Criminal Appeal No. 364 of 2017 · Bombaybench High Court
Case Details
2025:BHC-AUG:23639-DB ..1.. CriAl-364-17 .odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 364 OF 2017Pradeep @ Shappu Janardhan Kokate,Age : 29 Years, Occ. Education,R/o. Near Karandikar Hospital,Wagh Mala, Ward No. 15, Ahmednagar ..Appellant (Original Accused)VERSUSThe State of Maharashtra.. Respondent WITHCRIMINAL APPEAL NO. 345 OF 2017Divya @ Hema Jitendra Bhatiya,Age : 34 Years, Occ. Household,Resident of Sona Nagar, Savedi, Ahmednagar ..Appellant (Original Accused)VERSUSThe State of Maharashtra.. Respondent Mr. Kuldip Kahalekar, Advocate alongwith Mr. N. S. Ghanekar,Advocate for the Appellant in Criminal Appeal No.364 of 2017;Mr. Ajeet Manwani, Advocate alongwith Mr.Swapnil Telang, Advocate for and on behalf of A.A. Legal Associate, Advocate for Appellant in Criminal Appeal No. 345 of 2017;Mr. S. R. Wakale, Assistant Public Prosecutor for theRespondent/State ..2.. CriAl-364-17 .odtCORAM : NITIN B. SURYAWANSHI AND SANDIPKUMAR C. MORE, JJ.RESERVED ON : 3rd JULY, 2025 PRONOUNCED ON : 4th SEPTEMBER, 2025JUDGMENT (PER SANDIPKUMAR C. MORE, J):- 1.Both the appellants, namely, Pradeep @ ShappuJanardhan Kokate in Criminal Appeal No. 364 of 2017 andDivya @ Hema Jitendra Bhatiya in Criminal Appeal No. 345 of2017 are the original accused Nos. 1 and 2 in Sessions CaseNo. 240 of 2014, respectively. Both of them have challengedthe judgment and order dated 17.06.2017 passed in theaforesaid Sessions case, by the learned Additional SessionsJudge-2, Ahmednagar (hereinafter referred to as ‘the learnedtrial Judge’). To avoid ambiguity, both the appellants arereferred by their first names. Under the impugned judgment,the appellant Pradeep is convicted as follows :-Sr.No. Under IPC Section Sentence01.302 Imprisonment for Life and to payfine of Rs.5,000/-, in default ofpayment of fine, RigorousImprisonment for six months.02.120-BImprisonment for life and to pay afine of Rs. 3000/- in default ofpayment of fine, he shall undergoR.I. for four months. ..3.. CriAl-364-17 .odt03.387Rigorous Imprisonment for fiveyears and to pay a fine of Rs.2000/-. In default of payment offine, he shall undergo R.I. for threemonths04. Section 3 of Arms Act, 1959Rigorous imprisonment for fouryears and to pay a fine of Rs.2000/-. In default of payment offine, he shall undergo R.I. for threemonths. 05.Section 5 of Arms Act, 1959Rigorous imprisonment for fouryears and to pay a fine of Rs.2000/-. In default of payment offine, he shall undergo R.I. for threemonths.2. Whereas the appellant Divya is convicted as under :-Sr.No. Under IPC Section Sentence01.120-BImprisonment for life and to pay afine of Rs. 5000/-.In default ofpayment of fine, she shall undergoR.I. for four months.02.201Imprisonment for three years andto pay a fine of Rs. 3000/-. Indefault of payment of fine, sheshall undergo R.I. for two months. 3.It is significant to note that in the aforesaidSessions Case, there was one another accused i.e. accusedNo.3 Vikram @ Gotya Kishor Berad, who was convicted only forthe offence under Section 5 read with 25 of the Arms Act, 1959and was sentenced to suffer R.I. for four years and to pay fineof Rs. 2000/-, in default to suffer R.I. for three months. ..4.. CriAl-364-17 .odt4.The third accused had also filed a separate appeal forchallenging his conviction under the impugned judgment,bearing Criminal Appeal No. 358 of 2017. However, during thependency of said appeal, the appellant Vikram expired on26.06.2023, and therefore, this Court, vide order dated22.08.2023, disposed of his appeal as criminal proceedingagainst him stood abated. Since both the appellants Pradeepand Divya have challenged one and the same judgmentwhereby they are convicted, we would like to consider both theappeals together as the evidence for both of them is common.5.The facts of the prosecution case, in a nut shell areas under :-One Shankar Mohanlal Bhatiya, lodged report inKotwali Police Station, Ahmednagar (now Ahilyanagar) on27.04.2014 at about 22.15 hours in respect of firing in theshop of his brother, i.e. the deceased Jitendra MohanlalBhatiya in the instant case. According to the informantShankar Bhatiya, deceased Jitendra was looking after shopunder the name and style as “Mohan Trunk Depot”. The saidshop premises was rented to Bhatiya family for more than 60years and at the time of the incident, deceased Jitendra and ..5.. CriAl-364-17 .odthis uncle Dharamdas Bhatiya were looking after the same. Acivil dispute was also there between Jitendra and the owner ofthe said shop by name Sudhir Zalani, for termination oftenancy and eviction.6.It is contended by the informant Shankar that on26.04.2014 at about 8.00 p.m., when he was in his shop, hereceived blank phone call on his mobile number from mobileSIM No. 9881010595. Then again, at about 8.55 p.m., hereceived another call from same mobile number. The personcalling him said as “Ghar Par Koi Phone Nahi Utta Raha Hai,Ghar Par Sab Mar Gaye Kya.” When Shanker asked who wasspeaking, the other person told him as “Kal 30 lakh RupyeTayar Rakhna” and disconnected the call, which lasted about42 seconds. Informant Shankar did not pay much attention tocall, thinking that somebody might be joking. On the next day,at about 14.32 hours, informant received text message on hisaforesaid mobile number from another mobile SIM No.9561733069 written as “Shankar 30 Lakh Rupye TayarRahana, Rat Ko Aath Baje Call Karuga, Phone UthanaWarna…..”. Due to such S.M.S., he immediately called hisuncle Jamnadas, who advised him to file report in police inrespect of the same. Thereafter, he went to shop of Jitendra at ..6.. CriAl-364-17 .odtGanj-Bazar area, where Dharamdas and Jitendra both werepresent. When he told them about the phone call andmessage received by him, Jitendra told that he had alsoreceived one missed call at 9.00 p.m. from mobile SIM No.9881010595 and when he called back on the said mobilenumber, it was switched-off. Then at about 4.30 p.m.informant Shankar, Praveen Ahuja, Bunty went to KotwaliPolice Station and told about the said call and message to PSI.Ahire. PSI, Ahire also tried to call on both the above saidmobile numbers, but it was found that those were switched off.PSI Ahire, then told them to come at 7.50 p.m. since theperson calling had told them that he would call at around 8.00p.m.7.Accordingly, informant Shankar again went toKotwali Police Station in the night at 8.00 p.m. and met PSIAhire and at about 8.20 p.m., the informant Shankar receivedcall on his mobile from mobile SIM No. 9881010595. He puthis handset on speaker mode and accepted the call. Theperson at other side asked as “30 Lakh Rupye Taiyar Hai Kya?”When the informant tried to ask as to who was speaking, theother person replied as “Chutiye Nam bathe kya” and
Facts
..7.. CriAl-364-17 .odtdisconnected the call. From there, when the complainant wentto the shop of Praveen Ahuja, where his uncle Jamnadas hadalso come, Jamnadas told that he also received phone callfrom mobile No. 9561733069 and the person from other sidewas making inquiry as “ 30 lakh ka kya hua”. When it wasasked as to who was speaking, the call was disconnected.When such talks amongst them were going on, informantShankar received a phone call from the same number, andtherefore, he gave his mobile handset to Praveen Ahuja, byputting the same on speaker mode. Praveen Ahuja, told theother person on call that he was S.P., speaking from KotwaliPolice Station and told the other person to tell his name. Theother person, instead of telling his name, said as “ Tu AbhiArthi Ka Saman Tayar Rakho’’. Due to such threat, they againwent to Kotwali Police Station, but the police personnel of thesaid police station were in hurry. On making inquiry, theycame to know that there was firing in “Mohan Trunk Depot.”Knowing this, they immediately rushed to the shop of ‘MohanTrunk Depot’ where they found crowd in front of the shop. Thepeople from crowd told the informant Shankar that his brotherJitendra received bullet injury and was taken to the CivilHospital. They immediately rushed to the Civil Hospital, but ..8.. CriAl-364-17 .odtby that time Jitendra was already declared dead. It was alsolearnt by the informant Shankar from the crowd that theassailant was wearing white T-Shirt and ran towardsLaxminarayan Temple side. Since his brother Jitendra dieddue to bullet injury on his left chest, he lodged report againstunknown person in respect of murder of his brother, due tonon payment of ransom amount of Rs. 30,00,000/-.8.On the basis of aforesaid report, police registeredcrime against unknown person initially and startedinvestigation. During the course of investigation, it wasrevealed that appellant Pradeep was the person, who hadcalled the informant and his relative for ransom amount andcommitted murder of deceased Jitendra at the time of theincident. It was also revealed that there were illicit relationsbetween appellant Pradeep and appellant Divya, who was thewife of the deceased. Further, it was revealed that theappellant Pradeep had, in fact, hatched conspiracy withappellant Divya for committing murder of her husbandJitendra and for that he obtained country made pistol fromthird accused Vikram Berad and executed the plan ofcommitting murder of Jitendra. After the death of Jitendra,informant Shankar Bhatiya had also received a message on his ..9.. CriAl-364-17 .odtmobile at about 14.44 hours, from mobile SIM No.9561733069 as “Tu mara, Amardham ke vaha pe tuzhemarunga.” He had also received text message on his mobile at20.30 hours on the same day from the aforesaid mobilenumber as “ Kyu re kutte Gali di thi na Ab Tere BaccheMarenge, Uske Bad Teri Bibi aur Fir Tu.” 9.On completion of the investigation, the investigatingmachinery filed charge sheet against these two appellants andthe third accused for the offence punishable under Sections302, 387, 507 read with 120-B of the Indian Penal Code andunder Section 5 read with Section 25 of the Arms Act. Thelearned trial Court conducted the trial and on the basis of theevidence adduced on record, convicted all three accused asaforesaid.10.Learned Advocate for the appellant Pradeepsubmits that though the prosecution has examined so manywitnesses to establish the guilt of the accused, out of thosewitnesses, 13 witnesses have not supported the case of theprosecution. He further submits that the learned trial Courthas definitely erred in appreciating the evidence on record byignoring vital admissions given by the witnesses, in their ..10.. CriAl-364-17 .odtcross-examination. He pointed out that the seizure of mobileHandsets, either from the appellant Pradeep or from theappellant Divya, is highly doubtful. He further pointed outthat though the Call Details Record (for short “CDR”) of SIMcards used by both the appellants were produced on record,but such type of electronic evidence, without valid certificateunder Section 65-B of the Indian Evidence Act, is notadmissible at all. According to him, the investigating officers,while collecting such certificates, failed to obtain the same inproper format as per the provision. He also did not record anyhash value, he contended that all certificates under Section65-B of the Indian Evidence Act were given as formality only,without complying all clauses of Section 65-B. He pointed outthat no details of IP addresses of computers are given by any ofthe Nodal Officers, from whom CDR and SDR of the mobileHandsets allegedly recovered from the appellants wereobtained which creates doubt about the authenticity of thesaid electronic evidence. According to him, last digits of mobileHandsets of appellants are missing. Moreover, the SIM cardsseized from the appellant Pradeep were not in his name.According to him, the CDR on record in respect of MobileHandsets of the appellants cannot be relied upon, for want of ..11.. CriAl-364-17 .odtproper certificate under Section 65-B of the Indian EvidenceAct. Moreover, though it was alleged by the prosecution thatcousin of the deceased had recorded call between appellantPradeep and himself, only transcript of the same has beenproduced on record. Further, the investigating machinery didnot make any effort to obtain any report from Forensic ScienceLaboratory in respect of voice samples of the appellantPradeep. Further, according to him, the alleged messages sentto the informant were also not brought on record in the form ofscreen shots.11. Learned Advocate for appellant Pradeep furtherpointed out that the appellant Pradeep was arrested on 1st Mayand the pistol and cash amount were shown to be recovered onthe same day. However, all the panchnamas in respect ofrecoveries are silent on the aspect of sealing the seized articleswith wax seals. He further pointed out that while recordingmemorandum in respect of discovery of pistol at the instanceof the appellant Pradeep, Pradeep had not mentioned the exactlocation of the pistol, where it was hidden by him. He furthersubmitted that description of the said house from which thealleged recovery was made, has been stated differently inpanchnamas about recovery of pistol and recovery of cartridge.
