Vrishal Madhukar Kalane vs The State Of Maharashtra And Anr.

2026:BHC-AS:23086-DB
Sayali Sawant/Sagar APL-169-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 169 OF 2018
WITH
INTERIM APPLICATION NO. 4770 OF 2024
Vrishal Madhukar Kalane
R/o. Rudra Shivalay Society
Building No.E-4, Bhekrainagar
(Rupinagar), Phursungi,
Tal. Haveli, Dist. Pune
Presently in Yerwada Central Jail, Pune. … Appellant
(Original Accused No.2)
V/s.
1. The State of Maharashtra
(at the instance of Hadapsar Police Station, Pune)
2. Mr. Ajit Suryakant Bankar
Age: 43 years, Occ.: Service
R/o. E-8, Rudrashivalay Society
Building No.E-4, Bhekrainagar
(Rupinagar), Fursungi,
Tal. Haveli, Dist. Pune … Respondents
______________________
Ms. Rupa J. Singh i/b Mr. Rajesh More, Advocate for the Appellant.
Mr. Ashish I. Satpute, A.P.P. for Respondent No.1- State.
Mr. Abhishek R. Avachat, Appointed Advocate by Legal Aid for the Respondent
No.2. ______________________
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CORAM : A. S. GADKARI AND
RANJITSINHA RAJA BHONSALE, JJ.
th
RESERVED ON : 19 SEPTEMBER 2026.
th
PRONOUNCED ON : 9 JUNE 2026.
JUDGMENT : [Per: RANJITSINHA RAJA BHONSALE, J]
1) Criminal proceedings/trials, in which a conviction is based on
circumstantial evidence, the possibility of the conviction being partly based on
surmises or conjecture or even strong suspicion cannot be ruled out and the
possibility of the surmises or conjecture taking the place and taking over legal
evidence and proof is a lurking possibility. It is, therefore apt, to be reminded
by, cautioned and guided by the following observation,
in R. v. Hodge [ R. v. Hodge , (1838) 2 Lew 227 : 168 ER 1136] that:-
“The mind was apt to take a pleasure in adapting circumstances to
one another, and even in straining them a little, if need be, to
force them to form parts of one connected whole; and the more
ingenious the mind of the individual, the more likely was it,
considering such matters, to overreach and mislead itself, to
supply some little link that is wanting, to take for granted some
fact consistent with its previous theories and necessary to render
them complete.”
2) The present Appeal, deals with a conviction, based on
circumstantial evidence which is sought to be challenged by the Appellant i.e
Original Accused No.2. The Appellant has preferred the present Appeal,
st
challenging the Judgment and Order of conviction dated 1 September 2017,
passed by the learned Special Judge in Special Case No. 328 of 2014 filed
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under the Protection of Children from Sexual Offences Act, 2012, whereby the
Appellant is convicted under Section 363 of the Indian Penal Code, 1860 and
sentenced to suffer rigorous imprisonment for five years. The Appellant,
further seeks to challenge his conviction, for the offence punishable under
section 302 of the Indian Penal Code, 1860, whereby he has been sentenced
to suffer rigorous imprisonment for life and to pay fine of Rs.1,00,000/- (Rs.
One Lakh Only) and in default suffer simple imprisonment for two years. The
Order directs, the fine amount if realized from Appellant, be paid to the
informant Mr. Ajit Bankar, as a compensation under section 357(1)(b) of
Criminal Procedure Code, 1973. Respondent No. 2 in the present Appeal, is
the Original Complainant.
3) Briefly stated, the prosecution case, as alleged is as under.
3.1) Mr. Ajit Bankar (P.W.1) resided with his wife Anita, daughter and
his 9 year old victim son, at E-8, Rudra Shivalay Society, Bhekrai Nagar,
Fursungi, Tal-Haveli, Dist-Pune. Appellant (Original Accused No.2), Madhukar
Sopan Kalane (Original Accused No.1/Appellant’s father) and Nalini
Madhukar Kalane (Original Accused No.3/Appellant’s mother) were residing
in flat No. E-4 in the same society and building. All accused being residents of
the same society were known to the Complainant.
3.2) Mr. Ajit Bankar (P.W.1) and his wife Anita were a working couple.
The school timings of daughter Manali, were from 12.30 p.m. to 5.30 p.m and
that, of the victim son, were 7.20 a.m. to 2.20 p.m. The victim son, returned
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home from school, at about 2.20 p.m. and would inform his father P.W. No.1
about his return. The victim son was instructed to take the keys from
neighbour Mrs. Rupali Choudhary (P.W.4). In the presence of P.W.4, victim son
would open the door of the house and enter into it. The victim son was
instructed not to open the door unless the person is known. That, the victim
son remained alone at home till 5.30 p.m, when his mother would return from
work. This routine of the victim son, was known to the residents of the
Society.
th
3.3) On 27 August 2014, victim returned from school, took the keys
of his house from P.W.4. That, in the presence of P.W.4, he entered the house
and closed the door. That, victim on informing PW No.1 that, he had reached
home, was instructed to remain in the house and study. That, victim informed
P.W.1 that, he was watching TV.
3.4) That, at about 5.00 p.m. when the wife of P.W.1/mother of victim
son returned home, she noticed that, the door of their house was open, TV
was on and victim son was missing. She immediately informed P.W.1, who
came home and tried to trace victim son but to no avail. P.W.4 also made
efforts to trace the victim/son.
3.5) That, when P.W.4 went to take the assistance of Accused No.2 i.e.
the Appellant, Original Accused No. 3 informed her that, the Appellant is in
the midst of repairing a TV and would participate in the search once he is
finished the job. As P.W.1 could not find his son, he lodged report of
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kidnapping by unknown person with Hadapsar Police Station, Pune.
3.6) That, Original Accused No.3 despite knowing the situation did
not come to the house of P.W.1 and was only observing the events. P.W.1,
termed this as an abnormal behavior on the part of Original Accused No.3.
That, the Accused family allegedly had some disputes with society members
on account of damage/tearing of the cover of rickshaw of Accused No.1.
th
3.7) That, on 28 August 2014, at about 4.30 a.m., P.W.4 had seen
Accused No.1 and the Appellant physically pushing their rickshaw towards the
road without plying/starting the rickshaw. P.W.4 viewed the act of physically
pushing the rickshaw early in the morning instead of starting it, as an
abnormal/suspicious act and therefore, narrated said fact to P.W.1. Based on
the said fact, suspicion arose, that the Accused family must be involved in the
act/offence. The said facts were informed to the police officer, who
investigated the matter and after verifying the facts, arrested the accused
persons.
3.8) That, Original Accused No.1 made disclosure statement and in
consonance with the same the dead body of victim was discovered. The
Investigating officer arrested the Appellant who gave statement and in
consonance of the same, handkerchief, tub, TV remote and blood etc. from the
floor of the house of Accused Nos.1 to 3 were recovered. The prosecution
alleges that, Appellant kidnapped deceased victim, tried to perform carnal
intercourse with him, which was resisted. That, Appellant upon facing
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resistance put the mouth of deceased victim in water tub and when the
deceased victim became unconscious, he performed carnal intercourse with
the deceased victim and then caused his death. That, original Accused Nos. 1
along with the Appellant caused to dispose off body by throwing it in Bopdeo
Ghat. The dead body of deceased victim was discovered at the instance of
Original Accused No.1.
3.9) Upon completing the investigation, chargesheet was filed against
all accused. The charge was framed below (Exhibit-4) under section 363, 302,
377, 201 read with 34 of the Indian Penal Code and sections 4, 5 (1) and 6 of
POCSO Act. That,accused persons pleaded not guilty and claimed to be tried.
4) Nine witnesses were examined by the Prosecution, as detailed
herein under.
Sr.No Particulars Nature of Witness Exhibit No.
1 P.W.1 Ajit Bankar Complainant Exh. No.36
2 P.W.2 Raju Choudhary Spot panch Exh.No.44
3 P.W.3 Sambhaji Bharti Panch witness Exh.No.50
4 P.W.4Rupali Choudhary Neighbour Exh.No.53
5 P.W.5 Prakash Patil Eye witness/Last saw
Exh. No.55
accused
6 P.W.6 Arun Mahapure Recovery panch Exh.No.56
7 P.W.7 Vikram Jadhav Spot Panch Exh.No.65
8 P.W.8 Abhishek Kumar Doctor who conducted
Exh.No.70
post mortem
9 P.W.9 Varsharani Patil Investigating Officer Exh.No.81
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4.1) The Prosecution relies upon the Spot Panchanama (Exh-42),
recovery from Appellant (Exh-45, 57), recovery from original Accused No.1
(Exh-51), Inquest Panchanama (Exh-67), Post Mortem Report (Exh-71), RTO
details of Auto rickshaw (Exh.-87), Birth Certificate of victim at Exh-96 and
missing complaint at Exh-82, Forensic Laboratory Reports (Exh-10,13 and 14).
5) The Appellant did not lead any defense evidence. The Appellant,
in his statement recorded under Section 313 of CrPC (Exh-103) denied all the
allegations. The defense, is that of false implication, at the instance of society
members. It is his case that, he was beaten up at the instance of the
Investigating agency and a false disclosure statement is shown to implicate
him.
6) Only the present Appellant, has preferred an Appeal. The Original
Accused No.1, though convicted under Section 201 of the Indian Penal Code
did not prefer an Appeal. The Original Accused No.3 has been acquitted of all
the charges.
7) We have heard Ms. Rupa J. Singh, learned Advocate for
Appellant. Mr. Ashish I. Satpute, APP for the State and Mr. Abhishek R.
Avachat, Advocate appointed by Legal Aid for the Respondent No.2/Original
Complainant. We have perused the entire record.
8) Ms. Rupa J. Singh, learned Advocate appearing for the Appellant,
submitted that, the present case is based on circumstantial evidence and her
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endeavor would be to point out and demonstrate that, the prosecution has
failed to prove the complete chain of circumstantial evidence. In support of
her contention, she would submit that, certain vital facts and circumstances,
which go to the root of the matter have not been established/proved by the
prosecution. That, due to the failure to prove each and every circumstance,
the entire case of the prosecution has become doubtful. It is not proved
beyond reasonable doubt. That, the chain of circumstances has
broken/snapped at critical points of evidence.
9) In support of her contentions, the learned advocate for the
Appellant, inter alia relied on judgments of Hon'ble Supreme Court, as
under:-
9.1) The case of Ganpat Singh Vs. State of Madhya Pradesh reported
in AIR 2017 SC 4839 , to contend that, every link in the chain of circumstances
necessary to establish the guilt of the accused must be established by the
prosecution beyond reasonable doubt and all the circumstances must be
consistent only with the guilt of the accused.
