Jitendrakumar Karansingh Yadav vs Dadra And Nagar Haveli Administration & Ors.

JUDGMENT (Per : Manjusha Deshpande, J.) :-

In all these Appeals the Appellants are challenging the judgment and order of conviction passed by the Sessions Judge, Dadra and Nagar Haveli, Silvassa, in Sessions Case No. 15 of 2012 dated 26.10.2018, whereby the Appellants have been convicted for the offences punishable under Sections 302, 120B read with Section 34 of the Indian Penal Code (“IPC”), sentencing them to suffer rigorous imprisonment for life with a fine of Rs. 5,000/- and in default of payment of fine, to suffer further rigorous imprisonment for two years.

Since all the Appeals are arising out of the same offences and decided by a common judgment of conviction, all the Appeals are being heard and decided together.

The brief summary of facts giving rise to the conviction of the Appellants as pleaded by the prosecution is as under:

The informant PW No. 1 Pankaj Ramchandra Yadav lodged FIR at Silvassa Police Station on 29.11.2011, informing that he had received a call from Master Ujjwal son of Vinod Satyanarayan Mishra at about 7:30 p.m. that his father was injured in a firing incident and was taken to the Government Civil Hospital, Silvassa, requesting the informant to immediately reach the Hospital. The informant visited the Hospital and found that wife of Vinod Mishra (deceased) alongwith their son, daughter and staff members of Reliance company was present in the hospital. He noticed dead body of Vinod Mishra on the stretcher with bullet injuries on his neck and head oozing with blood. He came to know that in the evening while Vinod Mishra was returning from his work in his car towards his house, he had withdrawn some cash from the ATM of SBI, Naroli Road, opposite Pramukh Darshan, Silvassa. After visiting the ATM, when he was about to sit in his car to proceed towards his house at about 6:45 p.m. two persons came on a motorcycle and fired at him resulting in his death. On the basis of this report on 30.11.2011, C.R. No. 278 of 2011, was registered against unknown persons for offence punishable under Section 302 r/w. Section 34 of the IPC and Section 3 and 25(1)(A) of Arms Act, 1959.

Upon registration of the offence, and on completion of investigation, chargesheet came to be filed.

The offence was registered against unknown persons since there was no eye witness to the incident. However, during the investigation, the officer of Crime Branch gathered information that, some years ago Vivek Shrivastav, Accused No. 1 (hereinafter referred to as, “A-1”, for short) and deceased Vinod Mishra used to work together in Reliance Company at Allahabad and there was extramarital affair between A-1 and wife of the deceased Ms Sarita Mishra. On receiving such information, the IO collected the details of mobile number of A-1 and wife of deceased. On gathering information about their cell numbers, from the CDR of both the numbers, it transpired that there was exchange of several calls between the A-1 and wife of the deceased. Therefore, A-1 Vivek Shrivastav was arrested and one cellphone of Blackberry company was seized from him. From the call details of the mobile number 9811991600 i.e. the mobile of A-1, a phone call from Cell No. 8057788316 from U.P. was traced. When the tower location of the said cell number 8057788316 was traced it was found that, it was located in Silvassa and Kharadpada on the day of incident, i.e. on 29.11.2011. The other call details from the cell number revealed three cell numbers, i.e., 8445269532, 7599085282 and 9045132794, were also operating from the vicinity of the tower situated at the place of incident in Silvassa on 29.11.2011. Therefore, the IO has collected information about the Customer Application Forms and CDR of those Cell numbers. On the basis of the information received from the service provider, Accused No.4 (hereinafter referred to as, “A-4”, for short) and Accused No. 5 (hereinafter referred to as, “A-5”, for short) were located and were arrested. During their custody, A-4 disclosed that, they had stayed in G.M. Guest House, Vapi, and prior to that, they also stayed in Jay International Hotel at Vapi. A-5 Sugriv Gangaprasad Yadav in his statement made under Section 27 of the Evidence Act, 1872 disclosed that, A-4 fired on Vinod Mishra on 29.11.2011, and has thrown the revolver in Ambika river. He expressed his willingness to show the place, where the weapon was concealed. However, due to flowing water in the river, nothing could be recovered from the bed of river. He also disclosed that after leaving Vapi, they had halted at Janta Guest House, Surat. A-4 has taken the IO to the house of Aarsh Mohammad Accused No. 2 (hereinafter referred to as, “A-2”, for short) at Tundla in UP, but he was not located. Even, Jitendra, Accused No. 3 (hereinafter referred to as, “A-3”, for short) was not found in his house, but during search of his home, bills of Hotel were seized from his house.

The incriminating evidence collected by the prosecution to prove guilt of the A-1 to A-5, which eventually resulted in their conviction is as follows: (i) the CDR of the mobile phone of all the accused; (ii) the statement of PW-4 Vishakha daughter of deceased; (iii) hotel bills of three different hotels, i.e. Jay International, Vapi, G.M. Guest House, Vapi, Janta Guest House, Surat. The ID proof of A-3, A-4 and A-5 and extract of the register was collected from these hotels; (iv) the CDR locations of all the accused were also collected which disclose their location in and around at the place where the incident had occurred.

In order to prove the ‘motive’, reliance is placed on the CDRs and calls between A-1 and Sarita Mishra wife of deceased.

