Bombay High Court
Prabhakar Kutty Shetty vs The State Of Maharashtra on 9 July, 2026
Author: Manish Pitale
Bench: Manish Pitale
Cri.Appeal 502-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 502 OF 2021
Prabhakar Kutty Shetty ..
(At Central Prison, Kolhapur)
Aged 33 years
Add. Padmashri House, Village Irna,
Tal. Karkala, Dist. Udupi, Karnataka.
Appellant
V/S.
The State of Maharashtra .. Respondent
-------------------
Adv. Gaurav Bhawnani a/w Adv. Hari Rajguru a/w Adv. Mayanka S. a/w
Adv. Abdul Wahab Khan for Appellant.
Ms. Sangeeta E. Phad APP for the Respondent-State.
--------------------
CORAM : MANISH PITALE &
SHREERAM V. SHIRSAT, JJ.
RESERVED ON : 9th APRIL, 2026.
PRONOUNCED ON : 9th JULY, 2026.
JUDGMENT:
(Per Shreeram Shirsat, J.)
1. The present Appeal has been filed challenging the impugned
judgment and order dated 08.12.2020 passed by the Sessions Judge, Gr.
Bombay in Sessions Case no. 179/2014, whereby the Appellant has been
convicted for the offences punishable under Section 302 of the Indian Penal
Code (IPC) and has been sentenced to undergo Imprisonment for Life and
pay a fine of Rs.1,00,000/- and in default to undergo Imprisonment for 1
year and under Section 201 of the IPC to undergo Rigorous Imprisonment
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for 2 years and a fine of Rs. 10,000/- and in default to undergo
Imprisonment for 3 months.
2. Brief facts of the prosecution case are as under:
a) It is the case of the prosecution that on 29 th October, 2013, at
about 22:40 hours, ASI Hanumant Govind Patil (P.W. 1) while on
patrolling duty on Hemu Kalani Marg, found mob of some persons
near Charai Lake, Chembur and upon inquiry, it transpired that
two unidentified persons had arrived by auto rickshaw and
disposed off a black coloured plastic bag in the lake. The bag was
retrieved and found to contain the torso of a woman aged
approximately 25 to 30 years. An Accidental Death Report (ADR)
bearing No. 135/13 was registered under Section 174 of the Code of
Criminal Procedure (Cr.P.C). It is further the case that on 30th
October, 2013, two human legs along with four blood-stained
plastic bags were separately recovered from another location
(Trombay Jetty).
b) It is further the case of the prosecution, that the investigation
led to the tracing of the auto rickshaw driver (P.W. 3), whose
statement was recorded and a description of the accused was
obtained. A missing complaint report lodged at Saki Naka Police
Station by Subhashini Prasad Shetty (P.W. 18), the sister of the
deceased, led to the identification of the body parts as those of
Vishal Parekar 2 of 96
Cri.Appeal 502-2021.docSmt. Kanti Karunakar Shetty (deceased), confirmed through
physical identification.
c) It is further the case that the accused was thereafter arrested
and two mobile phones were seized from his person. Pursuant to
disclosure statements made by the accused, the head of the
deceased was recovered from a nala near Sai Baba Nagar, Shell
Colony and a further disclosure statement on 7th November,
2013, led to the recovery of a knife from a nala on the western side
of Acharya College which was seized under panchanama.
d) It is further the case that the Test Identification Parade was
conducted on 27th December, 2013, before the Naib Tahasildar
(P.W. 12) at Arthur Road Jail, wherein the Appellant was
identified by two witnesses.
e) Upon completion of investigation, a charge-sheet was filed
against the Appellant for offences punishable under Sections 302
and 201 of the Indian Penal Code.
3. To bring home the guilt of the Accused-Appellant, the prosecution in
all examined 25 witnesses (P.W. 1 to P.W. 25):
P.W NAME ROLE
1. Hanumant Patil ASI who lodged FIR on 30.10.2013.
Witness who saw the Appellant disposing the torso
2. Aatish Kale and who also identified the Appellant in the Test
Identification parade.
Mohammed Sail Auto-rickshaw driver who rode the Appellant to
3.
Mohd Iklal Shaikh Charai Talao on the evening of 29.10.2013.
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Son of the deceased who has deposed about the
4. Krutik Shetty previous quarrels between the Appellant and the
deceased.
Witness who claims to have last seen the deceased
5. Nilesh Dhobale
entering the room of the Appellant.
Witness who saw the Appellant disposing the torso
6. Mukesh Kavale and who also identified the Appellant in the Test
Identification Parade.
Panch Witness -Inquest and spot panchnama
dated 29.10.2013.
Personal search panchnama dated 05.11.2013.
7. Goga Ram More
Disclosure panchnama dated 05.11.2013 and
seizure panchnama pertaining to the head of the
deceased and Room No. 224.
Panch Witness to disclosure panchnama and
8. Sunil Rane seizure panchnama dated 07.11.2013 pertaining to
the weapon of murder- knife.
Panch Witness to disclosure panchnama and
search panchnama dated 16.11.2013 pertaining to
9. Balu Panchange
the mobile phones, clothes, chappal and ornaments
of the deceased.
10. Panch Witness to seizure panchnama dated
Sanjay Sarkar 17.11.2013 pertaining to the black coloured
polythene bag from Chembur Gymkhana.
Panch Witness to Spot-cum-inquest panchnama
11. Hussain Shaikh dated 30.10.2013 pertaining to the legs of the
deceased.
Naib Tahsildar who conducted the Test
12. Sanjay Kirve
Identification Parade on 27.12.2013.
Carrier of muddemal, forwarding letter dated
31.10.2013, forwarding letter dated 06.11.2013,
request letter for DNA kit dated 11.11.2013,
13. PN Sheshrao Tiwale
forwarding letter dated 13.11.2013, forwarding
letter dated 14.11.2013, forwarding letter dated
19.11.2013 and forwarding letter dated 05.12.2013.
Landlord who let out Room No. 224 to the
14. Gurunath Kulkarni
Appellant.
Nodal Officer- Airtel, with respect to numbers
15. Yogesh Rajapurkar
98925223098 and 9967131884.
Nodal Officer- Vodafone, with respect to numbers
16. Changdev Godse
9167976154 and 9930783502.
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Autopsy surgeon of the head of the deceased and
17. Dr. Sunil Jawale who conducted the Post-Mortem of the deceased
on 06.11.2013.
18. Subhashini Shetty Sister of the deceased.
Witness who found the legs of the deceased at
19. Ajay Kamble
Trombay Jetty on 30.10.2013.
Autopsy Surgeon of the torso and the legs of the
20. Dr. Harshal Thube
deceased.
Autopsy surgeon of the torso and the legs of the
21. Dr. Ganesh Niturkar
deceased.
Manager of K.V. Caterers where the Appellant was
22. Suresh Hegde
employed.
The Investigation Officer who registered ADR
23. Ravindra Mohite dated 30.10.2013 and made a station diary entry
dated 30.10.2013.
24. Ganesh Adsul The Investigation Officer.
25. ACP Khanwilkar The Investigating Officer.
4. On completion of the prosecution evidence, statement of the
Appellant under Section 313 Cr.P.C. was recorded, wherein the Appellant
denied the case of the prosecution and further stated that he was falsely
implicated in the case. The Appellant was also granted an opportunity to
lead defence evidence, if so desired. The Appellant neither chose to lead any
defence evidence, nor did he examine himself on oath.
5. After hearing the prosecution as well as the defence and upon
appreciation of the evidence on record, the Sessions Judge, vide judgment
and order dated 08.12.2020, was pleased to convict the Accused/Appellant
for the offences punishable under Section 302 of the Indian Penal Code
(IPC) and sentenced him to undergo Imprisonment for Life and pay a fine of
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Rs.1,00,000/- and in default to undergo Imprisonment for 1 year and under
Section 201 of the IPC to undergo Rigorous Imprisonment for 2 years and a
fine of Rs. 10,000/- and in default to undergo Imprisonment for 3 months.
6. Being aggrieved by the judgment and order of conviction in Sessions
Case No. 179/2014, dated 08.12.2020, passed by the Sessions Judge, Gr.
Bombay, the Appellant has approached this Court by way of the present
appeal.
7. Heard Learned Counsel Adv. Gaurav Bhawnani for the Appellant and
Ld. APP Adv. Sangeeta Phad for the Respondent-State.
8. The Learned Counsel for the Appellant submitted that the case rests
entirely on circumstantial evidence and the prosecution has failed to
establish a complete chain of circumstances, pointing unerringly, to the guilt
of the Appellant. On the aspect of motive, it was submitted that the first
alleged motive, namely the monetary dispute, has already been disbelieved
by the Sessions Court. As regards the second alleged motive of refusal of
marriage, it was submitted that the same is wholly speculative and
uncorroborated, inasmuch as P.W. 4, the son of the deceased, did not even
possess the contact number of the Appellant and P.W. 18, sister of the
deceased, was unaware of the existence of any person by the name of
Prabhakar in the life of the deceased. He also submitted that the Appellant
had agreed to marry the deceased and therefore refusal to marry cannot be
considered as a motive. With respect to the theory of last seen together, it
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was submitted that the statement of P.W. 5 was recorded after a delay of
approximately one and a half months and that his explanation of being
preoccupied with his courier business does not satisfactorily account for his
silence during an ongoing murder investigation, rendering his evidence a
clear afterthought. As regards the disposal of the torso, it was submitted that
P.W. 2 and P.W. 6 described the person at Charai Lake as approximately 5
feet in height whereas the Appellant stands at 5 feet 7 inches, a material
discrepancy of seven inches going to the very root of identification. On the
Test Identification Parade, it was submitted that the same stands vitiated on
account of unexplained delay, material contradictions as to whether it was
the panchas or the police who brought the witnesses, a contradiction hit by
Section 162 Cr.P.C and the admission of P.W. 12 that both the Panchas and
the dummies were arranged by the police and jail authorities respectively,
were contrary to the requirement of independent arrangement by the
Tahsildar. On the Call Detail Records (CDRs), the Ld. Counsel submitted
that a static tower location does not establish physical presence, particularly
when the possibility of the phone having been used by another person
cannot be excluded. It was further submitted, that the recoveries under
Section 27 of the Indian Evidence Act require scrutiny as to whether they
constitute genuine discoveries or merely confirm facts already within the
knowledge of the police. It was also submitted that the knife recovered is
wholly insufficient to account for the injuries noted in the post-mortem
report. He further argued that the delay of six days in lodging the missing
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complaint by P.W. 18, was also urged as casting further doubt on the
prosecution’s timeline. It was submitted that each of the aforesaid
circumstances, being individually infirm, cumulatively fall well short of the
standard required to sustain a conviction on circumstantial evidence.
9. In support of their contentions, the Ld. Counsel for the Appellant has
relied upon a plethora of judgments, which are as under:
i. Hanumant v/s State of Madhya Pradesh1
ii. Sharad Birdhichand Sarda v/s State of Maharashtra 2
iii. Shankarlal Gyarasilal Dixit v/s State of Maharashtra 3
iv. Shahid Khan v/s State of Rajasthan 4
v. Ganesh Bhavan Patel v/s State of Maharashtra 5
vi. Mohd. Sajjad v/s State of West Bengal 6
vii. Chunthuram v/s State of Chhattisgarh 7
viii. Vilas Vasantrao Patil v/s State of Maharashtra 8
ix. State of Maharashtra v/s Rajesh9
x. H.P. Administration v/s Om Prakash 10
xi. Gambhir v/s State of Maharashtra11
xii. Kashinath Baban Palkar v/s State of Maharashtra12
xiii. Sattatiya v/s State of Maharashtra 131 (1952) 2 SCC 71.
2 (1984) 4 SCC 116.
3 (1981) 2 SCC 35.
4 (2016) 4 SCC 96.
5 (1978) 4 SCC 371.
6 (2017) 11 SCC 150.
7 (2020) 10 SCC 733.
8 1995 SCC OnLine Bom 399.
9 1997 SCC OnLine Bom 399.
10 (1972) 1 SCC 249.
11 (1982) 2 SCC 351.
12 1995 SCC OnLine Bom 167.
13 (2008) 3 SCC 210.
Vishal Parekar 8 of 96
Cri.Appeal 502-2021.docxiv. Makhan Singh v/s State of Punjab14
xv. State of Haryana v/s Jagbir Singh15
xvi. Murli v/s State of Rajasthan16
xvii. Madaiah v/s State 17
xviii. Rohidas Manik Kasrale v/s State of Maharashtra 18
10. Per Contra, the Learned APP submitted that the prosecution has
successfully established a complete and unbroken chain of circumstances
unerringly pointing to the guilt of the Appellant and that the Sessions Court
has rightly convicted the Appellant-Accused. On the aspect of motive, it was
submitted that P.W. 4, a natural and credible witness, has established that
the deceased was insisting upon marriage which the Appellant was refusing,
and that his evidence stands unimpeached. It was submitted that this
constitutes a sufficient link in the chain of circumstances. The Ld. APP, on
last seen together, submitted that the evidence of P.W. 4 and P.W. 5,
corroborated by the Cell tower location evidence of P.W. 15 and P.W. 16,
conclusively establishes that the deceased was last seen in the company of
the Appellant, immediately prior to her death. It was submitted that the Cell
tower location records, demonstrate continuous interaction between the two
mobile phones during the relevant evening hours and the progressive
movement of the phone of the deceased towards the location of the
Appellant. On the aspect of the disposal of the torso, it was submitted that
14 1998 Supp. SCC 526.
15 (2003) 11 SCC 261.
16 1995 Supp (1) SCC 39.
17 1992 Cri.L.J. 502.
18 2012 Cri.L.J. 917.
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P.W. 2, P.W. 3 and P.W. 6 are consistent, cogent and independent witnesses
who had ample opportunity to observe the Appellant, and that any minor
discrepancy in physical description is of no consequence. It was submitted
that the SIM cards seized from the possession of the Appellant are sufficient
to establish their use by him. The Ld. APP further submitted that the Test
Identification Parade was conducted by P.W. 12 and that any delay therein is
not fatal, particularly when the witnesses had sufficient opportunity to
observe the Appellant. On the issue of disclosure and recovery, it was
submitted that the recovery of the head of the deceased from a location
exclusively within the knowledge of the Appellant, is by itself a powerful,
incriminating circumstance and that the recoveries of the legs of the
deceased and the weapon of the murder (knife), under Section 27 of the
Indian Evidence Act, forms a crucial independent link in the chain. On
medical and forensic evidence, it was submitted that the post-mortem
reports conclusively establish homicidal death by decapitation of head and
that DNA profiling conclusively establishes the identity of the deceased as
Kanti Karunakar Shetty. It was submitted that the totality of the evidence
right from motive, last seen, eye-witness identification, disclosure and
recovery, tower location and forensic evidence forms a complete and
unbroken chain admitting of no other reasonable hypothesis, and that the
conviction deserves to be maintained.
11. The Ld. APP has relied upon the following authorities to buttress her
arguments:
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i. Balu Sudam Khalde & Anr. v/s State of Maharashtra 19
ii. Neelu @ Nilesh Koshti v/s State of Madhya Pradesh 20
iii. Chetan Prakash v/s State (GNCT of Delhi)21
iv. Prabhu Dayal v/s State of Rajasthan22
v. Phula Singh v/s State of Himachal Pradesh23
vi. Munish Mubar v/s State of Haryana24
vii. Pramod Mandal v/s State of Bihar25
viii. State of Maharashtra v/s Suresh26
ix. State of Punjab v/s Karnail Singh27
x. Ganesh Lal v/s State of Maharashtra28
xi. Rohtash Kumar v/s State of Haryana29
xii.Trimukh Maroti Kirkan v/s State of Maharashtra30
xiii. Kishore Bhadke v/s State of Maharashtra31.
12. Before adverting to the individual circumstances, it will be pertinent
to refer to the latest judgment of the Hon’ble Apex Court in the case of
Anand Jakkappa Pujari @ Gaddadar v/s The State of Karnataka decided on
27th April, 2026 in Criminal Appeal No. 1864 of 2024 wherein it is held as
under:
“27. The logical process involved in the admission and
consideration of circumstantial evidence has been
19 AIR OnLine 2023 SC 229.
20 Cri.A.5357 of 2025.
21 AIR OnLine 2022 Del. 1715.
22 Cri. A. 2324 of 2014.
23 AIR 2014 SC 1256.
24 AIR 2013 SC 912.
25 Cri.A. 174 of 2003.
26 AIR OnLine 1999 SC 169.
27 (2003) 11 SCC 271.
28 (1992) 3 SCC 106.
29 (2013) 14 SCC 434.
30 (2006) 10 SCC 681.
31 (2017) 3 SCC 760.
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explained by Wigmore on Evidence in paragraph 32 et
seq. The test for the admissibility of evidence to prove a
circumstantial fact was expressed in the following
words:-
“The evidentiary fact will be considered when,
and only when, the desired conclusion based upon it
is a more probable or natural, or at least a probable or
natural hypothesis, and when the other hypotheses or
explanations of the fact, if any, are either less
probable or natural, or at least not exceedingly more
probable or natural” (paragraph 32, page 421).
“Where even the possibility of a single other
hypothesis remains open, Proof fails, though it
suffices for Admissibility if the desired conclusion
is merely the more probable, or a probable one,
even though other hypotheses, less probable or
equally probable remain open. It is thus apparent
that, by the very nature of this test or process, a
specific course is suggested for the opponent. He
may now properly show that one or another of
these hypotheses, thus left open, is not merely
possible and speculative, but is more probable and
natural as the true explanation of the originally
offered evidentiary fact” (paragraph 34, page
423).”
