Bombay High Court
Pradeep @ Shappu Janardhan Kokate vs The State Of Maharashtra on 4 September, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-AUG:23639-DB
..1.. CriAl-364-17 .odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 364 OF 2017
Pradeep @ Shappu Janardhan Kokate,
Age : 29 Years, Occ. Education,
R/o. Near Karandikar Hospital,
Wagh Mala, Ward No. 15,
Ahmednagar .. Appellant
(Original Accused)
VERSUS
The State of Maharashtra .. Respondent
WITH
CRIMINAL APPEAL NO. 345 OF 2017
Divya @ Hema Jitendra Bhatiya,
Age : 34 Years, Occ. Household,
Resident of Sona Nagar, Savedi,
Ahmednagar .. Appellant
(Original Accused)
VERSUS
The State of Maharashtra .. Respondent
Mr. Kuldip Kahalekar, Advocate alongwith Mr. N. S. Ghanekar,
Advocate for the Appellant in Criminal Appeal No.364 of 2017;
Mr. Ajeet Manwani, Advocate alongwith Mr.Swapnil Telang,
Advocate for and on behalf of A.A. Legal Associate, Advocate
for Appellant in Criminal Appeal No. 345 of 2017;
Mr. S. R. Wakale, Assistant Public Prosecutor for the
Respondent/State
..2.. CriAl-364-17 .odt
CORAM : NITIN B. SURYAWANSHI AND
SANDIPKUMAR C. MORE, JJ.
RESERVED ON : 3rd JULY, 2025
PRONOUNCED ON : 4th SEPTEMBER, 2025
JUDGMENT (PER SANDIPKUMAR C. MORE, J):
-
1. Both the appellants, namely, Pradeep @ Shappu
Janardhan Kokate in Criminal Appeal No. 364 of 2017 and
Divya @ Hema Jitendra Bhatiya in Criminal Appeal No. 345 of
2017 are the original accused Nos. 1 and 2 in Sessions Case
No. 240 of 2014, respectively. Both of them have challenged
the judgment and order dated 17.06.2017 passed in the
aforesaid Sessions case, by the learned Additional Sessions
Judge-2, Ahmednagar (hereinafter referred to as 'the learned
trial Judge'). To avoid ambiguity, both the appellants are
referred by their first names. Under the impugned judgment,
the appellant Pradeep is convicted as follows :-
Sr.No. Under IPC Section Sentence
01. 302 Imprisonment for Life and to pay
fine of Rs.5,000/-, in default of
payment of fine, Rigorous
Imprisonment for six months.
02. 120-B Imprisonment for life and to pay a
fine of Rs. 3000/- in default of
payment of fine, he shall undergo
R.I. for four months.
..3.. CriAl-364-17 .odt
03. 387 Rigorous Imprisonment for five
years and to pay a fine of Rs.
2000/-. In default of payment of
fine, he shall undergo R.I. for three
months
04. Section 3 of Arms Rigorous imprisonment for four
Act, 1959 years and to pay a fine of Rs.
2000/-. In default of payment of
fine, he shall undergo R.I. for three
months.
05. Section 5 of Arms Rigorous imprisonment for four
Act, 1959 years and to pay a fine of Rs.
2000/-. In default of payment of
fine, he shall undergo R.I. for three
months.
2. Whereas the appellant Divya is convicted as under :-
Sentence
Sr.No. Under IPC Section
01. 120-B Imprisonment for life and to pay a
fine of Rs. 5000/-.In default of
payment of fine, she shall undergo
R.I. for four months.
02. 201 Imprisonment for three years and
to pay a fine of Rs. 3000/-. In
default of payment of fine, she
shall undergo R.I. for two months.
3. It is significant to note that in the aforesaid
Sessions Case, there was one another accused i.e. accused
No.3 Vikram @ Gotya Kishor Berad, who was convicted only for
the offence under Section 5 read with 25 of the Arms Act, 1959
and was sentenced to suffer R.I. for four years and to pay fine
of Rs. 2000/-, in default to suffer R.I. for three months.
..4.. CriAl-364-17 .odt
4. The third accused had also filed a separate appeal for
challenging his conviction under the impugned judgment,
bearing Criminal Appeal No. 358 of 2017. However, during the
pendency of said appeal, the appellant Vikram expired on
26.06.2023, and therefore, this Court, vide order dated
22.08.2023, disposed of his appeal as criminal proceeding
against him stood abated. Since both the appellants Pradeep
and Divya have challenged one and the same judgment
whereby they are convicted, we would like to consider both the
appeals together as the evidence for both of them is common.
5. The facts of the prosecution case, in a nut shell are
as under :-
One Shankar Mohanlal Bhatiya, lodged report in
Kotwali Police Station, Ahmednagar (now Ahilyanagar) on
27.04.2014 at about 22.15 hours in respect of firing in the
shop of his brother, i.e. the deceased Jitendra Mohanlal
Bhatiya in the instant case. According to the informant
Shankar Bhatiya, deceased Jitendra was looking after shop
under the name and style as "Mohan Trunk Depot". The said
shop premises was rented to Bhatiya family for more than 60
years and at the time of the incident, deceased Jitendra and
..5.. CriAl-364-17 .odt
his uncle Dharamdas Bhatiya were looking after the same. A
civil dispute was also there between Jitendra and the owner of
the said shop by name Sudhir Zalani, for termination of
tenancy and eviction.
6. It is contended by the informant Shankar that on
26.04.2014 at about 8.00 p.m., when he was in his shop, he
received blank phone call on his mobile number from mobile
SIM No. 9881010595. Then again, at about 8.55 p.m., he
received another call from same mobile number. The person
calling him said as "Ghar Par Koi Phone Nahi Utta Raha Hai,
Ghar Par Sab Mar Gaye Kya." When Shanker asked who was
speaking, the other person told him as "Kal 30 lakh Rupye
Tayar Rakhna" and disconnected the call, which lasted about
42 seconds. Informant Shankar did not pay much attention to
call, thinking that somebody might be joking. On the next day,
at about 14.32 hours, informant received text message on his
aforesaid mobile number from another mobile SIM No.
9561733069 written as "Shankar 30 Lakh Rupye Tayar
Rahana, Rat Ko Aath Baje Call Karuga, Phone Uthana
Warna.....". Due to such S.M.S., he immediately called his
uncle Jamnadas, who advised him to file report in police in
respect of the same. Thereafter, he went to shop of Jitendra at
..6.. CriAl-364-17 .odt
Ganj-Bazar area, where Dharamdas and Jitendra both were
present. When he told them about the phone call and
message received by him, Jitendra told that he had also
received one missed call at 9.00 p.m. from mobile SIM No.
9881010595 and when he called back on the said mobile
number, it was switched-off. Then at about 4.30 p.m.
informant Shankar, Praveen Ahuja, Bunty went to Kotwali
Police Station and told about the said call and message to PSI.
Ahire. PSI, Ahire also tried to call on both the above said
mobile numbers, but it was found that those were switched off.
PSI Ahire, then told them to come at 7.50 p.m. since the
person calling had told them that he would call at around 8.00
p.m.
7. Accordingly, informant Shankar again went to
Kotwali Police Station in the night at 8.00 p.m. and met PSI
Ahire and at about 8.20 p.m., the informant Shankar received
call on his mobile from mobile SIM No. 9881010595. He put
his handset on speaker mode and accepted the call. The
person at other side asked as "30 Lakh Rupye Taiyar Hai Kya?"
When the informant tried to ask as to who was speaking, the
other person replied as "Chutiye Nam bathe kya" and
..7.. CriAl-364-17 .odt
disconnected the call. From there, when the complainant went
to the shop of Praveen Ahuja, where his uncle Jamnadas had
also come, Jamnadas told that he also received phone call
from mobile No. 9561733069 and the person from other side
was making inquiry as " 30 lakh ka kya hua". When it was
asked as to who was speaking, the call was disconnected.
When such talks amongst them were going on, informant
Shankar received a phone call from the same number, and
therefore, he gave his mobile handset to Praveen Ahuja, by
putting the same on speaker mode. Praveen Ahuja, told the
other person on call that he was S.P., speaking from Kotwali
Police Station and told the other person to tell his name. The
other person, instead of telling his name, said as " Tu Abhi
Arthi Ka Saman Tayar Rakho''. Due to such threat, they again
went to Kotwali Police Station, but the police personnel of the
said police station were in hurry. On making inquiry, they
came to know that there was firing in "Mohan Trunk Depot."
Knowing this, they immediately rushed to the shop of 'Mohan
Trunk Depot' where they found crowd in front of the shop. The
people from crowd told the informant Shankar that his brother
Jitendra received bullet injury and was taken to the Civil
Hospital. They immediately rushed to the Civil Hospital, but
..8.. CriAl-364-17 .odt
by that time Jitendra was already declared dead. It was also
learnt by the informant Shankar from the crowd that the
assailant was wearing white T-Shirt and ran towards
Laxminarayan Temple side. Since his brother Jitendra died
due to bullet injury on his left chest, he lodged report against
unknown person in respect of murder of his brother, due to
non payment of ransom amount of Rs. 30,00,000/-.
8. On the basis of aforesaid report, police registered
crime against unknown person initially and started
investigation. During the course of investigation, it was
revealed that appellant Pradeep was the person, who had
called the informant and his relative for ransom amount and
committed murder of deceased Jitendra at the time of the
incident. It was also revealed that there were illicit relations
between appellant Pradeep and appellant Divya, who was the
wife of the deceased. Further, it was revealed that the
appellant Pradeep had, in fact, hatched conspiracy with
appellant Divya for committing murder of her husband
Jitendra and for that he obtained country made pistol from
third accused Vikram Berad and executed the plan of
committing murder of Jitendra. After the death of Jitendra,
informant Shankar Bhatiya had also received a message on his
..9.. CriAl-364-17 .odt
mobile at about 14.44 hours, from mobile SIM No.
9561733069 as "Tu mara, Amardham ke vaha pe tuzhe
marunga." He had also received text message on his mobile at
20.30 hours on the same day from the aforesaid mobile
number as " Kyu re kutte Gali di thi na Ab Tere Bacche
Marenge, Uske Bad Teri Bibi aur Fir Tu."
9. On completion of the investigation, the investigating
machinery filed charge sheet against these two appellants and
the third accused for the offence punishable under Sections
302, 387, 507 read with 120-B of the Indian Penal Code and
under Section 5 read with Section 25 of the Arms Act. The
learned trial Court conducted the trial and on the basis of the
evidence adduced on record, convicted all three accused as
aforesaid.
10. Learned Advocate for the appellant Pradeep
submits that though the prosecution has examined so many
witnesses to establish the guilt of the accused, out of those
witnesses, 13 witnesses have not supported the case of the
prosecution. He further submits that the learned trial Court
has definitely erred in appreciating the evidence on record by
ignoring vital admissions given by the witnesses, in their
..10.. CriAl-364-17 .odt
cross-examination. He pointed out that the seizure of mobile
Handsets, either from the appellant Pradeep or from the
appellant Divya, is highly doubtful. He further pointed out
that though the Call Details Record (for short "CDR") of SIM
cards used by both the appellants were produced on record,
but such type of electronic evidence, without valid certificate
under Section 65-B of the Indian Evidence Act, is not
admissible at all. According to him, the investigating officers,
while collecting such certificates, failed to obtain the same in
proper format as per the provision. He also did not record any
hash value, he contended that all certificates under Section
65-B of the Indian Evidence Act were given as formality only,
without complying all clauses of Section 65-B. He pointed out
that no details of IP addresses of computers are given by any of
the Nodal Officers, from whom CDR and SDR of the mobile
Handsets allegedly recovered from the appellants were
obtained which creates doubt about the authenticity of the
said electronic evidence. According to him, last digits of mobile
Handsets of appellants are missing. Moreover, the SIM cards
seized from the appellant Pradeep were not in his name.
According to him, the CDR on record in respect of Mobile
Handsets of the appellants cannot be relied upon, for want of
..11.. CriAl-364-17 .odt
proper certificate under Section 65-B of the Indian Evidence
Act. Moreover, though it was alleged by the prosecution that
cousin of the deceased had recorded call between appellant
Pradeep and himself, only transcript of the same has been
produced on record. Further, the investigating machinery did
not make any effort to obtain any report from Forensic Science
Laboratory in respect of voice samples of the appellant
Pradeep. Further, according to him, the alleged messages sent
to the informant were also not brought on record in the form of
screen shots.
