Criminal Appeal No. 107 of 2021 · The High Court · 2020
Case Details
2024:BHC-AUG:28127-DB Cri.Appeal No.107/2021 withconnected appeals:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.107 OF 2021Sahebrao Pralhad IngoleAge 55 years, Occu. Agri.,R/o Pimpalgaon (Dola), Tq. Kalamb, Dist. Osmanabad…APPELLANTVERSUS1)The State of Maharashtra,through Police Station Officer, Kalamb Police Station, Tq. Kalamb, Dist. Osmanabad(Copy to be served on Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad)2)Sarika Goroba Ingole,Age 38 years, Occ. LabourR/o Pimpalgaon (Dola),Tq. Kallam, Dist. Osmanabad…RESPONDENTS…..Mr. S.J. Salunke, Advocate for appellantMr. S.J. Salgare, A.P.P. for respondent No.1 – State Mr. S.B. Bhapkar, Advocate holding for Mr. S.S. Bhise, for respondent No.2. …..WITHCRIMINAL APPEAL NO.130 OF 2021Rahul @ Lakhan Shrirang ChudavakarAge 30 years, Occu. Driver,R/o Lane No.6, Janta VasahatParbati, Pune…APPELLANT Cri.Appeal No.107/2021 withconnected appeals:: 2 ::VERSUS1)The State of Maharashtra,through Police Station Officer, Kalamb Police Station, Tq. Kalamb, Dist. Osmanabad(Copy to be served on Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad)2)Sarika Goroba Ingole,Age 38 years, Occ. LabourR/o Pimpalgaon (Dola),Tq. Kallam, Dist. Osmanabad…RESPONDENTS…..Mr. S.J. Salunke, Advocate for appellantMr. S.J. Salgare, A.P.P. for respondent No.1 – State Mr. S.B. Bhapkar, Advocate holding for Mr. S.S. Bhise, for respondent No.2. …..WITHCRIMINAL APPEAL NO.131 OF 2021Suvarna Deepak BhadaleAge 45 years, Occu. Household,R/o Lane No.46, Janta Vasahat,Parbhati, Pune…APPELLANTVERSUS1)The State of Maharashtra,through Police Station Officer, Kalamb Police Station, Tq. Kalamb, Dist. Osmanabad(Copy to be served on Public Prosecutor, High Court of Cri.Appeal No.107/2021 withconnected appeals:: 3 ::Judicature of Bombay,Bench at Aurangabad)2)Sarika Goroba Ingole,Age 38 years, Occ. LabourR/o Pimpalgaon (Dola),Tq. Kallam, Dist. Osmanabad…RESPONDENTS…..Mr. S.G. Bobade, Advocate for appellantMr. S.J. Salgare, A.P.P. for respondent No.1 – State Mr. S.B. Bhapkar, Advocate holding for Mr. S.S. Bhise, for respondent No.2. …..WITHCRIMINAL APPEAL NO.180 OF 20211.Uttam Bhivaji Ingole,Age 50 uyears, Occ. Selling Vegetables& Agri., R/o Pimpalgaon (Dola),Tq. Kallam, At present, Plot No.5,Manik Bag National Park, Sinhagad Road, Pune2.Sow. Urmila Uttam Ingole,Age 45 years, Occ. Selling Vegetables& Agri., R/o Pimpalgaon (Dola),Tq. Kallam, At present, Plot No.5,Manik Bag National Park, Sinhagad Road, Pune… APPELLANTSVERSUSThe State of Maharashtra through Police Station, Kallamb, Tal. Kallamb,District Osmanabad,(Copy to be served on Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad)… RESPONDENT
Legal Reasoning
Cri.Appeal No.107/2021 withconnected appeals:: 4 ::.......Mr. Joydeep Chatterji, Advocate for appellantsMr. S.J. Salgare, A.P.P. for respondent – State ....…WITHCRIMINAL APPEAL NO.307 OF 2021Draupadi @ Laxmi Babu PoulAge Major, Occu. Agri.,R/o Pimpalgaon (Dola), Tq. Kallamb, Dist. Osmanabad…APPELLANTVERSUSThe State of Maharashtra,through Incharge Police Station Officer, Kallamb Police Station, Tq. Kalamb, Dist. Osmanabad(Copy to be served on Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad)…RESPONDENT…..Mr. V.D. Sapkal, Senior Counsel with Mr. P.S. Dikle Mr. S.R. Sapkal, & Mr. Ajit Chormal, Advocates for appellantMr. S.J. Salgare, A.P.P. for respondent – State ….. CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 24th October, 2024Date of pronouncing judgment : 12th November, 2024JUDGMENT (PER : R.G. AVACHAT, J.) : This group of five appeals is taken up together fordecision since the challenge therein is to the judgment and Cri.Appeal No.107/2021 withconnected appeals:: 5 ::order dated 23 October 2020, passed by Additional SessionsJudge, Osmanabad (Trial Court) in Sessions Case,No.31/2017. The appellants in all these appeals were theaccused in the said Sessions Case. The material part of theoperative order of conviction and consequential sentenceimpugned in all these appeals, reads thus : (1)Uttam Bhivaji Ingole (A1), Sow. Urmila Uttam Ingole(A2), Rahul @ Lakhan Shrirang Chudavakar (A3),Dropadi @ Laxmi Babu Poul (A4), Sahebrao PralhadIngole (A5) and Sow. Suvarna Dipak Bhadale (A6) areconvicted under Sec.235(2) of the Code of CriminalProcedure, 1973 for having committed offencespunishable under Ss. 302, 363, 364, 120-B all r.w.Sec.34 of the Indian Penal Code, 1860 and Sec.3(2) ofthe Maharashtra Prevention and Eradication of HumanSacrifice and other Inhuman, Evil and Aghori Practicesand Black Magic Act, 2013.(2)Accused No.1 to 6 are sentenced to undergoimprisonment for life and everyone of them shall payfine Rs.3000/- (Rupees three thousand only), in defaultthereof they shall undergo Simple Imprisonment forfurther Three (3) months, for having committed anoffence punishable under Sec. 302 r.w S.34 I.P. Code. Cri.Appeal No.107/2021 withconnected appeals:: 6 ::(3)Accused No.1 to 6 are sentenced to undergo rigorousimprisonment for seven (7) years and everyone of themshall pay fine Rs.2000/- (Rupees two thousand only), indefault thereof they shall undergo Simple Imprisonmentfor further Two (2) months, for having committed anoffence punishable under Sec.363 r.w. Sec.34 I.P.Code.(4)Accused No.1 to 6 are sentenced to undergoimprisonment for life and everyone of them shall payfine Rs.3000/- (Rupees three thousand only), in defaultthereof they shall undergo Simple Imprisonment forfurther Three (3) months, for having committed anoffence punishable under Sec.364 r.w. Sec.34 I.P.Code.(5)Accused No.1 to 6 are sentenced to undergo RigorousImprisonment for Seven (7) years and everyone ofthem shall pay fine Rs.2000/- (Rupees two thousandonly), in default thereof they shall undergo SimpleImprisonment for further Two (2) months, for havingcommitted an offence punishable under Sec. 3(2) of theMaharashtra Prevention and Eradication of HumanSacrifice and other Inhuman, Evil and Aghjori practicesand Black Magic Act, 2013. Cri.Appeal No.107/2021 withconnected appeals:: 7 ::(6)All the sentences in respect of Accused No.1 to 6 shallrun concurrently.2.For the sake of convenience, the appellants in allthese appeals would be referred to as per their Serial Numberin the Charge. They would, however, be described as theappellants.3.The long and short of the prosecution case beforethe Trial Court was as follows : Pimpalgaon (Dola) is the village in Kallam Taluka,District Osmanabad. Appellant Uttam Ingole is the husband ofappellant Urmila. Appellant Dropadi @ Laxmi Poul is the sisterof appellant Uttam Ingole. Appellant Sahebrao Ingole isUttam’s cousin. While appellants Rahul @ Lakhan and Sow.Suvarna Bhadale were Gondhalis by profession. They wereno way related to the other appellants. They were permanentresidents of Pune.4.A crime vide C.R. No.25/2017 was registered foroffence punishable under Section 363 of the Indian Penal Cri.Appeal No.107/2021 withconnected appeals:: 8 ::Code, based on the First