revealed that police
officer has seized clothes of accused Sanjay Kakade, which were
stained with blood. It was red colour T-shirt and blue colour pant,
which were seized by the police officer while making his arrest. The
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
seizure Panchanama is produced to that effect vide Exhibit-114. This
incriminating evidence is also connecting and corroborating about the
role played by accused Sanjay Kakade.
59 Now coming to recovery of weapon used in the
commission of the crime. On going through the evidence of PSI
Satish Damodhar Bansode (PW-16) and Pablik Rambhau Maske
(PW-8), it is revealed that accused No.4/Swapnil Kamble gave
disclosure statement under Section 27 of the Evidence Act before
Police Officer PSI Bansode in presence of Panch witnesses. He
disclosed his intention to show the place where ha had concealed the
weapon. Accordingly, police party, Panch witnesses and
accused/Swapnil Kamble reached to the place. Accused/Swapnil
Kamble lead police party and Panch witnesses and reached at the
gate of I.T.I college. Accused/Swapnil Kamble pointed out the place
i.e. dunghill near the gate of I.T.I. college where from he took out the
sickle (Sura) and produced before the police. The police party seized
the weapon under the seizure Panchanama vide Exhibit-128. The
learned Trial Judge has appreciated the evidence of PSI Bansode and
Panch witness PW-8 Pablik Maske in a careful manner and rightly
accepted their evidence. We do not find any error on the part of the
learned Trial Judge while accepting the evidence on the point of
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
disclosure statement given by accused No.4/Swapnil Kamble and
recovery of weapon at his instance.
60 It was attempted by the defence side to disbelieve the
exercise of recovery of weapon on the ground that it was a recovery
of weapon from open place. The learned Trial Judge has considered
this aspect and recorded the reasons as to how that recovery is
reliable. The weapon was concealed in a dunghill and it was not lying
in an open place. We, therefore, do not find any merit in the argument
advanced by the learned defence counsels.
61 The investigation officer has also recovered the
motorcycle used by these accused while fleeing away to Parli
Vaijnath. That link is duly proved as to how the accused fled away by
using the motorcycle. We have also gone through the CA reports,
which are placed on record by the prosecution machinery vide
Exhibits 202 to 209. Vide seizure Panchanama Exhibit-102, the
clothes of the decease came to be seized after postmortem
examination. The clothes of Accused No.6/Mangesh Gund came to
be seized under the seizure Panchanama vide Exhibit-112, whereas
the clothes of accused No.5/Sanjay Kakade came to be seized under
seizure Panchanama vide Exhibit-114. In the context of above said
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
seizure Panchanamas, we have also gone through the CA reports
pertaining to Muddemal articles sent to chemical analyzer for analysis
and report. On perusing the CA report Exhibit-203, it is revealed that
human blood stains were found on the weapon dragger (sickle).
Further it is evident from the result of analysis of the clothes of
Accused No.5/Sanjay Kakade that human blood stains were also
detected on his clothes. CA report vide Exhibit-202 pertains to
analysis of earth taken from the spot where accused No.5 has burnt
his clothes. The CA report vide Exhibit-202 indicates that burnt pieces
of clothes wrapped in cloth tallies with the earth Exhibit-18 at the time
of chemical analysis.
62 Above referred CA reports are against accused Nos.4 to
6. Mr. Dhorde, learned Senior Counsel vehemently submitted that
mere recovery of blood stains clothes of accused No.5 after three to
four days of the murder, cannot be believed. It is difficult to accept
that even after committing crime like murder, accused No.5 was
moving with the same blood stained clothes. Mr. Dhorde, learned
Senior Counsel has placed reliance in the case of Khalil Khan Vs.
State of M.P. (supra). Mr. Dhorde, learned Senior Counsel also
submitted that simple recovery of human blood on the clothes cannot
be said to be conclusive proof. It is held by the Honourable Supreme
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
Court in the case of Mustkeem alias Sirajudeen Vs. State of
Rajasthan (supra) that Serologist's report cannot be ipso facto
conclude guilt of appellant.
63 As discussed earlier, where the case rests squarely on
circumstantial evidence the inference of guilt can be justified only
when all the incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the guilt of any
other person. No doubt, it is true that conviction can be based solely
on circumstantial evidence but it should be decided on touchstone of
law relating to circumstantial evidence, which has been well settled by
the Honourable Supreme Court. In the case at hand, the blood
stained clothes of accused No.5/Sanjay Kakade were seized by the
police officer under the Panchanama vide Exhibit-114 which has been
duly proved. His clothes were sent to CA for analysis and report and
CA report vide Exhibit-203 speaks that human blood was found on the
clothes of accused No.5/Sanjay Kakade. The weapon seized in this
case, which is allegedly used in the commission of the crime, was
also sent to CA for analysis and human blood was found on the blade
of that weapon. These are the incriminating evidence against the
above set of accused. According to the recent view of the Honourable
Supreme Court in the case of Nana Keshav Lagad Vs. State of
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
Maharashtra, reported in, AIR 2013 Supreme Court 3510, the
accused has to explain how his clothes get stained with blood.
