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Salgaonkar

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.81 OF 2025

Mahendra Nimba Sonawane

Age : 26 years, R/o Vadner Khakrudi,

Tal.Malegaon, Dist. Nashik .. Appellant

Versus

The State of Maharashtra

(Through Manmad Police Station, Nashik)

.. Respondent

…

Mr.Ganesh Gole with Mr.Ateet Shirodkar, Kunhan Makwana

and Mr.Bhavin Jain for the Appellant.

Smt. Sangeeta Shinde, A.P.P. for the State/Respondent.

CORAM: BHARATI DANGRE &

MANJUSHA DESHPANDE, JJ.

RESERVED ON : 09

th

JUNE, 2026

PRONOUNCED ON : 18

th

JUNE, 2026

...

JUDGMENT (Per Bharati Dangre, J.)

1. Being aggrieved by the Judgment of the Additional

Sessions Judge, Malegaon in Sessions Case No.50 of 2017,

thereby convicting the Accused/Appellant- Mahendra Nimba

Sonawane, aged 26 years for the offence punishable under

Section 302 of the Indian Penal Code (for short, “IPC”) and

sentencing him to undergo Rigorous Imprisonment (R.I.) for

life and pay �ne of Rs.50,000/-, in default to undergo R.I. for a

term of one year, the present Appeal is �led.

MANDIRA MILIND

SALGAONKAR

Digitally signed by MANDIRA

MILIND SALGAONKAR

Date: 2026.06.18 21:08:11

+0530

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By the very same judgment, the Appellant is also

convicted for the offence punishable under Section 201 of IPC

and is sentenced to undergo R.I. for a term of �ve years and to

pay �ne of Rs.10,000/-, in default to undergo further R.I. for

three months. On being convicted under Section 404 of IPC, he

is sentenced to undergo imprisonment for a period of one year

and �ne with default sentence.

On being convicted under Sections 302 and 201 of IPC,

the substantive sentences are directed to run consecutively,

whereas substantive sentence under Section 404 of IPC is

directed to run concurrently.

2. The Appeal came to be admitted on 17/01/2005 and

Advocate Ganesh Gole was appointed by the Court vide order

dated 19/11/2024 and he continued to represent the

Appellant, when the Appeal is listed before us.

Upon receipt of the record and proceedings with the

paper-book, we have taken up the Appeal for hearing.

3. An F.I.R. came to be registered by Manmad Police Station

on 13/01/2017 invoking Sections 302 and 201 of IPC, when

Kisan Dhondiram Kale (PW 2), Police Head Constable/189

attached to Manmad City Police Station informed that while he

reported for duty at 8.30 a.m. on 13/01/2017, he received a

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phone call from Ashok Pandurang Pawar, Sarpanch of Nagapur

(PW 1), that he had received information from one Deore sir

from Daregaon, who while enroute on his motorcycle to Bhalur

and when he stopped the bike for attending the nature’s call,

he saw one person lying in the ditch (ukyh). Ashok Pawar (PW

1), therefore, accompanied him on the spot to �nd that the

person was dead and his face was covered with black colour

jerkin and next to him, a stone smeared with blood, cutter and

a plastic gunny bag were lying. The blood was also scattered

around on the spot.

Upon this information being received by PW 2, by

informing his superiors, with the police staff present in the

police station, they reached the spot and on removing the

jerkin from the face of the dead body, it was, noted that the

body was of a person between 40 to 45 years of age and he was

assaulted on his face and his facial features, the nose and eyes

were smashed and even his throat was slit. He was wearing a

white-yellow lining shirt and grayish blue pant.

Attempts were made to identify the body with the aid of

the people in the nearby locality, but his identity could not be

established.

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The complaint �led resulted into registration of the F.I.R.

and the investigating machinery was set rolling. Rejendra

Deore, who �rst saw the body, was examined as witness (PW 3)

and it is he, who had informed Ashok Pawar (PW 1) about he

noticing body and on his information, the of�cials of Manmad

Police Station had reached the spot.

4. As a part of the investigation, inquest panchnama

(Exhibit 74) was prepared and it is brought on record through

PW 17-Kundlik Sapkale, who conducted some portion of

investigation, being posted as Police Inspector at Manmad

Police Station on the investigation being handed over to him.

