Tanaji Maruti Kolekar vs State Of Maharashtra

N.J. Jamadar, J

The appellant (original accused no.1) takes exception to the judgment and order dated 18th December, 2012 in Sessions Case No.147 of 2012,

passed by the learned Additional Sessions Judge-2, Solapur, whereby and whereunder accused no.1 came to be convicted for the offences punishable

Sections 302, 201, 420, 467, 468 and 471 of the Indian Penal Code, 1860 (“the Penal Codeâ€) for having committed murder of Kasturabai Tonape

(“the deceasedâ€), caused disappearance of evidence thereof in order to screen himself from legal punishment, committed cheating by

impersonation, forged a purported power of attorney for the purpose of cheating and also used the said power of attorney as genuine despite having

known that it was a forged document, and sentenced to suffer imprisonment for life and pay fne of Rs.2,000/- on the frst count and for varying terms

of rigorous imprisonment and fne of Rs.1,000/- each, on rest of the counts, with default stipulation. Accused no.1 was, however, acquitted of the

offences punishable under Sections 364 and 120B of the Penal Code. Accused nos.2 to 6 were acquitted of all the offences; punishable under

Sections 302, 201, 364, 420, 467, 468 and 120B of the Penal Code.

The gravamen of indictment against the accused runs as under:

(a) Kishor Mahadeo Tonape (PW-12), the frst informant, is the resident of Kurduwadi, Taluka Madha, District Solapur. He runs a dairy at Pune. His

father, who retired from RPF, and mother Kasturabai (the deceased) were staying at Kurduwadi. Agricultural land bearing Block no.94 situated at

Awar Pimpri, Taluka Paranda, District Osmanabad, stood in the name of the deceased. The land of accused no.1 Tanaji was located adjacent to the

said land of the deceased. Accused no.1 cultivated the land of the deceased on crop share basis. Accused no.1 had also evinced interest in purchasing

the land of the deceased and had paid an earnest of Rs.30,000/- to the deceased.

(b) On 17th January, 2012, the father of the deceased left their home at Kurduwadi to meet his daughter Minakshi. He returned to Kurduwadi on 19th

January, 2012. The house was locked. It transpired that on 18th January, 2012 at about 3.30 pm. the deceased left the house. The frst informant and

his father could not reach the deceased on her cellphone. They did search for the deceased. However, the whereabouts of the deceased could not be

traced till 29th January, 2012. Thus, the frst informant initially lodged a missing report (Exhibit-87), on 29th January, 2012.

(c) In the meanwhile, the frst informant came across a postpaid bill of the cellphone, which was being used by the deceased. It revealed that the

deceased had received numerous calls from cellphone No.9689868477, then being used by accused no.1. On being confronted, accused no.1 apprised

the frst informant that the deceased had executed a power of attorney in respect of the land at Awar Pimpri in favour of accused no.1 and received a

sum of Rs.10,00,000/- towards consideration thereunder. Accused no.1 had also shown documents / receipts in respect of the said claim. Accused

no.1 further claimed to have paid the said sum of Rs.10,00,000/- in the presence of a person, whom the deceased called Bhau (brother). The said

claim could not be substantiated. Likewise, accused no.1 hazarded a guess that the deceased might have deposited the said amount in her account

with Pandharpur Bank. The said claim also turned out incorrect. When accused no.1 learnt that the frst informant lodged a missing report, accused

no.1 made himself scarce.

(d) During the course of inquiry in the missing report, it transpired that on the last day i.e. 18th January, 2012 accused no.1 had made numerous calls

on the cellphone of the deceased. As the suspicion grew stronger, inquiry was made in the offce of Sub-Registrar, Paranda. It was found that a

forged power of attorney was got registered by impersonating the deceased. Thereupon, the frst informant lodged report of abduction in order to

commit murder. Crime was registered at CR No.14 of 2012 initially for the offence punishable under Section 364 of the Penal Code at Kurduwadi

Police Station. Investigation commenced.

(e) During the course of investigation accused no.1 came to be apprehended on 5th February, 2012. On the very day, accused no.1 Tanaji made a

disclosure statement leading to the recovery of the dead body of the deceased from the feld of the deceased (Gat no.94) and the spade with which the

deceased was done to death. The body of the deceased was exhumed in the presence of the Executive Magistrate, Paranda. Inquest was held. The

body was sent for postmortem examination. The autopsy surgeon opined that the cause of death was head injury. The clothes on the body of the

deceased were seized. Accused no.1 produced the clothes which he wore at the time of the occurrence and those clothes were also seized. Accused

no.1 made further discovery and pointed out the place where the mobile phone of the deceased was thrown in the river. The motorcycle which

accused no.1 had used in the commission of offence was also seized.

