[Cites 16, Cited by 0]
Bombay High Court
Suresh Bapu Koli @ Taral vs State Of Maharashtra on 10 March, 2026
Author: Manish Pitale
Bench: Manish Pitale
2026:BHC-AS:11666-DB
Apeal-1286-2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PURTI
PRASAD CRIMINAL APPELLATE JURISDICTION
PARAB
Digitally signed by
PURTI PRASAD
PARAB
Date: 2026.03.10
CRIMINAL APPEAL NO. 1286 OF 2022
15:22:14 +0530
ALONGWITH
INTERIM APPLICATION NO. 3942 OF 2022
IN
CRIMINAL APPEAL NO. 1286 OF 2022
Suresh Bapu Koli @ Taral
Age : 42 years, Occ.: Driver
R/at : Bhairewadi, Kurundwad,
Taluka : Shirol, Dist. Kolhapur. ....Appellant
V/S
The State of Maharashtra,
(Through Daund Police Station, Pune) .....Respondent
_______
Mr. Chaitanya Pendse a/w Ms. Gauratna Kale i/by Mr. Sachin Dhakephalkar
for the Appellant.
Ms. Sharmila S. Kaushik, APP for the Respondent/State.
_______
CORAM: MANISH PITALE &
SHREERAM V. SHIRSAT, JJ.
RESERVED ON : 25th FEBRUARY 2026
PRONOUNCED ON : 10th MARCH 2026
JUDGMENT (PER SHREERAM V. SHIRSAT J ) :
1. The present Appeal has been filed challenging the impugned Judgment
and Order dated 08.08.2022 passed by the Additional Sessions Judge- 2,
Baramati, District Pune, in Sessions Case No. 09/2017 whereby the Appellant
has been convicted under section 302 of the Indian Penal Code (IPC) and has
been sentenced to undergo Imprisonment for life and to pay a fine of
Apeal-1286-2022
Rs.2,500/- and in default to undergo Rigorous Imprisonment for 1 year. The
Appellant has also been convicted under section 201 of the Indian Penal Code
(IPC) and has been sentenced to undergo Imprisonment for six months and
pay a fine of Rs. 500/- in default to suffer RI for 2 months.
2. Brief facts of the prosecution's case are as under:
a. On 04/09/2016, one Mahadev Baburao Gadhwe lodged a
complaint that when he was going towards Pune at about 10:30
a.m., one person coming from the Baramati side told him that one
person was lying on the road and some other persons were
gathered there. Hence, the Complainant went at the site and
found that near the field of one Majid Abbas Pathan, on the side of
the road going towards Bholobawadi, one person aged about 20 to
25 years was lying on his stomach in a pool of blood. There was a
grievous injury on the back of his head and blood was oozing out.
His eyes were closed and there was no movement. The
Complainant and the other persons gathered at the spot made
inquiries in the nearby vicinity, but his name and address could not
be ascertained. The said person was wearing black-coloured
Bermuda shorts and green-coloured underwear. The complainant
thereafter lodged a complaint alleging that some unknown person
had killed the said unknown person by assaulting him on the
Apeal-1286-2022
backside of the head.
b. On the basis of the said report, an offence was registered vide
Crime No. 5 of 2016 under Section 302 of the I.P.C. against an
unknown person. The investigating team swung into action and
visited the spot of the incident and carried out the further
investigation
c. After completion of the investigation, a charge-sheet against the
accused came to be presented before the Judicial Magistrate First
Class, Daund, District Pune, who committed the case, it being
triable exclusively by the Court of Session.
3. The charges came to be framed on 27.06.2018 for the offences under
Section 302 r/w 201 of the IPC to which the Appellant pleaded not guilty and
claimed to be tried. Thereafter trial commenced and the prosecution examined
13 witnesses in support of the case. The Appellant did not examine any
defence witness. After examination of witnesses, examination of the accused
under Section 313 of the Code of Criminal Procedure, 1973 came to be
recorded. The defence of the Appellant is of total denial and false implication
in the crime.
4. To bring home the guilt of the Appellant, the prosecution in all
examined 13 witnesses :
Apeal-1286-2022
Rank Name Nature of Evidence
PW 1 Mahadev Baburao Gadhwe Informant who lodged the
F.I.R .
