Amir Bhaiya Sayed v. The State of Maharashtra

Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 2 ::R/o Pimparkhed, Tq. Ashti, Dist. Beed....RESPONDENTS.......Mr. S.J. Salunke, Advocate for appellantsMrs. K.B. Patil Bharaswadkar, A.P.P. for respondent ....…WITHCRIMINAL APPEAL NO.833 OF 2022Ajit Mahadeo IthapeAge 29 years, Occu. Agri,R/o Chincholi, Tq. Ashti, Dist. Beed...APPELLANTVERSUSThe State of Maharashtra through the Police Inspector, Ashti Police Station, Tq. Ashti, Dist. Beed...RESPONDENTS.......Mr. Sanjiv Deshpande, Senior Advocate withMr. A.L. Kanade, Advocate for appellantMrs. K.B. Patil Bharaswadkar, A.P.P. for respondent ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 5th March, 2025Date of pronouncing judgment : 16th April, 2025J U D G M E N T (PER : R.G. AVACHAT, J.) :This group of three appeals takes exception to ajudgment and order of conviction and consequential sentence, Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 3 ::dated 18/1/2018, passed by the Court of Additional SessionsJudge, Beed in Sessions Case No.61/2016. The appellantsherein were the accused in the said Sessions Case. Theyhave been convicted and consequently sentenced for theoffence of murder and causing disappearance of evidencethereof. The details of their conviction and consequentialsentences is given in tabular form below :Sr.No.Sections Conviction & Sentence 1302 r/w 120-B IPCAppellants Hanumant & AjitImprisonment for life and fine ofRs.10,000/- each, in default R.I. for 4monthsAppellant AmirImprisonment for life and fine ofRs.1000/-, in default R.I. for 4months.2201 r/w 34 IPCR.I. for 3 years and fine of Rs.1000/-each, in default, R.I. for 2 monthsBoth the substantive sentences have been directed to runconcurrently. Along with the appellants, one more person(original accused No.4) was tried. He stood acquitted. Neitherthe State nor the victim preferred appeal against his acquittal. Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 4 ::2.The facts, in short, giving rise to the appeals are asunder : Balasaheb Chavan (deceased) was a resident ofPimparkhed. He was agriculturist by profession. Besidesagriculture, he was in the business of a husk and moneylending as well. He did not hold licence for money lending. Hehad lent money to number of persons. Since his seconddaughter was of marriageable age, in the year 2016, he was inneed of money. He, therefore, started asking the borrowers topay back his money. The appellants were said to have beenindebted to him. With a view to avoid repayment of loanamount, the appellants conspired to eliminate him. Deceased Balasaheb left the house in theafternoon on 10/1/2016. He informed his family members thathe was going with Hanumant (Accused No.1, appellant inCriminal Appeal No.278/2019) to the place of his in-laws forpurchase of husk. He also informed that, if there was late forhim, he would stay overnight at the place of in-laws ofHanumant. Both Hanumant and deceased went to one Dhaba, Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 5 ::“Ranmala”. The appellants Ajit and Amir joined them there. Some of them did take wine and meal. Appellants Ajit andAmir went back and returned with four-wheeler of appellantHanumant. In the meanwhile, both the deceased andappellant Hanumant went towards Karjat on the motorcycle ofthe deceased. On way, the four got together. Again they wentto one hotel. Bought liquor bottle and consumed. Then all theappellants took Balasaheb to a secluded place. He wasstrangled with a seat belt of the car. He was assaulted with. The four-wheeler was run over his head. Then his dead bodywas taken and thrown by the side of Waki-Kanadi Road in thenight. The police patil of the village noticed the dead body. Areport to that effect was made to the Police Station Ashti.3.The police officer visited to the spot. Inquestpanchanama was drawn. The mortal remains of Balasahebwas subjected to autopsy. The medical officer opined thedeceased died of strangulation and severe head injury withmultiple injuries all over body. Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 6 ::4.P.W.1 Satish, brother of the deceased wasinformed. He lodged the F.I.R. (Exh.51), alleging theappellants to have killed his brother. The appellants werearrested. Clothes on the person of appellants were seizedpursuant to the disclosure statement made by appellantsHanumant and Amir. A seat belt was recovered pursuant tothe disclosure statements made by appellant Ajit. Scorpiovehicle was seized. The officials from Forensic ScienceLaboratory (FSL), Aurangabad inspected the vehicle frominside. They collected pieces of seat of the vehicle and otheritems of the vehicle. Clothes on the person of the deceasedwere also seized. The appellant Hanumant took theinvestigating officer to the place whereat the deceased wasdone to death. From that place, liquor bottles and otherarticles were seized besides earth. All the seized articles wereforwarded to FSL. CCTV footages captured in the CCTVinstalled at liquor shop/s were obtained. Hart Disk was alsotaken charge of. Cell phones were seized. CDRs. And SDRs.Were obtained. Upon completion of the investigation, theappellants were proceeded against by filing a charge sheet. Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 7 ::5.The Trial Court framed the charge. The appellantspleaded not guilty. Their defence was of false implication. 6.To bring home the charge, the prosecutionexamined 22 witnesses and produced in evidence certaindocuments. 7.The Trial Court, on appreciation of the evidence inthe case, convicted and consequently sentenced theappellants as stated above.8.The appellant Ajit was reported to have abscondedfrom jail. Other appellants are behind the bars for little over 9years. Initially we were not inclined to hear the appeal of theabsconding appellant Ajit. Later on, we allowed learned SeniorAdvocate to work out the appeal. Learned Senior Advocaterelied on the judgment of the Apex Court in case of DhananjayRai @ Guddi Rai Vs. State of Bihar, 2022 LiveLaw (SC) 597,wherein it has been observed :“8.The anguish expressed by the DivisionBench about the brazen action of the appellant ofabsconding and defeating the administration of Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 8 ::justice can be well understood. However, that isno ground to dismiss an appeal againstconviction, which was already admitted for finalhearing, for non-prosecution without adverting tomerits. Therefore, the impugned judgment willhave to be set aside and the appeal will have to beremanded to the High Court for consideration onmerits.” 9.Learned Advocates for the appellants would submitthat, the case was based on circumstantial evidence. Theyrelied on the principles enunciated in the case of SharadBirdichand Sarda Vs. State of Maharashtra (1984 CJ(SC) 262). They would also submit that, even the case ofthe prosecution was accepted as it is, there was a long gapbetween the appellants to have been last seen inthecompany of the deceased and finding of the dead body. Relying on the judgment of the Apex Court in case ofSuresh Chandra Tiwari & anr. Vs. State of Uttarakhand,2024 DGLS (SC) 1199, the learned Advocates wouldsubmit that, in the factual backdrop, the appellants couldnot be expected to offer explanation as to when did theypart with the company of the deceased or what they did withhim. It was further submitted that, most of the witnesses Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 9 ::were the relatives of the deceased. One of the witnesseswas detained by the police officials on suspicion. Hisevidence would, therefore, could not be said to bevoluntary. As regards the evidence in the nature of CCTVfootage, the learned Advocates would submit that there wasno Section 65-B Certificate in proof of secondary evidencein the nature of screen shots obtained in a DVD or pendrive. The original Hard Disk was never played before theCourt. So far as recovery of clothes, seat belt and thevehicle are concerned, the learned Advocates would submitthat, these articles were found at open places accessible toone and all. The seat belt could not be connected with theseized vehicle. While the articles were seized, the seizurepanchanamas do not demonstrate the articles to have beenstained with blood. The seized articles were sent to FSLvery late. There was no evidence about these articles tohave been properly seized and kept in safe until they weresubmitted to FSL. The learned Advocates meant to say thatthe possibility of tampering with the seized articles could notbe ruled out. They would further submit that, the blood Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 10 ::group of deceased and two of the appellants was one andthe same i.e. “A”. There was no evidence to indicate thatthe clothes seized were on the person of the appellants atthe time the crime was said to have been committed. Thelearned Advocate for the appellants Hanumant and Amirwould submit that, the investigating officer has admitted inso many words that these persons did not avail hand loanfrom the deceased. These appellants did not have motiveto eliminate the deceased Balasaheb. It was also submittedthat, the diaries maintained by the deceased have not beenduly proved. None of the prosecution witness pointed outany entry therein indicating appellant Ajit to have raisedloan from the deceased. It has also not been proved that, the entries were in the handwriting of the deceased. Thelearned Advocates made submissions threadbare toultimately submit for allowing the appeals.10.The learned A.P.P. would, on the other hand, submit that, there is voluminous evidence to indicate theappellants and the deceased were together on 10 January. They visited the Hotel Ranmala. Some of them wined and Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 11 ::dined there. The deceased had informed his widow andother family