On registration of the F.I.R., he had reached the spot where the

injured body of unknown person was lying. The spot

panchnama was conducted by PW 17 and it record that the

face of the deceased was completely mutilated and even on his

neck, there was a grievous injury. Since the identity of the

deceased could not be established, the blood was drawn from

his body for DNA sampling and other parts of his body,

including the nails, bones, hair etc. were collected. The

panchnama was concluded on 13/01/2017.

The body was thereafter forwarded for postmortem. PW

17 also called the photographer on the spot, who clicked four

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photographs (Article U, V, W, S). The articles lying on the spot,

including the stone, cutter, jacket and plastic gunny bag were

seized during investigation.

5. On the body being forwarded for postmortem to the Civil

Hospital, Nashik, Dr.Anand Pawar conducted the postmortem

examination on 14/01/2017, the body being received on

13/01/2017 itself.

Dr.Pawar, being examined as PW 15 by the prosecution,

brought on record the postmortem report (Exhibit 53) and the

Postmortem Notes describe the features of the deceased, as it

record that blood was oozing from mouth/nostrils/ears and the

mouth was closed without protrusion of tongue. Column No.17

recorded the following injuries :-

“1) Cut throat injury in the form of incised wound

of size 12cmx3cmx5cm was present over front and

right side of neck placed horizontally along the

curve of neck.7cm below chin,9cm above supra-

sternal notch in midline. On right side it was

placed 5cm below angle of mandible.tailing of the wound was

towards right. Structures involved were skin,subcutaneous

tissue,strap muscles,major blood vessels cartilages and

trachea. Effusion of blood was present in structures involved.

2) Laceration of size 13cmx5cm Scalp deep was×

Present over Rt.Tempror-frontal region of Scalp 6 cm from

midline, just lateral to Rt.eyebrow.

3) Laceration of size 4cm 2cmxScalp deep was present over×

Lt.Frontal region of scalp,just lateral to Lt.Eyebrow.

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4) Reddish contused abrasion of size 8cm 6cm was Present×

over Rt.Cheek region, 3cm from midline.

5) Contusion of size 8cmx6cm was present over

Occipito-parietal region of scalp.

Column No.19 recorded presence of sub scalpal

hematoma in right temporo frontal and left fronto-temporo

occipital region of scalp. The postmortem notes also recorded

multiple communitated fracture in bilateral temporal, right

side of frontal bone with effusion of blood at fracture margins.

As far as clause 21 is concerned, the postmortem notes record

thus :-

“stomach full of semi digested food particles alongwith watery

�uid.”

The probable cause of death as per the postmortem

report indicated thus :-

“Combined effect of Cut Throat and multiple blunt injuries to

Head and face which are suf�cient to cause death in ordinary

course of nature individually and collectively.”

All injuries were described as ante mortem in nature and

fresh in duration, whereas cut throat injury was opined to be

caused by sharp edged weapon and the injuries to face and

head being caused by blunt object/weapon. Time since death

was assessed between 12 to 24 hours.

6. Before the postmortem commenced, the body was

identi�ed to be of one Bhausaheb Dashrath Chavan and the

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prosecution relied upon the evidence of CCTV footage to

establish the identity of the person.

Upon the body being discovered and an F.I.R. being

registered, alleging his homicidal death, the investigating

agency during the course of investigation, approached a

nearby shop in Ambedkar Nagar Chowk, Manake compound,

since the body was found lying nearby to assess the movement

of persons and objects, as there was CCTV camera �tted in the

shop.

On examining the CCTV footage by the Investigating

Of�cer, two persons were located consuming liquor. The video

footage from the CCTV was obtained in a hard disk by the

investigating agency and PW 13-Hemant Adhav, who was in-

charge of the CCTV system in the shop, converted it from the

DVR into a pen drive of Scandisk company and the hard disk

was drawn from the DVR, and the footage copied in two DVDs

were handed over by PW 13 to the Investigating Of�cer. It is

PW 13, who issued 65B certi�cate (Exh.44).

