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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 536 OF 2021

Manjeetkumar Shriramrup Saroj … Petitioner

Versus

The State of Maharashtra … Respondent

******

Ms. Tahera Abdul Rashid Qureshi for the Appellant.

Ms. Sangita E. Phad, APP for Respondent-State.

******

CORAM:MANISH PITALE AND

SHREERAM V. SHIRSAT, JJ.

RESERVED ON:2

nd

FEBRUARY 2026

PRONOUNCED ON : 9

th

MARCH 2026

Judgment (Per Manish Pitale, J.) :

. The appellant has filed this appeal being aggrieved by

judgment and order dated 31

st

March 2021, passed by the Court

of District Judge-9 and Additional Sessions Judge, Thane

(hereinafter referred to as ‘the Sessions Court’), in Sessions Case

No.148 of 2018, whereby the Sessions Court has convicted the

appellant for offences under Sections 302 and 379 of the Indian

Penal Code, 1860 (IPC), to suffer rigorous imprisonment for life

and also to suffer rigorous imprisonment for one year and to pay

fine of Rs.1,000/- each on both counts.

2.The prosecution case in brief is that the first informant i.e.

prosecution witness No.1 (PW1) – Sandesh Khandagale, was

running a small restaurant by the name of Tanduri Corner and

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Chinese Centre, near a bus stop at Purna-Bhiwandi, Thane,

wherein he had three employees. One chef that is the deceased,

and two waiters, one was the appellant and the other was a person

named Kamlesh. It is the case of the prosecution that on 5

th

July

2017, in the evening, there was a quarrel between the deceased

and the appellant. In fact, it is claimed that they used to have such

quarrels intermittently. It was claimed that with the intervention of

PW1, the quarrel was settled down and both of them agreed to

work together. PW1 further stated that on 5

th

July 2017, at about

11:30 p.m. in the night, when he left the restaurant, the three

employees were together and that as usual they stayed back in the

restaurant during the night. In other words, the prosecution claims

that all the three employees used to sleep in the restaurant after

the restaurant was closed for the day.

3.On 6

th

July 2017, at about 6:00 a.m. in the morning, PW3-

Shoibuddin, who used to run a pan shop near the restaurant,

called PW4 i.e. the brother of PW1, on his mobile, and told him

that the chef that is the deceased had been injured and that he

along with his brother PW1 should come immediately to the

restaurant. Consequently, PW1 and his brother PW4, as also their

brother Kalpesh, all three of them went to the restaurant in the

morning at about 6:10 a.m. They found that the third employee

i.e. Kamlesh was standing outside the shop and that the shutter of

the shop was half open. When they entered the shop, they found

that the chef was in a badly injured condition, lying in a pool of

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blood on the floor. The forehead of the injured person was

bleeding profusely and a gas cylinder nearby had bloodstains on it.

It is claimed that when PW1-Sandesh his brother PW4-Bhavesh

and the said pan shop owner PW3-Shoibuddin reached near where

the injured was lying, the injured chef told the three persons that

the appellant had assaulted him with the gas cylinder, resulting in

the serious injuries. It is further claimed that the Police was

informed and the injured was shifted to the hospital. But, he died

at about 8:30 a.m. in the morning.

4.In this backdrop, the FIR was registered in the afternoon on

6

th

July 2017 and investigation was undertaken. The police

suspected the appellant as the person responsible for the injuries

suffered by the victim and ultimately traced him to Allahabad from

where he was arrested and brought to Thane to face trial. The

charge was framed for offences under Sections 302 and 379 of the

IPC. The prosecution examined 13 witnesses to prove its case.

5.PW1-Sandesh was the first informant. PW2-Shailesh was the

panch witness for recovery of bloodstained clothes of the

appellant. PW3- Shoibuddin was the pan shop owner, who had

informed PW4 in the morning on 6

th

July 2017 about the fact that

the victim was lying in an injured condition in the restaurant. PW4

was the brother of the first informant i.e. PW1. PW5 was the

panch witness for the spot panchanama. PW6 was the owner of a

neighbouring shop, who also deposed in support of the

prosecution case.

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6.PW7 was the Doctor who had conducted the postmortem

examination. PW8 was the owner of the shop, wherein the

restaurant was being run by PW1. PW9, PW10 and PW11 were

the Investigating Officers. PW12 and PW13 were the Nodal

Officers of the mobile service providing companies, concerned

with the mobile phones that were recovered during the course of

investigation.

7.The appellant examined a defence witness, who was his

brother in law, in order to prove his defence, that after having

quarrelled with the deceased, the same evening he had left the job

and he had gone to his native place in Uttar Pradesh.