11. Learned Advocate for appellant Pradeep further
pointed out that the appellant Pradeep was arrested on 1 st May
and the pistol and cash amount were shown to be recovered on
the same day. However, all the panchnamas in respect of
recoveries are silent on the aspect of sealing the seized articles
with wax seals. He further pointed out that while recording
memorandum in respect of discovery of pistol at the instance
of the appellant Pradeep, Pradeep had not mentioned the exact
location of the pistol, where it was hidden by him. He further
submitted that description of the said house from which the
alleged recovery was made, has been stated differently in
panchnamas about recovery of pistol and recovery of cartridge.
..12.. CriAl-364-17 .odt
According to him, when appellant Pradeep was arrested on 1 st
May, then why his clothes and live bullet were seized on
6.5.2014. As such, he expressed doubt and contended that
the investigating machinery must have planted pistol and live
bullets conveniently and without sealing, only to match the
same with the bullet found in the body of the deceased. He
also raised doubt in respect of conduct of the alleged eye
witness P.W.12 Rakesh Kanhyalal Fuldahale, According to him,
if the said witness had already seen the appellant Pradeep on
the spot of incident, at the time of the incident, then why he
did not disclose the same to the police on the same day.
Further, though it had come in the evidence that sketch of the
appellant Pradeep was prepared, but it is not on record.
12. So far as motive is concerned, the learned counsel
appearing on behalf of appellant Pradeep submitted that there
are two theories on record about committing murder of
deceased Jitendra. First one is the demand of ransom and
second, the illicit relations between both these appellants.
However, both these theories are contrary to each other, and
therefore, the learned counsel appearing on behalf of appellant
Pradeep submitted that, prosecution has cooked up a false
story to implicate the present appellant No.1. Thus, he pointed
..13.. CriAl-364-17 .odt
out that the prosecution story has to be disbelieved for want of
proper sealing of seized articles, non disclosure of places from
where the incriminating articles were recovered, unnatural
conduct of alleged eye witness P.W.12- Rakesh Fuldhale and
non examination of another eye witness Sham Sundar.
According to him, the prosecution has failed to prove that there
was sufficient light available on the spot of the incident, so
that the alleged eye witness was able to see the appellant
Pradeep at the time of the incident. Thus, he submitted that
prosecution did not examine any independent witness, and
therefore, whatever evidence is brought on record by the
prosecution, is not reliable and trustworthy for the reasons
mentioned above. Thus, he prayed for reversal of the
impugned judgment and for acquittal of appellant Pradeep. In
support of his submissions, he relied on the following
judgments :-
(i) Hon'ble Supreme Court in the case of Arjun
Panditrao Khotkar Vs. Kailas
KushanraoGorantyal and others [in Civil
Appeal Nos. 20825-20826 of 2017 decided on
14th July 2020];
(ii) Principal seat of Bombay High Court in the
case of The State of Maharashtra Vs. Imtiyaz
Ahmad S/o Mohd. Sadik Ali Shaikh
[ Confirmation Case No. 3 of 2018 with
..14.. CriAl-364-17 .odt
Criminal Application No. 1 /2019 dated
14.08.2019];
(iii) Principal Seat of this Court in the case of The
State of Maharashtra Vs. Ashok @ Suresh
Laxman Babr [in Criminal Appeal No. 355 of
99];
(iv) Hon'ble Apex Court in the case of Shivaji
Dayanu Patil Vs. State of Maharashtra
[Criminal Appeal No. 75 of 1979];
(v) The Hon'ble Apex Court in the case of Rajesh &
Another Vs. The State of Madhya Pradesh
[Criminal Appeal No(s).793-794 of 2022];
(vi) Judgment of this Bench in the case of Parag
Machindra Pathare and Another Vs. State of
Maharashtra and another [Criminal Appeal No.
370 of 2018 decided on 5th August 2024];
(vii) The Hon'ble Apex Court in the case of Jagir
Singh Vs. The State (Delhi) MANU/SC/0145/
1974;
(viii) This Bench in the case of Ganesh @ Baban S/o
Navnath Lashkare Vs. The State of
Maharashtra and another in [Criminal
Appeal 155/2017dated 16.02.2024];
(ix) Hon'ble Apex Court in the case of Ganesh
Bhavan Patel and Others Vs. State of
Maharashtra, MANU/SC/0083/1978;
(x) Hon'ble Apex Court in the case of Balaka Singh
and Others Vs. The State of Punjab
MANU/SC/0087/1975;
(xi) Bala Pandurang Kesarkar and another Vs. The
State of Maharashtra [1999 Bom CR(Cri) 884];
..15.. CriAl-364-17 .odt
(xii) High Court of this Bench in the case of The
State of Maharashtra Vs. Girish Gangaram
Kotewad Confirmation Case No.1 of 2024
dated 07th October 2024;
13. On the other hand, the learned counsel for the
appellant Divya, relying on written notes of argument, also
submits that the learned trial Court has not appreciated the
evidence on record in proper perspective and sentenced her
without there being any cogent evidence on record. According
to him, there is absolutely no evidence in respect of her
alleged illicit relations with appellant Pradeep, since none of
the witness has supported the story of the prosecution to that
extent. He pointed out that even no proper procedure was
followed in respect of seizure of SIM card from the appellant
Divya, which was used by her to communicate with appellant
Pradeep. Even P.W.5 Monashri, in whose name the said SIM
card was purchased, had stated that police had told her that
the said SIM card was given by appellant Pradeep to appellant
Divya. Thus, he pointed out that the prosecution could not
establish any conspiracy between these appellants about
committing murder of Jitendra. He further submits that the
recovery at the instance of appellant Divya was made on the
basis of the disclosure made by her in the memorandum, but
..16.. CriAl-364-17 .odt
she was not at all conversant with Marathi language and her
disclosure statement, which is in Marathi, was not explained to
her in Hindi language, with which she was conversant. He
pointed out that the confessional statement of appellant Divya,
recorded by police was, in fact, recorded by Special Executive
Magistrate and the same is not at all admissible. According to
him, Judicial Magistrate F.C. or Metropolitan Magistrate can
have power to record such confessional statement under
Section 164 of the Code of Criminal Procedure. Thus, he
requested to discard the said confessional statement of
appellant Divya. In the alternative, he pointed out that even
the said statement of appellant Divya is read as it is, then also
no evidence is there to indicate any conspiracy between these
appellants about the alleged crime. He, thus, submitted that
there is absolutely no evidence against appellant Divya about
her involvement in the crime. On the contrary, though the
prosecution alleged that appellant Divya had, in fact, given
certain amount with which appellant Pradeep had purchased
pistol used as weapon in the crime, but it has also come on
record that when certain recovery was made at the instance of
the appellant Pradeep, he was found possessing the pistol as
well as amount of Rs. 10,000/-. Thus, according to him, it
..17.. CriAl-364-17 .odt
clearly gives an impression that the amount of Rs. 10,000/-
remained as it is with appellant Pradeep and therefore, the
case of the prosecution, to the extent of involvement of
appellant Divya or alleged conspiracy by her, is falsified.
According to him, there is no direct evidence about the
involvement of appellant Divya in the crime, but trial Court,
merely convicted her on the basis of fact that she was talking
to appellant Pradeep continuously on the mobile phone. Thus,
he prayed for setting aside the impugned judgment in respect
of appellant Divya and prayed for her clear-cut acquittal. In
support of his submissions, he placed reliance on the following
judgments :-
(i) Sujit Biswas Vs. State of Asam, [(2013) 12
Supreme Court Cases 406];
(ii) Parveen @ Sonu Vs. State of Haryana [2021 SCC
OnLine 1184];
(iii) Laxman Prasad @ Laxman Vs. State of Madhya
Pradesh, [(2023) 6 Supreme Court cases 399];
(iv) State of Punjab Vs. Kewal Krishan, [(2023) 13
Supreme Court Cases 595];
(v) Rajbir Singh Vs. State of Punjab [(2022) 20
Supreme Court Cases 670];
(vi) Majenderan Langeswaran Vs. State, (NCT of
Delhi) And Another (2013) 7 Supreme Court
Cases 192];
..18.. CriAl-364-17 .odt
(vii) Bijender @ Mandar Vs. State of Haryana, [ (2022)
1 Supreme Court Cases, 92];
(viii) Subramanya Vs. State of Karnataka, [(2023) 11
Supreme Court Cases 255]
(ix) Mano Vs. State of Tamil Nadu, [(2007) 13
Supreme Court Cases 795];
(x) Vaibhav Vs. State of Maharashtra, [2025 SCC
Online, 1304];
(xi) P. Sugathan And Another Vs. State of Kerala
(2000) 8 Supreme Court Cases 203;
(xii) Ram Sharan Chaturvedi Vs. The State of
Madhya Pradesh in Criminal Appeal No.1066 of
2010 decided on 25.8.2022 (SC);
14. On the contrary, the learned A.P.P. strongly
supported the impugned judgment and pointed out that the
prosecution has established all the incriminating
circumstances against all the accused by properly appreciating
the evidence on record, which resulted into their conviction.
According to him, the certificates issued under Section 65-B of
the Indian Evidence Act in respect of C.D.R. showing
conversation between appellant Pradeep and the informant
and also PW 15 Jamnadas Bhatiya, are in proper format.
Moreover, the prosecution has also properly established the
C.D.R. in respect of conversation between both these
..19.. CriAl-364-17 .odt
appellants, who hatched conspiracy of committing murder of
deceased Jitendra. According to him, though the witnesses,
who are the family members of the deceased, tried to conceal
the fact of illicit relations between these appellants, but the
respective portions from their statements, from which they
resiled during their evidence, are proved by the investigating
officer, who had recorded the same. He further pointed out
that the C.A. reports in respect of a bullet found in the body of
deceased and two bullets recovered during the course of the
investigation, at the instance of appellant Pradeep, have
established the fact that the fatal bullet was, in fact, fired by
appellant Pradeep with the same pistol. He further pointed out
that even though the scientific evidence is kept aside for a
while, there is one witness i.e. P.W. 12 Rakesh Kanhyalal
Fuldahale, who had seen the accused on the spot of the
incident just before the incident and immediately after the
incident with the murder weapon i.e. pistol. He pointed out
that there is no specific defence raised by both the appellants
in respect of their alleged innocence, and therefore, considering
the entire evidence on record, the conviction of both these
appellants recorded by the learned trial Court has to be
upheld. Thus, he prayed for dismissal of both these appeals.
..20.. CriAl-364-17 .odt
In support of his submissions, learned A.P.P. placed reliance
on following judgments :-
(i) Judgment of this Bench in the case of
Rajendra S/o Babaji Bhor and others Vs.
The State of Maharashtra, Criminal Appeal
No. 140, 141, 183, 189, 197 of 2017 and 301,
302, 621 of 2021 dated 17.03.2020;
(ii) Ramanand Alias Nandlal Bharti Vs. The State
of Uttar Pradesh, (2023) 16 SCC 510
15. Heard rival submissions. Perused written notes of
argument submitted on behalf of the appellant Divya in the
light of citations relied by either of the parties. Also perused
the impugned judgment along with record and proceedings of
the sessions case.
16. It is significant to note that the prosecution has
adduced voluminous evidence on record and examined as
many as 41 witnesses. The case of prosecution is based on
the theory of extortion under which it is alleged that the
appellant Pradeep i.e. accused No.1 had demanded ransom
from the members of Bhatiya family, by making them phone
calls from his Mobile Handset and also by sending messages to
that effect. However, the prosecution has also included another
..21.. CriAl-364-17 .odt
angle to the story, which is in respect of love affair between
both these appellants. According to the prosecution, appellant
Pradeep got acquainted with appellant Divya on account of
preparation of her Adhar Card, since he was working in the
Center for preparation of Adhar Card. Due to said
acquaintance and as deceased Jitendra i.e. husband of Divya
was not treating her properly, her acquaintance with appellant
Pradeep converted into their love affair and therefore, to
remove obstacle from their love story, they hatched conspiracy
to commit murder of Jitendra.
17. The prosecution has examined many witnesses i.e.
in all 41 witnesses, and therefore, reproducing the evidence of
witnesses and to consider it on merits would be repetition of
facts. Therefore, we would like to discuss the evidence of
prosecution witnesses at proper places, wherever it is material.
