{"id":130413,"date":"2010-02-02T00:00:00","date_gmt":"2010-02-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tal-malshiras-vs-the-state-of-maharashtra-on-2-february-2010"},"modified":"2015-11-29T16:57:21","modified_gmt":"2015-11-29T11:27:21","slug":"tal-malshiras-vs-the-state-of-maharashtra-on-2-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tal-malshiras-vs-the-state-of-maharashtra-on-2-february-2010","title":{"rendered":"Tal. Malshiras vs The State Of Maharashtra on 2 February, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Tal. Malshiras vs The State Of Maharashtra on 2 February, 2010<\/div>\n
Bench: P. B. Majmudar, Rajesh G. Ketkar<\/div>\n
                                                        1\n\n\n                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                                   \n                             CRIMINAL APPELLATE SIDE\n\n                            CRIMINAL APPEAL NO. 1339 OF 2002\n\n\n\n\n                                                                          \n                 Shivaji Pandurang Chikane                                    )\n                 Age 22 years, r\/o Chikane vasti, Dahigaon                    )\n\n\n\n\n                                                                         \n                 Tal. Malshiras, Dist. Solapur                                )... Appellant\n                                                                            (Orig.Accused No.1)\n                          versus\n\n                The State of Maharashtra                .....Respondent\n\n\n\n\n                                                            \n                Mr. R.V. Bansode for the appellant.\n                                             \n                Smt. P.P. Shinde, Additional Public Prosecutor, for the State.\n\n                                                  CORAM: P.B.MAJMUDAR &\n                                                                 R.G.KETKAR, JJ.\n<\/pre>\n
                                                     DATED:  2
\n                                                                nd  February, 2010
\n                                                                                  .\n<\/p>\n
        ORAL JUDGMENT :    (PER R.G.KETKAR, J.)<\/p>\n
         1. This appeal is preferred by the original accused No.1 challenging the <\/p>\n
            judgment and order dated November 25, 2002, passed by the learned <\/p>\n
            II Additional Sessions Judge, Satara, in Sessions case no. 30 of 2001.\n<\/p>\n
            By   that   judgment,   the   learned   Sessions   Judge   held   him   guilty   and <\/p>\n
            convicted for the offences punishable under Section 302 Indian Penal <\/p>\n
            Code   (for   short   “IPC”)   and   sentenced   to   undergo   rigorous <\/p>\n
            imprisonment for life and to pay fine of Rs. 5,000\/- (Five thousand <\/p>\n
            only).     In   default   of   fine,   he   was   to   undergo   one   month   further <\/p>\n
            rigorous   imprisonment.     The   appellant   who   was   also   found   guilty <\/p>\n
            under   Section   201   IPC   was   sentenced   to   undergo   rigorous <\/p>\n
            imprisonment   for   three   years   and   to   pay   fine   of   Rs.   5,000\/-(Five <\/p>\n
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\n                                                2<\/span><\/p>\n
       thousand only). In default of fine, he was to undergo 15 days further <\/p>\n
       rigorous   imprisonment.   The   appellant   was   also   held   guilty   under <\/p>\n
       Section 364 IPC and was sentenced to undergo rigorous imprisonment <\/p>\n
       for three years and to pay fine of Rs. 5,000\/- (Five thousand only).  In <\/p>\n
       default   of   fine,   he   was   to   undergo   15   days   further   rigorous <\/p>\n
       imprisonment.   The   learned   Sessions   Judge   ordered   the   substantive <\/p>\n
       sentences to run concurrently.\n<\/p>\n
    2. The learned Sessions Judge acquitted accused No.2, Deepak Gajanan <\/p>\n
       Mangrule, as he was not found guilty under Sections 302, 201 and <\/p>\n
       364 IPC.   In the present appeal, we are concerned only with original <\/p>\n
       accused No.1.   The case of the prosecution is as under.\n<\/p>\n
    3. Malan Damodar Jadhav (hereinafter referred to as the “Victim”) was a <\/p>\n
       resident of Rajuri (Jadhav Vasti), Tal. Phaltan, Dist. Satara.  One of the <\/p>\n
       daughters of the victim, PW 4- Jayashri,  was married to one Ankush <\/p>\n
       Chikane, brother of the appellant.  After the marriage, PW 4- Jayashri <\/p>\n
       went   to   her   matrimonial   home   situate   at   Dahigaon,   Tal.   Malshiras, <\/p>\n
       Dist. Solapur.   The husband of the victim died in a motor accident <\/p>\n
       some time in the year 1995.   The victim received an amount of Rs.\n<\/p>\n
       One lakh as a compensation on account of the accident caused to her <\/p>\n
       husband.     The   appellant  requested   the   victim  for   hand   loan   of   Rs.\n<\/p>\n
       50,000\/- for purchasing a motor jeep.  It is the case of the prosecution <\/p>\n
       that   the   victim   gave   loan   of   Rs.   50,000\/-   to   the   appellant   for <\/p>\n
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\n                                                 3<\/span><\/p>\n
       purchasing the jeep one year prior to the incident in question. The <\/p>\n
       appellant agreed to repay the amount within a period of five to six <\/p>\n
       months.\n<\/p>\n
    4. The   appellant   purchased   a   second   hand   jeep   and   started   transport <\/p>\n
       business. The appellant, however, did not repay the amount within six <\/p>\n
       months time as agreed.  Even after the expiry of 7-8 months from the <\/p>\n
       date   of   taking   loan,   the   appellant   did   not   repay   the   amount.   The <\/p>\n
       victim   and   her   son   PW   3-Dattoba   used   to   visit   the   house   of   the <\/p>\n
       appellant for repayment of the amount. However, the appellant on one <\/p>\n
       pretext or the other avoided to repay the amount. The victim and PW <\/p>\n
       3-Dattoba   were   persistently   demanding   the   amount   from   the <\/p>\n
       appellant.  On account of these persistent demands, the appellant was <\/p>\n
       disgusted and he handed over the custody of the jeep to the victim and <\/p>\n
       the same was parked in front of the house of the victim. The jeep was <\/p>\n
       parked for about eight days. The victim, with a view to getting  some <\/p>\n
       income to the appellant,  handed over the custody of the jeep to him.\n<\/p>\n
       It is the  case   of  the  prosecution that the  appellant assured  that he <\/p>\n
       would return the amount as and when the jeep was sold by him.\n<\/p>\n
    5. It is the case of the prosecution that on the day of the incident i.e. <\/p>\n
       October   12,   1999,   at   about   11.30   a.m.,   the   appellant   went   to   the <\/p>\n
       village Rajuri on motor cycle bearing registration No. MH\/13-3135. At <\/p>\n
       that time, the  victim and her daughter PW 5-Bayadabai were working <\/p>\n
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\n                                                    4<\/span><\/p>\n