PW 13 when stepped into witness box, con�rmed that he

had issued 65B certi�cate that the panchnama of the DVD was

conducted in his presence and he also identi�ed the pen drive

(Article R-1) in which the data was transmitted.

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7. With this clue being collected from the CCTV footage,

when it was noticed that one of the two persons seen in the

footage was the deceased, the Investigating Of�cer during

course of investigation, recorded the statement of one Subhash

Jagan Ghuge (PW 5), who had seen two persons in drunk

condition, when on 12/01/2017, at around 8 to 8.30 p.m., he

was returning home after completing his agricultural work, at

Karhi Road near his �eld. He enquired with the persons, as

they were heavily drunk and the Accused informed him that

he was working with one Mr.Kakad, who was Sarpanch of

Karhi village. He, therefore, contacted Mr.Kakad on telephone

and was informed that there were labours engaged by him, but

he could not comment whether the person on the spot was his

labour. He, therefore, asked the Accused to give the telephone

number of his master and made a call on that number and

person, who answered the phone, disclosed that he knew the

Accused and he was told to let them go.

Thereafter, he lit a bon�re and he sat alongwith the two

persons for a while and he lead them to Manmad Road and

returned home.

During the course of the enquiry on the phone, PW 5

came to know that the two persons were Mahendra Sonawane

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and Bhausaheb Chavan. On the next day, the news of murder

spread in the village and when he was shown the photograph

by the police, he disclosed that he had met the person on the

earlier night and he was taken near Shivneri Dhaba, where the

body of Bhausaheb Chavan, the deceased was lying. The

person, who was accompanying the deceased, was identi�ed as

the accused present in the Court by PW 5 during his

deposition.

8. The investigating agency did not merely rely upon the

material collected by them, but also conducted DNA analysis of

the blood of the deceased and compared the same with DNA

samples collected from his children, Vaishali and Samadhan

Bhausaheb Chavan. The report from the DNA analysis

con�rmed that the person, who was done to death was

Bhausaheb Dashrath Chavan, and for this purpose the

prosecution has examined the Analyser from the Forensic

Science Laboratory, Kalina, Mr.Sunil Sonawane as PW 18, who

had submitted a report of his analysis, which was exhibited

during the course of trial as Exhibit 87.

9. It is on the basis of the aforesaid evidence led before the

Additional Sessions Judge, a �nding of guilt was recorded. The

Appellant is found guilty of committing an offence punishable

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under Section 302 alongwith Section 201 of IPC and has been

convicted for the offence punishable under Section 302 for

having done Bhausaheb Chavan to death in the intervening

night between 12/01/2017 and 13/01/2017.

10. The prosecution has based its case upon the chain of

circumstances, once it was established that Bhausaheb

Dashrath Chavan died a homicidal death. His body was

noticed near a nala on 13/01/2017 at around 8.00 a.m. by PW

3-Rajendra Deore, the face being covered with jacket, but

noticing that the person was not alive, PW 3 informed PW 1-

Ashok Pawar (Sarpanch), who in turn informed PW 2-Kisan

Kale (Police Headconstable), who on ascertaining the facts,

registered the F.I.R.

As per the prosecution case, on 12/01/2017 at around

6.00 p.m., Bhausaheb Chavan was seen in the company of

Mahendra Sonawane, the Accused, and they were seen

together in the country liquor shop belonging to one Fulvani.

The CCTV footage was collected from the DVD and it was

transmitted from the hard disk to a pen drive. This process

was carried out by executing a panchnama, which bear the

signature of the Investigating Of�cer, Mr.Patil (PW 16). The

hard disk (Exhibit 61), which was received and seized, was

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used for the purpose of investigation and from the said hard

disk, with the assistance of PW 13, the data was transferred

into the CD and pen drive. PW 13 issued a 65B certi�cate,

certifying that CCTV footage of T.K.Fulvani wine shop,

Manmad was lawfully stored and generated from the computer

device, which was maintained in electronic form. He also

certi�ed that contents in the DVD is the footage information

from the computer and the hard disk of the DVR is under the

control of M/s National Telecom on whose behalf PW 13 , was

authorised to issue certi�cate under Section 65B.