18. Admittedly, there is no eye witness in the instant
case and the entire evidence against both the appellants is in
the nature of circumstantial evidence. The learned counsel for
both the appellants i.e. Pradeep as well as Divya, have relied
on so many judgments. Out of those judgments, most of the
judgments are on the aspect, how to deal with circumstantial
..22.. CriAl-364-17 .odt
evidence to ascertain guilt of the accused. The sum and
substance of those judgments is that, to establish the guilt of
accused in a case based on circumstantial evidence, the
prosecution has to establish the chain of each and every
circumstance pointing out to the criminal act performed by the
accused and there should be no other possibility for the
conclusion that the criminal act is done by no other persons
than the accused. There should not be any other hypothesis
except that the accused is guilty. So far as the aforesaid sum
and substance of the judgments is concerned, there cannot be
any second opinion and it is now well settled. Therefore, we
must consider the circumstances against both the accused
leading to their guilt or innocence, in the light of the evidence
on record.
19. So far as the appellant - Pradeep is concerned, the
prosecution has claimed that following are circumstances
against him, apparent from the material collected :-
(i) That, he was found in possession of Sim Cards from
which calls & messages for ransom amount were made
to deceased and other members of Bhatiya Family.
ii) Just before the incident and immediately after the
incident, he was seen with the pistol by P.W.12 Rakesh.
..23.. CriAl-364-17 .odt
iii) The pistol and live bullets were recovered at his instance
during the investigation.
iv) Further, he was found talking contentiously with
appellant Divya on the Mobile Sim Card, which he
obtained in the name of one of his friends, Monashri i.e.
P.W. No.5.
20. Similarly, to rope the appellant Divya in this crime
along with the appellant Pradeep, the prosecution relied on the
following circumstances :-
i) That, she was acquainted with the appellant Pradeep
and the said acquaintance turned into love relations as
her husband i.e. the deceased was ill-treating her.
(ii) That, she was found talking with appellant Pradeep on
the SIM Card given to her by him, which was obtained in
the name of his friend P.W. No.5 Monakshi.
(iii) That, she had given amount of Rs. 10,000/- to appellant
Pradeep.
21. So far as defence of both these appellants in respect
of the accusation made against them is concerned, appellant
Pradeep has taken a defence that he was not at all concerned
with the criminal act alleged, but he was falsely implicated in
..24.. CriAl-364-17 .odt
the crime. Whereas, appellant Divya took a stand that she
was not knowing Marathi language and never gave any
statement before the Magistrate or police and she was not at all
concerned with the crime. According to her, her in-laws had,
in fact, implicated her falsely in the present case only to
deprive her from getting property of her husband i.e. the
deceased. Therefore, in the light of aforesaid circumstances
and the defence raised by both the appellants, let us consider
the evidence on record.
22. Admittedly, death of Jitendra is homicidal and from
the post mortem notes it has come on record that death was
caused due to bullet shot on the left side of his chest. The
question, therefore, arises as to whether appellant Pradeep had
fired the said bullet. As per the first theory of the prosecution,
the appellant Pradeep committed murder of Jitendra for non
payment of ransom amount of Rs. 30,00,000/-. It has already
come on record that all the members of Bhatiya family were
well settled in their respective businesses, having sound
financial background. Therefore, evidence of family members
in respect of ransom calls to them by the appellant Pradeep is
to be scrutinized. P.W. No.4 Shankar Mohanlal Bhatiya of
whom the deceased was younger brother, has deposed as to
..25.. CriAl-364-17 .odt
how deceased was running shop by name 'Mohan Trunk Depot'
at Ganj-bazar, Ahmedngar along with uncle Dharamadas
Bhaitya. He has specifically deposed that on 26.04.2014 at
8.00 p.m. he received one call on his Mobile Handset bearing
Sim No. 9822048029 from SIM Card No. 9881010595.
According to him, he cut the said call as there was no proper
sound. According to him, the second call came on his aforesaid
mobile number on the same day at 8.20 p.m. and the other
person, by threatening him, demanded amount of Rs.
30,00,000/-. He had disclosed the said fact to his wife at
about 9.30 p.m., but initially he did not take any action, as he
thought somebody might be joking with him. However, on the
next day on 27.04.2014, at about 2.30 p.m. he received one
message on his Handset from Mobile SIM Card No.
9561733069 in English for keeping ready the amount of Rs.
30,00,000/- and it was also written that sender would call at
8.00 p.m. in the night and asked to receive the call. It has
further come in his evidence that when P.W. No.4 Shankar
immediately called Jamnadas i.e. P.W. No.15, he was adviced
to lodge report to Kotwali Police Station about the said
message. He also went to the shop of Jitendra i.e. 'Mohan
Trunk Depot' where uncle Dharamdas and Jitendra were
..26.. CriAl-364-17 .odt
present. When he spoke to them about phone call and message
received by him, the deceased Jitendra had told him about
receiving one missed call from the Sim Card No. 9881010595
on earlier night & when he tried to call on said mobile number,
it was found switched off.
23. To support the aforesaid evidence of P.W.4 Shankar,
P.W.16 Dinesh Jamnadas Bhatiya has also stated that on
26.04.2014 when he was present in the shop at M.G.Road, he
had also received call from the same aforesaid mobile number
and the person calling told him in Hindi language to pay
amount of Rs. 10,00,000/-, otherwise Shankar Bhatiya would
be killed. P.W.15 Jamnadas has also supported this theory
and as per his evidence, when he was in his shop, namely,
Jyoti Cosmetic at Mochi lane, Ahmednagar on 26.04.2014, he
received phone call from P.W.4 Shankar in between 8 to 8.30
p.m. informing that Shankar had received threat and despite
visit to the police station, police did not take down his report
and thereafter at 8.45 p.m. Jamnadas had also received call
from the aforesaid Mobile Sim No. 9881010595 and the person
calling abused him and told him to ask Jitendra for paying
amount of Rs. 25,00,000/-, otherwise Jitendra would be
killed. Thus, from the evidence of all these witnesses, namely,
..27.. CriAl-364-17 .odt
P.W.4, 15 and 16, it has been revealed that all of them received
threatening calls from Sim Card No. 9881010595 and also a
message from Mobile SIM No. 9561733069. Further, it is to be
noted that during the cross-examination of all these witnesses,
it is not denied by both the appellants that those witnesses
received the aforesaid phone calls and messages. Thus, from
the evidence of these witnesses, it is also established that even
the deceased Jitendra had, in fact received threatening call
from Mobile SIM No. 9881010595.
24. It has also come in the evidence of P.W. 4 Shankar
Bhatiya that initially when he had gone to Kotwali Police
Station for making complaint about such ransom calls, the
police did not take down his complaint and the concerned
police officer PI- Shri. Ahire had asked him to come around
8.00 p.m. since the caller had told him that he would call
around 8.00 p.m. Even before the said P.I. Ahire at about 8.20
p.m, P.W. 4 Shankar received call on his mobile from the
aforesaid mobile number. The caller had asked him to keep
the ransom amount of Rs. 30,00,000/- ready. Thereafter, the
informant Shankar had gone to Praveen Ahuja where P.W. 15
Jamnadas had also come. Shankar again received phone call
..28.. CriAl-364-17 .odt
from the same number and when Praveen Ahuja pretended
himself as S.P. from Kotwali Police Station, the other person
threatened him to arrange for articles required for funeral.
Therefore, when all of them again went to Kotwali Police
Station, they learnt that there was firing in 'Mohan Trunk
Depot' and when they rushed there, they learnt from the crowd
gathered over there that Jitendra was shot and was taken to
the Civil Hospital. Thus, from the evidence of all these
witnesses, it appears that Jitendra was killed due to non
payment of ransom amount of Rs. 30,00,000/-.
25. The task before the investigating machinery was to
trace out the user of the aforesaid Mobile SIM Cards No
9881010595 and 9561733069. For this purpose, the
prosecution has relied on the evidence of P.W.41 Shri. Ashok
Mahadevrao Dhekne, P.I. of Local Crime Branch, Ahmednagar.
According to this witness, he was serving as P.I. at the said
Local Crime Branch till July 2015 and having jurisdiction over
entire Ahmednagar district. According to him, he received
information that one Shappu Kokate i.e. appellant Pradeep was
preparing Adhar Cards, and therefore, he was having identity
proofs of various persons with him. It was also revealed to him
..29.. CriAl-364-17 .odt
that appellant Pradeep used to purchase mobile sim cards in
the name of other persons by using their identity proofs. On
receipt of such information, he arrested appellant Pradeep on
01.05.2014 and took his personal search in presence of two
panchas. It has come in the evidence of this witness that
during his personal search, appellant Pradeep was found in
possession of two mobile handsets. In one of them, there were
two sim cards Nos. 9881010595 and 9561733069. In another
handset also there were two sim cards having No 7276253354
and 8855871317.
26. The learned counsel for the appellant Pradeep
raised strong objection to place reliance on the evidence of
P.W.41 Shri. Dekhne. According to him, P.I. Dekhne was never
entrusted with the investigation of this crime, and therefore,
there was no reason for him to trace out the user of aforesaid
Mobile numbers. He also pointed out that the panchnama in
respect of personal search of appellant Pradeep is not at all
proved by the prosecution, on the basis of evidence of
independent witness. According to him, both the panchas of
said panchnama (Exhibit 307) have not supported the seizure
of these Mobile Handsets and SIM Cards. Admittedly, the
..30.. CriAl-364-17 .odt
panch witnesses, namely, Vishal Pardeshi and Vilas Padale,
who are P.W. Nos. 6 and 7 respectively, have not supported the
theory of prosecution that the aforesaid Mobile Handsets and
SIM Cards were seized from appellant Pradeep. However, they
have only recognized their signatures on the aforesaid
panchnama (Exhibit 307).
27. So far as capacity of P.W. 41 P.I. Shri. Dhekne is
concerned, it has come on record that he was Police Inspector
of Local Crime Branch, Ahmednagar at the relevant time and
served there till July 2014. It has specifically come on record
that he was having jurisdiction over entire Ahmednagar
District. Further, nothing is brought on record that a police
officer competent to exercise his jurisdiction over entire
Ahmednagar District was not empowered to carry out any type
of investigation in the instant crime, which was being
investigated by another police officer. The learned trial Judge
has specifically observed in the judgment that there were so
many instances that investigation of serious crime can be
conducted by the concerned police station as well as Local
Crime Branch, as per the orders of the State Government.
Thus, such simultaneous investigation is not prohibited by any
..31.. CriAl-364-17 .odt
law. It is also observed by the learned trial Judge that P.W. 41
P.I. Dhekne had not exceeded his jurisdiction with malafide
intention. Therefore, his act of arresting appellant Pradeep
and taking his personal search cannot be doubted, because
ultimately it helped in the detection of involvement of the
accused in the instant crime.
28. The learned counsel for the appellant Pradeep also
pointed out that such seizure of two Handsets and four SIM
Cards from appellant Pradeep, on the basis of evidence of only
P.W. 41 Ashok Dhekane, cannot be relied upon, since the
independent panch witnesses on the aforesaid panchnama
(Exhibit 307) have refused to support the case of the
prosecution to that effect. Admittedly, both these panchas
have not supported the said seizure, but it is significant to
note that the witness has his own reason for not supporting
the case of prosecution. It is to be noted that despite
searching cross examination, nothing adverse or any malafide
intention of P.W. 41- Ashok Dhekane has been brought on
record. Further, the learned A.P.P. has also relied on the
observation of Hon'ble Apex Court in the case of Ramanand @
Nandlal Bharati Vs. The State of Uttar Prdesh in Criminal
Appeal No. 6465 of 2022 decided on 13 th October, 2022.
..32.. CriAl-364-17 .odt
The Hon'ble Apex Court in this judgment has specifically
observed that even if the independent witnesses to the
discovery panchnama are not examined or no such witness
was present at the time of discovery or if no person had agreed
to affix his signature on the document, it is difficult to hold, as
a proposition of law, that the document so prepared by the
police officer must be treated as tainted and discovery evidence
was unreliable. Though this observation is in respect of
recovery panchnama, discovery panchnama contemplated
under Section 27 of the Indian Evidence Act, but the same
analogy can be made applicable to the personal search of
appellant Pradeep, which is not supported by the panch
witnesses, but proved by P.W. 41 P.I. Dhekne.