members that he would be going to the place ofin-laws of appellant Hanumant for purchase of husk and ifthere was late, he would stay overnight there. The CCTVfootages indicate the deceased and appellants Hanumantand Amir were together until 7.30 p.m. They were seengoing on motorcycle of Hanumant. The medical officer hasopined that the death took place beyond 12 hours of thepost mortem examination. The time of death indicate thatat the material time the appellants were in the company ofthe deceased. The appellants, therefore, owe explanationas to when did they part with company of the deceased orwhat they did with him. The appellants made disclosurestatement, pursuant to which the clothes, seat belt and thevehicle came to be seized. The seized articles werestained with blood of the Group “A”. The blood of thedeceased was of the very group. The appellant Hanumantmade a disclosure statement and pointed out the crimescene wherefrom liquor bottles were seized besides otherarticles. The DVD was sent to FSL along with photographs. Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 12 ::The FSL report indicate the vehicle of the deceased wasseen at the liquor shop. The photographs of appellantsHanumant and Amir matched with the persons appearing inthe scene captured in the DVD. The learned A.P.P. wouldfurther submit that, the CDRs. and SDRs. vouch for theprosecution case. The tower location indicate the appellantHanumant was in the vicinity at the crime scene and at theplace where the dead body was dumped. In thecircumstances, the appellants owed explanation. Theirsilence and mere denial go a long way to add to theprosecution case. According to learned A.P.P., althoughsome of the prosecution witnesses were related to thedeceased, they were natural witnesses. Their evidencecannot be disbelieved merely on the ground of beingrelatives of the deceased. According to learned A.P.P., nointerference with the impugned order of conviction andconsequential sentences is warranted. She, therefore, urged for dismissal of the appeals.11.Considered the submissions advanced. Perusedthe judgment impugned herein. Since the case is based on Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 13 ::circumstantial evidence, the following circumstances weresought to be proved, to bring home the charge. (1)Homicidal death,(2) Motive,(3)Last seen together,(4)Recoveries pursuant to disclosure statements,(5)CCTV footages,(6)CDRs/ SDRs and tower locations of cell phones.12.In case of Sharad Sarda (supra), the Apex Courtobserved :“152. A close analysis of the decision wouldshow that the following conditions must befulfilled before a case against an accused can besaid to be fully established :(1)the circumstances from which theconclusion of guilt is to be drawn should befully established.It may be noted here that this Court indicatedthat the circumstances concerned must or shouldand not ‘may be’ established. There is not onlya grammatical but a legal distinction between‘may be proved’ and ‘must be or should beproved’ as was held by this Court in (ShivajiSahebrao Bobade v. State of Maharashtra, Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 14 ::(1973) 2 SCC 793, where the followingobservations were made : “certainly, it is a primary principle that theaccused must be and not merely may beguilty before a Court can convict and themental distance between ‘may be’ and‘must be’ is long and divides vagueconjectures from sure conclusions.”(2)the facts so established should beconsistent only with the hypothesis of the guiltof the accused, that is to say, they should not beexplainable on any other hypothesis except thatthe accused is guilty,(3)the circumstances should be of conclusivenature and tendency,(4)they should exclude every possiblehypothesis except the one to be proved, and(5)there must be a chain of evidence socomplete as not to leave any reasonable groundfor the conclusion consistent with the innocenceof the accused and must show that in all humanprobability the act must have been done by theaccused.”Homicidal Death :-13.It is not in dispute that the dead body of Balasahebwas found by the side of the road by 10.00 in the morning. Areport to that effect was made to the concerned Police Station. The police officers rushed to the spot. The inquest Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 15 ::panchanama (Exh.52) was drawn on the spot. Mortal remainsof Balasaheb were sent to the hospital for autopsy. P.W.17 Dr.Vishal conducted the autopsy. The autopsy report (Exh.118)does indicate number of injuries were noticed on the person ofthe deceased. He died due to strangulation. The deceasedmet with homicidal death is not disputed before us. Motive :14.The deceased was an agriculturist. Besidesagriculture, he was in the business of husk. He, however, alsosaid to have been lending money on interest. P.W.1 Satish, brother of the deceased, P.W.13 Meena (widow of thedeceased) and even his