Bombay High Court
Mukesh Mahadev Musahar vs The State Of Maharashtra on 25 February, 2026
Author: Manish Pitale
Bench: Manish Pitale
2026:BHC-AS:9767-DB
Digitally
signed by
ANANT
ANANT KRISHNA
KRISHNA NAIK
NAIK Date: IN THE HIGH COURT OF JUDICATURE AT BOMBAY
2026.02.26
11:28:47 CRIMINAL APPELLATE JURISDICTION
+0530
CRIMINAL APPEAL NO. 629 OF 2021
Mukesh Mahadev Musahar
Age : 25 Years, Occu.:
R/o : In front of New CSMT Platform,
No.18, P. D'mello Road Footpath,
Mumbai - 400 001. ...Appellant
Versus
The State Of Maharashtra
(Through MRA Marg Police Station) ...Respondent
WITH
CRIMINAL APPEAL NO. 752 OF 2022
Avinash Bhushan Pimpalkar @ Raju
Age : 29 Years,
Residing at in front of New Cst Platform No.18,
P'Dmello Road Footpath, Mumbai 01.
Presently lodged Kolhapur Central Prison,
Kolhapur - 416007 ...Appellant
Versus
The State of Maharashtra
(at the instance of MRA Marg Police
Station, CR No. 74/2016) ...Respondent
_________
Mr. Dattatray Solankar for Appellant in Criminal Appeal No. 629 of
2021
Mr. Prosper D' Souza for Appellant in Criminal Appeal No. 752 of 2022
Dr. Dhanlakshmi S. Krishnaiyer, APP for Respondent-State
________
CORAM : MANISH PITALE &
SHREERAM V. SHIRSAT, JJ.
RESERVED ON: 14th JANUARY 2026.
PRONOUNCED ON : 25th FEBRUARY 2026
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JUDGMENT (PER SHREERAM V. SHIRSAT J ):
1. These are two Appeals challenging the judgment and order of
conviction recorded by the Learned Sessions Judge for Greater Bombay,
at Bombay on 12/01/2018 in a Sessions Case No. 459 of 2016, holding
the Appellants guilty under Section 235 (2) of Criminal Procedure Code
for offences punishable under Sections 302, 201 r/w 34 of the Indian
Penal Code and sentencing them to undergo imprisonment for life and
to pay fine of Rs. 2,000/- each, in default to suffer rigorous
imprisonment for one month.
2. Although the Appellants have preferred two separate appeals,
both the Appeals are being disposed of by a common order since the
Appellants are convicted vide common judgment and order dated
12/01/2018. For the sake of brevity and contextual convenience, the
Appellants are referred herein as to Appellant No 1 who is Accused No
1-Avinash Bhushan Pimpalkar @ Raju and Appellant No 2 who is
Accused No 2-Mukesh Mahadev Musahar.
3. The Case of the prosecution is encapsulated as under :
a. It is the case of the complainant, that on 25/03/2016, he
received a message from police control room at about 09.00 a.m.
that a dead body was lying near the compound of Railway
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Claims Tribunal at P. D’Mello road. It is further the case that theyreached the spot at around 09.10 a.m. and one lady by name
Rajeshree Sharma was present outside the compound. It is the
case that thereafter the police were taken to the spot and shown
the dead body. It is further the case that the dead body was lying
inside the compound and that they entered inside the compound
from the eastern main gate and saw that the dead body was of a
lady about 55 to 60 years old and it was lying near the compound
in a ditch. It is further the case that body was half naked and
there were injuries on her face and that the face was not
identifiable due to injuries. It is further the case that FIR came to
be lodged against unknown person vide C.R. No 74/2016 on
25/03/2016 for the offences under Sections 302, 201 r/w 34 of
IPC.
b. Thereafter investigation commenced and the Appellants
came to be arrested on 27/03/2016. After completion of the
investigation, the Charge-Sheet was filed.
4. The Sessions Court for Greater Bombay framed charges against
the Appellants for the commission of offences punishable under
Sections 302, 201 r/w 34 of the Indian Penal Code. Both the Accused
pleaded not guilty for the charges and claimed to be tried. The defence
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of the Appellants is of total denial and of having been falsely implicated
in this case.
5. The prosecution examined 10 witnesses in support of its case:
P.W.NO. NAME OF THE WITNESS
1 ASI Pandharinath Vithal Darade (Informant).
2 Rajshree Jagdish Sharma (Lady who reported the
information to the Police).
