Bombay High Court
Dhiraj S/O. Shankar Shinde vs The State Of Maharashtra on 5 August, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:16916-DB
Cri.Appeal No.370/2018 with
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.370 OF 2018
1. Parag s/o Machindra Pathare,
Age 24 years,
R/o Near Borawake College,
Ward No.1, Shrirampur,
Tq. Shrirampur, Dist. Ahmednagar
(Appellant No.1 has filed separate Appeal
No.415/2019 as per order dt. 5/4/2019)
2. Ajay s/o Dinkar More
Age 20 years,
R/o Prakashnagar, Near Thatte
Ground, Ward No.7, Shrirampur,
Tq. Shrirampur, Dist. Ahmednagar ... APPELLANTS
(Orig. Accused No.2 & 3)
VERSUS
1. The State of Maharashtra
(Copy to be served on
Public Prosecutor, High Court of
Bombay, Bench at Aurangabad)
2. Minakshi Gorakshnath Chandgude,
Age major,
R/o Chasnali, Tq. Kopargaon,
Dist. Ahmednagar ... RESPONDENTS
.......
Mr. Rajendra Deshmukh, Senior Counsel with
Mr. Devang Deshmukh with Mr. Vishal Chavan,
Ms K.M. Salve, Advocates for appellant
Mrs. S.N. Deshmukh, A.P.P. for respondent - State
Mr. R.R. Karpe, Advocate for respondent No.2.
.......
Cri.Appeal No.370/2018 with
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WITH
CRIMINAL APPEAL NO.348 OF 2018
Dhiraj s/o Shankar Shinde,
Age 23 years,
R/o Sanjay Nagar,
Near Water Tank, Shrirampur,
Tq. Shrirampur, Dist. Ahmednagar ... APPELLANT
VERSUS
1. The State of Maharashtra
through Police Inspector,
Police Station, Shrirampur
Dist. Ahmednagar
2. Minakshi Gorakshnath Chandgude,
Age major, Occ. Household,
R/o Chasnali, Tq. Kopargaon,
Dist. Ahmednagar ... RESPONDENTS
.......
Mr. G.K. Naik Thigale, Advocate for appellant
Mrs. S.N. Deshmukh, A.P.P. for respondent - State
Mr. R.R. Karpe, Advocate for respondent No.2.
.......
WITH
CRIMINAL APPEAL NO.415 OF 2019
Parag s/o Machindra Pathare,
Age 24 years, Occ. Student,
R/o Near Borawake College,
Ward No.1, Shrirampur,
Tq. Shrirampur, Dist. Ahmednagar ... APPELLANT
(Orig. Accused No.2)
VERSUS
Cri.Appeal No.370/2018 with
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1. The State of Maharashtra
Through Shrirampur City Police Station,
Tq. Shrirampur, Dist. Ahmednagar
(Copy to be served on
Public Prosecutor, High Court of
Bombay, Bench at Aurangabad)
2. Minakshi Gorakshnath Chandgude,
Age 42 years, Occ. Agri.
R/o Chasnali, Tq. Kopargaon,
Dist. Ahmednagar ... RESPONDENTS
.......
Mr. N.B. Narwade, Advocate for appellant
Mrs. S.N. Deshmukh, A.P.P. for respondent - State
Mr. R.R. Karpe, Advocate for respondent No.2.
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 8th July, 2024
Date of pronouncing judgment : 5th August, 2024
JUDGMENT (PER R.G. AVACHAT, J.) :
These three appeals are decided by this common
judgment since challenge therein is to one and the same
judgment and order of conviction and consequential sentence,
dated 26/4/2018, passed by learned Additional Sessions
Judge, Shrirampur, District Ahmednagar in Sessions Case,
No.40/2015. The details of conviction and consequential
sentence imposed against the appellants is given in a tabular
form below :-
Cri.Appeal No.370/2018 with
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Sections Sentence
302 r/w 34 IPC Imprisonment for life with fine of Rs.5000/-
each, in default R.I. for 6 months
364-A r/w 34 Imprisonment for life with fine of Rs.5000/-
IPC each, in default R.I. for 6 months
363 r/w 34 IPC R.I. for one year with fine of Rs.1000/- each, in
default R.I. for 1 month.
385 r/w 34 IPC R.I. for 6 months with fine of Rs.500/- each, in
default R.I. for 15 days
387 r/w 34 IPC R.I. for 3 years with fine of Rs.2000/- each, in
default R.I. for 1 month
120-B IPC R.I. for 3 years with fine of Rs.2000/- each, in
default R.I. for 1 month.
201 r/w 34 IPC R.I. for 3 years with fine of Rs.3000/- each, in
default R.I. for 3 months.
The substantive sentences have been directed to run concurrently.
2. The facts giving rise to the present appeals are as
follows :
Ganesh Chandgude (deceased) was a 12 th
Standard student of Science stream, in R.B.N.B. College,
Shrirampur. Smt. Minakshi (P.W.7) was his mother. Father of
Ganesh had passed away in 2012. The family hailed from
village Chasnali, Taluka Kopargaon, District Ahmednagar.
Ganesh had two sisters, Tejaswini and Ruchira. Ruchira was
married. Ganesh completed his 10th Standard education at
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Kopargaon. He along with his sister Tejaswini thereafter
started residing at the house of their maternal uncle, P.W.1
Sunil, at Matapur, Taluka Shrirampur.
3. Ganesh would shuttle between Matapur and
Shrirampur for attending College. On 12/3/2015, he left the
house, informing P.W.1 Sunil and other family members that he
would return after 15 days. He had also informed that he
would be staying in a room of his friend, Parag Pathare
(appellant in Criminal Appeal No.415/2019). His (Ganesh) 12 th
Standard examination was underway. The last paper for the
subject of Information Technology (I.T.) was on 25/3/2015.
One Akash Adhav, friend of Ganesh informed P.W.1 Sunil on
13th March that Ganesh had asked him to inform him (Sunil)
that he was going to Goa along with his friends. For next 2-3
days, P.W.1 Sunil tried to contact Ganesh on his cell phone.
No contact could, however, be established.
4. It is also the case of the prosecution that, on the
intervening night of 22 and 23 March 2015, a call was received
on cell phone of Minakshi (P.W.7). The caller was unknown.
The caller made a demand of Rs.1 Crore for release of
Ganesh. He was speaking in Hindi. The caller told Minakshi
Cri.Appeal No.370/2018 with
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(P.W.7) that three others namely Rohan, Vishal and Pritesh
were in their custody along with Ganesh. The caller also gave
threats of dire consequences, if the matter was reported to
police. A similar message too was received on the cell phone
of Minakshi (P.W.7). Since Ganesh did not return post
25/3/2015, P.W.1 Sunil lodged First Information Report
(Exh.17). It appears that, a crime vide C.R. No.I-72/2015 for
offence punishable under Section 387 of the Indian Penal
Code was registered at Shrirampur Police Station. Shri Vishal
Vathore (P.W.19) was investigating the said crime.
5. A dead body of unknown person in half burnt
condition with an injury on head was found under a bridge over
Shivana river within the limits of Gangapur Police Station. The
dead body was in decomposed condition. On the spot, inquest
panchanama (Exh.60) and post mortem examination was
conducted. The dead body was buried, but not before
obtaining certain samples from the body for DNA analysis.
F.I.R. (Exh.58) was lodged by Police Officer Ganesh Jamdar at
Shrirampur Police Station, alleging therein murder of unknown
person was committed for unknown reason. The cell phone of
the deceased was under surveillance. It was realised during
Cri.Appeal No.370/2018 with
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the surveillance that the cell phone was possessed by Ajay
More (appellant in Criminal Appeal No.370/2018). He was
arrested. During his interrogation, involvement of the other
appellants in commission of the crime was disclosed. The
DNA report (Exh.232) (admitted by the defence in evidence
before the Trial Court) indicates that Minakshi was biological
mother of the deceased. As such, it was disclosed that the
dead body found below the bridge over Shivana river was that
of Ganesh. The papers of investigation made by Gangapur
Police Station were transferred to Shrirampur Police Station.
6. On 9 September a news was flashed in the daily
about the crime to have been crapped. It was disclosed during
investigation that, the appellants kidnapped Ganesh for
ransom. They took him to Hotel Rajyog and administered him
liquor. Then they took him to the place whereat his dead body
was found. He was further administered liquor. He became
unconscious. The appellants then smashed his head with a
small bolder and then set him on fire.
7. During the investigation, statements of persons
acquainted with the facts and circumstances of the case were
recorded. Cell phone of the deceased and that of his mother
Cri.Appeal No.370/2018 with
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were sent to Forensic Science Laboratory. The CDRs and
SDRs of both the cell phones were obtained. It was revealed
during investigation that, Kum. Punam (P.W.8), a cousin of
Ganesh had seen the appellants in the company of Ganesh by
little past 6.30 p.m. on 12/3/2015. A test identification parade
was, therefore, conducted. She identified the appellants Ajay
More and Dhiraj Shinde in the test identification parade.
(Appellant Parag Pathare was known to her).
8. On completion of the investigation, charge sheet
was filed. The Trial Court framed the Charge (Exh.9). The
appellants pleaded not guilty. Their defence was of false
implication.
