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                                                                           [REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 467/2010

Kishore Bhadke        ……….Appellant

Vs.

State of Maharashtra ……..Respondent

WITH

Criminal Appeal  No.854/2010 & Criminal Appeal No.11/2015

J U D G M E N T

A.M.KHANWILKAR,J.

These  appeals  are  filed  by  the  original  accused  No.1

(Crl.A.No.854/2010),  accused  No.3  (Crl.A.No.467/2010)  and

accused  No.6  (Crl.A.No.11/2015).  They  were  tried  for  offence

punishable under Sections 364, 302, 201 read with 34/120-B of

Indian Penal Code (IPC) along with four other accused.  

2. The prosecution case is that, on 10th May 2003, Shriniwas son

of  Wasudeorao  Tonpe  lodged  a  report  (Exh.154)  that  his  elder

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brother Raman has gone missing since morning of 8th May 2003.

On the basis of that report, a missing Register entry was effected by

the Police Station, Narkhed, District Nagpur (Maharashtra). On the

next day i.e. 11th May 2003 another brother of the missing person,

Madan son of Wasudeorao Tonpe lodged a second report (Exh.68)

suspecting that accused No.1- Nalini, her husband Vijay Dhpake,

accused  No.2-Rinku,  and  accused  No.7-  Suresh  Chandra  might

have abducted his brother Raman in order to commit his murder.

On the  basis  of  this  report,  Police  Station  registered  an  offence

punishable under Section 364 read with Section 34 of IPC against

the  named  persons.  Police  Inspector  R.B.Bansod  (PW-17)  was

entrusted with the investigation of the case. On the same day, he

called accused No.1-Nalini and Accused No.2- Rinku to the Police

Station for interrogation. As nothing came out of that interrogation,

the said accused persons were allowed to go back. However, on the

same evening,  he arrested both Nalini  and Rinku and thereafter

accused No.3 – Kishor, accused No.4 – Tarachand in the mid night

of 12th May 2003. It is stated that accused No.2- Rinku and accused

No.3- Kishor, during interrogation confessed that on 8th May 2003

between  1.00  p.m.to  1.30  p.m.  they  along  with  accused

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No.4-Tarachand and accused No.6-Satish with the help of accused

No.1-Nalini  and  accused  No.5-Arun  had  committed  murder  of

Raman by strangulation in the cattle  shed of one Nitin Rai.  The

dead body of Raman was thereafter taken away in a gunny bag and

then  thrown  in  a  valley  near  “Deona  Darshan  Point”.  Before

throwing the dead body, they had removed the clothes and wrist

watch from the dead body. They then burnt the gunny bag as well

as  the  rope  used  for  strangulation  including  some  documents

possessed by the deceased by pouring petrol at some other place at

a distance of 10 km. before Deona Darshan Point. They also agreed

to show the spot where the gunny bag, clothes and documents were

burnt and the place where the dead body was disposed. Pursuant to

the said revelation, the police party along with accused No.2-Rinku

and accused No.3-Kishor proceeded to the locations disclosed by

the  said  accused.  Firstly,  they  showed the  place  of  burning  the

articles from where the remains in the form of ash and a bunch of

keys was seized. Thereafter,  they proceeded to the other location

where  the  dead  body  was  found  lying  in  the  valley  near  Deona

Darshan Point. The Investigating Officer R.B.Bansod completed the

necessary formalities of  preparing memorandum of  statements of

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the  said  accused,  Panchnamas,  seizure  panchnamas/memos,

Inquest panchnama etc. of the dead body. The dead body and the

recovered articles were then brought to Narkhed. The dead body

was identified by the complainant Madan Tonpe (PW-1) at the spot

i.e. Deona Darshan Point itself.  The dead body was then sent to

Primary Health Centre, Narkhed for post mortem examination. After

the post mortem was conducted on the dead body, it was handed

over to the family members/relatives for funeral. The mother of the

deceased, Smt. Shantabai (PW 15) also identified the dead body of

her son when it was brought to their house. The offence was then

converted and registered under Section 364, 302 and 201 read with

Section  34/120-B  of  the  IPC.  Thereafter  remaining  accused  i.e.

accused No.5- Arun, accused No.6-Satish and accused No.7-Suresh

Chandra were arrested.

3. The  Investigating  Officer  R.B.Bansod  carried  out  further

investigation.  He recorded statements of the witnesses, seized the

vehicle/Tata  Sumo  used  in  the  commission  of  offence  for

transporting the dead body, recovered the wrist watch and gold ring

at the instance of accused No.3 - Kishor and accused No.6 - Satish

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respectively.   He prepared a panchnama of the place of incident in

the cattle  shed of  Nitin Rai,   seized  clothes of   accused No.2 -

Rinku,  accused  No.3-Kishore  and  accused  No.6-Satish  and  of

deceased Raman. He then verified the bunch of keys recovered from

the spot disclosed by the accused by applying it on the cupboard in

the house of deceased Raman. He also arranged for identification

parade of the wrist watch and gold ring. He seized some currency at

the  instance  of  accused  No.6-Satish.  The  muddemal/property,

seized articles, viscera etc. was then sent to the Chemical Analyser

for  analysis.  After  the  investigation was  completed,  police  report

was filed in the Court of  J.M.F.C.,  Narkhed, who committed the

case for trial of the accused before the Sessions Court at Nagpur.

The trial  proceeded before the 3rd Addl.  Sessions Judge, Nagpur,

who framed charges for offence punishable under Section 364, 302,

201 read with Section 34 in the alternative 120-B of IPC.  All the

accused  pleaded  not  guilty  and  to  have  been  falsely  implicated.

They claimed to be tried.  

4. The prosecution examined in all 18 witnesses. On considering

the oral and documentary evidence adduced by the prosecution, the

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Trial Court held that the accused persons conspired to kill Raman.

In  furtherance  of  that  conspiracy  on  8th May  2003,  Raman was

abducted by the accused persons and on the same day in the noon

he was killed in the cattle shed of Nitin Rai. Thereafter with a view

to dispose of the dead body of Raman and to destroy the evidence of

murder, they carried the dead body of Raman and threw it in the

valley near Pachmadi (in the State of Madhya Pradesh) at the spot

later on disclosed to the Police by the concerned accused. Similarly,

the articles such as gunny bag used for carrying the dead body and

rope used for strangulation, clothes worn by deceased Raman at the

relevant time as also the documents in his possession were burnt at

a different spot which was disclosed to the Police by the concerned

accused.  The  Trial  Court  held  that  the  death  of  Raman  was

homicidal death. Accordingly, the Trial Court convicted the accused

for their involvement in the concerned offence. The operative part of

the Trial Court judgment reads thus:  

“1. Accused No. 1 Nalini W/o Vijay Dhapke is hereby convicted  vide  section  235  (2)  Cr.P.  Code  for  the offence punishable under Section 302 read with 120-B of I.P.Code to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/- (Rupees two thousand only)  in default  of  payment of  fine amount to suffer further rigorous imprisonment for four months.

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2. Accused  No.2  Rinku  alias  Anand  S/o  Suresh Chandra  Roy  is  hereby  convicted  vide  section 235(2)  of  Cr.P.  Code  for  the  offence  punishable under section 302 read with 120-B of I.P.Code to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/- (Rupees two thousand only) in default of payment of fine amount to suffer further rigorous imprisonment for four months.

3. Accused  no.  3  Kishor  is  hereby  convicted  vide Section  235(2)  of  Cr.P.  Code  for  the  offence punishable under Section 302 read with 120-B of LP. Code to undergo rigorous imprisonment for life and  to  pay  a  fine  of  Rs.  2,000/-  (Rupees  two thousand  only)  in  default  of  payment  of  fine amount to suffer further rigorous imprisonment for four months.

4. Accused No.4 Tarachand is hereby convicted vide Section  235(2)  of  Cr.P.  Code  for  the  offence punishable under Section 302 read with 120-B of IP.Code to undergo rigorous imprisonment for life and  to  pay  a  fine  of  Rs.  2,000/-  (Rupees  two thousand  only)  in  default  of  payment  of  fine amount to suffer further rigorous imprisonment for four months.

5. Accused  No.  6  Satish  is  hereby  convicted  vide Section  235(2)  of  Cr.P.Code  for  the  offence punishable under Section 302 read with 120-B of I.P.Code to undergo rigorous imprisonment for life and  to  pay  a  fine  of  Rs.  2,000/-  (Rupees  two thousand  only)  in  default  of  payment  of  fine amount to suffer further rigorous imprisonment for four months.

