Citation : 2022 Latest Caselaw 3473 Bom
Judgement Date : 30 March, 2022
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1046 OF 2013
Yogesh Ramdas More ... Appellant
Versus
The State of Maharashtra ... Respondent
.....
WITH
CRIMINAL APPEAL NO.569 OF 2014
Vaishali Ishambar Maharnavar ... Appellant
Versus
The State of Maharashtra ... Respondent
.....
WITH
CRIMINAL APPEAL NO.831 OF 2013
Jeetendra Dilip Patil ... Appellant
Versus
The State of Maharashtra ... Respondent
....
Mr. D.G. Khamkar, Advocate for the Appellants in Cri.Appeal
Nos.1046/2013 and 831/2013.
Mr. Abhaykumar Apte, Advocate for the Appellant in Cri. Appeal
No.569/2014.
Mr.S.S. Hulke, APP, for the Respondent-State.
....
CORAM : S. S. SHINDE AND
SARANG V. KOTWAL, JJ.
RESERVED ON : 16th MARCH, 2022
PRONOUNCED ON : 30th MARCH, 2022
Deshmane(PS) 1 / 26
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JUDGMENT : [PER SARANG V. KOTWAL, J.]
1 All these Appeals are decided by this common judgment
as they arise out of the same case challenging the same impugned
judgment and order of the trial Court. The Appellant in Criminal
Appeal No.569/2013 Vaishali Ishambar Maharnavar was the
original accused No.1, the Appellant in Criminal Appeal
No.1046/2013 Yogesh Ramdas More was the original accused No.2
and the Appellant in Criminal Appeal No.831/2013 Jeetendra Dilip
Patil was the original accused No.3, in Sessions Case No.229/2012
before the Additional Sessions Judge at Pune. For the sake of
convenience, the Appellants are referred to as per their original
status in the trial Court.
2 By the impugned judgment and order dated 8.7.2013
passed by the Additional Sessions Judge, Pune in Sessions Case
No.229/2012. The Appellants were convicted and sentenced as
follows :
i. All the accused-Appellants were convicted for the offence
punishable under Section 120-B read with 302 of the Indian
Penal Code and they were sentenced to suffer rigorous
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imprisonment for life and to pay fine of Rs.500/- each, in
default to suffer rigorous imprisonment for six months.
ii. All of them were convicted for the offence punishable under
Section 302 read with 120-B of IPC and they were sentenced to
suffer rigorous imprisonment for life and to pay fine of
Rs.500/- each, in default to suffer rigorous imprisonment for
six months.
iii. All of them were convicted for the offence punishable under
Section 201 read with 34 of IPC and they were sentenced to
suffer rigorous imprisonment for five years and to pay fine of
Rs.250/- each, in default to suffer rigorous imprisonment for
three months.
iv. All the sentences were directed to run concurrently.
v. They were however acquitted from the offence punishable
under Sections 328, 404 read with 120-B and 34 of IPC. They
were also acquitted from the offence punishable under Section
37(1) read with 135 of the Maharashtra Police Act.
3 The prosecution story, in brief, is that accused No.1 was
cousin of the deceased Prabhakar Devkate. He had given financial
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assistance to accused No.1 and he was demanding back his money.
She was not returning the money. As per the prosecution case, on
13.11.2011, all the three accused first took the deceased to a hotel
known as "Raigad Inn" situate near Tamhini Ghat. There they
consumed alcohol and ate food. The deceased was given alcohol
mixed with some tablets. After that he was taken to some
secluded place. The accused committed his murder by assaulting
him with an iron fighter on his testis and neck. His dead body was
thrown in Vadmukhwadi area on Pune-Alandi Road. On the next
day morning, the body was discovered. The offence was registered
at Vishrantwadi Police Station vide C.R. No.268/2011. The
investigation was carried out. The accused were arrested and at the
conclusion of the investigation, charge-sheet was filed. The case
was committed to the Court of Session.
4 During trial, the prosecution examined twenty-four
witnesses. The defence of the accused was of total denial. At the
conclusion of the trial, they were convicted and sentenced, as
mentioned earlier.