9.2) The case of Pannayar Vs. State of Tamil Nadu by Inspector of
Police reported in (2009) 9 Supreme Court Cases 152 , to contend that, if the
prosecution is unable to establish motive which can be attributable to the
accused, the benefit thereof ought to be given to the accused.
9.3) The case of Shivaji Chintappa Patil Vs. State of Maharashtra
reported in (2021) 5 Supreme Court Cases 626 , to contend that a non-
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explanation or false explanation of circumstances can only be used as
additional circumstance, when prosecution has proved the complete chain of
circumstances leading to no other conclusion other than the guilt of accused
beyond reasonable doubt. That, motive especially in a case of circumstantial
evidence, plays an important link to complete the chain of circumstances.
10) On the other hand, Mr. Ashish I. Satpute, learned APP appearing
for the State submitted that:-
10.1) The prosecution has successfully proved the case on the basis of
circumstantial evidence. That, each fact/link has been independently
established and when taken together cumulatively establishes chain of
circumstances beyond reasonable doubt and points only at the guilt of the
Appellant.
10.2) Motive for the said offence was previous fight/quarrel which the
Appellant’s family had with the members of the society. That, 6 to 7 months
prior the incident someone had torn the roof of the auto-rickshaw owned by
the Appellants family, at which time accused No.1 had a quarrel with the
wards and their guardians in the society. Therefore, members of the society
including PW No.1 and his family were not in the talking terms with the
Accused persons. That, even if motive is not established, the chain of
circumstantial evidence is otherwise completely established and proved.
10.3) P.W.2 is the panch for the spot panchanama. Blood was extracted
from floor of the house of Appellant. The body of the deceased, was recovered
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at the instance of original accused No.1. The same is proved by P.W.3. The
conviction of accused No.1 under Section 201 has attained finality and
accused No.1 has undergone the sentence. In view thereof, discovery of the
dead body, cannot now be faulted.
10.4) That, through P.W No.1 it is proved that Appellant and deceased
were in talking terms. That,Appellant gave colour beads to the deceased for
inserting the same in the cord of his cycle.
10.5) Under Section 106 of the Evidence Act, when a fact is within the
knowledge of a person, the burden of proving the said fact is on the said
person and if not proved an adverse inference can be drawn. That, it was on
the Appellant to explain as to how the blood stains, gunny bag, TV remote etc
were found in the house. That, the Appeal ought to be dismissed.
10.6) In support of his contention, the learned APP relied upon and
cited following judgments namely (i) Trimukh Maroti Kirkan Vs. State of
Maharashtra reported in 2006 AIR SCW 5300; (ii) State of Rajasthan Vs.Kashi
Ram reported in AIR 2007 Supreme Court 144;(iii) Subhash Aggarwal Vs.
The State of NCT of Delhi in @ Special Leave Petition (Crl.) No.1069 of 2025;
and (iv) Abdul Nassar Vs. State of Kerala and Anr in Criminal Appeal
No(s).1122-1123 of 2018.
11) Mr. Abhishek R. Avachat, learned Advocated appointed to
represent Respondent No. 1 adopted the arguments of learned APP. He further
submitted that, the prosecution has successfully proved the entire chain of
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circumstances beyond reasonable doubt. He submitted that, the trial Court has
rightly convicted the Appellant. That, there is no error in the impugned
judgment. Mr. Avachat therefore submitted that, the Appeal be dismissed.
12) Considering the submissions made and keeping in mind the fact
that, the present criminal prosecution is based and proceeded on the basis of
circumstantial evidence, in our opinion, the following principles of law, would
be relevant and required to be considered, while deciding the present appeal
i.e absence of motive; effect of Section 106 of the Evidence Act; applicability
of the principle of benefit of doubt and the law relating to circumstantial
evidence.
13) The law related to a case based on circumstantial evidence, and
aspects relevant to decide a case based solely on circumstantial evidence has
evolved, developed and is now well settled. In case related to and based on
circumstantial evidence, it is important and necessary, to consider as to
whether there was a motive for the accused to commit the alleged crime. If
absent, the effect of absence of motive and whether any benefit accrues to the
accused and to what extent are all factors that are required to be considered.
Further, one needs to consider as to when and to what extent the principles of
benefit of doubt apply to a case based on circumstantial evidence. One needs
to consider, in what circumstances, case under circumstantial evidence would
made out and proved in the absence of motive. One also needs to consider the
circumstances under which the non-explanation of facts within the knowledge
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of an accused can be used against the accused.
14) We shall now proceed to consider the law on the aforenoted
points.
14.1) The Hon’ble Supreme Court in the case of State of Rajasthan
Vs.Kashi Ram reported in AIR 2007 Supreme Court 144 , in paragraph 23 has
observed that :-
“23…. when any fact is especially within the knowledge of any person,
the burden of proving that fact is upon him. For example, if the person
is last seen with deceased, he must offer an explanation as to how and
when he parted company. Such explanation if proper and satisfactory
leads to the conclusion that he has discharged the burden. If he fails to
offer the explanation for facts within his special knowledge he fails to
discharge the burden cast upon him under Section 106 of the Evidence
Act.”.
14.2) The Hon’ble Supreme Court in the case of Shivaji Chintappa Patil
Vs. State of Maharashtra reported in (2021) 5 Supreme Court Cases 626, has
observed that:
“25. It is well-settled principle of law, that false explanation or non-
explanation by the accused can only be used as additional
circumstance, when prosecution has proved chain of circumstances
leading to no other conclusion than guilt of accused.
27. Though in a case of direct evidence, motive would not be
relevant, in a case of circumstantial evidence, motive plays an
important link to complete the chain of circumstances......”

14.3) The Hon’ble Supreme Court in the case of Pannayar Vs. State of
Tamil Nadu by Inspector of Police reported in (2009) 9 Supreme Court Cases
152, has observed that:
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“28. The absence of motive in the case which depended on
circumstantial evidence is more favourable to the defence.”
14.4) The Hon’ble Supreme Court in the case of Bipin Kumar Mondal
V/s State of West Bengal , reported in (2010) 12 SCC 91 has observed that :-
“23. In Shivji Genu Mohite Vs. State of Maharashtra, AIR 1973 SC 55,
this Court held that in case the prosecution is not able to discover an
impelling motive, that could not reflect upon the credibility of a witness
proved to be a reliable eye-witness. Evidence as to motive would, no
doubt, go a long way in cases wholly dependent on circumstantial
evidence. Such evidence would form one of the links in the chain of
circumstantial evidence in such a case. But that would not be so in cases
where there are eye-witnesses of credibility, though even in such cases if
a motive is properly proved, such proof would strengthen the
prosecution case and fortify the court in its ultimate conclusion. But
that does not mean that if motive is not established, the evidence of an
eye-witness is rendered untrustworthy.
24. It is settled legal proposition that even if the absence of motive as
alleged is accepted that is of no consequence and pales into
insignificance when direct evidence establishes the crime. Therefore, in
case there is direct trustworthy evidence of witnesses as to commission
of an offence, the motive part loses its significance. Therefore, if the
genesis of the motive of the occurrence is not proved, the ocular
testimony of the witnesses as to the occurrence could not be discarded
only by the reason of the absence of motive, if otherwise the evidence is
2
worthy of reliance. (Vide Hari Shankar Vs. State of U.P., . Vs. State of
3 4
Bihar and Abu Thakir & Ors. Vs. State of Tamil Nadu .
25. In a case relating to circumstantial evidence, motive does assume
great importance, but to say that the absence of motive would dislodge
the entire prosecution story is giving this one factor an importance
which is not due. Motive is in the mind of the accused and can seldom
be fathomed with any degree of accuracy. (Vide Ujagar Singh Vs. State
5
of Punjab .
26. While dealing with a similar issue, this Court in State of U.P. Vs.
6
Kishanpal & Ors., held as under:
"The motive may be considered as a circumstance which is
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relevant for assessing the evidence but if the evidence is clear and
unambiguous and the circumstances prove the guilt of the
accused, the same is not weakened even if the motive is not a very
strong one. It is also settled law that the motive loses all its
importance in a case where direct evidence of eyewitnesses is
available, because even if there may be a very strong motive for
the accused persons to commit a particular crime, they cannot be
convicted if the evidence of eyewitnesses is not convincing. In the
same way, even if there may not be an apparent motive but if the
evidence of the eyewitnesses is clear and reliable, the absence or
inadequacy of motive cannot stand in the way of conviction."
11
32. In Namdeo Vs. State of Maharashtra , this Court reiterated the
similar view observing that it is the quality and not the quantity of
evidence which is necessary for proving or disproving a fact. The legal
system has laid emphasis on value, weight and quality of evidence
rather than on quantity, multiplicity or plurality of witnesses. It is,
therefore, open to a competent court to fully and completely rely on a
solitary witness and record conviction. Conversely, it may acquit the
accused in spite of testimony of several witnesses if it is not satisfied
about the quality of evidence
33. In Kunju @ Balachandran Vs. State of Tamil Nadu12, a similar
view has been re-iterated placing reliance on various earlier judgments
13
of this court including Jagdish Prasad Vs. State of M.P., and Vadivelu
14
Thevar Vs. State of Madras .”
14.5) In the case of Subhash Aggarwal Vs. The State of NCT of Delhi
(supra) reliance is placed on paragraph 24, which read as under:-
“24. Motive remains hidden in the inner recesses of the mind of the
perpetrator, which cannot, often than ever, be ferreted out by the
investigation agency. Though in a case of circumstantial evidence, the
complete absence of motive would weigh in favour of the accused, it
cannot be declared as a general proposition of universal application
that, in the absence of motive, the entire inculpatory circumstances
should be ignored and the accused acquitted.”
14.6) In the case of Nandu Singh v. State of Madhya Pradesh (now
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7
Chhattisgarh) , reported in Criminal Appeal No. 285 of 2022 has observed
that:-
"10. In a case based on substantial evidence, motive assumes great
significance. It is not as if motive alone becomes the crucial link in the
case to be established by the prosecution and in its absence the case of
Prosecution must be discarded. But, at the same time, complete
absence of motive assumes a different complexion and such absence
definitely weighs in favour of the accused."
14.7) The Hon’ble Supreme Court in the case of Dharambir Singh v.
State of Punjab (Cri. Appeal. No. 98 of 1958), reported in 1958 SCC OnLine
SC 1 has observed that, motive alone in cases of circumstantial evidence
though relevant is not enough to dispense with the proof of certain facts
which are essential to be proved in such cases.
14.8) The Hon’ble Supreme Court in the case of Hanumant v. State of
M.P, reported in (1952) 2 SCC 71 , has observed that:-
“12. 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. ….”