(f) The investigation also revealed the complicity of accused no.2 Kalidas Abhang; the then Sub-Registrar, Paranda, accused no.3 Ravindra Sawant;

the Bond Writer, accused no.4 Ajij Mujawar, another Bond Writer, in forging the power of attorney by impersonating the deceased, who was shown

to have been fraudulently identifed by accused no.5 Tukaram Markad and accused no.6 Paresh Dixit. The investigation further revealed that in

pursuance of the criminal conspiracy accused nos.1 to 6 had forged the purported power of attorney and used it as genuine for the purpose of

cheating despite having known that it was a forged document. Thus, charge-sheet was lodged against the accused for the offences punishable under

Sections 302, 364, 201, 420, 467, 468, 471 and 120B of the Penal Code.

(g) Upon committal, the learned Sessions Judge framed charge against accused no.1 Tanaji for the offences punishable under Sections 302, 201,

120B, 420, 467, 468 and 471 of the Penal Code and accused nos.2 to 6 for the offences punishable under Sections 120B, 420, 467, 468 and 471 of the

Penal Code. The accused abjured their guilt and claimed for trial.

(h) At the trial, the prosecution examined 16 witnesses, including Kishor Tonape (PW-12); the frst informant, Smt. Sangita Bhosale (PW-11); a

relative of the deceased, Smt. Vaishali Patil (PW-10); the Executive Magistrate in whose presence the body of the deceased was exhumed, Popat

Hake (PW-13); in whose favour accused no.1 had executed Sale Deed dated 15th October, 2011 (Exhibit-89) on the strength of the allegedly forged

power of attorney dated 14th October, 2011, and Dr. Abrar Alikhan M. Umarkhan Pathan (PW-16); the Autopsy Surgeon, apart from the public

witnesses to the discoveries and the seizures of articles and the Investigating Offcers namely Harun Hamid Shaikh (PW-14) and Annasaheb Bandgar

(PW-15). The accused did not lead any evidence in their defence, which was of denial and false implication.

(i) After appraisal of the evidence and the material on record, the learned Sessions Judge was persuaded to enter a fnding of guilt against accused

no.1 Tanaji only for the offences punishable under Sections 302, 201, 420, 467, 468 and 471 of the Penal Code and impose the sentence, as indicated

above. The learned Sessions Judge was of the view that the circumstantial evidence squarely incriminated accused no.1 and the proved circumstances

were not explainable on any other hypothesis than that of the guilt of accused no.1. The learned Sessions Judge, however, held that the prosecution

could not succeed in establishing the criminal conspiracy and abduction, qua accused no.1 Tanaji. Likewise the prosecution failed to substantiate the

indictment against accused nos.2 to 6.

Being aggrieved by and dissatisfed with the impugned judgment of conviction and order of sentence, accused no.1 Tanaji is in appeal.

We have heard Mr. Khamkar, the learned Counsel for the appellant and Ms. P. P. Shinde, the learned APP for the State at length. With the

assistance of the learned Counsels we have also perused the evidence and material on record.

Mr. Khamkar, the learned Counsel for the appellant took a slew of exceptions to the impugned judgment. At the outset, it was urged, with a degree

of vehemence, that the learned Sessions Judge completely misdirected himself in entering the fnding of guilt without scrupulously adhering to the

governing principles of evaluation of circumstantial evidence. The learned Sessions Judge, according to Mr. Khamkar, lost sight of the fact that the

circumstances pressed into service by the prosecution were not fully and cogently established. Neither those circumstances were of conclusive

tendency. Nor the chain of circumstances was complete. The evidence of recovery of the dead body of the deceased, on the alleged pointing out by

the accused no.1, which was the linchpin of the prosecution case, was extremely fragile. There was no disclosure statement preceding the alleged

discovery. Thus, the said evidence did not fall within the ambit of Section 27 of the Evidence Act. The other discoveries were also fraught with

material infrmities.

Mr. Khamkar would further urge that the learned Sessions Judge committed a grave error in placing reliance on the testimony of Kishore Tonape

(PW-12) and Smt. Sangita Bhosale (PW-11). It was submitted that in the missing report (Exhibit-87), which was lodged after about 10 days of the

deceased having gone missing, there was no needle of suspicion against accused no.1 Tanaji. Thus the evidence of Kishor Tonape (PW-12) and Smt.

Sangita Bhosale (PW-11), which is a creature of afterthought, could not have been taken into account. It was further urged that the learned Sessions

Judge was swayed by the fact that the power of attorney was forged, which fact was also not established by cogent evidence. At any rate, it would

be preposterous to draw an inference of murder on the basis of alleged forgery of the documents, without anything more, urged Mr. Khamkar.

Per contra, Ms. Shinde, the learned APP joined the issue by canvassing a submission that the circumstantial evidence in the case at hand is so

strong and unassailable that no other fnding is conceivable. Motive for the crime is writ large. The endeavour on the part of accused no.1 to assail the

discovery leading to the recovery of the dead body of the deceased was stated to be futile as the said discovery was made within hours of the arrest

of accused no.1. There is no explanation as to how accused no.1 came to know about the body of the deceased having been buried in the said feld.