PW 2 Abhijeet Tukaram Shitole Panch witness - Recovery
of Rupees 41,000 and the
T- shirt worn by
Deceased. (Hostile)
PW 3 Sharad Prakash Sonawane Panch Witness -Recovery
of Clothes of Accused and
Axle Rod.
PW 4 Tanaji Raghunath Karnale Owner of Mutton Shop
PW 5 Shashikant Rajaram Bhoir Owner of Fish Shop next
to shop of PW4.
PW 6 Raju Narayan Wadekar Uncle of Deceased.
PW 7 Amar Yallappa Aarge Brother-in-law of the
Accused at whose
instance there was a
recovery of Rupees
41,000/-.
PW 8 Dr. Sameerkumar Sabat Medical Officer - Sub-
district Hospital, Daund
Apeal-1286-2022
who conducted the Post
Mortem of the Deceased.
PW 9 Sadiq Adam Shaikh Panch Witness- Recovery
of the clothes of the
Deceased and spot
panchnama.
(Hostile)
PW 10 Rehan Sayyed Aasad Mechanic.
PW 11 Rohit Sunil Wadekar Brother of the Deceased.
PW 12 Yuvraj Rama Dalimbe Panch Witness (Village
Kotwal) - Recovery of
disclosure statement.
PW 13 Atul Shridhar Bhosale A.P.I Daund Police
Station - Investigating
Officer
5. The Learned Sessions Judge after hearing the arguments of the Public
Prosecutor and Ld. Counsel for the Appellant, vide order dated 8/8/2022 was
pleased to convict the Appellant under Sections 235 (2) of Criminal Procedure
Code for the offences punishable under Section 302 of the Indian Penal Code
and sentenced him to undergo imprisonment for life and to pay fine of
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Rs.2,500/- and in default, to suffer rigorous imprisonment for one month. The
trial court also convicted the Appellant under Section 201 of the Indian Penal
Code (IPC) and sentenced him to undergo Imprisonment for six months and
pay a fine of Rs. 500/- and in default to suffer RI for 2 months.
6. Being aggrieved by the said order of conviction recorded by a Judgment
in Sessions Case No. 9 of 2017, dated 08/08/2022 passed by Additional
Sessions Judge - 2, Baramati District Pune, the Appellant has approached this
Hon'ble Court by way of Appeal.
7. We have heard Mr. Chaitanya Pendse for the Appellant and Ms.Sharmila
Kaushik, APP for the Respondent-State.
8. The Learned Counsel for the Appellant has submitted that the Appellant
has been falsely implicated. The Ld. Counsel has submitted that there is no eye
witness to the alleged incident but this is a case of circumstantial evidence and
the complete chain of circumstances leading to only one conclusion that none
other than the Appellant is guilty of the offence in question has not been
established and proved by the prosecution. He has further submitted that the
last seen theory has not been cogently established by the prosecution and even
the recovery of bloodstained clothes, axle rod at the instance the Appellant
Apeal-1286-2022
does not inspire confidence since the recovery is from an open place as also
admitted in the evidence by the Investigating Officer himself. The Ld. Counsel
for the Appellant further submitted that the prosecution has failed to establish
the identity of the deceased. The Ld. Counsel has further submitted that there
is discrepancy in the report of Chemical Analayzer as well and the motive has
also not been proved beyond reasonable doubt. The Ld. Counsel has submitted
that the prosecution has deliberately not produced the CCTV footages although
the same was asked for by addressing letters to various toll plazas. The Ld.
Counsel therefore submitted that the Appellant has been falsely implicated and
prayed that the Appellant be acquitted.
9. The Ld. Counsel has relied upon the following judgments in support of
his contention.
(a) Anjan Kumar Sarma and Others V/s. State of Assam, (2017) 14
Supreme Court Cases 359.
(b) Kanhaiya Lal V/s. State of Rajasthan, (2014) 4 Supreme Court
Cases 715.
(c) Sahadevan and Another V/s. State of Tamil Nadu, (2012) 6
Supreme Court Cases 403.
(d) Babu V/s. State of Kerala, (2010) 9 Supreme Court Cases 189.
