Bombay High Court
SURESH @ BALASAHEB BAPURAO SATPUTEversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
Holding
The appeal is allowed; the conviction under IPC s.302 is set aside and the appellant is acquitted.
Summary
The appellant Suresh Satpute was convicted by a Sessions Court for murder under IPC s.302, sentenced to life imprisonment and a fine. He appealed, arguing that the prosecution relied solely on circumstantial evidence without proving motive, the "last seen together" theory, or the authenticity of the voter ID card and weapon recovered at the scene. The appellate court examined the lack of a complete chain of circumstances, the hostile turn of key witnesses, the inadmissibility of a Section 164 statement as substantive evidence, and the open nature of the spot where the ID card was found. It also noted the medical evidence allowed a wide time gap between the last sighting and the estimated time of death, creating reasonable doubt. Concluding that the prosecution failed to prove guilt beyond reasonable doubt, the court allowed the appeal, set aside the conviction, and acquitted the appellant.
Issues considered
- The prosecution proved the murder beyond reasonable doubt using circumstantial evidence
- Whether a motive was established sufficient to sustain a conviction under IPC s.302
- Reliability of the "last seen together" theory and identification of the deceased with the appellant
- Admissibility and evidentiary value of a statement recorded under CrPC s.164
- Significance of the appellant's voter ID card found at the spot
- Weight of the recovered weapon and blood‑stained clothes obtained at the appellant's instance
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 481
- Code of Criminal Procedure, 1973 — s. 157, 164, 313
- Indian Evidence Act, 1872 — s. 157
- Indian Penal Code, 1860 — s. 302
Subjects
- murder
- circumstantial evidence
- reasonable doubt
- IPC 302
- CrPC 313
- CrPC 164
- Evidence Act 157
- voter ID card
- weapon recovery
- acquittal
- Bharatiya Nagarik Suraksha Sanhita
Judgment
1 of 40 901-apeal-803-24 (J).odt
Gokhale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 803 OF 2024
Suresh @ Balasaheb Bapurao Satpute ..Appellant
Versus
The State of Maharashtra & Anr. ..Respondents
INTERIM APPLICATION NO. 2947 OF 2024
IN
CRIMINAL APPEAL NO. 803 OF 2024
__________
Mr. Satyavrat Joshi a/w. Nawaz Dordi for Appellant.
Ms. Kranti T. Hiwrale, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL &
ASHISH S. CHAVAN, JJ.
DATE : 9 & 10 JULY 2026
JUDGMENT : (PER SARANG V. KOTWAL, J.)
1. The Appellant has challenged the Judgment and order
dated 05.07.2024 passed by the learned Additional Sessions
Judge, Pune, in Sessions Case No.281 of 2020. The Appellant was
convicted for commission of the offence punishable U/s.302 of the
IPC and was sentenced to suffer R.I. for life and to pay a fine of
Rs.Three lakhs and in default of payment of fine to suffer S.I. for
six months. He was granted set off for the period he had
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2026.07.16
10:36:09
+0530
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undergone in jail. Out of the fine amount recovered, an amount of
Rs. Two lakhs was directed to be paid to the complainant.
2. Learned counsel for the Appellant has added the
complainant as a party respondent. The office note shows that the
complainant was served.
3. Heard Mr. Satyavrat Joshi, learned counsel for the
Appellant and Ms. Kranti Hiwrale, learned APP for the State.
4. The prosecution case, in brief, is that the Appellant was
introduced to one Vilasrao by one Shendge. The Appellant had a
plot of land at village Walne. Vilasrao was interested in purchasing
that plot. They entered into a transaction in the year 2018. It is the
case of the prosecution that, on 07.11.2019 the Appellant called
Vilas and told him that they needed to go to the Appellant’s plot
for measurement of the plot. Both of them left Pune in the
morning on 07.11.2019. According to the prosecution case, when
they were at the spot i.e. the plot of the Appellant, the Appellant
inflicted blows with a knife on the chest and abdomen of Vilas;
who succumbed to the injuries. The dead body was thrown nearby.
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The Appellant changed his clothes and concealed the weapon and
his clothes at some other place. He called and told Shendge that
something had happened and Shendge should switch off his
mobile phone. Since Vilas did not return home till late in the night,
Vilas’s wife tried to contact on his phone, but the phone was
switched off. She called Shendge, but he did not have any
information. On the next day morning, she went to Deccan police
station and lodged a complaint that Vilasrao was missing since
07.11.2019. On 09.11.2019 Vilasrao’s dead body was discovered in
the plot of the Appellant. Vilasrao’s wife and son were taken to the
spot. They identified the dead body. Vilasrao’s wife lodged the FIR
which was registered vide C.R.No.473 of 2019 at Paud police
station. The Appellant was arrested on 09.11.2019 itself. The
investigation was carried out, the spot panchanama and other
panchanamas were conducted and the dead body was sent for the
postmortem examination. The Appellant’s clothes and the weapon
were recovered at his instance. The statements of various
witnesses were recorded. Shendge’s statement was recorded
U/s.164 of the Cr.P.C. and at the conclusion of the investigation the
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charge-sheet was filed. The case was committed to the Court of
Session.