3 Adesh Uttarmrao Shejav (who last saw both the
Appellants with the deceased).
4 Mr. Samshunddin Hussain Mansoori (panch witness for
recovery of brick at the instance of the appellant-accused
Avinash).
5 Mr. Girish Govind Zavere (panch witness for recovery of
clothes at the instance of the appellant-accused Avinash).
6 Mr. Anup Ramkishor Pandey (panch for recovery of
clothes and stone at the instance of appellant-accused
Mukesh).
7 Mr. Nagesh Shanakar Nasari (panch witness for recovery
of clothes at the instance of appellant-accused Avinash).
8 Dr. Hemal Jagdish Bhavani (Medical Officer of St. George
Hospital, Mumbai).
9 Mr. Gajanan Vyankaro Bharati (Investigating Officer)
10 PI Gulabrao Arjun More (Investigating Officer)
6. The Learned Sessions Judge after completion of recording of
statement under Section 313 of Cr. P.C. and after hearing the
arguments of the Public Prosecutor and Ld. Counsel for the Appellants,
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vide order dated 12th January, 2018 was pleased to convict both the
Appellants under Sections 235 (2) of Criminal Procedure Code for the
offences punishable under Section 302 r/w 34 of the Indian Penal Code
and sentenced them to undergo imprisonment for life and to pay fine of
Rs. 2,000/- and in default, to suffer rigorous imprisonment for one
month.
7. Being aggrieved by the said order of conviction recorded by a
Judgment in Sessions Case No. 459 of 2016, dated 12 th January 2018,
passed by the Learned Sessions Court for Greater Bombay, the
Appellants have approached this Hon’ble Court by way of Appeal.
8. We have heard Mr. Dattatray Solankar for Appellant in Criminal
Appeal No. 629 of 2021, Mr. Prosper D’Souza for Appellant in Criminal
Appeal No. 752 of 2022 and Dr. Dhanlakshmi S. Krishnaiyer, APP for
Respondent-State in both the Appeals.
9. The Learned Counsels for the Appellants have submitted that
both the Appellants have been falsely implicated. It is their submission
that there is no eye witness to the alleged incident but this is a case of
circumstantial evidence and therefore the complete chain of
circumstances leading to only one conclusion that none other than the
Appellants are guilty of the offences in question has not been
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established and proved by the prosecution. They have further submitted
that the last seen theory has not been cogently established by the
prosecution and even the recovery of blood stain clothes, bricks and
stones at the instance of respective Appellants do not inspire
confidence. The Ld. Counsel for the Appellant No 1 further submitted
that the recovery of clothes at the instance of Appellant No 1 is tainted
as it has come in the evidence that the Appellant No 1 was handcuffed
at the time of making the voluntary statement and therefore such a
voluntary statement and the recovery thereof deserves to be kept out of
consideration. They have further submitted that since the police were
not able to apprehend the actual culprits, the Appellants being easy
targets who were readily available in the vicinity, have been falsely
implicated. The Ld. Counsels therefore prayed that the Appellants be
acquitted.
10. Per contra the learned Addl. Public Prosecutor has submitted that
the Trial Court has rightly convicted the Appellants and the conviction
deserves to be confirmed. She has further submitted that the last seen
theory is absolutely believable and there is nothing to disbelieve the
said witness. The Ld. APP has further submitted that PW-3 is an
independent witness who has categorically deposed about having seen
the Appellants going along with the deceased and therefore the last
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seen theory has been cogently proved by the prosecution. She further
submitted that there are blood stains which have been found on the
bricks, stones as well as on the clothes of the accused and the blood
group is ‘B’ which is of the deceased and therefore submitted that chain
of circumstances is duly proved. She therefore urged that the conviction
be confirmed and such persons deserve no sympathy.
11. There is no direct evidence or any eye witness to the said incident
in question, but the case is based on circumstantial evidence. Therefore,
where the evidence is of a circumstantial nature or where the case is
based on circumstantial evidence, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance be fully
established and all the facts so established should be consistent only
with the hypothesis of the guilt of the Accused. Therefore, the
circumstances should be of a conclusive nature and they should be such
as to exclude every hypothesis but the one proposed to be proved. In
other words, there must be a chain of evidence so complete as not to
leave any reasonable ground for a conclusion consistent with the
innocence of the Accused and it must be such as to show that within all
human probability the act must have been done by the Accused.