9. The prosecution examined 26 witnesses and
produced in evidence certain documents. On appreciation of
the evidence produced in the case, the Trial Court convicted
and consequently sentenced the appellants as stated above.
10. Heard. Learned Advocates for the appellants
made submissions in one voice. According to them, the case
was based on circumstantial evidence. It was argued before
us that, the dead body that was found under the bridge was
Cri.Appeal No.370/2018 with
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not that of Ganesh. Crime scene panchanama was, therefore,
adverted to, to indicate that it was a dead body of a person of
the age group between 25-30 years, while Ganesh was just
18. According to learned Advocates, mere admission of a
document for giving no objection to exhibit the same does not
relieve the prosecution of its obligation to prove the contents of
the document so admitted. According to them, P.W.8 Punam
was a planted witness. She would run a Medical Store
attached to a psychiatric hospital of Dr. Unde. There used to
be indoor patients. Closing the medical store for the day by
little past 6.15 p.m. would be highly unnatural conduct.
According to them, she was planted as a witness to make out
a case of last seen theory. Her statement under Section 161
of the Criminal Procedure Code was recorded 17 days after
she had seen the deceased in the company of the appellants.
It was highly unnatural that no F.I.R. was lodged at the earliest.
A missing person's report lodged by P.W.1 Sunil was not
placed before the Trial Court. Both the cell phones allegedly
used by the deceased and his mother and the respective SIM
Cards issued in the names of some third persons. There was
a difference between IMEI Number of the seized phone and
the cell phone that was sent to Forensic Science Laboratory.
Cri.Appeal No.370/2018 with
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11. The learned Advocates for the appellants would
further submit that, the Trial Court passed the judgment mostly
on the material which was inadmissible in evidence. It was the
material in the nature of confession-cum-demo given as to the
manner in which the crime was committed, given by the
appellant to the police.
12. Learned Senior Advocate appearing for appellant
Ajay More took us through the evidence of the prosecution
witnesses. According to learned Senior Advocate, following
points be considered while deciding the appeal. The points
which the learned Senior Counsel proposes to address are
reproduced below :-
"(i) Complainant did not produce any document to
prove whether Nokia Lumia 625 mobile phone
belonged to the deceased Ganesh.
(ii) Prosecution failed to bring on record that Nokia
Lumia 625 was in any way possessed/ handled/
used by deceased with the mobile number
7741935404.
(iii) The Prosecution failed to prove beyond reasonable
Cri.Appeal No.370/2018 with
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doubt regarding why IMEI No.911421052576430
appears for mobile No.7741935404 which is totally
contrary to entire evidence collected by the
investigation authorities.
(iv) The IMEI number digit dispute is not settled
beyond the reasonable doubt.
(v) No evidence of deceased along with accused
persons visiting Rajyog Restaurant & Bar.
(vi) No evidence of deceased along with accused
persons crossing any of toll plazas between
Ahmednagar and Aurangabad.
(vii) Nothing seized from any of spots or places which
would implicate any of accused with the said
crime.
(viii) As per Prosecution story, one motorcycle/ vehicle
was pointed out by PW-8 (Punam), but the
investigation authorities seized 2 motorcycles from
accused and yet prosecution could not provide
exactly which vehicle was used in commission of
crime.
(ix) CDR/ SDR reports of accused are not placed on
record to prove any link between deceased
Cri.Appeal No.370/2018 with
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Ganesh and accused.
(x) No documentary evidence proving beyond
reasonable doubt to connect any of accused with
the deceased.
(xi) Entire prosecution machinery set into motion only
after news flashes in multiple newspapers on
09/09/2015.
(xii) Even though unknown dead body was found,
inspected, performed post mortem in the
jurisdiction of Gangapur Police Station on
16/3/2015 no independent and impartial
investigation was carried out by investigation
authorities till September 2025.
(xiii) As per prosecution story, on 12/3/2015, deceased
and accused consumed liquor and later deceased
was put to death, then the viscera report of the
deceased ought to have brought different result."
13. Learned Advocate Mr. G.K. Naik Thigle
representing the appellant Dhiraj Shinde relied on the
judgment of the Apex Court in case of Alamelu & ors. Vs.
State, represented by Inspector of Police (Criminal Appeal
Cri.Appeal No.370/2018 with
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No.1053/2019), decided on 18/1/2011 to submit that, mere
admission of a document or marking it Exhibit does not
dispense with the party relying on the same to prove probative
value of the contents of the said document. This submission
was advanced by the learned Advocate, to contend that, the
remark "Admitted" would be of no avail for the prosecution.
Such remark appears on the document namely F.I.R. (Exh.58),
crime scene panchanama (Exh.59), DNA report (Exh.232),
inquest panchanama (Exh.60) and the panchanama relating to
burial of the dead body (Exh.61). According to the learned
Advocate, the prosecution failed to prove the body that was
found under the bridge was that of Ganesh. According to the
learned Advocate, following were the vital aspects missed out
from the case, which are reproduced below :-
"(1) Age of the dead body,
(2) Exchange of documents from police stations,
(3) CCTV footage at Toll Plaza,
(4) Mere admitting Exh.59 & 60 would not amount to
admission of its contents,
(5) Non examination of doctor, who performed P.M.,
(6) Other panch witness is fatal,
Cri.Appeal No.370/2018 with
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(7) the person who collected DNA samples i.e. doctor
is not examined,
(8) Where is the report of first P.M. conducted on the
spot,
(9) How second P.M. was conducted in mortuary if
corpus was in decomposed condition."
14. According to the learned Advocate, IMEI Number of
cell phone seized and the one sent for analysis were different.
The prosecution evidence is silent so far as regards explaining
to whom the cell phone Number 9763899505 belonged. For
example, he referred to the evidence of P.W.22 Nitin Pagar,
who testified that, all the cell phones of the appellant were
found to have been switched off under same mobile tower.
He, however, admitted in his cross-examination that, there was
no such evidence filed along with the charge sheet. The
learned Advocate placed on record his written notes of
submissions to ultimately urge for allowing the appeal.
15. Learned Advocate for appellant Parag Pathare took
us through the evidence of each and every prosecution
witness to submit that, the chain of circumstances to bring
Cri.Appeal No.370/2018 with
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home the charge has not been established. The owner of the
room wherein appellant Parag would reside, took names of 4
persons namely Yuvraj Kale, Mahesh Mane, Abhijit Shete and
Vruddheshwar as friends of Parag. According to him, the
Executive Magistrate did not follow the mandatory provision as
regards holding of test identification parade, given in Criminal
Manual. According to learned Advocate, there is nothing to
observe what was the base to come to the conclusion to
publish a news item and as such, investigation which was
started thereafter nearly about six months period was creating
suspicion. Appellant Parag's role was not suspected in
disappearance of the deceased immediately. Mere recovery of
a motorbike pursuant to a disclosure statement under Section
27 of the Evidence Act at Parag's instance would be
insignificant. Panch witness P.W.5 Subhash stated that, Parag
did not disclose the motorbike number vide his memorandum
statement was recorded. The witness was even unable to give
details of the Society wherefrom the motorbike was seized. No
explanation was forthcoming as to why the F.I.R. was lodged
very late. According to learned Advocate, when the message
allegedly received by the mother of deceased Ganesh
contained three other names, such as Rohan, Vishal and
Cri.Appeal No.370/2018 with
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Pratesh, there was no further evidence about three others
named in the message. According to learned Advocate, the
appellant, therefore, deserved to be acquitted. He, therefore,
urged for allowing the appeal.
16. The learned A.P.P. would, on the other hand, place
on record his written notes of arguments. He referred and
relied on the material evidence of each and every prosecution
witness. We would be referring to the same a little later. He
would further submit that, the C.A. report relating to viscera is
silent about finding of alcohol. According to him, there ought to
have been a certain quantity of liquor to have been consumed
then only the same would have been reflected in the C.A.
report. He would further submit that, the DNA report has been
admitted by the defence. Since seizure of clothes of the
appellants was made after a lapse of considerable time, it was
just impossible to find blood stains on their clothes. According
to the learned A.P.P., the appellants did not give any
explanation as to their whereabouts during the period
12/3/2015 to 16/3/2015. They were identified in the test
identification parade. Pursuant to their disclosure statement,
very many things have been discovered. Independent
Cri.Appeal No.370/2018 with
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witnesses were supporting the prosecution case. According to
learned A.P.P., the appellants have failed to make out a case
for interference with the impugned judgment and order of
conviction.
17. Learned Advocate Mr. Rahul Karpe representing
the mother of deceased made oral submissions and placed on
record bullet points of his arguments. He referred to the
chronology of events leading to the incident. According to him,
deceased Ganesh left the house by 9.00 in the morning on
12/3/2015. By 6.30 p.m. on the same day, he was seen in the
company of the appellants by P.W.8 Punam. On the very day
by 10.22 p.m., P.W.7 Minakshi (mother of the deceased) made
a phone call to deceased Ganesh, who in turn informed her to
have been with the appellant Parag Pathare. According to
him, the family members were waiting for arrival of Ganesh
since he was to appear for paper of I.T. Subject on 25/3/2015.
