Bombay High Court
Parmeshwar S/O. Shankarrao Jadhav vs The State Of Maharashtra on 6 September, 2024
Author: R.G.Avachat
Bench: R.G.Avachat
2024:BHC-AUG:21445-DB
Cri Appeal Nos.499.2021 and 1059.2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.499 OF 2021
Daivashala w/o. Umakant Waghmare,
Age:50 years, Occ. Labour,
r/o. Vijay Colony, Samarth Nagar,
Latur ..Appellant
Vs.
The State of Maharashtra,
Through its Police Inspector,
Shivaji Nagar Police Station,
Latur ..Respondent
AND
CRIMINAL APPEAL NO.1059 OF 2019
Parmeshwar s/o. Shankarrao Jadhav,
Age : 39 years, Occ. Hotel,
r/o.L.I.C. Colony, Mahadev Nagar,
Latur ..Appellant
Vs.
The State of Maharashtra,
Through its Police Inspector,
Shivaji Nagar Police Station,
Latur ..Respondent
----
Mr.K.S.Kahalekar, Advocate holding for Mr.N.S.Ghanekar, Advocate for
appellant in Criminal Appeal No.499 of 2021
Mr.A.D.Ostwal along with Mr.P.M.Salunke and Mr.A.K.Bagdiya,
Advocates for appellant in Criminal Appeal No.1059 of 2019
Mr.V.K.Kotecha, APP for respondent
Mr.V.G.Kodale, Advocate assisting the A.P.P.
----
2 Cri Appeal Nos.499.2021 and 1059.2019
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : AUGUST 13, 2024
PRONOUNCED ON : SEPTEMBER 06, 2024
JUDGMENT (Per R.G.Avachat, J.) :
Both these appeals are decided by this common
judgment since the challenge therein is to one and the same
judgment of conviction and consequential order of sentence passed
on 19.08.2019, by learned Sessions Judge, Latur, in Sessions Case
No.121 of 2014. By the impugned order, learned Sessions Judge
(trial court) convicted the appellants for the offences punishable
under Sections 302 and 201 read with Section 34 of Indian Penal
Code and therefore, sentenced them to suffer imprisonment for life
and R.I. for seven years, respectively, and fine of Rs.10,000/- with
default stipulation. The appellants are, therefore, before this court in
these separate appeals.
Criminal Appeal No.1059 of 2019 is filed by original
accused no.2 - Parmeshwar; while Criminal Appeal No.499 of 2021
has been preferred by original accused no.1 - Daivashala.
2. The case of prosecution, in short, was as under:-
Smt. Nilawati (deceased) was wife of PW 1 - Subhash.
Appellant - Daivashala had acquaintance with Nilawati. She
(Daivashala) lured Nilawati to pay her a sum of Rs.5 Lakhs for
investing in such a scheme, wherein, Nilawati would be paid double
the amount invested, within one and half months. Nilawati fell pray.
She paid Daivashala Rs.5 Lakhs in two equal installments. After
having been realised to have been duped by Daivashala, Nilawati
started asking her for refund of the amount. With a view to avoid
repayment of the amount, Daivashala, in furtherance of a common
intention with appellant - Parmeshwar, took Nilawati towards
Solapur, under the pretext of some personal work on 22.07.2014.
PW 1 - Subhash, therefore, dropped Nilawati off near Ashtavinayak
temple, Shivaji Nagar, Latur, by 11 in the morning on 22.07.2014.
The trio started in a car (FIAT Uno, bearing registration No.MH-24-C-
5505). On way, they halted at one place to have fruit juice. Nilawati
was administered juice laced with powder of sleeping pills.
Thereafter, on way, near Ambulga Sugar Factory, the car, which was
being driven by appellant Parmeshwar, was halted. Appellant
Parmeshwar strangled Nilawati with clutch-wire, robbed her of the
golden ornaments on her person and then, abandoned her dead
body by Solapur - Aurangabad roadside.
3. Since Nilawati had informed her husband (PW 1 -
Subhash) that she would be back home in the evening same day, he
awaited for her arrival. Since she did not return, he took search for
her for two days. On 24.07.2014, he lodged a missing person's
report (Exh.72) at Shivaji Nagar Police Station, Latur. In the
meanwhile, the dead body of a woman was found near a petrol pump
within the limits of Indapur village. A report to that effect was made
by one Babasaheb Kamble (PW 13) to Vashi Police Station. The
police officials at the said police station, therefore, rushed to the
place. It was the dead body of a female. It started developing
decomposition. Inquest was conducted. The dead body was sent to
the Rural Hospital for post mortem examination. Dr.Pradnya (PW 15)
conducted the post mortem (Exh.135 and 136). In her opinion, the
lady died due to throttling.
4. PW 1 - Subhash received a phone call from Shivaji Nagar
Police Station. He was informed that dead body of a woman was
found within the limits of Vashi Police Station, Dist. Osmanabad. He,
therefore, went to the said police station. The police officials showed
him photographs of the dead body. He identified the deceased on
the basis of the photographs. Since the dead body was in
decomposed state, the police officials buried the same. PW 1 -
Subhash inquired with Vashi Police Station, whether there were
ornaments on the person of the deceased. Since he was informed
that no ornaments were on the the person of the deceased, he
realised that appellant - Daivashala, with the help of some unknown
person, took his wife towards Solapur, under the pretext of personal
work and committed her murder. He, therefore, lodged the First
Information Report (FIR)(Exh.73) with Shivaji Nagar Police Station,
Latur, on 30.07.2014.
5. A crime, vide C.R.No.148 of 2014, was registered for the
offences punishable under Sections 302 and 201 of Indian Penal
Code. Appellant Daivashala was, arrested. During her interrogation,
involvement of appellant Parmeshwar was surfaced. He too was
arrested. Both of them made disclosure statements, pursuant to
which a sum of Rs.4 Lakhs came to be seized from the house of the
appellant - Daivashala. Some amount was recovered pursuant to
the disclosure statement made by appellant - Parmeshwar, from
various persons to whom he had paid petty amounts, like Rs.10,000/-
and Rs.5,000/-. Pursuant to the disclosure statement made by
appellant Parmeshwar, ornaments of the deceased were seized from
his residence. C.D.Rs. and tower locations of the cellphones of the
trio were obtained. Statements of the persons acquainted with the
facts and circumstances of the case were recorded. PW 3 -
Chandrashekhar had seen the trio proceeding together in a car. As
such, it was a last seen theory. Upon completion of the investigation,
charge sheet was filed against both the appellants.
