Bombay High Court
Abhilash @ Abhiraj Sudhir Mohanpurkar ... vs The State Of Maharashtra on 22 September, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-AUG:25667-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 237 OF 2019
1. Abhilash @ Abhiraj Sudhir Mohanpurkar
Age: 27 years, Occu. : Business,
R/o Plot No.126, Monalisa,
Tilak Nagar, Aurangabad.
2. Sham s/o Laxman Magare,
Age: 25 Years, Occu. : Private Services,
R/o Tadgoor, Tq. Mandnoor,
District Nizamabad, (Telangana),
At present residing at
Plot No.126, Monalisa,
Tilak Nagar, Aurangabad ... Appellants
(Orig. Accused)
Versus
1. The State Of Maharashtra,
Through Police Station Officer,
Police Station Jawahar Nagar,
Aurangabad, Tq. Dist.
Aurangabad.
2. Bharati w/o Vivek Ghode,
Age: 36 years, Occu. : Business,
R/o: Plot No.31, Amrut Gurukunj Housing
Society, Tilaknagar, Aurangabad ...Respondents
(Orig. Complainant)
...
Mr. A. K. Bhosale, Advocate for Appellant No.1
Mr. Mahesh P. Kale, Advocate for Appellant No.2
Mr. S. R. Wakale, APP for Respondent/State
Mr. Chaitanya C. Deshpande, Advocate for Respondent No.2
...
CORAM : NITIN B. SURYAWANSHI AND
SANDIPKUMAR C. MORE, J.J.
RESERVED ON : 02nd SEPTEMBER, 2025
PRONOUNCED ON : 22nd SEPTEMBER, 2025
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JUDGMENT :
[PER NITIN B. SURYAWANSHI, J.]
1. This appeal filed by original accused Nos.1 and 2
challenges the judgment and order of conviction dated 14/12/2018,
passed by learned Additional Sessions Judge, Aurangabad, in
Sessions Case No.150/2017, thereby convicting the appellants for
offences punishable under Sections 302, 364-A, 201, 120-B read
with 34 of the Indian Penal Code and imposing sentence of life
imprisonment. Accused No.1 Abhilash is sentenced to pay total fine
of Rs.2,50,000/-, whereas accused No.2 Sham is sentenced to pay
total fine of Rs.5,000/-, with a default clause.
2. It is the prosecution case that informant Bharati (PW15)
was married with Vivek Ghode, a builder from Kalwa, Thane, in
Mumbai, in the year 1998. While cohabiting with him at Kalwa, she
gave birth to two children i.e. Wardhan and Vajra. On 28/02/2010
Vivek Ghode was murdered. Thereafter she shifted to Aurangabad
with her two children, at her parental house and started running
cutlery shop. She was residing along with her two children, parents
and one deemed brother Chandrakant Khandare. Accused No.1
Abhilash is resident of Gurukunj Housing Society, Tilaknagar,
Aurangabad. Accused No.2 Sham was serving in the house of
accused No.1. On 27/02/2017, at 04:00 p.m. informant left her son
Wardhan at Zambhad Estate for attending tuition. At 06:30 p.m. she
picked him up from tuition and left him at home and went to her
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shop. She came back home at 08:45 p.m. Since Wardhan had not
come home, she thought that he might be playing with his friends.
Therefore, she sent Chandrakant to bring him back. He returned
after some time and told her that Wardhan was standing with
Abhilash, Sham and one Sachin in front of the house of Vijaywargiya
and he refused to come. As Wardhan did not return home, she along
with her mother started searching for him. After one and half hour
accused No.1 Abhilash came to her house, she asked him
whereabouts of Wardhan. He told that Wardhan left before one hour
telling that he is going home. At that time accused No.1 picked a
chit from the door and gave it to them. Her father read the chit, it
was as follows:-
"iksyhlkauk lkafxrys rj] eqykyk ek:u Vkd.;kr ;sbZy] ikp
djksM uxj iw.ks gk;os jksMoj lqo.kZT;ksr /kkck LekbZy LVksu
gkWVsy leksj jksM oj iSls Vkdwu n;k] iSls Vkdwu fnY;koj
eqyxk lq[k:i ?kjh ijr ;sbZy] dks.kkyk lkafxrys rj eqykyk
ek:u Vkd.;kr ;sbZy-"
After reading the chit she called her uncle Laxmikant
Khadke and requested him to come home. On his arrival he raised
suspicion about accused No.1 Abhilash as to how come the chit was
found by him only. He and Chandrakant started making inquiry with
accused No.1 Abhilash. Accused No.1 told them that he is from good
family and left from there. Though Chandrakant and Laxmikant
followed him to his house, he gave evasive replies. Informant
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suspected that accused No.1 might have kidnapped her son. She,
therefore, went to Jawahar Nagar Police Station and narrated the
incident to police. Police were about to go to her house, at that
time, people from the society brought accused Abhilash and Sham
to the Police Station. During inquiry they broke down and admitted
that they kidnapped Wardhan in car and took him to Daulatabad
Ghat and committed his murder by smothering and strangulation
and threw his dead body at Shrey Nagar Nala. Police, Laxmikant
Khadke, Chandrakant, Kiran, Shantilal Pawar and Vijaywargiya went
to Shrey Nagar with accused. After some time her uncle Laxmikant
Khadke and others came back and told her that accused No.1 and 2
have shown the dead body of Wardhan, which was lying at Shrey
Nagar Nala, Aurangabad. PW33 Kashinath Mahandule, P.S.I.,
prepared panchanama and recorded their disclosure statement and
recovered the dead body of Wardhan at the behest of accused No.1
Abhilash and accused No.2 Sham. The dead body was then sent to
the CIGMA Hospital.
3. On the basis of report lodged by informant Bharati
Crime No.74/2017 for offences punishable under Sections 364-A,
302, 120-B, 201 of I.P.C. was registered with Jawahar Nagar Police
Station. Investigation was entrusted to PW36 Manish Kalyankar, P.I.,
who arrested the accused, seized their mobile phones and car
bearing No. MH-01-BF-6088 parked near the house of accused No.1.
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Incriminating articles found in the car were seized under the seizure
panchanama.
Considering the seriousness of offence Police
Commissioner, Aurangabad, formed Special Investigation Team (SIT)
for investigation. PW14 Dr. Rahul Khatavkar, API, PW38 D.P. Kopnar,
P.S.I. and Police Constables S. R. Badgujar, Viresh Ban and Shaikh
Nawab Shaikh Gaffar, were members of the SIT headed by PW36
Kalyankar. During investigation PW14 collected CCTV footage of
27/02/2017 from Girija Samarth Petrol Pump, Daulatabad Gram
Panchayat, Shankar Chest Hospital, Vardman Automobile,
Renukadas Vaidya's home, Kidzee High School, downloaded it and
seized the DVDs under the panchanamas, Call Detail Records of
mobile numbers of both the accused were called from respective
mobile companies. On the basis of CDR and CCTV footage and the
information furnished by the accused, PW14 prepared map of the
route showing places from where Wardhan was kidnapped,
murdered and his body was thrown. PW33 prepared inquest
panchanama. At that time, some hair were found on the clothes and
in the fist of Wardhan. Autopsy on the body of Wardhan was
conducted at the Ghati Hospital. Accused No.1 Abhilash was having
scratch injury on his chest. He was medically examined. During
investigation specimen handwriting of accused No.1 and 2 was
obtained and those were sent to handwriting expert along with the
disputed chit. PW36 forwarded all the incriminating material,
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viscera, blood sample of accused to the CA, Aurangabad. DVD, DVR,
screenshots obtained from CCTV footage were sent to Forensic
laboratory, Pune, for analysis. DNA sample of Wardhan with blood
sample of accused and hair of accused were sent to the Forensic
laboratory, Kalina, Mumbai. All these reports were received during
investigation. Two burnt chits were seized at the instance of
accused No.2 Sham, one from the roof of house of accused No.1
Abhilash and another from compound of Lion statue. One
handkerchief and chappal were seized from Balvatika Garden,
Gurukunj housing society, Aurangabad, at the instance of accused
No.1 Abhilash. After completion of investigation charge-sheet was
filed.
4. The Trial Court framed charge against accused for
commission of offences punishable under Sections 364-A, 302, 201
and 120-B of I.P.C. Accused abjured the guilt and claimed to be
tried. Their defence is of total denial and false implication.
Prosecution examined 41 witnesses in support of it's case. Accused
have filed their written statement under Section 313 (5) of Cr.P.C.
On appreciation of evidence trial Court convicted the accused.
Hence, the appeal.
5. Heard learned advocates for appellants, learned APP for
respondent / State and learned advocate for respondent No.2 /
informant.
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6. Learned advocate for appellant No.1 Abhilash has
assailed the conviction submitting that there is delay in lodging the
FIR. The alleged recovery of dead body and incriminating articles
from the car fo accused No.1 is prior to the registration of FIR.
Therefore, it is inadmissible in evidence. He submits that as per
prosecution, Chandrakant has lastly seen deceased Wardhan with
accused No.1, however, Chandrakant is not examined. Therefore,
the prosecution has failed to prove that deceased was lastly seen in
the company of accused No.1. He submits that motive behind the
commission of offence as per the prosecution is to demand ransom.
However, ransom is demanded by giving the chit after commission
of murder which is highly improbable. If the accused wanted ransom
amount, the same would have been possible only if the deceased
had been alive. If the murder was already committed then it is not
believable that accused No.1 would go to the house of deceased
and give the ransom chit to them. He submits that conduct of
accused No.1 Abhilash of handing over the chit lying at the door of
informant proves his innocence. If at all he had committed the
murder of Wardhan, then he would not have handed over the chit to
informant. According to him, therefore, prosecution has failed to
prove the motive. He further submits that the evidence of CCTV
footage is not reliable as the time in that is mismatched with Indian
Standard Time (IST). He submits that it is highly improbable that
within one hour accused committed murder at Daulatabad and
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joined informant and others in search of the deceased. He further
submits that apart from CCTV footage there is no evidence of last
seen together. According to him, contents of ransom chit are not
proved. The recovery of notebook at the instance of accused No.2
Sham is made from the kitchen of a restaurant, which is not
believable as the hotel owner is not examined. He further submits
that prosecution witnesses are got up witnesses. According to him,
scratch mark on the chest of accused No.1 Abhilash was detected
while he was in the custody of police, hence, the same is doubtful.
By pointing out admission of Nodal Officer that if the mobile is
switched off then the location cannot be traced, he submits that the
evidence about location of mobile phones of accused cannot be
believed.
7. He, therefore, submits that prosecution has failed to
prove the complete chain of circumstances against the accused and
therefore, accused No.1 is entitled for benefit of doubt. He has also
filed written notes of arguments.
8. Learned advocate for appellant No.2 Sham adopted the
arguments of learned advocate for accused No.1. He further
submits that accused No.2 was servant appointed by the father of
accused No.1 as his caretaker. His handwriting is found in the
ransom chit. Notebook from which the page was torn to write the
said chit was seized from the kitchen of a restaurant, which was
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accessible to all. As the hotel owner is not examined the said
seizure cannot be believed. According to him, there is no evidence
connecting accused No.2 with the present crime. Except presence of
accused No.2 with accused No.1, there is no evidence showing the
role played by accused No.2 in the present crime. He, therefore,
submitted that accused No.2 is entitled for acquittal.
9. On the other hand, learned APP has strenuously
opposed the appeal and has supported the judgment and order of
the Trial Court. He submitted that to prove the motive six witnesses
were examined by the prosecution. It has come in the evidence of
PW31 handwriting expert that handwriting of accused No.2 matches
with the handwriting on the ransom chit. Notebook of accused No.2
was recovered at his instance. The same is proved by PW23.
Recovery of ransom chit (Article-B) is proved by PW1. Evidence of
PW15 informant shows that handing over of the ransom chit by
accused No.1 to the informant is supported by PW8. Last seen
theory is proved by PW21 neighbour of accused No.1 and the
deceased. PW11 is the employer of petrol pump where accused
No.1 filled petrol in the car. The said evidence is supported by CCTV
footage recovered by the SIT. PW14 member of the SIT has
recovered the CCTV footage and PW5 and PW9 are panchas to the
said recovery. PW12, PW16, PW17, PW18, PW19 and PW20 have
given 65-B certificates to the said CCTV footage. PW22, PW34 and
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PW39 are the Nodal Officers who have proved tower locations of
mobile numbers of accused Nos. 1 and 2, which was found at the
spot of incident at the relevant time. PW22 has proved the CDR and
tower location of accused No.1. Though tower location of mobile
number of accused No.2 was not found since no calls were made by
him at the relevant time, however, in CCTV footage he is seen along
with accused No.1 and the deceased. According to him, the dead
body is recovered at the instance of accused. Recovery of dead
body is proved by panch PW6. Panch PW5 has proved recovery of
chappal of the deceased at the instance of accused No.1. CA reports
support the prosecution case. He, therefore, submitted that the
prosecution has proved complete chain of circumstances which
points to the guilt of the accused. In support of his submissions, he
relied on the Dharam Deo Yadav Vs. State of Uttar Pradesh 1.