Legal Reasoning
..14.. CriAl-364-17 .odtCriminal Application No. 1 /2019 dated14.08.2019];(iii)Principal Seat of this Court in the case of TheState of Maharashtra Vs. Ashok @ SureshLaxman Babr [in Criminal Appeal No. 355 of99];(iv)Hon’ble Apex Court in the case of ShivajiDayanu Patil Vs. State of Maharashtra[Criminal Appeal No. 75 of 1979];(v)The Hon’ble Apex Court in the case of Rajesh &Another Vs. The State of Madhya Pradesh[Criminal Appeal No(s).793-794 of 2022];(vi)Judgment of this Bench in the case of ParagMachindra Pathare and Another Vs. State ofMaharashtra and another [Criminal Appeal No.370 of 2018 decided on 5th August 2024];(vii)The Hon’ble Apex Court in the case of JagirSingh Vs. The State (Delhi) MANU/SC/0145/1974;(viii) This Bench in the case of Ganesh @ Baban S/oNavnath Lashkare Vs. The State ofMaharashtra and another in [CriminalAppeal 155/2017dated 16.02.2024];(ix)Hon’ble Apex Court in the case of GaneshBhavan Patel and Others Vs. State ofMaharashtra, MANU/SC/0083/1978;(x)Hon’ble Apex Court in the case of Balaka Singhand Others Vs. The State of PunjabMANU/SC/0087/1975;(xi)Bala Pandurang Kesarkar and another Vs. TheState of Maharashtra [1999 Bom CR(Cri) 884]; ..15.. CriAl-364-17 .odt(xii)High Court of this Bench in the case of TheState of Maharashtra Vs. Girish GangaramKotewad Confirmation Case No.1 of 2024dated 07th October 2024;13.On the other hand, the learned counsel for theappellant Divya, relying on written notes of argument, alsosubmits that the learned trial Court has not appreciated theevidence on record in proper perspective and sentenced herwithout there being any cogent evidence on record. Accordingto him, there is absolutely no evidence in respect of heralleged illicit relations with appellant Pradeep, since none ofthe witness has supported the story of the prosecution to thatextent. He pointed out that even no proper procedure wasfollowed in respect of seizure of SIM card from the appellantDivya, which was used by her to communicate with appellantPradeep. Even P.W.5 Monashri, in whose name the said SIMcard was purchased, had stated that police had told her thatthe said SIM card was given by appellant Pradeep to appellantDivya. Thus, he pointed out that the prosecution could notestablish any conspiracy between these appellants aboutcommitting murder of Jitendra. He further submits that therecovery at the instance of appellant Divya was made on thebasis of the disclosure made by her in the memorandum, but ..16.. CriAl-364-17 .odtshe was not at all conversant with Marathi language and herdisclosure statement, which is in Marathi, was not explained toher in Hindi language, with which she was conversant. Hepointed out that the confessional statement of appellant Divya,recorded by police was, in fact, recorded by Special ExecutiveMagistrate and the same is not at all admissible. According tohim, Judicial Magistrate F.C. or Metropolitan Magistrate canhave power to record such confessional statement underSection 164 of the Code of Criminal Procedure. Thus, herequested to discard the said confessional statement ofappellant Divya. In the alternative, he pointed out that eventhe said statement of appellant Divya is read as it is, then alsono evidence is there to indicate any conspiracy between theseappellants about the alleged crime. He, thus, submitted thatthere is absolutely no evidence against appellant Divya abouther involvement in the crime. On the contrary, though theprosecution alleged that appellant Divya had, in fact, givencertain amount with which appellant Pradeep had purchasedpistol used as weapon in the crime, but it has also come onrecord that when certain recovery was made at the instance ofthe appellant Pradeep, he was found possessing the pistol aswell as amount of Rs. 10,000/-. Thus, according to him, it ..17.. CriAl-364-17 .odtclearly gives an impression that the amount of Rs. 10,000/-remained as it is with appellant Pradeep and therefore, thecase of the prosecution, to the extent of involvement ofappellant Divya or alleged conspiracy by her, is falsified.According to him, there is no direct evidence about theinvolvement of appellant Divya in the crime, but trial Court,merely convicted her on the basis of fact that she was talkingto appellant Pradeep continuously on the mobile phone. Thus,he prayed for setting aside the impugned judgment in respectof appellant Divya and prayed for her clear-cut acquittal. Insupport of his submissions, he placed reliance on the followingjudgments :-(i)Sujit Biswas Vs. State of Asam, [(2013) 12Supreme Court Cases 406];(ii)Parveen @ Sonu Vs. State of Haryana [2021 SCCOnLine 1184];(iii)Laxman Prasad @ Laxman Vs. State of MadhyaPradesh, [(2023) 6 Supreme Court cases 399];(iv)State of Punjab Vs. Kewal Krishan, [(2023) 13Supreme Court Cases 595];(v)Rajbir Singh Vs. State of Punjab [(2022) 20Supreme Court Cases 670];(vi)Majenderan Langeswaran Vs. State, (NCT ofDelhi) And Another (2013) 7 Supreme CourtCases 192]; ..18.. CriAl-364-17 .odt(vii)Bijender @ Mandar Vs. State of Haryana, [ (2022)1 Supreme Court Cases, 92];(viii)Subramanya Vs. State of Karnataka, [(2023) 11Supreme Court Cases 255](ix)Mano Vs. State of Tamil Nadu, [(2007) 13Supreme Court Cases 795];(x)Vaibhav Vs. State of Maharashtra, [2025 SCCOnline, 1304];(xi)P. Sugathan And Another Vs. State of Kerala(2000) 8 Supreme Court Cases 203;(xii)Ram Sharan Chaturvedi Vs. The State ofMadhya Pradesh in Criminal Appeal No.1066 of2010 decided on 25.8.2022 (SC);14.On the contrary, the learned A.P.P. stronglysupported the impugned judgment and pointed out that theprosecution has established all the incriminatingcircumstances against all the accused by properly appreciatingthe evidence on record, which resulted into their conviction.According to him, the certificates issued under Section 65-B ofthe Indian Evidence Act in respect of C.D.R. showingconversation between appellant Pradeep and the informantand also PW 15 Jamnadas Bhatiya, are in proper format.Moreover, the prosecution has also properly established theC.D.R. in respect of conversation between both these ..19.. CriAl-364-17 .odtappellants, who hatched conspiracy of committing murder ofdeceased Jitendra. According to him, though the witnesses,who are the family members of the deceased, tried to concealthe fact of illicit relations between these appellants, but therespective portions from their statements, from which theyresiled during their evidence, are proved by the investigatingofficer, who had recorded the same. He further pointed outthat the C.A. reports in respect of a bullet found in the body ofdeceased and two bullets recovered during the course of theinvestigation, at the instance of appellant Pradeep, haveestablished the fact that the fatal bullet was, in fact, fired byappellant Pradeep with the same pistol. He further pointed outthat even though the scientific evidence is kept aside for awhile, there is one witness i.e. P.W. 12 Rakesh KanhyalalFuldahale, who had seen the accused on the spot of theincident just before the incident and immediately after theincident with the murder weapon i.e. pistol. He pointed outthat there is no specific defence raised by both the appellantsin respect of their alleged innocence, and therefore, consideringthe entire evidence on record, the conviction of both theseappellants recorded by the learned trial Court has to beupheld. Thus, he prayed for dismissal of both these appeals. ..20.. CriAl-364-17 .odtIn support of his submissions, learned A.P.P. placed relianceon following judgments :-(i)Judgment of this Bench in the case ofRajendra S/o Babaji Bhor and others Vs.The State of Maharashtra, Criminal AppealNo. 140, 141, 183, 189, 197 of 2017 and 301,302, 621 of 2021 dated 17.03.2020;(ii)Ramanand Alias Nandlal Bharti Vs. The Stateof Uttar Pradesh, (2023) 16 SCC 51015.Heard rival submissions. Perused written notes ofargument submitted on behalf of the appellant Divya in thelight of citations relied by either of the parties. Also perusedthe impugned judgment along with record and proceedings ofthe sessions case.16.It is significant to note that the prosecution hasadduced voluminous evidence on record and examined asmany as 41 witnesses. The case of prosecution is based onthe theory of extortion under which it is alleged that theappellant Pradeep i.e. accused No.1 had demanded ransomfrom the members of Bhatiya family, by making them phonecalls from his Mobile Handset and also by sending messages tothat effect. However, the prosecution has also included another ..21.. CriAl-364-17 .odtangle to the story, which is in respect of love affair betweenboth these appellants. According to the prosecution, appellantPradeep got acquainted with appellant Divya on account ofpreparation of her Adhar Card, since he was working in theCenter for preparation of Adhar Card. Due to saidacquaintance and as deceased Jitendra i.e. husband of Divyawas not treating her properly, her acquaintance with appellantPradeep converted into their love affair and therefore, toremove obstacle from their love story, they hatched conspiracyto commit murder of Jitendra.17.The prosecution has examined many witnesses i.e.in all 41 witnesses, and therefore, reproducing the evidence ofwitnesses and to consider it on merits would be repetition offacts. Therefore, we would like to discuss the evidence ofprosecution witnesses at proper places, wherever it is material.18.Admittedly, there is no eye witness in the instantcase and the entire evidence against both the appellants is inthe nature of circumstantial evidence. The learned counsel forboth the appellants i.e. Pradeep as well as Divya, have reliedon so many judgments. Out of those judgments, most of thejudgments are on the aspect, how to deal with circumstantial ..22.. CriAl-364-17 .odtevidence to ascertain guilt of the accused. The sum andsubstance of those judgments is that, to establish the guilt ofaccused in a case based on circumstantial evidence, theprosecution has to establish the chain of each and everycircumstance pointing out to the criminal act performed by theaccused and there should be no other possibility for theconclusion that the criminal act is done by no other personsthan the accused. There should not be any other hypothesisexcept that the accused is guilty. So far as the aforesaid sumand substance of the judgments is concerned, there cannot beany second opinion and it is now well settled. Therefore, wemust consider the circumstances against both the accusedleading to their guilt or innocence, in the light of the evidenceon record.19.So far as the appellant - Pradeep is concerned, theprosecution has claimed that following are circumstancesagainst him, apparent from the material collected :-(i) That, he was found in possession of Sim Cards fromwhich calls & messages for ransom amount were madeto deceased and other members of Bhatiya Family.ii)Just before the incident and immediately after theincident, he was seen with the pistol by P.W.12 Rakesh. ..23.. CriAl-364-17 .odtiii)The pistol and live bullets were recovered at his instanceduring the investigation.iv)Further, he was found talking contentiously withappellant Divya on the Mobile Sim Card, which heobtained in the name of one of his friends, Monashri i.e.P.W. No.5.20.Similarly, to rope the appellant Divya in this crimealong with the appellant Pradeep, the prosecution relied on thefollowing circumstances :-i)That, she was acquainted with the appellant Pradeepand the said acquaintance turned into love relations asher husband i.e. the deceased was ill-treating her.(ii)That, she was found talking with appellant Pradeep onthe SIM Card given to her by him, which was obtained inthe name of his friend P.W. No.5 Monakshi.