5. During trial, the prosecution examined fifteen witnesses
including the wife and the son of the deceased, the
aforementioned Shendge, the Medical Officer and the panchas.
Two witnesses were examined on the theory of ‘last seen together’
but they turned hostile. The prosecution also examined the Nodal
Officer of the telephone number used by the deceased, and finally
the investigating officers were examined.
6. The defence of the Appellant was specific. He filed a
written statement U/s.313 of the Cr.P.C. He stated in that
statement that, he himself, the deceased Vilasrao and the witness
Santosh Shendge were in the business of sale and purchase of
land. They were knowing each other. The Appellant had a plot at
Gat No.98/2 at village Walne, admeasuring 13 gunthas. A
transaction was entered into between the Appellant and the
deceased. The Appellant had taken Rs. One lakh as earnest money
and the balance amount was to be paid by Vilasrao. The
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transaction was entered into through a notarised document on
03.12.2018, but the time for executing the sale deed was not
decided. It was only decided that the sale deed would be executed
after the measurements were carried out. Accordingly, the
Appellant had made an application for measurement in the year
2019, but the measurement could not take place. There was no
dispute between himself and the deceased. Their relations were
good. They used to contact each other telephonically on some
occasions. They used to discuss other transactions. The deceased
and Shendge used to enquire with the Appellant regarding any
other available plots and the Appellant also similarly used to
enquire with those two. On 07.11.2019, around 9:00a.m. he had
called the deceased on the mobile phone. That was because the
deceased himself had asked him about availability of any plot. The
Appellant telephonically told him on 07.11.2019 that there was no
plot available for purchasing. The Appellant has further stated in
his statement that he did not personally meet the deceased. After
that, the Appellant went to his village Walne. He went to his
house. He met his relatives at another village and he returned to
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Pune. In the evening at around 5:00p.m. he had called Shendge on
his phone to enquire whether any land was available for purchase.
However, the voice was not audible and the call did not go further.
After that on 09.11.2019, he was arrested by the police. They
removed his Voter ID card and other documents. According to the
Appellant, the deceased was in the business of transaction of lands
and was also giving money on interest. Therefore, he was on
inimical terms with others. Somebody else had committed his
murder and threw the dead body in the Appellant’s agricultural
field and, therefore, the police had arrested him on suspicion, and
because of the same reason, the wife and the son of the deceased
had deposed against him.
7. Learned Trial Judge disbelieved the defence. He relied
on various circumstances. He referred to the fact that the dead
body was found in the agricultural field of the Appellant, the
recovery of weapon and clothes at his instance and the past
transaction. Learned Judge also relied on the narration given by
Shendge in his statement recorded U/s.164 of the Cr.P.C., wherein,
he had mentioned that the Appellant had called him in the evening
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and had told him that something had happened and Shendge
should switch off his mobile phone. Learned Judge relied on these
circumstances to reach his conclusion that the Appellant had
committed this offence.
8. The FIR in this case was lodged by PW-1 Vidya Sabne.
She was the wife of the deceased. Her evidence is important. She
deposed that her husband Vilasrao was looking after the finance
for the people who wanted loan from the banks. Shendge was his
friend. The Appellant wanted to sell his agricultural land at village
Walne. Shendge had informed PW-1 Vidya’s husband regarding the
same. The talks of this transaction were going on for about one
and a half year. PW-1 herself, her husband, the Appellant and one
more person had gone to the said land. It was admeasuring 13
guntha and the Gat number was 298/2. Since P.W.1 and the
deceased liked the land, they had decided to purchase it. The
agreement was executed on 03.12.2018. PW-1 and the deceased
were to purchase that land for Rs.9,10,000/-, out of which, Rs.One
lakh was paid in cash. Rs. Four lakhs were paid to the Appellant
through cheque. The balance amount was to be paid after one or
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two years from the transaction. Accordingly, the agreement was
executed on 03.12.2018. It was a notarized document. It is
produced on record at Exhibit-34.
