Pramod and Others vs The State of Maharashtra

B.R. Gavai, J—Being aggrieved by the judgment and order passed by the learned Sessions Judge, Nagpur in Sessions Trial No. 157/09, thereby convicting the appellants for the offence punishable under Sections 120-B, 364 R/W 34 and Section 302 R/W 34 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay a fine of Rs. 5000/- each and in default to suffer further R.I. for six months under Section 302 R/W 34 of the Indian Penal Code and further sentencing the accused to suffer imprisonment for five years and to pay a fine of Rs. 1000/- each and in default to suffer further R.I. for one month under Section 364 R/W 34 of the Indian Penal Code, the appellants have approached this Court by way of the present appeals.

The prosecution story as could be gathered from the material placed on record is that the deceased Rakesh - the son of P.W.1 Ramesh Shahu was having love affair with Pranita, the niece of accused No. 1. It appears to be the prosecution case that the accused No. 1 Pramod did not approve of the same. It further appears that on 7.12.2008 the appellants along with some other friends had drinks at Madira Restaurant in the afternoon. It is further the prosecution case that the appellants and the other three accused had assaulted the deceased Rakesh, who had come in the house of the accused No. 1 Pramod''s father and thereafter took the deceased in two vehicles, one Alto and the other Opel.

It is further the prosecution case that on the said date P.W.1 Ramesh Shahu, who is the father of the deceased, had left the house at around 2 p.m. along with his wife to attend the engagement ceremony of daughter of brother-in-law, which was to be held at Vrundawan Hall, Manewada, Besa Road, Nagpur. His daughter and wife also joined him. However, deceased Rakesh had told him that he would later on come to engagement ceremony on motor cycle of his friend. It is further the prosecution case that when P.W.1 Ramesh was in the engagement ceremony, one Vasant Gupta rang him on several occasions. On the last call, he informed P.W.1 Ramesh that 5 to 6 persons had taken away his son Rakesh in a red colour Maruti Alto car. P.W.1 Ramesh, therefore, came back to his house and found a mob gathered near his house. At that point of time, P.W.2 Raju Patel informed him that the accused No. 1 Pramod and his associates had taken his son Rakesh in a red colour car.

P.W.1 Ramesh thereafter went to Police Station with his relatives and P.W.2 Raju Patel and narrated the incident to police. The same was reduced in writing and treated as First Information Report which is below Exh. 68. P.W.21 Bipin Shewale registered the offence under Sections 363, 364 & 365of the Indian Penal Code vide Crime No. 285/08 with Ganeshpeth, Nagpur. The FIR came to be registered below Exh. 69 in format. P.W.21 Bipin thereafter flashed the wireless message to all the Police Stations vide Exh. 144. He along with P.W.1 Ramesh searched for Rakesh whole night at different places but could not find him. On the next day morning, P.W.21 Bipin visited the place from where Rakesh was allegedly taken away by P.W.1 Ramesh and his associates and prepared panchnama below Exh. 103 in the presence of panchas. The place was shown to P.W.21 Bipin by P.W.2 Raju. The place was residence of parents of accused No. 1 Pramod.

On 8.12.2008 at around 6 p.m. one Bhimrao Sharnagat and others found one person in seriously injured condition in the field of Bhagwan Wankhede. At around 7.15 p.m. Bhagwan Wankhede informed about the same to Kalmeshwar Police Station. P.W.18 Devanand Alone who was at the relevant time working as PSI in Police Station Kalmeshwar entered the message in station-diary. P.W.18 Devanand along with PSI Tarale and other staff went to the field of Bhagwan Wankhede and found one person alive with injuries on his person. He sent injured to Mayo Hospital, Nagpur instructing PSI Tarale to remain on the spot. The Medical Officer at Mayo Hospital, Nagpur after examining the injured declared him brought dead.

On coming to know that one person in the injured state was brought to Mayo Hospital, Nagpur, P.W.21 Bipin, senior P.I. Gadekar P.W.23 along with P.W.1 Ramesh went to Mayo Hospital. P.W.1 Ramesh identified the dead body of his son Rakesh. Inquest over the dead body was conducted under panchnama below Exh. 128. P.W.18 Devanand then addressed a letter below Exh. 131 and referred the body to Medical Officer for post-mortem. He also requested the Medical Officer to hand over clothes of deceased to Police Constable Manoj while addressing a letter at Exh. 132. He also recorded the statement of father of deceased Rakesh.

P.W.18 Devanand then went to the field of Bhagwan Wankhede and prepared panchnama below Exh. 110. He collected stone, one nylon rope and stump, etc. by preparing panchnama below Exh. 112. The clothes of the deceased which were collected by Constable Manoj were taken in the custody by P.W.18 Devanand by executing a panchnama at Exh. 133. P.W.9 Dr. Warudkar conducted the post-mortem and a provisional death certificate came to be issued at Exh. 134. P.W.18 Devanand registered a crime for the offence punishable under Sections 363, 364, 365, 302 R/W Section 34 of the Indian Penal Code vide Crime No. 00/08 with Kalmeshwar Police Station. The printed FIR was prepared at Exh. 136. All the papers along with muddemal articles stone, nylon rope, etc. were sent by P.W.18 Devanand to Ganeshpeth Police Station.

P.W.23 P.I. Suresh Gadekar thereafter took over the investigation of Crime No. 285/08 at 2 p.m. on 8.12.2008. He recorded supplementary statement of Raju Patel P.W.2 and statements of P.W.3 Nitin and P.W.4 Vipul. He sent police staff in search of the suspect/accused, Constable Gajanan Buckle No. 1688 traced the Opel Estra car bearing No. MH-31/9330 in front of the house of the accused Rajkumar. It was brought to the Police Station by Constable Gajanan with the help of Sandeep, the son of the accused Rajkumar.

It appears that it is the prosecution case that on 9.12.2008 the accused Pramod and accused Mukesh informed the police that they would surrender themselves in front of Agyaram Devi temple. As such, the accused came in the Maruti Alto Car bearing No. MH-31/CP-2731. P.I. P.W.23 Gadekar arrested the accused and also seized incriminating material from the car. In the meantime, accused Rajkumar Wankhede was arrested by Tahsil Police Station and as such, P.I. Gadekar sent his staff for bringing Rajkumar Wankhede to Ganeshpeth Police Station.

During investigation, on the memorandum of accused Pramod, full pant containing blood stains came to be recovered. It is further the prosecution case that on the memorandum of accused Rajkumar and accused Mukesh, the blood stained clothes which were used by them also came to be recovered and seized. The incriminating material was sent to Regional Forensic Science Laboratory for analysis. An identification parade for identification of the accused was also held. After investigation, charge-sheet came to be filed against the present appellants and one Ashok Khobragade. One accused Manoj Nagpure was shown to be absconding and one Kaunendra was shown to be a juvenile in conflict with law. Since the case was exclusively triable by the Court of Sessions, the learned J.M.F.C. committed the case to the Court of learned Sessions Judge.

