Cri.Appeal 502-2021.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 502 OF 2021

Prabhakar Kutty Shetty

(At Central Prison, Kolhapur)

Aged 33 years

Add. Padmashri House, Village Irna,

Tal. Karkala, Dist. Udupi, Karnataka.

..

Appellant

V/S.

The State of Maharashtra .. Respondent

-------------------

Adv. Gaurav Bhawnani a/w Adv. Hari Rajguru a/w Adv. Mayanka S. a/w

Adv. Abdul Wahab Khan for Appellant.

Ms. Sangeeta E. Phad APP for the Respondent-State.

--------------------

CORAM:MANISH PITALE &

SHREERAM V. SHIRSAT, JJ.

RESERVED ON :9

th

APRIL, 2026.

PRONOUNCED ON :9

th

JULY, 2026.

JUDGMENT: (Per Shreeram Shirsat, J.)

1. The present Appeal has been filed challenging the i mpugned

judgment and order dated 08.12.2020 passed by the Sessions Judge, Gr.

Bombay in Sessions Case no. 179/2014, whereby the Appellant has been

convicted for the offences punishable under Section 302 of the Indian Penal

Code (IPC) and has been sentenced to undergo Imprisonment for Life and

pay a fine of Rs.1,00,000/- and in default to undergo Imprisonment for 1

year and under Section 201 of the IPC to undergo Rigorous Imprisonment

Vishal Parekar 1

 of 96

Cri.Appeal 502-2021.doc

for 2 years and a fine of Rs. 10,000/- and in default to undergo

Imprisonment for 3 months.

2. Brief facts of the prosecution case are as under:

a) It is the case of the prosecution that on 29

th

October, 2013, at

about 22:40 hours, ASI Hanumant Govind Patil (P.W. 1) while on

patrolling duty on Hemu Kalani Marg, found mob of some persons

near Charai Lake, Chembur and upon inquiry, it transpired that

two unidentified persons had arrived by auto rickshaw and

disposed off a black coloured plastic bag in the lake. The bag was

retrieved and found to contain the torso of a woman aged

approximately 25 to 30 years. An Accidental Death Report (ADR)

bearing No. 135/13 was registered under Section 174 of the Code of

Criminal Procedure (Cr.P.C). It is further the case that on 30th

October, 2013, two human legs along with four blood-stained

plastic bags were separately recovered from another location

(Trombay Jetty).

b) It is further the case of the prosecution, that the investigation

led to the tracing of the auto rickshaw driver (P.W. 3), whose

statement was recorded and a description of the accused was

obtained. A missing complaint report lodged at Saki Naka Police

Station by Subhashini Prasad Shetty (P.W. 18), the sister of the

deceased, led to the identification of the body parts as those of

Vishal Parekar 2

 of 96

Cri.Appeal 502-2021.doc

Smt. Kanti Karunakar Shetty (deceased), confirmed through

physical identification.

c) It is further the case that the accused was thereafter arrested

and two mobile phones were seized from his person. Pursuant to

disclosure statements made by the accused, the head of the

deceased was recovered from a nala near Sai Baba Nagar, Shell

Colony and a further disclosure statement on 7th November,

2013, led to the recovery of a knife from a nala on the western side

of Acharya College which was seized under panchanama.

d) It is further the case that the Test Identification Parade was

conducted on 27th December, 2013, before the Naib Tahasildar

(P.W. 12) at Arthur Road Jail, wherein the Appellant was

identified by two witnesses.

e) Upon completion of investigation, a charge-sheet was filed

against the Appellant for offences punishable under Sections 302

and 201 of the Indian Penal Code.

3. To bring home the guilt of the Accused-Appellant, the prosecution in

all examined 25 witnesses (P.W. 1 to P.W. 25):

P.W NAME ROLE

1. Hanumant Patil ASI who lodged FIR on 30.10.2013.

2. Aatish Kale

Witness who saw the Appellant disposing the torso

and who also identified the Appellant in the Test

Identification parade.

3.

Mohammed Sail

Mohd Iklal Shaikh

Auto-rickshaw driver who rode the Appellant to

Charai Talao on the evening of 29.10.2013.

Vishal Parekar 3

 of 96

Cri.Appeal 502-2021.doc

4. Krutik Shetty

Son of the deceased who has deposed about the

previous quarrels between the Appellant and the

deceased.

5. Nilesh Dhobale

Witness who claims to have last seen the deceased

entering the room of the Appellant.

6. Mukesh Kavale

Witness who saw the Appellant disposing the torso

and who also identified the Appellant in the Test

Identification Parade.

7. Goga Ram More

Panch Witness -Inquest and spot panchnama

dated 29.10.2013.

Personal search panchnama dated 05.11.2013.

Disclosure panchnama dated 05.11.2013 and

seizure panchnama pertaining to the head of the

deceased and Room No. 224.

8. Sunil Rane

Panch Witness to disclosure panchnama and

seizure panchnama dated 07.11.2013 pertaining to

the weapon of murder- knife.

9. Balu Panchange

Panch Witness to disclosure panchnama and

search panchnama dated 16.11.2013 pertaining to

the mobile phones, clothes, chappal and ornaments

of the deceased.

10.

Sanjay Sarkar

Panch Witness to seizure panchnama dated

17.11.2013 pertaining to the black coloured

polythene bag from Chembur Gymkhana.

11. Hussain Shaikh

Panch Witness to Spot-cum-inquest panchnama

dated 30.10.2013 pertaining to the legs of the

deceased.

12. Sanjay Kirve

Naib Tahsildar who conducted the Test

Identification Parade on 27.12.2013.

13. PN Sheshrao Tiwale

Carrier of muddemal, forwarding letter dated

31.10.2013, forwarding letter dated 06.11.2013,

request letter for DNA kit dated 11.11.2013,

forwarding letter dated 13.11.2013, forwarding

letter dated 14.11.2013, forwarding letter dated

19.11.2013 and forwarding letter dated 05.12.2013.

14. Gurunath Kulkarni

Landlord who let out Room No. 224 to the

Appellant.

15. Yogesh Rajapurkar

Nodal Officer- Airtel, with respect to numbers

98925223098 and 9967131884.

16. Changdev Godse

Nodal Officer- Vodafone, with respect to numbers

9167976154 and 9930783502.

Vishal Parekar 4

 of 96

Cri.Appeal 502-2021.doc

17. Dr. Sunil Jawale

Autopsy surgeon of the head of the deceased and

who conducted the Post-Mortem of the deceased

on 06.11.2013.

18. Subhashini Shetty Sister of the deceased.

19. Ajay Kamble

Witness who found the legs of the deceased at

Trombay Jetty on 30.10.2013.

20. Dr. Harshal Thube

Autopsy Surgeon of the torso and the legs of the

deceased.

21. Dr. Ganesh Niturkar

Autopsy surgeon of the torso and the legs of the

deceased.

22. Suresh Hegde

Manager of K.V. Caterers where the Appellant was

employed.

23. Ravindra Mohite

The Investigation Officer who registered ADR

dated 30.10.2013 and made a station diary entry

dated 30.10.2013.

24. Ganesh Adsul The Investigation Officer.

25. ACP Khanwilkar The Investigating Officer.

4. On completion of the prosecution evidence, statement of the

Appellant under Section 313 Cr.P.C. was recorded, wherein the Appellant

denied the case of the prosecution and further stated that he was falsely

implicated in the case. The Appellant was also granted an opportunity to

lead defence evidence, if so desired. The Appellant neither chose to lead any

defence evidence, nor did he examine himself on oath.

5. After hearing the prosecution as well as the defence and upon

appreciation of the evidence on record, the Sessions Judge, vide judgment

and order dated 08.12.2020, was pleased to convict the Accused/Appellant

for the offences punishable under Section 302 of the Indian Penal Code

(IPC) and sentenced him to undergo Imprisonment for Life and pay a fine of

Vishal Parekar 5

 of 96

Cri.Appeal 502-2021.doc

Rs.1,00,000/- and in default to undergo Imprisonment for 1 year and under

Section 201 of the IPC to undergo Rigorous Imprisonment for 2 years and a

fine of Rs. 10,000/- and in default to undergo Imprisonment for 3 months.

6. Being aggrieved by the judgment and order of conviction in Sessions

Case No. 179/2014, dated 08.12.2020, passed by the Sessions Judge, Gr.

Bombay, the Appellant has approached this Court by way of the present

appeal.

7. Heard Learned Counsel Adv. Gaurav Bhawnani for the Appellant and

Ld. APP Adv. Sangeeta Phad for the Respondent-State.

8. The Learned Counsel for the Appellant submitted that the case rests

entirely on circumstantial evidence and the prosecution has failed to

establish a complete chain of circumstances, pointing unerringly, to the guilt

of the Appellant. On the aspect of motive, it was submitted that the first

alleged motive, namely the monetary dispute, has already been disbelieved

by the Sessions Court. As regards the second alleged motive of refusal of

marriage, it was submitted that the same is wholly speculative and

uncorroborated, inasmuch as P.W. 4, the son of the deceased, did not even

possess the contact number of the Appellant and P.W. 18, sister of the

deceased, was unaware of the existence of any person by the name of

Prabhakar in the life of the deceased. He also submitted that the Appellant

had agreed to marry the deceased and therefore refusal to marry cannot be

considered as a motive. With respect to the theory of last seen together, it

Vishal Parekar 6

 of 96

Cri.Appeal 502-2021.doc

was submitted that the statement of P.W. 5 was recorded after a delay of

approximately one and a half months and that his explanation of being

preoccupied with his courier business does not satisfactorily account for his

silence during an ongoing murder investigation, rendering his evidence a

clear afterthought. As regards the disposal of the torso, it was submitted that

P.W. 2 and P.W. 6 described the person at Charai Lake as approximately 5

feet in height whereas the Appellant stands at 5 feet 7 inches, a material

discrepancy of seven inches going to the very root of identification. On the

Test Identification Parade, it was submitted that the same stands vitiated on

account of unexplained delay, material contradictions as to whether it was

the panchas or the police who brought the witnesses, a contradiction hit by

Section 162 Cr.P.C and the admission of P.W. 12 that both the Panchas and

the dummies were arranged by the police and jail authorities respectively,

were contrary to the requirement of independent arrangement by the

Tahsildar. On the Call Detail Records (CDRs), the Ld. Counsel submitted

that a static tower location does not establish physical presence, particularly

when the possibility of the phone having been used by another person

cannot be excluded. It was further submitted, that the recoveries under

Section 27 of the Indian Evidence Act require scrutiny as to whether they

constitute genuine discoveries or merely confirm facts already within the

knowledge of the police. It was also submitted that the knife recovered is

wholly insufficient to account for the injuries noted in the post-mortem

report. He further argued that the delay of six days in lodging the missing

Vishal Parekar 7

 of 96

Cri.Appeal 502-2021.doc

complaint by P.W. 18, was also urged as casting further doubt on the

prosecution’s timeline. It was submitted that each of the aforesaid

circumstances, being individually infirm, cumulatively fall well short of the

standard required to sustain a conviction on circumstantial evidence.

9. In support of their contentions, the Ld. Counsel for the Appellant has

relied upon a plethora of judgments, which are as under:

i. Hanumant v/s State of Madhya Pradesh

1

ii. Sharad Birdhichand Sarda v/s State of Maharashtra

2

iii. Shankarlal Gyarasilal Dixit v/s State of Maharashtra

3

iv. Shahid Khan v/s State of Rajasthan

4

v. Ganesh Bhavan Patel v/s State of Maharashtra

5

vi. Mohd. Sajjad v/s State of West Bengal

6

vii. Chunthuram v/s State of Chhattisgarh

7

viii. Vilas Vasantrao Patil v/s State of Maharashtra

8

ix. State of Maharashtra v/s Rajesh

9

x. H.P. Administration v/s Om Prakash

10

xi. Gambhir v/s State of Maharashtra

11

xii. Kashinath Baban Palkar v/s State of Maharashtra

12

xiii. Sattatiya v/s State of Maharashtra

13

1 (1952) 2 SCC 71.

2 (1984) 4 SCC 116.

3 (1981) 2 SCC 35.

4 (2016) 4 SCC 96.

5 (1978) 4 SCC 371.

6 (2017) 11 SCC 150.

7 (2020) 10 SCC 733.

8 1995 SCC OnLine Bom 399.

9 1997 SCC OnLine Bom 399.

10 (1972) 1 SCC 249.

11 (1982) 2 SCC 351.

12 1995 SCC OnLine Bom 167.

13 (2008) 3 SCC 210.

Vishal Parekar 8

 of 96

Cri.Appeal 502-2021.doc

xiv. Makhan Singh v/s State of Punjab

14

xv. State of Haryana v/s Jagbir Singh

15

xvi. Murli v/s State of Rajasthan

16

xvii. Madaiah v/s State

17

xviii. Rohidas Manik Kasrale v/s State of Maharashtra

18

10.Per Contra, the Learned APP submitted that the prosecution has

successfully established a complete and unbroken chain of circumstances

unerringly pointing to the guilt of the Appellant and that the Sessions Court

has rightly convicted the Appellant-Accused. On the aspect of motive, it was

submitted that P.W. 4, a natural and credible witness, has established that

the deceased was insisting upon marriage which the Appellant was refusing,

and that his evidence stands unimpeached. It was submitted that this

constitutes a sufficient link in the chain of circumstances. The Ld. APP, on

last seen together, submitted that the evidence of P.W. 4 and P.W. 5,

corroborated by the Cell tower location evidence of P.W. 15 and P.W. 16,

conclusively establishes that the deceased was last seen in the company of

the Appellant, immediately prior to her death. It was submitted that the Cell

tower location records, demonstrate continuous interaction between the two

mobile phones during the relevant evening hours and the progressive

movement of the phone of the deceased towards the location of the

Appellant. On the aspect of the disposal of the torso, it was submitted that

14 1998 Supp. SCC 526.

15 (2003) 11 SCC 261.

16 1995 Supp (1) SCC 39.

17 1992 Cri.L.J. 502.

18 2012 Cri.L.J. 917.

Vishal Parekar 9

 of 96

Cri.Appeal 502-2021.doc

P.W. 2, P.W. 3 and P.W. 6 are consistent, cogent and independent witnesses

who had ample opportunity to observe the Appellant, and that any minor

discrepancy in physical description is of no consequence. It was submitted

that the SIM cards seized from the possession of the Appellant are sufficient

to establish their use by him. The Ld. APP further submitted that the Test

Identification Parade was conducted by P.W. 12 and that any delay therein is

not fatal, particularly when the witnesses had sufficient opportunity to

observe the Appellant. On the issue of disclosure and recovery, it was

submitted that the recovery of the head of the deceased from a location

exclusively within the knowledge of the Appellant, is by itself a powerful,

incriminating circumstance and that the recoveries of the legs of the

deceased and the weapon of the murder (knife), under Section 27 of the

Indian Evidence Act, forms a crucial independent link in the chain. On

medical and forensic evidence, it was submitted that the post-mortem

reports conclusively establish homicidal death by decapitation of head and

that DNA profiling conclusively establishes the identity of the deceased as

Kanti Karunakar Shetty. It was submitted that the totality of the evidence

right from motive, last seen, eye-witness identification, disclosure and

recovery, tower location and forensic evidence forms a complete and

unbroken chain admitting of no other reasonable hypothesis, and that the

conviction deserves to be maintained.

11. The Ld. APP has relied upon the following authorities to buttress her

arguments:

Vishal Parekar 10

 of 96

Cri.Appeal 502-2021.doc

i. Balu Sudam Khalde & Anr. v/s State of Maharashtra

19

ii. Neelu @ Nilesh Koshti v/s State of Madhya Pradesh

20

iii. Chetan Prakash v/s State (GNCT of Delhi)

21

iv. Prabhu Dayal v/s State of Rajasthan

22

v. Phula Singh v/s State of Himachal Pradesh

23

vi. Munish Mubar v/s State of Haryana

24

vii. Pramod Mandal v/s State of Bihar

25

viii. State of Maharashtra v/s Suresh

26

ix. State of Punjab v/s Karnail Singh

27

x. Ganesh Lal v/s State of Maharashtra

28

xi. Rohtash Kumar v/s State of Haryana

29

xii.Trimukh Maroti Kirkan v/s State of Maharashtra

30

xiii. Kishore Bhadke v/s State of Maharashtra

31

.

12. Before adverting to the individual circumstances, it will be pertinent

to refer to the latest judgment of the Hon’ble Apex Court in the case of

Anand Jakkappa Pujari @ Gaddadar v/s The State of Karnataka decided on

27

th

April, 2026 in Criminal Appeal No. 1864 of 2024 wherein it is held as

under:

“27. The logical process involved in the admission and

consideration of circumstantial evidence has been

19 AIR OnLine 2023 SC 229.

20 Cri.A.5357 of 2025.

21 AIR OnLine 2022 Del. 1715.

22 Cri. A. 2324 of 2014.

23 AIR 2014 SC 1256.

24 AIR 2013 SC 912.

25 Cri.A. 174 of 2003.

26 AIR OnLine 1999 SC 169.

27 (2003) 11 SCC 271.

28 (1992) 3 SCC 106.

29 (2013) 14 SCC 434.

30 (2006) 10 SCC 681.

31 (2017) 3 SCC 760.

Vishal Parekar 11

 of 96

Cri.Appeal 502-2021.doc

explained by Wigmore on Evidence in paragraph 32 et

seq. The test for the admissibility of evidence to prove a

circumstantial fact was expressed in the following

words:-

“The evidentiary fact will be considered when,

and only when, the desired conclusion based upon it

is a more probable or natural, or at least a probable or

natural hypothesis, and when the other hypotheses or

explanations of the fact, if any, are either less

probable or natural, or at least not exceedingly more

probable or natural” (paragraph 32, page 421).

“Where even the possibility of a single other

hypothesis remains open, Proof fails, though it

suffices for Admissibility if the desired conclusion

is merely the more probable, or a probable one,

even though other hypotheses, less probable or

equally probable remain open. It is thus apparent

that, by the very nature of this test or process, a

specific course is suggested for the opponent. He

may now properly show that one or another of

these hypotheses, thus left open, is not merely

possible and speculative, but is more probable and

natural as the true explanation of the originally

offered evidentiary fact” (paragraph 34, page

423).”

“28. In the aforesaid context, Kenny states that:-

“An amount of testimony which is not sufficient

to rebut the presumption of innocence entirely

(i.e., to shift the burden of proof so completely

as to compel the prisoner to call legal evidence

of circumstances pointing to his innocence),

may yet suffice to throw upon him the necessity

of offering, by at least an unsworn statement,

some explanation. If he remain silent and leave

this hostile testimony unexplained, his silence

will corroborate it, and so justify his being

convicted” (page 388).

