Case: Deepak Bajirao Shelke Vs. State of Maharashtra

Oral Judgment: (A.R. Joshi, J.)1. Both the criminal appeals are being disposed of together as both the appeals are arising out of challenge to the same judgment and order of conviction dated 30th January, 2010 passed by the Additional Sessions Judge, Nashik in Sessions Case No.208 of 2008.2. Heard learned appointed Advocate Shri Arfan Sait for the appellant-original accused no.1 in Criminal Appeal No.594 of 2010. Also heard learned appointed Advocate Shri Murtaza Nazmi for appellant accused No.2 in Criminal Appeal No.778 of 2011 and also heard Mrs M.M.Deshmukh learned APP for the State.3. Case of the prosecution, in nut-shell, is as under:Appellant-accused No.1 was working with New Bal Road Lines, a Transport Company, owned by one Paramjeetsingh Khushalsingh Bal, Vikroli, Mumbai (PW No.13). Accused No.1 was working as a cleaner on tanker No.MH-04-CA-6387. One PW No.6 Satyandrajeetsingh was also working with new New Bal Road Lines as driver of tanker No.MH-04-CA-6387. Victim, the deceased Avdheshkumar Nai was also working with same transport company as driver on another tanker No.MH-04-CA-6385. According to the case of the prosecution, appellant - accused no.1 had given his biodata to the Transport Company prior to his appointment as a cleaner. As such about two months prior to the incident which occurred on 12th/13th March, 2008, appellant-accused No.1 was given the said employment by PW No.13. According to the case of the prosecution, appellant-accused No.2 is the friend of accused No.1 and apparently they both met PW No.6 Satyendrajeetsingh on the night between 12 and 13th March, 2008 at about 11:00 p.m. or there about.They met at Baba Dhaba situate on Chandwad to Malegaon road on Mumbai Agra highway. At that Dhaba they also met the deceased Avdheshkumar Nai who was then driving his tanker No.MH-6385 and was proceeding towards Mumbai. PW No.6 Satyendrajeetsingh was driving tanker No.MH-04-CA-6387 and was proceeding from Chembur to Calcutta. At the Baba Dhaba these four persons met each other and they had talk as victim PW No.6 and appellant-accused No.1 were employed with the same Transport Company and were knowing each other. During that conversation, appellant-accused no.1 heard that victim had loaded about 1496 kilograms cotton seed oil from Bhagvati Refinery Pvt. Ltd. Varkheda Road, Pachora, District Jalgaon and he was proceeding to Mumbai to deliver the same. According to the case of the prosecution, though appellant accused No.1 was supposed to work on the tanker driven by PW No.6 as a cleaner, he changed his mind and boarded the tanker of the deceased along with his friend accused no.2 saying that he wanted to go back to Mumbai and will not accompany PW No.6 on his tanker to Calcutta.4. According to the case of the prosecution, both the appellants-accused strangulated the deceased and dumped his body in the wooden box kept in the cabin of the driver and thereafter parked the tanker by the side of the road in between villages Jaigaon and Brahmanwadi, Taluka Sinnar. Also according to the case of the prosecution, on 13th March, 2008 in the evening time both the appellants were found selling cotton seed oil to nearby villagers pretending that they wanted to raise money for repairs of tanker. They sold the oil @ Rs.50/- per kilogram. On the same night at about 8:30 p.m. they allegedly went to the S.T. bus stand of Sinnar along with the tanker and asked one auto-rickshaw driver by name Prakash Zagde (PW No.10) to follow their tanker and then proceeded towards Gurhewadi. At that place about a distance of 3 kilometers from Sinnar they parked tanker No.MH-04-CA-6385 and boarded in auto-rickshaw which was following the tanker. In the said rickshaw they went towards Musalgaon shivar and from same locality they picked up two girls and again boarded the rickshaw and both the appellants-accused and two girls then reached to Yashraj Hotel at Sinnar at about 10:00 p.m. Auto-rickshaw driver PW No.10 was instructed to come to that place on the next day morning. Accordingly, on 14th March, 2008 at about 9:00 a.m. PW No.10 attended the hotel and took both the girls which were brought to the hotel by earlier night by the appellants-accused, to their place.5. Also according to the case of the prosecution on 14th March, 2008 in the morning both the appellants-accused hired one Omni motor vehicle and visited Ganesh temple at Ozar and then went to Sangamner and after taking meals returned back to Sinnar.6. Also according to the case of the prosecution, in the meantime some bad smell was emitting from the tanker which was parked by the appellants-accused. As such, complaint was