“28. In the aforesaid context, Kenny states that:-
“An amount of testimony which is not sufficient
to rebut the presumption of innocence entirely
(i.e., to shift the burden of proof so completely
as to compel the prisoner to call legal evidence
of circumstances pointing to his innocence),
may yet suffice to throw upon him the necessity
of offering, by at least an unsworn statement,
some explanation. If he remain silent and leave
this hostile testimony unexplained, his silence
will corroborate it, and so justify his being
convicted” (page 388).
“29. The principle that criminal courts should bear in
mind is, in the words of C.B. Pollock:-
“To make a comparison between convicting
the innocent man and acquitting the guilty is
perfectly unwarranted. There is no
comparison between them. Each of them is a
great misfortune to the country and
discreditable to the administration of justice.
The only rule that can be laid down is that in
a criminal trial you should exert your utmost
vigilance and take care that if the man beVishal Parekar 12 of 96
Cri.Appeal 502-2021.docinnocent he should be acquitted, and if guilty
that he should be convicted.” (quoted in
Donough’s Principles of Circumstantial
Evidence, 1918, 158).
“30. From the above, the following propositions
emerge:-
1. Circumstantial evidence to justify conviction must
be consistent with any reasonable or rational
hypothesis of guilt of the accused.
2. When the inference of guilt from the proved
incriminating facts is a more natural and probable
hypothesis than the other, the onus of offering an
explanation for the incriminating facts lies upon the
accused. If he does not offer any explanation, or
falsely denies the very existence of the
incriminating facts, it is itself a circumstantial fact
against him, even if the court is in a position to
imagine an explanation. The guilt is the legitimate
inference from the incriminating facts and the
added circumstantial fact of failure or refusal to
offer an explanation for the incriminating facts
because it is not reasonable or rational to say that
the accused would fail or refuse to offer an
explanation consistent with his innocence if he
could. It is immaterial in such a case whether the
Court can imagine an explanation or not.
3. If the inference of guilt from the proved
incriminating facts is a less natural or probable
hypothesis than the other, the Court cannot draw it
and the accused must be acquitted whether he
offers any explanation or not.
4. If the inference of guilt from the proved
incriminating facts is as much a natural or probable
hypothesis as any other, the accused may be called
upon to explain and if he fails or refuses, the Court
may treat it as an additional circumstantial fact and
infer his guilt. Or it may take judicial notice of the
other hypothesis even without any explanation by
the accused and acquit him.
“31. In a catena of decisions, it has been consistently
held that when a case rests upon circumstantial
evidence, such evidence must satisfy the tests laid
down by this Court in Sharad Birdhichand Sarda v.
State of Maharashtra, reported in (1984) 4 SCC 116.
The relevant observations read thus:-
“153. A close analysis of this decision would
show that the following conditions must be
fulfilled before a case against an accused canVishal Parekar 13 of 96
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(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
It may be noted here that this Court
indicated that the circumstances concerned
“must or should” and not “may be”
established. There is not only a grammatical
but a legal distinction between “may be
proved” and “must be or should be proved”
as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2
SCC 793 : 1973 SCC (Cri) 1033 :1973 Crl LJ
1783] where the observations were made:
[SCC para 19, p. 807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the
accused must be and not merely may be
guilty before a court can convict and the
mental distance between ‘may be’ and ‘must
be’ is long and divides vague conjectures
from sure conclusions.”
(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that
in all human probability the act must have
been done by the accused.”
(Emphasis supplied)
13. A useful reference can also be made to the judgement of the Hon’ble
Apex Court in the case of Abdul Nassar v/s State of Kerala and Another 32
wherein it has been observed that:-
“14. Indisputably, the prosecution case rests on
32 2025 SCC OnLine SC 111.
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circumstantial evidence. The law with regard to a case
based purely on circumstantial evidence has very well
been crystallized in the judgment of this Court in the case
of Sharad Birdhichand Sarda (supra), wherein this Court
held thus:
“152. Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the nature,
character and essential proof required in a criminal case
which rests on circumstantial evidence alone. The most
fundamental and basic decision of this Court is
Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 :
AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This
case has been uniformly followed and applied by this
Court in a large number of later decisions up to date, for
instance, the cases of Tufail (Alias)Simmi v. State of Uttar
Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and
Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 :
AIR 1972 SC 656]. It may be useful to extract what
Mahajan, J. has laid down in Hanumant case [(1952) 2
SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ
129]:
“It is well to remember that in cases where the
evidence is of a circumstantial nature, 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. Again, the
circumstances should be of a conclusive nature and
tendency, 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 far 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.”
14. We also refer to the judgment of Chetan Prakash v/s State (GNCT of
Delhi)33 which has been relied upon by the Ld. APP, inviting the attention of
this Court to paragraph 18:
“18…..Circumstantial evidence or indirect evidence is an
unrelated chain of events which when combined together
formulates circumstances leading to the commission of
the crime. Conviction based on circumstantial evidence
requires an unbreakable link between the criminal and
the crime devoid of conjecture or suspicion. The chain of
33 AIR OnLine 2022 Del 1715.
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circumstances must rule out reasonable likelihood of the
innocence of the accused. If circumstantial evidence
establishes the chain of events leading to the guilt of the
accused and commission of the crime without other
possibilities, can be sole basis for a conviction. The
circumstances should indicate towards the guilt of the
accused and should be inconsistent with his innocence.
The onus is on the prosecution to prove that the chain of
circumstantial evidences is complete without gaps to the
extent that no other conclusion or inference apart from
the guilt of the accused can be drawn.”
15. 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. Again, 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 far complete as to not 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. It will therefore have to be seen from the evidence that
has come on 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.
16. As stated above, in this case, there is no direct evidence and the entire
case hinges on circumstantial evidence. According to the prosecution and as
also considered by the Trial Court, the following circumstances form a chain
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of evidence excluding every possible hypothesis except the guilt of the
Appellant. These circumstances are as follows:
1. Identity of the Victim
2. Motive
3. Last seen together
4. Witness seeing the accused dumping the torso in Charai Lake
5. Test Identification Parade
6. Disclosure/recovery
7. Reports of post-mortem and Chemical Analyser .
17. The Trial Court, based on the above circumstances, has come to the
conclusion that prosecution has been successful in proving the entire chain
of circumstances beyond reasonable doubt, which point towards the guilt of
the Appellant and which leave no doubt that the Appellant was the
perpetrator of the offence and was also involved in the destruction of the
evidence.
18. It will therefore have to be seen, whether from the facts of the case,
the chain of evidence is so complete as not to leave any reasonable ground
for a conclusion consistent with the innocence of the accused and it is such
as to show that within all human probability the act must have been done by
the accused.
Let us now analyse each of the circumstances in seriatim :-
A] IDENTITY OF THE VICTIM
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19. The first circumstance taken into consideration is about the identity of
the victim/deceased. To establish the identity of the deceased, the
prosecution has examined P.W. 18, the sister of the deceased who has
deposed that her sister was missing since 29.10.2013 and a missing
complaint was filed by her and the son of the deceased, at Sakinaka Police
station on 04.11.2013. She has further deposed that on 06.11.2013, she was
called to the Chembur Police Station to identify the dead body. She has
deposed that the body was in different, separated parts and she identified
the body which was shown to her. She has deposed, that she identified the
body on the basis of her nail paint and the structural arrangement of her
teeth. She has deposed that the nail paint was of pink colour and the
deceased used to come to her house and she had applied pink coloured nail
paint at her house. The said witness was cross-examined by the defence
counsel, however, nothing much could be elicited in the cross-examination
as regards the identity of the deceased and the defence unable to discredit
the witness on the point of identity. Further, the DNA reports at Exhibit 95
Colly., conclusively establish the identity of the deceased. The report proves
that Thimmappa K. Shetty was the biological father and that P.W. 4 was the
biological son of the deceased. This evidence, therefore establishes beyond
reasonable doubt that the dismembered body parts were those of Kanti
Karunakar Shetty (deceased). Therefore, we are of the opinion that the
prosecution has duly proved the first link in the chain of circumstances and
has clearly established the identity of the deceased.
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B] MOTIVE
20. The next circumstance is motive. To establish motive, the prosecution
examined P.W. 4, the son of the deceased. P.W. 4 deposed that he knew the
Appellant and that his mother had introduced him to the Appellant. He
deposed that his mother had told him that she was in a relationship with the
Appellant and that she wanted to marry him. He further deposed that the
Appellant used to visit their house twice a week and used to stay at night
whenever he used to visit their house. He further deposed that after some
days, quarrels started between his mother and the Appellant. He further
deposed that his mother was telling the Appellant to marry her, but he was
refusing and therefore his mother was asking back for her money from the
Appellant. He further deposed that the Appellant promised to marry his
mother by putting his hand on her head and that he had put a mangalsutra
on the person of his mother. He further deposed that the Appellant had
signed the open day meeting attendance card as a guardian and that the said
card also bears the photograph of the Appellant. In the cross-examination,
the witness stated that there were frequent quarrels between his mother and
the Appellant and these quarrels started after one month of his introduction.
This witness categorically admitted that he can tell the issues about the
quarrel between his mother and the Appellant and the issues were that his
mother had given some money to the Appellant which he did not return. He
further admitted that the quarrel was also on account of his mother insisting
the Appellant to marry her.
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21. No doubt there is nothing on record to show that the money was lent
by his mother in his presence or that this witness was taken into confidence
before lending the money. There is also nothing on record to establish
lending of money by way of any documentary evidence but that is not the
only motive. It has categorically come in the evidence that the deceased was
insisting the Appellant to marry which he was refusing. Although, it has also
been admitted in the cross-examination that on 28 th October 2013, the
accused promised to marry his mother, we do not find the testimony of this
witness to be biased in any manner. The evidence of this witness appears to
be natural and cannot be said to be exaggerated or inflated just because the
Appellant has been accused of killing his mother. His deposition was
consistent even in the cross-examination on the point of his mother asking
the Appellant about the money which she had lent him and also about the
Appellant refusing to marry his mother. Just because the witness has
admitted that on 28.10.2013, the Appellant promised to marry his mother,
does not mean that no quarrels had taken place in the past or that all their
disputes ceased to exist with the said promise. The reasons narrated for the
quarrels which ensued, are sufficient to come to the conclusion that the
Appellant was holding some serious grudge which has culminated into the
motive. We do not agree with the finding of the trial court that the motive
with respect to the money is not believable in the absence of any evidence
about how much was the earning of the victim or what amount was lent to
the accused or in whose presence it was lent. We are of the opinion that the
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prosecution has proved the motive on both counts beyond reasonable doubt.
C] LAST SEEN THEORY
22. Before adverting to the circumstance of last seen theory which has
been strongly relied upon by the prosecution, a useful reference can be made
to the judgment of Anand Jakkappa Pujari @ Gaddadar v/s The State of
Karnataka (supra):
“41. 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 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.
“42. In The State of U.P. v/s Satish reported in (2005) 3 SCC
114, this Court 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 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. In this case there is positive
evidence that the deceased and the accused were seen
together by witnesses PWs 3 and 5, in addition to the
evidence of PW 2.”
(Emphasis Supplied)
“43. By now, it is a well settled position of law that the
circumstance of “last seen together” does not by itself and
necessarily lead to the inference that it was the accused who
committed the crime. There must be something more
establishing the connectivity between the accused and the
crime. The Courts should look for some corroboration.
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23. The prosecution in order to establish the circumstance of “last seen
theory” has examined and relied upon P.W. 4 and P.W. 5. P.W. 4 is the son
of the deceased who has deposed that on 29.10.2013, when he had gone to
play at Hiranandani Garden, his mother called him home and told him that
she was going to meet the Appellant. He has further deposed that after
playing, he returned home between 8:30 p.m. to 9 p.m. when his mother
was still not home. He has further deposed that since that day, his mother
never returned.
24. The prosecution has also examined P.W. 5, who is a resident of the
society and resides in Room No. 236. He has deposed that, he knows the
owner of that said Room No. 224 and has deposed that Room No. 224 was
given on rent by P.W. 14- Gurunath Kulkarni. He stated in the deposition
that, “I alongwith my family resides at Subhash Nagar, Chembur. I have a
weekly off on Sunday. On 29/10/2013 I was standing in the gallery in front
of main door. On that day I was observing the persons who are coming
inside and going outside from our building when I was standing, brushing in
gallery. The lady who came with one rickshaw at our building was unknown
to me. The lady alighted from auto rickshaw and directly entered in the
building towards staircase. There are two staircase in our building. In our
building the room consists from room No.217 to 252. There are 12 rooms on
each floor of said building. The said lady went upstair through the said
staircase. The said lady went in room no.224. Room No.217 is situated at the
corner side of the building. Room numbers are allotted serially on each
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floor. I again say that room numbers are allotted not serially on each floor of
the said building on two wings. In first wing of the said building the room
number starts from 217 to 234 serially and in the second wing of said
building the room starts from 235 to 252. I am residing in the second wing
in room no. 236 on ground floor. I was knowing the persons who were
residing in room no 224. I had not seen who had come and gone in room
no.224 prior to the said lady visited the room. After entering the said lady
inside room no.224 I had not seen anybody had come and gone from the
said room. I was knowing that four male persons were residing in room
no.224. I did not inquire as to why the said lady had gone in the said room
no.224. I had seen that the said lady knocked the door and after opening the
door she went inside and then the door was closed. ” He has further deposed
that on 30.10.2013, he had gone to Nashik along with his family on a holiday
for 3 to 4 days. He has further deposed that, after his return to Mumbai, his
mother told him that there has been a murder of one lady in Room No. 224.
He has stated in his deposition, that he gave his statement to the police
approximately after one and half month from the date of incident. He has
further deposed that due to his courier business, he could not approach the
police to give a statement and that there is a delay. He has deposed that he
narrated the said fact to the police which he had seen on 29.10.2013. He has
further deposed that he came to know that the accused residing in Room No.
224 has committed murder of one lady and he identified the accused in the
court. He has further admitted, that after returning from Nashik, he did not
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see any of the occupants of Room No. 224. Further, in the cross-
examination, which was conducted on a subsequent date, he has tried to
give an explanation that the police came on their own to him for enquiry and
recording of the statement. He said that police had come to him after 10 to
15 days from the date of the incident. He has further admitted in the cross-
examination that the noise can be heard from the neighbouring flat and that
he did not hear any quarrel or noise from Room No. 224. He has also
admitted that he did not hear any cutting noise from Room No. 224. He has
admitted in the cross-examination that he cannot tell who was present in
Room No. 224 when the said lady entered inside the room.
25. What can be deduced from his evidence, is that this witness has seen
one lady entering the said room as admitted by him, but the prosecution has
not taken any pains to confront this witness with any photograph of the
deceased in order to confirm whether the lady who entered the Room No.
224 on 29.10.2013, was the deceased. The lady, whom he claims to have
seen, was not a known lady to this witness. This witness is assuming that the
lady, who visited Room No. 224, must have been murdered. Confrontation
of this witness with the photograph of the deceased would have lent
corroboration and strengthened his narration, which in the absence thereof
falls short of a conclusive proof. This witness in his examination-in-chief has
stated that he did not go to the police station after knowing the incident.
But, after one and half to two months of the incident, he went to the police
station and narrated the facts to the police. However, in the cross-
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examination which was on a subsequent date, he has contradicted his own
version and stated that police came on their own to him for enquiry and for
recording his statement. This appears to be a material contradiction and the
improvement is made specifically to overcome the delay in approaching the
police. It has been admitted in the cross-examination that police came to
him after 10 to 15 days of the incident. If this is accepted to be true, then it is
still a mystery as to why the statement came to be recorded after 1 and 1/2 to
2 months. It has come in the evidence of P.W. 7 that the police had also
visited the site on 05.11.2013 and therefore nothing prevented this witness
from disclosing the events to the police at the first available opportunity
which he claims to have witnessed.
26. The Ld. Counsel for the Appellant has relied upon the following
judgments in support of his contention on the issue of delay in recording the
statement by the police. By citing Shahid Khan v/s The State of Rajasthan 34,
the Ld. Counsel has invited the attention of the Court to the following
paragraph:
“20. The statements of PW 25 Mirza Majid Beg and PW
24 Mohamed Shakir were recorded after 3 days of the
occurrence. No explanation is forthcoming as to why they
are not examined for 3 days. It is also not known as to
how the police came to know that these witnesses saw the
occurrence. The delay in recording the statements casts a
serious doubt about their being eye-witnesses to the
occurrence. It may suggest that the investigating officer
was deliberately marking time with a view to decide
about the shape to be given to the case and the eye-
witnesses to be introduced…”
34 (2016) 4 SCC 96.
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27. Additionally, the Ld. Counsel has also placed reliance on Ganesh
Bhavan Patel v/s The State of Maharashtra 35
“15. As noted by the trial court, one unusual feature
which projects its shadow on the evidence of PWs Welji,
Pramila and Kuvarbai and casts a serious doubt about
their being eyewitnesses of the occurrence, is the undue
delay on the part of the investigating officer in recording
their statements. Although these witnesses were or could
be available for examination when the investigating
officer visited the scene of occurrence or soon thereafter,
their statements under Section 161 of the CrPC were
recorded on the following day. Welji (PW 3) was
examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and
Kuvarbai at 1 p.m. Delay of a few hours, simpliciter, in
recording the statements of eyewitnesses may not, be
itself, amount to a serious infirmity in the prosecution
case. But it may assume such a character if there are
concomitant circumstances to suggest that the
investigator was deliberately marking time with a view to
suggest that the decide about the shape to be given to the
case and the eyewitnesses to be introduced. A catena of
circumstances which lend such significance to this delay,
exists in the instant case.”