5 Heard Shri D.G. Khamkar, learned counsel for the
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Appellants in Criiminal Appeal Nos.1046/2013 and 831/2013, Shri
Abhaykumar Apte, learned counsel for the Appellant in Criminal
Appeal No.569/2014 and Shri S.S. Hulke, APP, for the State.
6 Many of the witnesses were pancha witnesses for various
panchnamas, viz., seizure of clothes of the deceased, those of the
accused, seizure of register of a lodge where the accused Nos.1 and
2 had visited on some occasions, recovery of diary and cheques
showing financial transactions etc..
7 PW-18 Ganesh Pawar and PW-20 Datta Angre were
examined to produce the call data records.
8 The important witnesses in this case are:
• PW-3 Harishchandra Devkate, who was brother of the deceased
and who had lodged the complaint about his missing since
13.11.2011.
• PW-12 Santosh Kanade was the most important witness, who
was a waiter at the hotel "Raigad Inn". He had seen the accused
and the deceased together in the evening on 13.11.2011.
• PW-24 Ranjit Bhosle was the Tahsildar, who had conducted the
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test identification parade to enable PW-12 Santosh Kanade to
identify the accused.
• PW-17 Tarabai Devkate was the mother of accused No.1. She did
not support the prosecution case.
• The other witnesses were the police officers who had conducted
the investigation and the medical officers.
9 Learned counsel for the Appellants submitted that the
case is based purely on circumstantial evidence. The main
circumstance against the Appellants is about the 'last-seen together'
theory. This evidence, in this particular case, is extremely weak as
it is developed only through the evidence of PW-12. He was not a
natural witness. His statement was recorded belatedly and
identification by him is not proper. There was no proximity of the
place where the dead body was found and the hotel at which
PW-12 had seen the Appellants together with the deceased. The
motive is not established. The financial transactions between
accused No.1 and the deceased are not established.
10 They further submitted that, the relationship between
accused No.1 and accused No.2 is not material in the present case.
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That at the most will show their close association. It has nothing to
do with the main offence. The cheques and the diary are not
properly proved. Accused No.1 was the cousin of the deceased and
due to some family dispute, she is falsely implicated. Accused No.2
was knowing her and, therefore, he is also roped in, whereas
accused No.3 has no connection with any of the parties.
11 On the other hand, learned APP submitted that the
circumstance of 'last seen together' is properly proved by the
prosecution. On the next day of the incident, accused No.2 had
taken the same car for washing. This is an incriminating
circumstance. The motive is proved. There is no reason to
disbelieve PW-12. The procedure for test identification parade is
properly established. According to learned APP, learned trial Judge
has properly appreciated this evidence and, therefore, the Appeals
may not be allowed.
12 We have considered these submissions. We have perused
the evidence with the assistance of all learned Counsel.
13 PW-13 Dr. Ajay Tavde had conducted the postmortem
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examination between 4.00 p.m. to 5.00 p.m. on 14.11.2011. There
were six injuries in the nature of contusions and abrasions. The
main injuries were on the neck and on the testis. The internal
injury was in the form of haematoma over strap muscles of neck.
On cut section of left testis, it was found to be contused. The cause
of death was mentioned as "death due to blunt injuries over testis
and neck". He opined that the injury on the neck was possible by
strangulation with odhani and the injury on the testis was possible
by a fighter, which was an iron instrument which could be worn on
the fingers. He also opined that the time of death was between 12
hours to 24 hours before conducting the postmortem examination,
meaning thereby it could be any time between 4.00 p.m. on
13.11.2011 to 4.00 a.m. on 14.11.2011.
In the cross-examination, he has stated that if the person
had consumed liquor, it is not necessary that the liquor would be
seen in the stomach. The viscera was preserved for analysis. He
also admitted that no ligature marks were found on the neck.
14 The nature of the injuries mentioned in the postmortem
shows that it was a homicidal death. The dead body was dumped
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on a secluded spot. The question is whether the accused have
committed this crime. To answer this question, the prosecution has
examined many witnesses, as mentioned earlier.