“29. The principle that criminal courts should bear in

mind is, in the words of C.B. Pollock:-

“To make a comparison between convicting

the innocent man and acquitting the guilty is

perfectly unwarranted. There is no

comparison between them. Each of them is a

great misfortune to the country and

discreditable to the administration of justice.

The only rule that can be laid down is that in

a criminal trial you should exert your utmost

vigilance and take care that if the man be

Vishal Parekar 12

 of 96

Cri.Appeal 502-2021.doc

innocent he should be acquitted, and if guilty

that he should be convicted.” (quoted in

Donough’s Principles of Circumstantial

Evidence, 1918, 158).

“30. From the above, the following propositions

emerge:-

1. Circumstantial evidence to justify conviction must

be consistent with any reasonable or rational

hypothesis of guilt of the accused.

2. When the inference of guilt from the proved

incriminating facts is a more natural and probable

hypothesis than the other, the onus of offering an

explanation for the incriminating facts lies upon the

accused. If he does not offer any explanation, or

falsely denies the very existence of the

incriminating facts, it is itself a circumstantial fact

against him, even if the court is in a position to

imagine an explanation. The guilt is the legitimate

inference from the incriminating facts and the

added circumstantial fact of failure or refusal to

offer an explanation for the incriminating facts

because it is not reasonable or rational to say that

the accused would fail or refuse to offer an

explanation consistent with his innocence if he

could. It is immaterial in such a case whether the

Court can imagine an explanation or not.

3. If the inference of guilt from the proved

incriminating facts is a less natural or probable

hypothesis than the other, the Court cannot draw it

and the accused must be acquitted whether he

offers any explanation or not.

4. If the inference of guilt from the proved

incriminating facts is as much a natural or probable

hypothesis as any other, the accused may be called

upon to explain and if he fails or refuses, the Court

may treat it as an additional circumstantial fact and

infer his guilt. Or it may take judicial notice of the

other hypothesis even without any explanation by

the accused and acquit him.

“31. In a catena of decisions, it has been consistently

held that when a case rests upon circumstantial

evidence, such evidence must satisfy the tests laid

down by this Court in Sharad Birdhichand Sarda v.

State of Maharashtra, reported in (1984) 4 SCC 116.

The relevant observations read thus:-

“153. A close analysis of this decision would

show that the following conditions must be

fulfilled before a case against an accused can

Vishal Parekar 13

 of 96

Cri.Appeal 502-2021.doc

be said to be fully established:

(1) the circumstances from which the

conclusion of guilt is to be drawn should be

fully established.

It may be noted here that this Court

indicated that the circumstances concerned

“must or should” and not “may be”

established. There is not only a grammatical

but a legal distinction between “may be

proved” and “must be or should be proved”

as was held by this Court in Shivaji Sahabrao

Bobade v. State of Maharashtra [(1973) 2

SCC 793 : 1973 SCC (Cri) 1033 :1973 Crl LJ

1783] where the observations were made:

[SCC para 19, p. 807: SCC (Cri) p. 1047]

“Certainly, it is a primary principle that the

accused must be and not merely may be

guilty before a court can convict and the

mental distance between ‘may be’ and ‘must

be’ is long and divides vague conjectures

from sure conclusions.”

(2) the facts so established should be

consistent only with the hypothesis of the

guilt of the accused, that is to say, they

should not be explainable on any other

hypothesis except that the accused is guilty

(3) the circumstances should be of a

conclusive nature and tendency,

(4) they should exclude every possible

hypothesis except the one to be proved, and

(5) there must be a chain of evidence so

complete as not to leave any reasonable

ground for the conclusion consistent with the

innocence of the accused and must show that

in all human probability the act must have

been done by the accused.”

(Emphasis supplied)

13. A useful reference can also be made to the judgement of the Hon’ble

Apex Court in the case of Abdul Nassar v/s State of Kerala and Another

32

wherein it has been observed that:-

“14. Indisputably, the prosecution case rests on

32 2025 SCC OnLine SC 111.

Vishal Parekar 14 of 96

Cri.Appeal 502-2021.doc

circumstantial evidence. The law with regard to a case

based purely on circumstantial evidence has very well

been crystallized in the judgment of this Court in the case

of Sharad Birdhichand Sarda (supra), wherein this Court

held thus:

“152. Before discussing the cases relied upon by the High

Court we would like to cite a few decisions on the nature,

character and essential proof required in a criminal case

which rests on circumstantial evidence alone. The most

fundamental and basic decision of this Court is

Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 :

AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This

case has been uniformly followed and applied by this

Court in a large number of later decisions up to date, for

instance, the cases of Tufail (Alias)Simmi v. State of Uttar

Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and

Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 :

AIR 1972 SC 656]. It may be useful to extract what

Mahajan, J. has laid down in Hanumant case [(1952) 2

SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ

129]:

“It is well to remember that in cases where the

evidence is of a circumstantial nature, the circumstances

from which the conclusion of guilt is to be drawn should

in the first instance be fully established, and all the facts

so established should be consistent only with the

hypothesis of the guilt of the Accused. Again, the

circumstances should be of a conclusive nature and

tendency, and they should be such as to exclude every

hypothesis but the one proposed to be proved. In other

words, there must be a chain of evidence so far complete

as not to leave any reasonable ground for a conclusion

consistent with the innocence of the accused and it must

be such as to show that within all human probability the

act must have been done by the accused.”

14. We also refer to the judgment of

Chetan Prakash v/s State (GNCT of

Delhi)

33

which has been relied upon by the Ld. APP, inviting the attention of

this Court to paragraph 18:

“

18…..Circumstantial evidence or indirect evidence is an

unrelated chain of events which when combined together

formulates circumstances leading to the commission of

the crime. Conviction based on circumstantial evidence

requires an unbreakable link between the criminal and

the crime devoid of conjecture or suspicion. The chain of

33 AIR OnLine 2022 Del 1715.

Vishal Parekar 15

 of 96

Cri.Appeal 502-2021.doc

circumstances must rule out reasonable likelihood of the

innocence of the accused. If circumstantial evidence

establishes the chain of events leading to the guilt of the

accused and commission of the crime without other

possibilities, can be sole basis for a conviction. The

circumstances should indicate towards the guilt of the

accused and should be inconsistent with his innocence.

The onus is on the prosecution to prove that the chain of

circumstantial evidences is complete without gaps to the

extent that no other conclusion or inference apart from

the guilt of the accused can be drawn.”

15. Therefore, where the evidence is of a circumstantial nature or where

the case is based on circumstantial evidence, 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 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 to not 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. It will therefore have to be seen from the evidence that

has come on record, whether the circumstances from which the conclusion

of guilt is to be drawn, are fully established and all the facts so established

are consistent only with the hypothesis of the guilt of the accused.

16. As stated above, in this case, there is no direct evidence and the entire

case hinges on circumstantial evidence. According to the prosecution and as

also considered by the Trial Court, the following circumstances form a chain

Vishal Parekar 16

 of 96

Cri.Appeal 502-2021.doc

of evidence excluding every possible hypothesis except the guilt of the

Appellant. These circumstances are as follows:

1.Identity of the Victim

2.Motive

3.Last seen together

4.Witness seeing the accused dumping the torso in Charai Lake

5.Test Identification Parade

6.Disclosure/recovery

7.Reports of post-mortem and Chemical Analyser .

17. The Trial Court, based on the above circumstances, has come to the

conclusion that prosecution has been successful in proving the entire chain

of circumstances beyond reasonable doubt, which point towards the guilt of

the Appellant and which leave no doubt that the Appellant was the

perpetrator of the offence and was also involved in the destruction of the

evidence.

18. It will therefore have to be seen, whether from the facts of the case,

the chain of evidence is so complete as not to leave any reasonable ground

for a conclusion consistent with the innocence of the accused and it is such

as to show that within all human probability the act must have been done by

the accused.

Let us now analyse each of the circumstances

in seriatim :-

A] IDENTITY OF THE VICTIM

Vishal Parekar 17 of 96

Cri.Appeal 502-2021.doc

19. The first circumstance taken into consideration is about the identity of

the victim/deceased. To establish the identity of the deceased, the

prosecution has examined P.W. 18, the sister of the deceased who has

deposed that her sister was missing since 29.10.2013 and a missing

complaint was filed by her and the son of the deceased, at Sakinaka Police

station on 04.11.2013. She has further deposed that on 06.11.2013, she was

called to the Chembur Police Station to identify the dead body. She has

deposed that the body was in different, separated parts and she identified

the body which was shown to her. She has deposed, that she identified the

body on the basis of her nail paint and the structural arrangement of her

teeth. She has deposed that the nail paint was of pink colour and the

deceased used to come to her house and she had applied pink coloured nail

paint at her house. The said witness was cross-examined by the defence

counsel, however, nothing much could be elicited in the cross-examination

as regards the identity of the deceased and the defence unable to discredit

the witness on the point of identity. Further, the DNA reports at Exhibit 95

Colly., conclusively establish the identity of the deceased. The report proves

that Thimmappa K. Shetty was the biological father and that P.W. 4 was the

biological son of the deceased. This evidence, therefore establishes beyond

reasonable doubt that the dismembered body parts were those of Kanti

Karunakar Shetty (deceased). Therefore, we are of the opinion that the

prosecution has duly proved the first link in the chain of circumstances and

has clearly established the identity of the deceased.

Vishal Parekar 18

 of 96

Cri.Appeal 502-2021.doc

B] MOTIVE

20. The next circumstance is motive. To establish motive, the prosecution

examined P.W. 4, the son of the deceased. P.W. 4 deposed that he knew the

Appellant and that his mother had introduced him to the Appellant. He

deposed that his mother had told him that she was in a relationship with the

Appellant and that she wanted to marry him. He further deposed that the

Appellant used to visit their house twice a week and used to stay at night

whenever he used to visit their house. He further deposed that after some

days, quarrels started between his mother and the Appellant. He further

deposed that his mother was telling the Appellant to marry her, but he was

refusing and therefore his mother was asking back for her money from the

Appellant. He further deposed that the Appellant promised to marry his

mother by putting his hand on her head and that he had put a mangalsutra

on the person of his mother. He further deposed that the Appellant had

signed the open day meeting attendance card as a guardian and that the said

card also bears the photograph of the Appellant. In the cross-examination,

the witness stated that there were frequent quarrels between his mother and

the Appellant and these quarrels started after one month of his introduction.

This witness categorically admitted that he can tell the issues about the

quarrel between his mother and the Appellant and the issues were that his

mother had given some money to the Appellant which he did not return. He

further admitted that the quarrel was also on account of his mother insisting

the Appellant to marry her.

Vishal Parekar 19

 of 96

Cri.Appeal 502-2021.doc

21. No doubt there is nothing on record to show that the money was lent

by his mother in his presence or that this witness was taken into confidence

before lending the money. There is also nothing on record to establish

lending of money by way of any documentary evidence but that is not the

only motive. It has categorically come in the evidence that the deceased was

insisting the Appellant to marry which he was refusing. Although, it has also

been admitted in the cross-examination that on 28

th

October 2013, the

accused promised to marry his mother, we do not find the testimony of this

witness to be biased in any manner. The evidence of this witness appears to

be natural and cannot be said to be exaggerated or inflated just because the

Appellant has been accused of killing his mother. His deposition was

consistent even in the cross-examination on the point of his mother asking

the Appellant about the money which she had lent him and also about the

Appellant refusing to marry his mother. Just because the witness has

admitted that on 28.10.2013, the Appellant promised to marry his mother,

does not mean that no quarrels had taken place in the past or that all their

disputes ceased to exist with the said promise. The reasons narrated for the

quarrels which ensued, are sufficient to come to the conclusion that the

Appellant was holding some serious grudge which has culminated into the

motive. We do not agree with the finding of the trial court that the motive

with respect to the money is not believable in the absence of any evidence

about how much was the earning of the victim or what amount was lent to

the accused or in whose presence it was lent. We are of the opinion that the

Vishal Parekar 20

 of 96

Cri.Appeal 502-2021.doc

prosecution has proved the motive on both counts beyond reasonable doubt.

C]LAST SEEN THEORY

22.Before adverting to the circumstance of last seen theory which has

been strongly relied upon by the prosecution, a useful reference can be made

to the judgment of Anand Jakkappa Pujari @ Gaddadar v/s The State of

Karnataka (supra):

“41. The last seen theory comes into play where the time gap

between the point of time when the accused and the deceased

were last seen alive and the deceased is found dead is so

small that possibility of any person other than the accused

being the author of the crime becomes impossible. Even in

such a case, the courts should look for some corroboration.

“42. In The State of U.P. v/s Satish reported in (2005) 3 SCC

114, this Court observed:-

“22. The last-seen theory comes into play where the

time-gap between the point of time when the accused

and the deceased were last seen alive and when the

deceased is found dead is so small that possibility of any

person other than the accused being the author of the

crime becomes impossible. It would be difficult in some

cases to positively establish that the deceased was last

seen with the accused when there is a long gap and

possibility of other persons coming in between exists. In

the absence of any other positive evidence to conclude

that the accused and the deceased were last seen

together, it would be hazardous to come to a conclusion

of guilt in those cases. In this case there is positive

evidence that the deceased and the accused were seen

together by witnesses PWs 3 and 5, in addition to the

evidence of PW 2.”

(Emphasis Supplied)

“43. By now, it is a well settled position of law that the

circumstance of “last seen together” does not by itself and

necessarily lead to the inference that it was the accused who

committed the crime. There must be something more

establishing the connectivity between the accused and the

crime. The Courts should look for some corroboration.

Vishal Parekar 21

 of 96

Cri.Appeal 502-2021.doc

23. The prosecution in order to establish the circumstance of “last seen

theory” has examined and relied upon P.W. 4 and P.W. 5. P.W. 4 is the son

of the deceased who has deposed that on 29.10.2013, when he had gone to

play at Hiranandani Garden, his mother called him home and told him that

she was going to meet the Appellant. He has further deposed that after

playing, he returned home between 8:30 p.m. to 9 p.m. when his mother

was still not home. He has further deposed that since that day, his mother

never returned.

24. The prosecution has also examined P.W. 5, who is a resident of the

society and resides in Room No. 236. He has deposed that, he knows the

owner of that said Room No. 224 and has deposed that Room No. 224 was

given on rent by P.W. 14- Gurunath Kulkarni. He stated in the deposition

that, “

I alongwith my family resides at Subhash Nagar, Chembur. I have a

weekly off on Sunday. On 29/10/2013 I was standing in the gallery in front

of main door. On that day I was observing the persons who are coming

inside and going outside from our building when I was standing, brushing in

gallery. The lady who came with one rickshaw at our building was unknown

to me. The lady alighted from auto rickshaw and directly entered in the

building towards staircase. There are two staircase in our building. In our

building the room consists from room No.217 to 252. There are 12 rooms on

each floor of said building. The said lady went upstair through the said

staircase. The said lady went in room no.224. Room No.217 is situated at the

corner side of the building. Room numbers are allotted serially on each

Vishal Parekar 22

 of 96

Cri.Appeal 502-2021.doc

floor. I again say that room numbers are allotted not serially on each floor of

the said building on two wings. In first wing of the said building the room

number starts from 217 to 234 serially and in the second wing of said

building the room starts from 235 to 252. I am residing in the second wing

in room no. 236 on ground floor. I was knowing the persons who were

residing in room no 224. I had not seen who had come and gone in room

no.224 prior to the said lady visited the room. After entering the said lady

inside room no.224 I had not seen anybody had come and gone from the

said room. I was knowing that four male persons were residing in room

no.224. I did not inquire as to why the said lady had gone in the said room

no.224. I had seen that the said lady knocked the door and after opening the

door she went inside and then the door was closed.

” He has further deposed

that on 30.10.2013, he had gone to Nashik along with his family on a holiday

for 3 to 4 days. He has further deposed that, after his return to Mumbai, his

mother told him that there has been a murder of one lady in Room No. 224.

He has stated in his deposition, that he gave his statement to the police

approximately after one and half month from the date of incident. He has

further deposed that due to his courier business, he could not approach the

police to give a statement and that there is a delay. He has deposed that he

narrated the said fact to the police which he had seen on 29.10.2013. He has

further deposed that he came to know that the accused residing in Room No.

224 has committed murder of one lady and he identified the accused in the

court. He has further admitted, that after returning from Nashik, he did not

Vishal Parekar 23

 of 96

Cri.Appeal 502-2021.doc

see any of the occupants of Room No. 224. Further, in the cross-

examination, which was conducted on a subsequent date, he has tried to

give an explanation that the police came on their own to him for enquiry and

recording of the statement. He said that police had come to him after 10 to

15 days from the date of the incident. He has further admitted in the cross-

examination that the noise can be heard from the neighbouring flat and that

he did not hear any quarrel or noise from Room No. 224. He has also

admitted that he did not hear any cutting noise from Room No. 224. He has

admitted in the cross-examination that he cannot tell who was present in

Room No. 224 when the said lady entered inside the room.

25. What can be deduced from his evidence, is that this witness has seen

one lady entering the said room as admitted by him, but the prosecution has

not taken any pains to confront this witness with any photograph of the

deceased in order to confirm whether the lady who entered the Room No.

224 on 29.10.2013, was the deceased. The lady, whom he claims to have

seen, was not a known lady to this witness. This witness is assuming that the

lady, who visited Room No. 224, must have been murdered. Confrontation

of this witness with the photograph of the deceased would have lent

corroboration and strengthened his narration, which in the absence thereof

falls short of a conclusive proof. This witness in his examination-in-chief has

stated that he did not go to the police station after knowing the incident.

But, after one and half to two months of the incident, he went to the police

station and narrated the facts to the police. However, in the cross-

Vishal Parekar 24

 of 96

Cri.Appeal 502-2021.doc

examination which was on a subsequent date, he has contradicted his own

version and stated that police came on their own to him for enquiry and for

recording his statement. This appears to be a material contradiction and the

improvement is made specifically to overcome the delay in approaching the

police. It has been admitted in the cross-examination that police came to

him after 10 to 15 days of the incident. If this is accepted to be true, then it is

still a mystery as to why the statement came to be recorded after 1 and 1/2 to

2 months. It has come in the evidence of P.W. 7 that the police had also

visited the site on 05.11.2013 and therefore nothing prevented this witness

from disclosing the events to the police at the first available opportunity

which he claims to have witnessed.

26. The Ld. Counsel for the Appellant has relied upon the following

judgments in support of his contention on the issue of delay in recording the

statement by the police. By citing Shahid Khan v/s The State of Rajasthan

34

,

the Ld. Counsel has invited the attention of the Court to the following

paragraph:

“2

0. The statements of PW 25 Mirza Majid Beg and PW

24 Mohamed Shakir were recorded after 3 days of the

occurrence. No explanation is forthcoming as to why they

are not examined for 3 days. It is also not known as to

how the police came to know that these witnesses saw the

occurrence. The delay in recording the statements casts a

serious doubt about their being eye-witnesses to the

occurrence. It may suggest that the investigating officer

was deliberately marking time with a view to decide

about the shape to be given to the case and the eye-

witnesses to be introduced…”

34 (2016) 4 SCC 96.