6. The trial court framed Charge (Exh,11). The appellants
pleaded not guilty. Appellant - Daivashala placed on record her
written statement, wherein she disclosed that the sum of Rs.4 Lakhs,
recovered from her, was received as Stridhan in the marriage of her
son. Her son married daughter of her brother. He had paid them the
amount. Same was kept at her residence for purchase of a flat in
Pune. In her defence, she examined her brother (DW 1 - Virbhadra)
and bank official (DW 2 - Ashok) in proof of her brother to have
raised loan to pay his son-in-law the sum of Rs.4 Lakhs. The defence
of the appellant Parmeshwar was of denial altogether.
7. The prosecution, to bring home the Charge, examined 23
witnesses and produced in evidence certain documents. On
appreciation of the evidence, the trial court convicted the appellants
and consequently sentenced, as stated above.
8. Heard learned counsel for the parties.
9. Learned counsel for the appellant - Daivashala would
submit that the case was based on circumstantial evidence. As per
the case of prosecution itself, acquaintance between appellant
Daivashala and deceased Nilawati was developed just two months
before the incident. Within five days of Nilawati to have paid
Daivashala the sum of Rs.5 Lakhs, she realised to have been duped.
According to learned counsel, if such was the case of the
prosecution, why Nilawati would join Daivashala to go to Solapur, for
her personal work. PW 1 - Subhash, husband of the deceased, did
not drop her off at the house of the appellant Daivashala. He
dropped her at Ashtavinayak temple, Latur. He did not remain at the
spot until Daivashala, allegedly, joined her there. According to
learned counsel, recovery of sum of Rs.4 Lakhs from appellant
Daivashala, pursuant to the disclosure statement, would not be
relevant under Section 27 of the Evidence Act. The C.D.R. indicates
that appellant Daivashala did not leave Latur city. PW 3 -
Chandrashekhar, who claimed to have had seen the appellant
Daivashala in the company of Nilawati on the given day, i.e. on
22.07.2014, was a childhood friend of Nilawati's husband (PW 1).
After having been realised Nilawati to have been murdered, he did
not share said fact with anyone. It is only after 20 days of the
incident, he received phone call from the police and thereafter, his
statement was recorded. According to learned counsel, PW 3 -
Chandrashekhar is a planted witness. The chain of circumstances
relied on was not complete. None of the circumstances have been
conclusively proved. He, therefore, urged for allowing the appeal.
10. Learned counsel for the appellant - Parmeshwar would
reiterate the submissions made by learned counsel for the appellant
Daivashala. He has also placed on record the submissions in writing.
According to him, there was delay of 8 days in lodging of the FIR.
Delay remained unexplained. According to him, it was a mystery as
to why the husband of deceased did not lodge the FIR no sooner he
learnt his wife to have been murdered. His close relations are
practicing advocates. According to him, there was great delay in
recording the statements of the so called witness, who claimed to
have lastly seen the appellants and deceased together. No test
identification parade was held of the ornaments seized pursuant to
the so called disclosure statement made by the appellant -
Parmeshwar. So far as the C.D.Rs. are concerned, he would submit
that the certificate/s under Section 65B of the Evidence Act were not
in the prescribed format. One of the tower location's record was not
supported by the certificate under Section 65B of the Evidence Act.
Cellphone of the deceased was in the name of someone else. The
Investigating Officer, in fact, did not leave Latur city on the given day
on which recovery of certain articles was shown to have been made
pursuant to the disclosure statement made by the appellant
Parmeshwar. The information obtained in writing relating to the log
book of the police vehicle in which they had travelled on the given
day, indicates that the vehicle did not leave Latur on the given day.
The defence witness was examined in that regard. Learned counsel
relied on certain judgments of the Apex Court and ultimately, urged
for allowing of the appeal.
11. Learned APP for the respondent - State and learned
counsel representing the victim would submit that the chain of
circumstances relied on was complete. It was the chain of unerring
circumstances. As regards the delay in recording statement of PW 3
- Chandrashekhar, they would submit that no questions were put to
the Investigating Officer in that regard. The Investigating Officer
could have offered explanation had he been put such question.
Learned APP and learned counsel for respondent no.2 relied on a set
of judgments of the Apex Court, reference thereto is made herein
after. According to them, the trio were lastly seen together. The
C.D.R. and tower locations of the culprits reinforce the same. The
ornaments of the deceased were recovered from the appellant
Parmeshwar. The cash amount was also recovered from both the
appellants, pursuant to the disclosure statements made by them. In
their examination under Section 313 of the Code of Criminal
Procedure, both the appellants simply denied the prosecution case.
According to learned counsel, both the appellants, in fact, owe the
duty to explain the circumstances appearing against them. Keeping
mum or giving false explanation would be an additional link to
reinforce the prosecution case. When both the appellants were lastly
seen in the company of the deceased, they did not explain when
they parted ways or what had happened with the deceased.
12. On the question of certificate under Section 65B of the
Evidence Act, learned APP relied on the judgment of the Division
Bench of this Court in the case of State of Maharashtra VS.
Ramesh Vishwanath Darandale and ors., AIR Online 2019
Bom 1224. They would submit that the C.D.Rs. were obtained from
main source. The certificate under Section 65B contains requisite
contents as are mandatory under Section 65B of the Evidence Act.
Two of the authorities, who issued those certificates could not attend
the Court for unavoidable reasons. Their signatures on the
certificates have been proved by the official who was acquainted
with the same. According to them, the tower locations never
changed. Those have also been given in the C.D.Rs. It is only in
respect of one tower location, there is no certificate under Section
65B of the Evidence Act. They adverted our attention to paragraph
164 of the judgment of the trial court, wherein details thereof have
been given. In short, according to learned APP and learned counsel
for the victim, the trial court has passed a well-reasoned judgment
and the consequential order. No interference is, therefore, warranted
with the impugned judgment.
13. Considered the submissions advanced. Perused the
judgment impugned herein and the authorities relied on.
14. Before adverting to the evidence on record, one must
refer to the decision of the Apex Court in the case of Anwar Ali and
anr. Vs. State of Himachal Pradesh, 2021 AIAR (Criminal) 80,
wherein, it is observed thus :-
B. Circumstantial evidence - Scope and sweep of - In
case of a circumstantial evidence - The circumstances,
taken cumulatively - should form a chain so complete
that there is no escape from the conclusion that within
all human probability the crime was committed by the
accused and none else and the circumstantial
evidence in order to sustain conviction must be
complete and - Incapable of explanation of any other
hypothesis than that of the guilt of the accused and -
Such evidence should only be consistent with the guilt
of the accused but should be inconsistent with his
innocence
15. The trial court, in paragraph 188 of its judgment, held the
prosecution to have proved the chain of circumstances against both
the appellants. The circumstances relied on and proved by the
prosecution, are as follows:-
1. Acquaintance of accused no.1 with the deceased.
2. Communication of accused no.1 on mobile with deceased
on 22nd after she left the house.