14.9) The Hon’ble Supreme Court in the case of M.G. Agarwal v. State
of Maharashtra, reported in 1962 SCC OnLine SC 22 , has observed that:
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“18. ….. It is a well-established rule in criminal jurisprudence that
circumstantial evidence can be reasonably made the basis of an
accused person's conviction if it is of such a character that it is wholly
inconsistent with the innocence of the accused and is consistent only
with his guilt. If the circumstances proved in the case are consistent
either with the innocence of the accused or with his guilt, then the
accused is entitled to the benefit of doubt. There is no doubt or dispute
about this position. But in applying this principle, it is necessary to
distinguish between facts which may be called primary or basic on the
one hand and inference of facts to be drawn from them on the other.
In regard to the proof of basic or primary facts, the court has to judge
the evidence in the ordinary way, and in the appreciation of evidence
in respect of the proof of these basic or primary facts there is no scope
for the application of the doctrine of benefit of doubt. The court
considers the evidence and decides whether that evidence proves a
particular fact or not. When it is held that a certain fact is proved, the
question arises whether that fact leads to the inference of guilt of the
accused person or not, and in dealing with this aspect of the problem,
the doctrine of benefit of doubt would apply and an inference of guilt
can be drawn only if the proved fact is wholly inconsistent with the
innocence of the accused and is consistent only with his guilt. It is in
the light of this legal position that the evidence in the present case has
to be appreciated.”
14.10) The Hon’ble Supreme Court in the case of Tufail v. State of
U.P., reported in (1969) 3 SCC 198, while reiterating and affirming the view
taken in Hanumant v/s State of M P, (Supra) , has observed in Paragraph 13
that, the circumstances in a case based on circumstantial evidence must be
fully established, form a complete chain, and be consistent only with the
hypothesis of the guilt of the accused, excluding every possible hypothesis of
innocence.
14.11) The Hon’ble Supreme Court in the case of Ram Gopal v.
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State of Maharashtra, reported in (1972) 4 SCC 625 , after referring to the
case of Hanumant v/s State of Madhya Pradesh (Supra) and affirming the
view taken therein has observed in Paragraph 14 & 15 that, courts must guard
against conjecture in circumstantial cases and ensure a complete chain of
conclusive facts.
14.12) The Hon’ble Supreme Court in the case of Chandmal and
Anr v/s State of Rajasthan, reported in (1976) 1 SCC 621, has observed
that;
“14. It is well settled that when a case rests entirely on circumstantial
evidence, such evidence must satisfy three tests. Firstly, the
circumstances from which an inference of guilt is sought to be drawn,
must be cogently and firmly established. Secondly, these circumstances
should be of a definite tendency unerringly pointing towards the guilt
of the accused. Thirdly, the circumstances, taken cumulatively, should
form a chain so complete that there is no escape from the conclusion
that within all human probability the crime was committed by the
accused and none else. That is to say, the circumstances should be
incapable of explanation on any reasonable hypothesis say that of the
accused’s guilt.”
14.13) The Hon’ble Supreme Court in the landmark case of Sharad
Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116, has
observed that:-
“151. It is well settled that the prosecution must stand or fall on its
own legs and it cannot derive any strength from the weakness of the
defence. This is trite law and no decision has taken a contrary view.
What some cases have held is only this: where various links in a chain
are in themselves complete, then a false plea or a false defence may be
called into aid only to lend assurance to the court. In other words,
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before using the additional link it must be proved that all the links in
the chain are complete and do not suffer from any infirmity. It is not
the law that where there is any infirmity or lacuna in the prosecution
case, the same could be cured or supplied by a false defence or a plea
which is not accepted by a court.
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
1
decision of this Court is Hanumant v. State of Madhya Pradesh . 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
17
(Alias) Simmi v. State of Uttar Pradesh and Ramgopal v. State of
18
Maharashtra . It may be useful to extract what Mahajan, J. has laid
1
down in Hanumant case ;
“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.”
153. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be
said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal distinction
between “may be proved” and “must be or should be proved” as
was held by this Court in Shivaji Sahabrao Bobade v. State of
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19
Maharashtra 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.
154. These five golden principles, if we may say so, constitute the
panchsheel of the proof of a case based on circumstantial evidence.”
14.14) In the case of G anpat Singh Vs. State of Madhya Pradesh
reported in AIR 2017 Supreme Court 4839 , reliance is placed on para 9 which
reads as under:
“9. In the case of circumstantial evidence where there is no eye
witness to the crime, the law postulates a twofold requirement. First,
every link in the chain of circumstances necessary to establish the guilt
of the accused must be established by the prosecution beyond
reasonable doubt. Second, all the circumstances must be consistent
only with the guilt of the accused. The principle has been consistently
formulated thus:
“The normal principle in a case based on circumstantial evidence is
that the circumstances from which an inference of guilt is sought to
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be drawn must be cogently and firmly established; that those
circumstances should be of a definite tendency unerringly pointing
towards the guilt of the accused; that the circumstances taken
cumulatively should form a chain so complete that there is no
escape from the conclusion that within all human probability the
crime was committed by the accused and they should be incapable
of explanation on any hypothesis other than that of the guilt of the
accused and inconsistent with his innocence.”
14.15) The Hon’ble Supreme Court in the case of Rajesh and anr.
st
V/s State of Madhya Pradesh reported in 2023 INSC 839, (dated 21
September 2023) in Paragraph 14 has observed that, in cases based on
circumstantial evidence, the prosecution must establish a complete and
unbroken chain of circumstances pointing only to the guilt of the accused and
excluding every hypothesis of innocence (Hanumant v. State of M.P., (Supra)
Sharad Birdhichand Sarda v. State of Maharashtra, (Supra) . Further, as laid
down in Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 , such
evidence must satisfy the tests that the circumstances are firmly established, of
definite tendency pointing to guilt, form a complete chain, and are incapable
of explanation on any hypothesis other than that of the guilt of the accused.
14.16) The Hon’ble Supreme Court in the case of Abdul Nassar V/s
th
State of Kerala and Anr., (Criminal Appeal Nos. 1122-1123 of 2018 dated 7
January 2025), in Paragraphs 13, 14 & 30 has observed that, in cases resting
on circumstantial evidence, the Court must ensure that each incriminating
circumstance is fully established and forms a complete and unbroken chain
pointing only to the guilt of the accused and excluding every hypothesis of
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innocence. Relying upon the settled principles laid down in Sharad
Birdhichand Sarda v. State of Maharashtra, (Supra) and Hanumant v. State of
M.P., (Supra) , it was reiterated that, the circumstances must be conclusive in
nature and consistent only with the hypothesis of guilt, and collectively must
establish that in all human probability the offence was committed by the
accused. It was further emphasised that while appreciating circumstantial
evidence, the Court must meticulously analyses the testimony of witnesses,
evaluate each circumstance independently, and ensure that the chain of
evidence is complete, with the judgment clearly reflecting the reasoning for
accepting or rejecting the evidence on record.” It was further observed that:-
“26. Based on the analysis of the evidence on the record, we are of
the view that the chain of incriminating circumstances required to
bring home the guilt of the accused is complete in all aspects. In the
present case, we affirm that the prosecution has been able to prove the
guilt of the accused appellant by fulfilling the five golden principles
(Panchsheel) laid down by this Court in the case of Sharad
Birdhichand Sarda(supra) and that the circumstances present before
us, taken together establish conclusively only one hypothesis that
being the guilt of the accused appellant.
30. We deem it essential to enunciate the principles that courts must
adhere to while appreciating and evaluating evidence in cases based
on circumstantial evidence, as follows:
(i) he testimony of each prosecution and defence witness must be
meticulously discussed and analysed. Each witness’s evidence should
be assessed in its entirety to ensure no material aspect is overlooked.
ii) Circumstantial evidence is evidence that relies on an inference to
connect it to a conclusion of fact. Thus, the reasonable inferences that
can be drawn from the testimony of each witness must be explicitly
delineated.
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iii) Each of the links of incriminating circumstantial evidence should
be meticulously examined so as to find out if each one of the
circumstances is proved individually and whether collectively taken,
they forge an unbroken chain consistent only with the hypothesis of
the guilt of the accused and totally inconsistent with his innocence.
iv) The judgment must comprehensively elucidate the rationale for
accepting or rejecting specific pieces of evidence, demonstrating how
the conclusion was logically derived from the evidence. It should
explicitly articulate how each piece of evidence contributes to the
overall narrative of guilt.
v) The judgment must reflect that the finding of guilt, if any, has
been reached after a proper and careful evaluation of circumstances in
order to determine whether they are compatible with any other
reasonable hypothesis.”
14.17) The Hon’ble Supreme Court in the case of Suresh Chandra
and Anr. V/s State of Uttar Pradesh (Criminal Appeal No. 1283 of 2024,
th
Judgment dated 30 January 2025) in Paragraph 11 & 12 has observed that,
in cases resting on circumstantial evidence, the prosecution must establish a
complete chain of circumstances consistent only with the guilt of the accused
and excluding every hypothesis of innocence. Reliance was placed on the
principles laid down in Sharad Birdhichand Sarda v. State of Maharashtra ,
(Supra), which require that the circumstances must be fully proved, of
conclusive nature, and incapable of explanation on any other hypothesis. It
was further emphasised that there is a clear legal distinction between ‘may be’
and ‘must be’ guilty, and conviction can be sustained only when every
reasonable hypothesis except that of the accused’s guilt is ruled out.”
14.18) In the case of Vaibhav V/s State of Maharashtra, (Criminal
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th
Appeal No.1643 of 2012, Judgment dated 4 June 2025), Hon’ble Supreme
Court has observed that;
“21. Having said so, we may now examine what weighed with the High
Court to arrive at the finding of guilt of the appellant. On a careful
reading of the impugned judgment, one would unmistakably note that
the subsequent conduct of the appellant in indulging in destruction of
evidence weighed heavily against him in the mind of the Court. The
inability of the appellant to explain certain aspects also weighed against
him. Undoubtedly, in a case based on circumstantial evidence, facts
indicating subsequent conduct are relevant facts under Section 8 of the
Evidence Act. Equally, the inconsistencies in the version of the appellant
are also relevant. However, the occasion to examine the version/defence
of the appellant could have arisen only if the prosecution had succeeded
in discharging its primary burden beyond reasonable doubt. In criminal
jurisprudence, it is a time-tested proposition that the primary burden
falls upon the shoulders of the prosecution and it is only if the
prosecution succeeds in discharging its burden beyond reasonable doubt
that the burden shifts upon the accused to explain the evidence against
him or to present a defence. In the present case, the version of the
prosecution suffers from inherent inconsistencies and doubts, as
discussed above, and in such a scenario, the inability of the appellant to
explain certain circumstances could not be made the basis to relieve the
prosecution from discharging its primary burden. The High Court fell in
a grave error in doing so, as it placed greater reliance on the loopholes
in the appellant's version without first determining whether the chain of
circumstances sought to be proved by the prosecution was complete or
not. Pertinently, the inability of an accused to offer plausible
explanation on certain aspects would not automatically absolve the
prosecution of its evidentiary burden, which must be discharged first
and beyond doubt.
