Bombay High Court
Shivanand Bhimanna Munjanwar @ Munjan vs The State Of Maharashtra on 14 July, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:29881-DB
Digitally
signed by
HEMANT
HEMANT CHANDERSEN 28.app37.22.doc
CHANDERSEN SHIV
SHIV Date:
2025.07.18
18:53:55
+0300 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.37 OF 2022
WITH
INTERIM APPLICATION NO.145 OF 2022
IN
CRIMINAL APPEAL NO.37 OF 2022
Shivanand Bhimanna
Munjanwar @ Munjan
R/o Kanmadi, Tal. Vijapur
District Vijapur,
State - Karnataka .. Appellant/Applicant
vs.
The State of Maharashtra
(At the instance of Sr. P.I. Umadi
Police Station, Dist. Sangli .. Respondent
Mr. Hasan Nizami with Dr. Yug Mohit Chaudhry for the Appellant/
Applicant.
Mr. K. V. Saste Additional P.P. for the Respondent-State.
CORAM : SARANG V. KOTWAL &
SHYAM C. CHANDAK, JJ.
DATE : 14th JULY, 2025
JUDGMENT (PER SARANG V. KOTWAL, J.)
1) The Appellant had challenged the Judgment and Order
dated 22/11/2021 passed by the learned Additional Sessions Judge,
Sangli in Sessions Case No.183 of 2016. The learned Judge convicted
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the Appellant for commission of offence punishable under Section 302
of the Indian Penal Code, 1860 ('I.P.C.') and sentenced him to suffer
life imprisonment and to pay a fine of Rs.5,000/- and in default of
payment of fine, to suffer R.I. for one month. The Appellant was given
set-off under Section 428 of Cr.P.C. The Appellant was arrested on
16/08/2016 and since then, he is in custody.
2) Heard Mr.Hasan Nazmi, learned Counsel for the Appellant
and Mr.K. V. Saste, learned Additional P.P. for the Respondent-State.
3) The prosecution case is that, the deceased Mahadev Kohalli
knew the Appellant. There was some financial transaction between
them. The deceased Mahadev Kohalli was asking for his money.
Therefore, there was some dispute. The incident took place somewhere
between 12th and 13th August, 2016. The Appellant and the deceased
had gone to attend a Court case at Vijapur. They had met one Advocate
there. When both of them were returning, according to the prosecution
case, there was some quarrel and the Appellant committed the murder
of the deceased by using a sickle. The dead body was found by
someone else. The Appellant had concealed the weapon at a different
place in a well. He had also concealed the clothes worn by him and
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some documents of the deceased in a distant place near the farm house
of his brother-in-law in the State of Karnataka. In the meantime, search
was conducted for the deceased. After the dead body was found, it was
identified and then, the FIR was lodged. The daughter of the deceased
expressed suspicion against the Appellant. Subsequently, he was
arrested. The investigation continued. As per the prosecution's case,
the recovery of all the above articles were effected at the instance of
the Appellant. After conclusion of the investigation, the charge-sheet
was filed and case was committed before the Court of Sessions. During
the trial, the prosecution examined nine witnesses including the
daughter of the deceased, the Medical Officer, the Panchas, one person
whose mobile phone was used by the Appellant purportedly to call the
deceased, the Nodal Officer and the Investigating Officer.
4) The defence of the Appellant was of total denial. According
to him, because of pressure of the first informant and her relatives, the
witnesses were deposing accordingly. He had no connection with the
death of the deceased, he did not have any agricultural land and he did
not have any economic transactions with the deceased. He did not
have any dispute with the deceased. He did not understand Marathi
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and on the basis of a false complaint and a false statement the police
prepared false panchnama of the articles and on the basis of that, the
police have filed a false charge-sheet against him. That was the defence
taken by him.
5) The learned Judge disbelieved this defence. He also
discarded the theory of last seen together but he relied on the recovery
evidence. He convicted and sentenced the Appellant as mentioned
earlier.