The call record details, which indicate that accused no.1 had made numerous calls on 18th January, 2012, the day the deceased was last seen alive,

also point unerringly to the guilt of the accused no.1. To add to this, the conduct of the accused is highly incriminating. There is evidence to indicate

that accused no.1 made repeated efforts to mislead the frst informant. Lastly, the fact that accused no.1 had executed the Sale Deed on the very next

day of creation of the forged power of attorney in favour of Popat Hake (PW-13) establishes the complicity of accused no.1 beyond the shadow of

doubt. Moreover, accused no.1 had not offered any explanation, much less plausible, in respect of the aforesaid incriminating circumstances, which in

itself, constitutes an additional link in the chain of circumstances and also provides the “missing linkâ€​, urged Ms. Shinde.

Evidently, the fate of the prosecution hinges upon circumstantial evidence. The prosecution professes to establish the guilt of the accused on the

strength of the circumstances which are borne out by the evidence adduced by it. A brief resume of the evidence which bears upon the guilt or

otherwise of the accused no.1 would facilitate the appreciation of the aforesaid submissions in a correct perspective.

Kishor Tonape (PW-12), the frst informant, unfolded the core of the prosecution case. After apprising the Court about the deceased being the

holder of the agricultural land bearing block no.94 and accused no.1 being an adjoining land holder, Kishore Tonape (PW-12) endeavoured to impress

upon the Court that accused no.1 was cultivating the land of the deceased on crop-share basis and also desired to purchase the said land, towards

which accused no.1 had paid an earnest of Rs.30,000/-. Kishor Tonape (PW-12) affrmed that the deceased was using a cellphone bearing

no.9011009479, the subscriber of which was his brother-in-law Pravin Mane. On 18th January, 2012, he could not reach the deceased on cellphone as

it was stated to be switched off. And despite search by him and his father the deceased could not traced.

Kishor Tonape (PW-12) wants the Court to believe that he had telephonic conversation with accused no.1. The latter apprised him that the

deceased had entered into a transaction with him in respect of the said land and had received a consideration of Rs.10,00,000/- towards the same.

Kishor Tonape (PW-12) thereafter met accused no.1. The latter had shown a copy of document purported to be a power of attorney and receipt.

Accused no.1 further informed him that the payment of Rs.10,00,000/- was made to the deceased in the presence of another person. Accused no.1,

later on informed him that the deceased deposited the said amount of Rs.10,00,000/- in her account maintained with Pandharpur Urban Bank,

Modnimb Branch. Kishor Tonpe (PW-12) wants the Court to believe that the identity of the person, in whose presence accused no.1 allegedly made

the payment, could not be ascertained despite efforts and no amount was found to have been credited in the account of the deceased with the

Pandharpur Urban Bank, Modnimb. Kishor Tonape thus claimed to have lodged the missing report (Exhibit-87).

Kishor Tonape (PW-12) further testifed to the fact that, in the wake of suspicion, the record in the offce of the Sub-Registrar, Parand, was

inspected. It transpired that the power of attorney, purported to have been executed by the deceased in favour of accused no.1, was got executed

fraudulently by impersonating the deceased. Accused no.1 swiftly alienated a portion of the land of the deceased in favour of Popat Hake (PW-13) on

the strength of the said forged document. Thus, Kishore Tonape (PW-12) lodged FIR (Exhibit-90). Kishor Tonape (PW-12) also deposed to the

events which transpired post the arrest of the accused, especially the recovery of the dead body of the deceased, at the pointing out by accused no.1,

in the presence of the Executive Magistrate.

The claim of Kishore Tonape (PW-12) that accused no.1 alienated a portion of the suit land in favour of Popat Hake (PW-13) by executing a

conveyance was sought to be corroborated by the transferee, Popat Hake (PW-13). The factum of the conveyance was deposed to by Popat Hake

(PW-13) in clear and explicit terms. Mr. Popat Hake (PW-13) was forthright in asserting that accused no.1 approached him to purchase a portion of

land bearing block no.94, he made enquiries with the offce of the Sub-Registrar about the transferability of the said land and thereafter accused no.1

executed the Sale Deed (Exhibit-89) on 15th October, 2011, on the strength of the power of attorney annexed thereto, purported to be executed on

14th October, 2011. The execution of the Sale Deed (Exhibit-89) by accused no.1, in the capacity of the constituted attorney of the vendor, was duly

proved by Popat Hake (PW-13).

The fact that the deceased was seen alive on 18th January, 2012, the day she went missing, was sought to be established by examining Smt.

Sangita Bhosale (PW-11). It is in the evidence of Smt. Bhosale (PW-11) that on 18th January, 2012, she had met Kasturabai, her matrimonial aunt, at

the bus-stand Kurduwadi. On enquiry, the deceased had informed her that she was on her way to the feld. Smt. Sangita Bhosale (PW-11) further

affirmed while she was engrossed in conversation with the deceased, the latter had received a call on her cellphone from accused no.1.

The discovery leading to the recovery of the dead body of the deceased was sought to be established by examining the public witnesses to the

discovery and Smt. Vaishali Patil (PW-10), the Executive Magistrate, in whose presence the body of the deceased was disinterred. Mr. Vivek Shinde

(PW-2) informed the Court that on 5th February, 2012, the accused made a disclosure statement to show the spade. Its memorandum (Exhibit-66)

was drawn. The accused thereafter laid the police party to the feld at Awar Pimpri and produced the spade which was kept, in a concealed state, in

the sugarcane crop. It was seized under seizure memo (Exhibit-63).

