Bombay High Court
Shantilal Dashrath Gaikwad vs State Of Maharashtra on 25 March, 2026
Author: A. S. Gadkari
Bench: A. S. Gadkari
HEMANT
2026:BHC-AS:14258-DB
CHANDERSEN
SHIV
H. C. SHIV app218.25.doc
Digitally signed by
HEMANT
CHANDERSEN SHIV
Date: 2026.03.25 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
19:32:26 +0300
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.218 OF 2025
WITH
INTERIM APPLICATION NO.695 OF 2025
WITH
INTERIM APPLICATION NO.697 OF 2025
IN
CRIMINAL APPEAL NO.218 OF 2025
Shantilal Dashrath Gaikwad
Age 50 years, Occupation Labour
Resident Near Thane Railway station,
Permanent Address :
Vishrantwadi Dhanoli road,
Patri Chawl, Alandi Road,
Survey No.12, Bhimnagar
Slum Road, Pune ... Appellant
V/s.
State of Maharashtra
Through Public Prosecutor
2nd Floor, PWD Building,
High Court, Fort,
Mumbai 400 032 ... Respondent
Mr. Amit Gharte, Advocate appointed by Legal Aid for the Appellant.
Mr. Vinod Chate, APP for the Respondent-State.
CORAM : A. S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 26th FEBRUARY 2026
PRONOUNCED ON : 25th March 2026
JUDGMENT:
[PER- SHYAM C. CHANDAK, J.]
1) Challenge in this Appeal is to a Judgment and Order dated 9th
July 2024 passed by the learned Special Judge (POCSO), at Thane in
Special (P) Case No.231 of 2016, thereby, the Appellant/Original Accused
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No.3 is convicted under Sections 363, 302 and 201 of the Indian Penal
Code (for short ‘IPC‘) and sentenced as under :-
Under Section 363 of IPC, Appellant was sentenced to suffer
R.I. for 5 years and to pay fine of Rs.5,000/- and i/d to undergo simple
imprisonment for one month. Under Section 302 and 201 of the IPC, he
was sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/-
and i/d to undergo simple imprisonment for one month. However, the
Appellant was acquitted of the remaining charges framed against him.
2) Heard Mr. Gharte, learned Advocate for the Appellant
appointed by Legal Aid and learned APP Mr. Chate for the Respondent-
State. Perused entire record.
3) The facts of the case in hand are intriguing and therefore
stating it in detail is necessary.
4) The informant “P” (PW.1) was wife of “NP” (PW.2). The victim
girl ‘M’ aged about 1 year 10 months was their biological daughter. Their
family used to reside at GL Colony, Manpada, Thane. About one year prior
to the incident A-1 Shankar Jagdev Singh used to do waterproofing work in
the society of PW.1. On 20.08.2013, at about 6:00 p.m., the victim was
playing in front of her house where birthday programme of neighbouring
child – s/o Shravankumar was organised. At about 7:00 p.m., the victim
went missing. A search was made for the victim; however, she could not be
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found. Upon enquiry with the neighbour Prakash Mishra, he revealed that
A-1 was playing with the victim at the birthday venue. Search was made in
the house of A-1 but the victim and A-1 both were not found there.
Therefore, PW.1 filed the complaint (Exh.21) which came to be registered
with Kasarwadavli police station under Section 363 of IPC against the A-1.
4.1) On 21.08.2013 and 22.08.2013, API Lokare (PW.7) conducted
the investigation and recorded the statement of witnesses. It revealed that
when the victim went missing, A-2 Jahid-Ur-Rehman Shaikh was present
with A-1. On 23.08.2013, A-1 was arrested. During further investigation, it
transpired that A-1 had kidnapped the victim from the birthday venue and
handed over to A-2 who took her to Thane Railway Station and abandoned
at Platform No.10, there.
4.2) The CCTV footage of the Platform No.10 provided by the RPF
Thane Railway Station discovered that after the victim was abandoned by
A-2 at Platform No.10, an unknown person (Appellant) came there and
took her in his custody. At that time, Rakesh Dhudaku Pawar, (PW.3) then
Police Naik, was present there. Therefore, PW.3 was shown the CCTV
footage and his statement was recorded. PW.3 divulged that on 20.08.2013,
at 11:25 p.m., he and his associate police constable/Shirsat had arrived at
the Platform No.10 and stayed there as their next patrolling duty was on
Thane-CSMT train leaving at 5:31 hours. After some time, PW.3 heard
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crying of a child. He went there and found that one small girl aged 1 ½ to 2
years was crying outside the entrance gate towards Kopari side. He,
therefore, enquired with the people who had slept there. They said that she
did not belong to them. At that juncture, said unknown person having red
colour shirt on his body came there and claimed that said girl belongs to
him. Further, that unknown person talked to the persons present there as,
“Dekhona Baba yah Kya Tumhari Bachi Hai Kyaa, yah Mery Bachchi Hai “.
That unknown person along with said girl then went to the RPF booth near
entrance gate No.1 and requested the RPF police to allow him to keep that
girl there as he wanted to bring meal. At that time, PW.3 went to that
booth; brought that unknown person alongwith that girl at the place where
she was found and again enquired with the people present there. But, the
persons present there also told him that the girl did not belong to them. At
this juncture, that unknown person said to PW.3 that, ” Dekho Saab Kisika
Ladki Nahin, Mera hi Ladki Hain Na”. Therefore, PW.3 got convinced that
the girl belongs to that unknown person and he told him to go away. The
unknown person then kept that girl on a Katta at Platform No.10 and said
to PW.3 as “Baba main Ladki Ke Liye paanch Minit Main Khanaa Lekar Aata
Hoon”. On this, PW3 instructed him as “Tujhi Mulgi Tujhya Sobat Gheun
Ja” (Take your girl with you). Thus, that unknown person was involved in
this offence and since then he was a wanted accused.
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4.3) On 29.08.2013, police arrested A-2. Investigation with A-2
revealed that he alongwith the wanted accused had kidnapped the victim to
exploit her for the purpose of begging. One Satish Shetty was a suspected
accused as he resembled that unknown person in the CCTV footage who
had kidnapped the victim from platform No.10, Thane. On 17.09.2013 it
was learnt that, the victim was taken to Hyderabad but her search there did
not yield any result. On 15.10.2013, the police investigated about Satish
Shetty with the people working at Thane railway station, but, he was not
found. In the backdrop, on 28.10.2013 charge-sheet was filed against A-1,
A-2 and two wanted accused under Section 363A and 34 I.P.C.
5) On 09.01.2014, the wanted accused Satish Shetty came to be
arrested. However, further investigation later confirmed that Satish Shetty
had no involvement in the crime. This led to filing of a report under Section
169 of Cr.P.C. seeking his release.
6) Since the victim was not found, her parents – PW.1 and PW.2
filed Criminal Writ Petition No.2510 of 2014 seeking writ of habeas corpus.
Vide this Order dated 18.07.2014, since more than 6 months whereabouts
of the victim were not known, hence observing that proper investigation
was not done in the case, this Court directed Mr. Ravindra Singhal
Additional Commissioner of Police to look into the matter and submit a
report on 30.07.2014 regarding the steps taken during investigation.