9. PW-1 further deposed that, at 9:00a.m. on 07.11.2019
the Appellant had made a phone call to her husband and had told
him that they had to attend the measurement of the land. The
Appellant told her husband that he did not have a vehicle and
requested PW-1’s husband to take him on his motorcycle from
Chandani chowk. Accordingly, PW-1’s husband (the deceased
Vilasrao) left the house on his motorcycle at about 9:15a.m. PW-1
made a phone call to him at around 12:00p.m. At that time,
Vilasrao told her that he and the Appellant were at the said plot,
but nobody had reached for measurement. At about 2:00p.m. her
son Prathamesh sent a message on Vilasrao’s mobile phone
informing him about the requirement of fees for his course. At that
time, her husband had told her son that there was an issue with
the network of his mobile phone. At about 5:00p.m., PW-1 again
called her husband. This time the call was connected for some
time, but then the phone was switched off. After that, she tried
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many times to contact her husband, but his phone was
unavailable. It was switched off. PW-1 then called Santosh
Shendge at about 12:30a.m. He informed her that the Appellant
had called him at about 5:00p.m. and had told him to switch off
his mobile phone. On 08.11.2019 at about 6:00a.m. she again
called Santosh and told him that the deceased had not returned
home. He advised PW-1 to go to Deccan police station and give a
complaint. Accordingly, she went to Deccan police station and gave
her complaint regarding the missing of her husband. The
complaint is produced on record at Exhibit-35. An N.C. was
registered on that basis. She further deposed that, on 09.11.2019,
at about 11:00a.m., she went to make an enquiry at Deccan police
station. At around 12:30p.m. the police officers from Paud police
station called Deccan police station and informed them that a dead
body was found in Gat No.298/2 at village Walne. The police took
PW-1 and her son to the village Walne at the spot. She noticed that
their motorcycle was parked on the road near that spot. The dead
body of her husband was lying near the compound. There were
incised wounds on the chest and stomach. There was blood seen at
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the spot. Her husband’s mobile phone, the spectacles and the cover
of the spectacles were lying at that spot. The police conducted the
spot panchanama. She added that the Appellant’s voter ID card
was also found at the spot. The police took the photographs. After
that the dead body was sent for postmortem examination. On
09.11.2019 itself she gave her FIR at Paud police station. It is
produced on record at Exhibit-37. She produced the documents
showing the payment of Rs. four lakhs to the Appellant. She
identified the mobile phone and the other articles. She also
identified the Appellant’s voter ID card produced in the Court.
She was cross-examined by the learned Advocate on
behalf of the Appellant. In the cross-examination, she stated that
she got married with the deceased in the year 1997. Her husband
was handling loan transactions through banks. Her husband used
to operate the said work from home. He did not have an office. She
did not know with which banks he was associated with. She accepted
that her husband was acting as an agent in sale and purchase of the
lands. Her husband never used to discuss the transactions with her.
He was not telling her every time when he used to go out. Her son
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was studying in Garware college. His college timing was between
8:00a.m. to 12:00p.m. She herself was an agriculturist. Her
husband did not have any agricultural land. She did not have any
7/12 extract in her name showing the ownership of an agricultural
land. The Gat No.298/2 was an agricultural land. She was not
aware whether that plot was an agricultural land or whether it was
converted to a non agricultural land. She further deposed that,
before that transaction, her husband had not entered into the
transaction of land in her name. PW-8 Santosh had brought the
proposal of this transaction to her husband. He was knowing her
husband since a long time. PW-8 Santosh had introduced the
Appellant to the deceased. Her husband knew about the residence
of the Appellant. They knew that the Appellant was a Sarpanch
and was residing at Bawdhan. She had noted the Appellant’s
mobile phone number on a piece of paper. She admitted that PW-8
Santosh was not present when the agreement for that land was
executed. They did not know how much commission the Appellant
paid to Santosh for this transaction. She denied the suggestion that
the deceased was to take monetary dues from many people and
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because of that there was dispute with many people. She admitted
that after execution of the document regarding agreement for sale,
she had not given any notice for executing the sale deed. She had
not lodged any complaint against the Appellant to the police and
she had not lodged any civil suit. She herself had not gone to the
concerned office requesting for measurement. She stated that the
Appellant’s plot at village Walne was surrounded by other houses.
It was an open piece of land. There was only a compound.
Anybody could enter and leave that land.
In her cross-examination, she further stated that she
had called the Appellant on 07.11.2019 in the night. She had
called him at around 5:30p.m., as well. She admitted that, when
she had gone to the plot, the police had not brought the dog
squad. She denied the suggestion that she was deposing false.
10. In this context, her complaint regarding the missing of
her husband is important which is brought on record at Exhibit-35.
In that complaint, there is a reference to the transaction regarding
the Appellant’s land. The complaint further mentions that on
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07.11.2019 at about 9:00a.m. the deceased had left the house
telling her that he was going to the village Walne for the
measurement of the land. At about 12:00p.m. when she called
him, he informed her that he and the Appellant had reached the
plot at village Walne, and that the concerned officers for the
measurement had not yet reached. After that there was no contact
between PW-1 and the deceased. His mobile phone was switched
off. She had given the registration number of her two wheeler. This
is the complaint lodged by her. There is no expression of suspicion
against the Appellant in this complaint. It was lodged at 1:00p.m.
on 08.11.2019 as per the entry in the police station diary. There is
no reference to her call to Santosh Shendge or to her call to the
Appellant.
11. The FIR lodged by her at Paud police station is produced
on record at Exhibit-37. The FIR was lodged at 9:55p.m. on
09.11.2019. Her FIR sufficiently corroborates her deposition.
However, there is one significant aspect about this FIR. This FIR
mentions that the mobile phone and the spectacles were found at
the spot, but there is no reference to the Appellant’s voter ID card
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having been found at the spot. This fact is important in the context
of the case. This is to be read in the background of the fact that the
spot panchanama was conducted on 10.11.2019 and the FIR was
lodged on 09.11.2019 after the first informant had seen the spot of
the incident and the dead body.
