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Bombay High Court

BHAIYALAL SINH S/O. BANDAN SINHversusTHE U. T. OF DADRA AND NAGAR HAVELI AND DAMAN AND DIU

Decided
Disposal
Allowed

Holding

The appellate court set aside the conviction and acquitted the appellant of the murder charge.

Summary

The appellant, Bhaiyalal Sinh, was convicted by the Sessions Court for murder under Section 302 IPC and sentenced to life imprisonment. He appealed, challenging the conviction on the basis that the prosecution’s case relied heavily on the ‘last seen together’ theory and circumstantial evidence, including mud‑stained clothes, an Aadhaar card, and forensic similarity of soil, none of which the court found conclusive. The key witness, PW‑4, was deemed unreliable as he was under the influence of alcohol and could not recount the incident. The court noted a significant time gap between the alleged quarrel and the discovery of the body, and the post‑mortem did not establish a precise time of death, creating reasonable doubt. It also held that the recovery of the appellant’s clothes was based on a vague statement that failed to meet the requirements of Section 27 Evidence Act. Consequently, the appellate court set aside the conviction, acquitted the appellant, ordered the return of the fine, and directed the execution of a bond under Section 481 of the Bharatiya Nagarik Suraksha Sanhita.

Issues considered

  • The prosecution proved beyond reasonable doubt the appellant's commission of murder under Section 302 IPC
  • The reliability and sufficiency of the ‘last seen together’ theory as circumstantial evidence
  • The evidentiary value of mud‑stained clothing, Aadhaar card, and forensic soil analysis
  • Whether the appellant's failure to explain facts within his exclusive knowledge triggers the presumption under Section 106 of the Evidence Act
  • The impact of the time gap between the alleged incident and the discovery of the body on the prosecution's case
  • The adequacy of expert testimony and the chain of custody of seized items

Legislation cited

Subjects

  • murder
  • Section 302 IPC
  • acquittal
  • last seen together theory
  • circumstantial evidence
  • Section 106 Evidence Act
  • forensic soil analysis
  • time gap
  • reliable witness
  • reasonable doubt

Judgment

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.380 OF 2023

Bhaiyalal Sinh s/o Bandan Sinh                      …..Appellant
             Versus
The U.T. of Dadra & Nagar Haveli,
Daman & Diu.                                        .….Respondent
                                     ….
                                    WITH
                      INTERIM APPLICATION NO.2921 OF 2024
                                     IN
                        CRIMINAL APPEAL NO.380 OF 2023

                                    -----
Mr. Aashish Satpute, Advocate (appointed) a/w. Chaitanya Purankar for the
Appellant.
Mr. Ashwin Thool, SPP a/w. Ayush Singh, Archishmati Chandramore for the
Respondent No.1-UT.
Ms. Supriya Kak, APP for the State.
                                    -----

                                  CORAM : SARANG V. KOTWAL &
                                          SANDESH D. PATIL, JJ.

                                  DATE   : 28th JANUARY, 2026

JUDGMENT : [PER SARANG V. KOTWAL, J.]

1.                  The Appellant has challenged the judgment and order

dated 14.7.2022 passed by the learned Sessions Judge, Daman in

Sessions Case No.2/2019. The Appellant was the sole accused. He

was convicted for commission of the offence punishable under

Section 302 of IPC and was sentenced to suffer rigorous

imprisonment for life and to pay a fine of Rs.5,000/- and in default

of payment of fine to suffer further RI for six months.
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     Deshmane(PS)
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2.           Heard Mr. Aashish Satpute, learned appointed counsel

for the Appellant,      Mr. Ashwin Thool, learned SPP for the

Respondent No.1-UT and Ms. Supriya Kak, learned APP for the

State.


3.           The prosecution case is that the deceased Ramlakhan

and the Appellant were cousins. On 2.10.2018 both of them along

with PW-4 Asan Singh Sugriv         went   for an outing near the

seashore at Daman. They snapped their photographs. After that

they consumed beer. It is the prosecution case that there was some

quarrel between the Appellant and Ramlakhan. The Appellant

strangulated Ramlakhan with the Appellant’s shirt. In the

meantime, PW-4 Asan Singh Sugriv had gone to sleep under the

influence of beer. When he woke up, he did not see Ramlakhan.

