Bombay High Court
Jitendrakumar Karansingh Yadav vs Dadra And Nagar Haveli on 4 August, 2026
Author: Bharati Dangre
Bench: Bharati Dangre
CNR No : HCBM010059752019
1/45 901 Apeal.251.2019, J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 251 OF 2019
Jitendrakumar Karansingh Yadav
Aged about 36 years, Indian Inhabitant,
Residing at Nagla Tejpal, Tah-Tundla,
Tundla, District Firozabad (U.P.) and
presently lodged in Lajpor Central, Surat,
... Appellant
State of Gujarat.
Versus
1) Dadra And Nagar Haveli
Administration Through the Public
Prosecutor, High Court (A.S.)
Bombay.
2) Miss. Vishakha Vinodkumar Mishra;
3) Miss. Akankasha Vinodkumar Mishra;
4) Master Ujwal Vinodkumar Mishra;
5) Master Upal Vinodkumar Mishra
All R/o. : at Junipar, B/604, Park City,
Silvasa, District - Silvassa
PERMANENT RESIDENT of Susivant
Bujurg, Post Logava, Thana Gajipur,
Dist.: Fatehpur, Uttar Pradesh. ...Respondent
WITH
CRIMINAL APPEAL NO. 261 OF 2019
WITH
INTERIM APPLICATION NO. 916 OF 2022
IN
CRIMINAL APPEAL NO. 261 OF 2019
RAJESHRI
PRAKASH
AHER Sugriv @ Setu Gyanprakash Yadav
Digitally signed by
RAJESHRI PRAKASH
AHER
Aged about 23 years, Indian Inhabitant,
Date: 2026.08.05
13:15:37 +0530 residing at Nagla Jhamman, Tah - Tundla,
Rajeshri Aher
Uploaded on - 04/08/2026 Downloaded on - 05/08/2026 23:23:18
2/45 901 Apeal.251.2019, J.doc
Tundla, District Firozabad (U.P.) and
presently lodged in Lajpor Central, Surat, ... Appellant
State of Gujarat.
Versus
1] Dadra And Nagar Haveli
Administration, through the Public
Prosecutor, High Court (A.S.),
Bombay.
2] Miss. Vishakha Vinodkumar Mishra;
3] Miss.Akankasha Vinodkumar
Mishra;
4] Master Ujwal Vinodkumar Mishra;
5] Master Upal Vinodkumar Mishra
All R/o. At Junipar, B/604, Park
City, Silvasa, District : Silvasa.
PERMANENT RESIDENT of
Susivant Bujurg, Post Logava, Thana
Gajipur, Dist.: Fatehpur, Uttar ...Respondents
Pradesh.
WITH
CRIMINAL APPEAL NO. 250 OF 2019
WITH
INTERIM APPLICATION NO. 915 OF 2022
WITH
INTERIM APPLICATION NO. 3251 OF 2023
WITH
INTERIM APPLICATION (ST.) NO. 2417 OF 2020
IN
CRIMINAL APPEAL NO. 250 OF 2019
Manish Devendraprasad Yadav
Aged about 27 years, Indian Inhabitant,
Residing at Naglasona, Tah-Tundla,
Tundla, District Firozabad (U.P.) and
presently lodged in Lajpor Central, Surat,
... Appellant
Sate of Gujarat.
Versus
1] Dadra And Nagar Haveli
Administration, through the Public
Rajeshri Aher
Uploaded on - 04/08/2026 Downloaded on - 05/08/2026 23:23:18
3/45 901 Apeal.251.2019, J.doc
Prosecutor, High Court (A.S.),
Bombay.
2] Miss. Vishakha Vinodkumar Mishra;
3] Miss.Akankasha Vinodkumar Mishra;
4] Master Ujwal Vinodkumar Mishra;
5] Master Upal Vinodkumar Mishra
All R/o. At Junipar, B/604, Park City,
Silvasa, District : Silvasa.
PERMANENT RESIDENT of
Susivant Bujurg, Post Logava, Thana
Gajipur, Dist.: Fatehpur, Uttar
...Respondent
Pradesh.
WITH
CRIMINAL APPEAL NO. 253 OF 2019
WITH
INTERIM APPLICATION NO. 918 OF 2022
IN
CRIMINAL APPEAL NO. 253 OF 2019
Arshmohammad Lalmohammad
Aged about 32 years, Indian Inhabitant,
Residing at Nagla Maszid, Linepar, Tundla,
District Firozabad (U.P.) and presently
lodged in Lajpor Central, Surat, State of
... Appellant
Gujarat.
Versus
1] Dadra And Nagar Haveli
Administration, through the Public
Prosecutor, High Court (A.S.),
Bombay.
2] Miss. Vishakha Vinodkumar Mishra;
3] Miss.Akankasha Vinodkumar Mishra;
4] Master Ujwal Vinodkumar Mishra;
5] Master Upal Vinodkumar Mishra
All R/o. At Junipar, B/604, Park City,
Silvasa, District : Silvasa.
PERMANENT RESIDENT of
Susivant Bujurg, Post Logava, Thana
Rajeshri Aher
Uploaded on - 04/08/2026 Downloaded on - 05/08/2026 23:23:18
4/45 901 Apeal.251.2019, J.doc
Gajipur, Dist.: Fatehpur, Uttar
Pradesh. ...Respondents
WITH
CRIMINAL APPEAL NO. 252 OF 2019
WITH
INTERIM APPLICATION NO. 2178 OF 2022
WITH
INTERIM APPLICATION NO. 154 OF 2026
WITH
INTERIM APPLICATION NO. 4570 OF 2023
IN
CRIMINAL APPEAL NO. 252 OF 2019
Vivek Krishnamurari Shrivastav
Aged about 48 years, Indian Inhabitant,
Residing at Swagatam Apartment, Sector
162, Noida, U.P. and presently lodged in
Lajor Central, Surat, State of Gujarat. ... Appellant
Versus
1] Dadra And Nagar Haveli
Administration, through the Public
Prosecutor, High Court (A.S.),
Bombay.
2] Miss. Vishakha Vinodkumar Mishra;
3] Miss.Akankasha Vinodkumar
Mishra;
4] Master Ujwal Vinodkumar Mishra;
5] Master Upal Vinodkumar Mishra
All R/o. At Junipar, B/604, Park
City, Silvasa, District : Silvasa.
PERMANENT RESIDENT of
Susivant Bujurg, Post Logava, Thana
Gajipur, Dist.: Fatehpur, Uttar ...Respondents
Pradesh.
Rajeshri Aher
Uploaded on - 04/08/2026 Downloaded on - 05/08/2026 23:23:18
5/45 901 Apeal.251.2019, J.doc
Mr. Sandesh More, Advocate for the Applicant in Appeal 252 of
2019.
Mr. Kuldeep Patil i/b. Mr. Ajay Gaikwad a/w. Mr. Akash Sawale,
Advocate for the Appellant in Appeal 253 of 2019.
