Bombay High Court
Mohan Madhav Chaurasiya vs The State Of Maharashtra on 4 September, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:37770-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1043 OF 2015
Mohan Madhav Chaurasiya .....Appellant
Versus
The State of Maharashtra .....Respondent
..........
WITH
INTERIM APPLICATION NO.2513 OF 2025
IN
CRIMINAL APPEAL NO.1043 OF 2015
......
WITH
CRIMINAL APPEAL NO.689 OF 2016
Ramdeen Khilawan Loniya .....Appellant
Versus
The State of Maharashtra .....Respondent
-----
Ms. Ameeta Kuttikrishnan, Advocate i/b. Shabhana Sayed,
Shambhavi Desai a/w. Gayatri Pore for the Appellant in
Apeal/1043/2015.
Mr. Pradeepkumar L. Pardeshi, Advocate a/w. Anushka Martis for
the Appellant in Apeal/689/2016.
Mr. Vinit A. Kulkarni, APP for the Respondent-State.
-----
CORAM : SARANG V. KOTWAL &
ADVAIT M. SETHNA, JJ.
DATE : 04th SEPTEMBER, 2025
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ORAL JUDGMENT : [PER SARANG V. KOTWAL, J.]
1. Both these Appeals are decided by this common
judgment and order because they arise out of the same impugned
judgment and order. The Appellant Mohan Chaurasiya in Criminal
Appeal No.1043/2015 was the original accused No.1 in Sessions
Case Nos.271/2013 along with 552/2013 before the Additional
Sessions Judge, Greater Bombay. The Appellant Ramdeen Loniya
in Criminal Appeal No.689/2016 was the original accused No.2 in
the same case. For the sake of convenience, both the Appellants
are referred to by their original status as the accused, in the
following discussion. The learned Judge, vide judgment and order
dated 9.2.2015 convicted both of them for commission of the
offence punishable under Section 302 read with 34 of IPC and
sentenced them to suffer RI for life and to pay a fine of Rs.3,000/-
each and in default to suffer SI for fifteen days. They were
acquitted from the charges of commission of offence punishable
under Section 341 read with 34 of IPC.
2. The prosecution case is that the deceased Samsher was
in employment of one Zulphikar Abdul Sattar Ghachi. The accused
No.1 Mohan was also employed with Zulphikar. According to the
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prosecution case, said Zulphikar had two shops - one was a
stationery shop and the other was a juice center. Samsher had
joined him only a couple of days before the incident. He was asked
to work in the stationery shop. The accused No.1 Mohan was
already working with Zulphikar in his juice center. After the day's
work, the deceased Samsher and the accused No.1 Mohan used to
sleep in the juice center. The incident occurred in the night
between 22nd and 23rd November, 2012. Zulphikar's father had
seen both the accused and Samsher in the juice center before he
left from there. The accused No.2 Ramdeen was the accused No.1's
friend who used to meet him often. Zulphikar came to his juice
center at around 10.00 a.m. on 23.11.2012. The juice center was
closed with its shutter down. Zulphikar knocked on the shutter
but there was no response. He opened the shutter and went inside.
He saw that Samsher was lying on the floor. His hands were tied.
His face was covered with a cloth. He alarmed everyone in the
neighbourhood. A doctor was called, who declared Samsher to be
dead. The police were informed. Before opening the shutter,
Zulphikar had tried to contact accused No.1 Mohan telephonically
but there was no response. The accused No.1 Mohan was not
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found. The police were informed accordingly. The FIR was lodged
by Zulphikar at Deonar police station vide C.R. No.236/2012. The
investigation was carried out. The accused No.1 Mohan was
arrested from his native place on 28.11.2012. The accused No.2
Ramdin was arrested on 22.2.2013. The investigation continued
and after completion of the investigation the charge-sheet was
filed. The prosecution examined seven witnesses including the first
informant Zulphikar, his father Abdul Sattar Abdulla Ghachi, a
neighbouring tea-stall owner, an autorickshaw driver who has seen
the accused in the night, the Medical Officer who conducted the
postmortem examination and two investigating officers. The
defence of the accused was of total denial. The accused No.1
Mohan stated in his examination under Section 313 of Cr.P.C. that
he was a poor person. He was falsely implicated in that case. He
added that he was at his native place and he was arrested from
there. Importantly, he further stated that he never came to
Mumbai.