12. PW-2 Prathamesh Sabne was the son of the deceased. He
has corroborated the evidence of PW-1 Vidya. He had sent a
message to his father at 02.05p.m. on 07.11.2019 asking for fees
of Rs.650/- for his coding course. His father had sent a reply to his
message by informing him that there was no network on his
mobile phone. He then deposed about the enquiries they made
with PW-8 Santosh and then about the lodging of the complaint
regarding his father not having returned home. He further deposed
that on 09.11.2019 at about 12:30p.m. they had gone to the spot
i.e. the field of the Appellant. He had seen their motorcycle. He
had seen the dead body. He had seen his father’s mobile phone and
spectacles. But again, significantly there is no reference to the
Appellant’s voter ID card.
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In the cross-examination, he deposed that his father
used to discuss about his transactions with PW-2. He accepted that,
after they had lodged the complaint about his father having gone
missing, they had not gone to the village Walne. They had not
gone to the house of the Appellant. He could not tell whether they
had lodged the FIR after holding discussion with his relatives.
13. PW-3 Gulab Bhingare is an important witness. He was a
pancha for the inquest panchanama and the spot panchanama. He
was called by the police from the Tahsildar’s office Paud on
09.11.2019. They conducted the inquest panchanama. It is
produced on record at Exhibit-47. This panchanama was
conducted on 09.11.2019. He deposed that he was again called by
Paud police on the next day. They went to the spot at village Walne
at 8:30a.m. on 10.11.2019. The spot panchanama was conducted.
The police seized the motorcycle and spectacles belonging to the
deceased and the blood stained earth from the spot of the incident.
They also seized the Appellant’s voter ID card. The spot
panchanama produced at Exhibit-48 shows that it was conducted
between 9:00a.m. to 10:00a.m. on 10.11.2019.
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14. PW-4 Dr. Sunil Patil had conducted the postmortem
examination on 09.11.2019 between 11:05p.m. to 11:55p.m. He
deposed that the dead body was totally decomposed. Maggots had
formed. Bulging of eye was also seen. Peeling of the skin was
present all over the body. Rigor mortis had passed off. He found
the following injuries:
i) CLW over the chest below neck in center at chest
measuring 1 x 1cm. Three CLWs of such type
were found.
ii) CLW of 5 x 1cm and 2cm deep over right breast
on chest underline ribs seen.
iii) CLW over left breast and underline bone seen
admeasuring 9 x 1.5cm.
iv) Four CLW over left side of abdomen of size 2cm.
v) CLW over umbilicus over abdomen measuring 5 x
3cm, intestine coming out from it.
vi) Skin peeling present over forehead, both hands,
legs and back.
15. The fracture was noticed below the injury Nos.2 and 3.
The cause of the death was mentioned as “Cardio respiratory
arrest due to asphyxia due to shock due to multiple grievous
injuries over body”. The postmortem notes are produced on record
at Exhibit-52. He deposed that, as per the postmortem the
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deceased had died about 48 hours before the postmortem
examination. This statement is important. Though it is not
mentioned in the postmortem notes, but according to him, the
deceased had died about 48 hours before the postmortem
examination. The postmortem examination was conducted on
09.11.2019 at 11:05p.m. Therefore, as per his deposition, the
murder was committed 48 hours before that time i.e. around
11:00p.m. on 07.11.2019 or before that.
In the cross-examination, he accepted that, from the
postmortem examination he could not form an opinion about the
exact time of death, but on the basis of the fact that rigor mortis
had completely passed off and maggots had formed, he had opined
that the death was caused prior to 48 hours. He accepted that the
presence or absence of rigor mortis would depend on the condition
of the atmosphere.
16. PW-5 Devanand Suravase was a pancha for seizure of
clothes of the deceased. That panchanama is produced on record
at Exhibit-55.
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17. PW-6 Rahul Nalawade was an important pancha. He was
examined to prove the recovery of weapon and clothes at the
instance of the Appellant. However, he was declared hostile as he
did not support the prosecution case in his examination in chief.
He deposed that, he was called to Paud police station on
12.11.2019. He went there at about 9:30a.m. The Appellant was
present in the police station. The appellant asked them to
accompany him for the panchanama. He had not stated about the
place where he was leading them. The Appellant took them to
Walne village. The Appellant led them at some distance. PW-6
stated that he waited near the vehicle. The Appellant and the
police went ahead. He did not know what happened after that. He
further deposed that the Appellant took out the clothes and
something and gave those articles to the police. The police then
wrote down something and took his signature. He had signed on
the say of the police. He had not read what they had written. He
accepted his signatures on those documents. He was declared
hostile.
In the cross-examination conducted by the learned APP,
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he denied the suggestion that the Appellant had told the police
that he would take out the clothes and the weapon. He denied the
suggestions that the Appellant led the police and panchas to Gat
No.298/2 at village Walne, and then he took out the clothes and a
knife from the bushes. In short, he did not support the prosecution
on this important aspect. The memorandum panchanama is
produced on record at Exhibit-57 and it was subsequently proved
through the evidence of the investigating officer.
18. PW-7 API Balasaheb Makad had taken down the
complaint given by PW-1 Vidya on 08.11.2019 regarding the
missing of her husband (the deceased). He then informed about it
to the control room and handed over the investigation to PSI Mete.
In the cross-examination, he admitted that he himself
did not go to the house of the Appellant for the investigation.