12. Keeping in mind this cardinal principle of criminal jurisprudence,
it will therefore have to be seen from the evidence that has come on
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record, whether the circumstances from which the conclusion of guilt is
to be drawn are fully established and all the facts so established are
consistent only with the hypothesis of the guilt of the Accused.
13. Before adverting to the analysis of the evidence, it will be
pertinent to succinctly discuss the evidence of the witnesses that has
come on record. As stated above, the Prosecution has examined ten
witnesses in support of its case.
14. PW 1 – Pandharinath V. Dharade, is the ASI who was attached to
MRA Marg Police Station since the year 2013. He has deposed that on
25th March 2016, a message was received from Police Control Room at
about 9 am about a dead body lying near the compound of Railway
Tribunal at P D’Mello Road. He has further deposed that after reaching
the spot at 9.10 am, a lady namely Rajashree Sharma ( PW2) was
present outside the compound and she informed that she had made call
to the Control Room and then took him to the spot to show the dead
body. He has further deposed that the dead body was lying inside the
compound and when he entered inside the compound from the eastern
main gate, he saw that a dead body was of a lady aged about 55-60
years and it was lying near the compound in a ditch. He has further
deposed that the body was half naked and there were injuries on her
face and that the face was not identifiable due to injuries. He has
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further deposed that he lodged a complaint of murder of the said lady
against unknown person. He also identified his signature on the FIR at
Exhibit 12.
15. PW 2 – Rajashree Sharma, is the one who informed the police
about the lying of dead body near compound of Railway Tribunal. She
has deposed that she along with her mother and maternal aunt were
residing at railway quarters. She has deposed that at 25 th March 2016,
she woke up at 8.30 am and went to railway toilet which was near to
her residence and as there were water blocks, she went behind the said
bathroom to verify the system. She has deposed that she saw a body of
a lady lying behind the bathroom who was naked and a saree was just
thrown on her body. She has deposed that she saw there were injuries
on her face, therefore, she returned from there and informed to the
watchman of the Railway Court. She has also deposed that she made a
call to 100 and informed the address to the police. She has further
deposed that when she returned after showing the spot to the police,
her mother informed her that in the said night at about 2 am, her
mother and maternal aunt had woken up due to cough and they heard
noise of a lady saying in Marathi “Maru Naka, Mala Soda.” She has
further deposed that as they were three ladies residing at their house
and many drug addicts used to roam around in the area during night,
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they did not open the door or even go out on hearing the shouts.
16. PW 3 – Adesh Shejav, is the person who claims to have last seen
the deceased and the Appellants going together. He has deposed that he
is residing on Platform No. 18, CST Station since about 10 -12 years. He
has deposed that he knows both the Appellants-Accused Mukesh and
Avinash since last five years as they are also residing on Platform No. 18
of CST Railway Station. He has further deposed that on 25 th March
2016, he had not seen anything, but at about 12 in the night, he had
seen both the accused along with an old lady near a bathroom near the
Railway Court. He has deposed that Avinash took the said old lady
behind the bathroom and Mukesh also followed him. He has also
deposed that he waited there for half an hour, however, none of those
three had come out from that place. He has further deposed that he
went to Platform No. 18 and slept over there. He has further deposed
that on 26th March 2016 Saheb had shown a photograph which he
identified to be of the same old lady who was taken there by those two
accused. He has further deposed that he had narrated to the police
what he had seen in the earlier night. In the cross-examination, he has
replied that there is a toilet bathroom adjacent to the wall of the
Railway Court and that all the persons residing on the platform use the
same toilet. He has further replied in cross examination that he had not
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seen exactly where the accused had taken the said lady. He has further
replied that he had not heard shouts of any lady when he went to sleep
and has also further stated that he had stated to the police that he had
not seen Avinash and Mukesh since day before yesterday, i.e., 24 th
March 2016. He has also admitted that he does not know the said lady
personally or where she was residing.
17. PW 4 – Samshunddin Mansoori, is the panch witness for recovery
of brick at the instance of the appellant-accused Avinash. He has
deposed that on 30th March 2016, he was called at MRA Marg Police
Station. He has deposed that one arrested accused by name Avinash
wanted to make a statement to show the place where the brick used at
the time of incident is kept. He has further deposed that he along with
other panch, after signing the panchnama, proceeded by Government
vehicle as per directions of the accused and the accused took them at
Platform No. 18 of CST Railway Station. He has further deposed that
accused took them to some distance from the platform and there were
some bushes and cement pipes and then the accused took out a half
broken brick which was near the pipe. He further deposed that the brick
was seized by the police and on inspection, it was found that there were
blood stains on six spots on the brick which the police encircled the big
blood stains appearing on the brick. In the cross-examination, he had
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admitted that the police always call him whenever they need his help.