son-in-law P.W.7 Sanjay testified that, the deceased would lend money for interest. Since hisdaughter was of marriageable age, he was in need of money.He had, therefore, started asking his debtors to pay back theamount advanced as loan. The investigating officer has, however, admitted that, he did not get any evidence indicatingthe appellants Hanumant and Gajanan had not received anyamount from the deceased as hand loan. Although threepocket diaries were seized under the panchanama (Exh.67) in Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 16 ::the presence of Ajinath (P.W.4), not a single prosecutionwitness referred to any of the pages in those diaries to showthe names of appellants Ajit and Amir appearing therein aspersons to whom money was advanced. No witness testifiedthat the entries in the diaries were in the handwriting of thedeceased.15.P.W.3 Bapu testified that, he would run a Bhishi(Chit Fund). Appellant Ajit and acquitted accused Gajananwere members of his Bhishi. He claimed to have heard boththe appellants Ajit and Gajanan to have talked inter-seregarding the deceased to have been harassing appellant Ajitfor refund of money advanced by him. Ajit was also said tohave told Gajanan that the deceased would visit his poultryfarm and take away hens. He further testified that, both havediscussed of doing away with the deceased so that the amountdue to him would be saved.16.According to P.W.3, the said incident took placeone year before the deceased was done to death. He did notreport the said incident to anyone else no sooner he heard Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 17 ::such talk between appellant Ajit and Gajanan. The evidence ofP.W.3 Bapu is, therefore, found to be unreliable.17.P.W.1 Satish (brother of the deceased) lodged theF.I.R. (Exh.51). Whatever narrated by him in the F.I.R. and inhis oral evidence was totally based on hear-say as regards thedeceased to have been in the company of the appellantHanumant and others since the day prior to the incident. Admittedly, he lodged the F.I.R. on suspicion. True, he testifiedthat the deceased would lend money and the appellants hadborrowed money from the deceased. Except his bare words, there is no evidence to reinforce the same. His evidencewould, therefore, be relevant only to the extent of setting thecriminal law in motion. Last seen together :18.P.W.2 Chandrakant testified that, he would run aTea Stall and do husk business. Deceased Balasaheb was hispartner in the husk business. He was in the company of thedeceased on 9/1/2016. At village Rui Nalkol they purchasedhusk and sent to Sahajpur. Balasaheb (deceased) called him Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 18 ::to Dhanora on the next day. Since they proposed to go tovillage Chobha Nimgaon for purchase of husk, he, therefore, went to Dhanora by 10.00 in the morning. Balasaheb(deceased) was not there. He received his phone call. Hegave the cell phone numbers of the deceased as 9420302924and the other one with the last digits 5151. DeceasedBalasaheb asked him to come to Kada. He went there inautorickshaw. He met the deceased Balasaheb. Both of themwent to the field of one Ishwar Thete. They could not purchasehusk there. Then they went to Rui Nalkol. Both of them wentto Hotel Radhai for lunch. It was 1.30 p.m. Deceasedreceived a phone call from Hanumant (A/1). After the call wasover, deceased Balasaheb told him that Hanumant (A/1) toldhim that husk was available at cheaper rate at the village of hisin-laws in Karjat Taluq. He also informed him that if he gotdelayed, he would stay at the place of in-laws of Hanumant(A/1). Therefrom both of them went to Kada on the motorcycleof the deceased. There they went to the house of one DadaShelke. He gave deceased Rs.18,600/- as a price of husk. The deceased gave Rs.6600/- to Shelke and kept remaining Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 19 ::amount with him. Therefrom both of them went to the house ofthe deceased. The deceased Balasaheb changed the clothes. Told his wife that he was going with Hanumant (A/1). Hefurther testified that, both of them then went to “RanmalaDhaba” at Chincholi Phata. They reached there by 3.00 p.m.Hanumant (A/1) and Ajit (A/2) along with one Atul Ekshingeand owner of the Dhaba- Akash Adagale were present there. They were taking meals. Hanumant (A/1) went on motorcycleand returned with two liquor bottles (quarters). He anddeceased Balasaheb sat together. Both of them consumedliquor. Appellant Ajit went to them. They discussed overmoney transaction. After meals were over, the appellantHanumant and deceased together went on motorcycle. Thenappellant Ajit and Atul went to Kada on the motorcycle. Hewas also with them. All of them took tea at the Tea Stall of oneBokke Khod. Appellant Ajit received a phone call. Heimmediately left after telling him that there was some problemwith hens (poultry). He left him (P.W.2 Chandrakant) atChincholi