8.After taking into consideration the oral and documentary

evidence on record, the Sessions Court found that although this

was a case of circumstantial evidence, the prosecution had been

able to prove each of the circumstances beyond reasonable doubt

and that such circumstances formed a chain which pointed

towards the guilt of the appellant. On this basis, by the impugned

judgment and order dated 31

st

March 2021, the appellant stood

convicted and sentenced in the aforesaid manner.

9.Ms. Tahera Abdul Rashid Qureshi, learned counsel

appearing for the appellant, invited attention of this Court to the

evidence of the prosecution witnesses, as well as the sole defence

witness. It was submitted that even if the evidence of the

prosecution was taken into consideration and in that context, the

documents relied upon by the prosecution were perused, the said

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material was not enough to bring home the guilt of the appellant.

It was submitted that the circumstances upon which the

prosecution relied, did not form a chain and that in any case, the

circumstances individually were not proved beyond reasonable

doubt.

10.It was submitted that the last seen theory propounded by the

prosecution was not proved beyond reasonable doubt, as the only

witness to depose in support thereof was PW1 i.e. the owner of

the restaurant. The said witness had simply stated that on 5

th

July

2017, all the three employees, including the appellant and the

deceased had slept in the restaurant after the restaurant had been

closed for the day. Other than this statement, there was no other

corroborative material to support the last seen theory. It was

submitted that the appellant in his defence had examined the

defence witness who was his brother in law. He had clearly stated

that the appellant himself had claimed that due to quarrels at the

workplace, he had left the job and that he wanted to go back to his

native place. The defence witness clearly stated that he had

dropped the appellant at the railway station in the wee hours of 6

th

July 2017 for boarding a train to go to the native place. It was

submitted that in such circumstances, the last seen theory

propounded by the prosecution was not proved beyond reasonable

doubt and therefore, the prosecution case on that count can be

said to be rendered seriously doubtful.

11.It was further submitted that one of the major circumstances

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on which the prosecution relied was the oral dying declaration

allegedly given by the deceased in the presence of PW1, PW3 and

PW4. It was submitted that all the three witnesses claimed that

when they saw the victim lying in a pool of blood on the floor of

the restaurant, with serious injury on his head, he was conscious

and that he stated that the appellant had assaulted him with the

gas cylinder. It was submitted the said claim was belied by the fact

that there was no medical evidence placed on record. No

treatment papers were placed on record. The document at Exhibit

69, being a postmortem requisition form, recorded that the victim

was brought in an unconscious condition. It was further stated that

although there was no endorsement of the hospital on the

document at Exhibit 70, it was nonetheless endorsed therein that

the patient i.e. the victim was unconscious and not able to give

statement at 7:30 a.m. in the morning on 6

th

July 2017. On this

basis, it was submitted that the statement of all the three witnesses

i.e. PW1, PW3 and PW4 that the victim had given an oral dying

declaration to them was wholly unbelievable. Reliance was also

placed on the statement made by PW7-Doctor in cross-

examination that if a person suffered the injuries that were

inflicted upon the victim, he would either be unconscious or he

would die on the spot. On this basis, it was submitted that the

circumstance of oral dying declaration was not proved by the

prosecution at all.

12.It was further submitted that the prosecution failed to prove

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the arrest of the appellant from Allahabad and the recovery of

three mobile phones which formed a crucial link in the

prosecution case. It is further submitted that panch witnesses who

were allegedly present when the mobile phones were recovered

and when the appellant was arrested at the Allahabad, were not

examined by the prosecution, thereby demonstrating that the said

fact was not at all proved. Even with regard to recovery of

bloodstained clothes of the appellant, it was submitted that such

clothes were allegedly recovered from an open place having access

to the general public.

13.It was vehemently argued that the role of Kamlesh i.e. the

third employee, who was, even according to the prosecution,

present at the place of the incident, was not examined as a witness

and he was not even arraigned as an accused. This was a crucial

missing link for which the prosecution had no explanation. By

referring to the evidence of PW12 and PW13 i.e. the Nodal

Officers of the mobile service providers, it was submitted that the

details of the persons in whose names the mobile phones were

registered, demonstrated that no link was established by the

prosecution between the said mobile phones allegedly recovered

from the appellant and the appellant himself. It was submitted that

the Sessions Court completely failed to appreciate these aspects of

the matter and proceeded to hold the appellant guilty by accepting

the direction in which the investigation was conducted and the

manner in which evidence was placed before the Court on behalf

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of the prosecution. It was submitted that the appellant himself had

honestly stated that there was indeed a quarrel on the previous

evening between him and the deceased, but it was emphatically

stated that the same was the reason why he had left the job and in

fact, taken the train in the wee hours of 6

th

July 2017 to go to his

native place. The defence witness who was examined on behalf of

the appellant, corroborated the version of the appellant and

therefore, it can be demonstrated that the Sessions Court in the

present case came to conclusions without taking into consideration

the fact that crucial links in the prosecution story were missing and

that a plausible defence was in fact placed on record on behalf of

the appellant. On this basis, it was submitted that this Court may

consider allowing the appeal and setting aside the impugned

judgment and order passed by the Sessions Court.