Mr. Harun Shaikh (PW-14), the Investigating Offcer, deposed to the fact that accused no.1 had made a disclosure statement to show the place

where the body of the deceased was buried and also produce the spade. Mr. Shaikh (PW-14) further affrmed that accused no.1 had pointed out the

place situated in the land, block no.94 of village Awar Pimpri, of the deceased, where the body of the deceased was buried. Mr. Harun Shaikh (PW-

14), thus claimed to have addressed a letter (Exhibit-97) to the Executive Magistrate, Paranda to exhume the body of the deceased therefrom.

Smt. Vaishali Patil (PW-10) lends support to the claim of Mr. Harun Shaikh (PW-14). Smt. Vaishali Patil (PW-10) affrmed that when she

reached block no.94, Awar Pimpri, accused no.1 pointed out the spot where the body of the deceased was buried. Thereupon, Smt. Vaishali Patil

(PW-10) claimed to have exhumed the body of the deceased by taking assistance of a JCB machine and the labourers. The body of the deceased was

disinterred. Kishor Tonape (PW-12) identifed the body of the deceased. A scarf was tied on the head and mouth. There were dried bloodstains on the

backside of the head. Sahaji Jagtap (PW-3), the witness to the disinterring of the body of the deceased under panchnama (Exhibit-65), sought to lend

corroboration to the claim of Smt. Vaishali Patil (PW-10).

The prosecution claimed that accused no.1 Tanaji had made further discoveries. Bharat Jagtap (PW-5), a public witness, testifed to the fact that

on 11th February, 2012, accused no.1 voluntarily made a disclosure statement to show the place where the ladies slippers of the deceased, of Lakhani

make, were concealed. Post memorandum (Exhibit-72), accused no.1 led the police party to block no.94 Awar Pimpri, Taluka Paranda and took out

the ladies slippers from the sugarcane feld, which were seized under the seizure memo (Exhibit-73). Mr. Vilas Jagtap (PW-4), another public witness,

claimed that on 15th February, 2012, accused no.1 Tanaji volunteered to show the place wherefrom he had thrown the mobile phone handset in the

river. Accused no.1, thereafter, led the police party to the said place and pointed out the spot near the feld of Ghashiram Jain.

In support of the prosecution case that on 18th January, 2012, accused no.1 had made multiple calls to the deceased, the record of call details

(Exhibit-96), was pressed into service. The record of call details indicates that the subscriber of phone no.9689868477 was accused no.1 Tanaji and

the subscriber of 9011009479 was Pravin Mane. It reveals that on 18th January, 2012 in between 1.00 pm. to 5.15 pm. the deceased had received fve

calls from accused no.1 Tanaji.

Lastly, it may be apposite to briefy note the evidence of Dr. Abrar Ali Khan Pathan (PW-16), the Autopsy Surgeon. On external examination, Dr.

Pathan (PW-16) claimed to have noticed the following injuries:

“On occipital region of scalp, oblique injury seen from right side descending obliquely to left side measuring about 8 cm. X 10 cm. gap in scalp with

underlying skull injury.â€​

On internal examination the following injury was noticed:

“On occipital region of scalp depressed fracture of bone seen. Oblique in nature from right side to oblique downwards to left side with toal bone

thickness measuring about 4 cm. X 6 cm. X 2 cm.â€​

In the opinion Dr. Pathan (PW-16) the cause of death was head injury. The aforesaid injuries were suffcient in the ordinary course of nature to

cause death. They were possible by means of the spade. Death might have occurred prior to 10 days. Dr. Pathan further affrmed that the body of the

deceased had not yet decomposed. He opined that, a dead body lying in the open space decomposed faster than a buried body.

Noting material could be elicited in the cross-examination of Dr. Pathan (PW-16) to rule out the homicidal nature of the death. Dr. Pathan (PW-

16) fatly denied the suggestion that the injury of the kind sustained by the deceased was possible on account of fall on a hard surface. Evidently, the

deceased was assaulted by means of a hard object, from behind. The nature of the grievous injury resulting in the depressed fracture of the bone

coupled with the circumstances in which the dead body was found leads to no other inference than that of homicidal death. We are thus persuaded to

hold that the factum of homicidal death of the deceased is established beyond the pale of controversy.

This takes us to the moot question of the authorship of the homicidal death which the deceased met. On the strength of the evidence, which we

have adverted to above, the prosecution professed to fasten the liability upon the accused, resting upon the following circumstances which, according

to the prosecution, incriminate accused no.1 Tanaji:

(i) A strong motive to liquidate the deceased as accused no.1 fraudulently alienated the land of the deceased.

(ii) Accused no.1 had forged a document purported to be a power of attorney by impersonating the deceased, on 14th October, 2012.

(iii) On the very next day, the Sale Deed (Exhibit-89) was executed in favour of Popat Hake (PW-13) falsely claiming to be a constituted attorney of

the deceased.