3. Learned Judge considered the evidence on record, the
defence of the accused, the submissions made on both sides and
then recorded his conclusion as mentioned earlier. The learned
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Judge specifically relied on the following circumstances for
convicting both the Appellants. The learned Judge has enumerated
those circumstances in paragraph-56 of his judgment and order,
which are as under :
i. Accused No.1 used to work with PW-1 and used to sleep in Noor
Cold Drink shop,
ii. Accused No.2 is the friend of accused No.1 and used to come to
see him,
iii. Deceased Samsher and accused No.1 were last seen together at
about 11.30 p.m. of 22.11.2012,
iv. The accused Nos.1 and 2 were seen together during the same time
near Noor Cold Drink shop and they entered into Noor Cold Drink
shop and they were with Samsher at that time,
v. Samsher was found to be dead in the shop and his death was due to
violent asphyxia due to smothering associated with head injury,
which is unnatural,
vi. The accused Nos.1 and 2 found left Noor Cold Drink shop at about
4.15 a.m. in the morning,
vii. Accused Nos.1 and 2 both were absconding and subsequently the
mobile phone of accused No.1 was switched off,
viii. The proximity of time between the accused Nos.1 and 2 were
together with the deceased Samsher and deceased Samsher was
found dead was so small that there cannot be any possibility that
any other person being with the deceased can be possible,
ix. No explanation is given by the accused about their whereabouts
during this period when the death of Samsher occurred.
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4. PW-1 Zulphikar Abdul Sattar Ghachi was the first
informant. He deposed that in the year 2012, he was doing
business in Kenna Market at Tata Nagar, Govandi. He had two
shops, one was having business of sugarcane juice and the other
was a stationary store. Both the shops were adjacent to each other.
His juice center was known as 'Noor Cold Drinks'. In the year
2012, the accused No.1 Mohan was working with him in 'Noor
Cold Drinks'. There was one more person by name Kapil, who was
working with him at that time. PW-1 identified the accused No.1
Mohan in the Court as the same person working with him. PW-1
used to open his 'Noor Cold Drinks' shop at 10.30 a.m. and used to
close it at about 10.30 p.m. everyday. The accused No.1 and Kapil
used to sleep in the shop only in the night. PW-1 has further stated
that he knew the deceased Samsher. About one and half years
before 2012, Samsher used to work in his shop and after that he
had gone to his native place in Uttar Pradesh. He came back on
18.11.2012 and requested to give him work. PW-1 gave him job on
21.11.2012. Samsher started working for PW-1 Zulphikar from
21.11.2012. In the night of 21.11.2012, the accused No.1 Mohan,
Kapil and Samsher slept in the shop. Kapil was to go out of station.
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He left the shop at 8 a.m.. On 22.11.2012 the accused No.1 Mohan
and Samsher worked for the entire day. In the evening, the
accused No.1 Mohan approached PW-1 and requested PW-1 to pay
Rs.1000/- to his brother Sanjay. PW-1 paid Rs.1000/- and at about
8.30 p.m. to 8.45 p.m. he went home. PW-1's father returned home
at around 11.00 p.m. and told PW-1 that he had given tiffin to the
accused No.1 Mohan and Samsher. Both of them had their dinner.