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H. C. SHIV app218.25.doc 7) As the prosecution case goes further, the Appellant was native
of Vishrantwadi, Pune. He alongwith his friends had committed some
crimes of theft. For past 2 ½ years he was staying on the footpath at Thane
Railway Station. He used to collect scrap, plastic bottles from the platform
area and sell it to earn his livelihood. During investigation, on 26.07.2014
Smt. Bagul, Asst. P.I. and police from the squad took the Appellant in
custody and shown him some photographs and the recovered CCTV
footage. The Appellant stated that he was seen in said photographs. Further
the Appellant disclosed that prior to about one year, at about 11:30 p.m.,
while he was collecting scrap on Eastern side of Thane Railway Station,
there he had noticed one abandoned girl aged 1 ½ years. He, therefore,
enquired with the people present nearby and tried to find out whether
someone had lost his daughter. Meanwhile, he went to the police help desk
situated there and informed the matter to the police. Said police suggested
him to go to the police chowky. He then enquired with some passengers
present at Platform No.10. However, he did not get the parents/guardian of
that girl. At about 12:00 midnight, when he was going towards Thane
(West) police chowky, A-4 came from behind and told him not to take that
girl to police chowky and that, he will take care of her. Therefore, he
handed over that girl to A-4 and asked him his address. A-4 disclosed that
he was residing in Panvel Railway Station slum area. The Appellant also
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informed that one woman aged about 22 years, with 4 minor children aged
between 3 months to 10 years were associated with A-4. Then, A-4 made
that girl sleep along with his own children. Appellant further informed that,
on the next day, at about 5:30 a.m., he had returned to the same place. By
that time, A-4 and his family alongwith that abandoned girl had left for
Panvel. Therefore, the police requested him to help searching that girl. He
then went to Panvel along with Smt. Bagul, API and searched for A-4. At
about 12.30 p.m., they saw one girl from amongst the children who were
associated with A-4. Appellant identified that girl. Therefore, search was
made for A-4 around the hut of that girl. At about 12.30 p.m., the police
were able to find A-4. The Appellant was able to identify A-4. Thereafter, A-
4, his wife and their children were brought to the police station along with
the abandoned girl.
7.1) On 29.07.2014, Mr. Kadam, Senior PI, Anti Extortion Squad –
Crime Branch, Thane and PW.7/Mr. Lokare, API enquired with the
Appellant wherein, he had narrated as stated above. Therefore, Appellant
and A-4 were arrested on 29.07.2014 and remanded to police custody on
30.07.2014.
7.2) Vide Order dated 30.07.2014 passed in the Writ Petition, this
Court was informed that pursuant to the Order dated 18.07.2014, in all 11
police teams were formed by the Additional Commissioner of Police and
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succeeded in tracing out the victim. Therefore, this Court directed that the
identification process of the abandoned girl shall be completed within three
days. However, the police shall not wait for DNA test and if the mother and
father identifies their daughter, then the custody of that abandoned girl
should immediately be handed over to the said Petitioner and his wife
(PW.1 & PW.2). The Court also appreciated the prompt steps taken by the
police to search the victim.
7.3) On 01.08.2014, PW.1 and PW.2 were called at the police station
when they identified the abandoned girl as their missing child ‘M’ – the
victim. Therefore, as per direction of this Court, the abandoned girl was
given in the custody of PW.1 and PW.2. Further investigation was marked to
PW.8 – Mr. K. V. Karpe, Police Inspector (Admn.). The test of the DNA
samples of PW.1, PW.2, the abandoned girl, A-4 and A-4’s wife revealed that
the abandoned girl was born on 08.03.2010 at Dr. Balabai Nanavati
hospital and she was the biological daughter of A-4 and his wife –
Ms.Hansa. Hence, vide this Court Order dated 26.08.2014 passed in the
Writ Petition, the abandoned girl was handed over to A-4 and his wife. The
police was directed to carry out further investigation.
7.4) Despite this background, on 21st & 22nd August 2014 the
Appellant gave a confessional statement (Exh.190) under Section 164 of
Cr.P.C. before PW.11 – Mrs. Y. R. Mukkanwar, then Judicial Magistrate First
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Class, Thane. This confession was similar to what the Appellant had
disclosed on 29.07.2014 before Mr. Kadam., Senior PI, AES – Crime Branch,
Thane and Mr. Lokare, API (PW.7). But it is noticeable that the confession
(Exh.190) does not bear signature of Appellant.
8) From here, the prosecution case took a dramatic twist. This
unexpected shift posed a serious challenge to the integrity of the entire
case. On 02.09.2014, Dy. Commissioner of Police Mr. Manere constituted 5
teams of detection squad. On 05.09.2014, the Appellant was shown to be in
police custody in C.R.No. 280 of 2013 registered with Kasarwadavli Police
Station under Sections 454, 457 and 380 of IPC. On 05.09.2014 itself,
during interrogation in that C.R.No. 280 of 2013 by Mr. Shaikh, Senior
Police Inspector, AHTC, Crime Branch, Thane, in the presence of panchas,
the Appellant voluntarily disclosed that, “when he used to reside at Pune,
he and his friends had together committed many crimes of theft. He was
convicted in those crimes and was released after serving the sentence.
Thereafter, his parents had driven him out of the house. Since many years
he used to reside at Platform No.10, Thane Railway Station. He used to
collect scrap material and empty water bottles lying on railway tracks and
sell it to earn his livelihood. Prior to about one year, at about 11:30 p.m.,
when he was roaming in the Eastern side of Thane Railway Station, he had
found the aforesaid abandoned girl (“the victim”) outside Platform No.10.
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He then enquired with the people there and tried to search for her relatives,
however, her relative was not found. He, therefore, went to the police help
centre there and informed the matter to the police. Said police suggested
him to take the victim to the police chowky. While he was going there, the
A-4 came from behind and said him, “Don’t take the girl to police chowky, I
will look after her. He, therefore, handed over the victim to A-4. However,
wife of A-4, who was present there, refused to look after the victim.
Therefore, he alongwith the victim slept at the bus stop situated outside the
Platform No.10. On the next day, he came to “Jakoo Mata Math” (“Math”).
The victim was crying, therefore, one Yasmin (PW.9), who was present in
the Math, fed her milk and rice. The Appellant stated that then he and his
friend Jayraj Pillai (PW.4) smoked Ganja. He then took the victim to one
nearby tree and twice he raped on her. The victim was crying. Meanwhile,
Jayraj Pillai came there and they smoked Ganja together. Thereafter, Jayraj
Pillai went away. The victim was still crying. Therefore, the Appellant,
assaulted her over head by means of broken hockey stick and killed her. He
then again committed rape on her dead body. Further, he concealed her
dead body in a plastic bag and threw that bag alongwith the hockey stick
into Indrayani river. Further, the Appellant voluntarily told that he was
ready to show place where he had killed the victim after raping her and
where he had thrown her dead body in the river.” Mr. Shaikh, Sr. P.I.
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recorded this disclosure statement (Exh.71). Then, the panchas, police
officers, police staff and the Appellant went to said Math in a police vehicle
as lead by the Appellant. There, the Appellant had shown the tree under
which he had ravished and murdered the victim and also the river wherein
he had thrown the dead body. The police inspected there but the dead body
and the hockey stick were not found. Accordingly, the police recorded the
Memorandum Panchanama (Exh.72).
8.1) Similar disclosure was made by the Appellant on 06.09.2014
before PW.8. – K. E. Karpe, Investigation Officer, but adding that, earlier, on
29.07.2014 due to fear of police he had falsely stated before the two police
officers that he had given the victim in the custody of A-4. On the same day,
PW.8 recorded the statement of Jagdish Dattu More (PW.5), Kisan Pardeshi,
Yasmin Latif Sayyed (PW.9) and on 11.09.2014 of Jayraj Pillai (PW.4). PW.5
had also seen the Appellant in the Math.
8.2) On 21st and 25th September 2014, the Appellant gave another
confessional statement (Exh.187) before Pranita Bharsakade-Wagh (PW.10),
then Judicial Magistrate First Class, Thane. Therein, the Appellant had
stated that in his earlier confession he had stated that he had given the
victim in the custody of A-4. However, he had not given the victim in the
custody of A-4. He had taken her to the said Math. There, he had smoked
Ganja and consumed a Nitrogen pill purchasing it from Kisan Padrdeshi. He
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being intoxicated took the victim to the said tree. She was crying.
Therefore, he assaulted her over head with a piece of a stump and killed
her under the influence of the narcotics.
8.3) Meanwhile police exchanged written communications to find
out whether at the relevant time an Accidental Death/Crime was registered
in Pune region in respect of the victim. The police also obtained details of
criminal cases previously registered against the Appellant. On 04.10.2014,
the police filed a report under Section 169 of the Cr.P.C. and sought the
release of A-4. Finally, police charge-sheeted the Appellant on 31.10.2014.
