Naresh Prabhubhai Golani v. State of Maharashtra

17. It was also submitted that the evidence regarding CCTV footage was inadmissible because requisite certificate under Section 65-B of the Indian Evidence Act, 1872 (for short ‘Evidence Act’) was not obtained. It was submitted that in any case, what was placed before the Court for viewing was not the primary source i.e. the hard-disk but a copy purportedly made in a pen-drive. Such deficient material could never support the theory of last seen together as claimed by the prosecution.

18. In support of the said submissions, the learned counsel for the appellants relied upon judgements of the Supreme Court in the case ofa. Ramreddy Rajeshkhanna Reddy and another Vs. State of Andhra Pradesh, (2006) 10 SCC 172; b. Niranjan Panja Vs. State of West Bengal, (2010) 6 SCC 525; c. Chandrabhan Sudam Sanap Vs. State of Maharashtra, 2023 SCC OnLine SC 1342; and d. Manjunath and others Vs. State of Karnataka, [2023] 14 S.C.R. 727;

19. The learned counsel for the appellants further submitted that, in the present case, the recovery of the alleged weapons of offence i.e. the knife, belt of the car cover and the nylon rope was also rendered seriously doubtful. The recovery of the damaged mobile of the deceased was also similarly rendered doubtful, for the reason that all this material was recovered from places that had access to the public, and therefore, the recovery could not have been relied upon. Yet, the trial Court accepted such defective recoveries to hold against the appellants.

20. It was further submitted that blood stains, purportedly found to be of human blood, in Maruti Wagon-R car was also not a circumstance to be held against the appellants, for the reason that the evidence of the relevant panch witnesses itself revealed that the front door of the car was never sealed. This raised a doubt about the claims made by the prosecution in this regard.

21. On the question of recovery of the diamonds, it was submitted that the prosecution could not have relied upon the same as the actual diamonds, supposed to have been recovered during the course of investigation, were never produced before the Court. In this regard, specific reliance was placed on the judgement of the Supreme Court in the case of Niranjan Panja V.s State of West Bengal (supra). In the said case, the Supreme Court held that when the recovered material was not produced before the court, there was no question of relying upon such discovery. On this basis, it was submitted that the alleged recovery of diamonds from the house of accused No.1, touted to be an incriminating circumstance, ought to have been discarded by the trial Court.

22. It was further submitted that the theory about the sim card having been purchased from various persons in Gujarat and being used by the accused No.1 - Naresh Golani was also not supported by cogent evidence. In any case, it was submitted that the data pertaining to mobile tower locations was never recovered and hence, there was no material to support the prosecution case that the accused persons had accompanied the deceased from 17.11.2011 till his dead body was found on 19.11.2011. It was submitted that in any case, if the deceased had been abducted, he would not have switched off his mobile phone and yet, moved around with the accused persons voluntarily in the car of accused No.1, visiting various places including the petrol pump at Matheran. None of the witnesses deposed about the deceased being found in any uncomfortable situation in the company of the accused persons. On this basis, it was submitted that the impugned judgement and order deserves to be set aside and the appellants deserve to be acquitted.

23. On the other hand, Ms. Sangita Phad, learned APP appearing for the respondent-State vehemently opposed the contentions raised on behalf of the appellants. It was submitted that all the incriminating circumstances, forming a chain proving the involvement of the appellants in the crime, were proved beyond reasonable doubt. The evidence of the prosecution covered all the aspects of the matter and hence, no interference is warranted in the judgement and order.

24. Reliance was placed on Sections 106 and 114 of the Evidence Act, to contend that since the appellants were found in company of the deceased soon before his dead body was found and it was in their exclusive knowledge, they were bound to explain as to when they parted company with the deceased. In the face of the elaborate evidence produced by the prosecution proving the last seen theory, the burden was entirely upon the appellants, to show as to when they parted company with the deceased, failing which it had to be concluded that they were responsible for the death of the victim. Much emphasis was placed on this aspect of the matter and the failure on the part of the appellants to address the said issue.

25. It was further submitted that recovery of the diamonds from the house of accused No.1, presence of human blood in the car of accused No.1 as also recovery of weapons of assault at the behest of the accused persons were further incriminating circumstances, forming a chain pointing towards the guilt of the accused persons. Reference was made to the questions put to the appellants while recording their statements under Section 313 of the Cr.P.C., to emphasize that all such incriminating circumstances were put to them and other than bald denials, they could not offer any explanation.

