Bombay High Court
Shishupal Rahul Rathod vs State Of Maharashtra on 14 July, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:29644-DB
P.H. Jayani 29 APEAL981.2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 981 OF 2017
WITH
INTERIM APPLICATION NO. 4428 OF 2023
IN
CRIMINAL APPEAL NO. 981 OF 2017
Shishupal Rahul Rathod
Age : 22 years, Occ : Labour,
R/at : Kewarewasti, Dongargaon,
Maval, Dist. Pune .... Appellant/Applicant
V/s.
The State of Maharashtra
(At the instance Lonavala Rural Police
Station, Dist. Pune) .... Respondent
WITH
CRIMINAL APPEAL NO. 307 OF 2019
WITH
INTERIM APPLICATION NO. 3316 OF 2023
IN
CRIMINAL APPEAL NO. 307 OF 2019
Amit @ Chimya Raju Rajput
Age : 20 years, Occ : Labour,
R/at : Kewarewasti, Dongargaon,
Td. Maval, Dist. Pune
(At present Yerwada Central Jail) .... Appellant/Applicant
V/s.
The State of Maharashtra
(Through PSO Lonavala Rural Police
Station) .... Respondent
1/21
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P.H. Jayani 29 APEAL981.2017.doc
Mr. Jayant Bardeskar for the Appellant in APEAL/981/2017.
Mr. Nikhilesh Pote for the Appellant in APEAL/307/2019.
Ms. Geeta P. Mulekar, APP for the Respondent - State.
CORAM : SARANG V. KOTWAL AND
SHYAM C. CHANDAK, JJ.
DATED : 14th JULY, 2025
JUDGMENT :
(Per : SARANG V. KOTWAL, J.) :-
1) Both these Appeals are decided by this common Judgment
because these Appeals arise out of the same impugned Judgment and
Order passed in the same Sessions Case.
2) The Appellant in Criminal Appeal No.981/2017 -
Shishupal Rathod was the original Accused No.1 and the Appellant in
Criminal Appeal No.307 of 2019 - Amit Rajput was the original
Accused No.2 in Sessions Case No.168/2015 before the learned
Additional Sessions Judge, Pune.
For the sake of convenience, both the Appellants are
referred to by their original status before the trial Court as 'the
Accused No.1' and 'the Accused No.2' respectively.
3) The learned Additional Sessions Judge, Pune vide the
Judgment and Order dated 31/10/2017 passed in Sessions Case No.
168/2015, convicted both the Accused for commission of the offence
P.H. Jayani 29 APEAL981.2017.doc
punishable under Section 302 read with 34 of the Indian Penal Code,
1860 and sentenced them to suffer imprisonment for life and to pay a
fine of Rs.2,000/- and in default to suffer S.I. for three months. They
were granted set-off under Section 428 of Cr.P.C.
4) Both the Appellants were arrested on 01/12/2014 and
since then, they are in custody.
5) Heard Mr. Jayant Bardeskar, learned Counsel for the
Appellant in APEAL/981/2017; Mr. Nikhilesh Pote, learned Counsel
for the Appellant in APEAL/307/2019 and Ms. Geeta Mulekar, learned
APP for the Respondent-State.
6) The prosecution case is that, one Vasant Harishchandre
was plying a rickshaw for his livelihood. On 21/11/2014, he met his
son - Manoj in Lonavala vegetable market. He told his son that he
was looking for some customers and that he would return home soon.
This was around 09:30 p.m.. But he did not return till about midnight.
His son Manoj got worried. Manoj tried to look for his father. In the
next morning also, Manoj tried to search for him but his father Vasant
was not found. In the meantime, the police called Manoj to the police
station. He was shown a dead body. He identified it as that of his
father. One Bhausaheb Bhivade had seen the dead body on a secluded
road. He had informed the police. Accidental Death Report No.39 of
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2014 was registered at Lonavala Rural Police Station on 22/11/2014
at 09:30 a.m. when the dead body was discovered. There were
injuries on the head and other parts of the body. The son of the
deceased lodged his FIR on 22/11/2014 at 07:00 p.m. It was
registered vide C.R.No.217 of 2014 at Lonavala Rural Police Station.