PW-1's father further told him that he had instructed the accused
No.1 Mohan to close the door from inside and then PW-1's father
had come back home. On the next day i.e. on 23.11.2012, PW-1
went to his shop at 10.15 a.m. to 10.30 a.m.. When he reached
there he found that the shutter of the shop was shut. Usually, the
accused No.1 used to open the shop by that time, but, on this
occasion the shutter was closed. PW-1 knocked on the shutter and
called the accused No.1 and Samsher, but, there was no response
from inside. PW-1 further deposed that he opened the lock of the
shutter and pulled it up. He found that Samsher was lying in the
shop. His face was covered with white cloth. His mouth was tied
with a cloth with a knot at the backside. His hands were tied
behind his back. The cloth which was used to tie his hands and
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mouth was the cloth used for cleaning the shop. PW-1 called Dr.
Mohammed Yusuf, whose clinic was nearby. The doctor examined
Samsher and informed that he was dead. PW-1 tried to contact the
accused No.1 Mohan on his mobile phone but it was switched off.
He tried to contact some acquaintance of the accused No.1 Mohan,
but, Mohan's whereabouts were not known. PW-1 informed the
police who came at the spot at about 10.45 a.m.. PW-1 then lodged
his report with the police. The proforma of the FIR shows that the
police were informed about the incident at 10.45 a.m. and the FIR
was registered at 11.20 a.m. vide C.R. No.236/2012 at Deonar
police station. The FIR is produced on record at Exhibit-38. PW-1
further deposed that the accused No.2 Ramdin was friend of the
accused No.1 Mohan and he used to come to meet the accused
No.1 Mohan. PW-1 identified both of them in the Court.
In the cross-examination, PW-1 deposed that he and his
father used to sit on the counter of the stationery shop. The juice
center was of the size 8.5 ft. X 18-19 ft. There was a lock to his
shutter for locking it from inside. The shop was adjacent to the
road. The police used to do patrolling in that area frequently. The
crime rate was high in the area and, therefore, the shop-keepers
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used to close their shops by 10.00 p.m.. According to PW-1,
Samsher was not having enmity with anyone. PW-1 used to take
entire amount received on that particular day to his house. He
denied the suggestion that the accused No.1 Mohan was never
working with him and that he was implicated falsely. He denied the
suggestion that the accused No.2 Ramdin was not a friend of the
accused No.1 Mohan and that he never used to meet the accused
No.1.
5. The FIR, produced on record at Exhibit-38,
substantially corroborates PW-1's deposition, except that, in the FIR
it was mentioned that when he went to his shop on 23.11.2012 he
opened the shutter as it was not locked. This statement is different
from his deposition because in the deposition he had stated that he
opened the lock of the shutter and then saw inside. However, this
discrepancy was not brought to PW-1's notice. In that behalf, no
question was asked even to the investigating officer who had
recorded the FIR.
6. PW-2 Abdul Sattar Abdulla Ghachi is the father of
PW-1. He deposed about their two shops. He stated that the
accused No.1 Mohan and Kapil used to work in the sugarcane juice
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shop. He identified the accused no.1 Mohan before the Court.
Kapil and the accused No.1 Mohan used to sleep in the shop during
the night. PW-2 knew the accused No.2 Ramdin. He identified the
accused No.2 Ramdin before the Court. The accused No.1 Mohan
had suggested that the accused No.2 Ramdin be given work with
PW-2 but that proposal was not accepted by PW-2. He further
explained that he knew the accused No.2 because he used to
frequently visit the accused No.1. He further stated that Samsher
was working with them one year earlier. He rejoined the duty on
21.11.2012. He used to work in the stationery shop with PW-1.
PW-2, the accused No.1 Mohan and Kapil used to look after the
shop 'Noor Cold Drinks'. PW-2 further added that Samsher and the
accused No.1 Mohan used to sleep in 'Noor Cold Drinks' shop.
