Deepak Chhaganrao Jadhav vs The State Of Maharashtra
2022 Latest Caselaw 9135 Bom

                                         CR.APEALS.480.2020+.ODT




                      Talwalkar


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION
                                   CRIMINAL APPEAL NO. 480 OF 2020


                      Ritesh @ Rajan Janaji Bhalerao
                      Age : 21 years, Occ: Nil.
                      R/o Indira Vikas Nagar,
                      Near Gulshan Bakery Deolali Gaon,
                      Rajwada, Nashik Road.
                                                        ... Appellant.
                      (At present Nashik Rd. Central
                      Prison).
                             Versus
                      The State of Maharashtra
                      (At the instance of Nashik Road
                      Police Station) Dist. Nashik.     ...Respondent.

                                               WITH
                                  CRIMINAL APPEAL NO. 205 OF 2021

                      Deepak Chhaganrao Jadhav,
                      Age-22 years, Occ. Nil.
                      R/o. Indira Vikas Nagar, Near
                      Gulshan Bakery Deolali Gaon,
                      Rahwada, Nashik Road.                        ... Appellant.

                              Versus
                      The State of Maharashtra
                      (At the instance of Nashik Road
                      Police Station) Dist. Nashik.   ...Respondent.

                      Mr. Aniket Vagal, Advocate for appellants.

                      Ms. M.M. Deshmukh, APP, for Respondent-State.



ARUNA S
                                           CORAM:                  M.S. SONAK &
TALWALKAR                                                          S.M. MODAK, JJ.
Digitally signed by
ARUNA S
                                           DATED :                 13 September 2022
TALWALKAR
Date: 2022.09.16
14:47:23 +0530




                                                  Page 1 of 23
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                    CR.APEALS.480.2020+.ODT




JUDGMENT(PER M.S. SONAK, J)

1. Heard Mr Aniket Vagal, learned Counsel for the

Appellant in both the appeals and Ms M.M. Deshmukh,

learned APP for the State.

2. Both these appeals challenge the Judgment and

Order dated 17/12/2019 made by the learned Sessions

Judge, Nashik, in Sessions Case No. 286 of 2015,

convicting both the appellants for offences punishable

under section 302, 201 read with section 34 of the Indian

Penal Code. As a result, the appellants were sentenced to

suffer imprisonment for life for the offence punishable

under section 302 of the Indian Penal Code. Since both

the appeals question the same Judgment and Order,

learned Counsel for the parties agree that a common

Judgment and Order can dispose of both these appeals.

3. One Rahul Bhalerao was also charged for the offence

punishable under section 302, 201 read with section 34 of

the Indian Penal Code, along with two appellants.

However, by the above-impugned Judgment and Order,

the learned Sessions Judge has acquitted him. Similarly,

the learned Sessions Judge also acquitted the Appellant

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and said Rahul for an offence punishable under section

364 of the Indian Penal Code.

4. The prosecution case is that one Smt. Surekha

Pagare lodged a missing complaint on 14/2/2015 at about

11.30 a.m. concerning her son Vivek(deceased). After two

days, i.e. on 16/2/2015 at about 9.15 a.m. Vivek's father

Devidas stated about the appellants' quarrels about 4 to 5

days earlier and the threats to kill. On suspicion, two

appellants were taken into custody. During the

investigation, the appellants made a statement under

section 27 of the Indian Evidence Act, pursuant to which

Vivek's dead body was recovered from a septic tank in the

vicinity. The post-mortem report suggested that the death

was homicidal, caused due to stab injury to the neck. The

investigation also revealed injuries on the body of Ritesh

@ Rajan (Appellant in Cr. Appeal No. 480 of 2020).

5. Moreover, the prosecution claimed to have

recovered a knife used, based on the statement of

Deepak (Appellant in Cr. Appeal No. 205 of 2021). Based

upon all these, the charge sheet was filed before the

Judicial Magistrate First Class, Nashik Road. The matter

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was then committed to the Sessions Court. As a result, by

the impugned Judgment and Order, the Sessions Court

has convicted two appellants and acquitted Rahul

Bhalerao.

6. Mr Vagal learned Counsel for the appellants submits

that evidence of the eye witness to the incident and the

entire prosecution version is based purportedly upon

circumstantial evidence. He, however, submits that test

prescribed by the Hon'ble Supreme Court to sustain a

conviction based on circumstantial evidence is not

complied with by the prosecution. He relies on the

Judgment in the case of Sharad Birdhichand Sarda v/s.