6. Accused Nos. 1 to 4 and 6 namely Nalini, Rinku, Kishor, Tarachand and Satish are hereby convicted vide  Section  235(2)  of  Cr.P.Code  for  the  offence punishable under Section 364 read with 120-B of IP.Code to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- (Rupees two thousand only) each in default of payment of fine

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amount to suffer further rigorous imprisonment for two months.

7. Accused Nos. 1 to 4 and 6 namely Nalini, Rinku, Kishor, Tarachand and Satish are hereby convicted vide  Section  235(2)  of  Cr.P.Code  for  the  offence punishable  under  rigorous  imprisonment  for  two years and to pay a fine of Rs. 1,000/- (Rupees one thousand only) each in default of payment of fine amount to suffer further rigorous imprisonment for two months.

8. The above sentence of Accused Nos. 1 to 4 and 6 namely  Nalini,  Rinku,  Kishor,  Tarachand  and Satish shall run concurrently

9. Accused  No.  7  Suresh  Chandra  Roy  is  hereby convicted vide Section 235(2) of Cr.P.Code for the offence punishable under Section 201 of I.P.Code to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- (Rupees one thousand only) in default of payment of fine amount to suffer simple imprisonment for two months.  

10. Accused No. 7 Suresh Chandra Roy is directed to surrender his bail bond forthwith.

11. Accused No. 7 Suresh Chandra Roy is acquitted vide  Section  235  of  Cr.P.Code  for  the  offence punishable  under  Section  302,  364,  read  with 120-B of LP. Code.

12. Accused  No.  5  Arun Nasre  is  acquitted  under Section 235 of Cr.P.Code for the offence punishable under sections 302, 364, 201 read with 120-B of I.P.Code and his bail bonds shall stand cancelled.

13. The period of undergone period by the accused by  set  off  against  the  above  sentence  of imprisonment under Section 428 of Cr.P.Code.

14. The valuable  muddemal  property  namely  wrist watch, golden ring and cash amount of Rs. 4,600/- (Rupees  four  thousand  six  hundred  only)  be returned to the complainant Madan S.o Wasudeo Tonpe R/0 Narkhed after the appeal period is over.

15. The  remaining  muddemal  property  being worthless  be  destroyed after  the  appeal  period is over.”

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5. Aggrieved by the aforementioned decision, accused Nos.1 to 4,

6 and 7 filed separate appeals before the High Court being Criminal

Appeal Nos.367, 435, 444 and 452 all  of  2005.  The High Court

dismissed  Appeal  Nos.367,  435  and  444  of  2005  filed  by  the

concerned accused (Nos.2,  6,  and 7;  1;  and 3 respectively);  and

allowed Appeal No.452 of 2005 filed by accused No.4, by a common

judgment  dated  15th September  2008.  After  re-appreciating  the

entire  evidence  adduced  by  the  Prosecution,  the  High  Court  in

paragraph  44  of  the  impugned  judgment  summed  up  the

circumstances  which  led  to  the  finding  of  guilt  against  the

concerned accused. The same reads thus:   

“44. It  was submitted by the learned counsel for the appellants  that  the  motive  is  not  established  and everything is in the air.  We are, however, satisfied that the  prosecution  has  proved  that  Raman  wanted  to purchase the land of A-1 Nalini and her husband Vijay; that he entered into transaction of purchasing the land from them; that two agreements of sale were executed by Nalini  and her husband on consideration paid by Raman  to  them;  that  on  8.5.2003  A-1  Nalini  called Raman  to  her  house  by  giving  him  a  ring;  that accordingly  Raman  went  to  her  house  after withdrawing  Rs.  58,000/-  from  the  Bank  of Maharashtra,  Branch Narkhed; that  at that  time A-3 Kishore Bhadke, A-4 Tarachand Vaidya and A-6 Satish Bansod  were  also  at  the  house  of  A-1  Nalini;  that thereafter Raman was not seen alive; that Tata Sumo of Avinash Kalbande was engaged by A-2 Rinku Roy for

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taking  goods  from  the  cattle  shed  of  Nitin  Rai  to Parasiya; that Sanjay Kalkar was the driver of the said vehicle; that gunny bags were loaded in Tata Sumo in the cattle shed of Nitin Roy; that A-3 Kishore Bhadke, A-6 Satish Bansod and A-7 Suresh Roy travelled by the said Sumo from Narkhed to Parasiya; that A-2 Rinku Roy  followed  Tata  Sumo  on  motorcycle;  that  in  the midnight  the  gunny  bags  were  unloaded  from  Tata Sumo at the house of A-7 Suresh Roy; that on the next day morning Sanjay Kalkar brought Tata Sumo to the house  of  owner  thereof;  that  on  10.5.2003  Sanjay Kalkar  again  came  to  take  back  Tata  Sumo  and thereafter he never turned up.”

After analyzing the other circumstances and contentions, the High

Court concluded that the finding reached by the Trial Court that

the dead body discovered from the valley near Deona Darshan Point

was that of deceased Raman and that he met with homicidal death,

was unassailable. The High Court also considered the circumstance

of discovery of wrist watch at the instance of accused No.3, gold

ring  of  Raman  and  cash  of  Rs.4800/-  (48  notes  of  100

denomination)  seized  from  accused  No.6;  including  the  blood

stained earth seized from cattle shed of Nitin Rai on 16 th May 2003

under seizure memo (Exh.92) which as per the report of Chemical

Analyser (Exh.151) showed human blood. Human blood was also

found  on  the  pant  of  Accused  No.2  Rinku,  which  circumstance

remained  unexplained.  Similarly,  full  pant  and  shirt  of  accused

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No.3 Kishor which were seized on 15th May 2003 from his house

and on analysis by the Chemical Analyser it showed human blood,

which also remained unexplained. After taking over all view of the

matter,  the  High  Court  concluded  that  the  complete  chain  of

circumstances unequivocally point out towards the guilt of accused

No.1- Nalini, accused No.2 -Rinku, accused No.3- Kishore Bhadke,

and  accused  No.6-  Satish  Bansod,  excluding  any  hypothesis

consistent with their  innocence. Accordingly,  they were convicted

for offence punishable under Section 364/120-B, 302/120-B and

201/120-B of the IPC. The finding of guilt reached against these

accused by the Trial Court was once again reiterated by the High

Court.  

6. As regards accused No.4-Tarachand, in paragraph 74 of the

impugned judgment,  the High Court observed thus:  

“74.  On  close  scrutiny  of  the  evidence  we  find  that though there is evidence to show that A-4 Tarachand Vaidya  was  at  the  house  of  A-1  Nalini  on  8.5.2003 when Raman came to her house and he was also seen loading gunny bags in Tata Sumo, he did not travel by Tata Sumo from Narkhed to Parasiya thereafter.  From the evidence it seems that the role of A-4 Tarachand Vaidya is only to the extent of loading gunny bags in Tata Sumo from the cattle shed of Nitin Roy.  There is no evidence to show that he was aware of the murder of

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Raman.  Immediately after loading gunny bags in Tata Sumo,  he  left  the  place  and  did  not  travel  by  Tata Sumo  from  Narkhed  onwards.  From  these circumstances A-4 Tarachand Vaidya is entitled to get benefit of doubt. Accordingly we extend benefit of doubt to him and acquit him.”

7. While dealing with the case of accused No.7- Suresh, the High

Court in paragraph 75 of the impugned judgment observed thus:

“75. The role of A-7 Suresh Roy is only to the extent of helping  the  other  accused  persons  in  removing  the dead  body  of  Raman from Narkhed  to  Parasiya  and thereafter causing disappearance of the dead body and other evidence of the offence.  As such his conviction for the offence punishable under Section 201/120-B of IPC needs to be maintained.”

8. The High Court finally disposed of the appeals in the following

terms:

“(i) Appeal Nos. 367 of 2005, 435 of 2005 and 444 of 2005 are  dismissed.  Bail  bonds  of  original  accused No.7/Sureshchandra Jagannath Rai stand cancelled. He is directed to surrender within four weeks to serve out the sentence.

(ii) Appeal No. 452 of 2005 is allowed.  The conviction of Tarachand  s/o  Shalikram  Vaidya  for  the  offence punishable under Sections 364, 302 and 201 r/w 120-B of  IPC  is  set  aside  and  he  is  acquitted  of  the  said charges.  He be released forthwith if not required in any other offence.”

