Bombay High Court

Jivan @ Ashok S/O Ajabrao Chapane vs State Of Mah., Thr. P.S.O. Ps Sonegaon, ... on 22 September, 2025

Author: Anil L. Pansare

Bench: Anil L. Pansare

2025:BHC-NAG:9659-DB


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                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            NAGPUR BENCH, NAGPUR
                                          CRIMINAL APPEAL NO.87/2020

                               Jivan @ Ashok S/o Ajabrao Chapane,
                               Aged about 30 years,
                               R/o Ekatmata Nagar, Near Budha
                               Vihar, Jaitala, Nagpur
                                                                                           ... APPELLANT
                                                  ...VERSUS...
                               The State of Maharashtra,
                               through P.S.O., Police Station Sonegaon,
                               Dist. Nagpur
                                                                                            ...RESPONDENT
                       ---------------------------------------------------------------------------------------------
                       Shri Nikhil Dawda, Advocate for appellant
                       Shri A.R. Chutke, APP for respondent/State
                       --------------------------------------------------------------------------------------------

                       CORAM :        ANIL L. PANSARE AND SIDDHESHWAR S. THOMBRE, JJ..

                       DATE OF RESERVING THE JUDGMENT: 15.09.2025
                       DATE OF PRONOUNCING THE JUDGMENT: 22.09.2025
                       JUDGMENT (PER: SIDDHESHWAR S. THOMBRE, J.)

. Heard learned Counsel for both the parties.

2. The present appeal is filed against the judgment and

order of conviction passed by learned Additional Sessions Judge-5,

Nagpur dated 30.11.2019, whereby, accused was convicted for the

offences punishable under Section 302 of the Indian Penal Code,

1860, (for short "IPC"), and sentenced to suffer rigorous

imprisonment for life and directed to pay a fine of Rs.5000/-

(Rupess Five Thousand Only), in default of payment of fine he shall

suffer rigorous imprisonment for two years.

3. Brief facts of the prosecution is that,

On 16.09.2015, the complainant Mangala Pandurang

Yeole, filed a complaint stating therein that she has three

daughters. Her elder daughter was married and was residing at her

matrimonial house. Her second daughter Yugandhara, aged about

20 years, used to reside with her grandmother Shashikala and her

younger daughter Janvhi, aged about 11 years, was studying in

7th standard at Gayatri Vidyalaya, Nagpur. In her report, she further

stated that, at about 3.45 p.m., her daughter Yugandhara told her

that she is going to house of her grandmother and will return at

6.00 p.m. to home and left the house with school bag. She did not

return to home till 6.00 p.m. Complainant thought that she might

have stayed at her grandmother's house.

4. On 16.09.2015 at about 8.30 p.m. Janvhi's friend

Priyanka and her father came to their house and enquired about

Janvhi and she informed that Janvhi is at home, but her daughter

Yugandhara is at her grandmother's house. She along with her

daughter, Janvhi, Priyanka and her father went to Police Station,

Pratap Nagar, Nagpur. On an enquiry at Police Station, she told that

since 15.09.2015, Yugandhara was not in the house and, therefore,

she along with police came at Isasani Camp MIHAN area, Nagpur.

Police showed her one girl lying there and she identified her being

her daughter, Yugandhara. There were scratches on the face of

Yugandhara. She was wearing light gray coloured top, and her pink

colour legging and knicker were stuck in her legs. There were

ligature marks on her neck, scratching marks on her hand. Her

footwear, school bag and purse were lying there. She alleged that

somebody had committed rape on her daughter and committed

murder and report was lodged against unknown person.

5. On the basis of her complaint, investigation was set

into motion. The investigating officer went on the spot and

prepared the spot panchanama. He collected plain soil, blood

mixed soil, footwear of deceased, school bag, ladies purse and

other materials from the spot. The Police prepared inquest

panchanama and seized the clothes of deceased.