The Appellant was without his shirt. When PW-4 Asan Singh Sugriv

asked the Appellant regarding Ramlakhan; the Appellant told him

that     Ramlakhan had already left. Asan Singh Sugriv       and the

Appellant then went back to the Appellant’s room at around 8.00

p.m. to 9.00 p.m.. On the next day i.e. on 3.10.2018, Asan Singh

Sugriv     tried to contact   Ramlakhan, but he was unsuccessful.

There was no telephonic contact either. On 3.10.2018 at about
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11.00 a.m., the police received a call that a dead body was found

near the polytechnic at Daman. The police went there. They saw

the dead body with a shirt tied around his neck. The dead body

was taken to Marwad Hospital. There was a photograph of the

Appellant with the deceased. On the basis of that photograph, the

police tried to identify the Appellant. One labour contractor

identified the Appellant, who was arrested.


4.         The police tried to contact the family of the deceased

but they were not available. The postmortem was ultimately

conducted on 9.10.2018. The cause of death was mentioned as

strangulation. During investigation the Appellant allegedly gave a

statement pursuant to which his pant and banian were recovered

from his own house. Along with those clothes, there was a Aadhaar

card of the deceased. The seized articles were sent for chemical

analysis. The chemical analysis showed presence of similar mud on

the clothes of the Appellant, the deceased and the place from

where the dead body was recovered.        The expert opinion also

mentioned that the shirt found tied around the neck of the

deceased was similar to the one worn by the Appellant at the time

when the photograph was taken.        Based on this evidence the
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investigation was concluded and the charge-sheet was filed. The

case was committed to the Court of Session.


5.           During trial, the prosecution examined nine witnesses.

The main witness was PW-4 Asan Singh Sugriv who had last seen

the Appellant and the deceased together on the previous day. Apart

from him, the prosecution examined panchas, the medical officer,

the aforementioned Labour Contractor, father of the deceased, an

expert for C.A. report and the police officers. The defence of the

Appellant was of total denial.


6.           The learned Judge relied on the circumstances of last

seen together,    recovery of the clothes at the instance of the

Appellant and similarity of the shirt worn by the Appellant and the

one found around the neck of the deceased. Based on these

circumstances, the learned Judge concluded that the prosecution

had proved its case beyond reasonable doubt. Apart from that, the

learned Judge also referred to the presumption under Section 106

of the Indian Evidence Act and observed that the Appellant had

failed to explain the facts which were within his exclusive

knowledge.


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7.         PW-9 PSI Purshottam Jadhav was the police officer who

had received the anonymous phone call regarding finding of the

dead body. He deposed that in the year 2018 he was in-charge of

Kalariya outpost, Nani Daman. On 3.10.2018 he received an

anonymous call on his phone. The caller had informed him that a

dead body of a man was lying in a muddy land near polytechnic

at Varkund.     PW-9 made a station diary entry and went to the

spot. He saw the dead body. It was smeared with mud. A shirt was

tied around the neck. The deceased was wearing a full sleeved shirt

and a blue jeans. The dead body was pulled out of the mud. The

station house officer of Nani Daman was informed. He came to the

spot. The body was sent to a Government Hospital, Marwad. Then

PW-9 lodged his report. It is taken on record at Exhibit-35.


8.         PW-2 Himanshu Shahi was a Labour Contractor.

According to the prosecution case, some photographs were

recovered from the pocket of the deceased and the police made

enquiries about the identity of the persons in the photograph. On

4.10.2018 between 12 noon to 1.00 p.m. the police met him. They

showed him a photograph with three persons. The background was

of sea-shore. PW-2 knew one of them. He identified that person as
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the Appellant because he was in the housekeeping department in

Baddar Schulz Laboratory. PW-2 had         provided the Appellant’s

services to that company. PW-2 further deposed that the Appellant

was from Madhya Pradesh and at that time he was residing in a

chawl of one Pareshbhai at Atiyawad, Char Rasta, Nani Daman.