6) P.W.1 was the interpreter who assisted the Court in
translating the evidence of P.W.2 who did not know Marathi.
7) P.W.2 is an important witness. She was the daughter of the
deceased and she had lodged the FIR. She deposed that she was
married but because of the dispute with her husband she was staying
with her parents and brother. She then deposed about her father's bad
relations with her distant Uncles, namely, Shrishailya and Parappa
Kohali. There was one civil suit pending in the Court at Vijapur in
respect of that dispute. P.W.2's brother's first wife was not staying with
P.W.2's brother and she was staying with her parents at Utagi. She had
also filed one criminal case in Vijapur Court. P.W.2's father and brother
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used to go to Vijapur Court in connection with those cases. The
present Appellant was known to her as he was her father's friend.
According to her, the Appellant used to visit her house. The Appellant's
financial condition was poor. Her father had given three to four lakh
rupees to the Appellant by way of a hand loan. Her father used to
demand back that money from the Appellant and because of that, there
used to be quarrels between them. Inspite of that, the Appellant
continued visiting their house. He used to tell her father that he would
pay the amount shortly and that he would sell the agricultural land to
repay the loan.
8) On 11/08/2016, the Appellant had dinner in the house of
P.W.1. He had a discussion with P.W.2's father and they decided to go to
Vijapur the next day i.e. 12/08/2016. At about 9.00 am, her father had
a telephonic conversation with the Appellant and told him that he
would go to Bijargi stand and called the Appellant there with a
motorcycle. After that P.W.2's father told her that he was going to
Vijapur along with the Appellant. According to P.W.2, her father had
gone to Vijapur and had not returned. She thought that her father
must have stayed at the house of their relatives. Therefore, she did not
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make any enquiry. On 13/08/2016 at about 1.00 pm her cousin called
her telephonically and enquired about P.W.2's father. She also further
informed that there was a dead body of a person lying in a forest at
Motewadi and suspected that the dead body could be that of P.W.2's
father. P.W.2 came to know that the dead body was taken to hospital at
Jath. P.W.2 tried to call her father on his mobile phone but there was no
response. She tried to call the Appellant but his phone was switched
off. Then, she called the Advocate at Vijapur, who informed her that
her father had come to the Court with one person and had left the
Court around 4.00 pm. He described that person as wearing a white
coloured Dhoti and a Neharu Shirt. He further told that both of them
had left together at 4.30 pm on a motorcycle. P.W.2 then went to the
Government Hospital at Jath. She identified the dead body and then,
she lodged an FIR against the Appellant. The FIR is produced on record
at Exh.16. After some days, she was called to the police station. She
identified her father's documents, mobile phone, voter's identity card,
ST Pass and some cash. She identified the Appellant in the Court. She
identified the chappal and cap of her father. She deposed that her
statement was recorded under Section 164 in the Court at Jath. That
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statement was produced on record at Exh.17. She also identified a
mobile handset produced in the Court as being that of her father.
9) In the cross examination, she deposed that her father had
two brothers. One Sumitra was wife of her Uncle Parappa and she had
filed a suit for partition and separate possession of their joint property.
The suit was filed at Vijapur. She also admitted that there was one
more suit between her father and Sumitra i.e. wife of Parappa and
one Kasutri. This cross examination was conducted to show that there
were many other people who had disputes against the deceased and
the defence wanted to suggest that there were other persons who were
on enemical terms with the deceased. She further admitted in the
cross examination that the Appellant and her father did not have any
documented transaction. She also admitted that there were no cases
pending between her father and the Appellant either civil cases or
criminal cases. Importantly, she admitted that during the investigation,
the police had demanded identity proof of her father for identification
of the dead body of her father. The learned Counsel for the Appellant
relied specifically on this admission because according to him, the
police had obtained the election card as identity proof and foisted that
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recovery on the Appellant. Our attention was brought to the omission
from her police statement as there was no mention that the Advocate
had told her that the deceased and that other person had left on a
motorcycle at 4.30 pm. She could not explain why there was such an
omission from the police statement. She had not told the police that
her father had given a motorcycle to the Appellant for his use. The FIR
is produced at Exh.16. She had mentioned the mobile phone number
of the deceased as well as the mobile phone number of the Appellant.