It is the case of the prosecution that a conspiracy was hatched by A-1- Vivek to eliminate the deceased Vinod Mishra since he was proving to be hurdle in the extramarital affair with his wife Sarita, for which he had hired A-2 to A-6 (Accused No. 6 is absconding), for which he had paid consideration in four different transactions by depositing amounts in the bank account of Accused No. 3- Jitendra Karansingh. Thus, on the basis of the transaction in the SBI account of A-3, a theory of conspiracy was supported by the prosecution.

The prosecution has thus developed the story of conspiracy to eliminate the deceased by A-1. It is alleged that A-1 hired A-2 to A-6 and had made payment for eliminating the deceased, accordingly they have executed the works. Their participation in the offence is traced from the CDR of the cell number of A-1 and was further strengthened from the tower location of the SIM used by them, which was found to be in and around the place of offence, and their stay at hotels at Vapi and Surat, before and after the commission of offence. Thus, on the basis of the aforementioned evidence, the learned Judge of the Sessions Court at Silvassa, being satisfied with the complicity of all the accused, has passed judgment convicting all accused for the offences punishable under Sections 302, 120B read with 34 of the IPC.

The learned counsel appearing for the respective Appellants have advanced following submissions:

Mr. Sandesh More, learned counsel for A-1 , who is the alleged master mind and conspirator of the offence submitted that, prosecution has failed to prove the ‘motive’ for commission of the offence, more particularly when the entire case is based on circumstantial evidence. Although PW-4 Vishakha has deposed about the alleged extramarital affair of her mother with A-1, there are number of contradictions and omissions in her testimony. The prosecution has failed to prove exactly which of the accused had fired the shot from the gun at the deceased. There is no recovery of the ‘weapon’, i.e. revolver. Even the procedure during the investigation of the offence is tainted, since no proper procedure while arresting A-1 was followed by P.W.-37. The cell number 9711991600 which is allegedly owned by A-1, does not stand in his name but in the name of the company “Bajaj Hindusthan limited”, thus, the exchange of call from that number to the cell number of wife of the deceased Sarita cannot be attributed to him.

So far as the electronic record i.e. the CDR is concerned, according to him, no certificate under Section 65 B(4) has been issued, thus, the evidence regarding CDR is inadmissible. Most importantly, the tower locations and google maps were not exhibited before the trial Court and have not been proved. He therefore submitted that since the whole case of the prosecution rests on the circumstantial evidence, each link has to be proved by the prosecution beyond reasonable doubt and in case of absence of a single missing link, the benefit is required to be given to the accused. In support of his submission, he placed reliance on the reported judgment of Ravi Vs. State of Punjab^{11.(2025) 3 SCC 584}.

Learned Advocate Mr. Ajay Gaikwad for Aarsh Mohd. Lal Mohd. A-2 would submit that, although this case is based on circumstantial evidence, the prosecution has miserably failed to produce any evidence of whatsoever nature to prove the complicity of the accused. Eventhough the prosecution claims that, they have traced A-2 from his mobile number 8445269532, the said mobile number does not belong to him, nor does it match with the ID proof submitted for securing connection to the service provider. Therefore, the evidence on the basis on which he has been arrested is not proved by the prosecution.

He further submits that the ID proof of A-2 was not found in any of the register of the guest house. There is no recovery of alleged mobile from his possession. The arrest panchanama does not disclose the mobile calling number of A-2. Though the CDR report is produced through PW-32 Nodal Officer of the Uninor Company, it is not proved by producing certificate under Section 65B of the Evidence Act. In fact, the said mobile number does not belong to him nor does it stand in his name; it stands in the name of one Mr. Ajay Shreeram resident of Nagla District Firozabad (U.P). It is therefore submitted that, there is no evidence available against A-2, inspite of which the learned judge of the Sessions Court has convicted him, causing grave injustice and great prejudice, which needs to be appreciated by this Court, by setting aside the Judgment of conviction.

Mr. Hitendra Gandhi, learned counsel appearing for A-3 submitted that whole story of the prosecution is based only on the CDRs of the respective accused. Though reliance is placed on the CDRs of particular cell number, the said cell number does not belong to the accused nor is it recovered from his custody. The ID proof submitted to secure connection of the said cell number did not match with his ID proof. Though the PW-21, Manager of Janta Guest house at Surat and PW-28 Sujit Kumar, Manager G. M. Guest House at Vapi were examined for his stay at these two places, there is nothing on record to show that they identified the accused. There is no Test Identification (TI) Parade conducted by the prosecution.

According to the learned counsel, doc identification is not reliable when there is no prior TI Parade, hence the benefit of doubt is required to be given to the accused. Although it is alleged that a motorcycle was used in the offence and A-3 was instrumental in taking delivery of the motorbike, nothing is produced by the prosecution to prove that the delivery of motorbike was taken by A-3 and even the alleged motorbike has not been seized.

Although it is alleged that A-1 had deposited amounts in the account of A-3 on four different occasions, allegedly towards the payment made for the commission of the offence. It is totally denied by A-3, contending that he also being an employee of the Company “Bajaj Hindusthan” received the amount deposited by A-1. It is submitted that though it is alleged by the prosecution that cell number 9911295438 belongs to him, the arrest panchanama discloses that the cell phone with the above number was not recovered from A-3, there is no CDR report of the aforesaid mobile number. Thus, according to him, the prosecution has miserably failed to prove his complicity in the offence. Inspite of which he has been convicted for the offence, that is not committed by him.