Vishal Parekar 25

 of 96

Cri.Appeal 502-2021.doc

27.

Additionally, the Ld. Counsel has also placed reliance on

Ganesh

Bhavan Patel v/s The State of Maharashtra

35

“15. As noted by the trial court, one unusual feature

which projects its shadow on the evidence of PWs Welji,

Pramila and Kuvarbai and casts a serious doubt about

their being eyewitnesses of the occurrence, is the undue

delay on the part of the investigating officer in recording

their statements. Although these witnesses were or could

be available for examination when the investigating

officer visited the scene of occurrence or soon thereafter,

their statements under Section 161 of the CrPC were

recorded on the following day. Welji (PW 3) was

examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and

Kuvarbai at 1 p.m. Delay of a few hours, simpliciter, in

recording the statements of eyewitnesses may not, be

itself, amount to a serious infirmity in the prosecution

case. But it may assume such a character if there are

concomitant circumstances to suggest that the

investigator was deliberately marking time with a view to

suggest that the decide about the shape to be given to the

case and the eyewitnesses to be introduced. A catena of

circumstances which lend such significance to this delay,

exists in the instant case.”

28. Further, a useful reference can be made to the case of

Ganpat Kondiba

Chavan v/s The State of Maharashtra

36

. The relevant portion is quoted

herein below. It has been held thus:-

“11. The Apex Court in number of cases has concluded

that the conduct of a witness in not disclosing the

incident to persons whom he must have met after the

incident, is indicative of the fact that he had not seen the

incident. In this connection we would like to refer to the

decision of the Apex Court reported in Shivaji Dayanu

Patil Vs State of Maharashtra, AIR 1989 Supreme Court

1762; wherein the wife who had seen the murder of her

husband did not disclose the incident for two days to

anyone and on this score the Apex court did not believe

her evidence. In paragraph 11 of the said judgment it has

been observed thus:

“A wife, who has seen an assailant giving fatal

35 (1978) 4 SCC 371.

36 1997 (2) Crimes 38.

Vishal Parekar 26

 of 96

Cri.Appeal 502-2021.doc

blows with a stick to her husband would name the

assailant to all present and to the police at an

earliest opportunity.”

“12. We would also like to emphasise that the Supreme

Court held that the circumstance of inordinate delay in

recording the statement of an eye witness under Section

161 Criminal Procedure Code, 1973 is a pointer to the fact

that he has not seen the incident. It is a trite that the

investigating officer in a murder case immediately after

the FIR has been registered seeks to discover as to who

are the persons who have seen the incident and thereafter

embarks upon the job of interrogating them under

Section 161 Criminal Procedure Code.”

29. We, therefore, find that the conduct of P.W. 5, creates a serious doubt

about the veracity of his deposition and gives an impression that in all

probability, this witness has not seen any such happening, in the manner as

stated by him and therefore also taking into consideration the unjustifiable

delay, the evidence of P.W. 5 cannot be said to be free from doubt.

30. The Ld. APP has further contended that in cases where the

prosecution establishes that the deceased was last seen alive in the company

of the accused, the burden shifts upon the accused to explain how the

incident had occurred. In support of her contention she has relied upon the

judgment of

Rohtash Kumar v/s The State of Haryana

37

. The relevant

paragraphs are quoted as below:

“

Last seen together theory

32. In cases where the accused was last seen with the

deceased victim (last seen together theory) just before

the incident, it becomes the duty of the accused to

explain the circumstances under which the death of the

victim occurred. (Vide Nika Ram v. State of H.P. and

Ganeshlal v. State of Maharashtra.)

33. In Trimukh Maroti Kirkan v. State of Maharashtra

37 (2013) 14 SCC 434.

Vishal Parekar 27

 of 96

Cri.Appeal 502-2021.doc

this Court held as under: (SCC p. 694, para 22)

“22. Where an accused is alleged to have committed

the murder of his wife and the prosecution succeeds

in leading evidence to show that shortly before the

commission of crime they were seen together or the

offence takes place in the dwelling home where the

husband also normally resided, it has been

consistently held that if the accused does not offer

any explanation how the wife received injuries or

offers an explanation which is found to be false, it is

a strong circumstance which indicates that he is

responsible for commission of the crime."

(See also Prithipal Singh v. State of Punjab)

34. Thus, the doctrine of "last seen together" shifts the

burden of proof on the accused, requiring him to explain

how the incident had occurred. Failure on the part of the

accused to furnish any explanation in this regard, would

give rise to a very strong presumption against him.”

31. There can be no doubt about this proposition of law. However, the

reliance on this principle is misplaced in the facts of the present case. In the

present case, there is no convincing material that has come on record to

establish that the deceased and the accused were ‘last seen together’ prior to

the murder of the deceased. We are not inclined to accept the evidence of

P.W. 5 on the point of last seen together for what we have discussed above,

as P.W. 5 does not inspire confidence and therefore even if the Appellant has

not discharged the burden, the same cannot be said to be fatal. We are

therefore of the opinion, that the prosecution has not successfully proved

this circumstance of last seen.

32. It will also be pertinent to consider the Call Detail Records (CDRs)

and the Cell Tower Location in order to find out whether it can be

considered as a corroborative material to find out whether the Appellant was

Vishal Parekar 28

 of 96

Cri.Appeal 502-2021.doc

in the company of the deceased on the evening of 29.10.2013.

33. In order to establish the CDRs and tower location, the prosecution has

examined P.W. 15 and P.W. 16 who have deposed about the phone numbers

of the deceased and the Appellant.

34. P.W. 15 the nodal officer in Bharti Airtel Company, in his deposition

has stated: “

I retrieved the data from the server through the confidential

password provided to the Nodal Officer. As per my report, the name of the

subscriber of the mobile number 98925223098 is Karunakar Shetty while

the name of the subscriber of the mobile number 9967131884 is Karunakar

Sanjivan Shetty. Date of activation for No. 98925223098 is 30.09.2006,

while date of activation for No. 9967131884 is 31.07.2007.

”

35. P.W. 16, the nodal officer with Vodafone India Ltd., has deposed as

follows: “

By using user I.D. and password, I retrieved data from the server of

these mobile numbers of the requisite period. I sent the print out of CDR

copies of customer application form of both the numbers along with

certificate u/s. 65B and tower location I.D. list to DCP Zone 6. The mobile

No. 9167976154 is in the name of Sunita R. Maru, GR 7, Central Railway

hutment, Chapsi Marg, Mazgaon, Mumbai was a prepaid number and date

of activation of that number was 16/02/2011. The mobile No. 9930783502 is

in the name of Karunakar Shetty, B2 Vajrani Colony, Jadari No. 1, Sakinaka,

Mohali village, Mumbai- 72. It was prepaid number and the date of

activation of said number was 14/10/2011.

”

36. The following table would enumerate the Mobile Phone numbers used

Vishal Parekar 29

 of 96

Cri.Appeal 502-2021.doc

by the Appellant and the deceased, as culled out from the evidence on

record:-

Sr Phone Numbers Used by SIM Registered in the

name of

1. 9967131884 Deceased Karunakar Sanjivan

Shetty

2. 98925223098 Deceased Karunkar Shetty

3. 9167976154 Appellant Sunita R. Maru

4. 9930783502 Appellant Karunakar Shetty

37. A detailed analysis of the Call Detail Records (CDRs) and Cell Tower

Location reveals that Mobile Phone No. 9892523098, belonging to the

deceased and Mobile Phone No. 9167976154, belonging to the accused were

found to be present at the exact same Cell Id Address i.e.

Jayalaxmi

Building, Near Muktanindya High School, Subhash Nagar, Chembur (E)

at

19:26 hours on 29

th

October, 2013. Relevant Call Detail Records of the

Appellant and the deceased on 29.10.2013 are as follows:

Sr

No.

A Number Cell ID Address B Number Cell ID Address Call Time

1. 9167976154

(Appellant)

Prakash Lodge,

Narayan Guru

Chembur.

9892523098

(deceased)

Sector No. 6, Road

No. 4. Chheda

Nagar, Chembur.

19:24:15

2. 9892523098

(deceased)

Jayalaxmi

Building, Near

Muktanindya

High School,

Subhash Nagar,

Chembur(E)

9167976154

(Appellant)

Jayalaxmi

Building, Near

Muktanindya High

School, Subhash

Nagar,

Chembur(E)

19:25:58

3. 9892523098 Jayalaxmi 9167976154 Jayalaxmi 19:26:47

Vishal Parekar 30

 of 96

Cri.Appeal 502-2021.doc

(deceased) Building, Near

Muktanindya

High School,

Subhash Nagar,

Chembur(E)

(Appellant) Building, Near

Muktanindya High

School, Subhash

Nagar,

Chembur(E)

4. 9702583499

(unknown)

- 9167976154

(Appellant)

Plot No. 102/103,

Pestom Sagar

Scheme, Near

Shankaralayam

Temple, PL

Lokhande Marg,

Chembur West

19:36:03

5. 9986029867

(unknown)

- 9930783502

(Appellant)

Plot No. 102/103,

Pestom Sagar

Scheme, Near

Shankaralayam

Temple, PL

Lokhande Marg,

Chembur West

19:42:34

6. 9820355672

(unknown)

- 9930783502

(Appellant)

Jayalaxmi

Building, Near

Muktanindya High

School, Subhash

Nagar,

Chembur(E)

21.08.37

7. 9449517976

(unknown)

- 9167976154

(Appellant)

Jayalaxmi

Building, Near

Muktanindya High

School, Subhash

Nagar,

Chembur(E)

22:16:06

38. While from the above records it is apparent that the Appellant and the

deceased were in proximity at 19:25 and 19:26 hours as both the phones

were recorded at the same tower location i.e.

Jayalaxmi CHSL, B Wing, 14/B

Subhash Nagar, Chembur(E)

the very same records also disclose that the

Appellant had thereafter moved away, his tower location having shifted to

Chembur West at 19:36 hours and continued to remain there until 19:42

hours. The Appellant having moved away from the alleged scene of offence,

Vishal Parekar 31

 of 96

Cri.Appeal 502-2021.doc

the possibility of intervention of any third person cannot be excluded, more

specifically, when the CDRs reveal the presence of an unknown person

having the same tower location as that of the deceased i.e. at Jayalaxmi

CHSL, B Wing, 14/B Subhash Nagar, Chembur(E)

. This possibility is

reinforced by a further analysis of the CDRs.

39. We find it imperative to mention certain findings that can be derived

from the Call Detail Records (CDRs) of the deceased. At the relevant point of

time in the evening on 29.10.2013, the call records of the deceased can be

traced to an unidentified number, not appearing to be that of the Appellant,

who was present at the same location as the deceased i.e. at

Jayalaxmi

Building, Near Muktanindya High School, Subhash Nagar, Chembur(E)

.

40. The CDRs reflect a call at 20:12 hours and a text m essage

subsequently at 20:20 hours from Mobile No. 8108258597 and the location

is found to be of

Jayalaxmi Building, Near Muktanindya High School,

Subhash Nagar, Chembur(E)

. The following table reflects the same:

Sr

No.

A Number Cell ID Address B Number Cell ID Address Call Time

1. 8108258597

(unidentified)

Jayalaxmi

Building, Near

Muktanindya

High School,

Subhash Nagar,

Chembur(E)

9967131884

(deceased)

Jayalaxmi

Building, Near

Muktanindya High

School, Subhash

Nagar,

Chembur(E)

20:12:00

2. 8108258597

(unidentified)

Jayalaxmi

Building, Near

Muktanindya

High School,

Subhash Nagar,

Chembur(E)

9967131884

(deceased)

- 20:20:12

Vishal Parekar 32

 of 96

Cri.Appeal 502-2021.doc

41. This was a circumstance of considerable importance which the

investigating agency has entirely failed to look into. No attempt was made by

the investigating agency and the prosecution to ascertain the identity of this

unknown person whose mobile activity is reflected at the material time at

the same location as that of the deceased. Further, there was no inquiry

directed towards establishing the reason or relevance of the presence of this

unknown person at the same location. Such failure on the part of the

investigating agency to pursue what appears to be a material and proximate

lead, is in the opinion of this Court, a serious lapse in the investigation. It

was imperative on the part of the prosecution to negate the hypothesis of

third party intervention, but the prosecution has entirely failed to do so,

both in the course of investigation and before the Court.

42. In our considered opinion, the CDRs and Cell Tower Location relied

upon by the prosecution to establish the presence of the Appellant with the

deceased on the evening of 29th October 2013 cannot ascertain that the

Appellant and the deceased were in each other’s company all throughout

that evening. This Court is also conscious of the law that the CDRs can be

used only for a limited purpose of corroboration and therefore, cannot be

taken into consideration independently. In any event, in the facts of the

present case, the CDRs cannot be said to be conclusively establishing the

presence of the Appellant at the spot of the incident, all throughout. More

specifically the lack of evidence about the presence of an unknown person

whose tower location was exactly the same as the deceased, negates the

Vishal Parekar 33

 of 96

Cri.Appeal 502-2021.doc

theory of the prosecution that the Appellant and the deceased were last seen

together in the exclusive company of each other.

43. A reference can be made to the judgment in the case of Azad v/s State

of GNCT of Delhi and Another

38

wherein it was held that CDRs can only be

used for the limited purpose to corroborate any other evidence. It was

observed thus:

“16. …CDR data may be an important and effective piece

of evidence which may facilitate and assists courts in

ascertaining the presence of different participants in

commission of an offence including the complainant and

proposed accused at one particular place or location

which may be their presence at or near the place of

occurence. However, CDR data can only be taken as

supporting or corroborative piece of evidence and

conviction cannot be made solely on basis of CDR data.

CDRs proved and relied on by the Prosecution only

proved that the appellants Jitender @ Jitu and Azad@

Gaurav, on day of incident, were present near place of

occurence/ incident but it is not proved that they have

actually participated in commission of offence as per

complaint Ex. P.W.1/A.”

44. It is thus, a settled principle of law that CDRs, although an important

and admissible evidence in the Court of law, cannot stand on its own legs.

The role of CDR in establishing the presence of the accused person(s) at or

near the alleged spot of incident at the given time, in the company of the

victim is merely corroborative and needs the footing of an independent,

reliable and substantive piece of evidence.

45. In the present case, the prosecution has relied upon the CDRs and the

Cell Tower Location for corroborating the “last seen theory”. The primary

38 2023 SCC OnLine Del 1769.

Vishal Parekar 34

 of 96

Cri.Appeal 502-2021.doc

evidence adduced to establish the “last seen theory” of the prosecution was

that of P.W. 5. However, that theory has already been discarded by us for

reasons already stated and elaborated as above. Therefore, in such peculiar

facts and circumstances of this case, we are not inclined to rely solely on the

CDRs to establish the theory of last seen together which even otherwise, is

not conclusively proved.

D] WITNESS SEEING THE ACCUSED DUMPING THE TORSO IN

CHARAI LAKE

46. The next circumstance is the witnesses seeing the Appellant dumping

the torso of the deceased at Charai Lake. To prove this circumstance, the

prosecution has examined P.W. 2, P.W. 6, P.W. 3 and P.W. 12.

47. Aatish Kale (P.W. 2) has deposed that on 29.10.2013 at about 8.00

p.m. when he, along with Mukesh Kavale (P.W. 6) and Rohit were sitting

and chitchatting near the gate of the Charai Talao garden, at about 9.45

p.m., an auto-rickshaw came there and one person got down from the said

auto-rickshaw. He had a polythene bag on his back. P.W. 2 has further

deposed that the said person was trying to open the gate of the Talao but the

said gate was locked. He further deposed that P.W. 6 told the said person

that “gkj fdaok Qqy vlsy rj dy’kkP;k vkr Vkdk”. The said person replied to P.W.

6 that “goups lkeku vkgs rs ik.;kr lkMk;ps vkgs-” He further deposed that they

jumped from the gate and went inside the garden to drop the said polythene

bag in Talao. He further deposed that the said person handed over the

Vishal Parekar 35

 of 96

Cri.Appeal 502-2021.doc

polythene bag to him and P.W. 6. When they took the said bag, they felt

something different, hot and fishy and thereby they got frightened and put

the said polythene bag on the ground and went out of the gate. They saw the

said person was present there. He further deposed that P.W. 6 asked him,

“lp lp crk bl FkSfy es D;k gS” to which the said person again replied that

“goups lkeku vkgs”. He has further deposed that when he doubted, he again

asked the person if some part of the body was in the polythene bag. He

further deposed that the said person replied “goups lkeku vkgs”. He thereafter

went into the garden and sat there watching the said person. He further

deposed that the said person came by jumping from the gate and picked up

the bag and took it on his shoulder and went near the talao and then

boarded on a small boat on the bank and threw the said black coloured

polythene bag in the water of the said talao. He has further deposed, that

the said person went outside and sat in the rickshaw. He further deposed,

that P.W. 6 was near the said auto-rickshaw and was talking with the driver.

He has deposed that after the said person sat in the auto-rickshaw, the

rickshaw went away and he noted down the number of the rickshaw. He

further deposed that thereafter they called Rohit and Rakesh outside the

gate of the said talao as they were suspecting about the said bag. He further

deposed that thereafter P.W. 6 and Rohit went near the said talao and

dragged the said black colour polythene bag with the help of bamboo and

took the said polythene bag near the bank. He further deposed that Rohit

tried to open the polythene bag with the help of a broken piece of glass. He

Vishal Parekar 36

 of 96

Cri.Appeal 502-2021.doc

further deposed that blood was oozing from the polythene bag. He deposed

that at that time, police came there and as per the directions of police, Rohit

opened the said black colour polythene bag where they found that there was

a trunk (body without head, hands and legs). He deposed that the said body

belonged to a female. He deposed that the police sent a message to the

control room. Thereafter, they went away. P.W. 2 further deposed that on

30.10.2013, he along with P.W. 6, Rakesh and Rohit were called in the

police station. Police recorded their statements. They had given a

description of the said rickshaw driver and the person who came by the

auto-rickshaw. He has further deposed that he identified the accused in the

Court who came by the auto-rickshaw and was having a polythene bag and

threw the bag into the water of the talao.

48. In the cross-examination, nothing adverse to the prosecution case

could be elicited from P.W. 2. The cross-examination focused mainly on the

topography of the said area and on the height of the gate etc to establish

whether the witness could have jumped the said iron gate or not or could

have entered in the talao from the gap between two rods. He admitted in the

cross-examination that the names and addresses of all of them were taken

by the police of Chembur police station who arrived there later on. In the

cross-examination, the witness has categorically admitted to seeing the

auto-rickshaw driver and that he had given a description of the auto-

rickshaw driver to the police. He had seen the auto-rickshaw driver from a

distance of 25 ft. The defence tried to pick holes in his evidence by putting

Vishal Parekar 37

 of 96

Cri.Appeal 502-2021.doc

questions as regards the height of the accused wherein in his statement, he

had mentioned the height of the accused as 5 ft. and while deposing in the

Court he had mentioned the height to be 5.6 ft. The cross examination did

not in any manner dislodge the evidence of this witness or discredit what he

had stated in the examination in chief.

