Criminal Appeal No. 370 of 2018 · The High Court
Case Details
2024:BHC-AUG:16915-DB Cri.Appeal No.370/2018 with:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.370 OF 20181.Parag s/o Machindra Pathare,Age 24 years, R/o Near Borawake College,Ward No.1, Shrirampur,Tq. Shrirampur, Dist. Ahmednagar(Appellant No.1 has filed separate Appeal No.415/2019 as per order dt. 5/4/2019) 2.Ajay s/o Dinkar MoreAge 20 years, R/o Prakashnagar, Near ThatteGround, Ward No.7, Shrirampur,Tq. Shrirampur, Dist. Ahmednagar… APPELLANTS(Orig. Accused No.2 & 3)VERSUS1.The State of Maharashtra (Copy to be served on Public Prosecutor, High Court ofBombay, Bench at Aurangabad)2.Minakshi Gorakshnath Chandgude,Age major, R/o Chasnali, Tq. Kopargaon,Dist. Ahmednagar… RESPONDENTS.......Mr. Rajendra Deshmukh, Senior Counsel with Mr. Devang Deshmukh with Mr. Vishal Chavan,Ms K.M. Salve, Advocates for appellant Mrs. S.N. Deshmukh, A.P.P. for respondent – State Mr. R.R. Karpe, Advocate for respondent No.2.....… Cri.Appeal No.370/2018 with:: 2 ::WITHCRIMINAL APPEAL NO.348 OF 2018Dhiraj s/o Shankar Shinde,Age 23 years,R/o Sanjay Nagar, Near Water Tank, Shrirampur,Tq. Shrirampur, Dist. Ahmednagar… APPELLANT VERSUS1.The State of Maharashtrathrough Police Inspector,Police Station, ShrirampurDist. Ahmednagar2.Minakshi Gorakshnath Chandgude,Age major, Occ. Household,R/o Chasnali, Tq. Kopargaon,Dist. Ahmednagar… RESPONDENTS.......Mr. G.K. Naik Thigale, Advocate for appellant Mrs. S.N. Deshmukh, A.P.P. for respondent – State Mr. R.R. Karpe, Advocate for respondent No.2.....…WITHCRIMINAL APPEAL NO.415 OF 2019Parag s/o Machindra Pathare,Age 24 years, Occ. Student,R/o Near Borawake College,Ward No.1, Shrirampur,Tq. Shrirampur, Dist. Ahmednagar… APPELLANT(Orig. Accused No.2)VERSUS Cri.Appeal No.370/2018 with:: 3 ::1.The State of MaharashtraThrough Shrirampur City Police Station,Tq. Shrirampur, Dist. Ahmednagar(Copy to be served on Public Prosecutor, High Court ofBombay, Bench at Aurangabad)2.Minakshi Gorakshnath Chandgude,Age 42 years, Occ. Agri.R/o Chasnali, Tq. Kopargaon,Dist. Ahmednagar… RESPONDENTS.......Mr. N.B. Narwade, Advocate for appellant Mrs. S.N. Deshmukh, A.P.P. for respondent – State Mr. R.R. Karpe, Advocate for respondent No.2.....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 8th July, 2024Date of pronouncing judgment : 5th August, 2024JUDGMENT (PER R.G. AVACHAT, J.) : These three appeals are decided by this commonjudgment since challenge therein is to one and the samejudgment and order of conviction and consequential sentence,dated 26/4/2018, passed by learned Additional SessionsJudge, Shrirampur, District Ahmednagar in Sessions Case,No.40/2015. The details of conviction and consequentialsentence imposed against the appellants is given in a tabularform below :- Cri.Appeal No.370/2018 with:: 4 ::Sections Sentence302 r/w 34 IPCImprisonment for life with fine of Rs.5000/- each, in default R.I. for 6 months364-A r/w 34 IPCImprisonment for life with fine of Rs.5000/- each, in default R.I. for 6 months363 r/w 34 IPCR.I. for one year with fine of Rs.1000/- each, in default R.I. for 1 month.385 r/w 34 IPCR.I. for 6 months with fine of Rs.500/- each, in default R.I. for 15 days387 r/w 34 IPCR.I. for 3 years with fine of Rs.2000/- each, in default R.I. for 1 month120-B IPCR.I. for 3 years with fine of Rs.2000/- each, in default R.I. for 1 month.201 r/w 34 IPCR.I. for 3 years with fine of Rs.3000/- each, in default R.I. for 3 months.The substantive sentences have been directed to run concurrently.2.The facts giving rise to the present appeals are asfollows : Ganesh Chandgude (deceased) was a 12thStandard student of Science stream, in R.B.N.B. College,Shrirampur. Smt. Minakshi (P.W.7) was his mother. Father ofGanesh had passed away in 2012. The family hailed fromvillage Chasnali, Taluka Kopargaon, District Ahmednagar.Ganesh had two sisters, Tejaswini and Ruchira. Ruchira wasmarried. Ganesh completed his 10th Standard education at
Legal Reasoning
Cri.Appeal No.370/2018 with:: 45 ::State of Maharashtra (1984 CJ (SC) 262), 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,(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 possible Cri.Appeal No.370/2018 with:: 46 ::hypothesis 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.”52.The following are the circumstances sought to beproved by the prosecution on the basis of the evidencereferred to hereinabove:-(1)Homicidal death of Ganesh,(2)The deceased Ganesh having been lastly seen inthe company of the appellants.(3)CDRs and SDRs of the cell phones belonging tothe deceased and his mother Minakshi.53.Admittedly, Ganesh was a 12th Standard student ofScience stream of R.B.N.B. College, Shrirampur in the year2015. He hailed from Kopargaon. His father had passed awayin 2012. He had two sisters, Tejaswini and Ruchira. Ruchirawas married. Ganesh completed his education up to 10thStandard at Kopargaon. For further education, Ganesh and Cri.Appeal No.370/2018 with:: 47 ::his sister Tejaswini started residing at the house of theirmaternal uncle P.W.1 Sunil at Matapur. Ganesh would shuttlebetween Matapur and Shrirampur for attending college. Theevidence of P.W.1 Sunil and his wife Jyoti (P.W.6) wouldindicate that Ganesh left the house for college as usual on12/3/2015. He carried with him a black colour sack bag. Theirevidence further indicate that, he informed them that he wouldbe back after 15 days. Ganesh also reportedly said them thathe would be staying along with appellant Parag Pathare in hisroom. His examination of 12th Standard was underway. Thelast paper of I.T. was on 25 March. There is also evidence toindicate that, Adesh Adhav, friend of Ganesh had told P.W.1Sunil on the following day that Ganesh had asked him toinform at his maternal uncle’s residence that he would begoing to Goa along with his friends.54.In the cross-examination, P.W.1 Sunil testified that,Ganesh had left the house along with Adesh Adhav on12/3/2015. Adesh Adhav has not been examined as a witnessnor was he suspected to have been involved in the case.55.Admittedly, Ganesh did not return post he left thehouse on 12/3/2015. It was tried to be argued by learned Cri.Appeal No.370/2018 with:: 48 ::Advocate Mr. Thigale that, the dead body that was found underthe bridge over Shivana river was not that of Ganesh. We donot subscribe to his submissions. Admittedly, dead body of amale person was found on 16 March below the bridge overShivana river. It was in highly decomposed condition. On thespot post mortem examination was said to have been done.For the reasons best known to the prosecution, the postmortem examination report has not been placed on record.Admittedly, viscera was preserved. The same was sent forchemical analysis. Blood sample of Minakshi was obtained.The DNA report (Exh.323) indicates the dead body found atthe concerned place was that of a biological son of P.W.7Minakshi. The DNA report (Exh.232), inquest panchanama(Exh.60) and the dead body burial panchanama have beenexpressly allowed to be admitted in evidence by the concernedAdvocate representing the appellants before the Trial Court.On all these documents, we find an endorsement “May beadmitted in evidence”. Learned Advocate Mr. Thigale,therefore, could not now be heard to say that the dead bodywas not that of Ganesh, son of Minakshi.56.His reliance on the judgment of the Apex Court in Cri.Appeal No.370/2018 with:: 49 ::case of Alamelu & ors. (supra) would be of little assistance forhim since it pertains to proof of date of birth. True, it has beenobserved therein that mere admission of a document does notdispense with the obligation of the prosecution to proveprobative value of the contents of the document. There can beno two views over the same. In the peculiar facts andcircumstances of the present case, however, since theappellant admitted the DNA report (Exh.232), we have nohesitation to hold the dead body found was that of Ganesh andnone else.57.The inquest panchanama (Exh.60) indicate thedead body was in decomposed condition. It was partiallyburnt. Head was smashed with a stone. A stone was lying inthe nearby. There were blood stains on the stone. An oil canwas also found at the scene. It, therefore, cannot be said to bea case of an accident or suicide. From appreciation of thisevidence, we reach the conclusion that deceased Ganesh metwith homicidal death, though the post mortem report was notplaced on record.58.The question is, whether the appellants were theauthors of the crime. Appellant Parag Pathare was stated to Cri.Appeal No.370/2018 with:: 50 ::be a close friend of deceased Ganesh. 12th Standardexamination of Ganesh was underway. He had left the houseof his maternal uncle (P.W.1 Sunil) in the morning of 12/3/2015as usual. He had informed P.W.1 Sunil that he would bestaying with appellant Parag for study for 15 days. Theevidence in examination-in-chief of P.W.1 Sunil and his wifeJyoti (P.W.6) would suggest that it was Ganesh who alone leftthe house in the morning of 12 March. P.W.1 Sunil, however,in his cross-examination, admitted that, Ganesh left in thecompany of Adesh Adhav. 