28. Further, a useful reference can be made to the case of Ganpat Kondiba
Chavan v/s The State of Maharashtra 36. The relevant portion is quoted
herein below. It has been held thus:-
“11. The Apex Court in number of cases has concluded
that the conduct of a witness in not disclosing the
incident to persons whom he must have met after the
incident, is indicative of the fact that he had not seen the
incident. In this connection we would like to refer to the
decision of the Apex Court reported in Shivaji Dayanu
Patil Vs State of Maharashtra, AIR 1989 Supreme Court
1762; wherein the wife who had seen the murder of her
husband did not disclose the incident for two days to
anyone and on this score the Apex court did not believe
her evidence. In paragraph 11 of the said judgment it has
been observed thus:
“A wife, who has seen an assailant giving fatal
35 (1978) 4 SCC 371.
36 1997 (2) Crimes 38.
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blows with a stick to her husband would name the
assailant to all present and to the police at an
earliest opportunity.”
“12. We would also like to emphasise that the Supreme
Court held that the circumstance of inordinate delay in
recording the statement of an eye witness under Section
161 Criminal Procedure Code, 1973 is a pointer to the fact
that he has not seen the incident. It is a trite that the
investigating officer in a murder case immediately after
the FIR has been registered seeks to discover as to who
are the persons who have seen the incident and thereafter
embarks upon the job of interrogating them under
Section 161 Criminal Procedure Code.”
29. We, therefore, find that the conduct of P.W. 5, creates a serious doubt
about the veracity of his deposition and gives an impression that in all
probability, this witness has not seen any such happening, in the manner as
stated by him and therefore also taking into consideration the unjustifiable
delay, the evidence of P.W. 5 cannot be said to be free from doubt.
30. The Ld. APP has further contended that in cases where the
prosecution establishes that the deceased was last seen alive in the company
of the accused, the burden shifts upon the accused to explain how the
incident had occurred. In support of her contention she has relied upon the
judgment of Rohtash Kumar v/s The State of Haryana 37. The relevant
paragraphs are quoted as below:
“Last seen together theory
32. In cases where the accused was last seen with the
deceased victim (last seen together theory) just before
the incident, it becomes the duty of the accused to
explain the circumstances under which the death of the
victim occurred. (Vide Nika Ram v. State of H.P. and
Ganeshlal v. State of Maharashtra.)
33. In Trimukh Maroti Kirkan v. State of Maharashtra
37 (2013) 14 SCC 434.
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this Court held as under: (SCC p. 694, para 22)
“22. Where an accused is alleged to have committed
the murder of his wife and the prosecution succeeds
in leading evidence to show that shortly before the
commission of crime they were seen together or the
offence takes place in the dwelling home where the
husband also normally resided, it has been
consistently held that if the accused does not offer
any explanation how the wife received injuries or
offers an explanation which is found to be false, it is
a strong circumstance which indicates that he is
responsible for commission of the crime.”
(See also Prithipal Singh v. State of Punjab)
34. Thus, the doctrine of “last seen together” shifts the
burden of proof on the accused, requiring him to explain
how the incident had occurred. Failure on the part of the
accused to furnish any explanation in this regard, would
give rise to a very strong presumption against him.”
31. There can be no doubt about this proposition of law. However, the
reliance on this principle is misplaced in the facts of the present case. In the
present case, there is no convincing material that has come on record to
establish that the deceased and the accused were ‘last seen together’ prior to
the murder of the deceased. We are not inclined to accept the evidence of
P.W. 5 on the point of last seen together for what we have discussed above,
as P.W. 5 does not inspire confidence and therefore even if the Appellant has
not discharged the burden, the same cannot be said to be fatal. We are
therefore of the opinion, that the prosecution has not successfully proved
this circumstance of last seen.
32. It will also be pertinent to consider the Call Detail Records (CDRs)
and the Cell Tower Location in order to find out whether it can be
considered as a corroborative material to find out whether the Appellant was
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in the company of the deceased on the evening of 29.10.2013.
33. In order to establish the CDRs and tower location, the prosecution has
examined P.W. 15 and P.W. 16 who have deposed about the phone numbers
of the deceased and the Appellant.
34. P.W. 15 the nodal officer in Bharti Airtel Company, in his deposition
has stated: “I retrieved the data from the server through the confidential
password provided to the Nodal Officer. As per my report, the name of the
subscriber of the mobile number 98925223098 is Karunakar Shetty while
the name of the subscriber of the mobile number 9967131884 is Karunakar
Sanjivan Shetty. Date of activation for No. 98925223098 is 30.09.2006,
while date of activation for No. 9967131884 is 31.07.2007.”
35. P.W. 16, the nodal officer with Vodafone India Ltd., has deposed as
follows: “By using user I.D. and password, I retrieved data from the server of
these mobile numbers of the requisite period. I sent the print out of CDR
copies of customer application form of both the numbers along with
certificate u/s. 65B and tower location I.D. list to DCP Zone 6. The mobile
No. 9167976154 is in the name of Sunita R. Maru, GR 7, Central Railway
hutment, Chapsi Marg, Mazgaon, Mumbai was a prepaid number and date
of activation of that number was 16/02/2011. The mobile No. 9930783502 is
in the name of Karunakar Shetty, B2 Vajrani Colony, Jadari No. 1, Sakinaka,
Mohali village, Mumbai- 72. It was prepaid number and the date of
activation of said number was 14/10/2011.”
36. The following table would enumerate the Mobile Phone numbers used
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by the Appellant and the deceased, as culled out from the evidence on
record:-
Sr Phone Numbers Used by SIM Registered in the
name of
1. 9967131884 Deceased Karunakar Sanjivan
Shetty
2. 98925223098 Deceased Karunkar Shetty
3. 9167976154 Appellant Sunita R. Maru
4. 9930783502 Appellant Karunakar Shetty
37. A detailed analysis of the Call Detail Records (CDRs) and Cell Tower
Location reveals that Mobile Phone No. 9892523098, belonging to the
deceased and Mobile Phone No. 9167976154, belonging to the accused were
found to be present at the exact same Cell Id Address i.e. Jayalaxmi
Building, Near Muktanindya High School, Subhash Nagar, Chembur (E) at
19:26 hours on 29th October, 2013. Relevant Call Detail Records of the
Appellant and the deceased on 29.10.2013 are as follows:
Sr A Number Cell ID Address B Number Cell ID Address Call Time
No.
1. 9167976154 Prakash Lodge, 9892523098 Sector No. 6, Road 19:24:15
(Appellant) Narayan Guru (deceased) No. 4. Chheda
Chembur. Nagar, Chembur.
2. 9892523098 Jayalaxmi 9167976154 Jayalaxmi 19:25:58
(deceased) Building, Near (Appellant) Building, Near
Muktanindya Muktanindya High
High School, School, Subhash
Subhash Nagar, Nagar,
Chembur(E) Chembur(E)
3. 9892523098 Jayalaxmi 9167976154 Jayalaxmi 19:26:47
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Muktanindya Muktanindya High
High School, School, Subhash
Subhash Nagar, Nagar,
Chembur(E) Chembur(E)
4. 9702583499 – 9167976154 Plot No. 102/103, 19:36:03
(unknown) (Appellant) Pestom Sagar
Scheme, Near
Shankaralayam
Temple, PL
Lokhande Marg,
Chembur West
5. 9986029867 – 9930783502 Plot No. 102/103, 19:42:34
(unknown) (Appellant) Pestom Sagar
Scheme, Near
Shankaralayam
Temple, PL
Lokhande Marg,
Chembur West
6. 9820355672 – 9930783502 Jayalaxmi 21.08.37
(unknown) (Appellant) Building, Near
Muktanindya High
School, Subhash
Nagar,
Chembur(E)
7. 9449517976 – 9167976154 Jayalaxmi 22:16:06
(unknown) (Appellant) Building, Near
Muktanindya High
School, Subhash
Nagar,
Chembur(E)
38. While from the above records it is apparent that the Appellant and the
deceased were in proximity at 19:25 and 19:26 hours as both the phones
were recorded at the same tower location i.e. Jayalaxmi CHSL, B Wing, 14/B
Subhash Nagar, Chembur(E) the very same records also disclose that the
Appellant had thereafter moved away, his tower location having shifted to
Chembur West at 19:36 hours and continued to remain there until 19:42
hours. The Appellant having moved away from the alleged scene of offence,
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the possibility of intervention of any third person cannot be excluded, more
specifically, when the CDRs reveal the presence of an unknown person
having the same tower location as that of the deceased i.e. at Jayalaxmi
CHSL, B Wing, 14/B Subhash Nagar, Chembur(E) . This possibility is
reinforced by a further analysis of the CDRs.
39. We find it imperative to mention certain findings that can be derived
from the Call Detail Records (CDRs) of the deceased. At the relevant point of
time in the evening on 29.10.2013, the call records of the deceased can be
traced to an unidentified number, not appearing to be that of the Appellant,
who was present at the same location as the deceased i.e. at Jayalaxmi
Building, Near Muktanindya High School, Subhash Nagar, Chembur(E) .
40. The CDRs reflect a call at 20:12 hours and a text message
subsequently at 20:20 hours from Mobile No. 8108258597 and the location
is found to be of Jayalaxmi Building, Near Muktanindya High School,
Subhash Nagar, Chembur(E). The following table reflects the same:
Sr A Number Cell ID Address B Number Cell ID Address Call Time
No.
1. 8108258597 Jayalaxmi 9967131884 Jayalaxmi 20:12:00
(unidentified) Building, Near (deceased) Building, Near
Muktanindya Muktanindya High
High School, School, Subhash
Subhash Nagar, Nagar,
Chembur(E) Chembur(E)
2. 8108258597 Jayalaxmi 9967131884 – 20:20:12
(unidentified) Building, Near (deceased)
Muktanindya
High School,
Subhash Nagar,
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41. This was a circumstance of considerable importance which the
investigating agency has entirely failed to look into. No attempt was made by
the investigating agency and the prosecution to ascertain the identity of this
unknown person whose mobile activity is reflected at the material time at
the same location as that of the deceased. Further, there was no inquiry
directed towards establishing the reason or relevance of the presence of this
unknown person at the same location. Such failure on the part of the
investigating agency to pursue what appears to be a material and proximate
lead, is in the opinion of this Court, a serious lapse in the investigation. It
was imperative on the part of the prosecution to negate the hypothesis of
third party intervention, but the prosecution has entirely failed to do so,
both in the course of investigation and before the Court.
42. In our considered opinion, the CDRs and Cell Tower Location relied
upon by the prosecution to establish the presence of the Appellant with the
deceased on the evening of 29th October 2013 cannot ascertain that the
Appellant and the deceased were in each other’s company all throughout
that evening. This Court is also conscious of the law that the CDRs can be
used only for a limited purpose of corroboration and therefore, cannot be
taken into consideration independently. In any event, in the facts of the
present case, the CDRs cannot be said to be conclusively establishing the
presence of the Appellant at the spot of the incident, all throughout. More
specifically the lack of evidence about the presence of an unknown person
whose tower location was exactly the same as the deceased, negates the
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theory of the prosecution that the Appellant and the deceased were last seen
together in the exclusive company of each other.
43. A reference can be made to the judgment in the case of Azad v/s State
of GNCT of Delhi and Another 38 wherein it was held that CDRs can only be
used for the limited purpose to corroborate any other evidence. It was
observed thus:
“16. …CDR data may be an important and effective piece
of evidence which may facilitate and assists courts in
ascertaining the presence of different participants in
commission of an offence including the complainant and
proposed accused at one particular place or location
which may be their presence at or near the place of
occurence. However, CDR data can only be taken as
supporting or corroborative piece of evidence and
conviction cannot be made solely on basis of CDR data.
CDRs proved and relied on by the Prosecution only
proved that the appellants Jitender @ Jitu and Azad@
Gaurav, on day of incident, were present near place of
occurence/ incident but it is not proved that they have
actually participated in commission of offence as per
complaint Ex. P.W.1/A.”
44. It is thus, a settled principle of law that CDRs, although an important
and admissible evidence in the Court of law, cannot stand on its own legs.
The role of CDR in establishing the presence of the accused person(s) at or
near the alleged spot of incident at the given time, in the company of the
victim is merely corroborative and needs the footing of an independent,
reliable and substantive piece of evidence.
45. In the present case, the prosecution has relied upon the CDRs and the
Cell Tower Location for corroborating the “last seen theory”. The primary
38 2023 SCC OnLine Del 1769.
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evidence adduced to establish the “last seen theory” of the prosecution was
that of P.W. 5. However, that theory has already been discarded by us for
reasons already stated and elaborated as above. Therefore, in such peculiar
facts and circumstances of this case, we are not inclined to rely solely on the
CDRs to establish the theory of last seen together which even otherwise, is
not conclusively proved.
D] WITNESS SEEING THE ACCUSED DUMPING THE TORSO IN
CHARAI LAKE
46. The next circumstance is the witnesses seeing the Appellant dumping
the torso of the deceased at Charai Lake. To prove this circumstance, the
prosecution has examined P.W. 2, P.W. 6, P.W. 3 and P.W. 12.
47. Aatish Kale (P.W. 2) has deposed that on 29.10.2013 at about 8.00
p.m. when he, along with Mukesh Kavale (P.W. 6) and Rohit were sitting
and chitchatting near the gate of the Charai Talao garden, at about 9.45
p.m., an auto-rickshaw came there and one person got down from the said
auto-rickshaw. He had a polythene bag on his back. P.W. 2 has further
deposed that the said person was trying to open the gate of the Talao but the
said gate was locked. He further deposed that P.W. 6 told the said person
that “gkj fdaok Qqy vlsy rj dy’kkP;k vkr Vkdk”. The said person replied to P.W.
6 that “goups lkeku vkgs rs ik.;kr lkMk;ps vkgs-” He further deposed that they
jumped from the gate and went inside the garden to drop the said polythene
bag in Talao. He further deposed that the said person handed over the
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polythene bag to him and P.W. 6. When they took the said bag, they felt
something different, hot and fishy and thereby they got frightened and put
the said polythene bag on the ground and went out of the gate. They saw the
said person was present there. He further deposed that P.W. 6 asked him,
“lp lp crk bl FkSfy es D;k gS ” to which the said person again replied that
“goups lkeku vkgs”. He has further deposed that when he doubted, he again
asked the person if some part of the body was in the polythene bag. He
further deposed that the said person replied “goups lkeku vkgs”. He thereafter
went into the garden and sat there watching the said person. He further
deposed that the said person came by jumping from the gate and picked up
the bag and took it on his shoulder and went near the talao and then
boarded on a small boat on the bank and threw the said black coloured
polythene bag in the water of the said talao. He has further deposed, that
the said person went outside and sat in the rickshaw. He further deposed,
that P.W. 6 was near the said auto-rickshaw and was talking with the driver.
He has deposed that after the said person sat in the auto-rickshaw, the
rickshaw went away and he noted down the number of the rickshaw. He
further deposed that thereafter they called Rohit and Rakesh outside the
gate of the said talao as they were suspecting about the said bag. He further
deposed that thereafter P.W. 6 and Rohit went near the said talao and
dragged the said black colour polythene bag with the help of bamboo and
took the said polythene bag near the bank. He further deposed that Rohit
tried to open the polythene bag with the help of a broken piece of glass. He
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further deposed that blood was oozing from the polythene bag. He deposed
that at that time, police came there and as per the directions of police, Rohit
opened the said black colour polythene bag where they found that there was
a trunk (body without head, hands and legs). He deposed that the said body
belonged to a female. He deposed that the police sent a message to the
control room. Thereafter, they went away. P.W. 2 further deposed that on
30.10.2013, he along with P.W. 6, Rakesh and Rohit were called in the
police station. Police recorded their statements. They had given a
description of the said rickshaw driver and the person who came by the
auto-rickshaw. He has further deposed that he identified the accused in the
Court who came by the auto-rickshaw and was having a polythene bag and
threw the bag into the water of the talao.
48. In the cross-examination, nothing adverse to the prosecution case
could be elicited from P.W. 2. The cross-examination focused mainly on the
topography of the said area and on the height of the gate etc to establish
whether the witness could have jumped the said iron gate or not or could
have entered in the talao from the gap between two rods. He admitted in the
cross-examination that the names and addresses of all of them were taken
by the police of Chembur police station who arrived there later on. In the
cross-examination, the witness has categorically admitted to seeing the
auto-rickshaw driver and that he had given a description of the auto-
rickshaw driver to the police. He had seen the auto-rickshaw driver from a
distance of 25 ft. The defence tried to pick holes in his evidence by putting
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questions as regards the height of the accused wherein in his statement, he
had mentioned the height of the accused as 5 ft. and while deposing in the
Court he had mentioned the height to be 5.6 ft. The cross examination did
not in any manner dislodge the evidence of this witness or discredit what he
had stated in the examination in chief.
49. P.W. 6 Mukesh Kavale, is another witness the prosecution has relied
upon to prove the circumstance. He deposed that on 29.10.2013 at about
8:30 p.m., he along with P.W. 2, Rakesh, Gautam and Rohit had been to
Charai talao and that there was street light. He deposed that at about 9:40
p.m., one auto-rickshaw came there and one person alighted. He was aged
30-35 years. He had a black coloured caterers bag on his shoulder. He
further deposed that the said person was trying to open the gate of the talao
which was locked. He and P.W. 2 called as “‘kqd ‘kqd” and went near the said
person. He further deposed that he and P.W. 2 asked the said person what
was in the bag. The said person responded that they were hawan articles.
He further deposed that he and P.W. 2 told the said person that if there
were haar ( garland) and flowers, then he could drop the same in a kalash,
to which the said person told that he wanted to drop the hawan articles into
the water. He further deposed that he and P.W. 2 went inside the gate by
climbing on it and took the bag inside from the gap of the gate. He deposed
that at that time, he and P.W. 2 doubted that there might be something
other than hawan articles, as they felt something hot and soft. He further
deposed that, as they doubted him, P.W. 2 asked the said person again and
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he responded that there were hawan articles. He further deposed that P.W.