This FIR was lodged on 13/08/2016. It was registered vide C.R.No.42
of 2016 at Umadi police station.
10) P.W.3 - Shivaji Sunkhe is also an important witness in this
case. He was a pancha for various panchnamas. He deposed that he
was called at Umadi police station on 16/08/2014. The Appellant was
in custody of the police. The Police Officer told him that the Appellant
wanted to tell the pancha something. The Appellant produced one
motorcycle, his blood stained shirt and a white colour Dhoti having a
blue design on the side. It was also stained with blood. The police
seized those articles, they were packed, sealed and labeled. A
panchnama was drawn and is produced at Exh.25.
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He was again called to the said police station on
18/08/2016. The Appellant made a statement that he was willing to
show the place where he had concealed the sickle used for the offence
and that he had concealed a mobile handset and the bag having
documents of the deceased and a Cap. He showed willingness to
produce those Articles. His statement was reduced to writing. The
Appellant then led the pancha witnesses and the police officers on
Vijapur road, they were traveling in a vehicle and he took them to the
State of Karnataka. The Appellant led them to a village at Honwad via
Tikota. He took them on a rough road for about 7 to 8 kms and then
asked them to stop the vehicle behind a house. The Appellant told
them that it was the farm house of his brother-in-law. The Appellant
then took them at a distance of 100 meters on a Bandh. There were
heaps of dry sugar cane waste bundles lying around. The Appellant
went near one of those heaps and took out one one white cap from the
heap. There were two carry bags inside that cap. Both were opened.
The panchas and police found samsung mobile handset from that bag.
Its battery was removed. The Appellant disclosed that he had thrown
away the sim card. The bags also contained one identity card of the
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Appellant and some documents written in Kannad. The panchnama
mentions that it was the election identity card of the deceased, there
were some other documents written in Kannad. After that the
Appellant led them to Kanmadi village and they were again taken
through a kachha road. He asked them to stop the vehicle at the back
side of a house. It was his own house and farm. He led the police and
the panchas near a well and told them that he had thrown the sickle in
the Well. He went inside the well and took out the sickle which was
produced before the Court.
In the cross examination, P.W.3 was asked questions about
the work in his office and whether he was really an independent
pancha. At one point he was asked whether the person who
accompanied them to show the articles, knew Marathi or not. To this
specific question, this witness answered that the said person knew
Marathi but this witness could not confirm it. He admitted that he had
not confirmed whether that person could read and write Marathi. He
also admitted that there was no mention of the Cap in the
memorandum statement. The Cap was recovered at the time of the
recovery panchnama. He also admitted that the said person had not
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disclosed that the sickle was thrown inside a Well. He identified all
these articles including the clothes produced by the Appellant in the
Court. This identification was brought on record after he was recalled
and the examination in chief was continued. The panchnama at
Exh.27 shows that some documents were recovered from the
Appellant's brother-in-law's farm house. Those were the election card
of the deceased, ST Pass having the photograph of the deceased, a
small diary and other documents.
Two mobile handsets were recovered. Their battery was
removed. The IMEI number of both the handsets are mentioned.
Besides these articles, there is a reference to an old 'cap' recovered
along with those articles. This panchnama was conducted on
18/08/2016 between 11.20 am to 7.00 pm.