9) On 01.12.2015, the learned trial Court framed the charge
below Exh.13. A-1 and A-2 were charged under Section 363A and 34 of
IPC. The Appellant was charged under Sections 363, 376 (2) (i) 302 and
201 of IPC. Additionally, under Sections 4, 5 ( l)(m), 6, 9 (l)(m) and 10 of
the Protection of Children from Sexual Offences Act, 2012. The accused
pleaded not guilty to the charge and claimed to be tried. Their defence was
of the total denial and false implication.
9.1) As recorded in impugned Judgment, the A-2 absconded during
trial and he was not traced out. Therefore, the trial was proceeded against
A-1 and A-3, separating against the A-2 (vide Order below Exh.81).
10) To substantiate its case, the prosecution examined 11 witnesses
including P.W.5 – Jagdish Dattu More who had seen the Appellant in the
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said Math and P.W.6 – Imtiaz Ahmad Memon, Panch witness to the
Disclosure Statement & Memorandum Panchanama.
10.1) All the incriminating circumstances in the evidence were
denied by A-1 and A-3 in their statement under Section 313 of Cr.P.C.,
maintaining the same defence. Both these accused have not examined
themselves on oath nor any witness in their defence.
10.2) This being the case of corpus delicti, the proof of the charge of
murder was depending on ‘last seen together’ circumstance, preceded by
the fact of alleged kidnapping from lawful guardianship and supported with
the confessional statements made by Appellant. On appreciating the oral
and documentary evidence in the light of rival arguments and the settled
principle of law, the learned Judge of the trial Court found the evidence
sufficient, cogent and reliable but only against the Appellant. The
confessional statements of the Appellant were accepted as voluntary, true
and worthy of inspiring confidence. As a result, the Appellant was held
guilty and convicted for kidnapping and murder of the victim. In the end,
he was sentenced as noted in paragraph 1 above.
10.3) The A-1 was acquitted on the charge of Section 363A and 34 of
IPC. The A-2 though was absconding, he was also acquitted of the said
charge for want of the evidence.
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about 7.00 p.m., her husband-PW.2 returned home from market and he
enquired about the victim. She told him that she was playing in the
courtyard of their house. Then, she and PW.2 searched for the victim but
she was not found. When they enquired with their neighbour Prakash
Mishra, he told her that the victim was playing with A-1, Shankar and he
had taken her with him. PW.1 deposed that then they searched for the
victim at the room of A-1 but A-1 and the victim were not found. She then
filed the complaint (Exh.21). She has deposed that, she had given the photo
(Exh.22) of the victim to the police. Police had arrested A-1 and he had
disclosed that he had handed over the victim to some third person. PW.1
deposed that the police had shown her the CCTV footage on 01.08.2014
and it revealed that, the victim was given by one to another. There were 3-4
persons at Thane Railway station. PW.1 deposed that on the basis of the
description of the victim given by her, custody of one girl was given to her
as per the directions of this Court. However, the DNA test did not match
and hence, custody of that girl was handed over to her biological mother,
i.e., wife of A-4. PW.1 identified the photos of the CCTV footage (Exh.23 to
25). She had also identified A-1, Shankar before the Court.
11.1) In the cross-examination, PW.1 has admitted that the house of
Shravankumar was visible from her house. Police had told her that her
daughter was at Hyderabad. When she had gone to Hyderabad, some
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children were playing outside the house where they had visited for the
victim. Said children had told that her daughter was inside that house. At
that time the police did not help her. She had seen A-1 at the police station
for the first time. The person seen in the CCTV footage was not A-1. She has
denied that she had deposed at the instance of police that A-1 was present
before the Court. She has denied that she has deposed false against A-1.
12) PW.2, father of the victim has testified that at the time of the
incident the victim was playing near his room. A-1 had taken her alongwith
him and abandoned her at Thane Railway station. The said fact was
recorded in the CCTV footage installed there. The police had shown him the
CCTV footage. He deposed that another person had picked up the victim.
The said person had disclosed that he had sold the victim for Rs.1,000/-.
Hence, PW.1 filed the complaint. He deposed that police had apprehended
eight persons. One of the accused disclosed that he had sold the victim at
Hyderabad and was ready to show the victim. PW.1 went to Hyderabad
alongwith the police. Pursuant to the Order of this Court passed in his Writ
Petition, one girl was handed over to him.
12.1) In the cross-examination of PW.2 it has come that the persons
who were apprehended by the police were not produced before the Court.
Only A-1 was involved in this case and the other two accused were not
involved. He has denied in the CCTV footage, the face of the person was not
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clear who had kidnapped the victim. After verifying the identification mark
of his missing daughter, he had accepted the custody of the said girl child.
He has denied that the person seen in the CCTV footage was present before
the Court. He has denied that, he has deposed false on the say of police that
the Appellant was the same person who was seen in the CCTV footage.
13) The pivotal evidence in the given case was the testimony of
Rakesh Pawar-PW.3, the then Police Naik attached to Dadar Railway police
station and who was relied as the first person who had seen the victim and
the Appellant together. PW.3 has deposed that on 20.08.2013, at 11:35
p.m., he and his associate police P.C.No.3243/Shirsat came at Thane
Railway Station by train as his next duty was to start at 5:30 hours of the
next day. They kept their service rifles at the Platform No.10. He then went
towards Kopari side and while he was returning, he heard crying of a child.
People there told him that one child was crying. He went there. One girl
child aged 16 to 18 months was crying there. She was inside the
compound. He removed her from the compound and shouted “Kiska ladaki
hai, kiska ladaki hai”. One person wearing red shirt came there and told
that said girl was his daughter; he had gone to take meal. PW.3 deposed
that he had asked other people there as to whether they were parents of the
said girl. They all replied in negative. Thereafter, that unknown person
lifted the said girl and she stopped crying. Further, the unknown person
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made that girl sit on RPF’s table. PW.3 deposed that he had told him not to
leave that girl alone. Thereafter, that unknown person went away alongwith
that girl. PW.3 deposed that on 28.08.2013 he was called at Kasarwadavali
Police Station and was shown the CCTV footage. He, said unknown person
and the said girl were seen in the CCTV footage. Lastly, he has identified the
Appellant as the same person seen in the said footage.
13.1) In the cross-examination, PW.3 has admitted that the police
had not called him for identification parade of the Appellant. He has denied
that he had not seen the Appellant on the railway station; that, there was
no conversation between him and the Appellant; that, he was not present
on the platform at the relevant time; that, he has deposed false at the
instance of his higher authorities.
14) Jayaram Pillai-PW.4 has testified that the Appellant had
become his friend when he was in jail. In the year 2013, he was standing at
the shop of Kisan Pardeshi, near the said Math, at Kamshet Railway station.
There, Kishan Pardeshi was dealing in Ganja. PW.4 deposed that he had
seen the Appellant at 4:30 to 5:30 p.m. at the said Math. At that time, he
had asked the Appellant as “what brought you here” ( Tu ithe kasa aala).
The Appellant replied that he had come there to get Ganja. PW.4 deposed
that he, one girl aged about 5 to 6 years was with the Appellant. Then he,
his friend and the Appellant consumed Ganja and the Appellant went near
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the river. At 9.00 p.m. he went to home and the Appellant remained there
along with the said girl. He deposed that Smt. Bagul, API had visited at his
residence and showed him photograph of the victim and the Appellant. He
had told her that he knew the Appellant as he was with him in the jail. On
seeing the photo, he had identified the victim and the Appellant as the
victim was with the Appellant when he had visited the Math. He deposed
that the man and the girl seen in the photographs (Exhs.23, 24 & 25) were
the victim and the Appellant. He has identified the photograph (Exh.57) of
the subject tree shown by the Appellant.
14.1) In cross-examination, PW.4 has admitted that the photographs
(Exhs. 23 to 25) of the Appellant and victim were not clear. He has denied
that he had identified the photographs at the instance of police.
15) Jagdish Dattu More-PW.5 has deposed that in the year 2014, he
was working as a driver with Primary Health Center and his duty timings
were from 8.:00 a.m. till midnight. He was a member of MNS political party
and Kishan Pardeshi was city President of the MNS. The office of Kishan
Pardeshi was situated near the said Math. PW.5 deposed that he used to go
to that Math. Yasmin Sayyed (PW.9)was working in the office and Math.