Kapil wanted to go to his native place and, therefore, he left early
in the morning on 22.11.2012. On that day, Samsher, Mohan,
PW-1 and PW-2 attended their work as usual. At about 10.30 p.m.,
PW-2 closed his shop. Importantly, he has further stated that on
that day the deceased Samsher and the accused No.1 Mohan were
sleeping in the shop. He further stated that in the evening on
22.11.2012 he had paid Rs.1000/- to the accused No.1 Mohan's
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brother Sanjay on his request. At about 10.35 p.m. PW-2 closed
his shop. At that time, the accused No.1 was doing some cleaning
job in the shop. PW-2 asked him to stop his work. At that time, the
accused No.2 Ramdin came there. He informed PW-2 that he was
to go to his native place and, therefore, he had come to see the
accused No.1 Mohan. At that time, the deceased Samsher was also
present in the shop and was to sleep in the shop. After all this,
PW-2 went home. On the next day, PW-1 went to the shop and then
found the dead body. PW-2 further stated that he was called once
by the police and at that time he had seen both the accused in the
police station.
He was cross-examined regarding ownership of the
shop and as to whether it was a rented shop. He stated that when
he went to the police station on two occasions, he saw the accused
No.1 there. He further stated that the police had not told him to
identify the accused during the trial. He described that there were
three to four shops on one side and ten to fifteen shops on the
other side of his shop. He denied the suggestion that the accused
No.1 Mohan was not working with him and that he had seen the
accused No.1 for the first time only in the police station. He also
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denied the suggestion made by learned counsel for the accused
No.2 that he identified the accused No.2 because he was shown by
the police in the police station.
7. PW-3 Mushtaq Chandsaheb Footpak is the another
important witness. He was having a tea-stall near the shops of
PWs-1 & 2. He deposed that Kapil, Mohan and Samsher were
working with PW-2. Mohan and Kapil used to work in the juice
center and Samsher used to work in the stationery shop. He
identified the accused No.1 Mohan before the Court. According to
him, Mohan and Samsher used to sleep in PW-2's shop. The
accused No.2 Ramdin used to come to meet the accused No.1
Mohan. Both the accused used to come to his tea-stall for having
tea. He identified the accused No.2 before the Court. On
22.11.2012 at about 10.30 p.m. to 10.45 p.m. he was about to
close his stall. PW-2's stationery shop was already closed. The
shutter of the juice shop was half opened and the business was
closed. He further deposed that accused No.1 Mohan and Samsher
were in the juice center. The accused No.1 came out. He made a
phone call on his mobile. After sometime, the accused No.2
Ramdin came there. Both the accused were seen talking outside
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the shop near the shutter. Samsher was inside the shop. Both the
accused went away a little further while talking. In the meantime,
PW-3 put all his utensils at their place. At that time, both the
accused came near the juice center. Both of them went inside the
shop. It was about 11.30 p.m. or 11.45 p.m.. The accused No.1
then closed the shutter of the shop. Then PW-3 went away. He has
specifically stated that when the shutter was closed the accused
No.1 Mohan, the accused No.2 Ramdin and the deceased Samsher
were inside the shop. On the next day, at about 10.00 a.m. to
10.30 a.m. he came to his stall. Then he described the incident of
PW-1 knocking on the shutter and finding the dead body. Nobody
else was there in the shop at that time. Then the police were
informed.
In the cross-examination he deposed that he was in
Mumbai till his statement was recorded by the police. When the
police came to the spot he was present there. According to him, the
police were not inquiring with anybody regarding the incident and
he did not have any talk with the police at the place of the incident
when they came there for the first time. He had a talk with the
police on the next day. He spoke with the police officer Mr. Avhad.
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PW-3 had informed everything that he knew to said Mr. Avhad.
According to him, he had talked with Avhad on 30.11.2012. He
further stated that he could see PW-1's shop only after coming out
of his own shop. In his police statement, he had not stated that he
was standing near the corner when the utensils were being washed
in his shop by his employees. However, this omission does not
make much difference to the prosecution case.
In the further cross-examination, he reiterated that
since the time he was standing by the side of the road when
utensils were being washed till he went home after completing
work, the deceased Samsher was in the shop. Both the accused
were standing there. He denied the suggestion that he was shown
the accused No.1 Mohan in the police station and, therefore, he
was identifying him in the Court. He denied the suggestion that he
had not seen the accused No.1 and the deceased Samsher together
before the incident.