The learned Counsel Mr. Sandesh More for A-4 submitted that inspite of the failure of the prosecution to prove the motive or produce any substantive evidence, the learned Judge of the Sessions Court has recorded conviction against the accused. It is submitted that, except the CDRs of mobile number 805778316, there is no other evidence against A-4. PW-26 the Nodal Officer, who was examined to prove the said cell number has failed to prove it. Neither the bike nor the firearms used in the offence are recovered. Certificate under Section 65B (4) to prove the CDR, has not been produced by the prosecution making the evidence inadmissible. It is thus submitted that there is no substantial evidence produced by the prosecution, so as to convict the accused, when it is a settled law that in case of circumstantial evidence the prosecution has to prove the case beyond reasonable doubt. With the scanty material produced by the prosecution, which does not have any evidentiary value the learned Judge has recorded finding of conviction, which deserves to be quashed and set aside.

Learned Advocate Mr. Hemant Ghadigaonkar for the Appellant, Sugriv @ Setu Ganprakash Yadav, (Org. Accused No. 5) submits that allegations against him are that he was the pillion rider of the motorcycle which was used in the offence. He allegedly fired from the revolver at the deceased in the incident near the ATM of the State Bank of India. It is the contention of the Appellant that even though, it is alleged that A-5 was the one who fired at the deceased, neither the revolver which was used, has been recovered nor the motorbike has been recovered. Thus, the case of the prosecution is entirely based on suspicion. There is no TI Parade conducted by the IO for identification of the accused. The only incriminating material available against A-5 is, the CDR made from Cell No. 9045132794. The CDR disclosed that the said mobile number was located at the place of incident, during the period when the incident had taken place.

The learned Advocate for the Appellant submits that even if his alleged involvement in the offence is based on the CDR of a cell phone, the alleged cellphone is not recovered from possession of A-5, which finds support from the arrest panchanama. Just because the CDR location of Cell No. 9045132794 was found to be located near the place of incident, cannot be a ground for implicating A-5. The allegations are also that the aforesaid mobile calling number was found for almost 15 days in the vicinity of the incident. Apart from that, it is submitted that the CDR report is not supported by certificate under Section 65(B) of the Evidence Act. This fact has been admitted by PW- 25, who was the Nodal Officer of the service provider of TATA Tele Services, issuing the alleged SIM card.

He further submits that, though it is alleged by the prosecution that the mobile calling number 9045132794 belonged to A-5, the Nodal Officer PW-25 produced the application form of the connection, which disclosed that it stands in name of Prem Kumar and not the accused. The prosecution has failed to examine so called Prem Kumar in order to establish that, the mobile calling number 9045132794 was in custody of the A-5.

Further reliance is placed on PW-19 the Manager of the GIDC, Vapi, who has stated that there was one person named Bunty who was staying in their guest house, he had given his mobile number 9058932616, which is a different number from the mobile number allegedly found in the CDR of the place of incident. Thus, according to him, the prosecution has failed to establish that A-5 was in use of mobile calling number 9045132794, which was used by him to keep in touch with the other accused. He therefore submitted that, there is no evidence of substantive nature produced against him that would prove complicity of the accused in the offence. Thus, the judgment and order of conviction passed against A-5 is required to be quashed and set aside.

The learned APP Mr. Khan has vehemently opposed the submissions made by the respective counsel appearing for the Appellant- convicts. According to him, although there is no eye witness to the incident, which has resulted in an offence u/s 302 of IPC, it is a clear case of conspiracy hatched by A-1 Vivek Srivastav, who is the instigator and the mastermind behind the commission of offence. He has hired A-2 to A-5 for execution of his plan.

He submits that PW–4, the daughter of deceased in no uncertain terms has stated that A-1 used to call her mother and there used to be long talks between them. She also stated that there was quarrel between her mother and wife of A-1 Meera, since she did not approve of the frequent calls between A-1 and wife of the deceased. She has stated that even after her father was transferred to Nagpur and thereafter to Vapi, the conversation between them continued and it was the reason for quarrel between the deceased and his wife. She has narrated one occasion, while she was sitting beside her father one day he received call from A-1, who threatened to kill her father.

P.W. 7 Kalpesh Solanki, Manager in Reliance Communications, Kharadpada has stated that, he also had heard about extramarital affairs between Vivek and wife of deceased, Thus, according to the learned APP, the ‘motive’ for commission of the offence by A-1 Vivek Srivastav has been proved through the testimony of PW-4.

Mr. Khan further submitted that, in order to execute his plan, A-1 had hired A-2 to A-5 and A-3 was the financial co-ordinator. A-1 had deposited Rs.40,000/- in the account of A-3, i.e. Rs.10,000/-each on 27.08.2011 and similar amount on 26.11.2011, 30.11.2011 and 01.12.2011. The prosecution has examined PW-12, Branch Manager of SBI, Sarangpur, U.P., who stated that accused had deposited Rs.10,000/- each in the account of A-3 on 27.08.2011, 26.11.2011, 01.12.2011. These amounts have been deposited by A-1 towards the consideration of execution of the plan to eliminate the deceased, these amounts are the contract money for execution of the conspiracy hatched by A-1. It is proved by examining PW-12 Jayshankar, Bank Manager SBI, which clearly supports the prosecution case that A-1 had hired A-2 to A-5 for commission of the offence for which A-1 deposited the amounts in the account of A-3.