Mr. Hitendra Gandhi, Advocate for the Appellant in Appeal 251 of
2019.
Mr. Sandesh More, Advocate for the Appellant in Appeal 250 of
2019.
Mr. Hemant Ghadigaonkar a/w. Mr. Om Gandhi, Advocate for the
Appellant in Appeal 261 of 2019.
Mr. Ashwin Thool, Special P.P. a/w. Mr. Ayush Singh and
Archishmati Chandramore, Advocate for Respondent UT of
Dadra and Nagar Haveli.
Mr. Tanveer Khan, APP for the State.
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
RESERVED ON : 8th APRIL, 2026.
PRONOUNCED ON : 4th AUGUST, 2026.
JUDGMENT (Per : Manjusha Deshpande, J.) :
–
1. In all these Appeals the Appellants are challenging the
judgment and order of conviction passed by the Sessions Judge,
Dadra and Nagar Haveli, Silvassa, in Sessions Case No. 15 of 2012
dated 26.10.2018, whereby the Appellants have been convicted for
the offences punishable under Sections 302, 120B read with Section
34 of the Indian Penal Code (“IPC“), sentencing them to suffer
rigorous imprisonment for life with a fine of Rs. 5,000/- and in
default of payment of fine, to suffer further rigorous imprisonment
for two years.
Rajeshri Aher
Uploaded on - 04/08/2026 Downloaded on - 05/08/2026 23:23:18
6/45 901 Apeal.251.2019, J.doc
Since all the Appeals are arising out of the same offences and
decided by a common judgment of conviction, all the Appeals are
being heard and decided together.
2. The brief summary of facts giving rise to the conviction of the
Appellants as pleaded by the prosecution is as under:
The informant PW No. 1 Pankaj Ramchandra Yadav lodged
FIR at Silvassa Police Station on 29.11.2011, informing that he had
received a call from Master Ujjwal son of Vinod Satyanarayan Mishra
at about 7:30 p.m. that his father was injured in a firing incident and
was taken to the Government Civil Hospital, Silvassa, requesting the
informant to immediately reach the Hospital. The informant visited
the Hospital and found that wife of Vinod Mishra (deceased)
alongwith their son, daughter and staff members of Reliance
company was present in the hospital. He noticed dead body of Vinod
Mishra on the stretcher with bullet injuries on his neck and head
oozing with blood. He came to know that in the evening while
Vinod Mishra was returning from his work in his car towards his
house, he had withdrawn some cash from the ATM of SBI, Naroli
Road, opposite Pramukh Darshan, Silvassa. After visiting the ATM,
when he was about to sit in his car to proceed towards his house at
about 6:45 p.m. two persons came on a motorcycle and fired at him
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
7/45 901 Apeal.251.2019, J.docresulting in his death. On the basis of this report on 30.11.2011,
C.R. No. 278 of 2011, was registered against unknown persons for
offence punishable under Section 302 r/w. Section 34 of the IPC and
Upon registration of the offence, and on completion of
investigation, chargesheet came to be filed.
3. The offence was registered against unknown persons since
there was no eye witness to the incident. However, during the
investigation, the officer of Crime Branch gathered information that,
some years ago Vivek Shrivastav, Accused No. 1 (hereinafter referred
to as, “A-1”, for short) and deceased Vinod Mishra used to work
together in Reliance Company at Allahabad and there was
extramarital affair between A-1 and wife of the deceased Ms Sarita
Mishra. On receiving such information, the IO collected the details
of mobile number of A-1 and wife of deceased. On gathering
information about their cell numbers, from the CDR of both the
numbers, it transpired that there was exchange of several calls
between the A-1 and wife of the deceased. Therefore, A-1 Vivek
Shrivastav was arrested and one cellphone of Blackberry company
was seized from him. From the call details of the mobile number
9811991600 i.e. the mobile of A-1, a phone call from Cell No.
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
8/45 901 Apeal.251.2019, J.doc
8057788316 from U.P. was traced. When the tower location of the
said cell number 8057788316 was traced it was found that, it was
located in Silvassa and Kharadpada on the day of incident, i.e. on
29.11.2011. The other call details from the cell number revealed
three cell numbers, i.e., 8445269532, 7599085282 and
9045132794, were also operating from the vicinity of the tower
situated at the place of incident in Silvassa on 29.11.2011.
Therefore, the IO has collected information about the Customer
Application Forms and CDR of those Cell numbers. On the basis of
the information received from the service provider, Accused No.4
(hereinafter referred to as, “A-4”, for short) and Accused No. 5
(hereinafter referred to as, “A-5”, for short) were located and were
arrested. During their custody, A-4 disclosed that, they had stayed in
G.M. Guest House, Vapi, and prior to that, they also stayed in Jay
International Hotel at Vapi. A-5 Sugriv Gangaprasad Yadav in his
statement made under Section 27 of the Evidence Act, 1872
disclosed that, A-4 fired on Vinod Mishra on 29.11.2011, and has
thrown the revolver in Ambika river. He expressed his willingness to
show the place, where the weapon was concealed. However, due to
flowing water in the river, nothing could be recovered from the bed
of river. He also disclosed that after leaving Vapi, they had halted at
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
9/45 901 Apeal.251.2019, J.doc
Janta Guest House, Surat. A-4 has taken the IO to the house of
Aarsh Mohammad Accused No. 2 (hereinafter referred to as, “A-2”,
for short) at Tundla in UP, but he was not located. Even, Jitendra,
Accused No. 3 (hereinafter referred to as, “A-3”, for short) was not
found in his house, but during search of his home, bills of Hotel
were seized from his house.
The incriminating evidence collected by the prosecution to
prove guilt of the A-1 to A-5, which eventually resulted in their
conviction is as follows: (i) the CDR of the mobile phone of all the
accused; (ii) the statement of PW-4 Vishakha daughter of deceased;
(iii) hotel bills of three different hotels, i.e. Jay International, Vapi,
G.M. Guest House, Vapi, Janta Guest House, Surat. The ID proof of
A-3, A-4 and A-5 and extract of the register was collected from these
hotels; (iv) the CDR locations of all the accused were also collected
which disclose their location in and around at the place where the
incident had occurred.
In order to prove the ‘motive’, reliance is placed on the CDRs
and calls between A-1 and Sarita Mishra wife of deceased.
4. It is the case of the prosecution that a conspiracy was hatched
by A-1- Vivek to eliminate the deceased Vinod Mishra since he was
proving to be hurdle in the extramarital affair with his wife Sarita,
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
10/45 901 Apeal.251.2019, J.doc
for which he had hired A-2 to A-6 (Accused No. 6 is absconding), for
which he had paid consideration in four different transactions by
depositing amounts in the bank account of Accused No. 3- Jitendra
Karansingh. Thus, on the basis of the transaction in the SBI account
of A-3, a theory of conspiracy was supported by the prosecution.