2 told that there are no hawan articles, but something like a body, to which
the said person told that hawan articles are kept in the plastic bag and he
replied that “tumko chodne ka hai to chodo nato to main jata hu”. He
further deposed that as they both were frightened, they kept the said bag
near the gate. Thereafter, he and P.W. 2 came outside of the gate by
climbing and went to sit in the garden and that they were sitting in the
garden observing the said person. He further deposed that the said person
went inside the gate by climbing on it, lifted the bag, put it on his shoulder
and threw the bag into the water of Charai talao. He deposed that P.W. 2
and Gautam also observed all the things of the said person. He further
deposed that the said person in an auto-rickshaw. He deposed that in the
meantime, P.W. 2 went near the rickshaw and asked the said person who
threw the bag that, ” FksSyh ds vanj D;k Fkk] lp es crkvks “. The said person
responded with “hawan ka saman” and the said person told the driver of
auto-rickshaw ” tYnh pyks] nqljs txg tkus dk gS”. He further deposed that when
the rickshaw started and proceeded, at that time, he told P.W. 2 and
Gautam to note down the rickshaw number.
50. P.W. 6 further deposed that thereafter, he and Rohit went inside by
climbing the gate and took the ‘tarapa’ in the middle of talao and with the
help of bamboo, they released the knot of the rope. He deposed that they
dragged the said plastic bag to the stair and kept it on the ground. He
deposed that he and Rohit tore the plastic bag with the help of a piece of
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glass. At that time, they saw blood was oozing from the bag. They were
frightened, therefore he and Rohit came outside of the gate by climbing on
it. He deposed that, at that time, one police van stopped there by seeing
them. He deposed that, he along with P.W. 2 and Rohit narrated the
incident to the police as they doubted about the plastic bag. He further
deposed that they noticed one trunk which was without the head, hands and
legs of a female in the plastic bag. He further deposed that they came
outside and were standing at that time, a police officer came and took their
names and addresses. He deposed that on 30.10.2013, they were called at
Chembur police station and the police recorded their statements. He further
deposed that he had given the description of the said auto-rickshaw driver
and the person who had come there from the auto-rickshaw and the clothes
which the said person was wearing.
51. In the cross-examination of P.W. 6, the defence could not shake the
credibility of this witness in any manner. On the contrary, in the cross-
examination, several material aspects have been brought on record which
fortify what he had deposed in his examination in chief and even the
presence of the accused/appellant gets established. Surprisingly, cross-
examination of this witness revolves on the topography, the area and the
layout of the garden. There is nothing to disbelieve and discredit the said
witness. On perusal of the cross-examination of this witness, the identity of
the accused at the spot is once again very much established.
52. P.W. 3 Mohd. Sail Mohd Iklal Shaikh is the auto-rickshaw driver and
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he has deposed that on 29th October, 2013 at about 9:15-9:30 p.m., he came
near Acharya College. He further deposed that he got one passenger who
wanted to go to the talao to drop articles of pooja. He deposed that the said
passenger was carrying a plastic bag. The passenger told him to take him to
the nearest talao. He further deposed that he took the passenger near
Charai talao, Chembur where there is a garden adjacent to the talao. He
further deposed that he stopped the auto-rickshaw near the talao. He
deposed that at that time, two boys came and asked the passenger what was
inside the plastic bag, to which the passenger told them that the plastic bag
contained pooja articles. He further deposed that the gate of the talao was
closed and that the two boys went inside by jumping the gate. He deposed
that, the passenger handed over the bag to those boys and those boys put
the said bag on the ground upon feeling hot. Thereafter, the passenger went
inside and took the said bag from the gate of the said talao. Thereafter, the
passenger threw the said bag into the water of the talao. He further deposed
that the passenger came out of the gate by jumping. At that time, two boys
stopped his auto-rickshaw and asked the passenger about the contents of
the plastic bag to which the passenger replied that the plastic bag contains
articles of pooja. He further deposed that the passenger told him to take
him to Subhash Nagar and he dropped the passenger there. He deposed
that after giving him a fare of Rs. 50/-, the passenger entered into the
premises of one society at Subhash Nagar. He deposed that he dropped the
passenger at 10:00 p.m. P.W. 3 gave the description and features of the
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said passenger to the police. He also identified the accused who was present
in the Court as the passenger who was sitting in his auto-rickshaw with one
bag, which he had thrown in the Charai talao at Chembur. In the cross-
examination, nothing much could be elicited to discredit the testimony of
this witness and the thrust of the cross-examination was once again mainly
on the description of the talao and the garden.
53. On a close scrutiny of the testimonies of P.W. 2, P.W. 6 and P.W. 3, we
find no reason to disbelieve them. Their presence at Charai Talao on the
night of 29.10.2013 appears to be natural and there is no material to suggest
any motive on their behalf for falsely implicating the Appellant-Accused.
Further, the incident was not a fleeting encounter. Appellant was carrying a
black coloured plastic bag and upon being questioned, he answered that it
contained havan articles. The conduct of the Appellant coupled with his
insistence on throwing the bag in the talao despite the suspicion expressed
by P.W. 2 and P.W. 6, naturally drew their attention towards him.
54. What lends considerable strength to the testimony of P.W. 2 and P.W.
6 is the fact that the suspicion entertained by the witnesses was immediately
confirmed when the bag was retrieved and found to contain a torso of a
female body. An encounter of such nature was bound to leave a lasting
impression in the minds of the witnesses. Additionally, the depositions of
P.W. 2 and P.W. 6 corroborate each other in all material aspects. Even
though there are minor discrepancies, the same do not, in any manner
cause a dent to the case of the prosecution. On the contrary, it suggests that
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the witnesses are natural witnesses.
55. The Ld. APP, whilst dealing with the rival contention regarding the
discrepancies in the depositions of P.W. 2, P.W. 3 and P.W. 6 has placed
before us the judgment of the Hon’ble Apex Court in The State of Punjab v/s
Karnail Singh39. This judgment, in the following paragraph lays down thus:
“10. To the same effect is the decision in State of Punjab
v. Jagir Singh and Lehna v. State of Haryana. As
observed by this Court in State of Rajasthan v. Kalki
normal discrepancies in evidence are those which are due
to normal errors of observation, normal errors of
memory due to lapse of time, due to mental disposition
such as shock and horror at the time of occurrence and
those are always there, however honest and truthful a
witness may be……”
56. Therefore, we are of the opinion that P.W. 2, P.W. 3 and P.W. 6 are
natural and credible witnesses, and even if there are minor discrepancies,
they can be classified to be within the ambit of human error. However, while
stating so, we also clarify that none of these discrepancies are material in
nature. Hence, these depositions can be considered to be true and without
any material defects.
57. The depositions of P.W. 2 and P.W. 6 further stand corroborated by
P.W. 3, who dropped the Appellant to Charai talao. Further with respect to
identification, corroboration is lent by the testimony of P.W. 12, who
conducted the Test Identification Parade. The cumulative effect of the
evidence discussed above conclusively and singularly leads to the only
inference that it was the Appellant who was carrying the black coloured
39 (2003) 11 SCC 271.
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polythene bag containing the torso of the deceased and dropped the same in
the Charai talao on the evening of 29.10.2013. Although, it was tried to be
argued that the statements of P.W. 2 and P.W. 6 came to be recorded
belatedly i.e. on 30.10.2013 and not on the same day, we are not inclined to
accept such an untenable argument as recording of the statement on the
next day of the incident in the peculiar facts of the case cannot be said to be
recorded belatedly. Hence, we are of the opinion that the act of the
Appellant of disposing off the torso as witnessed by P.W. 2, P.W. 3 and P.W.
6, which amounts to destruction of evidence, is established beyond
reasonable doubt.
E] TEST IDENTIFICATION PARADE
58. The next circumstance which the prosecution has relied upon is the
Test Identification Parade (TIP) to establish the identity of the person who
caused the destruction of evidence. To establish this circumstance, the
prosecution has examined P.W. 2, P.W. 6 and also P.W. 12, who conducted
the TIP.
59. The identity of the Appellant gets further corroborated as P.W. 2 and
P.W. 6 have identified the Appellant in the Test Identification Parade
conducted on 27.12.2013. P.W. 2 has stated in his deposition that:
“5. On 27/12/2013 I was called in Arthur Road jail for TIP. I
identified the present accused in TIP. There was six dummy
persons alongwith accused were standing in the row. The officer
who is conducting TIP asked me to identify the accused. I
identified the accused who was standing in between the dummy
person Sr No.1 and 2. I identified the said accused in TIP, who
came by auto rickshaw was having black colour polythene bagVishal Parekar 44 of 96
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The witness pointed out the accused who is present before the
court is the same whom he identified in TIP. The accused stated
his name Prabhakar Kutty Shetty. The officer recorded my
statement after TIP…..
……….
9. …..I had seen the accused for twice before I came to depose
before the court. I had seen the accused at the second time on
27/12/2013. On 27/12/2013 there was a difference in the
features of accused I.e. beards were increased.
………
11. ….It is not true that I am deposing false that I identified
accused in TI Parade. It is not true that whatever I deposed
before the court, is at the instance of police.”
It was also stated by P.W. 6 about the identification of the accused in
the TIP. The relevant paragraphs are reproduced as hereunder:
“2. On 27/12/2013 I was called at Arthur road jail for test
identification parade. On 27/12/2013 I myself, Atish, two panch
witnesses and Police officer Mohite went to Arthur road jail. We
reached at Arthur road jail at about 11.00 a.m. In parade room
there were six dummy persons standing in one row and one
saheb (but he was not police officer) was sitting and two panch
witnesses were present. Saheb told me to identify the accused. I
identified accused he was standing at serial no.3 by touching
him. I stated to saheb that the accused whom I identified is the
same person who come with auto rickshaw with one plastic bag
and dropped the said plastic bag into water of Charai Talav.
After identification of the accused I came out of the parade room
at about 2.15 p.m. I can identify the accused and today he is
present before the court who came with auto rickshaw with one
plastic bag and dropped the said plastic bag into water of Charai
Talav, in which one female body (trunk) without any head, leg
and hand found. The witness identified the accused by pointing
him in the court. Police recorded my further statement on
27/12/2013 after identification of the accused.”
Nothing much has been elicited in the cross-examination of P.W. 6 on
the aspect of Identification of the accused in the TIP.
60. In the deposition of P.W. 12, it is clearly established that P.W. 2 and
P.W. 6 identified the accused in the Test Identification Parade. The relevant
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paragraphs read as follows:
“3……I asked accused that he can change his position in
the row of dummy accused. So, accused stand between
dummy accused no. 2 and 3. then I called panch and one
witness Mukesh Gautam Khawale in that hall. I asked
Mukesh Gautam Khawale that the accused is standing in
the row of dummy accused person, he should identify the
accused by touching his person. Witness observed and
identified the accused by touching his person. At that
time, accused was standing between 2nd and 3rd dummy
accused in that row. Accordingly, the TI parade by 1 st
witness is completed.
4….Again I asked accused that he is permitted to change
his clothes, accordingly accused changed his clothes. I
told accused that he can stand in the row of dummy
accused, at the place of his choice. Then accused did
stand between 1st and 2nd dummy accused of that row.
Then I call panch and another witness Atish Kale, in that
hall. I informed witness Atish Kale that the accused is
standing in the row of dummy accused persons, he
should identify the accused by touching his person.
Witness observed and identified the accused by touching
his person. At that time, accused was standing between
1st and 2nd dummy accused in that row. Accordingly, the
TI parade by 2nd witness is completed.”
61. Therefore upon perusal of evidence of P.W. 12, it is established that
P.W. 2 and P.W. 6 identified the accused in the Test Identification Parade,
which lends corroboration to the establishing of the identity of the person
seen disposing the torso of the deceased to be the Appellant-Accused. Even
though P.W. 3 has not identified the Appellant in the TIP, he identified the
Appellant in the Court.
62. Although the Ld. Counsel for the Appellant has tried to point out
several deficiencies in the TIP, it will be necessary to analyse the deposition
of P.W. 12 to ascertain whether the TIP was conducted adhering to the
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guidelines laid down in the Criminal Manual or whether there are serious
discrepancies which vitiate the TIP.
63. The first line of attack by the Ld. Counsel for the Appellant was with
respect to the delay in conducting the TIP. The Ld. Counsel for the Appellant
vehemently argued that the delay in conducting the Test Identification
Parade vitiates the identification evidence. However, this contention
deserves to be rejected in our view. It is a settled proposition of law, as is
clearly established by the Hon’ble Apex Court in Pramod Mandal v/s The
State of Bihar40. The same was reiterated in the subsequent judgment of the
Hon’ble Apex Court in Raja v/s State by Inspector of Police 41. The relevant
paragraphs of the case of Raja (supra) are reproduced hereinbelow:
“16. Again, there is no hard and fast rule about the period
within which the TIP must be held from the arrest of the
accused. In certain cases, this Court considered delay of
10 days to be fatal while in other cases even delay of 40
days or more was not considered to be fatal at all. For
instance, in Pramod Mandal v. State of Bihari the
accused was arrested on 17.01.1989 and was put up for
Test Identification on 18.02.1989, that is to say there was
a delay of a month for holding the TIP. Additionally,
there was only one identifying witness against the said
accused. After dealing with the decisions of this Court in
Wakil Singh v. State of Bihar, Subhash v. State of Uttar
Pradesh and Soni v. State of Uttar Pradesh in which
benefit was conferred upon the accused because of delay
in holding the TIP, this Court considered the line of cases
taking a contrary view as under:
“18. Learned counsel for the State submitted that in
the instant case there was no inordinate delay in holding
the test identification parade so as to create a doubt on
the genuineness of the test identification parade. In any
event he submitted that even if it is assumed that there
was some delay in holding the test identification parade,
it was the duty of the accused to question the
40 (2004) 13 SCC 150.
41 (2020) 15 SCC 562.
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investigating officer and the Magistrate if any advantage
was sought to be taken on account of the delay in holding
the test identification parade. Reliance was placed on the
judgment of this Court in Bharat Singh v. State of U.P. In
the aforesaid judgment this Court observed thus: (SCC p.
898, para 6).
“6. In Sk. Hasib v. State of Bihar it was observed by the
Court that identification parades belong to the
investigation stage and therefore it is desirable to hold
them at the earliest opportunity. An early opportunity to
identify tends to minimise the chances of the memory of
the identifying witnesses fading away due to long lapse of
time. Relying on this decision, counsel for the appellant
contends that no support can be derived from what
transpired at the parade as it was held long after the
arrest of the appellant. Now it is true that in the instant
case there was a delay of about three months in holding
the identification parade but here again, no questions
were asked of the investigating officer as to why and how
the delay occurred. It is true that the burden of
establishing the guilt is on the prosecution but that
theory cannot be carried so far as to hold that the
prosecution must lead evidence to rebut all possible
defences. If the contention was that the identification
parade was held in an irregular manner or that there was
an undue delay in holding it, the Magistrate who held the
parade and the police officer who conducted the
investigation should have been cross-examined in that
behalf.”
In the instant case, we find that the defence has not
imputed any motive to the prosecution for the delay in
holding the test identification parade, nor has the
defence alleged that there was any irregularity in the
holding of the test identification parade. The evidence of
the Magistrates conducting the test identification parade
as well as the investigating officer has gone unchallenged.
Learned counsel for the State is, therefore, justified in
contending that in the facts and circumstances of this
case the holding of the test identification parade, about
one month after the occurrence, is not fatal to the case of
the prosecution as there is nothing to suggest that there
was any motive for the prosecution to delay the holding
of the test identification parade or that any irregularity
was committed in holding the test identification
parade.”… …..
“20. It is neither possible nor prudent to lay down any
invariable rule as to the period within which a test
identification parade must be held, or the number of
witnesses who must correctly identify the accused, toVishal Parekar 48 of 96
Cri.Appeal 502-2021.docsustain his conviction. These matters must be left to the
courts of fact to decide in the facts and circumstances of
each case. If a rule is laid down prescribing a period
within which the test identification parade must be held,
it would only benefit the professional criminals in whose
cases the arrests are delayed as the police have no clear
clue about their identity, they being persons unknown to
the victims. They, therefore, have only to avoid their
arrest for the prescribed period to avoid conviction.
Similarly, there may be offences which by their very
nature may be witnessed by a single witness, such as
rape. The offender may be unknown to the victim and the
case depends solely on the identification by the victim,
who is otherwise found to be truthful and reliable. What
justification can be pleaded to contend that such cases
must necessarily result in acquittal because of there
being only one identifying witness? Prudence therefore
demands that these matters must be left to the wisdom of
the courts of fact which must consider all aspects of the
matter in the light of the evidence on record before
pronouncing upon the acceptability or rejection of such
identification.”
64. It is therefore abundantly clear that it is neither possible nor prudent
to lay down any invariable rule as to the period within which a TIP must be
held and there is no hard and fast rule about such delay being fatal to the
prosecution.
65. The Ld. Counsel for the Appellant also vehemently argued that the
TIP was not conducted as per the required procedure mentioned in the
Criminal Manual. It was argued that P.W. 6 Mukesh Kawale admitted
during the cross-examination that he was taken into the jail as well as into
the parade room by a police officer and therefore the submission of the Ld.
Counsel for the Appellant was that the presence of the police officer at the
time of TIP entirely vitiated the same. To buttress his submission, the Ld.