He, therefore, submits that there is no merit in the appeal and the
same may be dismissed.
10. Learned advocate for respondent No.2 informant
adopted the arguments of learned APP.
11. Heard learned advocates for the respective parties and
learned APP. With their assistance we have perused the record.
12. The present case is a case which is based on the
circumstantial evidence. The principles of appreciation of evidence
in the case based on circumstantial evidence are enunciated in
1 (2014) 5 SCC 509
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Sharad Birdhi Chand Sarda Vs. State Of Maharashtra2, as
follows:-
"152. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal
distinction between 'may be proved' and 'must be or should
be proved' as was held by this Court in Shivaji Sahabrao
Bobade and Another Vs. State of Maharashtra, (1973) 2 SCC
793, where the following observations were made:
"Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
can convict and the mental distance between 'may be'
and 'must be' is long and divides vague conjectures
from sure conclusions."
(2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency.
(4) they should exclude every possible hypothesis except the
one to be proved, and;
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with
the innocence of the accused and must show that in all human
probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence."
13. While convicting the accused trial Court has relied on
following circumstances:
1) Homicidal death of Wardhan
2 1984 AIR 1622
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2) Motive
3) Recovery of dead body at the instance of accused
4) Recovery of incriminating material at the instance of accused
5) Theory of Accused and Deceased Last Seen Together
6) Electronic Evidence of CCTV Footage
7) Scientific Evidence
8) Non-explanation of incriminating circumstances by the
accused
We will now deal with each of the circumstances independently.
1] Homicidal death of Wardhan:
14. PW1 Shantanu Joshi has proved the inquest
panchanama (Exhibit-50). During panchanama he noticed injuries
on the cheek, neck, stomach, elbow and hand of Wardhan. Also,
there were marks of throttling. Dr. Sachin PW2 has conducted
autopsy on the dead body of Wardhan. He proved postmortem
report Exhibit-60. During postmortem he found following injuries on
the dead body:-
1] Multiple crescent shaped abrasions of sizes varying from 0.2
cm x 0.2 cm present over both ala of nose, philtrum, bridge of nose
and both cheeks surrounding nasal openings and mouth over an
area of size 7 cm x 5 cm, reddish.
2] Contusion of size 1 cm x 0.8 cm present over upper lip, 0.5
cm to right of mid-line, reddish.
3] Contusion of size 1.2 cm x 0.8 cm present over lower lip, 0.5
cm to left of mid-line, reddish.
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4] Contused abrasion present on inner aspect of both lips except
angle of moth, of size 5 cm x 0.8 cm, reddish.
5] Contused abrasion of size 0.5 cm x 0.5 cm present over
upper 1/3rd of posterior aspect of helix of left ear pinna, reddish.
6] Linear abrasion of size 2.5 cm x 0.1 cm present over left sub-
mandibular region, reddish.
7] Irregular shaped contused pressure abrasion of size 7 cm x
1.5 cm present over right sub-mandibular region, lower aspect,
extending from posterior ½ of body of mandible to right angle of
mandible, hard and parchmentized, reddish.
8] Irregular shaped contused pressure abrasion of size 4 cm x
1.5 cm present over fight lateral aspet of neck, 0.5 cm behind and
below injury number, hard and parchmentized, reddish
9] Irregular shaped contused pressure abrasion of size 2.5 cm x
1 cm present over right lateral aspect of neck, 1 cm below injury
number, hard and parchmentized, reddish.
10] Irregular shaped abrasion of size 2 cm x 0.3 cm, obliquely
placed, present over antero-lateral aspect of right side of neck, at
the level of thyroid cartilage, 1.5 cm below mandible and 3.5 cm
from midline, reddish.
11] Irregular shaped contused pressure abrasion of size 3.5 cm x
0.8 cm present over right lateral aspect of neck, below the level of
thyroid cartilage, 4 cm from midline, hard and parchmentized,
reddish.
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12] Multiple crescent shaped abrasions of sizes varyng from 0.5
cm x 0.1 cm to 1 cm x 0.5 cm present at places suggestive of finger
nail markings over an area of size 4 cm x 3 cm over right angle of
mandible and right infra-auricular region, reddish.
13] Multiple crescent shaped abrasions of sizes varying from 0.5
cm x 0.1 cm to 0.5 cm x 0.5 cm present at places suggestive of
finger nail markings over antero-lateral aspect of right side of neck
surrounding and intermingling with the injuries 7) to 11), reddish.
14] Irregular shaped contused pressure abrasion of size 5 cm x
0.8 cm present over left antero-lateral aspect of neck, horizontally
placed, 3.5 cm from midline and at the level of thyroid cartilage,
hard and parchmentized, reddish.
15] Irregular shaped contused pressure abrasion of size 2.5 cm x
0.5 cm present over left anterior aspect of neck, 3 cm from midline
and below the level of thyroid cartilage, 1 cm below injury number
14, reddish, hard and parchmentized.
16] Pressure abrasion of size 2 cm x 1 cm present over left
anterior aspect of neck, 4 cm from midline and below the level of
thyroid cartilage, 1 cm below and behind injury number 15, reddish,
hard and parchmentized.
17] Multiple crescent shaped abrasions of sizes varying from 0.5
cm x 0.1 cm to 0.5 cm x 0.5 cm present at places suggestive of
finger nail markings over antero-lateral aspect of left side of neck
surrounding and intermingling with the injuries 14) to 16) reddish.
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18] Horizontally placed pressure abrasion of size 9 cm x 0.5 cm
present over nape of neck, 6 cm below occiput, running antero-
inferiorly, reddish.
19] Abrasion of size 0.5 cm x 0.5 cm present over left mastoid
prominence, reddish
20] Graze abrasion of size 6 cm x 1.5 cm, obliquely placed,
present over left infra-scapular region of back, directed above
downwards and from lateral to medial, reddish
21] Graze abrasion of size 4 cm x 0.5 cm, obliquely placed,
present over left back, 0.5 cm below injury number, directed above
downwards and from lateral to medial, reddish.
22] Graze abrasion of size 6 cm x 1.5 cm, obliquely placed,
present over left back, 0.5 cm below injury number, directed above
downwards and from lateral to medial, reddish.
23] Multiple abrasions of sizes varying from 0.2 cm x 0.2 cm to
0.5 cm x 0.5 cm present over antero-lateral aspect of right flank,
over an area of size 8 cm x 3 cm, reddish
24] Multiple abrasions of sizes varying from 0.3 cm x 0.2 cm to
0.8 cm x 0.5 cm present over back at places, reddish.
25] Irregular shaped abrasion of size 3 cm x 3 cm present over
posterior aspect of right elbow, reddish
26] Irregular shaped abrasion of size 4 cm x 3 cm present over
posterior aspect of left elbow, reddish.
27] Irregular shaped abrasion of size 2 cm x 1.5 cm present over
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anterior aspect of right knee, reddish.
28] Irregular shaped abrasion of size 1 cm x 1 cm present over
anterior aspect of left knee, reddish
29] Irregular shaped abrasion of size 2 cm x 1.5 cm present over
anterior aspect of upper 1/3rd of left leg, reddish
30] Irregular shaped abrasion of size 3 cm x 0.4 cm present over
anterior aspect of middle 1/3rd of left leg, reddish
31] Irregular shaped abrasion of size 0.2 cm x 0.2 cm present over
antero-medial aspect of lower 1/3rd of left leg, reddish.
All the injuries were ante-mortem and fresh. He also
found internal injury, i.e. under scalp contusion of size 2 cm x 1 cm
present over left frontal region reddish, there were multiple
petechial hemorrhages present under-scalp at places. There was no
fracture in skull. According to him, on internal examination of neck
dissection, he found multiple contusions of sizes varying from 0.5
cm x 0.5 cm to 1.5 cm x 1 cm, present in the strap muscle of neck,
below the level epiglottis, corresponding to the level of pressure
abrasions mentioned in column No.17, dark reddish. Both the lungs
on palpation, soft and spongy, there were presence of multiple
petechial hemorrhages at the inter-lobar surfaces of the lungs. On
cut section, congested reddish frothy fluid oozes. He deposed that
there was no foreign material in the lungs. He opined that the
death of Wardhan Ghode was homicidal in nature and the time of
probable death was in between 6 to 18 hours prior to
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commencement of the postmortem. He opined that cause of death
of Wardhan was due to strangulation with smothering. Attention of
this witnesses was drawn to the handkerchief, which was seized at
the instance of accused No.1 Abhilash and he was asked whether by
handkerchief death can be caused by strangulation. On inspection
of handkerchief he opined that injury No.7 to 11, 14 to 16 and 18
mentioned in column No.17 of postmortem report are possible by
handkerchief and in ordinary course of nature the injuries are
sufficient to cause death. From his cross-examination it is clear that
the defence has not seriously challenged the contention that cause
of death of Wardhan is due to strangulation and smothering and it
was homicidal death. Thus, the prosecution has proved homicidal
death of Vardhan.
2] Motive:-
15. To prove the motive prosecution has examined PW15
informant Bharati, PW30 Indranil Pathak, friend of accused No.1 and
PW8 Laxmikant Khadke. PW15 deposed in terms of FIR lodged by
her that she knew accused No.1 Abhilash as he used to reside in
their colony. He used to play with her children. He was having two
sports bike and one sports car of saffron colour. The car was open
top. His mental and physical condition was well. Incident took place
on 27/02/2017. On that day at 04:00 p.m. she left Wardhan for
tuition at Zambad estate. At 06:30 p.m. she brought Wardhan back
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to house and went to her shop. At 09:00 to 09:15 p.m. she received
call from her mother telling that Wardhan had gone to Abhilash and
bring him back while returning home. She came back to home and
noticed that Wardhan had not come. She then sent Chandrakant to
search Wardhan. He returned back and told her that accused No.1
and 2, Sachin and Wardhan were standing in front of the house of
Vijaywargiya. Though Chandrakant called Wardhan, he refused to
come home. Thereafter they started to search Wardhan. She went
near the house of accused No.1 Abhilash. Parents of accused No.1
Abhilash were watching TV. She asked them whereabouts of
accused No.1 Abhilash and Wardhan. Mother of accused No.1
Abhilash told her that he had gone with his friends. Informant told
father of Abhilash that he is ferrying Wardhan in his car since two
days. She also requested him to call accused No.1 Abhilash and
inquire whether Wardhan is with him. Though accused No.1 was
called his phone was found switched off. On inquiry with Sachin,
resident of their colony, he told that Wardhan went outside with
accused No.1 Abhilash. Thereafter she along with the residents of
colony tried to search Wardhan. After one and half hour she noticed
accused No.1 Abhilash standing on the road in front of her house, at
about 09:30 p.m. She asked him about Wardhan. He told her that
Wardhan left before one hour by saying that he is going to his house
and he was not knowing his whereabouts. Thereafter, she went
inside the house. Accused No.1 Abhilash picked up one chit from the
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main door of her house and handed it over to her father. In the chit
there was demand of ransom of Rs.5 Crores. The said amount was
to be kept in front of Suvarna Jyot Dhaba near Smile stone Hotel.
The said amount was to be thrown on the road and thereafter the
boy would return safe. If anybody is informed, the boy would be
killed. It was also written not to inform police, else the boy would be
killed. She got scared after reading the chit. She called Khadke
Mama (PW8), who used to reside in their colony. He came to her
house and inquired with accused No.1 Abhilash. During inquiry
accused No.1 told that he is from good family and he does not know
whereabouts of Wardhan. By saying so accused No.1 went away.
PW8 and Chandrakant suspected as to how the chit was found by
accused No.1 only. Thereafter, they followed accused No.1. After
some time they returned back and told that accused No.1 Abhilash
and accused No.2 Sham were giving evasive replies and they
suspect them. She suspected that both the accused might have
kidnapped Wardhan. He, therefore, asked him to go to Jawahar
Nagar Police Station with chit.