6. The investigation proceeded further and on the basis

of secret information, it transpired that accused was driver of the

school van of Gayatri School, Gayatrinagar, Nagpur, and younger

sister of deceased, Janvhi used to go in the said school van. The

accused took leave on 14.09.2025 and 15.09.2025 from the school

and in the evening of 15.09.2025, in between 8.00 p.m. to 8.30

p.m. and met deceased at the last bus stop of Jaitala, made her sit

in the van and took her at Isasani MIHAN Area and committed rape

and murder. Accordingly, after completion of investigation, the

investigating officer submitted charge-sheet in the Court of Judicial

Magistrate First Class, Nagpur under Sections 302 and 376(1) of

the IPC.

7. Charge was framed against the accused and he

pleaded not guilty and claimed to be tried. The prosecution led the

evidence. The statement of accused under Section 313 of the

Criminal Procedure Code, 1973 was recorded which is at Exhibit

86. The accused/appellant denied all the allegations made against

him and his defence was of total denial.

8. We have heard the learned Counsel for the appellant

and the learned A.P.P. on behalf of the State. The learned Counsel

for the appellant submitted that the case is based on circumstantial

evidence and there is no evidence against the appellant/accused.

He further submitted that there is no direct or indirect evidence

against the appellant and even there is no evidence of 'last seen

together.' and the prosecution has not proved any material on

record to show that appellant is the person who committed the

crime.

9. Learned Counsel for the appellant argued that the

recovery of clothes of the appellant is from the open place and it

was accessible to all and the seizure of the clothes also not proved

by the prosecution. There is no evidence on record to show that

after the incident, the accused had absconded. The prosecution has

not proved any motive and as the case is based on circumstantial

evidence, motive is important and prosecution has not brought on

record the motive.

There are material omissions and contradictions

in the evidence of prosecution witnesses and those were not

appreciated by learned Trial Court and wrongly convicted the

appellant. At the same time, based on the same evidence, the Trial

Court acquitted the appellant for the offence punishable under

Section 376 (1) of IPC. Learned Trial Court has thus, reached a

wrong conclusion which is based on conjectures and surmises.

Accordingly, allowed the appeal.

10. On the contrary, learned APP opposed the appeal and

submitted that the case is based on the circumstantial evidence and

the prosecution proved the case beyond reasonable doubt. The

prosecution relied upon the statement of PW-1 Mother of deceased,

evidence of PW-7, evidence of PW-15 and considering entire

evidence, learned Trial Court has rightly convicted the

accused/appellant under Section 302 of the IPC.

11. To support the case, the prosecution examined in all

15 witnesses which are as follows:

PW-1- Smt. Mangala Pandurang Yeole, PW-2- Parag Pandurang Dorlikar, PW-3- Amol Dhanraj Bondrey, PW-4- Dr. Rajesh Punjabrao Kude, PW-5- WPC Sharda Mahdeo Khadgi, PW-6- Pramod Eknath Kadoo,

PW-7- Arun Sadan Mahalgawe, PW-8- Vitthal Pundlikrao Jumde, PW-9- Dr. Nitin Shamrao Barmate, PW-10- Ashish Bhimrao Manohare, PW-11- Janvhi Pandurang Yeole, PW-12- Dy.S.P. Arun Rambhau Jagtap, PW-13- P.S.I. Smt. Nisha Gunwantrao Bansod, PW-14- A.P.I. Pravin Bhila Patil, PW-15- Dutta Waman Mali

As the case is based on circumstantial evidence, we are

required to consider whether the prosecution has proved the case

to convict the accused/appellant, though the prosecution has

examined in all 15 witnesses.

12. After hearing the learned Counsel for appellant and

learned APP for the State, following points arises for our

determination:

(1) Whether the prosecution proves that, death of

deceased Yugandhara was homicidal?

(2) Whether the prosecution proves that the accused, in

between 5.00 p.m. of 15.09.2015 to 08.30 p.m. of

16.09.2015, at Isasani MIHAN area, Nagpur committed

murder of Yugandhara Pandurang Yewale?

(3) Whether the interference is called for in the judgment

and order of conviction passed by the Trial Court?