(iv) When the deceased was last seen alive on 18th January, 2012, she had informed that she was proceeding to the feld at Awar Pimpri.

(v) Accused no.1 made multiple calls to the deceased on 18th January, 2012.

(vi) Accused no.1 made discovery and pointed out the place wherefrom the body of the deceased was disinterred.

(vii) Accused no.1 made discovery leading to the recovery of the weapon of assault i.e. spade.

(viii) Accused no.1 made discovery resulting in the seizure of the ladies slippers, which the deceased wore.

(ix) Accused no.1 had also pointed out the spot wherefrom he had fung the mobile phone handset of the deceased into river.

(x) Accused no.1 made conscious and deliberate attempt to mislead the frst informant Kishore (PW-12) by, frstly, claiming that he had paid a sum of

Rs.10,00,000/- to the deceased in the presence of another person and, later on, asserting that the deceased might have deposited the said amount in

her account with Pandharpur Urban Bank, which turned out to be false.

(xi) Accused no.1 did not offer any explanation much less plausible in respect of any of the aforesaid incriminating circumstances.

Before adverting to evaluate each of the aforesaid circumstances it may be advantageous to note that there is not much controversy over certain

primary facts. Indisputably, the deceased was the holder of the agricultural land bearing block no.94. By and large, it is not disputed that accused no.1

is an adjoining land holder though the claim of Kishor Tonape (PW-

12) that accused no.1 cultivated said land on crop-share basis was sought to be contested. The relationship between the frst informant Kishor Tonape

(PW-12) and the deceased and the fact that the frst informant ran a business at Pune and the deceased was residing at Kurduwadi, along with her

husband, were not put in contest. The exhumation of the body of the deceased from the land bearing block no.94 is also not much in dispute. The

controversy revolves around the knowledge of the accused about the said concealment and the consequences which emanate therefrom.

The legal position as to when the guilt of the accused can be legitimately sustained on the strength of circumstantial evidence is well recognized. It

would be suffce to make a proftable reference to the judgment of the Supreme Court in the case of Sharad Birdhichand Sarda vs. State of

Maharashtra1, wherein the principles were illuminatingly postulated. They read as under:

“1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

The facts so established should be consistent with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any

other hypothesis except that the accused is guilty.

The circumstances should be of a conclusive nature and tendency.

They should exclude every possible hypothesis except the one to be proved.

There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the

accused and must show that in all human probability the act must have been done by the accused.â€​

Circumstance nos. (i), (ii) and (iii):

On the aforesaid touchstone readverting to the appraisal of the evidence on record, the proof of motive for the crime depends upon the alleged forgery

and cheating by impersonation so as to grab the immovable property of the deceased. In our view, the evidence of Mr. Popat Hake (PW-13) is of

critical signifcance. His claim that accused no.1 Tanaji had offered to sell part of agricultural land bearing block no.94 and post negotiations executed

the conveyance fnds unfinching corroboration in the instrument (Exhibit-89). The identity of accused no.1 Tanaji as the executant of the said

instrument is established beyond the pale of controversy by its intrinsic evidence. The conveyance was executed by accused no.1 in the capacity of

constituted attorney of the deceased. To vouch for the said capacity, a copy of the purported power of attorney executed by the deceased in favour of

the accused was annexed thereto. It would be contextually relevant to note that the claim of the Kishor Tonape (PW-12) that the executant of the

said power of attorney was impersonated as neither the power of attorney bears the signature of the deceased nor her photograph, went

unimpeached.

No endeavour was made by accused no.1 to draw home the point that the deceased had indeed executed the power of attorney in his favour.

Instead, a device of denial of anything and everything was adopted by accused no.1. However, the registered conveyance (PW-89) executed in the

capacity of the constituted attorney forecloses the escape route for accused no.1. What accentuates the situation is the execution of the Sale Deed

(Exhibit-89) on the very next day of the creation of the power of attorney. The intent to defraud is betrayed unmistakably. The extract of the

instruments executed on 14th October, 2011 (Exhibit-104), maintained in the offce of Sub-Registrar, Paranda, establishes the identity of accused no.1

Tanaji as the person who had tendered the said power of attorney for registration and had also received the original instrument. In the face of such

overwhelming documentary evidence, which nails accused no.1 Tanaji conclusively, mere denial is of no avail.

The time-lag between the execution of the Sale Deed (Exhibit-89) (15th October, 2011) and the date the deceased went missing (18th January,

2012) is also of some signifcance. The fear of the fraud being unearthed was clear and present. Viewed through this prism, in the facts and

circumstances of the case, the motive for the crime can be said to have been proved.

Circumstance nos. (iv) and (v):

Smt. Sangita Bhosale (PW-11) endeavoured to impress upon the Court that she met the deceased at Kurduwadi bus-stand on 18th January, 2012. The

deceased had told her that she was on her way to the feld. No endeavour was made in the cross-examination of Smt. Sangita (PW-11) to impeach

her aforesaid claim of having met the deceased. In contrast, it was brought out that Smt. Sangita (PW-11) met the deceased at Kurduwadi bus-stand

in between 3.45 pm. to 4.30 pm. and there was rush of passengers thereat. It is not uncommon for the villagers to bump into the relatives at the bus-

stand of a small town. The claim of Smt. Sangita (PW-11) that the deceased had apprised her that she was proceeding to the feld cannot be said to be

untrustworthy as that would be the frst line of inquiry with a relative or acquaintance whom one comes across at the bus-stand.