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9. Aggrieved by the aforementioned decision,  accused Nos.1,  3

and 6 have assailed the same by way of separate appeals before this

Court.  The  argument  was  led  by  Advocate  R.R.Deshpande  for

accused No.3. He submitted that the prosecution case hinges on

circumstantial  evidence.  If  the  chain  of  circumstances  is  not

complete  pointing  towards  the  guilt  of  the  accused,  it  would  be

unsafe  to  uphold  the  finding  of  guilt  though concurrent  by  two

courts below. He submits that the High Court has not analyzed the

circumstance about the nature of death of Raman as to whether it

was suicidal or homicidal death. He submits that circumstance held

against  accused No.3 of  recovery of  blood stained clothes  at  his

instance  is  questionable.  In  that,  the  prosecution  has  failed  to

establish the blood group much less that the blood stains pertained

to  the  blood  group  of  deceased  Raman.  He  submits  that  the

evidence regarding factum of motive produced by the prosecution is

very weak.  In any case, motive is  attributed to Nalini  (A1)  with

which accused No.3 has no concern. Therefore, that circumstance

cannot  be used against  him.  He has also  taken us through the

evidence  of  prosecution  witnesses  who  have  spoken  about  the

presence  of  accused  at  the  scene  of  offence,  relied  by  the

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prosecution to substantiate the circumstance of last seen together.

He submitted that the evidence of PW-11 and PW-12 is not reliable.

Their statements were recorded after a long gap and the reason for

such  delay  has  not  been  explained.  Further,  the  prosecution

witness  (PW 12)  examined  in  support  of  this  circumstance  is  a

chance witness. He was residing in another village. The prosecution

theory  about  homicidal  death  is  doubtful.  Even  the  evidence

regarding the manner in which the body of deceased Raman was

thrown  is  doubtful.  For,  no  lacerated  injury  was  found  by  the

Doctor while conducting post mortem. Only four injuries have been

noted which belies the prosecution theory that the body was thrown

in the valley from the height of around 600 ft. He submits that the

factual  position  mentioned  in  the  memorandum  of  disclosure

recorded  under  Section  27  of  the  Evidence  Act,  relied  by  the

prosecution qua accused No.3, is inadmissible and cannot be taken

into account. In absence thereof, there is no legal evidence about

discovery  of  dead  body  of  deceased  or  articles  belonging  to  the

deceased  ascribable  to  accused  No.3.  Thus,  that  circumstance

cannot be used against him. He submits that the said evidence is

inadmissible also because no signature of accused is taken on the

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recovery  panchnama.  He  then  submits  that  the  statement  of

accused No.3 recorded under Section 313, Cr.P.C., the whole of it is

vitiated because it is a joint statement of all the accused recorded

by the Trial  Court.  In support  of  this  contention,  he invited our

attention to the said statement recorded under Section 313, Cr.P.C.

Lastly,  he submits  that  benefit  be given to accused No.3 on the

same  reasoning  as  given  to  accused  No.7.  Learned  counsel  has

placed  reliance  on  the  decisions  of  this  Court  in  the  cases  of

Jackaran Singh vs. State of Punjab1; A.R. Khima vs. State of

Saurashtra2; and Sunil Clifford Daniel  vs. State of Punjab3.

10. The  accused  No.1  is  represented  by  Advocate  Mr.  Gagan

Sanghi.  His  argument  essentially  revolved  around  the  two

circumstances  held  against  accused  No.1.  Firstly,  of  motive  and

secondly last seen together. He submits that no recovery has been

made  at  the  instance  of  accused  No.1  nor  it  is  the  case  of

prosecution that accused No.1 was seen along with other accused

1

AIR 1995 SC 2345 –Para 8 2

AIR 1956 SC 217 3

 (2012) 11 SCC 205 Para 37 to 40

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travelling in Tata Sumo vehicle wherein the dead body of deceased

Raman was carried away. As regards motive, he submits that the

prosecution theory about the illicit relations between accused No.1

Nalini  and accused No.2  Rinku has been discarded by  both the

courts  below.  The  Trial  Court  as  well  as  the  High  Court  has,

however,  accepted  the  prosecution  case  that  there  was  some

transaction about land between accused No.1 Nalini and deceased

Raman  over  which  the  matter  got  escalated  causing  death  of

Raman. The evidence in this behalf produced by the prosecution,

however, is very weak. PW-1 in his cross-examination says that he

had  disclosed  about  the  said  fact  to  PW-17 (I.O.)  i.e.  about  the

agreement executed between the parties. But PW-1 was not aware

as to why that fact is not mentioned in his statement recorded by

the  police.  Further,  PW-17(I.O.)  in  the  cross-examination  has

denied of any such statement given by PW-1. PW-17 (I.O.) admitted

in his cross-examination that he had not investigated the matter

with  regard  to  the  land  transaction.  Moreover,  PW-1  in  his

cross-examination admits that he does not know who and in whose

name the stamp papers were purchased and how payments were

made.  The  other  witness,  who  has  spoken  about  the  land

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transaction is PW-15, mother of deceased Raman. She has spoken

about the phone call  received on 8th May 2003 from Nalini.  She

wanted  to  talk  to  Raman.  Raman  attended  the  phone  call  and

thereafter disclosed to PW15 that Nalini (accused No.1) had called

him to her house and he will go along with documents in respect of

agricultural land to get her signature. She has stated that deceased

Raman left the house at about 11.30 a.m. According to the learned

counsel, evidence of PW-15 cannot be taken into account as neither

the documents regarding transaction have been produced by the

prosecution nor the documentary evidence regarding the fact that

phone call was received by PW-15 has been produced. As regards

the factum of last seen together, it is submitted that the evidence of

PW-11  is  unreliable  and  is  replete  with  material  omissions  and

contradictions. Similarly, the evidence of PW-12 is also unreliable.

As a result, the prosecution has failed to substantiate the crucial

circumstance of last seen together with accused No.1. This being a

crucial  link  and  as  no  satisfactory  evidence  is  forthcoming  to

indicate  the  complicity  of  accused No.1,  the  finding  of  guilt  qua

accused  No.1  would  be  unsafe.  Further,  being  a  case  of

circumstantial evidence, the Court must analyze the evidence with

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18

utmost  circumspection  and  even  if  one  crucial  link  is  missing,

benefit must go to the accused. He has placed reliance on Nizam

and another vs. State of Rajasthan4.  On the issue of motive he

has placed reliance on Saju vs. State of Kerala5 to contend that

motive by itself cannot be a proof of conspiracy. Reliance is also

placed  on  Keshav  vs.  State  of  Maharashtra6 to  contend  that

conviction cannot be based solely on the basis of motive; and the

circumstance of last seen together becomes relevant only when the

death  is  proved  to  have  taken  place  within  a  short  time  of  the

accused being last seen. Reliance is then placed on  Arjun Marik

and others vs. State of Bihar7  to buttress the argument that the

factum of motive assumes importance in a case of circumstantial

evidence, if it is established from the evidence on record that the

accused had a strong motive and also an opportunity to commit the

crime;  and  that  the  established  circumstances  along  with  the

4

(2016) 1 SCC 550 – Para 8,9,18-20 5

(2001) 1 SCC 378 6

(2007) 13 SCC 284 7

1994 Suppl.(2) SCC 372

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explanation  of  the  accused,  if  any,  exclude  the   reasonable

possibility of anyone else being the perpetrator of the crime then the

chain of evidence may be considered to show that within all human

probability the crime must have been committed by the accused.

Thus,  the  only  circumstance  of  last  seen  together  will  not  be

enough to complete the chain of circumstances to record a finding

of guilt against accused No.1. He has also placed reliance on the

other decisions, more or less dealing with similar aspect, in the case

of  Mohibur  Rahman & Anr.   vs.  State  of  Assam8; Niranjan

Panja vs. State of W.B.9; Sk.Yusuf vs. State of W.B.10; Shyamal

Ghosh  vs.  State  of  W.B.11;  Kanhaiya  Lal  vs.  State  of

Rajasthan12; Malleshappa vs. State of Karnataka13; Ashok vs.

8

(2002) 6 SCC 715 9

(2010) 6 SCC 525 10

(2011) 11 SCC 754 11

(2012)7 SCC 646 12

(2014) 4 SCC 715 13

(2007) 13 SCC 399

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State  of  Maharashtra14;  Nizam  vs.  State  of  Rajasthan15;

Mousam Singha Roy & Ors. vs. State of W.B.16 and Sangili vs.