19. PW-8 Santosh Shendge is another important witness. He
deposed that he was knowing the deceased. According to him, the
deceased was handling loan transactions. The deceased was
having loan transaction with the Appellant. According to him, the
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Appellant was working as an estate agent. The deceased and the
Appellant had entered into the transaction regarding the land at
village Walne. PW-8 was not aware of the details. On 07.11.2019,
in the evening, the Appellant called him telephonically between
5:00p.m. to 6:00p.m. He could not hear the conversation properly;
therefore, he had switched off his phone. After that, at about
12:30a.m. in the night, PW-1 Vidya called him and enquired about
the deceased. He informed her that the deceased was not with
him. He also told her that the Appellant had called him on his
phone. On the next morning, he met PW-1 Vidya and PW-2
Prathamesh. He went to Deccan police station with them. PW-1
Vidya gave a complaint about missing of her husband.
Subsequently, he came to know about the murder of the deceased.
He admitted that, when the police recorded his statement, he had
not told the police that the Appellant had called him telephonically
and had told him to switch off his mobile phone. His statement
was recorded U/s.164 of the Cr.P.C. He accepted that his statement
was recorded as per his say. It is produced on record at Exhibit-65.
In the cross-examination, he admitted that he was not
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aware as to with whom and where the deceased had gone on
07.11.2019. His statement recorded U/s.164 of the Cr.P.C. is
produced on record at Exhibit-65. The learned Judge has relied on
some averments from this statement. In particular, the learned
Judge relied on the statement that he had informed PW-1 Vidya
that the Appellant called him at 5:00p.m. and that he had asked
him to switch off PW-8’s mobile phone.
20. PW-9 Kisan Pakire was examined to support the ‘last
seen together’ theory. However, he did not support the prosecution
case and he was declared hostile. He deposed that on 07.11.2019,
when he was sitting near his house after lunch at village Walne, he
had seen a two wheeler going towards the nearby field. There
were two persons on that motorcycle. Both of them were unknown
to him. He deposed that he did not know the Appellant.
In the cross-examination conducted by the learned APP,
he accepted that the Appellant’s land was in the village Walne. He
denied that he had given different narration in his police
statement. That particular portion of the narration was proved
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through the evidence of the investigating officer and it was marked
at Exhibit-113. The said portion mentions that on 07.11.2019 at
about 2:00p.m. he had seen the Appellant and one unknown
person going towards the Appellant’s field on a motorcycle and at
around 4:00p.m. he had seen the Appellant going back walking
from in front of his house.
21. PW-15 Amit Kulkarni was another witness examined on
the point of theory of ‘last seen together’. He also did not support
the prosecution case. He deposed that he was a receptionist at a
hotel at Mulshi. He did not depose in support of the prosecution
case. But in the cross-examination he admitted that, in the
morning at around 11:00a.m. on 07.11.2019 the Appellant and
one unknown person had come to his hotel on a two wheeler. They
had some food and they went towards the village Walne. He added
that he himself had not seen the Appellant in the hotel, but others
had seen them.
22. PW-9 Kisan and PW-15 Amit were important witnesses,
but they had turned hostile. More significantly, they did not know
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the deceased and they were not shown the photograph of the
deceased to confirm that they had seen the Appellant going with
the deceased towards his field in the village Walne.
23. PW-10 PSI Balaji Mete was attached to Deccan police
station. He investigated the complaint regarding the missing of the
deceased which was lodged on 08.11.2019. He went to Paud
police station and sought help. He had gone to village Walne at
about 8:30p.m. on 08.11.2019. His investigation revealed that the
Appellant had gone to the village with one person; however, this
evidence is hearsay. He did not depose anything regarding his
personal knowledge. He accepted that he had not gone to the spot
which was the subject matter of the transaction between the
deceased and the Appellant.
24. PW-11 Ganesh Salunkhe had carried the articles to the
Forensic Science Laboratory on 26.11.2019.
25. PW-12 Police Constable Manoj Mane claimed to have
special knowledge regarding the phone records in the nature of
CDR and SDR. He had used one software on a laptop to analyse
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the record of the phone numbers of the deceased and the
Appellant. As per his analysis, the deceased and the Appellant had
their last telephonic conversation at 10:12a.m. on 07.11.2019. In
the morning, the location of the Appellant’s phone was at
Bawdhan. After 12:00p.m. the Appellant’s mobile location was at
Mulshi. At 4:49p.m. the location was at Mulshi Khurd. The last call
on the mobile phone was at about 8:16p.m. on 07.11.2019.
26. PW-13 Dattaram Angre was the Nodal Officer working
with Vodaphone IDEA company. He produced the CDRs of the
mobile phone of the Appellant and the deceased. The phone
number of the Appellant was 9881092581 and that of the
deceased was 9764589924. The location of the phone of the
deceased was at village Walne on 07.11.2019 at about 2:30p.m. up
to 4:20p.m.