Since he did not appear on the given day, the F.I.R. was
immediately lodged by his maternal uncle P.W.1 Sunil.
Learned Advocate has referred to the evidence of each and
every witness. The same finds place in his written notes of
arguments. According to him, the cell phone of the deceased
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was recovered. It was under surveillance by officers of Local
Crime Branch (LCB), Ahmednagar. Learned Advocate made
some additional submissions as follows :
"I. As far as cell phone having SIM No.7741935404, it
has been contended emphatically by the accused in
present appeal that, the same does not belong to 'D'
Ganesh.
Ans : The same SIM Number belongs to one Ashok
Shinde (since this SIM was on this name) since
25/5/2013 till the disclosure of present offence.
Even this aspect has been minutely appreciated in
the light of CDR information also by the learned
Additional Sessions Judge, Shrirampur, particularly
para No.50.
In short, though the said SIM having No.7741935404
belongs to the concerned Ashok Shinde being owner,
but the same was being used/ possessing by 'D'
Ganesh and this aspect has been corroborated in the
teeth of documentary as well as oral evidence i.e.
P.W.23 and P.W.26. In addition to this, it has also
been observed in this very para No.50 as referred
supra that, Exh.111 and Exh.112 CDR information
indicate exchange of phone calls and SMS in
between 9527425132 (belongs to mother) and
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7741935404 possessing by 'D' Ganesh.
II. As far as, emphasis has also been given with regards
to Mobile No.9763899505, with this regard detailed
analysis/ scrutiny has been done/ made by the
learned Additional Sessions Judge, Shrirampur about
this and this aspect can be crystalized from para
No.55 onwards as well as para No.60 of the
impugned order of conviction, wherein in this
paragraph it has been obsrved that, during disputed
period in between Mobile No.9763899505 and
9527425132, it also reveals that, there are several
calls also have been made to another number and
therefore in absence of contrary this isolated fact
about this number i.e. Mobile No.9763899505 is not
sufficient to disbelieve the case of prosecution."
The learned Advocate ultimately urged for
dismissal of the appeals.
18. Let us, now, advert to the evidence on record and
appreciate the same.
P.W.1 Sunil was maternal uncle of Ganesh
(deceased). P.W.6 Jyoti is wife of P.W.1 Sunil. They are
residents of village Matapur, Tq. Shrirampur, Dist.
Ahmednagar. It is in his evidence that since the father of
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Ganesh (deceased) passed away in 2012, Ganesh, after
completing his 10th standard education at Kopargaon, started
residing with them at Matapur, for his further education. His
sister Tejaswini was also residing along with them for the very
purpose. Ganesh was a 12th standard student of Science
faculty in R.B.N.B. College, at Shrirampur, in the year 2015.
He would shuttle between Matapur and Shrirampur, for
attending the college and classes. It is further in his evidence
that on 12.03.2015, Ganesh left the house carrying a sack
with him. He informed at home that he was going to stay at
the room of his friend, Parag Pathare (appellant) for 15 days.
It is further in his evidence that on the following day, i.e. on 13 th
March, Adesh Adhav, friend of Ganesh, told them to have been
asked by Ganesh to tell him (Sunil) that he was going to Goa
along with his friends. The evidence of P.W.1 Sunil further
indicates that when he tried to contact Ganesh on his
cellphone for 2-3 days, he could not establish contact. His
evidence further indicates that Minakshi (mother of deceased
Ganesh) had come to his residence. It was on the intervening
night of 22 and 23 March. Minakshi received a call of an
unknown person on her cellphone. The caller was speaking in
Hindi. He made demand of Rs.1 Crore for release of Ganesh.
Cri.Appeal No.370/2018 with
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The caller told that Rohan, Vishal, Ganesh and Pratesh were
in their custody. He asked them to arrange for money by 25
March. The caller even threatened her of dire consequences,
if she tried to approach police or goes public. P.W.1 Sunil's
evidence further indicates that on the same night, similar SMS
was received on Minakshi's cellphone. According to him, on
25 March, there was paper (examination) of Ganesh for
subject - I.T. He was to appear for the said examination. All of
them were hopeful that Ganesh would return after appearing
for the paper of I.T. subject. Since Ganesh did not return, he
lodged the FIR (Exh.17) with Shrirampur City Police Station. It
was alleged therein that some unknown person/s kidnapped
Ganesh for ransom. A crime, therefore, came to be registered
vide Crime No.72 of 2015 with Shrirampur Police Station for
the offences punishable under Sections 363, 385, 387 of
Indian Penal Code.
19. It is further in his evidence that on 09.09.2015,
news was flashed in the daily. He learnt on reading of the
news that the appellants had kidnapped Ganesh. They took
him under a bridge over Shivana river in Taluka Gangapur and
killed him with hitting his head with stone. A partially-burnt
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body was found under the bridge over Shivana river. He along
with his sister - Minakshi and wife Jyoti, therefore, went to the
police station. They identified the clothes of Ganesh.
20. It is in the cross-examination of PW 1-Sunil that he
did not knew any of the friends of Ganesh, except Adesh
Adhav. According to him, Ganesh used to speak of Parag
Pathare (appellant). He was, however, quick enough to
respond to the question that he was so telling for the first time.
So has not been stated by him in his F.I.R. (Exh.17). It is
further in his evidence that Ganesh had left the house with his
bag for college along with Adesh Adhav. It is further in his
evidence that it was he, who would spend for education and
maintenance of Ganesh and his sister - Tejaswini, since their
father had passed away. His evidence further disclosed that
before 22.03.2015, he had given an application to the police,
informing Ganesh to have gone to Goa and if he would not
return for his paper of I.T. subject, he would come and lodge a
report. His evidence further disclosed that he has lodged a
missing person's report with the concerned police station.
21. P.W.7 Minakshi, mother of Ganesh, testified more
or less consistent with the evidence of P.W.1 Sunil and his wife
Cri.Appeal No.370/2018 with
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Jyoti. It is in her evidence that her husband passed away in
2012 and therefore, Ganesh and her daughter Tejaswini would
reside at the house of her brother - Sunil (P.W.1) for further
education. It is further in her evidence that on 12.03.2015,
she talked to Tejaswini on phone. She learnt from her Ganesh
to have left the house for 15 days to stay with Parag Pathare.
Since Tejaswini has not been examined, this piece of evidence
is hearsay. According to her, she, therefore, contacted Ganesh
on his cellphone. He (Ganesh) informed to have been in the
company of Parag Pathare. He further informed that he was at
Parag's room. He informed her that he would be back on
Sunday. A tiffin was sent for Ganesh on the following day with
other boys. He, however, did not come to collect the same.
So was informed to her by Tejaswini (hearsay). She, therefore,
made phone call to Ganesh. She could not establish contact.
22. It is further in her evidence that on 22 March, she
received a phone call from the cellphone of Ganesh.
According to her, the cellphone number of Ganesh was
7741935404, while her cellphone number was 9527425132.
She received a call of an unknown person on her cellphone.
The caller was speaking in Hindi. He was making demand of
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Rs.One Crore for release of Ganesh. The caller told that
Rohan, Vishal, Ganesh and Pratesh were in their custody. He
asked them to arrange for money by 25 March. The caller
even threatened her of dire consequences, if she tried to
approach police or make the incident public. According to her,
similar SMS was received on her cellphone from the cellphone
of Ganesh. It is further in her evidence that on 24 March, she
received missed-call. According to her, no complaint with the
police was lodged as they were hopeful of return of Ganesh
immediately after his paper of I.T. subject was over on 25
March. Even, Ganesh did not return thereafter. Her brother
Sunil (PW 1) lodged missing-person's report. It is further in her
evidence that she again received missed-call and then,
message from the cellphone of Ganesh. She was informed
through the message that he (Ganesh) was to pay loan of his
friends. He was, therefore, in need of money of Rs.9 Lakhs.
He also made demand of Rs.35 Lakhs for opening a mobile
shop at Kopargaon. It is further in her evidence that on 6 April,
she was at her own residence. It was about 04.00 p.m., she
received a threatening call on her cellphone. The caller was
unknown person, speaking in Hindi. The caller made demand
of Rs.1 Crore. She asked the caller to allow her to talk with
Cri.Appeal No.370/2018 with
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Ganesh; but he (caller) told her that Ganesh was not around.
She even informed the caller that she was ready with the
money to be paid to him. The caller, thereafter, told her that he
would inform her after seven days. The call was then
discontinued.
23. It is further in her evidence that since her mother
was not keeping well, she came to Matapur on 09.09.2015.
People had gathered at the house of her brother, PW 1 -
Sunil. She learnt that a news was flashed in the daily
disclosing Ganesh to have been killed by Parag Pathare, Ajay
More and Dhiraj Shinde (appellants).
24. She was subjected to a searching cross-
examination. She could not tell to whom cellphone
No.9763899505 belonged. She did not bring her cellphone
with her to the Court. She even claimed ignorance about the
person by name, Ashok Lavande. She then clarified to have
heard a person of the same name. According to her, he, i.e.