        in the field. The appellant asked the victim to accompany him to the <\/p>\n
        house. In the presence of PW 5, the appellant took the victim with him <\/p>\n
        on his motor cycle and both went towards the house of the victim. PW <\/p>\n
        5   immediately   followed   the   appellant   and   when   she   reached   the <\/p>\n
        house, she found that the motor cycle was parked below  the bor tree <\/p>\n
        and   her   mother   was   sitting   on   the   motor   cycle   as   a   pillion   rider.\n<\/p>\n
        According to PW 5, her mother was wearing saree of rose colour and <\/p>\n
        matching   blouse     and   the   petty   coat   yellow   colour.   She   was   also <\/p>\n
        wearing   kudke (ear tops) in the ear and kalipot (sort of necklace) <\/p>\n
        having gold bids in the neck.\n<\/p>\n
    6. It   is   the   case   of   the   prosecution   that   on   October   12,   1999,   PW   4-\n<\/p>\n
        Jayashri intended to visit the victim as the victim used to keep fast on <\/p>\n
        the eve of Navratri festival.  Before starting to her mother’s village at <\/p>\n
        9.30   a.m.,   the   appellant   had   come   to   the   house   on   Yamaha   motor <\/p>\n
        cycle. She asked him whether he wants to pay the amount and if he is <\/p>\n
        ready   to pay the amount he should take her to her mother’s house.\n<\/p><\/blockquote>\n
        The appellant, however, declined and went back on motor cycle.  PW <\/p>\n
        4- Jayashri went to her mother’s house. She did not find her mother. <\/p><\/blockquote>\n
        She enquired from PW 5- Bayadabai   about the whereabouts of the <\/p>\n
        mother whereupon PW 5 informed her that the victim was taken by <\/p>\n
        the   appellant   on   his   motor   cycle.     After   some   time   PW   3-Dattoba <\/p>\n
        returned from the College and he also did not find his mother.   On <\/p>\n
        enquiry, he came  to know from PW 5-Bayadabai that his mother  left <\/p>\n
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\n                                                   5<\/span><\/p>\n
       the village in the company  of the appellant on the motor cycle.  They <\/p>\n
       waited upto 5 p.m. but the victim did not return home. On the same <\/p>\n
       day, PW 4-  Jayashri left village Rajuri for Dahigaon and she reached <\/p>\n
       there   at   about   7   p.m.     On   the   same   day   at   about   8.30   p.m.     the <\/p>\n
       appellant returned to village Dahigaon on motor cycle.  PW 4- Jayashri <\/p>\n
       asked the appellant where he left her mother. Thereupon the appellant <\/p>\n
       told her that he had given a sum of Rs. 35,000\/- and left her mother <\/p>\n
       near the temple of Sadhubuwa  at about 2.30 p.m.  Upon this, PW 4-\n<\/p>\n
       Jayashri told the appellant that she waited for her mother upto 6 p.m. <\/p>\n
       and still by that time since the victim did not return she asked the <\/p>\n
       appellant why her mother did not return to the house when, according <\/p>\n
       to him, he left her at 2.30 p.m.  Upon this, the appellant told her that <\/p>\n
       he had left her mother at Phaltan.\n<\/p>\n
    7. The  victim did not return home on October 12, 1999 and on October <\/p>\n
       13, 1999, PW 3-Dattoba went to the  house of the appellant.  He asked <\/p>\n
       PW4   Jayashri   about   his   mother.     PW   4-   Jayashri   informed   PW   3-\n<\/p>\n
       Dattoba that the appellant disclosed her that he had left his mother <\/p>\n
       near   Sadhubuwa   temple   after   paying   sum   of   Rs.   35,000\/-.     PW   4-\n<\/p>\n
       Jayashri asked her brother Dattoba to take search of the mother in <\/p>\n
       nearbout   village   i.e.   Zirapwadi.       Dattoba   returned   to   his   village <\/p>\n
       Rajuri. He, however, did not find his mother in the house.  Thereafter, <\/p>\n
       he went to the house of his uncle and narrated that the appellant took <\/p>\n
       his mother on motor cycle on October 12, 1999 and since then his <\/p>\n
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\n                                                  6<\/span><\/p>\n
       mother   did   not   return   home.   In   view   of   this,   the   uncle   of   PW   3-\n<\/p>\n
       Dattoba   accompanied   with   him   and   thereafter   visited   the   places   of <\/p>\n
       relatives at village Pimprad and they came to know that the   victim <\/p>\n
       had not visited the said village. In view of this, PW 3-Dattoba went to <\/p>\n
       Phaltan Police Station and gave  a missing  report which was reduced <\/p>\n
       into writing vide Exh. 20 on October 14, 1999.   On the basis of this <\/p>\n
       report, an offence came to be registered initially under Section 363 <\/p>\n
       IPC vide Crime No. 283\/99 at Phaltan Police Station.   After lodging <\/p>\n
       the report, the search for the victim was continued by PW 3-Dattoba <\/p>\n
       and his other relatives.\n<\/p>\n
    8. It is the case of prosecution that on October 16, 1999, the complainant <\/p>\n
       PW 3-Dattoba and his uncle again went in  search for the victim and <\/p>\n
       when they were taking search, they found a dead body floating in a <\/p>\n
       canal under the kanher bridge. They stopped the jeep and got down <\/p>\n
       from the jeep and after observing the body, they could identify the <\/p>\n
       dead body of the victim. As PW 3 came to know about the dead body <\/p>\n
       lying   below   the   bridge,   he   immediately   returned   to   Phaltan   Police <\/p>\n
       Station. However, Phaltan Police Station asked the complainant to go <\/p>\n
       to Malshiras Police Station because the dead body was found within <\/p>\n
       the jurisdiction of Malshiras Police Station. Accordingly,   he went   to <\/p>\n
       Malshiras Police Station and gave oral report which was reduced in <\/p>\n
       writting  as per Exh. 21  on October 16, 1999.\n<\/p>\n
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\n                                                   7<\/span><\/p>\n
    9. After   receipt   of   the   report,   police   attached   to   Malshiras   visited   the <\/p>\n
        place where the dead body was lying. Police could not make inquest <\/p>\n
        panchanama nor the dead body was taken from the canal. On the next <\/p>\n
        day morning i.e. October 17, 1999, the dead body was taken out from <\/p>\n
        the canal. As the dead body was in a highly decomposed state, PW 6-\n<\/p>\n
        Dr.Dhananjay   Danave   was   called   on   the   spot.   The     inquest <\/p>\n
        panchanama was prepared and PW 6-Dr. Dhananjay   carried out the <\/p>\n
        post mortem on the spot.   As dead body was in a decomposed state, <\/p>\n
        PW 6 found   it impossible to certify the cause of death.     Number of <\/p>\n
        photographs   of   the   dead   body   were   taken   and   the   dead   body   was <\/p>\n
        identified by the Complainant PW 3-Dattoba and other relatives. An <\/p>\n
        offence under Section  364 IPC was registered vide Crime No. 285 of <\/p>\n
        1999.     PW   7-Bajirao   Patil,   PSI   attached   to   Phaltan   Police   Station <\/p>\n
        visited the spot of incident. During the course of investigation, PW 5-\n<\/p>\n
        Bayadabai   pointed out the spot wherefrom the victim was taken on <\/p>\n