The learned trial Judge framed the charges for the offence punishable under Sections 120-B, 363, 364 & 302 of the Indian Penal Code. The accused pleaded "not guilty" and came to be tried. At the conclusion of the trial, the learned trial Judge acquitted the accused for the offence punishable under Section 363 of the Indian Penal Code. The appellants were convicted and sentenced as aforesaid. However, no separate sentence was awarded for the offence punishable under Section 120-B. The accused No. 4 Ashok was acquitted of all the charges charged with. Being aggrieved by the order of conviction and sentence, the aforesaid three appellants are before this Court.

Shri Sashank V. Manohar, learned Counsel appearing for the appellant Pramod, submits that the prosecution story is totally false. He submits that all the witnesses are got up witnesses. The learned Counsel submits that the evidence of P.W.1 Ramesh and P.W.2 Raju Patel is self-contradictory. He submits that whereas P.W.1 Ramesh says that P.W.2 Raju Patel was present in the engagement ceremony prior to he going there, P.W.2 Raju Patel denies of the same. He further submits that whereas P.W.1 Ramesh says that the deceased was taken in a Maruti Alto car, the other witnesses are mentioning Opel car. He further submits that if the evidence of P.W.3 Nitin, P.W.4 Vipul and P.W.5 Samrat is to be believed, it is improbable that P.W.2 Raju Patel could have witnessed the incident from outside. He further submits that the evidence of P.W.3 Nitin, P.W.4 Vipul and P.W.5 Samrat is also inconsistent with one another. He submits that their evidence is falsified by P.W.15 Nagesh Kople, who was the Manager of Madira Bar. He further submits that though the said witness knows the appellant No. 1, he did not mention his name to be present in the Madira Bar. The learned Counsel further submits that the evidence of P.W.1 Ramesh is contrary to the evidence of P.W.20 Rahul @ Vasant Gupta. He submits that though P.W.1 says that Vasant Gupta had called him 3-4 times, this witness says that he had only called him once.

The learned Counsel further submits that in so far as the field of Satnavari where the dead body of the deceased was found is concerned, no investigation has been done. He submits that the statement of not a single witness, who is in the vicinity of the spot has been recorded. The learned Counsel further submits that the Chemical Analyzer''s reports are also not trustworthy. The learned Counsel submits that in so far as the seizure of the incriminating material is concerned, the same is all farcical. The learned Counsel further submits that the prosecution has withheld the best possible evidence. He submits that though the prosecution could have placed on record the call detail reports, for the reasons best known to the prosecution, the same have not been placed on record. He further submits that the two ladies, who are said to be present in the house and one of whom was allegedly slapped by accused No. 1 Pramod is also not examined. The learned Counsel, therefore, submits that the prosecution is not fair and reliable and as such, the accused is entitled to be acquitted.

In the alternative, the learned Counsel submits that the prosecution has utterly failed to prove that the appellant/accused No. 1 Pramod had an intention to commit the murder of the deceased. He submits that P.W.19 Dr. Warudkar does not say in his evidence that the injuries were sufficient in the ordinary course of nature to cause death of the deceased. The learned Counsel submits that as a matter of fact, the deceased was found alive on the next day morning and as such, the case would not fall under Section 302 of the Indian Penal Code.

Shri S.P. Dharmadhikari, learned Senior Counsel appearing on behalf of appellant/accused No. 2 Mukesh, submits that the only piece to connect the accused No. 2 is the seizure of clothes and seizure of some incriminating material from the Alto car, which are found to be stained with blood. He submits that the timings in the memorandum panchnama and the seizure panchnama would itself clearly show that the same is nothing else, but a farce. He submits that though according to the panch, the full seat covers have been seized, the Chemical Analyzer''s report would show that the report is of cut pieces of the seat covers. He submits that this lacuna is not explained by the prosecution. The learned Counsel further submits that as to how the cars are recovered is also not explained by the prosecution. He submits that after the cars were seized, the blood from the inside, etc. has been seized after a considerable gap. He submits that there is no evidence during this period as to whether the vehicles were in a safe custody. The learned Counsel submits that a possibility of tampering cannot be ruled out.

Shri R.K. Tiwari, the learned Counsel appearing on behalf of the appellant/accused No. 3 Rajkumar Wankhede, submits that the evidence of P.W.8 Mukesh Thakur is silent about the memorandum of the appellant under Section 27 of the Indian Evidence Act and also silent about the place from where the clothes were produced. He submits that there is no evidence regarding sealing. He submits that the alleged recovery on the memorandum under Section 27 is also farcical. The learned Counsel further submits that there is no evidence regarding the seizure of the car though it is alleged that the car was brought by Police Constable along with the help of the accused No. 3 Rajkumar''s son. Neither his son nor Police Constable have been examined. He submits that even the DNA report is lacking the mandatory requirements and as such, not of any assistance to the prosecution case. It is submitted that the identification parade would show that the same person who had called the accused and had noticed the placement of the accused in the row had also gone to call the witness. It is, therefore, submitted that the possibility of the identifying witness having informed about the placement of the accused cannot be ruled out. In the totality of circumstances, the learned Counsel requests for allowing the appeal and setting aside the order of conviction and sentence.

Shri R.S. Nayak, the learned Additional Public Prosecutor for the respondent/State, on the contrary, submits that the prosecution has proved the case beyond reasonable doubt. He submits that the evidence of P.W.1 Ramesh, P.W.2 Raju, P.W.3 Nitin, P.W.4 Vipul and P.W.5 Samrat is consistent with each other. He submits that the very lodging of the First Information Report by P.W.1 Ramesh immediately after being informed by P.W.2 Raju about the incident fortifies the prosecution case. He further submits that the evidence of P.W.1 Ramesh is also corroborated by evidence of P.W.20 Rahul Gupta regarding P.W.20 Rahul informing P.W.1 Ramesh about the deceased being taken away by 5-6 persons. He further submits that the statements of P.W.3 Nitin & P.W.4 Vipul are recorded on the very next day. It is further submitted that the accused No. 1 Pramod, P.W.1 Ramesh, P.W.2 Raju, P.W.3 Nitin, P.W.4 Vipul & P.W.5 Samrat are the residents of the same area. It is, therefore, submitted that there is no reason as to why the independent witnesses like P.W.3, P.W.4 & P.W.5 will falsely depose against the appellants. He submits that the scientific evidence, i.e. the finding of blood stains and matching group of the deceased on the clothes of the accused also corroborates the prosecution case. He further submits that even in the vehicles which are seized from the accused persons, the blood stains of the matching group of the deceased are found. The learned A.P.P. submits that once the prosecution had established its case beyond reasonable doubt, the burden shifted upon the accused, which burden has not at all been discharged by the appellants. The learned A.P.P., therefore, submits that the appeal deserves to be dismissed.

With the assistance of the learned Additional Public Prosecutor and the learned Counsel for the appellant, we have scrutinized the entire evidence.

The present case is a case based on circumstantial evidence, inasmuch as there is no direct eye-witness account for the actual incident. The prosecution basically relies on the following circumstances:--

"i. The accused were last seen in the company of the deceased and soon thereafter the deceased was found in a seriously injured condition,

ii. The recovery of the blood-stained clothes, blood-stained seat covers on the memorandum of the accused under Section 27 of the Indian Evidence Act and the Chemical Analyzer''s report certifying the blood on the articles seized from the accused to be of blood group of the deceased,

iii. Extra-judicial confession given by accused No. 1 Pramod to P.W.3 Nitin,

iv. Motive on the part of accused to kill Rakesh,

v. The First Information Report was lodged by P.W.1 Ramesh immediately on 7th December, 2008."