Failure to explain amounts to incriminating circumstance against the
accused. No explanation is coming either from accused No.5 or
Accused Nos.4 and 6 about the same. All of them were lastly seen in
the company of the deceased. They have to explain about the blood
stains found on the clothes of accused No.5 when it is supported by
other incriminating evidence. In absence of any explanation from
them, it must be accepted as incriminating circumstance against
accused Nos.4 to 6.
64 The prosecution agency has also examined two police
officers viz PW-16 PSI Satish Bansode vide Exhibit-177 and PW-17
API Baliram Gitte vide Exhibit-193. They have stated about their
procedural part of investigation. PW-16 PSI Bansode has stated
about recovery of weapon at the instance of accused No.4/Swapnil
Kamble under Section 27 of the Evidence Act in presence of Panch
witnesses, whereas PW-17 API Gitte has stated about inquest
Panchanama, postmortem examination, arrest of two accused
persons Sanjay Kakade and Swapnil Kamble and seizure of clothes
of Sanjay Kakade. It is that piece of evidence which is corroborating
the evidence of above stock prosecution witnesses discussed
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
hereinbefore.
65 Having regard to the appreciation of evidence of above
referred stock of witnesses, we have arrived at the following
conclusion:
(i) The prosecution has proved the motive of accused
Nos.4 to 6 in eliminating deceased Ganesh Sadre.
Hand loan and repayment thereof at the hands of
accused No.1/Nandkumar was prompted to the
accused to prepare a plan of elimination of deceased ;
(ii) It is proved by the prosecution that accused No.1 had
repaid hand loan of Rs.1,00,000/- to the deceased and
Rs.20,000/- was remained to be paid ;
(iii) There was brawl between the deceased and the family
of accused No.1 on 19th April, 2012 ;
(iv) The prosecution has proved that incident of killing of
Ganesh Sadre had taken place within three days of
threats given by the sons of accused No.1/
Nandkumar Kamble ;
(v) The prosecution has been successful in proving that
the deceased was lastly seen on 22nd April, 2012 about
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
11:30 p.m. in the company of accused Nos.4 to 6 in
the area of SRTRMCH Ambajogai to Yeshwantrao
Chavan Square, Ambajogai ;
(vi) The dead body of Ganesh Sadre was found on the
very next day i.e. on 23rd April, 2012 about 07:00 a.m.
The time gap of lastly seen the deceased in the
company of accused Nos.4 to 6 is found to be small
and approximately six hours, which unerringly pointing
towards guilt of accused Nos.4 to 6 ;
(vii) Ganesh Sadre met with homicidal death caused by
sharp weapon, which is recovered at the instance of
accused No.4/Swapnil Kamble ;
(viii) The prosecution has been successful in proving that
after the incident accused Nos.4 to 6 fled away. They
first went to Parli Vaijnath and boarded train and
reached to Udgir and then went to Nanded ;
(ix) Accused Nos.4 and 5 (Swapnil Kamble and Sanjay
Kakade) had stayed in Ashirwad Lodge at Nanded on
23rd April, 2012 ; and
(x) On the very next day i.e. 24th April, 2012, accused
Nos.4 and 5 surrendered themselves before
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
Gangakhed police officials.
(xi) Blood stains were found on the clothes of accused
No.5/Sanjay Kakade.
66 Thus, the prosecution agency has been successful in
establishing the chain of circumstantial evidence. The prosecution
has succeeded in proving that it is none else, but accused Nos.4 to 6
had killed deceased Ganesh Sadre on account of money dispute. No
one else had committed the crime. The learned Additional Sessions
Judge has appreciated the evidence of prosecution witnesses in a
proper manner and rightly held accused Nos.4 to 6 guilty for the
offence punishable under Sections 302 read with Section 34 of the
Indian Penal Code and accused No.4 alone guilty under Section 201
of the Indian Penal Code. We do not see any error on the part of the
learned Additional Sessions Judge while recording findings against
present set of accused. The findings recorded by the learned Trial
Judge are found proper and correct based upon evidence. There is
no need to disturb the conviction awarded by the learned Trial Judge
against present set of accused Nos.4 to 6. The conviction and
sentence awarded by the learned Additional Sessions Judge needs to
be upheld in the appeals. No need of any sort of interference. The
Cri.Appeals 563 n 572 of 2014 n 526 of 2015.odt
appeals must fail. In the result, we pass the following order:
ORDER
I. Criminal Appeal No.563 of 2014 preferred by
appellant / Mangesh Pandurang Gund (Accused No.6),
Criminal Appeal No. 572 of 2014 preferred by
appellant / Sanjay Dinkar Kakade (Accused No.5) and
Criminal Appeal No. 526 of 2015 preferred by
appellant / Swapnil Nandkumar Kamble (Accused
No.4), are hereby dismissed.
II. The judgment and order of conviction and sentence
passed by the learned Additional Sessions Judge,
Ambajogai against accused Nos.4 to 6 in Sessions
Case No.54 of 2012, is hereby confirmed.
III. The appeals are accordingly disposed of.
IV. Criminal applications, if any, also stand disposed of.
V. Record and proceeding be sent to the Trial Court.
[ SHRIKANT D. KULKARNI, J. ] [ V. K. JADHAV, J. ]
nga