3. Call details of the mobiles of the accused nos.1 and 2
proves their common intention and involvement in
offence.
4. The recovery of ornaments at the instance of accused
no.2.
5. Disclosure of the spots by accused no.2.
6. Recovery of purse, seat mat and the intention of accused
no.2 to mislead the investigation by producing the clutch
wire proves that he has very cleverly planned the crime
and is additional circumstance against the accused no.2.
7. The recovery of amount of Rs.4,00,000/- from accused
no.1.
8. Motive is proved as to grab the amount.
9. The absence of accused no.1 from her house during the
period from 22nd to 24th.
10. PW 3 saw the accused nos.1 and 2 with deceased on
22nd .
16. Nilawati left her house to go to Solapur for some work of
her friend (appellant Daivashala) on 22.07.2014. She was supposed
to return home in the evening same day. Since she did not return
home, her husband (PW 1 - Subhash) took search for her at the
places of his relations and friends. He, ultimately, lodged the
missing person's report (Exh.72) at Shivaji Nagar Police Station. Said
report reads thus:-
वरील विषयी विनंती अर्ज करतो की, माझी पत्नी निलावती
सुभाष उटगे, राहणार आझाद चौक लातूर वय : ४३, उंची.५
फूट ४ इंच, रंग सावळा, असून अंगावर निळी रंगाची साडी
असून ती दिनांक. २२ .०७ .२०१४ या तारखेस (वार
मंगळवार) सकाळी ११.३० च्या सुमारास ती स्वतः
अष्टविनायक मंदिराजवळ सोडलो होतो.
तिने मला तिच्या मैत्रिणीसोबत सोलापूर येथे तिच्या मैत्रिणीचे
काम आहे म्हणून गेली असता आजपर्यंत तिचा कोठलाही संपर्क
झालेला नाही. मोबाइलला सुद्धा बंद आहे.
आम्ही सर्व नातलगांना तिच्याबद्दल चौकशी केली असता
कोठलेही माहिती मिळालेली नाही. तसेच माझे तिकटीहासोबत
कसलेही वाद किंवा भांडण झाले नाही.
तरी साहेबानी सहकार्य करावे हि नम्र विनंती. माझ्या पत्नीचे
मो. न.९४०३६४२०३१ , ९१७५०७४९९९
17. In the missing person's report itself, he gave cellphone
number of his wife Nilawati (deceased). One of the cellphone
number is 9403642031. On the other hand, dead body of an
unknown woman was noticed near petrol pump in Indapur Shivar
along Aurangabad - Solapur highway on 23.07.2014 by one
Babasaheb Kamble (PW 13). He reported same at Vashi police
station, Dist. Osmanabad. An accidental death report in that regard
was registered vide Exh.128. PW 12 - Rajabhau was on his way, at
the relevant time, from in front of the petrol pump situated in
Indapur Shivar. The police officials had reached the place whereat
the dead body was found. Inquest was conducted at the spot in his
presence. Same is Exh.126, while Exh.125 is panchnama as to the
spot whereat the dead body was found. Since the dead body had
started catching maggots (decomposition state), it was sent for
autopsy. PW 15 - Dr. Pradnya conducted autopsy on the mortal
remains of the dead body of said unknown lady on 24.07.2014. She
prepared post mortem examination report (Exh.135 and 136). In her
opinion, the lady died due to throttling. It was PW 16 - Shahaji,
serving as Police Inspector at Vashi Police Station at the relevant
time, who drew panchnamas (Exhs.125, 126 and 128). It is in his
evidence that since the dead body was of unknown person and in
decomposed stated, same was buried.
18. PW 1 - Subhash testified that he took search for his wife
for next two days post filing of the missing person's report. It is in
his evidence that on 26.07.2014, by 12:30 p.m., he received a phone
call from Shivaji Nagar Police Station, informing him that dead body
of a lady was found within the limits of Vashi Police Station. He,
therefore, rushed to the police station. The police officer showed
him photographs of the dead body. He recognised the person in the
photographs, who was none other than his wife (Nilawati). He learnt
from the police officer that no ornaments were there on the person of
the deceased. It is further in his evidence that he immediately
realised that the appellant Daivashala must have been involved in
committing murder of his wife. According to him, the motive behind
the same was to dupe his wife of Rs.5 Lakhs she had invested with
her in a scheme, wherein the investor was to be paid double the
amount invested. He, therefore, lodged the FIR (Exh.73) against
Daivashala and unknown person. It is in his evidence that on the
given day, i.e. on 22.07.2014, Nilawati had told him that she was
proceeding to Solapur along with Daivashala for her personal work.
She assured him that she would be back home by evening. PW 1 -
Subhash dropped her off in the morning. He gave the description of
the ornaments which were on her person, cellphone and black purse
as well. It is further in his evidence that acquaintance between
appellant Daivashala and Nilawati was developed just two months
before the incident. The reason therefor was that the parental homes
of both of them were at one and same village, Alamala.
19. It is further in the evidence of PW 1 - Subhash that he
asked his brother-in-law Siddheshwar Murge to visit the house of the
appellant Daivashala. He, accordingly, went to her house on the
following day (on 23rd) to find it to have been locked. He again
visited Daivashala's house on the next day (on 24 th). He met with
Daivashala to learn from her that Nilawati even did not come to her
house. PW 1 - Subhash, therefore, lodged the missing person's
report. It is further in his evidence that he received a sum of
Rs.4,23,000/- on Supurtnama and spent the same. He received the
gold ornaments, allegedly recovered pursuant to the disclosure
statement made by the appellant - Parmeshwar.
20. PW 1 - Subhash was subjected to searching cross-
examination. He was confronted with the missing person's report
(Exh.72) referred to herein above. Said report is conspicuously silent
to state therein about closeness between the appellant Daivashala
and his wife (deceased Nilawati) and the details about having paid a
sum of Rs.5 Lakhs by his wife to appellant Daivashala in two
installments. According to him, Nilawati (deceased) was agent of
Peerless Finance and Insurance Company (now defunct). He admitted
to have no occasion to hear about any scheme in the world, which
would give return of double the amount invested, within one and half
months. According to him, he gave understanding to his wife. She
was, however, not responsive. According to him, his close relations
were practicing advocates. Ashtvinayak temple was neither close to
his house nor that of the house of appellant - Daivashala. Nilawati
did not obtain receipt from Daivashala of having invested amount
with her.