15 PW-1 PSI Gajendra Sakhare was attached to Vishrantwadi
police station. At about 8.15 a.m. on 14.11.2011, he received the
information that a dead body was found near the road at
Vadmukhwadi Amba Bus Stop on the Pune-Alandi Road. He went
there and carried out the preliminary investigation. The spot
panchnama was carried out. The dead body was sent to Sassoon
Hospital. He lodged his FIR about finding of a dead body after the
postmortem notes were received. The FIR was lodged against the
unknown persons.
16 PW-2 Police Havaldhar Raghu Kakde had assisted PW-1
PSI Sakhare, in the first part of the investigation. He has stated
that on 16.11.2011 Harishchandra Devkate, who was brother of the
deceased, identified the dead body from the photograph. He also
identified the dead body in the Sassoon Hospital.
17 PW-3 Harishchandra Devakate is the brother of the
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deceased Prabhakar. He was residing with his own family, parents,
sister and the deceased Prabhakar. 13.11.2011 was a Sunday, and
Prabhakar was at home. This witness had gone to Nashik for
delivery of goods by a tempo. On 15.11.2011 his cousin Vijay
Thombre informed him telephonically that Prabhakar had left the
house on 13.11.2011 and had not returned. PW-3 then came home
and lodged a complaint regarding Prabhakar's missing at Mohan
Nagar Police Chowky. He, then, has deposed about his identifying
the dead body. He has further deposed that he had told the police
that Prabhakar had given loan of Rs.3 Lakhs to their cousin accused
No.1 Vaishali. Prabhakar was demanding that money back. He also
gave mobile phone number of accused No.1.
In the cross-examination he could not give details about
when Prabhakar had given money to accused No.1. According to
him, it could be in the year 2009 to 2010.
18 PW-4 Premlal Pardeshi was a pancha for inquest
panchnama and for seizure of the clothes of the deceased. He was
also a pancha for the seizure of the clothes of accused Nos.2 and 3.
The clothes of accused Nos.2 and 3 were seized on 18.11.2011.
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They were produced by the parents of accused Nos.2 and 3.
19 PW-5 Ashish Khutwad was a pancha for arrest and
personal search of all the accused on 17.11.2011.
20 PW-6 Aaftab Khan was a pancha, in whose presence,
accused No.2 had taken the police to various places where they had
allegedly visited during commission of this offence. However,
nothing in particular was discovered pursuant to his statement.
However, pointing out most of these spots is not material because
nothing was recovered or discovered from there. The material
aspect about this panchnama is regarding recovery of the weapon
i.e. iron fighter, deceased's wallet and pointing out the place where
the car was washed. The weapon was found at his instance near
Morevasti Chikhali, Pune. The iron fighter was taken out from the
bushes near one house named 'Viram Niwas". Then at his instance
wallet of the deceased was recovered from the open garbage near
Sharad Nagar Slum. In that wallet photos of the deceased, his
visiting card etc. were found. Thereafter he showed the service
station where the car was washed.
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As far as this evidence is concerned, the incriminating
articles i.e. fighter and the wallet of the deceased were recovered
from the open spaces which were accessible to all. Therefore, it
cannot be held to be a strong circumstance against accused No.2.
There is a separate evidence of the witness PW-14 regarding
washing of the car.
21 PW-7 Rakhmaji Huchhe was a pancha, in whose
presence, the car of the accused No.1 was recovered at her
instance. She had also shown the washing centre where the car was
washed.
22 PW-14 Appa Limbore had washed the car on 14.11.2011
at about 10.00 a.m. at his washing centre. His deposition does not
show any incriminating signs in the car.
23 PW-8 Vijay Gujar was a pancha in whose presence the
register of 'Sitai Lodge" was seized. The prosecution wanted to
bring that register on record to show that accused Nos.1 and 2 used
to visit that lodge indicating that they were in a serious
relationship. However, this evidence is not of much importance in
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the context of the case as assuming that they were in a relationship,
that had nothing to do with the offence of murder of the deceased.