26. On the TIP, it was submitted that unnecessary confusion was sought to be created before this Court merely because at some places the plural expression ‘photos’ was used by some of the witnesses. A proper interpretation of the evidence of P.Ws.14 to 19, read with their statements recorded under Section 161 of the Cr.P.C. would show that photos of only the deceased were shown to the said witnesses. They stated that they had seen the deceased in the company of two persons and thereupon in the TIP, the appellants were identified. The witnesses also identified them in the Court room. This was enough to prove the last seen together theory and there was no question of the TIP being discarded.

27. On the aspect of certificate under Section 65-B of the Evidence Act, reliance was placed on the judgement of the Supreme Court in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others, AIR 2020 SC 4908, to contend that when the original source of the CCTV recordings in the form of hard-disk and DVR were produced before the Court, there was no requirement of obtaining such a certificate. Reliance was placed on the said CCTV footage to claim that the presence of the appellants with the deceased in the early hours of 18.11.2011 was proved beyond reasonable doubt.

28. It was submitted that the motive for committing the crime was sufficiently proved by recovery of diamonds and in such cases of circumstantial evidence, motive indeed assumes significance. On the aspect of the last seen together theory as also TIP, reliance was placed on judgements of the Supreme Court in the case of Ram Gopal s/o. Mansharam Vs. State of Madhya Pradesh, (2023) 5 SCC 534 and Chetan Vs. State of Karnataka (judgement and order dated 30.05.2025 passed in Criminal Appeal No.1568 of 2013).

29. On the aspect of recovery of stolen articles from the house of the accused and absence of any plausible explanation for the same, reliance was placed on the judgement of the Supreme Court in the case of Gulab Chand Vs. State of Madhya Pradesh, AIR 1995 SC 1598.

30. The learned APP also emphasized upon the fact that, in the present case, there was absence of any rigorous cross examination of the witnesses. As a consequence, the evidence of prosecution witnesses had gone unchallenged and in such circumstances, the judgement and order passed by the trial Court was wholly justified and that, no interference is warranted therein.

31. It was emphasized that the requirement of law, concerning cases of circumstantial evidence requiring chain of incriminating circumstances being proved and such circumstances pointing towards the guilt of the accused, was thoroughly proved in the facts and circumstances of the present case. On this basis, it was submitted that the appeals ought to be dismissed and the impugned judgement and order deserves to be confirmed.

32. It is clear from the case of the prosecution as well as the rival submissions that this is a case of circumstantial evidence. There is no direct evidence in the form of any eye-witness as to how the victim, in the present case, was done to death. In cases concerning circumstantial evidence, the law is now well-settled. The Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (supra) took into consideration the manner in which the Court has to appreciate evidence when the prosecution case is based on circumstantial evidence. The well-established principles, concerning circumstantial evidence, were recognized in the said judgement and enumerated, to include the following factors: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (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.

33. The aforesaid factors have been recognized as five golden principles stated to constitute the panchsheel of the proof of a case based on circumstantial evidence. These principles have been followed consistently by the Supreme Court and High Courts in cases involving circumstantial evidence. These include Satish Kumar and another Vs. State of Himachal Pradesh, (2020) 7 SCC 637 and Ramanand Bharati Vs. State of Uttar Pradesh, 2022 SCC OnLine SC 1396. The evidence, in the present case, needs to be considered and analyzed on the touchstone of the above-stated five golden principles to examine as to whether the guilt of the appellants has been proved beyond reasonable doubt. The trial Court, in the present case, has referred to certain circumstances in paragraph 20, concluding that the said circumstances form a chain consistent with the hypothesis of the guilt of the appellants. It has been argued on behalf of the appellants that the circumstances have not been proved or fully established and that in any case, they do not form a chain proving the guilt of the appellants beyond reasonable doubt.

34. It is in this backdrop that we have examined the oral and documentary evidence on record to consider as to whether the conclusions rendered by the trial Court are sustainable. The prosecution examined as many as 43 witnesses to prove the incriminating circumstances, which allegedly established the guilt of the appellants. For establishing each circumstance, a set of witnesses were relied upon. These include witnesses - for establishing the last seen together theory; for identification of the appellants; for recovery of weapons of offence; for recovery of the vehicle and sim card used in the crime; and for establishing other such circumstances. Before proceeding to refer to the evidence of the witnesses and the corresponding documents, it would be appropriate that the incriminating circumstances, as claimed by the prosecution, are taken note of.