11) P.W.4 - Dr. Nilesh Dopare had conducted the post mortem
examination on 13/08/2016. There were incised wounds on the right
frontal area, anterior part of neck, incised wound on occipital area,
incised would on right neck. All these injuries were serious, grievous
and long in dimension. There were injuries on left hand, face, forearm
and chest. On the internal examination, it was found that the deceased
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had suffered fracture of frontal bone and the cheek bone. There were
three fractures on the skull. The death was caused because of all these
injuries. The post mortem examination was conducted on 13/08/2016
at 5.00 pm. He admitted that he had not mentioned the age of the
injuries and the time in the post mortem report. The post mortem
notes are produced on record at Exh.40.
12) P.W.5 - A.P.I. Pravin Sanpange is the Investigating Officer.
He was attached to Umadi police station as the P.S.I. He has
investigated this offence registered vide C.R.No.42 of 2016 at that
police station. On 13/08/2016 there was a call from Umadi police
station from Police Patil of Motewadi regarding an unknown dead
body that was lying in the forest area. Accordingly, station diary entry
was made by P.W.5 and the staff went to the spot. The inquest
panchnama was drawn and it is produced on record Exh.49. The dead
body was identified after the post mortem examination. One of the
relatives of the deceased informed the other relatives. The dead body
was identified by the wife of deceased at Rural Hospital Jath. P.W.2
i.e. daughter of deceased expressed her suspicion against the
Appellant. She lodged the FIR. The investigation commenced. P.W.5
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recorded statements of the witnesses. On 16/08/2016, the Appellant
came to the police station. He produced his motorcycle and clothes
which he was wearing at the time of the incident. P.W.5 has further
deposed that on 18/08/2016 the Appellant gave memorandum
statement pursuant to which the weapon, documents and other
articles were recovered. He sought opinion of the Medical Officer to
ascertain the time of death. However, there is no such opinion
produced on record by the prosecution. P.W.5 obtained C.D.R. of the
mobile phone of the deceased.
In the cross examination, he deposed that initially
accidental death report was registered on 13/08/2016 in respect of
death of the deceased. It was based on the information provided by
Police Patil Ananda Mote. But his statement was not recorded during
the investigation. He deposed in the cross examination that village
Sankh was in Taluka Jath. The spot where the dead body was found,
was near the village Sankh. He admitted that he could not find any
witness who had seen the Appellant and deceased together on the
motorcycle from Bijargi to Vijapur. He did not find any documentary
evidence showing that the Appellant had taken loan of Rs.3-4 lakhs
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from the deceased.
13) P.W.6 - Shivshankar Shegunshi was an interpreter and with
his help the deposition of P.W.7 - Dariyappa Mali was recorded. He
deposed that on 12/08/2016 he was at a tea stall at Birajdar. The
Appellant approached him and requested him to permit him to make a
phone call from the mobile phone of this witness. The Appellant made
that phone call and returned his handset after that this witness
received a phone call on his mobile phone. The caller asked him about
the Appellant. By that time the Appellant had already left. Importantly,
there is no further investigation in respect of the C.D.R. of phone of
this witness. Therefore, there is a loose end regarding caller on his
phone and the phone number of the caller. There is no evidence to
show that the Appellant had made a phone call to the deceased.
14) P.W.8 - API, Umakant Shinde had investigated A.D.R No.8
of 2016 which was registered at Umadi police station in respect of
death of the deceased. He had conducted the inquest panchnama and
the spot panchnama. He had collected blood mixed soil from the spot.
In the cross examination, he stated that the distance between
Umadi and Jath is about 50 to 55 kms.
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15) P.W.9 - Dhananjay Yadav was the Nodal Officer of the
mobile phone service provider. He has deposed about producing C.D.R
of the mobile phone number of the deceased. His evidence does not
show the phone numbers on which the deceased had made phone calls
or phone numbers from which deceased had received the phone calls.
Therefore, the evidence of P.W.9 does not help the prosecution case.
16) The C.A. reports are produced on record at Exh.78. It
shows that the clothes of the deceased were having blood of 'O' group.
The clothes of the Appellant shows presence of human blood and the
blood group was inconclusive. Importantly, there was no blood found
on the Koyta recovered at the instance of the Appellant.
This in short is the evidence led by the prosecution.