        motor cycle. The spot panchanama was prepared in the presence of <\/p>\n
        panchas at Exh. 18. PW 7- Bajirao Patil recorded the statement of 13 <\/p>\n
        witnesses.\n<\/p>\n
    10. PW 7 took search of the appellant in village Rajuri on October 14, <\/p>\n
        1999,   he   was   not   found   in   the   said   village.   Thereafter   he   went   to <\/p>\n
        village Dahigaon in search of the appellant. There also   he came to <\/p>\n
        know that the appellant had left for Phaltan. As per the evidence of <\/p>\n
        PW   7,   on   October   15,   1999   a   police   constable   of   Crime     Branch <\/p>\n
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\n                                                 8<\/span><\/p>\n
       produced the appellant and accordingly the appellant was arrested  in <\/p>\n
       Phaltan   Police   Station   on   October   15,   1999.   One   Suresh   Shankar <\/p>\n
       Jadhav has produced the Yamaha motor cycle which was used while <\/p>\n
       committing the offence.  Seizure panchanama was drawn on October <\/p>\n
       15, 1999 at Exh. 9.  After receipt of the papers from Malshiras Police <\/p>\n
       Station,   PSI   Patil   added   Section   302   IPC.   During   the   course   of <\/p>\n
       investigation,   it   transpired   that   the   original   accused   No.2   was   also <\/p>\n
       involved   and,   therefore,   he   was   arrested   on   October   18,   1999.   On <\/p>\n
       December   1,   1999,   viscera   was   sent   to   Chemical   Analyser   through <\/p>\n
       Police Constable. While in custody, appellant expressed his desire to <\/p>\n
       point out the spot where he had actually committed the murder  of the <\/p>\n
       victim   and   threw   the   dead   body   in   the   canal.     Accordingly   a <\/p>\n
       memorandum was prepared and the appellant pointed out the place.\n<\/p>\n
       However,   nothing   was   recovered   from   the   said   place.     It,   however, <\/p>\n
       appears from the panchanama that the place is just nearby the canal <\/p>\n
       and it was covered by Nilgiri trees.   After the investigation was over, <\/p>\n
       charge-sheet   was   submitted   in   the   Court   of   learned   Judicial <\/p>\n
       Magistrate,   Phaltan.   As   the   offence   was   exclusively   triable   by   the <\/p>\n
       Court of Sessions, the case was committed to the Court of Session for <\/p>\n
       trial.\n<\/p>\n
    11. The learned Sessions Judge framed the charges against the appellant <\/p>\n
       for an offence punishable under Section 302, 201 and 364, read with <\/p>\n
       34 IPC.  Both the accused pleaded not guilty and claimed to be tried.\n<\/p>\n
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\n                                                   9<\/span><\/p>\n
    12. In   support   of   the   case   of   the   prosecution,   it   had   examined   seven <\/p>\n
        witnesses viz. (1) PW 1-Dashrath Ramchandra Ghadage at Exh. 15, <\/p>\n
        who acted as panch witness to inquest panchanama dated October 17, <\/p>\n
        1999 at Exh. 16.   (2) PW 2-Popat Dattuba Salunkhe, who acted as <\/p>\n
        panch witness   to the spot panchanama dated October 14, 1999, (3) <\/p>\n
        PW 3- Dattoba Damodar Jadhav, son of the victim at Exh. 19, who had <\/p>\n
        made missing complaint on October 14,1999 at Exh. 20 and thereafter <\/p>\n
        lodged  report at Malshiras on October 16, 199 at Exh. 21. (4) PW 4-\n<\/p>\n
        Jayashri   Ankush   Chikane   at   Exh.   22,   one   of   the   daughters   of   the <\/p>\n
        victim   and   sister-in-law   of   the   appellant,   (5)   PW   5-Bayadabai   Anil <\/p>\n
        Balgude at Exh. 23 the other daughter of the victim, (6) PW 6- Dr. <\/p>\n
        Dhananjay Shrikrishna Danave at Exh. 26 who carried out the post <\/p>\n
        mortem, and (7) PW 7 Investigating Officer Bajirao Patil at Exh. 29.\n<\/p>\n
        The   statement   of   the   appellant   under   Section   313   of   the   Code   of <\/p>\n
        Criminal  Procedure,  1973   (for   short  Cr.P.C.)  was recorded.    On the <\/p>\n
        basis   of   material   on   record,   as   indicated   earlier,   the   appellant   was <\/p>\n
        convicted   under   Sections   302,   201   and   364   IPC.   As   far   as  original <\/p>\n
        accused   No.2   is   concerned,   he   was   not   found   guilty   of   any   of   the <\/p>\n
        offences punishable under Sections 302, 201 and 364 IPC and he was <\/p>\n
        accordingly acquitted.\n<\/p>\n
    13. In   support   of   this   appeal,   we   have   heard   at   length   Shri   Bansode, <\/p>\n
        learned counsel for the appellant and Mrs. Shinde, learned Additional <\/p>\n
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\n                                          10<\/span><\/p>\n
       Public Prosecutor, for the State.   With the assistance of the learned <\/p>\n
       counsel, we have gone through the evidence on record.\n<\/p>\n
    14. The learned Counsel for the appellant submitted that this is a <\/p>\n
       case of circumstantial evidence. The prosecution has not proved <\/p>\n
       its case beyond reasonable doubt. He submitted that where the <\/p>\n
       case is based on circumstantial evidence of last seen, inference <\/p>\n
       of guilt can justifiably   be drawn only when all incriminating <\/p>\n
       circumstances are found incompatible with innocence of accused.\n<\/p>\n
       The guilt of the accused has to be proved beyond reasonable <\/p>\n
       doubt and should be shown closely connected to principal fact <\/p>\n
       sought   to   be   proved.   He   relied   upon   several   judgments   in <\/p>\n
       support of this submission.\n<\/p>\n
    15. He further submitted that the prosecution has not established <\/p>\n
       the motive.  If at all the appellant intended to commit murder <\/p>\n
       of the victim, he would not have surrendered the jeep to the <\/p>\n
       victim.   It is his defence that he had paid an amount of Rs.\n<\/p>\n
       35,000\/- to the victim and thereafter he left her at Phaltan. It <\/p>\n
       was submitted on behalf of the appellant that thereafter he had <\/p>\n
       no   concern   whatsoever   and   he   is   not   aware   as   to   what <\/p>\n
       happened to the victim thereafter. It was further submitted that <\/p>\n
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\n                                             11<\/span><\/p>\n
       the alleged incident in question took place on October 12, 1999 <\/p>\n
       and the dead body of the victim was found on October 16, 1999.\n<\/p>\n
       As   the   prosecution   is   relying   upon   the   last   seen   theory,   the <\/p>\n
       prosecution has to establish that nobody else met  the victim <\/p>\n
       between October 12, 1999 and October 16, 1999. In that behalf, <\/p>\n
       the   prosecution   has   not   led   any   satisfactory   evidence   to <\/p>\n
       substantiate that it was the appellant alone who was lastly seen <\/p>\n
       with the victim before her death.  In support of this submission, <\/p>\n
       the learned counsel for the appellant has relied upon several <\/p>\n
       judgments.\n<\/p>\n
    16. On   the   other   hand,   Mrs.Shinde,   learned   Additional   Public <\/p>\n