PW.5 deposed that on the occasion of Raksha Bandhan of the year 2013, in
the evening, he, Kishan Pardeshi, PW.4 and PW.9 were present in the Math
for dinner. One unknown person along with a small girl aged about 1 to 1½
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years came there. Said girl was crying. PW.5 deposed that he told PW.9 to
provide rice and milk to that girl. Thereafter, the Appellant took that girl
towards a big tree and returned alone. He had tried to call the Appellant
but he neglected and went away. The Appellant was not in a condition to
listen. PW.5 deposed that, after some days, the police had visited him and
showed photographs of that person and the said girl. He deposed that the
name of the said person was Shantaram Gaikwad. On enquiry, he had
stated to the police that the Appellant had brought that girl to the Math.
Police had brought the Appellant in the Math to know the spot of the
incident. He has identified the photographs (Exhs.23, 24, 25 & 57) and the
victim, Appellant and the tree seen in said photos. He deposed that same
photos were shown to him by the police. He has identified the Appellant.
15.1) In the cross-examination, PW.5 deposed that being a social
worker, he was in contact with police. He has denied that the said girl was
not crying, she was happy and she ate with them; that, he had talked with
the person who was alongwith the girl; that, said unknown person had
visited the Math for Darshan; that, he cannot identify the visitors to the
Math; that, he does not know the Appellant; that he had not seen the
victim; and that, he has deposed false at the instance of the police.
16) Yasmeen Sayyed-PW.9 deposed that her brother-in-law
Mr.Kisan Pardeshi had constructed the said Math. She used to cook for the
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devotees and labour who used to visit the Math. Her duty timings were
7.00 a.m. to 7.00 p.m. She knew the Appellant. She has deposed that in the
year 2013, on the following day of Raksha Bandhan, at about 4:00 p.m.,
the Appellant had visited the Math along with a girl child aged about 1 ½
and 2 years. The child was crying. She had provided milk and rice for the
child and meal to the Appellant. The Appellant fed the child. At that time,
she was standing near the child. Thereafter, the Appellant left the Math
along with the child. But, she does not know the time when the Appellant
had left. Kasarwadavali police had brought the Appellant at the Math. She
had told the police that the Appellant used to visit the Math. The police had
showed her the photograph (Exh.24) of the victim. The girl seen in that
photograph was the victim. The Judicial Magistrate had recorded her
statement (Exh.108). Only suggestions of denial have been put to PW.9 in
her cross-examination.
17) Imtiaz Memon-PW.6 deposed that on 05.09.2014, the Appellant
was in police custody. At that time the Appellant voluntarily stated that, he
would show the place where the dead body of the victim was thrown in the
Indrayani river. The police recorded that Disclosure Statement (Exh.71).
Thereafter, he alongwith police, panchas and the Appellant went to Pune by
police Van. The Appellant took them near one temple and stated that the
dead body was kept there. The police recorded the Memorandum
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Panchanama (Exh.72). It bears his signature. Its contents are true.
17.1) In the cross-examination PW.6 admitted that the Appellant was
handcuffed when he was brought inside the police station. Daily, he used to
come to the Court. However, he has denied that he used to come to the
Court to give evidence; that, he was working as regular panch; that, he was
acquainted with police and therefore, the police had called him to act as a
panch; that, the Appellant had not made the voluntary statement and
shown the said spot; and that, he has deposed false on the say of the police.
18) Vikas Lokare-PW.7, API, has testified that during investigation
he had recorded the spot panchnama (Exh.88). On 23.08.2013, he had
arrested the A-1. On 23.08.2013, a letter was issued to P.I., RPF to provide
the CCTV footage, which was received in a pen-drive on 24.08.2013. On
26.08.2013, further investigation was handed over to Mr. Thorat, Police
Inspector. On 28.08.2013, Mr. Thorat had arrested the A-2. Since sufficient
evidence was found against A1 and A2, therefore, he filed the charge-sheet.
He deposed that on 29.07.2014, P.I. (Crime) had found two suspected
accused. He arrested A-3 and A-4 under arrest panchnama (Exh.94) and
(Exh.95). Since the victim was not found, therefore, further investigation
was continued through P.I. Mr. Karpe/PW.8.
18.1) In the cross-examination, PW.7 admitted that CCTV footage
were checked, to trace out as to where the victim had gone from Platform
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No.10. He had given the CCTV footage to Mr. Thorat, PI. The said CCTV
footage was filed along with the charge-sheet by Mr. Thorat. He denied that
he had not given the CCTV footage to Mr. Thorat in which the victim was
seen with the Appellant at Platform No.10. He has admitted that CCTV
footage other than of Platform No.10 was not annexed with charge-sheet.
He cannot show the said CCTV footage as it was not available with him. He
has admitted that he had sent PW.1 to Hyderabad along with the police as
they had got the information that victim was alive. He has denied that at
Hyderabad, money was demanded from PW.1 but she could not pay the
money, therefore, she had returned back with police. He has denied that to
suit their purpose he and Mr. Thorat, PI had recorded the statement of
witnesses. He has denied that as this matter was taken up by this Court,
they falsely arrested the Appellant and charge-sheeted him.
19) Sr. PI K. V. Karpe (PW.8) has deposed that, during investigation
he had checked all the CCTV footage of the relevant time of the Railway
Station. From the CCTV footage, it was noticed that the victim was taken
away by one person from Platform No.10. He had recorded the statement of
the witnesses as noted above. He had obtained the statement of Kishan
Pardeshi, Jagdish More (PW.5) and Yasmin Sayyed (PW.9) recorded under
Section 164 of Cr.P.C. (Exh.106 to Exh.108). Further, he has deposed about
the other steps taken for the investigation. The cross-examination of PW.8 is
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full of the suggestions of denial. PW.8 has not caved into those suggestions.
20) Now coming to the confessions made by the Appellant before
PW.11- Yogita Mukkanwar and PW.10- Pranita Bharsakade-Wagh, who were
then serving as the Civil Judge, Junior Division and J.M.F.C., Thane. In the
beginning, both PW.11 and PW.10 had testified about the legal procedure
that they were required to follow and which they had actually followed for
recording the Part-I and Part – II of the confessions. There is no dispute
about that from the Appellant’s end.
20.1) About the significant part of the 1st confession, PW.11 has
deposed that the appellant has stated that, prior to one year, a day before
Raksha Bandhan, he was collecting scrap. At about 11:00 to 11:30 p.m., he
had noticed a small girl crying outside Thane Railway Station. He took the
said girl to the Railway Police Station, however, the police drove him away.
Then he alongwith that girl wandered for some time here and there. Then
he again went to the Railway Police Station. However, the police assaulted
him with a log. Thereafter, while he was taking that girl to the Railway
Police Station, one person by name Sheru Salat (A-4) approached him from
behind and stated that he would take care of the child. He then handed
over the said child to Sheru Salat. He enquired about his residence, to
which said person replied that he was residing in Panvel. Thereafter, Sheru
Salat and the girl child left at about 5:30 a.m. by a Panvel local train. After
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about 15 days, when he went to Panvel, he had seen Sheru Salat while
playing with the said girl child. Thereafter, on 29.07.2014 police arrested
him and made enquiry. He was shown the CCTV footage, wherein he was
seen handing over the said girl to Sheru Salat for taking her care.
20.2) As deposed by PW.10, in the 2 nd confession (Exh.187) recorded
by her, the Appellant had stated that, earlier, he had given the confession
(Exh.190) before the Magistrate (PW.11) that he had handed over the small
child to Sheru Salat. But, he had not given her to him. He alongwith her
went to Pune, in a Math at Kamshet. There, he took Ganja and Nitrogen
tablet from Kisan Pardeshi and consumed it. In that intoxicated state, he
carried that girl child through a tunnel of a tree. Being intoxicated, he then
assaulted her over head with a piece of stump. As a result, she died
instantly. Therefore, he concealed her dead body in a scrap bag and threw it
into the river.