The learned APP has drawn our attention to the various dates on which the accused persons have visited Silvassa, for conducting surveillance and after committing the offence they have left the hotel. The details of those hotels and the ID proofs of the accused submitted in hotels have been collected during the investigation which forms part of the record. The chronology dates of the visits of A-3, A-4, A-5 at Silvassa, Vapi and their stay at guest house/hotels is as follows:

On 30.07.2011 at Ran Basera Guest House; from 18.08.2011 to 30.08.2011; at Jay International Hotel between 18.10.2011 to 22.10.2011; between 24.11.2011 and 29.11.2011 at G.M. Guest House, and at Janta Guest House from 29.11.2011 to 30.11.2011. The prosecution has collected the ID proofs of the A-3, A-4 and A-5 from these hotels/guest houses, pursuant to the memorandum statement given by them, and also recorded the statement of the managers of the guest house/hotel who identified the A-3 to A-5. Thus, it stands proved that the A-2 to A-5, who reside in U.P. were hired by A-1 who also is resident of U.P. for commission of offence at Silvassa for which they had caused surveillance on the dates as referred hereinabove, and even on the date on which the offence has taken place.

Mr. Khan further relies on the CDR of the mobile numbers of the accused persons, which shows that, all the accused were within the vicinity of the place where the offence has been committed and they were in contact with each other. According to him, the CDR of A-2 to A-5 and A-1 shows that, not only were they in the vicinity of the place of offence, but they were also in contact with each other, which fortifies the case of the prosecution about the complicity of accused in the offence.

He further submitted that, so far as the complicity of A-1 is concerned, though he was not present at the place where offence has taken place or even in the vicinity, he is the conspirator of the offence, which is proved through the various call details between him and A-2, A-3 and A-5. The clinching evidence available against A-1 is the blackberry mobile phone, which has been seized from him after his arrest. Various calls from the said calling number are also detected between A-1 and the wife of the deceased. This itself renders strong support for the ‘motive’ for commission of offence.

He submits that the tower location record of the accused persons on the date of the incident and on the subsequent occasion when they visited the place to effect the recovery have been duly proved through the evidence of the Nodal Officers. Mr. Khan, therefore, submits that the prosecution has established the motive for commission of offence by A-1 by hiring A-2 to A-5, for which they were paid through A-3. The location of the cell numbers of A-2 to A-5 proves that they were present at the location where the incident has occurred, which is further supported from the evidence which discloses that, they have stayed at the hotels before and after commission of the offence. Hence, according to him, the chain of circumstantial evidence is established, which points only towards the guilt of the accused.

In support of his submission, he relies on the recent decision of the Hon’ble Supreme Court in case of Kum. Shubha @ Shubhashankar Versus State of Karnataka and Another^{22.2025 SCC OnLine SC 1426}, more particularly, on para 86 of the said judgment, where the Hon’ble Supreme Court has observed that while CDR data may not be construed as substantive piece of evidence but it is certainly to be used for appropriate corroboration. One has to see the attending circumstances to decide the evidentiary value of CDR, and it is possible that the evidence is so overwhelming and the conduct of accused is such that, he is bound to give a sufficient explanation for it, but he fails to do so, in such case, the CDR might even take the place of substantive evidence. In view of the aforementioned observation by the Hon’ble Supreme Court, Mr. Khan submits that even in this case the attending circumstances warrant that the CDR should be treated as substantive evidence.

We have heard the respective Advocates appearing for the Appellants and the APP for the State. With their assistance we have also perused the evidence in the form of testimony of witnesses, and the supporting documents produced by the prosecution.

The case of the prosecution is undoubtedly based on circumstantial evidence, hence we are guided by the decision of the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra^{33.(1984) 4 SCC 116}, which lays down the following guiding principles, which reads thus:

The same principles have been followed and reiterated in plethora of subsequent judgments which lay down more or less the same principles for cases governing circumstantial evidence wherein, the chain of events is required to be proved by reliable and clinching evidence, which points only towards the guilt of the accused. No other hypothesis, other than the guilt of the accused is possible. The Courts have to satisfy themselves that the circumstances in the chain of evidence rules out every other possibility except the guilt of the accused. Applying the aforementioned ratio, the Hon’ble Supreme Court in case of Navneet Krishnan Vs. State by Inspector of Police^{44.2018 16 SCC 161} has also cautioned the Courts that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. Sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. Hence, the Court should be mindful of the caution, in its decisions, on the settled principles of law when a prosecution case rests on circumstantial evidence. Unless the complete chain, of circumstantial evidence is established without a snap in the chain pointing towards the hypothesis against guilt of accused, it is not advisable to give a finding of conviction against the accused.

Keeping in mind the aforesaid observations and settled position of law, we proceed to analyze the present case. The incident had occurred on a busy road on 29.11.2011, there is no eye- witness to the incident. The P.W. 37 has stated in his testimony that, when he reached the place of incident, he was informed that, the deceased was shot by two persons riding on a motor cycle, he has not recorded the statement of the person who gave this information. He admitted in his cross examination that, the said person had not given him the description of those motorists Thus, the investigation was required to proceed without any clue about the assailants.