21. PW 2 - Rajesh is a panch witness to recovery of amount
of Rs.5,000/- paid to one Kishor Kamble, pursuant to the statement
made by appellant - Parmeshwar. PW 3 - Chandrashekher is a
witness to have last seen the appellant - Daivashala and deceased
Nilawati together. It is in his evidence that on 22.07.2014, he was
present near the gate of Adarsh colony. He noticed a green colour
car proceeding from Shivaji Chowk to Ausa. Nilawati (deceased) was
sitting on the back seat. One unknown lady had occupied a seat by
her side. Appellant - Parmeshwar was driving the car. After 5-6
days, he came to know Nilawati to have been murdered and it was
committed by the appellants. It is further in his evidence that he
knew appellant Parmeshwar since he would run a tea-stall near
Navgrah Shani temple and he used to visit the said stall for tea.
During his cross-examination, it was brought on record that he met
with Subhash (PW 1) after he came to know about the murder. He
admitted that Subhash was his childhood friend. He did not inform
the police to have seen the trio together. No test identification
parade was held. He identified appellant - Parmeshwar for the first
time before the court. PW 1 - Subhash accompanied him to the
court when his evidence was recorded. He admitted that it was after
24 days, he received the phone call from the Police Inspector. He
then went to the police station and gave his statement. It was
further brought on record in his cross-examination that near Adarsh
colony, there was road-divider and plants and trees were grown
thereon. He saw the car from other side of the road. He claimed
ignorance about the glasses of the car to have dark film on it
22. PW 4 - Shivanand, PW 5-Dhanraj and PW 6 - Siddheshwar
are the witnesses examined by the prosecution in proof of them to
have paid PW 1 - Subhash a sum of Rs.2,50,000/- for construction of
house (Rs.One Lakh each by PW 4 and PW 5 and Rs.50,000/- by
PW 6). PW 1 - Subhash admitted that construction of first floor of
his house was completed some days before the incident. These
witnesses were examined so as to make out the case that the
amount received from them was paid to Nilawati for being, in turn,
paid to appellant - Daivashala as investment in the scheme. We find
evidence of these three witnesses of little relevance to further the
prosecution case.
23. On arrest of appellant - Parmeshwar, he allegedly made
disclosure statements on 2-3 days separately. PW 2 - Rajesh is
witness to one of such statements (Exh.90), pursuant to which a sum
of Rs.5,000/- was seized from a person, Kishor Kamble. PW 7 -
Laxmikant is a witness to the disclosure statement made by
appellant - Parmeshwar on 01.08.2014. It is in his evidence that he
attended Shivaji Nagar Police Station on 01.08.2014 in response to
the police call. Appellant - Parmeshwar first took them to one place,
where there were three juice centres. He then pointed juice centre
no.2 and then showed Ashtvinayak temple. He took them to Zari-
Udgir road and pointed out one place. The police took some search
in the nearby and found a clutch-wire. It was seized under
panchnama. He identified the clutch-wire before the court.
Photographs of the happenings were drawn. PW 7 - Laxmikant is also
a witness to the seizure of the car (FIAT Uno, bearing registration
No.MH-24-C-5505) under panchnama Exh.108. According to him, four
liquor bottles were found in the car. Those were seized.
24. PW 8 - Sanjay is witness to other disclosure statements
made by appellant - Parmeshwar on 03.08.2014. It is in his evidence
that appellant - Parmeshwar expressed his readiness to produce
ornaments, seat cover and purse. The memorandum statement is at
Exh.110. Appellant - Parmeshwar then took the police and panchas
to his residence. He took out one paper containing something from
wooden showcase. Jewellery (gold ornaments) was wrapped in that
paper. The police seized the same. The appellant - Parmeshwar
then took them to Sarthi Bar on Barshi road, whereat he had thrown
the cellphone of NOKIA company. The cellphone was not found there.
Then, appellant - Parmeshwar took them to a bridge near village
Dhoki. He took them under the bridge. At one place, they found
black purse. On opening the purse, it found to have contained xerox
copy of Election Card of Nilawati (deceased). Those articles were
seized. Then he took the police and panchas to a place on Solapur
highway within Indapur village. He pointed out the place whereat he
had dropped the dead body of Nilawati. Then, he took them near
village Yenegur and pointed the place whereat he had thrown the
seat cover. No seat cover was found. Then they returned to the
police station. A memorandum of entire exercise was drawn vide
Exh.111.
25. PW 9 - Sk. Majid is a witness to the arrest and physical
search panchnama (Exh.114) of appellant - Parmeshwar drawn on
30.07.2014. A sum of Rs.8,000/- was seized from the appellant -
Parmeshwar in the presence of PW 9 - Sk. Majid. PW 10 -
Purushottam is a witness to the panchnama Exh.116 drawn as
regards seizure of cellphone of NOKIA make delivered to the police
by one Shri. Alte.
26. PW 11 - Vijaykumar is witness to the disclosure
statement (Exh.119) made by appellant - Daivashala. It is in his
evidence that on 01.08.2014, appellant - Daivashala made a
statement that she was ready to produce Rs.4 Lakhs, which was
concealed by her in her house. Her statement was recorded. She
then took the police and panchas to her residence. She took out one
thermos and from the bottom thereof, the sum of Rs. 4 Lakhs were
seized under panchnama (Exh.120). According to him, there were
three bundles containing 256 currency notes of denomination of
Rs.1,000/- each and three bundles of 288 currency notes of
denomination of Rs.500/- each. In the cross-examination, this
witness has denied to have been a stock witness of Shivaji Nagar
Police Station.
27. PW 17 - Pranita was P.S.I., who recorded the FIR lodged
by PW 1 - Subhash.
Evidence relating to cellphones:-
28. PW 18 - Amol was nephew of deceased Nilawati (sister's
son). It is in his evidence that he had obtained three sim cards of
BSNL under the scheme, "Krushi cards". He had given one of the
cards to his aunt Nilawati (deceased). He, however, did not recollect
the sim card number given to her. PW 20 - Gokul was Nodal Officer,
B.S.N.L., Pune. He tendered in evidence certain information
disclosing that sim card no.9403642031 was issued in the name of
Amol Konde (PW 18), nephew of deceased Nilawati. He tendered in
evidence CDRs of said cellphone along with certificate under Section
65B of Evidence Act. According to him, as per the CDR, on
22.07.2014 at 09.22 a.m., there were outgoing calls from cellphone
no.9403642031 to cellphone no.7775925551. The tower location of
the cellphone at that time was Ashtavinayak, Sector-III. According to
him, there was again another call from the very phone by 11.53 a.m.
to cellphone no.7709911449. At that time, the tower location of
BSNL was Ashtavinayak, Sector - I. He referred the certificate under
Section 65B of Evidence Act (Exh.157) issued under the signature of
Mr.Vikas Mali, Sub-Divisional Engineer. According to him, Mr.Mali was
unable to come to the court and give evidence since he was in-
charge of lock centre and responsibility of implementation of
intersection was with him. He could not leave Pune Headquarter.