He has further admitted that there were many stones lying on the spot
and that the public used to go for toilet there. He also admitted that
similar type of stones were lying on the spot at the relevant time.
18. PW 5 – Girish Zavere, is the panch witness for recovery of clothes
at the instance of the accused Avinash. He has deposed that on 30 th
March 2016, he was called at MRA Marg Police Station. He reached at 4
pm. He has deposed that an accused Avinash was present there. He has
further deposed that police took them by police vehicle to some place
and accused Avinash was with them. He has further deposed that they
went to P. D’mello Road No. 18. He has deposed that he took them near
a tree at some distance from Platform No. 18 and produced the clothes
which he had concealed in a bag of which the police prepared the
panchnama. He has further deposed that police also seized the sample
and blood mixed soil from the spot. He has further identified those
seized clothes.
19. PW 6 – Anup Pandey, is the panch for recovery of clothes and
stone at the instance of accused Mukesh. He has deposed that he was
called by the police attached to MRA Marg Police Station on 31 st March
2016. He has deposed that the police had informed that he had to act as
a panch for what the accused states. He has deposed that the said
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accused Mukesh stated to the police in his presence that he would show
the place where he along with another accused had committed the
murder and he would also show the place where, stone by which
offence is committed is concealed and also the place where clothes were
concealed. He has further deposed that the accused took them to
Platform No. 18 of CST Railway Station and the accused led to the
bushes at some distance and there was heap of garbage and the accused
took out a stone from the said place. He has further deposed that it was
stone of a triangle shape admeasuring 4×6 inches and there were blood
stains on the stone.
20. PW 7 – Nagesh Nasari, is the panch witness for recovery of
clothes at the instance of accused Avinash. He has deposed that on 30 th
March 2016 at 4 pm, he was called at MRA Marg Police Station. He has
further deposed that accused had stated in his presence that he has
concealed the clothes at some place and also the deceased lady was
thrown in a ditch of gutter and he would show such places. He has
further deposed that thereafter, they proceeded from police station and
the accused took them near Platform No. 18 at CST Railway Station. He
has further deposed that accused took them to some distance from said
platform and took out some clothes which were concealed by him
inside the heap of rabbet (rubble). He has further deposed that the
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clothes which were in a plastic kept in a sack and the police seized
those clothes and affixed label which was signed by him. He has further
deposed that accused took them to show the place of offence and took
them near the toilet which was closed and they found blood stains
there. He has further deposed that police took samples of blood mixed
with soil and affixed their label. He has further deposed that the
accused took them near the Court and the toilet and had shown the
ditch where the body was thrown by them. He has further deposed that
police prepared the panchnama where he made his signature. In the
cross-examination, he has admitted that he has acted as panch earlier
also and that the accused was handcuffed at that time.
21. PW 8 – Dr. Hemal Bhavani, has deposed that on 25th March
2016, he conducted postmortem of an unknown female dead body
produced by MRA Marg Police Station at about 3 pm to 4 pm. He has
deposed that the injuries were found on the face and body of the
deceased. In the cross-examination, doctor has deposed that the injuries
were not possible by fall on hard substance and that the injuries were
not of the age about 48 hours prior to postmortem.
22. PW 9 – Gajanan Bharati, he has deposed that he is PSI attached
to Crime Branch Unit 3. He has deposed that on 25th March 2016, at
about 9 pm, ASI Darade informed him about recovery of a dead body of
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a lady near compound of Railway Tribunal, P. D’mello Road. He has
further deposed that he saw a dead body of a lady and prepared inquest
panchnama of the body as well as spot panchnama. In the cross-
examination, the officer has admitted that panchas were called after
they went to the spot. He has further admitted that there is a forest like
area, it is not a dense forest. He has further admitted that he had tried
to search for any material nearby the spot prior to the arrival of
panchas. He has also admitted that 5 to 6 police officers searched there
but nothing was found.
23. PW 10 – Gulabrao More, is the PI attached to MRA Marg Police
Station and he has deposed that after completing the investigation, he
filed the chargesheet against both the accused.
