Criminal Appeal No. 499 of 2021 · Bombaybench High Court
Case Details
2024:BHC-AUG:21444-DB Cri Appeal Nos.499.2021 and 1059.2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO.499 OF 2021Daivashala w/o. Umakant Waghmare,Age:50 years, Occ. Labour,r/o. Vijay Colony, Samarth Nagar,Latur ..AppellantVs.The State of Maharashtra,Through its Police Inspector,Shivaji Nagar Police Station,Latur..RespondentANDCRIMINAL APPEAL NO.1059 OF 2019Parmeshwar s/o. Shankarrao Jadhav,Age : 39 years, Occ. Hotel,r/o.L.I.C. Colony, Mahadev Nagar,Latur..AppellantVs.The State of Maharashtra,Through its Police Inspector,Shivaji Nagar Police Station,Latur..Respondent----Mr.K.S.Kahalekar, Advocate holding for Mr.N.S.Ghanekar, Advocate forappellant in Criminal Appeal No.499 of 2021Mr.A.D.Ostwal along with Mr.P.M.Salunke and Mr.A.K.Bagdiya,Advocates for appellant in Criminal Appeal No.1059 of 2019Mr.V.K.Kotecha, APP for respondent Mr.V.G.Kodale, Advocate assisting the A.P.P. ---- 2Cri Appeal Nos.499.2021 and 1059.2019 CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. RESERVED ON:AUGUST 13, 2024 PRONOUNCED ON: SEPTEMBER 06, 2024 JUDGMENT (Per R.G.Avachat, J.) : Both these appeals are decided by this commonjudgment since the challenge therein is to one and the samejudgment of conviction and consequential order of sentence passedon 19.08.2019, by learned Sessions Judge, Latur, in Sessions CaseNo.121 of 2014. By the impugned order, learned Sessions Judge(trial court) convicted the appellants for the offences punishableunder Sections 302 and 201 read with Section 34 of Indian PenalCode and therefore, sentenced them to suffer imprisonment for lifeand R.I. for seven years, respectively, and fine of Rs.10,000/- withdefault stipulation. The appellants are, therefore, before this court inthese separate appeals.Criminal Appeal No.1059 of 2019 is filed by originalaccused no.2 – Parmeshwar; while Criminal Appeal No.499 of 2021has been preferred by original accused no.1 – Daivashala. 2.The case of prosecution, in short, was as under:-
Legal Reasoning
38Cri Appeal Nos.499.2021 and 1059.201944. Section 106 of the Evidence Act cannot beinvoked to make up the inability of theprosecution to produce evidence of circumstancespointing to the guilt of the accused. This sectioncannot be used to support a conviction unless theprosecution has discharged the onus by provingall the elements necessary to establish theoffence. It does not absolve the prosecution fromthe duty of proving that a crime was committedeven though it is a matter specifically within theknowledge of the accused and it does not throwthe burden on the accused to show that no crimewas committed. To infer the guilt of the accusedfrom absence of reasonable explanation in a casewhere the other circumstances are not bythemselves enough to call for his explanation isto relieve the prosecution of its legitimateburden. So, until a prima facie case is establishedby such evidence, the onus does not shift to theaccused.45.Section 106 of the Evidence Act obviouslyrefers to cases where the guilt of the accused isestablished on the evidence produced by theprosecution unless the accused is able to provesome other facts especially within his knowledge,which would render the evidence of theprosecution nugatory. If in such a situation, theaccused offers an explanation which may bereasonably true in the proved circumstances, theaccused gets the benefit of reasonable doubtthough he may not be able to prove beyondreasonable doubt the truth of the explanation.But, if the accused in such a case does not giveany explanation at all or gives a false orunacceptable explanation, this by itself is a 39Cri Appeal Nos.499.2021 and 1059.2019circumstance which may well turn the scaleagainst him. In the language of Prof. GlanvilleWilliams:“All that the shifting of theevidential burden does at thefinal stage of the case is to allowthe jury (Court) to take intoaccount the silence of the accusedor the absence of satisfactoryexplanation appearing from hisevidence.”(Emphasis supplied)Recovery pursuant to the disclosure statements made byappellant – Parmeshwar :- 45.As stated above, recovery of money, pursuant to thedisclosure statements made by the appellant Parmeshwar was notrelevant under Section 27 of the Evidence Act. Same would be thecase as regards his disclosure statements made on 03.08.2014,pursuant to which he took the Investigating Officer and panchas tovarious places. The clutch-wire seized pursuant to the disclosurestatement could not be connected with the crime in connection,since there is nothing to indicate that with the said clutch wire, thedeceased was strangled. Even, no opinion of medical expert wassolicited, whether cause of death of throttling could be connectedwith the clutch wire. Moreover, it was seized from an open place. So 40Cri Appeal Nos.499.2021 and 1059.2019far as regards recovery of purse from below bridge, wherein xeroxcopy of election card of deceased Nilawati was found, is admittedly,from an open place accessible to one and all. Moreover, althoughthere were photographs relating to those discoveries made allegedlyon 03.08.2014, no photographer has been examined. Duringexamination of a defence witness, being DW no.1 for accused no.2 -Sadiq Pathan, who is Officer in the rank of Police Inspector, servingwith Nagpada Motor Parivahan, Mumbai, was shown the extract ofthe log-book of the police vehicle in which the Investigating Officer,panchas and the appellant had gone at various places on03.08.2014. It is at Exh.195. This witness has specifically testified inhis examination-in-chief that from the documents obtained underRight to Information Act, it appears that on 2nd and 3rd August, 2014,the vehicle was not taken out of Latur City (Vehicle registrationNo.MH-24-D-7518). Although during his cross-examination, hetestified that the said extract was not visible as the entry dated03.08.2014 was not clear, we must take into consideration that he isnone other than the police official. Needless to mention, a defencecan be made out based on the preponderance of probabilities. Evenif we accept the same as it is, finding of purse, containing theelection identity card of the deceased, would be not of that muchimportance since the recovery was from an open place. 