Information Report (F.I.R.) lodged bySarika (P.W.1).5.According to Sarika (P.W.1), she would residealong with her husband, his parents and her two children atPimpalgaon (Dola). Her husband Goroba was a sugarcaneharvester by profession. During relevant days, he was awayfrom the village for sugarcane harvesting. It was 26 January2017, her son – Master Krishna (aged 6 years) went to schoolin the early morning for flag hoisting ceremony. Shri KordeMaster was one of the neighbours of informant Sarika (P.W.1).They would reside on their respective fields. A religiousfunction at Shri Korde Master’s residence pertaining to serving/providing meal to 11 married women (whose husbands arealive) was there. Sarika (P.W.1) along with her mother-in-lawhad, therefore, been to the house of Shri Korde Master forassisting them in cooking. Krishna returned from the school bylittle past 10.30 a.m. He went home and enquired with hisgrandfather where his mother was. Having learnt about thewhereabouts of his mother, Krishna left the house, informinghis grandfather that he was proceeding to join his mother.
Legal Reasoning
Cri.Appeal No.107/2021 withconnected appeals:: 9 ::6.Sarika (P.W.1) returned home by 3.00 p.m. from thehouse of Shri Korde Master. Krishna was not to be seen at oraround. She was, therefore, worried for him. She madeenquiry with one and all about his whereabouts. Manypersons joined her in making search for Krishna, but in vain.Sarika (P.W.1), therefore, lodged the F.I.R. (Exh.35) on thesame day evening, alleging therein that some unknown personkidnapped her son for unknown reason. The dead body ofKrishna was found in the field of Govardhan Tekale. Krishnahad suffered multiple injuries. Police authorities came to thespot. A crime scene panchanama (Exh.78) and inquest(Exh.147) were drawn. Mortal remains of Krishna weresubjected to autopsy. Section 302 of the Indian Penal Codetherefore came to be additionally invoked besides Section 364.7.Certain cell phone numbers were undersurveillance during investigation. A supplementary statementof Sarika (P.W.1) was recorded. During investigation, it wasrevealed that, late Kadubai, paternal aunt of appellant Uttamhad passed away 40 years ago. Similarly, wife of appellant Cri.Appeal No.107/2021 withconnected appeals:: 10 ::Sahebrao had committed suicide by jumping into a well about35 years back. Appellant Dropadi had 4 daughters. Two ofthem were widows. While children of other two daughters didnot survive. As such, the appellant Uttam, his wife, Sahebraoand Dropadi thought that the departed souls were not restingin peace and the families of these appellants were sufferingthereby. It was also the case of the prosecution that thereused to be a Pooja at Uttam’s house on every No moon nightand Full moon night. Appellants Rahul and Suvarna wouldattend those Poojas.8.In short, the case of the prosecution before theTrial Court was that, on the advice of both appellants Rahuland Suvarna, the other appellants committed murder ofKrishna as a human sacrifice. Much was said to have beendiscovered during investigation. A reference thereto would bemade while appreciating the evidence in the case. Theprovisions of Prevention and Eradication of Human Sacrificeand other Inhuman, Evil and Aghori Practices and Black MagicAct, 2013 were also invoked. Cri.Appeal No.107/2021 withconnected appeals:: 11 ::9.All the appellants were arrested. AppellantsDropadi and Sahebrao made disclosure statements. Verymany incriminating articles came to be recovered pursuant totheir disclosure statements. During house search panchanamaof Suvarna, material was found indicating them to have beenprofessing witchcraft and indulging in Aghori practices. It wasalso revealed that an order was placed for preparing a stoneimage of a woman (Kadubai) for being installed in the field.The order was placed with one Pandurang Patil of village Kale,Taluka and District Satara. It was found that, Krishna waslastly seen in the company of appellants Dropadi andSahebrao. Call Data Records and Subscribers Details Records(CDRs and SDRs) were obtained. The same indicate that allthe accused were in contact with each other for about 15 dayssince before the incident to some days after the incident.Tower locations thereof would indicate that, on the fateful day,they were under one tower location i.e. nearby villagePimpalgaon (Dola). The statements of persons acquaintedwith the facts and circumstances of the case were recorded.Upon completion of the investigation, a charge sheet was filed. Cri.Appeal No.107/2021 withconnected appeals:: 12 ::10.The Trial Court framed the Charge (Exh.10). Theappellants pleaded not guilty. Their defence was of falseimplication. 11.The prosecution, to bring home the charge,examined 30 witnesses and adduced in evidence number ofdocuments. On appreciation of the entire evidence in thecase, the Trial Court passed the impugned order of convictionand consequential sentence.12.We have perused the impugned judgment to findthe Trial Court did its best to appreciate and marshal theevidence to reach to its conclusion the appellants to have beenguilty. We are, however, not at one with the Trial Court.13.Heard. Learned Advocates representing theappellants would submit that, the case was based oncircumstantial evidence. They adverted our attention to thejudgment of the Apex Court in case of Sharad BirdichandSarda Vs. State of Maharashtra (1984 CJ (SC) 262).According to them, the F.I.R. has been lodged against Cri.Appeal No.107/2021 withconnected appeals:: 13 ::unknown person. The informant Sarika’s supplementarystatement was recorded two and half months after the incident.Although an unfortunate incident took place, there was nothingto indicate the appellants to have an axe to grind against theinformant. Kadubai and wife of Sahebrao had passed awayabout 40 and 35 years back respectively. There was thus noquestion of their souls haunting their family members. Theappellants Uttam, his wife Urmila, appellants Dropadi andSahebrao were as such distant relatives. Their lands wereseparate. They did not have a common cause to commit thecrime. So far as regards other appellants are concerned, itwas submitted that, they were professional Gondhalis. Postmarriages, those two appellants along with other members oftheir troupe were engaged to sing religious/ God-praisingsongs. Whatever disclosure statements and recoveries madepursuant thereto, were long after the crime took place. All therecoveries were from the open places. Possibility of articles tohave been planted could not be ruled out. The C.A. reports ofall those articles do not support the prosecution case. Theperson who claimed to have seen the deceased lastly in the Cri.Appeal No.107/2021 withconnected appeals:: 14 ::company of two of the appellants was a chance witness. Hisstatement was recorded 8 days after the incident. It was alsosubmitted that, merely because the appellants were in contactwith each other on cell phone, they could not be