29. At the cost of repetition, we would like to state here
that there was no prohibition of law for simultaneous
investigation of the crime by the concerned police station and
the Local Crime Branch operating in the said area. Moreover,
the defence could not bring on record any malafide intention
on the part of P.W. 41 P.I. Dhekne, so as to falsely involve the
appellant Pradeep in the crime. Further, though panch
witnesses did not support the case of personal search of the
appellant Pradeep, but atleast they have admitted their
..33.. CriAl-364-17 .odt
signatures on the seizure panchnama (Exhibit 307). Of course,
there is evidence in respect of CDR and SDR in respect of the
conversation made by appellant Pradeep in respect of ransom
calls from some of the SIM Cards in the form of electronic
evidence. It can thus be inferred that the prosecution has
proved that appellant Pradeep was possessing the aforesaid
two Mobile Handsets having four SIM Cards of the above
mentioned numbers. The prosecution has also adduced
electronic evidence in the form of CDR and SDR in respect of
the SIM Cards found in possession of appellant Pradeep in his
personal search taken by P.W.41 P.I. Shri. Dhekane in
presence of panchas, as mentioned above. P.W.40 i.e. P.I.
Hanpude Patil, who had conducted partial investigation in the
instant case, was serving as P.I. at Kotwali Police Station at the
relevant period. He has stated that P.I. Dhekne of Local Crime
Branch, after arresting appellant Pradeep on 01.05.2014, had
in fact handed appellant Pradeep to him along with pistol, cash
of Rs. 10,000/-, two Mobile Handsets and four Sim Cards.
Further, it appears that P.W. 40 PI Hanpude Patil then issued
letters to Cyber Cell for collecting information of CDR and SDR
in respect of the Sim Cards seized from appellant Pradeep.
Those letters are marked as Exhibits 251 to 254.
..34.. CriAl-364-17 .odt
30. The prosecution has examined P.W. 34 Dattaram
Shantaram Angre i.e. the Nodal Officer of Idea Cellular
Company Limited, at Exhibit 193. It has come in his evidence
that he was serving as a Nodal Officer in the aforesaid
Company since 2006. He received E-mail from Additional
Superintendent of Police, Ahmednagar in respect of the instant
crime and accordingly CDR and SDR for Mobile No.
9881010595 were called for the period from 01.04.2013 to
27.04.2014. Similarly, CDR in respect of Mobile Nos.
9822048029 and 9822067396 were called for the period from
20.04.2014 to 30.04.2014, and CDR as well as SDR were
called in respect of Mobile No. 9822067396 for the period from
20.04.2014 to 30.04.2014. Further, call details and
subscribers details in respect of Mobile No. 9822033743 from
01.07.2013 to 30.04.2014 were also called. It has come in the
evidence of this witness that on 15.07.2014, he sent the
certified copies of aforesaid CDR and SDR in respect of Mobile
No. 9881010595 and the certificate under Section 65(B) of the
Indian Evidence Act was also sent by him to the office of
Additional S.P. Ahmednagar, which is at Exhibit 196.
..35.. CriAl-364-17 .odt
31. In the evidence of P.W.34 Dattaram Angre, it has
come on record that SIM Card having Mobile No. 9881010595
was in the name of Sham Gangaram Deogune, resident of 977,
Renukanagar, Bolhegaon, District Ahmednagar, and it was a
pre-paid number. Further, as per P.W. 34 Dattaram Angre i.e. a
Nodal Officer, SIM Card No. 9822048029 was issued in the
name of informant-Shankar Bhatiya on his address, and it was
also a pre-paid number. Further, Mobile No. 9822067396, was
found to be in the name of one Bapusaheb Deshmukh,
resident of P.No. 187, Sector No. 28, Nigdi, Pune, which was
also a pre-paid number. The said number was activated on 9th
August 2000 and during the period from 20.04.2014 to
30.04.2014 it was active. Similarly, Mobile No. 9822033743
was issued in the name of appellant Divya Bhatiya, which was
activated on 4th August 2011 and remained active during the
relevant period. P.W. 34-Angre further deposed that he took
print out and sent the e-mail, to the Additional S.P.
Ahmednagar and issued certificate under Section 65(B) of the
Indian Evidence Act, under covering letter dated 15.07.2014.
Though an objection was raised before the learned trial Judge
on behalf of appellant- Pradeep that the certificate under
Section 65(B) was belatedly sent, but it has now been settled
..36.. CriAl-364-17 .odt
that the certificate in respect of electronic evidence can be sent
lateron also. Therefore, we would like to skip the discussion on
this aspect.
32. The learned counsel for the appellant- Pradeep
raised objection that the electronic evidence in the form of
CDR and SDR connecting the appellant- Pradeep with the
ransom threats given to informant and other members of
Bhatiya family, is not admissible for want of necessary
particulars in the certificates produced on record, by the Nodal
Officer i.e. P.W. 34- Angre to that effect. According to him,
such certificate under Section 65(B) of the Indian Evidence Act
requires all the particulars, not only in Section 65(B)(1) and
(2), but it also need the particulars as per Section 65(B)(4) of
the Act. Unless, those requirements are fulfilled, the certificate
and the electronic evidence is of no use. For that purpose, the
learned counsel for the appellant Pradeep heavily relied on the
judgment of Hon'ble Apex Court in the case of Arjun Khotkar
Vs. Kailas Gorantyal and others (supra). The Hon'ble Apex
Court in paragraph No. 23 of the aforesaid judgment has made
the following observations;
..37.. CriAl-364-17 .odt
"23 Under Sub-section (4), a certificate is to be
produced that identifies the electronic record
containing the statement and describes the manner in
which it is produced,or gives particulars of the device
involved in the production of the electronic record to
show that the electronic record was produced by a
computer, by either a person occupying a responsible
official position in relation to the operation of the
relevant device; or a person who is in the management
of " relevant activities"- whichever is appropriate.
What is also of importance is that it shall be sufficient
for such matter to be stated to the "best of the
knowledge and belief of the person stating it". Here, "
doing any of the following things...." must be read as
doing all of the following things, it being well settled
that ht expression "any" can mean "all'' given the
context (see, for example, this Court's judgment in
Bansilal Agarwalla Vs. State of Bihar [(1962) 1
SCR 33] and Om Prakash V. Union of India [(2010)
4 SCC 17)]. This being the case, the conditions
mentioned in sub-section (4) must also be interpreted
as being cumulative".
33. This judgment also refers the earlier judgment of
Hon'ble Apex Court in the case of Anwar wherein, following
observations are made.
"14. Any documentary evidence by way of an
electronic record under the Evidence Act, in view of
Sections 59 and 65-A, can be proved only in
accordance with the procedure prescribed under
Section 65-B. Section 65-B deals with the
admissibility of the electronic record. The purpose of
these provisions is to sanctify secondary evidence in
electronic form, generated by a computer. It may be
noted that the section starts with a non obstante
..38.. CriAl-364-17 .odt
clause. Thus, notwithstanding anything contained in
the Evidence Act, any information contained in an
electronic record which is printed on paper, stored,
recorded or copied in optical or magnetic media
produced by a computer shall be deemed to be a
document only if the computer shall be deemed to be
a document only if the conditions mentioned under
sub-section (2) are satisfied without further proof or
production of the original. They very admissibility of
such a document i.e. electronic record which is
called as computer output, depends on the
satisfaction of the four conditions under Section
65-B(2). Following are the specified conditions
under Section 65-B(2) 6 of the Evidence Act.
(i) The electronic record containing the
information should have been produced by
the computer during the period over which
the same was regularly used to store or
process information for the purpose of any
activity regularly carried on over that period
by the person having lawful control over the
use of that computer;
(ii) The information of the kind contained in
electronic record or of the kind from which
the information is derived was regularly fed
into the computer in the ordinary course of
the said activity;
(iii) During the material part of the said period,
the computer was operating properly and
that even if it was not operating properly for
some time, the break or breaks had not
affected either the record or the accuracy of
its contents; and
..39.. CriAl-364-17 .odt
(iv) The information contained in the record
should be a reproduction or derivation from
the information fed into the computer in the
ordinary course of the said activity.
15. Under Section 65-B(4) of the Evidence Act, if it
is desired to give a statement in any proceedings
pertaining to an electronic record, it is permissible
provided the following conditions are satisfied.
(a) There must be a certificate which identifies the
electronic record containing the statement;
(b) The certificate must describe the manner in
which the electronic record was produced;
(c) The certificate must furnish the particulars of
the device involved in the production of that
record;
(d) The certificate must deal with the applicable
conditions mentioned under Section 65-B(2) of
the Evidence Act; and
(e) The certificate must be signed by a person
occupying a responsible official position in
relation to the operation of the relevant device."
34. Thus, the learned counsel for the appellant-
Pradeep submits that, unless all the conditions of Section
65(B)(4) of the Act are satisfied, the electronic evidence
produced in this case is not permissible. According to him,
only the condition (A) and (E) of Section 65(B)(4) of the Act are
satisfied in the instant matter.
..40.. CriAl-364-17 .odt
35. As against this, the learned A.P.P. placed heavy
reliance on the observation of this Court in the judgment in
Rajendra S/o Babaji Bhor Vs. The State of Maharashtra
[Criminal Appeal No. 140 of 2017]. This Court under the
judgment and order dated 17.03.2020 in the aforesaid case
has observed as follows :-
"110. The learned APP placed reliance on the case
of State of Karnataka Lokayukta Police
Station, Bangaluru Vs. M.R. Hiremath
reported as AIR 2019 SC 2377. This case is in
respect of compliance of provision of Section 65-B
of the Evidence Act. The relevant observations are
at para 16 are as under :-
"16. Having regard to the above
principle of law, the High Court erred
in coming to the conclusion that the
failure to produce a certificate under
section 65B(4) of the Evidence Act at
the stage when the charge-sheet was
filed was fatal to the prosecution. The
need for production of such a
certificate would arise when the
electronic record is sought to be
produced in evidence at the trial. It is
at that stage that the necessity of the
production of the certificate would
arise."
..41.. CriAl-364-17 .odt
There is no dispute over the aforesaid
observation. This Court has also considered the
circumstances that one nodal officer produced the
requisite certificate during the evidence and his
evidence is to the effect that the copies of C.D.R
already tendered on record are in accordance with
the information stored in the system. He has
given evidence that, he has control over the
system. His evidence is considered and believed
by the Trial Court and this Court also sees no
reason to disbelieve this witness and consider the
certificate which was produced subsequently
under Section 65-B of the Evidence Act ".
36. Thus, in the light of these observations we have to
see as to whether the electronic evidence adduced in the
instant matter, fulfills the criteria and requirements of Section
65(B) of the Indian Evidence Act.
37. Admittedly, from the observations of the Hon'ble
Apex Court, it has been made clear that for relying on the
electronic evidence, compliance of Section 65(B) of the Indian
Evidence Act is required completely. The Hon'ble Supreme
Court has cautioned for such compliance in all respect, since
the electronic records are more susceptible to tampering,
alteration, transposition and exigent. Therefore, without such
safeguards as contemplated in Section 65(B) of the Act, it is
dangerous to rely on electronic records which can lead to
..42.. CriAl-364-17 .odt
perversity of justice. In the instant case, the record pertaining
to C.D.R and SDR is duly certified by P.W. 34 Dattatrya
Shantaram Angre. Nothing is there on record to show that
after such certification, some additional data was taken out
from the server without any certificate.Therefore, the certificate
under Section 65(B) of the Evidence Act in respect of CDR of
SIM Card No.9881010595, which is at Exhibit 96, if perused,
then it is evident that it runs in (a) to (e) clauses. Those
clauses appear to be as per Section 65(B) (2)(a) to (d) of the
Evidence Act. Further, as per Section 65(B)(4) of the Act, it is
required that the manner in which electronic record was
produced, must be described in respect of particulars of device
involved in production of record. Further, such certificate has
to be signed by the person occupying responsible official
position in relation to the operation of relevant device.
38. In the instant case, P.W. 34- Dattaram Angre has
specifically stated in his evidence that he has taken out the
computer print out directly from the main server of which he
was given access by issuing necessary Login I.D. and
password. It is significant to note that while obtaining CDR
and SDR, this witness did not copy the record from main
server to any other instruments such as C.D., V.C.D., or any
..43.. CriAl-364-17 .odt
chip. He has only reproduced the computer data of the
concerned company, stored in main server in regular course of
business. Therefore, considering his evidence and perusal of
certificate under Section 65(B) of the Act at Exhibit 96, it is
evident that the prosecution has followed all the preconditions
mentioned in Section 65(B) of the Act for getting the electronic
record. Further, this witness has also stated in the certificate
that he is a responsible officer in relation to the operation of
the computer of Idea Cellular Company and therefore, the
certificate at Exhibit 196 has satisfied all the conditions in the
entire Section 65(B) of the Evidence Act.
