Bombay High Court
SISHIRKUMAR GOPALCHANDRA PADHY (PADI)versusTHE STATE OF MAHARASHTRA
- Decided
- Disposal
- Dismissed
Holding
The appeal is dismissed and the conviction under Sections 302 and 452 IPC is upheld.
Summary
The appellant, Sishirkumar Padhy, was convicted for murder (IPC 302) and criminal intimidation (IPC 452) after a woman was stabbed in her home. He claimed he had tried to chase the assailant and reported the incident to police, but the trial court relied on CCTV footage, recovered weapons, a dying declaration, and forensic evidence to uphold the conviction. On appeal, the defence challenged the admissibility of the CCTV recording, the Section 65B certificate, the recovery of the knife and clothing, the reliability of the oral dying declaration, the delay in recording a witness statement, the inconclusive blood analysis, and the non‑examination of certain witnesses. The High Court examined each issue, finding the CCTV footage reliable despite a time discrepancy, accepting the Section 65B certificate, deeming the recovered items admissible under Section 27 of the Evidence Act, and upholding the dying declaration as credible. It held that the cumulative evidence established the appellant’s guilt and dismissed the appeal. The conviction and sentences of life imprisonment and rigorous imprisonment were affirmed.
Issues considered
- Whether the CCTV footage is admissible despite a two‑hour time discrepancy and the failure to seize the original DVR.
- Whether the Section 65B certificate can be relied upon when prepared with police assistance.
- Whether the recovery of the knife and clothing, concealed in a public place, is admissible under Section 27 of the Evidence Act.
- Whether the oral dying declaration is reliable without corroboration, especially given the victim’s alleged instant‑death injuries.
- Whether the seven‑day delay in recording PW‑9’s statement renders it inadmissible.
- Whether the chemical analyzer report, lacking a conclusive blood match, is sufficient to link the weapon to the victim.
- Whether the non‑examination of certain material witnesses vitiates the prosecution’s case.
- Whether the appellant’s conduct and blood‑stained clothes negate the presumption of innocence.
Legislation cited
- Indian Evidence Act, 1872 — s. 27, 65B
- Indian Penal Code, 1860 — s. 302, 452
Subjects
- murder
- IPC 302
- IPC 452
- CCTV evidence
- Section 65B
- dying declaration
- forensic evidence
- appeal
- life imprisonment
- evidence admissibility
Judgment
sns 202-apeal-35-2025-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.35 OF 2025
Mr. Sishirkumar Gopalchandra Padhy (Padi) ]
Age: 36 years, ]
R/at : Chawl No. A, Room No. 7, ]
Tilak Nagar Hos. Society, Krushna Nagar ]
90 Feet Road, Sakinaka, Mumbai ]
(Presently Lodged in ]
Kolhapur Central Prison, Kolhapur) ] … Appellant
V/s.
The State of Maharashtra ]
(Through Sakinaka Police Station, ]
Mumbai) ] … Respondent
______________________________________
Mr. Sandeep Karnik, Appointed Advocate through Legal Aid for the
Appellant.
Smt. P. P. Shinde, APP, for the Respondent-State.
_____________________________________________
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 10th April, 2026.
PRONOUNCED ON : 8th May, 2026.
Judgment (Per : Kamal Khata, J) :-
1) By the present Appeal, the Appellant seeks to quash and set
aside the Judgment and Order passed against the Appellant by the trial
Court on 27th June, 2024, convicting him under section 302 of the Indian
Penal Code, 1860 (‘IPC’) and sentencing him to suffer life imprisonment
Digitally
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signed by
SUMEDH
SUMEDH NAMDEO
NAMDEO SONAWANE
SONAWANE Date:
2026.05.08
15:33:53
+0530
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and fine of Rs.20,000/- and in default of payment of fine, to undergo
rigorous imprisonment (RI) for a period of six (6) months. The Appellant
was also convicted under Section 452 of the IPC and directed to suffer
rigorous imprisonment (RI) for one year (1) and a fine of Rs.500/- and in
default of payment of such fine, to further undergo simple imprisonment
(SI) for a period of two (2) months.
2) The case of the prosecution in brief, is as under :-
2.1) The Appellant was residing along with his 3 friends i.e. Santosh
Gauda, Prashant Gauda and Jagannath Panigrahi in rented accommodation
situated on the first floor at Krushna Nagar Housing Society. Adjacent to his
room resided one Mr. Bilet Sone Das along with his wife (the deceased),
their minor daughter Riya, aged about 8 months and his brother-in-law,
Mohandas. On 16th January, 2016, at about 4.30 pm, the Appellant heard
cries of a woman and rushed out, opened the door of the deceased house
and saw an unknown person assaulting the deceased with a knife by
holding her from behind, while the daughter was crying. On noticing the
Appellant, the assailant pushed the deceased towards him and fled from the
house.