17) The learned Counsel for the Appellant made the following
submissions :-
He submitted that there was hardly any evidence against
the Appellant. There are no incriminating circumstances showing
connection of the Appellant to the offence of murder. Nobody had
seen the Appellant with the deceased any time after 12/08/2016. On
the previous night, the deceased and the Appellant had dinner together
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as deposed by P.W.2. but after that nobody had seen them together.
P.W.2 has only spoken about the telephonic conversation and her
impression that the deceased was going with the Appellant. However,
even she had not seen the deceased with the Appellant on
12/08/2016. The Advocate at Vijapur Court is not examined by the
prosecution. The Investigating Officer has admitted that there was no
evidence found in his investigation that any witness had seen the
Appellant and deceased together. The second circumstance about the
motive is also quite weak. There was no proof that the deceased has
given about Rupees three to four lakhs to the Appellant. There is only
unsubstantiated evidence of P.W.2 in that behalf. The Investigating
Officer has admitted that they could not find any evidence to that
effect.
The next circumstance is about the phone calls made by the
Appellant by using the phone of P.W.7. There is no CDR supporting this
circumstance. The main circumstance which the learned Judge has
heavily relied on is about recovery of the clothes of the Appellant and
recovery of the weapon and other articles including the identity card
of the deceased at the instance of the Appellant. He submitted that
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production of the clothes by the Accused/Appellant in police station is
doubtful. In any case the blood group on his clothes was found
inconclusive. Therefore, it cannot be connected with the offence of
murder of the deceased. He submitted that the recovery of the
identity card and other documents pertaining to the deceased at the
instance of the present Appellant is not reliable. It does not stand to
reason as to why the Appellant would not have destroyed these
documents and the identity card. They were of no use to him. He had
already taken precaution to remove the sim card from the mobile
handset of the deceased and in that case there was no reason as to why
he would keep the document concealed at a particular place. It also
does not stand to reason as to why he would choose two different
places to conceal the articles and the weapon. The weapon was thrown
at a different place in a well. He submitted that the evidence shows
that the police had specifically asked for the identity proof of the
deceased from P.W.2. This would indicate that the documents and
voter's identity card belonging to the deceased could have been
supplied by P.W.2 to the police.
18) The learned APP on the other hand strongly opposed these
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submissions. According to him, the finding of the identity card and
other documents belonging to the deceased, recovered at the instance
of the Appellant are the most incriminating pieces of evidence. In this
case there was no reason and explanation as to why the documents
and the identity card would be in possession of the Appellant which he
chose to conceal. He submitted that the recovery was effected from
the farm house of the Appellant's brother-in- law and from the well in
his own agricultural land. Therefore, those were the spots which were
easily accessible to the Appellant alone and therefore, there is no
infirmity in the recovery of evidence.
19) Mr.Saste, learned Addl.P.P. further submitted that there is no
reason to disbelieve P.W.2 as far as motive is concerned. He further
submitted that though the Advocate from Vijapur Court is not
examined, P.W.2 had a conversation with that Advocate and she was
informed that the deceased and one more person had gone to Vijapur
Court and they had left together at 4.00 pm on 12/08/2016 on a
motorcycle. This is in support of the prosecution case. There is recovery
of a weapon which is also an incriminating piece of circumstance. The
evidence of P.W.2 cannot be brushed aside. That evidence is important.
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She tried to contact the Appellant and deceased but both of them did
not respond. There is no explanation offered by the Appellant in that
behalf.
20) We have considered these submissions. Since this is a case
based purely on circumstantial evidence, it was incumbent on the
prosecution to have proved each of these circumstances separately,
beyond reasonable doubt and then form a complete chain of these
circumstances, to prove the case against the Appellant. The
prosecution was required to exclude all the other hypothesis, except
showing the guilt of the Appellant alone. In this case there are
following circumstances which need consideration.