It is the case of the prosecution that A-1 is the mastermind and conspirator of the offence, who has hatched the conspiracy which was executed by him, through A-2 to A-5 and one more accused who is absconding. The alleged ‘motive’, according to the prosecution is that, the A-1 Vivek Srivastav had an extramarital affair with the wife of the deceased Vinod Mishra, therefore he wanted to remove the deceased from their way who was proving to be hurdle in his affair. To support this theory of affair and to prove the ‘motive’, the prosecution has examined PW-4 Vishakha, the daughter of the deceased, who has supported the prosecution and stated that there used to be frequent calls between A-1 and her mother, and these calls would go on for a long duration. She also stated that, her father had received threats to his life from A-1 on his cell phone. Which is not proved due to omission in the statement recorded under Section 161 of Evidence Act, 1872. Except calls between A-1 and her mother, nothing material could be elicited from this witness.

In addition to from PW-4, there is one more witness PW-7, Manager of Reliance Communication, who has stated, he had heard the wife of deceased was in relationship with A-1. This deposition is also hearsay, therefore, it does not carry any evidentiary value.

To prove ‘motive’, a higher degree of proof is required, much more than frequent telephonic conversations. Both these witnesses have merely stated about the affair between A-1 and the wife of the deceased. Both the witness do not have personal knowledge about any meetings between A-1 & wife of deceased, or any other Act, which supports the allegations of an affair.

Suspecting the A-1, the call details from his mobile SIM card calling number 9811991600 were collected by the I.O. The call details disclosed that there are number of calls exchanged between SIM of A-1 to the SIM card of Sarita, wife of the deceased. Although heavy reliance is placed on his Blackberry cell phone with SIM card number 9811991600, the fact remains that, the aforementioned handset, has not been seized from the A-1, at the time of his arrest on 15.12.2011.

His mobile handset has been seized on 16.12.2011. The suspicion about A-1 itself was based on the call details, which were made from the very handset with the SIM. Surprisingly it is revealed from the testimony of P.W. 35 I.O. who arrested A-1 that, he had taken search of accused after his arrest and found mobile handset on his person, but he did not seize the same. P.W. 36, PSI at Silvassa has stated that, on 16.12.2011, when A-1 was brought to the police station, the PSI has seized the Blackberry mobile handset from the custody A-1. The mobile handset, which is a crucial evidence in the present case, has not been seized at the first opportunity, which creates doubt. Hence, the seizure of mobile handset on 16.12.2011, is not a reliable and trustworthy evidence, particularly, when the whole story itself is woven around the calls made from the very Blackberry phone, to the wife of the deceased, as well as A-2 to A-5. Thus, this piece of evidence which is a link in chain of evidence creates doubt.

The other reason for doubting this evidence is that, P.W. 31 the Nodal Officer of the Vodafone company is examined to prove SIM No. 9811991600, which is allegedly used by the A-1. Who has stated that, the application form for issuing Sim of the said company was not traceable. He admitted that even though the card was issued in the name of the company, it can be used by any of the staff members. Prosecution has relied on the personal E-mails received by A-1 to prove, the Blackberry mobile handset alongwith the SIM was exclusively used by the A-1. But the E-mails addressed to the A-1, were also addressed in his official capacity, therefore, merely receiving the E-mails on the aforementioned mobile handset, does not establish use of the handset exclusively by A-1.

As regards the reliance on the exchange of calls between A-1 and wife of the deceased, to prove the existence of their affair is concerned calls between them in itself are not sufficient to prove the extra marital affair. For establishing extra marital affair there has to be substantive evidence in addition to the calls. Thus, the prosecution has failed to establish the extra marital affair between the A-1 and the wife of the deceased, which is the motive for commission of the offence.

According to P.W. 37, the I.O., when he collected the data of the mobile tower of the locality, it disclosed that A-1 was not present in Silvassa, hence, he suspected that he might have hired contract killers. It was revealed that one calling number of Idea Company from U.P. had made contact with the A-1 and the CDR of that SIM was found on the location, of the incident. The user of that SIM card was in contact with 3 other SIM card holders, whose location was found in Silvassa and Kharadpada. After collecting this information P.W.37, the IO, has proceeded to Agra. The user of 2 cell phone numbers, i.e. 8057781316 of Manish Devendra Prasad (A-4) and 9045132794 of Sugriv (A-5) were traced and arrested. Similarly, the other two accused i.e. A-2 and A-3 were also arrested on the basis of location of their cell phones.

In order to establish the complicity of A-2 to A-5, the Nodal Officers of the respective service provider companies have been examined to prove the CDRs of those SIMs, allegedly used by the accused, were found within the vicinity, of the incident. PW-26 Bhavik Arvind Joshi, PW-27 Ganesh Ramrao Pawar, PW-31 Tejesh, PW- 32 Sarob Gurumit Singh, respective nodal officers of the service provider companies have been examined by the prosecution.