       Prosecutor,   supported   the   impugned   judgment.   She   submitted <\/p>\n
       that   the   prosecution   has   proved   the   motive   as   also   has <\/p>\n
       established the entire chain which points towards the guilt of <\/p>\n
       the appellant alone.\n<\/p>\n
    17. She further submitted that there was fairly strong motive for <\/p>\n
       the appellant to commit murder in question. He took charge of <\/p>\n
       the victim in the morning of October 12, 1999 by taking her on <\/p>\n
       motorcycle from village Rajuri. The appellant though claimed to <\/p>\n
       have repaid the amount of Rs.35,000\/- on October 12, 1999 he <\/p>\n
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\n                                            12<\/span><\/p>\n
       failed to establish the said fact. In fact the appellant took the <\/p>\n
       victim alongwith him on motorcycle on the pretext  of payment <\/p>\n
       of   Rs.35,000\/-.   The   prior   and   subsequent   conduct   of   the <\/p>\n
       appellant was very unnatural. The prosecution has relied upon <\/p>\n
       following circumstances to establish the guilt of the appellant:\n<\/p>\n
       (1)  Motive,<\/p>\n
       (2)  Last seen,<\/p>\n
       (3)  Conduct of the appellant,<\/p>\n
       (4)  Post crime conduct of the appellant.\n<\/p>\n
    18. When   the   case   rests   upon   the   circumstantial   evidence,   such <\/p>\n
       evidence must satisfy the following tests:-\n<\/p>\n
       i)the circumstances from which an inference of guilt is sought to
\n       be drawn, must be cogently and firmly established;\n<\/p>\n
       ii)those circumstances should be of definite tendency unerringly
\n       pointing towards guilt of the accused;\n<\/p>\n
       iii)the circumstances, taken cumulatively, should form a chain so
\n       complete   that   there   is   no   escape   from   the   conclusion   that
\n       within all human probability the crime was committed by the
\n       accused and none else; and\n<\/p>\n
       iv)the   circumstantial   evidence   in   order   to   sustain   conviction <\/p>\n
       must be complete and incapable of explanation of any other
\n       hypothesis   than   that   of   the   guilt   of   the   accused   and   such
\n       evidence should not only be consistent with the guilt of the
\n       accused   but   should   be   inconsistent   with   his   innocence.   [See
\n       Gambhir  v.  State   of   Maharashtra  MANU\/SC\/0067\/1982<\/a>]   See
\n       also  Rama   Nand  v.  State   of   Himachal   Pradesh
\n       MANU\/SC\/0209\/1981,  Prem   Thakur<\/a>  v.  State   of   Punjab
\n       MANU\/SC\/0097\/1982,  Earabhadrappa  v.  State   of   Karnataka
\n       (1983)   2  SCC   330:   AIR   1983  SC   446,  Gian   Singh  v.  State   of
\n       Punjab  MANU\/SC\/0173\/1986,  Balvinder   Singh  v.  State   of <\/p>\n
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\n                                           13<\/span><\/p>\n
       Punjab MANU\/SC\/0160\/1986.\n<\/p>\n
    19. As far back as in 1952 in  Hanumant Govind Nargundkar  v.\n<\/p>\n
       State of M.P. AIR 1952 SC 3443, it was observed thus:\n<\/p>\n
       It is well to remember that in cases where the evidence is of a
\n       circumstantial   nature,   the   circumstances   from   which   the
\n       conclusion of guilt is to be drawn should in the first instance <\/p>\n
       be fully established, and all the facts so established should be
\n       consistent only with the hypothesis of the guilt of the accused.
\n       Again, the circumstances should be of a conclusive nature and
\n       tendency   and   they   should   be   such   as   to   exclude   every <\/p>\n
       hypothesis but the one proposed to be proved. In other words,
\n       there must be a chain of evidence so far complete as not to <\/p>\n
       leave any reasonable ground for a conclusion consistent with
\n       the innocence of the accused and it must be such as to show
\n       that within all human probability the act must have been done <\/p>\n
       by the accused.\n<\/p>\n
    20. A   reference   may   be   made   to   a   later   decision   in   Sharad <\/p>\n
       Birdhichand Sarda v. State of Maharashtra MANU\/SC\/0111\/1984.\n<\/p>\n
       Therein, while dealing with circumstantial evidence, it has been <\/p>\n
       held that the onus was on the prosecution to prove that the <\/p>\n
       chain  is complete  and   the  infirmity  of  lacuna in  prosecution <\/p>\n
       cannot   be   cured   by   false   defence   or   plea.   The   conditions <\/p>\n
       precedent  in  the words of the  Apex   Court,  before conviction <\/p>\n
       could   be   based   on   circumstantial   evidence,   must   be   fully <\/p>\n
       established.  They are (SCC pp.185, para 153):\n<\/p>\n
       i)the circumstances from which the conclusion of guilt is to be
\n       drawn should be fully established.  The circumstances concerned
\n       must or should and not may be established;\n<\/p>\n
       ii)the facts so established  should  be consistent  only  with  the <\/p>\n
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\n                                            14<\/span><\/p>\n
       hypothesis of the guilt of the accused, that is to say, they should
\n       not   be   explainable   on   any   other   hypothesis   except   that   the <\/p>\n
       accused is guilty;\n<\/p>\n
       iii)the   circumstances   should   be   of   a   conclusive   nature   and
\n       tendency;\n<\/p>\n
       iv)they should exclude every possible hypothesis except the one
\n       to be proved; and <\/p>\n
       v) there must be a chain of evidence so complete as not to
\n       leave any reasonable ground for the conclusion consistent with
\n       the innocence of the accused and must show that in all human <\/p>\n
       possibility the act must have been done by the accused.\n<\/p>\n
    21. We may also make a reference to a decision of Apex Court in <\/p>\n
       C. Chenga Reddy v. State of A.P. MANU\/SC\/0928\/1996, wherein <\/p>\n
       it has been observed thus: (SCC pp.206-207, para 21)<\/p>\n
       21.In a case based on circumstantial evidence, the settled law is
\n       that   the  circumstances  from which  the conclusion  of  guilt  is <\/p>\n
       drawn should be fully proved and such circumstances must be
\n       conclusive in nature. Moreover, all the circumstances should be
\n       complete   and   there   should   be   no   gap   left   in   the   chain   of
\n       evidence. Further, the proved circumstances must be consistent <\/p>\n
       only with the hypothesis of the guilt of the accused and totally
\n       inconsistent with his innocence.\n<\/p>\n
    22. In  Sashi   Jena   and   Ors.  v.  Khadal   Swain   and   Anr.\n<\/p>\n
       MANU\/SC\/0106\/2004, the Apex Court again reiterated the well-\n<\/p>\n
       settled principle of law on circumstantial evidence.\n<\/p>\n
    23. Bearing the above principles of law enunciated by Apex Court, <\/p>\n
       we   have   scrutinized   scrupulously   and   examined   carefully   the <\/p>\n
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\n                                            15<\/span><\/p>\n
       circumstances appearing in this case against Appellant.\n<\/p>\n
    24. The   case   of   the  prosecution   is   that   the   appellant   committed <\/p>\n
       murder of the victim as she was persistently demanding him to <\/p>\n