Ashok Lavande was brother of husband of her sister. He was
no more. She could not tell his cellphone number. The
defence wanted to suggest that the cellphone number
No.9763899505 (referred to above), belonged to Ashok
Cri.Appeal No.370/2018 with
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Lavande. She denied that message was received from said
cellphone on her cellphone on 22 March. It is further in her
evidence that she knew Adesh Adhav. She did not know Rushi
Wable, Ajay Tagad and Parmi. She knew Kishor Daund.
Adesh and Kishor were good friends of her son Ganesh. She,
however, could not tell that there were number of phone calls
from these friends on the cell phone of Ganesh on 12 th March.
According to her, only from Tejaswini she learnt that Ganesh
did not collect his tiffin. She denied that behaviour of Ganesh
was not good and therefore, after his 10 th standard education,
he was kept in hostel. She denied Ganesh was rusticated
from the hostel and therefore, was staying with Sunil (P.W.1).
25. P.W.8 Punam was cousin of Ganesh (daughter of
maternal aunt). She would run a medical shop attached to Dr.
Unde's Psychiatric Hospital, at Shrirampur. It is in her
evidence that on 12.03.2015, she closed the shop and was on
her way home by 06.30 p.m. She was riding Scooty.
According to her, near Morge Hospital, she saw Parag along
with Ganesh and two other boys. Parag had black colour
Activa Scooter with him, while those two unknown boys had
red colour motorbike. She even inquired with Ganesh, as to
Cri.Appeal No.370/2018 with
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what he was doing there. Ganesh told her to have been in the
accompanying Parag for purchasing of cellphone for him
(Parag).
Her evidence indicates that she had shared the fact
of having seen Ganesh in the company of those three
(appellants), to her parents. It is further in her evidence that on
the next day, Ganesh did not come to Matapur and therefore,
his maternal uncle (P.W.1 Sunil) took search for him. Her
father too made search for Ganesh. He (Ganesh) was,
however, not found anywhere. According to her, police
recorded her statement on 27.03.2015. She went to Tahsil
Office, Shrirampur, for identification parade on 30.10.2015.
She identified the appellants - Dhiraj Shinde and Ajay More in
the test identification parade.
26. During her cross-examination, it was brought on
record that the main gate of Unde Hospital opens towards
East. There is water canal at one side and IDBI Bank on the
other side of the hospital. Said water canal is onto southern
side, while IDBI Bank is on northern. There is first turn to the
road after crossing canal, on south side of Unde Hospital. On
the given day, i.e. 12 March, she proceeded towards southern
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side. There was no other medical shop attached to said
hospital, except her's. She could not state how many persons
were indoor patients in the hospital on the given day. It was
her practice to inquire as to number of patients admitted to the
hospital and whether they were in need of medicine in the
night hours. No such inquiry did she make on the given day.
On her Shop-Act licence, the shop timing is from 10.00 a.m. to
08.00 p.m. Dr. Unde would give service round-the-clock at his
hospital. She could not describe the clothes on the person of
Parag on the given day. Same is the case about other two in
the company of Ganesh. It is further in her evidence that on
09.09.2015, a news had flashed in the daily, that Ganesh was
killed by the appellants. She did feel to visit the police station
to see the culprits. She could not tell age group of the persons
made to stand in the row as dummies in the test identification
parade. She further testified that there was Morge Hospital
while going towards southern side from Unde Hospital. She
denied to have deposed falsely since Ganesh was her cousin.
Learned A.P.P. submitted that, there is no denial about the
evidence of P.W.8 that she closed the medical shop by 6.00
p.m. for the day.
Cri.Appeal No.370/2018 with
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27. P.W.19 Vishal Vathore was Police Inspector,
attached to Shrirampur Police Station. He was entrusted with
the investigation of the crime (C.R. No.72 of 2015), registered
pursuant to the FIR (Exh.17) lodged by P.W.1 Sunil. It is in his
evidence that he paid visit to the premises of one Tushar
Parkhe (P.W.18), in one of the rooms of his premises,
appellant Parag Pathare would reside on rent. He drew crime-
scene panchnama (Exh.19) of the said room since, according
to him, Ganesh was kidnapped from the very room. P.W.18
Tushar Parkhe was the landlord of the said premises. His
evidence indicates that he had let out one of his rooms to
Parag Pathare. His friends used to visit the same. According
to him, Yuvraj Kale, Mahesh Mane, Abhijit Shete and
Vruddheshwar were friends of Parag Pathare (appellant). He
informed police these four names. His police statement is
silent to state that relations of Ganesh (deceased) had visited
the premises to find whether Ganesh was there. Since nothing
incriminating was found during the panchnama of the said
room, we do not propose to refer to the evidence of the panch
witness (PW 2 - Santosh) in that regard.
Cri.Appeal No.370/2018 with
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Gangapur Police Station :-
28. Exh.58 is the FIR lodged by one Ganesh
Jagannath Jamdar, Assistant Police Inspector, Gangapur
Police Station. He was not examined as witness. The
defence, however, admitted the said document in evidence.
Whether reading of the FIR in evidence on admission by the
defence, would be a question of law. The defence has,
however, admitted further documents in the nature of inquest
panchnama (Exh.60). Same indicates that dead body of a
person in partially burnt condition with injuries on its face was
found below the bridge of Shivana river. The dead body was
noticed on 16.03.2015 by evening. Since the darkness had
descended by that time, the inquest was drawn on the
following day. Since the dead body was in highly decomposed
condition, the post mortem (p.m.) examination was stated to
have been done on the spot. The post mortem report has not
been produced in evidence. Considering the nature of the
dead body, some samples therefrom were obtained for DNA
profiling. The dead body was buried by the side whereat it was
found. The dead body burial panchnama was drawn vide
Exh.62. Learned counsel representing the appellants before
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the Trial Court, gave endorsement thereon to the effect "may
be admitted in evidence".
29. PW 20 - Ashok had been to F.S.L., Kalina, Mumbai
on 14.09.2015 and brought the DNA kit.
30. The evidence indicates that the blood samples of
P.W. 7 Minakshi were obtained for DNA profiling. DNA report
(Exh.232) was admitted by the defence in evidence. The
report proves that P.W.7 Minakshi was biological mother of the
deceased Ganesh. As such, although there was some
variance as regards age of the dead body recorded in the
inquest on its appearance and the actual age of the deceased
Ganesh, the DNA report concluded that it was the dead body
of Ganesh and none else.
31. P.W.24 Sanjaykumar, Police Sub-Inspector, was
the official attached to the Local Crime Branch (LCB),
Ahmednagar. It is in his evidence that the cellphone number
7741935404 was under surveillance. He obtained CDR/SDR
of the said cellphone to know who was making use thereof. It
is in his evidence that said mobile was registered in the name
of Bhagirathi Thorat (PW 9). Rest of his evidence is hearsay
Cri.Appeal No.370/2018 with
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and therefore, not adverted to.
During his cross-examination, it has been brought
on record that the IMEI number of the seized cellphone was -
356689056494320/1. He had given report as to what was
transpired during the surveillance made by him. Said report is
at Exh.127. According to him, it was a cellphone of Nokia
make. Its IMEI number was 356689056494320/1, wherein
SIM Card of number 9730845978 of Airtel Cellular Company,
was being used.
32. Pursuant to the surveillance report, the
investigating officials first reached out to P.W.9 Bhagirathibai.
It is in her evidence that Sadhana Mande (P.W.10) was
daughter of his brother. A SIM card (9730845978) was
purchased in her name. She had given said SIM Card to
Sadhana Mande for her use. P.W.10 Sadhana testified that
said sim-card was given to her by her aunt (PW 9-
Bhagirathibai) for her use. According to her, Sagar Pawar
(P.W.11) was her friend. She had, therefore, given said sim-
card to him. It is in her cross-examination that the mobile
phone with SIM Card No.9730784866 was being used by her.
She would talk to Sagar Pawar almost everyday.
Cri.Appeal No.370/2018 with
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33. P.W.11 Sagar Pawar's evidence indicates that he
had received a sim-card of number 9730845978 from his friend
Sadhana (PW 10). He was doing Diploma in Engineering
(Polytechnic), in the year 2015. It is further in his evidence that
about 5-6 days prior to the incident, he came to know of one
Yadav in the shop of I-con Computer. He was Raju Ramjit
Yadav. He (Sagar) purchased Nokia-Lumia 625 mobile
handset from him for Rs.5,000/-. He identified the handset
shown to him before the Court. According to him, he was
using said handset for SIM Card No. 9730845978.
34. P.W.12 Raju Yadav testified that he had purchased
the very Nokia - Lumia 625 handset for Rs.3,000/- from one
Shubham Lokhande and sold it to Sagar (PW 11) for
Rs.5,000/-.
35. PW 13 - Shubham Lokhande was another witness
in the said chain. It is in his evidence that he would run a
footwear shop at Main Road, Shrirampur. He knew Ajay More
(appellant). Ajay had given him a mobile handset of Nokia
make. He had purchased it from Ajay for Rs.2,500/- and sold it
to Raju (P.W.12) for Rs.3,000/-. According to him, it was in
Cri.Appeal No.370/2018 with
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working condition.