Counsel has placed reliance on the judgment of the Hon’ble Apex Court in
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the case of Chunthuram v/s The State of Chhattisgarh 42 and invited the
attention of this Court specifically to paragraph 11, wherein it has been
observed that:
“11. The infirmities in the conduct of the test
identification parade would next bear scrutiny. The major
flaw in the exercise here was the presence of the police
during the exercise. When the identifications are held in
police presence, the resultant communications
tantamount to statements made by the identifiers to a
police officer in course of investigation and they fall
within the ban of statements made by the identifiers to a
police officer Section 162 of the Code.”
66. There can be no doubt this proposition of law, however, we find that
the above case law can be distinguished on facts from the present case. P.W.
6 Mukesh Kawale stated that the police person brought him to the parade
room and it was further deposed that during the actual conduct of the
identification exercise only the six dummy persons, the Tahsildar and the
Panch witnesses were present. The said deposition of P.W. 6 therefore, by
itself rules out the presence of any police officer during the identification
parade. Hence, the foundational premise upon which the ratio of
Chunthuram(supra) operates is neither established nor borne out from the
evidence on record.
67. The Ld. Counsel for the Appellant has also contended that there has
been an inordinate delay in conducting the TIP, which creates doubt about
the validity of the TIP as there is a possibility that the witnesses might not
remember the actual person due to passage of time. However, if the
42 (2020) 10 SCC 733.
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documents on record are perused, the prosecution cannot be blamed for
holding TIP after two months. The investigating agency on 19.11.2013 had
written a letter to the Tahsildar for conducting the TI Parade, however the
date assigned by the Tahsildar was 27.12.2013. In any event, it is a settled
law that TIP is only a rule of prudence and serves as a corroborative piece of
evidence under Section 9 of the Indian Evidence Act, while the substantive
evidence is the identification made before the Court. In this regard, the
following judgments can be appropriately relied upon. In the case of Anil Pal
son of Ram Pyare Lal v/s The State of Jharkhand, Criminal Appeal (DB No.
1278 of 2024), it was held as under:
“118. However, it is equally settled that TIP is a rule of
prudence which is required to be followed in cases where
the accused is not known to the witness or the
complainant. The evidence of a TIP is admissible under
Section 9 of the Evidence Act. However, it is not a
substantive piece of evidence. Instead, it is used to
corroborate the evidence given by witnesses before a
court of law at the time of trial. Reference in this regard
may be taken from judgment as rendered by the Hon’ble
Apex Court in State of H.P. v. Lekh Raj (2000) 1 SCC
247, and C. Muniappan v. State of T.N. (2010) 9 SCC
567. 119.”
68. In the present case, P.W. 2 and P.W. 6 have identified the Appellant in
the TIP as well as in the court during the trial. Further, the argument that
the witnesses could not have remembered the Appellant after two months
deserves to be rejected in the peculiar facts of the case. P.W. 2 and P.W. 6
witnessed the Appellant while disposing off a bag claimed by the Appellant
to contain havan articles, but upon immediately retrieving the bag from the
same place where it was disposed by the Appellant, they found the same bag
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to actually contain a human body with no hands, legs and head (torso). Such
an incident was a rather unusual, shocking and an unprecedented
occurrence which is likely to leave a lasting impression on their minds and
therefore identifying the person in the TI Parade even after a gap of two
months cannot be said to be unusual.
69. The Ld. Counsel for the Appellant has relied upon the judgment of
Mohd. Sajjad v/s The State of West Bengal 43 and has referred to paragraph
16 and 19 where it has been held as under :
“16. In the case in hand, apart from the fact that there was
delay in holding the test, identification parade, one striking
feature is that none of the prosecution witnesses concerned
had given any identification marks or disclosed special
features or attributes of any of those four persons in general
and the accused in particular. Further, no incident or crime
had actually taken place in the presence of those prosecution
witnesses nor had any special circumstances occurred which
would invite their attention so as to register the features or
special attributes of the accused concerned. Their chance
meeting, as alleged, was in the night and was only for some
fleeting moments.
…… …
19. In the instant case none of the witnesses had disclosed any
features for identification which would lend some
corroboration. The identification parade itself was held 25
days after the arrest. Their chance meeting was also in the
night without there being any special occasion for them to
notice the features of any of the accused which would then
register in their minds so as to enable them to identify them
on a future date. The chance meeting was also for few
minutes. In the circumstances, in our considered view such
identification simpliciter cannot form the basis or be taken as
the fulcrum for the entire case of prosecution. The suspicion
expressed by PW 8 Saraswati Singh was also not enough to
record the finding of guilt against the appellant. We therefore
grant benefit of doubt to the appellant and hold that the
prosecution has failed to establish its case against the
appellant.”
43 (2017) 11 SCC 150.
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70. The Appellant has placed reliance upon the aforesaid judgment to
contend that the identification of the Appellant by P.W. 2 and P.W. 6 cannot
be relied upon. This Court finds the aforementioned judgment
distinguishable on facts. The ratio of the judgment, as expressly stated
herein above rests on specific findings namely, that none of the witnesses
had given any identification marks or disclosed special features of the
accused; that no incident had occurred in their presence which would invite
their attention so as to register the features of the accused in their minds;
that the encounter was a chance meeting in the night and was only for a few
fleeting moments; and that there were no special circumstances which
would cause the appearance of the accused to be imprinted in the memory of
the witnesses. We are of the opinion, that none of these features are present
in the case at hand. The encounter of P.W. 2 and P.W. 6 with the Appellant
cannot be said to have been fleeting or ephemeral in any manner. They had
a sustained, direct and active interaction with the Appellant at Charai Talao.
They questioned him about the contents of the bag, observed him at close
quarters for a considerable period, and harbored suspicion about his
conduct throughout. Their encounter with the Appellant was therefore not a
chance meeting for a few moments in the night but an impressionable
encounter of sufficient duration which was immediately followed by the
circumstance of an extraordinary and disturbing nature i.e. the discovery of
a female torso in the very bag he had just disposed off. This, in our opinion,
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precisely fixes the features of the Appellant enduringly in the memory of the
witnesses.
71. In order to lay emphasis on the above, this Court places reliance in the
case of Raja(supra)
“18. It is, thus, clear that if the material on record
sufficiently indicates that reasons for “gaining an
enduring impression of the identity on the mind and
memory of the witnesses” are available on record, the
matter stands in a completely different perspective.”
72. The Ld. Counsel for the Appellant further attempted to cast serious
aspersions on the TIP on the ground that the panchas for the TIP were
selected by the police and not by the Tahsildar who also failed to determine
their independence. A perusal of Clause 16 (3)(iii) of the Criminal Manual
issued by The High Court of Judicature at Bombay makes it abundantly
clear that the arrangement of Panch witnesses by the Police is not only
permissible but is in fact the established procedure. The said clause
expressly provides that “the police themselves will have normally arranged
to call up such persons”, and the role of the Executive Magistrate is
thereafter to question them and satisfy himself that they are independent
and fairly intelligent persons. The Ld. Counsel for the Appellant has failed to
establish that there was a failure on the part of P.W. 12- the Tahsildar, in
performing his due diligence during the TIP. P.W. 12 in his deposition states
as follows:
“2. Accordingly by giving letter on 18.12.2013, I have
informed Sr. PI Chembur police station that I am going
to conduct identification parade on 27.12.2013. OnVishal Parekar 54 of 96
Cri.Appeal 502-2021.doc27.12.2013, at about 11.00 am, I reached to Arthur road
jail. I saw that, three witnesses and two panchas were
there along with police in front of door of Arthur road
jail. First of all, I got introduced all the witnesses and
panchas. I had asked them that whether they were
shown, photograph of accused, of whose identification
parade is to be conducted. They replied in negative. Then
myself, three witnesses, two panchas by effecting entry in
register, entered in jail premises, at about 11.20 am. I
met with jailer and asked him that he should make
certain arrangement for holding identification parade of
accused. I caused witnesses to sit in the cabin of jailer.
Myself and two panchas went to the hall of TI Parade.
Jail police brought the accused Prabhakar Shetty in that
hall. In presence of panchas I asked his named to which
accused stated his name as Prabhakar Shetty. I asked jail
police that they should call other six dummy accused.
Accordingly, six dummy accused, of age of Prabhakar
Shetty were brought there. Then, dummy accused were
asked to stand in a row. I asked accused Prabhakar
Shetty to stand in that row at 7th place. I get it confirmed
that nobody from outside should see the accused and
dummy accused.”
“3. I asked one of the panch Sharad Kishor Jadhav, that
he should call one of the witnesses, who were sitting in
cabin of jailer. So also I told him that he should not enter
in that hall, alongwith witness unless he called.
Thereafter, I asked accused Prabhakar Shetty whether he
wants to change his clothes, to which he replied yes.
Accordingly, he changed his clothes, in that hall itself. I
asked accused that he can change his position in the row
of dummy accused. So, accused stand between dummy
accused No. 2 and 3. then I called panch and one witness
Mukesh Gautam Khawale in that hall. I asked Mukesh
Gautam Khawale that the accused is standing in the row
of dummy accused person , he should identify the
accused by touching his person. Witness observed and
identified the accused by touching his person. At that
time, accused was standing between 2nd and 3rd dummy
accused in that row. Accordingly, The TI parade by 1st
witness is completed.
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73. Therefore, taking into consideration the above deposition we are of
the view that no prejudice was caused to the Appellant and there was no
infraction of the provisions of law whilst holding TIP.
74. It was also argued by the Ld. Counsel for the Appellant that the
conduct of the Tahsildar with regard to the non- selection of dummies by
him for the TIP was in contravention of the procedure laid down by the
Criminal Manual. A reference to Clause 16(3)(v) clarifies the position to the
effect that the arrangement for the persons to be put in the parade is
normally made by the police themselves and the same finds reinforcement
in the case of Suresh Vyankati Chavan V. State of Maharashtra44, as can be
seen below:
“69. Upon perusal of the clause (iv), while conducting the
parade, the parade should be arranged in a room or a
place which is such that the identifying witnesses, as well
as the persons connected with the Police, should not be
able to look into it. In clause (v), it is stated that, if there
is only one accused person to be identified, at-least half a
dozen dummy persons should be placed in the parade. If
two accused persons are to be identified, then there
should be about 10 or 12 persons in the parade. Not more
than two accused should be placed in any single
identification parade. Normally, the police themselves
will have called up the persons to be put in the parade,
but the Executive Magistrate/Honourary Magistrate
should see that they are persons of more or less same
physical appearance, and approximately of the same age,
as the person to be identified. It is desirable that dummy
persons to be mixed should be different for such parade. ”
75. The Ld. Counsel for the Appellant has relied upon the judgments of
this Hon’ble Court in the cases of Vilas Vasantrao Patil v/s The State of
44 (2018) SCC OnLine Bom 3390
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Maharashtra45 and The State of Maharashtra v/s Rajesh 46 to contend that a
TIP conducted in violation of the procedure prescribed under the Criminal
Manual vitiates the same completely. In support thereof, various
submissions were also advanced during the course of oral arguments
regarding the appointment of dummies and role of panch witnesses, those
contentions have already been dealt with. In addition, a reading of the cross-
examination of P.W. 12 does not disclose any material irregularity so as to
cast a doubt upon the validity of the TIP.
76. The Ld. APP has contradicted the arguments of the Appellant, by
rightly relying upon a judgment of the Hon’ble Apex Court in The State of
Maharashtra v/s Suresh47, wherein it was held:
“22. If potholes were to be ferreted out from the
proceedings of the magistrates holding such parades
possibly no Test Identification Parade can escape from
one or two lapses. If a scrutiny is made from that angle
alone and the result of the parade is treated as vitiated
every Test Identification Parade would become unusable.
We remind ourselves that identification parades are not
primarily meant for the Court. They are meant for
investigation purposes. The object of conducting test
identification parade is two fold. First is to enable the
witnesses to satisfy themselves that the prisoner whom
they suspect is really the one who was seen by them in
connection with the commission of the crime. Second is
to satisfy the investigating authorities that the suspect is
really the one who was seen by them in connection with
the said occurrence. So the officer conducting the test
identification parade should ensure that the said object
of the parade is achieved. If he permits dilution of
modality to be followed in a parade, he should see to it
that such relaxation would not impair the purpose for
which the parade is held [vide Budhsen v. State of Uttar
45 1995 SCC OnLine Bom 399
46 1997 SCC OnLine Bom 3947 AIROnline 1999 SC 169
Vishal Parekar 57 of 96
Cri.Appeal 502-2021.docPradesh, 1970(2) SCC 128; Ramanathan v. State of Tamil
Nadu, 1978(3) SCC 86].”
77. The Trial Court while believing the TIP has rightly relied upon the
judgment of Babubhai @ Zaverchand Harjivan Sheth v/s The State of
Maharashtra48 to clarify the intent of conducting a TIP wherein it is
observed as under –
“72. In our view, regarding the test identification Parade,
the precautions as contained in the guidelines issued by
the High Court in the criminal Manual are required to be
observed to make the exercise of holding the TIP
meaningful and reliable. If there is inordinate delay in
holding TIP, the delay ought to be explained by the
prosecution. A witness of fact who is required to attend
the test identification to identify the unknown offender
from the assemblage of accused intermingled with group
of dummies at the TIP must not have any prior
opportunity to see the suspect or the accused after his
arrest or while the accused is continuing in custody
pending investigation, before the TIP is held. If TIP is
held in jail, the responsible authority holding TIP will
have the facility to take precautions including the
selection of the appropriate similar dummies in age,
appearance, dress etc. to stand along with the suspects.
At the same time it must be remembered that the TIP
belongs to the stage of investigation and essentially
governed by Section 162 of the Cr PC and does not
constitute the substantive evidence. Hence cannot be
decisive factor for recording conviction. There is no
provision in the Code of Criminal Procedure to make it
compulsory for the investigating agency to hold test
identification parade because the substantive evidence is
identification of the culprit before the Court. Failure to
hold the TIP would not make the evidence of
identification in the Court absolutely meaningless or
inadmissible. The evidence of TIP provides only
corroboration to the main evidence before the Court
when required by way of the abundant precaution in view
of Section 9 of the Indian Evidence Act. The object of
holding TIP at the stage of investigation is to help the
investigating agency to assure itself that the investigation
is proceeding at right direction, on correct lines. The482013 SCC OnLine Bom 2260
Vishal Parekar 58 of 96
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trustworthiness of the witness at the stage when
investigation is still at its preliminary stage. The holding
of the TIP is felt necessary in a case wherein the accused
were not known to the accused since prior to the
incident. The accused cannot as of right claim that the
test identification parade must be held at the stage of
investigation. The trial Court is not precluded from
accepting the evidence of the identification of the
offender on the basis of sworn testimony in the Court
without insisting upon the corroboration. Though sole
rule of prudence is to look for corroboration. It is for the
learned trial judge, as a Court of fact, who has
opportunity to see & have live experience of watching
demeanor of the witness while he or she is deposing
before the Court, to attach the appropriate weight to the
evidence of the witness. In an appropriate case the trial
Judge may accept the evidence of identification in the
Court even without insisting upon the corroborative
evidence. In case the trial Judge find it unsafe to rely
upon the substantive evidence of actual identification of
the offender before the trial Court, it may look upon the
evidence of the TIP for the purpose of corroboration and
may then find it out whether corroborative evidence
adduced is dependable and reliable to base
conviction……”
78. Taking into consideration the authorities cited on this issue, we find it
appropriate to hold that the object of holding TIP at the stage of
investigation is to help the investigating agency ensure that it is proceeding
on the correct line. The purpose of conducting the TIP is primarily to test the
trustworthiness of the witness at a nascent stage. The necessity of TIP arises
only in those circumstances when the accused is unknown to the witnesses
prior to the incident. Further, mere failure to hold the TIP would also not
make the evidence of identification in the Court absolutely meaningless or
inadmissible.
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79. Additionally, taking into consideration the evidence on record, we also
find that no motive can be attributed to the prosecution for holding of the
TIP belatedly. As far as the identification of P.W. 3 is concerned, he has
given an explanation in his evidence as to why he did not, during the TIP
point towards the Appellant as the person who had come in his auto
rickshaw. This witness in the natural course of deposition has stated that out
of fear he did not point out. This witness however has identified the
Appellant in his substantive evidence in the court. We have no reason to cast
any doubt over the conduct of P.W. 3, who has not resiled from his
statement. Further in the cross-examination, this witness has stated that he
saw the accused for the first time after the incident in the TIP at the jail.
80. In the light of the above, we find that there is nothing to disbelieve the
Test Identification Parade and there is no deviation from the due process
laid down in the Criminal Manual and hence the contention of the Ld.
Counsel for the Appellant deserves to be rejected.
E] DISCLOSURE AND RECOVERY
81. This Court now proceeds to consider the recoveries effected pursuant
to the disclosure statements made by the Appellant under Section 27 of the
Indian Evidence Act. There are multiple recoveries, some at the instance of
the Appellant and some through the witnesses.
82. The first disclosure statement of the Appellant was recorded on the
day on which the Appellant was arrested i.e. 05.11.2013, in the presence of
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P.W. 7, which was regarding the disposal of the head of the deceased. P.W. 7
has deposed that upon disclosure, the police and the panchas were led to a
nala (canal) near a temple where one black coloured plastic bag was
recovered and upon opening the same, it was found to contain the head of
the deceased. The relevant part of the said deposition is reproduced herein
below:
“5. Thereafter, we left Chembur police station by one
government vehicle. Police officer Khanvilkar, Dhas, 2-3
police staff, myself, anther panch witness and accused
were in the said vehicle. We went from R.C. Marg,
Chembur Naka, Cell Colony via Tembhi bridge, and then
at near one canal (nala), near one temple, we stopped our
vehicle, where the accused was asked to stop. We all
alighted from the vehicle and went by walk at some
distance. The accused pointed canal (nala) in which one
black colour black colour plastic polythene bag which he
thrown. Thereafter, one person went inside the nala and
took out the said black colour plastic polythene bag from
said nala, but I do not remember name of said person.