22. In law, there is a significant difference in the evidentiary burden
to be discharged by the prosecution and the accused. Whereas, the
former is expected to discharge its burden beyond reasonable doubt, the
latter is only required to prove a defence on the anvil of preponderance
of probabilities. If the accused leads defence evidence in the course of a
criminal trial, the same ought to be tested as probable or improbable in
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the facts and circumstances of the case. The present case, we are afraid,
reveals that the defence taken by the accused since the beginning of the
case was not tested by the Trial Court and the High Court. Despite a
specific defence taken by the appellant before both the Courts, the
Courts simply did not examine the same in the manner required by law.
The probability of the version put across by the appellant ought to have
been tested against the circumstantial theory of the prosecution. In
other words, it was incumbent upon the Courts below to have examined
whether the defence taken by the appellant was a probable defence or
not. The failure to do so has certainly resulted into a failure of justice
and it is sufficient to reopen the evidence in the instant appeal, as we
have done.
23. We may now come to the next aspect of the case i.e. absence of
motive and consequence thereof. It is trite law that in a case based on
circumstantial evidence, motive is relevant. However, it is not conclusive
of the matter. There is no rule of law that the absence of motive would
ipso facto dismember the chain of evidence and would lead to
automatic acquittal of the accused. It is so because the weight of other
evidence needs to be seen and if the remaining evidence is sufficient to
prove guilt, motive may not hold relevance. But a complete absence of
motive is certainly a circumstance which may weigh in favour of the
accused. During appreciation of evidence wherein favourable and
unfavourable circumstances are sifted and weighed against each other,
this circumstance ought to be incorporated as one leaning in favour of
the accused. In Anwar Ali & Anr. v. State of Himachal Pradesh', this
Court analyzed the position of law thus:
“24. Now so far as the submission on behalf of the accused that
in the present case the prosecution has failed to establish and
prove the motive and therefore the accused deserves acquittal is
concerned, it is true that the absence of proving the motive
cannot be a ground to reject the prosecution case. It is also true
and as held by this Court Suresh Chandra Bahri v. State of Bihar
that if motive is proved that would supply a link in the chain of
circumstantial evidence but the absence thereof cannot be a
ground to reject the prosecution case. However, at the same
time, as observed by this Court in Babu, absence of motive in a
case depending on circumstantial evidence is a factor that weighs
in favour of the accused. In paras 25 and 26, it is observed and
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held as under:
"25. In State of U.P. v. Kishanpal, this Court examined the
importance of motive in cases of circumstantial evidence and
observed: (SCC pp. 87-88, paras 38-39)
'”38.... the motive is a thing which is primarily known to
the accused themselves and it is not possible for the
prosecution to explain what actually promoted or ex- cited
them to commit the particular crime.
39. The motive may be considered as a circumstance
which is relevant for assessing the evidence but if the
evidence is clear and unambiguous and the circumstances
prove the guilt of the accused, the same is not weakened
even if the motive is not a very strong one. It is also
settled law that the motive loses all its importance in a
case where direct evidence of eyewitnesses is available,
because even if there may be a very strong motive for the
accused persons to commit a particular crime, they cannot
be convicted if the evidence of eye-witnesses is not
convincing. In the same way, even if there may not be an
apparent motive but if the evidence of the eyewitnesses is
clear and reliable, the absence or inadequacy of motive
cannot stand in the way of conviction.”
26. This Court has also held that the absence of motive
in a case depending on circumstantial evidence is a factor
that weighs in favour of the accused. (Vide s v. State of
T.N.5)"
14.19) The Hon’ble Supreme Court in the case of Shail Kumari V/s
State of Chattisgarh, (Criminal Appeal Nos. 2189 of 2017, Judgment dated
th
06 August 2025,) has observed in cases resting on circumstantial evidence
that, the prosecution must establish a complete chain of circumstances
consistent only with the guilt of the accused and excluding every hypothesis of
innocence. Reliance was placed on the principles laid down in Sharad
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Birdhichand Sarda v. State of Maharashtra , (Supra) and Hanumant v. State of
M.P. , (Supra), which constitute the ‘panchsheel’ governing circumstantial
evidence. It was further reiterated that each circumstance must be fully
established, of conclusive nature, and incapable of explanation on any other
hypothesis, and that conviction can be sustained only when the chain of
events is so complete that it leads to no other conclusion than the guilt of the
accused.
14.20) The Hon’ble Supreme Court in the case of Vadivelu Thevar
v. State of Madras reported in AIR 1957 SC 614 has observed that:
"17. …... The Indian Legislature has not insisted on laying down any
such exceptions to the general rule recognized in Section 134 quoted
above. The section enshrines the well recognized maxim that "Evidence
has to be weighed and not counted". Our Legislature has given statutory
recognition to the fact that administration of justice may be hampered if
a particular number of witnesses were to be insisted upon. It is not
seldom that a crime has been committed in the presence of only one
witness, leaving aside those cases which are not of uncommon
occurrence, where determination of guilt depends entirely on
circumstantial evidence. If the legislature were to insist upon plurality
of witnesses, cases where the testimony of a single witness only could
be available in proof of the crime, would go unpunished. It is here that
the discretion of the presiding judge comes into play. The matter thus
must depend upon the circumstances of each case and the quality of the
evidence of the single witness whose testimony has to be either
accepted or rejected. If such a testimony is found by the court to be
entirely reliable, there is no legal impediment to the conviction of the
accused person on such proof. Even as the guilt of an accused person
may be proved by the testimony of a single witness, the innocence of an
accused person may be established on the testimony of a single witness,
even though a considerable number of witnesses may be forthcoming to
testify to the truth of the case for the prosecution. Hence, in our
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opinion, it is a sound and well-established rule of law that the court is
concerned with the quality and not with the quantity of the evidence
necessary for proving or disproving a fact.
18. Generally speaking, oral testimony in this context may be
classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in
coming to its conclusion either way it may convict or may acquit on the
testimony of a single witness, if it is found to be above reproach or
suspicion of incompetence or subornation. In the second category, the
court equally has no difficulty in coming to its conclusion. It is in the
third category of cases, that the court has to be circumspect and has to
look for corroboration in material particulars by reliable testimony,
direct or circumstantial.
19. There is another danger in insisting on plurality of witnesses.
Irrespective of the quality of the oral evidence of a single witness, if
courts were to insist on plurality of witnesses in proof of any fact, they
will be indirectly encouraging subornation of witnesses. Situations may
arise and do arise where only a single person is available to give
evidence in support of a disputed fact. The court naturally has to weigh
carefully such a testimony and if it is satisfied that the evidence is
reliable and free from all taints which tend to render oral testimony
open to suspicion, it becomes its duty to act upon such testimony. The
law reports contain many precedents where the court had to depend
and act upon the testimony of a single witness in support of the
prosecution. There exceptions to this rule, for example, in cases of
sexual offences or of the testimony of an approver; both these are cases
in which the oral testimony is, by its very nature, suspect, being that of
a participator in crime. But, where there are no such exceptional reasons
operating, it becomes the duty of the court to convict, if it is satisfied
that the testimony of a single witness is entirely reliable. We have
therefore, no reasons to refuse to act upon the testimony of the first
witness, which is the only reliable evidence in support of the
prosecution."
(emphasis supplied)
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15) Section 106 of the Indian Evidence Act, provides that, when the
existence of any fact is within the knowledge of a person, the burden of
proving that fact is upon the person. If the explanation put forth is found
proper and satisfactory, it can be said that the person has discharged the
burden. If the person fails to offer an explanation for the facts which are
within the special knowledge, then in that event it is concluded that the
person has failed to discharge the burden against him as is envisaged under
Section 106 of the Evidence Act. In matters based on circumstantial evidence,
the primary responsibility and duty is that of the prosecution to prove the
prosecution case to the hilt. All the facts and circumstances must have been
independently proved by the prosecution. The primary burden of proving and
establishing the case is and always will remain on the prosecution. Only when
the prosecution succeeds in establishing its case and discharging its burden
beyond reasonable doubt that the accused may be called upon to explain
certain facts/evidence which according to the prosecution are against the
accused. We are of the opinion that if the prosecution is unable to conclusively
prove and establish the case of the prosecution or the case of the prosecution
carries with it and suffers from unexplainable doubts, contradictions and/or
inconsistencies, then in such a case, the non-explanation or inability of the
appellant accused to explain certain circumstances or a single circumstance
ought not to be made the reason and basis to relieve the prosecution from
discharging its burden and or drawing a adverse inference against the
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accused.
16) We are of the considered opinion that, the provisions of section
106 would come into play or can be invoked by the prosecution only when the
prosecution is otherwise successful in establishing a complete chain of
circumstances against the accused, which chain of circumstances of leads only
to the conclusion of guilt of the accused and no other. Further, such conclusion
must be beyond all reasonable doubt. In our opinion, for the prosecution to
take aid of section 106 of the Indian Evidence Act as against the accused, it is
incumbent on the prosecution to prove the case on circumstantial evidence
beyond reasonable doubt. If the chain of circumstances is not complete, then
an incorrect or false explanation or non-explanation, of special circumstances
within the knowledge of an accused will not be of any assistance to the
prosecution and section 106 of the Evidence Act cannot be called in aid. If the
entire chain of circumstances is established and proved i.e each link is
independently established and when put together conclusively only points to
the guilt of the accused, the non-explanation may be used as an additional
evidence and no more.
17) Motive, being in the mind of the accused and an internal process,
is difficult to fathom or prove to the hilt. Motive in a case of direct evidence
may not be that relevant, as is in a case of based solely on circumstantial
evidence. In a case of circumstantial evidence, motive, plays an important link
to complete the chain of circumstances. Based on an established and proved
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motive, reasonable and sustainable inferences may be drawn to complete a
chain of circumstances. Motive becomes a crucial connecting link in the chain
of circumstances. This is not the case in a matter based on direct evidence. A
reliable and otherwise proved prosecution case, may not be dislodged, due to
the absence of motive. Nor is motive to be given undue importance nor is
motive based solely on unfounded allegations and general suspicion to be
given any credence.