5. The prosecution has thus developed the story of conspiracy to
eliminate the deceased by A-1. It is alleged that A-1 hired A-2 to A-6
and had made payment for eliminating the deceased, accordingly
they have executed the works. Their participation in the offence is
traced from the CDR of the cell number of A-1 and was further
strengthened from the tower location of the SIM used by them,
which was found to be in and around the place of offence, and their
stay at hotels at Vapi and Surat, before and after the commission of
offence. Thus, on the basis of the aforementioned evidence, the
learned Judge of the Sessions Court at Silvassa, being satisfied with
the complicity of all the accused, has passed judgment convicting all
accused for the offences punishable under Sections 302, 120B read
with 34 of the IPC.
6. The learned counsel appearing for the respective Appellants
have advanced following submissions:
Criminal Appeal No. 252 of 2019: (Accused No. 1)
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
11/45 901 Apeal.251.2019, J.docMr. Sandesh More, learned counsel for A-1 , who is the alleged
master mind and conspirator of the offence submitted that,
prosecution has failed to prove the ‘motive’ for commission of the
offence, more particularly when the entire case is based on
circumstantial evidence. Although PW-4 Vishakha has deposed about
the alleged extramarital affair of her mother with A-1, there are
number of contradictions and omissions in her testimony. The
prosecution has failed to prove exactly which of the accused had
fired the shot from the gun at the deceased. There is no recovery of
the ‘weapon’, i.e. revolver. Even the procedure during the
investigation of the offence is tainted, since no proper procedure
while arresting A-1 was followed by P.W.-37. The cell number
9711991600 which is allegedly owned by A-1, does not stand in his
name but in the name of the company “Bajaj Hindusthan limited”,
thus, the exchange of call from that number to the cell number of
wife of the deceased Sarita cannot be attributed to him.
7. So far as the electronic record i.e. the CDR is concerned,
according to him, no certificate under Section 65 B(4) has been
issued, thus, the evidence regarding CDR is inadmissible. Most
importantly, the tower locations and google maps were not exhibited
before the trial Court and have not been proved. He therefore
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
12/45 901 Apeal.251.2019, J.doc
submitted that since the whole case of the prosecution rests on the
circumstantial evidence, each link has to be proved by the
prosecution beyond reasonable doubt and in case of absence of a
single missing link, the benefit is required to be given to the accused.
In support of his submission, he placed reliance on the reported
judgment of Ravi Vs. State of Punjab1.
Criminal Appeal No. 253 of 2019: (Accused No. 2)
8. Learned Advocate Mr. Ajay Gaikwad for Aarsh Mohd. Lal
Mohd. A-2 would submit that, although this case is based on
circumstantial evidence, the prosecution has miserably failed to
produce any evidence of whatsoever nature to prove the complicity
of the accused. Eventhough the prosecution claims that, they have
traced A-2 from his mobile number 8445269532, the said mobile
number does not belong to him, nor does it match with the ID proof
submitted for securing connection to the service provider. Therefore,
the evidence on the basis on which he has been arrested is not
proved by the prosecution.
He further submits that the ID proof of A-2 was not found in
any of the register of the guest house. There is no recovery of
1 (2025) 3 SCC 584
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
13/45 901 Apeal.251.2019, J.doc
alleged mobile from his possession. The arrest panchanama does
not disclose the mobile calling number of A-2. Though the CDR
report is produced through PW-32 Nodal Officer of the Uninor
Company, it is not proved by producing certificate under Section 65B
of the Evidence Act. In fact, the said mobile number does not belong
to him nor does it stand in his name; it stands in the name of one
Mr. Ajay Shreeram resident of Nagla District Firozabad (U.P). It is
therefore submitted that, there is no evidence available against A-2,
inspite of which the learned judge of the Sessions Court has
convicted him, causing grave injustice and great prejudice, which
needs to be appreciated by this Court, by setting aside the Judgment
of conviction.
Criminal Appeal No. 251 of 2019: (Accused No. 3)
9. Mr. Hitendra Gandhi, learned counsel appearing for A-3
submitted that whole story of the prosecution is based only on the
CDRs of the respective accused. Though reliance is placed on the
CDRs of particular cell number, the said cell number does not belong
to the accused nor is it recovered from his custody. The ID proof
submitted to secure connection of the said cell number did not
match with his ID proof. Though the PW-21, Manager of Janta Guest
house at Surat and PW-28 Sujit Kumar, Manager G. M. Guest House at
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
14/45 901 Apeal.251.2019, J.doc
Vapi were examined for his stay at these two places, there is nothing
on record to show that they identified the accused. There is no Test
Identification (TI) Parade conducted by the prosecution.
According to the learned counsel, doc identification is not
reliable when there is no prior TI Parade, hence the benefit of doubt
is required to be given to the accused. Although it is alleged that a
motorcycle was used in the offence and A-3 was instrumental in
taking delivery of the motorbike, nothing is produced by the
prosecution to prove that the delivery of motorbike was taken by A-3
and even the alleged motorbike has not been seized.
Although it is alleged that A-1 had deposited amounts in the
account of A-3 on four different occasions, allegedly towards the
payment made for the commission of the offence. It is totally denied
by A-3, contending that he also being an employee of the Company
“Bajaj Hindusthan” received the amount deposited by A-1. It is
submitted that though it is alleged by the prosecution that cell
number 9911295438 belongs to him, the arrest panchanama
discloses that the cell phone with the above number was not
recovered from A-3, there is no CDR report of the aforesaid mobile
number. Thus, according to him, the prosecution has miserably
failed to prove his complicity in the offence. Inspite of which he has
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
15/45 901 Apeal.251.2019, J.doc
been convicted for the offence, that is not committed by him.
Criminal Appeal No. 250 of 2019: (Accused No. 4)
10. The learned Counsel Mr. Sandesh More for A-4 submitted that
inspite of the failure of the prosecution to prove the motive or
produce any substantive evidence, the learned Judge of the Sessions
Court has recorded conviction against the accused. It is submitted
that, except the CDRs of mobile number 805778316, there is no
other evidence against A-4. PW-26 the Nodal Officer, who was
examined to prove the said cell number has failed to prove it.
Neither the bike nor the firearms used in the offence are recovered.
Certificate under Section 65B (4) to prove the CDR, has not been
produced by the prosecution making the evidence inadmissible. It is
thus submitted that there is no substantial evidence produced by the
prosecution, so as to convict the accused, when it is a settled law
that in case of circumstantial evidence the prosecution has to prove
the case beyond reasonable doubt. With the scanty material
produced by the prosecution, which does not have any evidentiary
value the learned Judge has recorded finding of conviction, which
deserves to be quashed and set aside.