The Appellant was arrested by the police. He identified the

Appellant. He further added that on 2.10.2018 the Appellant had

met him at 9.00 p.m. and had told PW-2 that he wanted to go to

his village. He asked for Rs.2,000/. PW-2 told the Appellant that he

could   take   money   after     10.10.2018.   PW-2   identified        the

photograph which was shown to him by the police. That

photograph was Article-B before the trial Court.


           In the cross-examination, he deposed that he was

working as a Labour Contractor since 2013 in various companies

and he had about 700 to 800 labourers under him. He used to

maintain registers of labourers. The Appellant had worked for him

for about 2-3 months. He was asked as to how he knew about a

particular worker since he had 700 to 800 workers working for

him. According to him, he knew it because he used to go to the

gates of the companies. He used to pay wages to the workers
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including the Appellant. He used to pay Rs.360 or Rs.370/- per day

to the Appellant. He did not know the other two persons in the

photograph.


9.         PW-5 Bishnu Singh knew the Appellant and the

deceased. The deceased was his cousin. At that time he was

residing with the Appellant and one Rajkumar in room No.13 of

Pareshbhai Chawl. The Appellant and PW-5 were working at

Baddar Schulz Laboratories. According to him, on that particular

night at about 9 p.m. to 10 p.m., the Appellant and one Asan Singh

Sugriv (PW-4) had come to his room. The Appellant was wearing

banian and pant. On the next morning, Asan Singh Sugriv left for

Surat. In the cross-examination he added that the Appellant had

come to his room with his clothes smeared with mud. The

Appellant had vomited. He had not taken bath.


10.        In this background, the evidence of PW-4 Asan Singh

Sugriv is very important. The prosecution has heavily relied on his

evidence. He deposed that the incident took place on 2.10.2018

about three years prior to recording of his deposition. At that time

he was residing in Surat. Ramlakhan made a phone call to the


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Appellant. PW-4 and Ramlakhan came to Vapi. The deceased

Ramlakhan was working with PW-4 and they were staying together.

They met the Appellant at railway crossing at about 11.00 a.m. to

12.00 noon. They went to the sea-shore at Daman. They drank

beer. They got their photographs taken by a photographer. Then

they hired an auto-rickshaw for going to Vapi Phata. But they got

down near a police chowky. There was a quarrel between

Ramlakhan and the Appellant. PW-4 further deposed that since he

had consumed beer, he fell asleep. After sometime, the Appellant

woke him up. PW-4 asked the Appellant about Ramlakhan. The

Appellant told him that Ramlakhan had gone. At that time the

Appellant was wearing a banian and pant. His clothes were

smeared with blood. Then they went to the Appellant’s room at

about 8.00 p.m. to 9.00 p.m.. PW-4 slept in that room. He made a

phone call to Ramlakhan in the morning. However, his phone was

switched off. After that PW-4 went to Surat. Ramlakhan had not

reached Surat. He identified the Appellant in the Court. He

identified the photographs Article-D and Article-K which were

taken at the beach. He identified himself, the deceased and the

Appellant from these photographs. His statement recorded under

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Section 164 of Cr.P.C. was produced on record at Exhibit-24.


            In the cross-examination, he admitted that since he was

under the influence of alcohol, he did not know what had

happened. It was dark when the Appellant came and woke him up.


11.         The evidence of PW-4 is very important in this case. At

this stage some salient features of his evidence need to be noted, as

follows:-


   i. He has not described the place where there was quarrel

      between the Appellant and the deceased.


   ii. He did not state as to what had happened to those

      photographs and as to whether either of them had kept them

      with himself.


   iii. He had not named the police chowky where they had got

      down from the rickshaw. He admitted that he was under the

      influence of liquor and that he fell asleep. In the cross-

      examination, he has categorically admitted that since he was

      under influence of alcohol he did not come to know as to

      what had happened.


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  iv. PW-4 is the star witness for the prosecution and as can be

      seen that his evidence is vague and unreliable.


12.        PW-6 Baghraj Singh was father of the deceased. He

deposed that Ramlakhan was his son and that the Appellant was

his younger brother’s son. That means that the deceased and the

Appellant were cousins. The police had informed PW-6 about the

death of Ramlakhan. PW-6 had identified the dead body of

Ramlakhan at Daman.