made to Sinnar Police Station and the dead body of victim was revealed from inside cabin of the driver, dumped in the wooden box. As the body could not be taken out from the wooden box, the box was cut open. Accordingly, ADR was registered. Inquest panchnama was conducted. Dead body of victim was sent to Municipal Hospital, Sinnar for postmortem. Search of drivers cabin of truck was conducted. Relevant papers concerning the truck were found. After finding the address and telephone numbers of the transport company, Manager of the Company was called and he was informed regarding finding of dead body of one person in the cabin of driver of tanker No.MH-04-CA-6385. The owner of the Transport Company (PW No.13) was summoned. Accordingly, he came and identified the dead body as that of his driver Avdheshkumar Nai. Another driver by name Satyendrajeetsingh (PW No.6) was also informed and through him it was revealed that the present appellant -accused no.1, the cleaner on the tanker No.MH-04-6385 and his friend had accompanied the victim from Baba Dhaba. PW No.6 Satyendrajeetsingh also attended the police station on his way back from Raipur and he also identified the dead body as that of Avdheshkumar Nai.7. According to the case of the prosecution, biodata of appellant-accused No.1 was called on fax from the office of PW No.13 and that time it was revealed that appellant-accused No.1 has given a fictitious name as Arjun Patil while taking employment with transport company. During the investigation enquiries were made regarding who were the villagers who had purchased the cotton seed oil from the appellants-accused persons. As such statements of said villagers were recorded including PW Nos.7, 8 and 9. Thereafter, on secret information both the appellants accused were arrested. They were identified by PW No.6 Satyandrajeetsingh, driver of tanker No.MH-04-CA-6387. They were also identified by PW No.13 Paramjitsing, owner of the transport company. According to the case of the prosecution, they were arrested on 16th March, 2008 under the arrest panchnama in which PW No.1 and PW No.2 were the panch witnesses. The test identification parade was conducted on 16th of April, 2008 i.e. after about a month after the arrest of the accused persons. Said test identification parade was conducted by one Shivrao Shinde (PW No.16), then Tahsildar. In the said test identification parade, both the appellants-accused were identified by PW No.7,8 and 9, the villagers, who purchased the cotton seed oil from the appellants-accused persons.8. Earlier on 16th March, 2008 investigation was handed over to one Sanjay Barkund PW No.18. According to the case of the prosecution, while in police custody appellant-accused No.1 made a voluntary statement to show the place where the dead body was concealed in the tanker. As such memorandum panchnama was drawn. Even according to the case of the prosecution, the appellant-accused made different memorandum statements and took to the police party and panchas to various places including the place from where the concerned tanker being driven by the victim was taken in their control, the place where they done away with the victim by strangulating him with the seat-belt of the driver seat and dumped the dead body in the wooden box situate in the cabin of the tanker, the places where the tanker was taken and where it was halted and where the oil was sold to some villagers, the place where the tanker was abandoned and they alighted the auto-rickshaw, the place from where they took two girls and the hotel and stayed there over-night.9. Even according to the case of the prosecution various voluntary statements were made by the appellants-accused to show the places from where they had purchased the clothes, chappals, etc, from the funds obtained from selling the oil from the tanker to the villagers. Also according to the case of the prosecution, appellant-accused No.2 made a voluntary statement and then produced a cash of Rs.4000/-, shirt and pant and one more shirt and pant from the house. Also appellant-accused No.1 made voluntary statement and then produced cash of Rs.6000/-, shirt and pant from his house.10. It is also the case of the prosecution that when the hotel Yashraj was pointed out by the accused persons where they had taken girls on the night after abandoning the tanker, extract of hotel register was seized, so also the statements of Hotel Manager and waiters were recorded.11. Also according to the case of the prosecution, on 27th March, 2008 oil samples from each compartment of the tanker were collected for sending to the Chemical Analyser. Also according to the prosecution, oil samples from the oil purchased