Shubham was subjected to a searching cross-
examination. It is in his evidence that he was arrested in the
very crime. He was in police custody for 14-15 days. The
record indicates that he admitted that he was in jail for not less
than three months. His arrest was effected after having been
interrogated him. Prior to his arrest, he was unaware of the
crime. He stated to have had met Ajay More only once relating
to said mobile handset. He, however, denied to have had not
bought the cellphone from Ajay.
36. It is P.W.14 Sonyabapu, who had carried DNA
samples with DVR machine and adapter cable, seized in the
crime, and delivered to F.S.L., Kalina, Mumbai. He placed on
record the office-copy of letters (Exh.52 to Exh.54).
37. P.W.16 Laxman was a Police Patil of village
Dhoregaon, Taluka Gangapur. His evidence is to the effect
that, one dead body was found below the bridge over Shivana
river. In a capacity of Police Patil, he paid visit to the spot.
The person lying there was clad in a Jeans pant. Its one leg
was burnt. A panchanama was drawn.
Cri.Appeal No.370/2018 with
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38. P.W.21 Vijaykumar was Police Station Incharge of
Gangapur Police Station. It is in his evidence that, pursuant to
the information received, he went to a place under a bridge
over Shivana river. Dead body of a male was found there.
The body was partially burnt. A stone was lying in the nearby
of the dead body. The stone had blood stains. There was one
oil can as well. As it was late in the evening and no electricity
was there, he deputed Head Constable Avadhut and two
Home Guards to guard the crime scene.
It is further in his evidence that, he went to the
crime scene on the following day with two panchas and drew
inquest panchanama (Exh.60). He seized certain articles from
the crime scene. Since the dead body was in decomposed
condition, the Medical Officer did post mortem examination on
the spot. Since it was a dead body of an unknown person, the
same was buried in the nearby in the presence of two
panchas. He referred to the panchanama (Exh.62) in that
regard. It is further in his evidence that, he sent the articles for
DNA profiling through a Police Constable to Forensic Science
Laboratory, Kalina, Mumbai. It is further in his evidence that,
he sent other seized articles to the office of Forensic Science
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Laboratory, Aurangabad for chemical analysis. He referred to
his communications in that regard vide Exhs.80 to 83. It is
further in his evidence that, he learnt that a missing person's
report was registered at Shrirampur Police Station. He,
therefore, contacted Police Station Officer of Shrirampur Police
Station. A.P.I. Nitin Pagar (P.W.22) was investigating the said
case.
39. During his cross-examination, it has come on
record that, there were two Toll Plazas on the way from
Shrirampur to the place whereat the dead body was found. He
has made communication with the Heads of those two Toll
Plazas for obtaining CCTV footage. According to him, the
CCTV footage could not be collected since the same got
deleted automatically after a period of three months.
40. The inquest panchanmama (Exh.60) indicates that,
there was a wrist watch on the wrist of the deceased. P.W.22
Nitin was the A.P.I. serving with Shrirampur Police Station. It is
in his evidence that, appellant Parag Pathare and Ajay More
were arrested when he took over the investigation on 8/9/2015.
He interrogated both of them. They confessed to the
commission of the crime. What has been stated by the
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appellants Parag Pathare and Ajay More to P.W.22 Nitin being
inadmissible in evidence in view of Section 25 of the Evidence
Act, the same is not referred to. His evidence indicates that,
these two appellants shown various places whereat they had
taken the deceased and the manner Ganesh was killed. It is
further in his evidence that, he found that all the cell phones of
the appellants were switched off under one mobile tower. He,
however, in cross-examination, admitted to have not placed on
record any evidence in that regard. His evidence also
indicates that, he did not seize cell phones of the appellants. It
was he who had sent the two cell phones to Forensic Science
Laboratory and even obtained CDRs/ SDRs. According to him,
IMEI Number of the cell phone of accused as was stated by
the complainant was 911421052576430. The said IMEI
Number was of the cell phone of the deceased. It was Nokia
Lumia mobile. His attention was adverted to Exh.101 (CDR).
With reference thereto he testified whether the message was
received from Mobile Number 7741935404. According to him,
a crime vide C.R. No.48/2014 was registered in Gangapur
Police Station for offence punishable under Sections 302 and
201 of the Indian Penal Code.
Cri.Appeal No.370/2018 with
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41. P.W.3 to P.W.5 were the witnesses to the various
panchanamas. Appellant Ajay More was arrested on
25/8/2015. Appellant Parag Pathare and Dhiraj Shinde were
arrested on 1/9/2015 and 8/9/2015 respectively. Most of the
evidence of these witnesses is inadmissible in evidence, being
hit in view of Section 25 of the Evidence Act.
42. P.W.2 Santosh was witness first to a spot
panchanama (Exh.19), dated 26/3/2015. The same has
already been referred to above. He is then witness to the
panchanama of a seizure of a cell phone from Sagar Pawar.
The seizure is vide panchanama Exh.22. In the cross-
examination, he admitted that, except panchanama Exhs.19
and 20, he did not remember any other thing. The cell phone
seizure panchanama (Exh.20) contain IMEI Number of the
seized cell phone as 356689056494321/0. It was Nokia make.
Its colour was black. The cell phone contained SIM Card of
the Number 9730845978. P.W.3 Sandip was a witness to the
so called disclosure statement made by appellant Ajay. The
said statement was in the nature of a confession to the police.
The statement was to the effect indicating in what manner he
and the other appellants kidnapped Ganesh, took him to hotel,
Cri.Appeal No.370/2018 with
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consumed alcohol, then took him to a place under a bridge,
again administered him liquor and after having found him to be
unconscious, committed his murder. P.W.3 Sandip is the
witness to various panchanamas, such as Exhs.22 to 29.
Somewhat relevant evidence in this case would be a
disclosure statement by appellant Parag, pursuant to which a
red colour motorbike came to be seized under panchanama
(Exh.26). The panchanama (Exh.20) pertains to seizure of
CPU, AC/DC Adapter of a CCTV Unit of Hotel Rajyog, under
panchanama (Exh.27). Panchanama (Exh.29) pertains to the
identification of clothes of the deceased by his mother at the
Police Station. While panchanama of seizure of the said
clothes is at Exh.28. Those clothes were produced by police
officer Shri Sonawane in sealed condition. The seal was
opened and the clothes were shown.
43. P.W.4 Ramesh is a witness to the seizure of cell
phone (SIM Number 9527425132) of Smt. Minakshi (mother of
the deceased Ganesh). It was seized under panchanama
Exh.35.
44. P.W.5 Subhash was a witness to a statement made
by appellant Parag Pathare that he would show the place
Cri.Appeal No.370/2018 with
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whereat he had broken and thrown the SIM Card (Exh.39).
The statement and pointing out the place and memorandum
thereof is at Exhs.37 and 38. The same being inadmissible in
evidence, is not referred to in extenso. He is also a witness to
a disclosure statement made by appellant Parag Pathare,
pursuant to which a black colour Activa (two-wheeler) came to
be seized from a parking slot of one of the Housing Societies
at Sasane Nagar, nearby Pune. A panchanama to that effect is
at Exh.38.
45. P.W.17 Sachin Mhaske was a Naib Tahsildar-cum-
Executive Magistrate, who held the test identification parade
on 3/12/2015. It is in his evidence that, witness Punam (P.W.8)
identified appellant Ajay More and Dhiraj Shinde in test
identification parade held by him in jail. According to him, two
separate test identification parades were held. Services of 6
persons were availed as Dummies. The Dummies were
different for both the test identification parades. The
memorandum of test identification parade of appellant Dhiraj
Shinde, is at Exhs.65 and 67 while that of appellant Ajay More
is at Exhs.68 and 69. According to him, the police produced 6
persons as Dummies. The Dummies were of the same age
Cri.Appeal No.370/2018 with
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and height of that of the persons to be identified. While the
memorandum of test identification parade indicates that the
police officers were not asked to be present at the place of test
identification parade.
46. P.W.23 Sachin Shinde was a Nodal Officer of Idea
Cellular Company. He placed on record CDR and SDR for the
period 12/3/2015 to 7/4/2015 of the cell phone numbers
7741935404 and 9527425132. He placed on record the same
along with 65-B Certificate (Exh.110). It is in his evidence that,
on 12/3/2015, there was a call from cell phone Number
9527425132 on the cell phone Number 7741935404.
According to him, there were 5 outgoing calls on 13/3/2015
from cell phone Number 9527425132. Those calls were made
to cell phone Number 7741935404. He testified that, on
12/3/2015, there is call from Mobile No.9527425132 to
7741935404 so also five outgoing calls on 13/3/2015 from
Mobile No.9527425132 to 7741935404. On 18/3/2015, there
is one SMS from said Mobile to 7741935404 and one incoming
call on 22/3/2015 from Mobile No.7741935404 to
9527425132. Further, three SMS were received on the same
mobile. Further, on 26/3/2015, message was received on
Cri.Appeal No.370/2018 with
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Mobile No.7741935404 from Mobile Number 9527425132.
Further, on 29/3/2015, total eight messages have been
received on Mobile Number 9527425132 from Mobile
No.7741935404 whereas three incoming calls were received
on 6/4/2015 on Mobile Number 9527425132 from Mobile
No.7741935404.