We will first deal with the first circumstance. The prosecution in this respect relies on the evidence of P.W.2 Raju Patel, P.W.3 Nitin Ugreja, P.W.4 Vipul Wadhone and P.W.5 Samrat Wase.

P.W.2 Raju Patel is the friend of the deceased. He states in his evidence that on 7.12.2008 he had gone to Hansapuri, Gittikhadan, Nagpur for attending the marriage of his friend Kamal Nayak. He was there till 5.15 p.m. and thereafter returned to his house. Thereafter, deceased gave him a call and as such, he became ready and came out of his house. Rakesh was sitting on a Kinetic Honda and he asked him to sit on it. Thereafter, they had a round in the area and had gone to the house of the accused No. 1 Gujju @ Pramod and returned. Thereafter, Rakesh told him again to sit on the vehicle as he had to talk with accused No. 1 Gujju. Accused No. 1 was present in the house. Two vehicles - one Opel and Alto cars were parked there. The colour of Opel car was maroon. The deceased gave his Kinetic to this witness and he went inside the house of Gujju. He parked the said Kinetic Honda and sat near the house of accused No. 1 Gujju. After 5 to 10 minutes, he heard the noise of abuses from the house of accused No. 1 Gujju. He peeped in the house from the compound. He saw that one black and stout person, aged about 40 to 45 had caught hold of deceased Rakesh. Accused No. 1 Gujju and his two associates to whom the accused No. 1 Gujju was addressing as Mukesh and Ashok were beating him by fist blows. Thereafter, he returned to his Kinetic Honda and thought of informing about the said incident to Manish Gour. This witness had identified the accused persons in the identification parade as well as in the dock. This witness further states that he went to a coin box to telephone Manish Gour but the said coin box was closed. Thereafter he again came back and saw that accused Gujju and his three associates were forcibly putting Rakesh in Opel car. He also noticed one knife injury on his left cheek and blood was oozing from it. Since Rakesh was not sitting in the car, the friend of Gujju showed a knife to him and forcibly put him in the said car. He states that five persons sat in Opel including Rakesh and two persons sat in Alto car. He states that they had made Rakesh to sit in the rear side of Opel car. Accused Gujju and Ashok were sitting besides Rakesh. On the front seat of the said Opel car, black and stout person and one more person were sitting. The witness has identified the said black and stout person to be accused No. 3 Rajkumar. He states that in Alto car, one Mukesh and one boy were sitting. Thereafter one Opel car proceeded and it was followed by Alto car. The car proceeded towards Bajeria square, Santra Market road. Thereafter, his friend Golu Dixit came. This witness was not knowing how to drive the motor cycle. Hence, he asked Golu Dixit to drop him at home. Golu Dixit brought him to his house. Thereafter he narrated the above incident to one Sonu who was serving in Auto parts shop. He asked the said Sonu to narrate the said incident to family members of Rakesh. Thereafter, he went to the marriage of Kamal Nayak. He returned from the said marriage at around 9.30 to 10 p.m. At that time, he saw the father of Rakesh. Persons from the locality gathered there. They asked him where the deceased was and he informed him about the incident. Thereafter at around 11 p.m. he along with the father of Rakesh came to Ganeshpeth police station for lodging the report. On the next day in the morning, at around 7 a.m. the police came to him and he showed the place of offence to police. At around 12 noon he saw the dead body of Rakesh in Mayo Hospital. He has stated that he was knowing that there was a love affair between the deceased and niece of Gujju. He further states that he, Pranita - niece of accused Gujju accused No. 1, sister of the deceased and the deceased had a talk in Krishnam Hotel. At that time, Rakesh was telling his sister that he wanted to marry Pranita. He further states that sister of the deceased agreed for the same but Pranita stated that her maternal uncle Gujju will not allow them to marry. She stated that her maternal uncle will not give permission for marriage as he is Badmash.

In the cross-examination, it has come on record that this witness knew accused No. 1 Gujju since his childhood. It is also stated in cross-examination that the accused No. 1 had performed the love marriage and after his marriage he was residing at Hajaripahad area. He has been thoroughly cross-examined. His evidence is sought to be attacked on the ground that though from 7 p.m. of 7.12.2008 till 7 p.m. of 8.12.2008 he had met three friends of Rakesh, he has not informed them about anything. The evidence is also sought to be attacked on the ground that P.W.1 Ramesh has stated in his evidence that this witness had attended the engagement ceremony at about 9.45 to 10 p.m., but this witness has denied the same. However, the vernacular deposition would show that P.W.1 Ramesh has not used the word ''engagement ceremony'' but used the word ''Karyakramat''. On the said date, there was also one marriage in the vicinity of the area where the incident occurred and marriage ceremony of one Kamal Nayak. The possibility of the P.W.1 Ramesh meeting P.W.2 Raju at that ceremony could not be ruled out. However, the contradiction is not of such an extent that it will materially affect the substantive evidence of P.W.2 Raju which has gone unshattered in the cross-examination.

P.W.3 Nitin Ugreja is a friend of the accused No. 1 Gujju. He states in his evidence that on 7.12.2008 at around 10.30 to 11 a.m. he received a phone call of accused No. 1 Gujju. On the phone, accused No. 1 Gujju demanded him a party as a son was born to him on 2.12.2008. However, this witness told him that he could not arrange for the party as on the next day, there was a naming ceremony of his newly born son. Again after sometime, the accused No. 1 Gujju made a phone call to this witness and asked him to give a party. However, this witness stated that he had no money and he will see later on. Thereafter at around 1 to 1.30 p.m. he again received a phone call of accused No. 1. At that time, this witness and P.W.4 Vipul were standing near the Pan Thela of Anil Verma. Accused No. 1 Gujju told him not to worry about money and that he will give a party and they should come to Madira Bar near Mayo Hospital. He told him that they will go to the farm of Chikku Yadav for having a party. Thereafter he telephoned to his friend Samrat P.W.3 and told him about the proposed party. Thereafter Samrat joined at the Pan shop of Anil Verma. He further states that they had discussed and decided to stay there only as Gujju Shahu will pass from the said place and they will go along with him to the farm of Chikku Yadav. However, till 3 p.m. the accused No. 1 Gujju did not come and as such they decided to go to Madira Bar and thereafter all three of them went to Madira Bar on Hero Honda motor bike.

After reaching there, they saw the red coloured Maruti Car of Gujju Shahu standing outside Madira Bar. They entered the Madira Bar and saw that accused No. 1 was sitting with four friends near his table in Madira Bar. Accused No. 2 Mukesh was amongst them. This witness knew him since he had seen him once in the farm of Chikku Yadav. Thereafter, three of them sat along with the accused Nos. 1, 2 and other persons. Thereafter, liquor was called for Vipul and Samrat. In spite of resistance of this witness, one beer was called for him. Vipul and Samrat consumed wine. However, this witness did not consume the beer. Thereafter the accused No. 1 telephoned accused No. 3 Rajkumar Wankhede and asked him to come there. This witness was knowing Rajkumar as he had seen him once in the farm of Chikku Yadav. Thereafter at about 4 p.m. Samrat told accused No. 1 that he had to go to house to supply meat. Thereafter when this witness and Samrat were going out of the said Bar, he saw Rajkumar coming there. One person, aged about 30 to 35 years was with Rajkumar Wankhede.