49. P.W. 6 Mukesh Kavale, is another witness the prosecution has relied

upon to prove the circumstance. He deposed that on 29.10.2013 at about

8:30 p.m., he along with P.W. 2, Rakesh, Gautam and Rohit had been to

Charai talao and that there was street light. He deposed that at about 9:40

p.m., one auto-rickshaw came there and one person alighted. He was aged

30-35 years. He had a black coloured caterers bag on his shoulder. He

further deposed that the said person was trying to open the gate of the talao

which was locked. He and P.W. 2 called as “’kqd ‘kqd” and went near the said

person. He further deposed that he and P.W. 2 asked the said person what

was in the bag. The said person responded that they were hawan articles.

He further deposed that he and P.W. 2 told the said person that if there

were haar ( garland) and flowers, then he could drop the same in a kalash,

to which the said person told that he wanted to drop the hawan articles into

the water. He further deposed that he and P.W. 2 went inside the gate by

climbing on it and took the bag inside from the gap of the gate. He deposed

that at that time, he and P.W. 2 doubted that there might be something

other than hawan articles, as they felt something hot and soft. He further

deposed that, as they doubted him, P.W. 2 asked the said person again and

Vishal Parekar 38

 of 96

Cri.Appeal 502-2021.doc

he responded that there were hawan articles. He further deposed that P.W.

2 told that there are no hawan articles, but something like a body, to which

the said person told that hawan articles are kept in the plastic bag and he

replied that

“tumko chodne ka hai to chodo nato to main jata hu”. He

further deposed that as they both were frightened, they kept the said bag

near the gate. Thereafter, he and P.W. 2 came outside of the gate by

climbing and went to sit in the garden and that they were sitting in the

garden observing the said person. He further deposed that the said person

went inside the gate by climbing on it, lifted the bag, put it on his shoulder

and threw the bag into the water of Charai talao. He deposed that P.W. 2

and Gautam also observed all the things of the said person. He further

deposed that the said person in an auto-rickshaw. He deposed that in the

meantime, P.W. 2 went near the rickshaw and asked the said person who

threw the bag that, “

FksSyh ds vanj D;k Fkk] lp es crkvks”. The said person

responded with “hawan ka saman” and the said person told the driver of

auto-rickshaw “ tYnh pyks] nqljs txg tkus dk gS”. He further deposed that when

the rickshaw started and proceeded, at that time, he told P.W. 2 and

Gautam to note down the rickshaw number.

50. P.W. 6 further deposed that thereafter, he and Rohit went inside by

climbing the gate and took the ‘

tarapa’ in the middle of talao and with the

help of bamboo, they released the knot of the rope. He deposed that they

dragged the said plastic bag to the stair and kept it on the ground. He

deposed that he and Rohit tore the plastic bag with the help of a piece of

Vishal Parekar 39

 of 96

Cri.Appeal 502-2021.doc

glass. At that time, they saw blood was oozing from the bag. They were

frightened, therefore he and Rohit came outside of the gate by climbing on

it. He deposed that, at that time, one police van stopped there by seeing

them. He deposed that, he along with P.W. 2 and Rohit narrated the

incident to the police as they doubted about the plastic bag. He further

deposed that they noticed one trunk which was without the head, hands and

legs of a female in the plastic bag. He further deposed that they came

outside and were standing at that time, a police officer came and took their

names and addresses. He deposed that on 30.10.2013, they were called at

Chembur police station and the police recorded their statements. He further

deposed that he had given the description of the said auto-rickshaw driver

and the person who had come there from the auto-rickshaw and the clothes

which the said person was wearing.

51. In the cross-examination of P.W. 6, the defence could not shake the

credibility of this witness in any manner. On the contrary, in the cross-

examination, several material aspects have been brought on record which

fortify what he had deposed in his examination in chief and even the

presence of the accused/appellant gets established. Surprisingly, cross-

examination of this witness revolves on the topography, the area and the

layout of the garden. There is nothing to disbelieve and discredit the said

witness. On perusal of the cross-examination of this witness, the identity of

the accused at the spot is once again very much established.

52. P.W. 3 Mohd. Sail Mohd Iklal Shaikh is the auto-rickshaw driver and

Vishal Parekar 40

 of 96

Cri.Appeal 502-2021.doc

he has deposed that on 29

th

October, 2013 at about 9:15-9:30 p.m., he came

near Acharya College. He further deposed that he got one passenger who

wanted to go to the talao to drop articles of pooja. He deposed that the said

passenger was carrying a plastic bag. The passenger told him to take him to

the nearest talao. He further deposed that he took the passenger near

Charai talao, Chembur where there is a garden adjacent to the talao. He

further deposed that he stopped the auto-rickshaw near the talao. He

deposed that at that time, two boys came and asked the passenger what was

inside the plastic bag, to which the passenger told them that the plastic bag

contained pooja articles. He further deposed that the gate of the talao was

closed and that the two boys went inside by jumping the gate. He deposed

that, the passenger handed over the bag to those boys and those boys put

the said bag on the ground upon feeling hot. Thereafter, the passenger went

inside and took the said bag from the gate of the said talao. Thereafter, the

passenger threw the said bag into the water of the talao. He further deposed

that the passenger came out of the gate by jumping. At that time, two boys

stopped his auto-rickshaw and asked the passenger about the contents of

the plastic bag to which the passenger replied that the plastic bag contains

articles of pooja. He further deposed that the passenger told him to take

him to Subhash Nagar and he dropped the passenger there. He deposed

that after giving him a fare of Rs. 50/-, the passenger entered into the

premises of one society at Subhash Nagar. He deposed that he dropped the

passenger at 10:00 p.m. P.W. 3 gave the description and features of the

Vishal Parekar 41

 of 96

Cri.Appeal 502-2021.doc

said passenger to the police. He also identified the accused who was present

in the Court as the passenger who was sitting in his auto-rickshaw with one

bag, which he had thrown in the Charai talao at Chembur. In the cross-

examination, nothing much could be elicited to discredit the testimony of

this witness and the thrust of the cross-examination was once again mainly

on the description of the talao and the garden.

53. On a close scrutiny of the testimonies of P.W. 2, P.W. 6 and P.W. 3, we

find no reason to disbelieve them. Their presence at Charai Talao on the

night of 29.10.2013 appears to be natural and there is no material to suggest

any motive on their behalf for falsely implicating the Appellant-Accused.

Further, the incident was not a fleeting encounter. Appellant was carrying a

black coloured plastic bag and upon being questioned, he answered that it

contained

havan articles. The conduct of the Appellant coupled with his

insistence on throwing the bag in the talao despite the suspicion expressed

by P.W. 2 and P.W. 6, naturally drew their attention towards him.

54. What lends considerable strength to the testimony of P.W. 2 and P.W.

6 is the fact that the suspicion entertained by the witnesses was immediately

confirmed when the bag was retrieved and found to contain a torso of a

female body. An encounter of such nature was bound to leave a lasting

impression in the minds of the witnesses. Additionally, the depositions of

P.W. 2 and P.W. 6 corroborate each other in all material aspects. Even

though there are minor discrepancies, the same do not, in any manner

cause a dent to the case of the prosecution. On the contrary, it suggests that

Vishal Parekar 42

 of 96

Cri.Appeal 502-2021.doc

the witnesses are natural witnesses.

55. The Ld. APP, whilst dealing with the rival contention regarding the

discrepancies in the depositions of P.W. 2, P.W. 3 and P.W. 6 has placed

before us the judgment of the Hon’ble Apex Court in The State of Punjab v/s

Karnail Singh

39

. This judgment, in the following paragraph lays down thus:

“10. To the same effect is the decision in State of Punjab

v. Jagir Singh and Lehna v. State of Haryana. As

observed by this Court in State of Rajasthan v. Kalki

normal discrepancies in evidence are those which are due

to normal errors of observation, normal errors of

memory due to lapse of time, due to mental disposition

such as shock and horror at the time of occurrence and

those are always there, however honest and truthful a

witness may be……”

56. Therefore, we are of the opinion that P.W. 2, P.W. 3 and P.W. 6 are

natural and credible witnesses, and even if there are minor discrepancies,

they can be classified to be within the ambit of human error. However, while

stating so, we also clarify that none of these discrepancies are material in

nature. Hence, these depositions can be considered to be true and without

any material defects.

57. The depositions of P.W. 2 and P.W. 6 further stand corroborated by

P.W. 3, who dropped the Appellant to Charai talao. Further with respect to

identification, corroboration is lent by the testimony of P.W. 12, who

conducted the Test Identification Parade. The cumulative effect of the

evidence discussed above conclusively and singularly leads to the only

inference that it was the Appellant who was carrying the black coloured

39 (2003) 11 SCC 271.

Vishal Parekar 43

 of 96

Cri.Appeal 502-2021.doc

polythene bag containing the torso of the deceased and dropped the same in

the Charai talao on the evening of 29.10.2013. Although, it was tried to be

argued that the statements of P.W. 2 and P.W. 6 came to be recorded

belatedly i.e. on 30.10.2013 and not on the same day, we are not inclined to

accept such an untenable argument as recording of the statement on the

next day of the incident in the peculiar facts of the case cannot be said to be

recorded belatedly. Hence, we are of the opinion that the act of the

Appellant of disposing off the torso as witnessed by P.W. 2, P.W. 3 and P.W.

6, which amounts to destruction of evidence, is established beyond

reasonable doubt.

E] TEST IDENTIFICATION PARADE

58. The next circumstance which the prosecution has relied upon is the

Test Identification Parade (TIP) to establish the identity of the person who

caused the destruction of evidence. To establish this circumstance, the

prosecution has examined P.W. 2, P.W. 6 and also P.W. 12, who conducted

the TIP.

59. The identity of the Appellant gets further corroborated as P.W. 2 and

P.W. 6 have identified the Appellant in the Test Identification Parade

conducted on 27.12.2013. P.W. 2 has stated in his deposition that:

“5. On 27/12/2013 I was called in Arthur Road jail for TIP. I

identified the present accused in TIP. There was six dummy

persons alongwith accused were standing in the row. The officer

who is conducting TIP asked me to identify the accused. I

identified the accused who was standing in between the dummy

person Sr No.1 and 2. I identified the said accused in TIP, who

came by auto rickshaw was having black colour polythene bag

Vishal Parekar 44

 of 96

Cri.Appeal 502-2021.doc

and thrown the said polythene bag into water of Charai talav.

The witness pointed out the accused who is present before the

court is the same whom he identified in TIP. The accused stated

his name Prabhakar Kutty Shetty. The officer recorded my

statement after TIP…..

……….

9. …..I had seen the accused for twice before I came to depose

before the court. I had seen the accused at the second time on

27/12/2013. On 27/12/2013 there was a difference in the

features of accused I.e. beards were increased.

………

11. ….It is not true that I am deposing false that I identified

accused in TI Parade. It is not true that whatever I deposed

before the court, is at the instance of police.”

It was also stated by P.W. 6 about the identification of the accused in

the TIP. The relevant paragraphs are reproduced as hereunder:

“2. On 27/12/2013 I was called at Arthur road jail for test

identification parade. On 27/12/2013 I myself, Atish, two panch

witnesses and Police officer Mohite went to Arthur road jail. We

reached at Arthur road jail at about 11.00 a.m. In parade room

there were six dummy persons standing in one row and one

saheb (but he was not police officer) was sitting and two panch

witnesses were present. Saheb told me to identify the accused. I

identified accused he was standing at serial no.3 by touching

him. I stated to saheb that the accused whom I identified is the

same person who come with auto rickshaw with one plastic bag

and dropped the said plastic bag into water of Charai Talav.

After identification of the accused I came out of the parade room

at about 2.15 p.m. I can identify the accused and today he is

present before the court who came with auto rickshaw with one

plastic bag and dropped the said plastic bag into water of Charai

Talav, in which one female body (trunk) without any head, leg

and hand found. The witness identified the accused by pointing

him in the court. Police recorded my further statement on

27/12/2013 after identification of the accused.”

Nothing much has been elicited in the cross-examination of P.W. 6 on

the aspect of Identification of the accused in the TIP.

60. In the deposition of P.W. 12, it is clearly established that P.W. 2 and

P.W. 6 identified the accused in the Test Identification Parade. The relevant

Vishal Parekar 45

 of 96

Cri.Appeal 502-2021.doc

paragraphs read as follows:

“

3......I asked accused that he can change his position in

the row of dummy accused. So, accused stand between

dummy accused no. 2 and 3. then I called panch and one

witness Mukesh Gautam Khawale in that hall. I asked

Mukesh Gautam Khawale that the accused is standing in

the row of dummy accused person, he should identify the

accused by touching his person. Witness observed and

identified the accused by touching his person. At that

time, accused was standing between 2

nd

and 3

rd

dummy

accused in that row. Accordingly, the TI parade by 1

st

witness is completed.

4….Again I asked accused that he is permitted to change

his clothes, accordingly accused changed his clothes. I

told accused that he can stand in the row of dummy

accused, at the place of his choice. Then accused did

stand between 1st and 2nd dummy accused of that row.

Then I call panch and another witness Atish Kale, in that

hall. I informed witness Atish Kale that the accused is

standing in the row of dummy accused persons, he

should identify the accused by touching his person.

Witness observed and identified the accused by touching

his person. At that time, accused was standing between

1

st

and 2

nd

dummy accused in that row. Accordingly, the

TI parade by 2

nd

witness is completed.”

61. Therefore upon perusal of evidence of P.W. 12, it is established that

P.W. 2 and P.W. 6 identified the accused in the Test Identification Parade,

which lends corroboration to the establishing of the identity of the person

seen disposing the torso of the deceased to be the Appellant-Accused. Even

though P.W. 3 has not identified the Appellant in the TIP, he identified the

Appellant in the Court.

62. Although the Ld. Counsel for the Appellant has tried to point out

several deficiencies in the TIP, it will be necessary to analyse the deposition

of P.W. 12 to ascertain whether the TIP was conducted adhering to the

Vishal Parekar 46

 of 96

Cri.Appeal 502-2021.doc

guidelines laid down in the Criminal Manual or whether there are serious

discrepancies which vitiate the TIP.

63. The first line of attack by the Ld. Counsel for the Appellant was with

respect to the delay in conducting the TIP. The Ld. Counsel for the Appellant

vehemently argued that the delay in conducting the Test Identification

Parade vitiates the identification evidence. However, this contention

deserves to be rejected in our view. It is a settled proposition of law, as is

clearly established by the Hon’ble Apex Court in Pramod Mandal v/s The

State of Bihar

40

. The same was reiterated in the subsequent judgment of the

Hon’ble Apex Court in Raja v/s State by Inspector of Police

41

. The relevant

paragraphs of the case of Raja (supra) are reproduced hereinbelow:

“16. Again, there is no hard and fast rule about the period

within which the TIP must be held from the arrest of the

accused. In certain cases, this Court considered delay of

10 days to be fatal while in other cases even delay of 40

days or more was not considered to be fatal at all. For

instance, in Pramod Mandal v. State of Bihari the

accused was arrested on 17.01.1989 and was put up for

Test Identification on 18.02.1989, that is to say there was

a delay of a month for holding the TIP. Additionally,

there was only one identifying witness against the said

accused. After dealing with the decisions of this Court in

Wakil Singh v. State of Bihar, Subhash v. State of Uttar

Pradesh and Soni v. State of Uttar Pradesh in which

benefit was conferred upon the accused because of delay

in holding the TIP, this Court considered the line of cases

taking a contrary view as under:

“18. Learned counsel for the State submitted that in

the instant case there was no inordinate delay in holding

the test identification parade so as to create a doubt on

the genuineness of the test identification parade. In any

event he submitted that even if it is assumed that there

was some delay in holding the test identification parade,

it was the duty of the accused to question the

40 (2004) 13 SCC 150.

41 (2020) 15 SCC 562.

Vishal Parekar 47

 of 96

Cri.Appeal 502-2021.doc

investigating officer and the Magistrate if any advantage

was sought to be taken on account of the delay in holding

the test identification parade. Reliance was placed on the

judgment of this Court in Bharat Singh v. State of U.P. In

the aforesaid judgment this Court observed thus: (SCC p.

898, para 6).

“6. In Sk. Hasib v. State of Bihar it was observed by the

Court that identification parades belong to the

investigation stage and therefore it is desirable to hold

them at the earliest opportunity. An early opportunity to

identify tends to minimise the chances of the memory of

the identifying witnesses fading away due to long lapse of

time. Relying on this decision, counsel for the appellant

contends that no support can be derived from what

transpired at the parade as it was held long after the

arrest of the appellant. Now it is true that in the instant

case there was a delay of about three months in holding

the identification parade but here again, no questions

were asked of the investigating officer as to why and how

the delay occurred. It is true that the burden of

establishing the guilt is on the prosecution but that

theory cannot be carried so far as to hold that the

prosecution must lead evidence to rebut all possible

defences. If the contention was that the identification

parade was held in an irregular manner or that there was

an undue delay in holding it, the Magistrate who held the

parade and the police officer who conducted the

investigation should have been cross-examined in that

behalf.”

In the instant case, we find that the defence has not

imputed any motive to the prosecution for the delay in

holding the test identification parade, nor has the

defence alleged that there was any irregularity in the

holding of the test identification parade. The evidence of

the Magistrates conducting the test identification parade

as well as the investigating officer has gone unchallenged.

Learned counsel for the State is, therefore, justified in

contending that in the facts and circumstances of this

case the holding of the test identification parade, about

one month after the occurrence, is not fatal to the case of

the prosecution as there is nothing to suggest that there

was any motive for the prosecution to delay the holding

of the test identification parade or that any irregularity

was committed in holding the test identification

parade.”… …..

“20. It is neither possible nor prudent to lay down any

invariable rule as to the period within which a test

identification parade must be held, or the number of

witnesses who must correctly identify the accused, to

Vishal Parekar 48

 of 96

Cri.Appeal 502-2021.doc

sustain his conviction. These matters must be left to the

courts of fact to decide in the facts and circumstances of

each case. If a rule is laid down prescribing a period

within which the test identification parade must be held,

it would only benefit

the professional criminals in whose

cases the arrests are delayed as the police have no clear

clue about their identity, they being persons unknown to

the victims. They, therefore, have only to avoid their

arrest for the prescribed period to avoid conviction.

