Bhogale 2.apl-444-2014.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.444 OF 2014 1. Rajkumar @ Bheli Ramtirth Nishad @ Sunil Yadav Age 23 years, Occupation : Service Residing at Khar Road, 6th Road, Gurugangeshwar Dham, Khar (West), Mumbai (presently lodged at Nashik Central Prison) 2. Shrishyam Jagprasad Paswan @ Gujar Age 22 years, Occupation : Service Residing at Omkar Lane, Near Hanuman Mandir, S. K. Patil Marg, Santacruz (West), Mumbai 54 (presently lodged at Nashik Central Prison) … Appellants Versus The State of Maharashtra (At the instance of Sr. Inspector of Police) in C.R. No.472/2011 .… Respondent **** Adv. Jagdish G. Shetty a/w Adv. Mohammed Ayub Shaikh, Adv. Shilpa Salve, for the appellants. Mr. K. V. Saste, APP, for the respondent-State. **** CORAM : M. S. KARNIK & SANDESH D. PATIL, JJ. DATE : 1st OCTOBER 2026 1 2026:BHC-AS:40138-DB Bhogale 2.apl-444-2014.doc JUDGMENT (PER M. S. KARNIK, J.) : 1. The challenge in this appeal is to the judgment and order dated 21st February 2014 passed by the Court of Sessions for Greater Bombay at Bombay convicting the appellants for the offences punishable under Sections 328, 302 and 394 read with 34 of the Indian Penal Code (“IPC”, for short). 2. The prosecution case in brief is that the appellant No.1 - Rajkumar @ Bheli Ramtirth Nishad @ Sunil Yadav (original accused No.1), and the present appellant No.2 - Shrishyam Jagprasad Paswan @ Gujar (absconding) (original accused No.2) committed the murder of ‘A’ (the deceased) on 17th August 2011. It is the case of the prosecution that the accused No.1 - Rajkumar @ Bheli Ramtirth Nishad @ Sunil Yadav was working as House Help in the house of the deceased along with one Devendra and that, on the date of the incident, accused No.1 gave a chocolate to Devendra, as a result of which he fell unconscious, after which he was murdered and articles were stolen. Devendra upon regaining consciousness informed PW1 – ‘D’ (husband of the deceased) and 2 Bhogale 2.apl-444-2014.doc PW3 – ‘S’ (daughter of deceased) that he was administered the chocolate by accused No.1 pursuant to which he fell unconscious. After he woke up, he saw the deceased lying in a pool of blood on the bed. 3. When PW1 - ‘D’ and PW3 - ‘S’ came home, they saw the deceased lying in a pool of blood and found certain articles and money missing from the house. The motive for commission of the murder was robbery. PW1 – husband of the deceased lodged the FIR which was registered vide CR No.472 of 2011 against two accused alleging offence punishable under Section 394, 397 and 302 of the IPC. 4. During the course of investigation, police arrested the accused. The chargesheet came to be filed upon completion of the investigation. The offence was tried by the Court of Sessions. The accused No.1 and the present appellant pleaded not guilty of the charge and claimed to be tried. 5. The prosecution examined 15 witnesses : 1. PW1 – ‘D’ (husband of the deceased and original 3 Bhogale 2.apl-444-2014.doc complainant). 2. PW2 – Dilip Tarachand Bulchandani, Panch to the spot panchnama. 3. PW3 – ‘S’ (daughter of the deceased). 4. PW4 – Ravi Ramesh Parab, Panch in respect of recovery panchnama (brass pot) Article-3 from accused No.1. 5. PW5 – Kuppuswamy Mokkan Harijan, the Recovery Panch in respect of a wrist watch which was recovered from the house of the present appellant’s brother. 6. PW6 – the Nayab Tahsildar who conducted the identification parade of the accused No.2 on 21st December 2011. 7. PW7 – Vasudeo Chatursingh Baberwal, who is the Recovery Panch in respect of the money amounting to Rs.14,000/- from the appellant. 8. PW8 – Jayraj Narsingrao Ranware, the Officer attached to DCB CID, Unit 9, who arrested the appellant on 23rd August 2011. 9. PW9 – Dr. Subodh Vishwanath Bhale, who conducted the Post Mortem. 10. PW-10 – Deepak Bhimrao Gaikwad, who conducted spot panchnama. 4 Bhogale 2.apl-444-2014.doc 11. PW11 – Manishankar Bhailal Sharma, who had last seen the accused. 12. PW12 – Tanaji Shankar Surulkar is the Investigating Officer. 13. PW13 – Sagar Jaganath Shivalkar, attached to DCB, CID, Unit-9. 14. PW14 – Prabhakar Dattaram Dhumak, who is the neighbour of the appellant and had given his room to him. 15. PW15 – Dr. Prafula Hindurao Bhansode, who is a Medical Officer at the K.B. Bhabha Hospital. 6. At the outset, it would be pertinent to mention that the appellant No.2 has jumped bail and is absconding. The Hon’ble Supreme Court in Dhananjay Rai alias Guddu Rai vs. State of Bihar1 has clarified the position as to what procedure is to be resorted to in respect of an appeal of an absconding accused which is already admitted. This appeal has been admitted. Learned counsel for the appellants submits that this appeal should be heard on merits. Having regard to the law laid down by the Hon’ble Supreme Court in Dhananjay Rai alias Guddu Rai (supra), we 1 AIR 2022 Supreme Court 3346 : AIR Online 2022 SC 1012 5 Bhogale 2.apl-444-2014.doc proceed to hear the appeal on merits. 