           This witness has not stated as to when the police had

informed about Ramlakhan’s death. He had also not stated as to

when he had identified the dead body. This is important because

according to the prosecution case the postmortem examination was

not conducted immediately as family of the deceased did not come

to Daman immediately. In this context, PW-6 has not stated

anything much about when he was informed and when he

identified the dead body.


13.        PW-3 Kalpesh Damania was a pancha witness for

important panchnamas. On 3.10.2018, he was called by the police

near the Polytechnic college in front of Deltin Hotel. The dead body

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was lying there. It was at a distance of about 250 meters from the

road. There were marks of dragging the body on the ground. He

saw one shirt tied around the neck of the dead body. The clothes

and face of the dead body were smeared with blood. One pair of

Relaxo chappal was lying there. The police prepared a sketch. They

prepared a panchnama. The panchnama and the sketch are

produced on record at Exhibits-16 and 17. The police seized that

chappal. On the same day, he was taken to Marwad Hospital and

the inquest panchnama was conducted in his presence. It is

produced on record at Exhibit-18. At that time the police recovered

six photographs from the backside pant pocket of the deceased. In

three   of   those   photographs,       there   were   other       persons

accompanying the deceased. The police seized those photographs.

The inquest panchnama is produced on record at Exhibit-18.


             On   4.10.2018,      the police    conducted    the     arrest

panchnama of the Appellant in the presence of PW-4.


             On 6.10.2018, the police again called him. According to

him, the accused showed willingness to show the place where he

had kept the clothes. The police prepared the memorandum


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panchnama which is produced on record at Exhibit-19. The

Appellant led the police to Pareshbhai Chawl at Atiyawad, Dabhel.

He took them to room No.13. One plastic bag was hanging on a

wall. The Appellant removed that bag. There was one white pant

and banian inside that bag. The banian was wet and had mud

stains. The Appellant took out a wallet from the pant pocket. There

was one Aadhaar card and a mobile bill in the wallet. That Aadhaar

card was of Ramlakhan. The police seized those articles. The

panchnama is produced on record at Exhibit-20. He identified

those articles in the Court.


            On 9.10.2018, he was again called by the police in the

mortuary of Marwad Hospital. At that time the clothes of the

deceased and the shirt which was tied around the dead body was

seized by the police under a panchnama. That panchnama is

produced on record at Exhibit-22. He identified those articles.


            In the cross-examination, he deposed that the plastic

bag in which the clothes were kept in the room of the Appellant

were not seized. He did not know whether any other person was

residing in that room. When they went there for panchnama, no


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one else was there in the room.


            The memorandum panchnama at Exhibit-19 recorded

the statement made by the Appellant. However, that statement did

not mention authorship of concealment of any particular article

and the place. It did not mention the place where he was to lead

the police party. That statement could not have led the police party

to any particular place in search of any particular article. After this

statement, according to the prosecution, the Appellant had led the

police and the panchas to his room from where his clothes were

seized. The learned Judge has rightly discarded this circumstance

with proper reasoning.


14.         PW-1 Dr. Dhanvidya Prabhakar was the medical officer

who had conducted the postmortem examination. PW-1 was

working as a Medical Officer with Government Hospital, Marwad,

Nani Daman. On 3.10.2018 a memo for postmortem of the dead

body of Ramlakhan was received. PW-1 and Dr. Jog conducted the

postmortem on 9.10.2018. A shirt was tied around the neck. There

was mud on the whole body. There were signs of decomposition.

There were ligature marks all around the neck. There was thyroid


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cartilage fracture. The cause of death was asphyxia due to

strangulation. The postmortem notes are produced on record at

Exhibit-11.


              In the cross-examination, PW-1 stated that the dead

body was brought to the hospital on 3.10.2018. PW-1 did not know

who had come to the hospital along with the body. There was no

other external injury on the dead body. According to the FSL report

no poison was detected in the viscera.


15.           PW-7   Sailesh Mistry was an officer in the Regional

Forensic Laboratory, Surat. He deposed that in this case the police

had sent seven sealed parcels in connection with C.R. No.111/2018

registered at Nani Daman police station. A pair of chappals was

marked as ‘1/A and 1/B’. They were of Relaxo brand. The parcel

No.2 had soil. The parcel No.3 had two photographs marked at

‘3/A and 3/B’. The parcel No.4 had a pant. Some soil was collected

from that pant by this witness. The parcel No.5 had one banian.