State of Tamil Nadu17 Reliance is also placed on the decision in

the  case  of  Lohit  Kaushal  vs.  State  of  Haryana18 about  the

efficacy  of  statement  of  a  co-accused  under  Section  27  of  the

Evidence Act.  

11. Ms. Anagha S.Desai, Advocate appeared for accused No.6. She

contends that that the dead body was recovered at the instance of

accused Nos.2 and 3. The recovery of gold ring at the instance of

accused No.6 is doubtful. The prosecution has not established the

special identity of gold ring and it has come on record that such

gold rings are freely available in the open market. Further, no blood

stains or any incriminatory evidence was noticed on the gold ring.

The accused No.6 was arrested on 13th May 2003 on which day his

14

(2015) 4 SCC 393 15

(2016) 1 SCC 550 16

(2003) 12 SCC 377 17

(2014) 10 SCC 264 18

(2009) 17 SCC 106 – Para 18, 21

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21

statement was also recorded. The recovery of gold ring, however, is

on 18th May 2003, while the accused No.6 was in police custody.

Similarly,  the cash amount recovered at the instance of  accused

No.6 was of no avail to the prosecution. It was a paltry amount as

compared to the amount withdrawn by Raman on 8th May 2003

from the  Bank.  Further,  there  is  no  evidence  that  the  currency

recovered from accused No.6 was the same as withdrawn by the

deceased Raman from the Bank. No blood stains were found on the

clothes recovered at the instance of accused No.6. In the confession

statement of accused No.2, there is no mention of gold ring. The

signature of accused No.6 was obtained on a blank paper and it

was then used as a memorandum under Section 27 of the Evidence

Act.  Recovery  of  clothes  as  well  as  gold  ring  attributed  to  the

accused No.6 was doubtful. Reliance is placed by the counsel on

Gulab Singh vs. State of U.P.19 to contend that recovery of ring of

deceased from the accused No.6 after such long gap and even if

accused No.6 failed to offer valid explanation for possession of the

gold ring, is at best liable to be convicted under Section 411 of IPC

19

1995 Supp. (4) SCC 502

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and not for the offence of murder. She submits that the accused

No.6 should be given the same benefit as given to accused No.7, if

not an acquittal as in the case of accused Nos.4 and 5.  

12.    Per contra, Mr. N.R. Katneshwarkar, Advocate appearing for

the State supported the findings and conclusions reached by the

two courts below. He submits that the argument of the appellants is

essentially on the basis of some minor discrepancies in the evidence

and not because of material omissions amounting to contradictions

or contradictory evidence of the prosecution. Two courts below have

had the opportunity to analyze the evidence threadbare; and the

view taken by the High Court being a possible view, does not merit

any  interference.  He  submits  that  there  is  clinching  evidence  to

indicate  the  complicity  of  accused  Nos.1,  3  and 6,  who are  the

appellants before this Court. No fault can be found with the courts

below for having convicted them for the stated offence. He took us

through the evidence of the concerned witnesses and pointed out

the findings of the two courts below which have analyzed the said

evidence  exhaustively  and  analytically.  Regarding  the  factum  of

land transaction, the evidence of PW1 was unassailable. He submits

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that  the  prosecution  has  successfully  substantiated  the

circumstance of motive of accused No.1. The fact that no discovery

is made at the instance of accused No.1 would be of no avail to the

said accused. She was the master mind of the conspiracy to murder

Raman.  There  was  dispute  between  accused  No.1  and  deceased

Raman  in  respect  of  land  transaction  and  non-payment  of  the

agreement amount. The prosecution evidence has established that

Nalini had made a telephone call to deceased Raman on 8th May

2003. PW-15 has also spoken about the fact disclosed to her by

Raman  before  leaving  the  house  at  around  11.30  a.m.  The

prosecution was also able to substantiate the fact that Raman after

leaving the house in the presence of PW-15, proceeded towards the

Bank  and  withdrew  an  amount  of  Rs.58,000/-.  He  went  to  the

house of Nalini where he was last seen. The dead body of Raman

was put in a gunny bag and transported by Tata Sumo vehicle. It

was then disposed at a spot disclosed by the accused Nos.2 and 3.

He submits that prosecution has succeeded in establishing motive

and last seen together which is good enough to affirm the finding of

guilt  against  accused  No.1  Nalini.  As  regards  accused  No.6,  he

submits  that  the  recovery  of  ring  which  belonged  to  deceased

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Raman  has  been  established  by  the  prosecution.  Besides  that,

accused No.6 was not only last seen together with the deceased in

the house of Nalini but also while taking away the dead body of

deceased Raman in Tata Sumo vehicle. His involvement cannot be

equated with the role of accused Nos. 4, 5 and 7, which has been

found to be materially different by the Courts below. While refuting

the argument of accused No.3, he submits that the prosecution has

been able to establish that the death was homicidal death and was

caused due to strangulation by a rope. The prosecution has also

established the presence of accused No.3 at the relevant time. He

was not only last seen together in the house of Nalini accused No.1

at the relevant time but also in the Tata Sumo vehicle in which the

dead body of Raman was transported. Moreover, the location where

the  dead  body  and  articles  of  Raman  were  disposed  has  been

disclosed even by accused No.3. Reliance is placed on the decision

of  this  Court  in  the  case  of  Sunil  Clifford  Daniel  (supra) to

contend  that  absence  of  signature  of  the  accused  on  the

memorandum of recovery would make no difference. The statement

of the accused No.3 recorded under Section 27 of the Evidence has

been signed by the accused. A separate statement of accused No.3

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was recorded before the police proceeded to the location which was

jointly disclosed by accused Nos. 2 and 3. Learned counsel submits

that all the appeals deserve to be dismissed and the finding of guilt

and sentence awarded to the concerned accused be affirmed.

13. We have heard the learned counsel for the parties at length.

We were  ably  assisted by  the  learned counsel  for  the  respective

parties  who  took  us  through  the  relevant  depositions  and

documents and the analysis done by the Trial Court and the High

Court in that behalf. We must appreciate the exhaustive judgment

delivered by the Trial Court, meticulously dealing with every aspect

of the evidence on record. We find that the High Court has also

analyzed the relevant piece of evidence on its own besides adverting

to the findings rendered by the Trial Court in that regard. In other

words, we have to deal with concurrent findings of fact on most of

the relevant aspects concerning the matters in issue. Our analysis,

therefore,  must  focus  on  the  legal  aspects  emanating  from  the

concurrent findings so recorded and not to re-appreciate the entire

evidence.

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14. In this backdrop, we may first advert to the main question as

to whether the circumstance of motive and last seen together, as

answered by the two courts below, is just and proper. As regards

the circumstance of motive, prosecution has mainly relied on the

evidence of PW-1 and PW-15. The criticism is that no documentary

evidence  to  buttress  the  factum  of  land  transaction  between

deceased Raman and Nalini (accused No.1) and about the telephone

call made by Nalini to Raman in the morning on 8th May 2003, as

stated by the said witnesses have been brought on record or any

attempt made by the Investigating Officer to recover the same. The

courts below have found that absence of documentary evidence in

the form of agreement of land transaction or a civil suit between the

parties, that cannot be the basis to outright discard the statements

given  by  the  witnesses  to  the  Investigating  Officer  and  more

particularly the evidence before the court. They have spoken about

the dispute regarding taking of possession of the land. Further, the

accused  No.1  in  her  statement  under  Section  313,  Cr.P.C.  has

stated that the members of Tonpe family wanted her land and they

cheated her and that Raman Tonpe and his brother Madan Tonpe

(PW-1) caused heavy loss to her agricultural land and also defamed

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her. The courts below, therefore, held that absence of documents

regarding such transaction was not fatal. The evidence on record

was enough to accept the theory of demand for compliance of the

transaction from the side of Tonpe family, as the cause of motive.

The courts have also noted from the evidence that there was some

dispute  in  respect  of  hotel  premises  for  which  Vijay  Dhpake

(husband  of  accused  No.1-Nalini),  had  lodged  a  report  against

accused No.2. That dispute was settled by deceased Raman. The

Courts below have found that the prosecution proved the following

circumstances. That deceased Raman was the Director of Rashtra

Mata Indira Gandhi Kanya Vidyalaya,Narkhed. The land of accused

No.1 Nalini and her husband Vijay Dhpake was adjacent to the said

school. Since Raman was looking after the family affairs of Tonpe,

he had entered into an agreement with accused No.1 Nalini and her

husband Vijay for purchase of  their land. Accused No.1 and her

husband executed an agreement in favour of Madan and her elder

brother  Pramod by  accepting  Rs.25,000/-.  Another  agreement  of

sale was executed in favour of Pramod by accepting Rs.1,33,000/-.