2.2) That, the Appellant laid the deceased on the ground and
attempted to chase the assailant, who fled towards Gundecha Temple.
Despite the chase, he could not catch the assailant. During the course of the
chase, the Appellant met his relative, Kailash Sahu, who noticed blood
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stains on the Appellant. Upon being questioned, the Appellant, informed
him that an unknown person had assaulted the wife of Bilet Das with the
knife and fled. The said relative, Kailash Sahu came to the house of Bilet
Das and dialed No.100, informing the police about the said incident. The
deceased was examined by Dr. Firoz Khan (PW No- 20)who declared her
dead. On the basis of the statements recorded from the husband of the
deceased and the Appellant, an FIR came to be registered against an
unknown person.
2.3) During the course of investigation, the Appellant came to be
arrested. After completion of investigation the police filed charge-sheet. The
trial Court convicted and sentenced the Appellant as noted above.
3) Mr. Sandeep Karnik, learned Advocate appointed through the
Legal Aid for the Appellant submits that the impugned judgement is
palpably erroneous and deserves to be set aside. He challenges the
prosecution’s case on multiple grounds, highlighting serious inconsistencies
and evidentiary weaknesses.
3.1) He argues that firstly, the CCTV footage is unreliable due to (i)
a time discrepancy of over two hours, (ii) failure to seize the DVR (original
source) by the Investigation Agency, (iii) absence of hash value verification,
and (iv) doubts surrounding the authenticity of the Section 65B certificate,
which was allegedly prepared with police assistance.
3.2) He also questions the alleged recovery of incriminating articles
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(knife and clothing) due to contradictions between the memorandum
statement, recovery panchnama, and witness testimony. He argues that the
panch witness Jagannath Udugade (PW-7) provided a conflicting version
and described him as a “stock witness,” reducing credibility. Additionally,
according to him, the recovery occurred in a public place, not within the
exclusive knowledge of the accused, thereby weakening its evidentiary
value under Section 27 of the Evidence Act.
3.3) He assailed and criticized the prosecution’s reliance on an oral
dying declaration. According to him the three witnesses conduct appeared
unnatural, one key witness namely Javi Damaji Patel (PW-19) turned
hostile, and there was an unexplained delay of seven days in recording
statement of PW-9. According to him, the medical evidence of Dr. Sanjay
Wathore (PW-16) further weakened the prosecution’s theory of dying
declaration, because the doctor opined that the deceased’s severe neck
injuries would have resulted in instant death.
3.4) Mr. Karnik argued that, the Chemical Analyzer’s report failed to
conclusively link the blood on the weapon to the deceased. He also faulted
the prosecution for not examining several key witnesses, including those
present at the scene namely, Mrs. Kaniben Patel and Mr. Madhuben Patel,
who were present with Javi Patel (PW-19) and the officer API Mr Jaikar
who initially identified the accused from CCTV footage, raising concerns
about the completeness and fairness of the investigation.
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3.5) Finally, he emphasized on the accused’s conduct—informing
the police immediately about the incident and not fleeing—as consistent
with Appellant’s innocence. Relying on Supreme Court precedent in
Jitendra Kumar Mishra alias Jittu vs. State of Madhya Pradesh reported in
(2024) 2 SCC 666, he argued that a dying declaration without
corroboration cannot be accepted as conclusive evidence.
3.6) Accordingly, he argued that, in light of the aforementioned
inconsistencies and gaps, a substantial and reasonable doubt arises,
demonstrating that the prosecution has failed to establish its case beyond
reasonable doubt.
4) Per contra, Smt. Shinde, APP for the Respondent-State
supports the impugned judgement of the trial Court.
5) We have heard Mr. Karnik for the Appellant and Smt. Shinde,
APP for the Respondent, State and have carefully perused the entire record.
The persuasive arguments of Mr. Karnik though made us
believe that, the Appellant was innocent and wrongly framed, however,
upon a careful and evaluation of the evidence on record, we are unable to
accept the same.
CCTV Footage:
6) In our considered view, the contention that the CCTV recording
reflects a time ahead by two hours and forty minutes does not materially
affect the evidentiary value of the footage. This discrepancy is apparent on
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the face of the record and can be readily reconciled by a simple arithmetical
adjustment.
7) What assumes significance, however, is the interplay between
the version of the Appellant and what is discernible from the CCTV footage.
According to the Appellant, upon witnessing the assault, he attempted to
chase the unidentified assailant. If such a version was to be accepted, even
for the purpose of analysis, the footage corresponding to the relevant
timeline ought to have captured two individuals in motion—namely, the
assailant running ahead and the Appellant in pursuit.
8) The CCTV footage, however, does not support this narrative. It
depicts only a single individual running during the relevant period, with no
indication of any other person preceding him. This absence is not a minor
omission but goes to the root of the Appellant’s version.