24. As stated above, in this case, there is no direct evidence and the
case is entirely based on circumstantial evidence. Since the Trial Court
has not specifically enumerated the circumstances, however the
circumstances which can be borne out from the evidence that has come
on record are:-
(i) Last seen theory
(ii) Recovery of brick having blood stains at the instance of
accused Avinash
(iii) Recovery of blood stained clothes at the instance of accused
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(iv) Recovery of stone, having blood stains, at the instance of
Mukesh
(v) Recovery of clothes, having blood stains, at the instance of
Mukesh
(vi) Motive
25. The first circumstance which can be taken into consideration for
the analysis is the “Theory of Last Seen Together”. In order to prove the
circumstance of last seen together, the prosecution has examined PW 3.
PW 3 in his deposition before the Court has stated that he knows both
the accused Mukesh and Avinash since last five to six years as they were
residing on Platform No. 18 of CST Railway Station. He has deposed
that at about 12 in the night, he had seen both the accused along with a
lady near a bathroom near the Railway Court. He has deposed that
Accused Avinash took the said lady behind the bathroom and Accused
Mukesh also followed them. He has further deposed that he waited
there for half an hour. However, none of them came out from the said
place. He has further deposed that he went to Platform No. 18 and slept
over there. In the cross-examination, he has confirmed that he went to
sleep from footpath to platform at about 12 to 1 am. The PW- 3 has
stated that he saw Avinash taking the said lady behind the bathroom
and Mukesh followed him and he waited there for half an hour and
none of them had come out from the said place he went to Platform No.
18 and slept over there. He has admitted in the cross-examination that
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he had not seen exactly where the accused had taken the said lady. He
has also stated that he had not heard the shouts of any lady when he
went to sleep. It has come in the evidence of PW 2 that the dead body
of the deceased was seen in the morning at 9 am. Analysis of evidence
of PW 3 and PW 2 would show that PW 3 had last seen the Appellants
with the deceased at about 12 to 1 am and as per PW 2 the dead body
was seen at 9 am in the morning on 25/3/2016, therefore the time gap
between the last seen together and the time when the body came to be
recovered is too wide and also the place and circumstances in which the
body was recovered, the possibility of others intervening cannot be
ruled out. The said witness has also admitted that the persons residing
on the said platform used to use the said toilet. In the absence of
definite evidence, where the time gap is long and there is material to
show that there is a possibility of intervention by some other persons, it
would be dangerous to come to a conclusion that the appellants are the
only persons responsible for the murder of the deceased. The Apex
Court has, time and again, held that where the time gap is long, it
would be unsafe to rely upon on the last seen theory and it is safer to
look for other circumstances and evidence adduced by the prosecution.
26. It will be pertinent to refer to the ruling of the Apex Court in the
case of Karakkattu Muhammed Basheer Vs State of Kerala1, wherein it
1 (2024) 10 SCC 813
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has been held as under:-
“27. The last seen theory, furthermore, comes into play
where the time-gap between the point of time when the
Accused and the Deceased were last seen alive and the
Deceased is found dead is so small that possibility of any
person other than the Accused being the author of the
crime becomes impossible. Even in such a case the
courts should look for some corroboration.”
27. In Nazim & Ors. v.The State of Uttarakhand [2025] 10 S.C.R.
263, it has been held as under:
“Even apart from the deficiencies in identification, the ‘last-
seen’ theory is itself a weak link unless the prosecution
establishes a narrow time gap between when the accused and
the deceased were seen together and the recovery of the body,
such that the possibility of intervention by a third person is
excluded.
At this juncture, it is relevant to refer to the following
decisions:a. This Court has consistently cautioned against
treating the last-seen circumstance as conclusive proof of guilt.
In State of U.P. v. Satish4, it was observed:
“22. The last-seen theory comes into play where the time gap
between the point of time when the accused and the deceased
were last seen alive and when the deceased is found dead is so
small that the possibility of any person other than the accused
being the author of the crime becomes impossible. It would be
difficult in some cases to positively establish that the deceased
was last seen with the accused when there is a long gap and
possibility of other persons coming in between exists. In the
absence of any other positive evidence to conclude that the
accused and the deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in those cases….”
28. This Court therefore is of the considered opinion that from the
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facts and evidence, the circumstance of last seen has not been
conclusively proved.