24 PW-9 Ashish Mahipal was a pancha in whose presence
Rs.8,000/- were seized from the house of the accused No.3. The
prosecution wanted to show that this money was paid to accused
No.3 as his reward for committing the offence. However, finding of
cash of Rs.8,000/- can hardly be said to be an incriminating
circumstance connecting him unerringly with the crime in question.
25 PW-10 Namdev Kunjir was a pancha in whose presence,
PW-3 Harishchandra produced a diary and some chques with
accused No.1's name on them. Those articles were produced at the
police station. However, there is no further linking evidence
regarding these articles. The handwriting on those articles is not
proved through an independent evidence. The articles were
produced by PW-3 directly at the police station. The diary also
mentions other names with different amounts against those names.
The cheques do bear the name of accused No.1 and there were
signatures on them, but, there is no further evidence as to why
those cheques were not deposited in the bank and whether they
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were actually signed by accused No.1 or that they were actually
connected with her bank account. The prosecution has not led any
further evidence in that behalf.
26 PW-11 Shridhar Maroli was a Manager of "Sitai Lodge".
As mentioned earlier, that evidence is not material.
27 PW-15 Dr. Amol Borhade had given prescription for
'Restyl tables', used for sleeping; on 12.11.2011 to accused No.2.
The prosecution wanted to prove that those pills were mixed with
alcohol and given to the deceased. However, again there is nothing
to show that the viscera of the deceased showed presence of those
tablets.
According to the prosecution case, PW-16 Nandram
Pansare had sold three tablets of 'Restyl 0.5' to accused No.2 on
12.11.2011. There is no further evidence linking those tablets with
the deceased. PW-16 was not knowing accused No.2 and no test
identification parade was held to enable him to identify accused
No.2. Therefore, this evidence of purchase of tablets and their use
in the offence is not proved beyond reasonable doubt by the
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prosecution.
28 PW-17 Tarabai Devkate was the mother of accused No.1
and she had not supported the prosecution case.
29 PW-18 Ganesh Pawar and PW-20 Datta Angre were the
Nodal Officers, who had produced some records about the phone
call details. However, learned Judge has not relied on the evidence
in respect of the phone call details. Learned Judge has held that in
the absence of requisite certificate, the electronic record was
inadmissible and the evidence showed that the addresses of the
towers kept on changing and this evidence was not held to be
incriminating against the accused more particularly since the record
and addresses of the tower location were undated.
30 According to the prosecution case, as stated by PW-3
Harishchandra Devkate, the mobile phone number of the deceased
was '9822832108' and the mobile phone number used by accused
No.1, which actually stood in the name of her mother, was
'8805222775'.
31 PW-19 Pushpa Pulwal, was a pancha for seizure of the
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clothes of accused No.1, which were produced by her mother.
32 PW-22 Sanjay Kharote was a Police Naik. He has deposed
that the mobile phone number '8805222775' belonged to Tarabai
and it was used by her daughter i.e. accused No.1. However, this
information was given to PSI Kale.
33 PW-23 PI Pandurang Gofane attached to Vishrantwadi
police station had conducted the investigation. He has deposed
about the steps he had taken during investigation which are
reflected in the evidence of deposition of various witnesses and in
various panchnamas. He has deposed that the accused were in
police custody remand from 17.11.2011 to 28.11.2011.
34 PW-24 Ranjit Bhosale was the Naib Tahsildar, who had
conducted the test identification parade in which PW-12 had
identified the accused.
35 PW-12 Santosh Kanade is the main witness in this case.
He was a waiter at 'Raigad Inn' hotel, where all the accused had
come with the deceased on the previous evening as per the
prosecution case.
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36 Besides this oral evidence, the prosecution has produced
C.A. reports on record. No blood was detected in the nail clippings
of the deceased. No blood was detected on the clothes of the
accused and the deceased. The blood group of the accused could
not be determined and the results were inconclusive. In the car
neither blood nor saliva nor hair nor tissue matter was detected.