Criminal Appeal No. 261 of 2019: (Accused No. 5)
11. Learned Advocate Mr. Hemant Ghadigaonkar for the
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
16/45 901 Apeal.251.2019, J.doc
Appellant, Sugriv @ Setu Ganprakash Yadav, (Org. Accused No. 5)
submits that allegations against him are that he was the pillion rider
of the motorcycle which was used in the offence. He allegedly fired
from the revolver at the deceased in the incident near the ATM of
the State Bank of India. It is the contention of the Appellant that
even though, it is alleged that A-5 was the one who fired at the
deceased, neither the revolver which was used, has been recovered
nor the motorbike has been recovered. Thus, the case of the
prosecution is entirely based on suspicion. There is no TI Parade
conducted by the IO for identification of the accused. The only
incriminating material available against A-5 is, the CDR made from
Cell No. 9045132794. The CDR disclosed that the said mobile
number was located at the place of incident, during the period when
the incident had taken place.
12. The learned Advocate for the Appellant submits that even if
his alleged involvement in the offence is based on the CDR of a cell
phone, the alleged cellphone is not recovered from possession of A-
5, which finds support from the arrest panchanama. Just because
the CDR location of Cell No. 9045132794 was found to be located
near the place of incident, cannot be a ground for implicating A-5.
The allegations are also that the aforesaid mobile calling number
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
17/45 901 Apeal.251.2019, J.doc
was found for almost 15 days in the vicinity of the incident. Apart
from that, it is submitted that the CDR report is not supported by
certificate under Section 65(B) of the Evidence Act. This fact has
been admitted by PW- 25, who was the Nodal Officer of the service
provider of TATA Tele Services, issuing the alleged SIM card.
13. He further submits that, though it is alleged by the
prosecution that the mobile calling number 9045132794 belonged to
A-5, the Nodal Officer PW-25 produced the application form of the
connection, which disclosed that it stands in name of Prem Kumar
and not the accused. The prosecution has failed to examine so called
Prem Kumar in order to establish that, the mobile calling number
9045132794 was in custody of the A-5.
Further reliance is placed on PW-19 the Manager of the GIDC,
Vapi, who has stated that there was one person named Bunty who
was staying in their guest house, he had given his mobile number
9058932616, which is a different number from the mobile number
allegedly found in the CDR of the place of incident. Thus, according
to him, the prosecution has failed to establish that A-5 was in use of
mobile calling number 9045132794, which was used by him to keep
in touch with the other accused. He therefore submitted that, there
is no evidence of substantive nature produced against him that
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
18/45 901 Apeal.251.2019, J.doc
would prove complicity of the accused in the offence. Thus, the
judgment and order of conviction passed against A-5 is required to
be quashed and set aside.
14. The learned APP Mr. Khan has vehemently opposed the
submissions made by the respective counsel appearing for the
Appellant- convicts. According to him, although there is no eye
witness to the incident, which has resulted in an offence u/s 302 of
IPC, it is a clear case of conspiracy hatched by A-1 Vivek Srivastav,
who is the instigator and the mastermind behind the commission of
offence. He has hired A-2 to A-5 for execution of his plan.
He submits that PW-4, the daughter of deceased in no
uncertain terms has stated that A-1 used to call her mother and
there used to be long talks between them. She also stated that there
was quarrel between her mother and wife of A-1 Meera, since she
did not approve of the frequent calls between A-1 and wife of the
deceased. She has stated that even after her father was transferred
to Nagpur and thereafter to Vapi, the conversation between them
continued and it was the reason for quarrel between the deceased
and his wife. She has narrated one occasion, while she was sitting
beside her father one day he received call from A-1, who threatened
to kill her father.
Rajeshri Aher
Uploaded on - 04/08/2026 Downloaded on - 05/08/2026 23:23:18
19/45 901 Apeal.251.2019, J.doc
P.W. 7 Kalpesh Solanki, Manager in Reliance Communications,
Kharadpada has stated that, he also had heard about extramarital
affairs between Vivek and wife of deceased,
Thus, according to the learned APP, the ‘motive’ for commission of
the offence by A-1 Vivek Srivastav has been proved through the
testimony of PW-4.
15. Mr. Khan further submitted that, in order to execute his plan,
A-1 had hired A-2 to A-5 and A-3 was the financial co-ordinator. A-1
had deposited Rs.40,000/- in the account of A-3, i.e. Rs.10,000/-
each on 27.08.2011 and similar amount on 26.11.2011, 30.11.2011
and 01.12.2011. The prosecution has examined PW-12, Branch
Manager of SBI, Sarangpur, U.P., who stated that accused had
deposited Rs.10,000/- each in the account of A-3 on 27.08.2011,
26.11.2011, 01.12.2011. These amounts have been deposited by A-1
towards the consideration of execution of the plan to eliminate the
deceased, these amounts are the contract money for execution of the
conspiracy hatched by A-1. It is proved by examining PW-12
Jayshankar, Bank Manager SBI, which clearly supports the
prosecution case that A-1 had hired A-2 to A-5 for commission of the
offence for which A-1 deposited the amounts in the account of A-3.
16. The learned APP has drawn our attention to the various dates
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
20/45 901 Apeal.251.2019, J.doc
on which the accused persons have visited Silvassa, for conducting
surveillance and after committing the offence they have left the
hotel. The details of those hotels and the ID proofs of the accused
submitted in hotels have been collected during the investigation
which forms part of the record. The chronology dates of the visits of
A-3, A-4, A-5 at Silvassa, Vapi and their stay at guest house/hotels is
as follows:
On 30.07.2011 at Ran Basera Guest House; from 18.08.2011
to 30.08.2011; at Jay International Hotel between 18.10.2011 to
22.10.2011; between 24.11.2011 and 29.11.2011 at G.M. Guest
House, and at Janta Guest House from 29.11.2011 to 30.11.2011.
The prosecution has collected the ID proofs of the A-3, A-4 and A-5
from these hotels/guest houses, pursuant to the memorandum
statement given by them, and also recorded the statement of the
managers of the guest house/hotel who identified the A-3 to A-5.
Thus, it stands proved that the A-2 to A-5, who reside in U.P. were
hired by A-1 who also is resident of U.P. for commission of offence at
Silvassa for which they had caused surveillance on the dates as
referred hereinabove, and even on the date on which the offence has
taken place.
Mr. Khan further relies on the CDR of the mobile numbers of
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
21/45 901 Apeal.251.2019, J.doc
the accused persons, which shows that, all the accused were within
the vicinity of the place where the offence has been committed and
they were in contact with each other. According to him, the CDR of
A-2 to A-5 and A-1 shows that, not only were they in the vicinity of
the place of offence, but they were also in contact with each other,
which fortifies the case of the prosecution about the complicity of
accused in the offence.
He further submitted that, so far as the complicity of A-1 is
concerned, though he was not present at the place where offence
has taken place or even in the vicinity, he is the conspirator of the
offence, which is proved through the various call details between
him and A-2, A-3 and A-5. The clinching evidence available against
A-1 is the blackberry mobile phone, which has been seized from him
after his arrest. Various calls from the said calling number are also
detected between A-1 and the wife of the deceased. This itself
renders strong support for the ‘motive’ for commission of offence.