       repay   the   loan   amount.   Though   the   appellant   had   assured <\/p>\n
       repayment of loan amount within six months, he did not repay <\/p>\n
       the amount. On one occasion the appellant handed over custody <\/p>\n
       of the vehicle and parked the vehicle near the house of the <\/p>\n
       victim for seven days.   However, considering the relations the <\/p>\n
       vehicle was handed over to the appellant so that he would be <\/p>\n
       in a position to carry on the transport business. Even despite <\/p>\n
       this, the appellant did not discharge the debt.  According to the <\/p>\n
       appellant he had sold the vehicle and that he paid the amount <\/p>\n
       of Rs.35,000\/- on October 12, 1999 and left the victim at Phaltan.\n<\/p>\n
       The appellant however has not established the fact that he had <\/p>\n
       actually paid the amount of Rs.35,000\/- to the victim on October <\/p>\n
       12,  1999.     The   prosecution   has  come   with   the   case   that   the <\/p>\n
       motive   behind   the   commission   of   the   offence   was   that   the <\/p>\n
       appellant never intended to repay the loan amount and in order <\/p>\n
       to dupe the victim, he committed the offence in question.\n<\/p>\n
    25. The first circumstance relied by the prosecution is motive. In <\/p>\n
       order to establish the motive the prosecution has examined PW3 <\/p>\n
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\n                                              16<\/span><\/p>\n
       Dattoba Damodar Jadhav at Exh.19. He is the son of victim.  He <\/p>\n
       deposed that his father died in an accident. After the death of <\/p>\n
       his   father,   the   victim   got   the   amount   of   Rs.1   lakh   from   the <\/p>\n
       Insurance   Company.   The   appellant   demanded   the   sum   of   Rs.\n<\/p>\n
       50,000\/- as hand loan from the victim for purchasing the jeep.\n<\/p>\n
       The amount of Rs.50,000\/- was given by the victim sometime <\/p>\n
       two years prior to the incident. The victim started demanding <\/p>\n
       the amount six months after it was given to the appellant. PW6 <\/p>\n
       had given missing report on October 14, 1999 at Exh.20, wherein <\/p>\n
       these facts have been set out. PW4 Jayashree Ankush Chikane <\/p>\n
       was examined at Exh.22. She is one of the daughters of the <\/p>\n
       victim. She also reiterated that on account of accidental death <\/p>\n
       of her father, the victim received Rs.1 lakh from the Insjurance <\/p>\n
       Company towards the compensation.  The appellant demanded a <\/p>\n
       sum of Rs.50,000\/- from the victim as hand loand for purchasing <\/p>\n
       jeep. The victim gave Rs.50,000\/- to the appellant for purchasing <\/p>\n
       the jeep.\n<\/p>\n
    26. In   this   regard   the   statement   of   the   appellant   u\/s.313   of   the <\/p>\n
       Cr.P.C. is also relevant. The question Nos.5, 6, 7, 8 and 9 and the <\/p>\n
       answers given by the appellant to these questions are relevant <\/p>\n
       and they read as under:-\n<\/p>\n
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\n                                          17<\/span><\/p>\n
      Q.5: It is in their evidence that their mother Malan gave Rs.
\n      50,000\/- to you  accused  No.1  and  you assured  to return the <\/p>\n
      same within six months. What you have to say about this?\n<\/p>\n
      Ans.: It is false.\n<\/p>\n
      Q.6: It is in their evidence that accordingly you accused No.1
\n      purchased a second hand jeep. What  you have to say about
\n      this?\n<\/p>\n
      Ans.: It is true<\/p>\n
      Q.7: It is in their evidence that their mother Malan many times <\/p>\n
      demanded   you   accused   No.1   a   sum   of   Rs.50,000\/-   but   you
\n      avoided to return the same on one or the other pretext. What <\/p>\n
      you have to say about this?\n<\/p>\n
      Ans.: It is true.\n<\/p>\n
      Q.8: It is in their evidence that as per the agreement you did
\n      not   return   the   hand   loan   of   Rs.50,000\/-   and   therefore   you
\n      accused No.1 handed over the custody of the jeep to Malan and <\/p>\n
      it was parked in front of the house of Malan for about 8 days,
\n      but thereafter Malan returned the said jeep to you accused No.1.\n<\/p>\n
      What you have to say about it?\n<\/p>\n
      Ans.: It is true.\n<\/p>\n
      Q.9: It is in their evidence that you accused No.1 assured that
\n      you will return the amount to their mother Malan as and when
\n      a jeep was sold by you.  What you have to say about this?\n<\/p>\n
      Ans.: It is true.\n<\/p>\n
    27. It has come in the evidence of PW5 Bayadabai Anil Balgude at <\/p>\n
      Exh.23 that while she was working with the victim on October <\/p>\n
      12, 1999 at about 11.30 am in the field, the appellant came there.\n<\/p>\n
      He took the victim to the house and on the pretext of payment <\/p>\n
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\n                                          18<\/span><\/p>\n
       of Rs.35,000\/- he took her on his motorcycle  and went towards <\/p>\n
       the canal. If at all the appellant really intended to repay the <\/p>\n
       amount of Rs.35,000\/-, naturally he would have paid the amount <\/p>\n
       either in the field or at any rate in the house of the victim.\n<\/p>\n
       This indicates that he had no intention to repay the amount.\n<\/p>\n
       Thus   the   prosecution   has   established   the   motive   for   the <\/p>\n
       commission of the crime. The appellant had a strong motive to <\/p>\n
       get  rid of the victim so that she would not demand repayment <\/p>\n
       of the loan amount persistently.\n<\/p>\n
    28. The second circumstance relied upon by the prosecution is “last <\/p>\n
       seen”.   As   indicated   earlier,   PW5   Bayadabai   deposed   that   on <\/p>\n
       October 12, 1999 her brothers PW3 Dattoba and Navnath had <\/p>\n
       been to college and School respectively. She was working with <\/p>\n
       the victim in the field which is situate near the village Rajuri.\n<\/p>\n
       While she was working in the field with the victim, at 11.30 am <\/p>\n
       the appellant came in the field.   He came on motorcycle and <\/p>\n
       took the victim to her house and thereafter the appellant and <\/p>\n
       the   victim   proceeded   towards   the   canal.   At   the   time   of <\/p>\n
       proceeding towards the canal with the accused, the victim told <\/p>\n
       PW5 (who had followed the victim to their house) not to go to <\/p>\n
       the field and that she was returning soon.  She further deposed <\/p>\n
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\n                                          19<\/span><\/p>\n
      that the victim was wearing kudake (ear tops) and Kalipot (a <\/p>\n
      sort of neckless) having gold bids. At about 12 O’  clock PW4 <\/p>\n
      Jayashree came from Dahigaon and asked where the victim is.\n<\/p>\n
      PW 5 told her that the appellant had come and taken away the <\/p>\n
      victim   with   him   on   his   motorcycle.     After   sometime   PW3 <\/p>\n
      Dattoba came from college and he also asked whereabouts of <\/p>\n
      the victim, whereupon she informed him that the appellant had <\/p>\n
