Bombay High Court
Rahul Jaggulal Vishwakarma vs The State Of Maharashtra on 25 June, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:26073-DB
Gokhale 1 of 25 906-apeal-1285-22 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1285 OF 2022
Rahul Jaggulal Vishwakarma ..Appellant
Versus
The State of Maharashtra ..Respondent
WITH
INTERIM APPLICATION NO. 1905 OF 2022
IN
CRIMINAL APPEAL NO. 1285 OF 2022
__________
Mr. Manas N. Gawankar a/w. Shreyas N. Gawankar (appointed
Advocate) for the Appellant.
Ms. Sharmila S. Kaushik, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL &
MANJUSHA DESHPANDE, JJ.
DATE : 25 JUNE 2025
JUDGMENT:
(Per Sarang V. Kotwal, J.)
1. The Appellant has challenged the Judgment and order
dated 06.10.2020 passed by the learned Sessions Judge, Pune, in
Sessions Case No.499 of 2016. Besides the Appellant, there was
one more accused, accused No.2 Girishchandra Shambhu Mishra.
He was acquitted from all the charges in the trial. The Appellant
was convicted for commission of the offence punishable under
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2025.07.01
10:36:20
+0530
2 of 25 906-apeal-1285-22 (J)
section 302 of the I.P.C. and was sentenced to suffer life
imprisonment and to pay a fine of Rs.500/- and in default to suffer
imprisonment for three months. He was also convicted for
commission of the offences punishable under sections 392 and
Section 397 of the I.P.C. and was sentenced to suffer imprisonment
for 10 years. Both the sentences were directed to run concurrently.
Set off U/s.428 of the Cr.p.c. was given to the Appellant for the
period of detention undergone by him during the investigation and
trial of the case. The valuable articles recovered were already
handed-over to the first informant under the bond dated
04.01.2016. That bond was continued further till the Appeal
period was over.
2. The prosecution case is that the Appellant was working
in a laundry. He used to go to the house of the deceased for
collecting and delivering the laundry. The name of the deceased
was Satishchandra Dravid. The family of the deceased consisted of
his wife, daughter and a grand daughter who were staying
together with the deceased. One month prior to the incident, the
deceased had complained to the laundry owner about the
3 of 25 906-apeal-1285-22 (J)
Appellant's behaviour. The laundry owner, on his part, had
removed the Appellant from his service because he had found that
the Appellant was addicted to consuming ganja. However,
subsequently, he reinstated the Appellant in his service showing
leniency. The incident had occurred on 17.09.2015. The family of
the deceased had gone to attend a family function at some other
place. The deceased was alone in the house. It is the prosecution
case that the Appellant entered the house of the deceased and
committed his murder by stabbing him with a knife and assaulting
him with a chair. There are allegations that the Appellant removed
gold ornaments consisting of four bangles, mangalsutra, ring etc.
He also removed cash of Rs.4000/- from the cupboard. The family
of the deceased returned home at around 8:15p.m. in the night.
The deceased was seen in a pool of blood with a knife in his neck.
His daughter immediately called the police by dialing the number
100. The F.I.R. was lodged and the investigation was started.
3. The police seized the CCTV footage of the society
building between 12:00p.m. to 5:00p.m. The Appellant was seen
entering the society and leaving the society around 3:00p.m. to
4 of 25 906-apeal-1285-22 (J)
4:00p.m. He was arrested on suspicion. He led the police to his
laundry from where the ornaments and cash were recovered. His
clothes and footwear were seized. The articles were sent for
chemical analyzer's examination. On the completion of the
investigation the charge-sheet was filed. It is the case of the
prosecution that the Accused No.2 who was the Watchman of the
society, gave details about the whereabouts of the family of the
deceased to facilitate the commission of the murder when the
deceased was alone in the house. However, during trial after the
evidence was led, it was observed that there was no evidence
against the Accused No.2 and he was acquitted. The defence of the
Appellant was of total denial. The learned trial Judge considered
all these aspects and convicted and sentenced the Appellant, as
mentioned earlier.