59.The F.I.R. (Exh.17) was lodged by P.W.1 Sunil on25/3/2015 i.e. 13 days after Ganesh left the house. As per theprosecution case itself, (P.W.1 Sunil and his wife P.W.6 Jyoti),Ganesh had left the house to stay with his friend – appellantParag Pathare. According to the prosecution, on the followingday i.e. on 13 March, Adesh Adhav had informed P.W.1 Suniland his wife Jyoti (P.W.6) that Ganesh had asked him to tellthem that he was leaving for Goa along with his friends. Theevidence of P.W.1 Sunil further indicates that, he tried tocontact Ganesh for two consecutive days i.e. on 13 and 14March 2015. He, however, could not establish contact. Cri.Appeal No.370/2018 with:: 51 ::Admittedly, P.W.1 Sunil had lodged a missing person’s report.The same has not been placed on record. According to P.W.1,he was hopeful of return of Ganesh immediately after his paperof I.T. subject was over on 25 March. The report (Exh.17) waslodged stating therein that some unknown person kidnappedGanesh for ransom. It is just surprising that when Ganesh hadleft the house to join appellant Parag Pathare, there is nothingto indicate the family members to have ever suspected ParagPathare’s role. It was just unnatural conduct on their part.There is nothing to indicate that P.W.1 Sunil or anyone elsehad really paid visit to the room wherein appellant ParagPathare was staying on rent. The landlord Tushar (P.W.18),whose room was taken on rent by appellant Parag Pathare,testified that, family members of Ganesh had come to hispremises and enquired whether he was residing. That timeonly he came to know that Ganesh was not in the room. In hiscross-examination, P.W.18 Tushar testified that, one YuvrajKale, Mahesh Mane, Abhijit Shete and Vruddheshwar were thefriends of Parag. His police statement is also silent to statethat family members of Ganesh had been to him to makeenquiry as to whether Ganesh was there along with ParagPathare in a room taken on rent from him (P.W.18). As such, it Cri.Appeal No.370/2018 with:: 52 ::appears that, P.W.18 Tushar was even not knowing deceasedGanesh. His police statement being silent (material omission)to state that Ganesh was staying with appellant Parag in theroom, his evidence before the Court is an improvement overhis police statement.60.When P.W.1 Sunil lodged the F.I.R. (Exh.17), andbased on which the crime was registered, there is nothing toindicate that the then investigating officer of the said crime(Shri Vathore) made any efforts to locate Ganesh or any of hisfriends, mainly appellant Parag Pathare. There is no anyshred of evidence that, from 13 March until next 4-5 days anyof the appellants were absconding. Although P.W.22 NitinPagar, testified that he found all the cell phones of theappellants were switched off under one tower location, he wascandid enough to admit that no such evidence was placedbefore the Court.61.Evidence of P.W.8 Punam, cousin of the deceasedGanesh (daughter of maternal aunt) indicate that, on the givenday i.e. on 12 March, she had seen Ganesh (deceased) alongwith appellant Parag Pathare and two others (Ajay More andDhiraj Shinde) near Morge Hospital while she was on her way Cri.Appeal No.370/2018 with:: 53 ::home little past 6.30 p.m. The question is, whether herevidence inspires confidence. The appellants have everyreason to contend her to be a planted witness. Admittedly,Punam would run a medical shop/ store. The licence issued toher indicates timing of the shop being from 10.00 in themorning to 8.00 in the evening. Her medical shop wasattached to a Psychiatric Hospital of Dr. Unde. According toher, she would close the shop for the day after having verifiedthat, OPD patients were no longer there. Her evidence inexamination-in-chief indicates that she closed the shop by 6.00p.m. and was on her way home on a Scooty. She met Ganeshalong with the appellants near Morge Hospital. She evenenquired with Ganesh to learn from him that he wasaccompanying Parag Pathare for buying a cell phone of him(Parag Pathare). She then went her home. On the followingday, she went to her maternal uncle’s house (P.W.1 Sunil) atMatapur. Since deceased Ganesh did not return on that day,her maternal uncle took search for him. This piece of evidencedoes not sound reasonable since according to P.W.1 Sunilhimself Ganesh had left the house for staying with appellantParag Pathare for 15 days. Therefore, there was no questionfor him to make search for Ganesh on account of his non Cri.Appeal No.370/2018 with:: 54 ::return to his residence late evening on 12 March itself. Duringcross-examination of Punam (P.W.8), it has been brought onrecord that there was a water canal on southern side of theUnde Hospital while IDBI Bank was on the northern.According to her, there was first turn to the road after crossingcanal on south side of Unde Hospital. Then there is first turnon north side of Unde Hospital near IDBI Bank. Up to theseturns, road in front of Unde Hospital was straight. She testifiedthat, she proceeded towards southern side. While the placewhereat she had met Ganesh near Morge Hospital, wastowards northern side. Her evidence further indicates that,there was only one shop attached to Dr. Unde’s Hospital. Onthe given day i.e. 12/3/2015, she did not make any enquirywhile closing of the medical shop as to whether there wereoutdoor patients. This conduct of Punam (P.W.8) was unusual.More so when her evidence indicates that, there used to beindoor patients as well and Dr. Unde would give medicalservice round the clock. Her evidence would further indicatethat, on the next day itself she had visited the house of hermaternal uncle Sunil (P.W.1). The evidence of P.W.6 Jyotiindicates that, Punam (P.W.8) used to visit her residence atleast once a week. Keeping quiet for a long time, expecting Cri.Appeal No.370/2018 with:: 55 ::return of Ganesh appears to be unusual. True, they (P.W.1and P.W.6) were somewhat distant relations of the deceased.P.W.8 Punam even could not describe clothes on the person ofGanesh and the appellants while she had seen them nearMorge Hospital. Admittedly, her evidence indicates that,Morge Hospital was not located on the way which leads to herhome. There is nothing in her evidence as to why she took theroute/ road that would lead towards Murge Hospital. Moreover,her statement was recorded by investigating officer on 27March i.e. 15 days after Ganesh left the house and two daysafter registration of the F.I.R. 62.A test identification parade was held by P.W.17Sachin Mhaske, Naib Tahsildar-cum-Executive Magistrate on3/12/2015. The investigating officer had given him a letter on2/11/2015 itself to hold test identification parade. He held thetest identification parade one month after receipt of therequisition and about three months after arrest of theappellants. Admittedly, names of the appellants had beenflashed in the daily on 9 November itself. P.W.8 Punam hadnot given the description of appellants Parag Pathare and AjayMore in her statement to the police. Since evidence of P.W.8 Cri.Appeal No.370/2018 with:: 56 ::Punam that she closed her medical shop by 6.30 p.m. andwhile on way home she met Ganesh along with the appellantsis found to be unbelievable, being unnatural on the part ofowner of a medical shop, services of which were required infact round the clock or at least up to 9.00 p.m. everyday. Herevidence that on the given day, she even did not enquire orsatisfy herself that there were no patients in the OPD and assuch, there would be no inconvenience to Dr. Unde or any ofhis patients if she closed the medical shop for the day, appearsto be unreasonable and unnatural as well. We, therefore, donot propose to rely on her evidence. The same does notinspire confidence. For these reasons, her evidence of havingidentified the appellants Dhiraj Shinde and Ajay More in testidentification parade loses its efficacy. More so, when the testidentification parade was held about three months after arrestof these appellants. Admittedly, their names were flashed inthe daily on 9 November itself. 63.Conviction solely based on last seen theory mayonly be based when the time gap between the two is so narrowso as to eliminate possibility of intervention of some thirdperson in between. In the case in hand, even we accept (for Cri.Appeal No.370/2018 with:: 57 ::the sake of assumption) that P.W.8 Punam had seen Ganesh(deceased) in the company of appellants on the evening of 12March, dead body of Ganesh was found somewhat late in theevening of 16 March. The Medical Officer who conducted thepost mortem was not examined. Post mortem report has notbeen placed on record. As such, the prosecution produced noevidence as regards exact time by which Ganesh met withhomicidal death. The so called last seen theory would,therefore, be of little consequence to connect the appellantswith the crime in question.64.As per the prosecution case itself, the appellantshad taken the deceased to Hotel Rajyog. They took wine anddined there. Thereafter they took Ganesh to a place whereashis dead body was found. Then they killed him there.Admittedly, the investigating machinery had collected theCCTV Unit and even the hard disc thereof and sent to ForensicScience Laboratory to retrieve recording therein. It wasP.W.26 Arjun, Scientific Officer with Forensic ScienceLaboratory, Kalina did this exercise. His report indicatesnothing could be recovered from the hard disc of the CCTVUnit. As such, there is no evidence to indicate that the Cri.Appeal No.370/2018 with:: 58 ::appellants and deceased had been to Hotel Rajyog, they tookwine and even dined there.65.As per the case of the prosecution itself, theappellants, after having left Hotel Rajyog administered wine toGanesh soon before he was murdered at the place whereat hisdead body was found. The C.A. report relating to viscera(Exh.23) is also silent to indicate it to have contained alcoholresidues. The same too runs counter to the prosecution case.66.The case of the prosecution that Ganesh waskidnapped for ransom appears to have been improbable sincekidnapper did not