The panchnama also set out the procedure by which the

data was transferred from the hard disk to the pen drive and

how it was copied and, thereafter, sealed and transmitted as

Muddemal.

11. The Investigating Of�cer forwarded the pen drive and

the DVD alongwith the photographs of the accused for forensic

analysis to ascertain whether the two persons are same.

Similarly, the articles seized from the spot were also

forwarded for analysis. However, the report of the Chemical

Analyser in this regard was not secured before the trial and,

therefore, not presented for establishing the guilt of the

Accused. However, the learned trial Judge, on the basis of the

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other surrounding circumstances pointing out to the guilt of

the Accused, relied upon the same, since they formed a chain,

which invariably led to the conclusion that it is the Accused,

who has caused the death of Bhausaheb Chavan, whose body

was found on 13/01/2017,

12. As per the inquest panchnama and the postmortem

report, the body which was found and which is proved to be of

Bhausaheb Chavan on the basis of the DNA analysis of the

samples from the tooth of the deceased and that of his

children, suffered a cut throat injury in form of incised wound

over front and right side of neck. In addition, there were two

laceration wounds; one over the right tempror-frontal region of

the scalp and another over left frontal region of scalp. There

was also a contusion of 8cm X 6cm over occipito-parietal

region of scalp.

The cause of death, according to the postmortem report,

was on account of the cut throat and multiple blunt injuries to

head and face and they were opined to be suf�cient to cause

death in ordinary course of nature individually and

collectively.

A stone with blood stains was lying nearby and the

inquest panchnama reveal that the deceased was hit by the

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stone and his facial features were completely battered and this

can be seen from the photographs, which are brought on

record as Articles V and W before the trial Court.

Bhausaheb Chavan was done to death by hitting of the

stone, as he had sustained injuries on the face as well as the

head, as the postmortem report also revealed multiple

communitated fractures of the frontal bone and the presence

of contusion over the occipito-parietal region of the scalp with

the blood oozing from mouth/nostrils/ears clearly lead to an

inference that he was hit by the hard and blunt object. The

injury on neck of Bhausaheb, according to PW 15, was caused

by sharp edged weapon, whereas the injury to the head and

face was caused by blunt object/weapon.

In addition to the stone smeared with blood, a cutter

(Article E) found on the spot, was seized and when PW 15 was

confronted with the said cutter, he opined that the throat

injury is possible with the same and the other injuries,

described in the postmortem report, are possible by the stone

(Article B), which was shown to him.

Though Mr.Gole, counsel for the Appellant, has pointed

out to us that in the cross-examination PW 15 had admitted

that the dead body was completely dis�gured beyond

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recognition, we had an opportunity of perusing the

photographs of the body to �nd that except the portion of the

eyes and the nose, the upper portion of the face i.e. the

temporal portion and the portion below the lips i.e. the chin is

clearly visible and since the prosecution has established that

he was Bhausaheb by carrying out a comparative analysis

through DNA sampling, the said submission become

irrelevant.

13. In order to establish the chain of events, the prosecution

has relied upon the evidence of Afroz Tamboli (PW 10), who

deposed that he was indulged in selling of cutlery and on

12/01/2017, one boy aged 20 to 25 years, approached him and

purchased a cutter.

PW 10 identi�ed the person, who has purchased the

cutter from him, before the Nayab Tahsildar in the test

identi�cation parade. He was also confronted with the cutter

(Article E) that was seized from the spot and he identi�ed the

said cutter to be the one purchased by the Accused to whom he

had identi�ed in the test identi�cation parade.

When he was speci�cally cross examined on the aspect

as to how did he remember the said person who had purchased

a cutter, he speci�cally stated that there was some quibble

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over the price of the cutter and though he had quoted the price

as Rs.15/-, at the end, he offered Rs.5/-. Though subjected to

exhaustive cross-examination, PW 10 did not dither from his

version and reiterated that the Accused was the same person,

who purchased the cutter from him and Article E was the

cutter, which was purchased from him and this cutter was

found lying next to the body of the deceased.