29. The second circumstance is the recovery of brick having blood
stains at the instance of accused Avinash (Appellant No 1) . The
prosecution, inorder to prove this circumstance has examined PW 4.
The said witness has deposed that accused Avinash took them at
Platform No. 18 of CST Railway Station. He has further deposed that
accused took them to some distance in distance from the platform and
there were bushes and cement pipe. He has further deposed that
accused took out half broken brick which was near the pipe. It has come
in the cross-examination that the public used to go for toilet there.
Therefore, it can be safely inferred that it was place of public access.
Moreover, the recovery of the brick has been after five days from the
date of the incident. Taking into consideration the circumstances under
which the recovery is made, it cannot be doubted that the recovery is
from a place of public access. Further, the credibility of this witness also
comes in question as he has categorically admitted that police used to
always call him when they needed his help. In the opinion of the court
this circumstance recovery of brick at the instance of the Accused
Avinash (Appellant No 1) cannot be said to be conclusively proved.
30. The third circumstance is the recovery of blood stained clothes at
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the instance of accused Avinash which according to prosecution were
worn by him at the time of commission of offence. To prove this
circumstance, the prosecution has examined Panch Witnesses PW5
Guirish Zavere and PW7 Nagesh Nagari. These are the two panch
witnesses who were present at the time of panchnama. However, if the
evidences of PW5 and PW7 are perused, then it can be seen that there
is stark difference between what PW5 and PW7 have deposed on the
same aspect of recovery of clothes at the instance of the Accused
Avinash. PW5 has deposed that accused Avinash had shown the clothes
to him and he had taken them near a tree at some distance from
platform number 18 and produced the clothes which he had concealed
in a bag and the police prepared Panchama of its seizure. PW 7 who
was the co-panch for the same recovery of clothes at the instance of
accused Avinash has deposed that they proceeded from police station
and accused took them near platform number 18 at CST Railway
Station, then took them at some distance from the said platform and
took out some clothes which were concealed by him inside the heap of
rabit (rubble). He has further deposed that the clothes which were in a
plastic bag were kept in a sack and the police seized those clothes and
fixed label, signed by him on it. Thus it can be seen that for the same
recovery of clothes and despite being together during the panchanama,
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in substantial deposition before the Court, these two panchas have
given totally different versions and therefore, even this circumstance of
recovery of clothes at the instance of Accused Avinash cannot be said to
be conclusively proved. Further in the cross-examination, PW, 7 has
admitted that he has acted as panch earlier and that the accused was
present in detection room when he went there and that he was
handcuffed at that time.
31. A useful reference can be made to the judgment in the case of
Sakharam Raoji Dharap v. State of Maharashtra, Criminal Appeal
No.562 of 2021 (2021:BHC-AS:19363-DB) wherein it is held as under:
“17. Insofar as the alleged recovery of the articles pursuant to
the memorandum statement given by the accused is concerned,
it has come in the evidence of the panch witness that at the
relevant time, when the memorandum statement was made by
the accused, he was handcuffed. The Division Bench of this
Court (Coram: P.V. Kakade & J.A. Patil, JJ.) in the case of
Laxman Keraba Patil vs. State of Maharashtra3, in paragraph 11
has held thus:
“11. The next piece of circumstantial evidence is, the alleged
recovery of blood stained clothes, other articles and dagger
having blood stains at the instance of the accused. P.W. No. 8
Giri, the panch witness has stated that, on 11-9-1995, the
accused made statement in his presence at the police station that
he had hidden the knife and clothes in a land and he would
show the place to the police. Accordingly, memorandum
panchnama Exh. 20 was made. Thereafter the accused led the
police and panchas to the place where sugarcane crop was
grown and accused produced one pant on which blood stains
were found. Thereafter he further led them to another field and
produced one bag, a dagger and a sandal alongwith a banian, a
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shirt and a pant. There was a sheath of dagger also. All these
articles were seized by the police under panchnama Exh. 21.
Said articles were at Nos. 19 to 26. In the course of his cross-
examination, the panch witness has admitted that, during the
entire process, the accused was handcuffed and was taken
handcuffed in the jeep with the police.
Now, apart from the merits of this particular piece of
circumstantial evidence i.e. recovery contemplated under section
27 of the Evidence Act, it is to be noted that, factum of
handcuffing of the accused shows that it cannot be said beyond
doubt that the recovery was voluntary and not the result of
duress, threat or pressure by the police authorities.