Similarly, there may be offences which by their very

nature may be witnessed by a single witness, such as

rape. The offender may be unknown to the victim and the

case depends solely on the identification by the victim,

who is otherwise found to be truthful and reliable. What

justification can be pleaded to contend that such cases

must necessarily result in acquittal because of there

being only one identifying witness? Prudence therefore

demands that these matters must be left to the wisdom of

the courts of fact which must consider all aspects of the

matter in the light of the evidence on record before

pronouncing upon the acceptability or rejection of such

identification.”

64. It is therefore abundantly clear that it is neither possible nor prudent

to lay down any invariable rule as to the period within which a TIP must be

held and there is no hard and fast rule about such delay being fatal to the

prosecution.

65. The Ld. Counsel for the Appellant also vehemently argued that the

TIP was not conducted as per the required procedure mentioned in the

Criminal Manual. It was argued that P.W. 6 Mukesh Kawale admitted

during the cross-examination that he was taken into the jail as well as into

the parade room by a police officer and therefore the submission of the Ld.

Counsel for the Appellant was that the presence of the police officer at the

time of TIP entirely vitiated the same. To buttress his submission, the Ld.

Counsel has placed reliance on the judgment of the Hon’ble Apex Court in

Vishal Parekar 49

 of 96

Cri.Appeal 502-2021.doc

the case of Chunthuram v/s The State of Chhattisgarh

42

and invited the

attention of this Court specifically to paragraph 11, wherein it has been

observed that:

“11. The infirmities in the conduct of the test

identification parade would next bear scrutiny. The major

flaw in the exercise here was the presence of the police

during the exercise. When the identifications are held in

police presence, the resultant communications

tantamount to statements made by the identifiers to a

police officer in course of investigation and they fall

within the ban of statements made by the identifiers to a

police officer Section 162 of the Code.”

66. There can be no doubt this proposition of law, however, we find that

the above case law can be distinguished on facts from the present case. P.W.

6 Mukesh Kawale stated that the police person brought him to the parade

room and it was further deposed that during the actual conduct of the

identification exercise only the six dummy persons, the Tahsildar and the

Panch witnesses were present. The said deposition of P.W. 6 therefore, by

itself rules out the presence of any police officer during the identification

parade. Hence, the foundational premise upon which the ratio of

Chunthuram(supra) operates is neither established nor borne out from the

evidence on record.

67. The Ld. Counsel for the Appellant has also contended that there has

been an inordinate delay in conducting the TIP, which creates doubt about

the validity of the TIP as there is a possibility that the witnesses might not

remember the actual person due to passage of time. However, if the

42 (2020) 10 SCC 733.

Vishal Parekar 50

 of 96

Cri.Appeal 502-2021.doc

documents on record are perused, the prosecution cannot be blamed for

holding TIP after two months. The investigating agency on 19.11.2013 had

written a letter to the Tahsildar for conducting the TI Parade, however the

date assigned by the Tahsildar was 27.12.2013. In any event, it is a settled

law that TIP is only a rule of prudence and serves as a corroborative piece of

evidence under Section 9 of the Indian Evidence Act, while the substantive

evidence is the identification made before the Court. In this regard, the

following judgments can be appropriately relied upon. In the case of Anil Pal

son of Ram Pyare Lal v/s The State of Jharkhand, Criminal Appeal (DB No.

1278 of 2024), it was held as under:

“118. However, it is equally settled that TIP is a rule of

prudence which is required to be followed in cases where

the accused is not known to the witness or the

complainant. The evidence of a TIP is admissible under

Section 9 of the Evidence Act. However, it is not a

substantive piece of evidence. Instead, it is used to

corroborate the evidence given by witnesses before a

court of law at the time of trial. Reference in this regard

may be taken from judgment as rendered by the Hon’ble

Apex Court in State of H.P. v. Lekh Raj (2000) 1 SCC

247, and C. Muniappan v. State of T.N. (2010) 9 SCC

567. 119.”

68. In the present case, P.W. 2 and P.W. 6 have identified the Appellant in

the TIP as well as in the court during the trial. Further, the argument that

the witnesses could not have remembered the Appellant after two months

deserves to be rejected in the peculiar facts of the case. P.W. 2 and P.W. 6

witnessed the Appellant while disposing off a bag claimed by the Appellant

to contain

havan articles, but upon immediately retrieving the bag from the

same place where it was disposed by the Appellant, they found the same bag

Vishal Parekar 51

 of 96

Cri.Appeal 502-2021.doc

to actually contain a human body with no hands, legs and head (torso). Such

an incident was a rather unusual, shocking and an unpr ecedented

occurrence which is likely to leave a lasting impression on their minds and

therefore identifying the person in the TI Parade even after a gap of two

months cannot be said to be unusual.

69. The Ld. Counsel for the Appellant has relied upon the judgment of

Mohd. Sajjad v/s The State of West Bengal

43

and has referred to paragraph

16 and 19 where it has been held as under :

“16. In the case in hand, apart from the fact that there was

delay in holding the test, identification parade, one striking

feature is that none of the prosecution witnesses concerned

had given any identification marks or disclosed special

features or attributes of any of those four persons in general

and the accused in particular. Further, no incident or crime

had actually taken place in the presence of those prosecution

witnesses nor had any special circumstances occurred which

would invite their attention so as to register the features or

special attributes of the accused concerned. Their chance

meeting, as alleged, was in the night and was only for some

fleeting moments.

…… …

19. In the instant case none of the witnesses had disclosed any

features for identification which would lend some

corroboration. The identification parade itself was held 25

days after the arrest. Their chance meeting was also in the

night without there being any special occasion for them to

notice the features of any of the accused which would then

register in their minds so as to enable them to identify them

on a future date. The chance meeting was also for few

minutes. In the circumstances, in our considered view such

identification simpliciter cannot form the basis or be taken as

the fulcrum for the entire case of prosecution. The suspicion

expressed by PW 8 Saraswati Singh was also not enough to

record the finding of guilt against the appellant. We therefore

grant benefit of doubt to the appellant and hold that the

prosecution has failed to establish its case against the

appellant.”

43 (2017) 11 SCC 150.

Vishal Parekar 52

 of 96

Cri.Appeal 502-2021.doc

70. The Appellant has placed reliance upon the aforesaid judgment to

contend that the identification of the Appellant by P.W. 2 and P.W. 6 cannot

be relied upon. This Court finds the aforementioned j udgment

distinguishable on facts. The ratio of the judgment, as expressly stated

herein above rests on specific findings namely, that none of the witnesses

had given any identification marks or disclosed special features of the

accused; that no incident had occurred in their presence which would invite

their attention so as to register the features of the accused in their minds;

that the encounter was a chance meeting in the night and was only for a few

fleeting moments; and that there were no special circumstances which

would cause the appearance of the accused to be imprinted in the memory of

the witnesses. We are of the opinion, that none of these features are present

in the case at hand. The encounter of P.W. 2 and P.W. 6 with the Appellant

cannot be said to have been fleeting or ephemeral in any manner. They had

a sustained, direct and active interaction with the Appellant at Charai Talao.

They questioned him about the contents of the bag, observed him at close

quarters for a considerable period, and harbored suspicion about his

conduct throughout. Their encounter with the Appellant was therefore not a

chance meeting for a few moments in the night but an impressionable

encounter of sufficient duration which was immediately followed by the

circumstance of an extraordinary and disturbing nature i.e. the discovery of

a female torso in the very bag he had just disposed off. This, in our opinion,

Vishal Parekar 53

 of 96

Cri.Appeal 502-2021.doc

precisely fixes the features of the Appellant enduringly in the memory of the

witnesses.

71.In order to lay emphasis on the above, this Court places reliance in the

case of Raja(supra)

“18. It is, thus, clear that if the material on record

sufficiently indicates that reasons for “gaining an

enduring impression of the identity on the mind and

memory of the witnesses” are available on record, the

matter stands in a completely different perspective.”

72. The Ld. Counsel for the Appellant further attempted to cast serious

aspersions on the TIP on the ground that the panchas for the TIP were

selected by the police and not by the Tahsildar who also failed to determine

their independence. A perusal of

Clause 16 (3)(iii) of the Criminal Manual

issued by The High Court of Judicature at Bombay makes it abundantly

clear that the arrangement of Panch witnesses by the Police is not only

permissible but is in fact the established procedure. The said clause

expressly provides that “

the police themselves will have normally arranged

to call up such persons

”, and the role of the Executive Magistrate is

thereafter to question them and satisfy himself that they are independent

and fairly intelligent persons. The Ld. Counsel for the Appellant has failed to

establish that there was a failure on the part of P.W. 12- the Tahsildar, in

performing his due diligence during the TIP. P.W. 12 in his deposition states

as follows:

“2. Accordingly by giving letter on 18.12.2013, I have

informed Sr. PI Chembur police station that I am going

to conduct identification parade on 27.12.2013. On

Vishal Parekar 54

 of 96

Cri.Appeal 502-2021.doc

27.12.2013, at about 11.00 am, I reached to Arthur road

jail. I saw that, three witnesses and two panchas were

there along with police in front of door of Arthur road

jail. First of all, I got introduced all the witnesses and

panchas. I had asked them that whether they were

shown, photograph of accused, of whose identification

parade is to be conducted. They replied in negative. Then

myself, three witnesses, two panchas by effecting entry in

register, entered in jail premises, at about 11.20 am. I

met with jailer and asked him that he should make

certain arrangement for holding identification parade of

accused. I caused witnesses to sit in the cabin of jailer.

Myself and two panchas went to the hall of TI Parade.

Jail police brought the accused Prabhakar Shetty in that

hall. In presence of panchas I asked his named to which

accused stated his name as Prabhakar Shetty. I asked jail

police that they should call other six dummy accused.

Accordingly, six dummy accused, of age of Prabhakar

Shetty were brought there. Then, dummy accused were

asked to stand in a row. I asked accused Prabhakar

Shetty to stand in that row at 7

th

place. I get it confirmed

that nobody from outside should see the accused and

dummy accused.”

“3. I asked one of the panch Sharad Kishor Jadhav, that

he should call one of the witnesses, who were sitting in

cabin of jailer. So also I told him that he should not enter

in that hall, alongwith witness unless he called.

Thereafter, I asked accused Prabhakar Shetty whether he

wants to change his clothes, to which he replied yes.

Accordingly, he changed his clothes, in that hall itself. I

asked accused that he can change his position in the row

of dummy accused. So, accused stand between dummy

accused No. 2 and 3. then I called panch and one witness

Mukesh Gautam Khawale in that hall. I asked Mukesh

Gautam Khawale that the accused is standing in the row

of dummy accused person , he should identify the

accused by touching his person. Witness observed and

identified the accused by touching his person. At that

time, accused was standing between 2

nd

and 3

rd

dummy

accused in that row. Accordingly, The TI parade by 1

st

witness is completed.

Vishal Parekar 55

 of 96

Cri.Appeal 502-2021.doc

73. Therefore, taking into consideration the above deposition we are of

the view that no prejudice was caused to the Appellant and there was no

infraction of the provisions of law whilst holding TIP.

74. It was also argued by the Ld. Counsel for the Appellant that the

conduct of the Tahsildar with regard to the non- selection of dummies by

him for the TIP was in contravention of the procedure laid down by the

Criminal Manual. A reference to

Clause 16(3)(v) clarifies the position to the

effect that the arrangement for the persons to be put in the parade is

normally made by the police themselves and the same finds reinforcement

in the case of

Suresh Vyankati Chavan V. State of Maharashtra

44

, as can be

seen below:

“

69. Upon perusal of the clause (iv), while conducting the

parade, the parade should be arranged in a room or a

place which is such that the identifying witnesses, as well

as the persons connected with the Police, should not be

able to look into it. In clause (v), it is stated that, if there

is only one accused person to be identified, at-least half a

dozen dummy persons should be placed in the parade. If

two accused persons are to be identified, then there

should be about 10 or 12 persons in the parade. Not more

than two accused should be placed in any single

identification parade. Normally, the police themselves

will have called up the persons to be put in the parade,

but the Executive Magistrate/Honourary Magistrate

should see that they are persons of more or less same

physical appearance, and approximately of the same age,

as the person to be identified. It is desirable that dummy

persons to be mixed should be different for such parade.

”

75. The Ld. Counsel for the Appellant has relied upon the judgments of

this Hon’ble Court in the cases of

Vilas Vasantrao Patil v/s The State of

44 (2018) SCC OnLine Bom 3390

Vishal Parekar 56 of 96

Cri.Appeal 502-2021.doc

Maharashtra

45

and The State of Maharashtra v/s Rajesh

46

to contend that a

TIP conducted in violation of the procedure prescribed under the Criminal

Manual vitiates the same completely. In support thereof, various

submissions were also advanced during the course of oral arguments

regarding the appointment of dummies and role of panch witnesses, those

contentions have already been dealt with. In addition, a reading of the cross-

examination of P.W. 12 does not disclose any material irregularity so as to

cast a doubt upon the validity of the TIP.

76. The Ld. APP has contradicted the arguments of the Appellant, by

rightly relying upon a judgment of the Hon’ble Apex Court in The State of

Maharashtra v/s Suresh

47

, wherein it was held:

“

22. If potholes were to be ferreted out from the

proceedings of the magistrates holding such parades

possibly no Test Identification Parade can escape from

one or two lapses. If a scrutiny is made from that angle

alone and the result of the parade is treated as vitiated

every Test Identification Parade would become unusable.

We remind ourselves that identification parades are not

primarily meant for the Court. They are meant for

investigation purposes. The object of conducting test

identification parade is two fold. First is to enable the

witnesses to satisfy themselves that the prisoner whom

they suspect is really the one who was seen by them in

connection with the commission of the crime. Second is

to satisfy the investigating authorities that the suspect is

really the one who was seen by them in connection with

the said occurrence. So the officer conducting the test

identification parade should ensure that the said object

of the parade is achieved. If he permits dilution of

modality to be followed in a parade, he should see to it

that such relaxation would not impair the purpose for

which the parade is held [vide Budhsen v. State of Uttar

45 1995 SCC OnLine Bom 399

46 1997 SCC OnLine Bom 39

47 AIROnline 1999 SC 169

Vishal Parekar 57

 of 96

Cri.Appeal 502-2021.doc

Pradesh, 1970(2) SCC 128; Ramanathan v. State of Tamil

Nadu, 1978(3) SCC 86].”

77. The Trial Court while believing the TIP has rightly relied upon the

judgment of

Babubhai @ Zaverchand Harjivan Sheth v/s The State of

Maharashtra

48

to clarify the intent of conducting a TIP wherein it is

observed as under –

“

72. In our view, regarding the test identification Parade,

the precautions as contained in the guidelines issued by

the High Court in the criminal Manual are required to be

observed to make the exercise of holding the TIP

meaningful and reliable. If there is inordinate delay in

holding TIP, the delay ought to be explained by the

prosecution. A witness of fact who is required to attend

the test identification to identify the unknown offender

from the assemblage of accused intermingled with group

of dummies at the TIP must not have any prior

opportunity to see the suspect or the accused after his

arrest or while the accused is continuing in custody

pending investigation, before the TIP is held. If TIP is

held in jail, the responsible authority holding TIP will

have the facility to take precautions including the

selection of the appropriate similar dummies in age,

appearance, dress etc. to stand along with the suspects.

At the same time it must be remembered that the TIP

belongs to the stage of investigation and essentially

governed by Section 162 of the Cr PC and does not

constitute the substantive evidence. Hence cannot be

decisive factor for recording conviction. There is no

provision in the Code of Criminal Procedure to make it

compulsory for the investigating agency to hold test

identification parade because the substantive evidence is

identification of the culprit before the Court. Failure to

hold the TIP would not make the evidence of

identification in the Court absolutely meaningless or

inadmissible. The evidence of TIP provides only

corroboration to the main evidence before the Court

when required by way of the abundant precaution in view

of Section 9 of the Indian Evidence Act. The object of

holding TIP at the stage of investigation is to help the

investigating agency to assure itself that the investigation

is proceeding at right direction, on correct lines. The

482013 SCC OnLine Bom 2260

Vishal Parekar 58

 of 96

Cri.Appeal 502-2021.doc

purpose of the holding prior test identification is to test

trustworthiness of the witness at the stage when

investigation is still at its preliminary stage. The holding

of the TIP is felt necessary in a case wherein the accused

were not known to the accused since prior to the

incident. The accused cannot as of right claim that the

test identification parade must be held at the stage of

investigation. The trial Court is not precluded from

accepting the evidence of the identification of the

offender on the basis of sworn testimony in the Court

without insisting upon the corroboration. Though sole

rule of prudence is to look for corroboration. It is for the

learned trial judge, as a Court of fact, who has

opportunity to see & have live experience of watching

demeanor of the witness while he or she is deposing

before the Court, to attach the appropriate weight to the

evidence of the witness. In an appropriate case the trial

Judge may accept the evidence of identification in the

Court even without insisting upon the corroborative

evidence. In case the trial Judge find it unsafe to rely

upon the substantive evidence of actual identification of

the offender before the trial Court, it may look upon the

evidence of the TIP for the purpose of corroboration and

may then find it out whether corroborative evidence

adduced is dependable and reliable to base

conviction…...

”

78. Taking into consideration the authorities cited on this issue, we find it

appropriate to hold that the object of holding TIP at the stage of

investigation is to help the investigating agency ensure that it is proceeding

on the correct line. The purpose of conducting the TIP is primarily to test the

trustworthiness of the witness at a nascent stage. The necessity of TIP arises

only in those circumstances when the accused is unknown to the witnesses

prior to the incident. Further, mere failure to hold the TIP would also not

make the evidence of identification in the Court absolutely meaningless or

inadmissible.

Vishal Parekar 59

 of 96

Cri.Appeal 502-2021.doc

79. Additionally, taking into consideration the evidence on record, we also

find that no motive can be attributed to the prosecution for holding of the

TIP belatedly. As far as the identification of P.W. 3 is concerned, he has

given an explanation in his evidence as to why he did not, during the TIP

point towards the Appellant as the person who had come in his auto

rickshaw. This witness in the natural course of deposition has stated that out

of fear he did not point out. This witness however has identified the

Appellant in his substantive evidence in the court. We have no reason to cast

any doubt over the conduct of P.W. 3, who has not resiled from his

statement. Further in the cross-examination, this witness has stated that he

saw the accused for the first time after the incident in the TIP at the jail.

80. In the light of the above, we find that there is nothing to disbelieve the

Test Identification Parade and there is no deviation from the due process

laid down in the Criminal Manual and hence the contention of the Ld.

Counsel for the Appellant deserves to be rejected.

E] DISCLOSURE AND RECOVERY

81. This Court now proceeds to consider the recoveries effected pursuant

to the disclosure statements made by the Appellant under Section 27 of the

Indian Evidence Act. There are multiple recoveries, some at the instance of

the Appellant and some through the witnesses.