(iii)That, she had given amount of Rs. 10,000/- to appellantPradeep.21.So far as defence of both these appellants in respectof the accusation made against them is concerned, appellantPradeep has taken a defence that he was not at all concernedwith the criminal act alleged, but he was falsely implicated in ..24.. CriAl-364-17 .odtthe crime. Whereas, appellant Divya took a stand that shewas not knowing Marathi language and never gave anystatement before the Magistrate or police and she was not at allconcerned with the crime. According to her, her in-laws had,in fact, implicated her falsely in the present case only todeprive her from getting property of her husband i.e. thedeceased. Therefore, in the light of aforesaid circumstancesand the defence raised by both the appellants, let us considerthe evidence on record.22.Admittedly, death of Jitendra is homicidal and fromthe post mortem notes it has come on record that death wascaused due to bullet shot on the left side of his chest. Thequestion, therefore, arises as to whether appellant Pradeep hadfired the said bullet. As per the first theory of the prosecution,the appellant Pradeep committed murder of Jitendra for nonpayment of ransom amount of Rs. 30,00,000/-. It has alreadycome on record that all the members of Bhatiya family werewell settled in their respective businesses, having soundfinancial background. Therefore, evidence of family membersin respect of ransom calls to them by the appellant Pradeep isto be scrutinized. P.W. No.4 Shankar Mohanlal Bhatiya ofwhom the deceased was younger brother, has deposed as to ..25.. CriAl-364-17 .odthow deceased was running shop by name ‘Mohan Trunk Depot’at Ganj-bazar, Ahmedngar along with uncle DharamadasBhaitya. He has specifically deposed that on 26.04.2014 at8.00 p.m. he received one call on his Mobile Handset bearingSim No. 9822048029 from SIM Card No. 9881010595.According to him, he cut the said call as there was no propersound. According to him, the second call came on his aforesaidmobile number on the same day at 8.20 p.m. and the otherperson, by threatening him, demanded amount of Rs.30,00,000/-. He had disclosed the said fact to his wife atabout 9.30 p.m., but initially he did not take any action, as hethought somebody might be joking with him. However, on thenext day on 27.04.2014, at about 2.30 p.m. he received onemessage on his Handset from Mobile SIM Card No.9561733069 in English for keeping ready the amount of Rs.30,00,000/- and it was also written that sender would call at8.00 p.m. in the night and asked to receive the call. It hasfurther come in his evidence that when P.W. No.4 Shankarimmediately called Jamnadas i.e. P.W. No.15, he was advicedto lodge report to Kotwali Police Station about the saidmessage. He also went to the shop of Jitendra i.e. ‘MohanTrunk Depot’ where uncle Dharamdas and Jitendra were ..26.. CriAl-364-17 .odtpresent. When he spoke to them about phone call and messagereceived by him, the deceased Jitendra had told him aboutreceiving one missed call from the Sim Card No. 9881010595on earlier night & when he tried to call on said mobile number,it was found switched off.23.To support the aforesaid evidence of P.W.4 Shankar,P.W.16 Dinesh Jamnadas Bhatiya has also stated that on26.04.2014 when he was present in the shop at M.G.Road, hehad also received call from the same aforesaid mobile numberand the person calling told him in Hindi language to payamount of Rs. 10,00,000/-, otherwise Shankar Bhatiya wouldbe killed. P.W.15 Jamnadas has also supported this theoryand as per his evidence, when he was in his shop, namely,Jyoti Cosmetic at Mochi lane, Ahmednagar on 26.04.2014, hereceived phone call from P.W.4 Shankar in between 8 to 8.30p.m. informing that Shankar had received threat and despitevisit to the police station, police did not take down his reportand thereafter at 8.45 p.m. Jamnadas had also received callfrom the aforesaid Mobile Sim No. 9881010595 and the personcalling abused him and told him to ask Jitendra for payingamount of Rs. 25,00,000/-, otherwise Jitendra would bekilled. Thus, from the evidence of all these witnesses, namely, ..27.. CriAl-364-17 .odtP.W.4, 15 and 16, it has been revealed that all of them receivedthreatening calls from Sim Card No. 9881010595 and also amessage from Mobile SIM No. 9561733069. Further, it is to benoted that during the cross-examination of all these witnesses,it is not denied by both the appellants that those witnessesreceived the aforesaid phone calls and messages. Thus, fromthe evidence of these witnesses, it is also established that eventhe deceased Jitendra had, in fact received threatening callfrom Mobile SIM No. 9881010595.24.It has also come in the evidence of P.W. 4 ShankarBhatiya that initially when he had gone to Kotwali PoliceStation for making complaint about such ransom calls, thepolice did not take down his complaint and the concernedpolice officer PI- Shri. Ahire had asked him to come around8.00 p.m. since the caller had told him that he would callaround 8.00 p.m. Even before the said P.I. Ahire at about 8.20p.m, P.W. 4 Shankar received call on his mobile from theaforesaid mobile number. The caller had asked him to keepthe ransom amount of Rs. 30,00,000/- ready. Thereafter, theinformant Shankar had gone to Praveen Ahuja where P.W. 15Jamnadas had also come. Shankar again received phone call ..28.. CriAl-364-17 .odtfrom the same number and when Praveen Ahuja pretendedhimself as S.P. from Kotwali Police Station, the other personthreatened him to arrange for articles required for funeral.Therefore, when all of them again went to Kotwali PoliceStation, they learnt that there was firing in ‘Mohan TrunkDepot’ and when they rushed there, they learnt from the crowdgathered over there that Jitendra was shot and was taken tothe Civil Hospital. Thus, from the evidence of all thesewitnesses, it appears that Jitendra was killed due to nonpayment of ransom amount of Rs. 30,00,000/-.25.The task before the investigating machinery was totrace out the user of the aforesaid Mobile SIM Cards No9881010595 and 9561733069. For this purpose, theprosecution has relied on the evidence of P.W.41 Shri. AshokMahadevrao Dhekne, P.I. of Local Crime Branch, Ahmednagar.According to this witness, he was serving as P.I. at the saidLocal Crime Branch till July 2015 and having jurisdiction overentire Ahmednagar district. According to him, he receivedinformation that one Shappu Kokate i.e. appellant Pradeep waspreparing Adhar Cards, and therefore, he was having identityproofs of various persons with him. It was also revealed to him ..29.. CriAl-364-17 .odtthat appellant Pradeep used to purchase mobile sim cards inthe name of other persons by using their identity proofs. Onreceipt of such information, he arrested appellant Pradeep on01.05.2014 and took his personal search in presence of twopanchas. It has come in the evidence of this witness thatduring his personal search, appellant Pradeep was found inpossession of two mobile handsets. In one of them, there weretwo sim cards Nos. 9881010595 and 9561733069. In anotherhandset also there were two sim cards having No 7276253354and 8855871317.26.The learned counsel for the appellant Pradeepraised strong objection to place reliance on the evidence ofP.W.41 Shri. Dekhne. According to him, P.I. Dekhne was neverentrusted with the investigation of this crime, and therefore,there was no reason for him to trace out the user of aforesaidMobile numbers. He also pointed out that the panchnama inrespect of personal search of appellant Pradeep is not at allproved by the prosecution, on the basis of evidence ofindependent witness. According to him, both the panchas ofsaid panchnama (Exhibit 307) have not supported the seizureof these Mobile Handsets and SIM Cards. Admittedly, the ..30.. CriAl-364-17 .odtpanch witnesses, namely, Vishal Pardeshi and Vilas Padale,who are P.W. Nos. 6 and 7 respectively, have not supported thetheory of prosecution that the aforesaid Mobile Handsets andSIM Cards were seized from appellant Pradeep. However, theyhave only recognized their signatures on the aforesaidpanchnama (Exhibit 307).27.So far as capacity of P.W. 41 P.I. Shri. Dhekne isconcerned, it has come on record that he was Police Inspectorof Local Crime Branch, Ahmednagar at the relevant time andserved there till July 2014. It has specifically come on recordthat he was having jurisdiction over entire AhmednagarDistrict. Further, nothing is brought on record that a policeofficer competent to exercise his jurisdiction over entireAhmednagar District was not empowered to carry out any typeof investigation in the instant crime, which was beinginvestigated by another police officer. The learned trial Judgehas specifically observed in the judgment that there were somany instances that investigation of serious crime can beconducted by the concerned police station as well as LocalCrime Branch, as per the orders of the State Government.Thus, such simultaneous investigation is not prohibited by any ..31.. CriAl-364-17 .odtlaw. It is also observed by the learned trial Judge that P.W. 41P.I. Dhekne had not exceeded his jurisdiction with malafideintention. Therefore, his act of arresting appellant Pradeepand taking his personal search cannot be doubted, becauseultimately it helped in the detection of involvement of theaccused in the instant crime.28.The learned counsel for the appellant Pradeep alsopointed out that such seizure of two Handsets and four SIMCards from appellant Pradeep, on the basis of evidence of onlyP.W. 41 Ashok Dhekane, cannot be relied upon, since theindependent panch witnesses on the aforesaid panchnama(Exhibit 307) have refused to support the case of theprosecution to that effect. Admittedly, both these panchashave not supported the said seizure, but it is significant tonote that the witness has his own reason for not supportingthe case of prosecution. It is to be noted that despitesearching cross examination, nothing adverse or any malafideintention of P.W. 41- Ashok Dhekane has been brought onrecord. Further, the learned A.P.P. has also relied on theobservation of Hon’ble Apex Court in the case of Ramanand @Nandlal Bharati Vs. The State of Uttar Prdesh in CriminalAppeal No. 6465 of 2022 decided on 13th October, 2022. ..32.. CriAl-364-17 .odtThe Hon’ble Apex Court in this judgment has specificallyobserved that even if the independent witnesses to thediscovery panchnama are not examined or no such witnesswas present at the time of discovery or if no person had agreedto affix his signature on the document, it is difficult to hold, asa proposition of law, that the document so prepared by thepolice officer must be treated as tainted and discovery evidencewas unreliable. Though this observation is in respect ofrecovery panchnama, discovery panchnama contemplatedunder Section 27 of the Indian Evidence Act, but the sameanalogy can be made applicable to the personal search ofappellant Pradeep, which is not supported by the panchwitnesses, but proved by P.W. 41 P.I. Dhekne.29. At the cost of repetition, we would like to state herethat there was no prohibition of law for simultaneousinvestigation of the crime by the concerned police station andthe Local Crime Branch operating in the said area. Moreover,the defence could not bring on record any malafide intentionon the part of P.W. 41 P.I. Dhekne, so as to falsely involve theappellant Pradeep in the crime. Further, though panchwitnesses did not support the case of personal search of theappellant Pradeep, but atleast they have admitted their ..33.. CriAl-364-17 .odtsignatures on the seizure panchnama (Exhibit 307). Of course,there is evidence in respect of CDR and SDR in respect of theconversation made by appellant Pradeep in respect of ransomcalls from some of the SIM Cards in the form of electronicevidence. It can thus be inferred that the prosecution hasproved that appellant Pradeep was possessing the aforesaidtwo Mobile Handsets having four SIM Cards of the abovementioned numbers. The prosecution has also adducedelectronic evidence in the form of CDR and SDR in respect ofthe SIM Cards found in possession of appellant Pradeep in hispersonal search taken by P.W.41 P.I. Shri. Dhekane inpresence of panchas, as mentioned above. P.W.40 i.e. P.I.Hanpude Patil, who had conducted partial investigation in theinstant case, was serving as P.I. at Kotwali Police Station at therelevant period. He has stated that P.I. Dhekne of Local CrimeBranch, after arresting appellant Pradeep on 01.05.2014, hadin fact handed appellant Pradeep to him along with pistol, cashof Rs. 10,000/-, two Mobile Handsets and four Sim Cards.Further, it appears that P.W. 40 PI Hanpude Patil then issuedletters to Cyber Cell for collecting information of CDR and SDRin respect of the Sim Cards seized from appellant Pradeep.Those letters are marked as Exhibits 251 to 254. ..34.. CriAl-364-17 .odt30. The prosecution has examined P.W. 34 DattaramShantaram Angre i.e. the Nodal Officer of Idea CellularCompany Limited, at Exhibit 193. It has come in his evidencethat he was serving as a Nodal Officer in the aforesaidCompany since 2006. He received E-mail from AdditionalSuperintendent of Police, Ahmednagar in respect of the instantcrime and accordingly CDR and SDR for Mobile No.9881010595 were called for the period from 01.04.2013 to27.04.2014. Similarly, CDR in respect of Mobile Nos.9822048029 and 9822067396 were called for the period from20.04.2014 to 30.04.2014, and CDR as well as SDR werecalled in respect of Mobile No. 9822067396 for the period from20.04.2014 to 30.04.2014. Further, call details andsubscribers details in respect of Mobile No. 9822033743 from01.07.2013 to 30.04.2014 were also called. It has come in theevidence of this witness that on 15.07.2014, he sent thecertified copies of aforesaid CDR and SDR in respect of MobileNo. 