During his cross-examination, he testified that, SIM
Card of Number 7741935404 was issued in the name of one
Ashok Shinde. As per record, he was resident of Bhalgaon,
Taluka Vaijapur, District Aurangabad. He had applied for
obtaining SIM Card on 25/5/2013. He tendered in evidence
application submitted by person named Ashok Shinde along
with document in proof of his identity. Those were at Exhs.114
and 114-A. According to him, cell phone Number 9527425132
also stood in the name of some other person and not Minakshi.
According to him, IMEI Number of cell phone Number
7741935404 was 911421052576430. According to him, during
the period from 12/3/2015 to 7/4/2015, cell phones of two
different IMEI Numbers were used for making calls from cell
phone Number 7741935404. The other IMEI Number was
356689056494620. He was shown the cell phone of Nokia
Cri.Appeal No.370/2018 with
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Make. Its model number was 625. Its IMEI Number was
356689056494321. The cell phone was of black colour.
According to him, all the three IMEI Numbers were different. It
is further in his evidence that, there were calls between cell
phone numbers 9527425132 and 9763899505 vide Exh.112.
He could not state the tower location of those phone numbers
when the calls between these two cell phone numbers took
place.
47. P.W.25 Shivaji Palde was the Police Officer
attached to Shrirampur City Police Station during relevant time.
It was he who filed report under Section 169 of the Cr.P.C.
against then accused - Shubham Lokhande (P.W.13).
48. P.W.26 Arjun Gaikwad was a Scientific Officer
serving with Regional Forensic Science Laboratory, Kalina,
Mumbai. The report (Exh.101) was prepared by him.
According to him, it was pertaining to IMEI Number
356689056494321. He too tendered in evidence Section 65-B
Certificate. It is in his evidence that, in Mobile phone on
Contact No.9763899505 one message was sent on 23/3/2015
at 14:04:12 o'clock. The said message was, "Rohan, Vishal,
Ganesh, Pratesh, Charo hamare pass hai. Agar aapko aapke
Cri.Appeal No.370/2018 with
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ladke ki khairiyat chahte ho to ek crore ready rakho 25 March
tak. Aap ko wapas se ek call aayega. Police complaint bilkul
nahi, koi hoshiyari nahi warna un charo ki lash aapko milegi
aur wah sab Allah ko pyare ho jayege. Hamari najar aap par
rahegi ye 4 din. Gud luck". It is further in his evidence that, if
the said CD is played on then messages, contacts and call
logs will be seen.
49. It is further in his evidence that, from the server of
the DVD, nothing could be retrieved like CCTV footage etc.
According to him, in his report (Exh.101), there is no mention
of Mobile Number 7741935404. He was candid enough to
state that, his report is silent regarding what procedure he
adopted for giving his opinion and finding the SMS sent from
one cell phone to the other.
50. The aforestated is the entire evidence in the case.
Before turning to the appreciation of the aforesaid evidence, it
needs no mention that, the case is based on circumstantial
evidence and mainly on the last seen theory and cell phone
record.
51. In case of in case of Sharad Birdichand Sarda Vs.
Cri.Appeal No.370/2018 with
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State of Maharashtra (1984 CJ (SC) 262), the Apex Court
observed :-
"152. A close analysis of the 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
Sahebrao Bobade v. State of Maharashtra,
(1973) 2 SCC 793, 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 should not be
explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of conclusive
nature and tendency,
(4) they should exclude every possible
Cri.Appeal No.370/2018 with
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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."
52. The following are the circumstances sought to be
proved by the prosecution on the basis of the evidence
referred to hereinabove:-
(1) Homicidal death of Ganesh,
(2) The deceased Ganesh having been lastly seen in
the company of the appellants.
(3) CDRs and SDRs of the cell phones belonging to
the deceased and his mother Minakshi.
53. Admittedly, Ganesh was a 12 th Standard student of
Science stream of R.B.N.B. College, Shrirampur in the year
2015. He hailed from Kopargaon. His father had passed away
in 2012. He had two sisters, Tejaswini and Ruchira. Ruchira
was married. Ganesh completed his education up to 10 th
Standard at Kopargaon. For further education, Ganesh and
Cri.Appeal No.370/2018 with
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his sister Tejaswini started residing at the house of their
maternal uncle P.W.1 Sunil at Matapur. Ganesh would shuttle
between Matapur and Shrirampur for attending college. The
evidence of P.W.1 Sunil and his wife Jyoti (P.W.6) would
indicate that Ganesh left the house for college as usual on
12/3/2015. He carried with him a black colour sack bag. Their
evidence further indicate that, he informed them that he would
be back after 15 days. Ganesh also reportedly said them that
he would be staying along with appellant Parag Pathare in his
room. His examination of 12 th Standard was underway. The
last paper of I.T. was on 25 March. There is also evidence to
indicate that, Adesh Adhav, friend of Ganesh had told P.W.1
Sunil on the following day that Ganesh had asked him to
inform at his maternal uncle's residence that he would be
going to Goa along with his friends.
54. In the cross-examination, P.W.1 Sunil testified that,
Ganesh had left the house along with Adesh Adhav on
12/3/2015. Adesh Adhav has not been examined as a witness
nor was he suspected to have been involved in the case.
55. Admittedly, Ganesh did not return post he left the
house on 12/3/2015. It was tried to be argued by learned
Cri.Appeal No.370/2018 with
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Advocate Mr. Thigale that, the dead body that was found under
the bridge over Shivana river was not that of Ganesh. We do
not subscribe to his submissions. Admittedly, dead body of a
male person was found on 16 March below the bridge over
Shivana river. It was in highly decomposed condition. On the
spot post mortem examination was said to have been done.
For the reasons best known to the prosecution, the post
mortem examination report has not been placed on record.
Admittedly, viscera was preserved. The same was sent for
chemical analysis. Blood sample of Minakshi was obtained.
The DNA report (Exh.323) indicates the dead body found at
the concerned place was that of a biological son of P.W.7
Minakshi. The DNA report (Exh.232), inquest panchanama
(Exh.60) and the dead body burial panchanama have been
expressly allowed to be admitted in evidence by the concerned
Advocate representing the appellants before the Trial Court.
On all these documents, we find an endorsement "May be
admitted in evidence". Learned Advocate Mr. Thigale,
therefore, could not now be heard to say that the dead body
was not that of Ganesh, son of Minakshi.
56. His reliance on the judgment of the Apex Court in
Cri.Appeal No.370/2018 with
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case of Alamelu & ors. (supra) would be of little assistance for
him since it pertains to proof of date of birth. True, it has been
observed therein that mere admission of a document does not
dispense with the obligation of the prosecution to prove
probative value of the contents of the document. There can be
no two views over the same. In the peculiar facts and
circumstances of the present case, however, since the
appellant admitted the DNA report (Exh.232), we have no
hesitation to hold the dead body found was that of Ganesh and
none else.
57. The inquest panchanama (Exh.60) indicate the
dead body was in decomposed condition. It was partially
burnt. Head was smashed with a stone. A stone was lying in
the nearby. There were blood stains on the stone. An oil can
was also found at the scene. It, therefore, cannot be said to be
a case of an accident or suicide. From appreciation of this
evidence, we reach the conclusion that deceased Ganesh met
with homicidal death, though the post mortem report was not
placed on record.
58. The question is, whether the appellants were the
authors of the crime. Appellant Parag Pathare was stated to
Cri.Appeal No.370/2018 with
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be a close friend of deceased Ganesh. 12 th Standard
examination of Ganesh was underway. He had left the house
of his maternal uncle (P.W.1 Sunil) in the morning of 12/3/2015
as usual. He had informed P.W.1 Sunil that he would be
staying with appellant Parag for study for 15 days. The
evidence in examination-in-chief of P.W.1 Sunil and his wife
Jyoti (P.W.6) would suggest that it was Ganesh who alone left
the house in the morning of 12 March. P.W.1 Sunil, however,
in his cross-examination, admitted that, Ganesh left in the
company of Adesh Adhav.
59. The F.I.R. (Exh.17) was lodged by P.W.1 Sunil on
25/3/2015 i.e. 13 days after Ganesh left the house. As per the
prosecution case itself, (P.W.1 Sunil and his wife P.W.6 Jyoti),
Ganesh had left the house to stay with his friend - appellant
Parag Pathare. According to the prosecution, on the following
day i.e. on 13 March, Adesh Adhav had informed P.W.1 Sunil
and his wife Jyoti (P.W.6) that Ganesh had asked him to tell
them that he was leaving for Goa along with his friends. The
evidence of P.W.1 Sunil further indicates that, he tried to
contact Ganesh for two consecutive days i.e. on 13 and 14
March 2015. He, however, could not establish contact.
Cri.Appeal No.370/2018 with
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Admittedly, P.W.1 Sunil had lodged a missing person's report.
The same has not been placed on record. According to P.W.1,
he was hopeful of return of Ganesh immediately after his paper
of I.T. subject was over on 25 March. The report (Exh.17) was
lodged stating therein that some unknown person kidnapped
Ganesh for ransom. It is just surprising that when Ganesh had
left the house to join appellant Parag Pathare, there is nothing
to indicate the family members to have ever suspected Parag
Pathare's role. It was just unnatural conduct on their part.