35. The incriminating circumstances, according to the prosecution, forming a chain to establish the guilt of the appellants are as follows:-

C. CCTV footage showing the deceased in the company of the appellants at Matheran in the early hours of 18.11.2011;

H. CA reports, particularly the report regarding human blood found in the car of accused No.1 Naresh Golani, allegedly used during the crime; and

I. Medical evidence pointing towards use of the weapons attributed to the accused for assaulting the deceased.

36. The prosecution has relied upon evidence of witnesses P.W.15 to P.W.19 for proving its last seen together theory. It would be necessary to examine the evidence of these witnesses to come to a conclusion as to whether the prosecution proved its theory and as to whether the trial Court was justified in accepting the same.

37. P.W.15 Kaluram Jhangare was a Forest Labourer working with the Forest Department at Matheran and claimed to be on shift duty on 17.11.2011 from 6:00 p.m. till 9:00 a.m. on the next day. He claimed that three persons alighted from a four-wheeler vehicle and talked with a coolie, stating that their vehicle was missing. He claimed that the three persons entered the parking lot at Matheran (Kasturi Naka) and searched their vehicle with a battery / torch given by the said witness, but the vehicle was not found. The said witness claimed that on 12.12.2011, police came from Mumbai, recorded his statement and also showed photograph, which he identified. Subsequently, on 11.01.2012, the said witness went to Arthur Road Jail and identified accused No.2 - Dharmesh Patel, whom he also identified in the Court.

38. P.W.16 (Kishore Potdar) stated that he was a taxi driver plying taxi in the areas of Matheran and Neral and he came to the said Naka, but while returning to his residence, he took a lift in the car belonging to accused No.1 (Naresh Golani). He claimed that there were three persons in the car and that, he could identify the accused through videoconferencing. It is crucial to note that the said witness stated that on 12.12.2011, the police had come to Neral and shown him photographs, and that later, he identified the accused in the TIP.

39. P.W.17 (Anand Potdar) is the brother of P.W.16 (Kishor Potdar) and he also claimed to be plying his own taxi in the said area. He took lift in the car of the accused No.1 (Naresh Golani) along with his brother. During the course of enquiry, the police came to Neral on 12.12.2011 and showed photographs of the persons whom he had seen in Matheran and taken lift upto Neral. He identified the accused in Court through video-conferencing. He also claimed to have identified the accused in the TIP.

40. P.W.18 (Sahebrao Bodre) was working as a watchman in the gas filling station at Matheran where the accused were alleged to have stopped for filling gas. The said witness claimed that when he was on duty on 17.11.2011, in the early hours of the next day, the vehicle of the accused came to the gas station and gas worth Rs.1002/- was allegedly filled. On 12.12.2011, the police enquired by showing photographs, which the said witness claimed to have identified. Later, the said witness identified the accused in the TIP.

41. P.W.19 (Narayan Korde) was working at the said gas station and he claimed to have filled the tank of the vehicle of the accused worth Rs.1002/- and he also claimed to have issued the bill to the person driving the vehicle after putting the vehicle number. The said witness claimed that the driver asked for the road to Panchgani. This witness also stated that the police had shown him the photographs to identify the persons, who had come to the gas station. Later, he claimed to have identified the accused in the TIP.

42. The aforesaid witnesses P.W.15 to P.W.19 are heavily relied upon by the prosecution to prove the last seen together theory in order to claim that their evidence conclusively proved that the deceased was in the company of the appellants (accused persons) in the early hours of 18.11.2011 and therefore, the burden was upon them to explain as to when they parted company with the deceased, particularly when the body of the deceased was found on 19.11.2011 in the morning.

43. The evidence of these witnesses for the last seen together theory has to be appreciated with the other incriminating circumstance pertaining to the said witnesses i.e. identifying the accused in the TIP. It was vehemently submitted on behalf of the appellants that the process, involving the said witnesses identifying the appellants in the TIP and in the Court, was completely vitiated because in their evidence, they had stated that the police, during investigation and even before the TIP was conducted, had already shown photographs of the appellants. By placing reliance on the judgement in the case of Gireesan Nair and others Vs. State of Kerala (supra), it was submitted that photographs of the appellants being shown prior to conducting the TIP completely vitiated the identification of the accused by such witnesses. In the said judgement, the Supreme Court observed as follows:-