This Court, in the case of Shankar Raju Banglorkar v. State of
Goa, has held that the disclosure by the accused while he was
handcuffed, amounted to disclosure under duress, pressure or
threats given by police and hence is not admissible in view of
Article 20 of the Constitution. This view was again relied upon
by the Division Bench of our High Court in the case of Deoraj
Deju Suvarna v. State of Maharashtra, 1994(4) Bom.C.R. 85 :
1994 Cri.L.J. 3602, wherein similar view was taken. We may
observe that, no doubt that, while disclosure of the fact is made
by the accused as contemplated under section 27 of the Evidence
Act, he is in police custody, however, the voluntariness of his
statement is guaranteed by the testimony of independent panch
witnesses. However, when the accused is handcuffed during the
process, it is nothing but physical manifestation of possibility of
duress, threat or pressure by the police authority and, therefore,
voluntary nature of the disclosure becomes doubtful.
Apart from this aspect, the evidence on record is conspicuously
silent if the said articles were sealed or not after its seizure
because it is not testified to by the panch witness nor by the
Investigating Officer in the course of their evidence. Therefore,
in our considered view, the entire evidence regarding recovery
of incriminating articles at the of the accused is rendered
doubtful and thus cannot be accepted at all.”
“18. In the present case also, during the entire process of the
alleged recovery of the articles, as admitted by the panch
witness, the appellant was handcuffed by the police at the
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the aforesaid authoritative pronouncement, this Court has taken
a view that the factum of handcuffing of the accused shows that,
it cannot be said beyond doubt that the recovery was voluntary
and not the result of duress, threat or pressure by the police
authorities.
“19. In the light of the discussion in the foregoing paragraphs, in
our opinion, it is not necessary to elaborately discuss the
evidence of other witnesses i.e., panchas and other witnesses on
recovery of the articles in view of the legal position stated in the
case of Laxman Keraba Patil vs. State of Maharashtra (supra),
that when the accused is handcuffed and the articles are
recovered pursuant to his statement, cannot be said to be
beyond doubt that the recovery was voluntary and not the result
of duress, threat or pressure by the police authorities.”
“20. In the light of discussion in foregoing paragraphs, we are of
the considered view that the appellant – accused deserves to be
given benefit of doubt and is entitled to be acquitted.
Accordingly, the following order is passed:”
32. Therefore, this circumstance of recovery of clothes which has
been made pursuant to the statement made by Avinash, when he was
handcuffed cannot be said to be beyond reasonable doubt as the
recovery cannot be said to be voluntary but as a result of pressure or
threat by the police authorities.
33. Further even a perusal of the CA Report would show that the
clothes which were recovered at the instance of the Accused Avinash viz
the black coloured T-shirt had no blood detected on it and finding with
respect to light blue coloured jeans is “Inconclusive” and therefore this
circumstance also does not get conclusively proved.
34. The fourth and the fifth circumstance which is taken into
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consideration is the recovery of stone and clothes, having blood stains,
at the instance of Mukesh (Appellant No 2). To prove this circumstance,
the prosecution has examined PW6. In the deposition of PW6, he has
stated that upon being called on 31/03/2016, he went to the MRA
Marg police station at 11:30 a.m. He has further deposed that police
had shown an accused named Mukesh Mahadev and said that Mukesh
would show the place where he along with another accused have
committed the murder and he would also show the place where stone
by which offence was committed is concealed and also the place where
the clothes are concealed. He has further deposed that accused took
them to Platform 18 at CST Railway Station and led them to bushes at
some distance and there was a heap of garbage. He has further deposed
that accused took out a stone from the said place and that it was a
stone of triangle shape admeasuring 4 x 6 inches and further deposed
that there were blood stains on the stone and the police encircled the
stains and packed it in a Khaki wrapper. He has further deposed that
the accused took them to a railway godown which was at some distance
from platform 18 and produced the clothes from heap of garbage. He
has further deposed that the clothes were blue shirt and brown colour
(Tapkiri colour) pant. He has further deposed that the clothes were also
seized in a Khaki wrapper and they put their signature on the label. He
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has further deposed that the accused then led them to show the place of
offence and took them behind the railway court at CST station and
there was a closed toilet/bathroom and accused Mukesh had shown it
as the place of offence. He further deposed that the accused Mukesh
had shown the ditch as the place where the body of the lady was
thrown. In the cross examination, the witness has admitted that the
accused has not specified the name of the place where he has concealed
the clothes and the stone and further told that the accused has said that
it was at CST station. He has categorically admitted it was like a forest
and many stones were lying there and admitted that Platform 18 is
visible from that place and it is at 2-minute distance and also stated that
the railway quarters are behind that area. He has also admitted that
there is a railway court behind the forest and there has been no
barricading kept by the police in the said area. He has also admitted
that the stones like Article B were lying in the forest area and those
were of different shape. What needs to be seen is whether the articles
which were seized were sealed on the spot? This witness in his
deposition before the court has not deposed or it has not come in his
substantial evidence that the stone which was recovered has been
sealed on the spot. Similarly, even the clothes which were recovered at
the instance of the accused have not been sealed after its seizure as it
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has not been so testified by the said witness in his deposition before the
court. Even the Investigating Officer has not stated in the substantial
evidence that the sealing of either clothes or stone was done on the
spot. Therefore, the entire evidence regarding recovery of incriminating
article at the instance of the accused is rendered doubtful and thus
cannot be accepted. Since the recovery itself is doubtful, the finding of
the blood stains of group B on the clothes of the accused Mukesh pales
into insignificance.