4. During trial, the prosecution examined 11 witnesses
including the daughter of the deceased, the panchas, the Manager
of the society, the person who had copied the CCTV footage on the
DVD, and the investigating officer. The documentary evidence in
the form of C.A. certificate and the postmortem notes were
5 of 25 906-apeal-1285-22 (J)
produced on record. The learned Trial Judge discarded the
evidence of the CCTV footage because the certificate U/s.65B of
the Indian Evidence Act was not produced on record. The learned
Trial Judge relied on the circumstances of the case as follows:
i) The Appellant used to visit the house of the
deceased to collect and deliver the laundry.
ii) The deceased had complained against the
Appellant to his employer.
iii) The robbery of valuables.
iv) The recovery of the valuables at the instance of
the Appellant.
The learned Judge was of the opinion that these
circumstances were sufficient to record the conviction against the
Appellant, and accordingly convicted and sentenced the Appellant.
5. PW-1 Swati Dravid had lodged the F.I.R. She was the
daughter of the deceased. She has deposed that on 17.09.2015,
she along with her mother and daughter had gone to Kothrud at
her Aunt's place to attend Ganapati festival. They returned at
about 8:15p.m. Nobody answered the door bell. She opened the
door with a spare key. She entered the house and switched on the
lights. She found that there were blood footprints in the dining
6 of 25 906-apeal-1285-22 (J)
room. The dining chair made up of wood and metal was found in a
broken condition. She saw her father lying in a pool of blood with
a knife in his throat. She dialed the number 100. Immediately the
police came to her house. She was taken to the police station and
her F.I.R. was recorded. It is produced on record at Exhibit-23.
According to her, four gold bangles, ear rings, mangalsutra and
cash of Rs.4000/- were stolen from the house. This is the evidence
she has given about the incident. She has further deposed that, she
had received those articles on her furnishing a security bond. She
had brought those ornaments in the Court at the time of her
deposition. She produced them before the Court. They were four
gold bangles, one mangalsutra, one finger ring and two ear rings.
She further deposed that, she was again called to the police station
on 22.09.2015 because the police had seized the gold ornaments
and she was called to identify them.
In the cross-examination, she deposed that the flat
stood in the name of her elder sister Nikita. As per her knowledge,
her housemaid had come to the house at around 1:30p.m. and
except her, nobody had come to the house. There is a watchman in
7 of 25 906-apeal-1285-22 (J)
the society on the entry gate and he took the entries of the visitors.
According to her, CCTV was installed in the society. She denied the
suggestion that the stolen articles described in the F.I.R. did not
match with the articles seized by the police and brought by her to
the Court.
The F.I.R. proved by her at Exhibit-23 substantially
corroborated her deposition. Thus, it can be seen that the F.I.R.
was lodged against an unknown person.
6. The spot panchanama was produced on record at
Exhibit-24. The photographs were taken. There was mention of a
broken chair.
7. PW-2 Sopan Badhe was the pancha for arrest of the
Appellant and for seizure of his clothes. He has deposed that, on
19.09.2015, he was called by the police in Crime Branch No.5 at
Hadapsar. The Appellant was already present there. He was asked
to change his clothes. The clothes which he was wearing were seized.
His purple coloured chappal was also seized. The panchanama
dated 19.09.2015 was produced on record at Exhibit-26.
8 of 25 906-apeal-1285-22 (J)
8. PW-3 Dashrath Gadre was a pancha for recovery of the
articles. He was an important witness and that panchanama at
Exhibit-28 is also important. He deposed that on 23.09.2015 the
police called him at around 11:00a.m. The Appellant Rahul was
present at the police station. The Appellant told them that he
would show them the stolen articles concealed by him. They
proceeded as per the directions of the Appellant, in a police jeep.
He took them near a temple at Yamuna Nagar. They entered a
laundry. One Sunil Diwakar was working there. He took out a
packet from behind a photograph. The packet was opened and it
was found that there were four bangles, two ear rings, one finger
ring and a mangalsutra along with Rs.4000/- in cash. The police
seized those articles.