said to havehatched a conspiracy and committed murder pursuant theretosince the conversation was not intercepted and placed beforethe Court as an evidence. All the appellants were eitherrelated or acquainted with each other. There was, therefore,nothing unusual for them to be in contact. The SDRs of someof the cell phone numbers would indicate that, those werestanding in the names of the family members of some of theappellants. There is nothing to indicate that those cell phoneswere in fact being used by the appellants. There is noevidence at all to indicate that the appellant Suvarna was seenat Pimpalgaon (Dola) on the given day. The informant admittedthat she did not have grievance against appellant Sahebrao.14.Instead of detaining ourselves to the submissionsadvanced by the learned Advocates, it would be better toappreciate the evidence on record. Cri.Appeal No.107/2021 withconnected appeals:: 15 ::15.The learned A.P.P. and the learned Advocate forthe informant, on the other hand, took us through the evidenceof each and every witness. According to them, the wife ofSahebrao had committed suicide by jumping into the well wasa fact not in dispute. Similar was the case of Kadubai to havepassed away 40 years before the incident. Appellant Dropadi’stwo daughters were widows while children born to other twodaughters passed away. All of them felt it to be an evil luck,they thought that the souls of Kadubai and wife of Sahebraowere not resting in peace. There used to be Pooja at thehouse of appellant Uttam on every No moon night and fullmoon night. Appellants Rahul and Suvarna would attend thesame. Both these appellants would advice them in otheraspects. The same suggests that an image of a lady wasdirected to be prepared from a sculptor. It was even gotprepared. Police could reach the sculptor. A receipt could beseized. During the search of house of appellant Suvarna, suchmaterial came to be recovered indicating them to have beenwitchcraft and indulging evil and Aghori practices besides blackmagic. The learned A.P.P. relied on the following authorities to Cri.Appeal No.107/2021 withconnected appeals:: 16 ::submit that minor contradictions and omissions do not affectthe case of the prosecution and the same cannot be taken aground to reject the prosecution case :(1)Mritunjoy Biswas Vs. Pranab alias Kuti Biswas & anr.2013 AIR SCW 4961(2)State of Maharashtra Vs. Damu Gopinath Shinde & ors.AIR 2000 SC 1691 (3)C. Muniappan & ors. Vs. T.N.D.K. Rajendran & ors. etc.etc. Vs. State of T.N. [ AIR 2010 SC 3718 ](4)State of Maharashtra Vs. Santosh Ramdas KalweAIR Online 2022 BOM 6067 The learned A.P.P. would further submit that, non-mentioning of name of culprits in the F.I.R. is not a ground tothrow away the prosecution case. It is only the investigationwhich starts on the basis of the F.I.R. and the role of each andevery culprit is disclosed in the crime in question whilecollecting the evidence. So far as regards discovery pursuantto Section 27 of the Evidence Act is concerned, the learnedAdvocates relied on the case of State Vs. Damu GopinathShinde (supra). They would further submit that, testidentification parade is not a substantive piece of evidence. It Cri.Appeal No.107/2021 withconnected appeals:: 17 ::is resorted to by the investigating officer to have lead in theinvestigation. Identification of the accused before the Court isa substantive piece of evidence. They would further submitthat, evidence of a hostile witness cannot be totally discarded.The learned A.P.P. then took us through the judgment of theTrial Court and particularly evidence and appreciationregarding CDRs and SDRs. He then relied on the judgment ofthe Apex Court in case of State Vs. Santosh Ramdas Kalwe(supra). Both the learned Advocates ultimately urged fordismissal of the appeals.16.Considered the submissions advanced. Perusedthe judgment impugned herein. Also perused the evidence onrecord. Let us appreciate the same. Before undertaking thesaid exercise, we must have a look at the law relating to thecase based on circumstantial evidence. A very usefulreference, therefore, could be made to the judgment of theApex Court in the case of Sharad Sarda (supra), in which theApex Court has observed thus :-“153.A close analysis of this decision would showthat the following conditions must be fulfilled before Cri.Appeal No.107/2021 withconnected appeals:: 18 ::a case against the accused can be said to be fullyestablished.(1)The circumstances from which the conclusionof guilt is to be drawn should be fully established,(2)The facts so established should be consistentonly with the hypothesis of the guilt of the accused,that is to say, they should not be explainable on anyother hypothesis except that the accused is guilty,(3)The circumstances should be of a 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 ground forthe conclusion consistent with the innocence of theaccused and must show that in all human probabilitythe act must have been done by the accused.”17.The prosecution, to bring home the charge,proposed to rely on the following circumstances, homicidaldeath, motive, last seen together, recovery pursuant to thedisclosure statements, CDRs./ SDRs. etc.18.Although 30 witnesses were examined, a few ofthem did not stand by the prosecution. Other few are thepolice officials, who participated in the investigation. The TrialCourt appears to have mainly relied on the evidence of the Cri.Appeal No.107/2021 withconnected appeals:: 19 ::investigating officer and some other witnesses to find theoffences to have been proved beyond reasonable doubt. FACTS NOT IN DISPUTE :19.Appellants Uttam and Urmila are the husband andwife. Appellant Dropadi is Uttam’s sister. Appellant Sahebraois cousin of Uttam. Kadubai, paternal aunt of Uttam passedaway 40 years back. Cause of her death is not known.Sahebrao’s wife committed suicide by jumping into a wellabout 35 years back. Sahebrao was prosecuted for abettingher suicide. The appellant Dropadi has 4 daughters.Husbands of 2 of the 4 daughters passed away. While other 2daughters are issueless. The informant Sarika would residealong with her husband Goroba, his parents and her two minorsons together. Her husband Goroba was a sugarcaneharvester by profession. During the relevant days, he wasaway from the village for sugarcane harvesting. MasterKrishna (deceased) was little over 6 years of age. He was astudent of Cambridge School. He would shuttle between theschool and his house in a school bus. It is not in dispute Cri.Appeal No.107/2021 withconnected appeals:: 20 ::before us that, P.W.6 Santosh Pawar was the school busdriver. His evidence indicates that, on the fateful day i.e. on 26January, he had taken Krishna to the school and dropped offby little past 10.30 a.m. We have no reason to disbelieve hisevidence. There is also nothing to indicate that there was noreligious function at the house of Shri Korde Master, who wasresiding on his field. His field was nearby the field of theinformant