14. When the Accused was arrested on 14/01/2017 by PW 16-

Gajendra Patil vide arrest panchnama (Exhibit 71), there is

reference to his medical examination. Prior to his arrest, the

Accused was taken to Dr.Sandip Ghongade (PW 6), a Medical

Of�cer in Government Hospital, Manmad and while on duty on

14/01/2017, the police brought one Mahendra Sonawane for

medical examination. He examined the Accused and found

one CLW on his left forearm with �ve stitches, and according to

him, the injury could have been caused by the impact of sharp

object, though it was simple and was two days old. On

examining the person present before him, Injury Certi�cate

was issued by him on 14/01/2017, where he mentioned about

the injury on the forearm.

One more circumstance and a relevant one, on which the

prosecution rely is, evidence of Dr.Nilesh Jadhav (PW 8) to

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whom the Accused approached in the intervening night of

12/01/2017 and 13/01/2017. PW 8 deposed that a patient in

age group of 25 to 27 years, came to his hospital with injury on

his left hand and responding to the query of the Court, he

stated that the injury sustained by him must have been caused

three to four hours before.

As per Dr.Jadhav, the injury could have been caused by a

sharp weapon. He administered 4 to 5 stitches to the wound

and gave him some medicine. Dr.Jadhav identi�ed the

Accused as a person, who visited him in the hospital in the

early hours of 13/01/2017 to whom he had treated. When he

was speci�cally asked as to why he did not report the matter,

the Doctor responded by stating that since the injury was

minuscule in nature and also super�cial, and hence he did not

deem it necessary to report to the police.

Corresponding to the evidence of PW 8, PW 6 deposed

that before arrest, when the Accused was brought for medical

examination, he found �ve stitches, suturing the CLW injury

on his left forearm.

Both the Medical Of�cers have deposed in sync about the

timing of the injury and that the cause of the injury, would

have been a sharp object. PW 6, in fact had issued an MLC

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though PW 8 had only put the stitches and gave some

medicine, but he identi�ed the Accused during the test

identi�cation parade conducted before PW 11-Kantilal Wagh.

15. In order to establish the chain of circumstances, the

prosecution has also relied upon is the evidence of two

witnesses; the one who had seen the Accused in the company

of the deceased i.e. PW 5 and the one who has seen the Accused

all alone within a short gap of timeline, when they were seen

together i.e. PW 14.

PW 5-Subhash Ghuge came across two persons at around

8.00 to 8.30 p.m. and this is the time after they had left the

place, where they had consumed liquor where they were seen

at around 6.00 p.m. As per PW 5, they were drunk liquor and

when enquiries were made with them, they disclosed their

names as Mahendra Sonawane and Bhausaheb Chavan.

After the dead body was found, when the police started

enquiry and they came across PW 5 and the photo of the body

was shown, he identi�ed it to be of one of the person, whom he

had met with one another, the earlier night i.e. 12/01/2017. He

was taken to the place where the body was found near,

Shivneri Dhaba and he identi�ed the said person to be the one

amongst the two, who were seen by him on 12/01/2017 near

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his �eld on Karhi Road in inebriated condition. He denied all

the suggestions put to him that he was deposing falsely and he

reiterated that when he enquired from their employer, he

could gain knowledge that the two persons were Mahendra

Sonawane and Bhausaheb Chavan.

He also identi�ed the Accused, who was present in the

Court and whom he met the previous night. As per version of

PW 5 he sat for a while with the two persons near the bon�re

and he showed them the way to Manmad as they were in

inebriated condition, and since, he had spent some time with

them, he could identify the Accused.

16. At a point of time subsequent when PW 5-Subhadh Ghuge

had seen the Accused and deceased together, at around 10.15

to 10.30 p.m. on 12/01/2017, Vicky Francis (PW 14) while

sitted outside kirana shop, saw one unknown person rushing

from Bhalur Road. Obviously, he was thought of being a thief,

an enquiry was made with him by PW 14 and one Vishal

Darade. He had sustained injury on his left hand and had tied

a handkerchief to the same, which had blood stains. PW 14

also gave the descriptions of the clothes worn by him and

further deposed that when the enquiries were made with him,

he disclosed his name as Mahendra Nimba Sonawane and

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when he was enquired about the injury, he told them that he

was a tractor driver and since he fell on the trolley, he

sustained the injury and he was proceeding to the hospital.