Apeal-1286-2022
10. Per contra the learned Addl. Public Prosecutor has submitted that the
Trial Court has rightly convicted the Appellant and the conviction deserves to
be confirmed. She has further submitted that the last seen theory has been
cogently established through the evidence of PW 4 and PW 5. The Ld. APP has
further submitted that PW 4 and 5 are natural witnesses who have deposed
about the Appellant going along with the deceased and therefore in the
absence of effective cross examination, the last seen theory has been cogently
proved by the prosecution. She also submitted that identity of the deceased
has been established and there is nothing to disbelieve the same. She therefore
urged that the conviction be confirmed.
11. The death of the deceased is homicidal in nature. Once the death is
homicidal death, the burden lies on the Prosecution to prove that the death
was on account of the act committed by the Accused with the intention and
knowledge that this act would cause death of the deceased which would
amount to offence of murder. In the present case there is no direct evidence or
any eye witness to the said incident in question, but the case is based on
circumstantial evidence. Therefore, where the evidence is of a circumstantial
nature or where the case is based on circumstantial evidence, the
circumstances from which the conclusion of guilt is to be drawn should in the
first instance be fully established and all the facts so established should be
consistent only with the hypothesis of the guilt of the Accused. Therefore, the
Apeal-1286-2022
circumstances should be of a conclusive nature and they should be such as to
exclude every hypothesis but the one proposed to be proved. In other words,
there must be a chain of evidence so complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the Accused and it
must be such as to show that within all human probability the act must have
been done by the Accused.
12. Keeping in mind this cardinal principle of criminal jurisprudence, it will
therefore have to be seen from the evidence that has come on record, whether
the circumstances from which the conclusion of guilt is to be drawn are fully
established and all the facts so established are consistent only with the
hypothesis of the guilt of the Accused.
13. Since the Trial Court has not specifically enumerated the circumstances,
the circumstances which can be borne out from the evidence that has come on
record and as also argued by the Ld. Counsel for the Appellant, are:-
i. Last seen theory.
ii. Recovery of axle rod at the instance of accused.
iii. Recovery of bloodstained clothes at the instance of accused.
iv. Motive.
Apeal-1286-2022
14. The first circumstance which can be taken into consideration for the
analysis is the "Theory of Last Seen Together" . In order to prove the
circumstance of last seen together, the prosecution has examined PW 4, PW 5,
and PW 10.
15. PW 4 Tanaji Raghunath Karnale has deposed that he owns a mutton
shop at Kurundwad. He has deposed that he owns a Tempo Pick up and the
accused-appellant was working as a driver of the said vehicle. He has deposed
that he knows Shashikant Bhai (PW 5), who owns a shop next to his shop. He
has also deposed that he knows the deceased as the deceased used to visit the
shop of PW 5. He has deposed that on 02/09/2016 at around 3.00 p.m., PW 5
came to his shop and enquired with his father, whether his vehicle could be
made available on hire. He has further deposed that at around 8.00 p.m., the
vehicle was handed over and the fish was kept in the tempo. He has further
deposed that PW 5 paid Rs. 5,000/- to the Accused and thereafter the
deceased and the accused left, taking the vehicle with them. He has further
deposed that on the next day that is on 03/09/2016, he tried calling up the
deceased, but his phone was switched off. Further when PW 4 asked the
reason for the delay the Accused replied that there was a breakdown of the
vehicle. On 04/09/2016 when the Accused returned to the market at
Kuraunwad, PW 5 enquired about the deceased to which the Accused-
Appellant informed that the deceased got down at Aurangabad at Delhi Gate
Apeal-1286-2022
and he would be coming later by another vehicle. PW 5 has deposed that he is
a fish vendor, having his shop at Kurundwad. He has deposed that he is into
the business of fishery and he orders fish from Karnataka and transports it to
Pune, Mumbai and Jalgaon. He has deposed that he knows Raghunath Karnale
(father of PW 4), whose shop is next to his shop. He has deposed that on
02/09/2016, he had enquired with father of PW 4 whether his vehicle would
be available for business purpose to which Raghunath Karna replied that
vehicle would be available. He has further deposed that his brother and the
deceased Sushant Wadekar loaded the fish in the Vehicle and he paid
Rs.5000/- to the accused Suresh who was going to drive the vehicle. He has
further deposed that the deceased as well as the accused took the vehicle and
went to Nere (place in District Jalgaon). He has further deposed that deceased
had telephoned him from the mobile of the accused and informed him that