Sarika and appellants Uttam and Sahebrao as well.There is no serious dispute about the fact that the informantSarika along with her mother-in-law had been to the house ofKorde Master to assist them in cooking on the given day.There is also no evidence either to indicate any enmity or thereason for the appellants to grind an axe against the informantSarika. Since the F.I.R. cannot be said to be an Encyclopaediaand by the time it was lodged, nothing was in the know of theinformant, it was therefore but natural for her to lodge the F.I.R.against an unknown person alleging that her son Krishna waskidnapped for unknown reason. The disturbing fact as regardsother evidence of P.W.1 Sarika, is in the nature ofimprovements over her F.I.R., suggest that her statement in Cri.Appeal No.107/2021 withconnected appeals:: 21 ::relation thereto was recorded two and half months after theincident. The said fact leads us to find the evidence againstappellants uninspiring.20.Sarika (P.W.1) testified that the appellant Uttam, hiswife Urmila, appellants Dropadi and Sahebrao did not turn fortaking search of her son Krishna on the given day no otherwitness has deposed in this regard to reinforce her case. TheF.I.R. lodged by her is silent in this regard. It is reiterated that,relations between the two i.e. informant on one hand and theseappellants on the other, were not unfriendly. It is in herevidence that the other two appellants namely Rahul andSuvarna would visit the house of both Uttam and Sahebrao onNo moon and Full moon nights to sooth discontented souls ofdeceased Kadubai and deceased wife of Sahebrao.Admittedly, appellant Dropadibai is real sister-in-law of theinformant. According to Sarika, grandchild of Dropadi diedbefore a month of the incident. On the previous day i.e. 25January, both Uttam and Urmila, residing in Pune, had come tothe village. On the same day, a Pooja was held at the houseof Sahebrao. It was No moon night. According to her, she did Cri.Appeal No.107/2021 withconnected appeals:: 22 ::not know who killed her son Krishna. In the second breath, itis her case that it were the appellants who committed themurder of Krishna. Sarika reached home by 3.00 p.m. fromthe house of Korde Master to find her son Krishna to have notbeen around. On enquiry, she learnt from her father-in-lawthat Krishna returned from school, immediately and leftinforming to have been going to join her (Sarika). The samesuggests that, Sarika had not seen her son Krishna since heleft for the school early in the morning and even after his returnfrom school. So she lodged the F.I.R. (Exh.35) after takingmuch search for Krishna.21.On the following day, a dead body of Krishna wasfound in the field of P.W.9 Govardhan. Krishna had sufferedmultiple injuries. The inquest panchanama (Exh.147)reinforces the same besides the autopsy report and the crimescene panchanama as well.22.It was P.W.4 Dr. Sudhir who conducted autopsy onthe mortal remains of Krishna. The post mortem report findsplace at Exh.89. Dr. Sudhir noticed following external and Cri.Appeal No.107/2021 withconnected appeals:: 23 ::internal injuries on the person of Krishna.(1)Forehead- central portion depressed of size 7 cm. x 8cm. x 1 cm.(2)CLW 3 cm. x 2 x 2 cm. over right side of forehead.(3)Punctured wound of 0.5 cm. x 0.5 cm. x 2 cm. piercingthe bone and underneath soft tissue over right side offorehead.(4)Punctured wound of 0.5 cm. x 0.5 cm. x 1 cm. just lateralto outer contours of right eye piercing the underneathbone.(5)Punctured wound of 0.5 cm. x 0.5 cm. x 1 cm. deep rightside of nose in maxillary region.(6)Upper central incisor teeth is broken.(7)Lower lateral incisor teeth missing.(8)CLW 5 cm. x 3 cm. x 2 cm. over dorsum of left handtendor exposing.(9)CLW 1 cm. x 1 cm. x 1 cm. over dorsum of left handtendor exposing.(10)Crushed injury to left index finger terminal portion.(11)2 abrasions over left knee of 0.5 cm. length each one.(12)abrasion over right ankle of 2 cm. length.23.According to Dr. Sudhir, post post-mortem reportwas submitted to the police, the investigating officer had made Cri.Appeal No.107/2021 withconnected appeals:: 24 ::some correspondence with him, soliciting his opinion regardingcertain queries. On two occasions, two weapons wereproduced before him in sealed condition. One of them in thenature of a long and thick needle (Dabhan). Other one was aRumne. According to him, the injuries could have beenpossible by those weapons. He gave his report in that regardvide Exhs.93 and 95. In his view, the injuries on the head ofKrishna could be possible by hit of a Rumne (agriculturalinstrument which is used to tie two bullocks together at each ofthe ends of Rumne while using them for ploughing). We,therefore, do not reiterate in detail the evidence of P.W.2Madhav, witness to the spot panchanama (Exh.48) and inquest(Exh.14). He is also panch witness to the seizure of clothes ofthe deceased.24.The evidence of most of the prosecution witnessesis not of much assistance. A cursory reference would,therefore, be made thereto. P.W.5 Ashok was a cousin of thedeceased. He participated in taking search for Krishna. He didnot stand by the prosecution. Evidence of P.W.8 is also on thesame lines. The evidence indicates that, D.P. (Distribution Cri.Appeal No.107/2021 withconnected appeals:: 25 ::Point) of electricity had burst a month before the incident andtherefore, there was no electricity. P.W.9 Govardhan is awitness in whose field the dead body of Krishna was found.According to him, the Rumne, aluminum pot, a lid thereof andchopper, found in the hut. During his cross-examination, he admitted that thepolice officials had detained him for some time and eventhreatened to make him an accused in the case since the deadbody was found in his field. P.W.21 is a photographer. P.W.22Mukund Giri is Police Constable who carried muddemalarticles to FSL, Aurangabad. Most of the witnesses were onthe point of taking search for Krishna. Same is the case ofP.W.25 Mahesh, nephew of the informant.25.As such, the fact that Krishna met with homicidaldeath, has undoubtedly been proved. It has also not been indispute before us.LAST SEEN : 26.On this aspect, we have evidence of P.W.7 Anil.His native village is Jaggi, 50 Kms. away from Pimpalgaon. Cri.Appeal No.107/2021 withconnected appeals:: 26 ::According to him, his cousin sister resides at villagePimpalgaon. He had been to Pimpalgaon 2-3 months prior tothe incident. On his sister’s request, he stayed there forharvesting her Soyabean crop. He then went back to hisvillage. He again returned to Pimpalgaon. According to him,one Sahebrao Somwanshi and he himself took the land ofKorde Master for cultivation on crop share basis (Batai).According to him, there was Asara Programme (feeding 11Sawashinis) at the house of Korde Master. He went to takemeal at Korde Master’s house by 12.00 noon. After takingmeal, he came out of the house and saw appellant Sahebraoand Dropadi were along with a boy/ child. Both of them