In the cross-examination, he denied the suggestions
that he had merely signed the already prepared panchanama. The
statement made by the Appellant which was recorded in the
memorandum panchanama at Exhibit-28 does not make any
reference to the said person Sunil Diwakar. The Appellant's
statement does not even mention that, he had concealed those
9 of 25 906-apeal-1285-22 (J)
ornaments in a laundry. These aspects are important. PW-3 has
mentioned that one goldsmith had also accompanied them. The
panchanama refers to that goldsmith as Gaurav Lokhande; who
was examined as PW-11.
9. PW-11 Gaurav Lokhande deposed in his evidence that on
23.09.2015 the police had called him at Vimantal police station
and took him to one laundry behind Vimannagar. The panchanama
was going on at that laundry and at that time he verified the
ornaments and prepared the valuation report. He did not
remember whether the Appellant Rahul was present there. He
produced the valuation report on record at Exhibit-52.
10. PW-4 Vinayak Khude was the Manager of the society. He
deposed that the police obtained the CCTV footage of the main
building's entrance dated 17.09.2015 between 12:00noon to
5:00p.m. on a pen drive. He arranged for the transfer of that
footage from DVR to the pen-drive of the police.
In the cross-examination, he deposed that he looked
after the maintenance of the CCTV in the society. The hard disc
10 of 25 906-apeal-1285-22 (J)
and other hardware pertaining to the CCTV was in his custody.
According to him, the CCTV in the 'C' building of the society was
not working on that day. The incident had occurred in Flat No.301
of 'C' building. Significantly, he did not produce any certificate
issued by him regarding the recording of the CCTV footage or
transfer of that footage from DVR to the pen-drive of the police.
This was important because those equipments were under his
control. He has also not explained as to how he arranged for the
transfer of the footage from DVR to the pen-drive of the police.
11. In his further examination in chief, after he was recalled,
he described the CCTV footage. According to him, at about
15:49:17 hours the Appellant Rahul and the watchman were seen
entering the society. The watchman returned to his seat at
15:49:52 hours. The Appellant Rahul was seen returning at
16:21:08 hours.
In the cross-examination, he admitted that the face of
the person who was going out of the society at 16:21:08 hours was
not visible.
11 of 25 906-apeal-1285-22 (J)
12. PW-5 Umesh Magar was in the business of computers.
On 22.09.2015, the police officers of Vimantal police station had
approached him and had taken him to the society where the
incident had occurred. He was requested to take the CCTV footage
on the pen-drive. He transferred the footage on the pen-drive from
the DVR which was kept near the meter room of the society. The
police prepared the panchanama in that regard and obtained his
signature. He further deposed that the police obtained his
signature on the Certificate U/s.65B of the Evidence Act. However,
importantly, this particular certificate was not produced on record.
In the cross-examination, he deposed that the police
had brought the certificate U/s.65B of the Evidence Act and he had
signed it after reading it.
13. PW-9 D. A. Arunkumar was another witness examined by
the prosecution in respect of the CCTV footage. He was acting as a
pancha. In his presence, PW-4 Vinayak Khude the society Manager
gave the CCTV footage to the police on a pen-drive. They went to a
nearby shop at Vimannagar and sought help from the shop owner
12 of 25 906-apeal-1285-22 (J)
for copying the DVD. The pen-drive was given to the shop owner
and it was transferred on a DVD. A copy of the DVD was given to
the police.
14. PW-6 Tirath Kanojia was the owner of the laundry where
the Appellant was working. He deposed that the Appellant was
working with him since about 11 months. He used to collect and
deliver the laundry. According to him, the Appellant used to visit
the house of the deceased. He further deposed that, once the
deceased had called PW-6 and had told him that he should not
send the Appellant to his house since he was not a good person.
One month prior to 17.09.2015, PW-6 had removed the Appellant
from his service since he was addicted to consuming ganja. But
one and a half month thereafter, the Appellant had requested him
to take him back on his job and he had assured that he would not
repeat any wrong behaviour. Therefore, PW-6 again kept him on
his job.