The viscera did not reveal any poison. Thus, the prosecution case is
based only on the following circumstances :
i. Motive; ii. Recovery; & iii. Last seen together theory. 37 As far as motive is concerned, the prosecution has relied
on the evidence of PW-3 Harishchandra Devkate to show that there
was some financial transaction between the deceased and the
accused No.1. However, the diary and the cheques produced before
the police by PW-3 did not conclusively prove the handwriting on
those diary and cheques. There is nothing to show that in the past
there was any grievance made by either the deceased or the
accused No.1 against each other. In the diary of the deceased,
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there is mention of other persons to whom he had given money
besides the accused No.1. Therefore, the motive is not sufficiently
established by the prosecution.
38 As mentioned earlier, the recovery of the iron fighter and
the wallet of the deceased was from open spaces, which were
accessible to all. The postmortem notes do not show any external
injury caused by that iron fighter. Though there was internal injury
to left testis, but, there are no indications that the fighter was used
on any part of the body of the deceased, which could have resulted
in his death. Therefore, even this circumstance is not connected
with the crime.
39 Therefore, the only circumstance which needs to be
considered seriously is about the 'last seen together' theory. For
that purpose, the prosecution has examined PW-12 Santosh
Kanade. He was working as a waiter in the hotel 'Raigad Inn'
situate in Tamhini Ghat, Adharwadi. He has deposed that on
13.11.2011 at about 7.30 p.m., three men and one woman had
come to his hotel. He has given description of those persons in his
deposition. He has deposed that they had consumed liquor. On
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20.11.2011, the police had shown a photograph of the deceased
and from that he had identified the deceased. He has deposed that
on 13.11.2011, the deceased had accompanied the accused to his
hotel. For some time, the accused No.1 and the deceased were in a
room. All of them had consumed liquor. The deceased was unable
to keep his balance while walking. They had left the place in a red
car bearing registration No.MH-14-CS-7261 towards Pune. On
12.1.2012, he was called for identification parade to be held on
14.1.2012 at Yerwada Jail. He went there and according to him he
identified all the accused at the parades separately held for accused
Nos.2 and 3 and for accused No.1.
In the cross-examination, he was tested for his memory to
remember the vehicle numbers which came to his hotel. On
13.11.2011, in the morning a bus had come there and many people
had come to his hotel, but, he was unable to tell the number of that
bus.
40 PW-24 Ranjit Bhosale was the Naib Tahsildar, who had
conducted the identification parade.
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41 PW-12 Santosh Kanade's evidence needs to be examined
carefully. It is rather difficult to believe that after so many days he
could remember the registration number of that particular car. He
was unable to remember the registration number of the bus which
had come on that very day to his hotel. Significantly nobody else
working in that hotel was examined by the prosecution to
corroborate his evidence. As mentioned earlier, accused were
already arrested on 17.11.2011; and yet, the identification parade
was held on 14.1.2012 though PW-12 was available for such
parade. No explanation is offered.
42 PW-12's evidence about the 'last seen together' theory
finds some support from the evidence of PW-20 Datta Angre, who
was a Nodal Officer of a mobile-phone service provider. He has
deposed that the CDR reports showed that the tower location of the
mobile-phone number of the deceased at 8.38 p.m. on 13.11.2011
was at a open plot, MIDC, Roha, District-Raigad. The tower
location of the mobile-phone number standing in the name of
accused No.1's mother, which according to the prosecution case
was used by accused No.1, was also at the same place at 8.55 p.m.
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on 13.11.2011. Though, there was gap of about 15 minutes
between these two times, there are indications that these two
phones were at the same location at MIDC, Roha, District-Raigad.
Therefore, there is some corroboration to the evidence of PW-12
that the accused No.1 and the deceased were together at about
8.55 p.m. on 13.11.2011 at MIDC, Roha.
There is, of course, no such tower location available for
the phones used by the accused Nos.2 and 3. PW-20 has not
deposed about their tower locations. Therefore, though the
evidence of PW-12 is not sufficiently trustworthy, giving some
concession to the prosecution case; there are certain indications
that accused No.1 and the deceased were in the same area at about
8.55 p.m. on 13.11.2011.
43 The dead body was discovered at about 8.15 a.m. on
14.11.2011 within the jurisdiction of Vishrantwadi police station.