Vicky Francis identi�ed the person, whom he saw on

12/01/2017 having sustained an injury and with whom he had

conversation and was told how he had sustained the injury.

His statement was recorded by the police for the purpose of

investigation on 13/01/2017 and he denied the suggestion that

he had never came across the accused person.

17. Another incriminating circumstance which �t into the

chain of circumstances, which point out to the guilt of the

Accused, is the recovery of the articles belonging to the

deceased from the Accused and for this purpose, prosecution

has relied upon the discovery panchnama under Section 27 of

the Indian Evidence Act and one of the panchas to the spot

panchnama, namely Arun Hunde has proved the same by

stepping into the witness box as PW 7.

The memorandum panchnama (Exhibit 21), led to the

recovery of a packet containing some currency notes, of which

the numbers were noted when the panchnama was prepared.

It also include an Election Card of Bhausaheb Chavan with a

passport photograph and also a diary with red colour cover

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with certain names and phone numbers being inscribed

belonging to the deceased. There is also a recovery of two

passport size photographs of Bhausaheb Dashrath Chavan as

well as a visiting card of Shiv Gorakshay Mobile Shopee and

photo as well as one white colour mobile phone of Snexian

2022 make without a SIM card (Article I).

PW 7 deposed that upon the willingness being shown by

the Accused while he was in police custody, to lead to certain

articles, which he had concealed, he was called to act as a

panch alongwith one more panch witness and the Accused in

the company of the police team proceeded towards Vadner

Khakurdi by police vehicle. When they reached Morder road,

the Accused took the team to one house stating that it was his

house and after entering into the house, he pulled out a bundle

(xkB¨Ms) from behind the wall and from it, he took out a mobile,

money (Rs.400/-), one handkerchief and clothes. The

memorandum panchnama has listed the articles, which

included the clothes of the Accused and some of his own

documents, including a medical prescription in his name.

The recovery of the personalized items belonging to the

deceased i.e. the Election Card, his passport size photographs

as well as the mobile phone without SIM card, which he had

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concealed in his own house after commission of crime is the

incriminating circumstance, which complete the chain of

circumstances, with the starting point of the Accused drinking

liquor with the deceased in Fulvani country liquor shop at

18.02 hours, thereafter the two being seen together between

8.00 to 8.30 p.m. by PW 5-Subhash Ghuge and then the

Accused seen alone by PW 14-Vicky Francis between 10.15 to

10.30 p.m. with an injury to his hand, who was seen running

away from Bhalur Road.

The aforesaid circumstances with reference to the

speci�c timelines and the fact that the body of the deceased

was found in a ditch closer to the place where they were last

seen together on the next date i.e. in the morning of

13/01/2017, the burden was on the Accused to establish as to

how and when the Accused parted company from the

deceased, but unfortunately when the circumstance of last

seen was considered to be an incriminating circumstance and

pressed by the prosecution before the trial Judge, he did not

adopt any speci�c stand nor did he lead any evidence to the

contrary.

Based upon the aforesaid circumstances, the trial Judge

was perfectly justi�ed in construing the chain of

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circumstances suf�cient enough to establish that Mahendra

Nimba Sonawane, who was last seen in the company of

Bhausaheb Chavan between 8.00 to 8.30 p.m. on 12/01/2017

and that Bhausaheb Chavan was found dead at 8 o’clock on

13/01/2017 by PW 3, based on the theory of last seen and with

all other incriminating circumstances collected by the

prosecution during the course of investigation, including the

recovery of the articles belonging to the deceased Bhausaheb

from Mahendra as well as no explanation being offered about

the injury sustained by him and which was opined to be an

injury sustained before two hours by PW 8 and two days before

by PW 6, who examined the Accused prior to his arrest on

14/01/2017, in our view the chain of circumstances has been

conclusively established by the prosecution, which only lead to

the guilt of Mahendra Sonawane, which has been rightly

appreciated by the trial Judge, resulting into his conviction.

18. The prosecution has established its case through cogent

and reliable evidence brought on record through the witnesses

and based on the principle of law laid down by the Apex Court

in the case of Sharad Birdhi Chand Sarda Vs. State of

Maharashtra

1

, where the Apex Court had clearly laid down the

�ve foundational factors which should be met before convicting

1 (1984) 4 SCC 116

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an accused on circumstantial evidence, the trial Judge has

found the test to be satis�ed.