In the cross-examination, he deposed that, he had
never sent the Appellant to the house of the deceased after the
13 of 25 906-apeal-1285-22 (J)
deceased had complained against the Appellant.
15. PW-7 Nagamma Kamble was the domestic servant
working in the household of the deceased. On 17.09.2015 at
12:00p.m. she had gone to their house. All of them were in the
house, but except the deceased the others left to attend Ganapati
festival. At that time, the deceased was taking rest. At about
1:30p.m. she left. She went to attend her work in other flat and
then went home at about 4:30p.m.
16. PW-8 Sunil Diwakar was a co-employee of the Appellant.
He deposed that on 17.09.2015 in the evening the Appellant came
to him and told him that he had brought jewellery for his mother
and wanted this witness to keep it in his custody. He was to collect
it on the next day. He had given the jewellery in a white
handkerchief. PW-8 kept it behind the photo in the laundry. On
23.09.2015, the Appellant came there with the police. The
Appellant told PW-8 to give that jewellery. PW-8 took out that
jewellery from behind the photograph and gave it to the police. He
admitted that, he had not seen the jewellery.
14 of 25 906-apeal-1285-22 (J)
In the cross-examination, he deposed that, he had
started working in the laundry only one month prior to 17.09.2015
and after that he had met the Appellant after 10-15 days. He did
not have good acquaintance with the Appellant and he did not
meet the Appellant everyday. He had not seen what was kept in
the handkerchief. The police told him that there was jewellery in
the handkerchief. The police had not opened the handkerchief in
his presence. This aspect is important because his signature
appears on the panchanama at Exhibit-28, which mentions that the
handkerchief was not only opened, but the valuation was done
then and there.
17. PW-10 API Prataprao Kolte was the investigating officer.
He had carried out the investigation. He deposed about receiving
of the information and registration of the F.I.R. He had conducted
the spot panchanama. He recorded the statements of the
witnesses. He had collected the CCTV footage and had transferred
it on a DVD. The Appellant was arrested. The recovery of the
ornaments was effected. According to him, he had obtained the
certificate U/s.65B of the Evidence Act from PW-4 Vinayak Khude
15 of 25 906-apeal-1285-22 (J)
and PW-5 Umesh Magar. However, they were not produced on
record. He had sent the articles for chemical analysis. The C.A.
reports show presence of blood on the clothes of the deceased and,
on the jeans and on pair of chappal of the Appellant. The blood
was not found on his T shirt, however, the blood group of all these
articles was inconclusive. The postmortem report was produced on
record at Exhibit-42. The deceased had suffered as many as 32
wounds in the nature of incised wounds, stab wounds, contusions
and abrasions. The cause of death was mentioned as "death due to
stab injury over neck with head injury".
This, in short, is the evidence led by the prosecution.
18. Learned counsel for the Appellant made the following
submissions:
The prosecution has not produced the certificate
U/s.65B of the Evidence Act on record, therefore, the CCTV
footage is not an admissible piece of evidence in this case. The
learned Trial Judge has discarded that evidence. The evidence
shows that, faces of the persons in that CCTV footage were not
16 of 25 906-apeal-1285-22 (J)
clear, therefore, it cannot be said that, it was none other than the
Appellant who had entered the society at the time as mentioned in
the CCTV footage. In any case, it was not unusual for him to enter
the society because he was a regular visitor to collect and deliver
the laundry. There was no motive for him to commit the murder of
the deceased on account of personal grudge because, though,
allegedly the deceased had complained about him to his employer,
the Appellant's employer had not removed him because of that
reason. The Appellant was removed for some other reason because
the employer found the Appellant was addicted to ganja. His
removal had nothing to do with the deceased. Therefore, the
motive was weak.