Thereafter, she along with Chandrakant went to Jawahar
Nagar Police Station at about 11:00 to 11:15 p.m. and narrated the
entire incident to police. After hearing the incident some police went
to her house, she was asked to sit in one room. After some time
accused No.1 Abhilash, accused No.2 Sham, Khadke Mama,
Vijayvargiya, Pawar and Shantilal uncle came to the police station.
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20 237-19-CrApl.odt
Police inquired with accused No.1 and 2. At about 12:00 a.m. she
came out of the room and saw police along with accused and others
going out of the police station. In the morning at about 06:00 a.m.
(PW8) Khadke came to her in the police station. He disclosed her
that accused No.1 and 2 had committed murder of Wardhan at
Daulatabad Ghat for ransom. The body of Wardhan was found lying
in a drain at Shrey Nagar and it was shown by the accused. She
lodged report of the incident at about 07:00 to 07:30 a.m. (Exhibit-
131). Printed FIR is at Exhibit-132. On 13/03/2017 her
supplementary statement was recorded. She identified the chit
(Article-B) and clothes of Wardhan (Article - C/1 to C/4) and pair of
chappal of Wardhan (Article-Q). She also identified accused in the
Court.
16. Though lengthy cross-examination was conducted
nothing favourable to the accused can be elicited in her cross-
examination. She admitted that while going to the police station on
27/02/2017 in the night she had carried the chit with her and
showed it to the police. Police did not seize the chit at that time.
Portion in her statement dated 28/02/2017 i.e. " rso<;kr vfHkyk'kus
vkeP;k ?kjkps eq[; njoktkps toGqu ,d fpB~Bh mpyqu vkeP;k gkrkr
fnyh" was confronted to her. She did not remember whether she has
stated this portion while lodging the report. She did not remember
whether she had stated portion marked 'A' and 'B' in her
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21 237-19-CrApl.odt
supplementary statement to police i.e. " FkksM;kp osGkr ek>h
vkbZ ?kjkckgsj ;sr Eg.kkyh fpB~Bh feGkyh c?k R;kr dk; vkgs- R;ko:u
ek÷;k ?kjkr vkys vlrk vfHkyk'k vkeP;k ?kjkr lks¶;koj clqu ik.kh fir
gksrk o R;kph vkbZ i.k vkeP;k ?kjkr gksrh " and "vkEgh ppkZ djhr
vlrkauk ek÷;k ofMykauh vkEgkyk fpB~Bh vfHkyk'k eksguiqjdj ;kus fnY;kps
lkafxrys".
17. (PW8) Laxmikant Khadke was serving in police
department. He retired in March, 2018. Informant is the daughter of
his cousin brother. On 27/02/2017, he was at his house. At about
09:45 p.m. he received a phone call from the informant. She told
that Wardhan was missing from 08:30 p.m. and she has received
one chit. She, therefore, requested him to come to her house. He
then went to her house. Other society members had gathered at her
house. Even Abhilash was also there. Informant's father told him
that accused No.1 Abhilash got the chit in the door. He read the chit.
In the chit it was written that informant's son is kidnapped and Rs.5
Crore in Rs.500 denomination was demanded. The amount was to
be kept near Smile Stone Dhaba on Nagar - Pune road. He identified
the chit (Article-B). After reading the chit he made inquiry with
accused No.1 Abhilash. He asked accused No.1 as to how the chit
was found by him only and that Wardhan was with him lastly. He
suspected accused No.1 Abhilash. Due to his inquiry accused No.1
got frightened and went away from the house of informant. He,
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22 237-19-CrApl.odt
Chandrakant and some other colony members followed him upto his
house. Accused No.1 boarded in his sports car and tried to go away
from the spot. He saw one person sitting in the backside of the
sports car, he was not wearing clothes on the upper part of his body.
Accused No.1 sat on the driving seat of the sports car. As they were
trying to stop him, accused No.1 started the car and tried to give a
dash to him. He turned to the other side. Accused No.1 took the car
in reverse. While reversing the rear portion of the car hit the board
of society. Thereafter he ran away from the spot in the car, at about
10:30 p.m. He asked Kiran to follow him on motorcycle. By seeing
the crowd and commotion, parents of accused No.1 Abhilash came
there. He narrated all the incident to them. Father of Abhilash told
him that he will call Abhilash. After ten minutes Kiran came back
and told that Abhilash ran away by speeding the car and he could
not chase him. He, therefore, informed to the control room about
the car. He returned to the house of informant and advised her to
lodge report to police station. As such, at about 11:00 p.m.
informant Bharati went to the police station along with
Chandrakant.
18. Thereafter, along with the members of society he went
to the house of Abhilash. The car was parked there. Abhilash was in
the house. He again asked about the incident to Abhilash. He told
that he did nothing. Accused No.2 Sham was also there. He was the
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23 237-19-CrApl.odt
same person who was seated in the backside of the car. He told
Abhilash that, if he has done nothing he should come to police
station. Accordingly Abhilash sat on his motorcycle and Sham sat on
the motorcycle of Kiran. They went to Jawahar Nagar Police Station.
On the way police from Jawahar Nagar Police Station met them.
They reached Jawahar Nagar Police Station at about 11:25 p.m.
Informant Bharati and Chandrakant were in the police station at that
time. They were sitting in one room. Police took Abhilash and Sham
in one room for inquiry. PI Kalyankar, PSI Mahandole and other
police staff was present there. Police made inquiry with Abhilash
and Sham about Wardhan. Abhilash and Sham told that they
kidnapped Wardhan and committed his murder at Khultabad Ghat.
They threw dead body of Wardhan in the Nala of Shrey Nagar.
Thereafter they all went to Shrey Nagar along with accused at about
11:30 p.m. As per the instructions of Abhilash they reached at Shrey
Nagr near one Nala at about 12:00 a.m. They searched for Wardhan
in the mobile torch light and the light of police jeep. The dead body
was found lying in the Nala. The body was taken away from Nala
and shifted to CIIGMA Hospital. They were advised to take the dead
body of Wardhan to Ghati Hospital. The dead body was referred to
Ghati Hospital, Aurangabad, at about 03:00 a.m. to 03:30 a.m. From
there he came to the house of informant at about 04:45 a.m. and
narrated the incident to the parents of informant. Then he went to
Jawahar Nagar Police Station at about 06:00 a.m. and narrated the
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24 237-19-CrApl.odt
incident to informant Bharati. He was at the police station upto
07:45 a.m. Informant Bharati then lodged report in the police
station. He identified accused in the Court and the photographs of
Wardhan (Article DD/1 to DD/4 collectively).
19. It is clear from the evidence of PW8 Khadke that at the
instance of informant he came to her house and after knowing
about the kidnapping and ransom chit found by accused No.1, he
suspected accused No.1. When confronted accused No.1 gave
evasive replies. Therefore, PW8 advised informant to go and lodge
the report with police station. PW1 Shantanu Joshi has proved the
seizure of chit from informant. He is panch to the seizure
panchanama (Exhibit-52). Evidence of informant and PW8 is
consistent and reliable. The handwriting on the chit (Article-B) is
proved to be of accused No.2.
20. Prosecution has examined PW30 Indranil Pathak a friend
of accused No.1 Abhilash. He deposed that he knows accused No.1
as he was also studying in Deogiri College, where accused No.1 was
pursuing B.Com course. He also knows accused No.2 Sham.
Accused No.1 introduced accused No.2 to him as brother of his
friend. Accused No.1 had told him that he wanted to kidnap a boy
for money, as he was in need of money to spend the same on his
girlfriends. In his presence accused No.1 made inquiry with Yashraj
and Sagar and their family background and vehicles. Accused No.1
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25 237-19-CrApl.odt
had disclosed him that there is no elderly person in the house of
Wardhan and his mother is having a shop and car. Wardhan is from
rich family and if he is kidnapped he will get money. PW30 asked
him as to why he is doing such type of activities. Accused No.1
asked him to assist, however, he refused to do so. Accused No.1
was having a car and bike due to which small boys used to get
attracted towards him. Accused No.1 used to watch CID and
Savdhan India serials on Television. He told that if arrested in such
cases, after sometime the accused would be released from jail by
taking aid of illness. Prior to one day of Shivratri i.e. on 23 rd he went
along with accused No.1 to Pune, in the temple of Jungali Maharaj
for offering prayers. While returning from Pune, when they were
passing from Ghod river bridge, accused No.1 told him that if a
person is thrown or if a person jumps from that bridge what would
happen. As he could not understand in what respect accused No.1
was saying so, he told accused No.1 not to ask such questions to
him and he is not interested in such things. Thereafter on
27/02/2017 at 04:30 p.m. he had gone to the house of accused
No.1. They both went for drinking at Saili Bar. One person named
Kulkarni met them. There were talks between them about Bramhan
Seminar and his girlfriends. Accused No.1 did not take any drink.
Since PW30 took excess drink he was feeling drowsy. Accused No.1
called accused No.2 there. Thereafter accused No.1 and 2 and
Kulkarni carried him to his home at about 05:30 to 06:00 p.m. After
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26 237-19-CrApl.odt
one to one and half hour he called accused on his mobile, he told
that he was driving and would talk with him on the next day. His
evidence could not be shaken in the cross-examination.
21. Evidence of PW15 and PW8 was assailed by the
appellants on the ground that they are interested witnesses and
their evidence shall not be relied upon. Evidence of PW30 is assailed
on the ground that his statement under Section 161 was recorded
belatedly and therefore, his evidence should be disbelieved. PW15
informant being mother of the deceased and PW8 being her relative
residing in the same locality, their presence is natural.
22. It is well settled that "a close relative cannot be
characterised as an "interested" witness. He is a "natural" witness.
His evidence, however, must be scrutinised carefully. If on such
scrutiny, his evidence is found to be intrinsically reliable, inherently
probable and wholly trustworthy, conviction can be based on the
"sole" testimony of such witness. Close relationship of witness with
the deceased or victim is no ground to reject his evidence. On the
contrary, close relative of the deceased would normally be most
reluctant to spare the real culprit and falsely implicate an innocent
one." [See Namdeo Vs. State of Maharashtra3]
23. Merely because statement of PW30 under Section 161
of Cr.P.C. was recorded late, that by itself is not sufficient to discard
his otherwise reliable testimony. Only because his statement was
3 (2007) 14 SCC 150
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27 237-19-CrApl.odt
recorded after five to six days of the incident his evidence which is
otherwise reliable and trustworthy cannot be disbelieved. His
evidence also corroborates the case of prosecution on the point of
motive of accused No.1.
24. Learned advocate for appellant No.1 by relying on
Nagaraj Vs. State of Tamil Nadu 4, Wakkar and Another Vs.
State of U.P.5 and Babu Vs. State of Kerala6, has submitted that
Wardhan was already dead when ransom chit was given, hence,
demand of ransom cannot be said to be the motive of appellant
No.1. He, therefore, submitted that prosecution has failed to prove
the motive on the part of appellant No.1.
25. In Chunni Bai Vs. State of Chhattisgarh 7, the Apex
Court has held,
"47. Motive is usually the basis for causing the
"intention" to commit any crime, but it is highly elusive
and difficult to prove as it remains hidden in the deep
recesses of the mind and is not comprehensible to
others, unless disclosed by the perpetrator. Though
under the law, it is absolutely not necessary that to
prove an offence, motive is also required to be
established if the intention or the mens rea can be
safely inferred from the surrounding facts. But where
the motive which can provide the basis for the intention
appears to be totally missing, the court has to be very
circumspect in drawing the inference of the proof of the
presence of intention.
48. For committing a serious crime like homicide,
4 (2015) 4 SCC 739
5 (2011) 3 SCC 306
6 (2010) 9 SCC 189
7 AIR 2025 (SC) 2370
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28 237-19-CrApl.odt
there could be various motivating factors. One may
commit the crime of homicide propelled by anger or
motivated by insult, humiliation or jealousy. Other
motivating factors may be to exact revenge or by way
of retribution or to hide certain crimes already
committed. One may also commit homicide to gain
undue pecuniary benefit or otherwise. One may commit
such a crime out of sheer frustration and dejection with
life channelising through violent acts. One may commit
such crime because of superstitious beliefs.