The �ve factors established being (i) Cogent

Establishment - the circumstances from which the conclusion

of guilt is drawn must be fully and cogently established; (ii)

De�nite Tendency - the facts so established must be consistent

only with the hypothesis of the guilt of the accused leading no

room for other explanations; (iii) Unbroken Chain - the

circumstances should cumulatively form a chain so complete

that there is no escape from the conclusion that with all

human probability, the crime was committed by the accused

and none else; (iv) Exclusion of Evidence - the evidence must

be incapable of explanation or any other hypothesis than that

of the guilt of the accused and (v) Complete and Conclusive -

the circumstances must be of conclusive nature unerringly

pointing out to the guilt of the accused.

All the aforesaid �ve circumstances having been clearly

established by the prosecution to which we have referred to

and on perusal of the impugned judgment, we have found that

on appreciation of evidence led before the trial Court, the trial

Court has relied upon the circumstantial evidence which

clearly �t into parameters laid down in Sharad Sarda (supra).

24/29 J APEAL-81-25.odt

19. We �nd that the trial Judge has rightly appreciated the

chain of circumstances and applied the ‘last seen theory’ to be

one of the circumstances, the theory being rooted in the Indian

Evidence Act, 1872 and once the prosecution has established

that the deceased was last seen alive in the company of the

Accused, the onus shift on the Accused to explain the

circumstances of his �nal movements with the victim as those

facts are exclusively within his knowledge. The Accused has,

however, failed to discharge the burden of establishing as to

what are the course of events which took place after the

deceased parted the company with the Accused and this fact

exclusively within his knowledge, could have rebutted the case

of the prosecution. In any case, by virtue of Section 114 of the

Evidence Act, where the Court is empowered to presume the

existence of certain facts, based on natural human behaviour

and if the accused fails to provide an explanation, the Court is

entitled to logically infer the involvement of the accused. If the

Accused and deceased were seen together in inebriated

condition so much so that it is PW 5, who had to show them the

way towards Manmad, but they were conscious enough to

disclose their own identity, as according to PW 5, they

disclosed their names and within a short span of two hours,

25/29 J APEAL-81-25.odt

PW 14 saw Accused running alone in the opposite direction

with an injury being sustained on his hand, with he offering an

explanation that since he hit the trolley, he sustained the

injury, but the Doctors examining him, however, deposing that

the injury was on account of sharp weapon and cutter being a

sharp weapon, which was found lying on the spot, it can be well

presumed that the injury was sustained by him in the scuf�e,

as in the statement under Section 313, the Accused has failed

to offer any explanation as to how he had sustained the injury.

In the wake of the aforesaid, since the prosecution has

established its case beyond reasonable doubt and discharged

its burden, we �nd that the Additional Sessions Judge has

committed no error in recording a �nding of guilt under

Sections 302 and 201 of IPC.

Recovery of the money and the mobile phone from the

Accused, which belong to the deceased, has also established

the motive of the Accused to rob the deceased and in an

attempt to attain his object, the deceased has been done to

death.

20. One more aspect on the imposition of sentence which is

noted by us in the impugned judgment, is that the

accused/appellant is convicted for the offence punishable

26/29 J APEAL-81-25.odt

under Sections 302 of IPC and he is sentenced to undergo

imprisonment for life and to pay �ne and in case of default

undergo further R.I.

On he being convicted for the offence punishable under

Section 201 of IPC, he is sentenced to undergo rigorous

imprisonment for a term of 5 years along with �ne and a

default sentence if the �ne is not paid. In addition, there is also

a conviction of the accused under Section 404 of IPC and for

which he is sentenced to undergo R.I for one year and �ne with

a default clause.

In paragraph nos. 4 and 5 the impugned judgment direct

thus:-

“4. The substantive sentences of imprisonment for the offences

punishable under Sections 302 and 201 of the Indian Penal Code,

1860 shall run consecutively (one after other).