35. In a recent judgment, the Hon’ble Supreme Court of India in
Criminal Appeal No.2143 of 2024 Hansraj vs. State of Madhya Pradesh
2024 INSC 318 decided on 19.04.2024 held as under:
“14. As a consequence of the above discussion, we have no
hesitation in holding that the prosecution miserably failed to
prove the factum of disclosure made by the accused to the
Investigating Officer (PW-12) leading to the recovery of the silver
articles allegedly looted by the accused from the complainant. It
is also important to note that the prosecution did not lead any
evidence to show that the recovered articles were sealed at the
time of recovery or that they were kept secure in the malkhana of
the Police Station till the same were subjected to identification
before the Executive Magistrate.”
36. Even in the judgment of Sakharam Raoji Dharap v. State of
Maharashtra, supra, the Apex Court has held that when the accused is
handcuffed and the articles are recovered pursuant to his statement, it
cannot be said to be beyond doubt that the recovery was voluntary and
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not the result of duress, threat or pressure by the police authorities .
37. In the absence of substantial evidence either by PW 6 or PW 10
about the factum of sealing at the spot, in our considered view, the
entire evidence regarding recovery of incriminating articles at the
instance of the accused is rendered doubtful and thus cannot be
accepted at all.
38. The prosecution has also failed to establish any motive. None of
the witnesses examined have deposed about the motive and therefore
even this circumstance cannot be taken into consideration against the
Appellants.
39. Taking into consideration the evidence that has been brought on
record, it does not unerringly point towards the guilt of the Accused/
Appellants. No doubt it raises suspicion about the involvement of the
Appellants; however, it is a settled law that suspicion, however strong it
may be, cannot take the place of proof beyond a reasonable doubt and
the Accused cannot be convicted on the ground of suspicion, no matter
how strong it is. An Accused is presumed to be innocent unless proved
guilty beyond reasonable doubt. The circumstances brought on record
also do not form a complete chain so as to lead to irresistible conclusion
about the involvement of the Appellants in the present crime.
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Establishing one or two circumstances beyond reasonable doubt is not
sufficient to hold that the entire chain is complete as the chain of
circumstances must be so complete that it leads to no other conclusion
than the guilt of the Accused person, which is not so in the present case.
The degree of proof required to hold the Appellants guilty beyond
reasonable doubt, on the strength of circumstantial evidence, is clearly
not established. Due to the missing links finding of guilt cannot be
recorded and the benefit of doubt must go to the Appellants.
40. We are satisfied that the prosecution has failed to bring home the
guilt of the Appellants beyond reasonable doubt and therefore the
Appellants deserve to be acquitted. The trial court has failed to
appreciate the evidence on the touchstone of the settled principles of
law and has therefore erroneously returned a finding of conviction.
41. As a result, we pass the following order:
i. Both the Appeals are allowed.
ii. The conviction and sentence of the Appellants
under Sections 302, 201 r/w 34 of Indian Penal Code
recorded vide impugned judgment and order dated
12th January 2018, passed by the Learned Sessions
Court for Greater Bombay in Sessions Case 459/2016
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is quashed and set aside and the Appellants are
acquitted of all the charges they are charged with.
iii. The Appellants be released forthwith if not required
in any other case.
42. The Appeal stands disposed of and all pending applications also
stand disposed of.
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