Full Text
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1745 OF 2019
Vishal Ganesh Kasabe }
Age – 31 Years, Occ.: Service, }
R/at – S/12, Near Bhimjyot Mitra Mandal, }
Laxminagar, Yerwada, Pune – 06 } … Appellant/
} Accused No.2
}
State of Maharashtra }
(Represented by Public Prosecutor, }
Bombay, Through Officer-in-Charge } of Yerwada Police Station, Pune) } … Respondent/
Complainant
Mr Akshay Bankapur for the Appellant.
Mrs P. P. Shinde, Addl. P.P. for the Respondent-State.
JUDGMENT
1. The present appeal is directed against the Judgment and ANANDRAO IDHOL Order dated 23rd October 2019 passed by the learned Additional Sessions Judge, Pune in proceeding bearing Session Case No. 751 of 2013, by which the learned Additional Sessions Judge convicted the Appellant under Section 302 read with 34 of the Indian Penal Code (hereinafter referred as “IPC”) and sentenced him to suffer imprisonment for life and to pay fine of Rs. 5,000/-(Rupees Five Thousand Only). The appellant was however acquitted of the offence punishable under Section 120 B of the IPC.
2. The present Appellant is Original Accused No.2 (Vishal Ganesh Kasabe). By the impugned Judgment and Order, the Appellant, as well as Lallya @ Vishal Ravindra Dadar (Original Accused No.1), were convicted for the offence punishable under section 302, read with 34 of the IPC. Both, the Appellant as well as Lallya @ Vishal Ravindra Dadar (hereinafter referred to as Accused No. 1) have preferred separate appeals against the impugned Judgment and Order before this Court. By a separate order dated 26th November 2025, we have de-tagged the appeal of the accused No.1, Lallya @ Vishal Ravindra Dadar, since the said accused is absconding. Accordingly, the said appeal bearing No. 1725 of 2019 preferred by Lallya @ Vishal Ravindra Dadar is adjourned sine die.
PROSECUTION CASE:
3. It is the prosecution case, that on 2nd June, 2013,while returning home, Jitendra was assaulted by accused No.1 – Lallya, and others, including the appellant; that Jitendra on way to the Hospital disclosed the names of the assailants to PW 3 Laxmi Gaikwad and PW 4 Deepak Kamble, who in turn informed the incident to Rajan (Jitendra’s brother). On learning of the incident, Rajan Gaikwad lodged an FIR as against Lallya Dadar for the offence punishable under Section 302 of IPC. The appellant was named by the complainant in his supplementary statement. During the course of investigation the appellant was arrested. After investigation police filed chargesheet against accused including the appellant in the Court of the learned JMFC, Pune. Since the offence under Section 302 of IPC was triable by the Sessions Court, the case was transferred to the Court of Sessions, Pune, for trial.
4. The learned Sessions Judge, Pune, framed charge against the appellant to which he pleaded not guilty and claimed to be tried. During the trial, accused Nos. 3 and 4 expired. Hence, the trial proceeded only against accused Nos. 1, 2, and 5. As far as accused No.5 is concerned, he was acquitted by the Learned Sessions Judge.
WITNESSES EXAMINED BY THE PROSECUTION
5. The prosecution, in order to prove its case, examined the following witnesses:- PW No. Details of Witnesses 1 Informant- Rajan Bhimrao Gaikwad
2 Spot Panch Witness - Prakash Bhalerao 3 Before whom the deceased gave the Dying Declaration - Laxmi Navnath Gaikwad 4 Before whom the deceased gave the Dying Declaration–Deepak Kamble (Rickshaw Driver)
10 Nodal Officer of Reliance Co. – Rajesh Gaikwad 11 PI - Shivaji Berde (conducted further investigation and filed chargesheet) 12 PI – Madhukar Salunke (conducted preliminary investigation)
6. Although, the prosecution examined as many as 12 witnesses, it is not necessary to discuss the evidence of all the witnesses. The only witnesses who are relevant for the purpose of deciding the appeal against the appellant are PW-1, Rajan Gaikwad, who is the brother of the deceased and also the first informant; and PW-3, Laxmi Gaikwad, who brought the deceased to the hospital, and before whom the dying declaration was allegedly made by the deceased.