There is nothing to indicate that P.W.1 Sunil or anyone else
had really paid visit to the room wherein appellant Parag
Pathare was staying on rent. The landlord Tushar (P.W.18),
whose room was taken on rent by appellant Parag Pathare,
testified that, family members of Ganesh had come to his
premises and enquired whether he was residing. That time
only he came to know that Ganesh was not in the room. In his
cross-examination, P.W.18 Tushar testified that, one Yuvraj
Kale, Mahesh Mane, Abhijit Shete and Vruddheshwar were the
friends of Parag. His police statement is also silent to state
that family members of Ganesh had been to him to make
enquiry as to whether Ganesh was there along with Parag
Pathare in a room taken on rent from him (P.W.18). As such, it
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appears that, P.W.18 Tushar was even not knowing deceased
Ganesh. His police statement being silent (material omission)
to state that Ganesh was staying with appellant Parag in the
room, his evidence before the Court is an improvement over
his police statement.
60. When P.W.1 Sunil lodged the F.I.R. (Exh.17), and
based on which the crime was registered, there is nothing to
indicate that the then investigating officer of the said crime
(Shri Vathore) made any efforts to locate Ganesh or any of his
friends, mainly appellant Parag Pathare. There is no any
shred of evidence that, from 13 March until next 4-5 days any
of the appellants were absconding. Although P.W.22 Nitin
Pagar, testified that he found all the cell phones of the
appellants were switched off under one tower location, he was
candid enough to admit that no such evidence was placed
before the Court.
61. Evidence of P.W.8 Punam, cousin of the deceased
Ganesh (daughter of maternal aunt) indicate that, on the given
day i.e. on 12 March, she had seen Ganesh (deceased) along
with appellant Parag Pathare and two others (Ajay More and
Dhiraj Shinde) near Morge Hospital while she was on her way
Cri.Appeal No.370/2018 with
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home little past 6.30 p.m. The question is, whether her
evidence inspires confidence. The appellants have every
reason to contend her to be a planted witness. Admittedly,
Punam would run a medical shop/ store. The licence issued to
her indicates timing of the shop being from 10.00 in the
morning to 8.00 in the evening. Her medical shop was
attached to a Psychiatric Hospital of Dr. Unde. According to
her, she would close the shop for the day after having verified
that, OPD patients were no longer there. Her evidence in
examination-in-chief indicates that she closed the shop by 6.00
p.m. and was on her way home on a Scooty. She met Ganesh
along with the appellants near Morge Hospital. She even
enquired with Ganesh to learn from him that he was
accompanying Parag Pathare for buying a cell phone of him
(Parag Pathare). She then went her home. On the following
day, she went to her maternal uncle's house (P.W.1 Sunil) at
Matapur. Since deceased Ganesh did not return on that day,
her maternal uncle took search for him. This piece of evidence
does not sound reasonable since according to P.W.1 Sunil
himself Ganesh had left the house for staying with appellant
Parag Pathare for 15 days. Therefore, there was no question
for him to make search for Ganesh on account of his non
Cri.Appeal No.370/2018 with
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return to his residence late evening on 12 March itself. During
cross-examination of Punam (P.W.8), it has been brought on
record that there was a water canal on southern side of the
Unde Hospital while IDBI Bank was on the northern.
According to her, there was first turn to the road after crossing
canal on south side of Unde Hospital. Then there is first turn
on north side of Unde Hospital near IDBI Bank. Up to these
turns, road in front of Unde Hospital was straight. She testified
that, she proceeded towards southern side. While the place
whereat she had met Ganesh near Morge Hospital, was
towards northern side. Her evidence further indicates that,
there was only one shop attached to Dr. Unde's Hospital. On
the given day i.e. 12/3/2015, she did not make any enquiry
while closing of the medical shop as to whether there were
outdoor patients. This conduct of Punam (P.W.8) was unusual.
More so when her evidence indicates that, there used to be
indoor patients as well and Dr. Unde would give medical
service round the clock. Her evidence would further indicate
that, on the next day itself she had visited the house of her
maternal uncle Sunil (P.W.1). The evidence of P.W.6 Jyoti
indicates that, Punam (P.W.8) used to visit her residence at
least once a week. Keeping quiet for a long time, expecting
Cri.Appeal No.370/2018 with
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return of Ganesh appears to be unusual. True, they (P.W.1
and P.W.6) were somewhat distant relations of the deceased.
P.W.8 Punam even could not describe clothes on the person of
Ganesh and the appellants while she had seen them near
Morge Hospital. Admittedly, her evidence indicates that,
Morge Hospital was not located on the way which leads to her
home. There is nothing in her evidence as to why she took the
route/ road that would lead towards Murge Hospital. Moreover,
her statement was recorded by investigating officer on 27
March i.e. 15 days after Ganesh left the house and two days
after registration of the F.I.R.
62. A test identification parade was held by P.W.17
Sachin Mhaske, Naib Tahsildar-cum-Executive Magistrate on
3/12/2015. The investigating officer had given him a letter on
2/11/2015 itself to hold test identification parade. He held the
test identification parade one month after receipt of the
requisition and about three months after arrest of the
appellants. Admittedly, names of the appellants had been
flashed in the daily on 9 November itself. P.W.8 Punam had
not given the description of appellants Parag Pathare and Ajay
More in her statement to the police. Since evidence of P.W.8
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Punam that she closed her medical shop by 6.30 p.m. and
while on way home she met Ganesh along with the appellants
is found to be unbelievable, being unnatural on the part of
owner of a medical shop, services of which were required in
fact round the clock or at least up to 9.00 p.m. everyday. Her
evidence that on the given day, she even did not enquire or
satisfy herself that there were no patients in the OPD and as
such, there would be no inconvenience to Dr. Unde or any of
his patients if she closed the medical shop for the day, appears
to be unreasonable and unnatural as well. We, therefore, do
not propose to rely on her evidence. The same does not
inspire confidence. For these reasons, her evidence of having
identified the appellants Dhiraj Shinde and Ajay More in test
identification parade loses its efficacy. More so, when the test
identification parade was held about three months after arrest
of these appellants. Admittedly, their names were flashed in
the daily on 9 November itself.
63. Conviction solely based on last seen theory may
only be based when the time gap between the two is so narrow
so as to eliminate possibility of intervention of some third
person in between. In the case in hand, even we accept (for
Cri.Appeal No.370/2018 with
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the sake of assumption) that P.W.8 Punam had seen Ganesh
(deceased) in the company of appellants on the evening of 12
March, dead body of Ganesh was found somewhat late in the
evening of 16 March. The Medical Officer who conducted the
post mortem was not examined. Post mortem report has not
been placed on record. As such, the prosecution produced no
evidence as regards exact time by which Ganesh met with
homicidal death. The so called last seen theory would,
therefore, be of little consequence to connect the appellants
with the crime in question.
64. As per the prosecution case itself, the appellants
had taken the deceased to Hotel Rajyog. They took wine and
dined there. Thereafter they took Ganesh to a place whereas
his dead body was found. Then they killed him there.
Admittedly, the investigating machinery had collected the
CCTV Unit and even the hard disc thereof and sent to Forensic
Science Laboratory to retrieve recording therein. It was
P.W.26 Arjun, Scientific Officer with Forensic Science
Laboratory, Kalina did this exercise. His report indicates
nothing could be recovered from the hard disc of the CCTV
Unit. As such, there is no evidence to indicate that the
Cri.Appeal No.370/2018 with
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appellants and deceased had been to Hotel Rajyog, they took
wine and even dined there.
65. As per the case of the prosecution itself, the
appellants, after having left Hotel Rajyog administered wine to
Ganesh soon before he was murdered at the place whereat his
dead body was found. The C.A. report relating to viscera
(Exh.23) is also silent to indicate it to have contained alcohol
residues. The same too runs counter to the prosecution case.
66. The case of the prosecution that Ganesh was
kidnapped for ransom appears to have been improbable since
kidnapper did not make any call to mother of Ganesh or
anyone of his close relations before dead body of Ganesh was
found on 16. It is only on 22 March a first call and message to
that effect was received on cell phone of Smt. Minakshi
(P.W.7), mother of Ganesh. The inquest panchanama
(Exh.60) indicating wrist watch of Ganesh on his wrist indicates
that the killers had no motive to rob him.
67. Then what remains is the evidence in the nature of
CDRs and SDRs. Both the cell phones said to have been
used by deceased and his mother were issued in the names of
Cri.Appeal No.370/2018 with
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some other persons, but those were the days when the person
in whose name SIM Card issued stop making use thereof for
certain time, the concerned cellular company would issue SIM
Card of very number to someone else. True, there is no such
evidence in this case. Admittedly, the SIM Card used by the
deceased was issued in the name of Ashok Shinde. Ashok
Shinde has not been examined. We cannot be oblivious of the
fact that the case is based on circumstantial evidence. True,
the Trial Court has found that CDR record indicates that there
were many calls between the deceased and his mother and
their relations as well. There is also no serious dispute that the
deceased would use a mobile phone of SIM Number
7741935404. While the cell phone number of his mother was
9527425132. According to the prosecution, the cell phone of
the deceased was under surveillance. It was P.W.24
Sanjaykumar who did the said exercise. He found the SIM
Card of the deceased was active in a particular cell phone. He
did the investigation in that regard. As per the case of the
prosecution itself, one Bhagirathibai (P.W.9) had purchased the
cell phone with a SIM Number 9730845978. She had given
the said SIM Card to Sadhana (P.W.10), daughter of her sister.