There could be numerous factors, and it may not
be possible to contemplate and mention all such
situations that motivates a person to commit violent
crime like homicide. While proof of motive of the crime
may strengthen the prosecution's case in proving the
guilt of the offender, failure to prove motive is not fatal
if the offence is otherwise proved through direct and
incontrovertible evidence. At the same time, absence of
any motive may benefit the accused under certain
circumstances, for the ingredient of intention which
constitutes the mens rea has also to be proved."
26. In Subhash Aggarwal Vs. State of NCT of Delhi 8,
the Apex Court has held that,
"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."
27. In this connection we deem it useful to refer to the
observations of Apex Court in State of Himachal Pradesh Vs. Jeet
Singh9:
8 2025 SCC OnLine SC 808
9 1999 SCC (Cri) 539
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29 237-19-CrApl.odt
"33. No doubt it is a sound principle to remember that every
criminal act was done with a motive but its corollary is not that
no criminal offence would have been committed if the
prosecution has failed to prove the precise motive of the
accused to commit it. When the prosecution succeeded in
showing the possibility of some ire for the accused towards the
victim, the inability to further put on record the manner in
which such ire would have swelled up in the mind of the
offender to such a degree as to impel him to commit the
offence cannot be construed as a fatal weakness of the
prosecution. It is almost an impossibility for the prosecution to
unravel the full dimension of the mental disposition of an
offender towards the person whom he offended."
28. Applying the aforesaid ratio to the facts of the present
case and after considering the evidence on record it is clear that the
prosecution, by leading cogent and reliable evidence, has proved
the motive of appellants to commit the crime in question. The
decisions in Nagaraj (supra), Wakkar (supra) and Babu (supra)
are rendered in different facts and are of no assistance to the
appellants.
29. It appears from the prosecution evidence that accused
No.1 and 2 hatched a conspiracy to kidnap Wardhan and commit his
murder. As a part of conspiracy on 26/02/2017 accused No.1
Abhilash wrote a chit and asked accused No.2 Sham to write similar
type of chit. He thereafter tried to burn the chit written by him on
the roof of his house, but the chit was not fully burnt. Accused No.2
picked up the residue part of the chit and threw it near the Statue of
Lion in the compound at Seven Hill area. During investigation
accused No.2 showed the place where he and accused No.1 wrote
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30 237-19-CrApl.odt
the chit, where they burnt the chit and where the half burnt chit was
thrown. PW36, Investigation Officer Kalyankar prepared disclosure
panchanama (Exhibit- 78 and 80) at the instance of accused. The
accused led police and panchas to the statue of lion. From there
accused No.2 gave recovery of half burnt chit. Then he took them to
the roof of house of accused No.1 and from there piece of half burnt
chit was recovered. Thereafter he produced one notebook and pen
from the house of accused No.1. All these articles were seized vide
seizure panchanama (Exhibit- 79 and 81). These panchanamas are
proved by PW4 Ramesh Kathar. Specimen handwriting of accused
No.1 and 2 were obtained vide panchanamas (Exhibits- 226 and
227) and those were forwarded to the handwriting expert though
PW26 who handed over the envelop in the office of handwriting
expert on 22/03/2017 and obtained the acknowledgment which also
contains letter dated 21/03/2017 (Exhibit-167) addressed by the
investigating officer to handwriting expert. Disputed chit was
marked as Exhibit-Q1 and Q2. The chit recovered from compound of
lion statue was marked as Exhibit-Q3, notebook seized from the
house of accused No.1 was marked as Exhibit-Q4. Specimen
handwriting of accused No.2 was marked as S-A-1 to S-A-6.
Specimen handwriting of accused No.1 was marked as S-B-1 to S-B-
6. Natural handwriting of accused No.2 which was seized from the
notebook at Bhavani hotel was marked as Exhibits- N-1 to N-7. In
the letter (Exhibit-167) handwriting expert was called upon to give
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31 237-19-CrApl.odt
opinion as to whether disputed handwriting at Exhibit-Q1 to Q3 is
written by the person who wrote S-A-1 to S-A-6. Sunil Ambilwade
(PW31), the handwriting expert has proved his opinion at Exhibit-
181. He has thoroughly examined all the documents with the help of
different scientific equipments, hand magnifier, ultra-lense,
microscope and under different lightning conditions by the process
of comparison and came to a conclusion that there are similarities
indicating common authorship in handwriting Q-1 to Q-3 and S-A-1
to S-A-6 and N-1 to N-7.
30. According to the prosecution, accused No.2 Sham had
written the disputed chit (Article-B) at the instance of accused No.1.
From the aforesaid evidence, it is proved beyond the reasonable
doubt that chit (Article-B) which was handed over by accused No.1
to the informant was written by accused No.2 Sham at the instance
of accused No.1 and in the said chit there was demand of Rs.5
Crores as ransom to release Wardhan from captivity. Thus, the
prosecution has successfully proved that the motive behind
kidnapping and murder of Wardhan was for ransom of Rs.5 Crores.
3] Recovery of Dead-body at the instance of accused:-
31. PW6 Shantilal Gudiwal is the panch witness for the
memorandum statement under Section 27 of the Indian Evidence
Act. He has deposed that on 27/02/2017 he was at his house, he
received a call from Jawahar Nagar Police Station. Accordingly he
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32 237-19-CrApl.odt
went there. He knows informant as he was doing water proofing
work of her house. He was knowing the deceased also. Police asked
him whether he is ready to act as panch. Accused No.1 and 2 were
present there. Chandu was another panch. Accused disclosed before
them that they committed murder of Wardhan at Daulatabad Ghat
for demand of ransom of Rs.5 Crores and they are ready to show
the place where dead body of Wardhan was thrown. Thereafter
accused led them to Shrey Nagar. There was a Nala, wherein water
was flowing. The jeep was stopped at a distance of 25 ft. from the
Nala. Electricity pole No.527 was there. Accused told that they have
thrown dead body of Wardhan there. The depth of Nala was about 9
to 10 ft. They saw the dead body of Wardhan in that Nala in a
plastic cover. He and other panch Chandu entered the Nala. The
place where dead body was lying was dry. They took out the dead
body from Nala. Police prepared panchanama (Exhibit-88) there.
Plastic cover was taken out by the accused. He identified both the
accused persons in the Court.
32. On the next day, he again went to police station at
about 04:00 p.m. and in the presence of two panchas conducted
personal search of both the accused. Bunch of keys, mobile and
driving licence was found with accused No.1. Those, articles were
seized vide panchanama (Exhibit-89). On personal search of
accused No.2 Sham one mobile and Aadhar card was found. Those
were seized vide panchanama (Exhibit-90). He identified the keys
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33 237-19-CrApl.odt
(Article-R), mobile of accused No.1 (Article-S), driving license
(Article-T), mobile of accused No.2 (Article-U) and Aadhar Card
(Article-V). His evidence could not be shaken in the cross-
examination. It is clear from the evidence of PW6 that the
information given by accused No.1 and 2 which led to the discovery
of dead body, was distinctly and exclusively within their knowledge.
PW33 Kashinath Mahandule, PSI, is signatory to the said
panchanama, he as well as PW36 Kalyankar, PI, have corroborated
the testimony of PW6 on the point of recovery of dead body at the
instance of accused.
33. It is argued on behalf of accused that panchanama
(Exhibit-88) is prepared before registration of crime and arrest of
the accused. Therefore, they were not in the custody of police and
hence, the said evidence is inadmissible. There is no merit in the
said argument as the evidence on record indicates that both the
accused were in the police station since 11:00 p.m. of 27/02/2017.
The dead body was discovered at their instance between 11:55 p.m.
to 01:30 a.m. of 28/02/2017. Thus, the accused were in the
constructive custody of investigating officer from 11:00 p.m. of
27/02/2017. In Vikram Singh and Others Vs. State of Punjab10,
in similar facts the Apex Court has observed,
"12. Mr. Sharan has, however, referred us to Section
46(1) of the Code of Criminal Procedure to argue that
till the appellants had been arrested in accordance
10 2010 ALL.MR. (Cri.) 982
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34 237-19-CrApl.odt
with the aforesaid provision they could not be said to
be in police custody. We see that Section 46 deals
with 'Arrest how made'. We are of the opinion that
word "arrest" used in Section 46 relates to a formal
arrest whereas Section 27 of the Evidence Act talks
about custody of a person accused of an offence. In
the present case the appellants were undoubtedly
put under formal arrest on the 15/02/2005 whereas
the recoveries had been made prior to that date but
admittedly, also, they were in police custody and
accused in an offence at the time of their
apprehension on the 14/02/2005. Moreover in the
light of the judgment in the Constitution Bench and
the observation that the words in Section 27
"accused of any offence" are descriptive of the
person making the statement, the submission that
this Section would be operable only after formal
arrest under Section 46(1) of the Code, cannot be
accepted. This argument does not merit any further
discussion."
34. Merely because PW6 was working in the house of
informant that is not sufficient to disbelieve his version being the
version of interested witness. In Vikram Singh (supra), it is
observed by the Apex Court that now a days there is tendency in
our society that independent witnesses are not forthcoming in
support of the victim of the crime and the prosecution is forced to
rely upon the relatives or associates of the complainant. Thus, the
prosecution has proved that the dead body of Wardhan was
recovered at the instance of accused No.1 and 2. It is, therefore,
clear that it was within the special knowledge of the accused that
the dead body was lying there. It was for the accused to explain the
source of their information about dead body lying in the Nala. No
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35 237-19-CrApl.odt
explanation whatsoever was offered by the accused as to how they
came to know about the place where the dead body is found.
Therefore, it will have to be presumed that the dead body was
thrown by the accused at that particular place, and from there it
was recovered at their instance.
4] Recovery of incriminating material at the instance of
accused:-
35. The vehicle used in commission of offence i.e. open top
sports car of saffron colour bearing registration No.MH01-BM-6088
was seized at the instance of accused, vide panchanama (Exhibit-
70), proved by PW3 Vallabh Kalegaonkar. On inspection of the said
vehicle one black t-shirt having white strips with blood stains and
some hair was found at the side of driving seat. On the seat also
blood stains were found. The blood stains were collected by the
forensic team. In the dickey of the car one white colour plastic piece
(Menkapad) in torn condition was found. Some hair and spit was
there on the plastic piece (Article-H). There was dent in the center
of the dickey and the pole of the housing society was bent having
saffron colour on it. Accordingly the spot panchanama (Exhibit-70)
was prepared. PW3 identified the accused.
36. PW4 Ramesh Kathar, who is a Government Servant, has
deposed that he was called at Jawahar Nagar Police Station on
01/03/2017 at about 01:00 p.m. PW36 Kalyankar was present there,
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36 237-19-CrApl.odt
he told PW4 that they have to listen to the disclosure of accused
and act as panch. Accused Abhilash and Sham were present there.
Accused disclosed before him that they were ready to point out the
place where they kidnapped Wardhan, committed his murder and
threw his dead body. Atul Walke who was another panch, police
Officer, accused and one CCTV footage expert boarded in one police
jeep and one private jeep. They proceeded as per the instructions of
accused. Accused firstly took them to Gurukul Housing Society,
accused No.1 showed his house. Then both the accused told them
that they took Wardhan in front of house of Vijay Wargiya to his
sports car, from there they boarded in the sports car with Wardhan.
Thereafter accused took them to Ropalekar square, from there they
took them to Vardhan Auto. They stopped at Vardhan Auto on
seeing CCTV camera installed there. They along with CCTV expert
entered in Vardhan auto which was on upper floor and saved CCTV
footage of 27/02/2017. Thereafter they again boarded the vehicle
and proceeded as per the instructions of accused. Then they
reached at Amarpreet Hotel, Baba Petrol Pump, Nagar Naka,
Padegaon, Abdi Mandi, Girija Samarth Petrol Pump and Daulatabad.
Accused disclosed that they filled petrol there in the car. CCTV
camera was installed at the said petrol pump. They went to seize
the CCTV footage of 27/02/2017. CCTV footage was saved. Similarly
the CCTV footage at Gram Panchayat office, Daulatabad also saved.
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37 237-19-CrApl.odt
37. Thereafter, the accused took them near his house and
showed them the place where while reversing the car it struck to
one pole. Then from there they told that they went to Ropalekar
square, Sasawade hospital, Mahadeo temple, Saili Hotel, Tanhaji
square, Balaji Nagar and Mondha Naka. From there they went to
Ramanand Nagar via Amarpreet hotel and from there they reached
Shrey Nagar. Then, on the instructions of accused, they alighted
from the jeep. There was one Neem tree near Nala (drain). Accused
pointed out the place near Nala where they threw the dead body.