42. This Court in Budhsen and Anr. v. State of UP, had directed that sufficient precautions have to be taken to ensure that the witnesses who are to participate in the TIP do not have an opportunity to see the accused before the TIP is conducted. In Lal Singh v. State of U.P., this Court had held that a trial would be adversely affected when the witnesses have had ample opportunity to see the accused before the identification parade is held. It was held that the prosecution should take precautions and establish before the court that right from the day of his arrest, the accused was kept “baparda” to rule out the possibility of his face being seen while in police custody. Later, in Lalli v. State of Rajasthan and Maya Kaur Baldevsingh Sardar and Anr. v. State of Maharashtra, this Court has categorically held that where the accused has been shown to the witness or even his photograph has been shown by the investigating officer prior to a TIP, holding an identification parade in such facts and circumstances remains inconsequential. Another crucial decision was rendered by this Court in Shaikh Umar Ahmed Shaikh and Anr. v. State of Maharashtra, where it was held: “8..... But, the question arises: what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the identification parade in the police station. The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made the basis for recording conviction against the accused. The reliance of evidence of identification of the accused in the Court by PW 2 and PW 11 by the Designated Court, was an erroneous way of dealing with the evidence of identification of the accused in the Court by the two eyewitnesses and had caused failure of justice. Since conviction of the appellants have been recorded by the Designated Court on wholly unreliable evidence, the same deserves to be set aside.’”

44. On the other hand, the learned APP submitted that the evidence of P.W.15 to P.W.19 merely demonstrated that photograph of the deceased was shown and not that of the appellants, thereby showing that the said contention could not be raised on their behalf. In this context, this Court has again examined the evidence of P.W.15 to P.W.19. A perusal of the same shows that at some places, the plural expression ‘photographs’ has been used and at some other places, the singular expression ‘photograph’ has been used by the said witnesses while referring to the fact that the police, during the course of enquiries and investigation, had shown photograph / photographs to these witnesses. Even if the contention raised on behalf of the prosecution is to be considered, this Court finds that P.W.15 to P.W.19 have all referred to the fact that on 12.12.2011, the police, during the course of enquiry, did show photograph / photographs to the said witnesses. In the flow of their evidence, it can be seen that these witnesses indicated that photographs of the accused i.e. the appellants were shown to them during the course of enquiry on 12.12.2011. The evidence of P.W.17 (Anand Potdar) i.e. one of the persons, who took lift in the car belonging to accused No.1, clearly stated in his examination-in-chief, that the police on 12.12.2011, during the enquiry, showed the photographs and enquired whether on 17.11.2011, the persons from the photographs had been to Matheran or Neral. The said witness in his cross-examination conceded that it was true that after the photographs were shown, he and his brother P.W.16 (Kishore Potdar) identified the appellants.

45. It is also a matter of record that after the evidence of P.W.15, P.W.18 and P.W.19 was completed on 23.11.2015 and 17.03.2016 respectively, after about four years, on 04.03.2019 and 13.03.2019, these witnesses were called in for further examination-in-chief. At this stage, they were shown photographs at Article J (colly.) whom they identified as the third person i.e. the deceased along with the accused person seen at Matheran. The prosecution feeling the need to call upon these witnesses for further examination after about four years to show the photographs of the deceased, further fortifies the contention of the appellants that when the evidence of P.W.15 to P.W.19 was recorded and they referred to photographs being shown to them on 12.12.2011, those were the photographs of the accused.

46. Once this aspect is established, the law laid down by the Supreme Court in the case of Gireesan Nair and others Vs. State of Kerala (supra) applies and identification of the appellants by these witnesses in the TIP as well as in the Court stands completely vitiated. In other words, the basis of the last seen together theory of the prosecution is adversely affected by the very identification of the appellants by these witnesses being vitiated due to the photographs of the appellants being shown at the stage of enquiry itself to the said witnesses. Thus, the incriminating circumstance of TIP falls to the ground. Even otherwise, as held in the case of Raja Vs. State by the Inspector of Police, AIR 2020 SC 254, TIP is a part of the investigation that affords the platform lending corroboration to the ultimate statements made by the witnesses before the Court. As to how much weightage is be given to the TIP depends upon the facts and circumstances of each case. In the present case, although P.W.15 to P.W.19 claimed to have identified the appellants in the TIP and some of them claimed to have identified both the appellants in the Court either physically or through videoconferencing, as noted hereinabove, the photographs of the appellants being shown to these witnesses prior to conducting the TIP, on 12.12.2011, during the course of enquiry itself, completely vitiated the prosecution case regarding these witnesses having identified the appellants as the persons seen with the deceased at Matheran in the early hours of 18.11.2011.

47. The last seen together theory of the prosecution heavily relies upon the evidence of the witnesses - P.W.15 to P.W.19 and if the very identification of the appellants by these witnesses is found to be vitiated, the said theory is also adversely affected.