7. The present case is based completely on circumstantial evidence. So far as appellant No.1 - Rajkumar @ Bheli Ramtirth Nishad @ Sunil Yadav (original accused No.1) is concerned, it is pertinent to note that Criminal Appeal No.32 of 2024 preferred by him was heard by this Court and by a reasoned judgment and order dated 26th June 2024, the appeal came to be allowed. We are therefore considering this appeal only so far as appellant No.2 - Shrishyam Jagprasad Paswan @ Gujar (original accused No.2) is concerned. For convenience and considering the nature of the allegations made against the present appellant No.2, it would be useful to refer to the findings of this Court in extenso. The same reads thus :- “6. Mr. Shetty, learned counsel for the appellant submitted that the prosecution case rests on circumstantial evidence i.e. the evidence of last seen; recovery of a brass pot, at the instance of the appellant; and identification of the appellant by PW11-Mani Shankar Bhailal Sharma. Learned counsel for the appellant submitted that all the said circumstances suffer from several infirmities and as such cannot be relied upon and that the circumstances together do not form a chain, which would point to the complicity of the appellant. He submitted that even the CA report does not further the prosecution case, in any way. 7. Learned APP supported the judgment and order of 6 Bhogale 2.apl-444-2014.doc conviction and sentence and submitted that no interference was warranted in the same. 8. At the outset, we may note that the prosecution case rests on circumstantial evidence. The law relating to circumstantial evidence no longer remains res integra. 9. In Hanumant vs State of Madhya Pradesh which is one of the earliest decision, the Apex Court observed specifically in para 12, as under: “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….…” 10. In Sharad Birdhichand Sarda v/s State of Maharashtra, the Apex Court has laid down the five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Para 153 of the said judgment is reproduced hereinunder :- “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 7 Bhogale 2.apl-444-2014.doc Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following 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.” Thus, it is clear from the aforesaid that it is the duty of the prosecution to prove each and every circumstance as against the accused, no chain of which should be missing. Each of the circumstance must point to the complicity of the accused and the established facts must be consistent / in consonance with only the guilt of the accused and must exclude any hypothesis consistent with the innocence of the accused. 11. It is on the touchstone of these principles that we proceed to analyze the evidence adduced by the prosecution. 12. At the outset, we may note, that as far as homicidal death of deceased-Aarti is concerned, the same is not disputed. The only question that arises for consideration before us, is whether the appellant is the author of the same? 13. The prosecution has relied essentially on three circumstances i.e. of last seen evidence, recovery of brass pot and 8 Bhogale 2.apl-444-2014.doc the appellant’s identification by PW11-Mani Shankar Bhailal Sharma (watchman). 14. As far as the evidence of last seen is concerned, the prosecution has relied on the evidence of PW1-Dilip and PW3- Sonam, husband and daughter of the deceased. A perusal of the evidence of PW1-Dilip and PW3-Sonam would reveal that on the day of the incident i.e. on 17th August 2011, PW1-Dilip alongwith his daughter PW3-Sonam, had left home to attend his office at 1:00 p.m; that at that time, the deceased alongwith their two servants was there in the house i.e. the appellant and Devendra; that they tried to call up the deceased, however the deceased did not respond to the calls; that they called Devendra, however, he too did not respond to their calls; and, that finally at about 7:45 p.m. Devendra replied to PW1-Dilip’s call and disclosed to PW1- Dilip, that his wife was lying in a pool of blood. According to PW1- Dilip and PW3-Sonam, Devendra was talking in an incoherent manner. According to both these witnesses, when they reached home at about 8:00 p.m., Devendra disclosed to them that the appellant had given him a chocolate to eat, pursuant to which he fell unconscious. Pursuant thereto, both the witnesses went to the bed room and found the deceased lying on the bed with her legs tied by a rope and with a cut injury on her neck. The appellant was not found in the house. The witnesses on taking a search, found that an amount of Rs.40,000/- to Rs.50,000/- and the deceased i- phone was missing. Both, PW1-Dilip and PW3-Sonam have stated that the police took photographs and obtained fingerprints from the cupboards and took the deceased to Cooper Hospital, where she was declared to be dead. Pursuant thereto, PW1-Dilip lodged an FIR (Exhibit – 14). According to PW1-Dilip, later on, they found that the deceased, Bentex Watch was also missing and as such informed the police of the same. PW1-Dilip has further stated that the police brought the appellant to their house, pursuant to which he produced a brass pot used to prepare chatani, from the bedroom of PW3-Sonam i.e. from below the dressing table in the bed room. According to PW1-Dilip, the said brass pot was having dried blood-stains. 