make any call to mother of Ganesh oranyone of his close relations before dead body of Ganesh wasfound on 16. It is only on 22 March a first call and message tothat effect was received on cell phone of Smt. Minakshi(P.W.7), mother of Ganesh. The inquest panchanama(Exh.60) indicating wrist watch of Ganesh on his wrist indicatesthat the killers had no motive to rob him.67.Then what remains is the evidence in the nature ofCDRs and SDRs. Both the cell phones said to have beenused by deceased and his mother were issued in the names of Cri.Appeal No.370/2018 with:: 59 ::some other persons, but those were the days when the personin whose name SIM Card issued stop making use thereof forcertain time, the concerned cellular company would issue SIMCard of very number to someone else. True, there is no suchevidence in this case. Admittedly, the SIM Card used by thedeceased was issued in the name of Ashok Shinde. AshokShinde has not been examined. We cannot be oblivious of thefact that the case is based on circumstantial evidence. True,the Trial Court has found that CDR record indicates that therewere many calls between the deceased and his mother andtheir relations as well. There is also no serious dispute that thedeceased would use a mobile phone of SIM Number7741935404. While the cell phone number of his mother was9527425132. According to the prosecution, the cell phone ofthe deceased was under surveillance. It was P.W.24Sanjaykumar who did the said exercise. He found the SIMCard of the deceased was active in a particular cell phone. Hedid the investigation in that regard. As per the case of theprosecution itself, one Bhagirathibai (P.W.9) had purchased thecell phone with a SIM Number 9730845978. She had giventhe said SIM Card to Sadhana (P.W.10), daughter of her sister.Sadhana testified that, the said SIM Card was given by her to Cri.Appeal No.370/2018 with:: 60 ::her friend Sagar (P.W.11). Sagar testified to have received thevery SIM Card from Sadhana. It appears that, Sadhana andSagar were close friends and would converse with each otheron cell phone everyday. 68.P.W.11 Sagar’s evidence indicates that, he wasmaking use of the said SIM Card in a mobile handset NokiaLumia Make 625. According to him, he had purchased thesaid cell phone for Rs.5000/- from one Raju Yadav (P.W.12).Raju Yadav in turn testified that he had purchased the said cellphone (allegedly of the deceased) from Shubham Lokhandefor Rs.3000/- and sold it to Sagar for Rs.5000/-. Theprosecution then examined Shubham (P.W.13) who testified tohave had purchased the said cell phone (handset) allegedly ofthe deceased, from Ajay More (one of the appellants). He hadsold the said cell phone to his friend Raju Yadav for Rs.3000/-.According to him, he had purchased for Rs.2500/- from Ajay.69.The aforesaid evidence of P.W.9 to P.W.12indicates that, the handset with the SIM of the deceasedtherein had changed many hands. It is, however just difficult tobelieve that the person purchasing a used handset (secondhand), sells it for a price more thant the purchase price. There Cri.Appeal No.370/2018 with:: 61 ::is no evidence to indicate what was the cost of a new brandNokia Lumia 625 model cell phone so that one may believe thehandset in question to have changed hands for the price morethan market price.70.Admittedly, P.W.13 Shubham was arrested in thecrime. He was in police custody for 15 days. He was behindthe bars for about 90 days in connection with the crime inquestion. The investigating officer ultimately filed report underSection 169 of the Cr.P.C. The same suggests that, duringinvestigation, the prosecution did not find any evidence againstShubham. What material was there so as to file report underSection 169 Cr.P.C. against P.W.13 Shubham is not on record.Shubham being one of the suspects in the crime and was evenarrested and was behind the bars for about 90 days, hisevidence that he purchased the cell phone from appellant AjayMore, that ultimately turned out to have belonged to thedeceased, needs to be taken with pinch of salt. Even for thesake of assumption we accept the evidence of P.W.9 to P.W.13that Bhagirathibai’s SIM Card changed hands and the cellphone of the deceased changed hands from Ajay More toShubham and from Shubham to Raju Yadav and from Raju Cri.Appeal No.370/2018 with:: 62 ::Yadav to Sagar Pawar is accepted, there is no evidence toindicate the day, date and time on which the mobile handsetand SIM Card of Bhagirathibai in fact changed hands.Therefore, even we accept the evidence of CDRs and SDRsas it is, it is just difficult to observe the prosecution to haveclinching evidence to indicate any of the appellants had in factmade a call and sent SMS on the cell phone of mother of thedeceased to make a demand of ransom of Rs.1 Crore. Inshort, there is no evidence on record to indicate that on thegiven day i.e. on 22 March, the day on which a call was made,with a demand of Rs.1 Crore for release of Ganesh, thehandset was in possession of any of the appellants and it werethey or one of them who made such call and/or sent messagein furtherance of their common intention.71.Exh.101 is the examination report of the cell phonesent to Forensic Science Laboratory. The report indicates that,IMEI Number of the cell phone sent for examination was356689056494321. While the seizure panchanama of the cellphone indicates its IMEI Number being 356689056494321/0.P.W.22 Pagar did not testify to have scored ‘0’ appearing in thepanchanama of the seizure of cell phone. True, the report Cri.Appeal No.370/2018 with:: 63 ::indicates that, excess ‘0’ (zero) appearing in the panchanamaof seizure of cell phone to have been scored out, but for wantof explanation on behalf of P.W.22 Nitin Pagar, who drew thesaid panchanama. True, the report indicates that a messagewas retrieved, which was found in Mobile number 9527425132belonging to mother of the deceased, sent to cell phoneNumber 9763899505. There is no evidence to indicate towhom this cell phone number belonged. It was stated to havebelonged to one Gorakshnath Chandgude (her husband). Theretrieved message was to the following effect : Sr.No.PartyDateTimeFolderStatusSourceMessageDeleted1To:976389950523/03/201523-03-201514:04:12SentSentSIM 1Rohan, Vishal, Ganesh, Pratesh ye charo humare pas hai, Agar apko apke ladko ki khairiyat chahate ho to 1 carod ready rakho 25 march tak. Apko vapas se ek call ayega. Police complaint bilkul nahi, koi hoshiyari nahi warna unn charo ki lashh apko milegi or who sub Allah ko pyare ho jayenge. Humari nazar ap-par rahegi ye char din. Gud luck.Intact72.There is no investigation on the line to find whowere those persons by name Rohan, Vishal and Priteshbesides deceased Ganesh in relation to whom the caller who Cri.Appeal No.370/2018 with:: 64 ::made demand of ransom was talking of. Clause 7 and 8 of thereport (101) reads thus : 7.SMS-Text messages were not found dated between“12/03/2015” to “15/04/2015” mobile phone in Ex-1and SIM Card in Ex-1-1.8SMS-Text messages were not found dated“29/03/2015” mobile phone in Ex-2 and SIM card inEx-2-1.73.Moreover, there is evidence to indicate that the SIMCard belonging to the deceased was used with different cellphone numbers, meaning thereby different IMEI Numbers.There is no investigation on that line. P.W.23 Sachin wascategorical to admit that during the period 12/3/2015 to7/4/2015 two IMEI numbers were used for Mobile No.7741935404. Those were 911421052776420 and911421052576430. The witness was shown cell phone ofNokia Make Model No.625. It was of black colour. Accordingto him, its IMEI Number was 356689056494321.74.We have also perused the CDRs and the callsbetween two numbers and other numbers as well as have Cri.Appeal No.370/2018 with:: 65 ::been relied on by the prosecution.75.Serious is the offence stricter shall be the proof.The case is based on circumstantial evidence. Each andevery circumstance needs to be proved conclusively. Even theCDRs and SDRs are accepted as it is, there is nothing to showthat on 22 and 25 March, whatever call or SMS were sent fromcell phone of deceased Ganesh, were sent by the appellantsor any one of them in furtherance of their common intention.The prosecution has utterly failed to show that on the givenday the cell phone was possessed by the particular appellant.More so when its case is that the cell phone and even the SIMCard had changed many hands. No details thereof have comein the evidence. One of the witnesses thereto, whom thehandset was said to have changed hands, was suspect in thecrime. He was arrested and was behind bars for 90 days.Then report under Section 169 Cr.P.C. was filed against him.Means, the prosecution did not get any evidence to send himto stand trial. In the circumstances, testimony of P.W.9 toP.W.13 that the SIM Card and the handset changed hands asthey have stated in their examination-in-chief do not lead us toconclusively hold that the call was made and/ or SMS was sent Cri.Appeal No.370/2018 with:: 66 ::by any of or all the appellants in furtherance of their commonintention.76.We have perused the judgment of the Trial Court.The Trial Court has relied on the evidence of the appellantsdisclosing the police the manner and way in which they hadkidnapped the deceased and committed his murder. Thesame was inadmissible in law. We have also perused therelevant paragraph Nos.56, 58 and 59 of the impugnedjudgment, relied on by learned counsel for the informant.These were the reasons of the Trial Court. This being theappellate Court, dealing with Criminal Appeals againstconviction, could reappreciate the evidence and come to itsindependent conclusion. On appreciation of the entireevidence on record and the reasons, stated hereinabove, wereach the conclusion that the prosecution has failed toestablish each and every circumstance beyond reasonabledoubt. The appellants are, therefore, entitled for benefit ofdoubt. In the result, interference with the impugned judgmentand order of conviction and sentence is warranted.77.In the sequel, the appeals succeed. Hence theorder :- Cri.Appeal No.370/2018 with:: 67 ::O R D E R(i)All the Criminal Appeals are allowed.(ii)The order of conviction and consequential sentence,dated 26/4/2018, passed by learned Additional SessionsJudge, Shrirampur, District Ahmednagar in SessionsCase No.40/2015 is hereby set aside. (iii)The appellants are acquitted of the offences punishableunder Sections 302, 364-A, 363, 385, 387, 120-B and201 read with Section 34 of the Indian Penal Code. Fineamount, if any, be refunded to them.(iv)The appellant Parag s/o Machindra Pathare and Ajay s/oDinkar More are in jail. They be set at liberty forthwith ifnot required in any other case.(v)Bail bonds of appellant Dhiraj s/o Shankar Shinde arecancelled. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-