7. At the outset, we may note, that the fact, that Jitendra died a homicidal death, is not disputed. The only Question that arises for consideration, is whether the Prosecution has proved beyond reasonable doubt, that the Appellant is the author of the same ?
SUBMISSIONS OF THE LEARNED ADVOCATE FOR THE APPELLANT
8. Learned Counsel appearing for the Appellant submitted that the name of Appellant does not appear in the FIR, lodged by the brother of the deceased, on learning of the incident from P.W.[3] and P.W.4. He further states that Deepak Kamble (PW-4), who took the deceased to the hospital in his auto rickshaw, had turned hostile and did not support the case of the prosecution. He further contended that Laxmi Gaikwad (PW-3) stated that in her statement under Section 164, that she had not stated before the Magistrate that Jitendra Gaikwad had disclosed to her, that the Appellant had held Jitendra Gaikwad from behind, and that Lallya Dadar assaulted him. He submitted that although in the examination in chief, P.W.[3] had stated that the Appellant held the deceased from behind when Lallya Dadar stabbed him in the stomach with a knife, yet this is not mentioned in her statement recorded u/s. 164 of Cr.P.C. He stated that the chemical analysis report also did not support the case of the prosecution. He further stated that PW-1 and PW-3 are the only witnesses that are relevant for the purpose of deciding the present Appeal, and the impugned judgment and order passed by the learned Sessions Judge cannot be sustained qua the Appellant considering the evidence on record. It is also submitted that the Prosecution also had also failed to prove motive qua the Appellant. He relied on the judgment of Krishan Kumar and another. Vs The State of Haryana (2023 INSC 679) to support his contentions.
SUBMISSION OF THE LEARNED ADDL. P. P.
9. Mrs. P. P. Shinde, learned Addl. P. P. stated that there was an oral dying declaration made by the deceased to PW-3. She stated that although Deepak Kamble- PW-4 turned hostile, it is not the number of witnesses, but the quality of witnesses that is important, and that conviction can be based even on the sole testimony of PW-3- Laxmi Gaikwad.
DEPOSITION OF WITNESSES
10. PW-1, Rajan Gaikwad, in his examination-in-chief, deposed that his mother, Hausabai, told him that Jitendra had informed her that he was going to visit Lallya; that Jitendra went outside the house, and that Lallya Dadar assaulted Jitendra near lane No. 8, near a public toilet, with a sharp weapon. PW 1 further deposed that he went to Sasoon Hospital, Pune, when he learnt that Jitendra was admitted to the Sasoon Hospital. On inquiry with Deepak Gaikwad, Laxmi Gaikwad, and Shobha Sarkal, he learnt that Jitendra had disclosed to them on way to the hospital, in a rickshaw, that Lallya Dadar (Accused No.1) had assaulted him with a sharp weapon on his abdomen. The witness further stated that Lallya Waghmare (Accused no. 4) and Rahul Waghmare (Accused no. 5) had some suspicion that there was some love relationship between their sister and Jitendra (deceased). He further deposed that a quarrel had occurred between Accused no. 4, Accused no. 5, and Jitendra, and on one occasion, Jitendra had assaulted Accused no. 5, and that as a result of the same, the accused committed the murder of his brother Jitendra. He further deposed that Jitendra had given Lallya @ Vishal Ravindra Dadar rupees twenty thousand as a loan a few months ago and that as Lallya could not make the payment, which Jitendra demanded, Lallya stabbed Jitendra near a public toilet, Laxmi Nagar, Lane no.8.
11. Pursuant thereto, PW 1 lodged an FIR (Exhibit 135). The PW 1 - Rajan Gaikwad was cross-examined at length. P.W. 1, has in his cross-examination admitted that he had not disclosed the appellant’s name at the time of recording the FIR and about the disclosure allegedly made by Jitendra to P.W. 4 – Kamble about the love affair of his brother Jitendra with the sister of accused Nos. 4 and 5.