14.In support of the aforesaid submission, the learned counsel

for the appellant relied upon judgment of this Court in the case of

Mohd. Sattarul Najrul Mulla vs. The State of Maharashtra, 2017

ALL MR (Cri) 577, for the proposition that when the victim in the

present case was demonstrated to have suffered such serious

injuries that he could not have made any statement, much less an

oral dying declaration to the witnesses, the appellant ought to

have been acquitted. Reliance was also placed on judgment of this

Court in the case of State of Maharashtra vs. Santosh, son of

Madukar Kadam, 2017 ALL MR (Cri) 1642, in support of the

proposition that the recovery in the present case was not

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believable, for the reason that the bloodstained clothes of the

appellant were recovered from an open place accessible to all. It

was further submitted that in any case, the CA reports did not

support the prosecution case. On this basis, it was submitted that

the appeal may be allowed.

15.On the other hand, Ms. Sangita Phad, learned APP

supported the impugned judgment and order of the Sessions

Court. It was submitted that the Sessions Court had taken into

consideration all the circumstances that were brought on record by

the prosecution. It was found that there was a chain formed by

these circumstances and that each circumstance had been proved

beyond reasonable doubt. The learned APP relied upon the

circumstances of last seen together, motive, oral dying declaration,

recovery of mobile phones from the appellant, recovery of

bloodstained clothes at the behest of the appellant and specifically,

the conduct of the appellant in absconding immediately after the

incident took place.

16.The learned APP specifically relied upon evidence of the

prosecution witnesses i.e. PW1, PW3 and PW4 for proving the

oral dying declaration. It was submitted that the last seen theory

was clearly proved in the light of the evidence given by PW1 and

supported by other prosecution witnesses. Reliance was placed on

the evidence of three Investigation Officers i.e. PW9, PW10 and

PW11, to prove that the appellant was arrested from Allahabad

and that mobile phones were recovered from him, which included

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the mobile phone of the deceased, and the said Kamlesh. It was

highlighted that the appellant himself in response to questions put

to him during recording of the statement under Section 313 of the

Code of Criminal Procedure, 1973 (Cr.P.C.), conceded to his

having been arrested from Allahabad and the fact that he did have

a quarrel with the deceased in the evening prior to the date of the

incident. This according to the learned APP also proved the

motive.

17.It was submitted that in the face of the clear evidence of

PW1, PW3 and PW4 about the oral dying declaration given by the

deceased, there was no scope for the defence to raise any doubt

about the same, only on the basis that there was lack of proper

documentary material to show the treatment given to the

deceased. It was submitted that when direct evidence of the

aforesaid three witnesses was very much available on record, there

was no reason for the Court to look for any other evidence, much

less medical evidence. It was submitted that as per settled law, the

aforesaid direct evidence would certainly prevail over medical

evidence.

18.Reliance was placed on judgment of the Supreme Court in

the case of Trimukh Maroti Kirkan vs. State of Maharashtra,

(2006) 10 SCC 681, for the proposition that when such incidents

take place within the privacy of a house or within the four walls of

a confined place, wherein only the accused and the victim are

present, an unnecessarily heavy burden cannot be placed upon the

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prosecution to prove its case. The learned APP relied upon Section

106 of the Evidence Act, to contend that the burden was entirely

on the appellant in the present case, to explain as to what

happened in the restaurant during the intervening night of 5

th

July

2017 and 6

th

July 2017. Since, the appellant had no plausible

explanation for the same, the guilt of the appellant was clearly

proved.

19.Reliance was placed on judgment of the Supreme Court in

the case of Laxman vs. State of Maharashtra, (2002) 6 SCC 710,

with regard to the veracity of an oral dying declaration. On the

basis of the aforesaid submissions, it was submitted that in the

present case, there was no question of setting aside or interfering

with the impugned judgment and order passed by the Sessions

Court and that therefore, the appeal deserved to be dismissed.