29. During cross-examination of PW 20 - Gokul, it was
brought on record that on 22.07.2014, at at 12.45 p.m., the tower
location of the cellphone of BSNL sim number was Kava, Latur.
According to him, the certificate regarding tower location was not
given. According to him, there was no incoming call on the said
BSNL phone number from cellphone no.7775925551 and
7709911449. According to the prosecution, since there being no
calls between these cellphone numbers on 22.07.2014, same
indicates that both the persons namely, appellant - Daivashala and
deceased Nilawati were together and hence, there was no need for
them to interact on cellphone. This was the inference sought to be
suggested by the prosecution.
30. PW 19 - Dattaram was Nodal Officer of IDEA Cellular Ltd.
He tendered in evidence certain documents and CDRs of cell phone
no. 7775925551. His evidence indicates that said sim card was
issued in the name of appellant - Daivashala on the address of Vijay
Colony, Samarth Nagar, Latur. He referred to the certificate under
Section 65B of Evidence Act regarding CDRs and tower locations as
well. The documents tendered in evidence by him find place at
Exh.146 to Exh.158. According to him, they used to destroy the
original application of the subscriber after three years. He produced
on record scanned copy of the application duly filled in by appellant -
Daivashala. It was at Exh.149. He referred to the certificate under
Section 65B of Evidence Act in that regards (Exh.151) and the tower
location chart (Exh.150). It is further in his evidence that during the
period from 21.06.2014 by 12.47 p.m., there was first call from
cellphone no.7775925551 to cellphone no.9403642031. According
to him, thereafter, there were number of incoming and outgoing calls
between the two cellphone numbers.
31. This suggests that both the cellphone holders namely,
appellant - Daivashala and deceased Nilawati were contacting with
each other since 21.07.2014 to 22.07.2014. The last call from
cellphone no.7775925551 was to cellphone no.9823022139 by 12.45
p.m. That time, location of cellphone no. 7775925551 was Adarsh
colony, Latur, meaning thereby, appellant Daivashala had not left
Latur town. According to him, there was call between these two
numbers by 09.22 a.m. on 22.07.2014. The tower location of IDEA
cellphone number was Saubhagya Nagar, Latur. On 22.07.2014
itself, there was outgoing call from the very cellphone number to
cellphone no.9823022139. That time, the tower location of the
cellphone of appellant - Daivashala was Adarsh Colony, Latur. Same
suggests that even when PW 1 - Subhash dropped his wife at
Ashtavinayak temple, the appellant - Daivashala did not join her at
least until 12.45 p.m.
32. Admittedly, there were no phone calls between the
cellphone of appellant - Parmeshwar and deceased - Nilawati. The
trial court, relying on the evidence of the officials of the cellular
companies, reproduced in its judgment the details of relevant calls
between the concerned phone numbers. For ready reference, we
produced the same below:-
Calling No. Calling party Called No. Called party Time of call Location of Location of
calling no./ called no./
party party
DATE : 21.07.2014
Accused no.1 Deceased Saubhagaya Latur WTR,
7775925551 9403642031 13.27
Daivashala Nilawati Nagar, Latur Sector-3
Accused no.2 Accused no.1 Saubhagaya
9156509080 7775925551 17.48 -
Parmeshwar Daivashala Nagar, Latur
Accused no.2 Accused no.1 Saubhagaya
9156509080 7775925551 18.08 -
Parmeshwar Daivashala Nagar, Latur
Accused no.2 Accused no.1 Saubhagaya
9156509080 7775925551 18.10 -
Parmeshwar Daivashala Nagar, Latur
Majge Nagar,
Accused no.1 Deceased Saubhagaya
7775925551 9403642031 20.19 Latur,
Daivashala Nilawati Nagar, Latur
Sector 3
DATE : 22.07.2014
Ashtavinayak
Deceased Accused no.1 Saubhagaya
9403642031 7775925551 9.22 a.m. Sector III,
Nilawati Daivashala Nagar, Latur
Latur
Accused no.2 Accused no.1 Saubhagaya
9156509080 7775925551 11.17 -
Parmeshwar Daivashala Nagar, Latur
Shivaji
Accused no.2
9689738389 - 9975677495 11.48 - Chowk (Main
Parmeshwar
road), Latur
Accused no.2 Accused no.1
9156509080 7385880230 11.49 - -
Parmeshwar Daivashala
Ashtavinayak
Deceased
9403642031 7709911449 - 11.53 a.m. Sector I, -
Nilawati
Latur
Accused no.2 Accused no.1
9156509080 7383880230 11.56 - -
Parmeshwar Daivashala
Accused no.2 Accused no.1
9156509080 7383880230 12.03 - -
Parmeshwar Daivashala
Accused no.1 Adarsh
7775925551 9823022139 - 12.45 p.m. -
Daivashala Colony, Latur
DATE : 23.07.2014
Mulaj, Tq.
Accused no.2 Accused no.1
9975677495 7775925551 11.20 a.m. Omerga, Dist. -
Parmeshwar Daivashala
Osmanabad
Accused no.2 Accused no.1
9156509080 7385880230 11.24 - -
Parmeshwar Daivashala
Mulaj, Tq.
Accused no.1 Accused no.2 Saubhagya
7775925551 9957677495 11.26 a.m. Omerga, Dist.
Daivashala Parmeshwar Nagar, Latur
Osmanabad
Mulaj, Tq.
Accused No. Accused no.1
9975677495 7775925551 11.49 a.m. Omerga, Dist. -
Parmeshwar Daivashala
Osmanabad
DATE : 24.07.2014
Accused no.1 Accused No.2
9156509080 08.10 - -
7383880230 Daivashala Parmeshwar
Accused no.1 Accused No.2
9156509080 09.49 - -
7383880230 Daivashala Parmeshwar
33. The aforesaid is the evidence in the case besides the
evidence of the Investigating Officer (PW 23 - Deepratna). We do
not propose to refer to his evidence in extenso, since what he done
as part of investigation, has already been referred to herein above,
which has come on record through the oral evidence of the
prosecution witnesses.
34. In our view, the trial court relied on the evidence which
was inadmissible. The appellant - Daivashala examined her brother
and other witnesses in her defence to show that her brother had
raised loan and paid Rs.4 Lakhs to his son-in-law (son of appellant
Daivashala). It needs no mention that the accused can make out
defence based on preponderance of probabilities. The burden to
prove the charge beyond reasonable doubt rests on the prosecution
throughout the trial. It is only in certain circumstances, if some
evidence in the nature of last seen together or recovery of certain
articles relevant to the crime is proved, it is for the concerned
accused to explain.