weretalking with the child. It was a place of Sahebrao’s Kotha(house). He then proceeded for his work. It is further in hisevidence that, late in the night, he heard barking of a dog inthe field of Sahebrao. He came out of the room. He could notsee due to darkness. He went back to sleep.During his cross-examination, he could not statethe Survey or Gut number of the land he has taken forcultivation from Korde Master. Neither Shri Korde nor Cri.Appeal No.107/2021 withconnected appeals:: 27 ::Sahebrao Somwanshi has been examined. As such, he was achance witness. According to him, no document was maderegarding taking the land for cultivation. He was confrontedwith his police statement which was recorded 7 days after theincident. The statement is silent to record therein that heclaimed to have seen Sahebrao and Dropadi talking along withone boy. It appears that, in his police statement, he onlyreferred to appellant Dropadi to have been seen in thecompany of one unknown boy. Whatever is appearing in thepolice statement cannot partake substantive evidence. Assuch, whatever he has deposed before the Court as regardshaving seen both Sahebrao and Dropadi talking with a boy isan improvement over his police statement. According to him,on the following day, he seen the dead body and then realisedthe boy talking with appellant Dropadi was deceased Krishna. 27.From the cross-examination of this witness, we findhis evidence in examination-in-chief to be uninspiring. Evenfor the sake of assumption we accept his evidence as it is,what can be said to have been proved by his evidence is thathe had seen the appellants Dropadi and Sahebrao talking with Cri.Appeal No.107/2021 withconnected appeals:: 28 ::the deceased Krishna outside Sahebrao’s residence. It was by12.00 in the noon. True, thereafter Krishna has not been seenby anyone else. The post mortem examination took place littlepast 5.00 p.m. on 27 January. Rigour mortis was completelydeveloped. As such, the time of death necessarily comes to12 hours therebefore. True, such ghastly incident must nothave been committed in a day time. The exact time of death ofKrishna has not been proved. The fact remains the evidenceas regards last seen by P.W.7 Anil Uphade inspires noconfidence. Moreover, time gap between the last seen andtime of death has not been conclusively proved.MOTIVE : 28.The motive behind commission of the crime hasalready been stated above. It is reiterated that, informantSarika’s supplementary statement was recorded two and halfmonths after the incident. Except Sarika, there is no witness tostate that a Pooja/ worship took place at Sahebrao’s house inthe evening of the fateful day. True, the tower location ofSahebrao’s cell phone indicate him to have come to thevillage, it was admittedly a No moon night. Sarika claimed to Cri.Appeal No.107/2021 withconnected appeals:: 29 ::have had seen appellant Rahul with Sahebrao. None of theprosecution witnesses claimed to have seen appellant Suvarnato have been at Pimpalgaon on the given day. The motive issaid to be giving human sacrifice to solace the departed soulsof Kadubai and wife of Sahebrao. In that regard, we haveevidence of P.W.3 Sunil, a panch witness to the two disclosurestatements made by Sahebrao and Dropadi (one each). Hisevidence indicates that, on 13/4/2017, he was present atKallam Police Station by 11.15 a.m. Appellant Sahebrao madea statement that he would produce a rope used in commissionof the offence. His statement was recorded vide Exh.81.Sahebrao then took the police officials and both the panchas toa pond in the field of one Popat Somase. It was a dry stream.He entered the stream and took out a white rope afterexcavating a soil. A white rope was seized under panchanama(Exh.82).29.This witness was again summoned to the PoliceStation on 18/4/2017. According to him, appellant Dropadimade a disclosure statement claiming to have had broughtKrishna from his house. This evidence is inconsistent with Cri.Appeal No.107/2021 withconnected appeals:: 30 ::the evidence of P.W.7 Anil Uphade, who claimed to haveseen appellants Dropadi and Sahebrao talking withKrishna outside Sahebrao’s residence and from thenonwards Krishna was not seen. She then took them to aplace nearby a well and stated that Krishna was given a bathat that place and his Pooja was solemnized. Then she statedthat, she would take them to a spot where Krishna was killedand weapon of assault was buried. Then she took them to oneditch and stated that blood of deceased was sprinkled in thesaid ditch. Whatever was stated by her was recorded in itsentirety. He read it and then signed the same as panchwitness. The memorandum panchanama is at Exh.85. It isfurther in his evidence that Dropadi took them to villagePimpalgaon (Dola). She directed to stop the vehicle at oneplace. All of them got down the vehicle. She then led them toone tamarind tree and stated that Krishna was brought to thisspot (open place). She then took them to one well. Therewere trees. There was one Neem tree. Apta tree was alsothere. Many trees were around. There was one stone. Shestated that Krishna was made to sit on the said stone and Cri.Appeal No.107/2021 withconnected appeals:: 31 ::given a bath. Then she pointed out a stone idol and said thatKrishna’s Pooja was solemnized thereat. Some Pooja articleswere lying there. Those were green bangles, Two LakhChudas, imitation Mangalsutra and cloth-doll besides an emptycover, five green bangles. There was a shendur, empty coverof incense sticks, green blouse piece and one iron Panati(lamp), two pieces of coconut lying at that spot. Two drylemons were also lying at the spot. All these articles weretaken charge of under panchanama. Dropadi then showed awhite cotton rope. She told that Krishna’s hands were tiedtherewith. It was also seized. The witness further went on tostate that Dropadi told them that she would show a placewhereat a weapon was dumped. The said spot was near aGuava tree. She excavated a spot and produced a weaponhaving green handle. It had a sharp point. It was like aDabhan. It was also sealed. She then took them to a ditch,wherein Krishna’s blood was sprinkled. She took them nearthe house of Uttam Ingole where a ditch was. Police seizedsome soil from the ditch, sealed it. A panchanama of seizureof all these articles finds place at Exh.86. Learned A.P.P. Cri.Appeal No.107/2021 withconnected appeals:: 32 ::heavily relied on this piece of evidence. The rope seizurepanchanama is at Exh.82.30.In cross-examination undertaken on behalf ofappellant Sahebrao, the witness stated, he went to the PoliceStation. Police Inspector had told them what had to be done.He also told them the name of village they had to visit andwhat was to be taken out from the spot. They were also therein the Police Station for 10 to 15 minutes. It is further in hisevidence that, all the places shown by both Sahebrao andDropadi were open and accessible to one and all.31.On the same lines is the evidence of