Learned counsel submitted that, there is no direct
evidence. It was possible for the investigating agency to have
collected the footprints, finger prints etc. which were visible on the
spot. The prosecution was not able to rule out the possibility of
any other person committing the murder. The family was not in
the house from around 12:00p.m. The housemaid, allegedly, left
the house at around 1:30p.m. The family members returned home
17 of 25 906-apeal-1285-22 (J)
at around 8:15p.m. That was the long period during which
anybody else could have committed the murder. That by itself does
not rule out the possibility of anybody else committing murder. It
cannot be said that the Appellant was the only person who had an
opportunity and, therefore, had committed the murder. He
submitted that the only circumstance relied by the Trial Court is
about recovery of the ornaments, however, that recovery is not
beyond suspicion. There is no proper identification of those
ornaments from the family members. Though, those ornaments
were produced by PW-1 in the Court, there is no linking evidence
as to how those ornaments were handed over to her on bond and
whether there was identification by her about those ornaments.
There is no matching of those ornaments with the description of
the stolen ornaments from the F.I.R.
The jeweller who had accompanied the police at the
time of recovery of those ornaments has not clearly stated whether
the Appellant was present with them.
PW-8 Sunil Diwakar had not seen what was in the
18 of 25 906-apeal-1285-22 (J)
handkerchief when the Appellant allegedly handed over those
ornaments to him. There is no authorship of concealment and
there is no reference to the name of Diwakar when the Appellant
allegedly made the statement leading to recovery of those
ornaments.
Learned counsel submitted that, in view of this weak
nature of evidence regarding recovery, the conviction for
commission of the offence punishable U/s.302 and U/s. 397 of the
I.P.C. was unsustainable.
19. Learned APP, on the other hand, submitted that the
CCTV footage clearly showed that the Appellant had entered the
society at around 3:00p.m. to 4:00p.m. and, therefore, he had an
opportunity to commit the murder. He had an easy access to the
flat because he was collecting and delivering the laundry to the
deceased's family. She submitted that the evidence of the CCTV
footage cannot be discarded as being inadmissible. The Appellant
had a personal grudge with the deceased and that was the motive
for commission of the offence. Apart from that, robbery is another
19 of 25 906-apeal-1285-22 (J)
motive for which the offence was committed. The ornaments
stolen from the deceased's house were found with the Appellant's
co-employee in the laundry. This is a strong incriminating
circumstance against him.
20. We have considered these submissions. As far as,
personal grudge is concerned, the evidence led by the prosecution
in that respect is quite weak. The laundry owner had clearly stated
that the Appellant was not removed from the job because of any
complaint made by the deceased. He was temporarily removed
from the job because, according to the laundry owner the
Appellant was addicted to ganja; but subsequently, the Appellant
was taken back in the service. He continued in the same society for
collecting and delivering the laundry. Therefore, that cannot be a
motive. The only possible motive could be that of robbery. It was
linked with the recovery of ornaments. We will discuss this
evidence a little later. But as far as the motive is concerned, the
prosecution has not proved the motive of personal grudge.
21. The other circumstance of the CCTV footage also will
20 of 25 906-apeal-1285-22 (J)
have to be left aside because the prosecution has not produced the
certificate U/s.65B of the Evidence Act. The CCTV footage was
transferred on different storage devices at different stages. At the
first instance, it was transferred on the pen-drive under the
supervision of the Society Manager. However, there are no details
provided. The Manager has not deposed that he had issued any
certificate U/s.65B of the Evidence Act. At the second stage, the
contents of the pen-drive were transferred on a DVD by another
shop owner. Though, he says that he had signed the certificate
U/s.65B of the Evidence Act; it is not produced on record. No
explanation is offered. The evidence shows that the face of the
person leaving the society was not visible in the CCTV footage.
Therefore, the learned Trial Judge himself has discarded this
evidence and in our opinion he was right in discarding that
evidence.
22. Even otherwise, even if it is assumed that the Appellant
had entered that society, it was not unusual, because he was a
regular visitor of that society to collect and deliver the laundry.
Therefore, we do not find it is an incriminating circumstance
21 of 25 906-apeal-1285-22 (J)
against him forming a link to the chain of circumstantial evidence.