Motive :
21) As far as motive is concerned, the only evidence which is
led by the prosecution is in the form of deposition of P.W.2. Only this
witness has spoken about the loan of Rupees Three to Four lakhs which
the deceased had given to the Appellant. From her evidence itself can
be seen that the deceased was aware that the Appellant was in a poor
financial condition and in order to help him this amount was given to
the Appellant as per the deposition of P.W.2. According to her, the
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deceased used to demand that money back and there used to be
quarrels between the Appellant and the deceased. Inspite of that, the
Appellant and the deceased were on good terms. In fact, they had
dinner together at the house of the deceased on 11/08/2016. On the
next day also they decided to go to Vijapur Court together. There is no
evidence brought by the prosecution that the Appellant had any case in
Vijapur Court. It was only at the instance of the deceased that the
Appellant had agreed to go to Vijapur Court. It is reflected in the
deposition of P.W.2. Apart from that, there is no evidence produced by
the prosecution to show that there was any serious quarrel between the
Appellant and the deceased or that the Appellant had threatened to
commit murder of the deceased. Therefore, we find that motive
expressed by the P.W.2 in this particular case is quite weak. She had
lodged the FIR based only on the suspicion as per her information that
the deceased was to go to Vijapur Court with the Appellant. Her own
evidence shows that the deceased had disputes with many other
persons which is subsequently brought out in cross examination as well
as in examination in chief of this witness. Therefore, there is some
substance in the submissions of learned Counsel for the Appellant that
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the deceased was on enemical terms with many people.
22) The next circumstance is about production of the clothes
allegedly worn by the Appellant at the time of the incident and
production of the motorcycle. First of all, it is not very clear as to in
what circumstances the Appellant remained present in the police
station. It appears from the evidence that he surrendered himself
before the police station. There is no evidence to show that he was
arrested through some efforts made by the police officers. When the
pancha reached the police station, by that time, the clothes of the
Appellant were already brought by him. He had also brought the
motorcycle. Therefore, it cannot be said that he had removed his
clothes from his person and he was asked to wear some different
clothes. Apart from that, there is no connection with the motorcycle
produced in the Court. It is another loose end. The prosecution has not
shown any connection between the recovered motorcycle and the
ownership either with the Appellant or with the deceased.
23) The clothes produced by the Appellant, purportedly were
the clothes which he was wearing. They were sent for C.A. examination
but they only showed presence of human blood. The blood group was
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inconclusive. Admittedly, the blood group of the deceased was 'O'
group. There is no conclusive evidence that the blood on the clothes
produced by the Appellant was that of the deceased. Thus, the
production of his clothes and the Chemical Analysis Report of those
clothes, does not add to the prosecution case.
24) The next circumstance is about the Appellant being
together with the deceased. The prosecution has miserably failed to
prove its case that the Appellant and the deceased were together since
the morning of 12/08/2016. There is not a single witness who had
seen both of them together. According to P.W.2, the deceased was to
meet the Appellant at the bus stop and then, they were to travel
together on a motorcycle. Nobody from that area was examined. There
is no witness who had seen them together at the bus stop. It is only the
impression of P.W.2 that the Appellant and the deceased had left
together from their village. She was told by the deceased that he was
going to Vijapur with the Appellant but beyond that, there is no
evidence to show that both of them had actually travelled together to
Vijapur and if they had travelled to Vijapur, whether they had come
back together from Vijapur because the incident had taken place after
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the deceased had left Vijapur Court with one person. Therefore, there
is no evidence to show that the Appellant was with the deceased since
the morning of 12/08/2016 and more importantly, after 4 o'clock on
12/08/2016 when the deceased had left Vijapur Court as informed by
an Advocate to P.W.2.
25) The prosecution has not examined the Advocate from
Vijapur Court who had met the Appellant in that Court. It was only a
hearsay evidence in the form of PW-2 who was told by that Advocate
that the deceased had left Vijapur Court with one person. There is no
further description of that particular person who was accompanying
the Appellant. The prosecution could have easily examined the said
Advocate in the Court. Non-examination of that Advocate is a serious
lacuna and in this case, adverse inference will have to be drawn
against the prosecution that the said evidence would have been
inconvenient to the prosecution.