20.3) In the cross-examination, PW.11 has admitted that she had not
obtained the signature of the Appellant on the confession (Exh.190). Both
PW.10 and PW.11 have denied that the Appellant had given the confessions
due to pressure of police.
21) Submissions by Mr. Gharte, the learned Appointed Advocate :-
i) Admittedly, the Appellant was not connected with A-1 and A-2. Nor
were said two accused proved to be kidnappers.
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H. C. SHIV app218.25.doc ii) Appellant was searched on the basis of some CCTV footage allegedly
provided by the RPF. But, that CCTV footage was not produced in the
evidence.
iii) It was not proved that the photographs (Exhs.23, 24 & 25) were of
the said CCTV footage. Those photographs were not proved in accordance
with law nor admissible in the absence of Certificate under Section 65-B of
the Evidence Act.
iv) The face of the kidnappers and the alleged victim seen in the said
photographs were not clear. Therefore, initially, Satish Shetty was suspected
to be the kidnapper, as he resembled the alleged kidnapper in the said
photographs.
v) It was impossible to recognise PW.3 on the basis of the photos. No
record was produced to prove that, indeed, PW.3 was present on the duty at
Platform number 10, Thane, when the Appellant had allegedly kidnapped
the victim from there.
vi) This was a case of mistaken identity of the kidnapper. Therefore,
appellant was wrongly arrested and wrong girl, i.e., daughter of A-4 was
shown as the victim. However, when this mistake or illegality come to light,
the Appellant was falsely implicated in this case by the police to save their
own skin.
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Section 169 of Cr.P.C., he could have been examined by the prosecution to
prove the fact that the Appellant had falsely stated that he had given the
abandoned girl in the custody of A-4’s and it was only then A-4’s daughter
was taken into custody by the police at the instance of Appellant. That
apart, even no police has been examined who had gone to the residence of
the A-4 and witnessed the said fact. No contemporaneous police record was
proved showing that the police had visited the residence of A-4 to recover
the victim at lead by the Appellant.
viii) In the facts, the confessions were not true and voluntary. That apart,
the other evidence was wholly unreliable. In the absence of corroborative
evidence, the confessions cannot be a basis for the conviction and sentence.
ix) In Sharad Birdhichand Sarda vs. State of Maharashtra, reported in
AIR 1984 SC 1622, the Hon’ble Supreme Court has introduced the
Panchsheel Test for the relevance and evaluation of circumstantial evidence
in cases where direct evidence is not available. Mr. Gharte submitted that,
in the present case, the prosecution has not passed the said test to accept its
case based on circumstantial evidence.
21.1) To support these submissions, Mr. Gharte relied upon following
reported decisions :-
(i) Ramreddy Rajesh Khanna Reddy vs. State of A.P. , reported in (2006)
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H. C. SHIV app218.25.doc10 SCC 172. Therein, it is enunciated that to base a conviction on
circumstantial evidence, the prosecution must establish all the pieces of
incriminating circumstances by reliable and clinching evidence and the
circumstances so proved must form such a chain of events as would permit
no conclusion other than one of guilt of the accused. The circumstances
cannot be on any other hypothesis. It is also well-settled that suspicion,
however, grave may be, cannot be a substitute for a proof and the courts
shall take utmost precaution in finding an accused guilty only on the basis
of the circumstantial evidence.
(ii) Navaneetha Krishnan vs. State, reported in (2018) 16 SCC 161,
which enunciated that, it is a settled legal position that the law presumes
that it is the person, who was last seen with the deceased, would have
killed the deceased and the burden to rebut the same lies on the accused.
Undoubtedly, the last seen theory is an important event in the chain of
circumstances that would completely establish and/or could point to the
guilt of the accused with some certainty. However, this evidence alone can’t
discharge the burden of establishing the guilt of accused beyond reasonable
doubt and requires corroboration.
(iii) Sarwan Singh Ratan Singh vs. State of Punjab reported in AIR 1957
SC 637. Therein it is held that “usually Courts require some corroboration
to the confessional statement before convicting an accused person on such a
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statement. What amount of corroboration would be necessary in such a
case would always be a question of fact to be determined in the light of the
circumstances of each case”.
(iv) Rama Nand and Ors. vs. State of Himachal Pradesh reported in
(1981) 1 SCC 511. In this case the corpus delicti, i.e., the dead-body of the
victim was not found. However, it is held that even on that assumption, the
question remains whether the other circumstances established on record
were sufficient to lead to the conclusion that within all human probability,
the deceased had been murdered by the appellant/accused? Because, one
of the essential ingredients of the offence of culpable homicide required to
be proved by the prosecution is that the accused “caused the death” of the
person alleged to have been killed.
22) Submissions by the learned APP Mr. Chate :- i) The Appellant has not disputed that the victim was kidnapped. PW.3
has deposed that the Appellant had taken the victim away from Platform
No.10. PW.3 has identified the Appellant. Said evidence is not rebutted.
ii) PW.4, PW.5 and PW.9 have proved that after kidnapping the victim
from Thane, the Appellant had taken her to the said Math.
iii) The photographs (Exhs.23, 24 and 25) have been proved by the
prosecution with the help of PW.1, the mother of the victim. Seeing those
photos the PW.1, PW.4, PW.5 and PW.9 had identified the Appellant and the
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victim during the investigation as well as in the trial Court. Thus, said
evidence has proved the identity of both of them.
iv) Lastly, the Appellant had taken the victim down the Math premises,
near the Indrayani river. The Appellant has not explained the whereabouts
of the victim after he had taken her there.
v) The confessions of the Appellant were voluntary and true. The same
were duly proved by the Judicial Officers PW.10 and PW.11 who had
recorded the same. Both these witnesses had no reason to depose false that
the Appellant had made those confessions before them. The Appellant could
not successfully retract the confessions. Therefore, the same are safe to rely
upon. The confessions have proved that the Appellant has committed the
murder of the victim in the state of intoxication. Therefore, the conviction
and sentence imposed on the Appellant is lawful and need not be upset.
22.1) To buttress these submissions, Mr. Chate, has cited following
decisions in :-
(i) Ram Gulam Chaudhary and Ors. vs. State of Bihar , reported in
(2001) 8 SCC 311. Therein it is held that, even if corpus delicti is not
found, the accused can be convicted if there is direct or circumstantial
evidence conclusively showing that the victim had died and that accused
had committed his/her murder.
(ii) Manoharan vs. State, Coimbatore reported in (2019) 7 SCC 716,
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therein the confession made by the Appellant was retracted by him but
belatedly and in part only. However, finding that the confession was duly
recorded and properly proved, the Hon’ble Supreme Court declined to
disbelieve same.
23) We have considered these submissions in the light of the
evidence on record and the cited reported cases. In our opinion, the case
proposed by the learned Appointed Advocate Mr. Gharte is well-founded.
24) In this context, at the first place, it must be noted that the
prosecution could not prove that A-1 and A-2 had kidnapped the victim, as
alleged. As noted in the Order dated 30.07.2014 passed in the Writ Petition,
the CCTV footage which was retrieved from the Railway Station indicated
that the two accused had left the victim girl at the Railway Station and then
she went missing. However, this very CCTV footage was not produced to
prove that either A-1 or A-2 or they both were seen in that footage
alongwith the victim. Considering this fact, it was incumbent for the
prosecution to prove as to by whom, when and how the victim was brought
at Thane Railway Station from the birthday venue and abandoned at
Platform No.10. Because the Railway Station was far from the birthday
venue and in view of the age of the victim, it was unlikely that she could
have walked up to that railway station on her own.
Undoubtedly, the offence was serious in nature. After arrest of
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A-1 and A-2, the police could have searched for more CCTV footage right
from the place of kidnapping up to Platform No.10. Despite the
investigation having been conducted by senior and experienced police
officers from the outset, none of the said officers deemed it necessary to
collect such footage or to take any steps in that direction. Therefore, it was
not proved that after the victim was kidnapped from the birthday venue,
she was abandoned outside the Platform No.10 and nowhere-else.