In the cross-examination conducted on behalf of the
accused No.2, he accepted that the tea-stall was looked after by
himself and his brother as well as two other boys. He denied the
suggestion that the police van on patrolling duty used to visit his
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stall for tea. Sometimes he had to go to the police station to pay
the charges as his brother did not have licence for conducting the
tea-stall business. He had to pay the charges. He denied the
suggestion that on 22.11.2022, the accused No.2 was not in
Mumbai.
8. PW-4 Sajid Khan was a rickshaw driver. He knew PW-1
and PW-2. He deposed that the accused No.1 used to work in the
juice center known as 'Noor Cold Drinks'. Sometimes the accused
No.2 Ramdin used to come to meet the accused No.1 in the juice
center. He knew both the accused. He identified both of them in
the Court. On 22.11.2012, in the night at about 11.00 p.m. to
11.15 p.m. he had parked his rickshaw near a tailoring shop which
was close to 'Noor Cold Drinks'. At that time, he had seen both the
accused standing in front of 'Noor Cold Drinks'. They were talking
with each other. PW-4 came back at the spot at around 3.45 a.m.
to 4.15 a.m.. He had come to wash his rickshaw. At that time both
the accused were present in front of 'Noor Cold Drinks'. He
deposed further that the accused No.1 closed the shutter and
latched it from outside. PW-4 asked the accused No.1 Mohan as to
where he was going in a rush at such odd hours. Accused No.1
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Mohan did not answer him properly; and told him that he was
going for some work. He was having a plastic carry-bag with him.
He went away hurriedly. PW-4 then left from that place in his
autorickshaw. In the morning, he came to know about the incident.
In the cross-examination, he stated that he was in
Mumbai from the date of incident till his statement was recorded.
His house was at a five minutes driving distance from Deonar
police station. He had not told anybody else till his statement was
recorded that he had seen both the accused together. Some
important omissions from his police statement were brought to his
notice. He could not explain as to why his police statement did not
mention that he had parked his rickshaw near the tailoring shop.
He could not explain why his police statement did not mention that
the accused No.1 had latched the shutter and that the accused No.1
was asked by him as to why he was going in a rush and that the
accused No.1 replied that he was going for some work. However,
he explained that his police statement did not mention only the
portion that the accused No.1 told him that he was going for work
but there is no omission that the accused Nos.1 & 2 were seen by
him at that time going in a hurry.
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9. PW-5 Dr. Anant Natikar had conducted the post-mortem
examination and he had found twenty-four injuries. They were in
the nature of abrasions and contused abrasions mostly on the head,
face, hands, palm, fingers, legs and right foot. There is a clear sign
of heavy struggle. The cause of death was mentioned as 'violent
asphyxia due to smothering associated with head injury'. The
postmortem notes were produced on record at Exhibit-44. It was
conducted at 10.00 a.m. on 24.11.2012.
10. PW-6 API Amol Salunke had registered the FIR and
had conducted the inquest panchnama and the spot panchnama.
These panchnamas are produced on record at Exhibits-26 and 27.
In the cross-examination, he deposed that API Avhad was present
with him. Enquiries were made with the people present near the
spot of incident. He could not say whether there was a tea-stall
near the juice center. They enquired with the shop owners adjacent
to the juice center but they could not get any clue. Nobody had told
them that they had seen the accused or the deceased near the place
of incident.
11. PW-7 API Kailash Avhad was the investigating officer.
He sent the team to Uttar Pradesh to apprehend the accused No.1
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who was arrested on 28.11.2012. The accused No.2 was arrested
on 22.2.2013. He recorded the statements of some of the
witnesses. He also recorded the supplementary statements of the
first informant and filed the supplementary charge-sheet on
25.4.2013.
