Criminal Appeal No. 480 of 2020 · Bombaybench High Court
Case Details
2025:BHC-AUG:717-DB Cri Appeal Nos.480.2020 and 482.2020.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.480 OF 2020 Datta Subhash Lohar,Age : 33 years, Occ. Agri.,r/o. Wagholi, Tq. and Dist. Osmanabad..Appellant Vs.The State of Maharashtra,Through Police Station Officer, Rural Osmanabad Police Station,Tq. and Dist. Osmanabad..RespondentsWITHCRIMINAL APPEAL NO.482 OF 20201.Prakash Suryakant Chapekar,Age : 40 years, Occ. Private Service,r/o. 36, Mauli Niwas, Porwal Park,Alandi Road, Yerwada, Pune2.Pratibha Prakash Chapekar,Age : 32 years, Occ. Housewife,r/o. 36, Mauli Niwas, Porwal Park,Alandi Road, Yerwada, PuneVs.The State of Maharashtra,Through Police Station Officer, Rural Osmanabad Police Station,Tq. and Dist. Osmanabad..Respondents----Mr.Sopan G. Bobde with Mr.Dhammadeep Paikrao, Advocates forappellant in Criminal Appeal No.480 of 2020Ms.Poonam V. Bodke-Patil, Advocate for appellant in Criminal AppealNo.482 of 2020Mr.S.D.Ghayal, Addl. Public Prosecutor for respondent - State---- 2Cri Appeal Nos.480.2020 and 482.2020 CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. RESERVED ON : DECEMBER 12, 2024 PRONOUNCED ON: JANUARY 06, 2025JUDGMENT (Per R.G. Avachat, J.) :-Both these appeals are taken up together for decision,since the challenge therein is to one and the same judgment ofconviction and order of consequential sentence passed by the Courtof Addl. Sessions Judge, Osmanabad (trial court), on 14.08.2020 inSessions Case No.89 of 2016. The relevant part of the impugnedorder reads thus :-1.Accused No.1 - Prakash SuryakantChapekar, resident of Pune is convicted forthe offence punishable under Section 302read with Section 120(B) of the Indian PenalCode vide Section 235(2) of the Code ofCriminal Procedure and sentenced to undergorigorous imprisonment for life and to pay fineof Rs.5,000/- (Rs.Five Thousands only), indefault, he shall undergo rigorousimprisonment for one year.2.Accused no.1 Prakash SuryakantChapekar, resident of Pune is convicted for theoffence punishable under Section 201 of the 3Cri Appeal Nos.480.2020 and 482.2020Indian Penal Code vide Section 235(2) of thecode of Criminal Procedure and sentenced toundergo rigorous imprisonment for five yearsand to pay fine of Rs.1,000/- (Rs.OneThousand only) in default he shall undergorigorous imprisonment for Three months.3.Accused no.2 Datta Subhash Lohar,resident of Wagholi, Taluka and DistrictOsmanabad is convicted for the offencepunishable under Section 302 read withSection 120(B) of the Indian Penal Code videSection 235(2) of the Code of CriminalProcedure and sentenced to undergo rigorousimprisonment for life and to pay fine ofRs.5,000/- (Rs.Five Thousands only), indefault he shall undergo rigorousimprisonment for one year.4.Accused No.3 Pratibha PrakashChapekar, resident of Pune is convicted for theoffence punishable under Section 302 readwith Section 120(B) of the Indian Penal Codevide Section 235(2) of the Code of CriminalProcedure and sentenced to undergo rigorousimprisonment for life and to pay fine of 4Cri Appeal Nos.480.2020 and 482.2020Rs.1,000/- (Rs. One Thousand only), indefault she shall undergo rigorousimprisonment for three months.5.The substantive sentence shall runconcurrently vide Section 31 of the Code ofCriminal Procedure.………………………………” 2.Criminal Appeal No.480 of 2020 has been preferred byoriginal accused no.2 - Datta Subhash Lohar, while Criminal AppealNo.482 of 2020 has been preferred by original accused nos.1 and 3,Prakash Suryakant Chapekar and Pratibha Prakash Chapekar,husband and wife inter se. The appellant - Datta is brother ofappellant – Pratibha (brother-in-law of appellant – Prakash).3.The facts, in brief, giving rise to the present appeal areas follows:-The appellant Prakash, initially, was serving with “BlueDart company”, at Pune. The deceased - Kanchan Popatlal Pardeshiwould also serve with the same company. The appellant Prakashwas her boss. On account of nature of business of the company,
Facts
5Cri Appeal Nos.480.2020 and 482.2020both were required to travel together. The acquaintance betweenthe two developed into emotional relationship. Efforts made by theparents of Kanchan to ensure disassociation between the two failed.It is also the case of prosecution that the appellant Prakash left thejob with Blue Dart company and joined Great Wall Corporate ServicesPvt. Ltd., at Nagpur. He, thereafter, shifted to Nagpur. Kanchan tooleft the job with Blue Dart. The appellant Prakash, initially, stayedalone at Nagpur and then, took a flat on rent for residence. Kanchanjoined him. Both of them started residing together as husband andwife. The appellant Pratibha along with her children happened tovisit Nagpur. The friends of the appellant Prakash then realised thatKanchan was not the legally wedded wife of the appellant Prakash.To get rid of relationship with Kanchan, the appellant Prakash withthe assistance of his brother-in-law – Datta and wife (Pratibha) aswell, brought her down to village Wagholi, Dist. Osmanabad. BothPrakash and Datta committed her murder. Her dead body wasbundled in a gunny bag and thrown into a public well at villageWagholi, on the intervening night of 20.12.2015 and 21.12.2015.The appellant – Prakash then returned to Nagpur and resumed hispursuits. Based on finding of the dead body of a lady in the well, onwhose person there were multiple injuries, a villager, namely Ashok(PW 1) lodged the FIR (Exh.55). Necessarily, the FIR was lodged 6Cri Appeal Nos.480.2020 and 482.2020against unknown person. Based on the FIR (Exh.55), a crime, videC.R. No.175 of 2015, was registered for the offences punishableunder Sections 302 and 201 of Indian Penal Code. The crime scenepanchnama (Exhs.119 and 120) was drawn. Inquest and autopsywere conducted on the mortal remains of the deceased.Photographs of the dead body were snapped. The clothes on theperson of the deceased were taken charge of. Her blood sampleswere also obtained and sent for DNA analysis. The investigation ofthe crime was entrusted with the Assistant Superintendent of Police-cum-SDPO. During investigation, the appellants were zeroed in on.Statements of the persons acquainted with the facts andcircumstances of the case were recorded. The Investigating Officermade communications with the cellular companies and Flipkart, ane-commerce company, and obtained necessary information. Uponcompletion of the investigation, charge sheet was filed against theappellants.4.The trial Court framed Charge (Exh.31). The appellantspleaded not guilty. Their defence was of false implication. To bringhome the charge, the prosecution examined thirty three witnessesand produced in evidence certain documents. On appreciation of theevidence in the case, the trial court convicted the appellants and 7Cri Appeal Nos.480.2020 and 482.2020consequently, sentenced to the terms of imprisonment, as statedabove.5.Heard learned counsel for the parties. 