9) In such circumstances, the version put forth by the Appellant
stands contradicted by the contemporaneous electronic record. The footage,
therefore, lends support to the prosecution case and renders the
explanation offered by the Appellant untenable.
10) The mere non-seizure of the DVR machine by the Investigation
Agency by itself, does not render the CCTV footage either unreliable or
susceptible to discarded. In the absence of any material to suggest
tampering or manipulation, the footage cannot be disbelieved solely on that
ground. We also find no circumstance on record which would justify an
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inference that the contents of the recording were doctored. Equally no
motive is either alleged or established as against the shopkeeper or the
investigating agency to manipulate the recording.
11) The contention that, the contents of the certificate under
Section 65B of the Evidence Act were furnished by the police also does not,
in our view, undermine its evidentiary value. It is not uncommon for a
person issuing such a certificate to be guided on the legal requirements
thereof, particularly where such requirements are technical in nature and
not within ordinary public knowledge. The mere fact that such particulars
were provided by the police does not, ipso facto, render the certificate
unreliable or vitiate the electronic evidence.
12) In the absence of any substantive material to doubt the
authenticity of the recording or the certification, the challenge to the CCTV
evidence on these grounds cannot be sustained. The submissions advanced
on behalf of the Appellant in this regard, therefore, do not merit
acceptance.
Recovery of knife and clothes:
13) We find substance in the case of the prosecution insofar as the
recovery of the knife and baniyan at the instance of the Appellant is
concerned. The recovery was effected on 18th January, 2016, i.e., within
two days of the incident. It is material to note that the Appellant, in his
statement, merely indicated that he had thrown away the said articles
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without specifying their precise location. The subsequent discovery of these
articles from a particular spot, where they were found concealed beneath a
plastic sheet and cement bags, lends assurance to the prosecution case.
14) The recovery panchnama indicates that, the articles were not
lying in the open but were concealed at a specific location. This aspect
assumes significance, as it points to knowledge attributable to the Appellant
regarding the place of concealment. The minor discrepancies in the
description of the exact manner of concealment, whether beneath a plastic
sheet and cement bags or as referred to by the panch witness in his
deposition, do not, in our view, affect the substratum of the recovery.
15) The contention that, the panch witness is a “stock witness” also
does not materially detract from the evidentiary value of the recovery in the
absence of any material to demonstrate fabrication or falsity. What is of
relevance is the factum of recovery pursuant to the information furnished
by the Appellant.
16) In our view, the discovery clearly falls within the ambit of
Section 27 of the Evidence Act. Though the place of recovery may be a
public location, the articles were concealed and not visible to a passerby.
The discovery of such concealed objects pursuant to the information
supplied by the Appellant is a relevant and admissible circumstance.
17) The inconsistencies pointed out in the memorandum, the
panchnama and the deposition of the panch witness are, at best, peripheral
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in nature. They do not go to the root of the prosecution case. They are
insufficient to discredit the recovery, which, in our view, stands duly
proved.
Oral dying declaration given to PW No.9.
18) We do not find merit in the contention that the prosecution
case is rendered doubtful merely because one of the three women, namely
PW No.19, turned hostile. It is not in dispute that PW No.19 had informed
PW No.9 about an untoward incident having taken place in the room of the
deceased. The fact that she did not fully support the prosecution does not,
by itself, efface the evidentiary value of the information conveyed or the
testimony of PW No.9.
19) The submission that the statement of PW No.9, recorded on
23rd January, 2016, i.e. after a period of seven days, ought to be discarded
also does not merit acceptance. Mere delay in recording a statement is not
fatal unless it is shown to have caused prejudice or appears to have been
improved upon. In the present case, no such circumstance is brought on
record. Human conduct in the aftermath of a traumatic incident cannot be
reduced to a rigid formula, hesitation or delay in approaching the police is
not uncommon.
20) We also find no circumstance to suggest that PW No.9 had any
motive to falsely implicate the Appellant. In the absence of any
demonstrated animus, there is no reason to disbelieve her version solely on
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account of the delay.
21) Insofar as the alleged dying declaration is concerned, the
evidence of PW No.9, being the direct recipient thereof, cannot be lightly
discarded. The medical opinion that the injuries could result in
instantaneous death does not, in itself, rule out the possibility of the
deceased making a brief statement prior to succumbing. There is no
material on record to conclusively establish that the deceased was incapable
of speech at the relevant time. There is no evidence on record to indicate
that, the vocal cord of deceased had any injury to make her incapable to
speak.
22) In these circumstances, we find no reason to disbelieve the
testimony of PW No.9. The delay in recording her statement does not
detract from its credibility.