18) Having said that, it does not mean that, if the motive is not
proved, direct evidence which is otherwise reliable becomes untrustworthy. If
a case is established by direct evidence then motive to a large extend becomes
less relevant and a conviction can be based on reliable direct evidence. If the
evidence is clear, unambiguous and the guilt of the accused is proved, then
motive may not remain relevant for assessing the evidence. Established and
proved evidence will not be weakened if the motive is absent. It is also settled
law that motive loses its importance in a case where direct evidence of
eyewitnesses is available. In cases of circumstantial evidence, motive assumes
importance and significance, as it becomes the crucial link in the case to be
established by the prosecution and in its absence assumes a different
complexion and such absence definitely weighs in favour of the accused.
Motiveless crimes are not unknown to the society, but such should be
prosecution case. In cases based on circumstantial evidence, the absence of
motive raises doubts and in some cases renders the chain of evidence
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incomplete, weak and therefore doubtful. In cases based on circumstantial
evidence, motive acts as catalyst of explaining the circumstantial evidence or
providing the missing link for enabling the Court to draw a reasonable and
probable inference. The prosecution ascribing a motive, initiating a
prosecution case on the said motive and then terming it as “not significant to
prove the case” when it fails to prove motive makes the prosecution case
doubtful. It raises doubts as to why motive was ascribed in the first place. The
reliability of the prosecution case, to say the least becomes questionable. In
our opinion, it can be safely said that, the absence of motive, in a case which
depends on circumstantial evidence, is more favorable to the accused.
19) In cases of circumstantial evidence, it is the settled position of law
that, each circumstance in a case based on circumstantial evidence must
independently and fully established and once established merge seamlessly to
form a complete chain, and most importantly be consistent only with the
hypothesis of the guilt of the accused, excluding any and every possible
hypothesis of innocence. As in the present case, the starting point in a case of
circumstantial evidence, many a times is suspicion. We are of the considered
opinion that, the suspicion is required to be substantiated by undeniable,
reliable, unequivocal, consistent and credible evidence, which does not leave
the probability of any other possibility or theory. It is settled law that,
suspicion however strong cannot take the place of proof.
20) In cases based on circumstantial evidence, conviction cannot be
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based on a possible view. It is based on the “only view pointing to only the
guilt”. The view has to be one which only points to the guilty of the accused.
All possible interpretations of the circumstances, must necessarily point to the
guilty of the accused. The remote possibility of an “other possible view”, even
if reasonable is impermissible, alien to a cases based on circumstantial
evidence. If a Court, while deciding a case based on circumstantial evidence,
is faced with a situation wherein two different views appear to be reasonably
possible, the matter we must say would have to be decided in favour of the
accused and by accepting the view which is beneficial to the accused would be
required to be accepted. As it is settled position of law, the benefit of doubt,
always goes in the favour of the accused.
21) It is well settled proposition under criminal law, that the burden
of proof is on the prosecution to prove the case beyond reasonable doubt,
unless there is of course a statutory presumption in favour of the prosecution.
Once the prosecution is successful in discharging this duty and proving a case
beyond doubt that the burden shifts to the accused in explaining evidence
against him or to present a defence. We find that in the present case, the
prosecution has failed to discharge its duty in proving and establishing all the
circumstances and that the case of the prosecution suffers from inherent gaps,
loopholes, doubts, contradictions and inconsistencies, as discussed above. In
such circumstances, the question of the Appellant explaining facts in his
knowledge or the non-explanation thereof would not come to the rescue of
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the prosecution nor assist the prosecution in drawing an adverse inference or
considering it as an additional circumstance against the accused. We find that
the gaps and deficiencies in the evidence are material and fatal. The suspicion,
in our view is unfounded. Placing undue reliance on incomplete and
incoherent circumstances without the chain of circumstances being complete
would be uncalled for and therefore unwarranted. The duty of the prosecution
is to prove a case beyond reasonable doubt. On the other hand, the onus cast
on the accused is to establish a probable defence and or create doubts in the
prosecution case so as to give rise to the possibility of the Court coming to
more than one possible conclusion. Once more than one conclusion is reached
or available, the one favorable to the accused ought to the accepted.
22) The other aspect which one needs to consider, as to whether the
prosecution witness is reliable. The reliability of the evidence of the witnesses
is important and it on this evidence that the primary fact is said to have been
proved and consequently the referential fact. The Hon’ble Supreme Court in
Vadivelu Thevar (supra) has classified the witnesses into three types: (i)
wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor
wholly unreliable. It has been held that in the first category of cases, there is
no difficulty inasmuch as if the testimony of such witness is found to be fully
reliable, it may convict or may acquit on the basis of his statement. Even in
the second category cases, there is no difficulty that if evidence of such a
witness is found to be wholly unreliable, the testimony must be discarded. The
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difficulty arises only in the case of third type of witnesses, where the Court is
required to separate the chaff from grain to arrive at a conclusion. If on a
perusal of the evidence and cross -examination of prosecution witnesses it is
revealed that, the witnesses have improved their case in the evidence or
certain statements and admissions are made in the cross examination which
make case of the prosecution doubtful, then in that event the said evidence
ought not to be relied upon. The omissions and improvements if any made
may be damaging to the case of the prosecution. If in the evidence of the
witnesses, there are material inconsistencies and contradictions, the same
ought to be termed as doubtful and unreliable.
23) In the backdrop the law and guided by the pronouncements of
the Hon’ble Supreme Court, we shall now proceed to consider and analyse the
prosecution evidence.
24) PW-1 Ajit Bankar, complainant/father of the deceased has
deposed that, prior to 6-7 months somebody had torn the roof of auto
rickshaw belonging to the accused by blade, hence Accused No.1 had
quarreled with the members of the society, due to which, the members of the
society were not talking with the accused persons. This, according to the
prosecution, is the motive as ascribed to the Appellant and other accused.
That, even otherwise the Appellant used to talk with the deceased. That, prior
to 7-8 days of the deceased going missing, Appellant had given colored beads
to the deceased for inserting in the cord of cycle. That, deceased had disclosed
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this fact to his mother, who in turn informed the PW No.1. PW No.1 has
th
deposed that, on 28 August 2014, at about 4.30 to 5.00 am, PW No.4 Rupali
Chaudhari had seen Accused No.1 and the Appellant taking their rickshaw
towards road from parking by physically pushing it. This fact was informed to
PW No.1 and his wife. Yogita Vikram Jadhav had also disclosed the same fact
to them on the next day. The suspicion is also founded on this fact. Further,
the suspicion is also based on the fact that, accused Nalini used to visit the
house of PW No.1, not speak to anyone, only observe the happenings and
leave. The said acts were disclosed by the P.W. No.1, to police, when his
supplementary statement was recorded.
25) It is pertinent to note that, P.W. No.1, in his cross-examination,
has deposed that when his son was missing, he had not personally gone to
search him in the area of Bhekrainagar, Gadital, Mantharwadi Chowk,
Swargate. PW No.1, has admitted that, while recording his statement, he had
not disclosed to the police about missing of articles from his house. PW No.1
has further stated that, he had disclosed the contact number to police on
which he was contacting his son.
th
26) PW-4 Rupali Choudhary, has deposed that on 27 August 2014,
son of PW No.1 returned home from school at about 2.30 p.m and she handed
over the keys of the house to him. That, till the opening of the door of the flat
and him entering into the flat, she was present at the door of her flat. That,
after the son of PW No.1 shut the door of the house from inside, she entered
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into her flat. That, at about 4.15 p.m., accused Nalini Kalane rang the bell of
my flat and asked her, “where is Durva?”. PW No.4 informed her that Durva is
sleeping and also asked her as to why she was asking/making enquiries. At
that time, accused Nalini Kalane told her that the Appellant asked her to bring
Durva for playing with her. PW No.4, found the said conduct of Nalini
strange/abnormal as she felt that as to how could the Appellant play with an
infant child Durva. That, the mother of deceased told her that the door of the
house is open, the TV was on and that, her son was not in the house. PW No.4
and the mother of deceased tried to search for the deceased, first in the flats
of the society, and then in the nearby areas. Thereafter, when PW No.4
knocked the door of the Appellants house, accused Nalini opened the door. On
asking for help of the Appellant in searching for the victim, she was informed
th
that the Appellant would help after he finished repairing the TV. That, on 28
August 2014, early in the morning at about 4.30 a.m., when she was warming
the milk for serving to her daughter, she saw, through her kitchen window,
that the Appellant and original Accused No.1 were taking their rickshaw
towards roadside by physically pushing it. That, she does not remember the
registration number of the auto rickshaw. That, she disclosed the fact to the
mother and father of deceased in the morning.
27) PW No.4 in her cross-examination has deposed that, the police
th
also made inquiry with accused persons. That, on 28 August 2014, at about
4.30 a.m., she had not seen the Appellant and Accused No. 2, going by
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th
staircase nor seen which colour’s clothes were worn by the deceased on 27
th
August 2014. PW No. 4 has admitted that, on 27 August 2014, when police
had came to the society, she had not disclosed the fact of accused Nalini
visiting her house. She has admitted that, no child was going to the house of
accused. PW No.4 has further stated that, it is not true to say that today I do
not remember when I had disclosed the incident of 4.20 am to the police
28) PW-5 Prakash Swarupchand Patil, is an independent witness. In
th
his examination-in-chief, he has deposed that, on 28 August 2014, at about
5.15 a.m., he as per his routine had gone towards Bopdev Ghat, for morning
walk. That, in the Ghat, there is one stonewall besides the road. That, when,
he reached to the point from where the said stonewall starts, he found that
one auto-rickshaw was stationary in the Ghat facing towards Saswad side.
That, he saw the said auto-rickshaw from a long distance. That, at that time,
he also found that two persons were standing beside the said auto-rickshaw.
That, soon the said persons who were standing beside the said auto-rickshaw
saw him and they immediately boarded in auto-rickshaw and by taking turn,
they went towards Kondhwa side in speed. That, he could not see the faces of
said persons, but saw the registration number of said auto-rickshaw as MH-
th th
12-HC-5749. This witness has deposed that, on 29 August 2014 and 30
August 2014 as there was heavy raining, he could not go for the morning
walk. That, after reading the news article, he recollected the incident of auto-
rickshaw which he had seen in the Bopdev Ghat. That, thereafter, he went to
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the police station and narrated the fact of noticing the auto-rickshaw by him
th
on 28 August 2014.