Again some soil was seen on that banian. The parcel No.6 was a

shirt with some soil on it. The parcel No.7 was one shirt and one

pant, which were fully stained with soil. Those articles were


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examined visually, microscopically and were subjected to density

gradient examination. According to him, the soil collected from the

pant at Exhibit-4, the shirt at Exhibit-6, the shirt at Exhibit-7/1 and

pant at Exhibit 7/2 were found similar to the control soil Exhibit-2.

According to him, he observed similarity in colour, design and

pattern of shirt at Exhibit-6 and the shirt worn by the Appellant

seen in photograph Exhibit 3/A. Accordingly, he prepared a report.

That report is produced on record at Exhibit-31.


            Through this evidence the prosecution wanted to show

that the soil found on the pant of the Appellant was the same soil

from where the dead body was recovered and it was the same soil

on the clothes of the deceased. Similarly the prosecution also

wanted to establish that the shirt found around the neck of the

dead body was similar to the shirt seen worn by the Appellant in

the photograph recovered from the dead body. The report mentions

that there was similarity in the pair of chappals worn by the

Appellant seen in the photograph and that of the chappals found at

the spot. The soil comparison from the banian of the Appellant was

not possible.


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16.         PW-8 Pankesh Tandel was the SHO, Nani Daman Police

Station. On 3.10.2018 he was informed about finding of the dead

body. He went there and saw the situation. He sent the dead boy to

Government Hospital, Marwad.         He took the FIR from ASI

Purushottam Jadhav. It is produced on record at Exhibit-35. He

registered the offence. He prepared the spot panchnama. He seized

the photographs from the pocket of the dead body. He recorded

statements of the witnesses. He showed the photographs to the

Labour Contractor Himanshu Shahi. The Appellant was arrested.

On 6.10.2018 he effected recovery of clothes of the Appellant i.e.

banian and pant as well as Aadhaar card of the deceased from the

Appellant’s house. One bill of mobile phone was also recovered. On

9.10.2018 the doctor had given clothes of the deceased and also a

shirt which was tied around the neck of the deceased. Those were

seized under panchnama at Exhibit-22 in the presence of PW-3

Kalpesh Damania. He had got statements of Asan Singh Sugriv

recorded under Section 164 of Cr.P.C.. It appears that the Advocate

for the Appellant was absent and, therefore, cross-examination of

this   important witness could not be conducted. The Appellant

declined the cross-examine of this witness.

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.             This, in short, is the evidence led by the prosecution.


17.           The learned counsel for the Appellant made the

following submissions:

      i.     The evidence of the prosecution is weak. It does not

             complete the chain of circumstances excluding the

             hypothesis of commission of offence by somebody else.

      ii.    The main evidence on which the prosecution has relied

             on is the ‘last seen together’ theory. For that purpose only

             PW-4 was examined. He is a totally unreliable witness.

             He was under the influence of liquor. He did not know

             anything.

      iii.   There was a considerable time gap between the alleged

             quarrel and finding of the dead body or even the time of

             death. Therefore, the ‘last seen together’ theory is not

             incriminating in this case.

      iv.    The recovery of banian and pant at the instance of the

             Appellant is doubtful. The learned Judge has rightly

             disbelieved that recovery panchnama.

      v.     There was no reason for the Appellant to have carried

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        the wet muddy clothes to his house and kept them as

        they were in that situation.

vi.     The Appellant was not immediately arrested. He had

        ample time either to destroy the clothes or to wash

        them. There was no reason for the Appellant to carry the

        Aadhaar card of the deceased to his house to create

        evidence against himself.

vii.    The expert’s evidence is based on his opinion. He had

        merely seen the similarities between the shirt found tied

        around the neck of the deceased and the shirt allegedly

        worn by the Appellant which was seen in the

        photograph.

viii.   There was no scientific analysis of this photograph vis-a-

        vis the shirt that was seized. The seizure of the shirt is

        itself doubtful. It was seized on 9.10.2018 whereas the

        dead body was recovered on 3.10.2018.         There is no

        linking evidence as to which doctor has produced that

        shirt before the pancha. PW-1 is the only medical officer

        examined but she did not state about producing of that

        shirt before the pancha and the police.
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      ix.     There was no scientific analysis of the slippers found at

              the spot. They are not connected with the Appellant.

      x.      The shirt seized on 9.10.2018 purportedly given by the

              doctor was not shown to PW-4 as he would have been

              the best person who could have stated that the Appellant

              was wearing the same shirt on 2.10.2018.