So far as A-2 Aarsh Mohamed is concerned, his conviction is solely based on the series of calls between him and A-1, A-2 and A-4. The mobile number attributed to A-2 is 8445269532. It is alleged that he has established contact with the other accused from this very SIM card. To establish the complicity of A-2, the prosecution has examined P.W. 32 Mr. Sarov Singh, Nodal Officer of Uninor Company, Gujarat, who has stated that, the aforementioned SIM card was registered in the name of one, ‘Ajay Shreeram’, resident of Firozabad. In view of this admission, the burden was on the prosecution to prove the SIM card along with the mobile handset, seized from the possession of A-2, was used by him. Prosecution has examined P.W. 16, brother of said Ajay Kumar Agrawal, who has stated that, except some entries in the form for availing the connection of SIM card, all entries in the form were wrong, the signature on the form did not belong to his brother. His brothers cell phone number was 9873654520. On this background the testimony of P.W. 23 Dharmendra Govindas Shah, disclosing name Aarsh in the contact list of the Blackberry phone used by A-1, loses its significance, since use of that SIM card by A-2, itself is not proved. Thus, the prosecution has failed to establish that the SIM card with calling number 8445269532, was used by A-2, which is the only material evidence produced against him.

The allegations against A-3 Jitendrakumar Karnasingh Yadav are that he is the financial conduit. The A-1 has deposited cash in his account, which has been withdrawn by him, via ATM in Vapi, Gujarat. He along with A-4 and A-5 has stayed in a hotel at Silvassa and kept surveillance on the deceased. Apart from being responsible for the financial transactions, allegations against him are that, he had paid visits to Silvassa and also arranged transport of a motorcycle used in the offence from Varanasi to Surat.

To establish the amounts deposited by A-1 in the account of A-3, which is allegedly the hire money, the prosecution has examined P.W. 12 Jayshankar Shrivastav, Bank Manager of SBI Saharanpur, who has stated that the A-3 Jitendra Singh is the holder of account no. 31449513842. He has given the details of amount of Rs.10,000/-each deposited by A-1, on four different dates when he was confronted with the pay slip, he has identified it. In his cross– examination he admitted that, the account of A-3 is a salary account and the documents Exhibits–135, 136, 137 and 139 produced and identified by him are not produced with the certificate as required by the Banker’s Book Account Certificate. The pay slip Exhibit 136 discloses that, the amount deposited on 27.08.2011, has been deposited in the Noida Branch of the SBI, which is proved by the Branch Manager at Saharanpur (PW-12). The document which is a part of regular transactions of the other branch of the Bank, is produced by an employee who is employed in some other branch 200 k.m. away becomes doubtful. Even otherwise, mere deposit of amounts by A-1 to the account of A-3 in itself cannot be said to be incriminating evidence.

The other evidence against A-3, is the statement of PW-9 Mr. Kantilal Patel, the Employee of Parcel Department of railways, who stated that the name of A-3 appeared on the receipt of the motorcycle, which was sent through parcel service from Varanasi to Surat by Surendrakumar C/O of Jitendrakumar, and the delivery of motorcycle was taken on 24.11.2011 by one Mr. Jitendrakumar, in token of which, his signature has been obtained. PW-10, who is the owner of the alleged bike with registration No. DL-4S-BD-4965, has stated that, a driver in his company Jawalasingh had purchased the said bike from him, who was native of Azamgad, U.P. The testimony of this witness does not in any way come to the aid of prosecution either to prove that the the motorcycle belongs to A-3 or he has borrowed it. Over and above all, the motorcycle allegedly used in the offence has not been seized.

Apart from the call details and the bank transaction, the other evidence produced against A-3 is the proof of his stay at Jay international hotel, Vapi, between 18.08.2011 to 30.08.2011, along with A-4 and A-5 at G.M. Guest House, Vapi, after committing offence alongwith A-4 and A-5 and at Janta Guest House, Surat, on 29.11.2011. The bills of Jay International hotel were allegedly found under his bed in his house at Tundla in U.P. The respective managers and owners of the above hotels have been examined, amongst which, only PW-18 Mustak Ahemed Abudl Ali, the receptionist at Jay International Hotel, Vapi, has identified him in the Court. The 17 hotel bills recovered from his residence at Tundla for which panchanama at Exhibit- 87 is drawn without independent Panch witness. PW-3, who is the Constable at Silvassa police station who has admitted in his cross-examination that, the copy of panachanama was not given to the father of A-3, and no independent panch witness was present during the panchanama. Hence, the panchanama of seizure of hotel bill is not reliable piece of evidence.

The reliance of prosecution on the amounts deposited by A-1 in account of A-3 by itself is not a suspicious transaction considering that A-1 and A-3 were employed in the same company and the amount was deposited in his salary account, which has been admitted by PW-12 Jayshankar, Bank Manager SBI,

In the cross-examination the P.W.12 has also admitted that the Exhibit-135 i.e. account statement of A-3, pay slip Exhibit-136 and 137 produced by him are not issued by the bank under Section 2A of the Banker’s Books Evidence Act, 1891, thus, these documents loses its credibility.

So far as the CDR of the calls between accused Nos. 1 and 3 is concerned, they being employed in the very same company, i.e. Bajaj Hindustan Ltd, the exchange of calls between them cannot be doubted. As regards his call with accused No. 2 is concerned, the prosecution has failed to establish that the SIM on which calls were made by the other accused belongs to accused No. 2.