41Cri Appeal Nos.499.2021 and 1059.2019Recovery of ornaments:-46.There is evidence to indicate the appellant Parmeshwarto have made disclosure statement (Exh.110) in the presence of PW8 – Sanjay and then, he took the panchas and police to his residenceand took out one paper containing some jewellery from a showcase.Said jewellery was stated to be that of the deceased. In the FIR,which was lodged six days after the deceased went missing, only thekinds of ornaments has been given and not their description. PW 1 –Subhash, in his examination-in-chief, also did not give thedescription of the ornaments. Admittedly, on seizure of thoseornaments, the Investigating Officer did not hold test identificationthereof. Those articles were delivered to PW 1 – Subhash onSupurtnama. It would, therefore, be illogical to conclude thatwhatever ornaments were recovered pursuant to the disclosurestatement made by the appellant Parmeshwar were proved to havebelonged to deceased Nilawati.47.PW 8 – Sanjay, panch witness to the recovery of thoseornaments, deposed that appellant Parmeshwar made a statement(Exh.110) that he was ready to produce the ornaments, seat coverand purse. His evidence is short to state that the appellant did make 42Cri Appeal Nos.499.2021 and 1059.2019statement that he would produce the ornaments of deceased he hadkept at his residence. Had such statement been made by theappellant Parmeshwar in his presence and then ornaments wererecovered pursuant thereto, he would have been under obligation toexplain how the ornaments of the deceased came to his possession.Had the Investigating Officer held test identification thereof and PW1 – Subhash had identified them, then and then only, said recoverycould have been termed as an incriminating circumstance againstthe appellant.48.Then, what remains is the evidence relating to CDRs andthe tower locations of certain cellphone numbers. The evidence ofwitnesses examined in that regard were officials of concernedcellular companies. Except, in respect of one tower location, allother record is supported with certificate issued under Section 65B ofthe Evidence Act. It has been amply proved from their evidence thatcellphone no.7775925551 was issued in the name of appellantDaivashala and cellphone no. 9403642031 was issued in the name ofnephew of the deceased and the same was being used by her. Sameis also evident from the missing person’s report (Exh.72). It has alsobeen proved that cellphone no.9156509080 was issued in the nameof appellant Parmeshwar. The CDRs pertaining to 22.07.2014 and 43Cri Appeal Nos.499.2021 and 1059.201923.07.2014 in respect of these cellphone numbers would indicatethat both appellant Daivashala and deceased Nilawati were incontact with each other. The appellant Daivashala was also incontact with appellant Parmeshwar. The chart referred by the trialcourt in its judgment in paragraph 164, indicate that at no point oftime, the tower location of cellphone number of appellant Daivashalawas beyond the city of Latur. On 23.07.2014, the tower location ofcellphone of Parmeshwar was within the limits of village Mulaj, Tq.Omerga, Dist. Osmanabad. It is not known, whether the dead bodyof deceased Nilawati was found within the limits of this towerlocation or nearby thereof. It is informed that the radius of eachtower location was not less than 3 kms. or more than that. The samewas based on aerial distance, meaning thereby, the road distancemight be somewhat more than 3 kms. Solely based on the CDRsand their tower locations, it cannot be said that the trio weretogether and the appellants done away with Nilawati. At the cost ofrepetition, it is observed that there is no record to indicate that theappellant Daivashala’s cellphone, during the relevant period, everhad tower location beyond the city of Latur.49.Thus, the appreciation of the aforesaid evidence lead usto conclude the prosecution to have failed to establish each and 44Cri Appeal Nos.499.2021 and 1059.2019every circumstance, as is expected to be proved in the case basedon circumstantial evidence. It is reiterated that the trial court hasrelied on the entire evidence of the prosecution, most of which wasin the nature of recovery of cash amount, clutch-wire and ornaments,etc., which we find to be not relevant under Section 27 of theEvidence Act.50.In our considered view, all in all, the prosecution hasfailed to bring home the charge beyond reasonable doubt. Theappellants, therefore, deserve to be given benefit of doubt. Theappeals, thus, succeed. 51.Hence, the following order:-(i)Both the appeals are allowed.(ii)The order of conviction and consequential sentencepassed on 19.08.2019, by learned Sessions Judge, Latur, in SessionsCase No.121 of 2014, convicting and sentencing the appellants forthe offences punishable under Sections 302 and 201 read withSection 34 of Indian Penal Code, is set aside. The appellants standacquitted of the said offences. 45Cri Appeal Nos.499.2021 and 1059.2019(iii)The appellants be released forthwith, if not required inany other case.(iv)Fine amount paid by the appellants, if any, be refundedto them. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP
Arguments
3Cri Appeal Nos.499.2021 and 1059.2019Smt. Nilawati (deceased) was wife of PW 1 - Subhash.Appellant – Daivashala had acquaintance with Nilawati. She(Daivashala) lured Nilawati to pay her a sum of Rs.5 Lakhs forinvesting in such a scheme, wherein, Nilawati would be paid doublethe amount invested, within one and half months. Nilawati fell pray.She paid Daivashala Rs.5 Lakhs in two equal installments. Afterhaving been realised to have been duped by Daivashala, Nilawatistarted asking her for refund of the amount. With a view to avoidrepayment of the amount, Daivashala, in furtherance of a commonintention with appellant – Parmeshwar, took Nilawati towardsSolapur, under the pretext of some personal work on 22.07.2014.PW 1 - Subhash, therefore, dropped Nilawati off near Ashtavinayaktemple, Shivaji Nagar, Latur, by 11 in the morning on 22.07.2014.The trio started in a car (FIAT Uno, bearing registration No.MH-24-C-5505). On way, they halted at one place to have fruit juice. Nilawatiwas administered juice laced with powder of sleeping pills.Thereafter, on way, near Ambulga Sugar Factory, the car, which wasbeing driven by appellant Parmeshwar, was halted. AppellantParmeshwar strangled Nilawati with clutch-wire, robbed her of thegolden ornaments on her person and then, abandoned her deadbody by Solapur – Aurangabad roadside. 3.Since Nilawati had informed her husband (PW 1 - 4Cri Appeal Nos.499.2021 and 1059.2019Subhash) that she would be back home in the evening same day, heawaited for her arrival. Since she did not return, he took search forher for two days. On 24.07.2014, he lodged a missing person’sreport (Exh.72) at Shivaji Nagar Police Station, Latur. In themeanwhile, the dead body of a woman was found near a petrol pumpwithin the limits of Indapur village. A report to that effect was madeby one Babasaheb Kamble (PW 13) to Vashi Police Station. Thepolice officials at the said police station, therefore, rushed to theplace. It was the dead body of a female. It started developingdecomposition. Inquest was conducted. The dead body was sent tothe Rural Hospital for post mortem examination. Dr.Pradnya (PW 15)conducted the post mortem (Exh.135 and 136). In her opinion, thelady died due to throttling. 