The  possession  of  the  land  was  also  delivered  to  Tonpe  family.

Besides the said amount, deceased Raman had paid Rs.50,000/-

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and  Rs.30,000/-  to  Nalini  towards  the  transaction  for  which

receipts  were  executed  on  separate  stamp  paper.  This  had

happened one year before the incident in question. The High Court

in paragraph 26 has dealt with the argument under consideration

and observed thus:

“26. It  is  true that  neither the alleged agreements of sale no receipts for payment made after the agreements have been produced by the prosecution. However, we cannot overlook the evidence to the effect that when on the  date  of  incident  deceased  Raman  had  left  his house,  he  had  carried  the  documents  about  those transactions  with  him.  Neither  those  documents  nor the  cash  amount  which  was  carried  by  deceased Raman  was  recovered  perhaps  because  all  the belongings of  deceased Taman were burnt  before his dead body was thrown in the valley. As agreements of sale  might not  have been registered and as such no certified  copies  thereof  could  be  obtained  by  the prosecution  in  order  to  support  its  case.  Even otherwise  this  is  not  a  civil  proceeding  in  which transactions of sale are to be proved by production of documents.  We  can  rely  on  oral  testimony  of  PW1 Madan for this purpose. Hence we find that the sale transactions between A-1 Nalini and Raman have been proved by the prosecution.”

   Also in para 31 the High Court observed thus:

“31.  It  was  urged  by  the  learned  counsel  for  the appellants that the investigating officer has not verified the record from the Telephone Exchange about the call received  at  the  residence  of  deceased  Raman  on 8.5.2003. In the absence of corroboration by the record of Telephone Exchange, the testimony of PW Shantabai should not be accepted.  We are unable to agree with this submission.  We see no reason to disbelieve the testimony of PW Shantabai.  This would show that the

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documents about transaction of purchase of land were taken  by  deceased  Raman  with  him  and  as  those documents  must  have  been  burnt.  So  there  is  no question of production of those documents in order to prove the transaction between A-1 Nalini and deceased Raman.”

15. The  question  is  whether  the  approach  of  the  High  Court

regarding  the  argument  under  consideration  is  correct.  We  may

hasten to add that Criminal Court trying the offence of murder was

not  required to  decide about  the  issue of  title  of  the  land or  to

consider the relief of specific performance. The evidence given by

PW-1  and  corroborated  by  PW-15,  revealed  that  there  was

transaction  in  respect  of  land  between  the  accused  No.1  and

Tonpe’s.  That  version  could  not  be  demolished  in  the

cross-examination.  Another  piece  of  evidence  relied  by  the

prosecution  is  about  the  destruction  of  clothes  and  articles  of

deceased Raman. The Police could only recover ash from the spot

along with bunch of keys. That lends support to the prosecution

case that the possibility of documents having been destroyed also

cannot be ruled out.  Hence, it was open to the Trial Court as well

as  the  High  Court  to  rely  on  the  evidence  of  witnesses  for  the

limited purpose. The fact that deceased Raman while leaving his

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house  had  carried  some  papers/documents  with  him  has  been

stated by PW-15, when he went to meet accused No.1 Nalini. The

counsel  for  the  appellants  and  in  particular  accused  No.1  had

drawn our attention to cross-examination of PW-15. He has also

drawn our attention to cross-examination of PW-1 to contend that

the factum of land transaction between Tonpe and Nalini was not

disclosed in the statement recorded by the Police under Section 161

of the Code. On close examination of the said cross-examination, we

found that the question posed to the witness was limited to the

initial statement and not to the supplementary statement recorded

by  the  Investigating  Officer.  A  supplementary  statement  of  the

witnesses was given to the Investigating Officer, which mentioned

the fact of land transaction, as was deposed by the witness in the

examination-in-chief.  In  other  words,  it  was  half  hearted

cross-examination  by  the  accused.  No  question  was  posed  in

respect of the contents of the supplementary statement which was

also part of the charge-sheet and crucial to the relevant fact. The

answer given by Investigating Officer PW-17 therefore will have to

be understood in the same context. Confronted with this situation,

the argument of  the appellants is  that  no documentary evidence

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regarding the transaction is forthcoming. For the reasons already

mentioned, there is no tangible reason to discard the relevant fact

established  by  the  prosecution  witnesses  in  support  of  the

circumstance of motive.

16. The prosecution has also established the vital circumstance of

last seen together. That evidence is given by PW-11 and PW-12 in

particular.  Their  evidence  will  have  to  be  juxtaposed  with  the

evidence  of  PW-15,  who  has  spoken  about  the  telephone  call

received from Nalini and pursuant to which Raman left his house in

her  presence  with  relevant  documents/papers.  The  courts  below

have accepted her version as truthful and reliable. That evidence

cannot  be  discarded  on  the  basis  of  some  minor  discrepancies

pointed out during the course of argument. The finding recorded by

the two courts below with regard to PW-15 about the truthfulness of

her version is unexceptional. The evidence of PW-11 corroborates

the fact that deceased Raman had gone to the Bank for withdrawing

cash amount and then proceeded to the house of Nalini accused

No.1. He has deposed that Raman went inside the house of Nalini

and saw accused Nos.2, 3, 4 and 6 standing near the cattle shed of

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Nitin Rai. While returning back he saw accused No.5 standing near

the water tank.

17. The  fact  of  deceased  Raman  had  gone  to  the  Bank  for

withdrawing the amount has been corroborated by PW-8 who was

Cashier in the Bank at the relevant time. Even the evidence of PW-8

has been found to be truthful and reliable. In other words, there is

credible evidence on record that Raman started from his house in

the presence of PW-15 as stated by her. He then proceeded to the

Bank for withdrawing amount of Rs.58,000/-, which obviously was

to  be  paid  to  accused  No.1  Nalini.  From  the  Bank  he  straight

proceeded to the house of Nalini. That fact stated by PW-11 stands

corroborated from the evidence of PW-12, who has deposed that he

had  gone  to  Nalini’s  house  to  finalise  the  deal  concerning  her

agricultural land for cultivation on yearly rent basis. He met her in

her  house  at  about  11.30  a.m.  to  12.00  noon  and  found  that

Raman was sitting in the verandah of the house with her. He had

also seen accused Nos.2, 3, and 6 in the same room. The counsel

for  the  appellants  no  doubt  made  an  attempt  to  discredit  this

witness on the basis of some discrepancies in his evidence such as

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the place where his statement was recorded by the Police - whether

in his house or in the Police Station and that he knew Raman for

the last 10 years and was therefore an interested witness. Further,

the fact stated by him that Raman was sitting in Varandah and

talking to Nalini and when he saw other accused were present has

not been disclosed to the Investigating Officer and unable to assign

any reason as to why he had not disclosed that fact. The evidence of

this witness has been analyzed by the Trial Court as well as by the

High Court.  This witness has been found to be independent and

truthful. He has deposed about the relevant facts which have been

corroborated by the version of PW-11 about the concerned accused

persons last seen together. No other witnesses has come forward to

depose  that  after  the  meeting  of  deceased  Raman  with  Nalini,

Raman was seen elsewhere at a later point of time. Thus, there is

sufficient  evidence  about  the  factum of  last  seen  together.  This

circumstance is further strengthened by the evidence given by other

prosecution  witnesses  (PW  9,  6  and  12),  who  had  seen  the

concerned accused persons loading a gunny bag in Sumo vehicle

after some time; and that accused Nos. 3 and 6 were also seen in

the vehicle carrying that gunny bag. The gunny bag, as found by

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the two courts below was used to carry the dead body of deceased

Raman which was transported in a vehicle and then thrown at an

isolated location in the valley. There is no tangible reason to doubt

the correctness of the concurrent finding recorded by the two courts

below in this behalf.  The Courts below have undertaken detailed

analysis  of  the  evidence of  the concerned prosecution witnesses.

Thus,  the  prosecution  has  succeeded  in  establishing  the

circumstance  of  motive  and  last  seen  together  indicating  the

involvement  of  the  appellants  -  accused  Nos.1,  3  and  6  in

particular.

18. It was then argued that the High Court has failed to analyse

the fact as to whether death of Raman was suicidal or homicidal.