39. Similarly, certificate under Section 65(B) in respect
of Mobile No. 9822048029 and 9822067396 at Exhibit 200 is
also having similar contents as that of Exhibit 196. Moreover,
the Nodal Officer, who issued the certificates appears
responsible officer of Idea Cellular Company. Further, Section
65(B) certificate in respect of Mobile No. 9822033743 at
Exhibit 201 also fulfills the aforesaid conditions. Though,
Nodal Officer has given admission that all the requirements of
Section 65(B) of the Evidence Act are not mentioned in the
certificate issued by him, but nothing is there on record that
the learned counsel for the appellant Pradeep suggested as to
..44.. CriAl-364-17 .odt
what part of the section is missing. On bare perusal of the
said certificates and the evidence given by the concerned Nodal
officer, prima facie it appears that compliance of conditions
mentioned in Section 65(B) of the Act has been done and
therefore, no significance can be given to the aforesaid
admission of this witness. Further, this witness was also
suggested that task of maintenance of the server was assigned
to somebody else and he was not having lawful control over the
server used by him. However, it is to be noted that this
witness was the Nodal Officer and the requisite Login I.D and
password was shared to him. Thus, it can be said that he was
having lawful authority and control over the server used by
him. Thus, the admission on the part of this witness that he
could not tell whose lawful control was there, over server used
by him, is not helpful to the appellant Pradeep. Thus,
considering all these aspects, the certificates at Exhibits 196,
200 and 201 appear to be duly issued by the competent
authority and therefore, the electronic records pertaining to
CDR and SDR of all these SIM Cards seized from the custody
of appellant Pradeep, at the time of personal search on
01.05.2014, are very much admissible in the evidence without
further proof.
..45.. CriAl-364-17 .odt
40. As such, on the basis of this evidence it has been
established that SIM Card Nos. 9881010595 and 9822067396
were issued in the name of Sham Devgune and Bapusaheb
Deshmukh, but the same were in possession of the appellant
Pradeep. Further, it has also been established that Mobile No.
9822033743 was issued in the name of appellant Divya.
Further, Mobile No. 9822048029 was in the name of informant
Shankar Bhatiya. It is already established by the evidence of
investigating officers P.W. 40- P.I. Shri. Hanpude Patil and P.W.
41 P.I. Shri. Dhekane that appellant Pradeep was using all SIM
Cards obtained in the names of others. Therefore, it is in
corroboration with the evidence of P.W. 34- Dattaram
Shantaram Angre. The record shows that P.W. 35- Jitendra
Nagpal was the Nodal Officer of Airtel Company, Maharashtra
from April 2016. The erstwhile Nodal officer was one Mr.
Chetan Patil. However, he left the service after August 2016.
P.W. 35 Jitendra Nagpal had worked with Chetan Patil for
about three months and therefore, he was acquainted with the
signature of Chetan Patil. P.W. 35- Jitendra Nagpal in his
evidence has explained the procedure in respect of lawful
control over the server of the said company. According to him,
in normal course of operation, call related information gets
..46.. CriAl-364-17 .odt
automatically stored in servers of Airtel. Those servers were
having high security controls and no manual intervention. He
has established that as a Nodal Officer, he was having his own
user name and password to retrieve data in respect of the
aforesaid call related information. He specifically deposed that
as per request of Additional Superintendent of Police,
Ahmednagar made on 14.07.2014, they provided CDR of
Mobile No. 9561733069 for the period from 01.04.2013 to
27.04.2014 under the certificate of the then Nodal officer
Chetan Patil.
41. Further, customer details supported by customer
application form, singed by Chetan Patil, were also forwarded
along with the certificate under Section 65(B) of the Evidence
Act in respect of CDR. He has deposed that those C.D.R. were
directly taken out from the server which was installed in Pune
Office for which individual Login number and password were
provided to each Nodal Officers. As per this witness, the
aforesaid mobile number was subscribed to Sham Deogune
and it was activated on 21st December 2012. P.W. 35
Jitendra Nagpal has proved the fact that certificate under
Section 65(B) of the Evidence Act at Exhibit 201 is signed by
Chetan Patil, who had left the company. Though the
..47.. CriAl-364-17 .odt
prosecution has not examined Chetan Patil, but P.W. 35
Jitendra Nagpal has specifically deposed as to how the call
details were automatically stored in servers of Airtel Company
and it was having high security controls and no manual
intervention. Since this witness had worked with Chetan Patil
for about three months, he was also familiar with the
signature of Chetan Patil and therefore, it can be presumed
that the electronic record extracted from server of the company
by Mr. Chetan Patil was after obtaining lawful procedure,
fulfilling all the conditions of Section 65(B) of the Act. It is to
be noted that the appellant did not dispute the existence of the
certificate issued by Chetan Patil. Further, authority of
Chetan Patil as a Nodal Officer was also not denied, and
therefore, merely because Chetan Patil is not examined by the
prosecution, the certificate issued by him in respect of C.D.R
and S.D.R of 9561733069 cannot be said inadmissible in the
evidence. There is nothing on record that for obtaining the
aforesaid electronic evidence, Chetan Patil had, in fact, adopted
any other procedure. Therefore, the evidence of P.W. 35-
Jitendra Nagpal appears reliable in respect of the aforesaid
C.D.R and S.D.R of Mobile No. 9561733069.
..48.. CriAl-364-17 .odt
42. The learned counsel for the appellant Pradeep has
also raised objection that SIM Cards from which ransom calls
and messages were made by appellant Pradeep, were in fact in
the name of some other persons, but they have stated that
they never purchased the cell or used the cell. For that
purpose, the prosecution has examined Somnath, i.e. son of
Sham Deogune. The learned counsel for the appellant Pradeep
also relied on the judgment Division Bench of this Court in
case of Ganesh Alias Baban Lashkare Vs. The State of
Maharashtra [Criminal Appeal No. 155 of 2017, decided
on 16.02.2024] wherein it is observed that "When the SIM
Card from which the kidnapper made first two calls, stood in the
name of someone else and there is nothing to indicate that the
said SIM Card was used by the accused, then prosecution has
to adduce evidence that it was the accused who had used it."
43. Thus, the learned counsel submitted that the case
of prosecution that appellant Pradeep was using those SIM
Cards which were purchased in the names of some other
persons is doubtful. However, we have already mentioned
earlier that as per the evidence of P.W. 40 P.I. Mr. Handpude
Patil and 41 P.I. Mr. Ashok Dhekane , who are the Investigating
..49.. CriAl-364-17 .odt
Officers, it has come on record that appellant Pradeep was
possessing those SIM Cards and also using the same.
Therefore, it can safely be inferred that the appellant Pradeep
must have made ransom calls and sent messages by using the
aforesaid SIM Cards. Therefore, considering the C.D.R. and
S.D.R. vide Exhibit 198, 203 and 209 along with certificates
under Section 65(B) of the Evidence Act at Exhibits 196, 200,
201, 208, 209 and 210, coupled with evidence of informant
Shankar and Nodal Officers P.W. 34 Tukaram Angre and P.W.
35 Jintendra Nagpal, it has been established that on
26.04.2014, at about 8.00 p.m., informant Shankar received
blank call form SIM Card No. 9881010595 and thereafter
received second call from same Mobile number at about 8.20
p.m. demanding ransom of Rs.30,00,000/-. Since the
appellant Pradeep was using the said mobile number at the
relevant time, it has established that he had, in fact,
demanded ransom of Rs.30,00,000/-.
44. Further, the evidence of P.W. No.4 Shankar Bhatiya
is corroborated by C.D.R. at Exh. 198 that on 26.04.2014, at
about 21:08 hours, there was call from same SIM Card on the
land-line number 0241 2417912. It has come in the evidence
..50.. CriAl-364-17 .odt
of P.W. No.31 Dattatray Markad i.e. Nodal Officer of B.S.N.L
that aforesaid land-line number was in the name of Mohanlal
Bhatiya and landline No. 2417913 was in the name of Shankar
Bhatiya. Further, it has been established that P.W. 4 Shankar
had also received a message on 29.04.2014, at about 14.44
hours, from Mobile No. 9561733069 used by appellant Pradeep
as "Tu Mara, Amardham ke vahi pe tuzhe Marunga.''. Further,
on 28.04.2014 also at about 8.30 i.e. on the date of funeral of
deceased Jitendra, he again received message on his mobile as
"Kyu re Kutte Gali Di Thi Na, Ab Tere Bacche Marenge, Uske Bad
Teri Bibi or Fir Tu." It has been confirmed that these messages
and calls on 28.04.2014 were received on the SIM Card of the
complainant i.e. 9822048029, by the evidence of Nodal Officer
and the C.D.R details Exhibit 203.
45. The learned trial Court, in the impugned judgment,
has discussed in detail, as to how the prosecution has
established the ransom calls made by appellant Pradeep to the
informant and his family members and the messages of threats
on the basis of CDR and the certificates issued by concerned
Nodal Officers under Section 65(B) of the Indian Evidence Act.
On going through the evidence on record to that effect, we are
also of the same opinion that prosecution has proved the fact
..51.. CriAl-364-17 .odt
that appellant Pradeep was using Mobile SIM Card No.
9881010595 and SIM Card No. 9561733069 for giving ransom
calls and sending messages of threats to P.W. Nos.4 informant
Shankar Bhatiya, P.W. 14- Dharamdas Bhatiya and P.W.15-
Jamnadas Bhatiya.
46. Besides the electronic evidence on record, the
prosecution has also examined P.W. 12 Rakesh Fuldahale at
Exhibit 85, on the point of presence of accused Pradeep on the
spot of incident, at the time of incident. This witness resides
in Tapidas Lane, which is just adjacent to the shop of deceased
Jitendra. According to him, on 27.04.2014, it was Sunday and
his weekly off. He had been to market for purchasing ice cream
for his kids at about 8.45 p.m. He was returning home after
purchasing the ice cream. When he was near his house in
Tapidas Lane, he saw one young boy from the age group of 20
to 24 years, came from the side of shop of deceased i.e. 'Mohan
Trunk Depot', in the lane towards his house. This witness has
specifically stated that the said boy was holding pistol in his
hand. Further, the said boy stopped near him and within four
to five seconds, turned back and went towards the shop i.e.
'Mohan Trunk Depot'. Thereafter, within four to five seconds he
..52.. CriAl-364-17 .odt
heard noise of firing from the said shop and within four to five
seconds immediately the said boy again came to place, where
he was standing and thereafter walked towards Dane dabara
through Tapidas Lane. Further, this witness has stated that
public gathered in front of 'Mohan Trunk Depot' and he
immediately told the crowd that one boy armed with the pistol
just went towards Dane-dabara through Tapidas lane.
According to this witness, he and others went towards Dane
dabara in auto rickshaw in search of the said boy, but the said
boy could not be found. When he returned back to the shop of
deceased, he saw Jitendra Bhaitya in injured condition due to
firing and thereafter public took him to the Civil Hospital. This
witness has stated that the boy, who fired bullet, had worn half
white shirt and pant of faint blue colour and having height of
around 5 fit with wheatish-black complexion and small hair.
This witness has also stated that the said boy was wearing
sport shoes.
47. From the evidence of P.W. 12 Rakesh Puldhale, it
can very well be gathered that the said boy must have fired the
fatal bullet, which killed the deceased. Considering the time
gap stated by this witness of merely four to five seconds, when
he first saw the boy and thereafter the boy went to shop and
..53.. CriAl-364-17 .odt
then came back again, it is clearly evident that there was no
intervention of third person in firing bullet on the deceased. It
has been specifically stated by this witness that when the boy
went to the shop of deceased, within four to five seconds he
heard noise of firing and immediately witnessed the boy
coming in four to five seconds back to him. Therefore, it has to
be gathered that none other than the said boy must have fired
the fatal bullet.
48. It is to be noted that P.W.12 Rakesh Fuldhale was
having his house in the said Tapidas Lane and therefore, his
presence near the spot of the incident and witnessing the
presence of the accused was most natural. Though the
objection was raised on behalf of the accused No.1 Pradeep
that this witness even, after noticing the accused, did not
disclose the said fact immediately to the police who had
immediately arrived on the spot of the incident. It is to be
noted that the said incident had occurred during the night
hours and Jitendra was taken immediately to hospital in the
said night. Thus, it can be understood that there was no
occasion for this witness to make immediate disclosure.