4.PW 1 – Subhash received a phone call from Shivaji NagarPolice Station. He was informed that dead body of a woman wasfound within the limits of Vashi Police Station, Dist. Osmanabad. He,therefore, went to the said police station. The police officials showedhim photographs of the dead body. He identified the deceased onthe basis of the photographs. Since the dead body was indecomposed state, the police officials buried the same. PW 1 –Subhash inquired with Vashi Police Station, whether there were 5Cri Appeal Nos.499.2021 and 1059.2019ornaments on the person of the deceased. Since he was informedthat no ornaments were on the the person of the deceased, herealised that appellant – Daivashala, with the help of some unknownperson, took his wife towards Solapur, under the pretext of personalwork and committed her murder. He, therefore, lodged the FirstInformation Report (FIR)(Exh.73) with Shivaji Nagar Police Station,Latur, on 30.07.2014.5.A crime, vide C.R.No.148 of 2014, was registered for theoffences punishable under Sections 302 and 201 of Indian PenalCode. Appellant Daivashala was, arrested. During her interrogation,involvement of appellant Parmeshwar was surfaced. He too wasarrested. Both of them made disclosure statements, pursuant towhich a sum of Rs.4 Lakhs came to be seized from the house of theappellant – Daivashala. Some amount was recovered pursuant tothe disclosure statement made by appellant – Parmeshwar, fromvarious persons to whom he had paid petty amounts, like Rs.10,000/-and Rs.5,000/-. Pursuant to the disclosure statement made byappellant Parmeshwar, ornaments of the deceased were seized fromhis residence. C.D.Rs. and tower locations of the cellphones of thetrio were obtained. Statements of the persons acquainted with thefacts and circumstances of the case were recorded. PW 3 – 6Cri Appeal Nos.499.2021 and 1059.2019Chandrashekhar had seen the trio proceeding together in a car. Assuch, it was a last seen theory. Upon completion of the investigation,charge sheet was filed against both the appellants.6.The trial court framed Charge (Exh,11). The appellantspleaded not guilty. Appellant – Daivashala placed on record herwritten statement, wherein she disclosed that the sum of Rs.4 Lakhs,recovered from her, was received as Stridhan in the marriage of herson. Her son married daughter of her brother. He had paid them theamount. Same was kept at her residence for purchase of a flat inPune. In her defence, she examined her brother (DW 1 - Virbhadra)and bank official (DW 2 – Ashok) in proof of her brother to haveraised loan to pay his son-in-law the sum of Rs.4 Lakhs. The defenceof the appellant Parmeshwar was of denial altogether.7.The prosecution, to bring home the Charge, examined 23witnesses and produced in evidence certain documents. Onappreciation of the evidence, the trial court convicted the appellantsand consequently sentenced, as stated above.8.Heard learned counsel for the parties.9.Learned counsel for the appellant - Daivashala would 7Cri Appeal Nos.499.2021 and 1059.2019submit that the case was based on circumstantial evidence. As perthe case of prosecution itself, acquaintance between appellantDaivashala and deceased Nilawati was developed just two monthsbefore the incident. Within five days of Nilawati to have paidDaivashala the sum of Rs.5 Lakhs, she realised to have been duped.According to learned counsel, if such was the case of theprosecution, why Nilawati would join Daivashala to go to Solapur, forher personal work. PW 1 – Subhash, husband of the deceased, didnot drop her off at the house of the appellant Daivashala. Hedropped her at Ashtavinayak temple, Latur. He did not remain at thespot until Daivashala, allegedly, joined her there. According tolearned counsel, recovery of sum of Rs.4 Lakhs from appellantDaivashala, pursuant to the disclosure statement, would not berelevant under Section 27 of the Evidence Act. The C.D.R. indicatesthat appellant Daivashala did not leave Latur city. PW 3 –Chandrashekhar, who claimed to have had seen the appellantDaivashala in the company of Nilawati on the given day, i.e. on22.07.2014, was a childhood friend of Nilawati’s husband (PW 1).After having been realised Nilawati to have been murdered, he didnot share said fact with anyone. It is only after 20 days of theincident, he received phone call from the police and thereafter, hisstatement was recorded. According to learned counsel, PW 3 – 8Cri Appeal Nos.499.2021 and 1059.2019Chandrashekhar is a planted witness. The chain of circumstancesrelied on was not complete. None of the circumstances have beenconclusively proved. He, therefore, urged for allowing the appeal.10.Learned counsel for the appellant - Parmeshwar wouldreiterate the submissions made by learned counsel for the appellantDaivashala. He has also placed on record the submissions in writing.According to him, there was delay of 8 days in lodging of the FIR.Delay remained unexplained. According to him, it was a mystery asto why the husband of deceased did not lodge the FIR no sooner helearnt his wife to have been murdered. His close relations arepracticing advocates. According to him, there was great delay inrecording the statements of the so called witness, who claimed tohave lastly seen the appellants and deceased together. No testidentification parade was held of the ornaments seized pursuant tothe so called disclosure statement made by the appellant -Parmeshwar. So far as the C.D.Rs. are concerned, he would submitthat the certificate/s under Section 65B of the Evidence Act were notin the prescribed format. One of the tower location’s record was notsupported by the certificate under Section 65B of the Evidence Act.Cellphone of the deceased was in the name of someone else. TheInvestigating Officer, in fact, did not leave Latur city on the given day 9Cri Appeal Nos.499.2021 and 1059.2019on which recovery of certain articles was shown to have been madepursuant to the disclosure statement made by the appellantParmeshwar. The information obtained in writing relating to the logbook of the police vehicle in which they had travelled on the givenday, indicates that the vehicle did not leave Latur on the given day.The defence witness was examined in that regard. Learned counselrelied on certain judgments of the Apex Court and ultimately, urgedfor allowing of the appeal.11. Learned APP for the respondent – State and learnedcounsel representing the victim would submit that the chain ofcircumstances relied on was complete. It was the chain of unerringcircumstances. As regards the delay in recording statement of PW 3- Chandrashekhar, they would submit that no questions were put tothe Investigating Officer in that regard. The Investigating Officercould have offered explanation had he been put such question.Learned APP and learned counsel for respondent no.2 relied on a setof judgments of the Apex Court, reference thereto is made hereinafter. According to them, the trio were lastly seen together. TheC.D.R. and tower locations of the culprits reinforce the same. Theornaments of the deceased were recovered from the appellantParmeshwar. The cash amount was also recovered from both the 10Cri Appeal Nos.499.2021 and 1059.2019appellants, pursuant to the disclosure statements made by them. Intheir examination under Section 313 of the Code of CriminalProcedure, both the appellants simply denied the prosecution case.According to learned counsel, both the appellants, in fact, owe theduty to explain the circumstances appearing against them. Keepingmum or giving false explanation would be an additional link toreinforce the prosecution case. When both the appellants were lastlyseen in the company of the deceased, they did not explain whenthey parted ways or what had happened with the deceased.12.On the question of certificate under Section 65B of theEvidence Act, learned APP relied on the judgment of the DivisionBench of this Court in the case of State of Maharashtra VS.Ramesh Vishwanath Darandale and ors., AIR Online 2019Bom 1224. They would submit that the C.D.Rs. were obtained frommain