REASONS

13. As to Point No.(1) : To prove homicidal death the

prosecution examined PW-9 Dr. Nitin Barmate, Medical Officer,

who conducted the post mortem. He deposed that the death of

Yughandhara was caused during 5.00 p.m. on 15.09.2015 to 6.15.

of 16.09.2015. During the post mortem, he found following

injuries:

"1) Lacerated wound present over right sided labia majora, 1.5 x 0.5 cm. x mucosa deep.

2) Contusion present over right sided labia minora, 1 x 07 cm.

3) Contusion present over left sided labia minora, 1 x 0.5 cm.

4) Whitish secration present in vaginal opening.

5) During external examination, I found the following injuries.

1) Pressure abrasion present over front and right side of neck, below the level of thyroid cartilage, extending from medial border of right sternoclidomastoid up to 2 cm. Left of the mid line, 6 cm. Below the tip of right

mastoid and 5 cm. Below the level of chin, obliquely placed, 11 cm x 5 cm, reddish.

2) Pressure abrasion present over right side of neck and right submandibular region, extend from mid line of neck, 2 cm. Below the chin, and 3 cm. Below tip of right mastoid, oblique, 6.5 cm. X 4 cm., reddish.

3) Abrasion present over chin and right side of mandibular region of face, continuation with upper margins of injury No.2, 11 x 2 cm. Reddish.

4) Abrasion present over right supraclavicular region, 3cm. Above clavicle and 5 cm lateral to the midline, 1 * 5 cm., reddish.

5) Abrasion present over right supraclavicular region 1 cm. above clavicle and 6 cm. Lateral to mid line, 0.5 x 0.3 cm., reddish.

6) Abrasion present over right side of lateral aspect of neck, 9 cm. Below tip of right mastoid, 1.5 x 0.5 cm. Reddish.

7) Abrasion present over right side of posterior aspect of neck, 10 cm. Below tip of right mastoid, 2 x 1 cm. Reddish.

8) Abrasion present over right side of posterior aspect of neck, 1 cm. Below injury No.7, 1 x 1 cm. Reddish.

9) Abrasion present over right side of posterior aspect of neck, 0.5 cm below injury No.8, 0.3 x 0 cm., reddish.

10) Abrasion present over right shoulder joint, 5 cm. From tip of shoulder, 2 x 1 cm. Reddish.

11) Abrasion present over left angle of mandible, 1.5 x 1 cm. Reddish.

12) Abrasion present over upper 1/3rd of right arm, anteriorly, 1 * 0.5 cm. Reddish.

CR. APPEAL 87-2020.docx 10/23

13) Abrasion present over upper 1/3rd of right arm, anteriorly, oblique, 4 x 1 cm. Reddish.

14) Abrasion present over middle 1/3rd of right arm anteriorly, 2.5 cm. X 2 cm. Reddish.

15) Four abrasion present over lower 1/3rd of right arm, anteriorly, 0.5 x 0.5 cm. Each, reddish.

16) Abrasion present over lower 1/3rd of right arm anteriorly, oblique, 1.5 x 0.6 cm. Reddish.

17) Two abrasions present over lower 1/3rd of right arm anteriorly, 0.2 x 0.2 cm. Each, reddish.

18) Abrasion present over upper 1/3rd of right arm, dorsally, cm. Reddish. 7 x 5

19) Abrasion present over middle 1/3rd of right arm, dorsally, 6 x 4 cm. Reddish.

20) Three abrasion present over upper 1/3rd of right arm dorsally, 1 x 1 cm. Each, reddish.

21) Abrasion present over right cubital fossa, 2 x 1 cm. Reddish.

22) Three abrasions present over upper 1/3rd of right forearm, ventrally, 0.5 * 0.5 cm. Each reddish.

[6] On internal examination I found brain congested and oedematous.