Although an omission was elicited in the cross-examination of Smt. Sangita (PW-11) that she did not inform the police that while she was

engrossed in conversation with the deceased, accused no.1 Tanaji had called the deceased on the latter’s phone, yet, the said omission does not

impair the prosecution as there is independent evidence on the aspect of the telephone calls exchanged by and between the accused and the

deceased.

Mr. Harun Shaikh (PW-14), the Investigating Offcer, claimed to have obtained the record of call details (Exhibit-96). Pertinently, during the course

of the cross-examination of Harun Shaikh (PW-14), an effort was made to demonstrate that the record of call details (Exhibit-96) does not reveal the

conversation between the persons who made and received the calls. The claim of the prosecution witnesses that the deceased was using the

cellphone having no. 9011009479 and the accused used the cellphone having no. 9689868477 was not sought to be assailed. Nor the genuineness,

authenticity and reliability of the record of call details (Exhibit-96) was questioned.

The call details of cell no.9011009479, which was being used by the deceased, furnished by the Idea Cellular Ltd., the service provider, indicates

that on 18th January, 2012 in between 1.00 pm. to 7.09 pm., seven calls were exchanged between the numbers 9011009479 (the deceased) and

9689868477 (the accused). Five calls were made by the accused. The record of call details in respect of cellular no.9689868477 (of the accused)

furnished by the Idea Cellular Ltd., the service provider, reveals that the calls were so made and received on 18th January, 2012.

The fact that accused no.1 had made multiple calls to the deceased a short while before and after the deceased left her home at Kurduwadi,

cannot be said to be inconsequential or immaterial. As many as seven calls in less than six hours cannot be explained away as mere incidental.

Moreover, no effort was made to throw light on the circumstances which constrained accused no.1 to make calls with such alarming frequency to the

deceased, on the day she was last seen alive.

Circumstance nos. (vi), (vii), (viii) and (ix):

The prosecution alleged that the accused, with a view to destroy the evidence, had thrown the mobile phone handset which the deceased used in the

river. Reliance was placed on the evidence of Vilas Jagtap (PW-4), a public witness to the discovery. The claim of Vilas Jagtap (PW-4) that accused

no.1 Tanaji had made a disclosure statement on 15th February, 2012 to the effect that he would show the place wherefrom he had thrown mobile

phone handset in the river and thereafter pointed out the said spot near the feld of Ghashiram Jain, even if accepted at par, does not advance the

cause of the prosecution. It cannot be said that any fact was discovered pursuant to the disclosure statement made by accused no.1 Tanaji. In the

absence of any discovery, the correctness of the statement allegedly made by accused no.1 Tanaji cannot be said to have been confrmed. In our view,

the evidence of pointing out of the place simpliciter is of no evidentiary value.

Before we delve into the discovery which allegedly led to the disinterring of the body of the deceased and the recovery of the weapon of the

offence i.e. spade, on 5th February, 2012, we deem it appropriate to appraise the evidence of the discovery leading to the seizure of the ladies slippers

(circumstance viii). Bharat Jagtap (PW-5), a witness to the discovery allegedly made by accused no.1 Tanaji on 11th February, 2012, testifed to the

fact that accused no.1 volunteered to produce the slippers belonging to the deceased, and thereafter led the police party to his feld situated at Awar

Pimpri. The accused took out the pair of slippers (Article 13) from the sugarcane feld. It was seized under seizure memo (Exhibit-73).

Despite an incisive cross-examination nothing material could be elicited to discard the claim of Bharat Jagtap (PW-5). Bharat Jagtap (PW-5) did

concede that the slippers (Article 13) are readily available in the market. However, this general admission is not suffcient to jettison away the claim of

Bharat Jagtap (PW-5). It is imperative to note that when the body of the deceased was disinterred, certain clothes and ornaments were found on her

person. However, the footwear were not found. The recovery of the footwear of the deceased pursuant to the discovery made by accused no.1

Tanaji from his feld thus constitutes an incriminating circumstance.

In proof of discovery leading to the disinterring of the body of the deceased and the recovery of weapon of offence i.e. spade, the prosecution

banked upon the testimony of Vivek Shinde (PW-2). Mr. Khamkar, the learned Counsel for the appellant, advanced a serious criticism against the

evidence of Vivek Shinde (PW-2). It was pointed out that Vivek Shinde (PW-2) did not depose to the fact that accused no.1 Tanaji made a statement

to the effect that he would show the place where the body of the deceased was buried. Nor Vivek Shinde (PW-2) affrmed that the accused had

shown the said spot. The testimony of Vivek Shinde (PW-2) is simply restricted to the recovery of the spade (Article 6).