According to the prosecution case, one Usman Shaikh had seen both
the Appellants in the rickshaw of the deceased around the same time.
Based on his information, both the Appellants were arrested on
01/12/2014. The investigation continued. The statements of the
witnesses were recorded. At the instance of the Accused No.1, a knife
was recovered from a water filled quarry. At the instance of the
Accused No.2, the blood stained clothes of both the accused and some
documents regarding the rickshaw and the driving license of the
deceased was recovered and seized from the Accused No.2's room.
The CA reports were collected. At the conclusion of the investigation,
the charge-sheet was filed and the case was committed to the Court of
Session.
7) During trial, the prosecution examined ten witnesses
including Manoj-the son of the deceased Vasant, Usman Shaikh who
had seen the Appellants with the deceased in the night, the panchas
for recovery, the Doctor who had performed Post Mortem examination
P.H. Jayani 29 APEAL981.2017.doc
and who had also seen the injury on the arm of the Accused No.2 and
lastly, the Investigating Officer.
8) The defence of the Appellants was of total denial. The
learned Judge relied on the circumstances of the 'last seen together'
theory, their identification, recovery of the weapon, recovery of blood
stained clothes and recovery of the documents related to the
deceased. Based on these circumstances, the learned Judge recorded
the conviction and sentence against both the Appellants.
9) PW-1 Bhausaheb Bhivade was the Deputy Sarpanch of
village Dongargaon. On 22/11/2014, in the morning, when he was at
home; he received a phone call from one Amol Mandle that he had
seen a dead body near the land of Dr. Parmar. It was lying on the road
between Keware vasahat to Nikam vasti. PW-1 immediately went to
the place and found the dead body. There was a black coloured
sweater and khaki coloured pant on the dead body. There was
bleeding head injury. PW-1 then went to the police station and
informed the police. The police recorded his ADR No.39 of 2014. It is
produced on record at Exhibit - 24.
10) PW-2 Manoj Harischandre was the son of the deceased. He
had lodged the FIR. It is produced on record at Exhibit - 26. He
deposed that his father Vasant was residing with him in the year 2014.
P.H. Jayani 29 APEAL981.2017.doc
PW-2's father Vasant was plying autorickshaw bearing registration No.
MH12/BD-1871. On 21/11/2014, PW-2 returned from Pune at around
07:00 p.m. At that time, his father, mother and three sisters were in
the house. At 07:10 p.m., PW-2 left for purchasing vegetables from
Lonavala market. His father left with his autorickshaw. At 09:15 p.m.,
PW-2 made a telephonic call to his father who told him that after
dropping one Pardeshi, he would come to the market. Accordingly,
PW-2's father Vasant came to the market at around 09:30 p.m. with
his rickshaw. PW-2 requested him to take the vegetables in his
rickshaw but his father told him that he would wait for customers and
asked PW-2 to go home with the vegetables on his motorcycle. Vasant
i.e., PW-2's father then left looking for customers. PW-2 came home.
His father did not return till 10:45 p.m. PW-2 tried to call him on his
mobile phone but the phone was switched off. He waited till midnight
but still his father did not return. Therefore, he tried to search for his
father. His friend Rehman helped him, but, Vasant was not found
anywhere near Lonavala Railway Station, Lonavala bus stand, INS
Shivaji, Kurwande, etc. PW-2 returned home at around 06:30 a.m. on
22/11/2014. He again left his house in search of his father at about
10:30 a.m. At around 04:30 p.m., he received a phone call from his
cousin. He was asked to come to the police station. When he went
P.H. Jayani 29 APEAL981.2017.doc
there, the police showed him the clothes of his father. He identified
the clothes. They also showed him a dead body. He identified the dead
body as that of his father who had suffered head injuries. He was told
that the dead body was found on the road between Keware vasahat to
Nikam vasti near Dr. Parmar's land. The Police showed him the spot of
the incident. PW-2 then gave his FIR which is produced on record at
Exhibit - 26. The proforma is produced on record at Exhibit - 27.