35. The question is, whether, based on the aforesaid
evidence, the prosecution brought home the charge. In our view, the
answer is "No".
36. It is reiterated that the case was based on circumstantial
evidence. The motive was said to be avoidance of repayment of
Rs.5 Lakhs received by Daivashala from deceased Nilawati as
investment to be paid back within one and half months with double
the amount invested. True, the deceased Nilawati met with
homicidal death. PW 1 - Subhash did not state that the amount was
paid to appellant Daivashala by deceased Nilawati in his presence.
Admittedly, no receipt was obtained from appellant Daivashala of the
amount paid to her. Although PW 4, PW 5 and PW 6 were examined
in proof of having lent a sum of Rs.2.5 Lakhs to PW 1, his (PW 1)
evidence is silent to state this amount was paid to his wife for being,
in turn, paid to appellant Daivashala. True, the C.D.R. of the
cellphones used by both appellant Daivashala and deceased Nilawati
indicate that there was proximity between the two. It is not known
as to why the factum of payment of Rs.5 Lakhs to appellant
Daivashala as deposit in the scheme finds no mention in the missing
person's report. Even, the name of appellant - Daivashala does not
figure therein as a friend of Nilawati with whom she proposed to go
to Solapur for her personal work. The FIR was lodged by 30.07.2014,
i.e. eight days after Nilawati did not return home. True, the missing
person's report was lodged on 24.07.2014, i.e. two days after the
deceased left the home with the promise to return by the evening of
the same day. Although PW 1 - Subhash testified that he had asked
his brother-in-law, PW 6 - Siddheshwar, to visit the home of appellant
Daivashala and he, accordingly, visited and found her house to have
been locked; and on the following day, he met her to learn deceased
Nilawati to have not even come to her, the same is hearsay, since
PW 6 - Siddheshwar did not speak anything about having visited the
residence of appellant Daivashala on the direction of PW 1 - Subhash
or even, on his own, on 23.07.2014 and 24.07.2014. He was
examined only to prove that he lent a sum of Rs.50,000/- for
construction of house. PW 1 - Subhash being husband necessarily
took search for his wife for two days. It is, however, not known as to
why he took two days to lodge the missing person's report. The
deceased was using cellphone no. 9403642031 is taken to be
proved, since mention thereof finds place in the missing person's
report that was lodged long before the crime was registered. Said
document could be read in evidence as it is. The FIR and oral
evidence of PW 1 - Subhash is silent to explain the delay of six days
in lodging the FIR. Admittedly, he learnt on 26.07.2014 itself that his
wife was done to death by someone. Still, he took four days to lodge
the FIR. It is categorically admitted in his evidence that in his family,
there were two practicing advocates: one was his uncle and the
other was his cousin. Both of them were present in the court on the
day his evidence was recorded.
37. We need not emphasize the importance of lodging the
FIR promptly/immediately. The delay of six days in lodging the FIR
remained unexplained.
38. Appellant Daivashala allegedly made disclosure
statement, pursuant to which a sum of Rs.4 Lakhs came to be seized
under panchnama drawn in the presence of PW 11 - Vijaykumar.
Admittedly, even if we accept the case of the prosecution that the
deceased had paid the appellant Daivashala a sum of Rs.5 Lakhs,
there is no evidence to indicate the denomination of currency notes
paid to Daivashala. Admittedly, no receipt of payment was obtained.
PW 4, PW 6 and PW 7 were examined in proof of having paid the
amount to PW 1 - Subhash as financial assistance for construction of
new house. They too did not describe the denomination of currency
notes they paid to PW 1 - Subhash. We are conscious of the fact that
no person in relation would make record of the currency notes or
evidence as proof of payment. We are dealing herein with the
offence for which minimum sentence is of life imprisonment. Now,
we deal with the evidence of recovery of Rs.4 Lakhs, pursuant to the
disclosure statement of appellant Daivashala. The memorandum/
panchnama indicates that she made disclosure statement pursuant
to which Rs.4 Lakhs came to be seized from the bottom of a
thermos. By no stretch of imagination, we can conclude that the
amount recovered or seized pursuant to the disclosure statement
made by the appellant Daivashala was the amount she had received
from the deceased Nilawati. If we read the statement of the panch
witness in whose presence the appellant Daivashala made disclosure
statement, the same nowhere states that she would be taking them
(police and panchas) to her house to take out and deliver the amount
received from deceased Nilawati. As such, the amount recovered
from appellant Daivashala pursuant to the disclosure statement
would, in no way, be termed to be relevant under Section 27 of the
Evidence Act. So is the case about recovery of various amounts at
the instance of appellant - Parmeshwar from himself when he was
arrested and from two other persons pursuant to the disclosure
statements made by him. The currency notes recovered did not bear
earmark to attribute them to have belonged to deceased Nilawati.
Last Seen :-
39. PW 3 - Chandrashekhar, who claimed to have had seen
the appellant Parmeshwar driving the car, wherein deceased Nilawati
had occupied back seat along with unknown lady, was, admittedly, a
childhood friend of PW 1 - Subhash, husband of deceased. He
happened to be a chance witness, if we accept his evidence as it is.
On the given day, he claimed to have been to Adarsh Nagar colony,
a place away from his residence. His evidence indicates that the
road whereat he was, had divider. There were trees grown on the
divider. He was on the other side of the road. The car must have
passed within seconds. The car seized by the Investigating Officer,
in which the trio allegedly traveled towards Solapur, had dark film on
its glasses. According to him, one unknown lady was sitting by the
side of deceased Nilawati. On arrest of appellant Daivashala, no test
identification parade was held. He (PW 3) identified Daivashala first
time before the court three years after the incident. We find his
evidence to be not reliable for more than one reasons. He was a
childhood friend of husband of the deceased. He admitted to have
had learnt about Nilawati to have been murdered within six days of
the incident as a news in that regard had been flashed in the daily.
When he was close and childhood friend of the PW 1 - Subhash
(informant), it could have been natural and moral obligation on his
part to immediately approach the police station and report the same.
His evidence indicates that Shivaji Nagar Police Station was on his
way home. He kept mum for about 20 days post incident. He
admitted that he was called by the police after 20 days of the
incident and then, his statement was recorded. True, the
Investigating Officer was not put any question, as to delayed
recording of the statement of this witness. The fact remains that the
conduct of this witness in not approaching the police within
reasonable time and reporting the matter, goes a long way to
disbelieve him and even accept the contention of the appellants that
he being a brought up witness to make out the case of last seen
theory.