[7] The neck dissection.

a) Hematoma present over right sided strap muscle of 6 x 4 cm.

b) Hematoma present over left sided strap muscle of 5 x 4 cm.

c) Contusion present over both thyrohyoid muscle, 3 x 3 cm.

       d)     Contusion    present      over    right    sided
       sternoclidomastoid muscle, 3 x 2 cm.
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e) Fracture of right sided greater horn of hyoid bone.

f) Petechial hemorrhage present over epiglottis, Mucosa congested."

All the injuries were ante-mortem. The witness found

that cause of death was 'throttling'. Further it is nobody's case that

Yugandhara suffered accidental or suicidal death. In view thereof

and considering the injuries and cause of death, the death of

deceased Yugandhara was homicidal. Therefore, we answer point

No.1 in the affirmative.

14 . As to Point No.(2) : The case is based on circumstantial

evidence. In this regard, we are guided by law laid down by the

Hon'ble Apex Court in the case of Sharad Sarda Vs. State of

Maharashtra reported in AIR 1984 SC 1622 , wherein the Hon'ble

Apex Court has led 5 golden principles while appreciating the

circumstantial evidence held thus:

"(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 & Anr. v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made:

CR. APPEAL 87-2020.docx 12/23

"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."

15. Keeping in mind, the aforesaid principle of law, we

have scrutinized evidence. The prosecution relied upon the

evidence of PW-1 who is mother of deceased. She has stated about

the fact that on the day of incident, Janvhi had been to school and

Yugandhara was at home. At around 3.45 p.m., Yugandhara asked

that she would go to her grandmother for bringing the articles of

Pooja. Her grandmother was residing at Pratap Nagar. Accordingly,

Yugandhara went to her grandmother and carried school bag and

mini purse with her. She had gone saying that she would return by CR. APPEAL 87-2020.docx 13/23

06.00 p.m. but she did not return till 09.00 p.m. At around 08.30

p.m., friend of Janvhi, Priyanka Khare and her father went to her

home and they along with Janvhi went to the Police Station. In her

examination-in-chief, she has specifically stated that Police asked

her whether she has having any suspicion on anyone and PW-1

stated that accused had reached at home to drop Janvhi on his

vehicle. Accused informed that he returned back on seeing a girl

and he had seen Janvhi walking near Pioneer Square and so he

taken her and dropped her to home on his vehicle. He inquired

about her second eldest daughter and on inquiry, she informed that

she had been to her grandmother's home and on listening, accused

immediately left. Only this circumstance was considered by learned

Trial Court to connect the accused to the offence as he inquired

about Yugandhara. Except that nothing was brought about by the

prosecution through the evidence of PW-1.

16. PW-2 is panch witness to the spot panchanama and

PW-3 is panch to the memorandum statement of accused

Exhibit-27. PW-4 is Dr. Rajesh Kude who examined the accused.

CR. APPEAL 87-2020.docx 14/23

17. PW-3 is the panch to the memorandum of statement

(at Exhibit 27). The testimony of PW-3, if considered minutely, he

claims that he is friend of Lokesh and he stated that police called

both of them in Police Station saying that, accused is giving his

confessional statement. When they were in the police station, the

accused Jeevan was also in the police station. He told that the girl

was shouting while he was committing sexual assault with her and

he killed the said girl by kicks and fist blows. The police asked him

where the cloths worn by him at the time of incident. The Police in

their presence recovered the clothes. In cross-examination, he has

specifically admitted that the police had written the panchanama

when the accused was in lock up. More particularly, when the

witness has been examined for recovery of clothes, the evidence is

admissible to the extent of discovery only and not as regards the

confessional statement given by the accused before the police.

Further this witness has specifically admitted in cross-examination,

that the police had written panchanama when the accused was in

lock up. His evidence therefore, doesn't inspire confidence. His

evidence is thus of no help to the prosecution.