Hence, the question is whether the aforementioned evidence is sufficient to prove the guilt of A-3 and convict him for the offence punishable under Section 302 of the IPC. All the evidence as aforesaid, the bank slips, the parcel receipt of the railway department, the CDRs of the calls between accused No. 3 with the other accused are not proved by producing reliable evidence. Even otherwise aforementioned evidence is only corroborative in nature. In the absence of substantive evidence, it cannot be used for recording conviction.

The allegations against A-4, are that, he was riding the motorcycle while committing the offence. He travelled alongwith accused Nos. 3 and 5 and stayed with them prior to commission of offence for conducting surveillance at hotel Jay International Vapi, between 18.10.2011 to 22.10.2011 and 24.11.2011 to 29.11.2011. It is alleged that he was using cell phone with number 8057788316, which was registered in his own name i.e. ‘Manish Kumar Devendra Prasad’. The CDR at Exhibit 207 for the period 01.10.2011 to 06.12.2011 are proved by PW-26, the Nodal Officer, Idea Cellular Ltd. of Ahmedabad region, who has also produced 65-B certificate. So far as his stay at Hotel Jay International in October 2011, G. M. Guest House between 24.11.2011 to 29.11.2011, is concerned prosecution has examined PW-18 Mustak Ahemed, Receptionist of hotel Jay International, PW-28 Sujit Kumar who runs G. M. Guest House, Vapi, PW 21- owner of Janata Guest House. Although these witnesses have produced admission registers and ID proofs, submitted while booking room at the hotels, however however they have failed to identify the accused. PW-21 and PW-28, have not been called upon to identify A-4 in the Court. While PW-18 in his cross-examination has admitted that he was not sure whether A-4 is present in the Court. Thus, these witnesses have failed to identify A-4. Consequently, the stay of A-4 in the aforementioned hotels, could not be established.

The motorcycle with licence plate number DL-4S-BD-4965 is neither seized nor its use in the offence is established by the prosecution. So far as his telephonic contact with the accused No. 1 and other co-accused is concerned, PW-26 Nodal Officer of Idea Cellular has produced his application for securing SIM Card alongwith the CDRs. Except this no other incriminating evidence is produced against A-4 to prove his complicity in the offence, which in itself is not sufficient for recording his conviction.

The allegations against Accused No. 5 Sugriv @ Gyanprakash Yadav, are that he allegedly fired from the revolver, which proved to be fatal and caused death of the deceased. Even though, it is claimed by the prosecution that A-5, has himself described the manner in which he has shot at the deceased and made a disclosure statement under Section 27 of the Evidence Act, 1972, this statement is not admissible in evidence when he led the IO for recovery of weapon, on reaching the destination there was no recovery. As such there is no recovery of the weapon used in the offence. Inspite of which, A-5 has been convicted for the charge under Section 201 of the IPC, and has been acquitted for charge Under Section 3 r/w 35 of the Arms Act, 1959.

The other evidence against accused No. 5, is his stay at the three hotels, i.e. Jay International, Vapi, G. M. Guest House, Vapi, and Ran Basera Guest House, Vapi. Although the register of the guest house alongwith the ID proof of the accused has been produced by PW-19, Manager of Ran Basera Guest House, Vapi, he has failed to identify A-5 in the Court. Even in case of A-5 there is no TI parade conducted for his identification by calling upon the witnesses, i.e PW-18 and PW-19, who have supported about his stay at the guest house and the hotel respectively.

P.W. 18 and P.W. 19 have been examined to prove stay of A-5 at their hotels. P.W. 18 was unable to identify him, and P.W. 19 though identified him in the dark, it was not preceded by TI Parade, thus making his identification unreliable.

The mobile number for establishing contact with other accused attributable to A-5 is 9045132794, however this mobile number is registered in the name of one ‘Premkumar’, resident of 61 Majhola Anshik, Hathras, U. P. Considering that the SIM attributed to A-5 was not registered in his name prosecution failed establish, how he came in possession and use of that SIM Card. Even though the CDR has been produced to prove the complicity of Accused No. 5, the connection itself stands in the name of one ‘Premkumar’ who has not been examined by the prosecution. The customer application form Exhibit 202 has, been produced by PW-25 Jahid Khan Yasmin Khan, Assistant Nodal Officer, Tata Tele Services. There is no link established between A-5, and ‘Premkumar’ who is registered for that SIM. The call made by using that SIM Card cannot be treated as, an ‘incriminating evidence’, against A-5. Hence, there is no recovery of weapon at his instance; his identity about stay of hotel is not established, and even use of SIM could not be proved.

Upon examination of the evidence produced by the prosecution and the testimony of the witnesses, it is evident that case of the prosecution, is not established by producing substantive evidence, that would unequivocally point only towards the guilt of the accused. In cases of circumstantial evidence, lack of direct evidence makes it necessary to prove ‘motive’ for commission of offence. Proof of ‘motive’ strengthens the probability of commission of offence by the accused persons in the chain of circumstantial evidence. In the present case, A-1 being the conspirator, has allegedly hatched a conspiracy, however, the ‘motive’ of the accused could not be proved by the prosecution. Testimony of PW-4, can only create doubts, at the same time doubts cannot take place of proof.