20.Having considered the rival submissions, it is evident that

this is a case of circumstantial evidence. There is no direct

evidence and therefore, the prosecution is required to prove each

circumstance beyond reasonable doubt and the circumstances

should form a chain that point towards only the hypothesis of

guilt of the accused. The Supreme Court in the case of Sharad

Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, in

paragraph 153 held as follows :

“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

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be drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned “must or should” and not “may be”

established. There is not only a grammatical but a legal

distinction between “may be proved” and “must be or should

be proved” as was held by this Court in Shivaji Sahabrao

Bobade v. State of Maharashtra (1973) 2 SCC 793, where the

observations were made:

“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.”

21.The evidence in the present case will have to be analyzed by

applying the aforesaid principles to ascertain whether the

prosecution has indeed made out its case. The Sessions Court

found the appellant guilty on the basis of the oral and

documentary evidence available on record.

22.The circumstances upon which the prosecution has relied are

last seen theory, oral dying declaration of the deceased, recovery

of bloodstained clothes of the appellant, recovery of mobile

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phones from the appellant, when he was arrested in Allahabad,

motive and the conduct of the appellant in absconding after the

incident took place.

23.For each of the aforesaid circumstances, the prosecution has

relied upon prosecution witnesses. As regards the last seen theory,

the prosecution has heavily relied upon the evidence of PW1-

Sandesh i.e. the first informant in the present case. He was the

owner of the aforesaid restaurant where the incident took place.

As per the deposition of the said witness there were three

employees in the restaurant, the deceased Ajeet Roy @ ustad and

two waiters i.e. the appellant and one Kamlesh. In his deposition,

PW1 stated that all the three employees used to sleep in the

restaurant after the restaurant was closed for the day. It was stated

that even on 5

th

July 2017, when the said witness left the

restaurant at about 11:30 p.m, all the three aforesaid employees,

including the appellant and the deceased slept in the restaurant.

This is the basis for the prosecution to claim that the deceased was

last seen with the appellant at about 11:30 p.m. on 5

th

July 2017

and that early next morning, at about 6:00 a.m. on 6

th

July 2017,

a phone call was received from PW3-Shoibuddin that the deceased

was found lying on the floor of the restaurant in a pool of blood

with serious injuries to his head. On this basis, it was claimed that

the appellant was responsible for the said incident, as he was last

seen together with the deceased. The Sessions Court believed the

aforesaid evidence to hold against the appellant.

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24.It is crucial to note that even according to the said witness

PW1, all three employees used to sleep in the restaurant after the

restaurant was closed for the day and that this also happened in

the night on 5

th

July 2017. It was not as if only the appellant and

the deceased were last seen together and they had slept in the

restaurant on the intervening night between 5

th

July 2017 and 6

th

July 2017. The evidence clearly shows that the third employee i.e.

Kamlesh was also last seen together with the deceased as well as

the appellant. The theory of last seen together equally applies to

Kamlesh also. But, the said Kamlesh was neither made an accused

nor examined as a witness by the prosecution. In fact, it is claimed

that when PW1 along with his brother PW4 reached the restaurant

in the morning on 6

th

July 2017, after receiving intimation from

PW3, they saw Kamlesh in the restaurant. There is no explanation

as to what steps the investigating officer undertook to determine

role of the said Kamlesh. It is merely stated that according to

Kamlesh, he could not intimate about the incident because the

appellant had taken mobile phones of the deceased as well as

Kamlesh after the incident. There is no evidence on record to

show that Kamlesh, who was also sleeping in the very same

restaurant, got up and found the appellant having assaulted the

deceased. There is no statement of Kamlesh on record and he was

not examined as a witness by the prosecution.

25.In such circumstances, the last seen theory of the

prosecution is not supported by the evidence on record to the

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extent that only the appellant and the deceased were last seen

together in the night on 5

th

July 2017. This is crucial, for the

reason that role of Kamlesh has not come out with clarity and the

only argument made on behalf of the prosecution was that adverse

inference ought not to be drawn because summons were issued to

Kamlesh, but he could not be found and therefore, the prosecution

could not examine him. But, there is nothing on record to show as

to why the investigating authority did not explore the angle of the

role of Kamlesh, during the intervening night between 5

th

July

2017 and 6

th

July 2017, when according to the prosecution and

witness PW1, he was also last seen together with the deceased.

Therefore, we find that the nature of evidence of PW1 being the

sole witness for the last seen theory, does not clinchingly prove

that it was only the appellant, who was last seen with the deceased

before he was found in a seriously injured condition in the

morning on 6

th

July 2017. In any case, last seen theory as a

circumstance on its own cannot be the basis of conviction, as it is

one of the circumstances forming a chain in the case of

circumstantial evidence. We find that the prosecution in the

present case has not been able to prove beyond reasonable doubt

that it was only the appellant, who was last seen together with the

deceased in the night on 5

th

July 2017.