27. PW-14 PSI Shrikant Jadhav was the investigating officer.
He deposed about the investigation carried out by him from
09.11.2019 on receiving the information from a secret informant
about the discovery of the dead body. He went to the village Walne
25 of 40 901-apeal-803-24 (J).odt
at Gat No.298. He called the wife and son of the deceased for
identification. The dead body was sent for the postmortem
examination. The statement of the deceased’s wife was recorded
and the FIR was registered vide CR No.473 of 2019 at Paud police
station. He supervised the inquest panchanama. He arrested the
Appellant on 09.11.2019. He conducted the spot panchanama on
10.11.2019. He recorded the statements of the witnesses on
11.11.2019. The Appellant showed willingness to show the clothes
and knife which he had concealed. The Appellant led them near
Walne village and took out the clothes, a pair of shoe and a knife
from the bushes. The panchanama was conducted. It is produced
at Exhibit-57. He collected other documents. He identified the
articles, and in particular, the voter ID card of the Appellant
produced in the Court. He got the statement of the witnesses
recorded U/s.164 of the Cr.P.C.
In the cross-examination, he admitted that after going
to the spot of the incident and after the dead body was seen, he
had returned to the police station, but while going back to the
police station he had not given any written instructions to anybody
26 of 40 901-apeal-803-24 (J).odt
to keep the spot of the incident safe and secured. He had not
arranged for the test identification parade. He admitted that the
place from where the knife and the clothes were recovered was not
a closed place and anybody could access that place. He could not
give the details regarding the ownership of the land from where
those articles were seized. He accepted that the said place was
visible from the nearby small road.
28. Besides this ocular evidence, the prosecution produced
the CA report on record which shows that the clothes of the
deceased showed presence of blood of ‘A’ group. The clothes
allegedly recovered at the instance of the Appellant showed
presence of human blood, but the blood group was inconclusive.
Similarly, the knife and the knife cover showed presence of human
blood, but the blood group was inconclusive.
This, in short, is the evidence led by the prosecution.
SUBMISSIONS MADE BY MR. SATYAVRAT JOSHI, LEARNED
COUNSEL FOR THE APPELLANT
29. The case is based purely on the circumstantial evidence.
The prosecution has not proved any of the circumstances beyond
27 of 40 901-apeal-803-24 (J).odt
reasonable doubt. There is no formation of complete chain of the
circumstances. There was no motive for the Appellant to commit
this murder. The theory of ‘last seen together’ is not proved by the
prosecution. The concerned two witnesses PW-9 Kisan and PW-15
Amit have turned hostile. In any case, they were not knowing the
deceased and, therefore, they would not be in a position to say
that the Appellant had travelled with none other than the
deceased. Even assuming that the Appellant and the deceased had
travelled together to the agricultural field of the Appellant at
village Walne, the time till the deceased was at the spot was only
up to around 4:00p.m. on 07.11.2019. The medical evidence
shows that, according to the Doctor, the death could have occurred
any time before 48 hours from conducting the postmortem
examination at around 11:00p.m. on 09.11.2019. That would
mean that the death could have occurred any time before
11:00p.m. on 07.11.2019. Thus, the gap between 4:00p.m. to
11:00p.m. is a long gap and, therefore, it cannot be said that it
was only the Appellant who could have committed the offence.
Learned counsel submitted that, it does not stand to reason that
28 of 40 901-apeal-803-24 (J).odt
the Appellant would commit the murder of the deceased in his
own field. According to the prosecution case, he had taken care to
conceal his clothes and weapon. In that case, it was highly
improbable that he would have left the dead body in his own field
to invite a strong suspicion against himself. He submitted that the
recovery of the weapon and clothes at the instance of the
Appellant is not beyond reasonable doubt. The police officer has
admitted that the place was open and accessible to all. There is
nothing to show that the Appellant could have changed his clothes
and could have concealed his clothes near the spot of the incident.
He submitted that, finding of voter ID card belonging to the
Appellant is not an incriminating circumstance. In fact, it is a very
suspicious circumstance against the prosecution case. Neither the
FIR nor any contemporaneous document referred to the
Appellant’s voter ID card having been found at the spot. The FIR
does not refer to the voter ID card of the Appellant, though, it was
lodged after the dead body and the other articles were discovered.
The FIR referred to the mobile phone and spectacles of the
deceased, but it did not refer to the Voter ID card of the Appellant.
29 of 40 901-apeal-803-24 (J).odt
The spot panchanama was conducted on the next day. The spot
was unattended and, therefore, it was easy to plant any article at
the spot. The learned Judge erred in relying on certain parts of the
statement made by the witness PW-8 Santosh regarding the
Appellant’s phone call telling him to switch off his mobile phone.
Shri. Joshi submitted that the said witness PW-8 Santosh in his
deposition before the Court has not stated that the Appellant had
called him and asked him to switch off his phone. It was
mentioned in the statement recorded U/s.164 of the Cr.P.C., but it
cannot be used as a substantive piece of evidence. Use of such
statement is limited and it can only be used for corroboration
U/s.157 of the Evidence Act. The learned Judge erred in relying on
that portion of the statement of PW-8 Santosh recorded U/s.164 of
the Cr.P.C., though, he had not mentioned about it in his
substantive deposition before the Court.