29) PW No.5 in his cross-examination has deposed that, in the news
th
the number of the auto-rickshaw was also mentioned. That, from 29 August
st
2014 to 31 August 2014, he did not go to the police station. PW No.5 has
admitted that, he knows Vilas Bapu Raut, as they work in the same institute.
th
That, Vilas Raut comes with him for morning walks. That, on 28 August
2014, he was accompanied by Vilas Raut for the morning walk. The news
pertaining to the incident with the deceased was published continuously for
st
two to three days in newspaper and therefore, he went to police station on 1
th
September 2014. That, it is true that on 28 August 2014, when he had been
to Bopdev ghat for morning walk, there were many vehicles which were
passing in the ghat.
30) PW-2 Raju Choudhary, in his examination-in-chief has deposed
nd
that, spot panchanama at Exh.42 was prepared. That, on 2 September 2014,
he was called at police station, when the other panch Kashinath Gaikwad was
also present there. One lady Police Inspector and one accused were present in
Police Station. The said person disclosed his name as Vrishal Kalane. That,
Appellant made disclosure statement, to the place where he had kept the
chadar (bedsheet).
31) PW No.2 in his cross-examination, has deposed that he resides in
the same society as the complainant. That, he was called at around 10.30 am
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to 11.00 am. That, his working hours are 8.00 am to 6.00 pm. It is the specific
case of PW No.2, that all the persons in the society were busy in search of the
son of PW No.1, hence nobody went to attend work. That, contents of the
panchnama were written by police and that he signed the same. PW No.2 has
th
admitted that, the date on the panchnama is written as 28 August 2014. PW
th
No.2 has denied that the spot panchanama (Exh.42) bears date as 29 August
th
2014 and that it was prepared on 29 August 2014. That, for reaching the
spot of recovery, 40 minutes time was required.
32) PW-3 Sambhaji S. Bharti is the panch witness for recovery of body
of deceased, in his examination-in-chief has deposed that, accused No.1 has
disclosed his name as Madhukar Kalane. That, accused No.1, voluntarily
stated that he would show the place in Bopdev Ghat, where he had thrown
the dead body of deceased.
33) In the cross examination, PW No.3, admits that except this case,
he has never acted as panch witness in any case. That, he did not enquire with
police as to when the accused was arrested. It is pertinent to note that, PW
No.3 has admitted that when he went to the spot, the police were already
present at the spot. That, the road which leads to Bopdev Ghat has heavy
traffic. That, the photographer or video shooting person did not accompany
them in the jeep. That, at around 12.15 p.m., they proceeded towards Bopdev
Ghat from police station and reached at the spot within a period of one to
one and half hours. That, he was present at the spot up to 3.00 to 3.15 p.m.
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34) PW-6 Arun B. Mahapure, in his examination-in-chief has deposed
that, in his presence, Appellant made the disclosure statement that, he had
concealed some articles in the house and he will show the same. That, the flat
was locked, hence, Appellant procured the key from somebody and then, they
entered into the flat.
35) PW No. 6 in his cross-examination has deposed that, he was
called at police station at about 3.30 to 3.45 p.m. That, after the incident,
police were frequently visiting the society. That, on earlier occasions, i.e.
before going for recovery, police had visited the house of accused, on one or
two occasion. That, he has no knowledge if the key of the flat was with the
accused. That, he does not know, who opened the door of the flat of accused.
36) PW-8 Dr. Abhishek Kumar in his examination-in-chief has
admitted the fact that, the body of the deceased was fully decomposed. That,
maggots were found on dead body, which are at different stages. That, the
abdomen and genitals were distended, the eyes and tongue protruded. That,
there was prolapse of anus and the scalp were loose. That, parts of body of the
deceased were eaten by the animals. That, the right and left wrist joint, right
fibula and ankle joint were missing. That, right thigh inner aspect, middle
1/3, measuring 10 cm X 3 cm with exposer of underline bone present. That,
bite marks of animals were present on the bones. That, these were external
injuries. PW No.8 has deposed that, the cause of death could not be provided,
as the body was in a highly decomposed state. That, the death had occurred
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about 2 to 3 days prior. That, it was not possible to say whether the death of
deceased was due to smothering, as the body was totally decomposed. It was
opined that, in this case the possibility of homicidal death cannot be ruled out.
The samples preserved for DNA examination were handed over to duty police
officer along with postmortem report in a sealed condition.
37) PW-9 Varsharani Jivandhar Patil in her examination-in-chief has
th
deposed that, the accused Madhukar Kalane came to be arrested on 30
th
August 2014 at about 11.50 hr. On 30 August 2014 the accused Madhukar
Kalane made voluntary disclosure that, he and his son Vrishal threw the dead
body of deceased at Bopdeo ghat and he will show that place. Accused
Madhukar accordingly showed the place. That, the key of the flat was with the
Appellant and by using key he opened the door of the flat.
38) PW No.9 in the cross examination has admitted that, she had not
called for the call details of the phone of deceased and his father. PW No.9 has
admitted that, where the body of the deceased was found, that area was not
within jurisdiction of her police station, but within limits of Kondhwa police
station. That, the Kondhwa police did not inform that, they found the dead
th
body within their jurisdiction. That, on 27 August 2014 the statements of
accused were recorded as a witness. That, she has not seen any blood stains or
hair of deceased in rickshaw. That, she has not brought CCTV camera footage
on record to show that rickshaw proceeded towards Bopdev ghat.
39) As regards the presence of motive and attributing it to the
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Appellant, the prosecution relies upon the evidence of PW No.1 and PW No.4.
Perusal of the evidence would indicate that the case of motive or an attempt
to attribute motive is solely based on a mere suspicion. We find that, there is
no concrete or proper motive attributable to the Appellant which has been
established. We have noted that, even as per the prosecution case, the
disputes or differences due to the tearing of the roof of the auto rickshaw is
concerned the said disputes differences are allegedly with all the members of
the housing society and not solely attributed to the appellant and his family.
As far as motive is concerned, there is none proved or established. In fact the
PW No.1 has categorically stated that, the Appellant used to talk with the
deceased and had also given him beads, for being put in the cycle of the
deceased. In view thereof, there is a clear contradiction as to the fact as to
whether the Appellants family and PW No.1 and his family were on talking
terms or not. This gains significance, as the prosecution has based its case for
proving motive on the said fact. Considering the contradiction, we are of the
opinion that the prosecution has in fact failed to prove the motive. Further,
ascribing motive on such incorrect facts and contradictory evidence would be
fatal to the prosecution. It is thus clear that the Appellant and the other
Accused, were admittedly been arraigned as accused only on the basis of mere
suspicion. We therefore conclude, that the prosecution has in fact failed to
attribute any motive to the Appellant. Considering the aforenoted judicial
pronouncements, we shall now proceed to examine if the prosecution has
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been successful in proving the case on circumstantial evidence.
40) The fact and circumstance, sought to be relied upon the
prosecution is that, the PW No 4 saw the Appellant and his father pushing the
th
auto rickshaw at 4.00 am in morning of 28 August 2014. This is the only
circumstance. Based on the said circumstance, the prosecution alleges that the
body of the deceased was transported by the Accused for disposal and that the
Appellant and his father were spotted with the said rickshaw near the Bopdeo
Ghat, where eventually the body of the deceased was found. This
circumstance, in our opinion does not take the prosecution case any further, in
as much as, there is no evidence nor any fact/circumstance to indicate that the
Appellant and/or his father were seen taking a gunny bag or any substantial
heavy articles/parcel to the rickshaw, based on which an inference could be
drawn that the body of the deceased was been carried away. Further, PW No.
9, has in the evidence clearly deposed that, there was no blood or hair or any
evidence found in the auto rickshaw to indicate that, the body of the deceased
was taken in the auto rickshaw. Further, admittedly the PW No.4 has not seen
any movement or anybody or the Appellant and his family walking down the
staircase. In the background of this factual position, the pushing of the auto
rickshaw, without starting it even if accepted as proved is of no consequence
and does not support the case of the prosecution as the further links of the
chain are not established.
41) We also find that the disposition of the PW No.4 and PW No.1, in
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respect of the layout of the flats and the building in relations to the road
leading to the society is at a material variance and contradictory. The PW
No.4, in her disposition has specifically stated that that the door of the flat is
facing towards northern side and that the staircase of the building is in front
of her flat. That, the entrance of the building is from the western side. That,
the road in front of the building is in east-west direction. That, the windows of
the living room, bed room and kitchen of the flat are towards the southern
side. When we peruse the disposition of PW No .1 with regard to the aspect of
the layout of the flats, we find that the description given by PW No.1 of the
location of the building and layout of the flats is materially different. PW No.1
has stated that entrance of building is towards eastern side, while PW No.4
stated that entrance of the building is on the western side. That, the kitchen
window of the flat of PW No. 4 is towards the western side, while PW No. 4
has stated that the kitchen window is towards the southern side. PW No.1 has
further stated that the kitchen and living room window of the flat of Vikram
Jadhav is towards the eastern side. Perusal of the evidence of PW No.1 and
PW No.4 in respect of the layout of the building and flats in relation to the
entrance and roads leading to the building are at a material variance. The said
variance, demolishes the circumstance that the PW No.4 could have possibly
seen the rickshaw being pushed physically by the accused No.2 and the
Appellant. Considering the contradiction in the dispositions of the witnesses, it
becomes doubtful as to whether the PW No.4 even witnessed the Accused
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No.1 and the Appellant pushing the rickshaw. This circumstance in fact
becomes doubtful.
42) Further, when the evidence of PW No.5 is considered, the same
does not inspire confidence. If the evidence is considered, the PW No.5 has
admitted that the rickshaw passed him in high speed and that he was unable
to see the occupants. Surprisingly the PW No.5 has noted the RTO registration
number of the rickshaw, at a high speed and when the PW No. 5 was on a
morning walk with Mr. Raut. The said Mr. Raut is not examined by the
prosecution. Even as regards the contention of PW No.5 that, he saw and
remembered the registration number of the rickshaw, we find the same
extremely doubtful given the aforenoted circumstances. Additionally, the
evidence of the PW No.5 seems to be doubtful and unreliable, as PW No.5 has
not reported the incident even after reading the same in the newspapers and
knowing well that the said news was actively relayed on the news where the
number of the vehicle was also disclosed. The reason that the delay was due
to the rains, cannot be accepted in such serious matters. We find the evidence
of PW No.5 unreliable and one which does not inspire confidence.
43) This present prosecution being based on circumstantial evidence,
the starting point/circumstance, according to the prosecution is the suspicious
conduct of the present Appellant and Original Accused No.3 Mrs. Kalane the
mother of the present Appellant.