9881010595 and the certificate under Section 65(B) of theIndian Evidence Act was also sent by him to the office ofAdditional S.P. Ahmednagar, which is at Exhibit 196. ..35.. CriAl-364-17 .odt31.In the evidence of P.W.34 Dattaram Angre, it hascome on record that SIM Card having Mobile No. 9881010595was in the name of Sham Gangaram Deogune, resident of 977,Renukanagar, Bolhegaon, District Ahmednagar, and it was apre-paid number. Further, as per P.W. 34 Dattaram Angre i.e. aNodal Officer, SIM Card No. 9822048029 was issued in thename of informant-Shankar Bhatiya on his address, and it wasalso a pre-paid number. Further, Mobile No. 9822067396, wasfound to be in the name of one Bapusaheb Deshmukh,resident of P.No. 187, Sector No. 28, Nigdi, Pune, which wasalso a pre-paid number. The said number was activated on 9thAugust 2000 and during the period from 20.04.2014 to30.04.2014 it was active. Similarly, Mobile No. 9822033743was issued in the name of appellant Divya Bhatiya, which wasactivated on 4th August 2011 and remained active during therelevant period. P.W. 34-Angre further deposed that he tookprint out and sent the e-mail, to the Additional S.P.Ahmednagar and issued certificate under Section 65(B) of theIndian Evidence Act, under covering letter dated 15.07.2014.Though an objection was raised before the learned trial Judgeon behalf of appellant- Pradeep that the certificate underSection 65(B) was belatedly sent, but it has now been settled ..36.. CriAl-364-17 .odtthat the certificate in respect of electronic evidence can be sentlateron also. Therefore, we would like to skip the discussion onthis aspect.32.The learned counsel for the appellant- Pradeepraised objection that the electronic evidence in the form ofCDR and SDR connecting the appellant- Pradeep with theransom threats given to informant and other members ofBhatiya family, is not admissible for want of necessaryparticulars in the certificates produced on record, by the NodalOfficer i.e. P.W. 34- Angre to that effect. According to him,such certificate under Section 65(B) of the Indian Evidence Actrequires all the particulars, not only in Section 65(B)(1) and(2), but it also need the particulars as per Section 65(B)(4) ofthe Act. Unless, those requirements are fulfilled, the certificateand the electronic evidence is of no use. For that purpose, thelearned counsel for the appellant Pradeep heavily relied on thejudgment of Hon’ble Apex Court in the case of Arjun KhotkarVs. Kailas Gorantyal and others (supra). The Hon’ble ApexCourt in paragraph No. 23 of the aforesaid judgment has madethe following observations; ..37.. CriAl-364-17 .odt“23 Under Sub-section (4), a certificate is to beproduced that identifies the electronic recordcontaining the statement and describes the manner inwhich it is produced,or gives particulars of the deviceinvolved in the production of the electronic record toshow that the electronic record was produced by acomputer, by either a person occupying a responsibleofficial position in relation to the operation of therelevant device; or a person who is in the managementof “ relevant activities”- whichever is appropriate.What is also of importance is that it shall be sufficientfor such matter to be stated to the “best of theknowledge and belief of the person stating it”. Here, “doing any of the following things….” must be read asdoing all of the following things, it being well settledthat ht expression “any” can mean “all’’ given thecontext (see, for example, this Court’s judgment inBansilal Agarwalla Vs. State of Bihar [(1962) 1SCR 33] and Om Prakash V. Union of India [(2010)4 SCC 17)]. This being the case, the conditionsmentioned in sub-section (4) must also be interpretedas being cumulative”.33.This judgment also refers the earlier judgment ofHon’ble Apex Court in the case of Anwar wherein, followingobservations are made.“14. Any documentary evidence by way of anelectronic record under the Evidence Act, in view ofSections 59 and 65-A, can be proved only inaccordance with the procedure prescribed underSection 65-B. Section 65-B deals with theadmissibility of the electronic record. The purpose ofthese provisions is to sanctify secondary evidence inelectronic form, generated by a computer. It may benoted that the section starts with a non obstante ..38.. CriAl-364-17 .odtclause. Thus, notwithstanding anything contained inthe Evidence Act, any information contained in anelectronic record which is printed on paper, stored,recorded or copied in optical or magnetic mediaproduced by a computer shall be deemed to be adocument only if the computer shall be deemed to bea document only if the conditions mentioned undersub-section (2) are satisfied without further proof orproduction of the original. They very admissibility ofsuch a document i.e. electronic record which iscalled as computer output, depends on thesatisfaction of the four conditions under Section65-B(2). Following are the specified conditionsunder Section 65-B(2) 6 of the Evidence Act.(i)The electronic record containing theinformation should have been produced bythe computer during the period over whichthe same was regularly used to store orprocess information for the purpose of anyactivity regularly carried on over that periodby the person having lawful control over theuse of that computer;(ii)The information of the kind contained inelectronic record or of the kind from whichthe information is derived was regularly fedinto the computer in the ordinary course ofthe said activity;(iii)During the material part of the said period,the computer was operating properly andthat even if it was not operating properly forsome time, the break or breaks had notaffected either the record or the accuracy ofits contents; and ..39.. CriAl-364-17 .odt(iv) The information contained in the recordshould be a reproduction or derivation fromthe information fed into the computer in theordinary course of the said activity.15.Under Section 65-B(4) of the Evidence Act, if itis desired to give a statement in any proceedingspertaining to an electronic record, it is permissibleprovided the following conditions are satisfied.(a)There must be a certificate which identifies theelectronic record containing the statement;(b)The certificate must describe the manner inwhich the electronic record was produced;(c)The certificate must furnish the particulars ofthe device involved in the production of thatrecord;(d)The certificate must deal with the applicableconditions mentioned under Section 65-B(2) ofthe Evidence Act; and(e)The certificate must be signed by a personoccupying a responsible official position inrelation to the operation of the relevant device.”34.Thus, the learned counsel for the appellant-Pradeep submits that, unless all the conditions of Section65(B)(4) of the Act are satisfied, the electronic evidenceproduced in this case is not permissible. According to him,only the condition (A) and (E) of Section 65(B)(4) of the Act aresatisfied in the instant matter. ..40.. CriAl-364-17 .odt35.As against this, the learned A.P.P. placed heavyreliance on the observation of this Court in the judgment inRajendra S/o Babaji Bhor Vs. The State of Maharashtra[Criminal Appeal No. 140 of 2017]. This Court under thejudgment and order dated 17.03.2020 in the aforesaid casehas observed as follows :-“110. The learned APP placed reliance on the caseof State of Karnataka Lokayukta PoliceStation, Bangaluru Vs. M.R. Hiremathreported as AIR 2019 SC 2377. This case is inrespect of compliance of provision of Section 65-Bof the Evidence Act. The relevant observations areat para 16 are as under :-“16. Having regard to the aboveprinciple of law, the High Court erredin coming to the conclusion that thefailure to produce a certificate undersection 65B(4) of the Evidence Act atthe stage when the charge-sheet wasfiled was fatal to the prosecution. Theneed for production of such acertificate would arise when theelectronic record is sought to beproduced in evidence at the trial. It isat that stage that the necessity of theproduction of the certificate wouldarise.” ..41.. CriAl-364-17 .odtThere is no dispute over the aforesaidobservation. This Court has also considered thecircumstances that one nodal officer produced therequisite certificate during the evidence and hisevidence is to the effect that the copies of C.D.Ralready tendered on record are in accordance withthe information stored in the system. He hasgiven evidence that, he has control over thesystem. His evidence is considered and believedby the Trial Court and this Court also sees noreason to disbelieve this witness and consider thecertificate which was produced subsequentlyunder Section 65-B of the Evidence Act ”. 36.Thus, in the light of these observations we have tosee as to whether the electronic evidence adduced in theinstant matter, fulfills the criteria and requirements of Section65(B) of the Indian Evidence Act.37.Admittedly, from the observations of the Hon’bleApex Court, it has been made clear that for relying on theelectronic evidence, compliance of Section 65(B) of the IndianEvidence Act is required completely. The Hon’ble SupremeCourt has cautioned for such compliance in all respect, sincethe electronic records are more susceptible to tampering,alteration, transposition and exigent. Therefore, without suchsafeguards as contemplated in Section 65(B) of the Act, it isdangerous to rely on electronic records which can lead to ..42.. CriAl-364-17 .odtperversity of justice. In the instant case, the record pertainingto C.D.R and SDR is duly certified by P.W. 34 DattatryaShantaram Angre. Nothing is there on record to show thatafter such certification, some additional data was taken outfrom the server without any certificate.Therefore, the certificateunder Section 65(B) of the Evidence Act in respect of CDR ofSIM Card No.9881010595, which is at Exhibit 96, if perused,then it is evident that it runs in (a) to (e) clauses. Thoseclauses appear to be as per Section 65(B) (2)(a) to (d) of theEvidence Act. Further, as per Section 65(B)(4) of the Act, it isrequired that the manner in which electronic record wasproduced, must be described in respect of particulars of deviceinvolved in production of record. Further, such certificate hasto be signed by the person occupying responsible officialposition in relation to the operation of relevant device.38.In the instant case, P.W. 34- Dattaram Angre hasspecifically stated in his evidence that he has taken out thecomputer print out directly from the main server of which hewas given access by issuing necessary Login I.D. andpassword. It is significant to note that while obtaining CDRand SDR, this witness did not copy the record from mainserver to any other instruments such as C.D., V.C.D., or any ..43.. CriAl-364-17 .odtchip. He has only reproduced the computer data of theconcerned company, stored in main server in regular course ofbusiness. Therefore, considering his evidence and perusal ofcertificate under Section 65(B) of the Act at Exhibit 96, it isevident that the prosecution has followed all the preconditionsmentioned in Section 65(B) of the Act for getting the electronicrecord. Further, this witness has also stated in the certificatethat he is a responsible officer in relation to the operation ofthe computer of Idea Cellular Company and therefore, thecertificate at Exhibit 196 has satisfied all the conditions in theentire Section 65(B) of the Evidence Act.39. Similarly, certificate under Section 65(B) in respectof Mobile No. 9822048029 and 9822067396 at Exhibit 200 isalso having similar contents as that of Exhibit 196. Moreover,the Nodal Officer, who issued the certificates appearsresponsible officer of Idea Cellular Company. Further, Section65(B) certificate in respect of Mobile No. 9822033743 atExhibit 201 also fulfills the aforesaid conditions. Though,Nodal Officer has given admission that all the requirements ofSection 65(B) of the Evidence Act are not mentioned in thecertificate issued by him, but nothing is there on record thatthe learned counsel for the appellant Pradeep suggested as to ..44.. CriAl-364-17 .odtwhat part of the section is missing. On bare perusal of thesaid certificates and the evidence given by the concerned Nodalofficer, prima facie it appears that compliance of conditionsmentioned in Section 65(B) of the Act has been done andtherefore, no significance can be given to the aforesaidadmission of this witness. Further, this witness was alsosuggested that task of maintenance of the server was assignedto somebody else and he was not having lawful control over theserver used by him. However, it is to be noted that thiswitness was the Nodal Officer and the requisite Login I.D andpassword was shared to him. Thus, it can be said that he washaving lawful authority and control over the server used byhim. Thus, the admission on the part of this witness that hecould not tell whose lawful control was there, over server usedby him, is not helpful to the appellant Pradeep. Thus,considering all these aspects, the certificates at Exhibits 196,200 and 201 appear to be duly issued by the competentauthority and therefore, the electronic records pertaining toCDR and SDR of all these SIM Cards seized from the custodyof appellant Pradeep, at the time of personal search on01.05.2014, are very much admissible in the evidence withoutfurther proof. ..45.. CriAl-364-17 .odt40.As such, on the basis of this evidence it has beenestablished that SIM Card Nos. 9881010595 and 9822067396were issued in the name of Sham Devgune and BapusahebDeshmukh, but the same were in possession of the appellantPradeep. Further, it has also been established that Mobile No.9822033743 was issued in the name of appellant Divya.Further, Mobile No. 9822048029 was in the name of informantShankar Bhatiya. It is already established by the evidence ofinvestigating officers P.W. 40- P.I. Shri. Hanpude Patil and P.W.41 P.I. Shri. Dhekane that appellant Pradeep was using all SIMCards obtained in the names of others. Therefore, it is incorroboration with the evidence of P.W. 34- DattaramShantaram Angre. The record shows that P.W. 35- JitendraNagpal was the Nodal Officer of Airtel Company, Maharashtrafrom April 2016. The erstwhile Nodal officer was one Mr.Chetan Patil. However, he left the service after August 2016.P.W. 35 Jitendra Nagpal had worked with Chetan Patil forabout three months and therefore, he was acquainted with thesignature of Chetan Patil. P.W. 35- Jitendra Nagpal in hisevidence has explained the procedure in respect of lawfulcontrol over the server of the said