Secondly, according to Mr. Khamkar, a serious doubt arises about the credibility of the claim of Vivek Shinde (PW-2) as the time-lines do not

match. The memorandum (Exhibit-62) is shown to have been drawn in between 17.30 to 17.40 pm. and the seizure memo is shown to have been

drawn in between 17.40 to 18.45 pm. Accused no.1 Tanaji conceded in the cross-examination that the distance between Kurduwadi police station

where the disclosure statement was made and the feld wherefrom the spade was recovered was about 10 km. and it took around an hour to reach the

said feld from the police station. Vivek Shinde (PW-2) further asserted that they reached the feld at 6.40 pm. These admissions, according to Mr.

Khamkar, render it unsafe to rely upon the alleged discovery.

It is true that Vivek Shinde (PW-2) did not dispose to the disclosure statement allegedly made by accused no.1 Tanaji regarding the spot where the

body of the deceased was buried. The evidence of Vivek Shinde (PW-2) touches the aspect of recovery of the spade (Article 13) only. The situation

which thus obtains is that though there is evidence which indicates that pursuant to the discovery made by accused no.1 Tanaji, spade (Article 13) was

recovered, yet the testimony of Vivek Shinde (PW-2) is of no assistance to the prosecution on the point that accused no.1 had shown the spot where

the body of the deceased was buried. The variance in time, in our view, however, is not of much signifcance.

Mr. Harun Shiakh (PW-14), the Investigating Offcer, on his part, specifcally deposed to the disclosure statement made by accused no.1 Tanaji to

show the place where the body of the deceased was buried and the place where the weapon of offene i.e. spade was kept. Mr. Harun Shaikh (PW-

14) further affrmed that after accused no.1 Tanaji pointed out the place where the body of the deceased was buried, he gave requisition (Exhibit-97)

to the Executive Magistrate to exhume the dead body. Apart from suggestions, which were stoutly denied by Mr. Harun Shaikh (PW-14), nothing

material could be elicited in the cross-examination so as to jettison away the claim of Mr. Harun Shaikh (PW-14).

Smt. Vaishali Patil (PW-10), the Executive Magistrate, wants the Court to believe that accused no.1 Tanaji had pointed out the spot situated in

block no.94 at Awar Pimpri, Taluka Paranda, where the body of the deceased was buried. Thereupon, the body of the deceased was exhumed from

the said spot with the assistance of a JCB and the labourers.

Shahaji Jagtap (PW-3) ventured to support the claim of Smt. Vaishali Patil (PW-10). Shahaji Jagtap (PW-3) affrmed that on being enquired by

Smt. Vaishali Patil (PW-10) accused no.1 Tanaji had pointed out the place where the body of the deceased was buried. The said spot was dug up.

The body of the deceased was found thereat.

In the aforesaid backdrop, it was urged that the claim of Smt. Vaishali Patil (PW-10) and Shahaji Jagtap (PW-3) is of no assistance to the

prosecution as there was no preceding statement so as to make the alleged discovery of the body of the deceased admissible under Section 27 of the

Evidence Act.

The fact that there is no preceding statement, by itself, does not render the aforesaid evidence of the accused pointing out the place where the

dead body of the deceased was buried, totally irrelevant. Under Section 8 of the Evidence Act, the conduct of the accused which infuences or is

infuenced by any fact in issue or relevant fact also becomes relevant. For want of preceding disclosure statement the recovery of the dead body at the

instance of the accused may not be admissible under Section 27 of the Evidence Act. However, the aforesaid evidence of the accused having led the

police party and pointed out the place where the dead body was buried would be admissible under Section 8 of the Evidence Act as the conduct of the

accused.

A proftable reference, in this context, can be made to a judgment of the Supreme Court in the case of A.N. Venkatesh & Anr. Vs. State of

Karnataka2, wherein, the accused therein had abducted a boy for ransom, killed him and buried the dead body, and, on being apprehended by police,

had shown the place where the dead body was buried. The Supreme Court held that the said act of the accused of pointing out the place from where

the dead body of the deceased was exhumed would be admissible as conduct under Section 8 of the Evidence Act irrespective of the fact whether the

statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27.

The observations in paragraph 9 are material :

“9 By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct infuences or is infuenced by any fact

in issue or relevant fact. The evidence of the circumstance, simplicitor, that the accused pointed out to the police offcer, the place where the dead

body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of

the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or

not as held by this Court in Prakash Chand Vs. State (AIR 1979 SC 400). Even if we hold that the disclosure statement made by the accused

appellants(Ex. P14 and P15) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the

investigating offcer and PWs 1, 2, 7 and PW4 the spot mazhar witness that the accused had taken them to the spot and pointed out the place where

the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place

where ransom demand was to be fulflled and their action of feeing on spotting the police party is a relevant circumstance and are admissible under

Section 8 of the Evidence Act. (emphasis supplied)

The aforesaid judgment was followed by the Supreme Court in the case of Harivadan Babubhai Patel Vs. State of Gujarat3.