40. We have perused the authorities relied on by learned APP
in relation to delayed recording of statement. Learned APP has relied
on the judgment of Apex Court in the case of State of U.P. Vs.
Satish, 2005 Cri. L.J. 1428, which read thus thus:-
(B) Criminal P.C. (2 of 1974), S.161 - Evidence
Act (1 of 1872), S.3 - Examination of witness by
Investigating Officer - Delay - Does not ipso facto
make prosecution version suspect - For that
Investigating Officer has to be categorically
questioned on aspect of delayed examination -
Case of rape and murder - Delay in examination
of witnesses by I.O. - I.O. not asked about delay -
Disbelieving version of witnesses, improper.
(C) Penal Code (45 of 1860), S.376, S.300 -
Rape and murder of child - Case based on
circumstantial evidence - Circumstance of "last
seen together" - Positive evidence of witnesses that
they had seen accused carrying deceased on
bicycle - one witness had seen accused in
perplexed state near place where dead body was
found - under-garments of accused and deceased
recovered during investigation - absence of name
of accused in F.I.R. explained - Delay in
examination of witnesses, but I.O. not questioned
on aspect of delay - Acquittal of accused on
grounds of absence of name of accused in F.I.R.,
delay in examination of witnesses and that
presence of accused nearby place from where dead
body was recovered is only a suspicious
circumstance - Not proper.
Learned APP also relied on the decision of the Apex Court
in the case of Gautam Joardar Vs. State of West Bengal,
2021(12) SCALE 339, wherein it has been observed thus:-
..................... It is true that there was some
delay in recording the statements of the concerned
eye-witnesses but mere factum of delay by itself
cannot result in rejection of their testimonies.
41. Mr.Ostwal, learned counsel for appellant, relied on the
three-Judge bench of the Apex Court in the case of Ganesh Bhavan
Patel and anr. Vs. State of Maharashtra, (1978)4 SCC 371,
wherein it has been held thus:-
Criminal Procedure Code, 1973 - Section 161 - Delay
in examining eye-witnesses by the Investigating
Officer, can on the peculiar facts of a case, amount to
serious infirmity in the prosecution case.
----
----
Criminal Procedure Code, 1973 - Section 154 - Delay
in recording FIR, on facts, held fatal to the
prosecution case.
It has also been observed in paragraph 15 as under :-
15. As noted by the Trial Court, one unusual
feature which projects its shadow on the evidence of
P.Ws., Welji, Pramila and Kuvarbai and casts a serious
doubt about their being eyewitnesses of the
occurrence, is the undue delay on the part of the
investigating officer in recording their statements.
Although these witnesses were or could be available
for examination when the investigating officer visited
the scene of occurrence or soon thereafter, their
statements under Section 161 Cr. P.C. were recorded
on the following day. Welji (P.W. 3) was examined at 8
a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1
p.m. delay of a few hours, simpliciler, in recording the
statements of eyewitnesses may not, by itself, amount
to a serious infirmity in the prosecution case. But it
may assume such a character if there are concomitant
circumstances to suggest that the investigator was
deliberately marking time with a view to decide about
the shape to be given to the case and the eyewitnesses
to be introduced. A catena of circumstances which
lend such significance to this delay, exists in the
instant case.
42. In our view, it would depend upon the facts and
circumstances of each case, whether delayed recording of statement
would be fatal to the prosecution. If the Investigating Officer is in
the know from day one of registration of the crime that certain
persons are eye witnesses to the incident and/or recording their
statement is necessary as a part of investigation, he must make
efforts to approach them and record their statements at the earliest.
If any delay occasions in recording of statement of such witness, it is
for him to explain, since he is in the know of those witnesses being
there. It is equally true that the person who has witnessed the crime
must, at the earliest point of time, approach the concerned police
station and give statement or else offer explanation as to why did he
approach late. The explanation has to be plausible and acceptable.
43. Now, turning to the fact of the present case, it is
reiterated that PW 3 - Chandrashekhar was the childhood friend of
the informant (PW 1). He had seen the trio proceeding in the car on
22.07.2014 itself. Within six days, he learnt Nilawati to have been
done to death. A news report regarding murder of Nilawati was
flashed in the daily, still, he did not approach the concerned police
station to give his statement regarding last seen trio together. It is
on 20th day, he received phone call from the police station. In
response thereto, he goes to police station and gives statement. It
would, therefore, be anybody's guess as to why he had not been
called by the police. Had he been called immediately, he would have
given statement under Section 161 of Cr.P.C. There is also no
evidence to indicate as to how come the Investigating Officer
realised that it was necessary to record the statement of PW 3 -
Chandrashekhar. We find substance in the contention of learned
counsel for the appellants that PW 3 - Chandrashekhar is a planted
witness.
44. When the last seen theory is not believed, it is not for the
appellants to offer any explanation, as to what had happened with
one of their companions or when did they parted their ways. In the
facts and circumstances of the present case, we find that the
appellants did not owe any explanation or under obligation to
disclose within their exclusive knowledge, in view of Section 106 of
Evidence Act. Reliance on the judgment of Apex Court in the case of
Anees vs. State Govt. of NCT, (Criminal Appeal No.437 of
2015, decided on 03.05.2024), relied on by learned APP would,
therefore, be of little assistance to the prosecution. In the very
judgment, it has been observed that the courts should apply Section
106 of Evidence Act in criminal case with care and caution. It cannot
be said that it has no application to criminal case. It has been
observed in paragraphs 44 of 45 of the judgment as under:-
44. Section 106 of the Evidence Act cannot be
invoked to make up the inability of the
prosecution to produce evidence of circumstances
pointing to the guilt of the accused. This section
cannot be used to support a conviction unless the
prosecution has discharged the onus by proving
all the elements necessary to establish the
offence. It does not absolve the prosecution from
the duty of proving that a crime was committed
even though it is a matter specifically within the
knowledge of the accused and it does not throw
the burden on the accused to show that no crime
was committed. To infer the guilt of the accused
from absence of reasonable explanation in a case
where the other circumstances are not by
themselves enough to call for his explanation is
to relieve the prosecution of its legitimate
burden. So, until a prima facie case is established
by such evidence, the onus does not shift to the
accused.
45. Section 106 of the Evidence Act obviously
refers to cases where the guilt of the accused is
established on the evidence produced by the
prosecution unless the accused is able to prove
some other facts especially within his knowledge,
which would render the evidence of the
prosecution nugatory. If in such a situation, the
accused offers an explanation which may be
reasonably true in the proved circumstances, the
accused gets the benefit of reasonable doubt
though he may not be able to prove beyond
reasonable doubt the truth of the explanation.