The said black colour plastic polythene bag was given to
Police Officer Dhas. The said black colour plastic
polythene bag was dirty with mud and there was knot at
top (mouth) of the said polythene bag. Some insects were
there on polythene bag. The said knot was cut by blade .
In which we found one female head, decomposed/ rotten
condition, eyes closed, black hairs, mouth open and long
teeth and there was bad smelling. Photographer was
called. Photographer took the photographs of said female
head, decomposed in condition. The said female head
decomposed/ rotten in condition was taken in charge by
preparing panchnama. I can identify photographs of
female head which found in polythene bag.”
83. We have also gone through the cross-examination, however, we find
that nothing could be elicited by the defence to discredit this witness.
Although the defence was successful in bringing on record that this panch
witness had acted as a panch in 2 to 4 cases earlier, however that by itself
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cannot be a ground to reject the evidence, which is otherwise believable as
held by the Hon’ble Supreme Court in the case of Nana Keshav Lagad v/s
State of Maharashtra49.
84. This Court believes the recovery of the head from the nala for reasons
stated herein. Although, the said nala is to be considered as a place with
wide public access, the material aspect in the peculiar facts of the case, is not
the nature of the place but the fact that the location of disposal was within
the exclusive knowledge of the Appellant. A severed human head is not an
article ordinarily to be found in such a place and the recovery was effected
only after the Appellant led the police and the panchas to the specific spot
and pointed out to the exact location.
85. In this context, the Ld. Counsel for the Appellant has relied upon the
judgment of The State of Haryana v/s Jagbir Singh 50 to contend that the
recovery of the head, in the present case falls outside the purview of Section
27 of the Evidence Act, inasmuch as the location was already within the
knowledge of the police, prior to the disclosure. The relevant paragraph
referred to by the Ld. Counsel for the Appellant during his arguments is
enumerated herein below:
“21. What remains now to be seen is whether the
recovery of the dead body from the premises of the
accused establishes the prosecution version. According to
the prosecution when the Panchayat gave time to the
accused to produce the boy alive or dead, he accepted
that the dead body was buried in his compound. The
accused dug the land and on seeing the leg of the dead49 (2013) 12 SCC 721
50(2003) 11 SCC 261Vishal Parekar 62 of 96
Cri.Appeal 502-2021.docbody they stopped digging and went to the police. The
High Court has found that the prosecution claimed that
the two accused were arrested by the Sub-Inspector
Mahender Singh Bhatti (PW 12) on 9-9-1995 on the
culvert of Jai Canal at about 8.00 p.m. in the presence of
one Chatter Singh and Om Parkash. However, Om
Parkash (PW 10) has denied about the arrest of the
accused by PW 12 near the canal. From the statement of
PW 12, it appears that the accused persons after their
arrest made disclosure or the statement about the
ransom, concealment of the dead body and that the dead
body recovered in the presence of the aforesaid Chatter
Singh and Om Parkash (PW 10). It is belied by the
statement of Om Parkash (PW 10). According to this
witness, when the accused made a voluntary statement in
the presence of many others he pointed out where the
body was buried. They went to the police station where
they met PW 12 and told him about finding the dead
body. PW 10 told him that the dead body was to be
handed over to Sr. SP or the Dy. SP. Evidence of PW 10
further shows that PW 12 accompanied by another ASI
and other police officials went to the village. There many
people had assembled and as the villagers started
shouting and agitating that led to an altercation; both the
accused were arrested by the Dy. SP. Thereafter it is
stated that the accused Jagbir made a disclosure
statement, where he (PW 10) and Chatter Singh were
stated to be eyewitnesses. One thing is clear that there
are unexplained contradictions about the place where the
accused were arrested and the manner of recovery. Since
the dead body was recovered on the basis of information
already known, Section 27 of the Evidence Act has no
application. As observed by this Court in Aher Raja
Khima v. State of Saurashtra [AIR 1956 SC 217 : 1956 Cri
LJ 426] a recovery of the incriminating articles alleged
to have been made by the accused while in custody is
inadmissible in evidence if the police already knew where
they were hidden. That takes the case out of the purview
of Section 27 of the Evidence Act.”
86. This Court finds the said judgment distinguishable on facts. In The
State of Haryana v/s Jagbir Singh(supra), the recovery of the dead body was
held to be outside Section 27 because the location was already known, as the
accused had pointed out the burial spot in the presence of the Panchayat
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before any formal disclosure statement was recorded. It was in this specific
circumstance, that Section 27 was held inapplicable. However, the same
does not hold good in the instant case. There is nothing on record to suggest
that the location of the head near the nala at Sai Baba Nagar was known to
the investigating agency prior to the Appellant’s disclosure. The same is
accordingly distinguishable and does not assist the case of the Appellant.
87. The Ld. APP has rightly relied upon the judgment of Neelu @Nilesh
Koshti v/s The State of Madhya Pradesh51, in order to emphasize upon the
validity of the recovery of the head of the deceased, under Section 27 of the
Indian Evidence Act. The Court observed thus:
“22…..This Court held that for evidence under Section
27 to be admissible, the information must emanate
from an accused who is in police custody. The Court
elucidated that the basic idea embedded in Section 27 is
the doctrine of confirmation by subsequent events-
when a fact is discovered on the strength of information
obtained from a prisoner, such discovery serves as a
guarantee of the truthfulness of the information
supplied. The Court further observed that whether the
information is confessional or non- inculpatory in
nature, if it results in the discovery of a fact, it becomes
reliable information. Significantly, it was held that the
mere recovery of an object does not constitute the
discovery of fact envisaged in the section……
23……As laid down in Udai Bhan (supra), the discovery
of a fact includes the object found, the place from which
it is produced, and the knowledge of the accused as to
its existence.In the present case, the information given
by the appellant while in Police custody distinctly
relates to the fact discovered, namely, recovery of the
dead body of the deceased concealed in a sack and
thrown in a specific well. This constitutes a “distinct
fact” as contemplated under Section 27 of the Evidence
Act, as the recovery of the body from that precise
location could only have been made on the basis of51Cr. Appeal No. 5357 of 2025
Vishal Parekar 64 of 96
Cri.Appeal 502-2021.docinformation furnished by someone who had personal
knowledge of its disposal. The recovery embodies the
“doctrine of confirmation by subsequent events” as
explained in Bodhraj (supra)–the actual discovery of
the body from the exact location disclosed by the
appellant is a guarantee that the information supplied
by him is true. The fact discovered embraces the place
from where the object was recovered (the well near
Tasaali Dhaba) and the knowledge of the appellant as
to its existence at that location. This information is not
within public domain or capable of discovery through
routine investigation. These circumstances constitute a
formidable link in the chain pointing towards the
culpability of the appellant.”
88. It would be appropriate to state that in the present case, the recovery
of the head of the deceased from the particular spot (nala) would constitute
a ‘distinct fact’, as such a recovery would not have been possible unless a
disclosure statement to that effect was made by someone who had personal
knowledge of its disposal. Thereby upholding the ‘doctrine of confirmation
by subsequent events’, it can be said that such a discovery of a severed head
is not possible through routine investigation or without information
provided by the Appellant himself. Hence, we believe the recovery of the
head of the deceased at the instance of the Appellant, under Section 27 of
the Indian Evidence Act.
89. As far as the discovered legs of the deceased are concerned, the
evidence on record discloses that the same were not recovered at the
instance of the Appellant. P.W. 19, on 30.10.2013, stumbled upon the legs in
a black coloured polythene bag lying in shrubs near Trombay Jetty and
immediately informed the police. The police then recorded the statement of
P.W. 19 and prepared a spot panchama for the legs and the four blood-
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stained black coloured polythene bags. The relevant portion of his
deposition is as follows:
“On 30/10/2013 I was going towards Trombay Jetty. I
saw two legs in a torn black coloured polythene bag
which was lying in shrubs. There were four black
coloured polythene bags. I scared and ran towards jetty. I
informed the police at jetty. I showed the police the spot.
Police recorded my statement on the same day”.
90. The testimony of this witness has gone unchallenged as the defence
chose not to cross-examine this witness.
91. Further, the FSL analysis establishes that the black coloured plastic
bags, so recovered, are of the same type and nature as the black coloured
plastic bag in which the torso was disposed off at Charai talao. The discovery
of the legs of the deceased cannot be considered a recovery under Section 27
of the Evidence Act because it was not at the instance of the Appellant.
However, in the opinion of this Court, the relevance of the said discovery
may lie in the fact that the recovery of the legs, from the same type of plastic
bag as that of the torso and head, is a circumstance which corroborates the
knowledge possessed by the Appellant regarding the manner in which the
body parts had been concealed and disposed off. Therefore, even though this
recovery is not pursuant to any disclosure statement made by the Appellant,
this can also be considered as one forming a part in the chain of the disposal
of the dismembered parts of the body of the deceased. We conclude as
above, after giving due consideration to the proved corroborative evidence
and the attendant circumstances.
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92. The prosecution has further relied on the disclosure statement of the
Appellant recorded on 16.11.2013 in the presence of P.W. 9. The Appellant
had made a disclosure statement with respect to the place where he disposed
off the mobile phones, clothes, chappals and ornaments of the deceased. The
Trial Court has erroneously recorded that the aforementioned articles were
recovered and hence came to an incorrect conclusion that the discovery was
established. However, the evidence on record points to the contrary. The
evidence of P.W. 9 shows that none of the articles were recovered pursuant
to the disclosure statement. In the absence of any article having been
actually recovered, consequent to the disclosure statement, the Trial Court’s
conclusion on the same being an established recovery under Section 27 of
the Indian Evidence Act cannot be sustained.
93. It is the case of the prosecution, that as per the deposition of P.W. 7,
the Appellant also made a disclosure statement on 05.11.2013, regarding the
ascertainment of the spot of murder. Pursuant to this, the police were led to
Room No. 224 and a number of articles were seized viz., a plastic bucket,
pieces of cement concrete, a bathroom metal jali, two full jeans pants, two
half t-shirts and a piece of cloth, some of which bore bloodstains. This Court,
having considered the evidence on record, finds that the said recovery was
effected on the same day of the arrest and in pursuance of the disclosure
statement made by the Appellant. There is no substantial cross-examination
on this aspect. However, the issue that now falls for consideration is the
evidentiary value of the bloodstained articles recovered during the
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investigation. While the reports confirm the presence of human blood on the
seized articles, they do not conclusively establish the blood group.
94. On this aspect, this Court finds it necessary to refer to the recent
decision of the Supreme Court in Madhav v/s State of Madhya Pradesh52,
wherein the Apex Court, having considered the entire spectrum of case laws
on this aspect, has settled that there exists no fixed formula and that what is
required is that the judicial conscience of the Court should be satisfied both
as to the genuineness of the recovery and as to the origin of the human
blood. The judgments relied upon by the learned APP in Kishore Bhadke v/s
State of Maharashtra53, Prabhu Dayal v/s State of Rajasthan54, which
consider State of Rajasthan v/s Teja Ram and Others 55, have already been
evaluated and reconciled by the Hon’ble Supreme Court in Madhav (supra).
Since the principles emerging from the aforesaid decisions stand
comprehensively dealt with in Madhav(supra), on which this Court has
placed reliance, we do not find it necessary to further independently dilate
upon the abovementioned judgments relied by the Ld. APP. The relevant
observations of Madhav(supra) are reproduced hereunder:
“28. …..In Surinder Singh vs. State of Punjab (1989)
Supp.(2) SCC 21), the blood stains found on the knife
allegedly used for the commission of the offence, were
established to be human blood. But this Court rejected
the prosecution theory on the ground that those blood
stains on the knife were not shown to be of the same
group as the blood of the deceased. In Raghunath,
52Criminal Appeal No. 852 of 2021
53(2017) 3 SCC 760
54(2018) 8 SCC 127
55(1999) 3 SCC 507Vishal Parekar 68 of 96
Cri.Appeal 502-2021.docRamkishan & Ors. vs. State of Haryana, this Court held
that the blood stain, though of a human blood, is not
conclusive evidence to show that it belongs to the blood
group of the deceased. In Sattatiya vs. State of
Maharashtra, this Court found the credibility of the
evidence relating to the recovery of the object used for
the commission of the crime, substantially dented, on
account of the fact that the blood stains, though found to
be of human source, could not be linked with the blood of
the deceased.
29. In contrast, this Court held in State of Rajasthan vs.
Teja Ram and Others, that at times the Serologist may
fail to deduct the origin of the blood, either because the
stain is too insufficient or because of hematological
changes and plasmatic coagulation. After referring to the
Constitution Bench decision in Raghav Prapanna
Tripathi (supra), this Court held in Teja Ram (supra) that
it is not as though the circumstances arising from the
recovery of the weapon would stand relegated to
disutility, in all cases where there was failure of detecting
the origin of the blood. This Court indicated in Teja Ram
(supra) that, “…the effort of the Criminal Court should
not be to prowl for imaginative doubts…” and that the
doubts should be of reasonable dimension, which a
judicially conscientious mind entertains with some
objectivity.
30. The decision Teja Ram (supra) was followed in Gura
Singh vs. State of Rajasthan and in Prabhu Dayal vs.
State of Rajasthan.
31. In R. Shaji vs. State of Kerala, this Court took note of
almost all previous decisions starting from Prabhu Babaji
Navle vs. State of Bombay and including those in Raghav
Prapanna Tripathi (supra); Teja Ram (supra), Gura
Singh (supra); John Pandian vs. State; and Sunil Clifford
Daniel vs. State of Punjab and came to the conclusion
that once the recovery is made in pursuance of a
disclosure statement made by the accused, the matching
or nonmatching of blood groups loses significance.
“32. Therefore, as pointed out by this Court in Balwan
Singh vs. State of Chhattisgarh, there cannot be any
fixed formula that the prosecution has to prove, or need
not prove that the blood groups match. But the judicial
conscience of the Court should be satisfied both about
the recovery and about the origin of the human blood.”
95. In view of the above, this Court is satisfied that the recovery of articles
from Room No.224, stands duly proved under Section 27 of the Evidence
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Act, and the Chemical Analyzer’s Reports establish the presence of human
blood on the articles so recovered, even though the results are inconclusive.
96. Having considered the submissions of the Ld. Counsel for the
Appellant and the Ld. APP, and having perused the relevant case laws, this
Court is of the considered opinion, that the mere fact that the bloodstains
were inconclusive, the Appellant cannot claim the benefit on those grounds.
However, we hold that the inconclusive blood stains by themselves do not
establish a distinct and incriminating link in the chain of circumstances in
the peculiar facts and circumstances of this case, for the reasons set out
hereunder. First, the evidence on record establishes that Room No. 224 was
not within the exclusive possession of the Appellant, as it was shared among
three other persons residing therein, as deposed by P.W. 5 and P.W. 14. In
the absence of exclusive access, it cannot be said with certainty that the
Appellant had exclusive knowledge of the scene of the offence. Therefore,
the most that can be inferred therefrom, is that the Appellant possessed
knowledge of the commission of murder in that room and the existence of
those articles in that room. Secondly, the prosecution alleges that the
Appellant dismembered the body and disposed of the body parts at different
locations to destroy the evidence. If that be so, it appears inherently
improbable that he would simultaneously leave behind numerous blood-
stained articles at the very place where the offence was committed and
which also served as his residence, only for the police to effect a recovery.
Such conduct is inconsistent with ordinary human behaviour and renders
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the prosecution version susceptible to doubt. For these reasons, the judicial
conscience does not permit to accept this recovery as a circumstance
pointing unerringly towards the Appellant.
97. It has come in the evidence/deposition of P.W. 8 that the disclosure
statement, with respect to the knife which is the weapon of murder, was
recorded on 07.11.2013. It has also come in the evidence that the very same
disclosure statement also pertained to the limbs, for which the police first
went to Trombay Jetty where nothing was found. Immediately, thereafter
the Appellant led them to the place where he claimed to have discarded the
weapon of murder- knife. It is to be noted that the knife was recovered from
a nala, accessible to the public in general and therefore the Appellant cannot
be said to have exclusive access to the same. Additionally, there is nothing
on record to suggest that the particular nala was outside the reach of
passerbys. Further, the deposition of P.W. 8 (panch witness) only discloses
the fact, that the Appellant pointed towards the general area of the nala
where the knife was thrown by him. It has also come in the evidence of P.W.
8, that a knife was not visible in water from outside the nala and that the
local people by entering into the nala took the search of the weapon with
hands. It has also come in the cross-examination of P.W. 8, that few other
articles were also taken out by the local people from nala water. It has also
come in the cross-examination that after taking out the knife it was put to
dry and it was measured by the police and not by the panchas. Further, there
is also a discrepancy regarding the length of the knife. It is common
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knowledge that a nala, ordinarily contains a number of discarded articles
and a knife being a common household object, the exclusivity is not
established.
98. The Ld. Counsel for the Appellant has relied upon the judgment of
Makhan Singh v/s The State of Punjab 56 , drawing our attention specifically
to para 14:
“14. Then we are left with the recovery of the dead
bodies. Investigating Officer SI Puran Singh (PW 8)
admitted in cross-examination that after recording the
statement of Amrik Singh he could not know the correct
place where the bodies and other articles were kept
buried and concealed. This clearly indicates that he could
get some information from the statement of Amrik Singh.