48. It is also a settled position of law that the last seen together theory is only one of the circumstances in a case pertaining to circumstantial evidence and that it must form part of a chain of circumstances that points only towards the hypothesis of guilt of the accused. It is also a settled principle of law that the last seen together theory really comes into play when the time-gap between the point in time the accused was last seen with the deceased is in close proximity to the body of the deceased being found. This is because when the time- gap is small, any other person, being the author of the crime, becomes an impossibility. This was held by the Supreme Court in the case of State of Uttar Pradesh Vs. Satish, (2005) 3 SCC 114, relied upon by the Supreme Court subsequently in the case of Ramreddy Rajeshkhanna Reddy and another Vs. State of Andhra Pradesh (supra). This was reiterated in the case of Digamber Vaishnav and another Vs. State of Chattisgarh, (2019) 4 SCC 522, wherein the Supreme Court found that if there is any credible evidence that, just before or immediately prior to the death of the victim, the accused were last seen together with the victim, at or near about the place of occurrence, the needle of suspicion would certainly point towards the accused as being the culprits.

49. In this context, the learned APP has heavily relied on the burden on the appellants, in the present case, to show as to when they parted company with the deceased by relying upon Section 106 of the Evidence Act. Even in the case of Ram Gopal s/o. Mansharam Vs. State of Madhya Pradesh (supra), upon which the learned APP placed much reliance, after referring to Section 106 of the Evidence Act as also the exclusive knowledge of the accused in such cases, the Supreme Court referred to its judgement in the case of Satpal Vs. State of Haryana, (2018) 6 SCC 610, wherein it was held that last seen together, as a facet of circumstantial evidence, can be said to be a weak kind of evidence in itself and that singularly, it may not lead to conviction. It was emphasized in the said judgement that when such last seen together theory is pressed into service, it has be taken as an incriminating circumstance when the evidence shows that the deceased was last seen with the accused and the recovery of the corpse was in very close proximity of time, thereby placing the burden on the accused to give an explanation under Section 106 of the Evidence Act.

50. In the present case, we have already found hereinabove that the evidence of P.W.15 to P.W.19 has been vitiated by the fact that the police, during enquiry itself, on 12.12.2011, showed photographs of the accused to the said witnesses. But, even on the touchstone of the proximity in time, between the point in time when the appellants were allegedly last seen with the deceased and the point in time when his dead body was found, in the present case, the prosecution has not been able to demonstrate that such a last seen together theory would amount to a serious incriminating circumstance against the appellants.

51. Even according to the evidence of these witnesses i.e. P.W.15 to P.W.19, they saw the deceased with the appellants in the early hours of 18.11.2011. This Court is ignoring the fact that in some places, the witnesses have referred to ‘p.m.’ instead of ‘a.m.’. Even if it is to be accepted, for the sake of argument, that the appellants were seen with the deceased in the early hours of 18.11.2011, the body of the deceased was found in the morning of 19.11.2011 at about 9:30 a.m. by P.W. 29 (Dinkar Pangare). It is also a matter of record that in the post-mortem report dated 19.11.2011, showing the post-mortem being conducted between 6:00 p.m. and 6:30 p.m., rigor mortis was absent and there were no signs of decomposition or post-mortem lividity.

52. In this context, the evidence of P.W.35 i.e. (Dr. Shankar Sutar), who conducted the post-mortem is crucial, for the reason that neither in the examination-in-chief nor in the cross-examination, has this witness made any statement about the time of death or the number of hours before the post-mortem that the death of the victim had occurred. Yet, the trial Court, in paragraph 28, has surprisingly recorded that the medical expert, after autopsy, opined that the victim had died 48 hours prior to the post-mortem being conducted. This finding is not borne out from the evidence on record and in fact, it appears to be in the teeth of the post-mortem report on record. The finding is perverse and it has a crucial bearing on the last seen together theory propounded by the prosecution. In the facts and circumstances of the present case, even if the theory of the prosecution that the appellants were last seen with the deceased in the early hours of 18.11.2011 (between 2:30 a.m. and 3:30 a.m.) is to be accepted, for the sake of argument, it cannot be said to be in very close proximity or close proximity of the point in time when the body of the victim was found i.e. at around 9:30 a.m. on 19.11.2011. Therefore, one of the strongest incriminating circumstances, claimed by the prosecution against the appellants, is found not to have been proved, thereby indicating error committed by the trial Court while holding against the appellants.