InvestigatingOfficer Sunil Newase (P.W.28) to whom these disclosurestatements were made. We find these disclosure statementsto be not relevant under Section 27 of the Evidence Act. Thereasons are more than one. The entire statement isconfessional in nature. About two and half months after theincident those articles were seized that too from an openplace, except one Dabhan and knife.32.The C.A. reports find place at Exhs.70 to 72. The Cri.Appeal No.107/2021 withconnected appeals:: 33 ::C.A. report Exh.72 indicates that, clothes on the person of thedeceased and the Rumne were stained with blood. No bloodwas detected on article namely sickle, metal lead in polythenepacket. This C.A. report pertain to forwarding letter dated8/2/2017 i.e. long before the disclosure statement was/ weremade by Dropadi and Sahebrao. The C.A. report Exh.70indicates that no blood was detected on rope pieces andDabhan as well, besides three parcels of earth.33.We fail to understand as to how the Trial Courtrelied on the disclosure statement made by Dropadi andSahebrao. No human tissues of body of deceased weretraced on both the ropes.34.We must have a reference to a landmark judgmentof a Privy Council, under Section 27 of the Evidence Act. It isPulukuri Kottaya Vs. Emperor, reported in AIR 1947 PrivyCouncil 67. In paragraphs No.8, 9, 10 and 11 of thejudgment, it has been observed thus :-“8. The second question, which involves theconstruction of Section 27 of the Indian Evidence Act,will now be considered. That section and the two Cri.Appeal No.107/2021 withconnected appeals:: 34 ::preceding sections, with which it must be read, are inthese terms:- 25. No confession made to a Police officer shall beproved as agains a person accused of any offence. 26. No confession made by any person whilst he isin the custody of a Police officer, unless it bemade in the immediate presence of a Magistrate,shall be proved as against such person. 9.The explanation to the section is not relevant. 27. Provided that when any fact is deposed to asdiscovered in consequence of informationreceived from a person accused of any offence inthe custody of a Police officer, so much of suchinformation, whether it amounts to a confessionor not, as relates distinctly to the fact therebydiscovered, may be proved.10. Section 27, which is not artistically worded,provides an exception to the prohibition imposed bythe preceding section, and enables certain statementsmade by a person in police custody to be proved. Thecondition necessary to bring the section into operationis that the discovery of a fact in consequence ofinformation received from a person accused of anyoffence in the custody of a Police officer must bedeposed to, and thereupon so much of the informationas relates distinctly to the fact thereby discovered maybe proved. The section seems to be based on the viewthat if a fact is actually discovered in consequence ofinformation given, some guarantee is afforded therebythat the information was true, and accordingly can besafely allowed to be given in evidence; but clearly theextent of the information admissible must depend onthe exact nature of the fact discovered to which suchinformation is required to relate. Normally the sectionis brought into operation when a person in police Cri.Appeal No.107/2021 withconnected appeals:: 35 ::custody produces from some place of concealmentsome object, such as a dead body, a weapon, orornaments, said to be connected with the crime ofwhich the informant is accused. Mr. Megaw, for theCrown, has argued that in such a case the "factdiscovered" is the physical object produced, and thatany information which relates distinctly to that objectcan be proved. Upon this view information given by aperson that the body produced is that of a personmurdered by him, that the weapon produced is the oneused by him in the commission of a murder, or that theornaments produced were stolen in a dacoity would allbe admissible. If this be the effect of Section 27, littlesubstance would remain in the ban imposed by the twopreceding sections on confessions made to the police,or by persons in police custody. That ban waspresumably inspired by the fear of the legislature that aperson under police influence might be induced toconfess by the exercise of undue pressure. But if allthat is required to lift the ban be the inclusion in theconfession of information relating to an objectsubsequently produced, it seems reasonable to supposethat the persuasive powers of the police will proveequal to the occasion, and that in practice the ban willlose its effect. On normal principles of constructiontheir Lordships think that the proviso to Section 26,added by Section 27, should not be held to nullify thesubstance of the section. In their Lordships' view it isfallacious to treat the "fact discovered" within thesection as equivalent to the object produced; the factdiscovered embraces the place from which the object isproduced and the knowledge of the accused as to this,and the information given must relate distinctly to thisfact. Information as to past user, or the past history, ofthe object produced is not related to its discovery in thesetting in which it is discovered. Information suppliedby a person in custody that "I will produce a knifeconcealed in the roof of my house" does not lead to thediscovery of a knife; knives were discovered manyyears ago. It leads to the discovery of the fact that a Cri.Appeal No.107/2021 withconnected appeals:: 36 ::knife is concealed in the house of the informant to hisknowledge; and if the knife is proved to have beenused in the commission of the offence, the factdiscovered is very relevant. But if to the statement thewords be added "with which I stabbed A", these wordsare inadmissible since they do not relate to thediscovery of the knife in the house of the informant.11.. . . . . . The difficulty, however great, of provingthat a fact discovered on information supplied by theaccused is a relevant fact can afford no justification forreading into S.27 something which is not there, andadmitting in evidence a confession barred by S.26.Except in cases in which the possession, orconcealment, of an object constitutes the gist of theoffence charged, it can seldom happen that informationrelating to the discovery of a fact forms the foundationof the prosecution case. It is only one link in the chainof proof, and the other links must be forged in mannerallowed by law.”35.Moreover, the place like a ditch had already beennoticed by the police authorities long before the disclosurestatement was made. We are also unable to agree with theobservations of the Trial Court that the disclosure statementunder Section 27 made by an accused could be admissibleagainst a co-accused in view of Section 30 of the EvidenceAct. 