He submits that the tower location record of the accused
persons on the date of the incident and on the subsequent occasion
when they visited the place to effect the recovery have been duly
proved through the evidence of the Nodal Officers. Mr. Khan,
therefore, submits that the prosecution has established the motive
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
22/45 901 Apeal.251.2019, J.doc
for commission of offence by A-1 by hiring A-2 to A-5, for which they
were paid through A-3. The location of the cell numbers of A-2 to A-
5 proves that they were present at the location where the incident
has occurred, which is further supported from the evidence which
discloses that, they have stayed at the hotels before and after
commission of the offence. Hence, according to him, the chain of
circumstantial evidence is established, which points only towards the
guilt of the accused.
17. In support of his submission, he relies on the recent decision
of the Hon’ble Supreme Court in case of Kum. Shubha @
Shubhashankar Versus State of Karnataka and Another 2, more
particularly, on para 86 of the said judgment, where the Hon’ble
Supreme Court has observed that while CDR data may not be
construed as substantive piece of evidence but it is certainly to be
used for appropriate corroboration. One has to see the attending
circumstances to decide the evidentiary value of CDR, and it is
possible that the evidence is so overwhelming and the conduct of
accused is such that, he is bound to give a sufficient explanation for
it, but he fails to do so, in such case, the CDR might even take the
2 2025 SCC OnLine SC 1426
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
23/45 901 Apeal.251.2019, J.doc
place of substantive evidence. In view of the aforementioned
observation by the Hon’ble Supreme Court, Mr. Khan submits that
even in this case the attending circumstances warrant that the CDR
should be treated as substantive evidence.
18. We have heard the respective Advocates appearing for the
Appellants and the APP for the State. With their assistance we have
also perused the evidence in the form of testimony of witnesses, and
the supporting documents produced by the prosecution.
The case of the prosecution is undoubtedly based on
circumstantial evidence, hence we are guided by the decision of the
Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda v.
State of Maharashtra3, which lays down the following guiding
principles, which reads thus:
“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal distinction
3 (1984) 4 SCC 116Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
24/45 901 Apeal.251.2019, J.docbetween “may be proved” and “must be or should be proved” as
was held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl
LJ 1783] where the observations were made: [SCC para 19, p. 807:
SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and
the mental distance between ‘may be’ and ‘must be’ is long and
divides vague conjectures from sure conclusions.”
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused.”
The same principles have been followed and reiterated in
plethora of subsequent judgments which lay down more or less the
same principles for cases governing circumstantial evidence wherein,
the chain of events is required to be proved by reliable and clinching
evidence, which points only towards the guilt of the accused. No
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
25/45 901 Apeal.251.2019, J.doc
other hypothesis, other than the guilt of the accused is possible. The
Courts have to satisfy themselves that the circumstances in the chain
of evidence rules out every other possibility except the guilt of the
accused. Applying the aforementioned ratio, the Hon’ble Supreme
Court in case of Navneet Krishnan Vs. State by Inspector of Police 4
has also cautioned the Courts that the Court has to be watchful and
avoid the danger of allowing the suspicion to take the place of legal
proof. Sometimes, unconsciously it may happen to be a short step
between moral certainty and legal proof. Hence, the Court should
be mindful of the caution, in its decisions, on the settled principles
of law when a prosecution case rests on circumstantial evidence.
Unless the complete chain, of circumstantial evidence is established
without a snap in the chain pointing towards the hypothesis against
guilt of accused, it is not advisable to give a finding of conviction
against the accused.
Keeping in mind the aforesaid observations and settled
position of law, we proceed to analyze the present case. The incident
had occurred on a busy road on 29.11.2011, there is no eye- witness
4 2018 16 SCC 161
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
26/45 901 Apeal.251.2019, J.doc
to the incident. The P.W. 37 has stated in his testimony that, when he
reached the place of incident, he was informed that, the deceased
was shot by two persons riding on a motor cycle, he has not
recorded the statement of the person who gave this information. He
admitted in his cross examination that, the said person had not
given him the description of those motorists Thus, the investigation
was required to proceed without any clue about the assailants.
Motive
19. It is the case of the prosecution that A-1 is the mastermind
and conspirator of the offence, who has hatched the conspiracy
which was executed by him, through A-2 to A-5 and one more
accused who is absconding. The alleged ‘motive’, according to the
prosecution is that, the A-1 Vivek Srivastav had an extramarital
affair with the wife of the deceased Vinod Mishra, therefore he
wanted to remove the deceased from their way who was proving to
be hurdle in his affair. To support this theory of affair and to prove
the ‘motive’, the prosecution has examined PW-4 Vishakha, the
daughter of the deceased, who has supported the prosecution and
stated that there used to be frequent calls between A-1 and her
mother, and these calls would go on for a long duration. She also
stated that, her father had received threats to his life from A-1 on his
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
27/45 901 Apeal.251.2019, J.doc
cell phone. Which is not proved due to omission in the statement
recorded under Section 161 of Evidence Act, 1872. Except calls
between A-1 and her mother, nothing material could be elicited from
this witness.
20. In addition to from PW-4, there is one more witness PW-7,
Manager of Reliance Communication, who has stated, he had heard
the wife of deceased was in relationship with A-1. This deposition is
also hearsay, therefore, it does not carry any evidentiary value.
21. To prove ‘motive’, a higher degree of proof is required, much
more than frequent telephonic conversations. Both these witnesses
have merely stated about the affair between A-1 and the wife of the
deceased. Both the witness do not have personal knowledge about
any meetings between A-1 & wife of deceased, or any other Act,
which supports the allegations of an affair.
Suspecting the A-1, the call details from his mobile SIM card
calling number 9811991600 were collected by the I.O. The call
details disclosed that there are number of calls exchanged between
SIM of A-1 to the SIM card of Sarita, wife of the deceased. Although
heavy reliance is placed on his Blackberry cell phone with SIM card
number 9811991600, the fact remains that, the aforementioned
handset, has not been seized from the A-1, at the time of his arrest
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
28/45 901 Apeal.251.2019, J.doc
on 15.12.2011.
22. His mobile handset has been seized on 16.12.2011. The
suspicion about A-1 itself was based on the call details, which were
made from the very handset with the SIM. Surprisingly it is revealed
from the testimony of P.W. 35 I.O. who arrested A-1 that, he had
taken search of accused after his arrest and found mobile handset on
his person, but he did not seize the same. P.W. 36, PSI at Silvassa
has stated that, on 16.12.2011, when A-1 was brought to the police
station, the PSI has seized the Blackberry mobile handset from the
custody A-1. The mobile handset, which is a crucial evidence in the
present case, has not been seized at the first opportunity, which
creates doubt. Hence, the seizure of mobile handset on 16.12.2011,
is not a reliable and trustworthy evidence, particularly, when the
whole story itself is woven around the calls made from the very
Blackberry phone, to the wife of the deceased, as well as A-2 to A-5.
Thus, this piece of evidence which is a link in chain of evidence
creates doubt.