18.            On the other hand, the learned SPP submitted as

follows :-

        i.    There is no dispute about the fact that the shirt was

              found tied around the neck of the deceased on

              3.10.2018. Therefore, it cannot be even suggested that

              the shirt was planted or that the police procured a

              similar shirt to implicate the Appellant falsely in this

              case.

        ii.   There is no reason to disbelieve the evidence of PW-4.

              He has given truthful answers including the fact that he

              had consumed alcohol. The spot where the dead body

              was found was near the polytechnic and more

              importantly near police quarters which matches the

              description given by PW-4 that they had gone near the
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       police chowky.

iii.   Finding of the shirt worn by the Appellant which was

       seen in the photograph is the most incriminating piece of

       evidence.

iv.    Moreover the scientific analysis showed     that the mud

       found on the pant of the appellant was the same mud

       which was found at the spot where the dead body was

       lying.

v.     The Appellant had admitted that he had produced his

       clothes before the police.

vi.    Learned SPP explained that the postmortem was not

       conducted immediately because the family of the

       deceased could not come to Daman immediately.

vii.   The cause of death was asphyxia due to strangulation.

       The offence was committed by using a shirt. It was the

       Appellant’s shirt.

viii. There was quarrel between the Appellant and the

       deceased. Therefore, the motive stands established.

ix.    The evidence of PW-4 is corroborated by the statement


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            before the Judicial Magistrate. Since the Appellant was

            with the deceased on the previous day it was within his

            special knowledge as to what had happened to the

            deceased but the Appellant failed to discharge this

            burden under Section 106 of the Evidence Act.

      x.    The conduct of the accused was also incriminating. He

            had not informed PW-4 regarding the whereabouts of

            the deceased on 2.10.2018.

      xi.   Learned   SPP   submitted    that   thus   the     chain        of

            circumstances is complete and the prosecution has

            proved its case beyond reasonable doubt.

Reasons and conclusion :

19.          We have considered these submissions. The prosecution

has relied mainly on the evidence of theory of ‘last seen together’.

In this case, according to PW-4, the deceased, the Appellant and

PW-4 himself were together on 2.10.2018 and the dead body was

found at around 11.00 a.m. on 3.10.2018. Since about evening on

2.10.2018 PW-4 had not seen the deceased but the Appellant was

with PW-4. Therefore, there was a time gap of around 15 to 16

hours between the time when all of them were together and when
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the dead body was discovered. The approximate time of death is

not properly brought on record by the prosecution. The

postmortem notes mention that the death could have occurred any

time between 48 hours to 72 hours; but it is important to note that

the postmortem was conducted on 9.10.2018 and the doctor could

have only opined about the time of death from the date time of

conduct of the postmortem examination. This time definitely does

not match even approximately with the prosecution case.

Therefore, it is quite clear that there is a considerable time gap

between the two points of time i.e. when the appellant was in the

company of the deceased and when the dead body was discovered.

The prosecution, therefore, has not proved beyond reasonable

doubt that it was only the accused who could have had an

opportunity to commit the murder and no one else could have

committed this murder.

20.        The learned SPP tried to contend that the dead body

was found from very near where all three of them had got down

from the auto rickshaw. However, the prosecution has not led any

cogent evidence in that behalf. In any case, the considerable time

gap, as mentioned earlier, weakens the evidentiary value of the

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‘last seen together’ theory.