6.Learned counsel for the appellants did not dispute therelationship interse the appellants. Besides oral submissions, theyhave put on record the notes of their arguments. According to them,the evidence of the parents and uncle of deceased Kanchan, suggestthat she had consumed poison and was therefore, admitted to SuryaHospital, at Pune, in the year 2014. These witnesses admitted thepolice to have recorded Kanchan’s statement in relation to thatincident. Those statements have been suppressed from the Court(not made part of the charge sheet). An adverse inference,therefore, was urged to be drawn. The Investigating Officer – RajTilak Roushan (PW 33) collected the medical papers from SuryaHospital, Pune. He also collected some other documents fromFlipkart and Great Wall Company. No witness was examined in proofof those documents. Those papers remained to be the police papersin the charge sheet. The trial court erred in relying on thosedocuments since the documents did not partake the character of theevidence for want of proof thereof. Deceased Kanchan had left the
Legal Reasoning
19Cri Appeal Nos.480.2020 and 482.2020no.108, Aradhana Hotel, Alandi. Kanchan was crying. He made aphone call to his wife to establish telephonic conversation betweenKanchan and her mother. Kanchan told that she would meet herafter three months. Since Popatlal’s brother - Sohanlal was with him,he went down to see him off. When he returned back to the hotel,Kanchan was not there. He, therefore, immediately called the police.His evidence further discloses that on 12.12.2015, he receivedKanchan’s phone call, expressing desire to talk to her mother. She,accordingly, spoke with her mother on the following day. Theythought Kanchan might be with appellant Prakash and was underpressure. His evidence further disclosed that on 14.06.2016, policeofficial of Osmanabad Police Station came to him with thephotographs of Kanchan and informed about her murder. Heidentified Kanchan from the photographs.18.PW 18 – Popatlal was subjected to searching cross-examination. He admitted that Kanchan did not make any allegationagainst appellant Prakash. He was confronted with his policestatement, which is silent to state therein that appellant Prakash washer boss. In our view, this is not a material omission. According tohim, Kanchan resided separately for six months in a flat at Dhanoriand Sathe Vasti. He did not lodge any report against appellant 20Cri Appeal Nos.480.2020 and 482.2020Prakash in relation to his relationship with his daughter. He gavename of one Sandip Kaushal with whom he had proposed Kanchan’smarriage.19.The evidence of PW 19 – Sohanlal, brother of PW 18 –Popatlal, is very much consistent with the evidence Popatlal (PW 18).He testified to have had accompanied his brother Popatlal to SuryaHospital, Pune, to meet Kanchan there. Appellant - Prakash waspresent in the hospital. He advised Kanchan to disassociate herselffrom appellant Prakash. He further testified to have accompaniedhis brother Popatlal to Room No.108 of Aradhana Hotel, Alandi, tomeet Kanchan. He found that she was frightened. Then, evidence ofPW 21 – Sushila, mother of Kanchan, is also on the lines of theevidence of her husband (Popatlal) and brother-in-law (Sohanlal). The evidence of these three witnesses go a longway to indicate that both appellant Prakash and Kanchanwere serving with Blue Dart company, at Pune. Both of themwere emotionally involved. Kanchan was reluctant to marrysomeone else. She was even reluctant to disassociate herselffrom appellant Prakash. 21Cri Appeal Nos.480.2020 and 482.202020.There is ample and voluminous evidence on recordindicating appellant Prakash had left the job with Blue Dart company.He, then, secured a job with Great Wall Corporate Services, Nagpur.PW 9 – Bramhdev, testified that he was serving as Site Supervisorwith HBK Infrastructure, Nagpur. He was Caretaker of `HerbalCreation’ building. Appellant Prakash was residing in flat No.403along with one lady in that building. The flat was owned by SeemaSahastrabuddhe (PW 12). Both of them were residing therein for 6-7months. Appellant Prakash left the flat in 2016. During cross-examination, it has been brought on record that appellant Prakashtold him (PW 9) that “madam was not keeping well” and therefore,she was not with him.21.PW 10 – Harshita testified that she was H.R. Executive inGreat Wall Corporate Services Pvt. Ltd. in 2016. It was the appellantPrakash, who had interviewed her for the job. Appellant Prakashwas residing in the guest house of the company.22.The material witness is PW 11 – Ninad. He testified thathe was Executive Officer with Great Wall Corporate Services.Appellant Prakash was Branch Manager. The company had givenmobile phones to all the employees. For residence, company had 22Cri Appeal Nos.480.2020 and 482.2020assigned flat (guest house). One mobile phone was given toappellant Prakash. The flat given to Prakash was situated in SiddhiApartment, Lok Seva Nagar, Nagpur. He (PW 11) and Prakash wereresiding in the said guest house (flat). PW 11 – Ninad went on totestify that in August, 2015, Prakash took one flat on rent in Issasaniarea. Prakash told him that his wife was coming to reside with him.When he visited the flat of Prakash, he introduced his wife by name,Kanchan. The evidence of this witness further disclosed that in themeantime, one lady along with children