26.The learned counsel for the appellant correctly relied upon

judgment of this Court in the case of Mohd. Sattarul Najrul Mulla

vs. The State of Maharashtra (supra), wherein this Court found

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that in the said case, the evidence of the person who was sleeping

with the deceased was necessary on the point as to whether the

accused therein were present till he and the deceased slept. In the

present case, since the prosecution proceeded on the basis that all

the three persons i.e. the appellant, deceased and the said Kamlesh

were sleeping together, the evidence of Kamlesh was most crucial

to know as to whether the appellant and the deceased were

together till all of them had slept. It is all the more crucial that the

appellant claims that he had left the place in the backdrop of the

quarrels he was having at the work place and the very same night

he had left for his native place. This is another factor which the

Sessions Court failed to appreciate.

27.The other circumstance on which the prosecution has placed

much reliance is alleged oral dying declaration of the deceased.

Even according to the prosecution, this is not a case where the

dying declaration was recorded as per procedure before a

Magistrate after a Doctor gave fitness certificate to the victim for

giving such a statement. This was a case where the witnesses

claimed that the deceased told them certain facts.

28.The witnesses relied upon by the prosecution for the oral

dying declaration are PW1, PW3 and PW4. According to these

three witnesses, when they saw the deceased lying in a pool of

blood on the floor of the restaurant, they approached him and he

stated that the appellant had assaulted him with the gas cylinder.

All three witnesses did state about the serious injuries suffered by

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the victim on his head and that there was blood all over the floor

when they saw the victim in the restaurant. In this context, the

evidence of PW3 is crucial. He is the first person who claims to

have seen the deceased lying on the floor of the restaurant in a

pool of blood and the said Kamlesh standing next to him. This was

at about 6:00 in the morning. PW3 claims that he asked Kamlesh

as to why he had not called PW1 i.e. the owner of the restaurant,

when Kamlesh told him that the appellant had assaulted the victim

with the gas cylinder and he had run away with Kamlesh’s phone

and therefore, he could not inform PW1. PW3 claims that

thereafter he called PW4 i.e. brother of PW1 and told him that the

victim was seriously injured. It is therefore claimed that when

PW1-Sandesh and PW4-Bhavesh came to the restaurant and they

along with PW3 went near the victim and asked him, the victim

allegedly told them that the appellant had assaulted him. PW3 was

the first person on the scene and he did not state in his

examination-in-chief that upon seeing the injured victim on the

floor lying in a pool of blood, he was conscious or that PW3 made

any attempt to interact with victim. It is also stated that only

Kamlesh was with the victim at the point in time PW3 first came

to the scene. No attempt was made by PW3 to ask the victim

about what had happened. Kamlesh told him that the appellant

had assaulted the victim with the gas cylinder. It is not even the

case of the prosecution that Kamlesh was an eye-witness. As a

matter of fact, Kamlesh was not even examined as a witness. He

was also not arraigned as an accused, although, he was the only

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person found with the victim lying in a pool of blood on the floor

of the restaurant.

29.A perusal of the evidence of PW1 shows that according to

him, when he along with PW3 and PW4 went inside the restaurant

and asked the victim, he stated that the appellant had assaulted

him with the gas cylinder. The evidence of PW4 shows that

according to him, when he along with PW1 and PW3 went inside

the restaurant and asked the victim, who was lying in a pool of

blood, as to what had happened, the victim stated that when he

was sleeping, the appellant had assaulted him with a gas cylinder.

If the assault had occurred when the deceased was sleeping, how is

it that he could state that it was only the appellant and not

Kamlesh, who had assaulted him. Even according to the

prosecution, Kamlesh was in the restaurant along with the

appellant and the deceased throughout the night. This gives rise to

doubt and it also demonstrates that another view is possible and as

per settled law, if there are two views possible, the one that

benefits the accused has to be accepted.