But, if the accused in such a case does not give
any explanation at all or gives a false or
unacceptable explanation, this by itself is a
circumstance which may well turn the scale
against him. In the language of Prof. Glanville
Williams:
"All that the shifting of the
evidential burden does at the
final stage of the case is to allow
the jury (Court) to take into
account the silence of the accused
or the absence of satisfactory
explanation appearing from his
evidence."
(Emphasis supplied)
Recovery pursuant to the disclosure statements made by
appellant - Parmeshwar :-
45. As stated above, recovery of money, pursuant to the
disclosure statements made by the appellant Parmeshwar was not
relevant under Section 27 of the Evidence Act. Same would be the
case as regards his disclosure statements made on 03.08.2014,
pursuant to which he took the Investigating Officer and panchas to
various places. The clutch-wire seized pursuant to the disclosure
statement could not be connected with the crime in connection,
since there is nothing to indicate that with the said clutch wire, the
deceased was strangled. Even, no opinion of medical expert was
solicited, whether cause of death of throttling could be connected
with the clutch wire. Moreover, it was seized from an open place. So
far as regards recovery of purse from below bridge, wherein xerox
copy of election card of deceased Nilawati was found, is admittedly,
from an open place accessible to one and all. Moreover, although
there were photographs relating to those discoveries made allegedly
on 03.08.2014, no photographer has been examined. During
examination of a defence witness, being DW no.1 for accused no.2 -
Sadiq Pathan, who is Officer in the rank of Police Inspector, serving
with Nagpada Motor Parivahan, Mumbai, was shown the extract of
the log-book of the police vehicle in which the Investigating Officer,
panchas and the appellant had gone at various places on
03.08.2014. It is at Exh.195. This witness has specifically testified in
his examination-in-chief that from the documents obtained under
Right to Information Act, it appears that on 2 nd and 3rd August, 2014,
the vehicle was not taken out of Latur City (Vehicle registration
No.MH-24-D-7518). Although during his cross-examination, he
testified that the said extract was not visible as the entry dated
03.08.2014 was not clear, we must take into consideration that he is
none other than the police official. Needless to mention, a defence
can be made out based on the preponderance of probabilities. Even
if we accept the same as it is, finding of purse, containing the
election identity card of the deceased, would be not of that much
importance since the recovery was from an open place.
Recovery of ornaments:-
46. There is evidence to indicate the appellant Parmeshwar
to have made disclosure statement (Exh.110) in the presence of PW
8 - Sanjay and then, he took the panchas and police to his residence
and took out one paper containing some jewellery from a showcase.
Said jewellery was stated to be that of the deceased. In the FIR,
which was lodged six days after the deceased went missing, only the
kinds of ornaments has been given and not their description. PW 1 -
Subhash, in his examination-in-chief, also did not give the
description of the ornaments. Admittedly, on seizure of those
ornaments, the Investigating Officer did not hold test identification
thereof. Those articles were delivered to PW 1 - Subhash on
Supurtnama. It would, therefore, be illogical to conclude that
whatever ornaments were recovered pursuant to the disclosure
statement made by the appellant Parmeshwar were proved to have
belonged to deceased Nilawati.
47. PW 8 - Sanjay, panch witness to the recovery of those
ornaments, deposed that appellant Parmeshwar made a statement
(Exh.110) that he was ready to produce the ornaments, seat cover
and purse. His evidence is short to state that the appellant did make
statement that he would produce the ornaments of deceased he had
kept at his residence. Had such statement been made by the
appellant Parmeshwar in his presence and then ornaments were
recovered pursuant thereto, he would have been under obligation to
explain how the ornaments of the deceased came to his possession.
Had the Investigating Officer held test identification thereof and PW
1 - Subhash had identified them, then and then only, said recovery
could have been termed as an incriminating circumstance against
the appellant.
48. Then, what remains is the evidence relating to CDRs and
the tower locations of certain cellphone numbers. The evidence of
witnesses examined in that regard were officials of concerned
cellular companies. Except, in respect of one tower location, all
other record is supported with certificate issued under Section 65B of
the Evidence Act. It has been amply proved from their evidence that
cellphone no.7775925551 was issued in the name of appellant
Daivashala and cellphone no. 9403642031 was issued in the name of
nephew of the deceased and the same was being used by her. Same
is also evident from the missing person's report (Exh.72). It has also
been proved that cellphone no.9156509080 was issued in the name
of appellant Parmeshwar. The CDRs pertaining to 22.07.2014 and
23.07.2014 in respect of these cellphone numbers would indicate
that both appellant Daivashala and deceased Nilawati were in
contact with each other. The appellant Daivashala was also in
contact with appellant Parmeshwar. The chart referred by the trial
court in its judgment in paragraph 164, indicate that at no point of
time, the tower location of cellphone number of appellant Daivashala
was beyond the city of Latur. On 23.07.2014, the tower location of
cellphone of Parmeshwar was within the limits of village Mulaj, Tq.
Omerga, Dist. Osmanabad. It is not known, whether the dead body
of deceased Nilawati was found within the limits of this tower
location or nearby thereof. It is informed that the radius of each
tower location was not less than 3 kms. or more than that. The same
was based on aerial distance, meaning thereby, the road distance
might be somewhat more than 3 kms. Solely based on the CDRs
and their tower locations, it cannot be said that the trio were
together and the appellants done away with Nilawati. At the cost of
repetition, it is observed that there is no record to indicate that the
appellant Daivashala's cellphone, during the relevant period, ever
had tower location beyond the city of Latur.
49. Thus, the appreciation of the aforesaid evidence lead us
to conclude the prosecution to have failed to establish each and
every circumstance, as is expected to be proved in the case based
on circumstantial evidence. It is reiterated that the trial court has
relied on the entire evidence of the prosecution, most of which was
in the nature of recovery of cash amount, clutch-wire and ornaments,
etc., which we find to be not relevant under Section 27 of the
Evidence Act.
50. In our considered view, all in all, the prosecution has
failed to bring home the charge beyond reasonable doubt. The
appellants, therefore, deserve to be given benefit of doubt. The
appeals, thus, succeed.
51. Hence, the following order:-
(i) Both the appeals are allowed.
(ii) The order of conviction and consequential sentence
passed on 19.08.2019, by learned Sessions Judge, Latur, in Sessions
Case No.121 of 2014, convicting and sentencing the appellants for
the offences punishable under Sections 302 and 201 read with
Section 34 of Indian Penal Code, is set aside. The appellants stand
acquitted of the said offences.
(iii) The appellants be released forthwith, if not required in
any other case.
(iv) Fine amount paid by the appellants, if any, be refunded
to them.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