As seen earlier, the field is an open place surrounded by
other fields and according to Nihal Singh the adjacent
field is his own as he had taken it on lease and therefore
it cannot be said that anyone could not have known
about the bodies being buried in the field. The
Investigating Officer himself admitted that after
recording the statement of Amrik Singh he knew that the
bodies were buried in the field but he felt that
information was not sufficient. It cannot therefore, be
said that the place from where the bodies were recovered
was such a place about which knowledge could only be
attributed to the appellant and none else. Since the
exclusive knowledge to the appellant cannot be
attributed, the evidence under Section 27 also cannot be
said to be a circumstance against the appellant. ”
99. Taking into consideration, the above-mentioned judgment, this Court
is also of the view, that the nala is a place with public access and therefore
the exclusive access of the nala and subsequently the exclusive knowledge
about the knife, cannot be attributed to the Appellant. This, therefore
significantly diminishes the propriety of the recovery of knife under Section
56(1988) SUPP SCC 526
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27 of the Evidence Act. We hold that while the disclosure statement was
made regarding the knife and the same was recovered, the evidentiary
weight of this recovery is insufficient to attribute it to the Appellant, more
so, considering the duration after which it was recovered. Therefore, in the
light of the above stated reasons, we are not inclined to accept the recovery
of the knife as an incriminating circumstance against the Appellant.
100. This Court, taking into consideration the discoveries and recoveries of
the dismembered body parts of the deceased, comes to a conclusion that the
black coloured plastic bag constitutes a significant corroborative
circumstance running through the chain of disposal. The torso was found
disposed of in a black coloured plastic bag at Charai talao at the hands of the
Appellant. The head was recovered in a black coloured plastic bag near a
nala (canal) at the instance of the Appellant. The legs were found in a black
coloured plastic bag near Trombay Jetty along with four blood-stained
plastic bags lying around it. The FSL analysis further establishes that the
black coloured plastic bags are of the same nature and type. Therefore, the
recovery of the bags cannot be viewed in isolation. The common use of
identical black coloured plastic bags for concealing the torso, head and legs,
coupled with the FSL opinion at Exhibit 128 Colly., regarding their
similarity, provides an important corroborative link in the chain of
circumstances and lends credence to the Appellant with regards to the
knowledge regarding the disposal of the body parts of the deceased.
101. The Ld. Counsel for the Appellant has relied upon the judgment of the
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Hon’ble Supreme Court in Himachal Pradesh Administration v/s Om
Prakash57. The relevant paragraph is reproduced hereunder:
8….. We are not unaware that Section 27 of the Evidence
Act which makes the information given by the accused
while in custody leading to the discovery of a fact and the
fact admissible, is liable to be abused and for that reason
great caution has to be exercised in resisting any attempt
to circumvent, by manipulation or ingenuity of the
Investigating Officer, the protection afforded by Section
25 and Section 26 of the Evidence Act. While considering
the evidence relating to the recovery we shall have to
exercise that caution and care which is necessary to lend
assurance that the information furnished and the fact
discovered is credible.
102. The aforesaid observations cast a duty upon the Court to exercise due
caution in appreciating discovery evidence and to satisfy itself of the
credibility of both, the information furnished and the fact discovered. In the
present case, this Court has independently scrutinized each recovery on its
own merits and has relied only upon those recoveries which inspire
confidence and satisfy the test of admissibility and reliability in law.
103. The Ld. Counsel for the Appellant placed reliance on Gambhir v/s The
State of Maharashtra58, Kashinath Baban Palkar v/s The State of
Maharashtra59 and Sattatiya v/s The State of Maharashtra 60 to contend that
the recoveries in the present case are piece meal in nature and are the result
of duress, rather than a voluntary disclosure and hence should be discarded.
As there can be no doubt about this proposition laid down by the Apex
Court, the same does not seem to be applicable as in the peculiar facts of the
57(1972) 1 SCC 249
58(1982) 2 SCC 351
591995 SCC OnLine Bom 167
60(2008) 3 SCC 210
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case, we do not find it to be the result of any duress or absence of voluntary
disclosure.
F] REPORTS OF POST-MORTEM AND CHEMICAL ANALYZER
104. The Chemical Analyser and Post-Mortem(PM) Reports are an
important link in establishing a complete chain of circumstantial evidence,
the analysis of which is essential. To establish the commission of the offence
of murder at the hands of the Appellant, this circumstance must be
considered in two parts. First, insofar as they establish the identity of the
deceased and the cause of death and second, whether they can be sought to
be used to connect the Appellant with the commission of such an offence of
murder.
105. On the question of the identity of the deceased, this Court has already
discussed this circumstance in detail and come to the conclusion that there
is no doubt about the identity of the deceased being one Kanti Karunakar
Shetty, as established by DNA Reports.
106. To establish the Post-Mortem report and the injuries mentioned
therein, the prosecution has examined P.W. 17- Dr. Sunil Jawale who
deposed that on 05.11.2013, he was on duty and on that day a skull of a
female suspected Kanta Prabhakar Shetty wrapped in plastic bag which was
found in nala was brought by PSI Ravindra Mohite. He further deposed that
they started P.M. on the skull at 11:45 p.m. and found that it showed signs of
adipocere formation which is a special change occurring when a body is
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lying in moist condition. On external examination of injuries, he has further
deposed as follows:
“4. On external examination of the injuries which are
mentioned in Column No.17, the neck skin shows sharp cut
boarders at the level of lower end of C6. Orophayranx, pharynx
intact. Neck muscles shows sharp cut at the level of injury.
Cartilages at the level of injury shows sharp cut boarders.
Vertebra above the lower end of C6 are intact. Spinal cord
shows sharp cut, changes of adipocere and evidence of
infiltration of blood stains seen at the injured site. From all
these findings, the injury was ante mortem in nature. There was
no any injury on skull wall. Brain matter was liquefied. The
samples which we preserved were scalp hairs, vertebra and
tooth for DNA, another tooth for grouping, hair clip for analysis.
5. Accordingly I have prepared the P.M. report. Today I have
brought with me the original P.M. Report. It is in my
handwriting. It bears my signature and signatures of Dr. H.
Meshram and Dr. P.S. Dode. I am acquainted with their
signatures. P.M. Report is taken on record and mark Exh.93.
6. The cause of death is decapited head. After examination of all
CA reports, the cause of death in our opinion is hemorrhage
shock due to decapitation of head, unnatural. Now I am shown
cause of death certificate. It is the same. It bears my signature
and signature of three more Doctors. The contents therein are
true and correct. It is at Exh.94.
……8. On the basis of changes in the body, the death of the body
might have occurred prior to 5-7 days of the postmortern. The
abovesaid injury is possible by means sharp edged knife. Now I
am shown the knife (Art.14). The abovesaid injury is possible
with this knife.”
There is no dent caused to the evidence of this witness in the
cross-examination.
P.W. 20, Dr. Harshal Tubhe who has also conducted the Post
Mortem has deposed as follows:
“3. In para 17 I have recorded external injuries as :
1) Complete decapitation at the level of C7-Cervical
vertebra with clean cut margins of skin; soft tissues;
muscle, blood vessels oesophagus, trachea, other
cartilages with infiltration of blood at margins (neck
circumferance 30 cm)
2) Abrasion of 2cm x 1 cm, dark red over right lower
abdomen just above right iliac crest.
3) Abrasion of 2cm x 1 cm, dark red over left lower
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abdomen, 10 cm below and left lateral to umbilicus.
4) Chopped off injury over right iliac region separating
leg from acetabular cavity; exposing under lying muscles;
fat.
5) Chopped off injury over left iliac region separating leg
from acetabular cavity exposing underlying muscle; fat.
6) Chopped off injuries over both shoulder region
separation both upper limbs from shoulder exposing
underlying muscle; fat.
….. ……
6. On the same day at 8.35 p.m. we received two human
legs along with inquest panchanama and ADR report by
PSI Adsul of Trombay police station. I along with Dr.
G.D. Niturkar conducted the postmortem examination
between 8.40 p.m. to 9.40 p.m.
…… …..
8. In para 17 I have recorded external injuries as:
1) Contusion of 2cm x 1 cm, muscle deep; over anterior
thigh region of left leg, 10 cm below head of femur.
2) Both legs chopped off from iliac region exposing head
of femur along along with underlying muscles, fat and
soft tissues.
……
11. In P.M. report Exh.101, Injury No.1 corresponding to
injury mentioned in column No.22 is possible with the
weapon like knife Art.14, now shown to me. All the
injuries individually or collectively sufficient to cause the
death.”
There is no cross-examination of the said witness.
107. We find that the PM Reports conclusively establishes the following
findings. Firstly, that the victim met with an unnatural death. The cause of
death was ascertained as hemorrhage and shock due to decapitation of head.
Secondly, the nature of injuries, namely decapitation at C7 vertebrae and
dismemberment of the body of the deceased into several parts is consistent
with the premise that the injuries were caused by a deliberate and
intentional human intervention. Thirdly, the injuries and dismemberment
were caused by a sharp edged weapon. On these counts, this Court is of the
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opinion that the Post- Mortem evidence stands proved in establishing the
cause of the death of the deceased.
108. We now proceed to deal with the findings of the Chemical Analyser
(CA) Reports of the articles seized from the spot of incident, Room No. 224.
Pursuant to the Appellant leading the police to Room No. 224, several blood
stained articles were seized. However, upon a careful perusal of the CA
reports, this Court finds that, while the blood stains found on the articles
have been found to be of human origin, the said reports are inconclusive
insofar as the identification of the blood samples are concerned. This Court
has, in the preceding parts, held that the recovery of articles from Room No.
224 to be proper within the meaning of Section 27 of the Evidence Act. On
the question of the evidentiary value of such inconclusive bloodstain
evidence, this Court placed reliance on Madhav (supra) that the inconclusive
nature of the serological reports does not enure to the benefit of the
Appellant. However, for the reasons stated and recorded herein above, this
Court is unable to attach substantial incriminating value to the Chemical
Analyser’s Reports qua the Appellant. Therefore, even though the recovery
stands proved pursuant to the disclosure statement by the accused, it does
not constitute an independent link in the chain of circumstances,
particularly when the recoveries were effected from a room not within the
exclusive use of the Appellant and the same fails to unerringly attribute the
guilt of the murder of the deceased to the Appellant.
109. Consequently, while the medical and FSL reports conclusively prove
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the fact of homicidal death and the identity of the victim, it does not by itself
and by its very nature fix the authorship of the crime upon the Appellant.
The question, whether the Appellant is the person who committed the
murder of the deceased must be determined on the basis of the other links in
the chain of circumstantial evidence, to which this Court has already iterated
and has come to a conclusion that the evidence on record does not prove
beyond reasonable doubt that the Appellant is the person who can be held
liable for the same.
110. Therefore, this Court finds that the medical and FSL evidence does
not unerringly point towards the guilt of the Appellant, and it does not
constitute a link in the chain of circumstances for the purposes of the charge
under Section 302 of the IPC.
111. Apart from the above circumstances, it was also argued on behalf of
the prosecution by the Ld. APP, that the Appellant has not given any
plausible explanation in his statement under Section 313 of the Cr.P.C and
has also not led any defence evidence or examined himself on oath to
disprove the case of the prosecution. No doubt, it is the duty of the
prosecution to prove the case against the accused beyond reasonable doubt
and the accused has the right to remain silent. However, law provides the
accused an opportunity to explain the circumstances which appear against
him in the evidence, but if the accused remains silent or takes the defence of
denial, the court may, if it deems appropriate, draw such inferences against
the accused, as is permissible under law. In support of the contention, the
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prosecution has relied upon the following two judgments.
112. In the case of Phula Singh v/s The State of Himachal Pradesh 61, it has
been observed thus:
“8. The accused has a duty to furnish an explanation in
his statement under Section 313 Cr.P.C. regarding any
incriminating material that has been produced against
him. If the accused has been given the freedom to remain
silent during the investigation as well as before the court,
then the accused may choose to maintain silence or even
remain in complete denial when his statement under
Section 313 Cr.P.C. is being recorded. However, in such
an event, the court would be entitled to draw an
inference, including such adverse inference against the
accused as may be permissible in accordance with law.
(Vide: Ramnaresh & Ors. v. State of Chhattisgarh, AIR
2012 SC 1357; Munish Mubar v. State of Haryana, AIR
2013 SC 912; and Raj Kumar Singh alias Raju @ Batya v.
State of Rajasthan, AIR 2013 SC 3150).”
113. A similar principle has also been laid in Munish Mubar v/s The State
of Haryana62. It states thus:
“25. Moreso, it was the duty of the appellant to furnish
some explanation in his statement under Section 313
Cr.P.C., as under what circumstances his car had been
parked at the Delhi Airport and it remained there for 3
hours on the date of occurrence. More so, the call records
of his telephone make it evident that he was present in
the vicinity of the place of occurrence and under what
circumstances recovery of incriminating material had
been made on his voluntary disclosure statement. Merely
making a bald statement that he was innocent and
recoveries had been planted and the call records were
false and fabricated documents, is not enough as none of
the said allegations made by the appellant could be
established.
114. These judgments make it clear that, the Appellant upon being given
61AIR 2014 Supreme Court 1256
62AIR 2013 Supreme Court 912
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an opportunity to defend himself, if chooses to simply deny them or term
them false without adducing any evidence to prove the same, is inadequate
to write off the guilt of the accused. In the present case, the Appellant has
blatantly denied the circumstances put forth by the prosecution and also
stated that he was falsely implicated. Additionally, the Appellant chose not
to examine any witness or lead any evidence on record to establish the same.
The statement given by the accused under 313 Cr.P.C., fails to adequately
deny the allegations put forth by the prosecution. It also does not bring to
light any alternative hypothesis to establish the case of the defence.
115. At this stage, it is pertinent to take note of certain answers furnished
by the Appellant in his examination under Section 313 Cr.P.C. The Appellant
has chosen to deny the circumstances in totality, even those, which this
Court has upon appreciation of the evidence on record, found to have been
conclusively established. Some of the relevant questions and answers are
reproduced herein below to elucidate the same:
“Q.3: It has further come in their evidence that at about
9.40 to 9.45 p.m. you came there in one auto rickshaw,
got down with a black coloured polythene bag on your
back. What have you to say ?
Ans: It is false.
Q.12: It has further come in the evidence of P.W. 2 and
P.W. 6 that you then went near the staircase of talao and
with the help of a small boat, threw the said black
coloured polythene bag in the water of said talao. What
have you to say ?
Ans: It is false.
Q. 48: It has further in his evidence that you were found
in possession of two mobile phones, one black colouredVishal Parekar 81 of 96
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Micromax mobile alongwith SIM card. What have you to
say ?
Ans: It is false.”
116. The aforesaid answers demonstrate that the Appellant has offered a
bare and blanket denial even with respect to circumstances which stand
proved by cogent and reliable evidence. While such denial cannot by itself
establish guilt, it is a relevant circumstance which the Court is entitled to
take into consideration while appreciating the evidence on record.
Therefore, in view of the above-mentioned judgments, this Court deems it
appropriate to draw an adverse inference against the Appellant as far as the
disposal of the body of the deceased is concerned, after a close scrutiny of all
the evidence on record.
117. Lastly, it will also be pertinent to mention here, that in a case of
circumstantial evidence, such as this one, even if the motive is attributed to
the Appellant and is accepted by the Court, it cannot stand as the sole
ground for conviction, given that the entire chain of circumstances is
otherwise held to be incomplete. In this regard, reference may be made to
the decision of the Hon’ble Supreme Court in Subhash Aggarwal v/s The
State NCT of Delhi63:
“19. Reliance was placed on State of U.P. v. Kishanpal6
wherein it was held that motive is something which is
primarily known to the accused themselves and it is not
possible for the prosecution to always explain what
prompted or excited them to commit a particular crime.
Motive is a very important link in the circumstances632025 SCCOnLine SC 808
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importance only when there is direct evidence of
eyewitnesses, which is convincing and conclusive as to
the guilt of the accused. However, it was also noticed that
even if there may be a very strong motive for the accused
to commit a particular crime, it does not lead to a
conviction by itself, if the eyewitnesses are not
convincing or the chain of circumstances is not complete.
20. The declaration in the cited decisions and the
decisions relied on therein, is to the effect that if the case
is built solely upon circumstantial evidence, absence of
motive will be a factor that weighs in favour of the
accused. Just as a strong motive does not by itself result
in a conviction, the absence of motive on that sole ground
cannot result in an acquittal. When the eyewitnesses are
not convincing, a strong motive cannot by itself result in
conviction, likewise when the circumstances are very
convincing and provide an unbroken chain leading only
to the conclusion of guilt of the accused and not to any
other hypothesis; the total absence of a motive will be of
no consequence.”
118. Further, the Ld. Counsel for the Appellant has also relied on Murli v/s
The State of Rajasthan64, Madaiah v/s State by Yelandur Police 65 and
Rohidas Manik Kasrale v/s The State of Maharashtra 66. Through these
judgments, it has been contended that, in case of murder, if a confession is
made by the accused to the police, then such an explanation regarding the
motive or provocation must be taken into consideration for reduction of
sentence or establish self-defense. We do not find these judgments to be
applicable in the facts of the present case.
119. Having considered the entire evidence on record and overall
conspectus of the matter, we are of the opinion that the present case rests
64 1995 SUPP (1) SCC 39
65 1991 SCC OnLine Kar 572
66 2011 SCC OnLine Bom 1587
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entirely on circumstantial evidence, since there are no eyewitnesses or direct
evidence to the actual commission of the offence of murder. As noted above,
it is well settled that in such cases, the chain of circumstances must be
complete and cogent and must unerringly point towards the guilt of the
accused and exclude every other reasonable hypothesis. Additionally, as
affirmed by the Hon’ble Apex Court in Anand Jakkappa Pujari (supra), the
prosecution has to prove its case beyond reasonable doubt and a case that
‘may be true’ is not sufficient, rather it ‘must be true’ in order to exclude
every other hypothesis. This Court is of the view that the prosecution has
proved itself inadequate in meeting the said standards in the present case as
far as the homicidal death of the deceased qua the Appellant is concerned.