25) To salvage that situation, the prosecution has heavily relied
upon the testimony of PW.3 who has tried to impress upon the Court that
on 20.08.2013, at 11:35 p.m., he had come at Thane Railway Station as his
next duty was about to start at 5:31 hours of the next day. However, no
record is produced to prove that on 20 th or 21st August 2013, PW.3 was
deputed for the patrolling duty on a train leaving Thane at 05:31 hours.
26) Record indicates that two letters were given to the RPF Thane
to provide the CCTV footage. One was dated 22.08.2013 and another dated
23.08.2013. Only the subsequent letter (Exh.91) has been referred to and
proved by PW.7. The alleged CCTV footage was provided on 24.08.2013.
Out of the 3 photographs, only one shows the image of a police. But said
image was highly unclear. It was difficult to identify that police only on the
basis of that image and without any further evidence in that regard.
However, there is no evidence as to how and when PW.3 was identified and
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ascertained as the same police who, at the relevant time, was present at
Platform No.10 and with whom the Appellant had allegedly interacted
when he had taken the victim in his custody and went away. PW.3 was
specifically suggested that he was not present on the platform at the
relevant time. Therefore, bare words of PW.3 are not sufficient to accept
that he was present at Platform No.10 when Appellant had allegedly
kidnapped the victim there.
27) According to PW.8, the photographs (Exhs.23, 24 & 25) were
the screenshots of the said CCTV footage. Said photographs were proved by
showing it to PW.1. But, neither the relevant CCTV footage was produced
nor the person who had copied and provided that CCTV footage to the
police was examined by the prosecution. Even the necessary Certificate to
be issued under Section 65-B of the Indian Evidence Act was not produced
to support the prosecution’s claim that said photographs were produced by
the cameras and the computers installed at Platform No.10 by the RPF. Said
photos were inadmissible without such a Certificate and could not have
been proved through PW.1.
28) In this context it is apt to refer the decision in case of Sundar
@ Sundarrajan vs. State by Inspector of police , reported in 2023 SCC
OnLine SC 310. Therein, the Apex Court considered the admissibility of
CDR; and how evidence of CDR is to be considered, i.e., the law as it then
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stood, at the time of trial. The relevant paragraphs are paragraphs 31 and
32 of the said Judgment, which read thus:-
“31. One of the earliest decisions on the provision was of a two-Judge
bench of this Court in State (NCT of Delhi) vs. Navjot Sandhu-(2005)
11 SCC 600, where the Court held that Section 65-B was only one of
the provisions through which secondary evidence by way of electronic
record could be admitted and that there was no bar on admitting
evidence through other provisions. The Court noted that:
“150. According to Section 63, “secondary evidence” means
and includes, among other things, ‘copies made from the
original by mechanical processes which in themselves ensure
the accuracy of the copy, and copies compared with such
copies’. Section 65 enables secondary evidence of the contents
of a document to be adduced if the original is of such a nature
as not to be easily movable. It is not in dispute that the
information contained in the call records is stored in huge
servers which cannot be easily moved and produced in the
court. That is what the High Court has also observed at para
276. Hence, printouts taken from the computers/servers by
mechanical process and certified by a responsible official of the
service-providing company can be led in evidence through a
witness who can identify the signatures of the certifying officer
or otherwise speak of the facts based on his personal
knowledge. Irrespective of the compliance with the
requirements of Section 65-B, which is a provision dealing with
admissibility of electronic records, there is no bar to adducing33
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H. C. SHIV app218.25.docsecondary evidence under the other provisions of the Evidence
Act, namely, Sections 63 and 65. It may be that the certificate
containing the details in sub-section (4) of Section 65-B is not
filed in the instant case, but that does not mean that secondary
evidence cannot be given even if the law permits such evidence
to be given in the circumstances mentioned in the relevant
provisions, namely, Sections 63 and 65.”
(emphasis supplied)
32. The principle which was enunciated in Navjot Sandhu was
overruled by a three judge bench of this Court in Anvar P.V. where it
was held that:
22. The evidence relating to electronic record, as noted
hereinbefore, being a special provision, the general law on
secondary evidence under Section 63 read with Section 65 of
the Evidence Act shall yield to the same. Generalia specialibus
non derogant, special law will always prevail over the general
law. It appears, the Court omitted to take note of Sections 59
and 65-A dealing with the admissibility of electronic record.
Sections 63 and 65 have no application in the case of
secondary evidence by way of electronic record; the same is
wholly governed by Sections 65-A and 65-B. To that extent,
the statement of law on admissibility of secondary evidence
pertaining to electronic record, as stated by this Court in
Navjot Sandhu case, does not lay down the correct legal
position. It requires to be overruled and we do so. An
electronic record by way of secondary evidence shall not be
admitted in evidence unless the requirements under Section
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65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the
same shall be accompanied by the certificate in terms of
Section 65-B obtained at the time of taking the document,
without which, the secondary evidence pertaining to that
electronic record, is inadmissible.” (emphasis supplied)
28.1) The Apex Court in Sonu @ amar vs. State of Haryana, reported
in (2017) 8 SCC 570, was called upon to consider whether the judgment in
Anvar P.V. vs. P.K. Basheer, reported in (2014) 10 SCC 473, should be
retrospectively applied or whether it should find a prospective application.
Accordingly, in para 40, the Apex Court held as under:
“40. This Court did not apply the principle of prospective
overruling in Anvar case [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC
473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1
SCC (L&S) 108]. The dilemma is whether we should. This Court
in K. Madhava Reddy v. State of A.P. [K. Madhava Reddy v. State
of A.P., (2014) 6 SCC 537 : (2014) 2 SCC (L&S) 305] held that an
earlier judgment would be prospective taking note of the
ramifications of its retrospective operation. If the judgment in
Anvar‘s case is applied retrospectively, it would result in
unscrambling past transactions and adversely affecting the
administration of justice. As Anvar case was decided by a three-
Judge Bench, propriety demands that we refrain from declaring
that the judgment would be prospective in operation. We leave it
open to be decided in an appropriate case by a three-Judge
Bench. In any event, this question is not germane for adjudication35
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issues against the accused.”
(emphasis supplied)
28.2) In case of Nitin Gorakhnath Sartape & Ors. vs. The State of
Maharashtra, reported in 2024 SCC OnLine Bom 1047, in para 303, this
Court noted that, since the question was left open in Sonu @ amar (supra),
the aforementioned legal labyrinth of Section 65-B certificate was finally
navigated in Sundar @ Sundarrajan (supra), where the Apex Court held in
para 44 as under:
“44. Therefore, we are inclined to agree with the ratio in
Sonu by not allowing the objection which is raised at a belated
stage that the CDRs are inadmissible in the absence of a Section
65B certificate, especially in cases, where the trial has been
completed before 18 September 2014, i.e., before the
pronouncement of the decision in Anvar P.V.. … .”
28.3) In para 304, this Court observed that, “… it was canvassed in
Sonu @ amar (supra), that there are two categories of objections which can
be raised regarding the admissibility of documents, the first category is,
where the document is per se inadmissible i.e., inherently inadmissible;
and, the second category is, where the objection is regarding the mode of
proof, which is procedural. In the latter case, if the objection is raised at any
stage subsequent to the marking of the document as an exhibit, the said
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objection regarding the mode of proof cannot be allowed. It was held, that
the crucial test, is whether the parties tendering the evidence would have
had the opportunity to cure the defect by resorting to such mode of proof as
would be regular, if such an objection was raised at the time of marking
such documents as exhibits”.
28.4) In case of Sonu @ amar (supra), in paragraph 32 of the said
judgment it is observed and held as under:
“32. It is nobody’s case that CDRs which are a form of
electronic record are not inherently admissible in evidence. The
objection is that they were marked before the trial court
without a certificate as required by Section 65-B (4). It is clear
from the judgments referred to supra that an objection relating
to the mode or method of proof has to be raised at the time of
marking of the document as an exhibit and not later. The
crucial test, as affirmed by this Court is whether the defect
could have been cured at the stage of marking the document.