Arguments
Cri.Appeal No.370/2018 with:: 5 ::Kopargaon. He along with his sister Tejaswini thereafterstarted residing at the house of their maternal uncle, P.W.1Sunil, at Matapur, Taluka Shrirampur.3.Ganesh would shuttle between Matapur andShrirampur for attending College. On 12/3/2015, he left thehouse, informing P.W.1 Sunil and other family members that hewould return after 15 days. He had also informed that hewould be staying in a room of his friend, Parag Pathare(appellant in Criminal Appeal No.415/2019). His (Ganesh) 12thStandard examination was underway. The last paper for thesubject of Information Technology (I.T.) was on 25/3/2015.One Akash Adhav, friend of Ganesh informed P.W.1 Sunil on13th March that Ganesh had asked him to inform him (Sunil)that he was going to Goa along with his friends. For next 2-3days, P.W.1 Sunil tried to contact Ganesh on his cell phone.No contact could, however, be established.4.It is also the case of the prosecution that, on theintervening night of 22 and 23 March 2015, a call was receivedon cell phone of Minakshi (P.W.7). The caller was unknown.The caller made a demand of Rs.1 Crore for release ofGanesh. He was speaking in Hindi. The caller told Minakshi Cri.Appeal No.370/2018 with:: 6 ::(P.W.7) that three others namely Rohan, Vishal and Priteshwere in their custody along with Ganesh. The caller also gavethreats of dire consequences, if the matter was reported topolice. A similar message too was received on the cell phoneof Minakshi (P.W.7). Since Ganesh did not return post25/3/2015, P.W.1 Sunil lodged First Information Report(Exh.17). It appears that, a crime vide C.R. No.I-72/2015 foroffence punishable under Section 387 of the Indian PenalCode was registered at Shrirampur Police Station. Shri VishalVathore (P.W.19) was investigating the said crime.5.A dead body of unknown person in half burntcondition with an injury on head was found under a bridge overShivana river within the limits of Gangapur Police Station. Thedead body was in decomposed condition. On the spot, inquestpanchanama (Exh.60) and post mortem examination wasconducted. The dead body was buried, but not beforeobtaining certain samples from the body for DNA analysis.F.I.R. (Exh.58) was lodged by Police Officer Ganesh Jamdar atShrirampur Police Station, alleging therein murder of unknownperson was committed for unknown reason. The cell phone ofthe deceased was under surveillance. It was realised during Cri.Appeal No.370/2018 with:: 7 ::the surveillance that the cell phone was possessed by AjayMore (appellant in Criminal Appeal No.370/2018). He wasarrested. During his interrogation, involvement of the otherappellants in commission of the crime was disclosed. TheDNA report (Exh.232) (admitted by the defence in evidencebefore the Trial Court) indicates that Minakshi was biologicalmother of the deceased. As such, it was disclosed that thedead body found below the bridge over Shivana river was thatof Ganesh. The papers of investigation made by GangapurPolice Station were transferred to Shrirampur Police Station.6.On 9 September a news was flashed in the dailyabout the crime to have been crapped. It was disclosed duringinvestigation that, the appellants kidnapped Ganesh forransom. They took him to Hotel Rajyog and administered himliquor. Then they took him to the place whereat his dead bodywas found. He was further administered liquor. He becameunconscious. The appellants then smashed his head with asmall bolder and then set him on fire.7.During the investigation, statements of personsacquainted with the facts and circumstances of the case wererecorded. Cell phone of the deceased and that of his mother Cri.Appeal No.370/2018 with:: 8 ::were sent to Forensic Science Laboratory. The CDRs andSDRs of both the cell phones were obtained. It was revealedduring investigation that, Kum. Punam (P.W.8), a cousin ofGanesh had seen the appellants in the company of Ganesh bylittle past 6.30 p.m. on 12/3/2015. A test identification paradewas, therefore, conducted. She identified the appellants AjayMore and Dhiraj Shinde in the test identification parade.(Appellant Parag Pathare was known to her). 8.On completion of the investigation, charge sheetwas filed. The Trial Court framed the Charge (Exh.9). Theappellants pleaded not guilty. Their defence was of falseimplication. 9.The prosecution examined 26 witnesses andproduced in evidence certain documents. On appreciation ofthe evidence produced in the case, the Trial Court convictedand consequently sentenced the appellants as stated above.10.Heard. Learned Advocates for the appellantsmade submissions in one voice. According to them, the casewas based on circumstantial evidence. It was argued beforeus that, the dead body that was found under the bridge was Cri.Appeal No.370/2018 with:: 9 ::not that of Ganesh. Crime scene panchanama was, therefore,adverted to, to indicate that it was a dead body of a person ofthe age group between 25-30 years, while Ganesh was just18. According to learned Advocates, mere admission of adocument for giving no objection to exhibit the same does notrelieve the prosecution of its obligation to prove the contents ofthe document so admitted. According to them, P.W.8 Punamwas a planted witness. She would run a Medical Storeattached to a psychiatric hospital of Dr. Unde. There used tobe indoor patients. Closing the medical store for the day bylittle past 6.15 p.m. would be highly unnatural conduct.According to them, she was planted as a witness to make outa case of last seen theory. Her statement under Section 161of the Criminal Procedure Code was recorded 17 days aftershe had seen the deceased in the company of the appellants.It was highly unnatural that no F.I.R. was lodged at the earliest.A missing person’s report lodged by P.W.1 Sunil was notplaced before the Trial Court. Both the cell phones allegedlyused by the deceased and his mother and the respective SIMCards issued in the names of some third persons. There wasa difference between IMEI Number of the seized phone andthe cell phone that was sent to Forensic Science Laboratory. Cri.Appeal No.370/2018 with:: 10 ::11.The learned Advocates for the appellants wouldfurther submit that, the Trial Court passed the judgment mostlyon the material which was inadmissible in evidence. It was thematerial in the nature of confession-cum-demo given as to themanner in which the crime was committed, given by theappellant to the police. 12.Learned Senior Advocate appearing for appellantAjay More took us through the evidence of the prosecutionwitnesses. According to learned Senior Advocate, followingpoints be considered while deciding the appeal. The pointswhich the learned Senior Counsel proposes to address arereproduced below :-“(i)Complainant did not produce any document toprove whether Nokia Lumia 625 mobile phonebelonged to the deceased Ganesh.(ii)Prosecution failed to bring on record that NokiaLumia 625 was in any way possessed/ handled/used by deceased with the mobile number7741935404.(iii)The Prosecution failed to prove beyond reasonable Cri.Appeal No.370/2018 with:: 11 ::doubt regarding why IMEI No.911421052576430appears for mobile No.7741935404 which is totallycontrary to entire evidence collected by theinvestigation authorities.(iv)The IMEI number digit dispute is not settledbeyond the reasonable doubt.(v)No evidence of deceased along with accusedpersons visiting Rajyog Restaurant & Bar.(vi)No evidence of deceased along with accusedpersons crossing any of toll plazas betweenAhmednagar and Aurangabad.(vii)Nothing seized from any of spots or places whichwould implicate any of accused with the saidcrime.(viii)As per Prosecution story, one motorcycle/ vehiclewas pointed out by PW-8 (Punam), but theinvestigation authorities seized 2 motorcycles fromaccused and yet prosecution could not provideexactly which vehicle was used in commission ofcrime.(ix)CDR/ SDR reports of accused are not placed onrecord to prove any link between deceased Cri.Appeal No.370/2018 with:: 12 ::Ganesh and accused.(x)No documentary evidence proving beyondreasonable doubt to connect any of accused withthe deceased.(xi)Entire prosecution machinery set into motion onlyafter news flashes in multiple newspapers on09/09/2015.(xii)Even though unknown dead body was found,inspected, performed post mortem in thejurisdiction of Gangapur Police Station on16/3/2015 no independent and impartialinvestigation was carried out by investigationauthorities till September 2025.