However, this witness had, in fact, disclosed the presence of
the accused to the police immediately on the next day.
..54.. CriAl-364-17 .odt
49. The learned counsel for the appellant Pradeep
objected for believing evidence of P.W. 12 Rakesh, since he had
stated that he and one Umesh Tiwari had seen the assailant at
the time of the incident, but Umesh Tiwari was not examined
by the prosecution. Though this witness stated that he along
with Umesh Tiwari chased the assailant to Tapidas Lane, but
merely on the point that Umesh Tiwari was not examined, the
evidence of this witness which appears trustworthy cannot be
thrown away entirely.
50. Further, it is important to note that P.W. 12-
Rakesh Fuldahale has also identified appellant Pradeep during
the test identification parade. The learned counsel for the
appellant- Pradeep also raises suspicion in respect of the
manner in which the test identification parade was held.
According to him, it was held after one month and two days
from the date of incident and during the said period, the police
must have shown accused- Pradeep and his photographs to
this witness before the identification parade. However, these
suggestions given to this witness in his cross-examination are
totally denied by him. He has specifically stated about the
procedure adopted by the Special Judicial Magistrate Bhaskar
Bhikaji Bhos (P.W.30) while conducting the said parade and as
..55.. CriAl-364-17 .odt
to how he identified accused- Pradeep. Nothing adverse to the
prosecution has been brought on record during the cross-
examination of this witness in respect of the manner in which
the test identification parade was conducted. The testimony of
this witness to that effect remained un-shattered.
51. The evidence of P.W.12- Rakesh Fuldahle, in
respect of test identification parade is also corroborated by
evidence of P.W. 30 Bhaskar Bhikaji Bhos, who was working as
Special Judicial Magistrate at the relevant time. As per the
evidence of this witness, he received letter from Kotwali Police
Station on 17.05.2014 and also from Local Crime Branch,
Ahmednagar whereby he was requested to arrange for test
identification parade for accused- Pradeep. Accordingly, the
identification parade was held on 29.05.2014. His evidence
further indicates that the jail authority handed over accused-
Pradeep to him for identification parade and thereafter
introducing himself to the accused, necessary formalities were
performed. Moreover, two panchas and one witness were
asked to remain present outside the room, where the separate
arrangement was made for sitting of the accused Pradeep.
Thereafter, this witness has deposed about the manner in
which the test identification parade was conducted. This
..56.. CriAl-364-17 .odt
witness has also deposed as to how six dummy persons similar
to accused No.1 i.e. the appellant- Pradeep, were called in the
passage and accused Pradeep was given liberty to stand at any
place in the row. Moreover, this witness has specifically stated
as to how P.W. 12- Rakesh Fuldahale identified accused
Pradeep by pointing him. He has also deposed as to how the
report of the identification was reduced into writing in
presence of panchas by mentioning necessary particulars of
each and every stage. He also proved the contents of said
report (Exhibit 168).
52. Though the learned counsel for the appellant-
Pradeep raised objection that due to holding such
identification parade belatedly i.e. after about one month,
there is dilution of evidentiary value of identification parade,
however, it has come on record that P.W. 12 Rakesh Fuldhale
had seen the accused- Pradeep on the spot of incident at the
time of the incident and at that time only he had given full
description of accused- Pradeep by mentioning necessary
particulars i.e. his age, complexion, clothes, etc. Further, his
statement was also recorded immediately on the next day of
the incident and on the basis of his information, the
investigating machinery had also prepared rough sketch of the
..57.. CriAl-364-17 .odt
appellant. Though there is no evidence as to what happened
to the said rough sketch, but it is to be noted that P.W 12 had
ample opportunity to watch the accused- Pradeep from very
close distance. Therefore, though the said rough sketch does
not find place on record, but the identification of accused-
Pradeep, at the hands of P.W.12- Rakesh Fuldahale cannot be
disbelieved, merely on the ground that the test identification
parade was conducted after about one month of the incident.
As such, the evidence of P.W. No.12- Rakesh Fuldahale in
respect of identification of the accused- Pradeep can safely be
relied upon. The learned counsel for the appellant Pradeep
pointed out that the description in respect of clothes of
accused Pradeep given by the P.W. 12 Rakesh differs from the
actual clothes. Admittedly, Article 16 before the trial Court is
white colour half shirt with round neck color and P.W.12-
Rakesh Fuldahale has stated that Pradeep was wearing white
coloured round neck T-Shirt. As such, the confusion is only in
respect of the shirt worn by the appellant Pradeep, whether it
was T-shirt or Shirt. Possibility cannot be ruled out that
P.W.12- Rakesh Fuldahale might have mistakenly stated so
that accused was wearing half sleeve T-Shirt due to round
neck color of the shirt of Pradeep. Therefore, this ambiguity
..58.. CriAl-364-17 .odt
cannot be said to be material since other descriptions of
appellant Pradeep in respect of his looks and other clothes are
correctly given by this witness. Therefore, merely on this
aspect, the evidence of P.W. 12- Rakesh Fuldahale cannot be
doubted.
53. Though the evidence of P.W. 30-Bhaksar Bhose has
been challenged by the learned counsel for the appellant on
the ground that test identification parade was held belatedly
and that there was every opportunity for P.W.12- Rakesh
Fuldahale to see him since appellant Pradeep was produced
before the Magistrate on 02.05.2014 and 07.05.2014.
However, merely delay in holding the test identification parade
cannot be said to be fatal to the case of the prosecution.
Moreover, P.W. 40 i.e. the investigating officer Hanpude-Patil
has not admitted in cross examination that appellant Pradeep
was produced before the Magistrate on 12.05.2014 without
covering his face. However, P.W.12 i.e. eye witness Rakesh has
also denied that he had seen the appellant Pradeep before test
identification parade. As such, the evidence in respect of
identification of the accused adduced by P.W.12 Rakesh
Fuldahale and P.W.30- Bhaskar Bhose cannot be doubted. The
learned trial Court has minutely scrutinized the evidence in
..59.. CriAl-364-17 .odt
respect of test identification parade, presence of panchas and
identification of appellant Pradeep at the hands of P.W. 12-
Rakesh Fuldahale and ultimately came to the conclusion that
the test identification parade was properly conducted by
P.W.30- Bhaskar Bhose and P.W. 12- Rakesh Fuldahale
without being influenced by outer machinery.
54. The learned counsel for the appellant Pradeep
vehemently argued that the present case is based on
circumstantial evidence and there is no direct evidence of any
witness, who had seen appellant Pradeep actually firing the
bullet. However, it has been established with trustworthy and
cogent evidence that appellant Pradeep had given phone calls
and messages to informant Shankar and his relatives before
and after the incident of killing Jitendra on 27.04.2014.
Further, the SIM Cards from which the ransom phone calls
and messages were made, were found in possession of the
appellant Pradeep. It is also established that appellant
Pradeep, by making phone calls and sending messages,
demanded different ransom amounts from family members of
deceased Jitendra Bhatiya. Appellant Pradeep was found
clever enough to vindicate the investigating machinery by
calling members of Bhatiya family from the SIM Cards in the
..60.. CriAl-364-17 .odt
name of other persons obtained by taking disadvantage of his
position as an employee engaged in preparation of Adhar Card
Department. It was obvious for him to collect the identification
proofs and residential proofs of other persons for purchasing
SIM Cards in their names since he was in possession of those
documentary proofs in course of his service.
55. The learned counsel for the appellant Pradeep also
tried to argue that since the incident had taken place around
8.30 p.m., there was no sufficient light on the spot of incident
which would have prevented P.W 12 to have close look of
accused Pradeep. For this purpose, he heavily relied on the
judgment of this Court in the case of Bala Pandurang
Kesarkar Vs. State of Maharashtra (supra). Admittedly in
the said judgment this Court has observed that " in cases
resting on identification evidence, the burden of proving that
there was light on the spot of incident, always rests on the
prosecution and it never shifts from it and it is only when the
prosecution has discharged the said burden, then the said
burden shifts on defence". Admittedly, in criminal cases, the
entire burden to prove the guilt of accused along with the
circumstances pointing to guilt of the accused is upon the
prosecution. The learned counsel for the appellant Pradeep
..61.. CriAl-364-17 .odt
has thus submitted that the prosecution did not bring on
record any reliable evidence, that at the time of incident there
was sufficient light on the spot. However, on going through the
map in the spot panchnama Exh. 39, it is clearly evident that
the place of incident i.e. 'Mohan Trunk Depot' was surrounded
by other shops and residential houses. Even there are shops
in Tapidas lane as reflected in the map of the spot of incident
in spot panchnama. Therefore, considering these facts, coupled
with the evidence of P.W 12, it cannot be said that there was
no source of light on the spot which could have prevented PW
12 from having close look of the appellant Pradeep. As such,
the submission of learned counsel for the appellant Pradeep, to
that effect, needs to be discarded.
56. The prosecution has claimed that after the incident
of firing PW 40 Investigating Officer Hanpude-Patil had gone to
the spot of incident. As per his evidence, he collected blood
sample on the spot with the help of cotton swab and also
recovered one empty cartridge. The seizure panchnama to that
effect was made in presence of pancha P.W. 2 Daulat Kukreja,
who is one of the panchas of the spot panchnama. The
evidence of P.W. 40-Hanpude-Patil is also supported by this
panch Daulat Kukreja. As per the evidence of Daulat Kukreja,
..62.. CriAl-364-17 .odt
informant Shankar showed the spot of incident and the
deceased was lying inside the counter of shop. One empty
cartridge of fired bullet was also there and the blood stains
along with the said cartridge were seized in his presence.
Apparently, the evidence of P.W 40- P.I. Mr. Hanpude Patil and
P.W. 2- Daulat Kukreja on the aspect of drawing panchnama of
the spot and seizure of empty cartridge cannot be treated as
doubtful. There are minor contradictions in respect of the
place of empty cartridge, since according to P.W. 2- Daulat
Kukreja the said cartridge was lying on the floor inside the
counter and that panchnama Exh. 39 indicated that empty
cartridge was found in front of steps of the shop. However,
what is important to be noted is the existence of cartridge on
the spot of incident. As such, the aforesaid contradiction can
be ignored. Further, the learned counsel for the appellant
Pradeep also doubted the evidence of P.W. 2- Daulat Kukreja
on the ground that he was close relative of informant Shankar.
However, merely because he is close relative of informant
Shankar, the evidence of P.W. 2- Daulat Kukreja cannot be
discarded, since true account of the facts discovered from the
spot of incident as stated by this witness is supported by
evidence of P.W. 40 Hanpude-Patil.
..63.. CriAl-364-17 .odt
57. From the examination of Dr. Amol Shinde i,e,
P.W.18 who had conducted post mortem over the dead body of
Jitendra, it has come on record that the body was referred to
him from District Hospital, Ahmednagar immediately on the
next day of incident and he along with Dr. H. S. Katiya
conducted post mortem in between 10.45 a.m. to 11.45 a.m.
According to his evidence, he found firearm wound entry
present over left side of chest laterally, situated 16 c.m. below
axillary fold in anterior axillary line and 07 c.m. below and left
lateral to left nipple of size 2.5 c.m. x 2 c.m. On dissection it
was found that bullet passed through subcutaneous tissue,
fracturing left sixth rib in anterior axillary line 13 c.m. left to
mid-line of size 1.5 c.m. diameter. It was found that tract of
bullet was hamorrhagic, contused, lacerated and reddish. He
has specifically deposed that external injury No.1 under
column 17 of post mortem notes corresponds to internal
injuries. He has specifically given the opinion in respect of
death of Jitendra that it was due to traumatic and
hamorrhagic shock due to fire-arm injury. The post mortem
report mentioning the cause is at Exh.130. Though there
was searching cross examination of this witness, but this
witness has stated that if the bullet was fired through country-
..64.. CriAl-364-17 .odt
made pistol, then the empty cartridge may fall at the spot.
Further, the evidence of this witness leads to inference that
appellant Pradeep must have fired bullet from the distance of
less than 2 to 3 feet from the deceased. Further, the bullet is
also recovered from the body of the deceased.
58. It is significant to note that on 6.5.2014, appellant
Pradeep was in police custody and made disclosure statement
to produce one bullet and his clothes. P.W. 10 panch
Bhausaheb Gangaram Pawar in his evidence has stated how
appellant Pradeep voluntarly made statement for production of
bullet and his clothes, which he had hidden. The evidence of
this witness further indicates that appellant Pradeep then led
them to his house and then produced his clothes worn at the
time of the incident, consisting one round collar T-shirt like
Shirt and blue colour Jeans Pant. He also produced one live
bullet from the rear right pocket of said Jeans pant. The
clothes and live bullet were seized under panchnama Exh.76.