State of Maharashtra1 in support of this proposition. Mr

Vagal submits that there is no clear evidence for invoking

the "last seen theory". He presents that the prosecution

has failed to establish, even by approximation, the timing

of death. Without showing the timing of death, there is no

question of invoking this theory. He, therefore, submits

that this circumstance should have been excluded from

consideration by the Sessions Judge.

1AIR 1984 SUPREME COURT 1622.

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7. Mr Vagal submits that no injuries were found on

Dipak Jadhav. However, the injuries allegedly found on

Ritesh were sufficiently explained by him. In any case,

such injuries are inconsistent with the prosecution

version. Therefore, this circumstance should not have

been held against Ritesh.

8. Mr Vagal, learned Counsel for the appellants,

submits that there are serious discrepancies regarding

recovering the dead body or knife. He submits that the

evidence on record, at least by a preponderance of

probabilities, suggests that the appellants were arrested

before any FIR would be formally lodged. The

investigating agency adopting means impermissible

under the law obtained the appellants' signatures on

blank papers. He submits that the ingredients of section

27 of the Evidence Act are far from fulfilled in this case.

Therefore, he proposes that even this circumstance could

not have been held against the appellants.

9. Mr Vagal submits that it is the prosecution's version

that the appellants' clothes or even the knife were

attempted to burnt by the appellants. There is no

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evidence to link the clothes and the knife with the crime.

Therefore, the alleged recovery circumstance of these

articles could never have been used against the

appellants. The evidence based on such alleged recovery

is vulnerable and deserves to be excluded.

10. Mr Vagal submits that since most of the

circumstances relied upon by the prosecution have not

been proved, the chain of circumstances essential to

sustain the conviction on circumstantial evidence is

snapped. Applying the principle laid down in Sharad

Birdhichand Sarda (cited supra), therefore, the

conviction and sentence of the appellants warrant

interference.

11. Ms Deshmukh, learned APP defends the impugned

Judgment and Order based upon reasoning reflected

therein. She submits that several witnesses have clearly

and cogently deposed to have last seen Ritesh and the

deceased Vivek at about 1 a.m. near the public toilet on

the night intervening 13 and 14 February 2015. She

submits that on 14 February 2015, a missing report was

lodged by Vivek's mother. There is no evidence that Vivek

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was seen alive post 1 a.m. on the night intervening 13

and 14 February 2015. She submits that the "last seen

theory" was legitimately invoked by the learned Sessions

Judge in the said circumstances. Without any explanation

forthcoming from Ritesh, this circumstance was

legitimately used to convict Ritesh.

12. Ms Deshmukh submits that the prosecution proved

the injuries on Ritesh, and there was no satisfactory

explanation forthcoming from Ritesh. She submits that

the dead body and knife used for the crime were

recovered based on the Appellant's statement.

Accordingly, the portion of such statement was admissible

under section 27 of the Indian Evidence act. She submits

that there was corroborating evidence in the form of

blood-stained clothes, cell phone records, etc. Based on

all these, Ms Deshmukh submits that these appeals may

be dismissed.

13. The rival contentions now fall for our determination.

14. The entire prosecution case is based on

circumstantial evidence. In paragraphs 152 and 153 of

Sharad Birdhichand Sarda(cited supra), the Hon'ble

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Supreme Court of India has explained the five golden

principles for evaluating circumstantial evidence. They are

transcribed below for the reference of convenience:-

"152.A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra.(1973) 2 SCC 793:(AIR 1973 SC 2622) where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they

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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.

153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

15. In this case, although the learned Sessions

Judge has not enumerated the circumstances based on

which he has convicted the appellants, the analysis of the

impugned Judgment and order indicates that the learned

Sessions Judge has based the conviction on the following

circumstances:-

(a) The circumstance that Vivek's death was homicidal;

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(b) History of enmity and altercation between appellants and Vivek some days before the date of the murder; ( Motive; )

(c) The circumstance that Ritesh and the deceased Vivek were last seen with each other on the night intervening 13th and 14th February 2015;

(d) Recovery of Vivek's dead body from the septic tank, based on Ritesh's statement in police custody(Section 27 of the Indian Evidence Act);

(e) Recovery of Ritesh's blood-stained clothes, based on Ritesh's statement in police custody(Section 27 of the Indian Evidence Act);

(f) Recovery of Vivek's burnt clothes, based on Ritesh's statement in police custody(Section 27 of the Indian Evidence Act);

(g) Recovery of knife and blood-stained clothes, based on Deepak's statement while in police custody(Section 27 of the Indian Evidence Act).