source. The certificate under Section 65B contains requisitecontents as are mandatory under Section 65B of the Evidence Act.Two of the authorities, who issued those certificates could not attendthe Court for unavoidable reasons. Their signatures on thecertificates have been proved by the official who was acquaintedwith the same. According to them, the tower locations never 11Cri Appeal Nos.499.2021 and 1059.2019changed. Those have also been given in the C.D.Rs. It is only inrespect of one tower location, there is no certificate under Section65B of the Evidence Act. They adverted our attention to paragraph164 of the judgment of the trial court, wherein details thereof havebeen given. In short, according to learned APP and learned counselfor the victim, the trial court has passed a well-reasoned judgmentand the consequential order. No interference is, therefore, warrantedwith the impugned judgment.13.Considered the submissions advanced. Perused thejudgment impugned herein and the authorities relied on. 14.Before adverting to the evidence on record, one mustrefer to the decision of the Apex Court in the case of Anwar Ali andanr. Vs. State of Himachal Pradesh, 2021 AIAR (Criminal) 80,wherein, it is observed thus :-B. Circumstantial evidence – Scope and sweep of – Incase of a circumstantial evidence – The circumstances,taken cumulatively – should form a chain so completethat there is no escape from the conclusion that withinall human probability the crime was committed by theaccused and none else and the circumstantialevidence in order to sustain conviction must becomplete and – Incapable of explanation of any otherhypothesis than that of the guilt of the accused and – 12Cri Appeal Nos.499.2021 and 1059.2019Such evidence should only be consistent with the guiltof the accused but should be inconsistent with hisinnocence15.The trial court, in paragraph 188 of its judgment, held theprosecution to have proved the chain of circumstances against boththe appellants. The circumstances relied on and proved by theprosecution, are as follows:-1.Acquaintance of accused no.1 with the deceased.2.Communication of accused no.1 on mobile with deceasedon 22nd after she left the house.3.Call details of the mobiles of the accused nos.1 and 2 proves their common intention and involvement in offence.4.The recovery of ornaments at the instance of accused no.2.5.Disclosure of the spots by accused no.2.6.Recovery of purse, seat mat and the intention of accused no.2 to mislead the investigation by producing the clutch wire proves that he has very cleverly planned the crime and is additional circumstance against the accused no.2.7.The recovery of amount of Rs.4,00,000/- from accused no.1.8. Motive is proved as to grab the amount.9.The absence of accused no.1 from her house during the period from 22nd to 24th.10.PW 3 saw the accused nos.1 and 2 with deceased on 22nd . 13Cri Appeal Nos.499.2021 and 1059.201916.Nilawati left her house to go to Solapur for some work ofher friend (appellant Daivashala) on 22.07.2014. She was supposedto return home in the evening same day. Since she did not returnhome, her husband (PW 1 – Subhash) took search for her at theplaces of his relations and friends. He, ultimately, lodged themissing person’s report (Exh.72) at Shivaji Nagar Police Station. Saidreport reads thus:-वरील विवषयी विवनंती अर्ज(cid:14) करतो की, माझी पत्नी विनलावतीसुभाष उटगे, राहणार आझाद चौक लातूर वय : ४३, उंची.५फूट ४ इंच, रंग सावळा, असून अंगावर विनळी रंगाची साडीअसून ती विदनांक. २२ .०७ .२०१४ या तारखेस (वारमंगळवार) सकाळी ११.३० च्या सुमारास ती स्वतःअष्टविवनायक मंविदरार्जवळ सोडलो होतो.तितने मला तितच्या मैवि7णीसोबत सोलापूर येथे तितच्या मैवि7णीचेकाम आहे म्हणून गेली असता आर्जपय;त तितचा कोठलाही संपक(cid:14)झालेला नाही. मोबाइलला सुद्धा बंद आहे. आम्ही सव(cid:14) नातलगांना तितच्याबद्दल चौकशी केली असताकोठलेही माविहती विमळालेली नाही. तसेच माझे तितकटीहासोबतकसलेही वाद किंकवा भांडण झाले नाही.तरी साहेबानी सहकाय(cid:14) करावे विह नम्र विवनंती. माझ्या पत्नीचेमो. न.९४०३६४२०३१ , ९१७५०७४९९९ 17.In the missing person’s report itself, he gave cellphonenumber of his wife Nilawati (deceased). One of the cellphonenumber is 9403642031. On the other hand, dead body of anunknown woman was noticed near petrol pump in Indapur Shivar 14Cri Appeal Nos.499.2021 and 1059.2019along Aurangabad – Solapur highway on 23.07.2014 by oneBabasaheb Kamble (PW 13). He reported same at Vashi policestation, Dist. Osmanabad. An accidental death report in that regardwas registered vide Exh.128. PW 12 – Rajabhau was on his way, atthe relevant time, from in front of the petrol pump situated inIndapur Shivar. The police officials had reached the place whereatthe dead body was found. Inquest was conducted at the spot in hispresence. Same is Exh.126, while Exh.125 is panchnama as to thespot whereat the dead body was found. Since the dead body hadstarted catching maggots (decomposition state), it was sent forautopsy. PW 15 – Dr. Pradnya conducted autopsy on the mortalremains of the dead body of said unknown lady on 24.07.2014. Sheprepared post mortem examination report (Exh.135 and 136). In heropinion, the lady died due to throttling. It was PW 16 – Shahaji,serving as Police Inspector at Vashi Police Station at the relevanttime, who drew panchnamas (Exhs.125, 126 and 128). It is in hisevidence that since the dead body was of unknown person and indecomposed stated, same was buried.18.PW 1 – Subhash testified that he took search for his wifefor next two days post filing of the missing person’s report. It is inhis evidence that on 26.07.2014, by 12:30 p.m., he received a phone 15Cri Appeal Nos.499.2021 and 1059.2019call from Shivaji Nagar Police Station, informing him that dead bodyof a lady was found within the limits of Vashi Police Station. He,therefore, rushed to the police station. The police officer showedhim photographs of the dead body. He recognised the person in thephotographs, who was none other than his wife (Nilawati). He learntfrom the police officer that no ornaments were there on the person ofthe deceased. It is further in his evidence that he immediatelyrealised that the appellant Daivashala must have been involved incommitting murder of his wife. According to him, the motive behindthe same was to dupe his wife of Rs.5 Lakhs she had invested withher in a scheme, wherein the investor was to be paid double theamount invested. He, therefore, lodged the FIR (Exh.73) againstDaivashala and unknown person. It is in his evidence that on thegiven day, i.e. on 22.07.2014, Nilawati had told him that she wasproceeding to Solapur along with Daivashala for her personal work.She assured him that she would be back home by evening. PW 1 –Subhash dropped her off in the morning. He gave the description ofthe ornaments which were on her person, cellphone and black purseas well. It is further in his evidence that acquaintance betweenappellant Daivashala and Nilawati was developed just two monthsbefore the incident. The reason therefor was that the parental homesof both of them were at one and same village, Alamala. 