26) The weapon was allegedly recovered from a well in the
agricultural land of the Appellant in Karnataka. However, the C.A.
report pertaining to that sickle does not show presence of human
blood. Therefore, in any case, this weapon is not directly connected
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with the allegation of commission of murder with that weapon.
27) The only piece of evidence which requires serious
consideration is about recovery of the Voters Identity Card, the Bus
Pass and other documents belonging to the deceased which were
recovered at the instance of the Appellant. In this connection, the
prosecution has examined P.W.3 - Shivaji Sankhe who was a pancha
witness for panchanamas at Exhibit-27. The panchanama records the
memorandum statement given by the Appellant. The memorandum
statement does not mention that the weapon was concealed at a
different place and the mobile phone and the documents were
concealed at a different place. There is a general statement that he
would show the place where the weapon, the mobile phone and the
documents were recovered. He has not even mentioned the place
where those Articles were concealed by him. We find some force in the
submission of the learned Counsel for the Appellant that when the
Articles were recovered, the mobile phone's battery was removed and
the sim card was not there. Thus, care was taken to remove the sim
card and the battery so that the Articles would not be traced back to
the deceased or the Appellant. If the Appellant was so careful, then it
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does not stand to reason as to why he would keep the documents and
the Identity Card of the deceased with those phones and as to why he
would even preserve those documents. They were of no use to him.
According to the prosecution case, he had taken care to wipe out the
signs of his connection with the offence by removing the sim card and
the battery from the mobile phone. Then, by the natural course of
conduct, he could have easily destroyed the documents of the
deceased. In any case, the statement made by the Appellant which is
recorded in the memorandum panchanama showed his omnibus
statement that he was willing to show the place where he had
concealed all these Articles including the weapon. The weapon was
recovered from a totally different place which was at quite some
distance from the place from where the other Articles viz. the mobile
phone and the documents were recovered. This has to be seen in the
light of the fact that P.W.2 had admitted in the cross-examination that
the police had sought documents for identification of the dead body.
The prosecution has deliberately not led evidence as to which
documents were given by P.W.2 to the police to establish his identity.
Therefore, in this background, the benefit of doubt must go to the
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Appellant. In any case, on the basis of this doubtful piece of evidence
in the form of recovery, it is difficult to conclude that the Appellant had
committed murder of the deceased. There is absolutely no other
evidence against the Appellant.
28) The learned Judge himself has discarded the evidence
regarding the Appellant and the deceased having been seen together.
He had relied mainly on the circumstance of recovery of deceased's
Articles at the instance of the Appellant. We find that the said
circumstance is not proved by the prosecution beyond a reasonable
doubt. In this view of the matter, the benefit of doubt must be given to
the Appellant. Thus, in our opinion, the prosecution has failed to
prove its case beyond a reasonable doubt. The prosecution has failed to
rule out every other hypothesis except the guilt of the Appellant.
Therefore, the Appeal must succeed. Hence, the following Order :-
(a) The Criminal Appeal is allowed.
(b) The impugned Judgment and Order dated 22/11/2021
passed by the learned Additional Sessions Judge, Sangli in
Sessions Case No.183 of 2016 convicting and sentencing
the Appellant, is set-aside. The Appellant is acquitted of all
the charges.
28.app37.22.doc
(c) The Appellant is in custody. He shall be released forthwith,
if not required in any other case.
(d) Before being released, the Appellant shall execute a P.R.
Bond in the sum of Rs.25,000/- to ensure his appearance,
under Section 481 of the Bharatiya Nagarik Suraksha
Sanhita (BNSS), 2023, in case an Appeal is preferred.
29) With the disposal of the Appeal, the connected Interim
Application is also disposed of.
(SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)