53. The prosecution has also relied upon CCTV footage and it is claimed that since the primary source i.e. the hard-disk and the DVR were recovered, certificate under Section 65-B of the Evidence Act was not necessary and the argument raised in this context, in support of the appeals ought not to be accepted. In this context, much reliance was placed on the judgement of the Supreme Court in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others (supra). It was submitted that even if the CCTV footage recorded in the pen-drive may have required a certificate under Section 65-B of the Evidence Act, since the primary source in the form of hard-disk and DVR was itself produced by the prosecution, the argument raised on behalf of the appellants cannot be accepted. In this context, the relevant witnesses for the CCTV footage were P.W.34 - Amol Mane, P.W.37 - Swapnil Kumbhar, P.W.39 - Dilip Patil (investigating officer for CCTV seizure) and P.W.40 - Manoj Hirelkar (main investigating officer himself).

54. A perusal of the evidence of P.W.34 (Amol Mane) shows that he was the panch witness for the seizure of the hard-disk and DVR, as also for copying the CCTV footage in the pen-drive. The said witness surprisingly stated in his evidence that the recording pertains to the period between 3:15 p.m. and 4:00 p.m. dated 18.11.2011. This goes against the theory of the prosecution itself about the CCTV footage being of the early hours of 18.11.2011. But, the said aspect can be ignored because in the further examination-in-chief, this witness did refer to the timings being 3:45:34 hours to 3:55:04 hours pertaining to camera 3 of the said gas station at Matheran. But, in cross-examination, this witness stated that the police told him that the hard-disk was brought from the said gas station / petrol pump. It is not as if this witness himself testified to the fact that the hard-disk was taken into custody in his presence by the police from the concerned gas station / petrol pump. But, the most crucial aspect pertains to the further examination of this witness on 04.03.2019 when the witness was recalled. The note pertaining to recalling of this witness records that the computer clerk had submitted that the file in the pen-drive at Article ‘O’ was corrupted and could not be played. Therefore, a request was made by the learned APP that the hard-disk be attached to the laptop. The clerk submitted that it could not be attached to the laptop. Thereafter, in the further examination-in-chief, the said witness (P.W.34) stated that he could not remember whether the persons seen in the CCTV footage were present in Court as the CCTV footage was not clear on that day. He further stated that the CCTV footage not being clear, he could not identify, although he claimed that while copying the CCTV footage, it was clear. This is a complete give away for the prosecution case as the evidence of one of the crucial witnesses for recovery of CCTV footage stood vitiated.

55. The next witness concerned with seizure of CCTV footage was P.W.37 (Swapnil Kumbhar). This witness stated that he was working with the security agency, which had installed the CCTV cameras at the concerned petrol pump / gas station and when the police called for backup of the CCTV footage, he showed them footage from 3:30 p.m. to 4:15 p.m. and copied the said 24 files. He stated that he handed over the hard-disk, DVR and pen-drive with backup to the police. He further stated that the movements, which were seen in the CCTV footage, were in respect of two persons and that, one of them was present in Court hall. But, the said evidence has to be read with the evidence of P.W.34 (Amol Mane), who conceded that when the CCTV footage was played for assisting the Court, it was unclear.

56. The next witness for CCTV footage seizure was P.W.39 (Dilip Patil). He submitted that the panchanama for seizure of hard-disk, DVR and pen-drive was executed in his presence. As noted hereinabove, the evidence of the said witness is also to be read along with the evidence of P.W.34 (Amol Mane).

57. P.W.40 i.e. the main investigating officer also made depositions about such seizure of CCTV footage. But, this Court is of the opinion that on an overall analysis of the evidence of the aforesaid witnesses pertaining to seizure of CCTV footage, the pen-drive being corrupted and hence not being played in the Court and P.W.34 (Amol Mane) stating that the CCTV footage was not clear, and hence he could not identify the persons, takes the wind out of the incriminating circumstance pertaining to CCTV footage harped upon by the prosecution. Thus, this incriminating circumstance in the chain of circumstances also cannot be said to have been proved beyond reasonable doubt.

58. The prosecution has also relied upon the next incriminating circumstance i.e. recovery of the stolen diamonds from the house of accused No.1 (Naresh Golani). The evidence of P.W.[4] (Rajendra Bhurke) is relevant for the said circumstance. He is the panch witness for execution of the panchanama for recovery of diamonds. The said witness has deposed that the accused No.1 Naresh Golani took the investigating team along with panchas to his house and took out one wrapper kept behind water tank located on a loft in the kitchen of the house. Diamonds were found in that wrapper, which were valued at about Rs.72 lakhs. It is to be noted that according to the prosecution case, diamonds worth more than Rs.[1] crore had gone missing. It is also a matter of record that the investigating team had visited the house of the accused No.1 prior to the said visit with panch witness P.W.[4] (Rajendra Bhurke). The aforesaid visit of P.W.[4] (Rajendra Bhurke) on 05.12.2011 resulted in recovery of diamonds. But, it is inexplicable why the investigating team did not undertake the said exercise when it had earlier visited the very same house of accused No.1 (Naresh Golani) on 25.11.2011, along with panch witness P.W.[2] (Jagdish Patel), car of the said accused person as also the nylon rope (found in the car), allegedly used in the crime, were recovered.