CR. APPEAL 87-2020.docx 15/23

18. The prosecution further examined PW-6 Pramod

Eknath Kadu, who was teacher working in Gayatri Vidyalaya,

Gayatri Nagar, Nagpur. In his statement, he stated that on

14.09.2015, in the morning accused had come to school and at

about 9.30 a.m. he went by showing the reason of death in his

family. Accused had brought the students on that day in the

morning shift and went away at 9.30 a.m. On 15.09.2015, accused

was on leave. On 16.09.2015, accused brought the students of the

morning shift and afternoon shift and left the students of the

morning shift. He had left the students of afternoon shift in the

evening at 5.30 p.m. to their respective houses. In cross

examination, he specifically stated that accused was plying school

van since one year prior to the incident. There was no complaint

against the accused by any students or their parents in respect of

behaviour with the students. His evidence, even if accepted, is not

helpful to show nexus of appellant with the crime.

19. PW-7 stated that on the day of incident, at about 9.30

p.m., he had seen the accused in the square near his house. The

pant of accused was stained with mud. Therefore, he asked accused CR. APPEAL 87-2020.docx 16/23

why his pant is stained with mud. He told that he had quarreled

with boys therefore his pant was stained with mud. He narrated, on

taking him to isolated place, that he had taken his girlfriend at

Isasani and kissed her. Thereafter, altercation took place between

them. Accused gave push to his girlfriend, thereafter, he left and

returned. In fact this witness has gone further by stating that he

along with accused went to the spot and he saw one girl lying

unconscious in the said jungle and further he saw clothes of girl in

the bushes. After three days when accused was arrested, he came to

know that said girl is murdered. He went to the police and gave

statement. In cross-examination, the entire evidence is proved

being with omissions. The Trial Court though observed that there

are material omissions still it held that the said witness is reliable

and trustworthy. Such inference is contrary to law of evidence.

20. As regards PW-8, as per his statement, on 16.09.2015,

Vilas Bole informed PW-8 that near Isasani Tekdi, beside water

tank, one dead body of girl aged about 18 to 19 years is lying

naked. Vilas Bole has milk dairy in Isasani. It was 4.30 p.m. to 5.30

p.m. Thereafter, he went to the spot and found that one dead body CR. APPEAL 87-2020.docx 17/23

of girl, aged about 18 to 19 was lying naked in the grass.

Thereafter, he made a phone call to control room on 100 number.

Police came there and started investigation. If we consider the

testimony of this witness, he is the person who informed the Police

Control Room that one Vilas Bole informed him about dead body

lying in jungle. His evidence is thus hearsay. The prosecution has

not examined Vilas Bole who first saw the dead body lying at the

spot. Needless to say that hearsay evidence is inadmissible.

21. As regards PW-9, Dr. Nitin Shamrao Barmate who

conducted post mortem, he has recorded that the death of

deceased Yugandhara was homicidal.

22. As regards PW-10, Ashish Bhimrao Manohare was a

friend of Nilesh and his motorcycle was seized from Nilesh and his

evidence is in respect of giving his motorcycle to his friend Nilesh

only.

23. The prosecution examined PW-11 Janvhi Yavle, the

younger sister of deceased Yugandhara but nothing was brought by

the prosecution against the accused through her statement.

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24. The prosecution has examined PW-12 Arun Rambhau

Jagtap who registered Crime No.175/2015 on 17.09.2015 and he

stated that he received information that one girl was lying half

naked condition and she was dead at Isasani, MIHAN and as per his

statement, PW-1 Mangala Mother of deceased gave report against

unknown person and offence was registered against unknown

accused, he arrested the accused on the basis of suspicion. He

stated that accused gave memorandum statement and he recorded

it in presence of two panchas at Exhibit 27. He stated that the

memorandum statement of clothes worn by accused were hidden

under the bushes near closed railway line and he produced the

same in presence of panchas.

25. As regards PW-13, Nisha Gunwantrao Bansod, she was

Police Sub Inspector, and after receipt of information from control

room along with staff had gone to the spot, the spot of incident was

open ground and there was wall of M.I.D.C. and crowd of people

had gathered there.

26. The prosecution further examined PW-14 Pravin Bhila

Patil, who arrested the accused on 17.09.2015.

