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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

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
                             14 of 40                901-apeal-803-24 (J).odt


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
                            23 of 40               901-apeal-803-24 (J).odt


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
                           24 of 40               901-apeal-803-24 (J).odt


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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