23. The other reason for doubting this evidence is that, P.W. 31 the
Nodal Officer of the Vodafone company is examined to prove SIM
No. 9811991600, which is allegedly used by the A-1. Who has stated
that, the application form for issuing Sim of the said company was
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
29/45 901 Apeal.251.2019, J.doc
not traceable. He admitted that even though the card was issued in
the name of the company, it can be used by any of the staff
members. Prosecution has relied on the personal E-mails received by
A-1 to prove, the Blackberry mobile handset alongwith the SIM was
exclusively used by the A-1. But the E-mails addressed to the A-1,
were also addressed in his official capacity, therefore, merely
receiving the E-mails on the aforementioned mobile handset, does
not establish use of the handset exclusively by A-1.
24. As regards the reliance on the exchange of calls between A-1
and wife of the deceased, to prove the existence of their affair is
concerned calls between them in itself are not sufficient to prove the
extra marital affair. For establishing extra marital affair there has to
be substantive evidence in addition to the calls. Thus, the
prosecution has failed to establish the extra marital affair between
the A-1 and the wife of the deceased, which is the motive for
commission of the offence.
Conspiracy
25. According to P.W. 37, the I.O., when he collected the data of
the mobile tower of the locality, it disclosed that A-1 was not present
in Silvassa, hence, he suspected that he might have hired contract
killers. It was revealed that one calling number of Idea Company
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
30/45 901 Apeal.251.2019, J.doc
from U.P. had made contact with the A-1 and the CDR of that SIM
was found on the location, of the incident. The user of that SIM card
was in contact with 3 other SIM card holders, whose location was
found in Silvassa and Kharadpada. After collecting this information
P.W.37, the IO, has proceeded to Agra. The user of 2 cell phone
numbers, i.e. 8057781316 of Manish Devendra Prasad (A-4) and
9045132794 of Sugriv (A-5) were traced and arrested. Similarly, the
other two accused i.e. A-2 and A-3 were also arrested on the basis of
location of their cell phones.
26. In order to establish the complicity of A-2 to A-5, the Nodal
Officers of the respective service provider companies have been
examined to prove the CDRs of those SIMs, allegedly used by the
accused, were found within the vicinity, of the incident. PW-26
Bhavik Arvind Joshi, PW-27 Ganesh Ramrao Pawar, PW-31 Tejesh,
PW- 32 Sarob Gurumit Singh, respective nodal officers of the service
provider companies have been examined by the prosecution.
So far as A-2 Aarsh Mohamed is concerned, his conviction is
solely based on the series of calls between him and A-1, A-2 and A-4.
The mobile number attributed to A-2 is 8445269532. It is alleged
that he has established contact with the other accused from this very
SIM card. To establish the complicity of A-2, the prosecution has
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
31/45 901 Apeal.251.2019, J.doc
examined P.W. 32 Mr. Sarov Singh, Nodal Officer of Uninor
Company, Gujarat, who has stated that, the aforementioned SIM
card was registered in the name of one, ‘Ajay Shreeram’, resident of
Firozabad. In view of this admission, the burden was on the
prosecution to prove the SIM card along with the mobile handset,
seized from the possession of A-2, was used by him. Prosecution has
examined P.W. 16, brother of said Ajay Kumar Agrawal, who has
stated that, except some entries in the form for availing the
connection of SIM card, all entries in the form were wrong, the
signature on the form did not belong to his brother. His brothers cell
phone number was 9873654520. On this background the testimony
of P.W. 23 Dharmendra Govindas Shah, disclosing name Aarsh in the
contact list of the Blackberry phone used by A-1, loses its
significance, since use of that SIM card by A-2, itself is not proved.
Thus, the prosecution has failed to establish that the SIM card with
calling number 8445269532, was used by A-2, which is the only
material evidence produced against him.
27. The allegations against A-3 Jitendrakumar Karnasingh Yadav
are that he is the financial conduit. The A-1 has deposited cash in his
account, which has been withdrawn by him, via ATM in Vapi,
Gujarat. He along with A-4 and A-5 has stayed in a hotel at Silvassa
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
32/45 901 Apeal.251.2019, J.doc
and kept surveillance on the deceased. Apart from being responsible
for the financial transactions, allegations against him are that, he
had paid visits to Silvassa and also arranged transport of a
motorcycle used in the offence from Varanasi to Surat.
28. To establish the amounts deposited by A-1 in the account of A-
3, which is allegedly the hire money, the prosecution has examined
P.W. 12 Jayshankar Shrivastav, Bank Manager of SBI Saharanpur,
who has stated that the A-3 Jitendra Singh is the holder of account
no. 31449513842. He has given the details of amount of Rs.10,000/-
each deposited by A-1, on four different dates when he was
confronted with the pay slip, he has identified it. In his cross-
examination he admitted that, the account of A-3 is a salary account
and the documents Exhibits-135, 136, 137 and 139 produced and
identified by him are not produced with the certificate as required
by the Banker’s Book Account Certificate. The pay slip Exhibit 136
discloses that, the amount deposited on 27.08.2011, has been
deposited in the Noida Branch of the SBI, which is proved by the
Branch Manager at Saharanpur (PW-12). The document which is a
part of regular transactions of the other branch of the Bank, is
produced by an employee who is employed in some other branch
200 k.m. away becomes doubtful. Even otherwise, mere deposit of
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
33/45 901 Apeal.251.2019, J.doc
amounts by A-1 to the account of A-3 in itself cannot be said to be
incriminating evidence.
29. The other evidence against A-3, is the statement of PW-9 Mr.
Kantilal Patel, the Employee of Parcel Department of railways, who
stated that the name of A-3 appeared on the receipt of the
motorcycle, which was sent through parcel service from Varanasi to
Surat by Surendrakumar C/O of Jitendrakumar, and the delivery of
motorcycle was taken on 24.11.2011 by one Mr. Jitendrakumar, in
token of which, his signature has been obtained. PW-10, who is the
owner of the alleged bike with registration No. DL-4S-BD-4965, has
stated that, a driver in his company Jawalasingh had purchased the
said bike from him, who was native of Azamgad, U.P. The testimony
of this witness does not in any way come to the aid of prosecution
either to prove that the the motorcycle belongs to A-3 or he has
borrowed it. Over and above all, the motorcycle allegedly used in
the offence has not been seized.
Apart from the call details and the bank transaction, the other
evidence produced against A-3 is the proof of his stay at Jay
international hotel, Vapi, between 18.08.2011 to 30.08.2011, along
with A-4 and A-5 at G.M. Guest House, Vapi, after committing
offence alongwith A-4 and A-5 and at Janta Guest House, Surat, on
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
34/45 901 Apeal.251.2019, J.doc
29.11.2011. The bills of Jay International hotel were allegedly found
under his bed in his house at Tundla in U.P. The respective managers
and owners of the above hotels have been examined, amongst
which, only PW-18 Mustak Ahemed Abudl Ali, the receptionist at Jay
International Hotel, Vapi, has identified him in the Court. The 17
hotel bills recovered from his residence at Tundla for which
panchanama at Exhibit- 87 is drawn without independent Panch
witness. PW-3, who is the Constable at Silvassa police station who
has admitted in his cross-examination that, the copy of
panachanama was not given to the father of A-3, and no
independent panch witness was present during the panchanama.