59. But, the most crucial aspect of the incriminating circumstance pertaining to recovery of the stolen diamonds is that, the said diamonds were never produced before the Court during the course of trial. Only a statement of the learned APP was recorded that the diamonds were already returned to the original owner. The appellants are justified in relying upon the judgement of the Supreme Court in the case of Niranjan Panja V.s State of West Bengal (supra), wherein the Supreme Court held that discovery of a weapon in the said case could not be relied upon by the prosecution at all, in the absence of the weapon being produced before the Court. In the present case, failure on the part of the prosecution to produce the diamonds in the Court must lead to the conclusion that the discovery of the said diamonds from the house of the accused No.1 Naresh Golani cannot be relied upon. Thus, the aforesaid incriminating circumstance is also not proved beyond reasonable doubt.

60. This also cuts into the next incriminating circumstance claimed by the prosecution i.e. the motive for the crime being the stealing of diamonds from the deceased. Once the discovery and recovery of diamonds is disbelieved on the ground that the diamonds were never produced before the trial Court, the whole theory of motive is destroyed. As per settled law, motive assumes great significance in cases of circumstantial evidence and therefore, it has to be held that the prosecution has not been able to support its theory of the motive for the crime, in the present case, being stealing the diamonds from the deceased.

61. The recovery of weapons, in the present case, being another incriminating circumstance in the chain of circumstances, is also rendered doubtful because of the place from where such material was recovered. P.W.[5] (Kishore Patel) is the panch witness for recovery of knife that was allegedly used in the present crime. It was claimed that accused No.2 - Dharmesh Patel led the investigating team to recovery of the said knife. As per the statement of the said P.W.[5] (Kishore Patel), the knife was recovered from bushes on the road from Panchagani to Mahabaleshwar. In other words, it was recovered from an open place accessible to all.

62. P.W.20 (Subhash Shirsat) was the panch witness for recovery of belt of car cover allegedly used in the crime and also mobile phone belonging to the deceased. A perusal of the evidence of the said witness shows that the aforesaid material was found behind a decorator’s shop. The witness stated that the accused No.2 took the investigating team and the panch witnesses behind the decorator’s shop by entering into it from the front. There is no material brought on record as to how the accused No.2 (Dharmesh Patel) had access to the area behind the shop of the decorator or whether he knew the owner of the said shop, who gave him access and also whether the said portion was generally accessible. The Supreme Court, in number of judgements, has held that such recoveries made from open places that can be said to be accessible, are rendered a weak piece of evidence and that it is not safe to rely upon such recoveries. In fact, in most cases, such recoveries are discarded. This has been held in the case of Jaikam Khan Vs. State of Uttar Pradesh, (2021) 13 SCC 716; Nikhil Chandra Mondal Vs. State of West Bengal, (2023) 6 SCC 605 and Manjunath and others Vs. State of Karnataka (supra). Applying the said position of law to the evidence of the prosecution in the present case, regarding recovery of the weapons of assault, particularly the knife, shows that such recoveries deserve to be discarded. Thus, the said incriminating circumstance, claimed by the prosecution to be part of a chain of circumstances, is also not established in accordance with law.

63. The next incriminating circumstance is the evidence relating to the use of a particular mobile number and the corresponding sim-card by accused No.1 (Naresh Golani). In this context, the prosecution has relied upon evidence of P.W.[9] (Vipul Dobariya), P.W.10 (Ghansyam Bhanderi) and P.W.11 (Haresh Gajera). It is claimed that P.W.11 (Haresh Gajera) provided documents of some individual for obtaining a sim-card, which eventually found its way to the accused No.1 (Naresh Golani) through P.W.[9] (Vipul Dobariya) and P.W.10 (Ghansyam Bhanderi). The person whose documents were used for obtaining the sim-card was not examined. In any case, even if the evidence on record regarding the said sim-card connecting accused No.1 (Naresh Golani) is to be accepted, it shows that as per the CDRs, a few calls were made from that number to the deceased. It is undisputed that the accused persons are also in the business of diamonds and they are distantly related to the deceased and his family. Thus, some calls being made from the said number, in itself, cannot be an incriminating circumstance against the accused persons.