In the cross-examination, he stated that he had
recorded the statements of PW-3's workers. He had not enquired
with PW-3 on 23.11.2012. He did not get any information from
PW-3 till 29.11.2012 and, therefore, till that date PW-3's statement
was not recorded. He had arrested the accused No.1 on the basis of
the statements of PW-1 and PW-2. He admitted that he had filed
statement of PW-4 after filing of the charge-sheet against the
accused No.1 and thereafter he had filed the supplementary
charge-sheet. He had not recorded the statement of PW-4 at the
time of filing the charge-sheet against the accused No.1 as PW-4
was not available.
12. Apart from this oral evidence, the prosecution produced
the C.A. reports on record at Exhibits-19, 20, 21 and 22. Nothing
much turns on those C.A. reports.
13. Learned counsel for the Appellants made the following
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submissions:
i. The case is based on the circumstantial evidence. The
prosecution has failed to prove the circumstances beyond
reasonable doubt. There was no motive for either of the
accused to commit murder of the deceased. In the case based
on circumstantial evidence, motive plays an important part. In
this case, there is absolutely no evidence even suggesting a
possible motive for commission of this offence. Therefore, in
this present case absence of motive assumes importance and
the benefit of doubt must be given to the Appellants.
ii. The evidence of the prosecution witnesses is not consistent and
reliable. When PW-1 had gone to his shop on 23.11.2012 the
shutter was closed. There was no reason for him to knock on
the shutter if it was locked from outside. His conduct was
unnatural. If he had a key, he would have straightway opened
the lock. There is no evidence to show that the accused No.1
Mohan was present at the spot at any point of time.
iii. There was no enmity of both the accused with the deceased
and, therefore, there was no reason to commit his murder. The
deceased Samsher had come from his native place only two
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days prior to the incident. There is nothing to show that
anything serious had happened between the accused and
Samsher within these two days.
iv. PW-3 is a got-up witness and he was under the thumb of police
and, therefore, he has deposed in favour of the prosecution.
PW-3's police statement was recorded on 29.11.2012. There is
no explanation offered as to why his statement was not
recorded between 23.11.2012 to 29.11.2012 if his tea-stall was
located near the spot of incident and since he had informed the
police about what he had seen.
v. PW-4 is totally an unreliable witness. His deposition must be
left out of consideration. He was not only a chance witness but
his deposition was full of omissions. Learned counsel for the
accused No.1 emphasized the fact that his statement was not
produced with the first charge-sheet, but, it was produced in
the supplementary charge-sheet. PW-4 had admitted that his
house was at a driving distance of five minutes from Deonar
police station. He knew all the accused and PW-1 as well as
PW-2. There was no reason as to why he did not tell what he
knew to the police immediately after the incident.
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vi. There is no connection between the accused No.1 and the
accused No.2. There is no evidence to show that the accused
No.2 was ever working in that area or was sleeping in the shop.
There is a suspicious role of other employee Kapil. The
prosecution has not examined him.
vii. The investigating agency has not investigated in respect of the
CDR or the call made by PW-1 to the accused No.1.
viii. Learned counsel for the accused No.2 submitted that there is
only vague evidence against the accused No.2. He was not
named in the FIR. No suspicion was expressed against him.
14. Learned APP, on the other hand, submitted that in a
case based on circumstantial evidence, 'motive' is an important
factor but absence of 'motive' by itself may not lead the Court to
conclude that the accused had not committed the offence. In
support of his submission, learned APP relied on the judgment of
the Hon'ble Supreme court in the case of Subhash Aggarwal Vs.
State of NCT of Delhi1. He submitted that there are strong
circumstances against both the accused which are proved by the
prosecution beyond reasonable doubt. The evidence of PW-2 and
1 AIROnline 2025 SC 517
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PW-3 shows that both the accused were last seen in the company of
the deceased while he was alive. All of them were seen near the
shop and inside the shop. The incident had occurred shortly and,
therefore, there is proximity of time and place as far as theory of
'last seen together' is concerned.