44) Perusal of the evidence of PW No.2 would indicate that, all the
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members or majority of the members of the housing society were searching
for the son of PW No.1. The prosecution has based its suspicion on the
following facts:- (i) Appellant or his family members did not participate in the
search operation/activity and that Accused No.3 informed that the Appellant
th
would help in the search after the TV repair work is over; (ii) On 27 August
2014 at about 4.15 p.m., accused No.3 Nalini Kalane rang the bell of the flat
of this witness and made enquiries of her daughter Durva as the Appellant
wanted to allegedly play with her. The said conduct of Nalini was found
strange/abnormal as she felt that as to how could the Appellant play with an
infant child Durva;(iii) PW No.4 saw Appellant and Accused No.2 taking their
rickshaw towards roadside by physically pushing it, without starting it and
(iv) Accused No.3 was coming to the house of PW No.1 observing the events
and leaving without saying anything.
45) Perusal of the evidence would indicate that, a substantial number
of members of the society were already helping/ assisting in the search of the
deceased. It may not be necessary that, each and every member of the society
would participate in the search operation. One cannot loose sight of the fact
that, it is also the case of the prosecution that, the Appellant and his family
members were not in talking terms with the members of the society. Even
otherwise, the conduct of the Appellants family more particularly the mother
of the Appellant, at the highest may be termed as rude or an unacceptable
social behavior but not which is suspicious or conduct which would give rise
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to the suspicion. In these circumstances, if the Appellant or his family
members did not immediately participate in the search operation/activity or if
Accused No.3 informed that the Appellant would help in the search after the
TV repair work is over, the same, in our opinion cannot be considered as a
circumstance against the Appellant so as to raise suspicion against him.
46) PW No. 4, is the witness, on whose information the alleged
suspicious circumstances came to light. PW No. 4 is one of the main witness,
in a sense that, it based on the information provided by this witness that the
suspicion against the accused has arisen. The other instance, based on which,
th
the suspicion has arisen is that, on 27 August 2014 at about 4.15 p.m.,
original accused No.3 Nalini Kalane rang the bell of the flat of this witness and
made enquiries of her daughter Durva as the Appellant wanted to allegedly
play with her. PW No.4, found the said conduct of Nalini strange/abnormal as
she felt that as to how could the Appellant play with an infant child Durva.
However, from the evidence it appears that the when police had came to the
th
society on 27 August 2014, this witness at the first instance did not disclose
the said facts and suspicion to the police. This according to us is not a conduct
of normal and prudent person and certainly not that of an immediate
neighbor. The conduct of the PW No.4 raises some doubt.
47) The third instance on which suspicion is raised is that, PW No.4
th
Further, it is contended that this witness on 28 August 2014, at about 4.30
a.m., when she was warming the milk for her infant daughter, through her
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kitchen window, allegedly saw that the Appellant and original Accused No.2
taking their rickshaw towards roadside by physically pushing it. We have
th
noted that, the said witness specifically states that, on 28 August 2014, at
about 4.30 a.m., she had not seen the Appellant and Accused No. 2, while
th
going by staircase nor seen which color clothes were worn by deceased on 27
August 2014. We have also noted that this witness has also specifically
admitted in her cross examination that, no child was going to the house of
Appellant. If these statements and evidence of PW No.4 is considered, in its
entirety the basis of suspicion including that the appellant not helping in the
search or the story that the original accused No 3 made enquiries regarding
the infant daughter of the PW No.4 appear to be doubtful.
48) PW No. 5 is the independent witness. In our view, the evidence of
an independent third party witness is most crucial in a criminal prosecution
and more so when based on and being adjudicated on the basis of
circumstantial evidence. One would seek to rely on and seek corroboration
from the evidence of an independent witness to test the genuineness and also
the credibility of the evidence of the other prosecution witnesses and to see if
the circumstances and facts are proved as required.
49) Perusal of the testimony of this witness, would indicate that, the
witness when was on his morning walk has allegedly seen from a long
distance i.e point from where the said stonewall starts, that one auto-rickshaw
was stationary in the Ghat facing towards the Saswad town side. From the
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said admitted long distance he has seen two persons standing beside the said
auto-rickshaw. The said two persons are unknown to the witness. The witness
has not stated that he could see the persons so as to identify them. The very
fact that they were standing at a “long distance” the possibility of the witness
in identifying any peculiar mark or trait of the persons is ruled out. The
witness has further deposed that, when the said two persons, saw the witness
they immediately boarded in auto-rickshaw and after taking turn, went
towards Kondhwa side in speed. The witness has admitted that, the rickshaw
was in speed, and he could not see the faces of said persons. The witness
states that he was able to see the registration number of said auto-rickshaw as
MH-12-HC-5749. This conduct, we find most surprising for seeing and
registering the number of a vehicle which admittedly was passing by in speed
and when the witness was on a morning walk with his friend. Further, this
witness after witnessing the entire events, memorized or kept in mind the
number of the auto riskshaw, but choose not to inform the police immediately.
We further find even more surprising is the fact that, the witness even after
getting knowledge of the unfortunate incident from the news/newspapers on
th
29 August 2014 and which news was running for a couple of days, did not
inform the police for a period of 2 to 3 days of the incident. The reason given
th th
by the witness for the said conduct is that, on 29 August 2014 and 30
August 2014 there was heavy rain and therefore he could not go for the
morning walk. The witness has stated that, after reading the news article, he
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recollected the incident of auto-rickshaw which he had seen in the Bopdev
st
Ghat. That, thereafter, he went to the police station on 1 September 2014
th
and narrated the facts which he had noticed on 28 August 2014 and also the
registration number. We find this extremely surprising. We find, the conduct of
this witness, not to be that of a normal and prudent person. Further, the
reason given for the delay is also far from convincing. The heavy rains for the
next few days may have created a hindrance to go for a walk, but for
informing the police, we find that the rains cannot be an excuse or reason for
the delay. One more reason, which makes the prosecution story doubtful or
unreliable is that, the number of the auto-rickshaw was already mentioned in
the news article. We have noted that, PW No.5 has not informed the police of
st
the information/observation till 31 August 2014, as he did not go to the
police station, although the news pertaining to the incident with the deceased
was being published continuously for two to three days in newspaper. The
st
said witness reported/informed the police only on 1 September 2014. This is
after the arrest of accused, the recovery and discovery etc. We have also noted
that the investigating authorities have not even conducted a test identification
parade.
50) The other important aspect is that, Vilas Bapu Raut and the
th
witness work in the same institute and are known to each other. On 28
August 2014, the witness was accompanied by Vilas Raut for the morning
walk. We have noted that the said Vilas Raut has not been examined. The
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evidence of this witness is also doubtful as, the said witness has also deposed
th
that on 28 August 2014, when the witness had been for his walk to the
Bopdev ghat, there were many vehicles which were passing by in the ghat. For
these reason the narration and evidence of this witness that he noted the
registration number of the rickshaw becomes questionable.
51) PW No.6, is the witness who was present for the recovery which
was done at the instance of the Appellant. The witness has stated that, the key
was procured from somebody and then, they entered into the flat. Further, PW
No. 6 has specifically stated that, after the incident, police were frequently
visiting the society and before going for the recovery, the police had already
visited the house of accused, on one or two occasion. This being the case the
recovery at the instance of the Appellant becomes doubtful. The witness has
further specifically stated that, he has no knowledge if the key of the flat was
with the accused and he does not know, who opened the door of the flat of
accused. Considering this, testimony and evidence of this witness, his
presence at the time of the alleged recovery itself become doubtful.
52) PW No.2, the pancha for the spot panchanama, in his evidence
nd
has specifically stated that, on 2 September 2014, when he was called at
police station, the other panch Kashinath Gaikwad was also present there.
One lady Police Inspector and one accused were present in Police Station. The
said person disclosed his name as Vrishal Kalane. We have noted that, PW
No.2 is known to the complainant, as in his cross-examination, he has
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admitted that he resides in the same society as the complainant. Further, it has
come in the evidence of PW No.2 that, the contents of the panchnama were
written by police and he thereafter, signed the same. PW No.2 has further
th
admitted that the date on the panchnama is written as 28 August 2014. PW
th
No.2 has denied that the spot panchanama (Exh.42) bears date as 29 August
th
2014 and that it was prepared on 29 August 2014.
53) Perusal of the evidence of PW No.3, i.e. the pancha for the spot
panchanama would indicate that, in his cross-examination, he admits that
except the present case, he has never acted as panch witness in any case. The
most striking aspect of the evidence is that, PW No.3 admits when he went to
the spot, the police were already present at the spot. This part of the evidence
is crucial and hits the very foundation of the prosecution case and questions
the very recovery of the body of the deceased. Further it is also on record that,
the photographer/video shooting persons were already present there and that
they did not accompany the witness in the jeep. If the police and the
photographer were already present at the spot, before the panch witness
reaches there, the entire process of the recovery to a large extent becomes
questionable. The testimony of this witness, therefore cannot be relied upon
or accepted. In aforenoted circumstance and evidence in that regard the
evidence of this witness is required to be discarded.
54) PW No.8, the doctor has specifically stated that the body of the
deceased was in a totally decomposed state and therefore he could not
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definitely give the cause of death. The doctor was not able to tell whether the
death of deceased was due to smothering but has opined that, the possibility
of homicidal death cannot be ruled out. We have also noted that the samples
preserved for DNA examination were handed over to police along with
postmortem report in a sealed condition. The result of the DNA testing would
indicate that the deceased and the PW 1 have the same common male origin.
The evidence of the Doctor, is in a sense of no consequence because the doctor
has not been able to give any definitive opinion due to the condition of the
body of the deceased.
55) In the evidence of PW No. 9, we have noted that, PW No.9 in her
examination in chief has stated that on inspection of the internal portion of
the rickshaw, one empty gunny bag was found which has blood stains, but in
the cross examination the witness has specifically stated that, she has not seen
any blood stains or hair of deceased in rickshaw. This admission, on a crucial
circumstance, negates the prosecution story and makes the deposition of the
witness doubtful. PW No.9 has further deposed that, she has not brought
CCTV camera footage on record to show that rickshaw proceeded towards
Bhopdev ghat. This according to us is crucial piece of evidence, which ought
to have been considered by the learned trial court. If the auto rickshaw did
not have any trace of the body of the deceased been taken in it, nor was any
CCTV footage produced though available, warrants that an adverse inference
be drawn. In this background facts, the evidence of the PW No.4 of seeing the
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Appellant and his father physically pushing the auto rickshaw, without starting
th
it, at about 4.30 am on 28 August 2014, will be of no consequence. In fact,
not finding any trace of any blood stains or hair of the deceased, would negate
the circumstances and thereby the prosecution story. The question as to how
did the body of the deceased reach the alleged spot remained to be
established by the prosecution. The chain of circumstances and the link
therein would be weaken. According to us, the chain would snap. There is an
unexplained gap and a missing link.