Thereafter the three returned back to Bajeria chowk. Samrat purchased the meat there. This witness parked his motor cycle near the house of his grandfather. Thereafter they went near Yadao Bichhayat Kendra. Samrat left the spot saying that he will give meat in the house. Thereafter they waited there for 25 to 30 minutes. Since accused No. 1 did not return, they decided to see whether he had come to his house which was situated nearby. The house of parents of Gujju was situated near the house of Gujju where construction work was going on. They saw both the cars standing there which were also found near Madira Bar. They saw that accused No. 2 Mukesh, accused No. 3 Rajkumar and four other friends were standing outside the house. When they went near the house, they heard the noise of quarrel from inside the house of parents of Gujju. This witness and P.W.4 Vipul went inside the house of parents of accused No. 1 and saw that accused No. 1 Gujju was beating his niece by catching her hair. He was telling his niece that he had come to know where she wanders and what she does. This witness and P.W.4 Vipul tried to prevent accused No. 1 Gujju but accused No. 1 told them that it was the affair of his house and these witnesses should not intervene in it. He asked them as to who is inside the house. She informed accused No. 1 that her friend and madam are inside the house. Thereafter, the niece of Gujju gave call to both the ladies. They came out. Thereafter the accused No. 1 enquired from the ladies as to where his niece goes and whether they go to movie along with his niece. Accused No. 1 gave 2-3 slaps to one of those ladies. Thereafter, accused Mukesh, Rajkumar and other persons standing outside the house came in the house. They all tried to convince the accused No. 1 and pacified him. Within ten minutes, the husband of lady who was slapped came there. Accused No. 1 complained to the husband of that lady that she was spoiling his niece.

Thereafter, when all were discussing the matter, Rakesh Shahu and his friend came there on a Kinetic Honda. The friend of Rakesh remained outside the house and Rakesh came in the house. Accused No. 1 asked Rakesh whether he sees movies and wanders with his niece. Rakesh replied in the affirmative. Rakesh also told Gujju that he had introduced his niece to his family members. Thereafter the accused Mukesh gave a slap to Rakesh. Rakesh stood up in anger. Thereafter, the persons who were there started beating Rakesh by fist blows. One boy assaulted Rakesh by knife on his cheek. The blood started oozing from the said injury. Father of accused No. 1 who was seeing beating came in the house and asked all the persons not to quarrel in his house. He asked everyone to go outside the house. This witness and P.W.4 Vipul came outside the house. Samrat was trying to convince others. Thereafter mother of accused No. 1 shouted that blood was oozing from the injury and to take Rakesh to hospital. Thereafter the above persons dragged Rakesh outside the house and put him in Opel car. The accused Gujju and one stout boy sat in the rear seat of Opel car along with Rakesh. The accused Rajkumar and one slim boy sat on the front seat of Opel car. First Opel car went towards Bajeria road and thereafter the accused Mukesh and one teenager sat in the Alto car and the said car went towards Bajeria. The person aged about 30 to 35 years who had come along with Rajkumar at Madira Bar, did not sit in the car.

Thereafter, all others went to their house. They gave Rs. 30/- to said boy to go to Wadi and dropped him at Mayo Hospital. They stayed there thinking that Gujju and Rakesh would return there after giving treatment to Rakesh. They waited for about 2-3 hours but they did not return. Thereafter at about 9.30 to 10 p.m. he received a phone call of Gujju on his mobile phone and he told him that they had killed Rakesh at Amravati road. He disclosed this fact to his companion Vipul. On coming to know this, they were frightened and returned to their house. On the next day, i.e. on 8.12.2008 P.W.4 Vipul, P.W.1 Ramesh and relatives came to the house of this witness and demanded the number of car and mobile phone of Gujju. He was not remembering car number of Gujju, however, he gave mobile phone number of Gujju to them. Thereafter, they went away at about 11 to 11.30 p.m. When he was in the house, he again received one phone call of Gujju on his mobile phone. He enquired as to what was going on near his house. He told him that he does not know anything. This witness has identified all the four accused in the Court.

This witness has also been thoroughly cross-examined. In the cross-examination, it has come on record that the house of this witness, the house of father of accused No. 1 and the house of the deceased are within walking distance of each other. He has stated that he was knowing the deceased since last 2 to 4 years. In his cross-examination, it has come on record that during the last 4 to 5 months, he had met accused No. 1 Gujju 5-6 times. His evidence is sought to be attacked on the ground that though he has admitted in his cross-examination that Bajeria is a thickly located area and about 5 to 15 persons easily gather after quarrel breaks in, none of the witnesses who had gathered has been examined. By now, it is a settled law that prosecution need not examine each and every witness. In his cross-examination, it has come on record that he had met accused No. 3 Rajkumar at Wadi in connection with purchase of a truck by accused No. 1. It has also come on record that a friend of Rakesh was there when Rakesh was taken away by car. Though certain omissions have been put to this witness, these omissions were not put to the Investigating Officer and as such these omissions will not be of any assistance to defence. It is further stated in his evidence that prior to incident though he was not knowing Rajkumar personally, he was knowing him through the accused No. 1.

The evidence of P.W.4 Vipul is on the similar lines. He also corroborates the version of P.W.3 Nitin regarding accused No. 1 Gujju telephoning P.W.3 and that accused No. 1 told P.W.3 that they had brought Rakesh to Wadi. He also states that P.W.3 Nitin told him that Gujju Shahu had told him that they had beaten (Marle) Rakesh. He states that on the next day, father and uncle of Rakesh came to his house and they asked him to show the field of Chikku Yadav. Without telling the incident of previous night to anyone, they went to the field of Chikku Yadav. They enquired with persons about Rakesh but they did not get any information. They asked him to give mobile number of accused No. 1. As he did not have mobile number of accused No. 1, he went to the house of P.W.3 Nitin. The uncle of deceased contacted on phone number of accused No. 1 but the phone was switched off. Thereafter all of them went to Ganeshpeth Police Station. Though this witness has also been thoroughly cross-examined, his evidence on material aspects has gone unshattered.

P.W.5 Samrat has also supported the version given by P.W.3 Nitin and P.W.4 Vipul. His evidence is sought to be attacked on the ground that his statement is recorded belatedly, i.e. on 17.12.2008. However, he has explained in his cross-examination that after the incident he had gone to his relatives and was residing at the same place since he had come to know that police are in search of him. In his cross-examination, it has come on record that he came to know on phone that accused No. 1 Gujju was beating his niece and that accused Gujju was beating his niece when this witness entered into the house.