12. PW-3, Laxmi Gaikwad in her examination-in-chief, has stated that she saw Jitendra Gaikwad in an injured condition; that his T-shirt was stained with blood; that she saw Deepak Kamble (PW-4) coming in an auto rickshaw; that they took Jitendra to the Sassoon Hospital; and that when she and Shobha Sarkal (not examined) asked Jitendra, who had assaulted him, he replied that Vishal Kasbe (Appellant) had held him, and Lallya Dadar gave a blow with a knife on his abdomen. PW 3- Laxmi further deposed that she narrated the aforesaid to Rajan Gaikwad (PW-1) i.e. the disclosure made by Jitendra to them in the auto-rickshaw.
13. PW-3 in her cross-examination, has admitted that she has mentioned before the Magistrate that Vishal Kasabe (appellant) had held Jitendra Gaikwad and Lallya Dadar gave a blow with a knife on his stomach and that she could not assign any reason why it was not recorded by the Magistrate in her statement.
14. Deepak Kamble (PW-4), Auto Rickshaw Driver was declared hostile by the prosecution as he did not support the case of the prosecution, and hence, his evidence is of no avail.
15. The mother of the deceased, Hausabai Gaikwad, was examined as PW-7. She has deposed that on 01.06.2013, when she was at home, one girl came home and informed her that someone had assaulted her son, Jitendra near a public toilet in a lane; and that pursuant thereto, she went to Shivraj Chowk near the public toilet, where she learnt that Deepak Kamble, Laxmi Gaikwad, and Shobha Sarkal had taken her son Jitendra to Sassoon Hospital in an auto-rickshaw. She has further deposed that at that time, some people were gossiping that Lallya Dadar had stabbed Jitendra with a knife. She further narrated the incident on phone to her son Rajan (PW-1) and rushed to the Sassoon Hospital. According to P.W. 7, the said three persons, namely, Deepak Kamble, Laxmi Gaikwad, and Shobha Sarkal, informed her that Vishal Kasbe caught hold of Jitendra Gaikwad, and Lallya Dadar gave a knife blow on his stomach. In fact, the evidence of PW-7 is hearsay and as such no importance can be given to this witness.
16. The Panchanama of seizure of clothes of Accused Nos. 1 and 2 is at Exhibit-174. The said panchanama was proved through Shivaji S. Bedre (PW-11), the Investigating Officer of the case. The said panchanama was conducted on 03.06.2013. The Investigating Officer-PW-11 has also exhibited letter dated 10.06.2013 (Exh-
177) sent by the Police to the Chemical Analyser, Pune. The following clothes and articles seized from present Appellant: i. C-1, Full Shirt of mehendi colour; ii. C-2, blue colour jeans pant: iii. C-3, samples blood, hair, nails, of the Appellant.
ANALYSIS
17. The evidence of PW-1, if perused reveals that he had received a call from his mother, who informed him that Jitendra (deceased) was assaulted and was taken to the Sassoon Hospital, and that when he reached the Hospital, he saw PW-3 and PW-4 along with one Shobha Sarkal sitting there; that the said persons informed him that Jitendra was found in an injured condition in Shivaji Chowk; that they rushed him to the hospital in the autorickshaw of PW-4; and that, in the rickshaw Jitendra had informed PW-3, PW-4 & Shobha Sarkal that Lallya Dadar had stabbed him with a sharp object. Pursuant thereto, PW 1 lodged the FIR against Lallya Dadar (original accused No.1). (The appellant’s name does not find place in the FIR). It is pertinent to note, that the FIR was filed at 9.00 PM on 02/06/2013. Thus, the statement about present Appellant holding deceased from behind appears to be an afterthought by PW-1. The Appellant’s name has been disclosed in the Supplementary Statement. If the said disclosure of the appellant holding Jitendra was disclosed by PW 3, PW 4 and Shobha, the appellant’s name would certainly have been mentioned in the FIR. The fact, that the Appellant had held the deceased from behind is conspicuously absent in the FIR. Even otherwise the present witness is not an eye-witness & his evidence is hearsay.
18. The evidence of P.W. 3 Laxmi Gaikwad is also important in this context. In her examination in chief, she states that Jitendra was lying injured; that she saw PW-4 plying the auto rickshaw; that she signaled PW-4 to stop; that they put the injured in the rickshaw, and took him to Sassoon Hospital, Pune. PW 3 has further deposed that she and Shobha asked Jitendra who had assaulted him, pursuant to which Jitendra told them that Vishal Ganesh Kasabe (Appellant) had held him and accused No.1 Lallya @ Vishal Ravindra Dadar, had given a blow in his abdomen; and that she had narrated the same to Rajan (P.W. 1). First and foremost, if P.W.[3] had disclosed the Appellant’s role to P.W.1, P.W.1, would have certainly disclosed the Appellant’s name in the F.I.R.
