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
- Bharatiya Nagarik Suraksha Sanhita — s. 481
- Code of Criminal Procedure, 1973 — s. 164
- Indian Evidence Act, 1872 — s. 106, 27
- Indian Penal Code, 1860 — s. 302
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
:1: 901-apeal-380-2023-j.odt
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.
1 of 26
Deshmane(PS)
:2: 901-apeal-380-2023-j.odt
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
2 of 26
:3: 901-apeal-380-2023-j.odt
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
3 of 26
:4: 901-apeal-380-2023-j.odt
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.
4 of 26
:5: 901-apeal-380-2023-j.odt
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
5 of 26
:6: 901-apeal-380-2023-j.odt
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
6 of 26
:7: 901-apeal-380-2023-j.odt
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
7 of 26
:8: 901-apeal-380-2023-j.odt
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
8 of 26
:9: 901-apeal-380-2023-j.odt
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.
9 of 26
: 10 : 901-apeal-380-2023-j.odt
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
10 of 26
: 11 : 901-apeal-380-2023-j.odt
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
11 of 26
: 12 : 901-apeal-380-2023-j.odt
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
12 of 26
: 13 : 901-apeal-380-2023-j.odt
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
13 of 26
: 14 : 901-apeal-380-2023-j.odt
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
14 of 26
: 15 : 901-apeal-380-2023-j.odt
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.
15 of 26
: 16 : 901-apeal-380-2023-j.odt
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.
16 of 26
: 17 : 901-apeal-380-2023-j.odt
. 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
17 of 26
: 18 : 901-apeal-380-2023-j.odt
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.
18 of 26
: 19 : 901-apeal-380-2023-j.odt
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
19 of 26
: 20 : 901-apeal-380-2023-j.odt
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
20 of 26
: 21 : 901-apeal-380-2023-j.odt
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
21 of 26
: 22 : 901-apeal-380-2023-j.odt
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
22 of 26
: 23 : 901-apeal-380-2023-j.odt
‘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
23 of 26
: 24 : 901-apeal-380-2023-j.odt
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
24 of 26
: 25 : 901-apeal-380-2023-j.odt
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 :
25 of 26
: 26 : 901-apeal-380-2023-j.odt
:: 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
Checking your session…