      taken the victim on his motorcycle. They waited  upto 6 pm but <\/p>\n
      the victim did not return.\n<\/p>\n
    29. PW4 Jayashree deposed that one month prior to the incident, <\/p>\n
      the appellant had sold jeep and he had assured the victim that <\/p>\n
      he would return the amount on or before October 15, 1999. She <\/p>\n
      has stated that her mother   used to keep fast on the eve of <\/p>\n
      navaratra festival. In view of this, she had been to the house of <\/p>\n
      her mother (victim)   on October 12, 1999   and had took with <\/p>\n
      her some food articles of fast. PW4-Jayashree has stated that  at <\/p>\n
      about 9.30 am the appellant had come to her house on Yamaha <\/p>\n
      motorcycle and she asked him whether he  intends to pay the <\/p>\n
      amount to her mother (victim), and if he is ready, he should <\/p>\n
      take   her   with   him   to   the   victim’s   house.     The   appellant  <\/p>\n
      however declined  and  went away on motorcycle.   When she <\/p>\n
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\n                                          20<\/span><\/p>\n
       reached house of the victim, she did not find her in the house.\n<\/p>\n
       PW5 Bayadabai was at home and upon enquiry PW5 Bayadabai <\/p>\n
       informed her that the appellant had been to the house and he <\/p>\n
       took with him the victim on motorcycle.\n<\/p>\n
    30. PW3 Dattoba deposed that at 7 am on October 12, 1999 he left <\/p>\n
       the   house   for   college.   On   that   day   the   victim   and   PW5 <\/p>\n
       Bayadabai were at home. He returned to the house at 1 p.m. <\/p>\n
       and did not find the victim in the house. He therefore enquired <\/p>\n
       from   PW5   Bayadabai   about   the   victim.     On   enquiry   PW5 <\/p>\n
       informed him that the appellant had been to the house and had <\/p>\n
       taken victim with him on his motorcycle at 11.30 a.m.     He <\/p>\n
       further deposed that PW4 Jayashree had been to their house <\/p>\n
       and told him that the appellant had assured the victim that he <\/p>\n
       would repay the amount.   Though they waited till 5 p.m. the <\/p>\n
       victim did not return.  This fact is also substantiated from the <\/p>\n
       missing report dated October 14, 1999 at Exh.20 made by PW3 <\/p>\n
       Dattoba.\n<\/p>\n
    31. PW6 Dr.Dhananjay Shrikrushna Danave, Medical Officer at Rural <\/p>\n
       Hospital Akluj was examined at Exh.26. He conducted autopsy <\/p>\n
       and the post mortem on October 17, 1999. He deposed that the <\/p>\n
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\n                                              21<\/span><\/p>\n
       death might have been caused in this case approximately 4 days <\/p>\n
       before the autopsy.   In the post mortem report, it was noted <\/p>\n
       that the opinion about the time of death cannot be given as the <\/p>\n
       body was highly decomposed. However viscera was preserved <\/p>\n
       for chemical analysis.\n<\/p>\n
    32. In   the   statement   of   the   appellant   u\/s.313   of   the   Cr.P.C.,   the <\/p>\n
       questions   Nos.14,   15   and   33   and   the   answers   thereto   are <\/p>\n
       relevant. They read as under:\n<\/p>\n
       Q.14: It is the evidence of PW3, 4 and 5 that on the same day,
\n       i.e.on 12.10.99 P.W.4 Jayashri returned to her matrimonial house
\n       and at about 8.30 p.m.she asked you accused No.1 where you
\n       left her mother. On being enquired you told her a sum of Rs.\n<\/p>\n
       35,000\/-   was   given   to   Malan   by   you   and   you   left   near   the
\n       temple of Sadhubuwa at about 2.30 p.m. What you have to say <\/p>\n
       about this?\n<\/p>\n
       Ans: It is true.\n<\/p>\n
       Q.15: It is in the evidence of PW4 Jayashri that on 13.10.99 at <\/p>\n
       about   2.30   p.m.his   brother   Datta   came   to   her   house   and
\n       enquired about his mother. On being enquired Jayashri told him
\n       that you accused No.1 left his mother in Phaltan after giving her
\n       a sum of Rs.35,000\/-. What you have to say about it?
\n       Ans.: It is true.\n<\/p>\n
       Q.33: Do you want to say anything else?\n<\/p>\n
       Ans.: Myself and my brother Ankush were living in joint. When
\n       we   were   joint,   I   took   a   loan   of   Rs.50,000\/-   from   Malan.     I
\n       purchased the jeep. I gave Rs.35,000\/- to Malan after selling the
\n       jeep   and   I   reached   her   to   Phaltan   and   then   I   went   to   my
\n       village by ST Bus.  Thereafter I do not know what happened?\n<\/p>\n
    33. From the material on record we are satisfied that the victim <\/p>\n
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\n                                         22<\/span><\/p>\n
    was found in the company of the appellant on October 12, 1999 <\/p>\n
    and   the   victim   was   last   seen   alive   in   the   company   of   the <\/p>\n
    appellant. There is no evidence that after October 12, 1999 the <\/p>\n
    victim was seen alive anywhere.  Her dead body was found in <\/p>\n
    canal on October 16, 1999. PW6 Dr.Dhananjay  who conducted <\/p>\n
    autopsy and post mortem, deposed that the death might have <\/p>\n
    been   caused   in   this   case   four   days   before   autopsy.   The <\/p>\n
    prosecution has established the fact of victim last seen alive in <\/p>\n
    the   company   of   the   appellant   beyond   reasonable   shadow   of <\/p>\n
    doubt.   Since  this fact is established, it was for the appellant <\/p>\n
    to   satisfactorily   account   for   the   disappearance   of   the   victim.\n<\/p>\n
    He failed to give any satisfactory explanation and therefore, this <\/p>\n
    can be considered as circumstance of incriminating character. As <\/p>\n
    noted earlier, the appellant did not establish that     in fact he <\/p>\n
    had repaid the amount of Rs.35,000\/- to the victim on October <\/p>\n
    12, 1999. At some places impression was given that the victim <\/p>\n
    was left near Sadhubuwa Temple and at some other places that <\/p>\n
    the victim was left in phaltan. He has not examined any witness <\/p>\n
    to either establish payment of Rs.35,000\/- or that he left the <\/p>\n
    victim in Phaltan or near the Sadhubuwa Temple in Rajuri.  In <\/p>\n
    fact,   if   at   all   the   appellant   intended   to   repay   Rs.35,000\/-, <\/p>\n
    considering the relations between the parties, it was but natural <\/p>\n
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\n                                              23<\/span><\/p>\n
       on his part to repay the amount at the place of the victim.\n<\/p>\n
       However,   he   won   the   confidence   of   the   victim   and   on   the <\/p>\n
       pretext of repaying the amount he took her toward the canal.\n<\/p>\n
    34. The third circumstance relied upon by the prosecution is the <\/p>\n
       conduct   of   the   appellant.   The   conduct   of   the   appellant   was <\/p>\n
       extremely unnatural in not paying the amount of Rs.35,000\/- at <\/p>\n
       the   place   of   the   victim,   if   at   all   he   intended   to   repay   the <\/p>\n
       amount. The conduct of the appellant in taking the victim from <\/p>\n
       the village on his motorcycle and leaving her near Sadhubuwa <\/p>\n
       Temple is equally  unnatural.  Considering the relations, it was <\/p>\n