This panch P.W. 10 has fully corroborated with the evidence of
Investigating Officer Hanpude-Patil, on the point of disclosure
statement and recovery of clothes and bullet. It is significant
to note that white round collar T-Shirt and blue Jeans Pant
has been identified by P.W. 12 Rakesh Fuldhale, who had an
..65.. CriAl-364-17 .odt
opportunity to see the accused at the spot of incident at the
relevant time.
59. The prosecution has examined P.W. 32 Gauri Milind
Vengurlekar, who was serving as Scientific Assistant in
Forensic Laboratory, Mumbai from March 2013. According to
her evidence, she completed her M.Sc. in Organic Chemistry
from Mumbai University and from March 2013 to December
2015 she was serving in Ballistic Department, Mumbai.
According to her, she had worked on country made, standard
weapon including Pistol, Revolver, Rifle and hand guns. She
had handled around 500 matters pertaining to different
weapons. She has stated that on 07.05.2014, she received total
11 sealed parcels and envelopes from Kotwali Police Station,
Ahmednagar pertaining to present crime. Office copy of the
receipt, is at Exh. 178. Those parcels and envelopes were
containing following items :-
(1) One country made pistol with magzine, wrapped
in paper marked 12.
(2) One intact KF 7.65 mm pistol cartridge put in an
envelope marked-13.
(3) One intact KF 7.65 mm pistol cartridge put in an
envelope marked-14.
..66.. CriAl-364-17 .odt
(4) One intact KF 7.65 mm pistol empty having
indentation one the cap put in an envelope
marked-1.
(5) One half T-shirt wrapped in paper marked-3.
(6) One full pant.
(6-A) One belt Exh.6 and 6A together wrapped in paper
marked-4.
(7) One sandow baniyan wrapped in paper marked-5.
(8) One underwear wrapped in paper marked-6.
(9) One kurta wrapped in paper marked-16.
(10) One full jeans pant wrapped in paper marked-17.
(11) Cotton swab put in an envelope marked-2.
60. Her further evidence indicates that she perused the
queries made by the Investigating Officer and then took
measurement of country made pistol, then she carried out test
firing by using 7.65 mm cartridges through the pistol, after
firing she received two cartridge cases and two test fired
bullets. On comparison of those two empty cartridges with the
empty cartridge found on the spot, it was transpired that all
those empty cartridges were same. Further, she also
compared the bullet sent by Medical Officer which was
recovered from the body of the deceased, with the test fired
bullet. She found that both the bullets were having same
brushing marks. As such, it was revealed to her that the test
..67.. CriAl-364-17 .odt
fired bullets and the bullet which was sent by the Medical
Officer were fired from same pistol. This witness has given
detail evidence about the procedure for arriving at the
aforesaid conclusion and nothing has come on record in her
cross-examination, which is adverse to the prosecution case.
Thus, her evidence has established the fact that the country
made pistol seized from the appellant -Pradeep was, capable of
firing and that the empty cartridge and the part of bullet found
in the dead body of deceased was, in fact fired from the same
country made pistol Article No.10.
61. The learned counsel for the appellant Pradeep also
tried to argue that evidence of this witness i.e. P.W 32 Gauri
Vengurlekar has to be disbelieved, since in her evidence, it has
come on record that at the time of her evidence, no seals of her
office were found on the articles, which she had sent to Kotwali
Police Station. Admittedly, after going through her evidence, it
reveals that she has admitted that seals of her office were not
found on those articles and instead of that those articles were
found sealed with stapler pins. Thus, learned Advocate for the
appellant Pradeep submits that, there was clear cut tampering
with the articles sent to this witness. However, P.W. 32
Vengurlekar has specifically deposed in her evidence that when
..68.. CriAl-364-17 .odt
she had sent the articles after analysis to Kotwali Police
Station, those were sealed and the seals were intact. Thus,
even if, at the time of her evidence, those articles were found
sealed with stapler pins and without seals of her office, her
reports cannot be doubted, since she is firm on the point that
she had sent the articles to Kotwali Police Station in sealed
condition. If at the time of her evidence, those seals were not
found, there may be possibility of handling the articles by
opening the seals of office of Ballistics Expert. But such type of
tampering at the hands of police, will have no adverse effect
on the result of analysis, since by that time, the analysis had
already taken place. Thus, merely because there were no seals
found on the Muddemal articles of the office of Ballistic Expert
at the time of evidence of P.W. 32, it cannot be said that those
reports are fabricated. Thus, the evidence of P.W. 32 can
safely be accepted.
62. It has also come on record in the evidence of P.W.41
P.I. Mr. Dhekane that he had recovered the pistol consequent
to the disclosure statement made by appellant Pradeep as per
Section 27 of the Indian Evidence Act. The evidence of P.W. 41-
P.I. Shri. Dhekane definitely indicates that after he arrested
appellant Pradeep, he disclosed that he had also received
..69.. CriAl-364-17 .odt
amount of Rs. 10,000/- from appellant Divya. It has further
come in the evidence that appellant- Pradeep had taken them
near his house and took out one pistol from Air cooler of Ken-
star make, by removing two screws, the pistol was having
stainless steel magzine. Pradeep also produced cash of Rs.
10,000/- from one cupboard. We have also perused the said
country made pistol from Muddemal and it is found that the
description given in recovery panchnama of the said pistol
matches with it. Though the panch witness Dharmendra
Shinde i.e. P.W.11 has not supported the prosecution on the
aspect of recovery of pistol and cash amount, but the
investigating officer P.W 41- P.I. Shri. Dhekane has established
the said fact of recovery. Thus, merely because panch witness
did not support, the evidence of P.W. No.41- P.I. shri. Dhekane
cannot be discarded. Moreover, the said recovery panchnama
at Exh. 308 is signed by the appellant Pradeep and he did not
dispute his signature thereon. In view of the same, it can
safely be inferred that the pistol and cash amount was
recovered at the instance of appellant Pradeep. Though there
is no evidence in respect of voice recording of appellant
Pradeep, but appellant Pradeep has not challenged the
conversation on the phone calls and messages. Further, from
..70.. CriAl-364-17 .odt
the CDR and SDR coupled with evidence of P.W. 4 Shankar
Bhatiya, P.W.14 Dharamdas Bhatiya, P.W.15-Jamnadas
Bhatiya and P.W.16- Dinesh Bhatiya it has already been
established that it was only appellant -Pradeep, who had made
ransom calls and messages. The learned trial Judge has made
proper discussion as to how he believed the evidence of
P.W.41- P.I. Shri. Dhekane in respect of recovery of pistol and
cash amount of Rs. 10,000/- at the instance of the accused.
After going through the said discussion, we are also in
agreement with the findings of learned trial Judge.
63. The learned counsel for the appellant- Pradeep also
pointed out that the contradiction in the evidence of P.W. 12-
Rakesh Fuldahale and 15- Jamnadas Bhatiya. According to
him, P.W. 15- Jamnadas Bhatiya had deposed before the Court
that appellant- Pradeep had covered his face with
handkerchief. However, there is no such statement by P.W. 12-
Rakesh. Admittedly, P,W, 15 Jamnadas has deposed that the
assailant of deceased Jitendra had covered his face with
handkerchief at the time of incident, which is contrary to the
evidence of P.W. 12 Rakesh, that he had seen Pradeep without
such covering of face. It is pertinent to note that P.W. 15
..71.. CriAl-364-17 .odt
Jamnadas is not an eyewitness and he also never claimed that
he had seen the assailant. As per his evidence, he heard from
the mob that the assailant had covered his face with
handkerchief. Thus, it is revealed that this witness was not
having actual information of the covering of face by the
appellant. His evidence, to that effect, is hearsay evidence,
which is not admissible. On the contrary, P.W. 12- Rakesh
had actually seen the assailant on the spot of incident. As
such, no weightage can be given to the discrepancy in the
evidence of P.W. 12- Rakesh Fuldhale and P.W.15- Jamnadas
Bhatiya as regards the covering of face with handkerchief by
the assailant at the relevant time. Thus, considering all these
aspects, the prosecution has definitely established the material
circumstances connecting the appellant Pradeep with the
crime beyond reasonable doubts. Thus prosecution has
established following facts on the basis of trustworthy and
reliable evidence.
(i) Appellant Pradeep was found in possession of the SIM
Cards from which calls for ransom amounts and
messages were made to the deceased and other
members of Bhatiya family. It is also established that
even after the incident, he made threatening call to
the informant.
..72.. CriAl-364-17 .odt
(ii) Just before the incident and immediately after the
incident, the appellant Pradeep was seen by P.W.12
Rakesh Fuldhale on the spot of incident with pistol and
that P.W. 12- Rakesh Fuldhale heard the noise of firing
from close distance.
(iii) The pistol and live bullets were recovered at the
instance of appellant Pradeep.
(iii) It was transpired in the evidence of Ballistic Expert that
live bullets recovered from appellant - Pradeep were
found similar to the bullet recovered from the body of
the deceased.
(iv) It has also been established from the said Ballastic
Expert witness that all the bullets including the bullets
used for test firing and bullet found in the body of
appellant Pradeep were fired from the pistol which the
appellant Pradeep was possessing.
64. Therefore, considering all these facts, the
prosecution has conclusively established the guilt of accused,
which is proved beyond all reasonable doubts. The act of
appellant-Pradeep of killing Jitendra was with motive to extort
ransom amount and his intention to kill the deceased is also
apparent since he fired bullet on the chest of deceased i.e. vital
part of the body from a near distance of 2 to 3 feet. Therefore,
all the ingredients for offence punishable under Section 302 of
the IPC are proved by the prosecution,
..73.. CriAl-364-17 .odt
65. Now, we come to the parallel story of the
prosecution in respect of the crime and it is regarding the
conspiracy between appellant Pradeep and appellant Divya
which led the appellant pradeep for extortion and murder of
the deceased. Admittedly, the deceased Jitendra and the
appellant Divya were husband and wife. The prosecution is
claiming that there were illicit relations between appellants
Pradeep and Divya and since the deceased was treating
appellant Divya with mental and physical cruelty, she
conspired with appellant-Pradeep for killing her husband by
providing certain cash amount to him. Thus, the prosecution
is indirectly claiming that Divya had given certain cash
amount to appellant Pradeep for procuring the pistol used in
the crime.
66. So far as evidence in respect of illicit relations
between the appellants Pradeep and Divya is concerned, the
prosecution claims that informant Shankar Mohanlal Bhatiya
i.e. P.W. 4 Shankar disclosed the said relation before the police
firstly on 8.5.2014. According to him, he gathered such
information from one Monika aunty residing behind his house,
who had told his wife Kanchan that her sister-in-law i.e.
appellant Divya talks on phone throughout the day with one
..74.. CriAl-364-17 .odt
boy and the said boy within age group of 20 to 22 years visits
Divya's house in absence of deceased Jitendra and her
children. Since Jitendra had a doubt on character of Divya,
there was quarrel between deceased Jitendra and Divya on
this count. Thus, the prosecution is claiming that when
deceased Jitendra got the knowledge about love affair between
these appellants, they conspired with each other for killing
Jitendra and purchased pistol from Vikram Berad i.e. accused
No.3, who is no more. Admittedly, the disclosures made by
these appellants before the investigating officer are not
admissible, but it certainly give a clue for further investigation.
As such, the prosecution has relied on the evidence of
witnesses along with the electronic evidence.
67. It is case of the prosecution that appellant Pradeep
had given SIM Card of Mobile No. 8177917704 to Divya, which
he had obtained in the name of Monakshi Ahire i.e. P.W. No.5
and he was talking with Divya from his another Mobile No.
8855871317. However, as per the evidence of Monakshi Ahire,
she was not aware about the fact that said Mobile number was
obtained by the appellant- Pradeep in her name and it was
given to appellant Divya for having conversation. Admittedly, it
has been disclosed that appellant -Divya was also possessing
..75.. CriAl-364-17 .odt
another SIM Card having Mobile No. 9822033743. However,
there were no phone calls on this number from any of SIM
Card possessed by the appellant - Pradeep. However, there are
CDR in respect of calls between Mobile No. 8177917704 which
was being used by appellant- Divya and Mobile No.