Though the Doctor who had conducted the postmortem
examination between 4.00 p.m. to 5.00 p.m. on 14.11.2011 has
opined that the death could have occurred 12 hours to 24 hours
before conducting the postmortem examination, the postmortem
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notes themselves do not mention the possible time of death. The
only indication in the postmortem about the time of death is
regarding rigor mortis which was well marked over the entire body.
There is no further explanation offered by the medical officer
regarding the time of death. There, of course, can be some
variation in the estimated time of death. Thus, it could have
occurred anytime before 8.15 a.m. on 14.11.2011. The accused
No.1 and the deceased as per their tower locations were together at
about 9.00 p.m. on 13.11.2011. The Court will have to be
extremely cautious in dealing with such a situation. In such cases,
there is a possibility that any other person apart from the accused
could have committed that offence and, therefore, the proximity of
time and place is very important in the context of the theory of the
accused and the deceased last seen together.
In that connection, the observations of the Hon'ble
Supreme Court in such a situation, can be advantageously referred
to. In the case of Mohibur Rahman and another Vs. State of Assam1,
the Hon'ble Supreme Court in paragraph-10 has held thus:
1 2002(6) SCC 715
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"10. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide. In the present case there is no such proximity of time and place.
As already noted the death body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 kms.
The event of the two accused persons having departed with the deceased and thus last sen together (by Lilima Rajbongshi, PW6) does not bear such close proximity with the death of victim by reference to time or place.
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According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9.2.1991. The medical evidence does not establish, and there is no other evidence available to hold, that the deceased had died on 24.1.1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular piece of circumstantial evidence available against him. We have already discussed evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased a few unascertainable numbers of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under Section 201 IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal."
44 The same view was followed in a subsequent judgment of
the Hon'ble Supreme Court in the case of Ravi and another Vs.
State of Karnataka2. In both these cases, though the time gap
between the circumstance of last seen together and the death was
2 2018(16) SCC 102
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running in few days, however, another important aspect was also
about the proximity of the place where the deceased was last seen
with the accused and the place from where the dead body was
discovered.
45 In the case in hand before us, the prosecution has not led
any evidence in respect of the distance between 'Raigad Inn' hotel,
the MIDC area Roha, District-Raigad and the place within the
jurisdiction of Vishrantwadi police station where the dead body was
discovered. This aspect is important in the context of the present
case because the last seen theory is the only circumstance alleged
against the accused. As per the tower location at about 9.00 p.m.
the mobile phone location of the accused No.1 as well as of the
deceased was at MIDC, Roha, District-Raigad and the dead body
was found at 8.15 a.m. on the next day within the jurisdiction of
Vishrantwadi police station. Thus, definitely the body was not
found in the vicinity where the accused allegedly were last seen
together with the deceased. The prosecution has failed to travel this
distance to remove that doubt regarding the evidence against the
accused.
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46 In this situation, it was necessary for the prosecution to
have corroborated the circumstance of last seen together theory.
However, as mentioned earlier, there is not a single circumstance
corroborating the prosecution case in that behalf and, therefore,
benefit of doubt must go to the accused. In view thereof, the
judgment and order of conviction and sentence cannot be
sustained. Hence, the following order:
:: O R D E R ::
i. The Appeals are allowed. The judgment and order dated 8.7.2013 passed by the Additional Sessions Judge, Pune in Sessions Case No.229/2012 is set aside. The Appellants are acquitted of all the charges faced by them in said trial.
ii. The Appellants - Vaishali and Jeetendra are on bail. Their bail bonds shall stand cancelled accordingly. The Appellant - Yogesh More is in jail. He shall be released from jail forthwith, if not required in any other case.
iii. The fine amount, if paid, shall be refunded to the Appellants. iv. The Appellants shall execute PR bonds before the trial Court, under Section 437A of Cr.P.C., in the sum of Rs.30,000/- each (Rupees Thirty Thousand Only) with one or two sureties each, within a period of six weeks from today.
v. Criminal Appeals are disposed of in aforesaid terms.
(SARANG V. KOTWAL, J.) (S. S. SHINDE, J.)
Digitally signed
by
PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
26 / 26
DESHMANE
Date:
2022.03.30
17:20:27 +0530
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