15. Learned APP further submitted that the conduct of the
accused was highly incriminating. There is evidence to show that
the accused No.1 used to sleep in that shop as a matter of routine,
but only after the incident he was not found. He was not
reachable. He was absconding. Therefore, in the background of
these facts, presence of the accused No.1 near the shop in that
night and absence thereafter is highly incriminating. He has not
discharged his burden under Section 106 of the Indian Evidence
Act to explain the facts which were within his exclusive knowledge.
He was not only absconding on the next day, but he was not found
till he was arrested on 28.11.2012 at his native place. He had left
from the spot of incident without informing his employers. The
evidence shows that the offence could not have been committed
any person singlehandedly; it was a work of at least two people.
The accused No.2 was also seen in the company of the accused
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No.1 at that time and, therefore, the prosecution has proved its
case beyond reasonable doubt.
16. We have considered these submissions. Undoubtedly
the case is based on the circumstantial evidence and, therefore,
'motive' is an important consideration. In this case admittedly the
prosecution has not brought on record any evidence regarding the
motive for the accused to commit murder of the deceased.
However, learned APP was justified in relying on the ratio of the
judgment in the case of Subhash Aggarwal. The Hon'ble Supreme
Court has held in paragraph-24 thus :
"24. Motive remains hidden in the inner recesses of the mind of
the perpetrator, which cannot, oftener than ever, be ferreted
out by the investigation agency. Though in a case of
circumstantial evidence, the complete absence of motive
would weigh in favour of the Accused, it cannot be declared
as a general proposition of universal application that, in the
absence of motive, the entire inculpatory circumstances
should be ignored and the Accused acquitted."
17. The Hon'ble Supreme Court has considered this aspect
in another judgment in the case of Chetan Vs. State of Karnataka 2.
Paragraph-10.11.3 reads thus:
"10.11.3 The law is now well-settled that while proof of motive
2 2025 Cri.L.J. 3251
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certainly strengthens the prosecution case based on
circumstantial evidence, failure to prove the same cannot
be fatal. In this regard, one may refer to G. Parshwanath
vs. State of Karnataka 2010 (8) SCC 593 in which it was
held as follows:
"45. The argument that in absence of motive on the part of the
appellant to kill the deceased benefit of reasonable doubt
should be given, cannot be accepted. First of all every
suspicion is not a doubt. Only reasonable doubt gives benefit to
the accused and not the doubt of a vacillating judge. Very often
a motive is alleged to indicate the high degree of probability
that the offence was committed by the person who was
prompted by the motive. In a case when the motive alleged
against accused is fully established, it provides foundational
material to connect the chain of circumstances. It afforts a key
on a pointer to scan the evidence in the case in that perspective
and as a satisfactory circumstance of corroboration. However,
in a case based on circumstantial evidence where proved
circumstances complete the chain of evidence, it cannot be said
that in absence of motive, the other proved circumstances are
of no consequence. The absence of motive, however, puts the
court on its guard to scrutinize the circumstances more
carefully to ensure that suspicion and conjecture do not take
place of legal proof. There is no absolute legal proposition of
law that in the absence of any motive an accused cannot be
convicted under Section 302 IPC. Effect of absence of motive
would depend on the facts of each case. Therefore, this Court
proposes to examine the question of motive which prompted
the appellant to commit the crime in question."