19. The evidence of P.W.[3] is also not consistent with her statement made by her before the Magistrate under Section 164. In her statement under Section 164, she had not stated that Vishal Kasabe had held Jitendra. In the cross examination, she was specifically asked, as to why it was not recorded before the Magistrate that Vishal Kasabe held Jitendra, pursuant to which she stated that she was not in a position to tell, why it was not stated.
20. As far as the present Appellant - Vishal is concerned, following are the clothes of present Appellant which were seized. C-1 Full sleeve shirt of mehendi colour, C-2 Jeans pant of Blue colour. C-3 Samples of blood, hair and nail
21. Madhukar Murlidhar Salunkhe(PW-12), who is a Police Inspector and Investigating Officer, has stated that he seized the clothes of the deceased and recorded the panchnama. The Clothes of the deceased were shown to him. The articles and clothes of the deceased were A[1] to A[7]. C[1] to C[4] were the clothes of the Appellant. On perusal of Exh-177, Exh-189 it is noted that the article C[1] at Exh-7 is stained with blood mostly on left leg back, but the article C[1] is the full sleeved shirt of the Appellant. Thus, there is a discrepancy in the articles which were seized and the evidence of P.W. 12, the Investigating Officer.
22. On considering the evidence on record, it is evident, that in the First Information Report, the name of the present Appellant is absent. The real brother of the deceased namely, Rajan Gaikwad (P.W.1) has not stated in the First Information Report that the Appellant had held Jitendra. The F.I.R. was lodged only qua Lallya (O A No.1) after leaving of the disclosure made by Jitendra to P.W.3, P.W.4, and Shobha. Also the deposition of PW-3, if read in conjunction with the statement, made by her under Section 164, it can be seen that in the statement under Section 164 she has not stated that the Appellant had held the deceased from behind, when Lallya assaulted him in the abdomen. When confronted, the said statement under Section 164 in her cross-examination, she stated that she was not in a position to tell why it was not stated that the Appellant had held the deceased from behind. Thus, it would be very unsafe to rely upon the testimony of P.W.[3] as well. Apart from the said evidence, there is no other evidence qua the Appellant.
23. The motive to kill the deceased is absent. The Learned Addl. P.P was also not in a position to show motive qua the appellant.
24. As far as alleged recovery of blood stained clothes is concerned, it is settled principle of law that conviction cannot be based solely on recovery evidence. Even otherwise, the said evidence of recovery cannot be relied upon, inasmuch as, P.W. 11 and P.W. 12, have not supported the recovery evidence.
25. This case rests on circumstantial evidence. The Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] has laid down the five golden principles required to establish the guilt of an accused, in a case based on circumstantial evidence. The same are as under: “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were made: “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
26. On a plain reading of the depositions, i.e. evidence of PW-1, PW-3 and the other evidence on record, we find that the said evidence is not sufficient to sustain the conviction of the Appellant.
27. In light of the above observation made by us, the Judgment and Order dated 23/10/2019 passed by the Sessions Court, Pune in Sessions Case No. 751/2013 cannot be sustained, in as much as, it convicts the Appellant for the offence punishable under Section 302 read with 34 of the I.P.C.
28. For the reasons mentioned above, the Appeal is allowed. Resultantly, we pass the following Order.: O r d e r: i) The Appeal is allowed. ii) Judgment and Order dated 23rd October 2019, passed by the learned Sessions Judge, Pune, thereby, convicting the Appellant Vishal Ganesh Kasabe, under Section 302 read with 34 of the Indian Penal Code, is quashed and set aside and the Appellant is acquitted of the offence punishable under Section 302 read with Section 34 of IPC. He be released forthwith, if not required in any other case. iii) The Appeal is disposed of accordingly.
29. All parties to act on the authenticated copy of this order. (SANDESH D. PATIL, J.) (REVATI MOHITE DERE, J.)