       expected from the appellant to drop the victim at  her place <\/p>\n
       after   repayment   of   the   amount,   assuming   he   paid   the   said <\/p>\n
       amount.. This apart from the fact that if at all the appellant had <\/p>\n
       sincere desire to pay the amount of Rs.35,000\/- he could have <\/p>\n
       certainly paid that amount at the place of the victim.\n<\/p>\n
    35. The fourth circumstance relied upon by the prosecution is the <\/p>\n
       post   crime   conduct   of   the   appellant.   Even   the   post   crime <\/p>\n
       conduct   of   the   appellant   is   eloquent.   It   has   come   in   the <\/p>\n
       evidence of PW4 Jayashri that she reached at her matrimonial <\/p>\n
       home at village Dahigaon at 7 p.m. on October 12, 1999. At 8.30 <\/p>\n
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\n                                             24<\/span><\/p>\n
       p.m.   the   appellant   reached   the   house   on   motorcycle.   She <\/p>\n
       enquired with the appellant about the victim. He informed PW4 <\/p>\n
       that he left the victim near Sadhubuwa Temple in the afternoon.\n<\/p>\n
       The   appellant   came   to   know   that   the   victim   did   not   reach <\/p>\n
       home. He however did not take any steps to search the victim.\n<\/p>\n
       Not only that, he did not bother to visit the house of the victim <\/p>\n
       and inform the family members as to in what circumstances he <\/p>\n
       left the victim. It has come in the evidence of PW7 Bajirao Patil, <\/p>\n
       Investigating   Officer   that   he   took   search   of   the   appellant   in <\/p>\n
       village Rajury  on October 14, 1999, but he could not find him <\/p>\n
       in the village. He also went to the village Dahigaon  in search <\/p>\n
       of the appellant. He however came to know that he had already <\/p>\n
       left   for   Phaltan.   It   is   only   on   October   15,   1999   the   police <\/p>\n
       constable   of   Crime   Detection   Branch   produced   the   appellant <\/p>\n
       before him at 6.30 pm while  he was in Phaltan Police Station <\/p>\n
       and where he arrested him.   The appellant has not given any <\/p>\n
       explanation as to his presence from October 13, 1999 to October <\/p>\n
       15,   1999.   The   post   crime   conduct   of   the   appellant   was   also <\/p>\n
       equally unnatural.\n<\/p>\n
    36. Mr.Bansode,   learned   counsel   for   the   appellant   strenuously <\/p>\n
       submitted that the prosecution has not established circumstantial <\/p>\n
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\n                                           25<\/span><\/p>\n
       evidence to establish the guilt of the appellant. He relied upon <\/p>\n
       the   judgment   of   the   Apex   Court   in   the   case   of  State   of <\/p>\n
       Haryana V\/s.Ved Prakash, 1994 Cri.L.J.140.  He submitted that <\/p>\n
       when   the   case   of   the   prosecution   is  based  on   circumstantial <\/p>\n
       evidence, the Court should adopt cautious approach for basing <\/p>\n
       the conviction on circumstantial evidence. He submitted that in <\/p>\n
       the present case, the prosecution has failed to establish in a <\/p>\n
       conclusive manner the presence of the appellant and the victim <\/p>\n
       together before the victim met with death, and the appellant is <\/p>\n
       entitled to be acquitted. We are unable to accept the submission <\/p>\n
       made   on   behalf   of   the   appellant.   As   indicated   above,   the <\/p>\n
       prosecution has satisfactorily established the last seen theory on <\/p>\n
       the basis of the evidence of PW5 Bayadabai, PW3 Dattoba and <\/p>\n
       PW6   Dr.Dhananjay.   This   fact   is   also   substantiated   from   the <\/p>\n
       missing report dated October 14, 1999 at Exh.20. The judgment <\/p>\n
       of the Apex Court in the case of Haryana   (supra) does not <\/p>\n
       advance further the case of the appellant.\n<\/p>\n
    37. Mr.Bansode, learned counsel for the appellant also relied upon <\/p>\n
       the   judgment   of   the   Apex   Court   in   the   case   of  Ramreddy <\/p>\n
       Rajeshkhanna Reddy and Anr. V\/s. State of A.P., 2006 ALL <\/p>\n
       M.R. (Cri.) 1533 (S.C.) and in particular headnotes B and C. He <\/p>\n
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\n                                           26<\/span><\/p>\n
       submitted that last seen theory comes into play where time gap <\/p>\n
       between the point of time when the accused and the deceased <\/p>\n
       were last seen alive and the deceased is found dead is so small <\/p>\n
       that possibility of any person  other than the accused being the <\/p>\n
       author of the crime becomes impossible, and even in such a <\/p>\n
       case,   the   court   should   look   for   some   corroboration.   In   the <\/p>\n
       present   case,   we   have   already   held   that   the  prosecution   has <\/p>\n
       established last seen theory beyond any reasonable doubt on the <\/p>\n
       basis   of   evidence   of   PW5   Bayadabai,   PW3   Dattoba   and   PW6 <\/p>\n
       Dr.Dhananjay. PW6 Dr.Dhananjay clearly deposed that the death <\/p>\n
       of the victim might have been caused in this case approximately <\/p>\n
       four days before the autopsy and the autopsy was conducted on <\/p>\n
       October 17, 1999. The judgment in the case of Ramreddy (supra) <\/p>\n
       is not applicable in the facts and circumstances of the present <\/p>\n
       case.\n<\/p>\n
    38. Mr.Bansode also relied upon the judgment of this Court in the <\/p>\n
       case   of   Manoharsing   Raghuvirsingh   Thakur   V\/s.State   of <\/p>\n
       Maharashtra, 2003 Bom.C.R. (Cri.) 1773 and in particular head-\n<\/p>\n
       note E thereof. He submitted that the prosecution in the present <\/p>\n
       case is unable to prove the chain of events and consequently <\/p>\n
       cannot   make   use   of   answers   given   by   the   appellant   in   his <\/p>\n
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\n                                             27<\/span><\/p>\n
       statement u\/s.313 of the Cr.P.C.   We have already held that in <\/p>\n
       the present case, that  the prosecution has established chain of <\/p>\n
       circumstances beyond any reasonable doubt. The answers given <\/p>\n
       by   the   appellant   to   questions   put   u\/s.313   of   the   Cr.P.C.   also <\/p>\n
       corroborate the evidence led by the prosecution. The reliance <\/p>\n
       placed   on   the   judgment   of   Manoharsing   Thakur   (supra)   is <\/p>\n
       misconceived and does not help the appellant.\n<\/p>\n
    39. Mr.Bansode, learned counsel for the appellant also relied upon <\/p>\n
       the judgment of the Apex Court in the case of  State of Goa <\/p>\n
       V\/s.Pandurang   Mohite,   2009   (1)   Bom.C.R.(Cri.)   308.    He <\/p>\n
       submitted   that   where   the   case   is   based   on   circumstantial <\/p>\n
       evidence of last seen inference of guilt can justifiably be drawn <\/p>\n
       only   when   all   incriminating   circumstances   are   found <\/p>\n
       incompatible with innocence of accused. Guilt of accused has to <\/p>\n
       be   proved   beyond   reasonable   doubt,   and   should   be   shown <\/p>\n