Chemical Analyzer Report:
23) We are not placing sole or determinative reliance on the
Chemical Analyzer’s Report to sustain the conviction of the Appellant. The
report, at best, provides limited assistance, as it does not conclusively
establish that the blood found on the knife belongs to the deceased.
24) However, the evidentiary value of the recovery cannot be
diluted on that account. The knife and baniyan were recovered at the
instance of the Appellant and were found to be stained with blood. This
circumstance, when read in conjunction with the proved recovery, furnishes
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a relevant link in the chain of circumstances connecting the Appellant with
the crime. The Appellant has not offered any explanation in his 313
statement about the said recovery
25) The absence of a conclusive serological match may affect the
weight to be attached to the report, but it does not render it wholly
inadmissible or devoid of evidentiary value. The report, therefore, lends
corroborative support to the prosecution case, though it is not the sole basis
for the conviction.
Non-examination of material witnesses:
26) Having regard to the evidence on record, it would have been
desirable for the prosecution to examine the other two women, namely Mrs.
Kaniben Patel and Mrs. Madhuben Patel, who were stated to be present
along with PW No.19, as also the father-in-law and mother-in-law of PW
No.9. However, the mere non-examination of these witnesses does not, ipso
facto, render the prosecution case doubtful or give rise to any serious
infirmity in the investigation. It is well settled that the prosecution is not
bound to examine each and every witness, so long as the evidence adduced
is sufficient to establish the case beyond reasonable doubt. In the present
case, we do not find that the omission to examine the aforesaid witnesses
affects the substratum of the prosecution case or undermines its overall
credibility.
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Conduct of the Appellant:
27) In our view, the version put forth by the Appellant does not
inspire confidence. The explanation offered appears to be an attempt to
deflect the course of investigation by projecting the involvement of an
unidentified assailant. Significantly, there is no satisfactory explanation for
the presence of blood stains on the clothes of the Appellant. Equally, it is
difficult to accept that the Appellant, having allegedly witnessed the assault
from close quarters, was unable to furnish any description of the assailant.
28) The Appellant’s version is further rendered doubtful by its
inherent inconsistencies. If, as claimed, the deceased was pushed towards
the Appellant, it is reasonable to expect that he would have had a clear
opportunity to observe the assailant. The assertion that he could not
identify the person, therefore appears improbable. Conversely, if the
Appellant had not come into such close proximity, there would have been
no occasion for him to lay the deceased on the ground for his clothes to be
stained with her blood.
29) The explanation regarding the blood-stained clothes also does
not merit acceptance. More importantly, the conduct of the Appellant in
relation to the knife and the baniyan is inconsistent with that of an innocent
person. While the Appellant initially stated that he had thrown these
articles in a public place, the subsequent recovery establishes that they
were, in fact concealed at a specific location known to him. If the Appellant
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was innocent, there would have been no reason to conceal the articles
rather than produce them before the police.
30) The circumstance that, the articles were recovered from a
concealed location, coupled with the inconsistency in the Appellant’s
explanation, constitutes a significant incriminating circumstance.
31) The submission that, the Appellant did not abscond and
therefore deserves the benefit of doubt also does not advance his case. Mere
non-abscondence is not determinative of innocence, particularly where the
surrounding circumstances and the inconsistencies in the version of the
Appellant point otherwise. On an overall appreciation of the evidence, we
find that the prosecution has established a consistent chain of circumstances
which unerringly points towards the guilt of the Appellant.
32) Insofar as the reliance placed on the decision in Jitendra
Kumar Mishra alias Jittu vs. State of Madhya Pradesh , (2024) 2 SCC 666 is
concerned, the same is distinguishable on facts. In that case, the alleged
dying declaration was made after a considerable lapse of time, and the
medical evidence cast serious doubt on the possibility of the victim being in
a position to make such a statement. In the absence of corroboration, the
Hon’ble Supreme Court declined to accept the dying declaration. In these
circumstances, the said decision does not assist the Appellant.
33) In the present case, however, the evidence indicates that PW
No.9 reached the spot immediately upon hearing the commotion and
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received the statement of the deceased immediately after the incident. The
proximity of time, coupled with the surrounding circumstances, lends
assurance to the testimony of PW No.9. The medical evidence does not
conclusively rule out the possibility of the deceased making such a
statement. The chain of circumstances is completed. The Appellant is the
only author of the crime.
34) Before parting with the Judgment, we place on record our
appreciation for the efforts put in by Mr. Karnik, learned Advocate
appointed by the High Court Legal Services Committee, Mumbai for
espousing the cause of Appellant. He was thoroughly prepared in the matter
and assisted this Court in arriving at the aforenoted proper conclusion.
35) In view of the aforesaid, the trial Court has not committed any
error in convicting the Appellant. The Appeal stands dismissed.
(KAMAL KHATA, J.) (A.S. GADKARI, J.).
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