16Cri Appeal Nos.499.2021 and 1059.201919.It is further in the evidence of PW 1 – Subhash that heasked his brother-in-law Siddheshwar Murge to visit the house of theappellant Daivashala. He, accordingly, went to her house on thefollowing day (on 23rd) to find it to have been locked. He againvisited Daivashala’s house on the next day (on 24th). He met withDaivashala to learn from her that Nilawati even did not come to herhouse. PW 1 – Subhash, therefore, lodged the missing person’sreport. It is further in his evidence that he received a sum ofRs.4,23,000/- on Supurtnama and spent the same. He received thegold ornaments, allegedly recovered pursuant to the disclosurestatement made by the appellant – Parmeshwar. 20.PW 1 – Subhash was subjected to searching cross-examination. He was confronted with the missing person’s report(Exh.72) referred to herein above. Said report is conspicuously silentto state therein about closeness between the appellant Daivashalaand his wife (deceased Nilawati) and the details about having paid asum of Rs.5 Lakhs by his wife to appellant Daivashala in twoinstallments. According to him, Nilawati (deceased) was agent ofPeerless Finance and Insurance Company (now defunct). He admittedto have no occasion to hear about any scheme in the world, whichwould give return of double the amount invested, within one and half 17Cri Appeal Nos.499.2021 and 1059.2019months. According to him, he gave understanding to his wife. Shewas, however, not responsive. According to him, his close relationswere practicing advocates. Ashtvinayak temple was neither close tohis house nor that of the house of appellant – Daivashala. Nilawatidid not obtain receipt from Daivashala of having invested amountwith her.21.PW 2 – Rajesh is a panch witness to recovery of amountof Rs.5,000/- paid to one Kishor Kamble, pursuant to the statementmade by appellant – Parmeshwar. PW 3 – Chandrashekher is awitness to have last seen the appellant - Daivashala and deceasedNilawati together. It is in his evidence that on 22.07.2014, he waspresent near the gate of Adarsh colony. He noticed a green colourcar proceeding from Shivaji Chowk to Ausa. Nilawati (deceased) wassitting on the back seat. One unknown lady had occupied a seat byher side. Appellant – Parmeshwar was driving the car. After 5-6days, he came to know Nilawati to have been murdered and it wascommitted by the appellants. It is further in his evidence that heknew appellant Parmeshwar since he would run a tea-stall nearNavgrah Shani temple and he used to visit the said stall for tea.During his cross-examination, it was brought on record that he metwith Subhash (PW 1) after he came to know about the murder. He 18Cri Appeal Nos.499.2021 and 1059.2019admitted that Subhash was his childhood friend. He did not informthe police to have seen the trio together. No test identificationparade was held. He identified appellant – Parmeshwar for the firsttime before the court. PW 1 – Subhash accompanied him to thecourt when his evidence was recorded. He admitted that it was after24 days, he received the phone call from the Police Inspector. Hethen went to the police station and gave his statement. It wasfurther brought on record in his cross-examination that near Adarshcolony, there was road-divider and plants and trees were grownthereon. He saw the car from other side of the road. He claimedignorance about the glasses of the car to have dark film on it22.PW 4 - Shivanand, PW 5-Dhanraj and PW 6 – Siddheshwarare the witnesses examined by the prosecution in proof of them tohave paid PW 1 - Subhash a sum of Rs.2,50,000/- for construction ofhouse (Rs.One Lakh each by PW 4 and PW 5 and Rs.50,000/- byPW 6). PW 1 – Subhash admitted that construction of first floor ofhis house was completed some days before the incident. Thesewitnesses were examined so as to make out the case that theamount received from them was paid to Nilawati for being, in turn,paid to appellant – Daivashala as investment in the scheme. We findevidence of these three witnesses of little relevance to further theprosecution case. 19Cri Appeal Nos.499.2021 and 1059.201923.On arrest of appellant – Parmeshwar, he allegedly madedisclosure statements on 2-3 days separately. PW 2 – Rajesh iswitness to one of such statements (Exh.90), pursuant to which a sumof Rs.5,000/- was seized from a person, Kishor Kamble.PW 7 –Laxmikant is a witness to the disclosure statement made byappellant – Parmeshwar on 01.08.2014. It is in his evidence that heattended Shivaji Nagar Police Station on 01.08.2014 in response tothe police call. Appellant – Parmeshwar first took them to one place,where there were three juice centres. He then pointed juice centreno.2 and then showed Ashtvinayak temple. He took them to Zari-Udgir road and pointed out one place. The police took some searchin the nearby and found a clutch-wire. It was seized underpanchnama. He identified the clutch-wire before the court.Photographs of the happenings were drawn. PW 7 – Laxmikant is alsoa witness to the seizure of the car (FIAT Uno, bearing registrationNo.MH-24-C-5505) under panchnama Exh.108. According to him, fourliquor bottles were found in the car. Those were seized.24.PW 8 – Sanjay is witness to other disclosure statementsmade by appellant – Parmeshwar on 03.08.2014. It is in his evidencethat appellant – Parmeshwar expressed his readiness to produce 20Cri Appeal Nos.499.2021 and 1059.2019ornaments, seat cover and purse. The memorandum statement is atExh.110. Appellant – Parmeshwar then took the police and panchasto his residence. He took out one paper containing something fromwooden showcase. Jewellery (gold ornaments) was wrapped in thatpaper. The police seized the same. The appellant – Parmeshwarthen took them to Sarthi Bar on Barshi road, whereat he had thrownthe cellphone of NOKIA company. The cellphone was not found there.Then, appellant – Parmeshwar took them to a bridge near villageDhoki. He took them under the bridge. At one place, they foundblack purse. On opening the purse, it found to have contained xeroxcopy of Election Card of Nilawati (deceased). Those articles wereseized. Then he took the police and panchas to a place on Solapurhighway within Indapur village. He pointed out the place whereat hehad dropped the dead body of Nilawati. Then, he took them nearvillage Yenegur and pointed the place whereat he had thrown theseat cover. No seat cover was found. Then they returned to thepolice station. A memorandum of entire exercise was drawn videExh.111.25.PW 9 – Sk. Majid is a witness to the arrest and physicalsearch panchnama (Exh.114) of appellant – Parmeshwar drawn on30.07.2014. A sum of Rs.8,000/- was seized from the appellant – 21Cri Appeal Nos.499.2021 and 1059.2019Parmeshwar in the presence of PW 9 – Sk. Majid. PW 10 -Purushottam is a witness to the panchnama Exh.116 drawn asregards seizure of cellphone of NOKIA make delivered to the policeby one Shri. Alte.26.PW 11 – Vijaykumar is witness to the disclosurestatement (Exh.119) made by appellant – Daivashala. It is in hisevidence that on 01.08.2014, appellant – Daivashala made astatement that she was ready to produce Rs.4 Lakhs, which wasconcealed by her in her house. Her statement was recorded. Shethen took the police and panchas to her residence. She took out onethermos and from the bottom thereof, the sum of Rs. 4 Lakhs wereseized under panchnama (Exh.120). According to him, there werethree bundles containing 256 currency notes of denomination ofRs.1,000/- each and three bundles of 288 currency notes ofdenomination of Rs.500/- each. In the cross-examination, thiswitness has denied to have been a stock witness of Shivaji NagarPolice Station. 