Applying this test to the present case, if an objection was taken
to the CDRs being marked without a certificate, the Court
could have given the prosecution an opportunity to rectify the
deficiency. It is also clear from the above judgments that
objections regarding admissibility of documents which are per
se inadmissible can be taken even at the appellate stage.
Admissibility of a document which is inherently inadmissible is
an issue which can be taken up at the appellate stage because
it is a fundamental issue. The mode or method of proof is37
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permitted at the appellate stage. If the objections to the mode
of proof are permitted to be taken at the appellate stage by a
party, the other side does not have an opportunity of rectifying
the deficiencies. The learned Senior Counsel for the State
referred to statements under Section 161 CrPC, 1973 as an
example of documents falling under the said category of
inherently inadmissible evidence. CDRs do not fall in the said
category of documents. We are satisfied that an objection that
CDRs are unreliable due to violation of the procedure
prescribed in Section 65-B(4) cannot be permitted to be raised
at this stage as the objection relates to the mode or method of
proof.”
(emphasis supplied)
28.5) Lastly in para 306, this Court concluded that, “It is thus evident
from the aforesaid judgments and in particular, the judgment of the Apex
Court in the case of Sundar @ Sundarrajan (supra), that an objection that
the CDRs are inadmissible in the absence of a 65-B Certificate, if raised at a
belated stage, will not be allowed in cases where the trial has been
completed before 18th September, 2014. …”.
28.6) There is no difference between a CCTV footage (CCTV video
recording) and its hard copy in the form of prints, as both are computer
output and thus, an electronic record. In the case in hand, when the
photographs (Exhs.23, 24 & 25) were referred to PW.1 to prove the same,
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that mode of proof was not objected by the defence. However, the evidence
of PW.1 was commenced on 26.07.2018 and the evidence of last witness –
PW.11 was completed on 03.01.2024. The judgment was delivered on
09.07.2024. Therefore, as held in Sundar @ Sundarrajan (supra), without
producing the relevant original CCTV footage, without examining the
person who had copied and provided it and in absence of the supporting
Certificate under Section 65-B of the Indian Evidence Act, the said
photographs were inadmissible in evidence. Hence, we are of the view that
the prosecution cannot be allowed to take an advantage of an inadmissible
photographs as well as an illegal mode of proving those photographs
though PW.1 more particularly when the charge was of a serious offence.
Otherwise, this cannot be a fair trial.
28.7) As provided in Section 167 of the Indian Evidence Act, the
improper admission or rejection of evidence shall not be ground of itself for
a new trial or reversal of any decision in any case, if it shall appear to the
Court before which such objection is raised that, independently of the
evidence objected to and admitted, there was sufficient evidence to justify
the decision, or that, if the rejected evidence had been received, it ought
not to have varied the decision. However, the present case is not capable to
provide such a situation because even if we ignore the said photographs, we
do not find the other evidence of a sterling quality, inspiring confidence and
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sufficient to safely rely upon it for reasons recorded in the forgoing
paragraphs and herein under.
29) Be that as it may. Admittedly, during investigation itself PW.3
had identified the Appellant on the basis of the said CCTV footage. As noted
above, said CCTV footage was not available in the trial to show it to PW.3.
However, it is not clear from the testimony of PW.3 as to on what basis he
has claimed that the victim was the same girl who was kidnapped by the
Appellant and the Appellant was the same person who had kidnapped her
from Platform No.10. The photographs (Exhs.23, 24 & 25) were not clear.
Therefore, it was very difficult to identify the Appellant and the victim on
the basis of said photographs. This fact is also admitted by PW.4. The
victim’s parents, PW.1 and PW.2 both had made mistake in identifying her.
Therefore, even if it is accepted that at the relevant time PW.3 was present
at Platform No.10, we find it risky to accept his claim that he had seen the
victim and the Appellant together just before kidnapping.
29.1) In these circumstances, it was necessary to hold a TIP of the
Appellant. Yet, PW.7, PW.8 or any other officer did not think it proper to
hold the TIP. No explanation is given by the prosecution for not holding
such a TIP although in the said Writ Petition this Court had observed that
proper investigation was not done and therefore directed Mr. Singhal
Additional Commissioner of Police to promptly look into. As against this, a
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short cut method was chosen by the said police, i.e., showing the said
photos to the Appellant and relying upon his admission that he was seen in
those photos. Same practice was followed in respect of PW.3 to whom the
CCTV footage was shown to confirm the Appellant’s identity for the purpose
of investigation. This is not permissible in law. For these reason we decline
to hold that the identity of the victim and the Appellant was established by
PW.3 during the investigation and in the trial. Consequently, it is doubtful
that the Appellant had kidnapped the victim from Platform No.10.
30) The prosecution has heavily relied upon the confessions
(Exhs.190 & 187) recorded by PW.11 and PW.10 respectively. Both PW.10
and PW.11 have deposed that they had recorded the confessions as narrated
by the Appellant. They have with confidence claimed that the confessions
were voluntary, true and correct. However, we are not prepared to accept
this claim of the Magistrates for various reasons.
30.1) Firstly; we have noticed that as soon as the parents of the
victim filed the said Writ Petition, within 15 days, the Investigation Officers
searched and arrested the Appellant, but only on the basis of the weak and
inadmissible pieces of evidence in the form of photographs (Exhs.23 to 25)
and the CCTV footage which was never produced in the trial. In the remand
application dated 30.07.2014, seeking police custody of the Appellant and
A-4, Investigation Officer (PW.7) had stated that in the CCTV footage it was
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seen that after the Appellant lifted the victim from Platform No.10, he gave
her custody to A-4. However, this important evidence was withheld from
the trial Court. Then the prosecution claimed before this Court in the Writ
Petition that the Appellant had kidnapped the victim and the girl child
recovered from A-4 was the victim. This was followed by the Appellant’s
confession (Exh.190) which was based on the subject photographs. But, this
confession got falsified by the DNA report. No police was examined who
was led by the Appellant to the hut of A-4 and who had taken the A-4’s
daughter into his custody. From the aforesaid, it appears that somehow
PW.7, PW.8 and their higher police wanted to show that this crime was
detected as expected by this Court in the Writ Petition. Therefore, we find it
not reliable that the Appellant had falsely stated to the police and in the 1 st
confession that he had given the victim’s custody to A-4.
30.2) Secondly, the 1st confession does not bear the signature of the
Appellant. PW.11 has not deposed as to why the Appellant did not sign that
confession. Nor its reason is discernible from the other evidence on record.
It is settled principle of law that where a power is given to do a certain
thing in a certain manner, the thing must be done in that way or not at all.
In Dhanajaya Reddy vs. State of Karnataka , reported in (2001) 4 SCC 9, in
paragraph 20, the Hon’ble Supreme Court observed that, the function of the
Magistrate in recording confession under Section 164 of Cr.P.C. is a very
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solemn act which the Magistrate is obliged to perform by taking due care to
ensure that all the requirements of 164 of Cr.P.C. are fully satisfied. The
Magistrate recording such a statement should not adopt a casual approach.
The Magistrate must record the confession in the manner laid down by the
section. Omission to comply the mandatory provisions, one of such being as
incorporated in sub-section (4) of Section 164 is likely to render the
confessional statement inadmissible. The words “shall be signed by the
person making the confession”, are mandatory in nature and the Magistrate
recording the confession has no option. Mere failure to get the signature of
the person making the confession may not be very material if the making of
such statement is not disputed by the accused but in cases where the
making of the statement itself is in controversy, the omission to get the
signature is fatal.