Phata and went to Dhanora. He then went toPimparkhed on the motorcycle of one Krishna Chaudhary. On Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 20 ::the following day, he learnt about the dead body of Balasahebto have been found.19.P.W.2 Chandrakant was subjected to a searchingcross-examination. He testified that, the deceased was hisrelative. He was not on visiting terms with P.W.1 Satish(brother of the deceased). Both Satish and Balasaheb wereresiding separately. He was confronted with his policestatement, which was silent to record therein that he was friendof Balasaheb (deceased) and would do business of husk inpartnership with him. He had no reason to visit “HotelRanmala”. He did not see the appellant Hanumant and thedeceased Balasaheb on motorcycle on Karjat Road or atDamalwadi. He admitted that, he did not have money for huskbusiness. He admitted that, he had never been in thebusiness of husk. He was prompt to state that he was notdoing such business independently. He meant to say that hewas doing the said business in partnership with deceasedBalasaheb. It was, however, suggested to him that, he was inthe company of the deceased up to 3.30 p.m. on 10/1/2016.He further admitted that, thereafter he was not in his company. Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 21 ::20.The appreciation of the evidence of this witnessindicate that he was the relative of the deceased. There is noevidence to indicate that he was doing business of husk inpartnership with the deceased. It was, however, suggested tohim on behalf of the appellant Hanumant that, he was in thecompany of the deceased until 3.30 p.m. This suggests thisappellant admits both of them to have been together at leastby that time.21.P.W.13 Meena (widow of the deceased) testifiedthat, deceased and P.W.2 Chandrakant had come to thehouse. The deceased changed the clothes and left. Heinformed her that he was going to buy husk at the place of in-laws of appellant Hanumant. He also told her that if there waslate, he would stay there overnight.22.We have no reason to disbelieve the evidence ofthe widow of the deceased. But, what can be proved by herevidence is that the deceased left the house informing that hewould be in the company of the appellant Hanumant. Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 22 ::23.P.W.5 Akash would run a hotel taken on lease fromthe father of appellant Ajit. He testified that, by 10.00 in themorning of 10 January, he was at his hotel. AppellantHanumant brought with him a chicken for dining. Appellant Ajitwas also with him. Atul Ekshinge had already been at thehotel. Both the appellants Hanumant and Ajit consumed liquorand took meals. Thereafter Balasaheb (deceased) joinedthem. He was accompanied by one person. He had notknown Balasaheb. He had facial acquaintance with him as heused to visit his hotel for tea. After taking the meal, all of themleft. Appellant Ajit and Atul left on one motorcycle. Whileappellant Hanumant and deceased Balasaheb left on another. They left in different directions. He further testified that, againafter a while, appellant Ajit and Atul came to his hotel. Theywere there for 10 minutes. They informed him to have beencalled by appellant Hanumant and they were proceeding to joinhim. He, however, testified that, he did not know towardswhich village they went. Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 23 ::24.In the cross-examination, he testified that, thepolice had detained him for 2-3 days in connection with thevery crime. He was scared of police. The evidence of this witness does not further theprosecution case. According to learned Advocate for theappellants, his testimony was not voluntary as he deposedunder pressure of police. Even we accept his testimony as itis, it does only make a case of deceased and appellantsHanumant and Ajit to have been together at his hotel and thendid part ways. The appellant Hanumant and deceasedBalasaheb went together. While Ajit and Atul went in differentdirections. This witness did not state to have seen all the fouragain together. He even did not state at what time they left hishotel. It was afternoon according to the witness. It would, therefore, be anybody’s guess whether the four parted ways by12.00 noon or by 3.00 p.m.25.The other evidence on the point of last seen is thatof P.W.19 Vitthal. He would run “Shivani Wine Shop” at Karjat.He testified that, on 15/1/2016, the police had come to his Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 24 ::shop and asked for CCTV footage of 10/1/2016. He, therefore, called the Operator. The CCTV footage of the day was seen. Three persons were seen taking away liquor and water bottlesfrom his shop. A motorcycle was parked in front of the shop. The police officer Shri Aher (P.W.22) took the CCTV footage ina pen drive.26.P.W.14 Rajendra was a panch witness, in whosepresence CCTV footage was obtained by the police officer ShriAher. According