Then accused showed the route from which they went and parked
their car near Bal Udyan. Panchanama of these events was drawn at
Exhibit-75. In the presence of this panch police seized clothes of
both the accused vide panchanamas Exhibit-76 and 77.
38. PW4 further deposed that, on 03/03/2017 accused No.2
showed his willingness to point out the place where he had thrown
the chit. Accordingly, the disclosure panchanama (Exhibit-78) was
prepared. Accused No.2 led them to Seven Hills at the lion statue.
There was iron compound to the statue. Accused No.2 recovered
one half burnt chit from there (Article-M), the same was seized vide
panchanama (Exhibit-79). On the said chit words '500', 'Police' were
written and erased. Accused No.2 also disclosed that he will show
the place on the roof of accused No.1's house where remaining half
burnt chit is lying. Accordingly the disclosure panchanama (Exhibit-
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38 237-19-CrApl.odt
80) was prepared. Thereafter accused No.2 led them to Gurukul
Housing Society in Monalisa Apartment. He led them to the roof
where remaining half burnt chit (Article-N) was lying by the side of
one pipe. The same was seized vide panchanama (Exhibit-81).
Thereafter accused No.2 disclosed that he is ready to give recovery
of notebook from which they took one page and wrote the chit.
Accordingly, disclosure panchanama (Exhibit-82) was prepared.
Then accused No.2 took them to the house of accused No.1
Abhilash, which was closed. His father was therefore called and the
house was opened. Accused No.2 took out the notebook (Article-O)
which was kept below the bed. He also showed the pen (Article-P)
which was inside the notebook. The pen and notebook were seized
vide panchanama (Exhibit-83). Police described whatever they
found in the house by preparing panchanama (Exhibit-83), including
one vehicle key. He identified accused No.2 Sham. Nothing
supporting the defence is brought in the cross-examination of this
witness.
Recovery of chit is assailed on the ground that it was
from the open place accessible to all. Though it is from the open
place, accused No.2 had exclusive knowledge about the place
where those chits and note could be found. Therefore, the said
submission is unacceptable.
39. PW5 Mohammad Mushtak s/o Mohammad Ibrahim is
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panch to the disclosure statement of accused No.1 Abhilash.
Accordingly, panchanama (Exhibit-85) of the disclosure statement of
accused No.1 is prepared wherein he agreed to show the instrument
used by him in commission of crime. Thereafter accused No.1 took
them through Tilak Nagar and Ropalekar Hospital to the Bal Vatika
Garden in Gurukul Housing Society. He asked to stop the jeep, then
at the instance of accused No.1 they all went to Bal Vatika Garden.
He led them to the corner of a wall. There was one stone and soil.
Accused No.1 removed soil and removed one light coffee coloured
handkerchief (Article-F/1) and a pair of green chappal of the
deceased (Article-Q). These articles were seized vide seizure
panchanama (Exhibit-86). He identified accused No.1 Abhilash. He is
also pancha to the panchanama (Exhibit-97 to 99) of seizure of DVD
from Vardhan Automobile (Article-Z/1,Z/2), Kidzee School (Article-
W,X) and house of Renukadas Vaidya (AA/1, AA/2, AA/3). The CCTV
footage was downloaded from DVDs in one cassette and the same
was seized in his presence.
In cross-examination he stated that Mr. Khatavkar had
prepared DVDs without assistance of technician. On 07/03/2017 he
had seen CCTV footage of that day at three places.
40. PW7 Harish Agrawal is a panch in whose presence
seized car of accused No.1 was taken to Garkheda Washing Center
and with the help of forensic expert metallic pieces of suspension
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and chamber were scrapped and seized vide panchanama (Exhibit-
100).
41. From the aforesaid evidence it is clear that prosecution
has proved that articles used in the crime and or related to the
crime, belonging to the deceased and accused were recovered at
the instance of accused.
5] Theory of Accused and Deceased Last Seen Together :-
42. Time gap between deceased last seen in the company
of accused and occurrence of his death, is so short that leads to no
other conclusion than the guilt of accused. PW21 Sachin Pawar is 16
years old boy who is taking education. He is the neighbour of
accused and the deceased. He deposed that Wardhan who was
residing at the backside of his house was his friend. He knows
accused No.1 Abhilash, as Abhilash used to come in the garden
when he and Wardhan used to go there. He also knows accused
No.2 as he used to be in the company of accused No.1. On
26/02/2017 he was in need of bicycle, therefore, he along with
Wardhan had gone to the house of accused No.1 as accused No.1
was having geared bicycle. He went to accused No.1 to purchase
the same. He decided to purchase the bicycle for Rs.2,000/-.
Accused No.1 told him that before selling or purchasing any article
he used to offer prayers in the temple. Thereafter accused No.1 and
2 and Wardhan went to Gajanan Maharaj temple in his car and
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PW21 followed them by bicycle. Accused No.1 was having open top
car of orange colour. He, accused No.1 and Wardhan offered prayer
in the Gajanan Maharaj Temple. Accused No.1 then told them to go
to house and he would come after some time. As such, he returned
back to his house. He was shown screenshot of CCTV footage
(Exhibit-112/1) in which he, accused No.1 and Wardhan were seen
offering prayers at the gate of Gajanan Maharaj temple. He
identified the photographs of car of accused No.1 (Article G-1 and G-
2). He also identified both the accused in the Court.
PW21 further deposed that on 27/02/2017 at about
07:00 p.m. Wardhan came to his house. He and Wardhan came out
of the gate of his house. Accused No.1 and 2 came there. Accused
No.1 asked him what happened to the price of bicycle. He told
accused No.1 that by taking money from his father he will pay it to
him. His father came out of the house and spoke with accused No.1
that he will pay money after his mother returns home. Thereafter he
went inside the house and his father went to bring his mother.
Accused No.1 and 2 and Wardhan went away. He does not know
where they went. They did not return back. At about 09:00 p.m. to
09:30 p.m. mother of Wardhan came to his house and asked about
Wardhan. He told her that he did not know about him but he went
away with accused No.1 and 2. Thereafter she went to the house of
accused No.1. Thereafter colony members started to search for
Wardhan. At that time accused No.1 came there. He was sweating
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and shivering. Thereafter he came to know about murder of
Wardhan. Police recorded his statement as per his say and his
statement was also recorded before the Magistrate. He admitted the
contents of statement recorded before the Magistrate and his
signature on the same.
In cross-examination he admitted the statement at
portion mark 'A', which is to the effect that, "thereafter Wardhan's
mother and his maternal uncle came to my house in search of
Wardhan and asked whether Wardhan is there. I told that Wardhan
is not there. Wardhan's mother asked whether I know whereabouts
of Wardhan, then I told that when I brought the cycle at that time
Wardhan was with Abhiraj (alias Abhilash) Mohanpurkar and Sham
Magare. Thereafter Wardhan's mother and we all started searching
for Wardhan. Wardhan's mother and his maternal uncle went to the
house of Abhiraj. Abhiraj (alias Abhilash) told them that Wardhan
had left one hour before. When colony members came to know that
Wardhan is not traceable they also started searching for him.
Abhiraj (alias Abhilash) was also searching for Wardhan along with
us. We all went to his house for searching Wardhan. Abhiraj (alias
Abhilash) also came along with us to Wardhan's house" and it was
stated by him before the Magistrate. He stated that he was knowing
Abhilash since one year prior to the day of incident. He sat in the
car of accused No.1 at several times. Abhilash had decided the price
of cycle at the rate of Rs.2,000/-. He denied having knowledge that
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accused No.1 was suffering from epileptic-fits disease and he used
to fall down suddenly and that someone always used to be in the
company of accused No.1.
43. PW11 Santosh Machave is working at Girija Samarth
Petrol Pump at Sharnapur, since last 4 to 5 years. His duty hours in
day time are from 09:00 a.m. to 06:00 p.m. and at night from 06:00
p.m. to 09:00 a.m. He deposed that on 27/02/2017 he was on night
duty. He was doing duty of filling petrol in the vehicles. At 08:45
p.m. one open top saffron colour car came to the petrol pump from
Aurangabad side. It first went towards diesel pump and thereafter
as it was a petrol car by taking a turn it came towards petrol pump.
He was there at the petrol pump. In the car there were three
persons. One person was sitting in the backside of the car and two
were sitting at the front side. The person driving car was wearing
spectacles and by his side one 10 years old boy was seating. In the
backside one thin person was seated. He asked driver how much
petrol was to be filled in. He told to fill petrol of Rs.500/-. The person
who was driving the car gave Rs.500/- to the boy and the boy gave
it to him. After filling petrol the vehicle went towards Daulatabad
side. He further deposed that, in the morning at about 05:30 a.m.
some policemen came to him and inquired whether any vehicle of
aforesaid description came to his petrol pump. He told them that
the said vehicle had come to his petrol pump. The said policemen
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checked CCTV cameras of the petrol pump, wherein saffron colour
vehicle was seen. He also saw the CCTV footage. He received notice
(Exhibit-115) from the police. Accordingly, he went to the police
station and his statement was recorded. He identified accused No.1
as the same person who was driving the car and accused No.2 as
the person who was sitting in the backside of the car. He also
identified photographs (Exhibit-110/1 to 110/8) in which accused
No.1 and 2 and the deceased were appearing. He also identified
photographs (Exhibits-110/3, 110/4, 110/5 and 110/6) wherein he
was appearing. In photographs at Exhibit-110/4 he is seen filling
petrol in the car. He also identified nine photographs of the car
(Article- GG/1 to GG/9).
44. In the cross-examination PW11 stated that he is
educated upto 9th standard and while issuing receipt to the
customer it is necessary to write vehicle number in it. He admitted
that it is also necessary to write mobile number of the vehicle owner
in the receipt. He did not issue receipt to the customer who
purchased petrol in the night of 27/02/2017 from his petrol pump at
08:45 p.m. He denied that only two wheeler owners used to fill
petrol of Rs.500/- and the four wheeler vehicle owners used to
purchase petrol generally of Rs.1,000/- and more. On 27/02/2017,
between 06:00 p.m. to 09:00 a.m. of 28/02/2017 more than 25
customers might have purchased the petrol of Rs.500/-. DVR is
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installed on the first floor. In the morning of 28/02/2017 police had
gone on the first floor in DVR room. He denied that the police
tampered the timing of CCTV footage and DVR.
45. From the evidence of these two witnesses, it is clear
that in the evening of 27/02/2017 PW21 has seen deceased in the
company of accused No.1 and 2 and PW11 has seen deceased in
the company of accused No.1 and 2 at 08:45 p.m of that day and
after filling petrol in the car accused No.1 and 2 along with the
deceased were seen proceeding towards Daulatabad.
PW2 Dr. Darandale has conducted autopsy on the dead
body of Wardhan at 10:50 a.m. on 28/02/2017. He opined that
death of Wardhan occurred prior to 6 to 18 hours of commencement
of the postmortem.
46. PW37 Kabir Tadvi is servant in poultry farm of Daud Bhai
situated in the back side of Daulatabad fort on the road of Kesapuri
Tanda. He stated that on 27/02/2017 at 9.00 p.m. to 9.30 p.m. he
came out of farm house as their hens were being stolen by the
thieves. He saw one car at the end of cement road. Its parking lights
were on. The car was there for about 5 to 10 minutes. Thereafter,
the car proceeded towards Daultabad Ghat.
In the cross examination, he stated that his statement
was recorded on 15th of the month. Though he was told by his sister
that police were making inquiry he did not feel to go to police to
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give his statement. Prosecution claims that he has seen the vehicle
of Accused No. 1, however, the evidence of this witness is not of any
help to the prosecution.
6) Electronic Evidence of CCTV Footage:-
47. In support of the last seen together theory prosecution
has also relied on CCTV footage recovered from the petrol pump
wherein accused had filled petrol in his car. PW5 Mohammad
Mushtak is panch to the seizure panchanama (Exhibit-97 to 99) of
CCTV footage in DVD from Vardhan Automobile, Kidzee School and
house of Renukadas Vaidya. CCTV footage from these DVRs was
downloaded in one cassette and seized in one DVD. He has seen
CCTV footage of these three places.
48. PW9 Vinod Kharat is panch who went along with the
police officers to Gajanan Maharaj temple and saw CCTV footage of
26/02/2017 between 07:00 p.m. to 08:00 p.m. He deposed that in
the said CCTV footage one small boy with two persons was seen.