In this regard, in paragraph 21, reference was made to the
earlier decision in Kehar Singh vs. State (Delhi Admn.), reported in (1988)
3 SCC 609 and it was observed and held that compliance with sub-section
(4) of Section 164 of the Code is mandatory and its non-compliance renders
the confession not admissible or reliable. Such a defect cannot be cured
under Section 463 Cr.P.C. It is a settled position of law that if a part of
confession is excluded under any provision of law, the entire confessional
statement in all its parts, including the admission of minor incriminating
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facts must be excluded unless proof of it is permitted by some other section,
such as Section 27 of the Evidence Act. The decision of a Division Bench of
this Court in Abdul Razak Shaikh vs. State of Maharashtra, reported in
1988 Cri LJ 382 is also relevant. Therein, in paragraph 7 it is held :
“7. It is to be considered whether non-obtaining of signature
of the accused on the confessional statement recorded by the
Magistrate under Section 164 CrPC is an irregularity which can
be cured by invoking the provisions of Section 463 CrPC
reproduced above. The language used in sub-clause (4) of
Section 164 and sub-section (5) of Section 281 CrPC
reproduced above indicates that it is mandatory on the part of
the Magistrate recording confession to obtain signature of the
person whose confession he has recorded. The omission in that
behalf cannot be cured by examining the Magistrate under
Section 463 CrPC. The Magistrate when examined touching the
confession he has recorded, can only say that he has recorded
the confession, but by such examination the omission to obtain
his signature cannot be supplied. It appears to us that the
provision that the Magistrate after recording confession should
obtain the signature of the accused thereon is a salutary
provision and has been specially provided for, for safeguarding
the interest of the accused and, therefore, it is mandatory.”
30.3) Thirdly, as soon as the DNA report surfaced the defect in the
investigation and lead to restoring the A-4’s daughter in the custody of her
mother (A-4’s wife), the Kasarwadavli police arrested the Appellant in their
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C.R.No. 280 of 2013 registered under Sections 454, 457 and 380 of I.P.C.
On 05.09.2014, the Appellant was in police custody in that C.R.No. 280 of
2013. However, there is no evidence as to who had filed the FIR of that
C.R.No. 280 of 2013 and on what basis the police concerned had concluded
that Appellant was involved in that crime. The prosecution has not
explained as to why, at that time, the Appellant was not arrested in C.R.
No.280 of 2013 and the present crime of kidnapping, if indeed he was
wanted in the former crime. It is not evident as to why the Appellant was
interrogated by Mr. Shaikh, Sr. P.I. about this crime instead of C.R.No.280 of
2013 in which Appellant was in police custody on 05.09.2014. In the
backdrop it is safe to infer that taking advantage of the fact that C.R.No.280
of 2013 and present crime were registered in 2013, purposely, Appellant
was shown arrested in that C.R.No. 280 of 2013 to develop the case of
kidnapping as desired by PW.7, PW.8 and their superiors and to obtain his
2nd confession. Otherwise, that move was impossible as it was impermissible
in law to again get the police custody of Appellant in this crime of
kidnapping and lay a foundation for the 2nd confession.
30.4) Fourthly, there is no evidence as to when, why and before
whom the Appellant had expressed his desire to make those confessions
prior to the same were actually recorded. Here, it cannot be ignored that, as
alleged, confession similar to Exh.187 was made by Appellant in his
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Disclosure Statement dated 05.09.2014 and before PW.8 on 06.09.2014.
However, immediately after that disclosure, the Appellant was not produced
before learned Magistrates for recording his confession (Exh.187). Thus,
there was considerable delay in recording this 2 nd confession after the arrest
of the Appellant in said C.R.No.280 of 2013. Significantly, on both the
occasions, only Kasarwadvali police had produced the Appellant before the
Magistrates for recording his alleged confessions. This, according to us,
cannot be a normal circumstance nor a co-incident.
30.5) Considering the evidence as a whole, it appears that both the
confessions were the result of the pressure exerted upon the Appellant by
the police as the police machinery could not stand on its own legs. In view
of the above discussion, both the confession must be ignored and we have
neglected it, accordingly.
31) Now, coming to the testimony of PW.4, PW.5, PW.6 and PW.9.
As noted above, PW.6 has supported the prosecution case on the point of
the Disclosure Statement made by the Appellant leading to showing of the
spot of the incident. The testimonies of PW.4, PW.5 and PW.9 were
consistent that they had last seen the victim together with the Appellant.
Their said testimonies were supported with the testimonies of PW.7 and
PW.8. However in view of our discussion and the reasons in the forgoing
paragraphs, we hold that none of these witnesses are reliable witness,
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because, their evidence was surfaced only after the first round of the
investigation was a complete failure.
32) Additionally, the conjoint reading of the testimonies of these
witnesses and the confessions indicate that when the Appellant had found
the victim, he wanted to feed her. Meanwhile, twice he had contacted the
police at Platform No.10 as he wanted to report about the victim to Thane
Railway Police Station. However, the said police to whom the Appellant had
contacted, did not take him seriously. Thereafter, throughout the day the
victim was in the company of the Appellant. Since, the victim was away
from her parents and in the company of an unknown, therefore it is safe to
presume that she must have repeatedly cried during the transit, if not
constantly. However, the Appellant did no wrong with her. As deposed by
PW.9, in the Math, the Appellant had fed the victim with milk and rice.
These fact indicate that, till then the Appellant had taken good care of the
victim and did not develop any desire to commit the present crime. The
prosecution has not examined Kisan Pardeshi to prove that the Appellant
had purchased Ganja from him and he then consumed it. We are unable to
understand as to how Kisan Pardeshi was selling Ganja so easily, that too
near a sacred place. It is not proved that the Appellant and PW.4 were in jail
at the same time. Therefore, the claim of PW.4 was not reliable that he and
the Appellant had become friends in the jail, PW.4 knew the Appellant and
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that, they had smoked Ganja together. PW.9 has not specifically deposed
that she knew the Appellant prior to the incident. As per the prosecution
case for last 2 ½ years the Appellant was staying on the footpath at Thane
Railway Station. However, PW.9 has not deposed when she had seen the
Appellant last before he had started staying at Thane Station. Therefore, the
identification of the Appellant by PW.5 and PW.9 was based on the
photographs (Exhs.23 to 25). But, as held above, said photographs were
not proved as required in law; nor the same were enough clear to identify
the alleged offender and the victim seen therein. Despite needed, no TIP
was held in respect of PW.3 and PW.5 as the Appellant was unknown to
them. Therefore, the prosecution case does not appear probable that only
because the victim was crying, the Appellant had committed her murder
and caused disappearance of the evidence.
33) The upshot of the above discussion is that, on re-appreciation
of the prosecution evidence this Court finds that, the prosecution has failed
to prove its case beyond a reasonable doubt. In the facts and circumstances
of the case, it appears that, since the matter was taken to this Court in the
Writ Petition, stage was managed by the police pressuring the Appellant to
give the confessions and taking help of PW.4, PW.5, PW.6 and PW.9 to show
that the case was resolved. The chain of circumstances is not established by
the prosecution and in fact it is incomplete. However, the learned Judge of
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the trial Court failed to appreciate the prosecution evidence in its correct
perspective and in accordance with law. Said infirmity led to imposing of
the conviction and sentence on the Appellant for the offence of Sections
363, 302 and 201 of IPC. Therefore, the impugned Judgment and Order
warrants interference by this Court to quash and set aside the same and
acquit the Appellant of said charge.
34) The Appeal succeeds, accordingly.
34.1) Hence, following Order:-
(i) The impugned Judgment and Order dated 9 th July 2024
passed by the learned Special Judge (POCSO), at Thane in
Special (P) Case No.231 of 2016 is hereby quashed and set
aside.
(ii) The Appellant Shantilal Dashrath Gaikwad (Original
Accused No.3) is acquitted of the charge of the offence of
Sections 363, 302 and 201 of the Indian Penal Code, 1860.
(iii) The Appellant is in jail. He shall be forthwith released
form the jail if not required to be detained in any other crime.
(iv) The fine amount, if paid by the Appellant, shall be
returned.
(v) Appeal is accordingly allowed. 35) The Interim Applications filed therein do not survive and are also disposed off. 49 ::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 22:19:52 ::: H. C. SHIV app218.25.doc 36) Before parting with the Judgment, we place on record our
appreciation for the valuable assistance rendered in the case by Mr. Amit
Gharte who was found thoroughly prepared, which helped us reach our
final conclusion in the case.
(SHYAM C. CHANDAK, J.) (A.S. GADKARI, J.) 50 ::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 22:19:52 :::