From the judgment of the Trial Court, we find that every aspect on

this issue has been considered threadbare from para 16 to para 25,

to conclude that the death of deceased Raman was homicidal death.

The  Trial  Court  has  examined  the  evidence  of  Dr.R.N.Gakare

(PW-16), letter of requisition (Exh.127) and the post mortem report

(Exh.129). The Doctor has explained the circumstances in which he

could notice  the injuries on the dead body.  He has categorically

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deposed that although the dead body was decomposed because of

passage of time but identity of the person could be discerned. The

Doctor himself identified deceased Raman as he was known to him.

The  other  prosecution  witnesses  PW-1  and  PW-15  have  also

identified the dead body of Raman. The Doctor has also explained

the fracture injury noticed on the dead body, which, in his opinion,

was due to strangulation and asphyxia. Thus, we find no merit in

the contention that the nature of injury noted in the post mortem

report would rule out the possibility of homicidal death. The dead

body has been discovered at the instance of accused Nos.2 and 3

from the spot in a valley about 600 ft. deep. The Police reached that

spot on the basis of the disclosure made by the said accused Nos. 2

and 3 under Section 27 of the Evidence Act. The Police party along

with  other  witnesses  had  proceeded  to  the  spot  disclosed  by

accused Nos.2 and 3 and recovered the dead body of Raman from

the valley.  

19. It was contended by the counsel for the accused No.3 that the

evidence regarding discovery of the dead body of Raman cannot be

used against accused No.3.  Inasmuch as, when accused No.3 gave

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his  statement  and  recorded  in  the  form of  Memorandum under

Section 27 of the Evidence Act, the Police already knew about the

spot  where  the  dead  body  was  thrown  as  it  was  disclosed  by

accused  No.2.  It  was  contended  that  the  statement  made  by

accused  No.2  can  be  used  only  against  accused  No.2.  This

argument has been negatived by the Trial Court after analyzing the

decisions which were  brought  to  its  notice,  as  can be discerned

from para 46 to para 53 of the judgment. The Trial Court found that

in the present case the accused Nos.2 and 3 made disclosure (about

the spot where dead body of Raman was thrown by them) one after

another in quick succession and that their statement came to be

recorded separately. The only thing that had happened was a joint

discovery made at the instance of both the accused Nos.2 and 3, on

proceeding  to  the  spot  along  with  the  police.  Section  27  of  the

Evidence Act is an exception to Section 25 of the Act. Section 25

mandates  that  no  confession  to  a  Police  Officer  while  in  police

custody shall be proved as against a person accused of any offence.

Section  27,  however,  provides  that  any  fact  deposed  to  and

discovered in consequence of  information received from a person

accused of any offence, in the custody of a Police Officer, so much

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of such information, whether it amounts to a confession or not, as

relates distinctly to the fact thereby discovered, may be proved. The

fact where the dead body of deceased Raman was disposed, was

disclosed  by  both  the  accused  Nos.2  and  3  to  the  Investigating

Officer in the presence of SK Idris (PW 2) one after another on 12 th

May 2003 at 3.05 hrs and 3.25 hrs. respectively. The discovery was

made only after accused Nos.2 and 3 were taken together by the

police  to  the  spot  in  the  neighbouring  State  (Madhya  Pradesh),

where the recovery Panchnama was recorded bearing Exh.76A. In

other words, the disclosure of the relevant fact by accused No.3 to

the Investigating Officer preceeded the discovery of dead body from

the disclosed spot at the instance of both the accused Nos. 2 and 3.

It was not a case of recording of statement of accused No.3 after

discovery  nor  a  joint  statement  of  accused  Nos.2  and  3,  but

disclosure  made  by  them separately  in  quick  succession  to  the

Investigating Officer, preceding the discovery of the fact so stated.

The fact disclosed by them, therefore, and the discovery made at

their instance, was admissible against both the accused in terms of

Section 27 of the Evidence Act.

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20. In the case of State (NCT of Delhi) Vs. Navjot Sandhu,20  this

Court has held that a joint disclosure or simultaneous disclosures,

per se,  are not inadmissible under Section 27.  A person accused

need not necessarily be a single person, but it could be a plurality

of  the  accused.   The  Court  held  that  a  joint  or  simultaneous

disclosure is a myth, because two or more accused persons would

not have uttered informatory words in chorus. When two persons

in  custody  are  interrogated  separately  and  simultaneously  and

both  of  them  may  furnish  similar  information  leading  to  the

discovery of fact which was reduced into writing, such disclosure

by two or  more persons in police  custody do not  go out  of  the

purview  of  Section  27  altogether.   What  is  relevant  is  that

information given by one after the other without any break, almost

simultaneously,  as in the present  case and such information is

followed up by pointing out the material things by both of them

then there is no good reason to eschew such evidence from the

regime of  Section 27.  Whether that information is credible is a

matter of evaluation of evidence.  The Courts below have accepted

20

2005 (11) SCC 600 (para 45)

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the prosecution version in this behalf, being credible.  Suffice it to

say that the disclosure made by Accused No. 3 about the relevant

fact, per se, is not inadmissible.  

21. Reliance was placed on  A.R. Khima (supra) to contend that

incriminating  articles  alleged  to  have  been  recovered  at  this

instance of the accused is inadmissible in evidence, if the police

already  knew  where  they  were  hidden.  The  dictum in  the  said

decision is in the context of  the fact situation of that case. The

Court found that the police already knew where the articles were

hidden. Further, the information was not derived from the accused

but from someone else, one of the other suspects.  In that case, the

Sub-Inspector to whom the disclosure was made was not examined

by the prosecution.  The Court  also found that  articles were not

hidden but kept in the manner which might be normally kept in

any  average  household.   In  the  present  case,  as  found  by  the

Courts below, the disclosure was made by the Accused Nos. 2 and

3 in quick succession.  The police party along with witnesses and

both the accused thereafter  proceeded to the isolated spot (in a

valley) disclosed by the said accused from where the dead body of

Raman was discovered.  The concerned Police Officer as well as the

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witnesses  to  the  Memorandum  of  Statement  recorded  under

Section 27 have been examined by the prosecution and found to be

reliable and trustworthy. This reported decision, therefore, does not

take the matter any further.  

22. It was then argued that the recovery Panchnama (Exh.76A) did

not contain signature of the accused and for which reason the same

was inadmissible. Even this submission does not commend to us.

In  that,  no  provision  has  been  brought  to  our  notice  which

mandates  taking  signature  of  the  accused  on  the  recovery

Panchnama.  Admittedly,  signature  of  accused  was  taken  on  the

statement recorded under Section 27 of the Evidence Act (Exh.76

and 77 respectively). The statement of accused No.3 (Exh.77) bears

his  signature.  Therefore,  even  this  argument  does  not  take  the

matter any further.

23. In the case of the Jackaran Singh (supra), the Court opined

that  the  disclosure  statement  given  by  the  accused  regarding

conscious  possession  of  the  weapon  did  not  inspire  confidence.

One of the reason was that disclosure statement did not bear the

signature or  the thumb impression of  the appellant.   The Court

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found  that  even,  the  recovery  memo  of  the  revolver  and  the

cartridges  did  not  bear  either  the  signatures  or  the  thumb

impression  of  the  accused.   In  the  present  case,  the  disclosure

statement bears the signature of accused Nos. 2 and 3 respectively.

The  absence  of  signatures  on  the  recovery  memo (Exhibit  76-A)

would not make it inadmissible and it has been rightly taken into

account  because of  the  other  evidence  regarding  its  authenticity

and genuineness.    In  the  recent  decision in  the  case  of  Sunil

Clifford  Daniel (supra),  in  paras  37  to  40,  the  issue  stands

answered against the appellants. Reliance was placed on the dictum

in paras 18 and 21 in the case of  Lohit Kaushal (supra). In that

case,  the  Court  found  that  the  statement  of  accused  who  was

discharged by the Trial Court was hit by Section 25 and 26 of the

Evidence Act. The same was inadmissible in evidence. The Court,

however, observed that statement made to the Police can only be

used  for  the  limited  purpose  provided  under  Section  27  of  the

Evidence  Act  and  that  too  only  against  the  person  making  the

statement.  In  that  case,  the  statement  made  by  the  concerned

accused who was discharged did not lead to the recovery of  any

item whatsoever.  In the present case, however, the statement of

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accused No.2  and 3  has been recorded separately  and both the

accused accompanied the Police and disclosed the spot where the

dead body of Raman was thrown. On the basis of that disclosure,

the dead body of Raman and the remains of the burnt articles of

Raman were recovered for which that fact becomes relevant fact and

can be used against the appellants (accused Nos.2 and 3). In other

words, this decision will be of no assistance to the said appellants.