36.The appellants No.1, 2, 4 and 5 were stated tohave intended to erect platform with a small temple of a lady – Cri.Appeal No.107/2021 withconnected appeals:: 37 ::Kadubai thereon. A ditch was, therefore, dug. There arephotographs on record and there is voluminous evidence toindicate taking of a ditch/ pit. It is P.W.10 Shahu, who wasengaged in centering work, claimed to have been engaged bySahebrao to dig a pit admeasuring 4 x 4 ft. with raised platformthereon. He agreed to do the job for Rs.9000/-. He receivedRs.4000/- in advance. P.W.11 Pandurang was a labour. Heclaimed to have had been engaged by P.W.10 Shahu to take aditch. He accordingly dug the same for Rs.500/-. Since theditch was at the place, one cannot dispute that the ditch wasintended for raising construction. Whether it was at theinstance of one or all the four appellants, there is nothing inevidence. Although the contract was given by appellantSahebrao, P.W.10 Shahu in his cross-examination stated that,until 20/1/2017 the work of taking ditch was not commenced.The statement of P.W.11 Pandurang was recorded on 13 April2017 while the incident is of 26 January 2017.37.P.W.13 Ranjit is the brother of the deceased. It isin his evidence that, he was 17 years of age while his evidencewas recorded. Meaning thereby, he was aged 14 years when Cri.Appeal No.107/2021 withconnected appeals:: 38 ::the incident took place. He testified that, he had gone toattend flag hoisting to his school in the village. He returnedhome by 11.00 a.m. His mother and grandmother had gonefor cooking at the house of Shri Korde. Krishna had also notreturned from the school. On his way home, his paternal aunt(appellant Dropadi) met him and enquired about thewhereabouts of his mother (P.W.1 Sarika) and brother Pilya(deceased Krishna). He told him her mother to have gone tothe house of Korde while Pilya had not come from the school.He further testified that appellant Dropadi enquired with him asto when Pilya would be back. While he was confronted withhis police statement, it has been brought on record the factthat the statement is silent to state to have told Dropadi thatPilya had gone to the school. It has, however, been broughton record that, he stated her that he did not know where wasPilya, but his mother had gone for cooking. The defence hasbrought on record the fact that appellant Dropadi had madeenquiry with him as to whereabouts of his mother and Krishnaand when they were going to come.38.This witness is a real brother of the deceased. He Cri.Appeal No.107/2021 withconnected appeals:: 39 ::was then 14 years of age. His statement was recorded on thefollowing day of the incident. We have no reason to disbelievehis evidence about the appellant Dropadi to have madeenquiry as to his mother and Pilya (deceased Krishna). Thefact is, however, the person who made enquiry with thewitness was none other than real sister of the father of thewitness Ranjit. Making such enquiry by that time could be saidto be neither usual nor unusual. More so, no suspicion wasraised against any of the appellants in the F.I.R. or by then aswell. Admittedly, the relationship of the appellants on one handand the informant and her family on the other was not found tobe not good. We rely on this witness that the appellantDropadi made enquiry about Sarika (P.W.1) and her sonKrishna and when they were going to come. IMAGE OF KADUBAI:39.P.W.15 Pandurang was a professional sculptor,resident of village Kale, District Satara. It is in his evidencethat two women and equal number of men had come to him 8days before 26 January. They wanted to make an image of alady, in stone. The deal was struck for Rs.5000/-. He was Cri.Appeal No.107/2021 withconnected appeals:: 40 ::paid Rs.2000/- in advance. According to him, a lady policeofficer accompanied by one lady accused had come to hisshop. A receipt was seized by that police officer, P.W.23Surekha Dhas. A panchanama regarding seizure of receiptwas drawn vide Exh.125. P.W.16 Pandurang Vedpathak, aservant of P.W.15 Pandurang Patil was a witness to the saidpanchanama. Close reading of their evidence would indicatethat the receipt (Exh.125) was in the name of appellant LakhanChudavakar. Receipt (Exh.122) is a carbon copy dated 13January 2017. The receipt, however, does not bear signatureof the person who placed the order. No original receipt bookhas been seized. It is, therefore, doubtful. Since it being acase based on circumstantial evidence, how far one can placereliance on this receipt (Exh.122). P.W.15 Pandurang Patil,while called upon to identify the lady who had accompanied hisshop along with the lady police officer P.W.23 Surekha, heidentified the appellant Urmila. While close reading ofevidence of P.W.23 Surekha indicates that the police hadlearnt it from appellant No.6 Suvarna that an order for makingof a stone image of a lady was placed. She further testified Cri.Appeal No.107/2021 withconnected appeals:: 41 ::that the owner of the shop namely P.W.15 Pandurang had toldthat one lady and one man had placed the order. The samesuggests the prosecution meant to say that the order wasplaced by appellant Rahul @ Lakhan and appellant Suvarna.According to P.W.15 Pandurang Patil, 4 persons had in factcome to place the order. While according to P.W.3 SunilBansode, it was Suvarna Bhadale who had accompanied herto the shop of P.W.15 Pandurang Patil while the receipt wasseized. Whereas P.W.15 Pandurang Patil identified appellantDropadi as that lady who had accompanied the lady policeofficer. This evidence indicates its glaring inter-seinconsistencies.40.We take it that, P.W.15 Pandurang is a professionalsculptor. We even take that an order was placed with him inthe third week of January 2017, but after having disclosed allthese facts, the investigating officer failed to conduct testidentification parade who had in fact been to his shop to placean order whether they were four or two in number or appellantRahul alone in whose name the receipt was issued. It isreiterated that, had the receipt book been taken charge of as it Cri.Appeal No.107/2021 withconnected appeals:: 42 ::is instead of a single carbon copy, it would have reallyfurthered the prosecution case. Although the cell phonenumber of appellant Rahul @ Lakhan is appearing thereon,the receipt is silent to bear his signature as a person whoplaced the order.House Search of appellant Suvarna: 41.P.W.18 Ranjit and P.W.20 Kunal were thewitnesses to the search of the house of appellant SuvarnaBhadale. Both these witnesses did not stand by theprosecution, although their evidence indicates that both theseappellants were residing in one Wada (big premises). Thepanchanama of the house search was admitted in evidencebased on the testimony of the police officer (Exh.128) MukundGiri (P.W.22). It is in his evidence that he went to the house ofappellant Suvarna and took search. Her family members werepresent in the house is evident from the panchanama. Boththe panchas who did not stand by the prosecution were notfrom the very vicinity. The contents of the panchanamaindicate the following articles were taken charge : Cri.Appeal No.107/2021 withconnected appeals:: 43 ::(१) ममठठकठगदठवरलठलशठईनन" शततममखबबधमबतशतम सठरणमबत, ममळवयठधमबत, शततवशशकरणमबत, शतत वशशकरणपयमग, शततनठशकयबतमबत, दनहरकठमबत, शतत ममहहनशमबत, मनमकठमनठ, ससदशकठरकमबत, भततहठडळ उतठरठमबतहनसलहहलनलन६कठगदपत(२) लखनचमडठवकरसमबतदनवठचनमततरघनतलनलनफमटम, ववहसजहटबगकठडर, समवणठरभठडळनयठचनमतदठनकठडर,(३) पठचममबठईलहहडसनटमठयकमममकसतयठतएअरटनल, आयहडयठकबपनशचनससमकठडर, नमहकयठचठसठधठहहडसनट, सममसबगएससकबपनशचनहहडसनट. जमननवठपरतन(४) लखनचमडठवकरयठचनआधठरकठडर, मतदठनकठडर,पमनकठडर, डडठयवहहगलठयसनस, रठजशशशठहहसहकठरश बहकनचनATM कठडर.”42.The Trial Court, on the basis of the articles statedabove in clause (1), drew the inference that these twoappellants were witchcraft. Admittedly, the panchanama bearsthe signature of the husband of appellant Suvarna Bhadale.The same suggests that the house was not in exclusivepossession of the appellant Suvarna. The documents,therefore, could not be said to have been in her exclusivepossession. 