Upon combined reading of the evidence of P.W.2 Raju, P.W.3 Nitin, P.W.4 Vipul and P.W.5 Samrat, it would reveal that the evidence of all these witnesses establishes beyond reasonable doubt the following position:--

"That on the day of the incident, accused No. 1 Pramod @ Gujju telephoned in morning to P.W.3 Nitin demanding a party as a boy was born to P.W.3 Nitin and that P.W.3 Nitin refused even though the accused No. 1 called on two occasions. On the third occasion accused No. 1 stated that he himself would give a party and called them to Madira Bar and from there they went to the field of Chikku Yadav. P.W.4 Vipul was with P.W.3 Nitin at that time and Nitin informed about the said party to Vipul. Nitin also telephoned P.W.5 Samrat. Samrat also came there. All the three waited there for sometime and since accused No. 1 Pramod did not come, they went to Madira Bar and joined accused No. 1 and his other friends including accused No. 2 Mukesh. P.W.4 Vipul and P.W.5 Samrat had liquor there. Accused No. 1 Pramod telephoned Rajkumar and asked him to come there. When P.W.3 Nitin, P.W.4 Vipul and P.W.5 Samrat were returning from the Bar, the accused No. 3 Rajkumar came in an Opel car along with one of his friends. P.W.3 Nitin, P.W.4 Vipul and P.W.5 Samrat returned to Bajeria. Samrat went to his house to give meat. P.W.3 Nitin and P.W.4 Vipul waited there for accused No. 1 Pramod. Since he did not come, they went near his house. They saw that the accused No. 1 was beating his niece by catching her hair due to the relationship of his niece Pranita with deceased Rakesh. Though P.W.3 Nitin and P.W.4 Vipul tried to prevent P.W.1 from doing that, they were told not to interfere since it was a family matter. Two ladies were inside the house, they were called out, the accused No. 1 gave 2-3 slaps to one of the ladies, accused No. 2 Mukesh and accused No. 3 Rajkumar who were outside came inside the house, they all tried to convince accused Gujju. Thereafter, the husband of the lady who was slapped came, accused No. 1 Gujju complained with the husband of the said lady that she was spoiling his niece. At that point of time, Rakesh and his friend came on Kinetic Honda. The friend of Rakesh remained outside the house and Rakesh came in the house. There was altercation between the accused No. 1 and the deceased. Accused No. 1 Gujju assaulted the deceased. The other accused also started assaulting him. One boy had assaulted the deceased on his cheek with a knife. Thereafter, P.W.5 Samrat was called at the residence of accused No. 1 by P.W.3 Nitin. He tried to pacify the accused No. 1 and the other persons. The father and mother of the accused No. 1 Gujju told them not to quarrel and the mother of accused No. 1 asked the accused to take Rakesh to hospital. Thereafter, the accused persons dragged deceased Rakesh outside the house and put him in Opel car. The accused Gujju and stout boy sat in the rear seat of the Opel car along with Rakesh, accused No. 3 Rajkumar and one slim boy sat in the front seat of Opel car. First Opel car went towards Bajeria road. Thereafter, accused Mukesh and one teenager boy sat in Alto car and said car went towards Bajeria."

The evidence of these witnesses is sought to be attacked on the ground that they are all got-up witnesses and there are various contradictions in the evidence of each of them. The evidence is also sought to be attacked on the ground that they did not inform police about the incident immediately. However, the perusal of the evidence of these witnesses would reveal that their evidence is consistent with each other in so far as material aspects are concerned and from the evidence of each of the witnesses, the presence of other witnesses is also duly established. It is to be noted that all these four witnesses, so also the deceased and the accused No. 1 are residents of the same area. From the evidence of P.W.3 Nitin and P.W.4 Vipul, it would be established that when the accused No. 1 was abusing his niece, the deceased along with his friend arrived there. His friend remained outside and the deceased Rakesh came inside. From the evidence of P.W.3 Nitin and P.W.4 Vipul, it would also be clear that they were present when the entire episode, beginning from abusing the niece till the deceased was dragged by the accused in the Opel car, was complete. The evidence of P.W.4 Vipul would fortify that since an unruly incident was taking place, P.W.3 Nitin telephoned P.W.5 Samrat to come there. The evidence of P.W.5 Samrat would also corroborate the said version, inasmuch as he states that he received a call from P.W.3 Nitin. His evidence would also show that when he went to the spot and thereafter Samrat has arrived at the scene and seen the assault on the deceased and dragging out the deceased by the accused persons in Opel car and the Alto car following the Opel car.

Not only this, the evidence of P.W.1 Ramesh would also corroborate the version of the aforesaid witnesses. He has stated in his evidence that when he was attending the engagement ceremony of the daughter of his brother-in-law, he received calls from Vasant Gupta P.W.20 and enquired as to whether Rakesh had come to the engagement ceremony or not. He further states that he received the telephone calls of Vasant Gupta 2-3 times. When he asked as to why he is repeatedly asking him as to whether Rakesh came to the ceremony, he was told by P.W.20 Vasant that 5 to 6 persons had come and they took away Rakesh in a red colour Maruti Alto car. Thereafter, he immediately returned to his house. He states that a mob had gathered near his house. There he learnt about taking away his son. He came to know from Raju Patel about the incident. He disclosed that 5 to 6 persons had taken his son Rakesh in a red colour car. He disclosed the name of accused No. 1 Pramod @ Gujju Kanhaiyyalal Shahu and his three associates as persons who had taken his son. Thereafter he immediately came to Ganeshpeth Police Station with his nephew and Raju Patel and lodged a complaint. The oral report below Exh. 68 and the printed FIR below Exh. 69 also fortifies the position. Immediately after coming to know about the accused No. 1 and the other persons taking his son from P.W.2 Raju Patel, P.W.1 Ramesh has lodged the First Information Report. In the First Information Report itself, he informs about the telephone to him by Rahul @ Vasant Gupta in the engagement ceremony. He informs about he immediately returning home and coming to know about the incident from Raju Patel. The accused No. 1 Gujju is clearly implicated in the First Information Report. It could thus be seen that the evidence of these witnesses is fully corroborated by the oral report as well as the First Information Report. Not only that, but P.W.20 Rahul @ Vasant Gupta has stated in his evidence that he had telephoned the father of Rakesh on his mobile at about 9 p.m. and informed about the incident. Though his evidence is sought to be attacked on the ground that P.W.1 Ramesh says that he received 3-4 calls, P.W.20 Vasant Gupta has referred only to one call. We do not find that merely because of this minor contradiction, testimony of these witnesses can be ignored.

We are, therefore, of the considered view that the conjoint reading of evidence of P.W.1 Ramesh, P.W.2 Raju, P.W.3 Nitin, P.W.4 Vipul and P.W.5 Samrat would clearly establish that the deceased was last seen in the company of the accused persons on the evening of 7.12.2008 when these three accused forcibly took the deceased in Opel car followed by Alto car. Out of these three accused, the accused No. 1 is known to P.W.2 Raju, P.W.3 Nitin, P.W.4 Vipul and P.W.5 Samrat whereas the other two accused are known to P.W.3 Nitin, P.W.4 Vipul and P.W.5 Samrat.

