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Tuesday, January 10, 2017

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 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 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.


                                [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 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  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  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 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  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.
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.
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.

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.

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.

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  amount  to
suffer further rigorous imprisonment for two months.

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.

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

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.

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

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.

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.

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

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.

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



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 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 16th  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 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 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.”

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  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 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
Punjab[1]; A.R. Khima vs. State of Saurashtra[2]; and Sunil Clifford  Daniel
 vs. State of Punjab[3].

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 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 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
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
Rajasthan[4].  On the issue of motive he has placed  reliance  on  Saju  vs.
State of Kerala[5] to contend that motive by itself cannot  be  a  proof  of
conspiracy. Reliance is also placed on Keshav vs.  State  of  Maharashtra[6]
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 Bihar[7]  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  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 Assam[8]; 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  Rajasthan[12];  Malleshappa  vs.   State   of
Karnataka[13]; Ashok vs.  State  of  Maharashtra[14];  Nizam  vs.  State  of
Rajasthan[15]; Mousam Singha Roy & Ors. vs. State of  W.B.[16]  and  Sangili
vs. State of Tamil Nadu[17] Reliance is also placed on the decision  in  the
case of Lohit Kaushal  vs.  State  of  Haryana[18]  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 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
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  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 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 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.

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 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/- 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  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  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  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 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  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 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
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  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 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 12th 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.

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  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
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  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 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  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 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  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 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 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 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 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.




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.

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, 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 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 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  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  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 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.


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


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


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

New Delhi,
Dated: January 3, 2017













-----------------------
[1]
      [2] AIR 1995 SC 2345 –Para 8
[3]
      [4] AIR 1956 SC 217
[5]
      [6]  (2012) 11 SCC 205 Para 37 to 40
[7]
      [8] (2016) 1 SCC 550 – Para 8,9,18-20
[9]
      [10] (2001) 1 SCC 378
[11]
      [12] (2007) 13 SCC 284
[13]
      [14] 1994 Suppl.(2) SCC 372
[15]
      [16] (2002) 6 SCC 715
[17]
      [18] (2010) 6 SCC 525
[19]
      [20] (2011) 11 SCC 754
[21]
      [22] (2012)7 SCC 646
[23]
      [24] (2014) 4 SCC 715
[25]
      [26] (2007) 13 SCC 399
[27]
      [28] (2015) 4 SCC 393
[29]
      [30] (2016) 1 SCC 550
[31]
      [32] (2003) 12 SCC 377
[33]
      [34] (2014) 10 SCC 264
[35]
      [36] (2009) 17 SCC 106 – Para 18, 21
[37]
      [38] 1995 Supp. (4) SCC 502
[39]
      [40] 2005 (11) SCC 600 (para 45)


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