company. According to him,in normal course of operation, call related information gets ..46.. CriAl-364-17 .odtautomatically stored in servers of Airtel. Those servers werehaving high security controls and no manual intervention. Hehas established that as a Nodal Officer, he was having his ownuser name and password to retrieve data in respect of theaforesaid call related information. He specifically deposed thatas per request of Additional Superintendent of Police,Ahmednagar made on 14.07.2014, they provided CDR ofMobile No. 9561733069 for the period from 01.04.2013 to27.04.2014 under the certificate of the then Nodal officerChetan Patil.41.Further, customer details supported by customerapplication form, singed by Chetan Patil, were also forwardedalong with the certificate under Section 65(B) of the EvidenceAct in respect of CDR. He has deposed that those C.D.R. weredirectly taken out from the server which was installed in PuneOffice for which individual Login number and password wereprovided to each Nodal Officers. As per this witness, theaforesaid mobile number was subscribed to Sham Deoguneand it was activated on 21st December 2012. P.W. 35Jitendra Nagpal has proved the fact that certificate underSection 65(B) of the Evidence Act at Exhibit 201 is signed byChetan Patil, who had left the company. Though the ..47.. CriAl-364-17 .odtprosecution has not examined Chetan Patil, but P.W. 35Jitendra Nagpal has specifically deposed as to how the calldetails were automatically stored in servers of Airtel Companyand it was having high security controls and no manualintervention. Since this witness had worked with Chetan Patilfor about three months, he was also familiar with thesignature of Chetan Patil and therefore, it can be presumedthat the electronic record extracted from server of the companyby Mr. Chetan Patil was after obtaining lawful procedure,fulfilling all the conditions of Section 65(B) of the Act. It is tobe noted that the appellant did not dispute the existence of thecertificate issued by Chetan Patil. Further, authority ofChetan Patil as a Nodal Officer was also not denied, andtherefore, merely because Chetan Patil is not examined by theprosecution, the certificate issued by him in respect of C.D.Rand S.D.R of 9561733069 cannot be said inadmissible in theevidence. There is nothing on record that for obtaining theaforesaid electronic evidence, Chetan Patil had, in fact, adoptedany other procedure. Therefore, the evidence of P.W. 35-Jitendra Nagpal appears reliable in respect of the aforesaidC.D.R and S.D.R of Mobile No. 9561733069. ..48.. CriAl-364-17 .odt42. The learned counsel for the appellant Pradeep hasalso raised objection that SIM Cards from which ransom callsand messages were made by appellant Pradeep, were in fact inthe name of some other persons, but they have stated thatthey never purchased the cell or used the cell. For thatpurpose, the prosecution has examined Somnath, i.e. son ofSham Deogune. The learned counsel for the appellant Pradeepalso relied on the judgment Division Bench of this Court incase of Ganesh Alias Baban Lashkare Vs. The State ofMaharashtra [Criminal Appeal No. 155 of 2017, decidedon 16.02.2024] wherein it is observed that “When the SIMCard from which the kidnapper made first two calls, stood in thename of someone else and there is nothing to indicate that thesaid SIM Card was used by the accused, then prosecution hasto adduce evidence that it was the accused who had used it.”43.Thus, the learned counsel submitted that the caseof prosecution that appellant Pradeep was using those SIMCards which were purchased in the names of some otherpersons is doubtful. However, we have already mentionedearlier that as per the evidence of P.W. 40 P.I. Mr. HandpudePatil and 41 P.I. Mr. Ashok Dhekane , who are the Investigating ..49.. CriAl-364-17 .odtOfficers, it has come on record that appellant Pradeep waspossessing those SIM Cards and also using the same.Therefore, it can safely be inferred that the appellant Pradeepmust have made ransom calls and sent messages by using theaforesaid SIM Cards. Therefore, considering the C.D.R. andS.D.R. vide Exhibit 198, 203 and 209 along with certificatesunder Section 65(B) of the Evidence Act at Exhibits 196, 200,201, 208, 209 and 210, coupled with evidence of informantShankar and Nodal Officers P.W. 34 Tukaram Angre and P.W.35 Jintendra Nagpal, it has been established that on26.04.2014, at about 8.00 p.m., informant Shankar receivedblank call form SIM Card No. 9881010595 and thereafterreceived second call from same Mobile number at about 8.20p.m. demanding ransom of Rs.30,00,000/-. Since theappellant Pradeep was using the said mobile number at therelevant time, it has established that he had, in fact,demanded ransom of Rs.30,00,000/-.44. Further, the evidence of P.W. No.4 Shankar Bhatiyais corroborated by C.D.R. at Exh. 198 that on 26.04.2014, atabout 21:08 hours, there was call from same SIM Card on theland-line number 0241 2417912. It has come in the evidence ..50.. CriAl-364-17 .odtof P.W. No.31 Dattatray Markad i.e. Nodal Officer of B.S.N.Lthat aforesaid land-line number was in the name of MohanlalBhatiya and landline No. 2417913 was in the name of ShankarBhatiya. Further, it has been established that P.W. 4 Shankarhad also received a message on 29.04.2014, at about 14.44hours, from Mobile No. 9561733069 used by appellant Pradeepas “Tu Mara, Amardham ke vahi pe tuzhe Marunga.’’. Further,on 28.04.2014 also at about 8.30 i.e. on the date of funeral ofdeceased Jitendra, he again received message on his mobile as“Kyu re Kutte Gali Di Thi Na, Ab Tere Bacche Marenge, Uske BadTeri Bibi or Fir Tu.” It has been confirmed that these messagesand calls on 28.04.2014 were received on the SIM Card of thecomplainant i.e. 9822048029, by the evidence of Nodal Officerand the C.D.R details Exhibit 203.45.The learned trial Court, in the impugned judgment,has discussed in detail, as to how the prosecution hasestablished the ransom calls made by appellant Pradeep to theinformant and his family members and the messages of threatson the basis of CDR and the certificates issued by concernedNodal Officers under Section 65(B) of the Indian Evidence Act.On going through the evidence on record to that effect, we arealso of the same opinion that prosecution has proved the fact ..51.. CriAl-364-17 .odtthat appellant Pradeep was using Mobile SIM Card No.9881010595 and SIM Card No. 9561733069 for giving ransomcalls and sending messages of threats to P.W. Nos.4 informantShankar Bhatiya, P.W. 14- Dharamdas Bhatiya and P.W.15-Jamnadas Bhatiya.46.Besides the electronic evidence on record, theprosecution has also examined P.W. 12 Rakesh Fuldahale atExhibit 85, on the point of presence of accused Pradeep on thespot of incident, at the time of incident. This witness residesin Tapidas Lane, which is just adjacent to the shop of deceasedJitendra. According to him, on 27.04.2014, it was Sunday andhis weekly off. He had been to market for purchasing ice creamfor his kids at about 8.45 p.m. He was returning home afterpurchasing the ice cream. When he was near his house inTapidas Lane, he saw one young boy from the age group of 20to 24 years, came from the side of shop of deceased i.e. ‘MohanTrunk Depot’, in the lane towards his house. This witness hasspecifically stated that the said boy was holding pistol in hishand. Further, the said boy stopped near him and within fourto five seconds, turned back and went towards the shop i.e.‘Mohan Trunk Depot’. Thereafter, within four to five seconds he ..52.. CriAl-364-17 .odtheard noise of firing from the said shop and within four to fiveseconds immediately the said boy again came to place, wherehe was standing and thereafter walked towards Dane dabarathrough Tapidas Lane. Further, this witness has stated thatpublic gathered in front of ‘Mohan Trunk Depot’ and heimmediately told the crowd that one boy armed with the pistoljust went towards Dane-dabara through Tapidas lane.According to this witness, he and others went towards Danedabara in auto rickshaw in search of the said boy, but the saidboy could not be found. When he returned back to the shop ofdeceased, he saw Jitendra Bhaitya in injured condition due tofiring and thereafter public took him to the Civil Hospital. Thiswitness has stated that the boy, who fired bullet, had worn halfwhite shirt and pant of faint blue colour and having height ofaround 5 fit with wheatish-black complexion and small hair.This witness has also stated that the said boy was wearingsport shoes.47. From the evidence of P.W. 12 Rakesh Puldhale, itcan very well be gathered that the said boy must have fired thefatal bullet, which killed the deceased. Considering the timegap stated by this witness of merely four to five seconds, whenhe first saw the boy and thereafter the boy went to shop and ..53.. CriAl-364-17 .odtthen came back again, it is clearly evident that there was nointervention of third person in firing bullet on the deceased. Ithas been specifically stated by this witness that when the boywent to the shop of deceased, within four to five seconds heheard noise of firing and immediately witnessed the boycoming in four to five seconds back to him. Therefore, it has tobe gathered that none other than the said boy must have firedthe fatal bullet.48.It is to be noted that P.W.12 Rakesh Fuldhale washaving his house in the said Tapidas Lane and therefore, hispresence near the spot of the incident and witnessing thepresence of the accused was most natural. Though theobjection was raised on behalf of the accused No.1 Pradeepthat this witness even, after noticing the accused, did notdisclose the said fact immediately to the police who hadimmediately arrived on the spot of the incident. It is to benoted that the said incident had occurred during the nighthours and Jitendra was taken immediately to hospital in thesaid night. Thus, it can be understood that there was nooccasion for this witness to make immediate disclosure.However, this witness had, in fact, disclosed the presence ofthe accused to the police immediately on the next day. ..54.. CriAl-364-17 .odt49. The learned counsel for the appellant Pradeepobjected for believing evidence of P.W. 12 Rakesh, since he hadstated that he and one Umesh Tiwari had seen the assailant atthe time of the incident, but Umesh Tiwari was not examinedby the prosecution. Though this witness stated that he alongwith Umesh Tiwari chased the assailant to Tapidas Lane, butmerely on the point that Umesh Tiwari was not examined, theevidence of this witness which appears trustworthy cannot bethrown away entirely.50.Further, it is important to note that P.W. 12-Rakesh Fuldahale has also identified appellant Pradeep duringthe test identification parade. The learned counsel for theappellant- Pradeep also raises suspicion in respect of themanner in which the test identification parade was held.According to him, it was held after one month and two daysfrom the date of incident and during the said period, the policemust have shown accused- Pradeep and his photographs tothis witness before the identification parade. However, thesesuggestions given to this witness in his cross-examination aretotally denied by him. He has specifically stated about theprocedure adopted by the Special Judicial Magistrate BhaskarBhikaji Bhos (P.W.30) while conducting the said parade and as ..55.. CriAl-364-17 .odtto how he identified accused- Pradeep. Nothing adverse to theprosecution has been brought on record during the cross-examination of this witness in respect of the manner in whichthe test identification parade was conducted. The testimony ofthis witness to that effect remained un-shattered.51.The evidence of P.W.12- Rakesh Fuldahle, inrespect of test identification parade is also corroborated byevidence of P.W. 30 Bhaskar Bhikaji Bhos, who was working asSpecial Judicial Magistrate at the relevant time. As per theevidence of this witness, he received letter from Kotwali PoliceStation on 17.05.2014 and also from Local Crime Branch,Ahmednagar whereby he was requested to arrange for testidentification parade for accused- Pradeep. Accordingly, theidentification parade was held on 29.05.2014. His evidencefurther indicates that the jail authority handed over accused-Pradeep to him for identification parade and thereafterintroducing himself to the accused, necessary formalities wereperformed. Moreover, two panchas and one witness wereasked to remain present outside the room, where the separatearrangement was made for sitting of the accused Pradeep.Thereafter, this witness has deposed about the manner inwhich the test identification parade was conducted. This ..56.. CriAl-364-17 .odtwitness has also deposed as to how six dummy persons similarto accused No.1 i.e. the appellant- Pradeep, were called in thepassage and accused Pradeep was given liberty to stand at anyplace in the row. Moreover, this witness has specifically statedas to how P.W. 12- Rakesh Fuldahale identified accusedPradeep by pointing him. He has also deposed as to how thereport of the identification was reduced into writing inpresence of panchas by mentioning necessary particulars ofeach and every stage. He also proved the contents of saidreport (Exhibit 168). 