The evidence of P.W.18 A.P.I. Devanand Alone would reveal that at around 7 a.m. he came to know about one Bhagwan Wankhede that body of a person was lying in his field. Accordingly, he took a station-diary below Exh. 127 and along with ASI Tarale and other staff went to the place of offence. He saw that one person, who was alive was found lying there. He sent the said person to Mayo Hospital for further medical treatment. He asked ASI Tarale to remain on the spot. The Medical Officer at Mayo Hospital declared the said person as dead. In the meantime, P.W.1 Ramesh had come to know about the body of dead person being brought at Mayo Hospital. He went to the Mayo Hospital and identified the deceased to be his son. After completing the formalities regarding spot panchnama, seizure of the articles from the spot and seizure of clothes of the deceased, etc. zero FIR was registered against the accused Pramod @ Gujju Shahu and others. Thereafter, all the papers were submitted to Police Station Ganeshpeth for investigation.

It could thus be seen that the prosecution has established beyond reasonable doubt that the deceased was last seen in the company of the accused persons and thereafter within a short period, the deceased was found in alive condition at Satnawari, which is around 30 kms. from Nagpur. We, therefore, find that the prosecution has proved beyond reasonable doubt the circumstances regarding the accused last seen in the company of the deceased and the deceased being found in a short period.

That leaves us to the other circumstance regarding the seizure of the incriminating materials on the memorandum of the accused and the Chemical Analyzer''s report certifying the blood on the seized material to be of blood group of the deceased.

In so far as the accused No. 1 Pramod is concerned, the recovery is proved by P.W.7 Bari Ahmed, the panch witness. He states in his evidence that when he was returning to his house from S.T. bus stand, he saw police standing there. He was stopped by the police. At that time, police informed him that accused who murdered Rakesh Shahu before about two days were coming there and police asked whether he can become panch. Thereafter, after about 20 to 25 minutes a car of red colour came there. Two persons got down from the said car. They stated their names as Pramod Shahu and Mukesh Shivhare. He further states that the police searched the person of Pramod Shahu and seized one mobile phone. When the car was checked, blood stains were seen in it. Accordingly, panchnama was prepared. The seizure panchnama below Exh. 84 shows seizure of three seat covers. However, the Chemical Analyzer''s report shows the analysis of pieces of seat cover. When the seizure panchnama is of full seat covers, it is surprising as to how the cut pieces were obtained from these seat covers. In this respect, the admission of the Investigating Officer P.W.23 Suresh Gadekar in cross-examination would be very relevant, i.e.

"I did not feel necessary to prepare separate panchnama in respect of pieces of clothes from the car on which blood stains were found as the same has been mentioned in the panchnama itself."

It is further to be noted that this witness has further admitted that at the time of attaching Alto car, he did not call any eye-witness who had seen the said car to verify the said car. It is further to be noted that on 23.12.2008 which is almost after 15 days after seizure of the car, the blood samples on the inner portion of both the cars were taken for investigation under the supervision of the experts from the Chemical Analyzer. As to where this car was kept for 15 days and as to whether there was any proper security of the car are the questions which are unanswered. We, therefore, find that it will not be safe to believe on such recovery. In so far as the present accused is concerned, another recovery is of knife alleged to have been used in the crime. The said recovery is from an open place on a main road. We are of the considered view that it will also not be safe to believe in such a recovery.

In so far as the accused No. 2 Mukesh is concerned, apart from the recovery of the incriminating material from the Alto car which as discussed hereinabove, we find it difficult to believe, there is also recovery of clothes alleged to have been used while committing the crime. The memorandum below Exh. 97 is alleged to have been made by accused at his transport office at Waddhamna Wadi. The recovery of the said memorandum is said to have been conducted between 2.30 p.m. to 4 p.m. on 10.12.2008. However, the details of further panchanma would show that after the memorandum of the accused No. 2 Mukesh was recorded, the police party started from Ganeshpeth Police Station to Agyaram Devi chowk, Cotton Market chowk, Tekdi road, Zero Mile, Government Press, Ravi Nagar square, Amravati road and thereafter to the house of the accused No. 2 at Sai Residency Apartment at Duttawadi. The said recovery is said to have been completed between 4 to 5 p.m. If the memorandum of the accused is recorded at Wadi between 2.30 p.m. to 4 p.m., then it is difficult to understand as to when the police party and the accused went to Ganeshpeth police station and started immediately at 4 p.m. The distance between two places is about 20 kms. This lacuna has not been explained by the prosecution. Apart from that, the recovery panchnama shows that when the police party along with the accused went to the house of the said accused after the bell was pressed, a lady opened the door and told her name as Tejaswini Mukesh Shivhare and said to be the wife of accused No. 2. The recovery is alleged from a place below Sofa in the house of accused No. 2. It would thus be clear that recovery is not from a place which was exclusively within the knowledge of the accused No. 2. As such, we find that the said recovery also cannot be said to be free from doubt.

Similarly, in so far as the accused No. 3 Rajkumar is concerned, the place of making memorandum is shown to be in the police jeep at 8 mile square, Nagpur. The memorandum is stated to be recorded between 1 to 2 p.m. The memorandum under Section 27 of the Indian Evidence Act and recovery thereupon is proved by P.W.8 Mukesh Thakur, the panch. The evidence of this witness would reveal that his evidence is silent about the memorandum of the accused being recorded. It is further to be noted that in the panchnama there is no mention regarding sealing. Apart from that, the seizure is from a plastic bag kept above the almirah in the house. The house was inhabited by the said accused along with the other inmates of the family.

In so far as the Opel car which is said to be belonging to the accused No. 3 Rajkumar is concerned, there is no material placed on record regarding the ownership of the said vehicle. Apart from that, the said vehicle is not seized from the accused. The evidence will show that the Investigating Officer had sent Head Constable Gajanan to search for the vehicle. The panchnama below Exh. 82 will reveal that the said vehicle was found parked opposite the house of the accused No. 3 Rajkumar. Head Constable Gajanan with the help of Sandip son of accused No. 3 Rajkumar brought the said vehicle to the Police Station. Neither the son of the accused No. 3 Rajkumar nor the Head Constable Gajanan have been examined. In that view of the matter, it will not be safe to connect the material seized from the said vehicle with the accused No. 3.

The Apex Court in the case of Salim Akhtar @ Mota Vs. State of Uttar Pradesh, AIR 2003 SC 4076 : (2003) CriLJ 2302 : (2003) 3 SCALE 698 : (2003) 5 SCC 499 : (2003) 3 SCR 470 : (2004) AIRSCW 52 : (2003) 8 Supreme 893 has held that if the recovery is made from a place accessible to all and everyone, it would not be safe to rely on the said recovery for conviction. The Apex Court has further held that non-sealing of the recovered material on the spot would also cause a serious doubt regarding the recovery of the alleged incriminating material. In that view of the matter, though the Chemical Analyzer''s report finds the blood group of the blood stains from the material allegedly seized at the instance of the accused to be belonging to the blood group of the deceased, it will not be possible to hold that this circumstance is proved beyond reasonable doubt by the prosecution.