there was a breakdown of their vehicle at a place which is ahead of Sillod. PW
5 has further deposed that he asked them to wait there itself and informed that
he would be sending one business man by name Krishna Bohi. He has further
deposed that the fish from the vehicle (which had broken down) was
transferred into the vehicle of Krishna Bhoi and accordingly Krishna Bhoi paid
Rs. 52,000 to the deceased as told by PW 5. He has further deposed that a
mechanic was called to repair the vehicle and Rs. 6000/- to Rs. 7000/- was
paid to the mechanic for repairing the vehicle and the balance was with the
deceased. He has further deposed that in the evening and at night, the accused
Apeal-1286-2022
did not answer the call. He has further deposed that on the next day accused
came to the market at around 10:30 to 11.00 a.m., and when inquired about
the deceased to which the Accused informed that the deceased got down at
Delhi Darwaja at Aurangabad and the money was with the deceased. He has
further deposed that the accused thereafter went home. He has further
deposed that in the afternoon, he got a call from Krishna Bhoi who informed
that Police had informed him that the deceased was killed by the Accused. He
has further deposed that he learnt from the police that the accused had killed
the deceased. The prosecution has also examined PW 10, the mechanic who
reached at the place where the vehicle had broken down to prove that he had
seen the Accused and the deceased on 03/09/2016, however this witness has
not supported the prosecution case although not declared as hostile.
16. The body was recovered on 04/09/2016 at 10:30 a.m. Thus, from the
evidence of these three witnesses, it is difficult to come to a conclusion that the
theory of last seen is duly proved more particularly considering the time gap
between the last seen and the time when the body was recovered. As per PW 4
and PW 5 they had last seen the Accused and the deceased when they left their
shop on 02/09/2016. PW 5 has deposed that thereafter he spoke to the
deceased who informed him about the break-down of the vehicle. PW 4 has
deposed that on 04/09/2016, the Accused returned when PW 4 and PW 5
asked the Accused about deceased who said that he got down at Aurangabad
Apeal-1286-2022
at Delhi Gate. The body is recovered on 04/09/2016 at 10:30 am, therefore
the time gap between the last seen together and the time when the body came
to be recovered is too wide and also the place and circumstances in which the
body was recovered in the barren land, the possibility of others intervening
cannot be ruled out. The Apex Court has, time and again, held that where the
time gap is long, it would be unsafe to rely upon the last seen theory and it is
safer to look for other circumstances and evidence adduced by the prosecution.
17. The Ld. Counsel for the Appellant has relied upon the following
judgments in support of his contention.
(a) Anjan Kumar Sarma and Others vs. State of Assam, (2017) 14
Supreme Court Cases 359 and has relied upon the following paras
from the judgment.
"14. Admittedly, this is a case of circumstantial evidence. Factors to be
taken into account in adjudication of cases of circumstantial evidence
laid down by this Court are:
(1) The circumstances from which the conclusion of guilt is to be drawn
should be fully established. The circumstances concerned 'must' or
'should' and not 'may be' established;
(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. (See: Sharad Birdhichand Sarda v. State
of Maharashtra (1984) 4 SCC 116 153; M.G. Agarwal v. State of
Apeal-1286-2022
Maharashtra AIR 1963 SC 200 18)
"23. It is clear from the above that in a case where the other links have
been satisfactorily made out and the circumstances point to the guilt of
the accused, the circumstance of last seen together and absence of
explanation would provide an additional link which completes the
chain. In the absence of proof of other circumstances, the only
circumstance of last seen together and absence of satisfactory
explanation cannot be made the basis of conviction. The other
judgments on this point that are cited by Mr. Venkataramani do not take
a different view and, thus, need not be adverted to. He also relied upon
the judgment of this Court in State of Goa v. Sanjay Thakran, (2007) 3
SCC 755 in support of his submission that the circumstance of last seen
together would be a relevant circumstance in a case where there was no
possibility of any other persons meeting or approaching the deceased at
the place of incident or before the commission of crime in the
intervening period. It was held in the above judgment as under:-
"34. From the principle laid down by this Court, the circumstance of last
seen together would normally be taken into consideration for finding the
accused guilty of the offence charged with when it is established by the
prosecution that the time gap between the point of time when the
accused and the deceased were found together alive and when the
deceased was found dead is so small that possibility of any other person
being with the deceased could completely be ruled out. The time gap
between the accused persons seen in the company of the deceased and