56) The chain of circumstantial evidence as per the prosecution case
is alleged to be as under: -
a) P.W No. 4 opened the door of the flat of P.W.1 and let the
deceased son enter into the house.
b) Mother of deceased son returned home at 5 O’clock, and saw that
the door of the flat was open, and the TV was on.
c) P.W.No.1 identifies the said remote and claims ownership. The
remote of the said TV has been allegedly recovered at the instance of
the Appellant.
d) P.W. No. 4 has further proved the abnormal behaviour of the
Appellant in wanting to play with the eight months old daughter of
PW No. 4.
e) P.W No.4 has further stated of abnormal and suspicious conduct
of the original Accused No.3 in not helping in the search of the
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deceased and informing her that, Appellant would participate in the
search after repairing the TV.
f) P.W No. 4’s evidence that original accused No.1 and present
Appellant were spotted at 4.30 a.m in the morning, physically pushing
their auto-rickshaw towards road without starting it.
g) The blood stains and other recovery i.e body of the deceased and
the clothes etc are at the instance of original Accused No.1 and present
Appellant.
h) That DNA of the deceased matched with P.W. No.1 being of the
same male origin.
i) P.W.No.5, an Independent witness had seen two persons standing
next to auto-rickshaw owned by the Appellant. That, on seeing him the
said 2 persons sat in the rickshaw and fled away from there.
j) P.W.4 has deposed that, no child was going to the house of
accused No.2
k) The strange conduct of Accused No.3 in going to the house of
P.W.4 and asking P.W.4 the whereabout of eight months old daughter
Durva and informing her that the Appellant had asked her to bring to
Durva for playing with her.
l) That, the blood stains found on the floor of the house of the
accused and blood of mouldy mass extracted from the body of the
P.W.1 was sent to the Forensic Laboratory have examined and found to
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be identical/matching. Report discloses that the DNA profile of Exh-2
Mouldy Mass and Exh-3 blood detected at scene of crime (house of
Appellant) are identical and very same source of male origin.
57) We find it necessary to mention that, we have not taken into
consideration minor contradictions or gaps in the prosecution story which
have remained to be explained. The said minor gaps are listed herein for the
sake of completeness and to understand the purport and effect of such gaps.
They are as under:-
i) PW No.1 had not disclosed to the police authorities about missing
articles from his house.
ii) PW No. 1 personally had not gone to search for the missing son in
the area of Bhekrainagar, Gadital , Mantharwadi chowk at Swargate.
iii) That, Investigating officer has failed to conduct any investigation
to ascertain call details location of the accused nor as the statement of
accused No.1 is being video recorded.
iv) That, the Prosecution has failed to prove that which of the activity
of the accused was found to be suspicious.
v) That recovery at the instance of the accused is of green tub,
emote, clothes, handkerchief, gunny bag. We find that there are no blood
stains of any of the articles except the blood found on the floor.
vi) That, the investigating authorities had already visited the flat of
the Appellant on a couple of occasions
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vii) Yogita Jadhav, who has allegedly also seen the rickshaw being
pushed though witness has not been examined.
58) According to us, even with the said minor gaps, the case against
the Appellant would have been made out and proved but for the following
material and relevant links in the chain which are totally absent, which are as
under:-
(i) The motive is totally absent. We further find that the attempt to
ascribe a motive to the Appellant to say the least was uncalled for.
An attempt has been made to attribute a general motive to a specific
person i.e the Appellant. The non-disclosure of the alleged conduct
of the Accused No 3, by the Prosecution Witness No.4 immediately
to the investigating officer also raises doubts.
(ii) There is no explanation as to how the body of the deceased reached
at Bopdeo Ghat. The circumstance of the Appellant and his father
physically pushing the rickshaw is of no consequence as there is no
trace of hair or blood or any evidence to indicate that the body of
the deceased was taken in the rickshaw. Nobody has seen the body
being put in the rickshaw.
(iii) That there was no forensic examination was done of auto-rickshaw
to show that the body of the deceased was transported in the said
auto-rickshaw. Due to lack of proving motive and preparation the
chain is not completed.
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(iv) That, PW No.9 has stated in examination in chief that blood stains
an hair were found in the rickshaw and with the help of scientific
assistance the samples of the blood and hair from the rickshaw were
collected. Surprisingly, there is no separate panchanama of the
th
rickshaw. The Panchanama dated 30 August 2014 (Exh 58), is a
panchanama allegedly of the flat of the Appellant and the rickshaw.
There is no reference therein that blood and hair was found in the
rickshaw.. Further in the cross examination, PW No.9 has stated that,
there was no blood or hair in the rickshaw. This evidence in fact
snaps the chain of circumstances.
(v) Further considering the evidence of PW No.4, it is stated that the
staircase of the building is in front of the flat and the door of the flat
is facing towards northern side. The entrance of the building is from
the western side. The road in front of the building is east-west
direction. The windows of the living room, bed room and kitchen of
the flat of PW .No.4 are towards the southern side.
(vi) As against this the description given by PW No.1 of the location of
the building and layout of the flats is materially different. PW No.1
has stated that entrance of building is towards eastern side, while
PW No.4 stated that entrance of the building is on the western side.
That, the kitchen window of the flat of PW No. 4 is towards the
western side, while PW No. 4 has stated that the kitchen window is
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towards the southern side. PW No.1 has further stated that the
kitchen and living room window of the flat of Vikram Jadhav is
towards the eastern side. Perusal of the evidence of PW No.1 and PW
No.4 in respect of the layout of the building and flats in relation to
the entrance and roads leading to the building are at a material
variance. The said variance, demolishes the circumstance that the
PW No.4 saw the rickshaw being pushed physically. Considering the
dispositions of the witness, it becomes doubtful as to whether the
PW No.4 even witness the Accused No 1 and the Appellant pushing
the rickshaw.
(vii) The CCTV footage though available was not brought by the
investigating officer on record, therefore the movement of the
rickshaw is not proved. The said non production of the CCTV
footage, could possibly lead to drawing an adverse inference against
the prosecution.
(viii) Police were already at the spot before discovery and panch reaching.
It means that the spot was already known to the police.
The evidence of PW No. 5, the independent witness appears to be
(ix)
doubtful and does not inspire confidence. There is no test
identification parade. The PW No.5, has not informed the police, of
st st
the incident and his observation till 1 September 2014. By 1
September 2014, the Appellant was arrested, panchanama of the
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spot where the body was allegedly discovered was drawn up, the
news article/ news was in circulation along with the registration
number of the rickshaw. The disclosure by PW No. 5 after all of the
above events creates doubts.
Furthermore, the conduct of PW No.5, in being unable to see the
(x)
accused present in rickshaw due to the rickshaw passing by in high
speed, but at the same time being able to see, read and register the
number of the rickshaw and not disclose the same to the police till
st
1 September 2014 appears to be extremely doubtful.
(xi) That the evidence of P.W.5 cannot be relied upon as P.W.5 has only
seen auto-rickshaw from the long distance. Admittedly PW No. 5
could not see the faces of the persons in the rickshaw as the
rickshaw passed him in high/fast speed. That, surprisingly at the
same time, PW No.5 could identify the registration number of the
rickshaw.
(xii) Furthermore, PW No.5 was accompanied by Mr. Raut, who despite
of being an independent witness has not been examined.
(xiii) The prosecution has failed to establish the offences under Section
377 of the Indian Penal Code and Section 4, 5(1) and section 6 of
the Protection of Children from Sexual Offences Act, 2012.The
Appellant has been acquitted of the said charges. Therefore, it
cannot be said that the motive behind alleged kidnapping was for
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committing the said acts.
(xiv) Even the act of kidnapping, is alleged to have been proved only on
the basis that the remote control of the TV was found in the
possession of the Appellant. As regards the remote, the PW No.1 has
himself stated that he did not inform the police authorities of the
missing articles from his house.
(xv) The needle of suspicion is being pointed towards Appellant only on
the ground that the Appellant’s mother i.e. original Accused No.3 did
not help in the search operation, and informed to P.W.4 that the
Appellant would participate/assist in the search after he has finished
the repairing the TV. This cannot be said to be a circumstance, in as
much as according to the prosecution the entire society was helping
in assisting the search operation.
(xvi) That, P.W.4 found the conduct of the Appellant suspicious and
strange, as the Appellant wanted to play with her daughter. This
suspicion is contrary to the evidence of PW No. 4 who has stated
that none of the children went to the house of the Accused. This
being the case, the probability of Accused No.3 making the request
becomes doubtful. Furthermore, more importantly PW No.4 has not
th
disclosed this important fact to the police authorities on 27 August
2014, when the police visited the society. This very conduct of the
PW No.4 makes the alleged suspicion doubtful.
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(xvii) That, some part of the suspicion, is founded on the basis of hearsay
evidence of P.W.1, that accused used to talk to the deceased. That
motive and preparation for the said crime is missing.
59) In the present case, we are of the considered opinion that, the
circumstances from which the conclusion of guilt is to be drawn are not fully
established and the chain of circumstances is incomplete. We are of the
opinion that, the circumstantial facts so established are not consistent only
with the hypothesis of the guilt of the accused. The facts are explainable even
to other hypothesis other than the guilt of the accused. We do not find that,
the circumstances are of a conclusive nature and tendency or that they
exclude every possible hypothesis except the one to be proved. In our opinion,
the chain of circumstances is not fully complete. The evidence creates doubt in
favour of the accused. As we have concluded that there was no motive, it was
required that the evidence be appreciated in a manner where favourable and
unfavourable circumstances are sifted and weighed against each other. In our
opinion, the very fact that motive is absent or not proved, is one which would
leans in favour of the accused.
60) In view of the aforenoted facts and circumstances and reasons,
we are of the considered opinion, that the prosecution has failed to prove the
case beyond reasonable doubt on the basis of the circumstances and the
circumstantial evidence. We have noted that, the learned trial court has
acquitted the Appellant of the offences of section 377 of the Indian Penal
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Code.
61) In view thereof we are inclined to give benefit of doubt to the
Appellant.
62) Hence the following Order:-
(i) The Judgment and Order passed by the learned Special Court,
Pune, (POCSO) in Special Sessions Case No. 328 of 2014, is hereby
quashed and set aside.
(ii) Appeal is allowed.
(iii) The Appellant be released from jail forthwith, if not required in
any other case, on production of the authenticated copy of this Judg-
ment and Order.
(iv) The Interim Application pending herein does not survive and is
also disposed off.
(RANJITSINHA RAJA BHONSALE, J.) ( A.S. GADKARI, J.)
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