The sufficiency of circumstantial evidence and the need for a complete chain of evidence to establish guilt beyond a reasonable doubt.

JUDGMENT :

M.S. Sonak, J.

1. Heard Mr Aniket Vagal, learned Counsel for the Appellant in both the appeals and Ms M.M. Deshmukh, learned APP for the State.

2. Both these appeals challenge the Judgment and Order dated 17/12/2019 made by the learned Sessions Judge, Nashik, in Sessions Case No. 286 of 2015, convicting both the appellants for offences punishable under section 302, 201 read with section 34 of the Indian Penal Code. As a result, the appellants were sentenced to suffer imprisonment for life for the offence punishable under section 302 of the Indian Penal Code. Since both the appeals question the same Judgment and Order, learned Counsel for the parties agree that a common Judgment and Order can dispose of both these appeals.

3. One Rahul Bhalerao was also charged for the offence punishable under section 302, 201 read with section 34 of the Indian Penal Code, along with two appellants. However, by the above-impugned Judgment and Order, the learned Sessions Judge has acquitted him. Similarly, the learned Sessions Judge also acquitted the Appellant and said Rahul for an offence punishable under section 364 of the Indian Penal Code.

4. The prosecution case is that one Smt. Surekha Pagare lodged a missing complaint on 14/2/2015 at about 11.30 a.m. concerning her son Vivek (deceased). After two days, i.e. on 16/2/2015 at about 9.15 a.m. Vivek's father Devidas stated about the appellants' quarrels about 4 to 5 days earlier and the threats to kill. On suspicion, two appellants were taken into custody. During the investigation, the appellants made a statement under section 27 of the Indian Evidence Act, pursuant to which Vivek's dead body was recovered from a septic tank in the vicinity. The post-mortem report suggested that the death was homicidal, caused due to stab injury to the neck. The investigation also revealed injuries on the body of Ritesh @ Rajan (Appellant in Cr. Appeal No. 480 of 2020).

5. Moreover, the prosecution claimed to have recovered a knife used, based on the statement of Deepak (Appellant in Cr. Appeal No. 205 of 2021). Based upon all these, the charge sheet was filed before the Judicial Magistrate First Class, Nashik Road. The matter was then committed to the Sessions Court. As a result, by the impugned Judgment and Order, the Sessions Court has convicted two appellants and acquitted Rahul Bhalerao.

6. Mr Vagal learned Counsel for the appellants submits that evidence of the eye witness to the incident and the entire prosecution version is based purportedly upon circumstantial evidence. He, however, submits that test prescribed by the Hon'ble Supreme Court to sustain a conviction based on circumstantial evidence is not complied with by the prosecution. He relies on the Judgment in the case of Sharad Birdhichand Sarda v/s. State of Maharashtra, AIR 1984 SUPREME COURT 1622 in support of this proposition. Mr Vagal submits that there is no clear evidence for invoking the "last seen theory". He presents that the prosecution has failed to establish, even by approximation, the timing of death. Without showing the timing of death, there is no question of invoking this theory. He, therefore, submits that this circumstance should have been excluded from consideration by the Sessions Judge.

7. Mr Vagal submits that no injuries were found on Dipak Jadhav. However, the injuries allegedly found on Ritesh were sufficiently explained by him. In any case, such injuries are inconsistent with the prosecution version. Therefore, this circumstance should not have been held against Ritesh.

8. Mr Vagal, learned Counsel for the appellants, submits that there are serious discrepancies regarding recovering the dead body or knife. He submits that the evidence on record, at least by a preponderance of probabilities, suggests that the appellants were arrested before any FIR would be formally lodged. The investigating agency adopting means impermissible under the law obtained the appellants' signatures on blank papers. He submits that the ingre