came to the guest house.From them, he learnt that Kanchan was not Prakash’s wife but theywere living together. He further went on to state that fromDecember, 2015 onward, Prakash again started residing in the guesthouse. He left the flat taken on rent. On inquiry, he told thatKanchan left for her village and he, therefore, vacated the flat.During cross-examination, PW 11 – Ninad admitted that Prakash didnot tell him that he was taking the flat since his wife was coming tostay with him. In the cross-examination, it has been brought onrecord that PW 11 – Ninad was on talking terms with Kanchanmadam (deceased).23.PW 12 – Adv. Seema Sahastrabuddhe was the owner ofFlat No.403 in `Harbals Creation’ building. She testified that she 23Cri Appeal Nos.480.2020 and 482.2020rented out the flat to appellant Prakash, wherein he was residingalong with one Kanchan. Both of them would come to her to makepayment of rent. In the cross-examination, she admitted that nolease agreement was executed between her and appellant Prakash.24.The evidence of the aforesaid witnesses makes outa case that appellant Prakash secured a job with Great WallCorporate Services, Nagpur. Initially, he stayed in thecompany’s guest house. He then secured a flat on rent onthe ground that his family would be joining to reside withhim. He, thereafter, started residing with a lady (Kanchan).In the meanwhile, the wife of appellant Prakash along withtheir children visited the guest house. These witnesses thenrealised that the lady by name, Kanchan, residing with theappellant Prakash was not his real wife. It is true that nophotograph of Kanchan was shown to any of them to identifythat deceased Kanchan was the lady who was residing withappellant Prakash at Nagpur.25.The term “proved”, appearing in Section 3 of theEvidence Act, speaks that, “a fact is said to be proved when, afterconsidering the matters before it, the Court either believes it to 24Cri Appeal Nos.480.2020 and 482.2020exist, or considers its existence so probable that a prudent manought, under the circumstances of the particular case, to act uponthe supposition that it exists”.26So far, we have come across the evidence indicating thatKanchan was daughter of PW 18 – Popatlal and PW 21 – Sushila. Shewas deeply involved with appellant Prakash, emotionally. Both ofthem had served in Blue Dart company at Pune. When Kanchan wasadmitted in Surya hospital at Pune, appellant Prakash was at herbedside. After some days, both of them left the job. AppellantPrakash secured job at Nagpur. After a brief stay in the company’sguest house, he secured a flat on rent and started residing with alady by name, Kanchan, at Nagpur. Kanchan, daughter of PW 18 –Popatlal and PW 21 – Sushila was alive until 20.12.2015. From allthese facts, we have no hesitation to reach to the conclusion that thelady residing with appellant Prakash at Nagpur, was none other thanKanchan (deceased). The evidence also indicates that after thedeath of Kanchan, the appellant Prakash returned Nagpur alone. Hequit the rented flat and again started residing in the company’sguest house. He informed his colleague (PW 11 - Ninad) thatKanchan had gone to her village (made a false statement). Theaforesaid evidence also indicates that the company/employer of theappellant Prakash had provided him with a cellphone. 25Cri Appeal Nos.480.2020 and 482.202027.PW 33 – Raj Tilak Roushan did investigation of the crime.It is in his evidence that the Kurti on the person of the deceasedKanchan had a tag “Jaipur Kurti.com” (we have verified this fact). Hefound that similar Kurti was available on the e-commerce websiteslike, Flipkart, Amazon, etc. He exercised powers under Section 91 ofthe Code of Criminal Procedure and issued notices online through e-mail, requesting those websites to provide the telephonic details ofthe persons who had purchased such type of Kurtis during the period01.01.2015 to the date of finding of the dead body of Kanchan, i.e.20.12.2015. There were approximately, 18000 persons, who hadpurchased such type of Kurtis on Flipkart and 7 persons who hadpurchased the same from Amazon. He compared the tower dumpdata with the data received from Flipkart. One phone number camecommon. It was `7722093380’. The SDR record indicates that it wasin the name of one Amol Sonwane, who was working with Great WallCorporate Services. PW 33 – Raj Tilak placed on record thedocuments (Exhs.244, 245, 246 and 248) in the nature of his e-mailletters sent to Flipkart and the replies thereto. He also receivedcertificate under Section 65(b) of the Evidence Act from Flipkart. Thesame was also marked as Exh.247. The witness placed on record theletters received from the employer of appellant Prakash (Exhs.249and 250). The best evidence in proof of documents is examination 26Cri Appeal Nos.480.2020 and 482.2020of author thereof. There are ways and means to prove a document.Those are:-(i)By calling a person who signed or wrote a document.(ii)By calling a person in whose presence the document was signed or written.(iii)By calling a handwriting expert.(iv)By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written.(v)By comparing in Court the disputed document or writing with some admitted document or writing.(vi)By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it.(vii)By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person. 27Cri Appeal Nos.480.2020 and 482.2020(viii)A document is proved to have been made if it is shown to have been made at the request of a person by some other person, e.g., by the scribe who signed on behalf of the executant.(ix)By other circumstantial evidence, AIR 1957 Manipur 9(12)**AIR 1981 Madh Pra 69(72): 1981 MPLJ 192 (DB)28.In our view, one of the modes of proving of thedocument, would be tendering in evidence such document by theperson who has received it in response to his official course ofbusiness. Section 114 of the Evidence Act reds thus:-“114. Court may presume existence ofcertain facts.