15. The evidence of PW3-Sonam, daughter of the deceased is on similar lines. 16. We may note, that Devendra who disclosed what had happened to him and the deceased, was never examined by the prosecution. The question therefore, that arises for consideration 9 Bhogale 2.apl-444-2014.doc is, whether the said evidence deposed to, by PW1-Dilip and PW3- Sonam can be termed as ‘last seen evidence’? Our answer is to the negative. Admittedly, PW1-Dilip and PW3-Sonam were not present in the house at the time when the incident took place. PW1-Dilip and PW3-Sonam have deposed on the basis of what was disclosed by Devendra to them i.e. of the appellant giving him (Devendra) a chocolate, pursuant to which he fell unconscious and on regaining consciousness he saw the deceased lying in a pool of blood. The said evidence i.e. the disclosure made by Devendra to PW1-Dilip being hearsay, cannot be relied upon, since the prosecution failed to examine Devendra, though he was available. 17. As far as the recovery of a brass pot from the house of the deceased i.e. from the bed room of PW3-Sonam is concerned, the said recovery appears to be doubtful. Firstly, the dog-squad was brought to the house, however nothing was found by the dog- squad; secondly, PW3-Sonam in her cross-examination has stated that there were about ten policemen who had come to their house on the said day; that they were in their house till 3 a.m.; that the police had taken search of the entire house; thirdly, the appellant was brought from Uttar Pradhesh to Mumbai on 21st August 2011, was let out and thereafter, arrested on 23rd August 2011, on which day the brass pot was recovered at his instance from the deceased house i.e. from PW3-Sonam’s room. 18. In the light of the evidence brought on record, we find it difficult to believe the recovery of a brass pot at the instance of the appellant. Apart from the aforesaid, the brass pot was sent to the Chemical Analyzer, however the report shows that the DNA profile obtained from the blood detected on the metal pot was not interpretable. 19. As far as identification by PW11-Mani Shankar Bhailal Sharma, watchman of the building is concerned, his evidence does not in any way, further the prosecution case vis-a-vis the identification of the appellant. 20. PW11-Mani Shankar Bhailal Sharma, in his evidence has stated that he was working as a watchman in the building in question where the deceased was residing since 2011; that on 17th August 2011, he attended duty at the gate of the society between 8:00 a.m. to 8:00 p.m. PW11-Mani Shankar Bhailal Sharma, had further deposed that at about 2:00 p.m. one person by the name Rajkumar came to him and disclosed his name as Rajkumar; that 10 Bhogale 2.apl-444-2014.doc when he questioned Rajkumar, Rajkumar told him that he wanted to meet one person by name Sunil, on the second floor of the building. PW11-Mani Shankar Bhailal Sharma identified Rajkumar before the Court by pointing out to the appellant. He has stated that the appellant went to the second floor of the building at 2:00 p.m. and returned back at 5:00 p.m. The evidence of PW11-Mani Shankar Bhailal Sharma was recorded almost 12 days after the incident. It is also pertinent to note, that the appellant’s name is Rajkumar @ Sunil. It is the prosecution case, that the appellant who was working in the deceased’s house administered a chocolate to Devendra, after which he fell unconscious and when he woke up, he saw the deceased lying in a pool of blood. According to PW11-Mani Shankar, the appellant had gone to the second floor of the building at 2:00 p.m. and had returned at 5:00 p.m. alongwith accused No.2. How and when accused No.2, who was not working in the building went to the said floor, is not clear. It appears from the evidence of PW11-Mani Shankar, that there is some confusion with respect to identification of the appellant. 21. As far as dog-squad being taken to the spot on the day of the incident is concerned, the same has been deposed to, by PW10- Deepak Gaikwad, Nayab Tahsildar, however, the report of the dog- squad has not been placed on record. Similarly, it is not disputed that fingerprints were also taken, however, no report was produced by the prosecution during trial, despite fingerprints being taken. 22. As far as administering stupefying substance to Devendra is concerned, Devendra was examined belatedly, after more than a month, as a result of which nothing was found in his medical report. 