30.The prosecution has relied upon the position of law that

when there is an ocular evidence, the same must prevail over

medical evidence. There can be no quarrel with the said

proposition. But, the said principle would operate with full force

when there is direct evidence in the form of eye-witness having

seen an incident or an assault as opposed to the claim of

prosecution witnesses in the present case that the deceased told

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them about the assault carried out by the accused (appellant). It is

crucial to note that in the present case, the victim had suffered

serious head injury and part of his skull was depressed and crushed

by the blow. The prosecution failed to place on record the

treatment papers of the deceased. The documents relied upon by

the prosecution do not show existence of the treatment papers

from the point in time the deceased was admitted to the hospital

and his body was sent for postmortem. The only documents on

record, brought to the notice of this Court, are Exhibits 69 and

70. Exhibit 69 is the postmortem requisition form, wherein the

history of the deceased, when he was brought as a patient, records

that he was assaulted by an employee at about 2:00 a.m. The

deceased was unconscious with nasal bleeding and two episodes of

convulsions when he was brought to the hospital. The general

condition was poor and he was unconscious. The said document

also recorded depressed injury over forehead. Exhibit 70 is a

document which does not bear endorsement of the hospital at all,

but it is a request made by the police constable to the medical

officer to state as to whether the deceased was fit to give a

statement. The handwritten endorsement on the said document

records that the patient was unconscious and not able to give

statement at 7:30 a.m. on 6

th

July 2017.

31.These documents are required to be considered with the

evidence of PW7 i.e. the Doctor. The evidence of the Doctor PW7

shows that as per the details given in the postmortem report, the

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following injuries were found on the body of the deceased :

“1)CLW over forehead mid part extending from right

eyebrow involving right eyebrow, frontal bone upto left

eyebrow. Semicircular forehead compressed antero-

posteriorly. Size 14cm x 1.5 cm x bone deep with depressed

fracture of frontal and nasal bone at nasion.

2)Evidence of right black eye.

The injury was ante-mortem in nature corresponding internal

injuries.

3)Contusion of scalp underneath over frontal parital

region.

4)Fracture depressed mid frontal bone and nasal bone.

5)Fracture cibriform plate. Fracture right orbital plate.

6)Subdural hemorrhage over bilateral frontal region.”

32.PW7-Doctor stated that the head injury was due to heavy,

hard and blunt impact. It had resulted in fracture of the skull,

which led to the death. PW7-Doctor further stated that rigor

mortis was well marked in the whole body when it was brought

for postmortem and that rigor mortis in the whole body develops

within 12 hours. The postmortem was conducted between 13:15

hrs and 14:30 hrs on 6

th

July 2017. It was specifically stated that

considering when the body was brought for postmortem, the

death of the deceased may have occurred approximately 12 hours

prior to the postmortem. It was also stated by PW7-Doctor that a

person having injuries as recorded in column Nos.17, 18 and 19,

pertaining to surface wounds and injuries, as also internal injuries

and injuries to the head, would show that person would be

unconscious or he may have died on the spot.

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33.Such evidence cannot be ignored by the Court and a rational

analysis of the same leads to the conclusion that considering the

nature of injuries, the fact that the assault was carried out by the

gas cylinder, which had a heavy, hard and blunt impact, the

evidence indicating that the assault had taken place about 10 to 12

hours prior to the postmortem, the victim would have been in no

condition to make any statement, as claimed by the witnesses

PW1, PW3 and PW4. The treatment papers have not been placed

on record and the only two documents at Exhibits 69 and 70

sufficiently demonstrate that the deceased was not fit to give a

statement. This creates a serious cloud of doubt about the claim of

oral dying declaration. It would be unsafe to accept the said

circumstance as having been proved beyond reasonable doubt.

34.In this context, reliance placed on behalf of the appellant on

the judgment of this Court in the case of State of Maharashtra vs.

Santosh, son of Madukar Kadam (supra) appears to be justified. In

the said case also, the victim had suffered serious head injury and

in that context, the trial Court had refused to accept the story of

oral dying declaration given by the deceased. This Court did not

find fault with the trial Court taking such a view in the matter and

upheld the acquittal of the accused therein. In the present case

also, we find that the evidence on record creates a serious cloud of

doubt on the claims made by PW1, PW3 and PW4 that the

deceased had stated to them that the appellant had assaulted him

with the gas cylinder.

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35.In this context, the timing of recording of the FIR needs to

be taken note of. PW1, PW3 and PW4 claim after they saw the

deceased in the said condition, they had informed the Police and

further steps were taken in that regard. But, the record shows that

the FIR was registered much later at 14:23 hrs on 6

th

July 2017.

This may not be a factor to be considered as fatal to the

prosecution. Nonetheless, the time gap between the point in time

the Police was allegedly informed by the said witnesses and

recording of the FIR after about 8 hours, is a factor that cannot be

ignored. Having noticed that the appellant was missing, the said

witnesses could have developed a suspicion about his involvement.