52.Though the learned counsel for the appellant-Pradeep raised objection that due to holding suchidentification parade belatedly i.e. after about one month,there is dilution of evidentiary value of identification parade,however, it has come on record that P.W. 12 Rakesh Fuldhalehad seen the accused- Pradeep on the spot of incident at thetime of the incident and at that time only he had given fulldescription of accused- Pradeep by mentioning necessaryparticulars i.e. his age, complexion, clothes, etc. Further, hisstatement was also recorded immediately on the next day ofthe incident and on the basis of his information, theinvestigating machinery had also prepared rough sketch of the ..57.. CriAl-364-17 .odtappellant. Though there is no evidence as to what happenedto the said rough sketch, but it is to be noted that P.W 12 hadample opportunity to watch the accused- Pradeep from veryclose distance. Therefore, though the said rough sketch doesnot find place on record, but the identification of accused-Pradeep, at the hands of P.W.12- Rakesh Fuldahale cannot bedisbelieved, merely on the ground that the test identificationparade was conducted after about one month of the incident.As such, the evidence of P.W. No.12- Rakesh Fuldahale inrespect of identification of the accused- Pradeep can safely berelied upon. The learned counsel for the appellant Pradeeppointed out that the description in respect of clothes ofaccused Pradeep given by the P.W. 12 Rakesh differs from theactual clothes. Admittedly, Article 16 before the trial Court iswhite colour half shirt with round neck color and P.W.12-Rakesh Fuldahale has stated that Pradeep was wearing whitecoloured round neck T-Shirt. As such, the confusion is only inrespect of the shirt worn by the appellant Pradeep, whether itwas T-shirt or Shirt. Possibility cannot be ruled out thatP.W.12- Rakesh Fuldahale might have mistakenly stated sothat accused was wearing half sleeve T-Shirt due to roundneck color of the shirt of Pradeep. Therefore, this ambiguity ..58.. CriAl-364-17 .odtcannot be said to be material since other descriptions ofappellant Pradeep in respect of his looks and other clothes arecorrectly given by this witness. Therefore, merely on thisaspect, the evidence of P.W. 12- Rakesh Fuldahale cannot bedoubted.53. Though the evidence of P.W. 30-Bhaksar Bhose hasbeen challenged by the learned counsel for the appellant onthe ground that test identification parade was held belatedlyand that there was every opportunity for P.W.12- RakeshFuldahale to see him since appellant Pradeep was producedbefore the Magistrate on 02.05.2014 and 07.05.2014.However, merely delay in holding the test identification paradecannot be said to be fatal to the case of the prosecution.Moreover, P.W. 40 i.e. the investigating officer Hanpude-Patilhas not admitted in cross examination that appellant Pradeepwas produced before the Magistrate on 12.05.2014 withoutcovering his face. However, P.W.12 i.e. eye witness Rakesh hasalso denied that he had seen the appellant Pradeep before testidentification parade. As such, the evidence in respect ofidentification of the accused adduced by P.W.12 RakeshFuldahale and P.W.30- Bhaskar Bhose cannot be doubted. Thelearned trial Court has minutely scrutinized the evidence in ..59.. CriAl-364-17 .odtrespect of test identification parade, presence of panchas andidentification of appellant Pradeep at the hands of P.W. 12-Rakesh Fuldahale and ultimately came to the conclusion thatthe test identification parade was properly conducted byP.W.30- Bhaskar Bhose and P.W. 12- Rakesh Fuldahalewithout being influenced by outer machinery.54.The learned counsel for the appellant Pradeepvehemently argued that the present case is based oncircumstantial evidence and there is no direct evidence of anywitness, who had seen appellant Pradeep actually firing thebullet. However, it has been established with trustworthy andcogent evidence that appellant Pradeep had given phone callsand messages to informant Shankar and his relatives beforeand after the incident of killing Jitendra on 27.04.2014.Further, the SIM Cards from which the ransom phone callsand messages were made, were found in possession of theappellant Pradeep. It is also established that appellantPradeep, by making phone calls and sending messages,demanded different ransom amounts from family members ofdeceased Jitendra Bhatiya. Appellant Pradeep was foundclever enough to vindicate the investigating machinery bycalling members of Bhatiya family from the SIM Cards in the ..60.. CriAl-364-17 .odtname of other persons obtained by taking disadvantage of hisposition as an employee engaged in preparation of Adhar CardDepartment. It was obvious for him to collect the identificationproofs and residential proofs of other persons for purchasingSIM Cards in their names since he was in possession of thosedocumentary proofs in course of his service. 55.The learned counsel for the appellant Pradeep alsotried to argue that since the incident had taken place around8.30 p.m., there was no sufficient light on the spot of incidentwhich would have prevented P.W 12 to have close look ofaccused Pradeep. For this purpose, he heavily relied on thejudgment of this Court in the case of Bala PandurangKesarkar Vs. State of Maharashtra (supra). Admittedly inthe said judgment this Court has observed that “ in casesresting on identification evidence, the burden of proving thatthere was light on the spot of incident, always rests on theprosecution and it never shifts from it and it is only when theprosecution has discharged the said burden, then the saidburden shifts on defence”. Admittedly, in criminal cases, theentire burden to prove the guilt of accused along with thecircumstances pointing to guilt of the accused is upon theprosecution. The learned counsel for the appellant Pradeep ..61.. CriAl-364-17 .odthas thus submitted that the prosecution did not bring onrecord any reliable evidence, that at the time of incident therewas sufficient light on the spot. However, on going through themap in the spot panchnama Exh. 39, it is clearly evident thatthe place of incident i.e. ‘Mohan Trunk Depot’ was surroundedby other shops and residential houses. Even there are shopsin Tapidas lane as reflected in the map of the spot of incidentin spot panchnama. Therefore, considering these facts, coupledwith the evidence of P.W 12, it cannot be said that there wasno source of light on the spot which could have prevented PW12 from having close look of the appellant Pradeep. As such,the submission of learned counsel for the appellant Pradeep, tothat effect, needs to be discarded.56.The prosecution has claimed that after the incidentof firing PW 40 Investigating Officer Hanpude-Patil had gone tothe spot of incident. As per his evidence, he collected bloodsample on the spot with the help of cotton swab and alsorecovered one empty cartridge. The seizure panchnama to thateffect was made in presence of pancha P.W. 2 Daulat Kukreja,who is one of the panchas of the spot panchnama. Theevidence of P.W. 40-Hanpude-Patil is also supported by thispanch Daulat Kukreja. As per the evidence of Daulat Kukreja, ..62.. CriAl-364-17 .odtinformant Shankar showed the spot of incident and thedeceased was lying inside the counter of shop. One emptycartridge of fired bullet was also there and the blood stainsalong with the said cartridge were seized in his presence.Apparently, the evidence of P.W 40- P.I. Mr. Hanpude Patil andP.W. 2- Daulat Kukreja on the aspect of drawing panchnama ofthe spot and seizure of empty cartridge cannot be treated asdoubtful. There are minor contradictions in respect of theplace of empty cartridge, since according to P.W. 2- DaulatKukreja the said cartridge was lying on the floor inside thecounter and that panchnama Exh. 39 indicated that emptycartridge was found in front of steps of the shop. However,what is important to be noted is the existence of cartridge onthe spot of incident. As such, the aforesaid contradiction canbe ignored. Further, the learned counsel for the appellantPradeep also doubted the evidence of P.W. 2- Daulat Kukrejaon the ground that he was close relative of informant Shankar.However, merely because he is close relative of informantShankar, the evidence of P.W. 2- Daulat Kukreja cannot bediscarded, since true account of the facts discovered from thespot of incident as stated by this witness is supported byevidence of P.W. 40 Hanpude-Patil. ..63.. CriAl-364-17 .odt57.From the examination of Dr. Amol Shinde i,e,P.W.18 who had conducted post mortem over the dead body ofJitendra, it has come on record that the body was referred tohim from District Hospital, Ahmednagar immediately on thenext day of incident and he along with Dr. H. S. Katiyaconducted post mortem in between 10.45 a.m. to 11.45 a.m.According to his evidence, he found firearm wound entrypresent over left side of chest laterally, situated 16 c.m. belowaxillary fold in anterior axillary line and 07 c.m. below and leftlateral to left nipple of size 2.5 c.m. x 2 c.m. On dissection itwas found that bullet passed through subcutaneous tissue,fracturing left sixth rib in anterior axillary line 13 c.m. left tomid-line of size 1.5 c.m. diameter. It was found that tract ofbullet was hamorrhagic, contused, lacerated and reddish. Hehas specifically deposed that external injury No.1 undercolumn 17 of post mortem notes corresponds to internalinjuries. He has specifically given the opinion in respect ofdeath of Jitendra that it was due to traumatic andhamorrhagic shock due to fire-arm injury. The post mortemreport mentioning the cause is at Exh.130. Though therewas searching cross examination of this witness, but thiswitness has stated that if the bullet was fired through country- ..64.. CriAl-364-17 .odtmade pistol, then the empty cartridge may fall at the spot.Further, the evidence of this witness leads to inference thatappellant Pradeep must have fired bullet from the distance ofless than 2 to 3 feet from the deceased. Further, the bullet isalso recovered from the body of the deceased.58.It is significant to note that on 6.5.2014, appellantPradeep was in police custody and made disclosure statementto produce one bullet and his clothes. P.W. 10 panchBhausaheb Gangaram Pawar in his evidence has stated howappellant Pradeep voluntarly made statement for production ofbullet and his clothes, which he had hidden. The evidence ofthis witness further indicates that appellant Pradeep then ledthem to his house and then produced his clothes worn at thetime of the incident, consisting one round collar T-shirt likeShirt and blue colour Jeans Pant. He also produced one livebullet from the rear right pocket of said Jeans pant. Theclothes and live bullet were seized under panchnama Exh.76.This panch P.W. 10 has fully corroborated with the evidence ofInvestigating Officer Hanpude-Patil, on the point of disclosurestatement and recovery of clothes and bullet. It is significantto note that white round collar T-Shirt and blue Jeans Panthas been identified by P.W. 12 Rakesh Fuldhale, who had an ..65.. CriAl-364-17 .odtopportunity to see the accused at the spot of incident at therelevant time.59.The prosecution has examined P.W. 32 Gauri MilindVengurlekar, who was serving as Scientific Assistant inForensic Laboratory, Mumbai from March 2013. According toher evidence, she completed her M.Sc. in Organic Chemistryfrom Mumbai University and from March 2013 to December2015 she was serving in Ballistic Department, Mumbai.According to her, she had worked on country made, standardweapon including Pistol, Revolver, Rifle and hand guns. Shehad handled around 500 matters pertaining to differentweapons. She has stated that on 07.05.2014, she received total11 sealed parcels and envelopes from Kotwali Police Station,Ahmednagar pertaining to present crime. Office copy of thereceipt, is at Exh. 178. Those parcels and envelopes werecontaining following items :-(1) One country made pistol with magzine, wrappedin paper marked 12.(2) One intact KF 7.65 mm pistol cartridge put in anenvelope marked-13.(3) One intact KF 7.65 mm pistol cartridge put in anenvelope marked-14. ..66.. CriAl-364-17 .odt(4) One intact KF 7.65 mm pistol empty havingindentation one the cap put in an envelopemarked-1.(5)One half T-shirt wrapped in paper marked-3.(6) One full pant.(6-A)One belt Exh.6 and 6A together wrapped in papermarked-4.(7)One sandow baniyan wrapped in paper marked-5.(8)One underwear wrapped in paper marked-6.(9)One kurta wrapped in paper marked-16.(10)One full jeans pant wrapped in paper marked-17.