(xiii)As per prosecution story, on 12/3/2015, deceasedand accused consumed liquor and later deceasedwas put to death, then the viscera report of thedeceased ought to have brought different result.”13.Learned Advocate Mr. G.K. Naik Thiglerepresenting the appellant Dhiraj Shinde relied on thejudgment of the Apex Court in case of Alamelu & ors. Vs.State, represented by Inspector of Police (Criminal Appeal Cri.Appeal No.370/2018 with:: 13 ::No.1053/2019), decided on 18/1/2011 to submit that, mereadmission of a document or marking it Exhibit does notdispense with the party relying on the same to prove probativevalue of the contents of the said document. This submissionwas advanced by the learned Advocate, to contend that, theremark “Admitted” would be of no avail for the prosecution.Such remark appears on the document namely F.I.R. (Exh.58),crime scene panchanama (Exh.59), DNA report (Exh.232),inquest panchanama (Exh.60) and the panchanama relating toburial of the dead body (Exh.61). According to the learnedAdvocate, the prosecution failed to prove the body that wasfound under the bridge was that of Ganesh. According to thelearned Advocate, following were the vital aspects missed outfrom the case, which are reproduced below :-“(1)Age of the dead body,(2)Exchange of documents from police stations,(3)CCTV footage at Toll Plaza,(4)Mere admitting Exh.59 & 60 would not amount toadmission of its contents,(5)Non examination of doctor, who performed P.M.,(6)Other panch witness is fatal, Cri.Appeal No.370/2018 with:: 14 ::(7)the person who collected DNA samples i.e. doctoris not examined,(8)Where is the report of first P.M. conducted on thespot,(9)How second P.M. was conducted in mortuary ifcorpus was in decomposed condition.”14.According to the learned Advocate, IMEI Number ofcell phone seized and the one sent for analysis were different.The prosecution evidence is silent so far as regards explainingto whom the cell phone Number 9763899505 belonged. Forexample, he referred to the evidence of P.W.22 Nitin Pagar,who testified that, all the cell phones of the appellant werefound to have been switched off under same mobile tower.He, however, admitted in his cross-examination that, there wasno such evidence filed along with the charge sheet. Thelearned Advocate placed on record his written notes ofsubmissions to ultimately urge for allowing the appeal. 15.Learned Advocate for appellant Parag Pathare tookus through the evidence of each and every prosecutionwitness to submit that, the chain of circumstances to bring Cri.Appeal No.370/2018 with:: 15 ::home the charge has not been established. The owner of theroom wherein appellant Parag would reside, took names of 4persons namely Yuvraj Kale, Mahesh Mane, Abhijit Shete andVruddheshwar as friends of Parag. According to him, theExecutive Magistrate did not follow the mandatory provision asregards holding of test identification parade, given in CriminalManual. According to learned Advocate, there is nothing toobserve what was the base to come to the conclusion topublish a news item and as such, investigation which wasstarted thereafter nearly about six months period was creatingsuspicion. Appellant Parag’s role was not suspected indisappearance of the deceased immediately. Mere recovery ofa motorbike pursuant to a disclosure statement under Section27 of the Evidence Act at Parag’s instance would beinsignificant. Panch witness P.W.5 Subhash stated that, Paragdid not disclose the motorbike number vide his memorandumstatement was recorded. The witness was even unable to givedetails of the Society wherefrom the motorbike was seized. Noexplanation was forthcoming as to why the F.I.R. was lodgedvery late. According to learned Advocate, when the messageallegedly received by the mother of deceased Ganeshcontained three other names, such as Rohan, Vishal and Cri.Appeal No.370/2018 with:: 16 ::Pratesh, there was no further evidence about three othersnamed in the message. According to learned Advocate, theappellant, therefore, deserved to be acquitted. He, therefore,urged for allowing the appeal.16.The learned A.P.P. would, on the other hand, placeon record his written notes of arguments. He referred andrelied on the material evidence of each and every prosecutionwitness. We would be referring to the same a little later. Hewould further submit that, the C.A. report relating to viscera issilent about finding of alcohol. According to him, there ought tohave been a certain quantity of liquor to have been consumedthen only the same would have been reflected in the C.A.report. He would further submit that, the DNA report has beenadmitted by the defence. Since seizure of clothes of theappellants was made after a lapse of considerable time, it wasjust impossible to find blood stains on their clothes. Accordingto the learned A.P.P., the appellants did not give anyexplanation as to their whereabouts during the period12/3/2015 to 16/3/2015. They were identified in the testidentification parade. Pursuant to their disclosure statement,very many things have been discovered. Independent Cri.Appeal No.370/2018 with:: 17 ::witnesses were supporting the prosecution case. According tolearned A.P.P., the appellants have failed to make out a casefor interference with the impugned judgment and order ofconviction.17.Learned Advocate Mr. Rahul Karpe representingthe mother of deceased made oral submissions and placed onrecord bullet points of his arguments. He referred to thechronology of events leading to the incident. According to him,deceased Ganesh left the house by 9.00 in the morning on12/3/2015. By 6.30 p.m. on the same day, he was seen in thecompany of the appellants by P.W.8 Punam. On the very dayby 10.22 p.m., P.W.7 Minakshi (mother of the deceased) madea phone call to deceased Ganesh, who in turn informed her tohave been with the appellant Parag Pathare. According tohim, the family members were waiting for arrival of Ganeshsince he was to appear for paper of I.T. Subject on 25/3/2015.Since he did not appear on the given day, the F.I.R. wasimmediately lodged by his maternal uncle P.W.1 Sunil.Learned Advocate has referred to the evidence of each andevery witness. The same finds place in his written notes ofarguments. According to him, the cell phone of the deceased Cri.Appeal No.370/2018 with:: 18 ::was recovered. It was under surveillance by officers of LocalCrime Branch (LCB), Ahmednagar. Learned Advocate madesome additional submissions as follows :“I.As far as cell phone having SIM No.7741935404, ithas been contended emphatically by the accused inpresent appeal that, the same does not belong to ‘D’Ganesh.Ans :The same SIM Number belongs to one AshokShinde (since this SIM was on this name) since25/5/2013 till the disclosure of present offence.Even this aspect has been minutely appreciated inthe light of CDR information also by the learnedAdditional Sessions Judge, Shrirampur, particularlypara No.50.In short, though the said SIM having No.7741935404belongs to the concerned Ashok Shinde being owner,but the same was being used/ possessing by ‘D’Ganesh and this aspect has been corroborated in theteeth of documentary as well as oral evidence i.e.P.W.23 and P.W.26. In addition to this, it has alsobeen observed in this very para No.50 as referredsupra that, Exh.111 and Exh.112 CDR informationindicate exchange of phone calls and SMS inbetween 9527425132 (belongs to mother) and Cri.Appeal No.370/2018 with:: 19 ::7741935404 possessing by ‘D’ Ganesh.II.As far as, emphasis has also been given with regardsto Mobile No.9763899505, with this regard detailedanalysis/ scrutiny has been done/ made by thelearned Additional Sessions Judge, Shrirampur aboutthis and this aspect can be crystalized from paraNo.55 onwards as well as para No.60 of theimpugned order of conviction, wherein in thisparagraph it has been obsrved that, during disputedperiod in between Mobile No.9763899505 and9527425132, it also reveals that, there are severalcalls also have been made to another number andtherefore in absence of contrary this isolated factabout this number i.e. Mobile No.9763899505 is notsufficient to disbelieve the case of prosecution.”The learned Advocate ultimately urged fordismissal of the appeals.18.Let us, now, advert to the evidence on record andappreciate the same. P.W.1 Sunil was maternal uncle of Ganesh(deceased). P.W.6 Jyoti is wife of P.W.1 Sunil. They areresidents of village Matapur, Tq. Shrirampur, Dist.Ahmednagar. It is in his evidence that since the father of Cri.Appeal No.370/2018 with:: 20 ::Ganesh (deceased) passed away in 2012, Ganesh, aftercompleting his 10th standard education at Kopargaon, startedresiding with them at Matapur, for his further education. Hissister Tejaswini was also residing along with them for the verypurpose. Ganesh was a 12th standard student of Sciencefaculty in R.B.N.B. College, at Shrirampur, in the year 2015.He would shuttle between Matapur and Shrirampur, forattending the college and classes. It is further in his evidencethat on 12.03.2015, Ganesh left the house carrying a sackwith him. He informed at home that he was going to stay atthe room of his friend, Parag Pathare (appellant) for 15 days.It is further in his evidence that on the following day, i.e. on 13thMarch, Adesh Adhav, friend of Ganesh, told them to have beenasked by Ganesh to tell him (Sunil) that he was going to Goaalong with his friends. The evidence of P.W.1 Sunil furtherindicates that when he tried to contact