the detection of the crime would be a material consideration for
appreciation of the evidence and placing reliance on it as a circumstance
against the accused. But, in all cases, it cannot be said that the evidence
of last seen together is to be rejected merely because the time gap
between the accused persons and the deceased last seen together and the
crime coming to light is after (sic of) a considerable long duration. There
can be no fixed or straitjacket formula for the duration of time gap in this
regard and it would depend upon the evidence led by the prosecution to
remove the possibility of any other person meeting the deceased in the
intervening period, that is to say, if the prosecution is able to lead such an
evidence that likelihood of any person other than the accused, being the
author of the crime, becomes impossible, then the evidence of
circumstance of last seen together, although there is long duration of
time, can be considered as one of the circumstances in the chain of
circumstances to prove the guilt against such accused persons. Hence, if
the prosecution proves that in the light of the facts and circumstances of
the case, there was no possibility of any other person meeting or
approaching the deceased at the place of incident or before the
commission of the crime, in the intervening period, the proof of last seen
together would be relevant evidence. For instance, if it can be
demonstrated by showing that the accused persons were in exclusive
possession of the place where the incident occurred or where they were
last seen together with the deceased, and there was no possibility of any
intrusion to that place by any third party, then a relatively wider time gap
would not affect the prosecution case."
Apeal-1286-2022
(b) Kanhaiya Lal vs. State of Rajasthan, (2014) 4 Supreme Court
Cases 715 :
"8. The prosecution case is that the appellant/accused Kanhaiya Lal
committed the murder of Kala by strangulation and threw the body in
the well. Nobody witnessed the occurrence and the case rests on
circumstantial evidence. It has been consistently laid down by this Court
that where a case rests squarely on circumstantial evidence, the
inference of guilt can be justified only when all the incriminating facts
and circumstances are found to be incompatible with the innocence of
the accused or the guilt of any other person. The circumstances from
which an inference as to the guilt of the accused is drawn have to be
proved beyond reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from those
circumstances."
"12. The circumstance of last seen together does not by itself and
necessarily lead to the inference that it was the accused who committed
the crime. There must be something more establishing connectivity
between the accused and the crime. Mere non-explanation on the part
of the appellant, in our considered opinion, by itself cannot lead to
proof of guilt against the appellant."
"15. The theory of last seen - the appellant having gone with the
deceased in the manner noticed hereinbefore, is the singular piece of
circumstantial evidence available against him. The conviction of the
appellant cannot be maintained merely on suspicion, however strong it
may be, or on his conduct. These facts assume further importance on
account of absence of proof of motive particularly when it is proved
that there was cordial relationship between the accused and the
deceased for a long time. The fact situation bears great similarity to
that in Madho Singh vs. State of Rajasthan (2010) 15 SCC 588
[LQ/SC/2002/1014]."
(c) In Sahadevan and Another vs. State of Tamilnadu, (2012)6
Supreme Court Cases 403 : it has been observed as under:
"28. With the development of law, the theory of last seen has become a
definite tool in the hands of the prosecution to establish the guilt of the
accused. This concept is also accepted in various judgments of this
Court. The Court has taken the consistent view that where the only
circumstantial evidence taken resort to by the prosecution is that the
accused and deceased were last seen together, it may raise suspicion
but it is not independently sufficient to lead to a finding of guilt.
"30. Even in the case of State of Karnataka v. M.V. Mahesh [(2003) 3
SCC 353], this Court held that merely being last seen together is not
enough. What has to be established in a case of this nature is definite
evidence to indicate that the deceased had been done to death of
Apeal-1286-2022
which the respondent is or must be aware as also proximate to the
time of being last seen together. No such clinching evidence is put
forth. It is no doubt true that even in the absence corpus delicti it is
possible to establish in an appropriate case commission of murder on
appropriate material being made available to the Court.
"31. In the case of State of U.P. v. Satish [(2005) 3SCC 114], this
Court had stated that the principle of last seen comes into play
"where the time gap between the point of time when the accused
and the deceased were last seen alive and when the deceased is
found dead is so small that possibility of any person other than the
accused being the author of the crime becomes impossible."