to this witness, the appellant Hanumant madea disclosure statement and took them to the wine shop on15/1/2016. The police officials seen the CCTV footage at theshop. He along with the police watched the same. In thefootage, A/1 and A/3 were seen. Appellant Hanumant thentook them to a secluded place at a hilly area towards villageDawalwadi (Khandobache Malran). At the spot, there wereempty liquor and water bottles. There was blood on theground. Police seized those articles and collected blood mixedsoil. Then he took them to a place nearby Gosavi Temple. Atthe spot, there were wheel marks on the road. A blue Chappalwas found. Then the appellant Hanumant took them to one Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 25 ::Nim tree at village Waki. In the cross-examination, the witnesstestified that, except statement that he will show the spot, nothing was disclosed by appellant Hanumant. A DVD wasplayed in the open Court. He identified the A/1 and A/3 seenon the screen.27.The seized Hard Disk was sent to FSL along withsome photographs of appellants Hanumant and Amir. Thereport thereof was heavily relied by the learned A.P.P. It is atExh.147. Close reading of the report would indicate that thepersons seen on the screen were similar to that the personsappearing in the photographs. Not a single witness testifiedthat during investigation photographs of any of the appellantswere snapped. Although it was stated that the report wasaccompanied with Section 65-B Certificate, we did not comeacross such certificate. The Hard Disk was played to P.W.19.So far as regards other aspects are concerned, the FSL couldnot give its report.28.On the question of the CCTV footage collected inpen drive and played in the open Court, while evidence of Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 26 ::P.W.14 was being recorded, the same has not been supportedby Section 65-B Certificate. The contents of the pen drivebeing secondary evidence, uncertified by Section 65-BCertificate, is inadmissible in evidence. Same is the caserelating to contents of Hard Disk.29.With a view to do complete justice and with theconsent of parties, we tried to play the Hard Disk in the openCourt. The official of the Computer Department told us that theDVD was blank. Other circumstantial evidence:-30.Although the Scorpio jeep was seized pursuant tothe disclosure statement made by the appellant Hanumant, itwas inspected by the investigating officer and nothingincriminating was found. After 8 days of the seizure of thevehicle, experts from FSL were summoned to inspect thevehicle from inside. They allegedly collected some seat coverparts from the vehicle. Who was that official is not known. Hehas not been examined. While the witness in whose presencethe vehicle was seized and inspected (P.W.9 Ashok) testified Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 27 ::nothing incriminating was seen in the vehicle. The C.A. reportas regards those articles even though borne blood stains, would, therefore, be of little consequence to further theprosecution case. Discovery of the spot whereat liquor andwater bottles were found with blood mixed soil too is of littleconsequence. Since Blood Group “A” although was of thedeceased, even two of the appellants have the same bloodgroup.31.The appellant Ajit made a disclosure statement, pursuant to which a seat belt was recovered. The seat beltwas sent for chemical analysis. The report thereof indicates itborne blood stains of Group “A”. The investigating officer didno exercise to suggest that the said seat belt was of the seat ofthe seized Scorpio jeep since such was the prosecution case.32.Although a shirt and trouser of appellantsHanumant and Ajit came to be seized pursuant to disclosurestatement made by appellant Hanumant, not a single witnesstestified that on 10 January, both of them were sporting theseclothes. There is also no evidence to indicate as to whether Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 28 ::those clothes were matching with the measurement so as to fiton their person.33.On arrest of the appellants, although cell phoneswere seized, the cell phones of two of them namely Ajit andAmir did not bear any SIM Card. The SIM cards of particularnumber alleged to have been used by both of them were in thename of someone else, namely P.W.11 Bandu and P.W.15Machindra. Although CDRs and SDRs placed on record wereadmitted in evidence on behalf of appellant Hanumant, thesame could not be used against other appellants for want ofSection 65-B Certificate or they are proved through theconcerned Nodal officer of the Cellular Companies. The saidrecord was not relied on before us. Same is the case aboutthe cell phone number of appellant Hanumant. The SIM Cardthat was used by him too stood in the name of his employee. Although these witnesses have testified accordingly, it cannotbe said that those facts have been proved conclusively so asto connect the appellants with the crime in question. Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 29 ::34.Reliance was placed on the judgment of the ApexCourt in case of Suresh Chandra Tiwari & anr. Vs. State ofUttarakhand [ 2024 DGLS (SC) 1199 ], wherein the ApexCourt observed thus : “26.The circumstances of deceased being lastseen alive in the company of the deceased is a vitallink in the chain of other circumstances but on itsown strength it is insufficient to sustain convictionunless the time-gap between the deceased being lastseen alive with the accused and recovery of deadbody of the deceased is so small that possibility ofany other person being the author of the crime isjust about impossible. Where the time-gap is large, intervening circumstances including act by somethird person cannot be ruled out. In such a case, adverse inference cannot be drawn against theaccused merely because he has failed to prove as towhen he parted company of the deceased.” 35.Similarly, in case of Malleshappa Vs. State ofKarnataka [ 2007 DGLS (SC) 1063 ], the Apex Courtobserved :-“23. In the light of the evidence available on record, can it be said that the circumstances of last seentogether by itself and necessarily lead to the inferencethat it was the appellant who committed the crime? TheHigh Court took the view that accused Nos. 6 and 7 areentitled to the benefit of doubt though, PW-10 stated inher evidence that the appellant, accused Nos. 6 and 7took her son Yankanna on the fateful day. No motivewas shown with regard to accused Nos. 6 and 7 for their Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 30 ::involvement in the crime. It is under thosecircumstances, the High Court said that the burdenshifts to the appellant to show as to what happened tothe deceased-Yankanna. In our considered opinion, theHigh Court committed serious error in arriving at suchconclusion. The first information report lodged by PW-10 itself is highly doubtful. PW-10's evidence itself doesnot reveal any circumstances to hold that theprosecution has established the charge against theappellant. The appellant's failure to offer anyexplanation in his statement under Section 313 Cr.P.C.is not a circumstance to hold appellant guilty of thecharge. The prosecution has failed to establish as towhen the death of Yankanna took place, it could be atany time between 12th July, 2001 to 21st July, 2001.There is nothing on record to show as to what transpiredbetween 12th July, 2001 to 21st July, 2001. Mere non-explanation on the part of the appellant, in ourconsidered opinion, by itself cannot lead to proof ofguilt against the appellant. Learned Counsel for theState relied upon the decision in Mohibur Rahman andAnr. v. State of Assam which in fact is in support of thedefence and nor the prosecution...The circumstance of last seen together does not byitself and necessarily lead to the inference that it was theaccused who committed the crime. There must besomething more establishing connectivity between theaccused and the crime. There may be cases where onaccount of close proximity of place and time betweenthe event of the accused having been last seen with thedeceased and the factum of death a rational mind maybe persuaded to reach an irresistible conclusion thateither the accused should explain how and in whatcircumstances the victim suffered the death or shouldown the liability for the homicide. In the present casethere is no such proximity of time and place. As alreadynoted the death body has been recovered about 14 daysafter the date on which the deceased was last seen in thecompany of the accused. The distance between the twoplaces is about 30-40 kms. The event of the two accusedpersons having departed with the deceased and thus lastseen together (by Lilima Rajbongshi, PW6) does notbear such close proximity with the death of victim by Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 31 ::reference to time or place. According to Dr. Ratan Ch.Das the death occurred 5 to 10 days before 9.2.1991.The medical evidence does not establish, and there is noother evidence available to hold, that the deceased haddied on 24.1.1991 or soon thereafter. So far as theaccused Mohibur Rahman is concerned this is thesingular piece of circumstantial evidence availableagainst him. We have already discussed the evidence asto recovery and held that he cannot be connected withany recovery. Merely because he was last seen with thedeceased a few unascertainable number of days beforehis death, he cannot be held liable for the offence ofhaving caused the death of the deceased. So far as theoffence under Section 201 IPC is concerned there is noevidence worth the name available against him. He isentitled to an acquittal. 