The time gap in the registration of the FIR creates a doubt that in

order to support the theory of involvement of the appellant, the

claim of the deceased having told the said witnesses about

involvement of the appellant, may have been floated. At least, the

said sequent of events gives scope for the appellant to contend that

the story was concocted that the deceased had told, while lying in

a pool of blood on the floor of the restaurant, that the appellant

had assaulted him with the gas cylinder. In such circumstances, we

find that the crucial circumstance of the oral dying declaration

cannot be said to have been proved beyond the reasonable doubt.

36.The next circumstance on which the prosecution has relied

was recovery of bloodstained clothes. In support of the said

circumstance, the prosecution relied upon evidence of PW2 i.e.

the panch witness for recovery of bloodstained clothes, as also the

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evidence of the investigating officer. We find that even if the

evidence of the said witnesses is considered, the bloodstained

clothes were found in an open space near a tree, which was

accessible to the general public. As per settled law, such recovery is

not believable and it cannot be a sole circumstance to hold against

the appellant. Even otherwise, the Chemical Analysis (CA) reports

show that the blood found on the clothes was human blood, but

the blood group was inconclusive. The CA reports also show that

the analysis of the blood sample of the deceased showed human

blood with no details of blood grouping. Therefore, there is no

evidence to establish that the blood allegedly found on the clothes

of the appellant was the blood of the deceased. Hence, the

aforesaid recovery is of no consequence and the said circumstance

is also not proved beyond reasonable doubt.

37.The prosecution heavily relied upon recovery of the mobile

phones from the appellant, when he was arrested in Allahabad. It

was claimed that three mobile phones were recovered from the

person of the appellant. One mobile phone was claimed to be that

of the appellant, another of the deceased and the third mobile

phone allegedly belonged to the said Kamlesh. It was vehemently

argued on behalf of the appellant that the whole act of arresting

the appellant at Allahabad was not proved as the panch witnesses

taken by the concerned police officer to Allahabad, were not

examined as prosecution witnesses and that the local witnesses in

whose presence the recovery was undertaken, were also not

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examined, as regards arrest of the appellant. We are unable to

accept the said contention raised by the learned counsel for the

appellant. This is simply for the reason that in his response to

questions put to him during recording of his statement under

Section 313 of the Cr.P.C., the appellant categorically stated that

he was indeed arrested by the Police team at Allahabad, that he

was produced before the Court for transit remand and he was also

medically examined at Allahabad. Therefore, on the question of

arrest from Allahabad, this Court is unable to accept the

contentions raised on behalf of the appellant. But, even in the

statement recorded under Section 313 of the Cr.P.C., the appellant

stoutly denied recovery of any mobile phones from him when he

was arrested at Allahabad.

38.Therefore, it is only the evidence of PW10-Investigating

Officer about the alleged recovery of the three mobile phones

from the appellant when he was arrested in Allahabad. But, it is

crucial to note that the evidence of PW12 and PW13 i.e. Nodal

Officers of the mobile service providers, shows that the sim cards

of the mobile numbers attributed to the appellant and the

deceased, were registered in the names of some third persons. The

prosecution did not bring evidence on record to link these third

persons with the appellant and the deceased. It was not explained

as to how these mobile phones and the sim cards found therein

were linked and traceable to the appellant and the deceased. In the

absence of any such connecting material and evidence, the whole

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theory of the mobile phones of the appellant, deceased and the

said Kamlesh being found with the appellant, when he was

arrested at Allahabad, collapses completely. There is no evidence

on record to show as to on what basis the prosecution claimed

that these three mobile phones belonged to the said three persons.

In fact, this was the basis for the Sessions Court to have convicted

the appellant for offence under Section 379 of the IPC. We find

that the entire evidence of the prosecution claiming recovery of

the three mobile phones from the appellant, when he was arrested

at Allahabad, is deficient and therefore, the said circumstance is

also not proved beyond reasonable doubt.

39.In any case, the prosecution failed to make any effort to

place the tower locations of these mobile phones on record. If

such material was placed on record, the movement of the

appellant could have been traced and proved, in order to support

the prosecution theory that he immediately absconded after

assaulting the deceased.