82. The first disclosure statement of the Appellant was recorded on the

day on which the Appellant was arrested i.e. 05.11.2013, in the presence of

Vishal Parekar 60

 of 96

Cri.Appeal 502-2021.doc

P.W. 7, which was regarding the disposal of the head of the deceased. P.W. 7

has deposed that upon disclosure, the police and the panchas were led to a

nala (canal) near a temple where one black coloured plastic bag was

recovered and upon opening the same, it was found to contain the head of

the deceased. The relevant part of the said deposition is reproduced herein

below:

“

5. Thereafter, we left Chembur police station by one

government vehicle. Police officer Khanvilkar, Dhas, 2-3

police staff, myself, anther panch witness and accused

were in the said vehicle. We went from R.C. Marg,

Chembur Naka, Cell Colony via Tembhi bridge, and then

at near one canal (nala), near one temple, we stopped our

vehicle, where the accused was asked to stop. We all

alighted from the vehicle and went by walk at some

distance. The accused pointed canal (nala) in which one

black colour black colour plastic polythene bag which he

thrown. Thereafter, one person went inside the nala and

took out the said black colour plastic polythene bag from

said nala, but I do not remember name of said person.

The said black colour plastic polythene bag was given to

Police Officer Dhas. The said black colour plastic

polythene bag was dirty with mud and there was knot at

top (mouth) of the said polythene bag. Some insects were

there on polythene bag. The said knot was cut by blade .

In which we found one female head, decomposed/ rotten

condition, eyes closed, black hairs, mouth open and long

teeth and there was bad smelling. Photographer was

called. Photographer took the photographs of said female

head, decomposed in condition. The said female head

decomposed/ rotten in condition was taken in charge by

preparing panchnama. I can identify photographs of

female head which found in polythene bag.”

83. We have also gone through the cross-examination, however, we find

that nothing could be elicited by the defence to discredit this witness.

Although the defence was successful in bringing on record that this panch

witness had acted as a panch in 2 to 4 cases earlier, however that by itself

Vishal Parekar 61

 of 96

Cri.Appeal 502-2021.doc

cannot be a ground to reject the evidence, which is otherwise believable as

held by the Hon’ble Supreme Court in the case of Nana Keshav Lagad v/s

State of Maharashtra

49

.

84. This Court believes the recovery of the head from the nala for reasons

stated herein. Although, the said nala is to be considered as a place with

wide public access, the material aspect in the peculiar facts of the case, is not

the nature of the place but the fact that the location of disposal was within

the exclusive knowledge of the Appellant. A severed human head is not an

article ordinarily to be found in such a place and the recovery was effected

only after the Appellant led the police and the panchas to the specific spot

and pointed out to the exact location.

85. In this context, the Ld. Counsel for the Appellant has relied upon the

judgment of The State of Haryana v/s Jagbir Singh

50

to contend that the

recovery of the head, in the present case falls outside the purview of Section

27 of the Evidence Act, inasmuch as the location was already within the

knowledge of the police, prior to the disclosure. The relevant paragraph

referred to by the Ld. Counsel for the Appellant during his arguments is

enumerated herein below:

“21. What remains now to be seen is whether the

recovery of the dead body from the premises of the

accused establishes the prosecution version. According to

the prosecution when the Panchayat gave time to the

accused to produce the boy alive or dead, he accepted

that the dead body was buried in his compound. The

accused dug the land and on seeing the leg of the dead

49 (2013) 12 SCC 721

50(2003) 11 SCC 261

Vishal Parekar 62

 of 96

Cri.Appeal 502-2021.doc

body they stopped digging and went to the police. The

High Court has found that the prosecution claimed that

the two accused were arrested by the Sub-Inspector

Mahender Singh Bhatti (PW 12) on 9-9-1995 on the

culvert of Jai Canal at about 8.00 p.m. in the presence of

one Chatter Singh and Om Parkash. However, Om

Parkash (PW 10) has denied about the arrest of the

accused by PW 12 near the canal. From the statement of

PW 12, it appears that the accused persons after their

arrest made disclosure or the statement about the

ransom, concealment of the dead body and that the dead

body recovered in the presence of the aforesaid Chatter

Singh and Om Parkash (PW 10). It is belied by the

statement of Om Parkash (PW 10). According to this

witness, when the accused made a voluntary statement in

the presence of many others he pointed out where the

body was buried. They went to the police station where

they met PW 12 and told him about finding the dead

body. PW 10 told him that the dead body was to be

handed over to Sr. SP or the Dy. SP. Evidence of PW 10

further shows that PW 12 accompanied by another ASI

and other police officials went to the village. There many

people had assembled and as the villagers started

shouting and agitating that led to an altercation; both the

accused were arrested by the Dy. SP. Thereafter it is

stated that the accused Jagbir made a disclosure

statement, where he (PW 10) and Chatter Singh were

stated to be eyewitnesses. One thing is clear that there

are unexplained contradictions about the place where the

accused were arrested and the manner of recovery. Since

the dead body was recovered on the basis of information

already known, Section 27 of the Evidence Act has no

application. As observed by this Court in Aher Raja

Khima v. State of Saurashtra [AIR 1956 SC 217 : 1956 Cri

LJ 426] a recovery of the incriminating articles alleged

to have been made by the accused while in custody is

inadmissible in evidence if the police already knew where

they were hidden. That takes the case out of the purview

of Section 27 of the Evidence Act.”

86. This Court finds the said judgment distinguishable on facts. In

The

State of Haryana v/s Jagbir Singh(supra), the recovery of the dead body was

held to be outside Section 27 because the location was already known, as the

accused had pointed out the burial spot in the presence of the Panchayat

Vishal Parekar 63

 of 96

Cri.Appeal 502-2021.doc

before any formal disclosure statement was recorded. It was in this specific

circumstance, that Section 27 was held inapplicable. However, the same

does not hold good in the instant case. There is nothing on record to suggest

that the location of the head near the nala at Sai Baba Nagar was known to

the investigating agency prior to the Appellant's disclosure. The same is

accordingly distinguishable and does not assist the case of the Appellant.

87. The Ld. APP has rightly relied upon the judgment of Neelu @Nilesh

Koshti v/s The State of Madhya Pradesh

51

, in order to emphasize upon the

validity of the recovery of the head of the deceased, under Section 27 of the

Indian Evidence Act. The Court observed thus:

“22…..This Court held that for evidence under Section

27 to be admissible, the information must emanate

from an accused who is in police custody. The Court

elucidated that the basic idea embedded in Section 27 is

the doctrine of confirmation by subsequent events-

when a fact is discovered on the strength of information

obtained from a prisoner, such discovery serves as a

guarantee of the truthfulness of the information

supplied. The Court further observed that whether the

information is confessional or non- inculpatory in

nature, if it results in the discovery of a fact, it becomes

reliable information. Significantly, it was held that the

mere recovery of an object does not constitute the

discovery of fact envisaged in the section……

23……As laid down in Udai Bhan (supra), the discovery

of a fact includes the object found, the place from which

it is produced, and the knowledge of the accused as to

its existence.In the present case, the information given

by the appellant while in Police custody distinctly

relates to the fact discovered, namely, recovery of the

dead body of the deceased concealed in a sack and

thrown in a specific well. This constitutes a "distinct

fact" as contemplated under Section 27 of the Evidence

Act, as the recovery of the body from that precise

location could only have been made on the basis of

51Cr. Appeal No. 5357 of 2025

Vishal Parekar 64

 of 96

Cri.Appeal 502-2021.doc

information furnished by someone who had personal

knowledge of its disposal. The recovery embodies the

"doctrine of confirmation by subsequent events" as

explained in Bodhraj (supra)—the actual discovery of

the body from the exact location disclosed by the

appellant is a guarantee that the information supplied

by him is true. The fact discovered embraces the place

from where the object was recovered (the well near

Tasaali Dhaba) and the knowledge of the appellant as

to its existence at that location. This information is not

within public domain or capable of discovery through

routine investigation. These circumstances constitute a

formidable link in the chain pointing towards the

culpability of the appellant.”

88. It would be appropriate to state that in the present case, the recovery

of the head of the deceased from the particular spot (nala) would constitute

a ‘distinct fact’, as such a recovery would not have been possible unless a

disclosure statement to that effect was made by someone who had personal

knowledge of its disposal. Thereby upholding the ‘doctrine of confirmation

by subsequent events’, it can be said that such a discovery of a severed head

is not possible through routine investigation or without information

provided by the Appellant himself. Hence, we believe the recovery of the

head of the deceased at the instance of the Appellant, under Section 27 of

the Indian Evidence Act.

89. As far as the discovered legs of the deceased are concerned, the

evidence on record discloses that the same were not recovered at the

instance of the Appellant. P.W. 19, on 30.10.2013, stumbled upon the legs in

a black coloured polythene bag lying in shrubs near Trombay Jetty and

immediately informed the police. The police then recorded the statement of

P.W. 19 and prepared a spot panchama for the legs and the four blood-

Vishal Parekar 65

 of 96

Cri.Appeal 502-2021.doc

stained black coloured polythene bags. The relevant portion of his

deposition is as follows:

“

On 30/10/2013 I was going towards Trombay Jetty. I

saw two legs in a torn black coloured polythene bag

which was lying in shrubs. There were four black

coloured polythene bags. I scared and ran towards jetty. I

informed the police at jetty. I showed the police the spot.

Police recorded my statement on the same day

”.

90. The testimony of this witness has gone unchallenged as the defence

chose not to cross-examine this witness.

91. Further, the FSL analysis establishes that the black coloured plastic

bags, so recovered, are of the same type and nature as the black coloured

plastic bag in which the torso was disposed off at Charai talao. The discovery

of the legs of the deceased cannot be considered a recovery under Section 27

of the Evidence Act because it was not at the instance of the Appellant.

However, in the opinion of this Court, the relevance of the said discovery

may lie in the fact that the recovery of the legs, from the same type of plastic

bag as that of the torso and head, is a circumstance which corroborates the

knowledge possessed by the Appellant regarding the manner in which the

body parts had been concealed and disposed off. Therefore, even though this

recovery is not pursuant to any disclosure statement made by the Appellant,

this can also be considered as one forming a part in the chain of the disposal

of the dismembered parts of the body of the deceased. We conclude as

above, after giving due consideration to the proved corroborative evidence

and the attendant circumstances.

Vishal Parekar 66

 of 96

Cri.Appeal 502-2021.doc

92. The prosecution has further relied on the disclosure statement of the

Appellant recorded on 16.11.2013 in the presence of P.W. 9. The Appellant

had made a disclosure statement with respect to the place where he disposed

off the mobile phones, clothes, chappals and ornaments of the deceased. The

Trial Court has erroneously recorded that the aforementioned articles were

recovered and hence came to an incorrect conclusion that the discovery was

established. However, the evidence on record points to the contrary. The

evidence of P.W. 9 shows that none of the articles were recovered pursuant

to the disclosure statement. In the absence of any article having been

actually recovered, consequent to the disclosure statement, the Trial Court’s

conclusion on the same being an established recovery under Section 27 of

the Indian Evidence Act cannot be sustained.

93. It is the case of the prosecution, that as per the deposition of P.W. 7,

the Appellant also made a disclosure statement on 05.11.2013, regarding the

ascertainment of the spot of murder. Pursuant to this, the police were led to

Room No. 224 and a number of articles were seized viz., a plastic bucket,

pieces of cement concrete, a bathroom metal jali, two full jeans pants, two

half t-shirts and a piece of cloth, some of which bore bloodstains. This Court,

having considered the evidence on record, finds that the said recovery was

effected on the same day of the arrest and in pursuance of the disclosure

statement made by the Appellant. There is no substantial cross-examination

on this aspect. However, the issue that now falls for consideration is the

evidentiary value of the bloodstained articles recovered during the

Vishal Parekar 67

 of 96

Cri.Appeal 502-2021.doc

investigation. While the reports confirm the presence of human blood on the

seized articles, they do not conclusively establish the blood group.

94. On this aspect, this Court finds it necessary to refer to the recent

decision of the Supreme Court in Madhav v/s State of Madhya Pradesh

52

,

wherein the Apex Court, having considered the entire spectrum of case laws

on this aspect, has settled that there exists no fixed formula and that what is

required is that the judicial conscience of the Court should be satisfied both

as to the genuineness of the recovery and as to the origin of the human

blood. The judgments relied upon by the learned APP in Kishore Bhadke v/s

State of Maharashtra

53

, Prabhu Dayal v/s State of Rajasthan

54

, which

consider State of Rajasthan v/s Teja Ram and Others

55

, have already been

evaluated and reconciled by the Hon'ble Supreme Court in Madhav (supra).

Since the principles emerging from the aforesaid decisions stand

comprehensively dealt with in Madhav(supra), on which this Court has

placed reliance, we do not find it necessary to further independently dilate

upon the abovementioned judgments relied by the Ld. APP. The relevant

observations of Madhav(supra) are reproduced hereunder:

“28. .....In Surinder Singh vs. State of Punjab (1989)

Supp.(2) SCC 21), the blood stains found on the knife

allegedly used for the commission of the offence, were

established to be human blood. But this Court rejected

the prosecution theory on the ground that those blood

stains on the knife were not shown to be of the same

group as the blood of the deceased. In Raghunath,

52Criminal Appeal No. 852 of 2021

53(2017) 3 SCC 760

54(2018) 8 SCC 127

55(1999) 3 SCC 507

Vishal Parekar 68

 of 96

Cri.Appeal 502-2021.doc

Ramkishan & Ors. vs. State of Haryana, this Court held

that the blood stain, though of a human blood, is not

conclusive evidence to show that it belongs to the blood

group of the deceased. In Sattatiya vs. State of

Maharashtra, this Court found the credibility of the

evidence relating to the recovery of the object used for

the commission of the crime, substantially dented, on

account of the fact that the blood stains, though found to

be of human source, could not be linked with the blood of

the deceased.

29. In contrast, this Court held in State of Rajasthan vs.

Teja Ram and Others, that at times the Serologist may

fail to deduct the origin of the blood, either because the

stain is too insufficient or because of hematological

changes and plasmatic coagulation. After referring to the

Constitution Bench decision in Raghav Prapanna

Tripathi (supra), this Court held in Teja Ram (supra) that

it is not as though the circumstances arising from the

recovery of the weapon would stand relegated to

disutility, in all cases where there was failure of detecting

the origin of the blood. This Court indicated in Teja Ram

(supra) that, “...the effort of the Criminal Court should

not be to prowl for imaginative doubts...” and that the

doubts should be of reasonable dimension, which a

judicially conscientious mind entertains with some

objectivity.

30. The decision Teja Ram (supra) was followed in Gura

Singh vs. State of Rajasthan and in Prabhu Dayal vs.

State of Rajasthan.

31. In R. Shaji vs. State of Kerala, this Court took note of

almost all previous decisions starting from Prabhu Babaji

Navle vs. State of Bombay and including those in Raghav

Prapanna Tripathi (supra); Teja Ram (supra), Gura

Singh (supra); John Pandian vs. State; and Sunil Clifford

Daniel vs. State of Punjab and came to the conclusion

that once the recovery is made in pursuance of a

disclosure statement made by the accused, the matching

or nonmatching of blood groups loses significance.

“32. Therefore, as pointed out by this Court in Balwan

Singh vs. State of Chhattisgarh, there cannot be any

fixed formula that the prosecution has to prove, or need

not prove that the blood groups match. But the judicial

conscience of the Court should be satisfied both about

the recovery and about the origin of the human blood.”

95. In view of the above, this Court is satisfied that the recovery of articles

from Room No.224, stands duly proved under Section 27 of the Evidence

Vishal Parekar 69

 of 96

Cri.Appeal 502-2021.doc

Act, and the Chemical Analyzer's Reports establish the presence of human

blood on the articles so recovered, even though the results are inconclusive.

96. Having considered the submissions of the Ld. Counsel for the

Appellant and the Ld. APP, and having perused the relevant case laws, this

Court is of the considered opinion, that the mere fact that the bloodstains

were inconclusive, the Appellant cannot claim the benefit on those grounds.

However, we hold that the inconclusive blood stains by themselves do not

establish a distinct and incriminating link in the chain of circumstances in

the peculiar facts and circumstances of this case, for the reasons set out

hereunder. First, the evidence on record establishes that Room No. 224 was

not within the exclusive possession of the Appellant, as it was shared among

three other persons residing therein, as deposed by P.W. 5 and P.W. 14. In

the absence of exclusive access, it cannot be said with certainty that the

Appellant had exclusive knowledge of the scene of the offence. Therefore,

the most that can be inferred therefrom, is that the Appellant possessed

knowledge of the commission of murder in that room and the existence of

those articles in that room. Secondly, the prosecution alleges that the

Appellant dismembered the body and disposed of the body parts at different

locations to destroy the evidence. If that be so, it appears inherently

improbable that he would simultaneously leave behind numerous blood-

stained articles at the very place where the offence was committed and

which also served as his residence, only for the police to effect a recovery.

Such conduct is inconsistent with ordinary human behaviour and renders

Vishal Parekar 70

 of 96

Cri.Appeal 502-2021.doc

the prosecution version susceptible to doubt. For these reasons, the judicial

conscience does not permit to accept this recovery as a circumstance

pointing unerringly towards the Appellant.

97. It has come in the evidence/deposition of P.W. 8 that the disclosure

statement, with respect to the knife which is the weapon of murder, was

recorded on 07.11.2013. It has also come in the evidence that the very same

disclosure statement also pertained to the limbs, for which the police first

went to Trombay Jetty where nothing was found. Immediately, thereafter

the Appellant led them to the place where he claimed to have discarded the

weapon of murder- knife. It is to be noted that the knife was recovered from

a nala, accessible to the public in general and therefore the Appellant cannot

be said to have exclusive access to the same. Additionally, there is nothing

on record to suggest that the particular nala was outside the reach of

passerbys. Further, the deposition of P.W. 8 (panch witness) only discloses

the fact, that the Appellant pointed towards the general area of the nala

where the knife was thrown by him. It has also come in the evidence of P.W.

8, that a knife was not visible in water from outside the nala and that the

local people by entering into the nala took the search of the weapon with

hands. It has also come in the cross-examination of P.W. 8, that few other

articles were also taken out by the local people from nala water. It has also

come in the cross-examination that after taking out the knife it was put to

dry and it was measured by the police and not by the panchas. Further, there

is also a discrepancy regarding the length of the knife. It is common

Vishal Parekar 71

 of 96

Cri.Appeal 502-2021.doc

knowledge that a nala, ordinarily contains a number of discarded articles

and a knife being a common household object, the exclusivity is not

established.

98. The Ld. Counsel for the Appellant has relied upon the judgment of

Makhan Singh v/s The State of Punjab

56

, drawing our attention specifically

to para 14:

“

14. Then we are left with the recovery of the dead

bodies. Investigating Officer SI Puran Singh (PW 8)

admitted in cross-examination that after recording the

statement of Amrik Singh he could not know the correct

place where the bodies and other articles were kept

buried and concealed. This clearly indicates that he could

get some information from the statement of Amrik Singh.