23. The blood stains on the jeans and chappal of the
Appellant did not show the blood group, therefore, it cannot be
directly connected to the blood of the deceased. In any case, it is
little difficult to believe that the Appellant would continue wearing
the same clothes and the same chappal which was stained with
blood, leaving his footprints in the flat. He was arrested on
19.09.2015 i.e. after 2 days of the incident. Most importantly, the
seizure panchanama Exhibit-26 does not mention that the clothes
and the chappal were sealed. Therefore, this circumstance is also
not a strong incriminating circumstance against the Appellant.
24. The only incriminating circumstance which requires
serious consideration is that of recovery of the ornaments at his
instance.
25. There are some important infirmities in this evidence.
First of all, there is no reference to the witness Sunil Diwakar (PW-
8) in the memorandum statement given by the Appellant. The said
memorandum statement does not mention the place where the
22 of 25 906-apeal-1285-22 (J)
ornaments were kept or the name of the person to whom the
ornaments were delivered.
26. The jeweller who is examined as PW-11 has not clearly
deposed whether the Appellant was present when the recovery
was effected. The co-employee PW-8 Sunil had not seen what was
in the handkerchief when it was handed over to him by the
Appellant. That handkerchief was not opened in presence of PW-8
Sunil. This is also an important aspect. As mentioned earlier, the
panchanama at Exhibit-28 clearly mentions that the handkerchief
was opened in the laundry itself and at that time the ornaments
and money was found. The ornaments were valued there itself.
This panchanama bears signature of PW-8, but he has admitted
that the police had not opened the handkerchief in his presence.
This raises reasonable suspicion against this recovery.
27. Most importantly, there is no linking evidence to connect
those ornaments with the ornaments stolen from the house of the
deceased. It was very important for the prosecution to establish
that those were the very same ornaments which were stolen from
23 of 25 906-apeal-1285-22 (J)
the house of the deceased. For that purpose, PW-1 Swati's evidence
was important, but she has nowhere stated that she identified
those ornaments in the police station. In fact, she has deposed
that, she was called to the police station on 22.09.2015 for
identification of the ornaments. The evidence shows that the
ornaments were actually recovered on 23.09.2015. Therefore,
these two dates do not match and this raises a serious doubt about
the prosecution claim that they were the same ornaments which
were stolen from the house of the deceased. There is absolutely no
linking evidence as to how those particular ornaments were
returned back to PW-1 Swati on executing a bond. The I.O. PW-10
Prataprao has not uttered a word about such identification of the
ornaments. Thus, there are too many infirmities in this regard.
28. Apart from that, the investigating agency has not taken
care to secure the finger prints and footprints from the spot of the
incident to connect them with the present Appellant. The
panchanama at Exhibit-26 regarding seizure of the clothes and the
chappal of the Appellant in the panchanama dated 19.09.2015
does not mention whether those articles were sealed when they
24 of 25 906-apeal-1285-22 (J)
were seized. This is also a major infirmity.
29. Thus, we find that the evidence against the Appellant in
this case is extremely weak. The circumstances do not form a
complete chain of circumstances, to enable us to reach a
conclusion that it is only the Appellant who could have committed
this offence. With the result, we are unable to uphold the
conviction and sentence recorded by the learned Trial Judge.
30. Hence, the following order:
ORDER
i) The Appeal is allowed.
ii) The Judgment and Order dated dated 06.10.2020
passed by the learned Sessions Judge, Pune, in
Sessions Case No.499 of 2016, convicting and
sentencing the Accused Rahul Jaggulal
Vishwakarma, is set aside.
iii) The Appellant is in custody. He be released
forthwith if not required in any other case.
iv) The Appellant shall execute P. R. Bond in the sum
of Rs.25000/- U/s.481 of Bharatiya Nagarik
25 of 25 906-apeal-1285-22 (J)
Suraksha Sanhita, 2023 (correspondingly
U/s.437A of the Cr.P.C.) for his appearance, in
case an Appeal is preferred.
v) The Appeal is disposed of.
vi) With disposal of the Appeal, the interim
application is also disposed of.
(MANJUSHA DESHPANDE, J.) (SARANG V. KOTWAL, J.)