That leaves us with the identification parade. The identification parade Exh. 152 is conducted by P.W.22 Mahadeo Shendre, who was working as Special Judicial Magistrate. In the said identification parade wherein P.W.2 Raju has identified accused Nos. 2 & 3, P.W.22 Mahadeo in cross-examination has admitted that he had asked the panch Roshan Korke to bring the accused with the help of watchman Niranjan Meshram at the place of identification parade. It is further admitted that both the accused came in front of him along with Roshan Korke. He has further admitted that he had also called the witness Raju Patel through the witness Roshan Korke The perusal of the panchnama of identification parade would reveal that the P.W.22 Mahadeo had asked witness Rajesh Korke to bring accused Nos. 2 & 3 from the prison. He further states that the said panch produced both the accused before him and on being asked, they told him their names. They were asked to stand in the parade as per their choice. Accused Mukesh chose to stand at the end of the queue. Accused Rajkumar chose to stand in between the dummy persons standing at serial Nos. 3 & 4. On being asked as to whether they would like to change their clothes, they denied to do so. The panchnama further states that thereafter the same panch was sent to call witness Raju. After sometime, P.W.2 Raju was brought at the place and thereafter he identified the accused Nos. 2 & 3. The Division Bench of this Court in the case of State of Maharashtra vs. Rajesh Alias Kaka Madanlal Soni & others reported in 1998 ALL M.R. (Cri.) 471 has held that it is not necessary that the defence should establish that the accused were shown to the witness. It has been held that the burden is discharged even if it is shown from the circumstances that there was a reasonable possibility of the accused being shown to the witness prior to test identification. In the present case, the panch Roshan Korke was sent to call the witness Raju after the accused were made to take their position in a queue. A possibility of the said witness informing P.W.2 Raju regarding the serial number of the accused cannot be ruled out. In that view of the matter, we find that the said circumstance is also not proved by the prosecution beyond reasonable doubt.

The next circumstance on which the prosecution relies is the extra-judicial confession made by accused No. 1 Pramod to P.W.3 Nitin. P.W.3 Nitin in his evidence states that he received a call from the accused No. 1 Pramod at around 9.30 to 10 p.m. on the day when the deceased was taken away by the accused persons. He further states that the accused No. 1 told him that they have killed Rakesh at Amravati road. He states that he has disclosed this fact to his companion Vipul. P.W.4 Vipul in his evidence also states that accused No. 1 made a call on the phone of P.W.3 Nitin. He states that P.W.1 told Nitin that they had brought Rakesh to Wadi. He further states that P.W.3 Nitin told him that the accused No. 1 had told him that they had beaten (Marle) Rakesh. The Marathi version of the deposition of the said witness reads thus:--

"Nitinne Mala Sangitle kee, Gujjune Tyala Phonewar Rakeshla Marlyache Sangitle".

The translation would be "Nitin told him that Gujju informed him on phone regarding killing/beating Rakesh".

The Apex Court in the case of State of U.P. Vs. M.K. Anthony, AIR 1985 SC 48 : (1985) CriLJ 493 : (1984) 2 SCALE 728 : (1985) 1 SCC 505 has observed thus:--

"15. There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The courts have considered the evidence of extra-judicial confession a weak piece of evidence. (See Jagta Vs. State of Haryana, AIR 1974 SC 1545 : (1974) CriLJ 1010 : (1974) 4 SCC 747 : (1974) SCC(Cri) 657 : (1975) 1 SCR 165 and The State of Punjab Vs. Bhajan Singh and Others, AIR 1975 SC 258 : AIR 1974 SC 258 : (1975) CriLJ 282 : (1975) 4 SCC 472 : (1975) 1 SCR 747 : (1974) 6 UJ 597 . In Sahoo Vs. State of Uttar Pradesh, AIR 1966 SC 40 : (1966) CriLJ 68 : (1965) 3 SCR 86 , it was held that ''an extra-judicial confession may be an expression of conflict of emotion, a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime. Before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. The Court proceeded to state that even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. In that case, the evidence was that after the commission of murder the accused was heard muttering to himself that he has finished the deceased. The High Court did not interfere with the conviction observing that the evidence of extra-judicial confession is corroborated by circumstantial evidence. However, in Pyara Singh v. State of Punjab (1978) 1 SCR 661, this Court observed that the law does not require that evidence of an extra-judicial confession should in all cases be corroborated. It thus appears that extra-judicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trust-worthy and beyond reproach the same can be relied upon and a conviction can be founded thereon."

It would thus be seen that the Apex Court has held that if the evidence about extra-judicial confession comes from the mouth of witness, who appears to be unbiased and not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused and the words spoken to by the witnesses are clear and unambiguous and if the evidence passes the rigorous test of credibility, such extra-judicial confession can be accepted and can be the basis of a conviction. The Apex Court held that even a conviction can be awarded on the basis of such extra-judicial confession. Similar view has been expressed by the Apex Court in the case of Chattar Singh and Another Vs. State of Haryana, AIR 2009 SC 378 : (2009) CriLJ 319 : (2008) 10 JT 230 : (2008) 11 SCALE 674 , Jagroop Singh Vs. State of Punjab, AIR 2012 SC 2600 : (2012) 3 Crimes 147 : (2012) 3 JCC 2137 : (2012) 6 JT 519 : (2013) 1 RCR(Criminal) 516 : (2012) 6 SCALE 512 : (2012) 11 SCC 768 : (2012) AIRSCW 4315 : (2012) 4 Supreme 612 and Kusuma Ankama Rao Vs. State of Andhra Pradesh, AIR 2008 SC 2819 : (2008) CriLJ 3502 : (2008) 7 JT 360 : (2008) 9 SCALE 652 : (2008) 13 SCC 257 : (2008) AIRSCW 4669 . In the present case, we find that since the evidence of P.W.3 Nitin and P.W.4 Vipul is found to be credible, the extra-judicial confession given by accused No. 1 to him would be a circumstance to establish his complicity. It is to be noted that leave apart these witnesses having any enmity with the accused, on the contrary, they are having friendly relations. There is nothing brought on record to show that there is any motive to falsely implicate the accused by these witnesses. The extra-judicial confession given to P.W.3 Nitin is also corroborated by P.W.4 Vipul. In any case, we are using this circumstance only to corroborate the circumstance regarding the deceased last seen together in the company of the accused and he being found in the seriously injured condition within a short span of time.

The next circumstance is motive. The evidence of P.W.12 Sau. Rakhi Gupta, the sister of the deceased would show that around 15 to 20 days prior to the incident, she had been to the house of her father. At that time, the deceased took her for a walk. They went to Krishnam Hotel at around 7 p.m. Thereafter, girl namely, Pranita came there. Her brother introduced Pranita to her. Thereafter Raju Patel came there. At that time, her brother Rakesh and Pranita were having talks between them. From that she realized that they were loving each other and wanted to marry. P.W.2 Raju has also stated in his deposition regarding the love affair between the deceased Rakesh and niece of accused No. 1. He has further stated that Pranita had stated that her maternal uncle will not give permission for the marriage as he was Badmash. The evidence of P.W.2 Raju, P.W.3 Nitin, P.W.4 Vipul and P.W.5 Samrat would also show that the accused was agitated on account of the love affair between the deceased and his niece Pranita. We, therefore, find that the prosecution has also established the motive beyond reasonable doubt.