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The prosecution further examined PW-15 Dutta

Waman Mali, who was Assistant Chemical Analyer, who submitted

the CA report. He stated that on 16.12.2015, he received total 15

samples of different soils for examination and in the said samples,

there were simple soil, soil on the spot and blood mixed soil and

after examination. He stated that Exhibit 1 and 2 tallied with

Exhibit Nos.4, 11, 12, 13 and 14 by stating that these two soils are

from one place. In cross-examination, he said that as per the layer

of soil, after every one kilometer, some components of soil may

change. The prosecution had relied upon this witness to prove that

soils which are at Exhibit 1 and 2 tallied with soil attached with

Exhibit Nos.4, 11, 12, 13 and 14. Such evidence doesn't connect

appellant with the crime.

27. We have gone through the statement of all the

witnesses but nothing has been brought on record by the

prosecution to prove that it is the accused who committed the

murder of deceased Yugandhara. As the case is based on

circumstantial evidence, the prosecution has to bring the clinching

evidence and to prove the entire circumstances.

CR. APPEAL 87-2020.docx 20/23

28. We have considered the findings and the reasoning

given by the learned Trial Court. The learned Trial Court observed

that the prosecution had a suspicion over the accused as the

accused visited the house and inquired about deceased

Yugandhara.

29. Firstly, merely because appellant enquired about

Yugandhara, the suspicion could not be drawn. Secondly, the

conviction cannot be based only on suspicion. After going through

the evidence of PW-1 who is the mother of the deceased, except by

stating that accused/appellant enquired about the deceased and

further nothing was brought by the prosecution to connect the

appellant with the said crime through evidence of PW-1. PW-2 who

was a witness to the spot panchanama and PW-3 is a panch to the

memorandum of statement. PW-6 Pramod Eknath Kadu, who was a

teacher working at Gayatri Vidyalaya has stated only regarding the

leave obtained by the accused on that day. Even, he never stated

about any wrong doing by the accused prior to the registration of

the offence and there was no any complaint against the accused by

his student or the parents in respect of the behavior of the students CR. APPEAL 87-2020.docx 21/23

and the evidence even if it is accepted is not helpful to show the

nexus of the appellant with the said crime. PW-7 stated that he

came to know about the murder of Yugandhara, only when he went

to the Police Station and his evidence is proved being with

omissions and though the Trial Court observed that there are

material omissions, still, the Trial Court relied on such evidence

which is contrary to the settled position of law of evidence. PW-8

has stated that he received an information from one Vilas Bole,

who informed him that one dead body was found, except that

nothing was brought by the prosecution and his evidence is

hearsay. His evidence is hearsay and thus, inadmissible.

30. The aforesaid evidence if looked into on the

touchstone, of the law laid down by the Hon'ble Apex Court in the

case of Sharad Sarda (supra), neither the circumstances brought on

record are of the conclusive nature, nor is the chain completed. It

would, at most, indicate needle of suspicion towards the appellant.

The settled principle of law, however, is that for a suspicion,

howsoever, strong it may be, the same cannot take place of the

proof. Accordingly, we answer the point No.2 in the negative.

CR. APPEAL 87-2020.docx 22/23

31. As to the point No.(3) : Having answered point No.2 in

the negative, the result that follows is that the prosecution failed to

prove the guilt of the accused and therefore, the order of conviction

passed by the learned Trial Court requires interference. Therefore,

we answer point No.(3) in affirmative. Accordingly, we proceed to

pass the following order:

ORDER

i) The appeal is allowed.

ii) The judgment and order of conviction passed by

learned Additional Sessions Judge-5, Nagpur in Sessions

Trial No.81/2016 dated 30.11.2019 is hereby quashed

and set aside.

iii) The Appellant Jivan @ Ashok s/o Ajabrao

Chapane, is directed to be released forthwith, if he is not

required in any other case.

iv) The fine amount, if deposited, shall be refunded

to appellant.

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                      v)           The Appellant Jivan @ Ashok s/o Ajabrao