Ganesh on hiscellphone for 2-3 days, he could not establish contact. Hisevidence further indicates that Minakshi (mother of deceasedGanesh) had come to his residence. It was on the interveningnight of 22 and 23 March. Minakshi received a call of anunknown person on her cellphone. The caller was speaking inHindi. He made demand of Rs.1 Crore for release of Ganesh. Cri.Appeal No.370/2018 with:: 21 ::The caller told that Rohan, Vishal, Ganesh and Pratesh werein their custody. He asked them to arrange for money by 25March. The caller even threatened her of dire consequences,if she tried to approach police or goes public. P.W.1 Sunil’sevidence further indicates that on the same night, similar SMSwas received on Minakshi’s cellphone. According to him, on25 March, there was paper (examination) of Ganesh forsubject – I.T. He was to appear for the said examination. All ofthem were hopeful that Ganesh would return after appearingfor the paper of I.T. subject. Since Ganesh did not return, helodged the FIR (Exh.17) with Shrirampur City Police Station. Itwas alleged therein that some unknown person/s kidnappedGanesh for ransom. A crime, therefore, came to be registeredvide Crime No.72 of 2015 with Shrirampur Police Station forthe offences punishable under Sections 363, 385, 387 ofIndian Penal Code.19.It is further in his evidence that on 09.09.2015,news was flashed in the daily. He learnt on reading of thenews that the appellants had kidnapped Ganesh. They tookhim under a bridge over Shivana river in Taluka Gangapur andkilled him with hitting his head with stone. A partially-burnt Cri.Appeal No.370/2018 with:: 22 ::body was found under the bridge over Shivana river. He alongwith his sister – Minakshi and wife Jyoti, therefore, went to thepolice station. They identified the clothes of Ganesh.20.It is in the cross-examination of PW 1-Sunil that hedid not knew any of the friends of Ganesh, except AdeshAdhav. According to him, Ganesh used to speak of ParagPathare (appellant). He was, however, quick enough torespond to the question that he was so telling for the first time.So has not been stated by him in his F.I.R. (Exh.17). It isfurther in his evidence that Ganesh had left the house with hisbag for college along with Adesh Adhav. It is further in hisevidence that it was he, who would spend for education andmaintenance of Ganesh and his sister – Tejaswini, since theirfather had passed away. His evidence further disclosed thatbefore 22.03.2015, he had given an application to the police,informing Ganesh to have gone to Goa and if he would notreturn for his paper of I.T. subject, he would come and lodge areport. His evidence further disclosed that he has lodged amissing person’s report with the concerned police station.21.P.W.7 Minakshi, mother of Ganesh, testified moreor less consistent with the evidence of P.W.1 Sunil and his wife Cri.Appeal No.370/2018 with:: 23 ::Jyoti. It is in her evidence that her husband passed away in2012 and therefore, Ganesh and her daughter Tejaswini wouldreside at the house of her brother – Sunil (P.W.1) for furthereducation. It is further in her evidence that on 12.03.2015,she talked to Tejaswini on phone. She learnt from her Ganeshto have left the house for 15 days to stay with Parag Pathare.Since Tejaswini has not been examined, this piece of evidenceis hearsay. According to her, she, therefore, contacted Ganeshon his cellphone. He (Ganesh) informed to have been in thecompany of Parag Pathare. He further informed that he was atParag’s room. He informed her that he would be back onSunday. A tiffin was sent for Ganesh on the following day withother boys. He, however, did not come to collect the same.So was informed to her by Tejaswini (hearsay). She, therefore,made phone call to Ganesh. She could not establish contact.22.It is further in her evidence that on 22 March, shereceived a phone call from the cellphone of Ganesh.According to her, the cellphone number of Ganesh was7741935404, while her cellphone number was 9527425132.She received a call of an unknown person on her cellphone.The caller was speaking in Hindi. He was making demand of Cri.Appeal No.370/2018 with:: 24 ::Rs.One Crore for release of Ganesh. The caller told thatRohan, Vishal, Ganesh and Pratesh were in their custody. Heasked them to arrange for money by 25 March. The callereven threatened her of dire consequences, if she tried toapproach police or make the incident public. According to her,similar SMS was received on her cellphone from the cellphoneof Ganesh. It is further in her evidence that on 24 March, shereceived missed-call. According to her, no complaint with thepolice was lodged as they were hopeful of return of Ganeshimmediately after his paper of I.T. subject was over on 25March. Even, Ganesh did not return thereafter. Her brotherSunil (PW 1) lodged missing-person’s report. It is further in herevidence that she again received missed-call and then,message from the cellphone of Ganesh. She was informedthrough the message that he (Ganesh) was to pay loan of hisfriends. He was, therefore, in need of money of Rs.9 Lakhs.He also made demand of Rs.35 Lakhs for opening a mobileshop at Kopargaon. It is further in her evidence that on 6 April,she was at her own residence. It was about 04.00 p.m., shereceived a threatening call on her cellphone. The caller wasunknown person, speaking in Hindi. The caller made demandof Rs.1 Crore. She asked the caller to allow her to talk with Cri.Appeal No.370/2018 with:: 25 ::Ganesh; but he (caller) told her that Ganesh was not around.She even informed the caller that she was ready with themoney to be paid to him. The caller, thereafter, told her that hewould inform her after seven days. The call was thendiscontinued.23.It is further in her evidence that since her motherwas not keeping well, she came to Matapur on 09.09.2015.People had gathered at the house of her brother, PW 1 –Sunil. She learnt that a news was flashed in the dailydisclosing Ganesh to have been killed by Parag Pathare, AjayMore and Dhiraj Shinde (appellants).24.She was subjected to a searching cross-examination. She could not tell to whom cellphoneNo.9763899505 belonged. She did not bring her cellphonewith her to the Court. She even claimed ignorance about theperson by name, Ashok Lavande. She then clarified to haveheard a person of the same name. According to her, he, i.e.Ashok Lavande was brother of husband of her sister. He wasno more. She could not tell his cellphone number. Thedefence wanted to suggest that the cellphone numberNo.9763899505 (referred to above), belonged to Ashok Cri.Appeal No.370/2018 with:: 26 ::Lavande. She denied that message was received from saidcellphone on her cellphone on 22 March. It is further in herevidence that she knew Adesh Adhav. She did not know RushiWable, Ajay Tagad and Parmi. She knew Kishor Daund.Adesh and Kishor were good friends of her son Ganesh. She,however, could not tell that there were number of phone callsfrom these friends on the cell phone of Ganesh on 12th March.According to her, only from Tejaswini she learnt that Ganeshdid not collect his tiffin. She denied that behaviour of Ganeshwas not good and therefore, after his 10th standard education,he was kept in hostel. She denied Ganesh was rusticatedfrom the hostel and therefore, was staying with Sunil (P.W.1).25.P.W.8 Punam was cousin of Ganesh (daughter ofmaternal aunt). She would run a medical shop attached to Dr.Unde’s Psychiatric Hospital, at Shrirampur. It is in herevidence that on 12.03.2015, she closed the shop and was onher way home by 06.30 p.m. She was riding Scooty.According to her, near Morge Hospital, she saw Parag alongwith Ganesh and two other boys. Parag had black colourActiva Scooter with him, while those two unknown boys hadred colour motorbike. She even inquired with Ganesh, as to Cri.Appeal No.370/2018 with:: 27 ::what he was doing there. Ganesh told her to have been in theaccompanying Parag for purchasing of cellphone for him(Parag).Her evidence indicates that she had shared the factof having seen Ganesh in the company of those three(appellants), to her parents. It is further in her evidence that onthe next day, Ganesh did not come to Matapur and therefore,his maternal uncle (P.W.1 Sunil) took search for him. Herfather too made search for Ganesh. He (Ganesh) was,however, not found anywhere. According to her, policerecorded her statement on 27.03.2015. She went to TahsilOffice, Shrirampur, for identification parade on 30.10.2015.She identified the appellants – Dhiraj Shinde and Ajay More inthe test identification parade. 