- The Court may presume theexistence of any fact which it thinks likelyto have happened, regard being had tothe common course of natural events,human conduct and public and privatebusiness, in their relation to the facts ofthe particular case.The Court may presume -(e) that the judicial and official acts have been regularly performed. (f) that the common course of business has been followed in particular cases; 28Cri Appeal Nos.480.2020 and 482.202029.As such, in response to the communications made by theInvestigating Officer, the office copies whereof are on record andadmitted in evidence, the employer of appellant Prakash informedthat the aforesaid cellphone was being used by the appellantPrakash; and Flipkart informed that the said Kurti was ordered by aperson holding the said cellphone and it was delivered on his addressat Nagpur. Then, we have evidence of the Nodal Officer of VodafoneIdea Ltd. (PW 30 – Dattaram). In response to the requisition givenby the police authorities, he produced on record the CDR, SDR andthe tower locations of three cellphones numbers namely,7722093380, 7743898148 and 8975671499. He supplied the saidinformation along with the certificate under Section 65(b) ofEvidence Act (Exh.230), indicating that the cellphone no.7743898148 was in the name of appellant – Pratibha, wife ofappellant – Prakash. The cellphone no. 8975671499 was in the nameof Subhash Lohar (father of appellant - Datta). All the threecellphone numbers were in contact with each other for long. We donot propose to give details thereof since, considering their interseclose relations, they are bound to be in contact with each other oncellphones. The material piece of evidence is the tower location ofcellphone no.7722093380. Same indicates that on the fateful day, ittravelled from Nagpur upto village Hadgaon and returned back to 29Cri Appeal Nos.480.2020 and 482.2020Nagpur on the following day, i.e. 20.12.2015. During the materialtime, said cellphone had neither received any incoming call nor anycall was made therefrom. Same suggests that appellant Prakash isintelligent. He must have kept the cellphone switched off. He didnot offer any explanation as to why did he had been to villageHadgaon, wherefrom village Wagholi, the place of his brother-in-law(appellant Datta) was at a short distance, compared to Nagpur. Onhis way back to Nagpur on 21.12.2015, the appellant Prakash had tobeen to Sadik Motors Pvt. Ltd. with his Vento car bearing registrationNo.MH-12-JZ-4720, for repairing. The motor mechanic (PW 20)testified to have inspected the vehicle. He noticed some bloodstains on the front left side door and seat of the car. The appellantPrakash told him that while coming to Nagpur, dacoits committedattack with stones. The head of his wife dashed against thedashboard. She, thereby, received injuries. Since the expenditure ofthe repairs of the car were amounting to Rs.40,000/- plus, theappellant Prakash took away the car. A bill was issued of Zeroamount. The appellant then sold the said car to Jafar (PW 15). 30.Necessarily, the statements of the witnesses have beenrecorded late after the incident, since, by that time, identity andinvolvement of the appellant had not been surfaced. The appellant 30Cri Appeal Nos.480.2020 and 482.2020Prakash was arrested on 15.06.2016; appellant Datta was arrestedon 16.06.2016; and appellant Pratibha was arrested on 29.06.2016.The trial court mostly relied on inadmissible piece of evidencenamely, the disclosure statement made by the appellant – Datta,disclosing the manner in which the crime was committed and thedead body was thrown into the well.31.PW 3 – Ramesh is witness to the disclosure statements(Exhs.102 and 103). The appellant – Prakash too made disclosurestatement pointing out the place in Nagpur, whereat, he destroyedthe articles of deceased Kanchan. No object was recovered pursuantto any of these disclosure statements. Both the statements,therefore, would be irrelevant and not inadmissible in terms ofSection 27 of the Evidence Act, except for making out the case aboutthe conduct of the appellants. A photographer had accompanied onall the occasions. He too testified accordingly. Then, there isevidence of the carrier/police officials, who carried the seized articlesto F.S.L., Aurangabad and Kalina as well. Their evidence was notreferred to.32.From the aforesaid evidence, what can be said to havebeen made out is that:- 31Cri Appeal Nos.480.2020 and 482.2020(i)Deceased Kanchan was daughter of Popatlal (PW 18);(ii)She and appellant Prakash, initially, were employed withBlue Dart Company;(iii)Their job profile required them to travel together atvarious places;(iv)The acquaintance between the two developed intoemotional relationship;(v)Kanchan had, once, consumed poison. She was admittedto Surya Hospital, at Pune.(vi)Appellant Prakash was by her bed side;(vii)The parents of Kanchan made great efforts to ensurebreak up between the two, but in vain. They had settledmarriage of Kanchan with a boy from Dewas;(viii)The appellant played a spoilsport. Kanchan too refusedto marry anyone else. Same indicates bonding betweenthe appellant Prakash and Kanchan);(ix)After some days, both of them left the job with Blue Dartcompany;(x)The appellant Prakash secured a job at Nagpur. Hestayed in the company’s guest house for some days andthen, took a flat on rent to stay with his family; 32Cri Appeal Nos.480.2020 and 482.2020(xi)He then started residing in the said flat with a lady byname, Kanchan. In our view, said lady must have beenKanchan (deceased) and none else;(xii)The appellant Prakash’s employer had provided with hima cellphone no.7722093380. Said cellphone travelledfrom Nagpur to village Hadgaon, meaning thereby,appellant Prakash came down to Hadgaon. Then, heswitched off the cellphone.(xiii)He started backward journey on 20.12.2015 (CDR recordindicates that tower location;(xiv)PW 1 – Arun noticed the dead body of a lady in the publicwell at village Wagholi, Dist. Osmanabad;(xv)Appellant Prakash gave false explanation to the motormechanic and even to his colleague (same is statedabove);33.In view of illustration (d) to Section 114 of the EvidenceAct, it has to be presumed that a thing or state of things which hasbeen shown to be in existence within a period shorter than thatwithin which such things or state of things usually cease to exist, isstill in existence.