In the cross-examination, he stated that his sister -
Rajkumari was married to one Ganesh Kadam who was serving as a
constable with Pune Rural police. He admitted that till the lodging of
the FIR, he had not lodged any complaint about his father missing
from 21/11/2014.
In the re-examination, he identified the mobile handset
(Article No.8) shown to him which was used by his father. His FIR
substantially corroborates his evidence.
11) PW-3 Eknath Kedari stated that on 21/11/2014 at around
11:00 p.m., after attending his duty as a driver, he was coming back to
Kedari vasati via. Kewara vasahat on his motorcycle. When he reached
near the land of Dr. Parmar, he saw one autorickshaw parked on the
kachcha road and one person was lying on the road near that
autorickshaw. He thought that the said person must be under the
P.H. Jayani 29 APEAL981.2017.doc
influence of liquor. He then went home. On the next day, he came to
know that Vasant Harischandre was murdered. The Police made
inquiries with this witness and recorded his statement.
12) PW-4 Usman Shaikh is an important witness. He deposed
that he used to ply a rickshaw to earn livelihood in the market area of
Lonavala. He knew the deceased as he was also plying rickshaw in the
same area. On 21/11/2014, it was a Friday. At about 10:00 p.m., this
witness was going towards Bangarwadi in his rickshaw. At that time,
the deceased Vasant met him. He inquired with Vasant as to where he
was going. He informed him that he was going towards Keware
vasahat. PW-4 further deposed that he saw two passengers namely
Rathod and Chimya in Vasant's rickshaw. He stated that he was
knowing those two persons by face. He further added that he came to
know their names through the Police. After two days, he came to
know that Vasant was murdered near Keware vasahat. The Police
recorded his statement on 24/11/2014. He identified the Appellants
before the Court as the same persons.
In the cross-examination, he stated that there was always
heavy traffic on Pune-Mumbai highway. He denied the suggestion
that there was darkness on the road which proceeded towards
Bangarwadi. He could not tell the colour of the clothes worn by the
P.H. Jayani 29 APEAL981.2017.doc
deceased or the accused on that day. Importantly, he admitted that the
only source of light which could be available in the rickshaw, was in
the form of tariff meter of the rickshaw. He further admitted that the
tariff meter of Vasant's rickshaw was not in a working condition. He
also admitted that except the light in the meter, there was no other
light inside the rickshaw. When he met the deceased, he had stopped
near him for a period of ten to fifteen seconds.
In the cross-examination conducted on behalf of the
Accused No.2, he specifically stated that while recording his statement
on 24/11/2014, he had not disclosed the names of the accused before
the police. All these are important admissions in the context of the
case.
13) PW-5 Prashant Harischandre is another important witness.
He was the nephew of the deceased. He was residing near the house
of the deceased. On 21/11/2014 at about 10:30 p.m., PW-1 came to
him and told him that the deceased Vasant had not returned home.
On the next day also, Vasant did not return home. Therefore, PW-5
and others tried to contact him by making phone calls but his mobile
phone was found switched off. They took search with the help of
relatives, friends, etc. In the evening, they were called to the police
station. The police disclosed to them that they had found the dead
P.H. Jayani 29 APEAL981.2017.doc
body of Vasant near Keware vasahat. He further deposed that when
they were making inquiry with the rickshaw drivers, one Usman
Shaikh disclosed to him that he had met the deceased on 21/11/2014
at around 10:00 p.m. while going to his house and that, Vasant was
having two passengers in his rickshaw. According to him, Usman told
him that both the accused were in the rickshaw. PW-5 then went to
the police station taking Usman Shaikh with him. Then police
recorded the statement of PW-5. He deposed that he knew the accused
and that they were the same persons who were in the rickshaw of the
deceased. Of course, this identification has no meaning because he
himself had not seen the accused in the rickshaw with the deceased.
He was relying on the information supplied by PW-4 Usman Shaikh.
14) PW-6 Balu Mohol was a pancha for recovery of knife at the
instance of the Accused No.1. He deposed that he was called by the
officers of Lonavala Rural Police Station on 02/12/2014. The Accused
No.1 made a disclosure statement that he had thrown the knife in a
quarry and that, he was willing to show that place. The statement of
the Accused No.1 was recorded. The police and panchas were led by
the Accused No.1 to that place. The Accused No.1 produced a knife
from the quarry. It was filled with water. The knife could not be seen
till it was taken out by the Accused No.1.