64. It is also to be noted that according to the prosecution, the accused persons abducted the deceased and took him around till they stole the diamonds from him and eventually, caused his death. The evidence of the prosecution witnesses pertaining to the last seen together theory i.e. P.W.15 to P.W.19 does not, at any place, indicate that the deceased was in the company of the accused persons under pressure or threat. There was nothing to indicate that the accused persons had forcibly taken the deceased, if at all, in their company. Thus, the evidence pertaining to the sim-card, in itself, cannot be an incriminating circumstance to point towards the guilt of the accused persons. Even otherwise, no effort was made during investigation to bring on record the tower locations of the CDRs of the accused. Hence, the movements of the accused during the crucial period were never traced.

65. The prosecution has also relied upon CA reports and much emphasis was placed by the learned APP with regard to presence of human blood in the car belonging to accused No.1 (Naresh Golani), which was seized during the course of investigation. The evidence of P.W.[2] (Jagdish Patel) was relied upon, who deposed that the car was sealed by affixing paper on the door. But, a perusal of the evidence of P.W.22 (Jalinder Sawant) i.e. the police constable, who arranged for the car to be taken to the forensic lab for the analysis, conceded in crossexamination that while all the doors of the car were locked and the front glass was sealed, there was no seal to the lock of the front door. This creates a doubt about the purity of the material reaching the forensic laboratory for chemical analysis, thereby creating further doubt about the effect of the chemical analyst’s report showing human blood in the car. Thus, the said incriminating circumstance relied upon by prosecution is also covered in a cloud of doubt.

66. The prosecution also relied upon medical evidence to support its case including the evidence of the doctor i.e. P.W.35 (Shankar Sutar) pertaining to the post-mortem report. Although the PM report indeed shows number of injuries on the body of the victim, particularly injuries to the neck by sharp weapon and use of rope or belt to strangulate him, the real question is as to who was responsible for inflicting such serious injuries on the body of the victim.

67. Since this is a case of circumstantial evidence, the existence of injuries, indicating brutal assault on the victim, in itself, cannot take the case of the prosecution any further, unless the chain of circumstances on which the prosecution has relied, is established and each circumstance forming the chain is found to have been proved beyond reasonable doubt.

68. In view of the discussion hereinabove, we find that although the trial Court has enlisted incriminating circumstances, as claimed by the prosecution, it has erred in reaching conclusions in favour of the prosecution with regard to proof of each circumstance forming the entire chain. As noted hereinabove, the law in this regard laid down by the Supreme Court in various judgements, including the judgement in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (supra), mandatorily requires the prosecution to fully establish the circumstances from which the conclusion of guilt of the accused is to be drawn. The circumstances are required to be of a conclusive nature and such circumstances should exclude every possible hypothesis, except the one to be proved by the prosecution. The law requires the chain of evidence to be so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. Apart from this, it is settled position of law that if two interpretations are possible i.e. one favouring the prosecution and one favouring the accused, the benefit of doubt must be given to the accused. Hence, the judgements relied upon by the learned APP cannot aid the prosecution.

69. In the present case, as discussed hereinabove, an analysis of the evidence and material on record shows that the prosecution failed to prove the incriminating circumstances beyond reasonable doubt and the chain of circumstances is consequently left incomplete. In such a situation, there is no question of the circumstances pointing only towards the hypothesis of guilt of the accused. The accused i.e. the appellants herein must be given the benefit of doubt. The trial Court erred in not doing so and hence, the impugned judgement and order deserves to be set aside. In view of the above, the appeals are allowed in the following terms:- ORDER

(i) The appeals are allowed;

(ii) The impugned judgement and order dated 27.06.2019 passed by the Court of Sessions at Mumbai in Sessions Case No.253 of 2012, convicting and sentencing the appellants, is quashed and set aside;

(iii) Consequently, the appellants are acquitted of all the charges;

(iv) The appellants, who are in custody, shall be released forthwith, unless required in any other case;

(v) Before being released, the appellants shall execute

P.R.Bonds in the sum of Rs.25,000/- each, under Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 437A of the Cr.P.C.) for their appearance, in the event an appeal is preferred against their acquittal.

70. Pending interim applications, if any, are also disposed of. (MANJUSHA DESHPANDE, J.) (MANISH PITALE, J.) Minal Parab