As seen earlier, the field is an open place surrounded by

other fields and according to Nihal Singh the adjacent

field is his own as he had taken it on lease and therefore

it cannot be said that anyone could not have known

about the bodies being buried in the field. The

Investigating Officer himself admitted that after

recording the statement of Amrik Singh he knew that the

bodies were buried in the field but he felt that

information was not sufficient. It cannot therefore, be

said that the place from where the bodies were recovered

was such a place about which knowledge could only be

attributed to the appellant and none else. Since the

exclusive knowledge to the appellant cannot be

attributed, the evidence under Section 27 also cannot be

said to be a circumstance against the appellant.

”

99. Taking into consideration, the above-mentioned judgment, this Court

is also of the view, that the nala is a place with public access and therefore

the exclusive access of the nala and subsequently the exclusive knowledge

about the knife, cannot be attributed to the Appellant. This, therefore

significantly diminishes the propriety of the recovery of knife under Section

56(1988) SUPP SCC 526

Vishal Parekar 72

 of 96

Cri.Appeal 502-2021.doc

27 of the Evidence Act. We hold that while the disclosure statement was

made regarding the knife and the same was recovered, the evidentiary

weight of this recovery is insufficient to attribute it to the Appellant, more

so, considering the duration after which it was recovered. Therefore, in the

light of the above stated reasons, we are not inclined to accept the recovery

of the knife as an incriminating circumstance against the Appellant.

100. This Court, taking into consideration the discoveries and recoveries of

the dismembered body parts of the deceased, comes to a conclusion that the

black coloured plastic bag constitutes a significant corroborative

circumstance running through the chain of disposal. The torso was found

disposed of in a black coloured plastic bag at Charai talao at the hands of the

Appellant. The head was recovered in a black coloured plastic bag near a

nala (canal) at the instance of the Appellant. The legs were found in a black

coloured plastic bag near Trombay Jetty along with four blood-stained

plastic bags lying around it. The FSL analysis further establishes that the

black coloured plastic bags are of the same nature and type. Therefore, the

recovery of the bags cannot be viewed in isolation. The common use of

identical black coloured plastic bags for concealing the torso, head and legs,

coupled with the FSL opinion at Exhibit 128 Colly., regarding their

similarity, provides an important corroborative link in the chain of

circumstances and lends credence to the Appellant with regards to the

knowledge regarding the disposal of the body parts of the deceased.

101. The Ld. Counsel for the Appellant has relied upon the judgment of the

Vishal Parekar 73

 of 96

Cri.Appeal 502-2021.doc

Hon’ble Supreme Court in Himachal Pradesh Administration v/s Om

Prakash

57

. The relevant paragraph is reproduced hereunder:

8..... We are not unaware that Section 27 of the Evidence

Act which makes the information given by the accused

while in custody leading to the discovery of a fact and the

fact admissible, is liable to be abused and for that reason

great caution has to be exercised in resisting any attempt

to circumvent, by manipulation or ingenuity of the

Investigating Officer, the protection afforded by Section

25 and Section 26 of the Evidence Act. While considering

the evidence relating to the recovery we shall have to

exercise that caution and care which is necessary to lend

assurance that the information furnished and the fact

discovered is credible.

102. The aforesaid observations cast a duty upon the Court to exercise due

caution in appreciating discovery evidence and to satisfy itself of the

credibility of both, the information furnished and the fact discovered. In the

present case, this Court has independently scrutinized each recovery on its

own merits and has relied only upon those recoveries which inspire

confidence and satisfy the test of admissibility and reliability in law.

103. The Ld. Counsel for the Appellant placed reliance on

Gambhir v/s The

State of Maharashtra

58

, Kashinath Baban Palkar v/s The State of

Maharashtra

59

and Sattatiya v/s The State of Maharashtra

60

to contend that

the recoveries in the present case are piece meal in nature and are the result

of duress, rather than a voluntary disclosure and hence should be discarded.

As there can be no doubt about this proposition laid down by the Apex

Court, the same does not seem to be applicable as in the peculiar facts of the

57(1972) 1 SCC 249

58(1982) 2 SCC 351

591995 SCC OnLine Bom 167

60(2008) 3 SCC 210

Vishal Parekar 74

 of 96

Cri.Appeal 502-2021.doc

case, we do not find it to be the result of any duress or absence of voluntary

disclosure.

F] REPORTS OF POST-MORTEM AND CHEMICAL ANALYZER

104. The Chemical Analyser and Post-Mortem(PM) Reports ar e an

important link in establishing a complete chain of circumstantial evidence,

the analysis of which is essential. To establish the commission of the offence

of murder at the hands of the Appellant, this circumstance must be

considered in two parts. First, insofar as they establish the identity of the

deceased and the cause of death and second, whether they can be sought to

be used to connect the Appellant with the commission of such an offence of

murder.

105. On the question of the identity of the deceased, this Court has already

discussed this circumstance in detail and come to the conclusion that there

is no doubt about the identity of the deceased being one Kanti Karunakar

Shetty, as established by DNA Reports.

106. To establish the Post-Mortem report and the injuries mentioned

therein, the prosecution has examined P.W. 17- Dr. Sunil Jawale who

deposed that on 05.11.2013, he was on duty and on that day a skull of a

female suspected Kanta Prabhakar Shetty wrapped in plastic bag which was

found in nala was brought by PSI Ravindra Mohite. He further deposed that

they started P.M. on the skull at 11:45 p.m. and found that it showed signs of

adipocere formation which is a special change occurring when a body is

Vishal Parekar 75

 of 96

Cri.Appeal 502-2021.doc

lying in moist condition. On external examination of injuries, he has further

deposed as follows:

“4. On external examination of the injuries which are

mentioned in Column No.17, the neck skin shows sharp cut

boarders at the level of lower end of C6. Orophayranx, pharynx

intact. Neck muscles shows sharp cut at the level of injury.

Cartilages at the level of injury shows sharp cut boarders.

Vertebra above the lower end of C6 are intact. Spinal cord

shows sharp cut, changes of adipocere and evidence of

infiltration of blood stains seen at the injured site. From all

these findings, the injury was ante mortem in nature. There was

no any injury on skull wall. Brain matter was liquefied. The

samples which we preserved were scalp hairs, vertebra and

tooth for DNA, another tooth for grouping, hair clip for analysis.

5. Accordingly I have prepared the P.M. report. Today I have

brought with me the original P.M. Report. It is in my

handwriting. It bears my signature and signatures of Dr. H.

Meshram and Dr. P.S. Dode. I am acquainted with their

signatures. P.M. Report is taken on record and mark Exh.93.

6. The cause of death is decapited head. After examination of all

CA reports, the cause of death in our opinion is hemorrhage

shock due to decapitation of head, unnatural. Now I am shown

cause of death certificate. It is the same. It bears my signature

and signature of three more Doctors. The contents therein are

true and correct. It is at Exh.94.

……8. On the basis of changes in the body, the death of the body

might have occurred prior to 5-7 days of the postmortern. The

abovesaid injury is possible by means sharp edged knife. Now I

am shown the knife (Art.14). The abovesaid injury is possible

with this knife.”

There is no dent caused to the evidence of this witness in the

cross-examination.

P.W. 20, Dr. Harshal Tubhe who has also conducted the Post

Mortem has deposed as follows:

“3. In para 17 I have recorded external injuries as :

1) Complete decapitation at the level of C7-Cervical

vertebra with clean cut margins of skin; soft tissues;

muscle, blood vessels oesophagus, trachea, other

cartilages with infiltration of blood at margins (neck

circumferance 30 cm)

2) Abrasion of 2cm x 1 cm, dark red over right lower

abdomen just above right iliac crest.

3) Abrasion of 2cm x 1 cm, dark red over left lower

Vishal Parekar 76

 of 96

Cri.Appeal 502-2021.doc

abdomen, 10 cm below and left lateral to umbilicus.

4) Chopped off injury over right iliac region separating

leg from acetabular cavity; exposing under lying muscles;

fat.

5) Chopped off injury over left iliac region separating leg

from acetabular cavity exposing underlying muscle; fat.

6) Chopped off injuries over both shoulder region

separation both upper limbs from shoulder exposing

underlying muscle; fat.

….. …...

6. On the same day at 8.35 p.m. we received two human

legs along with inquest panchanama and ADR report by

PSI Adsul of Trombay police station. I along with Dr.

G.D. Niturkar conducted the postmortem examination

between 8.40 p.m. to 9.40 p.m.

…… …..

8. In para 17 I have recorded external injuries as:

1) Contusion of 2cm x 1 cm, muscle deep; over anterior

thigh region of left leg, 10 cm below head of femur.

2) Both legs chopped off from iliac region exposing head

of femur along along with underlying muscles, fat and

soft tissues.

……

11. In P.M. report Exh.101, Injury No.1 corresponding to

injury mentioned in column No.22 is possible with the

weapon like knife Art.14, now shown to me. All the

injuries individually or collectively sufficient to cause the

death.”

There is no cross-examination of the said witness.

107. We find that the PM Reports conclusively establishes the following

findings. Firstly, that the victim met with an unnatural death. The cause of

death was ascertained as hemorrhage and shock due to decapitation of head.

Secondly, the nature of injuries, namely decapitation at C7 vertebrae and

dismemberment of the body of the deceased into several parts is consistent

with the premise that the injuries were caused by a deliberate and

intentional human intervention. Thirdly, the injuries and dismemberment

were caused by a sharp edged weapon. On these counts, this Court is of the

Vishal Parekar 77

 of 96

Cri.Appeal 502-2021.doc

opinion that the Post- Mortem evidence stands proved in establishing the

cause of the death of the deceased.

108. We now proceed to deal with the findings of the Chemical Analyser

(CA) Reports of the articles seized from the spot of incident, Room No. 224.

Pursuant to the Appellant leading the police to Room No. 224, several blood

stained articles were seized. However, upon a careful perusal of the CA

reports, this Court finds that, while the blood stains found on the articles

have been found to be of human origin, the said reports are inconclusive

insofar as the identification of the blood samples are concerned. This Court

has, in the preceding parts, held that the recovery of articles from Room No.

224 to be proper within the meaning of Section 27 of the Evidence Act. On

the question of the evidentiary value of such inconclusive bloodstain

evidence, this Court placed reliance on Madhav (supra) that the inconclusive

nature of the serological reports does not enure to the benefit of the

Appellant. However, for the reasons stated and recorded herein above, this

Court is unable to attach substantial incriminating value to the Chemical

Analyser's Reports qua the Appellant. Therefore, even though the recovery

stands proved pursuant to the disclosure statement by the accused, it does

not constitute an independent link in the chain of circumstances,

particularly when the recoveries were effected from a room not within the

exclusive use of the Appellant and the same fails to unerringly attribute the

guilt of the murder of the deceased to the Appellant.

109. Consequently, while the medical and FSL reports conclusively prove

Vishal Parekar 78

 of 96

Cri.Appeal 502-2021.doc

the fact of homicidal death and the identity of the victim, it does not by itself

and by its very nature fix the authorship of the crime upon the Appellant.

The question, whether the Appellant is the person who committed the

murder of the deceased must be determined on the basis of the other links in

the chain of circumstantial evidence, to which this Court has already iterated

and has come to a conclusion that the evidence on record does not prove

beyond reasonable doubt that the Appellant is the person who can be held

liable for the same.

110. Therefore, this Court finds that the medical and FSL evidence does

not unerringly point towards the guilt of the Appellant, and it does not

constitute a link in the chain of circumstances for the purposes of the charge

under Section 302 of the IPC.

111. Apart from the above circumstances, it was also argued on behalf of

the prosecution by the Ld. APP, that the Appellant has not given any

plausible explanation in his statement under Section 313 of the Cr.P.C and

has also not led any defence evidence or examined himself on oath to

disprove the case of the prosecution. No doubt, it is the duty of the

prosecution to prove the case against the accused beyond reasonable doubt

and the accused has the right to remain silent. However, law provides the

accused an opportunity to explain the circumstances which appear against

him in the evidence, but if the accused remains silent or takes the defence of

denial, the court may, if it deems appropriate, draw such inferences against

the accused, as is permissible under law. In support of the contention, the

Vishal Parekar 79

 of 96

Cri.Appeal 502-2021.doc

prosecution has relied upon the following two judgments.

112. In the case of Phula Singh v/s The State of Himachal Pradesh

61

, it has

been observed thus:

“

8. The accused has a duty to furnish an explanation in

his statement under Section 313 Cr.P.C. regarding any

incriminating material that has been produced against

him. If the accused has been given the freedom to remain

silent during the investigation as well as before the court,

then the accused may choose to maintain silence or even

remain in complete denial when his statement under

Section 313 Cr.P.C. is being recorded. However, in such

an event, the court would be entitled to draw an

inference, including such adverse inference against the

accused as may be permissible in accordance with law.

(Vide: Ramnaresh & Ors. v. State of Chhattisgarh, AIR

2012 SC 1357; Munish Mubar v. State of Haryana, AIR

2013 SC 912; and Raj Kumar Singh alias Raju @ Batya v.

State of Rajasthan, AIR 2013 SC 3150).

”

113. A similar principle has also been laid in

Munish Mubar v/s The State

of Haryana

62

. It states thus:

“25. Moreso, it was the duty of the appellant to furnish

some explanation in his statement under Section 313

Cr.P.C., as under what circumstances his car had been

parked at the Delhi Airport and it remained there for 3

hours on the date of occurrence. More so, the call records

of his telephone make it evident that he was present in

the vicinity of the place of occurrence and under what

circumstances recovery of incriminating material had

been made on his voluntary disclosure statement. Merely

making a bald statement that he was innocent and

recoveries had been planted and the call records were

false and fabricated documents, is not enough as none of

the said allegations made by the appellant could be

established.

114. These judgments make it clear that, the Appellant upon being given

61AIR 2014 Supreme Court 1256

62AIR 2013 Supreme Court 912

Vishal Parekar 80

 of 96

Cri.Appeal 502-2021.doc

an opportunity to defend himself, if chooses to simply deny them or term

them false without adducing any evidence to prove the same, is inadequate

to write off the guilt of the accused. In the present case, the Appellant has

blatantly denied the circumstances put forth by the prosecution and also

stated that he was falsely implicated. Additionally, the Appellant chose not

to examine any witness or lead any evidence on record to establish the same.

The statement given by the accused under 313 Cr.P.C., fails to adequately

deny the allegations put forth by the prosecution. It also does not bring to

light any alternative hypothesis to establish the case of the defence.

115. At this stage, it is pertinent to take note of certain answers furnished

by the Appellant in his examination under Section 313 Cr.P.C. The Appellant

has chosen to deny

the circumstances in totality, even those, which this

Court has upon appreciation of the evidence on record, found to have been

conclusively established. Some of the relevant questions and answers are

reproduced herein below to elucidate the same:

“Q.3: It has further come in their evidence that at about

9.40 to 9.45 p.m. you came there in one auto rickshaw,

got down with a black coloured polythene bag on your

back. What have you to say ?

Ans: It is false.

Q.12: It has further come in the evidence of P.W. 2 and

P.W. 6 that you then went near the staircase of talao and

with the help of a small boat, threw the said black

coloured polythene bag in the water of said talao. What

have you to say ?

Ans: It is false.

Q. 48: It has further in his evidence that you were found

in possession of two mobile phones, one black coloured

Vishal Parekar 81

 of 96

Cri.Appeal 502-2021.doc

Samsung mobile alongwith SIM card and other white

Micromax mobile alongwith SIM card. What have you to

say ?

Ans: It is false.”

116. The aforesaid answers demonstrate that the Appellant has offered a

bare and blanket denial even with respect to circumstances which stand

proved by cogent and reliable evidence. While such denial cannot by itself

establish guilt, it is a relevant circumstance which the Court is entitled to

take into consideration while appreciating the evidence on record.

Therefore, in view of the above-mentioned judgments, this Court deems it

appropriate to draw an adverse inference against the Appellant as far as the

disposal of the body of the deceased is concerned, after a close scrutiny of all

the evidence on record.

117. Lastly, it will also be pertinent to mention here, that in a case of

circumstantial evidence, such as this one, even if the motive is attributed to

the Appellant and is accepted by the Court, it cannot stand as the sole

ground for conviction, given that the entire chain of circumstances is

otherwise held to be incomplete. In this regard, reference may be made to

the decision of the Hon'ble Supreme Court in Subhash Aggarwal v/s The

State NCT of Delhi

63

:

“19. Reliance was placed on State of U.P. v. Kishanpal6

wherein it was held that motive is something which is

primarily known to the accused themselves and it is not

possible for the prosecution to always explain what

prompted or excited them to commit a particular crime.

Motive is a very important link in the circumstances

632025 SCCOnLine SC 808

Vishal Parekar 82

 of 96

Cri.Appeal 502-2021.doc

which could prove the guilt of the accused, and it loses its

importance only when there is direct evidence of

eyewitnesses, which is convincing and conclusive as to

the guilt of the accused. However, it was also noticed that

even if there may be a very strong motive for the accused

to commit a particular crime, it does not lead to a

conviction by itself, if the eyewitnesses are not

convincing or the chain of circumstances is not complete.

20. The declaration in the cited decisions and the

decisions relied on therein, is to the effect that if the case

is built solely upon circumstantial evidence, absence of

motive will be a factor that weighs in favour of the

accused. Just as a strong motive does not by itself result

in a conviction, the absence of motive on that sole ground

cannot result in an acquittal. When the eyewitnesses are

not convincing, a strong motive cannot by itself result in

conviction, likewise when the circumstances are very

convincing and provide an unbroken chain leading only

to the conclusion of guilt of the accused and not to any

other hypothesis; the total absence of a motive will be of

no consequence.”

118. Further, the Ld. Counsel for the Appellant has also relied on

Murli v/s

The State of Rajasthan

64

, Madaiah v/s State by Yelandur Police

65

and

Rohidas Manik Kasrale v/s The State of Maharashtra

66

. Through these

judgments, it has been contended that, in case of murder, if a confession is

made by the accused to the police, then such an explanation regarding the

motive or provocation must be taken into consideration for reduction of

sentence or establish self-defense. We do not find these judgments to be

applicable in the facts of the present case.

119. Having considered the entire evidence on record and overall

conspectus of the matter, we are of the opinion that the present case rests

64 1995 SUPP (1) SCC 39

65 1991 SCC OnLine Kar 572

66 2011 SCC OnLine Bom 1587

Vishal Parekar 83

 of 96

Cri.Appeal 502-2021.doc

entirely on circumstantial evidence, since there are no eyewitnesses or direct

evidence to the actual commission of the offence of murder. As noted above,

it is well settled that in such cases, the chain of circumstances must be

complete and cogent and must unerringly point towards the guilt of the

accused and exclude every other reasonable hypothesis. Additionally, as

affirmed by the Hon’ble Apex Court in Anand Jakkappa Pujari (supra), the

prosecution has to prove its case beyond reasonable doubt and a case that

‘may be true’ is not sufficient, rather it ‘must be true’ in order to exclude

every other hypothesis. This Court is of the view that the prosecution has

proved itself inadequate in meeting the said standards in the present case as

far as the homicidal death of the deceased qua the Appellant is concerned.