Hence, the panchanama of seizure of hotel bill is not reliable piece
of evidence.
The reliance of prosecution on the amounts deposited by A-1
in account of A-3 by itself is not a suspicious transaction considering
that A-1 and A-3 were employed in the same company and the
amount was deposited in his salary account, which has been
admitted by PW-12 Jayshankar, Bank Manager SBI,
In the cross-examination the P.W.12 has also admitted that the
Exhibit-135 i.e. account statement of A-3, pay slip Exhibit-136 and
137 produced by him are not issued by the bank under Section 2A of
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
35/45 901 Apeal.251.2019, J.doc
the Banker’s Books Evidence Act, 1891, thus, these documents loses
its credibility.
30. So far as the CDR of the calls between accused Nos. 1 and 3 is
concerned, they being employed in the very same company, i.e. Bajaj
Hindustan Ltd, the exchange of calls between them cannot be
doubted. As regards his call with accused No. 2 is concerned, the
prosecution has failed to establish that the SIM on which calls were
made by the other accused belongs to accused No. 2.
31. Hence, the question is whether the aforementioned evidence
is sufficient to prove the guilt of A-3 and convict him for the offence
punishable under Section 302 of the IPC. All the evidence as
aforesaid, the bank slips, the parcel receipt of the railway
department, the CDRs of the calls between accused No. 3 with the
other accused are not proved by producing reliable evidence. Even
otherwise aforementioned evidence is only corroborative in nature.
In the absence of substantive evidence, it cannot be used for
recording conviction.
32. The allegations against A-4, are that, he was riding the
motorcycle while committing the offence. He travelled alongwith
accused Nos. 3 and 5 and stayed with them prior to commission of
offence for conducting surveillance at hotel Jay International Vapi,
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
36/45 901 Apeal.251.2019, J.doc
between 18.10.2011 to 22.10.2011 and 24.11.2011 to 29.11.2011.
It is alleged that he was using cell phone with number 8057788316,
which was registered in his own name i.e. ‘Manish Kumar Devendra
Prasad’. The CDR at Exhibit 207 for the period 01.10.2011 to
06.12.2011 are proved by PW-26, the Nodal Officer, Idea Cellular
Ltd. of Ahmedabad region, who has also produced 65-B certificate.
So far as his stay at Hotel Jay International in October 2011, G. M.
Guest House between 24.11.2011 to 29.11.2011, is concerned
prosecution has examined PW-18 Mustak Ahemed, Receptionist of
hotel Jay International, PW-28 Sujit Kumar who runs G. M. Guest
House, Vapi, PW 21- owner of Janata Guest House. Although these
witnesses have produced admission registers and ID proofs,
submitted while booking room at the hotels, however however they
have failed to identify the accused. PW-21 and PW-28, have not
been called upon to identify A-4 in the Court. While PW-18 in his
cross-examination has admitted that he was not sure whether A-4 is
present in the Court. Thus, these witnesses have failed to identify
A-4. Consequently, the stay of A-4 in the aforementioned hotels,
could not be established.
The motorcycle with licence plate number DL-4S-BD-4965 is
neither seized nor its use in the offence is established by the
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
37/45 901 Apeal.251.2019, J.doc
prosecution. So far as his telephonic contact with the accused No. 1
and other co-accused is concerned, PW-26 Nodal Officer of Idea
Cellular has produced his application for securing SIM Card
alongwith the CDRs. Except this no other incriminating evidence is
produced against A-4 to prove his complicity in the offence, which in
itself is not sufficient for recording his conviction.
33. The allegations against Accused No. 5 Sugriv @ Gyanprakash
Yadav, are that he allegedly fired from the revolver, which proved to
be fatal and caused death of the deceased. Even though, it is claimed
by the prosecution that A-5, has himself described the manner in
which he has shot at the deceased and made a disclosure statement
under Section 27 of the Evidence Act, 1972, this statement is not
admissible in evidence when he led the IO for recovery of weapon,
on reaching the destination there was no recovery. As such there is
no recovery of the weapon used in the offence. Inspite of which, A-5
has been convicted for the charge under Section 201 of the IPC, and
has been acquitted for charge Under Section 3 r/w 35 of the Arms
Act, 1959.
34. The other evidence against accused No. 5, is his stay at the three
hotels, i.e. Jay International, Vapi, G. M. Guest House, Vapi, and Ran
Basera Guest House, Vapi. Although the register of the guest house
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
38/45 901 Apeal.251.2019, J.doc
alongwith the ID proof of the accused has been produced by PW-19,
Manager of Ran Basera Guest House, Vapi, he has failed to identify
A-5 in the Court. Even in case of A-5 there is no TI parade
conducted for his identification by calling upon the witnesses, i.e
PW-18 and PW-19, who have supported about his stay at the guest
house and the hotel respectively.
P.W. 18 and P.W. 19 have been examined to prove stay of A-5 at
their hotels. P.W. 18 was unable to identify him, and P.W. 19 though
identified him in the dark, it was not preceded by TI Parade, thus
making his identification unreliable.
35. The mobile number for establishing contact with other
accused attributable to A-5 is 9045132794, however this mobile
number is registered in the name of one ‘Premkumar’, resident of 61
Majhola Anshik, Hathras, U. P. Considering that the SIM attributed
to A-5 was not registered in his name prosecution failed establish,
how he came in possession and use of that SIM Card. Even though
the CDR has been produced to prove the complicity of Accused No.
5, the connection itself stands in the name of one ‘Premkumar’ who
has not been examined by the prosecution. The customer application
form Exhibit 202 has, been produced by PW-25 Jahid Khan Yasmin
Khan, Assistant Nodal Officer, Tata Tele Services. There is no link
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
39/45 901 Apeal.251.2019, J.doc
established between A-5, and ‘Premkumar’ who is registered for that
SIM. The call made by using that SIM Card cannot be treated as, an
‘incriminating evidence’, against A-5. Hence, there is no recovery of
weapon at his instance; his identity about stay of hotel is not
established, and even use of SIM could not be proved.
36. Upon examination of the evidence produced by the
prosecution and the testimony of the witnesses, it is evident that
case of the prosecution, is not established by producing substantive
evidence, that would unequivocally point only towards the guilt of
the accused. In cases of circumstantial evidence, lack of direct
evidence makes it necessary to prove ‘motive’ for commission of
offence. Proof of ‘motive’ strengthens the probability of commission
of offence by the accused persons in the chain of circumstantial
evidence. In the present case, A-1 being the conspirator, has
allegedly hatched a conspiracy, however, the ‘motive’ of the accused
could not be proved by the prosecution. Testimony of PW-4, can
only create doubts, at the same time doubts cannot take place of
proof.