43.P.W.17 Nilesh was the resident of Janta Vasahat,whereat appellant Suvarna and Rahul @ Lakhan would reside. Cri.Appeal No.107/2021 withconnected appeals:: 44 ::He testified that he was one of the members of the troupeheaded by appellant Rahul @ Lakhan. They were Gondhalis.They would sing Aartis and God/ Goddess praising songs onauspicious occasions like post-marriage ceremonies. It isfurther in his evidence that, devotees/ disciples used to cometo meet them (appellants Rahul and Suvarna). They used togive them holy ash/ lemon and coconut to throw it away.Those articles were used to be given for Pooja. If any personwas suffering from fever or बठहनरचन(भमतठटकक), people used tocome them. They used to visit various places in Pune andoutside as well.44.This witness was not declared hostile. During hiscross-examination, it has been brought on record thatappellant Rahul @ Lakhan was a devotee of Tuljabhawani,Yedeshwari and Khandoba. He used to sing song nicely andhence, people used to invite him.CDRs & SDRs :45.P.W.26 Lukas Magar and P.W.27 Dattaram Angrewere the Nodal Officers of Bharti Airtel and Vodafone Idea Cri.Appeal No.107/2021 withconnected appeals:: 45 ::Company Ltd. respectively. They tendered in evidence CDRsand SDRs of the following cell phone numbers standing in thenames of the persons stated against the phone numbers :1)9860361310 - Rahul @ Lakhan 2)9881702272- Laxman Ingole3)9920059253- Manda S. Sudaonkar 4)7350949735- Sahebrao 5)9881321780- Rahul @ Lakhan46.The CDRs are supported by Certificate in terms ofSection 65-B of the Evidence Act. We, however, do not comeacross Section 65-B Certificate pertaining to tower location ofthese phone numbers. Be that as it may. The aforesaid evidence indicates that, two of thesix cell phone numbers were not subscribed by any of theappellants. One was subscribed by the son of appellant Uttamwhile other was by the wife of appellant Rahul @ Lakhan. Theprosecution simply relies on these CDRs to indicate all thesepersons were in contact with each other from 1/1/2017 to1/2/2017. The tower location pertaining to which Section 65-BCertificate has not been placed on record indicates that, on the Cri.Appeal No.107/2021 withconnected appeals:: 46 ::preceding day appellant Sahebrao was in Pune while on thefollowing day he was admittedly at Pimpalgaon. Admittedly 4of the appellants are relatives of each other. The other 2appellants namely Rahul @ Lakhan and Suvarna were theacquaintance of other appellants. They would visit the houseof appellant Uttam and Sahebrao for performing Poojas on Nomoon and Full moon nights. What kind of conversation theyhad inter-se during the relevant days is not before us. It would,therefore, be very difficult to conclude that the conversationpertained only and only in respect of conspiracy to commit themurder. Such inference ought not to have been drawn by theTrial Court. More so, when two of the cell phone numberswhich were in contact, belong to the persons who are not theappellants nor were the accused persons. Although they werethe relatives of the appellants, there is no evidence to indicatethat these phone numbers were in fact used, one by Uttam andother by Rahul @ Lakhan. What has been referred to by theTrial Court is mostly what was disclosed during theinvestigation. That cannot partake the nature of substantiveevidence. Needless to mention, we are short of words to Cri.Appeal No.107/2021 withconnected appeals:: 47 ::condemn the nature of offence. True, the offence even mighthave been committed by all or any of the appellants. There isa long gap between “may” and “must”. The case wasadmittedly based on circumstantial evidence. Each and everycircumstance relied on ought to have been proved up to thehilts indicating the involvement of the appellants in the crime inquestion and excluding the possibility of involvement ofsomeone else. Appreciation of the evidence referred tohereinabove, lead us to conclude the prosecution to havefailed to bring home the charge beyond reasonable doubt. 47.It is reiterated that, the crime took place on theintervening night on 26 and 27 January. The F.I.R. was lodgedagainst unknown person. The informant Sarika gavesupplementary statement after about two months of theincident. What has been disclosed and recovered pursuant tothe disclosure statement made by appellant Sahebrao andDropadi was hit by Section 27 of the Evidence Act since almostentire statement of Dropadibai is confessional in nature.Almost all the articles were found at open place, accessible toone and all, that too long after the incident took place. The Cri.Appeal No.107/2021 withconnected appeals:: 48 ::articles those were found buried, namely knife and Dabhanborne no blood stains. P.W.7 Anil, on the point of last seen,has not been relied on. Reliance on the judgment in case ofDamu Shinde (supra) is of not much relevance since the glass-piece that was recovered pursuant to the disclosure statementwas found to be lamp piece of a motorcycle on which thedeceased therein was carried. There is nothing to indicate thattwo rope pieces recovered pursuant to the disclosurestatements, one by Dropadi and other by Sahebrao, matchedwith each other. In view of this and all other aspects, there isnothing to indicate them to have been used in commission ofthe crime. 48.For all the aforesaid reasons, the appealssucceed. Hence the order : O R D E R(i)The Criminal Appeals are allowed.(ii)Conviction of the appellants and consequentialsentences recorded by learned Additional Sessions Judge, Cri.Appeal No.107/2021 withconnected appeals:: 49 ::Osmanabad vide order dated 23/10/2020 passed in SessionsCase No.31/2017 are hereby set aside. The appellants areacquitted of the offences punishable under Sections 302, 363,364, 120-B all r.w. Sec.34 of the Indian Penal Code, 1860 andSec.3(2) of the Maharashtra Prevention and Eradication ofHuman Sacrifice and other Inhuman, Evil and Aghori Practicesand Black Magic Act, 2013. The appellants be set at libertyforthwith if not required in any other case. Fine amount, ifpaid, be refunded to them. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-