SUBMISSIONS OF MS. KRANTI HIWRALE, LEARNED APP FOR
THE STATE:
30. Learned APP submitted that the motive can develop at
the spot. There was monetary transaction between the Appellant
30 of 40 901-apeal-803-24 (J).odt
and the deceased and the offence could be a result of that
transaction. The Appellant’s name is mentioned in the complaint
lodged on 08.11.2019 regarding the missing of the deceased
Vilasrao from 07.11.2019. She relied on the circumstance of
finding of the Voter ID card of the Appellant near the dead body.
She submitted that the learned Judge has correctly relied on the
fact that the dead body was found in the agricultural field of the
Appellant. As per the record and the evidence given by PW-1 Vidya
and PW-2 Prathamesh, the Appellant and the deceased had left
together on a motorcycle from Pune to go to the Appellant’s field
at village Walne. Therefore, the Appellant was a natural suspect.
After his arrest, the murder weapon and the blood stained clothes
were recovered at his instance. The Appellant’s clothes and
weapon were found with stains of human blood. This is another
circumstance against him. She submitted that, PW-8 Santosh has
stated in his statement U/s.164 of the Cr.P.C. that the Appellant
had called him and had told him that something had happened
and that he should switch off his mobile phone. This is another
circumstance against him. The tower location of the mobile phone
31 of 40 901-apeal-803-24 (J).odt
shows that the deceased and the Appellant were together at the
Appellant’s agricultural field.
31. Learned APP relied on the ‘last seen together’ theory. She
submitted that, though the witnesses PW-9 Kisan and PW-15 Amit
have turned hostile, their cross-examination conducted by the
learned APP, and in particular, contrary portions from the police
statements show that the Appellant and the deceased had been
together at the spot of the incident up to 4:00p.m. on 07.11.2019.
REASONS AND CONCLUSION
32. We have considered these submissions. Broadly, the
prosecution case rests on certain circumstances.
1) MOTIVE
If there is direct evidence, the motive pales in
comparison. However, when the case is based on circumstantial
evidence, in some cases, the motive assumes importance. From the
evidence on record, this is a case where motive assumes
importance and, therefore, the prosecution needed to prove as to
32 of 40 901-apeal-803-24 (J).odt
why the Appellant could have committed this offence. In short, the
prosecution was required to establish the motive in the
background of circumstantial evidence in this particular case. The
transaction between the Appellant and the deceased is deposed by
PW-1 Vidya and PW-2 Prathamesh i.e. the wife and the son of the
deceased. In their entire deposition when they described about the
transaction between the Appellant and the deceased, there is not a
single reference to any dispute between the Appellant and the
deceased. Their evidence does not show that there was any dispute
regarding the area of the land or consideration of the transaction
or whether the deceased had not paid the balance amount of the
transaction. There is absolutely nothing to show that there was
even a slight dispute between the Appellant and the deceased.
There is absolutely nothing to show that the Appellant had any
reason to be on inimical terms with the deceased. Therefore, in
this case, motive assumes importance and the absence thereof
certainly helps the defence.
33 of 40 901-apeal-803-24 (J).odt
2) ‘LAST SEEN TOGETHER’ THEORY
To establish this circumstance, the prosecution has
examined PW-9 Kisan and PW-15 Amit. Both of them have turned
hostile. Therefore, they are unreliable witnesses. Even otherwise,
they had merely stated before the police that the Appellant and
one unknown person had come together and had gone to the
agricultural field of the Appellant. Even, as per the prosecution
case, PW-9 Kisan and PW-15 Amit were not knowing the deceased
and, therefore, even if the prosecution case is accepted that the
Appellant had come to his field with an unknown person, then it
was incumbent upon the prosecution to have proved that the
unknown person was none other than the deceased. During the
investigation and subsequently thereto the prosecution has not led
any evidence to show that the person who was seen by PW-9 Kisan
and PW-15 Amit was none other than the deceased. Therefore, the
prosecution has not examined any witness who had seen the
Appellant with the deceased on 07.11.2019.
The prosecution tried to establish their presence
34 of 40 901-apeal-803-24 (J).odt
together at the field of the Appellant on the basis of CDR and the
tower location, which according to the prosecution case, shows
that both the mobile phones were showing the same location at
the Appellant’s field. In that context, we find force in the
submission of learned counsel for the Appellant that, even
assuming that both of them were together till 4:00p.m. on
07.11.2019, still the prosecution has to establish that there was no
time gap for anyone else to approach the deceased and commit his
murder. As per medical evidence the death could have occurred
any time before 11:00p.m. on 07.11.2019. Thus, there is a long
time gap from 4:00p.m. to 11:00p.m. when this incident could
have occurred. Therefore, even the circumstance relating to the
‘last seen together’ theory is not proved beyond reasonable doubt
by the prosecution.
3) FINDING OF VOTER ID CARD BELONGING TO
THE APPELLANT NEAR THE DEAD BODY
33. The prosecution relied on the circumstance of finding of
Voter ID card of the Appellant near the dead body of the deceased.
In this context, as discussed earlier, it must be noted that the dead
35 of 40 901-apeal-803-24 (J).odt
body was discovered on 09.11.2019 at around 11:00a.m. PW-1
Vidya and PW-2 Prathamesh were taken to the spot of the incident.