27.PW 17 – Pranita was P.S.I., who recorded the FIR lodgedby PW 1 – Subhash. 22Cri Appeal Nos.499.2021 and 1059.2019Evidence relating to cellphones:-28.PW 18 – Amol was nephew of deceased Nilawati (sister’sson). It is in his evidence that he had obtained three sim cards ofBSNL under the scheme, “Krushi cards”. He had given one of thecards to his aunt Nilawati (deceased). He, however, did not recollectthe sim card number given to her. PW 20 - Gokul was Nodal Officer,B.S.N.L., Pune. He tendered in evidence certain informationdisclosing that sim card no.9403642031 was issued in the name ofAmol Konde (PW 18), nephew of deceased Nilawati. He tendered inevidence CDRs of said cellphone along with certificate under Section65B of Evidence Act. According to him, as per the CDR, on22.07.2014 at 09.22 a.m., there were outgoing calls from cellphoneno.9403642031 to cellphone no.7775925551. The tower location ofthe cellphone at that time was Ashtavinayak, Sector–III. According tohim, there was again another call from the very phone by 11.53 a.m.to cellphone no.7709911449. At that time, the tower location ofBSNL was Ashtavinayak, Sector – I. He referred the certificate underSection 65B of Evidence Act (Exh.157) issued under the signature ofMr.Vikas Mali, Sub-Divisional Engineer. According to him, Mr.Mali wasunable to come to the court and give evidence since he was in-charge of lock centre and responsibility of implementation ofintersection was with him. He could not leave Pune Headquarter. 23Cri Appeal Nos.499.2021 and 1059.201929.During cross-examination of PW 20 – Gokul, it wasbrought on record that on 22.07.2014, at at 12.45 p.m., the towerlocation of the cellphone of BSNL sim number was Kava, Latur.According to him, the certificate regarding tower location was notgiven. According to him, there was no incoming call on the saidBSNL phone number from cellphone no.7775925551 and7709911449. According to the prosecution, since there being nocalls between these cellphone numbers on 22.07.2014, sameindicates that both the persons namely, appellant – Daivashala anddeceased Nilawati were together and hence, there was no need forthem to interact on cellphone. This was the inference sought to besuggested by the prosecution. 30.PW 19 – Dattaram was Nodal Officer of IDEA Cellular Ltd.He tendered in evidence certain documents and CDRs of cell phoneno. 7775925551. His evidence indicates that said sim card wasissued in the name of appellant – Daivashala on the address of VijayColony, Samarth Nagar, Latur. He referred to the certificate underSection 65B of Evidence Act regarding CDRs and tower locations aswell. The documents tendered in evidence by him find place atExh.146 to Exh.158. According to him, they used to destroy theoriginal application of the subscriber after three years. He produced 24Cri Appeal Nos.499.2021 and 1059.2019on record scanned copy of the application duly filled in by appellant –Daivashala. It was at Exh.149. He referred to the certificate underSection 65B of Evidence Act in that regards (Exh.151) and the towerlocation chart (Exh.150). It is further in his evidence that during theperiod from 21.06.2014 by 12.47 p.m., there was first call fromcellphone no.7775925551 to cellphone no.9403642031. Accordingto him, thereafter, there were number of incoming and outgoing callsbetween the two cellphone numbers. 31.This suggests that both the cellphone holders namely,appellant – Daivashala and deceased Nilawati were contacting witheach other since 21.07.2014 to 22.07.2014. The last call fromcellphone no.7775925551 was to cellphone no.9823022139 by 12.45p.m. That time, location of cellphone no. 7775925551 was Adarshcolony, Latur, meaning thereby, appellant Daivashala had not leftLatur town. According to him, there was call between these twonumbers by 09.22 a.m. on 22.07.2014. The tower location of IDEAcellphone number was Saubhagya Nagar, Latur. On 22.07.2014itself, there was outgoing call from the very cellphone number tocellphone no.9823022139. That time, the tower location of thecellphone of appellant – Daivashala was Adarsh Colony, Latur. Samesuggests that even when PW 1 – Subhash dropped his wife at 25Cri Appeal Nos.499.2021 and 1059.2019Ashtavinayak temple, the appellant – Daivashala did not join her atleast until 12.45 p.m.32.Admittedly, there were no phone calls between thecellphone of appellant – Parmeshwar and deceased – Nilawati. Thetrial court, relying on the evidence of the officials of the cellularcompanies, reproduced in its judgment the details of relevant callsbetween the concerned phone numbers. For ready reference, weproduced the same below:-Calling No.Calling partyCalled No.Called party Time of callLocation ofcalling no./partyLocation ofcalled no./partyDATE : 21.07.20147775925551Accused no.1Daivashala9403642031Deceased Nilawati13.27Saubhagaya Nagar, LaturLatur WTR, Sector-39156509080Accused no.2Parmeshwar7775925551Accused no.1Daivashala17.48-Saubhagaya Nagar, Latur9156509080Accused no.2Parmeshwar7775925551Accused no.1Daivashala18.08-Saubhagaya Nagar, Latur9156509080Accused no.2Parmeshwar7775925551Accused no.1Daivashala18.10-Saubhagaya Nagar, Latur7775925551Accused no.1Daivashala9403642031Deceased Nilawati20.19Saubhagaya Nagar, LaturMajge Nagar, Latur, Sector 3DATE : 22.07.20149403642031Deceased Nilawati7775925551Accused no.1Daivashala9.22 a.m.AshtavinayakSector III, LaturSaubhagaya Nagar, Latur9156509080Accused no.2Parmeshwar7775925551Accused no.1Daivashala11.17-Saubhagaya Nagar, Latur 26Cri Appeal Nos.499.2021 and 1059.20199689738389-9975677495Accused no.2Parmeshwar11.48-Shivaji Chowk (Mainroad), Latur9156509080Accused no.2Parmeshwar7385880230Accused no.1Daivashala11.49--9403642031Deceased Nilawati7709911449-11.53 a.m.AshtavinayakSector I,Latur-9156509080Accused no.2Parmeshwar7383880230Accused no.1Daivashala11.56--9156509080Accused no.2Parmeshwar7383880230Accused no.1Daivashala12.03--7775925551Accused no.1Daivashala9823022139-12.45 p.m.AdarshColony, Latur-DATE : 23.07.20149975677495Accused no.2Parmeshwar7775925551Accused no.1Daivashala11.20 a.m.Mulaj, Tq. Omerga, Dist.Osmanabad-9156509080Accused no.2Parmeshwar7385880230Accused no.1Daivashala11.24--7775925551Accused no.1Daivashala9957677495Accused no.2Parmeshwar11.26 a.m.Saubhagya Nagar, LaturMulaj, Tq. Omerga, Dist.Osmanabad9975677495Accused No. Parmeshwar7775925551Accused no.1Daivashala11.49 a.m.Mulaj, Tq. Omerga, Dist.Osmanabad-DATE : 24.07.20147383880230Accused no.1Daivashala9156509080Accused No.2Parmeshwar08.10 --7383880230Accused no.1Daivashala9156509080Accused No.2Parmeshwar09.49 --33. The aforesaid is the evidence in the case besides theevidence of the Investigating Officer (PW 23 – Deepratna). We donot propose to refer to his evidence in extenso, since what he doneas part of investigation, has already been referred to herein above, 27Cri Appeal Nos.499.2021 and 1059.2019which has come on record through the oral evidence of theprosecution witnesses.34.In our view, the trial court relied on the evidence whichwas inadmissible. The appellant – Daivashala examined her brotherand other witnesses in her defence to show that her brother hadraised loan and paid Rs.4 Lakhs to his son-in-law (son of appellantDaivashala). It needs no mention that the accused can make outdefence based on preponderance of probabilities. The burden toprove the charge beyond reasonable doubt rests on the prosecutionthroughout the trial. It is only in certain circumstances, if someevidence in the nature of last seen together or recovery of certainarticles relevant to the crime is proved, it is for the concernedaccused to explain.35.The question is, whether, based on the aforesaidevidence, the prosecution brought home the charge. In our view, theanswer is “No”.36.It is reiterated that the case was based on circumstantialevidence. The motive was said to be avoidance of repayment ofRs.5 Lakhs received by Daivashala from deceased Nilawati as 28Cri Appeal Nos.499.2021 and 1059.2019investment to be paid back within one and half months with doublethe amount invested. True, the deceased Nilawati met withhomicidal death. PW 1 – Subhash did not state that the amount waspaid to appellant Daivashala by deceased Nilawati in his presence.Admittedly, no receipt was obtained from appellant Daivashala of theamount paid to her. Although PW 4, PW 5 and PW 6 were examinedin proof of having lent a sum of Rs.2.5 Lakhs to PW 1, his (PW 1)evidence is silent to state this amount was paid to his wife for being,in turn, paid to appellant Daivashala. True, the C.D.R. of thecellphones used by both appellant Daivashala and deceased Nilawatiindicate that there was proximity between the two. It is not knownas to why the factum of payment of Rs.5 Lakhs to appellantDaivashala as deposit in the scheme finds no mention in the missingperson’s report. Even, the name of appellant - Daivashala does notfigure therein as a friend of Nilawati with whom she proposed to goto Solapur for her personal work. The FIR was lodged by 30.07.2014,i.e. eight days after Nilawati did not return home. True, the missingperson’s report was lodged on 24.07.2014, i.e. two days after thedeceased left the home with the promise to return by the evening ofthe same day. Although PW 1 – Subhash testified that he had askedhis brother-in-law, PW 6 – Siddheshwar, to visit the home of appellantDaivashala and he, accordingly, visited and found her house to have 29Cri Appeal Nos.499.2021 and 1059.2019been locked; and on the following day, he met her to learn deceasedNilawati to have not even come to her, the same is hearsay, sincePW 6 – Siddheshwar did not speak anything about having visited theresidence of appellant Daivashala on the direction of PW 1 – Subhashor even, on his own, on 23.07.2014 and 24.07.2014. He wasexamined only to prove that he lent a sum of Rs.50,000/- forconstruction of house. PW 1 – Subhash being husband necessarilytook search for his wife for two days. It is, however, not known as towhy he took two days to lodge the missing person’s report. Thedeceased was using cellphone no. 9403642031 is taken to beproved, since mention thereof finds place in the missing person’sreport that was lodged long before the crime was registered. Saiddocument could be read in evidence as it is. The FIR and oralevidence of PW 1 – Subhash is silent to explain the delay of six daysin lodging the FIR. Admittedly, he learnt on 26.07.2014 itself that hiswife was done to death by someone. Still, he took four days to lodgethe FIR. It is categorically admitted in his evidence that in his family,there were two practicing advocates: one was his uncle and theother was his cousin. Both of them were present in the court on theday his evidence was recorded. 30Cri Appeal Nos.499.2021 and 1059.201937.We need not emphasize the importance of lodging theFIR promptly/immediately. The delay of six days in lodging the FIRremained unexplained.38.Appellant Daivashala allegedly made disclosurestatement, pursuant to which a sum of Rs.4 Lakhs came to be seizedunder panchnama drawn in the presence of PW 11 – Vijaykumar.Admittedly, even if we accept the case of the prosecution that thedeceased had paid the appellant Daivashala a sum of Rs.5 Lakhs,there is no evidence to indicate the denomination of currency notespaid to Daivashala. Admittedly, no receipt of payment was obtained.PW 4, PW 6 and PW 7 were examined in proof of having paid theamount to PW 1 – Subhash as financial assistance for construction ofnew house. They too did not describe the denomination of currencynotes they paid to PW 1 – Subhash. We are conscious of the fact thatno person in relation would make record of the currency notes orevidence as proof of payment. We are dealing herein with theoffence for which minimum sentence is of life imprisonment. Now,we deal with the evidence of recovery of Rs.4 Lakhs, pursuant to thedisclosure statement of appellant Daivashala. The memorandum/panchnama indicates that she made disclosure statement pursuantto which Rs.4 Lakhs came to be seized from the bottom of a 31Cri Appeal Nos.499.2021 and 1059.2019thermos. By no stretch of imagination, we can conclude that theamount recovered or seized pursuant to the disclosure statementmade by the appellant Daivashala was the amount she had receivedfrom the deceased Nilawati. If we read the statement of the panchwitness in whose presence the appellant Daivashala made disclosurestatement, the same nowhere states that she would be taking them(police and panchas) to her house to take out and deliver the amountreceived from deceased Nilawati. As such, the amount recoveredfrom appellant Daivashala pursuant to the disclosure statementwould, in no way, be termed to be relevant under Section 27 of theEvidence Act. So is the case about recovery of various amounts atthe instance of appellant – Parmeshwar from himself when he wasarrested and from two other persons pursuant to the disclosurestatements made by him. The currency notes recovered did not bearearmark to attribute them to have belonged to deceased Nilawati.Last Seen :-39.PW 3 - Chandrashekhar, who claimed to have had seenthe appellant Parmeshwar driving the car, wherein deceased Nilawatihad occupied back seat along with unknown lady, was, admittedly, achildhood friend of PW 1 – Subhash, husband of deceased. Hehappened to be a chance witness, if we accept his evidence as it is. 32Cri Appeal Nos.499.2021 and 1059.2019On the given day, he claimed to have been to Adarsh Nagar colony,a place away from his residence. His evidence indicates that theroad whereat he was, had divider. There were trees grown on thedivider. He was on the other side of the road. The car must havepassed within seconds. The car seized by the Investigating Officer,in which the trio allegedly traveled towards Solapur, had dark film onits glasses. According to him, one unknown lady was sitting by theside of deceased Nilawati. On arrest of appellant Daivashala, no testidentification parade was held. He (PW 3) identified Daivashala firsttime before the court three years after the incident. We find hisevidence to be not reliable for more than one reasons. He was achildhood friend of husband of the deceased. He admitted to havehad learnt about Nilawati to have been murdered within six days ofthe incident as a news in that regard had been flashed in the daily.When he was close and childhood friend of the PW 1 – Subhash(informant), it could have been natural and moral obligation on hispart to immediately approach the police station and report the same.His evidence indicates that Shivaji Nagar Police Station was on hisway home. He kept mum for about 20 days post incident. Headmitted that he was called by the police after 20 days of theincident and then, his statement was recorded. True, theInvestigating Officer was not put any question, as to delayed 33Cri Appeal Nos.499.2021 and 1059.2019recording of the statement of this witness. The fact remains that theconduct of this witness in not approaching the police withinreasonable time and reporting the matter, goes a long way todisbelieve him and even accept the contention of the appellants thathe being a brought up witness to make out the case of last seentheory. 