(11)Cotton swab put in an envelope marked-2.60.Her further evidence indicates that she perused thequeries made by the Investigating Officer and then tookmeasurement of country made pistol, then she carried out testfiring by using 7.65 mm cartridges through the pistol, afterfiring she received two cartridge cases and two test firedbullets. On comparison of those two empty cartridges with theempty cartridge found on the spot, it was transpired that allthose empty cartridges were same. Further, she alsocompared the bullet sent by Medical Officer which wasrecovered from the body of the deceased, with the test firedbullet. She found that both the bullets were having samebrushing marks. As such, it was revealed to her that the test ..67.. CriAl-364-17 .odtfired bullets and the bullet which was sent by the MedicalOfficer were fired from same pistol. This witness has givendetail evidence about the procedure for arriving at theaforesaid conclusion and nothing has come on record in hercross-examination, which is adverse to the prosecution case.Thus, her evidence has established the fact that the countrymade pistol seized from the appellant -Pradeep was, capable offiring and that the empty cartridge and the part of bullet foundin the dead body of deceased was, in fact fired from the samecountry made pistol Article No.10.61.The learned counsel for the appellant Pradeep alsotried to argue that evidence of this witness i.e. P.W 32 GauriVengurlekar has to be disbelieved, since in her evidence, it hascome on record that at the time of her evidence, no seals of heroffice were found on the articles, which she had sent to KotwaliPolice Station. Admittedly, after going through her evidence, itreveals that she has admitted that seals of her office were notfound on those articles and instead of that those articles werefound sealed with stapler pins. Thus, learned Advocate for theappellant Pradeep submits that, there was clear cut tamperingwith the articles sent to this witness. However, P.W. 32Vengurlekar has specifically deposed in her evidence that when ..68.. CriAl-364-17 .odtshe had sent the articles after analysis to Kotwali PoliceStation, those were sealed and the seals were intact. Thus,even if, at the time of her evidence, those articles were foundsealed with stapler pins and without seals of her office, herreports cannot be doubted, since she is firm on the point thatshe had sent the articles to Kotwali Police Station in sealedcondition. If at the time of her evidence, those seals were notfound, there may be possibility of handling the articles byopening the seals of office of Ballistics Expert. But such type oftampering at the hands of police, will have no adverse effecton the result of analysis, since by that time, the analysis hadalready taken place. Thus, merely because there were no sealsfound on the Muddemal articles of the office of Ballistic Expertat the time of evidence of P.W. 32, it cannot be said that thosereports are fabricated. Thus, the evidence of P.W. 32 cansafely be accepted.62. It has also come on record in the evidence of P.W.41P.I. Mr. Dhekane that he had recovered the pistol consequentto the disclosure statement made by appellant Pradeep as perSection 27 of the Indian Evidence Act. The evidence of P.W. 41-P.I. Shri. Dhekane definitely indicates that after he arrestedappellant Pradeep, he disclosed that he had also received ..69.. CriAl-364-17 .odtamount of Rs. 10,000/- from appellant Divya. It has furthercome in the evidence that appellant- Pradeep had taken themnear his house and took out one pistol from Air cooler of Ken-star make, by removing two screws, the pistol was havingstainless steel magzine. Pradeep also produced cash of Rs.10,000/- from one cupboard. We have also perused the saidcountry made pistol from Muddemal and it is found that thedescription given in recovery panchnama of the said pistolmatches with it. Though the panch witness DharmendraShinde i.e. P.W.11 has not supported the prosecution on theaspect of recovery of pistol and cash amount, but theinvestigating officer P.W 41- P.I. Shri. Dhekane has establishedthe said fact of recovery. Thus, merely because panch witnessdid not support, the evidence of P.W. No.41- P.I. shri. Dhekanecannot be discarded. Moreover, the said recovery panchnamaat Exh. 308 is signed by the appellant Pradeep and he did notdispute his signature thereon. In view of the same, it cansafely be inferred that the pistol and cash amount wasrecovered at the instance of appellant Pradeep. Though thereis no evidence in respect of voice recording of appellantPradeep, but appellant Pradeep has not challenged theconversation on the phone calls and messages. Further, from ..70.. CriAl-364-17 .odtthe CDR and SDR coupled with evidence of P.W. 4 ShankarBhatiya, P.W.14 Dharamdas Bhatiya, P.W.15-JamnadasBhatiya and P.W.16- Dinesh Bhatiya it has already beenestablished that it was only appellant -Pradeep, who had maderansom calls and messages. The learned trial Judge has madeproper discussion as to how he believed the evidence ofP.W.41- P.I. Shri. Dhekane in respect of recovery of pistol andcash amount of Rs. 10,000/- at the instance of the accused.After going through the said discussion, we are also inagreement with the findings of learned trial Judge.63.The learned counsel for the appellant- Pradeep alsopointed out that the contradiction in the evidence of P.W. 12-Rakesh Fuldahale and 15- Jamnadas Bhatiya. According tohim, P.W. 15- Jamnadas Bhatiya had deposed before the Courtthat appellant- Pradeep had covered his face withhandkerchief. However, there is no such statement by P.W. 12-Rakesh. Admittedly, P,W, 15 Jamnadas has deposed that theassailant of deceased Jitendra had covered his face withhandkerchief at the time of incident, which is contrary to theevidence of P.W. 12 Rakesh, that he had seen Pradeep withoutsuch covering of face. It is pertinent to note that P.W. 15 ..71.. CriAl-364-17 .odtJamnadas is not an eyewitness and he also never claimed thathe had seen the assailant. As per his evidence, he heard fromthe mob that the assailant had covered his face withhandkerchief. Thus, it is revealed that this witness was nothaving actual information of the covering of face by theappellant. His evidence, to that effect, is hearsay evidence,which is not admissible. On the contrary, P.W. 12- Rakeshhad actually seen the assailant on the spot of incident. Assuch, no weightage can be given to the discrepancy in theevidence of P.W. 12- Rakesh Fuldhale and P.W.15- JamnadasBhatiya as regards the covering of face with handkerchief bythe assailant at the relevant time. Thus, considering all theseaspects, the prosecution has definitely established the materialcircumstances connecting the appellant Pradeep with thecrime beyond reasonable doubts. Thus prosecution hasestablished following facts on the basis of trustworthy andreliable evidence. (i)Appellant Pradeep was found in possession of the SIMCards from which calls for ransom amounts andmessages were made to the deceased and othermembers of Bhatiya family. It is also established thateven after the incident, he made threatening call tothe informant. ..72.. CriAl-364-17 .odt(ii)Just before the incident and immediately after theincident, the appellant Pradeep was seen by P.W.12Rakesh Fuldhale on the spot of incident with pistol andthat P.W. 12- Rakesh Fuldhale heard the noise of firingfrom close distance.(iii) The pistol and live bullets were recovered at theinstance of appellant Pradeep.(iii)It was transpired in the evidence of Ballistic Expert thatlive bullets recovered from appellant - Pradeep werefound similar to the bullet recovered from the body ofthe deceased.(iv)It has also been established from the said BallasticExpert witness that all the bullets including the bulletsused for test firing and bullet found in the body ofappellant Pradeep were fired from the pistol which theappellant Pradeep was possessing.64.Therefore, considering all these facts, theprosecution has conclusively established the guilt of accused,which is proved beyond all reasonable doubts. The act ofappellant-Pradeep of killing Jitendra was with motive to extortransom amount and his intention to kill the deceased is alsoapparent since he fired bullet on the chest of deceased i.e. vitalpart of the body from a near distance of 2 to 3 feet. Therefore,all the ingredients for offence punishable under Section 302 ofthe IPC are proved by the prosecution, ..73.. CriAl-364-17 .odt65.Now, we come to the parallel story of theprosecution in respect of the crime and it is regarding theconspiracy between appellant Pradeep and appellant Divyawhich led the appellant pradeep for extortion and murder ofthe deceased. Admittedly, the deceased Jitendra and theappellant Divya were husband and wife. The prosecution isclaiming that there were illicit relations between appellantsPradeep and Divya and since the deceased was treatingappellant Divya with mental and physical cruelty, sheconspired with appellant-Pradeep for killing her husband byproviding certain cash amount to him. Thus, the prosecutionis indirectly claiming that Divya had given certain cashamount to appellant Pradeep for procuring the pistol used inthe crime.66.So far as evidence in respect of illicit relationsbetween the appellants Pradeep and Divya is concerned, theprosecution claims that informant Shankar Mohanlal Bhatiyai.e. P.W. 4 Shankar disclosed the said relation before the policefirstly on 8.5.2014. According to him, he gathered suchinformation from one Monika aunty residing behind his house,who had told his wife Kanchan that her sister-in-law i.e.appellant Divya talks on phone throughout the day with one ..74.. CriAl-364-17 .odtboy and the said boy within age group of 20 to 22 years visitsDivya’s house in absence of deceased Jitendra and herchildren. Since Jitendra had a doubt on character of Divya,there was quarrel between deceased Jitendra and Divya onthis count. Thus, the prosecution is claiming that whendeceased Jitendra got the knowledge about love affair betweenthese appellants, they conspired with each other for killingJitendra and purchased pistol from Vikram Berad i.e. accusedNo.3, who is no more. Admittedly, the disclosures made bythese appellants before the investigating officer are notadmissible, but it certainly give a clue for further investigation.As such, the prosecution has relied on the evidence ofwitnesses along with the electronic evidence.67.It is case of the prosecution that appellant Pradeephad given SIM Card of Mobile No. 8177917704 to Divya, whichhe had obtained in the name of Monakshi Ahire i.e. P.W. No.5and he was talking with Divya from his another Mobile No.8855871317. However, as per the evidence of Monakshi Ahire,she was not aware about the fact that said Mobile number wasobtained by the appellant- Pradeep in her name and it wasgiven to appellant Divya for having conversation. Admittedly, ithas been disclosed that appellant -Divya was also possessing ..75.. CriAl-364-17 .odtanother SIM Card having Mobile No. 9822033743. However,there were no phone calls on this number from any of SIMCard possessed by the appellant - Pradeep. However, there areCDR in respect of calls between Mobile No. 8177917704 whichwas being used by appellant- Divya and Mobile No.8855871317 possessed by the appellant Pradeep . However,these call details are not duly certified by certificate underSection 65(B) of the Indian Evidence Act, therefore, we cannotrely on the same for concluding that appellants Pradeep andDivya were having love affair and they used these mobilephones for making conversation between them in respect oftheir relationship.68. It has come on record in the evidence of P.W. 13Deepak Zende, who acted as a panch witness that on7.5.2014, he was called in Kotwali Police Station, whereanother panch Jakir Wali Ahmed Khan was present. Thiswitness has stated that Investigating Officer P.I. Hanpude-Patiltold him that appellant Divya was about to give memorandum.According to this witness, appellant Divya, while in policecustody made a statement that she would produce MobileHandset used in connection with the crime and also to showthe place where she threw away the SIM Card fitted in the said ..76.. CriAl-364-17 .odtmobile. This witness has also identified appellant- Divya inthe open Court and further deposed as to how she producedthe Mobile Handset and showed the place where she hadthrown away the SIM Card. However, for want of certificateunder Section 65(B) of the Evidence Act, the CDR in betweenSIM Card No. 8177917704 and Sim Card No. 8855871317 hasnot been proved. Therefore, the evidence of P.W. No.13 DeepakZend is not sufficient to establish the love affair between boththe appellants.69.The prosecution has also relied on the confessionalstatements of both these appellants, wherein they havedisclosed as to how they got acquainted with each other andhaving love with each other. It is also disclosed as to how thedeceased was harassing appellant Divya and, therefore, both ofthem decided to eliminate him for continuation of their loveaffair. Admittedly, P.W. No. 30 Bhaskar Bhikaji Bhose, who inhis evidence has posed himself as Special Judicial Magistratefor Ahmednagar district and claims that as a part of his job,he recorded statement of both the appellants as well as P.W.No. 5 Monkakshi Ahire under Section 164 of the Code ofCriminal Procedure. However, it is extremely important to notethat as per Section 164 of the Code of Criminal Procedure, ..77.. CriAl-364-17 .odtonly Judicial Magistrate (F.C) or the Metropolitan Magistrateare empowered to record confessional statement. This P.W. 30-Bhakar Bhose though claim himself as Special JudicialMagistrate, but in fact he appears to be a Special ExecutiveMagistrate. Moreover, it has already come on record that as perthe judgment of this Court in the case of State ofMaharashtra Vs. Krishna reported in [2014 All M.R. (Cri)4224] and in case of Bhausaheb Vs. State of Maharashtrareported in [1997 Cr.L.J. 467], the confessional statementrecorded by Special Judicial Magistrate is just a scrap paperand having no evidentiary value at all. It appears that thelearned trial Judge has exhibited these confessionalstatements for identification purpose and its evidentiary valuewas to be decided at the time of final stage. Thus, in the lightof observations of this Court in the aforesaid judgments, theseconfessional statements cannot be used as evidence to provelove affair or any conspiracy between both these appellants.70.According to the prosecution, the illicit relationshipbetween both these appellants Pradeep and Divya was revealedfor the first time, when informant Shankar Bhatiya gave hissupplementary statement on 08.05.2014. Though whiledeposing before the Court, informant Shankar refused the part ..78.. CriAl-364-17 .odtof his supplementary statement from where the illicit relationsbetween the appellants revealed, but the Investigating Officeri.e. P.W. No.40- P.I. Hanpude Patil has proved those partswhich are marked as portion “A” and “B’’ at Exhibit 249 andExhibit 250, respectively. On going through the said portionmarked exhibits 249 and 250, it appears that Shankar got theknowledge of such illicit relationship between appellantsthrough his wife Kanchan, to whom the said fact was disclosedby one Monika aunty residing at back side of his house. 