120. The law places a stringent burden upon the prosecution in cases

founded on circumstantial evidence. It is incumbent upon the prosecution to

establish each incriminating circumstance beyond reasonable doubt and to

connect such circumstances so as to form a complete, continuous and

unbroken chain. Unless every link in the chain is satisfactorily proved, the

Court cannot draw an inference of guilt. A missing or doubtful link creates a

reasonable doubt in the prosecution case, rendering it unsafe to record a

conviction and that failure to prove even a single circumstance cogently can

cause a snap in the chain of circumstances. This principle has been laid

down in Darshan Singh v/s The State of Punjab

67

. The relevant paragraph is

stated as below:

67[2024] 1 S.C.R. 248

Vishal Parekar 84

 of 96

Cri.Appeal 502-2021.doc

“37. Seen in this background, we need not go further and

consider the evidence qua other circumstances sought to be

proved by the prosecution since the failure to prove a single

circumstance cogently can cause a snap in the chain of

circumstances. There cannot be a gap in the chain of

circumstances. When the conviction is to be based on

circumstantial evidence solely, then there should not be any

snap in the chain of circumstances. If there is a snap in the

chain, the accused is entitled to benefit of doubt. If some of the

circumstances in the chain can be explained by any other

reasonable hypothesis, then also the accused is entitled to the

benefit of doubt. [See: Bhimsingh Vs. State of Uttarakhand,

(2015) 4 SCC 281.]”

121. The prosecution has failed to establish, beyond reasonable doubt,

several material incriminating circumstances which were intended to

constitute the essential links in the chain of circumstantial evidence against

the Appellant for the offence of murder. The circumstances of the Appellant

and the deceased being last seen together, the recovery of the weapon of

offence, namely the knife, and the recovery of blood-stained articles from

Room No. 224 have not been satisfactorily proved to point towards the guilt

of the Appellant with regards to the commission of murder. Significantly,

although blood stains were detected on the articles recovered from the said

room, the same does not constitute an incriminating circumstance against

the Appellant, in the peculiar facts of this case. Therefore, these

circumstances do not lend assurance to the prosecution case. This Court is

consequently unable to hold that the evidence on record forms a complete

and unbroken chain, leading only to the hypothesis of the Appellant's guilt.

On the contrary, the Call Detail Record (CDR) evidence of the deceased,

produced by the prosecution itself discloses the presence of an unidentified

Vishal Parekar 85

 of 96

Cri.Appeal 502-2021.doc

third person at the relevant location during the material time on the evening

of the incident. The possibility of intervention by a third person, therefore,

remains a plausible alternative hypothesis which cannot be excluded. In a

case resting solely on circumstantial evidence, such a lacuna assumes

considerable significance.

122. On a cumulative consideration of the aforementioned circumstances,

the case of the prosecution raises a grave suspicion on the Appellant, with

respect to the murder of the deceased. However, it has not been shown to be

‘must be true’ to the exclusion of every other reasonable hypothesis. The

chain of circumstances is incomplete and the link is snapped and hence the

benefit of doubt must accordingly enure to the Appellant. It is a settled

principle of criminal jurisprudence that suspicion, however grave, cannot

take the place of legal proof. In the absence of unimpeachable evidence

establishing the involvement of the accused in the commission of murder,

this Court deems it fit to extend the benefit of doubt to the accused insofar

as the offence punishable under Section 302 of the IPC is concerned.

Accordingly, the Appellant stands acquitted of the charge under Section 302

of the IPC.

123. However, the evidence on record unequivocally establishes that

subsequent to the occurrence of the offence of murder, the Appellant

undertook acts to conceal and dispose material evidence connected with the

commission of the offence and the prosecution has been able to prove and

establish each and every link so far as the destruction of the evidence by the

Vishal Parekar 86

 of 96

Cri.Appeal 502-2021.doc

Appellant is concerned.

124. In such peculiar circumstances, it is beneficial to take note of the

observations pertaining to Section 201 of the IPC, as stated by this Hon’ble

Court in Satish Purshottam Girhe v/s The State of Maharashtra And

Others

68

:

“18. The Hon’ble Apex Court further observes that having

regard to the language used, mere suspicion would not be

sufficient. There must be available on record cogent

evidence that the accused has caused the evidence to

disappear in order to screen another known or unknown.

The fore-most necessity being that the accused must have

the knowledge or have reason to believe that such an

offence has been committed. This observation finds

support in the earlier decision Palvinder Kaur v/s State of

Punjab (AIR 1952 SC 354) and in Roshan Lal v/s State of

Punjab (AIR 1965 SC 1413) wherein the observation are

as follows:

“(12) Section 201 is somewhat clumsily drafted, but we

think that the expression knowing or having reason to

believe in the first paragraph and the expression ‘knows

or believes’ in the second paragraph are used in the same

sense. Take the case of an accused who has reason to

believe than an offence has been committed. If the other

conditions of the first paragraph are satisfied, he is guilty

of an offence under S.201. If it be supposed that the word

‘believes’ was used in a sense different from the

expression ‘having reason to believe’, it would be

necessary for the purpose of inflicting punishment upon

the accused to prove that he ‘believes’ in addition to

‘having reason to believe’. We cannot impute to the

legislature an intention that an accused who is found

guilty of the offence under the first paragraph would

escape punishment under the succeeding paragraphs

unless some additional fact or state of mind is proved.”

125. Before adverting to Section 201 of IPC, it will be advantageous

to reproduce Section 201 for quick reference

Section 201. Causing disappearance of evidence of offence,

68Cr. Revision Application No. 154 of 2024

Vishal Parekar 87 of 96

Cri.Appeal 502-2021.doc

or giving false information, to screen offender

Whoever, knowing or having reason to believe that an

offence has been committed, causes any evidence of the

commission of that offence to disappear, with the

intention of screening the offender from legal

punishment, or with that intention gives any information

respecting the offence which he knows or believes to be

false,

if a capital offence.—shall, if the offence which he knows

or believes to have been committed is punishable with

death be punished with imprisonment of either

description for a term which may extend to seven years,

and shall also be liable to fine;

if punishable with imprisonment for life.—and if the

offence is punishable with

1

[imprisonment for life], or

with imprisonment which may extend to ten years, shall

be punished with imprisonment of either description for a

term which may extend to three years, and shall also be

liable to fine;

if punishable with less than ten years imprisonment.—

and if the offence is punishable with imprisonment for

any term not extending to ten years, shall be punished

with imprisonment of the description provided for the

offence, for a term which may extend to one-fourth part

of the longest term of the imprisonment provided for the

offence, or with fine, or with both.

126. On the charge of Section 201 IPC, it will also be advantageous to take

into consideration the essential requirements to bring home the offence

under the said charge. This Court finds it necessary to refer to the Hon’ble

Supreme Court’s verdict in

Palvinder Kaur v/s The State of Punjab

69

:

“....In order to establish the charge under Section 201, Indian

Penal Code. it is essential to prove that an offence has been

committed-mere suspicion that it has been committed is not

sufficient, that the accused knew or had reason to believe that

such offence had been committed- and with the requisite-

knowledge and with the intent to screen the offender from legal

punishment causes the evidence thereof to disappear or gives

false information respecting such offences knowing or having

reason to believe the same to be false.”

69 1952 AIR 354

Vishal Parekar 88

 of 96

Cri.Appeal 502-2021.doc

127. In the present case, for bringing home a charge under Section 201 of

the Indian Penal Code, the prosecution is required to establish: (i) that an

offence has in fact been committed; and (ii) that the accused knew or had

reason to believe that such offence had been committed, and thereafter

caused the disappearance of evidence or furnished false information with

the intention of screening the offender from legal punishment. Upon the

appreciation of the evidence on record, this Court is satisfied that the

prosecution has conclusively established that the death of the deceased was

homicidal in nature. The medical and other attendant circumstances leave

no manner of doubt that an offence of murder had been committed. The

testimony of the eye-witnesses i.e. P.W. 2 and P.W. 6, further establishes

that the Appellant was seen dumping the torso of the deceased into Charai

talao. Such conduct is not a mere neutral circumstance; but a highly

incriminating circumstance demonstrating that the Appellant possessed

knowledge and had reason to believe that a serious offence had been

committed. The circumstances proved on record reasonably lead to the

inference that the Appellant possessed knowledge regarding the commission

of the homicidal act and acted in a manner intended to conceal the offence

and screen the person responsible for the murder from the consequences of

law. Accordingly, the evidence on record, is sufficient to prove beyond

reasonable doubt that the Appellant, having knowledge or reason to believe

that the offence of murder had been committed, participated in the

concealment of the offence by disposing off the torso with the intention of

Vishal Parekar 89

 of 96

Cri.Appeal 502-2021.doc

screening the offender, thereby attracting the provisions of Section 201 IPC.

128. The question then arises, whether the conviction under Section 201 of

the IPC can be sustained even when a conviction under Section 302 of the

IPC has not been recorded. The reason why this present case gains further

peculiarity is because there is only one accused (the Appellant) who is

charged for offences under both, Section 302 and Section 201 of the IPC, in

relation to the said offence. It is under consideration before us, the question,

whether the Appellant can be selectively convicted under Section 201 of the

IPC while disbelieving the circumstantial evidence as led by the prosecution,

thereby acquitting him for the offence under Section 302 of the IPC.

129. In order to adequately answer this pertinent question, a profitable

reference can be made to a judgment of the Apex Court in the case of State

of Karnataka v/s Madesha and Ors.

70

. The relevant para is stated as follows:

“9. It is to be noted that there can be no dispute that Sec.201

would have application even if the main offence is not established

in view of what has been stated in V.L. Tresa’s

(supra)...…”

130. This position of law is clarified, as is observed in the above-mentioned

judgment, that the lack of establishment of the primary offence cannot

undermine the applicability of Section 201 of the IPC.

131. The issue of applicability of Section 201 of the IPC in the given

circumstance that the main offence is not proved by the prosecution, has

70 (2007) 7 SCC 35

Vishal Parekar 90

 of 96

Cri.Appeal 502-2021.doc

been elaborately addressed in Ram Saran Mahto v/s The State of Bihar

71

.

The relevant portions are as follows:

“It is not necessary that the offender himself should have been

found guilty of the main offence for the purpose of convicting

him of offence under Section 201. Nor is it absolutely necessary

that somebody else should have been found guilty of the main

offence. Nonetheless, it is imperative that prosecution should

have established two premises. First is that an offence has been

committed and second is that the accused knew about it or he

had reasons to believe the commission of that offence. Then

and then alone the prosecution can succeed, provided the

remaining postulates of the offence are also established.”

……..

“It is well to remind that the Bench gave a note of caution that

the court should safeguard itself against the danger of basing its

conclusion on suspicions however strong they may be. In

Kalawati and Anr. v. The State of Himachal Pradesh, [1953]

SCR 546 a Constitution Bench of this Court has, no doubt,

convicted an accused under Section 201 IPC even though he

was acquitted of the offence under Section 302. But the said

course was adopted by this Court after entering the finding that

another accused had committed the murder and the appellant

destroyed the evidence of it with full knowledge thereof. In a

later decision in Nathu and Anr. v. State of Uttar Pradesh,

[1979] 3 SCC 574 this Court has repeated the caution in the

following words:

"Before a conviction under Section 201 can be recorded, it

must be shown to the satisfaction of the court that the accused

knew or had reason to believe that an offence had been

committed and having got this knowledge, tried to screen the

offender by disposing of the dead body."

In this context a reference to a more recent decision of this

Court would be apposite. The following observations of the

Bench in Hanuman and Ors. v. State of Rajasthan, [l 994]

Supple. 2 SCC 39 are relevant:

"The mere fact that the deceased allegedly died an unnatural

death would not be sufficient to bring home a charge under

Section 201 IPC, unless the prosecution was further able to

establish that the accused persons knew or had reason to

believe that an offence had been committed, causing the

evidence of the commission of the offence to disappear."

132. This Court draws significant parallels between the case of

V.L. Tresa

71 SCR [1999] SUPP 2

Vishal Parekar 91 of 96

Cri.Appeal 502-2021.doc

v/s The State of Kerala

72

and the present case, both on facts as well as the

points of law under consideration. A perusal of the relevant paragraph

reproduced here, makes it clear:

“18. In the contextual facts, the situation however, is slightly

different since the wife alone could explain the death of the

husband in the manner as noted above. The crowbar was not

available for few days and it is a subsequent discovery and on a

further search, the crowbar contained human blood which has

been proved to be that of the deceased. Both the Sessions Judge

and the High Court have categorically disbelieved the evidence

of the wife and it is in this regard, it cannot but be said that the

falsity of information given by the accused cannot but warrant a

punishment under 201 since information regarding the incident

was available only with the accused and there was a deliberate

attempt to screen the offender from legal punishment by way of

providing false information regarding the offence.”

133. The facts of the present case bear a resemblance to the facts which fell

for consideration in

V.L. Tresa v/s State of Kerala (supra). In the above

mentioned case, it was established by the prosecution that the death of the

deceased was homicidal in nature. However, the evidence on record fell

short of proving, beyond reasonable doubt, that it was the accused, who had

committed the act of causing the fatal injury. Consequently, the chain of

circumstances was held insufficient to sustain a conviction for the offence

punishable under Section 302 of the IPC. Nevertheless, if the fatal injury

was inflicted by somebody else, not being the accused, the accused was liable

to possess special knowledge of the same as she was the only person in the

house except their infant child who was asleep at the time of incident. It was

also taken into consideration that the accused, told others, that the deceased

72(2001) 3 SCC 549

Vishal Parekar 92

 of 96

Cri.Appeal 502-2021.doc

was trying to commit suicide. The weapon (crowbar) was not found for

several days and was later recovered with human blood which was later

proved to be that of the deceased. Therefore, the court held that these

circumstances warranted a punishment under Section 201 of the IPC as the

information was only available with the accused and there was a deliberate

attempt to screen the offender from legal punishment by providing false

information about the offence. Accordingly, the accused was held guilty

under Section 201 of the IPC. The factual matrix of the present case

demonstrates that the accused possessed knowledge of the death of the

deceased and the circumstances in which the deceased met with a homicidal

death. The prosecution has conclusively established, and this Court has

already held, that the accused was the very person seen carrying and then

disposing of the black-coloured plastic bag containing the torso of the

deceased. Once the identity of the accused as the person disposing of the

deceased's torso stands established, it is wholly untenable for him to plead

ignorance as to the contents of the bag. In the ordinary course of human

conduct, it can safely be inferred that a person who knowingly carries and

disposes of a bag containing the dismembered torso of a deceased individual

is fully aware of its contents and the incriminating nature thereof. The

conduct of the accused, viewed in conjunction with the evidence on record,

further reveals that he deliberately acted in a calculated manner to conceal

material evidence relating to the commission of the offence and thereby

attempted to screen the person responsible for the murder from legal

Vishal Parekar 93

 of 96

Cri.Appeal 502-2021.doc

punishment. Such conduct squarely attracts the ingredients of Section 201

of the Indian Penal Code. The Appellant upon being asked by P.W. 2 and

P.W. 6 about the contents of the bag, persistently claimed it to be

havan

articles that need to be put into the Charai Talao, which was obviously for

causing destruction of the evidence. Therefore, his conduct was

incriminating as he continued to provide false information regarding the

offence with the intention to screen the offender and for destruction of

evidence.

134. However, upon the analysis of the evidence in its entirety, it cannot be

ascertained, for sure, if the accused was the person who caused the death of

the deceased. The ratio laid down by the above mentioned case squarely

applies to the present case. The Supreme Court categorically held that even

where the prosecution fails to establish that the accused himself committed

the murder, the deliberate furnishing of false information concerning an

offence, coupled with conduct intended to shield the offender from legal

punishment, would attract the ingredients of Section 201 of the IPC. The

gravamen of the offence under Section 201 IPC, is not the identity of the

offender but the knowledge of the accused or reason to believe that an

offence has been committed and his intentional act of causing the

disappearance of evidence or giving false information with the object of

screening the offender.

135. Similarly, in the present case, while this Court is not persuaded that

the prosecution has proved beyond reasonable doubt that the accused-

Vishal Parekar 94

 of 96

Cri.Appeal 502-2021.doc

appellant was the perpetrator of the homicidal death, so as to uphold

conviction under Section 302 of the IPC, however the evidence on record

unequivocally establishes that the accused was fully aware and had reason to

believe, as to who had caused the death of the deceased. Instead of

disclosing the true facts, the accused consciously furnished false information

and adopted such a conduct intended to conceal the offence and protect the

offender from the consequences of law. This conduct is sufficient to attract

the guilt under Section 201 of the IPC.

136. Therefore, we conclude by stating that the acquittal under Section 302

of the IPC does not

ipso facto result in acquittal under Section 201 of the

IPC. Once it is proved that an offence was committed and the accused

knowingly caused disappearance of evidence with the intention of screening

the offender, conviction under Section 201 of the IPC can be sustained

irrespective of the failure to prove the charge under Section 302 of the IPC.

Merely because the prosecution has failed to prove beyond reasonable doubt

that the Appellant himself committed the murder, does not automatically

exonerate him from criminal liability under Section 201 of the IPC.

137. Thus, taking into consideration the entire evidence on record, we are

of the considered opinion that the prosecution has failed to prove the

offence under Section 302 of the IPC. However, we hold that the prosecution

has proved the offence under Section 201 of the IPC and accordingly we

confirm the conviction of the Appellant under Section 201 of the IPC.

138. The conviction under Section 201 of the IPC and the sentence for a

Vishal Parekar 95

 of 96

Cri.Appeal 502-2021.doc

period of two years is upheld as awarded by the Trial Court, in the absence

of any cross appeal by the State.

139. Accordingly, the Appeal is partly allowed.

140. The Ld. Counsel for the Appellant has informed this Court that the

Appellant has already undergone and served the sentence for a period of

almost 13 years and therefore the Appellant, having undergone the

punishment for the offence under section 201 of the IPC, for which he is

convicted, shall be released forthwith unless he is required in any other case.

141. The Appellant shall within a period of one week from the date of the

order execute P R Bond in the sum of Rs. 25000/- under section 481 of the

Bhartiya Nagrik Suraksha Sanhita, 2023 ( corresponding to Section 437A of

the Cr.PC) for his appearance, in the event an appeal is preferred against

acquittal for the offence under section 302 of the Indian Penal Code.

142. Thus, the Appeal is disposed of in above terms and all other pending

applications also stand disposed of.

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

Vishal Parekar 96 of 96