24. In the present case also, there is no proximity oftime and place. We have already noted that the deadbody, even if it is to be accepted, was that of thedeceased-Yankanna, had been recovered after 10 daysafter the date of which the deceased was last seen in thecompany of the appellant. This singular piece ofcircumstantial evidence available against the appellant, even if the version of PW-10 is to be accepted, is notenough. It is fairly well settled that the circumstantialevidence in order to sustain the conviction must becomplete and incapable of explanation of any otherhypothesis than that of the guilt of the accused. It is trueas has been held by this Court in Lakshmi and Ors. v.State of U.P. that it is not an inflexible rule that theidentification of the body, cause of death and recoveryof weapon with which the injury may have beeninflicted on the deceased though are factors to beestablished by the prosecution but it cannot be held as ageneral rule and broad proposition of law that wherethese aspects are not established, it would be fatal to thecase of the prosecution and in all eventualities, it oughtto result in acquittal of those who may be charged withthe offence of murder provided the charges against theaccused otherwise can be established on the basis of theother reliable and trustworthy evidence.” Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 32 ::36.P.W.2 Satish (informant/ brother of the deceased)has testified that, all the four accused (3 of the appellantsherein and acquitted one) were of different villages. They didnot share common caste. Even two of them namely appellantHanumant (A/1) and the acquitted one had admittedly nottaken any amount as a hand loan from the deceased. There isalso no witness to indicate appellant Ajit and the otherappellant had borrowed some money from the deceased. While all the four were together along with the deceased at thehotel, it was not beyond 3.00 p.m. Even therebefore, appellantAjit had left the company of the deceased and appellantHanumant. There is no evidence at all to indicate theappellant Ajit had thereafter joined them. The dead body of thedeceased was found on the following day by little past 10.00 inthe morning. Although the deceased admittedly met withhomicidal death, the Medical Officer who conducted theautopsy did not state in examination-in-chief even approximatetime of death. It was only brought on record through cross-examination undertaken on behalf of A/1. The Medical Officerthen testified that death had occurred 12 Hours beyond the last Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 33 ::meal. Even this evidence may take us to presume that thedeceased was alive on the night of 10 January, there being along gap between the appellant to have been seen by P.W.5Akash and admitted by appellant Hanumant himself that hewas with the deceased by 3.00 p.m. In view of theobservations of the Apex Court in the cases referred tohereinabove, the time gap between last seen together andfinding of the dead body was so large, possibility of the crimeto have been committed by someone else could not be ruledout. More so when the prosecution case is that the appellantsand one acquitted accused to have committed murder infurtherance of their common intention and conspiracy as well.It is reiterated that, one of the four has already been acquitted. There is no evidence to indicate the appellant Ajit was seen inthe company of the deceased and appellant Hanumant orappellant Amir. As such, the case of the prosecution that thefour came together and did eliminate deceased Balasahebwould be a far-fetched inference. The evidence of each andevery witness has been appreciated while adverted theretohereinabove. The circumstantial evidence in the nature of Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 34 ::seizure of articles such as clothes, seat belt, vehicle and C.A.report pertaining thereto, indicating some of them to haveborne blood of Group “A” does not lead us to conclude theprosecution to have conclusively established involvement ofthe appellants in the crime in question. The seized articleswere sent to FSL on 9/2/2015 i.e. 27 days after the seizure. There is no evidence that those were kept safet ill date ofdelivery at FSL. The appellants are behind the bars for littleover nine years. In our view, the appreciation of the aforesaidevidence lead us to conclude the prosecution to have failed tobring home the charge beyond reasonable doubt. Interferencewith the impugned order is, therefore, called for. 37.In the result, the appeals succeed. Hence theorder :-O R D E R(i)The Criminal Appeals are allowed.(ii)The order of conviction and consequential sentence, dated 18/1/2018, passed by the Additional Sessions Judge, Beed in Sessions Case No.61/2016 is hereby set aside. The Cri. Appeal No.174/2018 with 278/2019 & 833/2022:: 35 ::appellants are acquitted of the offences punishable underSections 302 r/w 120-B and 201 r/w 34 of the Indian PenalCode.(iii)The appellants be set at liberty forthwith if not required inany other case. Fine amount, if paid, be refunded to them.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-