       closely connected to principal fact sought to be proved.\n<\/p>\n
    40. Mr. Bansode, learned counsel for the appellant submitted that it <\/p>\n
       has come on record that the hands and legs of the victim were <\/p>\n
       found   to   have   been   tied   with   the     rope.   Though   the <\/p>\n
       Investigating   Officer   attempted   to   know   wherefrom   the   rope <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 15:34:19 :::<\/span>
\n                                              28<\/span><\/p>\n
       was procured, he could not procure the similar rope. He further <\/p>\n
       submitted that the identity of the victim itself is in doubt.  We <\/p>\n
       are unable to appreciate the submission that the victim was not <\/p>\n
       identified. PW3 Dattoba identified the victim. For the purpose of <\/p>\n
       identification photographs marked as Articles A1 to A16 were <\/p>\n
       taken and he also deposed that the photographs were of the <\/p>\n
       victim. PW7 Dr.Dhananjay was shown the photographs marked <\/p>\n
       as Articles A1 & A2.   After seeing that photographs, he deposed <\/p>\n
       that he conducted autopsy on the dead body that appeared in <\/p>\n
       the photographs.\n<\/p>\n
    41. It is required to be noted that from the evidence of the Doctor, <\/p>\n
       who carried out post-mortem  of the dead body, it is clear that <\/p>\n
       death of the victim must have been taken place   about four <\/p>\n
       days ago.  If that period is to be considered, the accused was <\/p>\n
       last seen in the company of the deceased on the relevant day <\/p>\n
       i.e.prior   to   four   days   of   her   death.   When   the   dead   body   is <\/p>\n
       already   identified   by   the   relatives   of   the   deceased,   it   is   not <\/p>\n
       possible to accept the say of the appellant accused that it is <\/p>\n
       doubtful that the dead body which is found is of the deceased <\/p>\n
       herself. The fact that at the relevant time, the victim was lastly <\/p>\n
       seen in the company of the appellant accused, clearly establishes <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:34:19 :::<\/span>
\n                                             29<\/span><\/p>\n
       the said circumstance against the accused. Simply because rope <\/p>\n
       has not been traced, itself cannot be a circumstance by which <\/p>\n
       one can say that the prosecution has not established its case.\n<\/p>\n
    42. Mr.Bansode, learned counsel for the appellant also relied upon <\/p>\n
       the judgment of the Apex Court in the case of State of Gujarat <\/p>\n
       V\/s.Shyamlal   Mohanlal   Choksi,   AIR   1965   SC   1251.  He <\/p>\n
       contended   that   the   accused   person   cannot   be   compelled   to <\/p>\n
       disclose the documents which are incriminating and based on <\/p>\n
       his  knowledge.     In  the  instant   case,     nothing   is  brought   on <\/p>\n
       record to indicate that the appellant was compelled to disclose <\/p>\n
       any documents. The judgment in the case of State of Gujarat <\/p>\n
       (supra) does not assist the appellant  in any manner.\n<\/p>\n
    43. In   the  present   case,   the   prosecution   has   cogently   and   firmly <\/p>\n
       established the circumstances from which, the inference of guilt <\/p>\n
       is   drawn.   These   circumstances   are   of   definite   tendency   un-\n<\/p>\n
       erringly   pointing   towards   the   guilt   of   the   accused.   The <\/p>\n
       circumstances taken cumulatively from the chain, so complete <\/p>\n
       that   there   is   no   escape   from   the   conclusion   that   within   all <\/p>\n
       human probability the crime was committed by the accused and <\/p>\n
       none-else   and   finally   the   circumstantial   evidence   led   by   the <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 15:34:19 :::<\/span>
\n                                           30<\/span><\/p>\n
       prosecution in the present case is complete and incapable of <\/p>\n
       explanation   of   other   hypothesis,   than   that   of   guilt   of   the <\/p>\n
       accused.  The evidence is not only consistent with the guilt of <\/p>\n
       the accused, but  is also  inconsistent with his innocence. The <\/p>\n
       case of the State of Goa (supra) does not assist the appellant in <\/p>\n
       any manner.\n<\/p>\n
    44. Mrs.Shinde,   learned   APP   relied   upon   the   Division   Bench <\/p>\n
       Judgment   of   this   Court   in   the   case   of  Shivayay   Apayya <\/p>\n
       Marihal V\/s. State of Goa,  2008 ALL M.R. (Cri.)2246 and in <\/p>\n
       particular head-note B. She submitted that once the prosecution <\/p>\n
       has established that the missing person was last seen in the <\/p>\n
       company of the appellant accused, then it is obligatory on his <\/p>\n
       part   to   explain   under   what   circumstances   they   parted   their <\/p>\n
       company.   In the present case, the prosecution has led cogent <\/p>\n
       and firm evidence in establishing the last seen theory. However <\/p>\n
       the   appellant   is   not   explaining   under   what   circumstances   he <\/p>\n
       parted with the victim.\n<\/p>\n
    45. Considering the evidence on record, we are satisfied that the <\/p>\n
       prosecution has established the guilt of the accused beyond any <\/p>\n
       reasonable   doubt.   The   chain   of   circumstances   has   been   duly <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 15:34:19 :::<\/span>
\n                                           31<\/span><\/p>\n
    established by the prosecution. The learned Sessions Judge has <\/p>\n
    rightly convicted the appellant for the offence punishable u\/s.302 <\/p>\n
    IPC and sentenced him to undergo R.I.for life and to pay fine of <\/p>\n
    Rs.5,000\/-, in default to undergo one months R.I.    The learned <\/p>\n
    Sessions Judge has   rightly found the appellant guilty u\/s.201 <\/p>\n
    IPC and sentenced him to undergo R.I.for three years and to <\/p>\n
    pay fine of Rs.5,00\/-, in default to undergo 15 days R.I.   The <\/p>\n
    appellant is also rightly held guilty u\/s.364 IPC and sentenced to <\/p>\n
    undergo   R.I.   for   three   years   and   to   pay   fine   of   Rs.500\/-,   in <\/p>\n
    default, to undergo further R.I. for  15 days.   The substantive <\/p>\n
    sentences shall run concurrently. We find no error on the part <\/p>\n
    of   the   learned   Sessions   Judge.   In   the   light   of   the   aforesaid <\/p>\n
    position, we find no merit in the appeal. Appeal is accordingly <\/p>\n
    dismissed.\n<\/p>\n
             (R.G.KETKAR, J.)                          (P.B.MAJMUDAR, J.) \n\n\n\n\n\n                                                              ::: Downloaded on - 09\/06\/2013 15:34:19 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Tal. Malshiras vs The State Of Maharashtra on 2 February, 2010 Bench: P. B. Majmudar, Rajesh G. Ketkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO. 1339 OF 2002 Shivaji Pandurang Chikane ) Age 22 years, r\/o Chikane vasti, Dahigaon ) Tal. Malshiras, Dist. Solapur […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-130413","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nTal. 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