Police downloaded the said CCTV footage on blank CD from the
operator. The said CD was seized and sealed in his presence. Police
obtained his signature on the seizure panchanama (Exhibit-106).
Then they went to Shankar Hospital and requested to see CCTV
footage of 27/02/2017 between 07:00 p.m. to 08:00 p.m. One
saffron colour car was seen passing from there in the CCTV footage.
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The said CCTV footage was downloaded in blank CD by the CCTV
camera operator. The said CD was seized and sealed vide
panchanama (Exhibit-107).
In cross-examination PW9 stated that it is not
mentioned in the panchanama (Exhibit-106 and 107) that blank CDs
were given to the CCTV camera operator by police. He had ensured
that the time shown in his watch and the time shown in the CCTV
screen of that day was one and the same.
49. PW12 Balasaheb Kanhere, Manager of Girija Samarth
Petrol Pump, Sharanapur, is working there since last 20 years. He
deposed that at their petrol pump 12 cameras are installed, there
are 16 DVRs unit and those are of CP+ company. The DVR is in the
upper room of cabin of the petrol pump which is kept locked and it's
keys are with him. DVRs are under his control. At the petrol pump
they are having two petrol dispensing units and two diesel
dispensing units. These units are covered by the canopy and there
are 24 in-built light system at the petrol pump. On 27/02/2017, 12
CCTV cameras were in working condition at the petrol pump. Police
approached him on 04/03/2017 and have issued notice (Exhibit-
118). Police inspected all the cameras and asked about DVR. He
showed DVR to them. One technician was with the police. He
checked DVR. Technician of police saved CCTV footage of
27/02/2017 of time 20:40 to 20:45 Hours and downloaded the same
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in empty DVD. Before downloading, police showed him the empty
DVD by running it. He stated that the CCTV footage was
downloaded in empty DVD. This downloading was done in his
presence. He issued certificate under Section 65-B of the Indian
Evidence Act (Exhibit-119). PW11 Santosh was on duty on
27/02/2017 for filling petrol at unit No.5. In CCTV cameras the time
is set. They used to set the time manually and there is difference of
approximately 09 minutes 30 seconds in the timing of CCTV camera
and retail outlet automatic system. The time set in CCTV cameras
was ahead with the time of retail outlet automatic system. Police
seized DVR of CP+ company on 05/03/2017. One Suresh Patel was
maintaining the DVR system. Exhibit-95 bears signature of Suresh
Patel. He identified the DVR and CCTV footage (Exhibits-110/1 to
110/8).
During the examination-in-chief of this witness, the DVR
was played on the screen. In CCTV footage the date was shown as
27/02/2017 and the time was from 20:40:00 to 20:45:00 Hours. In
CCTV footage one open top saffron colour car is seen coming in the
petrol pump. It took turn and stopped at one petrol unit. PW12
stated that in the car one boy and two persons are there. PW11
Santosh filled petrol in the said car. As the features of three persons
were not clearly visible, the footage was replayed by zooming the
screen. After zooming the screen Wardhan Ghode was seen sitting
by the side of the driver. In the backside seat accused No.2 Sham
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wearing parrot colour T-shirt was seen. There was some confusion in
respect of person sitting in the driver seat of the car. In cross-
examination he admitted that timing in CCTV footage can be
changed manually. At some distance from their petrol pump there
are two ways, one goes to Nashik and another goes to Daulatabad.
50. PW16 Pundlik Patil, is the Gram Sevak, who at the
relevant time was working at Gram Panchayat Daulatabad. He
deposed that office of Gram Panchayat Daulatabad, is near the bus-
stand. The bus-stand and Gram Panchayat are on highway i.e.
Aurangabad - Dhule road. At the Gram Panchayat 8 CCTV cameras
were installed in the year 2015. DVR was kept in his cabin and it
was in his possession and control. On 05/03/2017 police from
Jawahar Nagar Police Station came at the Gram Panchayat and saw
CCTV footage of 27/02/2017. At their request he downloaded
necessary CCTV footage of that day on CD/DVD from cameras No.4
and 6. On 27/02/2017 all the CCTV cameras of office were in
working condition. The time set in DVR was ahead by 27 minutes of
Indian Standard Time. He issued certificate under Section 65-B of
the Indian Evidence Act (Exhibit-134) on 07/03/2017.
51. In cross-examination he stated that when police came
to his office with a request to downloaded CCTV footage, at that
time he came to know that the timing in CCTV footage is ahead by
27 minutes than the Indian Standard Time. Now he is transferred
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from Daulatabad to Patoda and while he was at Daulatabad,
difference of 27 minutes in CCTV camera was there.
52. PW17 Renukadas Vaidya is resident of Plot No.6, Shrey
Nagar, Usmanpura, Aurangabad. He deposed that he installed CCTV
cameras in his house prior to 7 to 8 years and the DVR is kept in
one room inside the house. The DVR is under his control and
possession. On 07/03/2017 and 10/03/2017 police from Jawahar
Nagar Police Station came to his house with CD. They requested him
to verify the CD. He checked it and it was blank. Police further
requested him to download the footage of 27/02/2017. Accordingly
he downloaded CCTV footage of 27/02/2017 of camera No.4, which
was installed on front side of the house. It covers the main road
which is in front of the house. The said road goes to Sahakar Nagar
from Shrey Nagar. There was one Nala in Shrey Nagar. On
27/02/2017, CCTV cameras of his house were in working condition.
Time set in the DVR was behind by 43 minutes of Indian Standard
Time. As per the request of police, he issued certificate under
Section 65-B of the Indian Evidence Act (Exhibit-136).
In cross-examination, PW17 admitted that time can be
manually set in CCTV footage and till that day he has not corrected
the timing of his CCTV footage.
53. PW18 Manjaram Ambegaonkar is working as
administrator in Shankar Chest Hospital, which is behind Chetak
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Ghoda in Vishwabharati colony, Garkheda, Aurangabad. He deposed
that since 2013 thirteen CCTV cameras are installed in their
hospital. The DVR is kept in the cabin of Doctor and it is under his
control. Police issued notice (Exhibit-138) to him. Police came to the
hospital on 11/03/2017 and requested him to download the CCTV
footage. He downloaded the CCTV footage of camera No.6 of
27/02/2017 in 3 DVDs. Camera No.6 covers the area of main road
which is in front of the hospital and goes from Chetak Ghoda to
Gajanan Maharaj Temple. On 27/02/2017 all the cameras of the
hospital were in working condition. He downloaded CCTV footage of
27/02/2017 in DVD as it was in the DVR. Time set in DVR was 43
minutes ahead than the Indian Standard Time. He issued certificate
under Section 65-B of the Indian Evidence Act (Exhibit-139).
In cross-examination PW18 stated that he came to know
about the difference of 43 minutes in the timing of CCTV footage
and Indian Standard time when police came to their hospital to
download CCTV footage. Now they have corrected the time in CCTV
footage. He himself has corrected the time manually. He denied that
at the instance of police he made difference in the timing of CCTV
footage.
54. PW19 Jayant Shende is owner of Vardhan Automobile,
which is situated at Sawarkar square. He deposed that he had
installed four CCTV cameras in the year 2016 in his shop and the
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DVR is kept in his shop which is under his control. Police had
requested him to provide CCTV footage of 27/02/2017 of camera
No.3 which is on the outside of shop and covers the front side road
and Sawarkar square. The said road passes from Amarpreet hotel to
Shahanoormiyan Dargah. He downloaded the CCTV footage of
27/02/2017 in DVD supplied by the police. On 27/02/2017 camera
No.3 was in working condition. Time set in DVR was 34 minutes
ahead than the Indian Standard Time. He issued certificate under
Section 65-B of the Indian Evidence Act (Exhibit-142).
In cross-examination PW19 stated that prior to three
days of arrival of police to his shop he came to know that there is
difference of 34 minutes in the time set in CCTV cameras, however,
he did not correct it. He admitted that the time in CCTV cameras
can be corrected manually. He denied that he deliberately made the
difference in timing of CCTV cameras by 34 minutes at the instance
of police.
55. PW20 Sunil Gaybhaye is working as Manager at Gajanan
Maharaj temple, Garkheda, since last 4 to 5 years. He deposed that
CCTV cameras were installed in the temple prior to 7 to 8 years. In
February, 2017 police of Jawahar Nagar Police Station had come to
him requesting to provide CCTV footage of 26/02/2017 of main gate
i.e. camera No.18, which covers the main gate of the temple and
main road which passes from Shivajinagar to Seven Hill. The DVR is
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kept in the office of temple and it is under his control. He provided
CCTV footage of 26/02/2017 to Police in DVD. He downloaded it as it
was in the DVR. Camera No.18 was in working condition on
26/02/2017. He issued certificate under Section 65-B of the Indian
Evidence Act (Exhibit-144).
56. PW4 Ramesh Kathar has deposed that he has seen
CCTV footage of 27/02/2017 at Vardhan Automobiles, Girija Samarth
Petrol Pump, Sharanapur and Gram Panchayat Daulatabad. In all
these CCTV footage accused No.1 Abhilash, accused No.2 Sham and
deceased Wardhan were seen in open top sports car of accused
No.1 and the car was passing and returning back. In his presence on
04/03/2017 CCTV footage of Girija Samarth Petrol pump of
panchanama (Exhibit-94). On 05/03/2017 the hard disk, DDR and
adopter were seized at Girija Samarth petrol pump vide
panchanama (Exhibit-95). Three DVDs of CCTV footage at
Daulatabad Gram Panchayat were seized vide panchanama (Exhibit-
96).
57. PW6 Shantilal Gudiwal is panch in whose presence CCTV
footage of Kidzee school dated 27/02/2017 is downloaded in DVD
and the same is seized by panchanama (Exhibit-97). He has also
proved panchanama of seizure of DVD on which CCTV footage at
Wardhan Automobile dated 27/02/2017 was downloaded by
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panchanama (Exhibit-98). He has also acted as panch to the
panchanama of downloading CCTV footage from the house of PW17
Renukadas Vaidya of 27/02/2017 on Moserbaer company DVD vide
panchanama (Exhibit-99). He has issued certificate under Section
65-B of the Indian Evidence Act.
58. PW13 Vijay Ingale is Government Servant. He has acted
as panch to the panchanama of extracting hash value from three
DVDs each at seven places. Milind Jahagirdar was another panch. In
their presence CCTV footage of seven places were converted into
DVDs with the help of laptop. He knows about the hash value, which
means that the CCTV footage collected by police and those
appearing in the DVD are one and the same. In their presence eight
screenshots of the CCTV footage were taken. Police prepared
panchanama (Exhibit-122) in their presence. Hash value mentioned
in the screenshots is noted down in panchanama. Eight screenshots
of hash value were admitted by him to be the same. They are
collectively marked as Exhibit- 123/1 to 123/8. He identified the
DVD in respect of CCTV footage at Girija Samarth Services (Article-
BB/1 to BB/3), Daulatabad Gram Panchayat (Article- CC/1 to CC/3),
Vardhan Automobiles (Article- Z/1 to Z/3), Kidzee School (Article- X/1
to X/3), Renukadas Vaidya's house (Article- AA/1 to AA/3), Gajanan
Maharaj Temple (Article- EE/1 to EE/3) and Shankar Chest Hospital
(Article- II/1 to II/3).
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59. Appellants have assailed the evidence of CCTV footage
on the ground that there is variance in the timing of CCTV footage,
and therefore, reliance cannot be placed on the same. We have
seen the CCTV footage. Trial Court has described the CCTV footage
evidence in detail manner as follows:-
DVD at Article-BB/1 contains CCTV footage of
27/02/2017 at Girija Samarth petrol pump between 20:42:31 Hours
to 20:42:48 Hours, wherein one saffron colour car is seen coming in
front of petrol unit, PW11 Santosh filled petrol in the said car.
Accused No.1 is seen driving the said car, Wardhan is sitting besides
him in the front seat and accused No.2 Sham is seen sitting behind
him. DVD at Article-CC/1 contains CCTV footage of 27/02/2017 at
Daulatabad Gram Panchayat, wherein one saffron colour car is
found passing at 21:09:39 Hours and it returned at 21:58:14 Hours.
DVD at Article-Z/1 contains CCTV footage at Vardhan Automobile,
wherein one open top car is seen passing from there. CCTV footage
in DVD at Article-X/1 shows that at 22:37:01 Hours one open top car
passed in fast speed from Kidzee School. It appears that in this
footage date 28/07/2018 is wrongly mentioned instead of
27/02/2017.