16 There can be no serious dispute about Vivek's

death being homicidal. The medical officer Dr Nikhil

Saindane(P.W. 11), has deposed in some details on this

aspect. He opined that Vivek died because of hemorrhagic

shock due to a stab injury on his neck. Apart from some

suggestion that the wounds on Vivek's body might have

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been caused when his body was removed from the sack in

which it was dumped, there was no serious challenge,

either to the deposition of P.W. 11 or the opinion

expressed by him. Thus, Vivek's death being homicidal is

proved beyond a reasonable doubt.

17. On the aspect of motive, P.W. 1, Vivek's father

deposed that there was a quarrel between Vivek and the

appellants 4 to 5 days before 13 February 2015, during

which the appellants had threatened to kill Vivek. P.W.2,

Vivek's mother, also deposed to the same effect. Kalpesh

Gangurde (P.W.5), a friend of Vivek and Ritesh, deposed to

the quarrels between Ritesh and Vivek. Abhijit

Pagare(P.W.6), Vivek's brother, also deposed to the

frequent conflicts between Vivek and Ritesh. Karan

Gangurde(P.W. 7), again an acquaintance of both Ritesh

and Vivek, also deposed to the quarrels between them.

18. P.W. 7 also spoke about some truce between

Ritesh and Vivek on the date of the incident, in which

Vivek was murdered. In the cross-examination, there was

no serious challenge to all this evidence about the

strained relationship between Ritesh and Vivek. Except for

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P.W. 1, P.W.2 and P.W. 6, i.e. the parents and brother of the

deceased Vivek, none of the other witnesses spoke about

the strained relationship between Vivek and Deepak.

Thus, the prosecution has established that at least Ritesh

had sufficient motive to eliminate Vivek. However, there is

no adequate evidence to establish this circumstance

against Deepak beyond a reasonable doubt.

19. The prosecution offered that Ritesh and Vivek

were last seen with each other on the night of intervening

13th and 14th February 2015 at about 1 a.m. near a public

toilet. The prosecution has also offered that this was the

last time Vivek was seen alive by any of the witnesses. On

14 February 2015, Vivek's parents filed a missing report.

On 16/2/2015, they filed further information indicating

that they suspected the appellants and Rahul Bhalerao of

the kidnapping or disappearance of their son Vivek. Three

suspects were arrested on 16 February 2015, and it is the

prosecution case that, based on the statement of Ritesh,

Vivek's dead body was discovered in a septic tank near a

public toilet where Ritesh and Vivek were last seen

together. The prosecution has thus invoked the 'last seen

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theory as a circumstance against Ritesh. Admittedly, this

circumstance does not apply to Deepak.

20. The evidence of Kalpesh Gangurde(P.W. 5) and,

Karan Gangurde(P.W.7), Abhijit Pagare(P.W.6) is sufficient

to establish beyond reasonable doubt that Ritesh and

Vivek had not only attended the Haldi ceremony at

Prashant Bhalerao's house on 13 February 2015, but both

were seen in each others company near a public toilet at

around 1 a.m. in the night intervening 13th and 14th

February 2015.

21. Mr Vagal contended that P.W. 5, 6 and 7 were

interested witnesses; therefore, their testimony should be

discarded. He argued that the prosecution has failed to

examine an independent witness, even though there is

evidence that there were almost 200 persons attending

the Haldi ceremony at Prashant Bhalerao's house on the

night on 13 February 2015. At least P.W. 5 and P.W.7 are

friends of not only the deceased Vivek but also Ritesh and

his brother Abhijit.

22. Abhijit (P.W.6), Vivek's brother, was examined by the

prosecution because he, too, was present for the Haldi

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ceremony at Prashant Bhalerao's house. Abhijit Pagare

has deposed in some details about his presence at the

ceremony, about beating drums at the said ceremony,

and his questioning his brother Vivek as to why Vivek was

moving around with Ritesh.

23. Even the deposition of Kalpesh and Karan is quite

definite and convincing. All these witnesses were near the

public toilet, which is about 500 ft. away from Prashant

Bhalerao's house, and it is, therefore, that at 1 a.m., they

saw Ritesh and Vivek together. This was the last time

anyone saw Vivek alive. Accordingly, the prosecution has

proved beyond reasonable doubt the circumstance of

Vivek and Ritesh being last seen together at 1 a.m. on the

night intervening 13th and 14th February 2015.