23. Considering the overall evidence as stated aforesaid, we find that the prosecution has failed to prove each of the circumstances adduced against the appellant, which would point to the complicity of the appellant in the crime in question. 24. Considering the aforesaid, we hold that the prosecution has failed to prove its case as against the appellant beyond reasonable doubt and as such pass the following order:- ORDER i) The Appeal is allowed; 11 Bhogale 2.apl-444-2014.doc ii) The Judgment and Order dated 21st February, 2014, passed by the learned Additional Sessions Judge, Mumbai, in Sessions Case No.149 of 2012, convicting and sentencing the appellant, is quashed and set aside, only qua him; iii) The appellant is acquitted of the offences, with which he is charged. The appellant is set at liberty forthwith, if not required in any other case. Fine amount, if paid, be refunded to the appellant. 25. Appeal is allowed and accordingly disposed of. All concerned to act on the authenticated copy of this judgment.” 8. Thus from the version of PW1 and PW3 as can be seen from paragraph 14 of the aforesaid findings and the evidence on record it reveals that Devendra disclosed to PW1 and PW3 that the accused No.1 had given him a chocolate to eat pursuant to which he fell unconscious. There is no mention of the present appellant’s presence by Devendra. It is pertinent to note that Devendra was not examined. This Court has held that the evidence of PW1 – ‘D’ and PW3 – ‘S’ cannot be termed as last seen evidence. PW1 and PW3 were not present in the house at the time when the incident took place. This Court has already held that the disclosure made by Devendra to PW1 – ‘D’ being hearsay, cannot be relied upon, since the prosecution failed to examine Devendra, though he was available. 12 Bhogale 2.apl-444-2014.doc 9. So far as the recovery of the brass pot is concerned, in paragraph 17 reproduced above, this Court has held that it is difficult to believe that the brass pot was recovered at the instance of the accused No.1. The material against the present appellant is the evidence of PW11 – Manishankar Bhailal Sharma. In his evidence PW11 stated that he was working as a watchman in the building in question where the deceased was residing since 2011. On 17th August 2011, he attended duty at the gate of the society between 8:00 a.m. to 8:00 p.m. PW11 - Manishankar Bhailal Sharma deposed that at about 2:00 p.m. one person by name Rajkumar came to him and disclosed his name as Rajkumar. When he questioned Rajkumar, Rajkumar told him that he wanted to meet one person by name Sunil on the second floor of the building. PW11 - Manishankar Bhailal Sharma identified Rajkumar before the Court by pointing out to the accused No.1 (not the present appellant). This Court in paragraph 20 reproduced above has observed that how and when accused No.2 (present appellant) who was not working in the building, went to the said floor, is not clear. From the evidence of PW11 - Manishankar Bhailal Sharma, 13 Bhogale 2.apl-444-2014.doc it was observed that there is some confusion with respect to the identification of the accused No.1. The only material to connect the present appellant with the factum of his entering into the building is the evidence of PW11 - Manishankar Bhailal Sharma. From his evidence it is more than clear that PW11 is confused about the identification of the present appellant (accused No.2 as well). 10. So far as the identification parade is concerned, he has admitted that the police took him to the jail and showed the accused. Learned APP made an attempt to submit that since the identification parade was conducted in the jail, PW11 had an occasion to see the accused at the time of identification parade and in that context the witnesses answered the question. We have our own doubts as PW11 has stated that the police took him to jail and showed the accused and hence the benefit of doubt must go to the accused. This piece of evidence has to be discarded. 11. So far as the recovery of Bentex Watch and an amount of Rs.14,000/- is concerned, the same is a very weak piece of 14 Bhogale 2.apl-444-2014.doc evidence to convict the appellant since the case is based entirely on circumstantial evidence. The important circumstance in the chain viz. the presence of the appellant at the scene of offence itself being doubtful, in which case the prosecution case must fail. Hence, the following order :- O R D E R (i) The appeal is allowed. (ii) The judgment and order dated 21st February 2014 passed by the learned Additional Sessions Judge, Mumbai, in Sessions Case No.149 of 2012 is quashed and set aside. (iii) The appellant No.2 - Shrishyam Jagprasad Paswan @ Gujar stands acquitted of all the charges levelled against him. (iv) Bail bonds stand cancelled. (v) Fine if any recovered be refunded to the appellants. 12. The appeal is disposed of. (SANDESH D. PATIL, J.) (M. S. KARNIK, J.) 15 Signed by: Pradnya Bhogale Designation: PA To Honourable Judge Date: 03/10/2026 15:30:17