"32. Undoubtedly, the last seen theory is an important event in the
chain of circumstances that would completely establish and/or
could point to the guilt of the accused with some certainty. But this
theory should be applied while taking into consideration the case of
the prosecution in its entirety and keeping in mind the
circumstances that precede and follow the point of being so last
seen."
18. Therefore, considering the evidence PW 4, PW 5 and PW 10, this court
cannot come to a conclusion that the circumstance of last seen together has
been cogently proved by the prosecution. As rightly held in the judgement
cited by the Ld. Counsel for the Appellant that there can be no fixed or
straitjacket formula for the duration of time gap and it would depend upon the
evidence led by the prosecution to remove the possibility of any other person
meeting the deceased in the intervening period. In the present case also the
prosecution has not been able to lead any such evidence to show that the
likelihood of some person other than the accused-appellant being the author of
the crime was impossible, in which circumstance, even though there would
have been a long duration of time, the same could have been considered as one
of the circumstances in the chain of circumstances to prove the guilt against
Apeal-1286-2022
such accused-appellant. The prosecution has also not demonstrated that the
Appellant was in exclusive possession of the place where the incident occurred
or where the body of the deceased was found. As per PW 1, the body was
found on 04/09/2016 near the field of one Masjid Abbas Pathan on the side of
the road, whereas the deceased was last seen with the Appellant on
02/09/2016, as per the deposition of PW 4 and PW 5. Therefore, in such
circumstances, it cannot be said that there was no possibility of any intrusion
in that place by any third-party or that it was well neigh impossible for any
third party to get an access to that place.
19. The next circumstance is recovery of bloodstained clothes and weapon
of assault i.e axle having bloodstains. To prove this circumstance, the
prosecution has examined PW 3. During evidence, the PW 3 has deposed that
on 10/09/2016, he was called to act as a panch. He has deposed that he saw
the accused seated there and API Bhosale told that Panchnama is to be
conducted. He has further deposed that it was told that they have to go where
the clothes and Axle rod is kept. Thereafter, by a private vehicle PW 3, along
with Accused and police officer went to the place where the offence had
occurred which was shown by the accused. He has further deposed that they
travelled via Baramati, Phaltan and reached Kolhapur and then reached
Kurunwad and the vehicle was asked to be stopped near the house of the
accused. He has further deposed that there was a garbage heap of cow dung in
Apeal-1286-2022
front of the house of the accused and the accused produced clothes and rod
which were in green coloured carry bag, put in the garbage heap of cow dung.
He has deposed that there was a T-shirt having bloodstains on it and a grey
coloured pant which were seized and sealed and memorandum panchanama
was prepared. However, in the cross-examination, the said witness has
categorically admitted that the cow dung place at Kurunwad was at open
place. He has also further deposed that from one side of that garbage heap,
anybody could approach there. Even the IO, PW 13 has categorically admitted
that he had seized shirt and rod from the open place at Kurundwad. In the
cross examination he has also admitted that the cow-shed had only the roof
and not walls. Therefore, such a recovery from open place loses its credibility
and evidentiary value.
20. A profitable reference can be made to the judgment of Kacharji Hariji v
State of Gujarat in Criminal Appeal 465 of 1967 (GHC), wherein the Hon'ble
Court has been pleased to observe as under :
"He took the police and panchas at a heap of cow- dung and dust and
therefrom produced a gunny-bag containing the stolen muddemal bottles
of medicines and remnants of boxes. As revealed from the panchnama,
proved by the panch witness, this cow-dung hill is used by Rabaris for
storing cow dung and dust. That place is accessible to anybody. It is also
not a case where something was hidden under the ground so that one
could even say reasonably that the appellant had the exclusive
knowledge. I am, therefore, of opinion that the prosecution has not
satisfactorily established the guilt of the accused-appellant The order of
conviction and sentence, passed against the appellant therefore, cannot
be sustained."
Apeal-1286-2022
21. Further it is the case of the prosecution that the proceedings relating to
the recovery panchnama was video recorded. PW 3 has stated in his evidence
that he has not witnessed any such recording having been done. This is an
additional factor which makes the recovery doubtful and therefore cannot be
taken as a circumstance against the Appellant.