40.The prosecution has heavily relied upon the evidence of the

prosecution witnesses, including PW1 and PW4, to claim that in

the evening on 5

th

July 2017, the appellant had a quarrel with the

deceased. In the evidence of these witnesses, it was stated that the

two were having quarrels while working in the restaurant. We find

that even if that be so, the prosecution cannot claim that the

quarrel between the two was the sole motive for the appellant to

have assaulted the deceased in the aforesaid manner. It is to be

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noted that the appellant has throughout stated that he was himself

forced to leave the job and go to his native place in the light of the

frequent quarrels at the work place i.e. the restaurant. Much

emphasis was placed by the learned APP on the conduct of the

appellant in absconding after the incident. The appellant has

throughout claimed that he left the job, went to his brother in law,

who helped him buy a ticket and board a train to leave for his

native place. Both scenarios are possible, particularly in the light

of the fact that the appellant did produce his brother in law as a

defence witness. In his statement recorded under Section 313 of

the Cr.P.C, the appellant throughout stated and stoutly claimed

that he was falsely implicated. In fact, he stated that he had not

slept in the restaurant on 5

th

July 2017 and that he was not aware

about how the incident had taken place. As noted hereinabove, the

presence of Kamlesh throughout the night in the restaurant is

established and his role was not even explored by the investigating

officers and the prosecution, thereby creating serious doubt about

the sequence of events that took place on the intervening night

between 5

th

July 2017 and 6

th

July 2017.

41.Although the learned APP submitted that the responses of

the appellant in his statement under Section 313 of the Cr.P.C.,

demonstrated that he had admitted to certain crucial facts, we find

that the responses of the appellant appear to be natural and

consistent with his theory that he had left the restaurant, went to

his brother in law and left for his native place, being fed up with

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the quarrels at the work place i.e. the restaurant. Therefore, it

cannot be said that in the responses to questions put to the

appellant during recording of his statement under Section 313 of

the Cr.P.C., the appellant made crucial admissions that would

inure to the benefit of the prosecution.

42.We are of the opinion that when the evidence and material

on the basis of which the prosecution has built its case, on an

objective analysis, gives rise to two possible views, the one in

favour of the accused (appellant) has to be accepted and the

benefit of doubt must go to the appellant. In the present case, as

noted hereinabove, one of the crucial aspects, was the consistent

assertion of the prosecution witnesses that the third employee i.e.

the said Kamlesh was with the deceased throughout, from the

point in time PW1 last saw him in the night on 5

th

July 2017, till

he was found with the deceased lying in a pool of blood, on the

floor of the restaurant at about 6:00 a.m. on 6

th

July 2017. This

creates a room for doubt as to who could be said to be the author

of the ghastly incident, which resulted in the death of the

victim/deceased. The other factors noted hereinabove also

demonstrate that crucial circumstances in the form of recoveries

and oral dying declaration are covered in a cloud of doubt and

hence, the benefit of doubt must go to the appellant. In this case

of circumstantial evidence, applying the above quoted principles

laid down by the Supreme Court in the case of Sharad

Birdhichand Sarda vs. State of Maharashtra (supra), it would be

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unsafe to confirm the finding of guilt recorded by the Sessions

Court.

43.As regards, reliance placed by the learned APP on the

judgment of the Supreme Court in the case of Trimukh Maroti

Kirkan vs. State of Maharashtra (supra), we find that even if in

such a case of circumstantial evidence, the prosecution finds it

difficult to lead evidence to establish the guilt of the accused, the

burden is still on the prosecution to prove that the circumstances

asserted by it are proved beyond reasonable doubt and such

circumstances indeed form a chain that points only towards the

hypothesis of guilt of the accused. Even in such a case where the

incident in question takes place within four walls and in the

absence of direct evidence of eye-witnesses, the burden on the

prosecution to prove the circumstances beyond reasonable doubt,

has to be discharged.

44.As regards judgment of the Supreme Court in the case of

Laxman vs. State of Maharashtra (supra) relied upon by the

learned APP, we do not find that it can be of much assistance. We

find that in the present case, in response to question put to the

appellant with regard to incriminating circumstance of oral dying

declaration being allegedly given by the deceased to the said

witnesses, the appellant had specifically stated that such claims

were false. Hence, the said judgment also cannot take the case of

the prosecution any further.

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45.In view of the above discussion, the appeal is allowed in the

following terms :

ORDER

(i)The appeal is allowed;

(ii)The impugned judgement and order dated 31

st

March

2021, passed by the Court of District Judge-9 and

Additional Sessions Judge, Thane, in Sessions Case

No.148 of 2018, convicting and sentencing the

appellant, is quashed and set aside;

(iii)Consequently, the appellant is acquitted of all the

charges;

(iv)The appellant shall be released forthwith, unless

required in any other case;

(v)Before being released, the appellant shall execute

P.R.Bond in the sum of Rs.25,000/-, under Section

481 of the Bharatiya Nagarik Suraksha Sanhita, 2023

(corresponding to Section 437A of the Cr.P.C.) for

their appearance, in the event an appeal is preferred

against his acquittal.

46.Pending applications, if any, also stand disposed of.

(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)