24. It was then contended that the circumstance of blood stained

clothes recovered at the instance of accused No.3 was questionable

because no evidence regarding the blood group or the fact that the

blood  stains  belonged to  the  blood  group of  deceased  Raman is

forthcoming.  Further,  the recovery itself  was doubtful.  Even this

aspect has been considered by both the courts below and negatived.

The absence of evidence regarding blood group cannot be fatal to

the prosecution. The finding recorded by the courts below about the

presence of human blood on the clothes recovered at the instance of

accused No.3 has not been questioned. The Courts have also found

that no explanation was offered by the accused No.3 in respect of

presence of human blood on his clothes. Accordingly, we affirm the

concurrent  finding  recorded  by  the  courts  below  in  that  behalf

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including  about  the  legality  of  such  recovery  at  the  instance  of

accused No.3.

25. It was then argued by the counsel for accused No.3 that even

if  circumstance  of  motive  is  proved,  that  can  be  relevant  only

against accused No.1. That cannot be used against accused No.3.

This argument completely overlooks the charge for which accused

No.3 was tried, which included charge of conspiracy under Section

120-B of IPC.  As aforesaid, the presence of accused No.3 at the

relevant time in the house of Nalini and also seen while loading the

gunny bag in Sumo vehicle and also travelling in that vehicle, leaves

no  manner  of  doubt  about  his  complicity  in  the  commission  of

offence.

26. In the case of  Saju (supra), on facts of that case it was held

that the circumstances of last seen together and motive were not

conclusive to indicate hatching of criminal conspiracy.  The Court

held  that  there  was  no  evidence  regarding  the  circumstance

attributing the pregnancy of the deceased to the appellant and his

insistence  for  abortion  of  the  child.   On  that  finding,  the

circumstance of motive was answered against the prosecution and

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in favour of the appellant. In that context the Court observed that

even otherwise motive by itself cannot be proof of conspiracy. It is

well  established  that,  ordinarily,  direct  evidence  regarding

conspiracy may not be forthcoming.  Hence, in most of the cases,

the  Courts  have  to  infer  conspiracy  on  the  basis  of  established

facts.  In the present case, on analyzing the facts and the events

that  unfold,  the  Courts  below  have  answered  the  factum  of

conspiracy  against  the  appellants-accused  Nos.  1,  3  and  6.

Further, the prosecution did not rest only on the factum of last seen

together  but  also  on  other  circumstances  to  point  out  the

involvement of the appellants in the commission of crime.  In the

Case of Arjun Mariks (supra), which deals with similar contention,

the Court restated the settled legal position that interference by the

Supreme Court with concurrent finding of fact is justified only when

it  is  possible  to  take  the  view  that  the  findings  are  manifestly

erroneous, unreasonable, unjustified or illegal or violative of some

Fundamental Rules of Procedure or natural Justice.  In the present

case,  concurrent  finding  recorded  by  two  Courts  below  after

exhaustive  analysis  of  the  evidence,  is  that  the  same

unambiguously  points  out  towards  the  involvement  of  the

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appellants in the commission of crime.  In the reported decision,

this Court has also observed that mere absence of proof of motive

for  commission  of  a  crime  cannot  be  a  ground  to  presume the

innocence  of  an  accused  if  the  involvement  of  the  accused  is

otherwise established. But in the case of  circumstantial  evidence

motive,  does  assume  some  relevance.   If  it  is  evident  from  the

evidence on record that the accused had an opportunity to commit

the crime and the established circumstances along with explanation

of the accused, if any, exclude the reasonable possibility of anyone

else being the perpetrator of the crime then the chain of evidence

may be considered to show that within all human probability the

crime must have been committed by the accused.  On the facts of

the  present  case,  we  find  no  tangible  reason  to  disturb  the

concurrent findings recorded by the two Courts below.

27. The case of  Nizam (supra) was also based on circumstantial

evidence.  In that case, the courts below placed emphasis on the

last seen theory. After analyzing the evidence on facts of that case,

this Court held that none of the circumstances relied upon by the

prosecution and accepted by courts below can be said be pointing

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only towards the guilt of appellants and to no other inference.  In

that case, more than one inferences could be drawn on the basis of

evidence brought before the Court for which benefit of doubt was

given to the appellants.   The Court noted several other lapses in

the investigation and missing links.  And therefore, observed that

last  seen  together  though  an  important  link  in  the  chain  of

circumstances yet the court is required to take into account the

entire evidence in its entirety and ensure that only inference that

could  be  drawn from evidence,  is  guilt  of  the  accused.   In  the

present case, however, two courts below have justly analysed the

entire  evidence  and  considered  all  the  circumstances  and  not

limited to the circumstance of last seen together.  The concurrent

finding recorded by the courts below is that the only inference that

can be drawn is pointing towards the guilt of the concerned accused

in particular accused Nos. 1,3 and 6.  

28. Similarly,  in  the  case  of  Kanhaiya  Lal (supra),  the  Court

observed that  last  seen together  circumstance  does  not  by  itself

necessarily  lead to inference that it  was accused who committed

crime but there must be something more to connect the accused

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with the crime and to point out the guilt of the accused and none

else.  As aforesaid, in the present case there is clinching evidence to

point towards the involvement of the appellants in the commission

of  the  crime.   We  find  no  tangible  reason  to  deviate  from  the

concurrent findings of the courts below in that behalf.

29. Reliance placed on the dictum in the case of Sangili (supra) in

our  view  is  inapposite.   In  that  case,  the  court  found  that  the

evidence of last seen together was not established and the factum of

motive was based on hearsay evidence.  Further, except the alleged

recovery there was no other circumstance worth the name which

could be proved against the appellants.  That is not the position in

the  present  case.   For,  the  courts  below  have  analytically

considered the prosecution evidence in its entirety to answer both

the counts against the appellants.  The concurrent finding recorded

by  the  courts  below  in  that  behalf  does  not  merit  interference.

Reliance was placed on the decision in  Gulab Singh (supra).  In

that case, however, the Court found as of fact that the prosecution

had failed to establish the guilt of the accused as evidence against

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him on the factum of last seen together was deficient. In the present

case, however, the fact situation is different.

30. In the case of  Shyamal Ghosh (supra), on the basis of the

evidence  before  the  Court  in  that  case,  in  para  74,  the  court

observed  that  reasonableness  of  the  time  gap  is  of  some

significance.  If the time gap is very large, then it is not only difficult

but may not even be proper for the court to infer that the accused

had been last seen alive with the deceased and the former, thus,

was responsible for commission of the offence.  In the present case,

however,  it  is noticed from the evidence on record that deceased

Raman  visited  the  house  of  Nalini  accused  No.  1  when  the

appellants (accused Nos. 3 and 6) were also present in the house at

the relevant time.  He did not come out of that house nor was seen

by anyone thereafter elsewhere. The dead body of Raman was taken

away in a vehicle for being dispose of, in which accused Nos. 3 and

6 also travelled. The two courts below have carefully analysed the

entire  evidence  to  conclude  that  there  was  no  other  possibility

except that within all human probability the crime must have been

committed in particular by the appellants. It is well established that

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facts of each case must be appreciated on its own merits to draw

inference about the involvement of the accused in commission of

offence or otherwise. The case of  Mohibur Rahman (supra) was

also a case of circumstantial evidence. On facts of that case, the

Court found that the circumstances were sufficient to conclusively

point  out  to  the  commission  of  murder  of  the  deceased  by  the

accused,  though  the  circumstances  did  not  establish  offence  of

causing  disappearance  of  the  evidence.   While  dealing  with  the

factum of last seen together, the Court held that there must be a

close proximity between the event of accused last seen together with

the deceased. In the present case, as noted earlier, the courts below

have  meticulously  analyzed  the  prosecution  evidence  and  have

found  that  the  same  established  the  guilt  of  appellants  in  the

commission of crime. On facts of the present case, no fault can be

found with the said concurrent findings recorded by the two courts

below.  For  the same reason, even the exposition in the cases of

Ashok and Mausam Singha Roy (supra) will be of no avail to the

appellants. As the same is in the context of facts of that case.

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31. In the case of  Malleshappa (supra) the court found that no

witness had spoken about who gave the information to the police.