71. The prosecution has also examined P.W. No.19Monika Kishor Hasija at Exh. 132. Though this witnessrefused to support the prosecution on the point of illicitrelations between the appellants, but she has admitted thatshe used to talk occasionally with Kanchan Bhatiya i.e. wife ofShankar. The prosecution has also examined Kanchan Bhatiyaas P.W. 17, who has stated that she came to know fromMonika aunty about illicit relations between these appellantsand when she had asked appellant Divya about her relationswith the appellant Pradeep, Divya told her that the boy, whohad come to her house was a computer repairing person.Moreover, other relatives of Shankar i.e. P.W. 15 JamnadasBhatiya and P.W. No.16 Dinesh Bhatiya have also stated about ..79.. CriAl-364-17 .odtthe existence of illicit relations between both these appellants.Therefore, though some members of Bhatiya family along withthe daughter Lavina of the deceased, refused to makecomment on the said relationship, but some of them havestated about such relationship. Therefore, it is obvious thatthe members of Bhatiya family, who refused to support theprosecution on this ground, must have tried to screen thoserelations to avoid defamation of their family on that count.Thus, even though the confessional statement of appellantDivya is discarded, but the evidence of some of the familymembers has established that there was illicit relationsbetween both these appellants since around two years prior tothe incident.72.It appears that the learned trial Judge, in view ofillicit relations between these appellants and relying on theobservations of the Hon’ble Apex Court in the case ofMohammad Kalid Vs. State of West Bengal reported in[ (2002) 7 SCC 334] inferred that there was conspiracybetween these appellants for eliminating Jitendra Bhatiya. Theobservation relied upon by the learned trial Judge in theaforesaid case is reproduced herein below :- ..80.. CriAl-364-17 .odt“ There can not always be much directed evidenceabout conspiracy. The offence of conspiracy canbe proved either by direct or circumstantialevidence. However, conspiracies are not hatchedin the open, by their nature, they are secretlyplanned. Privacy and secrecy are morecharacteristics of a conspiracy, than of a louddiscussion in an elevated place open to publicview. Directed evidence in proof of a conspiracy istherefore, seldom available. It is not alwayspossible to give affirmative evidence about thedate of the formation of the criminal conspiracy,about the persons who took part in the formationof the conspiracy, about the object, which theobjections set before themselves as the object ofconspiracy, and about the manner in which theobject of conspiracy is to be carried out, all that isnecessarily as matter of inference. Therefore, thecircumstances proved before, during and after theoccurrence have to be considered to decide aboutthe complicity of the accused.”73.The learned trial Judge also appears to have reliedupon the evidence of P.W. 5- Monakshi Ahire, P.W.40 P.I. Shri.Hanpude Patil, P.W. 13- panch Dipak Zende, P.W. 37- NodalOfficer Dhananjay Yadav in respect of the facts that appellantPradeep had given SIM Card to appellant Divya and how thehandset from which appellant Divya used to contact appellantPradeep was recovered at the instance of Divya, etc.74. On the basis of this evidence, the learned trialJudge has drawn an inference that there was some conspiracy ..81.. CriAl-364-17 .odtbetween these appellants and the same was only to finishJitendra Bhatiya. However, from the aforesaid facts, it hasonly been established that there was illicit relationshipbetween these appellants. So far as the theory of prosecutionin respect of conspiracy between these appellants to killdeceased Jitendra Bhatiya is concerned, only inference to thateffect is not sufficient. Some, more material or evidence isrequired by the prosecution to support such theory. Thoughthe learned counsel for the appellant Divya relied on variousjudgments as mentioned above, but most of the judgments areon the point that when the prosecution wants to establish guiltof accused in the case based on circumstantial evidence, thenit has to establish each and every circumstances to completethe chain pointing towards the guilt of accused. So far as thispoint is concerned, it is settled position.75.The learned counsel for the appellant Divya alsorelied on the judgment of Hon’ble Apex Court in the case ofState of Kerala Versus P. Sugathan and another [AIR2000 Supreme Court 3323], wherein it is observed asbelow :-“circumstances should give rise to a conclusive inferenceof an agreement between two or more persons to commit ..82.. CriAl-364-17 .odtan offence. Circumstances should be prior in time then theactual commission of offence and conspiracy is acontinuous offene and any act committed by any of theconspirator during the subsistence of conspiracy wouldattract Section 120-B”. 76.He also placed reliance on the judgment of Hon’bleApex Court in the case of Ram Sharan Chaturvedi Vs. TheState of Madhya Pradesh [Criminal Appeal No. 1066 of2010 decided on 25.08.2022], wherein followingobservations are made :-“It is not necessary that there must be a clear,categorical and express agreement between theaccused. However, an implied agreement mustmanifest upon relying on principles established in thecase of circumstantial evidence.”77.Thus, on going through the impugned judgment, itis evident that the learned trial Judge has drawn directinference merely based on the fact that there were loverelations between these appellants, and therefore, as there waslove relations they conspired with each other and executed aplan of killing Jitendra. However, it further appears that thelearned trial Judge while convicting appellant Divya for theoffence punishable under Section 120-B of the Indian Penal ..83.. CriAl-364-17 .odtCode, has not made any objective analysis of the evidence onrecord referring to the particular act of appellant Divyaindicating that she hatched a conspiracy with appellantPradeep. As per the observations of Hon’ble Apex Court in theaforesaid cases State of Kerala Versus P. Sugathan andanother and Ram Sharan Chaturvedi Vs. The State ofMadhya Pradesh.78.In the instant case, prosecution is relying on thecash of Rs. 10,000/- found in possession of appellant Pradeep,which was allegedly given to him by appellant Divya. Theprosecution has thus suggested that appellant Divya hadprovided such cash amount to purchase a weapon forcommitting murder of her husband. However, had appellantDivya given such cash amount to appellant Pradeep forpurchasing weapon, Pradeep would have spent it. It issurprising to note that appellant Pradeep did not use it sincehe had already obtained pistol from accused No.3 Berad, whois no more. Moreover, except the fact of illicit relations betweenthe appellants, there is no other evidence on record in respectof conduct of appellant Divya, which could establish that, shein fact, played some active role to facilitate appellant Prdeep in ..84.. CriAl-364-17 .odthatching conspiracy for killing her husband. On the contrary,an inference can also be safely drawn that appellant Pradeepdue to his affair with appellant Divya, might have takenindependent decision to kill her husband, who according to herwas harassing her physically and mentally. The evidence onrecord does not suggest any overt act on the part of appellantDivya. Therefore, considering these aspects, it appears thatthe learned trial Judge has directly jumped to the conclusionthat appellant Divya was also part of conspiracy for eliminatingher husband Jitendra.79.There are no circumstances established by theprosecution about the involvement of appellant Divya in thecrime. On the contrary, it appears that it was an independentdecision of appellant Pradeep to commit murder of husband ofappellant Divya. It is well settled that suspicion, how so evergrave, cannot replace the proof. Therefore, we are of theopinion that, the learned trial Judge has committed an errorby drawing inference that appellant Divya was also involved inthe present crime. Further, it has come on record thatappellant Divya had shown the place where she destroyed theSIM Card given to her by appellant Pradeep for havingconversation with her. The prosecution has failed to recover ..85.. CriAl-364-17 .odtthe said SIM Card and even otherwise also the CDR in respectof SIM Card Nos. 8177917704 and 8855871317 are notadmissible for want of proper certificate under Section 65(B) ofthe Indian Evidence Act. As such, no active role of appellantDivya in hatching conspiracy for killing Jitendra, has beenestablished by the prosecution beyond all reasonable doubtsand therefore, she is certainly entitled for benefit of doubt. Inview of the same, we pass the following order :-ORDER(I)Criminal Appeal No.364 of 2017 stands dismissed.(II)Criminal Appeal No.345 of 2017 stands allowed and thejudgment and order dated 17.06.2017 passed by thelearned Additional Sessions Judge, Ahmednagar inSessions Case No. 240 of 2014 is hereby quashed andset aside only to the extent of appellant - Divya @ HemaJitendra Bhatiya i.e. original accused No.2.(III)The appellant - Divya @ Hema Jitendra Bhatiya isacquitted from the offence punishable under Sections120-B and 201 of the Indian Penal Code.(IV)The appellant - Divya @ Hema Jitendra Bhatiya is onbail, her bail Bail Bond stands cancelled and she is setat liberty. ..86.. CriAl-364-17 .odt(V)The fine amount, if any, paid by this appellant, berefunded to her.(VI)The Record and Proceedings be sent back to the learnedtrial Court.(VII)Criminal Appeal No. 364 of 2017 and Criminal AppealNo. 345 of 2017 are disposed off. (SANDIPKUMAR C. MORE) (NITIN B. SURYAWANSHI ) JUDGE JUDGEysk
Arguments
..12.. CriAl-364-17 .odtAccording to him, when appellant Pradeep was arrested on 1stMay, then why his clothes and live bullet were seized on6.5.2014. As such, he expressed doubt and contended thatthe investigating machinery must have planted pistol and livebullets conveniently and without sealing, only to match thesame with the bullet found in the body of the deceased. Healso raised doubt in respect of conduct of the alleged eyewitness P.W.12 Rakesh Kanhyalal Fuldahale, According to him,if the said witness had already seen the appellant Pradeep onthe spot of incident, at the time of the incident, then why hedid not disclose the same to the police on the same day.Further, though it had come in the evidence that sketch of theappellant Pradeep was prepared, but it is not on record.12.So far as motive is concerned, the learned counselappearing on behalf of appellant Pradeep submitted that thereare two theories on record about committing murder ofdeceased Jitendra. First one is the demand of ransom andsecond, the illicit relations between both these appellants.However, both these theories are contrary to each other, andtherefore, the learned counsel appearing on behalf of appellantPradeep submitted that, prosecution has cooked up a falsestory to implicate the present appellant No.1. Thus, he pointed ..13.. CriAl-364-17 .odtout that the prosecution story has to be disbelieved for want ofproper sealing of seized articles, non disclosure of places fromwhere the incriminating articles were recovered, unnaturalconduct of alleged eye witness P.W.12- Rakesh Fuldhale andnon examination of another eye witness Sham Sundar.According to him, the prosecution has failed to prove that therewas sufficient light available on the spot of the incident, sothat the alleged eye witness was able to see the appellantPradeep at the time of the incident. Thus, he submitted thatprosecution did not examine any independent witness, andtherefore, whatever evidence is brought on record by theprosecution, is not reliable and trustworthy for the reasonsmentioned above. Thus, he prayed for reversal of theimpugned judgment and for acquittal of appellant Pradeep. Insupport of his submissions, he relied on the followingjudgments :-(i)Hon’ble Supreme Court in the case of ArjunPanditrao Khotkar Vs. KailasKushanraoGorantyal and others [in CivilAppeal Nos. 20825-20826 of 2017 decided on14th July 2020];(ii)Principal seat of Bombay High Court in thecase of The State of Maharashtra Vs. ImtiyazAhmad S/o Mohd. Sadik Ali Shaikh[ Confirmation Case No. 3 of 2018 with