PW14 Dr. Khatavkar has taken screenshots of all these
CCTV footage and prepared it's transcripts and placed on record. On
comparison of CCTV footage at Girija Samarth petrol pump with the
screenshots (Exhibits-110/1 to 110/18) and it's transcript
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panchanamas (Exhibit-111), there is slight difference of timings
mentioned on the screenshots and Indian Standard Time (IST). Such
as, timing mentioned on the screenshot is 20:42:31, however the
Indian Standard Time was 20:33:31. The second screen shot is also
of 27/02/2017 and the timing is 20.42.33 [IST 20.33.33]. The third
screen shot is of 27/02/2017 and the timing is 20.42.41 [IST
20.33.41]. The fourth screen shot is of 27/02/2017 and the timing is
20.42.43 [IST 20.33.43]. The fifth screen shot is of 27/02/2017 and
the timing is 20.42.51 [IST 20.33.51]. The sixth screen shot is of
27/02/2017 and the timing is 20.42.53 [IST 20.33.53]. The seventh
screen shot is of 27/02/2017 and the timing is 20.42.21 [IST
20.33.31]. The eighth screen shot is of 27/02/2017 and the timing is
20.42.24 [IST 20.33.24]. The ninth screen shot is of 27.2.2017 and
the timing is 20.42.25 [IST 20.33.25). The tenth screen shot is of
27/02/2017 and the timing is 20.42.50 [IST 20.33.50]. The eleventh
screen shot is of 27/02/2017 and the timing is 20.43.20 [IST
20.34.20]. The twelve screen shot is of 27/02/2017 and the timing is
20.44.02 [IST 20.35.02]. The thirteenth screen shot is of 27/02/2017
and the timing is 20.44.18 [IST 20.35.18]. The fourteenth screen
shot is of 27/02/2017 and the timing is 20.43.14 [IST 20.34.14]. The
fifteenth screen shot is of 27/02/2017 and the timing is 20.44.00
[IST 20.35.00]. The sixteenth screen shot is of 27/02/2017 and the
timing is 20.42.29 [IST 20.33.29]. The seventeenth screen shot is of
27/02/2017 and the timing is 20.42.57 [IST 20.33.57]. The
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eighteenth screen shot is of 27/02/2017 and the timing is 20.42.33
[IST 20.33.33] and the nineteenth screen shot is also of 27/02/2017
and the timing is 20.42.29 [IST 20.33.49]. The transcript
panchnamas of above screen shots are at Exhibit-111. In the
transcript panchnama, the description in respect of the car and the
persons traveling in the car and its place has been mentioned along
with timings. It further appears that the screen shots of 26/02/2017
are also on record and they are at Exhibit-112/1/12 collectively. The
first screen shot is of Gajanan Maharaj temple of 26/02/2017 and
the timing is 29.37.01 [IST 19.37.01]. The Second screen shot is of
26/02/2017 and the timing is 19.37.07 [IST 19.37.07]. The third
screen shot is of 27/02/2017 and the timings are 21.09.39 and
21.09.40 [IST 20.42.39. and 20.42.40]. This screen shot is of the
CCTV-footage of Daulatabad Gram panchayat road. The fourth
screen shot is of 27/02/2017 and the timing is 21.09.40. The fifth
and sixth screen shots are of 27/02/2017 and the timing is 21.58.14
[IST 21.31.14]. This CCTV-footage is also of Daulatabad Gram
panchayat, however, in this footage the car has been shown
returning from the same road. The seventh and eighth screen shots
are of 27/02/2017 and the timings are 22.26.05 and 22.26.07 [IST
21.52.05 and 21.52.07]. These two CCTV-footage were obtained
from Wardhan automobile. The ninth and tenth screen shots are of
27/02/2017 and the timings are 23.09.15 and 23.09.16 [IST
22.26.15 and 22.26.16]. This CCTV footage obtained from Shankar
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Chest hospital. The eleventh screen shot is of 27/02/2017 and the
timing is 21.53.01 [IST 22.36.01]. This CCTV footage was of the
house of Renukadas Vaidy. The twelfth screenshot is of 28/02/2017
and the timing is 22.37.01 [IST 22.37.01]. This CCTV-footage
obtained from Kidzee school, Shreyanagar, Aurangabad. In this
CCTV-footage the date has been wrongly mentioned as 28/02/2017
instead of 27/02/2017.
60. Thus, the CCTV evidence and screenshots establish
beyond reasonable doubt that deceased was lastly seen in the
company of accused in the evening of 27/02/2017. There is no
substance in the argument of appellants as the CCTV footage
evidence and screenshots are proved in accordance with law and
the said evidence is credible and reliable. Merely because there is
difference of few seconds / minutes in the timings mentioned in the
CCTV footage and Indian Standard Time, the said evidence cannot
be said to be doubtful.
61. Prosecution has examined PW22 Ajay Patil. He owns a
shop by name Jayesh Digital Services and he is dealing in the
business of digital printing and preparing, design, maps and
drawing, since 1994. He deposed that he used to prepare map on
the request of all departments. On receipt of letter from Jawahar
Nagar Police Station (Exhibit-147), whereby he was asked to prepare
a map in respect of one incident, after the information about route
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and tower location was given to him by police, with the help of
Google map he prepared a map. He firstly prepared Google Map,
then he put locations on that. He then filled information of mobile
timing, tower locations and CCTV footage in those maps by
mentioning time, mobile number, tower locations, CCTV footage and
latitude and longitude. He also added Indian standard time and the
timings of mobile in the maps, timing of CCTV footage and tower
location timings in the map. He prepared information chart of the
map towards right side of the map. On the basis of technical
knowledge and information furnished by police, he has prepared
three maps (Exhibit- 127 to 129) and printed them on his computer.
Map at Exhibit-127 shows the place of kidnapping and place of
murder. Map at Exhibit-128 denotes the route of returning from the
place of murder to the place where accused along with the dead
body of Wardhan were stopped and Exhibit-129 shows the route by
which accused carried the dead body of Wardhan to dispose of the
same. According to him, mobiles as mentioned in the maps
travelled from the route shown by him on 27/02/2017 and it also
matches with the CCTV footage record.
In cross-examination he admitted that he prepared map
on the basis of information furnished by the police. If the
information supplied by police is correct then the maps are correct
and if the information is incorrect, then the maps are also incorrect.
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62. To bolster the last seen theory, prosecution has
examined Nodal Officers who proved CDR, SDR and CAF of the
cellphone numbers of the accused. In the evidence of PW25 Akash
Toke, prosecution has proved that he gave sim card of mobile
No.7249870348 to accused No.2 Sham. PW39 Makarand Vidhwans,
Nodal Officer of Telenor Company proved the CDR of said mobile
number. He has also proved the cell I.D. (Exhibit-249), CAF (Exhibit-
253), CDR (Exhibit-254) and certificate under Section 65-B of the
Indian Evidence Act (Exhibit-255) of the said mobile number. In
cross-examination he stated that on 27/02/2017 the mobile number
was active lastly at 19:47 hours. During 08:30 p.m. to 09:30 p.m. of
27/02/2017, there was no outgoing or incoming calls.
63. PW24 Francis Parera is Nodal Officer of Reliance
company. He deposed that his company received letter (Exhibit-
155) from DCP Rahul Shrirame to supply the CDR, SDR and CAF of
mobile No.8208499724 of accused No.1. He sent CDR of said mobile
for the period from 10/02/2017 to 27/02/2017 (Exhibit-157) along
with cell I.D. address (Exhibit-158) under his signature. On the basis
of cell I.D. address they can locate exact address of the tower on
the basis of it's code number. He also proved CAF (Customer
Application Form) of the said cell number, which is in the name of
Sudhir Mohanpurkar (father of accused No.1) (Exhibit-160). He
issued certificate under Section 65-B of the Indian Evidence Act
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(Exhibit-161). He is authorized to retrieve the data from master
computer on the basis of login and password provided by the
company. Master computer is under his control. In cross-
examination he stated that when the mobile is on it shows tower
location of that mobile within the area of 100 Meters. The location is
detected on the basis of longitude and latitude. Nothing favourable
to the accused is elicited in his cross-examination.
64. It has come the evidence of PW24 that accused No.1
had received call on 27/02/2017 at 21:08:15 hours from mobile No.
9822064665 and his tower location showed at 40586401E4F25. The
address of this code has been shown in the cell I.D. as Mrs. Yogita
Zamwal, Gut No.81(03), Abdimandi, near Daulatabad Fort. This also
further corroborates the case of prosecution that at 09:08 p.m.
accused No.1 was near Daulatabad fort and at 09:00 p.m. when
informant Bharti Ghode went to the house of accused No.1, his
father had called him. It is further proved from the CDR that at
21:55:42 accused No.1 again received call from his father from
mobile No.9822064665. At this time, the cell I.D. is shown as
405864019D331. The tower location of this cell I.D. is shown at
Shrey Nagar, Aurangabad. This further corroborates the prosecution
case that accused had thrown the dead body of Wardhan in the Nala
of Shrey Nagar.
65. PW34 Dattaram Aangre is Nodal Officer of Vodafone
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company. He deposed that the D.C.P. of Aurangabad had called CDR
of mobile No.9689473504 from his company vide letter (Exhibit-
199). In the said letter tower location of the said mobile number was
called. On 13/04/2017, he supplied CDR (Exhibit-203), CAF (Exhibit-
202 and certificate under Section 65-B (Exhibit-201) to the police
along with covering letter (Exhibit-200). CAF is in the name of
Sudhir Mohanpurkar (father of accused No.1). Along with CAF
photocopy of election identity card of father of accused No.1 is
there.
In the cross-examination, he stated that his statement
was not recorded by the police and he issued CDR as per the
circular of Central Government. On the basis of their record it
cannot be revealed when the mobile was switched off and when it
again started. On the basis of CDR it cannot be said for how much
time the mobile holder was in the area of tower location. The
jurisdiction of tower area is about 4 to 5 kms out of the city. It can
only be said from the tower location that the mobile was in the
location of that tower.
66. As per the CDR (Exhibit-203) on 27/02/2017 at 20:45:50
Hours accused No.1 Abhilash had received a call from mobile No.
919146975781 and his tower location is shown at 40422-10022-
241. In the cell I.D. address of this code his shown at Sardar, Plot
No.22 and 23, 26, 27, Gut No.3 Daulatabad, Aurangabad. This
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shows that on 27/02/2017 at 08:45 p.m. accused No.1 was at
Daulatabad, which supports the prosecution case that at 08:45 pm
accused No.1 and 2 by kidnapping Wardhan took him to Daulatabad
and killed him there.
67. PW14 Dr. Rahul Khatavkar, investigating officer, has
proved panchanama of downloading CCTV footage and has obtained
hash value of the DVDs and prepared it's panchanamas (Exhibits-
123/1 to 123/8). He has forwarded all the DVDs to the Forensic
Science Lab, Kalina, Mumbai, on 23/03/2017.
68. PW41 Atul Patil has examined DVDs sent to him and
prepared report (Exhibit-218). He has deposed that he received
letter sent by Jawahar Nagar Police Station bearing No.823/17,
along with the letter police had sent DVR with it's hard disk, seven
DVD, reference photographs of the car No.MH-01-BF-6088 and
photographs of Wardhan, mobile phone, sim card, memory card etc.
He analyzed articles and prepared report as per Exhibit-171. He
stated that videos as per the police letter (Exhibit-171) were found
in the DVR. He saved the same. The videos were of 27/02/2017, he
saved the same. He prepared image frames of those video files and
compared the image frames with the reference photographs sent to
him by police. The reference photograph of car at page No.5 of
Exhibit-218 tallied with the frame image on page No.5. The car
found in the video of 27/02/2017 at 20:42:34 Hours is the car as
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shown in reference photograph. The reference photographs sent by
police at page Nos.6 to 22 tally with the frame images extracted by
him from the videos and DVD. The reference photographs on page
Nos.10 to 22 of the car tally with the frame images taken by him
from different DVDs which are on page Nos.6 to 22 of the report. He
had received black and white DVD. He extracted frame image from
the DVD and compared the same with reference photographs and
found that the car in black and white DVD and reference
photographs on page Nos.20 and 21 tally with each other. Three
reference photographs i.e. of accused No.1 Abhilash, witness Sachin
and deceased Wardhan were sent to his office. He checked the
frame images sent to him through DVD and compared the same
with the reference photographs and found that the frame images
extracted by him from the DVD and the reference photographs of
accused No.1 Abhhilash, witness Sachin and Wardhan tally with
each other. He further deposed that the frame image extracted by
him from DVR tally with the reference photograph of deceased
Wardhan at page No.25. The person who was driving the car as
mentioned in frame image at page No.8 tally with reference
photograph of accused No.1 at page No.23.