5. The substantive sentence of imprisonment for the offence

punishable under Section 404 of the Indian Penal Code, 1860 shall

run concurrently with the sentences awarded for the other

offences.”

21. We �nd that while issuing a direction for the substantive

sentences of imprisonment to run consecutively on being

convicted under Section 302 and 201 of IPC, we do not �nd any

speci�c reason assigned.

No doubt, it is the discretion of the Court to specify how

the sentences imposed, on conviction in one trial for two or

27/29 J APEAL-81-25.odt

more offences shall run and it is permissible to direct that the

punishments when consisting of imprisonment to commence

one after the expiration of other in such order as the Court

may direct by virtue of Section 31 of the Code of Criminal

Procedure, 1973, unless the Court directs that the

punishments shall run concurrently.

By virtue of sub-section (2) of Section 31, in the case of

consecutive sentences, it is prescribed that it is not necessary

for the Court only on account of the aggregate punishment for

several offences being in excess of the punishment which it is

competent to in�ict on conviction for a single offence, to sent

the offender for trial before the higher court.

By virtue of a proviso appended, it is imperative for the

sentencing court to take note of the fact that the aggregate

punishment shall not exceed twice the amount of punishment

which the court is competent to in�ict for a single offence.

22. The impugned judgment has directed the substantive

sentence of imprisonment for the offences punishable under

Section 302, 201 to run consequently (one after another)

though it is not clearly prescribed as to whether the

imprisonment for life, being the punishment imposed on being

convicted for committing an offence punishable under Section

28/29 J APEAL-81-25.odt

302 shall run �rst or the imprisonment for a �x term on being

convicted under Section 201 shall run �rst.

In this regard, we are guided by the observations of the

Hon’ble Apex in case of Muthuramalingam & Ors, vs. State

Represented by Inspector of Police

2

and paragraph no. 35,

which reads thus:-

“35. We may, while parting, deal with yet another dimension of this

case argued before us, namely, whether the court can direct life

sentence and term to run consecutively. That aspect was argued

keeping in view the fact that the appellants have been sentenced to

imprisonment for different terms apart from being awarded

imprisonment for life. The trial court’s direction af�rmed by the

High Court is that the said term sentences shall run consecutively.

It was contended on behalf of the appellants that even this part of

the direction is not legally sound, for once the prisoner is sentenced

to undergo imprisonment for life, the term sentence awarded to him

must run concurrently. We do not, however, think so. The power of

the court to direct the order in which sentences will run is

unquestionable in view of the language employed in Section 31

CrPC. The court can, therefore, legitimately direct that the prisoner

shall �rst undergo the term sentence before the commencement of

his life sentence. Such a direction shall be perfectly legitimate and

in tune with Section 31 CrPC. The converse however may n ot be

true for if the court directs the life sentence to start �rst it would

necessarily imply that the term sentence would run concurrently.

That is because once the prisoner spends his life in jail, there is no

question of his undergoing any further sentence. Whether or not the

direction of the court below calls for any modi�cation or alteration

is a matter with which we are not concerned. The regular Bench

hearing the appeals would be free to deal with that aspect of the

matter having regard to what we have said in the foregoing

paragraphs.”

23. Since we �nd that going by paragraph 4 of the impugned

judgment the sentence of imprisonment for the offence

punishable under Section 302 has been placed ahead of the

sentence to undergo on being convicted under Section 201,

2 (2016) 8 SCC 313

29/29 J APEAL-81-25.odt

applying the aforesaid principle laid down by the Apex Court,

since it is not permissible to direct that the accused shall

undergo the term sentence of imprisonment after the sentence

of imprisonment for life, we deem it appropriate to modify

direction no.4 in the impugned judgment and substitute the

same by directing that the substantive sentence of the

imprisonment for offence punishable under Section 302 and

201 shall run concurrently.

24. With the aforesaid modi�cation in the sentence to be

undergone by the accused/appellant, and by upholding the

�nding of conviction on all three counts namely Section 302,

201 and Section 404 of IPC, we modify the impugned judgment

to the extent that the substantive sentences of imprisonment

imposed on the accused, on being convicted for the aforesaid

offences shall run concurrently.

In the aforesaid manner, the Appeal is partly allowed and

disposed of.

(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)