8855871317 possessed by the appellant Pradeep . However,
these call details are not duly certified by certificate under
Section 65(B) of the Indian Evidence Act, therefore, we cannot
rely on the same for concluding that appellants Pradeep and
Divya were having love affair and they used these mobile
phones for making conversation between them in respect of
their relationship.
68. It has come on record in the evidence of P.W. 13
Deepak Zende, who acted as a panch witness that on
7.5.2014, he was called in Kotwali Police Station, where
another panch Jakir Wali Ahmed Khan was present. This
witness has stated that Investigating Officer P.I. Hanpude-Patil
told him that appellant Divya was about to give memorandum.
According to this witness, appellant Divya, while in police
custody made a statement that she would produce Mobile
Handset used in connection with the crime and also to show
the place where she threw away the SIM Card fitted in the said
..76.. CriAl-364-17 .odt
mobile. This witness has also identified appellant- Divya in
the open Court and further deposed as to how she produced
the Mobile Handset and showed the place where she had
thrown away the SIM Card. However, for want of certificate
under Section 65(B) of the Evidence Act, the CDR in between
SIM Card No. 8177917704 and Sim Card No. 8855871317 has
not been proved. Therefore, the evidence of P.W. No.13 Deepak
Zend is not sufficient to establish the love affair between both
the appellants.
69. The prosecution has also relied on the confessional
statements of both these appellants, wherein they have
disclosed as to how they got acquainted with each other and
having love with each other. It is also disclosed as to how the
deceased was harassing appellant Divya and, therefore, both of
them decided to eliminate him for continuation of their love
affair. Admittedly, P.W. No. 30 Bhaskar Bhikaji Bhose, who in
his evidence has posed himself as Special Judicial Magistrate
for Ahmednagar district and claims that as a part of his job,
he recorded statement of both the appellants as well as P.W.
No. 5 Monkakshi Ahire under Section 164 of the Code of
Criminal Procedure. However, it is extremely important to note
that as per Section 164 of the Code of Criminal Procedure,
..77.. CriAl-364-17 .odt
only Judicial Magistrate (F.C) or the Metropolitan Magistrate
are empowered to record confessional statement. This P.W. 30-
Bhakar Bhose though claim himself as Special Judicial
Magistrate, but in fact he appears to be a Special Executive
Magistrate. Moreover, it has already come on record that as per
the judgment of this Court in the case of State of
Maharashtra Vs. Krishna reported in [2014 All M.R. (Cri)
4224] and in case of Bhausaheb Vs. State of Maharashtra
reported in [1997 Cr.L.J. 467], the confessional statement
recorded by Special Judicial Magistrate is just a scrap paper
and having no evidentiary value at all. It appears that the
learned trial Judge has exhibited these confessional
statements for identification purpose and its evidentiary value
was to be decided at the time of final stage. Thus, in the light
of observations of this Court in the aforesaid judgments, these
confessional statements cannot be used as evidence to prove
love affair or any conspiracy between both these appellants.
70. According to the prosecution, the illicit relationship
between both these appellants Pradeep and Divya was revealed
for the first time, when informant Shankar Bhatiya gave his
supplementary statement on 08.05.2014. Though while
deposing before the Court, informant Shankar refused the part
..78.. CriAl-364-17 .odt
of his supplementary statement from where the illicit relations
between the appellants revealed, but the Investigating Officer
i.e. P.W. No.40- P.I. Hanpude Patil has proved those parts
which are marked as portion "A" and "B'' at Exhibit 249 and
Exhibit 250, respectively. On going through the said portion
marked exhibits 249 and 250, it appears that Shankar got the
knowledge of such illicit relationship between appellants
through his wife Kanchan, to whom the said fact was disclosed
by one Monika aunty residing at back side of his house.
71. The prosecution has also examined P.W. No.19
Monika Kishor Hasija at Exh. 132. Though this witness
refused to support the prosecution on the point of illicit
relations between the appellants, but she has admitted that
she used to talk occasionally with Kanchan Bhatiya i.e. wife of
Shankar. The prosecution has also examined Kanchan Bhatiya
as P.W. 17, who has stated that she came to know from
Monika aunty about illicit relations between these appellants
and when she had asked appellant Divya about her relations
with the appellant Pradeep, Divya told her that the boy, who
had come to her house was a computer repairing person.
Moreover, other relatives of Shankar i.e. P.W. 15 Jamnadas
Bhatiya and P.W. No.16 Dinesh Bhatiya have also stated about
..79.. CriAl-364-17 .odt
the existence of illicit relations between both these appellants.
Therefore, though some members of Bhatiya family along with
the daughter Lavina of the deceased, refused to make
comment on the said relationship, but some of them have
stated about such relationship. Therefore, it is obvious that
the members of Bhatiya family, who refused to support the
prosecution on this ground, must have tried to screen those
relations to avoid defamation of their family on that count.
Thus, even though the confessional statement of appellant
Divya is discarded, but the evidence of some of the family
members has established that there was illicit relations
between both these appellants since around two years prior to
the incident.
72. It appears that the learned trial Judge, in view of
illicit relations between these appellants and relying on the
observations of the Hon'ble Apex Court in the case of
Mohammad Kalid Vs. State of West Bengal reported in
[ (2002) 7 SCC 334] inferred that there was conspiracy
between these appellants for eliminating Jitendra Bhatiya. The
observation relied upon by the learned trial Judge in the
aforesaid case is reproduced herein below :-
..80.. CriAl-364-17 .odt
" There can not always be much directed evidence
about conspiracy. The offence of conspiracy can
be proved either by direct or circumstantial
evidence. However, conspiracies are not hatched
in the open, by their nature, they are secretly
planned. Privacy and secrecy are more
characteristics of a conspiracy, than of a loud
discussion in an elevated place open to public
view. Directed evidence in proof of a conspiracy is
therefore, seldom available. It is not always
possible to give affirmative evidence about the
date of the formation of the criminal conspiracy,
about the persons who took part in the formation
of the conspiracy, about the object, which the
objections set before themselves as the object of
conspiracy, and about the manner in which the
object of conspiracy is to be carried out, all that is
necessarily as matter of inference. Therefore, the
circumstances proved before, during and after the
occurrence have to be considered to decide about
the complicity of the accused."
73. The learned trial Judge also appears to have relied
upon the evidence of P.W. 5- Monakshi Ahire, P.W.40 P.I. Shri.
Hanpude Patil, P.W. 13- panch Dipak Zende, P.W. 37- Nodal
Officer Dhananjay Yadav in respect of the facts that appellant
Pradeep had given SIM Card to appellant Divya and how the
handset from which appellant Divya used to contact appellant
Pradeep was recovered at the instance of Divya, etc.
74. On the basis of this evidence, the learned trial
Judge has drawn an inference that there was some conspiracy
..81.. CriAl-364-17 .odt
between these appellants and the same was only to finish
Jitendra Bhatiya. However, from the aforesaid facts, it has
only been established that there was illicit relationship
between these appellants. So far as the theory of prosecution
in respect of conspiracy between these appellants to kill
deceased Jitendra Bhatiya is concerned, only inference to that
effect is not sufficient. Some, more material or evidence is
required by the prosecution to support such theory. Though
the learned counsel for the appellant Divya relied on various
judgments as mentioned above, but most of the judgments are
on the point that when the prosecution wants to establish guilt
of accused in the case based on circumstantial evidence, then
it has to establish each and every circumstances to complete
the chain pointing towards the guilt of accused. So far as this
point is concerned, it is settled position.
75. The learned counsel for the appellant Divya also
relied on the judgment of Hon'ble Apex Court in the case of
State of Kerala Versus P. Sugathan and another [AIR
2000 Supreme Court 3323], wherein it is observed as
below :-
"circumstances should give rise to a conclusive inference
of an agreement between two or more persons to commit
..82.. CriAl-364-17 .odt
an offence. Circumstances should be prior in time then the
actual commission of offence and conspiracy is a
continuous offene and any act committed by any of the
conspirator during the subsistence of conspiracy would
attract Section 120-B".
76. He also placed reliance on the judgment of Hon'ble
Apex Court in the case of Ram Sharan Chaturvedi Vs. The
State of Madhya Pradesh [Criminal Appeal No. 1066 of
2010 decided on 25.08.2022], wherein following
observations are made :-
"It is not necessary that there must be a clear,
categorical and express agreement between the
accused. However, an implied agreement must
manifest upon relying on principles established in the
case of circumstantial evidence."
77. Thus, on going through the impugned judgment, it
is evident that the learned trial Judge has drawn direct
inference merely based on the fact that there were love
relations between these appellants, and therefore, as there was
love relations they conspired with each other and executed a
plan of killing Jitendra. However, it further appears that the
learned trial Judge while convicting appellant Divya for the
offence punishable under Section 120-B of the Indian Penal
..83.. CriAl-364-17 .odt
Code, has not made any objective analysis of the evidence on
record referring to the particular act of appellant Divya
indicating that she hatched a conspiracy with appellant
Pradeep. As per the observations of Hon'ble Apex Court in the
aforesaid cases State of Kerala Versus P. Sugathan and
another and Ram Sharan Chaturvedi Vs. The State of
Madhya Pradesh.
78. In the instant case, prosecution is relying on the
cash of Rs. 10,000/- found in possession of appellant Pradeep,
which was allegedly given to him by appellant Divya. The
prosecution has thus suggested that appellant Divya had
provided such cash amount to purchase a weapon for
committing murder of her husband. However, had appellant
Divya given such cash amount to appellant Pradeep for
purchasing weapon, Pradeep would have spent it. It is
surprising to note that appellant Pradeep did not use it since
he had already obtained pistol from accused No.3 Berad, who
is no more. Moreover, except the fact of illicit relations between
the appellants, there is no other evidence on record in respect
of conduct of appellant Divya, which could establish that, she
in fact, played some active role to facilitate appellant Prdeep in
..84.. CriAl-364-17 .odt
hatching conspiracy for killing her husband. On the contrary,
an inference can also be safely drawn that appellant Pradeep
due to his affair with appellant Divya, might have taken
independent decision to kill her husband, who according to her
was harassing her physically and mentally. The evidence on
record does not suggest any overt act on the part of appellant
Divya. Therefore, considering these aspects, it appears that
the learned trial Judge has directly jumped to the conclusion
that appellant Divya was also part of conspiracy for eliminating
her husband Jitendra.
79. There are no circumstances established by the
prosecution about the involvement of appellant Divya in the
crime. On the contrary, it appears that it was an independent
decision of appellant Pradeep to commit murder of husband of
appellant Divya. It is well settled that suspicion, how so ever
grave, cannot replace the proof. Therefore, we are of the
opinion that, the learned trial Judge has committed an error
by drawing inference that appellant Divya was also involved in
the present crime. Further, it has come on record that
appellant Divya had shown the place where she destroyed the
SIM Card given to her by appellant Pradeep for having
conversation with her. The prosecution has failed to recover
..85.. CriAl-364-17 .odt
the said SIM Card and even otherwise also the CDR in respect
of SIM Card Nos. 8177917704 and 8855871317 are not
admissible for want of proper certificate under Section 65(B) of
the Indian Evidence Act. As such, no active role of appellant
Divya in hatching conspiracy for killing Jitendra, has been
established by the prosecution beyond all reasonable doubts
and therefore, she is certainly entitled for benefit of doubt. In
view of the same, we pass the following order :-
ORDER
(I) Criminal Appeal No.364 of 2017 stands dismissed.
(II) Criminal Appeal No.345 of 2017 stands allowed and the
judgment and order dated 17.06.2017 passed by the
learned Additional Sessions Judge, Ahmednagar in
Sessions Case No. 345 of 2017 is hereby quashed and
set aside only to the extent of appellant - Divya @ Hema
Jitendra Bhatiya i.e. original accused No.2.
(III) The appellant - Divya @ Hema Jitendra Bhatiya is
acquitted from the offence punishable under Sections
120-B and 201 of the Indian Penal Code.
(IV) The appellant - Divya @ Hema Jitendra Bhatiya is on
bail, her bail Bail Bond stands cancelled and she is set
at liberty.
..86.. CriAl-364-17 .odt
(V) The fine amount, if any, paid by this appellant, be
refunded to her.
(VI) The Record and Proceedings be sent back to the learned
trial Court.
(VII) Criminal Appeal No. 364 of 2017 and Criminal Appeal
No. 345 of 2017 are disposed off.
(SANDIPKUMAR C. MORE) (NITIN B. SURYAWANSHI )
JUDGE JUDGE
ysk