Arguments
8Cri Appeal Nos.480.2020 and 482.2020house in search for job. She did not return. A missing person’sreport was, therefore, lodged by her father. Kanchan had carriedwith her a credit card, purse, cellphone, etc. No investigation wasmade in that regard. When she was said to have been at HotelAradhana, allegedly in the company of appellant Prakash, no witnesshas deposed in that regard nor any document relating to check-inthe hotel has been proved. On the question of Prakash and Kanchanallegedly staying together at Nagpur is concerned, according tolearned counsel, none of the witnesses examined from Nagpur,identified that the lady who was staying with the appellant – Prakash,was deceased Kanchan and none else. No photograph of Kanchanwas shown to any of the witnesses. There is no shred of evidence toindicate that the appellant Prakash and Kanchan were seen lasttogether.7.On the question of appellant Prakash travelling fromNagpur to Wagholi village is concerned, learned counsel wouldsubmit the prosecution to have failed to prove that Kanchan was inthe company of appellant Prakash. The CDRs and SDRs of thecellphone of the appellant Prakash would, therefore, be of littleconsequence. According to learned counsel, there was missing linkin the chain of circumstances sought to be relied on. She would 9Cri Appeal Nos.480.2020 and 482.2020further submit that the C.A. reports of the articles seized andanalysed do not further the prosecution case. `Jaipur Kurti’ was notsuch an article, which could be found only on the person of thedeceased. On the question of the CDR of the appellants areconcerned, learned counsel would submit that there was no evidencethat the appellant Prakash was making use of the cellphoneno.7722093380. The sim-card of the said number was issued in thename of one Amol Sonwane. He has not been examined. Accordingto the prosecution, the case was cracked on the basis of the materialreceived from Flipkart. However, the evidence would indicate thatthe appellant Prakash was arrested a few days before suchinformation was received. Learned counsel would further submitthat the disclosure statement made by appellant – Datta would beirrelevant and inadmissible, since nothing was seized pursuantthereto. So far as regards the CDRs are concerned, the allegedcellphone no. 7722093380 indicate that it was at a petrol pump atAusa, Dist. Latur, by 06.55 am. on 20.12.2015, while it was at villageHadgaon, Dist. Nanded, by 05.55 pm. on 19.12.2015. The distancebetween Hadgaon and Wagholi was not less than 300 kms. Therewas no call on the cellphone number 7722093380 during theintervening night of the fateful day. The missing person’s report wascirculated amongst all the police stations in the State of Maharashtra 10Cri Appeal Nos.480.2020 and 482.2020along with the photographs of the deceased. She would furthersubmit that the Medical Officer, who conducted the autopsy, did notgive the actual time of death of the deceased. Learned counsel forthe appellants in the written submissions relied on the followingauthorities:- 1. Nandu Singh vs. State of Madhya Pradesh,2022 LiveLaw (SC) 229 :- The Hon'bleSupreme Court held that, the absence ofmotive in a case of circumstantial evidenceweighs in favour of the accused. Motive notrelevant in a case of Direct Evidence.2. Randeep Singh Rana and another vs. Stateof Haryana and others:- The Hon'ble SupremeCourt of India, in Criminal Appeal No. 297 of2024, Randeep Singh Rana and another vs.State of Haryana and others, held that, there iscomplete prohibition on an attempt to proveinadmissible part of confession through thewitness. If such inadmissible confession aremade part of the depositions of theprosecution witnesses, then there is everypossibility that the Trial Courts may getinfluence by it. In the present case, at every 11Cri Appeal Nos.480.2020 and 482.2020point, the prosecution has tried to takeinadmissible part of confession statement inthe testimony of PW 3, IO- POW 33, PW, whichhas influence the Ld. Trial Court and resultedinto unfair trial3. Allarakha Habib Memon Etc. Vs. State ofGujrat, AIR 2024 SC 4201, Criminal Appeal2828-2829 of 2023:- In this judgment theHon'ble Supreme Court of India, has onceagain reiterated the law under section 27 of theEvidence Act. The Hon'ble Court at paragraphno. 41 has come to the conclusion that, thecircumstance regarding identification of placeof incident at the instance of the accused is alsoinadmissible because the crime scene wasalready known to the police, no new fact wasdiscovered in pursuance of the disclosurestatement.4. Bobby vs. State of Kerla, Criminal Appeal No.1439 of 2009:- The Hon'ble Apex Court, hasheld that the provisions of sec. 27 are based onthe view that if a fact is actually discoveredinconsequence of information given, someguarantee is afforded thereby that the 12Cri Appeal Nos.480.2020 and 482.2020information was true and consequently the saidinformation can safely be allowed to be given inevidence.Learned counsel would, ultimately, urge for allowing the appeals.8.Learned APP would, on the other hand, submit that theevidence of the parents and the uncle of deceased Kanchan wouldindicate emotional relationship between appellant Prakash andKanchan. Their efforts to disassociate them from each other failed.Kanchan’s marriage was proposed to be settled with a boy fromDewas. The appellant Prakash played a spoilsport. Kanchan toorefused to marry the boy. Identity of the deceased was establishedon the basis of the photographs and the DNA report. The deceasedwas sporting `Jaipur Kurti’ when she was met with death. TheInvestigating Officer collected the information to find that `JaipurKurti’ was bought online and delivered on the address of theappellant Prakash, at Nagpur. Learned APP then relied on the CDRsand SDRs of the cellphones of the appellants. According to him, therewere many calls between the three cellphones during the relevantdays. One call was at an odd hour, i.e. by little before 04.00 a.m, onthe fateful night. It was unusual circumstance indicating that all the 13Cri Appeal Nos.480.2020 and 482.2020three appellants formed a league. The conspiracy, thus, getsproved. The appellants did not offer any explanation to theincriminating evidence adduced by the prosecution. Appellant –Prakash simply denied the same. Learned APP would further submitthat on the way back to Nagpur, the appellant – Prakash took hisVento car to a servicing centre; but considering the expenditurerequired, he did not get it repaired or serviced. When theincriminating circumstances were noticed in the car, his answers tothe witness from the servicing centre were inconsistent with hisinnocence. According to learned APP, it is for the appellant toexplain what has happened with the deceased Kanchan when shewas all along staying with him as his life partner. Learned APP reliedon the CDRs and the tower locations, indicating the appellantPrakash to have travelled from Nagpur to the crime-scene andreturned back immediately after doing away with the deceasedKanchan. Learned APP, therefore, urged for dismissal of the appeals.9.Considered the submissions advanced. Perused thejudgment impugned herein. Let us advert to the evidence on recordand appreciate the same.10.Before taking up the said exercise, it needs to bementioned that the case is based on circumstantial evidence. It, 14Cri Appeal Nos.480.2020 and 482.2020therefore, merits reference to the judgment of the Apex Court in thecase of Sharad Birdhichand Sarda Vs. State of Maharashtra,(1984) 4 SCC 116, wherein, it is observed as under :-“153. A close analysis of this decision wouldshow that the following conditions must befulfilled before a case against an accused canbe said to be fully established: (1) The circumstances from which theconclusion of guilt is to be drawn should befully established.