At that time, whatever was seen by PW-1 Vidya was reflected in
the FIR. The FIR specifically mentions that the deceased’s
motorcycle, mobile phone and spectacles were found near the
dead body. There is no reference to the Appellant’s Voter ID card.
The said ID card could have been incriminating if it was really
found near the spot. It ought to have been mentioned in the FIR.
Even giving concession to the fact that PW-1 Vidya could not
mention everything in FIR, still there is another circumstance
which raises doubt about finding of the voter ID card near the
dead body.
The dead body was discovered on 09.11.2019 in the
morning. The police and the witnesses had gone to the spot
around in the afternoon, but nothing was seized from the spot on
that particular date. In fact, the spot panchanama was conducted
at 9:00a.m. on the next day i.e. on 10.11.2019. The Investigating
Officer’s evidence shows that he had not taken any precaution to
guard the spot of the offence and to preserve the spot of the
36 of 40 901-apeal-803-24 (J).odt
incident without being disturbed. Therefore, the benefit of doubt
must be given to the Appellant, if his voter ID card was seized on
the next day from the spot, when the police had already visited the
spot on the earlier date. This has to be seen with the fact that there
is no contemporaneous record maintained on 09.11.2019 to
indicate that the Appellant’s voter ID card was found at the spot of
the incident. Therefore, this circumstance also does not help the
prosecution case.
4) SUSPICION AGAINST THE APPELLANT
34. According to PW-1 Vidya, the deceased had left in the
morning on 07.11.2019 and he had told PW-1 Vidya that he was
going with the Appellant to the Appellant’s field. In that case, if the
deceased had not returned after that, it was naturally expected
that the family members of the deceased i.e. PW-1 Vidya and PW-2
Prathamesh would go to the spot i.e. to the field of the Appellant
and make enquiries regarding the same with the neighbours. The
said field had other houses nearby. In this case, neither the family
members of the deceased, nor the police had gone to the
37 of 40 901-apeal-803-24 (J).odt
Appellant’s field till late night on 08.11.2019. At that time, only
officer of Deccan police station had gone there, but he had not
even visited the Appellant’s agricultural field. All this raises
suspicion against the prosecution case
35. The role of PW-8 Santosh is equally suspicious. The
learned Judge has relied on his statement recorded U/s.164 of the
Cr.P.C. The learned Judge has committed an error in his approach.
PW-8 Santosh had not stated anything in his deposition regarding
the alleged telephone calls made by the Appellant in the late
evening on 07.11.2019 telling him to switch off his mobile phone
because something had happened in the field. There is complete
silence regarding this fact in the deposition of PW-8 Santosh. The
statement U/s.164 of the Cr.P.C. at the highest could be used for
corroborating the evidence led by PW-8 Santosh. It cannot take
place of what was deposed before the court. If there was any
contradiction between his deposition and his statement recorded
U/s.164 of the Cr.P.C. it was the duty of the prosecution to have
invited PW-8 Santosh’s attention to that contrary portion from the
statement U/s.164 of the Cr.P.C. and then seek his explanation, and
38 of 40 901-apeal-803-24 (J).odt
if necessary to get that portion proved through the evidence of the
learned Magistrate who had recorded that statement. In this case,
neither of these steps was taken. The trial Court could have relied
only the deposition given by PW-8 Santosh. Therefore, even that
circumstance is not helpful to the prosecution.
5) RECOVERY OF WEAPON AND BLOOD STAINED
CLOTHES
36. The last circumstance relied upon by the prosecution is
regarding the recovery of weapon and clothes at the instance of
the Appellant. Though, the CA report shows presence of human
blood on those articles, the blood group is inconclusive. The
pancha to this recovery had turned hostile. He did not support the
prosecution case. Therefore, only the Investigating Officer’s
evidence in this behalf would be important. The I.O. has
categorically admitted that the place from where those articles
were recovered was an open place and it was accessible to all.
Therefore, this recovery loses its significance. As a result, even this
circumstance is not proved by the prosecution against the
Appellant beyond reasonable doubt.
39 of 40 901-apeal-803-24 (J).odt
37. The effect of the above discussion is that the prosecution
has not proved any of these circumstances against the Appellant
beyond reasonable doubt. They have not formed a complete chain
of circumstances to point unerringly to the guilt of the Appellant.
This is a case where benefit of doubt will have to be given to the
Appellant. Therefore, the Appeal succeeds.
38. Hence, the following order:
ORDER
i) The Appeal is allowed.
ii) The Judgment and order dated 05.07.2024
passed by the learned Additional Sessions Judge,
Pune, in Sessions Case No.281 of 2020 convicting
and sentencing the Appellant is set aside.
iii) The Appellant is acquitted from all the charges.
iv) He is in custody. He shall be released forthwith if
not required in any other case.
v) Before being released, he shall execute a bond in
the sum of Rs.15000/- for his appearance, in case
an Appeal is preferred. This bond shall be
executed in consonance with Section 481 of the
40 of 40 901-apeal-803-24 (J).odt
Bharatiya Nagarik Suraksha Sanhita, 2023.
vi) The Appeal is disposed of.
vii) With disposal of the Appeal, the connected
interim application is also disposed of.
(ASHISH S. CHAVAN, J.) (SARANG V. KOTWAL, J.)
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