P.H. Jayani 29 APEAL981.2017.doc
His cross-examination was mainly on the point as to
whether he was knowing the family of the deceased. The
memorandum statement is produced on record at Exhibit - 35 and the
recovery panchanama is produced on record at Exhibit - 36. The
weapon is described as having length of 14 centimeters and the blade
was six centimeters long.
15) PW-7 Hanumant Sawant was a pancha for the recovery of
the documents and clothes at the instance of the Accused No.2. He
deposed that on 05/12/2014, he was called by the police for
panchanama. The Accused No.2 made a voluntary statement that he
would show the place where he had concealed the clothes of both the
accused and the documents concerning the rickshaw and the license
of the deceased. He then led the police and the panchas to his room.
There was one wooden cupboard and he produced all these articles
from that wooden cupboard. The memorandum statement and the
panchanama are produced on record at Exhibits - 38 and 39
respectively.
In the cross-examination, he admitted that on
05/12/2014, PW-5 Prashant Harischandre had made a phone call to
him. When he went to the police station, at that time, PW-5 Prashant
was already present there. PW-5 Prashant Harischandre asked him
P.H. Jayani 29 APEAL981.2017.doc
whether he was ready to act as a pancha. After that, Prashant did not
accompany them for the recovery. When they went to the room, some
ladies were present near that room. He did not know whether the
police made inquiry regarding the ownership of that house. The
Accused No.2 disclosed that he was residing alone in that room.
16) PW-8 Babaji Ewale, Police Head Constable had carried the
Articles to FSL, Pune on 10/12/2014.
17) PW-9 Dr. Sanjivani Gadekar had conducted the Post
Mortem examination and had also given a certificate about the
injuries suffered by the Accused No.2. PW-9 had noted the following
injuries :-
(1) Contused lacerated wound admeasuring 2 x
0.5 cm over left temporal region with muscle depth under
line bone fractured.
(2) CLW 2 x 1 cm over Rt temporal region with
muscle depth.
(3) Incised wound 2 x 5 cm under chin with
muscle depth.
(4) Incised wound 1 x 0.5 cm on neck region front
side with muscle depth.
(5) Abrasion 2 x 1 x 1, 1 x 0.5 and 2 x 0.5 cm on
Rt shoulder region reddish brown in colour.
P.H. Jayani 29 APEAL981.2017.doc
(6) Abrasion 1 x 1, 2 x 1, 1 x 0.5 cm near Rt ear
reddish brown in colour.
(7) Abrasion 1x1, 2 x 0.5, on chest region reddish
brown in colour.
(8) Abrasion 4 x 0.5, 1 x 1, 2 x 0.5 over Rt side of
the neck region.
(9) On palpitation fracture right mandible region.
The Post Mortem notes were produced on record at Exhibit
- 47. The cause of death was mentioned as 'due to head injury'.
He further deposed that on 02/12/2014, the Accused No.2
was brought by the police for medical examination and this witness
had found one old incised wound on the right hand. He had given
treatment to the Accused No.2. Those case papers were produced on
record at Exhibit - 50.
In the cross-examination, he stated that the death of the
deceased had occurred within 24 hours from starting of the post-
mortem examination. The examination had started at 02:00 p.m. on
22/11/2014. Therefore, it matches with the disappearance of the
deceased.
18) PW-10 Pradeep Kade, PI was the Investigating Officer. He
had deposed about the investigation carried out by him. He had stated
P.H. Jayani 29 APEAL981.2017.doc
that he went to the place of occurrence of the incident. He conducted
the spot panchanama, the Inquest Panchanama and recorded the
statements of the witnesses. He supervised the recovery panchanama
of the knife from the Accused No.1 and the other Articles from the
Accused No.2. He also collected the medical certificate in respect of
the injury suffered by the Accused No.2. After completion of the
investigation, he had filed the charge-sheet.