40.We have perused the authorities relied on by learned APPin relation to delayed recording of statement. Learned APP has reliedon the judgment of Apex Court in the case of State of U.P. Vs.Satish, 2005 Cri. L.J. 1428, which read thus thus:-(B)Criminal P.C. (2 of 1974), S.161 – EvidenceAct (1 of 1872), S.3 – Examination of witness byInvestigating Officer – Delay – Does not ipso factomake prosecution version suspect – For thatInvestigating Officer has to be categoricallyquestioned on aspect of delayed examination –Case of rape and murder – Delay in examinationof witnesses by I.O. - I.O. not asked about delay –Disbelieving version of witnesses, improper.(C)Penal Code (45 of 1860), S.376, S.300 –Rape and murder of child – Case based oncircumstantial evidence – Circumstance of “lastseen together” – Positive evidence of witnesses thatthey had seen accused carrying deceased onbicycle – one witness had seen accused inperplexed state near place where dead body was 34Cri Appeal Nos.499.2021 and 1059.2019found – under-garments of accused and deceasedrecovered during investigation – absence of nameof accused in F.I.R. explained – Delay inexamination of witnesses, but I.O. not questionedon aspect of delay – Acquittal of accused ongrounds of absence of name of accused in F.I.R.,delay in examination of witnesses and thatpresence of accused nearby place from where deadbody was recovered is only a suspiciouscircumstance – Not proper.Learned APP also relied on the decision of the Apex Courtin the case of Gautam Joardar Vs. State of West Bengal,2021(12) SCALE 339, wherein it has been observed thus:-………………… It is true that there was somedelay in recording the statements of the concernedeye-witnesses but mere factum of delay by itselfcannot result in rejection of their testimonies.41.Mr.Ostwal, learned counsel for appellant, relied on thethree-Judge bench of the Apex Court in the case of Ganesh BhavanPatel and anr. Vs. State of Maharashtra, (1978)4 SCC 371,wherein it has been held thus:-Criminal Procedure Code, 1973 – Section 161 – Delayin examining eye-witnesses by the InvestigatingOfficer, can on the peculiar facts of a case, amount toserious infirmity in the prosecution case.---- 35Cri Appeal Nos.499.2021 and 1059.2019----Criminal Procedure Code, 1973 – Section 154 – Delayin recording FIR, on facts, held fatal to theprosecution case.It has also been observed in paragraph 15 as under :-15.As noted by the Trial Court, one unusualfeature which projects its shadow on the evidence ofP.Ws., Welji, Pramila and Kuvarbai and casts a seriousdoubt about their being eyewitnesses of theoccurrence, is the undue delay on the part of theinvestigating officer in recording their statements.Although these witnesses were or could be availablefor examination when the investigating officer visitedthe scene of occurrence or soon thereafter, theirstatements under Section 161 Cr. P.C. were recordedon the following day. Welji (P.W. 3) was examined at 8a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1p.m. delay of a few hours, simpliciler, in recording thestatements of eyewitnesses may not, by itself, amountto a serious infirmity in the prosecution case. But itmay assume such a character if there are concomitantcircumstances to suggest that the investigator wasdeliberately marking time with a view to decide aboutthe shape to be given to the case and the eyewitnessesto be introduced. A catena of circumstances whichlend such significance to this delay, exists in theinstant case. 42.In our view, it would depend upon the facts andcircumstances of each case, whether delayed recording of statementwould be fatal to the prosecution. If the Investigating Officer is in 36Cri Appeal Nos.499.2021 and 1059.2019the know from day one of registration of the crime that certainpersons are eye witnesses to the incident and/or recording theirstatement is necessary as a part of investigation, he must makeefforts to approach them and record their statements at the earliest.If any delay occasions in recording of statement of such witness, it isfor him to explain, since he is in the know of those witnesses beingthere. It is equally true that the person who has witnessed the crimemust, at the earliest point of time, approach the concerned policestation and give statement or else offer explanation as to why did heapproach late. The explanation has to be plausible and acceptable.43.Now, turning to the fact of the present case, it isreiterated that PW 3 – Chandrashekhar was the childhood friend ofthe informant (PW 1). He had seen the trio proceeding in the car on22.07.2014 itself. Within six days, he learnt Nilawati to have beendone to death. A news report regarding murder of Nilawati wasflashed in the daily, still, he did not approach the concerned policestation to give his statement regarding last seen trio together. It ison 20th day, he received phone call from the police station. Inresponse thereto, he goes to police station and gives statement. Itwould, therefore, be anybody’s guess as to why he had not beencalled by the police. Had he been called immediately, he would have 37Cri Appeal Nos.499.2021 and 1059.2019given statement under Section 161 of Cr.P.C. There is also noevidence to indicate as to how come the Investigating Officerrealised that it was necessary to record the statement of PW 3 -Chandrashekhar. We find substance in the contention of learnedcounsel for the appellants that PW 3 – Chandrashekhar is a plantedwitness. 44.When the last seen theory is not believed, it is not for theappellants to offer any explanation, as to what had happened withone of their companions or when did they parted their ways. In thefacts and circumstances of the present case, we find that theappellants did not owe any explanation or under obligation todisclose within their exclusive knowledge, in view of Section 106 ofEvidence Act. Reliance on the judgment of Apex Court in the case ofAnees vs. State Govt. of NCT, (Criminal Appeal No.437 of2015, decided on 03.05.2024), relied on by learned APP would,therefore, be of little assistance to the prosecution. In the veryjudgment, it has been observed that the courts should apply Section106 of Evidence Act in criminal case with care and caution. It cannotbe said that it has no application to criminal case. It has beenobserved in paragraphs 44 of 45 of the judgment as under:-