37. The prosecution has relied heavily on the CDRs of the
cellphones of all the accused and the calls inter se made between
them. Even though, the Nodal Officers have been examined to prove
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
40/45 901 Apeal.251.2019, J.doc
the CDRs. Except A-4, the cell phones, which are allegedly used by
the accused, stand in the name of different persons, other than the
accused. Prosecution has not examined the owner of those SIM
cards, thereby failed to establish connection between accused and
the SIM cards. Thus in our view, merely on the basis of CDR
locations of the cell phones in and around the place of offence and
the calls made using it cannot by itself establish complicity of the
accused persons, unless the use of those SIM cards by the accused is
proved. Even otherwise, the CDRs of the mobile phone being
corroborative piece of evidence, cannot take place of direct or
substantive evidence.
38. A-2 to A-5 though allegedly stayed at the hotels at Vapi and
Surat, no TI parade to identify them through the hotel
managers/owners have been conducted by the prosecution. A-3 and
A-5 have been identified that too in the Court by the witnesses,
which again raises doubt about their identity, since it was not
preceded by any TI parade.
In a recent decision, the Hon’ble Supreme Court in case of
State of Maharashtra Vs. Monica Kiran Suryawanshi and Ors. dated
13.07.2026 in Criminal Appeal No. 2282-2284 of 2011, has taken a
view that mere production of telephonic records does not substitute
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
41/45 901 Apeal.251.2019, J.doc
substantive proof of an illicit affair leading to murder. Thus, the
‘motive’ is inherently weak and insufficient to anchor a conviction
for murder. These observations squarely apply to the facts of present
case since the whole prosecution case itself is based on the call
details between the accused.
39. Since all the accused were arrested only on the basis of the
CDR location detected in and around the place of incident, it was
necessary to establish their presence on the day of incident at
Silvassa. In order to establish that the accused are the very persons
who had stayed at the guest house of P.W. 28 was required to be
proved by conducting TI parade and A-2 to A-5 since their identity
was not known. In the cases based on circumstantial evidence, TI
parade becomes necessary when the accused are not known to the
witnesses prior to the incident. There are series of judgments on the
issue of necessity of carrying out TI parade, wherein it is held that
the necessity of carrying out TI parade depends on the circumstances
of each case, but the fact remains that, in order to bring strength to
the case of prosecution in cases of circumstantial evidence, it is
always advisable to conduct a TI parade.
40. In cases of circumstantial evidence, burden is on the
prosecution to produce clinching evidence to prove the complicity of
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
42/45 901 Apeal.251.2019, J.doc
the accused by proving the chain of circumstances. There are serious
lapses in the investigation of the case by the prosecution. Even
though the incident had occurred just outside the SBI ATM Naroli
road, Silvassa, the prosecution has failed record the statements of
the guards who were admittedly stationed outside the two ATMs
nearby the place of incident, which has been admitted in his cross –
examination by P.W. 34. This witness also admits that he has not
recorded the statement of the attendant who used to remain present
at the public toilet, which was just 18 feet away from the place
where the car of the deceased was parked. This reflects the casual
and lethargic approach of the prosecution, which has undermined
the case of prosecution. In view of absence of direct evidence, it was
necessary to prove the guilt of all the accused by establishing the use
of respective SIMs, by conducting TI parade to establish their stay at
the hotel on the day of offence; by seizing the weapon and the
vehicle used in the offence which could have given credibility to the
evidence produced by the prosecution. The prosecution has failed to
prove the important links in the chain of circumstantial evidence.
The evidence should be cogent and so compelling that no other
rational hypothesis can be drawn except conviction of the accused.
42. Even otherwise, calls between the accused persons and
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
43/45 901 Apeal.251.2019, J.doc
proving it through CDRs can be only corroborative evidence.
43. Except the call details, bills of hotel and details of the bank
transactions there being no other evidence produced by the
prosecution, and its failure to prove the identity of the accused. The
evidence on record can at the most create suspicion, and suspicion
can be a basis for recording conviction against an accused. There is
no recovery of the weapon that would connect the accused to the
offence. The motor cycle allegedly used in the offence is not seized.
The motorcycle allegedly used in the offence is not seized. Even
though the bullets were seized from the place of incident, the
revolver used to fire those bullets has not been recovered. There is
no forensic evidence to connect the accused persons with the
offence. There is no strong, and credible evidence produced by the
prosecution that would lend support to prove the guilt of accused.
After carefully examining the role of each of the accused, and
the evidence adduced against each of them in our view the evidence
falls miserably short for recording of conviction under Sections 302
The prosecution has filed to prove the ‘motive’ for
masterminding the whole plan by A-1.
The evidence against A-2 is use of SIM Card 8445269532
Rajeshri Aher
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
44/45 901 Apeal.251.2019, J.doc
which is not established. As regards A-3, the use of SIM attributed to
him is not proved; his stay at hotels could not be established due to
failure to identify him; even the bank transactions are not fully
established.
The motorcycle used by A-4 is not seized; his stay at hotel also
could not be proved, except the SIM car which is in his own name,
no other evidence is available against A-4.
The use of revolver in offence by A-5, could not be proved due
to failed recovery under Section 27 of Evidence Act; his stay at the
hotel is not established and the sim attributed to him also does not
stand in his name, thus, its use is not proved. The evidence adduced
by the prosecution is, at best, corroborative in nature and falls short
of establishing, beyond reasonable doubt, the complicity of the
accused in the commission of the alleged offence.
In the absence of cogent and reliable evidence sufficient to
sustain the conviction, the Appellants are entitled to the benefit of
doubt.
44. In the facts, none of the circumstances are proved by the
prosecution beyond reasonable doubt nor do they form a chain,
pointing out to the complicity of the Appellants, which is consistent
only with hypothesis, which is the guilt of the Appellants.
Rajeshri Aher
Uploaded on - 04/08/2026 Downloaded on - 05/08/2026 23:23:18
45/45 901 Apeal.251.2019, J.doc
45 Having regard to what is stated aforesaid, we pass the
following order:-
:: O R D E R ::
(i) The Appeals are allowed;
(ii) The judgment and order dated 26.10.2018, passed by the
learned Sessions Judge, Dadra and Nagar Haveli at
Silvassa in Sessions Case No. 15 of 2012, convicting and
sentencing the Appellants, is hereby quashed and set
aside;
(iii) The Appellants are set at liberty forthwith, if not required
in any other offence;
(iv) Fine amount, if paid, be refunded to the Appellants, as
per rules;
(v) Appeals are disposed of;
(vi) In view of the disposal of the Appeals, all connected
Interim Applications also stand disposed of.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
Rajeshri Aher
Powered by TCPDF (www.tcpdf.org)
Uploaded on – 04/08/2026 Downloaded on – 05/08/2026 23:23:18