(2) The facts so established should beconsistent only with the hypothesis of theguilt of the accused, that is to say, theyshould not be explainable on any otherhypothesis except that the accused is guilty,(3) The circumstances should be of aconclusive nature 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 reasonableground for the conclusion consistent with theinnocence of the accused and must show thatin all human probability the act must havebeen done by the accused.” 15Cri Appeal Nos.480.2020 and 482.202011.In the case in hand, following circumstances areproposed to be relied on to bring home the Charge:-(i)Homicidal death of Kanchan;(ii)Intimate relationship between appellant - Prakash and deceased Kanchan;(iii)Both of them stayed together as husband and wife for long, at Nagpur;(iv)Unusual disappearance of Kanchan and finding of her death body in a public well;(v)Non-explanation of any of the incriminating circumstances appearing against the appellant – Prakash in the evidence.12.The FIR (Exh.55) was lodged by PW 1 – Arun against anunknown person on 21.12.2015 by 01.00 p.m. He testified that theland gut no.108, situated at village Wagholi, Tq. and Dist.Osmanabad, belonged to him. By 07.00 in the morning of21.12.2015, he went to his field. He then visited the public well tosee the water level. Surprisingly, he noticed one gunny bag in thewell. He suspected something amiss. He, therefore, shared the saidfact with the villagers. Two-three persons from them removed the 16Cri Appeal Nos.480.2020 and 482.2020gunny bag from the well. The bag contained the dead body of a ladyin the age group of 20-22 years. He, therefore, lodged the FIR withthe Rural Police Station.13.PW 2 – Kakasaheb is a witness to the spot panchnama(Exh.62). His evidence indicates that it was a public well at villageWagholi. The dead body of a girl put in the gunny bag was thrown inthe well. The panchnama indicates marks of tyres of a four-wheelerat the crime-scene. The articles like, nylon rope, stones, Odhani(Dupatta) were seized under the panchnama (Exh.131).14.Exh.73 is the post mortem report. PW 22 – Dr. Ashwinihad conduced autopsy on the mortal remains of the girl. Shetestified that it was the dead body of a girl in the age group of 22years. According to PW 22 – Dr. Ashwini, the girl died of“hemorrhagic shock due to cut throat injury”. Following injurieswere noticed on the person of the dead body:-Surface wounds and injuries-a)Incised wound just below chin over neck of size 7 x 2 x 9 cm. encircling V shaped all the great vessels of both sides are completely cut through, with completely transaction of trachea with intact esophagus at thyroid level. 17Cri Appeal Nos.480.2020 and 482.2020b) Stab wound over left hypochondrium region on lateral side of size 5 x 3 x 8 cm., oval shaped.c) Stab wound over upper left sided back, 3 x 2 x 6.5 cm.d)Multiple linear abrasions over left wrist.e) Subcutaneous hemorrhage of size 7 x 5 x 0.5 cm. Overgastric region.f) Bite mark of aquatics over left eyebrow, post mortem in nature, margins irregular of size 2 x 1 x 0.2 cm.15.The aforesaid facts go a long way to prove that the girl,whose dead body was found in the well, was done to death. Thequestion is, whether the appellants are the authors of her murder.16.PW 18 – Popatlal is the father of the deceased Kanchan.The deceased girl was his daughter, has been proved by the DNAreport (Exh.97) (not challenged before us). He testified that hisdaughter – Kanchan did M.B.A., Law (First year), in the year 2010-2011. She was serving with Blue Dart Company, Yerwada, Pune. Forthe purpose of verification, the appellant Prakash had paid visit to hisresidence and shop as well. Appellant Prakash was her boss. The 18Cri Appeal Nos.480.2020 and 482.2020nature of their job was such that both were required to traveltogether to various places. Their relationship grew into emotionalone. He convinced his daughter to disassociate from appellantPrakash. She did not listen. He further testified that she was underinfluence of Prakash. PW 18 – Popatlal went on to state that in theMarathi month - Margashirsh in the year 2014, Kanchan wasadmitted to Surya Hospital, as she had consumed poison. Said factwas informed to him by appellant – Prakash. He, therefore, visitedSurya Hospital to find Prakash at her bedside. He further went on tostate that as an effort to break their relationship, he had fixedKanchan’s marriage with one fellow of their community. AppellantPrakash, however, played a spoilsport. Kanchan too refused to marryanyone else.17.The evidence of PW 18 – Popatlal further disclosed that inJuly, 2015, Kanchan told that she was searching another job. She,therefore, left in search therefor. She did not return. He, therefore,lodged a missing person’s report at Ganesh Peth Police Chowki. Thereport finds place at Exh.278. He further went on to state that on10.12.2015, he received a phone call of appellant – Prakash. Heinformed that Kanchan was crying and he (Popatlal) should meet her.He, therefore, along with his brother Sohanlal (PW 19), went to room
Decision
33Cri Appeal Nos.480.2020 and 482.2020Based on the aforesaid evidence, it has to be presumedthat the relationship between the appellant Prakash and deceasedKanchan that had continued while they were serving with Blue Dartcompany, Pune, continued even after they left the said job. Both ofthem stayed together as husband and wife at Nagpur. On the fatefulday, appellant Prakash left Nagpur with her for village Wagholi, Dist.Osmanabad. He returned back alone to Nagpur and offered a falseexplanation to his colleague. 34.In view of the above facts, we reached to the conclusionthatit was the appellant Prakash who owe explanation as to whathe did with Kanchan, who was staying with him as his wife. It isreiterated that he offered no explanation to any of the incriminatingcircumstances appearing in the evidence against him. The onlyconclusion, therefore, could be drawn that the appellant Prakashcommitted murder of Kanchan. There is also evidence to indicatethat Prakash’s father had lodged N.C. against him. Although he wasnot examined, the N.C. has been proved by the police constable bytendering it in evidence. It was in relation to the quarrel between himand the family members over his relationship with Kanchan.35The question is, whether the appellants – Datta andPratibha could be said to be privy to the crime. Appellant – Pratibha, 34Cri Appeal Nos.480.2020 and 482.2020wife of appellant Prakash, was alleged to have conspired with herhusband and brother, to eliminate Kanchan. To make out the case ofconspiracy, the evidence relied on is C.D.R., indicating interactionbetween these cellphones. Admittedly, the calls between theappellants have not been recorded. They being family membersbound to have interaction on cellphone. True, one of the calls was atan odd hour, i.e. little before 04.00 am. Based on the same, we,however, cannot jump to the conclusion that appellant – Pratibhawas privy to the conspiracy. Section Section 120-A of Indian PenalCode defines conspiracy, which reads thus:-120A. Definition of criminal conspiracy.