Sadhana testified that, the said SIM Card was given by her to
Cri.Appeal No.370/2018 with
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her friend Sagar (P.W.11). Sagar testified to have received the
very SIM Card from Sadhana. It appears that, Sadhana and
Sagar were close friends and would converse with each other
on cell phone everyday.
68. P.W.11 Sagar's evidence indicates that, he was
making use of the said SIM Card in a mobile handset Nokia
Lumia Make 625. According to him, he had purchased the
said cell phone for Rs.5000/- from one Raju Yadav (P.W.12).
Raju Yadav in turn testified that he had purchased the said cell
phone (allegedly of the deceased) from Shubham Lokhande
for Rs.3000/- and sold it to Sagar for Rs.5000/-. The
prosecution then examined Shubham (P.W.13) who testified to
have had purchased the said cell phone (handset) allegedly of
the deceased, from Ajay More (one of the appellants). He had
sold the said cell phone to his friend Raju Yadav for Rs.3000/-.
According to him, he had purchased for Rs.2500/- from Ajay.
69. The aforesaid evidence of P.W.9 to P.W.12
indicates that, the handset with the SIM of the deceased
therein had changed many hands. It is, however just difficult to
believe that the person purchasing a used handset (second
hand), sells it for a price more thant the purchase price. There
Cri.Appeal No.370/2018 with
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is no evidence to indicate what was the cost of a new brand
Nokia Lumia 625 model cell phone so that one may believe the
handset in question to have changed hands for the price more
than market price.
70. Admittedly, P.W.13 Shubham was arrested in the
crime. He was in police custody for 15 days. He was behind
the bars for about 90 days in connection with the crime in
question. The investigating officer ultimately filed report under
Section 169 of the Cr.P.C. The same suggests that, during
investigation, the prosecution did not find any evidence against
Shubham. What material was there so as to file report under
Section 169 Cr.P.C. against P.W.13 Shubham is not on record.
Shubham being one of the suspects in the crime and was even
arrested and was behind the bars for about 90 days, his
evidence that he purchased the cell phone from appellant Ajay
More, that ultimately turned out to have belonged to the
deceased, needs to be taken with pinch of salt. Even for the
sake of assumption we accept the evidence of P.W.9 to P.W.13
that Bhagirathibai's SIM Card changed hands and the cell
phone of the deceased changed hands from Ajay More to
Shubham and from Shubham to Raju Yadav and from Raju
Cri.Appeal No.370/2018 with
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Yadav to Sagar Pawar is accepted, there is no evidence to
indicate the day, date and time on which the mobile handset
and SIM Card of Bhagirathibai in fact changed hands.
Therefore, even we accept the evidence of CDRs and SDRs
as it is, it is just difficult to observe the prosecution to have
clinching evidence to indicate any of the appellants had in fact
made a call and sent SMS on the cell phone of mother of the
deceased to make a demand of ransom of Rs.1 Crore. In
short, there is no evidence on record to indicate that on the
given day i.e. on 22 March, the day on which a call was made,
with a demand of Rs.1 Crore for release of Ganesh, the
handset was in possession of any of the appellants and it were
they or one of them who made such call and/or sent message
in furtherance of their common intention.
71. Exh.101 is the examination report of the cell phone
sent to Forensic Science Laboratory. The report indicates that,
IMEI Number of the cell phone sent for examination was
356689056494321. While the seizure panchanama of the cell
phone indicates its IMEI Number being 356689056494321/0.
P.W.22 Pagar did not testify to have scored '0' appearing in the
panchanama of the seizure of cell phone. True, the report
Cri.Appeal No.370/2018 with
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indicates that, excess '0' (zero) appearing in the panchanama
of seizure of cell phone to have been scored out, but for want
of explanation on behalf of P.W.22 Nitin Pagar, who drew the
said panchanama. True, the report indicates that a message
was retrieved, which was found in Mobile number 9527425132
belonging to mother of the deceased, sent to cell phone
Number 9763899505. There is no evidence to indicate to
whom this cell phone number belonged. It was stated to have
belonged to one Gorakshnath Chandgude (her husband). The
retrieved message was to the following effect :
Sr. Party Date Time Folder Status Source Message Deleted
No.
1 To: 23/03/2 23-03-2015 Sent Sent SIM 1 Rohan, Vishal, Ganesh, Intact
9763899505 015 14:04:12 Pratesh ye charo
humare pas hai, Agar
apko apke ladko ki
khairiyat chahate ho to
1 carod ready rakho 25
march tak. Apko vapas
se ek call ayega. Police
complaint bilkul nahi,
koi hoshiyari nahi
warna unn charo ki
lashh apko milegi or
who sub Allah ko pyare
ho jayenge. Humari
nazar ap-par rahegi ye
char din. Gud luck.
72. There is no investigation on the line to find who
were those persons by name Rohan, Vishal and Pritesh
besides deceased Ganesh in relation to whom the caller who
Cri.Appeal No.370/2018 with
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made demand of ransom was talking of. Clause 7 and 8 of the
report (101) reads thus :
7. SMS-Text messages were not found dated between
"12/03/2015" to "15/04/2015" mobile phone in Ex-1
and SIM Card in Ex-1-1.
8 SMS-Text messages were not found dated
"29/03/2015" mobile phone in Ex-2 and SIM card in
Ex-2-1.
73. Moreover, there is evidence to indicate that the SIM
Card belonging to the deceased was used with different cell
phone numbers, meaning thereby different IMEI Numbers.
There is no investigation on that line. P.W.23 Sachin was
categorical to admit that during the period 12/3/2015 to
7/4/2015 two IMEI numbers were used for Mobile No.
7741935404. Those were 911421052776420 and
911421052576430. The witness was shown cell phone of
Nokia Make Model No.625. It was of black colour. According
to him, its IMEI Number was 356689056494321.
74. We have also perused the CDRs and the calls
between two numbers and other numbers as well as have
Cri.Appeal No.370/2018 with
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been relied on by the prosecution.
75. Serious is the offence stricter shall be the proof.
The case is based on circumstantial evidence. Each and
every circumstance needs to be proved conclusively. Even the
CDRs and SDRs are accepted as it is, there is nothing to show
that on 22 and 25 March, whatever call or SMS were sent from
cell phone of deceased Ganesh, were sent by the appellants
or any one of them in furtherance of their common intention.
The prosecution has utterly failed to show that on the given
day the cell phone was possessed by the particular appellant.
More so when its case is that the cell phone and even the SIM
Card had changed many hands. No details thereof have come
in the evidence. One of the witnesses thereto, whom the
handset was said to have changed hands, was suspect in the
crime. He was arrested and was behind bars for 90 days.
Then report under Section 169 Cr.P.C. was filed against him.
Means, the prosecution did not get any evidence to send him
to stand trial. In the circumstances, testimony of P.W.9 to
P.W.13 that the SIM Card and the handset changed hands as
they have stated in their examination-in-chief do not lead us to
conclusively hold that the call was made and/ or SMS was sent
Cri.Appeal No.370/2018 with
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by any of or all the appellants in furtherance of their common
intention.
76. We have perused the judgment of the Trial Court.
The Trial Court has relied on the evidence of the appellants
disclosing the police the manner and way in which they had
kidnapped the deceased and committed his murder. The
same was inadmissible in law. We have also perused the
relevant paragraph Nos.56, 58 and 59 of the impugned
judgment, relied on by learned counsel for the informant.
These were the reasons of the Trial Court. This being the
appellate Court, dealing with Criminal Appeals against
conviction, could reappreciate the evidence and come to its
independent conclusion. On appreciation of the entire
evidence on record and the reasons, stated hereinabove, we
reach the conclusion that the prosecution has failed to
establish each and every circumstance beyond reasonable
doubt. The appellants are, therefore, entitled for benefit of
doubt. In the result, interference with the impugned judgment
and order of conviction and sentence is warranted.
77. In the sequel, the appeals succeed. Hence the
order :-
Cri.Appeal No.370/2018 with
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ORDER
(i) All the Criminal Appeals are allowed.
(ii) The order of conviction and consequential sentence,
dated 26/4/2018, passed by learned Additional Sessions
Judge, Shrirampur, District Ahmednagar in Sessions
Case No.40/2015 is hereby set aside.
(iii) The appellants are acquitted of the offences punishable
under Sections 302, 364-A, 363, 385, 387, 120-B and
201 read with Section 34 of the Indian Penal Code. Fine
amount, if any, be refunded to them.
(iv) The appellant Parag s/o Machindra Pathare and Ajay s/o
Dinkar More are in jail. They be set at liberty forthwith if
not required in any other case.
(v) Bail bonds of appellant Dhiraj s/o Shankar Shinde are
cancelled.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