The prosecution has relied heavily on the CDRs of the cellphones of all the accused and the calls inter se made between them. Even though, the Nodal Officers have been examined to prove the CDRs. Except A-4, the cell phones, which are allegedly used by the accused, stand in the name of different persons, other than the accused. Prosecution has not examined the owner of those SIM cards, thereby failed to establish connection between accused and the SIM cards. Thus in our view, merely on the basis of CDR locations of the cell phones in and around the place of offence and the calls made using it cannot by itself establish complicity of the accused persons, unless the use of those SIM cards by the accused is proved. Even otherwise, the CDRs of the mobile phone being corroborative piece of evidence, cannot take place of direct or substantive evidence.

A-2 to A-5 though allegedly stayed at the hotels at Vapi and Surat, no TI parade to identify them through the hotel managers/owners have been conducted by the prosecution. A-3 and A-5 have been identified that too in the Court by the witnesses, which again raises doubt about their identity, since it was not preceded by any TI parade.

In a recent decision, the Hon’ble Supreme Court in case of State of Maharashtra Vs. Monica Kiran Suryawanshi and Ors. dated 13.07.2026 in Criminal Appeal No. 2282-2284 of 2011, has taken a view that mere production of telephonic records does not substitute substantive proof of an illicit affair leading to murder. Thus, the ‘motive’ is inherently weak and insufficient to anchor a conviction for murder. These observations squarely apply to the facts of present case since the whole prosecution case itself is based on the call details between the accused.

Since all the accused were arrested only on the basis of the CDR location detected in and around the place of incident, it was necessary to establish their presence on the day of incident at Silvassa. In order to establish that the accused are the very persons who had stayed at the guest house of P.W. 28 was required to be proved by conducting TI parade and A-2 to A-5 since their identity was not known. In the cases based on circumstantial evidence, TI parade becomes necessary when the accused are not known to the witnesses prior to the incident. There are series of judgments on the issue of necessity of carrying out TI parade, wherein it is held that the necessity of carrying out TI parade depends on the circumstances of each case, but the fact remains that, in order to bring strength to the case of prosecution in cases of circumstantial evidence, it is always advisable to conduct a TI parade.

In cases of circumstantial evidence, burden is on the prosecution to produce clinching evidence to prove the complicity of the accused by proving the chain of circumstances. There are serious lapses in the investigation of the case by the prosecution. Even though the incident had occurred just outside the SBI ATM Naroli road, Silvassa, the prosecution has failed record the statements of the guards who were admittedly stationed outside the two ATMs nearby the place of incident, which has been admitted in his cross – examination by P.W. 34. This witness also admits that he has not recorded the statement of the attendant who used to remain present at the public toilet, which was just 18 feet away from the place where the car of the deceased was parked. This reflects the casual and lethargic approach of the prosecution, which has undermined the case of prosecution. In view of absence of direct evidence, it was necessary to prove the guilt of all the accused by establishing the use of respective SIMs, by conducting TI parade to establish their stay at the hotel on the day of offence; by seizing the weapon and the vehicle used in the offence which could have given credibility to the evidence produced by the prosecution. The prosecution has failed to prove the important links in the chain of circumstantial evidence. The evidence should be cogent and so compelling that no other rational hypothesis can be drawn except conviction of the accused.

Even otherwise, calls between the accused persons and proving it through CDRs can be only corroborative evidence.

Except the call details, bills of hotel and details of the bank transactions there being no other evidence produced by the prosecution, and its failure to prove the identity of the accused. The evidence on record can at the most create suspicion, and suspicion can be a basis for recording conviction against an accused. There is no recovery of the weapon that would connect the accused to the offence. The motor cycle allegedly used in the offence is not seized. The motorcycle allegedly used in the offence is not seized. Even though the bullets were seized from the place of incident, the revolver used to fire those bullets has not been recovered. There is no forensic evidence to connect the accused persons with the offence. There is no strong, and credible evidence produced by the prosecution that would lend support to prove the guilt of accused.

After carefully examining the role of each of the accused, and the evidence adduced against each of them in our view the evidence falls miserably short for recording of conviction under Sections 302 and 120-B and 34 of the IPC.

The prosecution has filed to prove the ‘motive’ for masterminding the whole plan by A-1.

The evidence against A-2 is use of SIM Card 8445269532 which is not established. As regards A-3, the use of SIM attributed to him is not proved; his stay at hotels could not be established due to failure to identify him; even the bank transactions are not fully established.

The motorcycle used by A-4 is not seized; his stay at hotel also could not be proved, except the SIM car which is in his own name, no other evidence is available against A-4.

The use of revolver in offence by A-5, could not be proved due to failed recovery under Section 27 of Evidence Act; his stay at the hotel is not established and the sim attributed to him also does not stand in his name, thus, its use is not proved. The evidence adduced by the prosecution is, at best, corroborative in nature and falls short of establishing, beyond reasonable doubt, the complicity of the accused in the commission of the alleged offence.

In the absence of cogent and reliable evidence sufficient to sustain the conviction, the Appellants are entitled to the benefit of doubt.

In the facts, none of the circumstances are proved by the prosecution beyond reasonable doubt nor do they form a chain, pointing out to the complicity of the Appellants, which is consistent only with hypothesis, which is the guilt of the Appellants.

45 Having regard to what is stated aforesaid, we pass the following order:-