24. Ritesh, despite an opportunity, failed to explain what

happened to Vivek or the circumstance in which he parted

company with Vivek. On the next two days, when Vivek's

family members and the police searched Vivek, Ritesh is

reported to have feigned ignorance. Moreover, to Abhijit's

query about how Ritesh sustained injuries on his person,

Ritesh is said to have given a divergent explanation. On

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one occasion, he stated that he was involved in an

accident on the night intervening 13 th and 14th February

2015, due to which he sustained injuries. On the other

occasion, he stated that he had fallen on a tiled floor and

suffered injuries on the night intervening 13 th and 14th

February 2015. Significantly, Ritesh, in his statement

under section 313 of the Code of Criminal Procedure,

1973, failed to offer any explanation in the context of the

presumption which arises from the last seen theory or, for

that matter, about the injuries on his person.

25. Mr Vagal, learned Counsel for the Appellants,

submitted that there was no proper evidence about the

precise or approximate time of Vivek's death. He submits

that the medical evidence vaguely suggests the time of

death as 15 February 2015. He, therefore, submits that

over 24 hours passed between the time when Ritesh and

Vivek were allegedly last seen together. He submits that

the prosecution in this circumstance could not have

invoked the last seen theory.

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26. In this case, there is evidence that the missing

report was filed by Vivek's parents on 14 February 2015.

Soon after that, a search began. Vivek's body was

discovered in a septic tank on 16 February 2015. The

medical evidence suggests that it was put there

approximately 30 to 35 hours earlier. This opinion is based

upon the condition of the skin of the dead body. There is

no evidence about Vivek being seen alive by any witness

post 1 a.m. on the night of intervening 13 th and 14th

February 2015. Thus, in the peculiar facts of this case,

the absence of medical evidence on the precise time of

death is not sufficient to discard the invocation of the last

seen theory.

27. The following circumstance concerns part of Ritesh's

statement, which led to the discovery of Vivek's dead

body in a septic tank near a public toilet. This is the same

public toilet where Ritesh and Vivek were last seen at 1

a.m. on the night intervening 13 th and 14th February 2015.

The dead body was wrapped in a bed sheet and put in a

sack. After that, it was found dumped in the septic tank.

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28. The public toilet and septic tank are closed to the

crematory of the Bohari community. Ritesh's statement

was recorded in front of recovery panchas, and based

upon his statement, Vivek's dead body was discovered in

the septic tank. Therefore, the statement of Ritesh, which

led to the discovery of fact and consequent recovery of

the dead body, is admissible in evidence in terms of

Section 27 of the Indian Evidence Act. Ritesh, except

stating in 313 Cr. P.C. statement that he was made to sign

some blank papers, has chosen to say nothing further on

this incriminating circumstance. This circumstance,

however, does not apply to Deepak.

29. There is overwhelming evidence on record that after

Ritesh was arrested on suspicion on 16 February 2015 and

sent for medical examination, Dr Kale(P.W.12), who

examined him, found the following four injuries on his

body:-

(I) 0.5 x 0.5 cm. healed abrasion on the right arm,

(ii) 1 x 1 cm. abrasion over the right forearm,

(iii) 2 x 1 cm. abrasion on the right arm,

(iv) 0.5 x 0.5. cm. abrasion on the left foot.

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30. P.W. 12 deposed that the above injuries were more

than 48 hours old. She opined that such injuries were

possible in case of a scuffle or could be caused by a

person who was defending an assault upon him. In cross-

examination, no serious dent was made in the clear and

convincing testimony of P.W. 12.

31. The line of cross-examination on behalf of Ritesh

suggests that Ritesh desire to take up a defence about

the injuries having some nexus with his fall from a

motorbike on 13 February 2015 at midnight. Even P.W.6

had deposed about Ritesh, explaining the injuries as

caused by accident on the night of 13 February 2015. This

suggests that Ritesh does not seriously dispute the

injuries were caused on the night of 13 February 2015.

Suppose the injuries were caused by a motorbike fall or

by accident. In that case, such an explanation should

have been forthcoming in the 313 Cr. P.C. statement.

Rather, Ritesh, in his statement, even denies that there

were any injuries found on his person. The injuries on

Ritesh's person, in the absence of explanation, is an

incriminating circumstance that was correctly relied upon

by the learned Sessions Judge to invoke Ritesh.