22. Further the evidence of PW 11, Rohit Wadekar completely demolishes
the case of the prosecution about recovery of the Axle rod, as PW 11 has
deposed that the clothes of the deceased and the axle rod were shown to him
by the police at the police station. Although he has not specified the date
when it was shown to him, but from the deposition, if read in entirety, it can
be unequivocally gathered that when they went to Daund Police Station on the
day when the body was recovered, they were shown the axle rod by which the
deceased was assaulted on the head. Thus, the recovery of clothes of the
accused and the axle rod shown on 10/09/2016 at the instance of the Accused-
Appellant is a mere eyewash. Further even though the jacket of the Accused
was shown to have bloodstains of 'A' group which is of the deceased, in the
absence of cogent evidence about recovery, finding of bloodstains on the jacket
of the Accused-Appellant of 'A' group which is of the deceased, pales into
insignificance.
Apeal-1286-2022
23. The third circumstance is the Motive. The case of the prosecution is that
the accused in order to steal/rob the amount of approx. Rs. 40,000/- to Rs.
45,000/- which was received by the deceased from businessman Krishna Bhoi
(after deducting the expenses for vehicle repairs) has committed the murder of
the deceased. It is the case of the prosecution that the accused was working as
a driver of the vehicle which was owned by PW 4. PW 5 is the owner of fish
shop and was into the business of transporting fish to Pune, Mumbai and
Jalgaon. PW 5 had hired the vehicle from PW 4 to deliver fish. After the fish
were loaded in the Vehicle, the accused was paid 5000/- for the delivery and
the deceased had gone along with the accused in the vehicle at the request of
PW5. It has further come in evidence that when the vehicle broke down, the
deceased had made a phone call from the phone of the accused and informed
that the vehicle had broken down, upon which PW 5 asked him to wait there
and he sent one Krishna Bhoi to the said place. Further it has come in the
evidence that Krishna Bhoi had handed over Rs.52,000 to the deceased. After
the amount was paid for the repairs of the vehicle, the balance of Rs. 40,000/-
to Rs. 45,000/- was with the deceased. The prosecution has tried to establish a
case that the avarice and greed overpowered the accused and the Accused with
the intention to steal/rob the amount from the deceased, had killed the
deceased. Further to establish the theory of motive and to show a recovery of
Rs. 41,000/- as the same amount which the Accused had stolen from the
deceased, the prosecution examined PW 7 Amar Aarge, who is the brother-in-
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law of the accused and it was tried to be brought on record that this amount of
Rs. 41,000/- was handed over by the accused to his brother-in-law by calling
him near a place called Arjunwad. The story of the prosecution does not
inspire confidence for various reasons. Firstly, PW 2, who was a panch witness
to the recovery of Rs. 41,000/- from PW 7, has turned hostile. Secondly the
theory of the prosecution that Accused committed murder of the deceased out
of greed and avarice is based on conjectures and surmises with no cogent and
convincing material to support this theory and thirdly the evidence of PW 7,
the brother in law, who has also not supported the prosecution case. In the
substantial evidence, PW 7, the brother-in-law has categorically denied the
theory of recovery and has stated that he was forced to bring Rs.41,000/- by
the police under coercion that if he does not get Rs. 41,000/- the other family
members would be falsely implicated in the case. Therefore, the recovery of Rs.
41,000/- has also not been cogently proved by the prosecution and
consequently the motive also does not get proved, although in the cross
examination it was brought on record that for the coercion by the police to get
Rs.41000/-, no complaint was lodged. To establish motive there should be
cogent and convincing evidence.
24. In the case of Ramanand @Nandial Bharti Vs State of Uttar Pradesh
reported in 2022 AIR Supreme Court 5273, it has been observed that:-
"90. Thus, even if it is believed that the Appellant-Accused had a motive to
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commit the crime, the same may be an important circumstance in a case
based on circumstantial evidence but cannot take the place as a conclusive
proof that the person concerned was the author of the crime. One could
even say that the presence of motive in the facts and circumstances of the
case creates a strong suspicion against the Appellant-Accused but suspicion,
howsoever strong, cannot be a substitute for proof of the guilt of the
Accused beyond reasonable doubt."