Further, the deceased was forcibly taken on 12.07.2001, while his

dead body was found on 21.07.2001 and what transpired during

the intervening period was not brought on record. The court also

noted that when the death of deceased actually occurred was also

not established.   In the present case, however, evidence establishes

the  fact  that  the  deceased  Raman  entered  the  house  of  Nalini

accused No.  1  and was not  seen thereafter.  His  dead body was

placed in a gunny bag which was then loaded in a vehicle in close

proximity of deceased Raman entering the house of Nalini on the

same day.  The gunny bag after being loaded in the vehicle was

taken away in which accused Nos. 3 and 6 also accompanied.  The

medical evidence supports the prosecution case that the death of

Raman  occurred  around  8th May,  2003  and  the  Doctor  who

conducted the post mortem opined that it was a case of homicidal

death.

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32. In the case of Keshav (supra), the court held that in the case

of circumstantial evidence, conviction can be recorded on the basis

of motive.  Further, the circumstance of last seen together becomes

relevant  only  if  the  death takes  place  shortly  after  accused  and

deceased were last seen together.  Even this decision is of no avail

to the fact situation of the present case, for the reasons already

discussed hitherto.  

33. According to the learned counsel for the accused No.3, a joint

statement of all the accused was recorded by the Trial Court under

Section 313,Cr.P.C.  This contention, in our opinion, is ill-founded.

We have examined the record and found that separate statement

under  Section  313  of  each  accused  has  been  recorded.  It  is  a

different matter that their statements have been recorded in part on

different dates. That, in our opinion, does not vitiate the trial. Had it

been a case of all questions put to all the accused jointly and one

statement  recorded  by  the  Trial  Court,  it  may  have  become

necessary for us to consider this argument. In the present case, we

find that separate statement of each accused under Section 313,

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has  been  recorded  on  different  dates.  That  is  substantial

compliance of Section 313, Cr.P.C.    

34. The argument of accused No. 3 that he may be given the same

benefit as given to accused No. 7 is also liable to be rejected.  We

say  so  because,  the  High  Court  has  given  tangible  reason  for

treating the case of accused No. 7 differently.  As regards accused

No. 3, there is consistent evidence that he was present in the house

of Nalini at the relevant time and also participated in loading of the

gunny bag containing dead body of deceased Raman in the vehicle

and then travelling in the same vehicle for disposing the dead body

in a valley. This distinguishes his role from that of accused No.7.

The role of accused No. 3 has been rightly analyzed by the courts

below to be similar to accused No. 6 and liable for punishment for

the offence in question.  

35. Reverting  to  the  argument  of  accused  No.  1,  we  reject  the

same in so far as the circumstance of motive and last seen together

as we have affirmed the concurrent findings of the courts below in

that behalf.  The decisions pressed into service by the counsel for

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the accused No. 1 have no bearing on the facts of the present case,

including against accused No.1.  

36.      That takes us to the argument of the counsel for the accused

No. 6 - that the dead body of the deceased was discovered at the

instance of accused Nos. 2 and 3 with which accused No. 6 had no

concern.  The  fact  that  accused  No.  6  did  not  make  similar

disclosure  about  disposal  of  dead  body  of  Raman,  as  made  by

accused No. 2 and 3, cannot absolve him. The courts below, in our

opinion,  have  rightly  concluded  that  the  concerned  accused,  in

particular accused Nos. 1, 3 and 6 were party to the conspiracy to

cause homicidal death of deceased Raman and for disposal of the

evidence  of  crime.  We  have  already  analyzed  that  aspect  of  the

matter  in  the  earlier  part  of  the  judgment,  which  needs  no

repetition.   

37. The next argument of  accused No.6 is that no blood stains

were noticed on the gold ring recovered at his instance. Even this

argument is devoid of merit.  The fact that blood stains were not

found on the gold ring would not make the recovery inadmissible.  

Similarly,  the  fact  that  the  gold  ring  was  freely  available  in  the

market, would be of no avail to the said accused.  The accused has

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not produced any evidence to explain the circumstances in which

the said gold ring came in his possession, which has been identified

by the prosecution witnesses as belonging to deceased Raman. The

fact that  no mention was made about the said gold ring in the

statement of other accused,   does not make the recovery doubtful

as the gold ring has been recovered on the basis of disclosure made

by the accused No. 6 himself after his arrest.  On the same lines it

was contended by the counsel for accused No. 6 that the recovery of

cash amount from accused No. 6 cannot be used against him as

incriminatory evidence.  In as much as, the prosecution has failed

to  produce  any  legal  evidence  to  establish  the  fact  that  the

currency  recovered  was  part  of  the  same  amount  which  was

withdrawn  by  the  deceased  Raman  from  the  Bank  on  8th May,

2003.  The fact that the entire amount of Rs. 58,000/- withdrawn

by the deceased Raman on 8th May, 2003 was not recovered by the

investigating  agency  also  cannot  be  the  basis  to  disregard  the

complicity of accused No. 6, in view of the credible evidence about

his presence in the house of accused No. 1 Nalini at the relevant

time and of having assisted in loading the gunny bag carrying the

dead body of Raman in the vehicle and then travelling in the same

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vehicle  to  dispose  of  the  dead body of  Raman.  Evidence  in  this

regard  being  clinching,  absence  of  legal  evidence  regarding  the

source from where the currency notes had come in possession of

accused No. 6 will be of no avail.  The fact that the no blood stains

were found on the clothes of accused No. 6 will also be of no avail,

considering  the  overwhelming  evidence  about  other  relevant

circumstances indicating his complicity in the commission of crime.

38. In the case of  Sunil Clifford Daniel (supra) the court held

that non-matching of blood group   or absence of report regarding

origin of  blood,  no advantage can be conferred upon accused to

claim benefit of doubt.  This decision also deals with the argument

canvassed by the appellants about absence of signature of accused

on the seizure memo/recovery memo. The court rejected that plea

and  held  that  merely  because  the  recovery  was  not  signed  by

accused, it will not vitiate the recovery itself.  Further, every case

has to be decided on its own facts. Accordingly, even this contention

of the appellants must fail.   

39.  The argument that the memorandum under Section 27 of the

Evidence  Act  was  a  fabricated  document  as  the  signature  of

accused was obtained on a blank paper, does not impress us .The

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courts below have considered the evidence on record and found that

the  memorandum  making  disclosure  about  the  gold  ring  in

possession of accused No. 6 was admissible and trustworthy.  We

are not inclined to disturb the concurrent findings recorded by the

two courts below in that behalf.   

40.      The next argument of the counsel for the accused No. 6 is

that even if accused No.6 had failed to offer any valid explanation

regarding possession of gold ring of deceased Raman, he can at best

be proceeded for offence punishable under Section 411 of IPC and

not  for  the  offence  of  murder.  This  submission  is  obviously  an

argument of desperation. For, conviction simpilicitor under Section

411 of IPC or under Section 201/120B of IPC as rendered against

accused No. 7 would be possible, if evidence on other crucial facts

was absent.  In so far as accused No. 6, there is clinching evidence

to hold against him on the basis of last seen together, seen loading

the gunny bag in the vehicle and then travelling in the same vehicle

for disposal of the dead body.  This evidence cannot be disregarded.

The finding recorded by the Trial Court in favour of the acquitted

accused or by the High Court in favour of the accused No. 7, is not

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by disbelieving the evidence of the same prosecution witnesses. But,

it  is  in the context  of  the limited role  of  the concerned accused

established from the evidence of the same prosecution witnesses.  

The accused No. 6 cannot take advantage of that finding, in view of

overwhelming evidence of his complicity in the commission of crime.

41.    In view of the above, we hold that the appeals filed by accused

Nos. 1, 3 and 6 respectively, are devoid of merits.   

42. We accordingly  uphold the finding of  guilt  as  against  these

accused Nos.1,3 and 6 as recorded by the courts below as also the

sentence imposed in respect of the offence committed by them.   

43. Hence these appeals fail and the same are dismissed. Accused

No.1 Nalini Dhapke, appellant in Criminal Appeal No.854/2010 and

accused No.6 Satish, appellant in Criminal Appeal No.11/2015 are

on bail. Their bail bonds shall stand cancelled and they are directed

to surrender before the Trial Court within four weeks from today for

undergoing the remaining period of sentence.

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…………………………….J.   (Jagdish Singh Khehar)

…………………………….J.                 (Arun Mishra)

        .……………………………J.             (A.M.Khanwilkar)

New Delhi, Dated: January 3, 2017