- When twoor more persons agree to do, or cause to be done, (1) an illegal act, or(2) an act which is not illegal by illegal means, suchan agreement is designated a criminal conspiracy:Provided that no agreement except anagreement to commit an offence shall amount to acriminal conspiracy unless some act besides theagreement is done by one or more parties to suchagreement in pursuance thereof.It is very easy to allege a case of conspiracy but difficult to prove thesame. Mere telephonic conversations between appellant Pratibhaand her husband appellant - Prakash and brother appellant - Datta, 35Cri Appeal Nos.480.2020 and 482.2020no way lead us to conclude she (appellant Pratibha) to have hadhatched conspiracy to eliminate Kanchan. She, therefore, deservesto be acquitted.36.So far as appellant - Datta is concerned, he appears tohave helped his brother-in-law (appellant Prakash) in doing awaywith Kanchan. In that regard, we have evidence in the nature of thedisclosure statement made by him, wherein, he stated as to whenappellant Prakash came to his village, when he joined him and howexecuted the plan. Whatever he has stated to the InvestigatingOfficer and deposed to by the witnesses thereto, was altogetherinadmissible in evidence. Mere conduct is grossly insufficient to holdhim guilty of the crime in question. He too, therefore, deserves to beacquitted.37.We have gone through the authorities relied on bylearned counsel for the appellants. Needless to mention, the factumof murder is a question of fact. Each criminal case has to be decidedon the facts and circumstances of it. What has been observed in thecase relied on by learned counsel for the appellants were on ourmind while deciding the present appeals. So far as regards thejudgment in the case of Charandas Swami Vs. State of Gujarat 36Cri Appeal Nos.480.2020 and 482.2020and anr., AIR 2017 SSC 1761, relied on by learned APP isconcerned, we find the same to be inapplicable to the present case.Paragraph 45 of the said judgment reads thus:-45. The dead body of deceased Gadadharanandjiwas found on 4th May, 1998 in a burnt condition in aditch behind the house of PW50 in Barothi village inRajasthan. How the dead body of Gadadharanandjireached that spot was revealed by none other thanAccused No.3. In what circumstances burnt injurieswere caused on the dead body of Gadadharanandji, noprosecution witness has spoken about that. Be that asit may, the fact that the dead body recovered fromBarothi village on 4th May, 1998 was that ofGadadharanandji could be known only after AccusedNo.3, during the course of investigation, made adisclosure about the location where he had disposedof the dead body of Gadadharanandji. Till theaforesaid disclosure was made, in the records of theRajasthan police, the dead body was noted as that ofan unknown person. If, the Accused No.3 had notdisclosed to the Investigating Officer about thelocation where the dead body was dumped by him -which information was personally known to him andat best Accused No.5 and none else, then theinvestigation would not have made any headway. Thedisclosure made by Accused No.3 to the investigatingofficer was recorded in the panchanama Exh. 188,when he had led the police party to the spot where thedead body was dumped by him. That locationmatched with the location from where the dead bodyof an unknown person was recovered on 4th May,1998 on the information given by PW50 to the localpolice at Barothi. The fact that the dead body wasalready recovered from the same place on 4th May,1998 and so noted in the public records in the State ofRajasthan does not undermine the admissibility of the 37Cri Appeal Nos.480.2020 and 482.2020disclosure made by Accused No.3 to the investigatingofficer about the location where the dead body ofGadadharanandji was dumped by him, whichinformation was exclusively within the personalknowledge of Accused No. 3. The fact that the deadbody recovered on 4th May 1998 was ofGadadharanandji, was unraveled and discovered onlyafter the results of its medical examination becameavailable to the investigating agency. Till then, it wasconsidered to be of an unknown person. The Courtsbelow have accepted the case of the prosecution thatthe disclosure made by Accused No.3 about thelocation where the dead body of Gadadharanandji wasdumped by him, was admissible under Section 27 ofthe Evidence Act. The appellants, however, takeexception to that by relying on the reported decisions.In our view, the decision in the case of Navjot Sandhu(AIR 2005 SC 3820) (Supra) has adverted to all theprevious decisions and restated the legal position. Inparagraph 114, while considering the argumentsadvanced by the parties regarding the sweep ofSection 27 of the Evidence Act, the Court formulatedtwo questions which read thus:“(i) Whether the discovery of factreferred to in Section 27 should beconfined only to the discovery of amaterial object and the knowledge ofthe accused in relation thereto or thediscovery could be in respect of hismental state or knowledge in relationto certain things — concrete or non-concrete. (ii) Whether it is necessary that thediscovery of fact should be by theperson making the disclosure ordirectly at his instance. Thesubsequent event of discovery by thepolice with the aid of information 38Cri Appeal Nos.480.2020 and 482.2020furnished by the accused — whethercan be put against him under Section27.”In the context of these questions, the argument of thecounsel for the State in that case has been adverted toin paragraphs 115 to 118. The Court then afteranalyzing Section 27 of the Evidence Act, inparagraphs 120 to 144 adverted to the relevantdecisions on the point. In paragraphs 120 and 121(para 13 of AIR), the Court noted thus: “120. The history of case-law on thesubject of confessions under Section27 unfolds divergent views andapproaches. The divergence wasmainly on twin aspects: (i) Whetherthe facts contemplated by Section 27are physical, material objects or themental facts of which the accusedgiving the information could be saidto be aware of. Some Judges havegone to the extent of holding thatthe discovery of concrete facts, thatis to say material objects, which canbe exhibited in the Court are alonecovered by Section 27. (ii) The othercontroversy was on the pointregarding the extent of admissibilityof a disclosure statement. In somecases a view was taken that anyinformation, which served to connectthe object with the offence charged,was admissible under Section 27.The decision of the Privy Council inKottaya’s case which has beendescribed as a locus classicus, hadset at rest much of the controversythat centred round the interpretation 39Cri Appeal Nos.480.2020 and 482.2020of Section 27. To a great extent thelegal position has got crystallisedwith the rendering of this decision.The authority of the Privy Council’sdecision has not been questioned inany of the decisions of the highestcourt either in the pre-or post-independence era. Right from the1950s, till the advent of the newcentury and till date, the passages inthis famous decision are beingapprovingly quoted and reiterated bythe Judges of this Apex Court. Yet,there remain certain grey areas asdemonstrated by the argumentsadvanced on behalf of the State. 