21.         The other circumstance is of finding of the mud on the

pant of the Appellant. According to the C.A. report, the mud was

of the same texture and quality as the soil which was seized from

the spot where the dead body was found. The learned Judge has

rightly disbelieved the recovery of clothes of the Appellant from his

house. The learned Judge has rightly observed that there was no

reason for the Appellant to keep those muddy clothes in his house

without washing. In any case, as mentioned earlier, the

memorandum statement pursuant to which the recovery is made

is a very vague statement. It does not mention authorship of

concealment, place of concealment and the articles i.e. clothes

which were allegedly recovered. Therefore, it fails the test of a

statement made under Section 27 of the Evidence Act.

22.         Apart from that, in any case, the Appellant, the

deceased and PW-4 were together. They had gone to the same spot.

Therefore, finding the same soil on the clothes of the Appellant and

the deceased is hardly incriminating. Even assuming that the

murder had taken place at a place which was near from where they

had got down, the big time gap between this period and the time of
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discovery of the dead body, still gives rise to a reasonable doubt in

favour of the Appellant.

23.         As far as the ‘last seen together’ theory is concerned,

the only evidence which is led by the prosecution is in the form of

deposition of PW-4. As mentioned earlier, his evidence is highly

unreliable. He had admitted that he was under the influence of

liquor and that he did not know as to what had happened.

Therefore, it is not safe to rely on his evidence.

24.         The other circumstance is of recovery and seizure of the

shirt which was tied around the neck of the deceased. In this

context, the prosecution has not examined the doctor who had

produced that particular shirt before the police. The shirt itself was

produced after about six days of recovery of the dead body. The

dead body was discovered on 3.10.2018 and the shirt was seized

on 9.10.2018. That particular shirt was not shown to PW-4 who

could have been the best witness to have identified that shirt as

having been worn by the Appellant when the Appellant was in the

company of the deceased. The expert had merely stated that the

shirt was similar to the one which was seen worn by the Appellant

in the photograph. That hardly can be said to be a conclusive piece
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of evidence. Similar is the case with the seized chappals. The

prosecution has not conclusively proved that those were the

chappals worn by the Appellant at any time.

25.        Since the prosecution has failed to prove the basic

incriminating circumstances against the Appellant, the burden does

not shift on the Appellant to explain certain facts which were

within his knowledge.

26.        There is one more aspect in this case. According to the

police the Appellant had taken the Aadhaar card of the deceased

and kept it in his house. That means the Appellant was clever

enough to conceal the identity of the dead body but in that case he

would not leave the photograph with the dead body showing his

own presence near the seashore.       Both these facts do not go

together. It also raises some reasonable doubt regarding the

prosecution case and recovery of those photographs and the

Aadhaar card.

27.        As a result of the above discussion, we are of the

opinion that the prosecution has failed to prove its case beyond

reasonable doubt against the Appellant. Therefore, the Appellant

deserves to be acquitted from this case. Hence, the order :
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                                                              :: O R D E R ::

                             i. The judgment and order dated 14.7.2022 passed by the learned Sessions

                                   Judge, Daman in Sessions Case No.2/2019 convicting and sentencing

                                   the Appellant for commission of the offence punishable under Section

                                   302 of IPC is set aside.

                             ii. The Appellant is acquitted of all the charges. Fine amount, if paid, be

                                   returned to him. The Appellant is in jail. He shall be released forthwith

                                   if not required in any other case.

                             iii. Before being released, the Appellant shall execute a bond in the sum of

                                   Rs.15,000/- (Rupees Fifteen Thousand Only) under Section 481 of the

                                   Bharatiya Nagarik Suraksha Sanhita, for his appearance in case an

                                   Appeal is preferred. He shall execute such bond before he is released

                                   from jail.

                             iv. The office shall take steps to send a copy of this judgment and order to

                                   the Appellant, who is in prison, as early as possible.

                             v. The Appeal is disposed of accordingly. With disposal of the Appeal, the

                                   connected application is also disposed of.




                       (SANDESH D. PATIL, J.)                               (SARANG V. KOTWAL, J.)



PRADIPKUMAR            Deshmane (PS)
PRAKASHRAO
DESHMANE
 Digitally signed by
 PRADIPKUMAR
 PRAKASHRAO                                                                                                  26 of 26
 DESHMANE
 Date: 2026.02.04
 10:55:34 +0530


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