69. PW3 Vallabh Kelgaonkar is panch to the arrest
panchnama Exhibit-72 of Accused No. 1 and Exhibit-73 of Accused
No. 1. At the time of arrest, mobile phones were seized from the
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accused. From accused No.1 Abhilash black colour mobile of Vivo
company bearing IMEI No. 861750032842617 and
861750032842609 (Real IMEI number is 861750032842600) was
seized. There were two sim cards in the said mobile, one was of Jio
company and another was of Idea company. From accused No.2
Sham one black colour mobile of Karbon company was seized,
bearing IMEI No. 911490509423860 and 911490509423878. There
were two sim cards in this mobile, one was of Telenor company and
another was of Airtel company. PW6 Shantilal Gudiwal has proved
this at Exhibit-89 and 90.
70. The CCTV footage of Girija Samarth Petrol pump tally
with the screenshots at Exhibits- 110/1 to 110/18 and the
transcripts. The screenshots of 26/02/2017 at Exhibit-112/1/12
(Collectively) are of Gajanan Maharaj Temple and their timing is
29:37:01 [IST 19:37:01]. These screenshots tally with the CCTV
footage in the DVDs. Panchanama of these screenshots is at
Exhibits- 89 and 90 and those are proved by PW6 Shantilal Gudiwal,
along with panchanama of seizure of DVDs from Kidzee school,
Vardhan Automobile and house of Renukadas Vaidya (Exhibits- 97,
98 and 99). PW12 Manager of Girija Samarth Petrol pump has
proved Exhibits- 119 and 120 i.e. CCTV footage on the DVR of his
petrol pump downloaded in his presence by the police on DVDs. He
has issued the certificate under Section 65-B of the Evidence Act
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(Exhibit-119). Thus, there is clinching electronic evidence showing
the involvement of the accused in the commission of present crime.
By leading cogent and reliable evidence prosecution has established
that Wardhan was in the custody of both the accused in the evening
of 27/02/2017. However, the accused have failed to discharge the
burden under Section 106 of Evidence Act.
7] Scientific Evidence:
71. PW27 Police Constable Dnyaneshwar Thakur carried
muddemal articles. PW26 Police Naik Badrinath Jadhav is the carrier
who carried muddemal articles i.e. chits (Exhibits- Q1 and Q2), half
burnt page of a notebook (Exhibit-Q3), notebook (Exhibit-Q4),
specimen handwriting of accused No.2 (Exhibits- S-A-1 to S-A-6),
specimen handwriting of accused No.1 (Exhibits- S-B-1 to S-B-6),
natural specimen handwriting of accused No.2 from the pages of
notebook (Exhibits- N-1 to N-7) to the Handwriting Expert, Crime
Branch, Aurangabad, vide letter (Exhibit-167). He also carried the
handkerchief by which Wardhan was strangulated to the Forensic
Science Lab, Aurangabad, vide letter (Exhibit-168).
72. PW31 Sunil Ambilwade, Assistant State Examiner of
Documents, CID, Nagpur, Camp Aurangabad, has examined the
documents forwarded by investigating officer through PW26 and
has given his opinion (Exhibit-181) stating that red-encircled writing
marked as Exhibits- Q-1 to Q-3 when compared with the red-
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encircled writing marked as Exhibits- S-A-1 to S-A-6, N-1 to N-7 and
N-1(R) to N-7(R), shown similarities in writing habits indicating
towards their common authorship.
Red-encircled writing marked as Exhibits- Q-1 to Q-3
when compared with the red-encircled writing marked as Exhibits-
S-B-1 to S-B-12 shown dis-similarities in writing habits indicating
towards their different authorship. Red-encircled page marked as
Exhibit- Q-4 shows marks of indentation, however, in absence of
sufficient clarity to decipher the content, it has not been possible to
express the definite opinion on those portion. He has also produced
reasoning supporting his opinion (Exhibit-183). Thus, prosecution
has proved that the handwriting in ransom chit was that of accused
No.2.
73. PW33 Kashinath Mahandule, has deposed that on
receipt of DNA kit sought by him, he sent buccase mucosal swabs,
hand nails, clipping and teeth in sealed bottle to C.A., Pune, along
with viscera form, blood soaked gause and DNA form. F.S.L., Pune
refused to receive the blood socked gause piece and directed him to
submit the same to C.A., Aurangabad. Accordingly, he sent the
blood socked gause piece to C.A., Aurangabad, vide letter (Exhibit-
194). The said C.A. has carried out some part of the investigation.
74. PW40 Rohidas Mundhe, Assistant Chemical Analyser,
Pune, has proved the chemical analyser report of the said Articles
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(Exhibits- 212 and 213). As per Exhibit-211, the torn transparent
polythene put in a packet (Exhibit-B) tally with the torn transparent
polythene put in a packet (Exhibit- D-4) and the paint scrapping
wrapped in paper put in a packets (Exhibits- D-7, D-8 and D-10) tally
among each other. As per Exhibit-212, control DNA profiles are
obtained from plucked scalp hair (Exhibit-1), tooth (Exhibit-2), two
buckle swab (Exhibit-3), nail clippings of Wardhan (Exhibit-4), saliva
stain cuttings from T-shirt (Exhibit-5a), sweat stain cuttings from T-
shirt (Exhibit-5b), blood stain recovered from seat cover (Exhibit-7),
hair found in car dickey (Exhibit-8), hair found in right hand fist of
deceased (Exhibit-10) and hair found in T-shirt of deceased (Exhibit-
11). Exhibit- 213 is the result of DNA analysis, which states that,
1) DNA profiles obtained from Ex.1 Scalp hair, Ex.2 Tooth, Ex.4 Nail
clippings of Vardhan Vivek Ghode, Ex.5a Saliva Stain cuttings from
T-shirt, Ex.7 Blood stain (Stain prepared from seat cover) and Ex.8
Hair (Hair found in car Dickey) [RFSL Pune ML Case No.DNAp-
241/17] are identical and from one and the same source of male
origin and matched with DNA profile obtained from Ex.3 Buccal
swab of Wardhan Vivek Ghode [RFSL Pune ML Case No.DNAp-
241/17].
2) DNA profiles obtained from Ex.10 Hair (Hair found in Right Hand
fist of Deceased) and Ex.11 Hair (Hair found on T-shirt of Deceased)
[RFSL Pune ML Case No.DNAp-241/17] are identical and from one
and the same source of male origin and matched with DNA profile
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obtained from Ex.2 Blood of Shyam Lakshamn Magare [RFSL Pune
ML Case No.DNAp-290/17].
3) Mixed DNA profile obtained from Ex.6 Hair (Hair found on T-shirt
in Car) is matched with DNA profile obtained from Ex.3 Buccal
swab of Wardhan Vivek Ghode [RFSL Pune ML Case No.DNAp-
241/17] and Ex.2 blood of Shyam Lakshamn Magare [RFSL Pune ML
Case No.DNAp-290/17].
75. According to PW40, there were three hair on the T-shirt
found in the car. After analyzing the hair, he came to a conclusion
that those were of deceased Wardhan and accused No.2 Sham. Hair
found in the right hand fist were of accused No.2 Sham. Hair found
on the T-shirt of the deceased was of accused No.2 Sham. Blood
stain found on the seat cover was of deceased Wardhan. Hair found
in the car dickey were also of deceased Wardhan. Saliva found on
the T-shirt matches with the DNA profile of deceased Wardhan. On
the sweat found on the T-shirt of the deceased, he found mixed DNA
profile of deceased Wardhan and accused No.1. Examination carried
out by him is mentioned in Exhibit-213 in GENOTYPE.
76. Vide letter (Exhibit-23) clothes of the deceased, clothes
of both the accused, blood and hair samples of the accused, blood
sample of the deceased and handkerchief used for strangulation of
deceased were forwarded for chemical analysis to F.S.L.,
Aurangabad. Vide report (Exhibit-214) it is opined that on the
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clothes of the deceased blood and saliva was found. Blood of group
'A' was found on Exhibits- 1 and 2 i.e. clothes of the deceased. No
blood was detected on half T-shirt and jeans pant of accused No.1
and 2. No saliva is detected on the clothes of accused. Human blood
was detected on half T-shirt of accused No.2. Saliva detected on
Exhibit-1 is of group 'A'. As per Exhibit-215 blood group of accused
No.1 Abhilash is 'A'. Blood group of accused No.2 could not be
determined as per the report Exhibit-216. As per the C.A. report
(Exhibit-217) neither blood nor tissue matter is detected on
handkerchief which was used for strangulation of deceased.
77. Appellants have challenged the scientific evidence
submitting that the C.A. reports and DNA reports are not
trustworthy and there are serious flows in recovery and subsequent
sending of them to Forensic Science Lab. This evidence against the
appellants is fabricated. There is no substance in the said
submission as the scientific evidence led by the prosecution is
reliable and trustworthy and it proves involvement of the appellants
in the present crime.
Thus, the above discussed scientific evidence proves
involvement of present accused in the crime.
8] Non Explanation of Incriminating Circumstances by
Accused:
78. At the time of arrest of Accused No. 1 PSI Kashinath
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Mahandule PW33 found scratch injury on the right side of his chest.
He therefore referred Accused No. 1 for medical examination at
GHATI Hospital. Dr. Shruti Gurnale PW32 examined accused on
28/02/2017 and issued injury certificate (Exhibit-85). As per the
injury certificate there was superficial abrasion on the chest of
Accused No. 1, which was caused within 24 hours by blunt and hard
object. When this circumstance was put to Accused No. 1 while
recording his statement under Section 313 of Cr.P.C., he has failed
to give any satisfactory answer about the cause of injury. Therefore,
prosecution case that while committing murder of Wardhan he
caused the said injury to Accused No. 1 can be accepted.
79. All the above discussed circumstantial evidence proving
the involvement of accused were put to them while recording their
statement under Section 313 of Cr.P.C. They have failed to give
explanation as to in which circumstances Wardhan died homicidal
death, how the blood stains of deceased were found in the car of
accused No.1 and clothes of accused, how the accused got
knowledge about the spot where dead body of Wardhan was thrown.
Therefore, the accused have failed to discharge the burdan. This is
an additional circumstance establishing the guilt of the accused.
Conduct of the accused during entire incident and subsequent
thereto further confirms their culpability in the present crime.
80. Evidence on record clearly indicates that the accused
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have planned the abduction and murder of the deceased. He
submitted that the dead body was recovered at the instance of
accused. Accused are seen with the deceased in the CCTV footage
and timings in the CCTV footage match with the prosecution case.
Therefore, there is sufficient evidence to sustain the conviction of
the accused.
81. By relying on Lalita Kumari Vs. Government of U.P.
and Others11 it is argued that though cognizable offence was
disclosed by PW15 informant, police have failed to register FIR and
therefore, prosecution case should be disbelieved. We are unable to
agree with the said submission. In the present case, there is
overwhelming circumstantial evidence brought on record against
the accused.
82. Smt. Mula Devi and Another Vs. State of
Uttarakhand12, Baldev Singh Vs. State of Haryana 13 and rest
of the authorities relied upon by the defence are of circumstantial
evidence. We have already held that a complete chain of
circumstances against the accused is established by the prosecution
by leading cogent and reliable evidence. Therefore, such rulings are
of no assistance to the accused.
83. For the aforesaid reasons, we find that there is
11 2014(1) SCC (Cri) 524
12 AIR 2009 SC 655
13 AIR 2009 SC 963
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overwhelming circumstantial evidence brought on record by the
prosecution which irresistibly points to the guilt of the appellants. All
the circumstances from which inference of guilt of the appellants is
drawn are established by the prosecution by leading cogent and
reliable evidence. The circumstances against the appellants taken
cumulatively form a chain so complete that there is no escape from
the conclusion that it is only appellants who have committed the
crime and none else. The circumstances proved on record are
incapable of explanation of any other hypothesis than the guilt of
appellants. The evidence on record proves that the appellants are
the authors of the crime.
84. Trial Court has properly appreciated the evidence and
has rightly convicted the appellants. The appeal being devoid of
merit is dismissed.
(SANDIPKUMAR C. MORE, J.) (NITIN B. SURYAWANSHI, J.)
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