120. The law places a stringent burden upon the prosecution in cases
founded on circumstantial evidence. It is incumbent upon the prosecution to
establish each incriminating circumstance beyond reasonable doubt and to
connect such circumstances so as to form a complete, continuous and
unbroken chain. Unless every link in the chain is satisfactorily proved, the
Court cannot draw an inference of guilt. A missing or doubtful link creates a
reasonable doubt in the prosecution case, rendering it unsafe to record a
conviction and that failure to prove even a single circumstance cogently can
cause a snap in the chain of circumstances. This principle has been laid
down in Darshan Singh v/s The State of Punjab 67. The relevant paragraph is
stated as below:
67[2024] 1 S.C.R. 248
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consider the evidence qua other circumstances sought to be
proved by the prosecution since the failure to prove a single
circumstance cogently can cause a snap in the chain of
circumstances. There cannot be a gap in the chain of
circumstances. When the conviction is to be based on
circumstantial evidence solely, then there should not be any
snap in the chain of circumstances. If there is a snap in the
chain, the accused is entitled to benefit of doubt. If some of the
circumstances in the chain can be explained by any other
reasonable hypothesis, then also the accused is entitled to the
benefit of doubt. [See: Bhimsingh Vs. State of Uttarakhand,
(2015) 4 SCC 281.]”
121. The prosecution has failed to establish, beyond reasonable doubt,
several material incriminating circumstances which were intended to
constitute the essential links in the chain of circumstantial evidence against
the Appellant for the offence of murder. The circumstances of the Appellant
and the deceased being last seen together, the recovery of the weapon of
offence, namely the knife, and the recovery of blood-stained articles from
Room No. 224 have not been satisfactorily proved to point towards the guilt
of the Appellant with regards to the commission of murder. Significantly,
although blood stains were detected on the articles recovered from the said
room, the same does not constitute an incriminating circumstance against
the Appellant, in the peculiar facts of this case. Therefore, these
circumstances do not lend assurance to the prosecution case. This Court is
consequently unable to hold that the evidence on record forms a complete
and unbroken chain, leading only to the hypothesis of the Appellant’s guilt.
On the contrary, the Call Detail Record (CDR) evidence of the deceased,
produced by the prosecution itself discloses the presence of an unidentified
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third person at the relevant location during the material time on the evening
of the incident. The possibility of intervention by a third person, therefore,
remains a plausible alternative hypothesis which cannot be excluded. In a
case resting solely on circumstantial evidence, such a lacuna assumes
considerable significance.
122. On a cumulative consideration of the aforementioned circumstances,
the case of the prosecution raises a grave suspicion on the Appellant, with
respect to the murder of the deceased. However, it has not been shown to be
‘must be true’ to the exclusion of every other reasonable hypothesis. The
chain of circumstances is incomplete and the link is snapped and hence the
benefit of doubt must accordingly enure to the Appellant. It is a settled
principle of criminal jurisprudence that suspicion, however grave, cannot
take the place of legal proof. In the absence of unimpeachable evidence
establishing the involvement of the accused in the commission of murder,
this Court deems it fit to extend the benefit of doubt to the accused insofar
as the offence punishable under Section 302 of the IPC is concerned.
Accordingly, the Appellant stands acquitted of the charge under Section 302
of the IPC.
123. However, the evidence on record unequivocally establishes that
subsequent to the occurrence of the offence of murder, the Appellant
undertook acts to conceal and dispose material evidence connected with the
commission of the offence and the prosecution has been able to prove and
establish each and every link so far as the destruction of the evidence by the
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Appellant is concerned.
124. In such peculiar circumstances, it is beneficial to take note of the
observations pertaining to Section 201 of the IPC, as stated by this Hon’ble
Court in Satish Purshottam Girhe v/s The State of Maharashtra And
Others68:
“18. The Hon’ble Apex Court further observes that having
regard to the language used, mere suspicion would not be
sufficient. There must be available on record cogent
evidence that the accused has caused the evidence to
disappear in order to screen another known or unknown.
The fore-most necessity being that the accused must have
the knowledge or have reason to believe that such an
offence has been committed. This observation finds
support in the earlier decision Palvinder Kaur v/s State of
Punjab (AIR 1952 SC 354) and in Roshan Lal v/s State of
Punjab (AIR 1965 SC 1413) wherein the observation are
as follows:
“(12) Section 201 is somewhat clumsily drafted, but we
think that the expression knowing or having reason to
believe in the first paragraph and the expression ‘knows
or believes’ in the second paragraph are used in the same
sense. Take the case of an accused who has reason to
believe than an offence has been committed. If the other
conditions of the first paragraph are satisfied, he is guilty
of an offence under S.201. If it be supposed that the word
‘believes’ was used in a sense different from the
expression ‘having reason to believe’, it would be
necessary for the purpose of inflicting punishment upon
the accused to prove that he ‘believes’ in addition to
‘having reason to believe’. We cannot impute to the
legislature an intention that an accused who is found
guilty of the offence under the first paragraph would
escape punishment under the succeeding paragraphs
unless some additional fact or state of mind is proved.”
125. Before adverting to Section 201 of IPC, it will be advantageous
to reproduce Section 201 for quick reference
Section 201. Causing disappearance of evidence of offence,
68Cr. Revision Application No. 154 of 2024
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or giving false information, to screen offender
Whoever, knowing or having reason to believe that an
offence has been committed, causes any evidence of the
commission of that offence to disappear, with the
intention of screening the offender from legal
punishment, or with that intention gives any information
respecting the offence which he knows or believes to be
false,
if a capital offence.–shall, if the offence which he knows
or believes to have been committed is punishable with
death be punished with imprisonment of either
description for a term which may extend to seven years,
and shall also be liable to fine;
if punishable with imprisonment for life.–and if the
offence is punishable with 1[imprisonment for life], or
with imprisonment which may extend to ten years, shall
be punished with imprisonment of either description for a
term which may extend to three years, and shall also be
liable to fine;
if punishable with less than ten years imprisonment.–
and if the offence is punishable with imprisonment for
any term not extending to ten years, shall be punished
with imprisonment of the description provided for the
offence, for a term which may extend to one-fourth part
of the longest term of the imprisonment provided for the
offence, or with fine, or with both.
126. On the charge of Section 201 IPC, it will also be advantageous to take
into consideration the essential requirements to bring home the offence
under the said charge. This Court finds it necessary to refer to the Hon’ble
Supreme Court’s verdict in Palvinder Kaur v/s The State of Punjab69:
“….In order to establish the charge under Section 201, Indian
Penal Code. it is essential to prove that an offence has been
committed-mere suspicion that it has been committed is not
sufficient, that the accused knew or had reason to believe that
such offence had been committed- and with the requisite-
knowledge and with the intent to screen the offender from legal
punishment causes the evidence thereof to disappear or gives
false information respecting such offences knowing or having
reason to believe the same to be false.”
69 1952 AIR 354
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127. In the present case, for bringing home a charge under Section 201 of
the Indian Penal Code, the prosecution is required to establish: (i) that an
offence has in fact been committed; and (ii) that the accused knew or had
reason to believe that such offence had been committed, and thereafter
caused the disappearance of evidence or furnished false information with
the intention of screening the offender from legal punishment. Upon the
appreciation of the evidence on record, this Court is satisfied that the
prosecution has conclusively established that the death of the deceased was
homicidal in nature. The medical and other attendant circumstances leave
no manner of doubt that an offence of murder had been committed. The
testimony of the eye-witnesses i.e. P.W. 2 and P.W. 6, further establishes
that the Appellant was seen dumping the torso of the deceased into Charai
talao. Such conduct is not a mere neutral circumstance; but a highly
incriminating circumstance demonstrating that the Appellant possessed
knowledge and had reason to believe that a serious offence had been
committed. The circumstances proved on record reasonably lead to the
inference that the Appellant possessed knowledge regarding the commission
of the homicidal act and acted in a manner intended to conceal the offence
and screen the person responsible for the murder from the consequences of
law. Accordingly, the evidence on record, is sufficient to prove beyond
reasonable doubt that the Appellant, having knowledge or reason to believe
that the offence of murder had been committed, participated in the
concealment of the offence by disposing off the torso with the intention of
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screening the offender, thereby attracting the provisions of Section 201 IPC.
128. The question then arises, whether the conviction under Section 201 of
the IPC can be sustained even when a conviction under Section 302 of the
IPC has not been recorded. The reason why this present case gains further
peculiarity is because there is only one accused (the Appellant) who is
charged for offences under both, Section 302 and Section 201 of the IPC, in
relation to the said offence. It is under consideration before us, the question,
whether the Appellant can be selectively convicted under Section 201 of the
IPC while disbelieving the circumstantial evidence as led by the prosecution,
thereby acquitting him for the offence under Section 302 of the IPC.
129. In order to adequately answer this pertinent question, a profitable
reference can be made to a judgment of the Apex Court in the case of State
of Karnataka v/s Madesha and Ors.70. The relevant para is stated as follows:
“9. It is to be noted that there can be no dispute that Sec.201
would have application even if the main offence is not established
in view of what has been stated in V.L. Tresa’s (supra)……”
130. This position of law is clarified, as is observed in the above-mentioned
judgment, that the lack of establishment of the primary offence cannot
undermine the applicability of Section 201 of the IPC.
131. The issue of applicability of Section 201 of the IPC in the given
circumstance that the main offence is not proved by the prosecution, has
70 (2007) 7 SCC 35
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been elaborately addressed in Ram Saran Mahto v/s The State of Bihar 71.
The relevant portions are as follows:
“It is not necessary that the offender himself should have been
found guilty of the main offence for the purpose of convicting
him of offence under Section 201. Nor is it absolutely necessary
that somebody else should have been found guilty of the main
offence. Nonetheless, it is imperative that prosecution should
have established two premises. First is that an offence has been
committed and second is that the accused knew about it or he
had reasons to believe the commission of that offence. Then
and then alone the prosecution can succeed, provided the
remaining postulates of the offence are also established.”
……..
“It is well to remind that the Bench gave a note of caution that
the court should safeguard itself against the danger of basing its
conclusion on suspicions however strong they may be. In
Kalawati and Anr. v. The State of Himachal Pradesh, [1953]
SCR 546 a Constitution Bench of this Court has, no doubt,
convicted an accused under Section 201 IPC even though he
was acquitted of the offence under Section 302. But the said
course was adopted by this Court after entering the finding that
another accused had committed the murder and the appellant
destroyed the evidence of it with full knowledge thereof. In a
later decision in Nathu and Anr. v. State of Uttar Pradesh,
[1979] 3 SCC 574 this Court has repeated the caution in the
following words:
“Before a conviction under Section 201 can be recorded, it
must be shown to the satisfaction of the court that the accused
knew or had reason to believe that an offence had been
committed and having got this knowledge, tried to screen the
offender by disposing of the dead body.”
In this context a reference to a more recent decision of this
Court would be apposite. The following observations of the
Bench in Hanuman and Ors. v. State of Rajasthan, [l 994]
Supple. 2 SCC 39 are relevant:
“The mere fact that the deceased allegedly died an unnatural
death would not be sufficient to bring home a charge under
Section 201 IPC, unless the prosecution was further able to
establish that the accused persons knew or had reason to
believe that an offence had been committed, causing the
evidence of the commission of the offence to disappear.”
132. This Court draws significant parallels between the case of V.L. Tresa
71 SCR [1999] SUPP 2
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v/s The State of Kerala72 and the present case, both on facts as well as the
points of law under consideration. A perusal of the relevant paragraph
reproduced here, makes it clear:
“18. In the contextual facts, the situation however, is slightly
different since the wife alone could explain the death of the
husband in the manner as noted above. The crowbar was not
available for few days and it is a subsequent discovery and on a
further search, the crowbar contained human blood which has
been proved to be that of the deceased. Both the Sessions Judge
and the High Court have categorically disbelieved the evidence
of the wife and it is in this regard, it cannot but be said that the
falsity of information given by the accused cannot but warrant a
punishment under 201 since information regarding the incident
was available only with the accused and there was a deliberate
attempt to screen the offender from legal punishment by way of
providing false information regarding the offence.”
133. The facts of the present case bear a resemblance to the facts which fell
for consideration in V.L. Tresa v/s State of Kerala (supra) . In the above
mentioned case, it was established by the prosecution that the death of the
deceased was homicidal in nature. However, the evidence on record fell
short of proving, beyond reasonable doubt, that it was the accused, who had
committed the act of causing the fatal injury. Consequently, the chain of
circumstances was held insufficient to sustain a conviction for the offence
punishable under Section 302 of the IPC. Nevertheless, if the fatal injury
was inflicted by somebody else, not being the accused, the accused was liable
to possess special knowledge of the same as she was the only person in the
house except their infant child who was asleep at the time of incident. It was
also taken into consideration that the accused, told others, that the deceased
72(2001) 3 SCC 549
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was trying to commit suicide. The weapon (crowbar) was not found for
several days and was later recovered with human blood which was later
proved to be that of the deceased. Therefore, the court held that these
circumstances warranted a punishment under Section 201 of the IPC as the
information was only available with the accused and there was a deliberate
attempt to screen the offender from legal punishment by providing false
information about the offence. Accordingly, the accused was held guilty
under Section 201 of the IPC. The factual matrix of the present case
demonstrates that the accused possessed knowledge of the death of the
deceased and the circumstances in which the deceased met with a homicidal
death. The prosecution has conclusively established, and this Court has
already held, that the accused was the very person seen carrying and then
disposing of the black-coloured plastic bag containing the torso of the
deceased. Once the identity of the accused as the person disposing of the
deceased’s torso stands established, it is wholly untenable for him to plead
ignorance as to the contents of the bag. In the ordinary course of human
conduct, it can safely be inferred that a person who knowingly carries and
disposes of a bag containing the dismembered torso of a deceased individual
is fully aware of its contents and the incriminating nature thereof. The
conduct of the accused, viewed in conjunction with the evidence on record,
further reveals that he deliberately acted in a calculated manner to conceal
material evidence relating to the commission of the offence and thereby
attempted to screen the person responsible for the murder from legal
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punishment. Such conduct squarely attracts the ingredients of Section 201
of the Indian Penal Code. The Appellant upon being asked by P.W. 2 and
P.W. 6 about the contents of the bag, persistently claimed it to be havan
articles that need to be put into the Charai Talao, which was obviously for
causing destruction of the evidence. Therefore, his conduct was
incriminating as he continued to provide false information regarding the
offence with the intention to screen the offender and for destruction of
evidence.
134. However, upon the analysis of the evidence in its entirety, it cannot be
ascertained, for sure, if the accused was the person who caused the death of
the deceased. The ratio laid down by the above mentioned case squarely
applies to the present case. The Supreme Court categorically held that even
where the prosecution fails to establish that the accused himself committed
the murder, the deliberate furnishing of false information concerning an
offence, coupled with conduct intended to shield the offender from legal
punishment, would attract the ingredients of Section 201 of the IPC. The
gravamen of the offence under Section 201 IPC, is not the identity of the
offender but the knowledge of the accused or reason to believe that an
offence has been committed and his intentional act of causing the
disappearance of evidence or giving false information with the object of
screening the offender.
135. Similarly, in the present case, while this Court is not persuaded that
the prosecution has proved beyond reasonable doubt that the accused-
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appellant was the perpetrator of the homicidal death, so as to uphold
conviction under Section 302 of the IPC, however the evidence on record
unequivocally establishes that the accused was fully aware and had reason to
believe, as to who had caused the death of the deceased. Instead of
disclosing the true facts, the accused consciously furnished false information
and adopted such a conduct intended to conceal the offence and protect the
offender from the consequences of law. This conduct is sufficient to attract
the guilt under Section 201 of the IPC.
136. Therefore, we conclude by stating that the acquittal under Section 302
of the IPC does not ipso facto result in acquittal under Section 201 of the
IPC. Once it is proved that an offence was committed and the accused
knowingly caused disappearance of evidence with the intention of screening
the offender, conviction under Section 201 of the IPC can be sustained
irrespective of the failure to prove the charge under Section 302 of the IPC.
Merely because the prosecution has failed to prove beyond reasonable doubt
that the Appellant himself committed the murder, does not automatically
exonerate him from criminal liability under Section 201 of the IPC.
137. Thus, taking into consideration the entire evidence on record, we are
of the considered opinion that the prosecution has failed to prove the
offence under Section 302 of the IPC. However, we hold that the prosecution
has proved the offence under Section 201 of the IPC and accordingly we
confirm the conviction of the Appellant under Section 201 of the IPC.
138. The conviction under Section 201 of the IPC and the sentence for a
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period of two years is upheld as awarded by the Trial Court, in the absence
of any cross appeal by the State.
139. Accordingly, the Appeal is partly allowed.
140. The Ld. Counsel for the Appellant has informed this Court that the
Appellant has already undergone and served the sentence for a period of
almost 13 years and therefore the Appellant, having undergone the
punishment for the offence under section 201 of the IPC, for which he is
convicted, shall be released forthwith unless he is required in any other case.
141. The Appellant shall within a period of one week from the date of the
order execute P R Bond in the sum of Rs. 25000/- under section 481 of the
Bhartiya Nagrik Suraksha Sanhita, 2023 ( corresponding to Section 437A of
the Cr.PC) for his appearance, in the event an appeal is preferred against
acquittal for the offence under section 302 of the Indian Penal Code.
142. Thus, the Appeal is disposed of in above terms and all other pending
applications also stand disposed of.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)
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