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32. The recovery of blood-stained clothes, again based

on the statement of Ritesh from Ritesh's house, is yet

another circumstance the learned Sessions Judge relied

upon. Learned Sessions Judge has not relied upon the

recovery per se, upon the portion of Ritesh's statement,

which led to the discovery of a fact that has nexus with

the crime. Though the C.A. report states that the same

was inconclusive, the report affirms that the stains were

of human blood. Without any explanation from Ritesh, the

statement and the circumstance were correctly regarded

as incriminatory by the learned Sessions Judge.

33. The statement, which led to the discovery of Vivek's

burnt clothes or some ashes, however, needs to be

excluded from consideration. There is no clear evidence

about the precise status of such ashes and burnt clothes.

However, the non-establishment of such circumstance

makes no dent in the chain of circumstances, consistent

only with the hypothesis of the guilt Ritesh and his

complicity in the crime with which he was charged.

34. The factual situation in Mohd. Samir Mohd.

Juber Shaikh v/s. The State of Maharashtra(Criminal

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Appeal No. 255 of 2009) is not comparable to the

established fact in the present case. Therefore, the

observations in paragraph 20 of the said decision will not

apply in the present matter.

35. Thus, in this case, the prosecution, at least against

Ritesh, has established the circumstances from which the

conclusion of guilt can be reached. The facts so

established are consistent only with the hypothesis of the

guilt of Ritesh. The circumstances are conclusive in nature

and tendency. They exclude every possible hypothesis

except the one to be proved. The chain of evidence, in

this matter, even if excluding one of the above

circumstance, is so complete as not to leave any

reasonable ground for the conclusion consistent with the

innocence of Ritesh. Thus based on the circumstantial

evidence, learned Sessions Judge rightly concluded that in

all human probability, the act must have been committed

by Ritesh.

36. Considering all the above reasons, we think that

there is no case made out to interfere with the conviction

and the sentence awarded to Ritesh.

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37. However, regarding Deepak's conviction, we think

circumstances against him substantially fall short of the

standard in Sharad Birdhichand Sarda v/s. State of

Maharashtra(supra). Deepak's conviction, therefore,

will warrant interference. As noted earlier, the

circumstance of motive is not proved qua Deepak. The

last seen theory does not apply to Deepak. There were no

injuries on Deepak's person. The recovery of the dead

body of Vivek was not based on Deepak's statement.

Learned Sessions Judge's reasoning about the

impossibility of the single person being able to dispose of

the dead body of a grown-up person in the manner in

which it was disposed of cannot be the basis for

convicting Deepak in the absence of clear and compelling

evidence of his complicity. That would only be a surmise.

38. The prosecution relies upon Deepak's statement,

which led to the alleged recovery of the knife with which

the prosecution claims Vivek was stabbed in the neck.

However, the prosecution also admits that this knife was

burnt. The prosecution version is that ribit was found in

Ritesh's and Rahul's house and the knife in Deepak. The

CA report does not analyse any human blood on the knife

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or any blood group. All these factors render it quite unsafe

to sustain Deepak's conviction.

39. Prosecution also relies upon Deepak's statement

leading to the discovery of certain blood-stained clothes.

But, again, here, the C.A. report is inconclusive. In any

case, based upon this solitary circumstance, Deepak's

conviction cannot be sustained.

40. As observed in Sharad Birdhichand Sarda v/s.

State of Maharashtra(supra), the circumstances based

upon which the prosecution seeks to establish guilt must

be proved beyond a reasonable doubt. There is a

distinction between "may be proved" and "must or should

be proved". Besides, it is a primary principle that the

accused must be and not merely may be guilty before a

court can convict and the mental distance between 'may

be' and 'must be' is long, and this distance divides vague

conjectures from sure conclusions.

41. Therefore, in these appeals, whilst Ritesh's

conviction will have to be sustained, Deepak's conviction

will have to be set aside. Accordingly, we dismiss Criminal

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Appeal No. 480 of 2020 but allow Criminal Appeal No. 205

of 2021.

42. Deepak Jadhav, Appellant in Criminal Appeal No. 205

of 2021, is hereby acquitted of all the charges levelled

against him. He is already out on bail. Accordingly, there

is no question of his surrender. Accordingly, his bail bonds

stand discharged.

43. In the facts of the present case, there shall be no

order as to costs in both these appeals.

S.M. MODAK, J.                           M. S. SONAK, J.





                        12th September 2022