25. Apart from the aforementioned circumstances which the prosecution
has failed to establish, the other factors which also tilt in the favour of the
Accused are that, firstly the prosecution in order to establish that the accused
was with the deceased had written letters to toll plazas at Daund, Baramati
and Satara for obtaining CCTV footages, however, for the reasons best known,
the investigating agency has failed to produce any CCTV footage on record
and therefore an adverse inference needs to be drawn. Secondly, if at all the
story of the prosecution had to be believed, then the prosecution ought to have
examined business man Krishna Bhoi, who was a material witness, as he was
the one who had actually last seen the Appellant and the Deceased together on
03/09/2016 when he had visited the place where the vehicle had broken
down and after transferring the fish from the said broken down vehicle to his
vehicle had handed over cash to the deceased. There is no explanation as to
why such an important witness has not been examined or withheld by the
prosecution. Thirdly the conduct of the Accused is also not unnatural. After
the incident in question, the Accused came back to Kurundwad, Kolhapur and
was following his normal pursuits till the time he was arrested on 08/09/2016
and had not absconded.
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26. The Ld. Counsel for the Appellant had strenuously argued that the
identity of the deceased has not been established. He would argue that his
own relatives viz PW 6 and PW 11 have not deposed in their substantial
deposition that they had revealed the identity of the deceased to the IO. He
further submitted that the letter dated 04/09/2016 marked as Exhibit 98 by
which PW 13 informed the Medical Officer to issue post mortem in the name
of Sushant Wadekar based on PW 11 identifying the deceased cannot be said
to be admissible in evidence, as mere marking of a documentary exhibit is
essentially for the purpose of location of the document in the record and the
fact that document is exhibited does not by itself make it admissible or prove
its contents. We are not in agreement with this particular submission of the
Ld. Counsel for the Appellant that marking of a document as 'Exhibit' is only
for the purpose of locating the document in the record. Whenever a document
is marked as 'Exhibit' without objection, it will be presumed that a party
having right of objection has waived formal proof of the document and in such
a situation, the entire contents of the document would be admissible in
evidence. No doubt that by such admission of a document, the truth and
correctness of the contents by itself would not be established and there must
be some evidence to support the contents of such document. In the present
case also, the author of the document i.e PW 11 has tendered the
document/letter written to the Medical Officer, which has been marked as
Exhibit 98, however he has not deposed about the contents of the same and
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therefore to that extent it qualifies only to be corroborative piece of evidence
which in the absence of substantial evidence, cannot be said to be establishing
the identity of the deceased.
27. Taking into consideration the evidence that has been brought on record,
it does not unerringly point towards the guilt of the Accused/ Appellant. No
doubt it raises suspicion about the involvement of the Appellant; however, it is
a settled law that suspicion, however strong it may be, cannot take the place of
proof beyond reasonable doubt and the Accused cannot be convicted on the
ground of suspicion, no matter how strong it is. An Accused is presumed to be
innocent unless proved guilty beyond reasonable doubt. The circumstances
brought on record also do not form a complete chain so as to lead to an
irresistible conclusion about the involvement of the Appellant in the present
crime.
28. We are satisfied that the prosecution has failed to bring home the guilt
of the Appellant beyond reasonable doubt and therefore the Appellant
deserves to be acquitted. The trial court has failed to appreciate the evidence
on the touchstone of the settled principles of law and has therefore
erroneously returned a finding of conviction.
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29. Since we have come to a conclusion that charge under Section 302 IPC
has not been proved beyond reasonable doubt on the strength of
circumstantial evidence indicting the present Appellant, consequently the
charge under section 201 IPC also fails.
30. As a result, we pass the following order:
i. Appeal is allowed.
ii. The conviction and sentence of the Appellant under Section
302 r/w 201 of Indian Penal Code recorded vide impugned
judgment and order dated 08/08/2022, passed by Sessions
Court is quashed and set aside and the Appellant is acquitted
of all the charges he is charged with.
iii. The Appellant be released forthwith if not required in any
other case.
iv. Before being released, the Appellant shall execute P.R.
Bond in the sum of Rs.25,000/-, under Section 481 of the
Bharatiya Nagrik Suraksha Sanhita, 2023 (corresponding to
Section 437A of the Cr. P.C.) for his appearance, in the event
an appeal is preferred against his acquittal.
31. Appeal stands disposed of accordingly. Pending Applications, if any,
also stand disposed of.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)