In the light of the aforesaid legal position, reverting to the facts of the case, the evidence of Smt. Vaishali Patil (PW-10), Shahaji Jagtap (PW-3),

Harun Shaikh (PW-14), that accused no.1 Tanaji had pointed out the spot where the body of the deceased was buried does not suffer from any

signifcant infrmity. We are, thus, impelled to hold that the evidence on the aspect of pointing out the place where the body of the deceased was buried,

by accused no.1, Tanaji allures confdence. This act of the accused of pointing out the said place wherefrom the body of the deceased was disinterred

thus becomes admissible as conduct infuenced by the fact in issue.

It would be contextually relevant to make a reference to the judgment of the Supreme Court in the case of State of Maharashtra vs. Suresh4,

wherein the Supreme Court adverted to the possibilities which are conceivable when an accused points out the place where a dead body was

concealed. The observations of the Supreme Court in paragraph 26 are instructive. They read as under:

“26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed

without stating that it was conceded by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else

concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the

criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was

concealed by the accused himself. This is because accused is the only person who can Offer the explanation as to how else he came to know of such

concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justifed course to be

adopted by the criminal court mat the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in

Section 27 of the Evidence Act.â€​ (emphasis supplied)

In the case at hand, accused no.1 Tanaji made no effort to explain the circumstances in which he came to know about the concealment of the

body of the deceased at the said place. This factor is required to be appreciated in the backdrop of the concomitant circumstances. There is evidence

to indicate that the accused had not only forged the document to show that he was the constituted attorney of the deceased but also went ahead to

execute a conveyance by falsely claiming to be the constituted attorney of the deceased. On the day on which the deceased was last seen alive,

accused no.1 had made multiple calls on the cell phone of the deceased. The fact that on the very day the deceased had informed Smt. Sangita (PW-

11) that she was on her way to the feld, wherein the body of the deceased was found in an buried state, also weighs in. The weight of these

circumstances cast an obligation upon the accused to offer a plausible explanation about the knowledge of the concealment of the body of the

deceased.

Circumstance nos.(x) and (xi) :

The claim of Kishor Tonape (PW-12), the frst informant, that accused no.1 Tanaji had represented to him that the deceased had executed a power of

attorney in his favour and had accepted a consideration of Rs.10,00,000/- thereunder, in the presence of another person, and that the deceased might

have deposited the said amount in her account with Pandharpur Urban Bank, Modnimb Branch, (which was found to be untrue) was not at all

impeached in the cross-examination. This claim of Kishor Tonape (PW-12) that accused no.1 Tanaji made false representations, with a view to

exculpate himself and misdirect the inquiry is of material signifcance. These representations cannot be said to be innocuous. The deceased was done

to death. The claim that the deceased had executed the instrument after receipt of consideration was with a desire to thwart the possible challenge to

the alienation of the suit land by accused no.1 Tanaji, which was purported to be effected by executing conveyance in favour of Popat Hake (PW-13),

on 15th October, 2010 itself. In the circumstances of the case, these false representations bear upon the guilt of accused no.1 Tanaji.

Indeed no effort was made by accused no.1 Tanaji to offer any explanation, much less reasonable and plausible one, to any of the aforesaid

incriminating circumstances put to accused no.1. Accused no.1 Tanaji adopted the device of denial simpliciter. The aforesaid circumstances are of

defentive tendency and highly incriminatory in nature. The failure of the accused to offer explanation despite opportunity thus constitutes an additional

link in the chain of circumstances.

The fact that in the missing report (Exhibit-87), the frst informant Kishor Tonape (PW-12) had not made allegations against accused no.1 Tanaji

does not detract materially from the prosecution case. Till the lodging of the missing report, on 29th January, 2011, the matter was in the realm of

inquiry. After it was found that a forged instrument was got executed and, resultanly, the fraud was unearthed, the complicity of the accused no.1

came to light. Thus, the fact that no suspicion was entertained when the missing report (Exhibit-87) was lodged is not of determinative signifcance.

The upshot of aforesaid consideration is that except circumstance of pointing out the place from where the mobile phone handset of the deceased

was allegedly thrown into the river, (circumstance no.ix), rest of the circumstances can be said to have been frmly and cogently established. The

circumstances are of defnite tendency and cumulatively incriminate accused no.1. The chain of circumstances is complete. On balance, the

circumstantial evidence in the instant case leads to no other inference than that of the guilt of accused no.1 Tanaji. The possibility of any person other

than accused no.1 Tanaji being the perpetrator of the offence is ruled out by the weight of the aforesaid circumstances. There was a clear motive for

the accused to eliminate the deceased. The proved circumstances, adverted to above, are plainly incompitible with the innocence of accused no.1

Tanaji.

We are also of the view that the evidence adduced by the prosecution, especially the testimony of Popat Hake (PW-13), on the aspect of cheating

and forgery, establishes the guilt of the accused for the offences punishable under Sections 420, 467, 468 and 471 of the Penal Code beyond

reasonable doubt.

For the foregoing reasons, we do not fnd any infrmity in the impugned judgment of conviction and order of sentence. No interference is warranted

in the impugned judgment. Thus, the appeal, being devoid of substance, deserves to be dismissed. Hence, the following order:

: O r d e r :

The appeal stands dismissed.