In the cross-examination, he added that on the basis of the
statement given by the Accused No.2 on 20/12/2014, he registered
the offence under Section 324 of IPC vide C.R.No.230/2014.
However, that particular FIR is not properly produced on record and it
was not shown as to how the contents of that FIR were admissible
against or in favour of either of these accused.
This, in short, is the evidence led by the prosecution.
19) Learned Counsel for the Accused No.1 submitted that the
main circumstance against the accused was that the deceased was last
seen together with the accused. But the identification of the accused is
not proper. There was no light in the rickshaw. There was no
possibility that the witness - PW-4 could have seen the accused in the
rickshaw. He admitted that he was not knowing their names and yet,
somehow the police arrested the accused as the persons who were
P.H. Jayani 29 APEAL981.2017.doc
seen by this witness. There was no linking evidence as to how the
police had arrested the accused based on the information given by
PW-4 because he was not knowing the names of the accused. He had
not given any description of the accused. The police did not conduct
any Test Identification Parade. There was no light inside the rickshaw,
and therefore, in any case, PW-4 could not have seen the faces of the
passengers in the rickshaw of the deceased. His conduct is also not
natural. PW-2 and all the other family members were searching for the
deceased from the midnight of 21/11/2014 and yet, he had not
informed anybody that he had seen the accused with the deceased
around the same time from when the deceased was not seen by
anybody else. His statement was recorded only on 24/11/2014.
He submitted that the CA report produced on record
shows that, there was no blood found on the knife recovered at the
instance of the Accused No.1 and therefore, there was no evidence to
connect this particular weapon with the murder of the deceased. He
further submitted that the recovery of the clothes of both the accused
at the instance of the Accused No.2 cannot be held as an incriminating
piece of circumstance as far as the Accused No.1 is concerned.
20) Learned Counsel for the Accused No.2 invited our
attention to the evidence of PW-7 Hanumant Sawant who acted as a
P.H. Jayani 29 APEAL981.2017.doc
pancha; wherein he has clearly admitted that he was called to the
police station by PW-5 Prashant Harischandre who was a nephew of
the deceased. PW-5 had asked this witness to act as a pancha.
Therefore, PW-7 cannot be termed as an independent witness for this
important recovery panchanama. Since this is the only circumstance
against the Accused No.2, the prosecution had to prove this
circumstance beyond a reasonable doubt. Moreover, the prosecution
has not established the ownership of the room from where the Articles
were recovered and they had not shown that it was in the exclusive
possession of the Accused No.2. Similarly, the panchanama does not
show that the room was locked. Anybody could have had access to
that particular room and therefore, it was not very difficult to plant
those Articles.
21) Learned APP opposed all these submissions. According to
her, the police were informed about the names of the accused by PW-4
and therefore, the accused were arrested. There is no reason to doubt
the evidence of PW-4 Usman Shaikh. Therefore, the last seen together
theory is proved by the prosecution. The dead body was discovered in
the morning and the time of death as opined by the Medical Officer
was very near to the point of time when the deceased was seen with
the accused in the rickshaw. Therefore, there was no time gap. The
P.H. Jayani 29 APEAL981.2017.doc
spot where the dead body was found, was not far away from the place
where PW-4 had seen the deceased with the accused. Hence, in this
case, the theory of last seen together is a strong incriminating
circumstance against both the accused.
She further submitted that, though the knife did not show
blood in the CA report, the fact remains that the weapon was
recovered at the instance of the Accused No.1 who had concealed it in
a quarry. It is an incriminating piece of circumstance. She relied
heavily on the recovery of documents of the rickshaw and the license
of the deceased from the room of the Accused No.2 at his instance.
Similarly, the blood stained clothes were also found from his house.
Those clothes showed presence of human blood. Therefore, according
to the learned APP, this is another incriminating piece of circumstance
which completes the chain of circumstances against both the accused.
Based on these circumstances, the learned Judge has rightly recorded
his finding of guilt against both the accused.
22) We have considered these submissions.