26.During her cross-examination, it was brought onrecord that the main gate of Unde Hospital opens towardsEast. There is water canal at one side and IDBI Bank on theother side of the hospital. Said water canal is onto southernside, while IDBI Bank is on northern. There is first turn to theroad after crossing canal, on south side of Unde Hospital. Onthe given day, i.e. 12 March, she proceeded towards southern Cri.Appeal No.370/2018 with:: 28 ::side. There was no other medical shop attached to saidhospital, except her’s. She could not state how many personswere indoor patients in the hospital on the given day. It washer practice to inquire as to number of patients admitted to thehospital and whether they were in need of medicine in thenight hours. No such inquiry did she make on the given day.On her Shop-Act licence, the shop timing is from 10.00 a.m. to08.00 p.m. Dr. Unde would give service round-the-clock at hishospital. She could not describe the clothes on the person ofParag on the given day. Same is the case about other two inthe company of Ganesh. It is further in her evidence that on09.09.2015, a news had flashed in the daily, that Ganesh waskilled by the appellants. She did feel to visit the police stationto see the culprits. She could not tell age group of the personsmade to stand in the row as dummies in the test identificationparade. She further testified that there was Morge Hospitalwhile going towards southern side from Unde Hospital. Shedenied to have deposed falsely since Ganesh was her cousin.Learned A.P.P. submitted that, there is no denial about theevidence of P.W.8 that she closed the medical shop by 6.00p.m. for the day. Cri.Appeal No.370/2018 with:: 29 ::27.P.W.19 Vishal Vathore was Police Inspector,attached to Shrirampur Police Station. He was entrusted withthe investigation of the crime (C.R. No.72 of 2015), registeredpursuant to the FIR (Exh.17) lodged by P.W.1 Sunil. It is in hisevidence that he paid visit to the premises of one TusharParkhe (P.W.18), in one of the rooms of his premises,appellant Parag Pathare would reside on rent. He drew crime-scene panchnama (Exh.19) of the said room since, accordingto him, Ganesh was kidnapped from the very room. P.W.18Tushar Parkhe was the landlord of the said premises. Hisevidence indicates that he had let out one of his rooms toParag Pathare. His friends used to visit the same. Accordingto him, Yuvraj Kale, Mahesh Mane, Abhijit Shete andVruddheshwar were friends of Parag Pathare (appellant). Heinformed police these four names. His police statement issilent to state that relations of Ganesh (deceased) had visitedthe premises to find whether Ganesh was there. Since nothingincriminating was found during the panchnama of the saidroom, we do not propose to refer to the evidence of the panchwitness (PW 2 – Santosh) in that regard. Cri.Appeal No.370/2018 with:: 30 ::Gangapur Police Station :-28.Exh.58 is the FIR lodged by one GaneshJagannath Jamdar, Assistant Police Inspector, GangapurPolice Station. He was not examined as witness. Thedefence, however, admitted the said document in evidence.Whether reading of the FIR in evidence on admission by thedefence, would be a question of law. The defence has,however, admitted further documents in the nature of inquestpanchnama (Exh.60). Same indicates that dead body of aperson in partially burnt condition with injuries on its face wasfound below the bridge of Shivana river. The dead body wasnoticed on 16.03.2015 by evening. Since the darkness haddescended by that time, the inquest was drawn on thefollowing day. Since the dead body was in highly decomposedcondition, the post mortem (p.m.) examination was stated tohave been done on the spot. The post mortem report has notbeen produced in evidence. Considering the nature of thedead body, some samples therefrom were obtained for DNAprofiling. The dead body was buried by the side whereat it wasfound. The dead body burial panchnama was drawn videExh.62. Learned counsel representing the appellants before Cri.Appeal No.370/2018 with:: 31 ::the Trial Court, gave endorsement thereon to the effect “maybe admitted in evidence”. 29.PW 20 – Ashok had been to F.S.L., Kalina, Mumbaion 14.09.2015 and brought the DNA kit. 30.The evidence indicates that the blood samples ofP.W. 7 Minakshi were obtained for DNA profiling. DNA report(Exh.232) was admitted by the defence in evidence. Thereport proves that P.W.7 Minakshi was biological mother of thedeceased Ganesh. As such, although there was somevariance as regards age of the dead body recorded in theinquest on its appearance and the actual age of the deceasedGanesh, the DNA report concluded that it was the dead bodyof Ganesh and none else.31.P.W.24 Sanjaykumar, Police Sub-Inspector, wasthe official attached to the Local Crime Branch (LCB),Ahmednagar. It is in his evidence that the cellphone number7741935404 was under surveillance. He obtained CDR/SDRof the said cellphone to know who was making use thereof. Itis in his evidence that said mobile was registered in the nameof Bhagirathi Thorat (PW 9). Rest of his evidence is hearsay Cri.Appeal No.370/2018 with:: 32 ::and therefore, not adverted to.During his cross-examination, it has been broughton record that the IMEI number of the seized cellphone was –356689056494320/1. He had given report as to what wastranspired during the surveillance made by him. Said report isat Exh.127. According to him, it was a cellphone of Nokiamake. Its IMEI number was 356689056494320/1, whereinSIM Card of number 9730845978 of Airtel Cellular Company,was being used. 32.Pursuant to the surveillance report, theinvestigating officials first reached out to P.W.9 Bhagirathibai.It is in her evidence that Sadhana Mande (P.W.10) wasdaughter of his brother. A SIM card (9730845978) waspurchased in her name. She had given said SIM Card toSadhana Mande for her use. P.W.10 Sadhana testified thatsaid sim-card was given to her by her aunt (PW 9-Bhagirathibai) for her use. According to her, Sagar Pawar(P.W.11) was her friend. She had, therefore, given said sim-card to him. It is in her cross-examination that the mobilephone with SIM Card No.9730784866 was being used by her.She would talk to Sagar Pawar almost everyday. Cri.Appeal No.370/2018 with:: 33 ::33.P.W.11 Sagar Pawar’s evidence indicates that hehad received a sim-card of number 9730845978 from his friendSadhana (PW 10). He was doing Diploma in Engineering(Polytechnic), in the year 2015. It is further in his evidence thatabout 5-6 days prior to the incident, he came to know of oneYadav in the shop of I-con Computer. He was Raju RamjitYadav. He (Sagar) purchased Nokia-Lumia 625 mobilehandset from him for Rs.5,000/-. He identified the handsetshown to him before the Court. According to him, he wasusing said handset for SIM Card No. 9730845978.34.P.W.12 Raju Yadav testified that he had purchasedthe very Nokia - Lumia 625 handset for Rs.3,000/- from oneShubham Lokhande and sold it to Sagar (PW 11) forRs.5,000/-.35.PW 13 – Shubham Lokhande was another witnessin the said chain. It is in his evidence that he would run afootwear shop at Main Road, Shrirampur. He knew Ajay More(appellant). Ajay had given him a mobile handset of Nokiamake. He had purchased it from Ajay for Rs.2,500/- and sold itto Raju (P.W.12) for Rs.3,000/-. According to him, it was in Cri.Appeal No.370/2018 with:: 34 ::working condition.Shubham was subjected to a searching cross-examination. It is in his evidence that he was arrested in thevery crime. He was in police custody for 14-15 days. Therecord indicates that he admitted that he was in jail for not lessthan three months. His arrest was effected after having beeninterrogated him. Prior to his arrest, he was unaware of thecrime. He stated to have had met Ajay More only once relatingto said mobile handset. He, however, denied to have had notbought the cellphone from Ajay.36.It is P.W.14 Sonyabapu, who had carried DNAsamples with DVR machine and adapter cable, seized in thecrime, and delivered to F.S.L., Kalina, Mumbai. He placed onrecord the office-copy of letters (Exh.52 to Exh.54).37.P.W.16 Laxman was a Police Patil of villageDhoregaon, Taluka Gangapur. His evidence is to the effectthat, one dead body was found below the bridge over Shivanariver. In a capacity of Police Patil, he paid visit to the spot.The person lying there was clad in a Jeans pant. Its one legwas burnt. A panchanama was drawn. Cri.Appeal No.370/2018 with:: 35 ::38.P.W.21 Vijaykumar was Police Station Incharge ofGangapur Police Station. It is in his evidence that, pursuant tothe information received, he went to a place under a bridgeover Shivana river. Dead body of a male was found there.The body was partially burnt. A stone was lying in the nearbyof the dead body. The stone had blood stains. There was oneoil can as well. As it was late in the evening and no electricitywas there, he deputed Head Constable Avadhut and twoHome Guards to guard the crime scene. It is further in his evidence that, he went to thecrime scene on the following day with two panchas and drewinquest panchanama (Exh.60). He seized certain articles fromthe crime scene. Since the dead body was in decomposedcondition, the Medical Officer did post mortem examination onthe spot. Since it was a dead body of an unknown person, thesame was buried in the nearby in the presence of twopanchas. He referred to the panchanama (Exh.62) in thatregard. It is further in his evidence that, he sent the articles forDNA profiling through a Police Constable to Forensic ScienceLaboratory, Kalina, Mumbai. It is further in his evidence that,he sent other seized articles to the office of Forensic Science Cri.Appeal No.370/2018 with:: 36 ::Laboratory, Aurangabad for chemical analysis. He referred tohis communications in that regard vide Exhs.80 to 83. It isfurther in his evidence that, he learnt that a missing person’sreport was registered at Shrirampur Police Station. He,therefore, contacted Police Station Officer of Shrirampur PoliceStation. A.P.I. Nitin Pagar (P.W.22) was investigating the saidcase.39.During his cross-examination, it has come onrecord that, there were two Toll Plazas on the way fromShrirampur to the place whereat the dead body was found. Hehas made communication with the Heads of those two TollPlazas for obtaining CCTV footage. According to him, theCCTV footage could not be collected since the same gotdeleted automatically after a period of three months.40.The inquest panchanmama (Exh.60) indicates that,there was a wrist watch on the wrist of the deceased. P.W.22Nitin was the A.P.I. serving with Shrirampur