The Apex Court in the case of State of U.P. Vs. Satish, AIR 2005 SC 1000 : (2005) CriLJ 1428 : (2005) 2 CTC 71 : (2005) 2 JT 153 : (2005) 3 SCC 114 : (2005) 2 SCR 1132 : (2005) 1 UJ 367 : (2005) AIRSCW 905 : (2005) 2 Supreme 13 has observed thus:--

"22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses P.Ws. 3 and 5, in addition to the evidence of P.W.2."

The Apex Court in the case of Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh, AIR 2006 SC 1656 : (2006) 4 JT 16 : (2006) 3 SCALE 452 : (2006) 10 SCC 172 : (2006) AIRSCW 1602 : (2006) 3 Supreme 175 has observed thus:--

"27. The last-seen theory, furthermore, comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration."

In the present case, the evidence of P.W.2 Raju, P.W.3 Nitin, P.W.4 Vipul and P.W.5 Samrat clearly goes to establish that the deceased was forcibly taken by the accused in the evening of 7th December. The deceased was found in seriously injured condition immediately on the next day morning. Time gap is so small that possibility of any other person, other than the accused being the author of the crime becomes impossible. Further this circumstance is corroborated by the other circumstances -- the FIR is lodged by the father of the deceased immediately at 11 p.m. in the night of 7th December, even prior to the deceased being found; the accused No. 1 is specifically named in the said FIR; a wireless message is sent by P.W.21 Bipin Shewale to all the Police Stations, thereby specifically implicating the accused No. 1 and 3 other persons. The prosecution has also proved the motive. The extra-judicial confession given by accused No. 1 Gujju to P.W.3 Nitin which is corroborated by P.W.4 Vipul is also a strong incriminating circumstance against the accused No. 1.

We, therefore, find that the prosecution has proved each and every incriminating circumstance beyond reasonable doubt and has also established a chain of events which leads to no other conclusion than the guilt of the accused. We, therefore, have no hesitation to hold that the prosecution has proved beyond reasonable doubt that the accused have committed the offence punishable under Section 364 of the Indian Penal Code and has also proved beyond reasonable doubt that it is the accused who have caused the death of the deceased.

In so far as the conviction of the appellant under Section 120B of the Indian Penal Code is concerned, we find that the prosecution has failed to prove any evidence to show prior agreement. Though P.W.3 Nitin, P.W.4 Vipul and P.W.5 Samrat say that they were present in the Madira Bar with the accused, there is not even a whisper in their evidence regarding any discussion between the accused to commit the crime. In that view of the matter, we find that the conviction under Section 120-B would not be sustainable. Had the Investigating Agency collected Call Detail Reports of all the accused persons and proved them, may be could have been a material so as to establish complicity of the accused for the offence punishable under Section 120-B of the Indian Penal Code. However, we find that no evidence is placed on record to establish previous meeting of mind of the accused to commit the crime in question.

That leaves us with a question as to whether conviction under Section 302 of the Indian Penal Code needs to be maintained or the conviction needs to be altered to a lesser offence.

From the material placed on record, it would reveal that the accused No. 1 Pramod @ Gujju was enraged with the deceased on account of the love relationship of the deceased with his niece Pranita. It is further to be noted that from the evidence placed on record by the prosecution itself, it would reveal that it is the deceased who had come to the house of the accused No. 1 Pramod. It is not the case of the prosecution that the deceased was called at his home by the accused No. 1 Pramod. It is further the case of the prosecution that the accused No. 1 Pramod along with the other accused has assaulted him in his house and thereafter forcibly took him in the vehicle. The deceased was found alive on the next day morning at a field near Satnawari. The evidence of P.W.18 Devanand would show that when he had gone to the spot, the deceased was alive. The spot panchnama would show that a stone stained with blood and mud was found on the spot. Though the evidence of P.W.19 Dr. Janrao Warudkar would reveal that the deceased had sustained various injuries on his body, the cause of death as is given in the evidence of P.W.19 Dr. Janrao Warudkar is the head injury. It could be seen that all the injuries except head injury are contusions and abrasions. It appears from the evidence that the appellants must have thrashed the deceased with stumps so as to show him a lesson and thereafter thrown him in the farm at Satnawari. From the panchnama, it could be seen that a stone stained with blood and mud has been found. The possibility of the accused using that stone and causing injury on the head of the deceased cannot be ruled out. However, if the accused had an intention to cause the death of the deceased, they could have very well carried some dangerous weapon with them and assaulted the deceased with that weapon. It appears that the intention of the accused was to thrash the deceased so as to give lesson to him for having relationship with the niece of the accused No. 1 Pramod. We, therefore, find that the prosecution has failed to establish beyond reasonable doubt that the accused had an intention to commit murder of the deceased.

It is further to be noted that on the next day morning the deceased was found to be alive by P.W.18 PSI Devanand Alone. The Medical Officer has also not stated in his evidence that the nature of injury sustained by the deceased was sufficient enough to cause death in the ordinary course of nature. As such, we find that the conviction under Section 302 of the Indian Penal Code would not be sustainable and the conviction will be required to be altered to one under Part II of Section 304 of the Indian Penal Code. Having held that the conviction needs to be altered to one under Part II of Section 304 of the Indian Penal Code, we would be required to decide on the question of sentence. In the present case, the motive that is attributed is only to accused No. 1 Pramod. It appears that the present accused Nos. 2 & 3 who are friends of accused No. 1, on account of friendship have assisted the accused No. 1 though they had no motive to commit the crime. We, therefore, find that it would not be in the interest of justice to award the same sentence to accused No. 1 Pramod to whom a motive can be attributed and to other accused, who appear to have only assisted the main accused. In that view of the matter, we find that it will be in the interest of justice to sentence the accused No. 1 Pramod to suffer R.I. for seven years with fine of Rs. 5000/- and the remaining two accused to suffer R.I. for five years with fine of Rs. 5000/-.

Hence, the following order:--

"The Criminal Appeals are partly allowed."

The conviction under Section 120-B of the Indian Penal Code is set aside.

The conviction and sentence under Section 364 read with Section 34 of the Indian Penal Code is maintained.

The conviction under Section 302 read with Section 34 of the Indian Penal Code is altered to the one under Section 304 Part II read with Section 34 of the Indian Penal Code and for the said offence, accused No. 1 Pramod @ Gujju S/o. Kanhaiyyalal Shahu is sentenced to suffer rigorous imprisonment for seven years and fine of Rs. 5000/-, in default to suffer rigorous imprisonment for six months; accused No. 2 Mukesh @ Musa S/o. Ramshankar Shivhare and accused No. 3 Rajkumar S/o. Kelaji Wankhede are sentenced to suffer rigorous imprisonment for five years and fine of Rs. 5000/- each, in default to suffer rigorous imprisonment for six months.

The sentences to run concurrently. Rest of the order passed by the learned Trial Judge is maintained.

Accused No. 2 Mukesh @ Musa S/o. Ramshankar Shivhare and accused No. 3 Rajkumar S/o. Kelaji Wankhede are directed to surrender within a period of four weeks from today before the learned Sessions Judge for undergoing the remainder of the sentence.