23) The first circumstance of course, is the last seen together
theory. For that purpose, the main and only evidence is that of PW-4
Usman Shaikh. According to him, he had crossed the rickshaw of the
deceased and he had a brief conversation with the deceased. The
P.H. Jayani 29 APEAL981.2017.doc
interaction was hardly 10-15 seconds. During that period, he claims to
have seen both the accused in the rickshaw. The cross-examination
has effectively brought out on record that there was no source of light
inside the rickshaw. The only possible source of light was from the
tariff meter but even that tariff meter was not working in the rickshaw
of the deceased. PW-4 had interacted with the deceased at around
10:00 p.m. on the road. There was nothing to show that there was
another source of light anywhere nearby. Therefore, it is very difficult
to believe that within that short span of 10-15 seconds, he could see
the accused in that rickshaw. He has admitted that he was knowing
them only by face and he was not knowing their names. Therefore, it
was all the more important for the police to have verified that the
passengers were none other than the accused and therefore, it was
necessary to have held the Test Identification Parade to enable this
witness to identify the accused. But this was not done. This witness
hardly had any opportunity to observe the features of the passengers.
There was no light inside the rickshaw. Therefore, the evidence of
identification of these two accused inside the rickshaw, is highly
doubtful. Consequently, the theory of last seen together i.e., accused
and the deceased having been seen together at about 10:00 p.m., is
extremely doubtful and the prosecution has not proved that particular
P.H. Jayani 29 APEAL981.2017.doc
circumstance beyond a reasonable doubt.
24) The next circumstance is about the recovery of weapon at
the instance of the Accused No.1. Here again, we find force in the
submissions of the learned Counsel for the Accused No.1 that the
recovered weapon did not show presence of any blood. Therefore, it is
not possible to connect this weapon with the murder of the deceased.
25) The next and only important circumstance in this case, is
about the recovery at the instance of the Accused No.2 made on
05/12/2014. For that purpose, PW-7 Hanumant Sawant was
examined as a pancha. We have discussed his evidence. Most
significantly, he has admitted that PW-5 who was a nephew of the
deceased, had called this witness telephonically. PW-5 was already
present in the police station and he had asked willingness of this
witness to act as a pancha. This procedure clearly shows that the
police had not taken any efforts to bring independent panchas for this
particular recovery. PW-7 therefore, is not an independent witness but
he was acting at the behest of the nephew of the deceased.
Even otherwise, the panchanama shows that, the police
and the panchas simply entered the said room purportedly occupied
by the Accused No.2. There was no lock to the room. There was no
lock to the cupboard and therefore, it was accessible to all. This is
P.H. Jayani 29 APEAL981.2017.doc
another doubtful circumstance against the prosecution case.
Therefore, once there is a serious doubt raised about the recovery at
the instance of the Accused No.2, though the documents of the
rickshaw and the license are found there along with the blood stained
clothes, this cannot be used as an incriminating circumstance against
either of these accused. The blood found on the clothes, was found to
be inconclusive as far as the blood group was concerned.
26) Another important circumstance in this case is that, the
rickshaw of the deceased was not found. There was no investigation in
that behalf and the prosecution is silent on that point. The
disappearance of the rickshaw is not linked to the accused.
27) Considering all these aspects, in our opinion, the
prosecution has failed to prove its case beyond reasonable doubt.
Therefore, benefit of doubt must be given to both the accused. Hence,
the following Order :-
(a) Criminal Appeal No. 981 of 2017 and Criminal
Appeal No.307 of 2019, are allowed.
(b) The impugned Judgment and Order dated 31st
October, 2017 passed by the learned Additional Sessions
Judge, Pune in Sessions Case No.168/2015 convicting and
P.H. Jayani 29 APEAL981.2017.doc
sentencing both the Appellants, is set-aside. The
Appellants are acquitted from all the charges.
(c) The Appellants are in custody. They shall be
released forthwith, if not required in any other case.
(d) Before being released, the Appellants shall
execute a P.R. Bond in the sum of Rs.25,000/- each for
their appearance under Section 481 of the Bharatiya
Nagarik Suraksha Sanhita (BNSS), 2023, in case an Appeal
is preferred.
28) The Appeals are disposed of. With the disposal of the
Appeals, all the connected Applications are also disposed of.
(SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)
PREETI
HEERO
JAYANI