Police Station. It isin his evidence that, appellant Parag Pathare and Ajay Morewere arrested when he took over the investigation on 8/9/2015.He interrogated both of them. They confessed to thecommission of the crime. What has been stated by the Cri.Appeal No.370/2018 with:: 37 ::appellants Parag Pathare and Ajay More to P.W.22 Nitin beinginadmissible in evidence in view of Section 25 of the EvidenceAct, the same is not referred to. His evidence indicates that,these two appellants shown various places whereat they hadtaken the deceased and the manner Ganesh was killed. It isfurther in his evidence that, he found that all the cell phones ofthe appellants were switched off under one mobile tower. He,however, in cross-examination, admitted to have not placed onrecord any evidence in that regard. His evidence alsoindicates that, he did not seize cell phones of the appellants. Itwas he who had sent the two cell phones to Forensic ScienceLaboratory and even obtained CDRs/ SDRs. According to him,IMEI Number of the cell phone of accused as was stated bythe complainant was 911421052576430. The said IMEINumber was of the cell phone of the deceased. It was NokiaLumia mobile. His attention was adverted to Exh.101 (CDR).With reference thereto he testified whether the message wasreceived from Mobile Number 7741935404. According to him,a crime vide C.R. No.48/2014 was registered in GangapurPolice Station for offence punishable under Sections 302 and201 of the Indian Penal Code. Cri.Appeal No.370/2018 with:: 38 ::41.P.W.3 to P.W.5 were the witnesses to the variouspanchanamas. Appellant Ajay More was arrested on25/8/2015. Appellant Parag Pathare and Dhiraj Shinde werearrested on 1/9/2015 and 8/9/2015 respectively. Most of theevidence of these witnesses is inadmissible in evidence, beinghit in view of Section 25 of the Evidence Act.42.P.W.2 Santosh was witness first to a spotpanchanama (Exh.19), dated 26/3/2015. The same hasalready been referred to above. He is then witness to thepanchanama of a seizure of a cell phone from Sagar Pawar.The seizure is vide panchanama Exh.22. In the cross-examination, he admitted that, except panchanama Exhs.19and 20, he did not remember any other thing. The cell phoneseizure panchanama (Exh.20) contain IMEI Number of theseized cell phone as 356689056494321/0. It was Nokia make.Its colour was black. The cell phone contained SIM Card ofthe Number 9730845978. P.W.3 Sandip was a witness to theso called disclosure statement made by appellant Ajay. Thesaid statement was in the nature of a confession to the police.The statement was to the effect indicating in what manner heand the other appellants kidnapped Ganesh, took him to hotel, Cri.Appeal No.370/2018 with:: 39 ::consumed alcohol, then took him to a place under a bridge,again administered him liquor and after having found him to beunconscious, committed his murder. P.W.3 Sandip is thewitness to various panchanamas, such as Exhs.22 to 29.Somewhat relevant evidence in this case would be adisclosure statement by appellant Parag, pursuant to which ared colour motorbike came to be seized under panchanama(Exh.26). The panchanama (Exh.20) pertains to seizure ofCPU, AC/DC Adapter of a CCTV Unit of Hotel Rajyog, underpanchanama (Exh.27). Panchanama (Exh.29) pertains to theidentification of clothes of the deceased by his mother at thePolice Station. While panchanama of seizure of the saidclothes is at Exh.28. Those clothes were produced by policeofficer Shri Sonawane in sealed condition. The seal wasopened and the clothes were shown.43.P.W.4 Ramesh is a witness to the seizure of cellphone (SIM Number 9527425132) of Smt. Minakshi (mother ofthe deceased Ganesh). It was seized under panchanamaExh.35. 44.P.W.5 Subhash was a witness to a statement madeby appellant Parag Pathare that he would show the place Cri.Appeal No.370/2018 with:: 40 ::whereat he had broken and thrown the SIM Card (Exh.39).The statement and pointing out the place and memorandumthereof is at Exhs.37 and 38. The same being inadmissible inevidence, is not referred to in extenso. He is also a witness toa disclosure statement made by appellant Parag Pathare,pursuant to which a black colour Activa (two-wheeler) came tobe seized from a parking slot of one of the Housing Societiesat Sasane Nagar, nearby Pune. A panchanama to that effect isat Exh.38.45.P.W.17 Sachin Mhaske was a Naib Tahsildar-cum-Executive Magistrate, who held the test identification paradeon 3/12/2015. It is in his evidence that, witness Punam (P.W.8)identified appellant Ajay More and Dhiraj Shinde in testidentification parade held by him in jail. According to him, twoseparate test identification parades were held. Services of 6persons were availed as Dummies. The Dummies weredifferent for both the test identification parades. Thememorandum of test identification parade of appellant DhirajShinde, is at Exhs.65 and 67 while that of appellant Ajay Moreis at Exhs.68 and 69. According to him, the police produced 6persons as Dummies. The Dummies were of the same age Cri.Appeal No.370/2018 with:: 41 ::and height of that of the persons to be identified. While thememorandum of test identification parade indicates that thepolice officers were not asked to be present at the place of testidentification parade.46.P.W.23 Sachin Shinde was a Nodal Officer of IdeaCellular Company. He placed on record CDR and SDR for theperiod 12/3/2015 to 7/4/2015 of the cell phone numbers7741935404 and 9527425132. He placed on record the samealong with 65-B Certificate (Exh.110). It is in his evidence that,on 12/3/2015, there was a call from cell phone Number9527425132 on the cell phone Number 7741935404.According to him, there were 5 outgoing calls on 13/3/2015from cell phone Number 9527425132. Those calls were madeto cell phone Number 7741935404. He testified that, on12/3/2015, there is call from Mobile No.9527425132 to7741935404 so also five outgoing calls on 13/3/2015 fromMobile No.9527425132 to 7741935404. On 18/3/2015, thereis one SMS from said Mobile to 7741935404 and one incomingcall on 22/3/2015 from Mobile No.7741935404 to9527425132. Further, three SMS were received on the samemobile. Further, on 26/3/2015, message was received on Cri.Appeal No.370/2018 with:: 42 ::Mobile No.7741935404 from Mobile Number 9527425132.Further, on 29/3/2015, total eight messages have beenreceived on Mobile Number 9527425132 from MobileNo.7741935404 whereas three incoming calls were receivedon 6/4/2015 on Mobile Number 9527425132 from MobileNo.7741935404.During his cross-examination, he testified that, SIMCard of Number 7741935404 was issued in the name of oneAshok Shinde. As per record, he was resident of Bhalgaon,Taluka Vaijapur, District Aurangabad. He had applied forobtaining SIM Card on 25/5/2013. He tendered in evidenceapplication submitted by person named Ashok Shinde alongwith document in proof of his identity. Those were at Exhs.114and 114-A. According to him, cell phone Number 9527425132also stood in the name of some other person and not Minakshi.According to him, IMEI Number of cell phone Number7741935404 was 911421052576430. According to him, duringthe period from 12/3/2015 to 7/4/2015, cell phones of twodifferent IMEI Numbers were used for making calls from cellphone Number 7741935404. The other IMEI Number was356689056494620. He was shown the cell phone of Nokia Cri.Appeal No.370/2018 with:: 43 ::Make. Its model number was 625. Its IMEI Number was356689056494321. The cell phone was of black colour.According to him, all the three IMEI Numbers were different. Itis further in his evidence that, there were calls between cellphone numbers 9527425132 and 9763899505 vide Exh.112.He could not state the tower location of those phone numberswhen the calls between these two cell phone numbers tookplace. 47.P.W.25 Shivaji Palde was the Police Officerattached to Shrirampur City Police Station during relevant time.It was he who filed report under Section 169 of the Cr.P.C.against then accused – Shubham Lokhande (P.W.13).48.P.W.26 Arjun Gaikwad was a Scientific Officerserving with Regional Forensic Science Laboratory, Kalina,Mumbai. The report (Exh.101) was prepared by him.According to him, it was pertaining to IMEI Number356689056494321. He too tendered in evidence Section 65-BCertificate. It is in his evidence that, in Mobile phone onContact No.9763899505 one message was sent on 23/3/2015at 14:04:12 o’clock. The said message was, “Rohan, Vishal,Ganesh, Pratesh, Charo hamare pass hai. Agar aapko aapke Cri.Appeal No.370/2018 with:: 44 ::ladke ki khairiyat chahte ho to ek crore ready rakho 25 Marchtak. Aap ko wapas se ek call aayega. Police complaint bilkulnahi, koi hoshiyari nahi warna un charo ki lash aapko milegiaur wah sab Allah ko pyare ho jayege. Hamari najar aap parrahegi ye 4 din. Gud luck”. It is further in his evidence that, ifthe said CD is played on then messages, contacts and calllogs will be seen.49.It is further in his evidence that, from the server ofthe DVD, nothing could be retrieved like CCTV footage etc.According to him, in his report (Exh.101), there is no mentionof Mobile Number 7741935404. He was candid enough tostate that, his report is silent regarding what procedure headopted for giving his opinion and finding the SMS sent fromone cell phone to the other. 50.The aforestated is the entire evidence in the case.Before turning to the appreciation of the aforesaid evidence, itneeds no mention that, the case is based on circumstantialevidence and mainly on the last seen theory and cell phonerecord. 51.In case of in case of Sharad Birdichand Sarda Vs.