121. The first requisite condition forutilising Section 27 in support of theprosecution case is that theinvestigating police officer shoulddepose that he discovered a fact inconsequence of the informationreceived from an accused person inpolice custody. Thus, there must be adiscovery of fact not within theknowledge of police officer as aconsequence of information received.Of course, it is axiomatic that theinformation or disclosure should befree from any element ofcompulsion. The next component ofSection 27 relates to the nature andextent of information that can beproved. It is only so much of theinformation as relates distinctly tothe fact thereby discovered that canbe proved and nothing more. It is 40Cri Appeal Nos.480.2020 and 482.2020explicitly clarified in the section thatthere is no taboo against receivingsuch information in evidence merelybecause it amounts to a confession.At the same time, the last clausemakes it clear that it is not theconfessional part that is admissiblebut it is only such information orpart of it, which relates distinctly tothe fact discovered by means of theinformation furnished. Thus, theinformation conveyed in thestatement to the police ought to bedissected if necessary so as to admitonly the information of the naturementioned in the section. Therationale behind this provision isthat, if a fact is actually discovered inconsequence of the informationsupplied, it affords some guaranteethat the information is true and cantherefore be safely allowed to beadmitted in evidence as anincriminating factor against theaccused. As pointed out by the PrivyCouncil in Kottaya case 64: (AIR p.70, para 10) “clearly the extent of theinformation admissible mustdepend on the exact nature ofthe fact discovered” and the information must distinctlyrelate to that fact. Elucidating the scope of this section,the Privy Council speaking throughSir John Beaumont said: (AIR p. 70,para 10) 41Cri Appeal Nos.480.2020 and 482.2020“Normally the section isbrought into operation when aperson in police custodyproduces from some place ofconcealment some object, suchas a dead body, a weapon, orornaments, said to beconnected with the crime ofwhich the informant isaccused.”We have emphasised the word“normally” because the illustrationsgiven by the learned Judge are notexhaustive. The next point to benoted is that the Privy Councilrejected the argument of the counselappearing for the Crown that the factdiscovered is the physical objectproduced and that any and everyinformation which relates distinctlyto that object can be proved. Uponthis view, the information given by aperson that the weapon produced isthe one used by him in thecommission of the murder will beadmissible in its entirety. Suchcontention of the Crown’s counselwas emphatically rejected with thefollowing words: (AIR p. 70, para10) “If this be the effect of Section27, little substance would remain inthe ban imposed by the twopreceding sections on confessionsmade to the police, or by persons inpolice custody. That ban waspresumably inspired by the fear ofthe legislature that a person underpolice influence might be induced to 42Cri Appeal Nos.480.2020 and 482.2020confess by the exercise of unduepressure. But if all that is required tolift the ban be the inclusion in theconfession of information relating toan object subsequently produced, itseems reasonable to suppose that thepersuasive powers of the police willprove equal to the occasion, and thatin practice the ban will lose itseffect.” Then, Their Lordshipsproceeded to give a lucid expositionof the expression “fact discovered” inthe following passage, which isquoted time and again by this Court:(AIR p. 70, para 10) “In TheirLordships’ view it is fallacious totreat the ‘fact discovered’ within thesection as equivalent to the objectproduced; the fact discoveredembraces the place from which theobject is produced and theknowledge of the accused as to this,and the information given mustrelate distinctly to this fact.Information as to past user, or thepast history, of the object produced isnot related to its discovery in thesetting in which it is discovered.Information supplied by a person incustody that ‘I will produce a knifeconcealed in the roof of my house’does not lead to the discovery of aknife; knives were discovered manyyears ago. It leads to the discovery ofthe fact that a knife is concealed inthe house of the informant to hisknowledge, and if the knife is provedto have been used in the commission 43Cri Appeal Nos.480.2020 and 482.2020of the offence, the fact discovered isvery relevant. But if to the statementthe words be added ‘with which Istabbed A’ these words areinadmissible since they do not relateto the discovery of the knife in thehouse of the informant.”(emphasis supplied) 38. The facts in the case of Charandas Swami (supra)would indicate that the dead body of Gadadharanandji was found inRajasthan. How the dead body reached that spot was revealed bynone other than the accused therein. By that time, the InvestigatingOfficer was not in the know thereof. The facts in the present case, indicate that it is not thatbased on the disclosure statement made by appellant Datta,Investigating Officer or the officials of the police station with whichthe crime was registered, came to know about identity of thedeceased Kanchan.39.The evidence of Popatlal (PW 18) and the InvestigatingOfficer would indicate that the identity of the dead body wasestablished when the Investigating Officer had visited his house on15.06.2016 with photograph in cellphone. Thereafter, the appellantswere arrested and then, the disclosure statement was made byappellant – Datta. Be that as it may. 44Cri Appeal Nos.480.2020 and 482.202040.The appreciation of the evidence and the conclusionarrived at, stated herein above, lead us to dismiss the appeal ofappellant Prakash and allow the appeals preferred by appellants –Datta and Pratibha. 41.In the result, the following order:-(i)Criminal Appeal No.480 of 2020 is allowed. Theimpugned order dated 14.08.2020, passed by learned Addl. SessionsJudge, Osmanabad, in Sessions case No.89 of 2016, convicting andsentencing the appellant - Datta s/o. Subhash Lohar for the offencespunishable under Section 302 read with Section 120-B of IndianPenal Code, is set aside. He is acquitted of the said offence. He bereleased forthwith, if not required in any other case. Fine amountpaid by the appellant - Datta, if any, be refunded to him.(ii)Criminal Appeal No.482 of 2020 is partly allowed.(a)The conviction and sentence imposed vide impugnedorder dated 14.08.2020 passed by learned Addl. Sessions Judge,Osmanabad, in Sessions Case No.89 of 2016, for the offencespunishable under Section 302 r/w. 120-B of Indian Penal Code, to theextent of appellant - Pratibha Prakash Chapekar, is set aside. She is 45Cri Appeal Nos.480.2020 and 482.2020acquitted of the said offences. Fine amount paid by the appellant -Pratibha, if any, be refunded to her. Her bail bonds shall standcancelled.(b)Criminal Appeal No.482 of 2020 to the extent ofappellant - Prakash Suryakant Chapekar, is dismissed. He shallsurrender to his bail. His bail bonds stand cancelled. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.]After pronouncement of the judgment, Ms. PoonamBodke Patil, learned counsel submits that since the appeal ofappellant – Prakash has been dismissed, who had been granted bailby the Hon’ble Supreme Court, subsequent to dismissal of theapplication for suspension of sentence by this Court, some time maybe granted for his surrender, so as to ensure that he would approachthe Hon’ble Supreme Court within a reasonable time.On her request, the appellant – Prakash is granted fourweeks’ time to surrender.[NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.]………..KBP