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18. Thus, though the prosecution has not proved the
motive in this case, the Court will have to consider the other
circumstances seriously. The most incriminating circumstance in
this case is the 'last seen together' theory. In that respect, the
prosecution has relied on the evidence of PW-2 and PW-3 as
discussed above. Their evidence shows that both the accused were
seen in the company of the deceased at around 10.45 p.m. to 11.00
p.m. in the night of 22.11.2012. In the morning, his dead body was
found. However, the incident had occurred in the night. There is
proximity of place obviously, from the place where they were last
seen together. Apart from that, though the dead body was
discovered in the morning, the death had occurred in the night
itself. This is a strong incriminating circumstance which has to be
seen in the background of the departure from routine as far as the
accused No.1 is concerned. The evidence shows that the accused
No.1 Mohan used to sleep in the same shop throughout his
employment. On that particular night also PW-2 and PW-3 had seen
him inside the shop. PW-2 has stated that the accused No.1 and the
deceased were to go to sleep in the shop itself after having their
dinner. Therefore, the accused No.1 was expected to be in the shop
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throughout the night but he had disappeared. The dead body was
lying inside the shop and the accused No.1 had simply absconded
without informing anyone else. Therefore, the 'last seen together'
theory coupled with the accused No.1's conduct together make a
strong case against him. The evidence shows that the accused No.1
was accompanied by the accused No.2. There is a consistent
evidence of PW-2 and PW-3 to that effect.
19. The learned counsel for the Appellants submitted that
the statements of PW-2 and PW-3 were recorded belatedly by the
police. However, that would not make much difference in this
particular case because it was not as if the suspicion was not
expressed against the accused No.1 immediately. In fact, the FIR
was lodged within a very short time. The dead body was discovered
at around 10.15 a.m.. The police station was informed at 10.45
a.m. and the FIR was lodged at around 11.20 a.m.. There was no
scope to deliberate and concoct a false story to express suspicion
against the accused No.1. Therefore, the accused No.1 was not
suspected because of the statements given by PW-2 or PW-3
subsequently, but, because he was always shown as a suspect right
from the statement in the FIR. In this background it is interesting to
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consider the statement given by the accused No.1 in his statement
recorded under Section 313 of Cr.P.C.. He had not only denied
commission of the offence but significantly he has stated that he
never came to Mumbai. This statement obviously is not correct.
There are prosecution witnesses who have consistently deposed
about his employment with PW-1 and PW-2. Therefore, his defence
is not believable. Of course, the conviction cannot be based on his
stray statement under Section 313 of Cr.P.C. but the fact remains
that the accused No.1 was given an opportunity to explain the
facts which were within his exclusive knowledge and he has failed
to do so.
20. As far as PW-4 is concerned, we agree with the
submissions of the learned counsel for the Appellants that he is not
a reliable witness. Though, the omissions pointed out by learned
counsel for the Appellants do not impress us as far as merits are
concerned, but, the fact remains that his statement was recorded
much belatedly and in fact the investigating officer has admitted
that his statement was not forming part of the first charge-sheet
but it was a part of the supplementary charge-sheet. PW-4 was
residing at five minutes driving distance from Deonar police
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station and if he had seen the accused in the night closing the
shutter and going away suspiciously and if he knew the accused as
well as the deceased it was his duty to tell all these facts to the
police but the police produced his statement not with the first
charge-sheet, but with the supplementary charge-sheet. Therefore,
we are not inclined to give much importance to his evidence.
21. Having said this, as discussed earlier, we are satisfied
that the evidence led by PWs-1, 2 and 3 is satisfactory and
consistent. There is evidence proving each of the above
circumstances, forming a complete chain of events that unerringly
points to the guilt of both accused.
22. PW-1 has stated that he tried to contact the accused
No.1 telephonically. He tried to search for him by making phone
calls to his acquaintance but he could not found. Those CDRs are
not part of the investigation; but the deposition of PW-1 in that
behalf cannot be ignored. The consistent evidence shows that the
accused No.1 was working in the shop of PW-1 and was in fact
sleeping in that shop. It would be natural for PW-1 to call him to
ask him about the incident.
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23. Considering the above discussion, we are satisfied that
the prosecution has proved its case beyond reasonable doubt. We
do not find any reason to interfere with the impugned judgment
and order. Consequently the Appeals are dismissed. With dismissal
of the Appeals, the connected Applications are also disposed of.
( ADVAIT M. SETHNA, J.) (SARANG V. KOTWAL, J.)
Deshmane (PS)
PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
DESHMANE
Date:
2025.09.11
10:55:11 +0530
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