by different villagers were taken and also such samples were sent for chemical analysis. On completion of investigation and after obtaining CA reports etc, charge-sheet was filed before the Judicial Magistrate FC, Sinnar and the case was committed to the Court of Session and was tried as Session Case No.208 of 2008 and ended in conviction of both the appellants-accused persons for the offence as detailed above.12. At the threshold, it must be mentioned that the entire case of the prosecution is based only on circumstantial evidence and broadly speaking the following are the circumstances which need to be considered whether incriminating or otherwise against the appellants-accused. The said circumstances are;(i) Appellant-accused No.1 was in the employment of PW No.13 about two months prior to the incident so also victim and PW no.6 were in the employment of PW No.13 as drivers of respective tankers.(ii) PW No.6 met both the appellants-accused at Baba Dhaba on the night of 12th March, 2008 and saw them going with the victim by travelling in the tanker driven by the victim. So also PW No.6 identified appellant-accused No.1 at Police Station Sinnar on 17th March, 2008.(iii) PW Nos.7, 8 and 9 purchased the cotton seed oil from the accused persons and thereafter identified the accused persons in test identification parade held on 16th April, 2008.(iv) Dead body of victim was found in the box which was kept in the drivers compartment of tanker No.MH-04-CA-6385 and said tanker was found abandoned on the road and it was subsequently taken charge of under the panchnama.(v) Seat belt attached to the driver seat of the tanker No.MH-04-CA-6385 was recovered at the instance of both the accused under the panchnama.(vi)Both the appellants-accused showed different places wherever they went with tanker and thereafter abandoned the tanker, went to the hotel Yashraj and also showed the shops from where they purchased clothes and foot-wears out of the money obtained by selling the cotton seed oil to various villagers.13. All the above circumstances are dealt in detail herein by making reference to the substantive evidence of various witnesses examined during the trial; Coming to the first circumstance, the substantive evidence of PW No.13 and PW No.6 is required to be construed. PW No.13 is the owner of the Transport company. He attended Police Station Sinnar after receiving a call as to finding of dead body in the tanker No.MH-04-CA-6385. It is on record that the biodata form purported to be filled by accused-appellant no.1 at the time of getting employment with PW No.13 was faxed by the Transport Company to Sinnar Police Station. Copy of the said fax is at Article-A. On plain reading of this biodata form which is at Article-A disclosed that the name of the employee given in the said form as Arjun Patil. Though the said form shows photograph which is similar to that of present appellant-accused No.1, there is nothing brought on record on which date said photograph was given to the employer. Otherwise also copy of biodata form produced in the Court is not the original biodata form. It is admitted position that original biodata form is not seized from the office of PW No.13 and as such not produced before the Court. Moreover, it is a factual position that one passport size photograph (in original), of appellant accused No.1 is attached to the said photocopy form Exh.44. On this aspect also there is no explanation from the Investigating agency as to how that original photograph came in possession of the police.Moreover, in order to establish an authentic link of the present appellant-accused No.1 with the copy of the biodata form, there could have been an investigation on the telephone numbers which were mentioned in the said biodata form. Telephone number of the person who made the application for employment and also the telephone number of his brothers were mentioned. However, admittedly there is no investigation as to whom these telephone numbers belong. This could have been a link available to the investigating agency to connect appellant-accused No.1 with the said biodata form and then to come to the conclusion that he was in the employment of PW No.13 and got employment just about two months prior to the incident. In any event, this circumstance in itself is required to be viewed along with other circumstances which are detailed above. It is also admitted position that though names and telephone numbers of the brothers of the person who gave the said biodata form were mentioned, no inquiry was made with the said named persons whether real or fictitious and whether they had any connection with the appellant accused no.1. This was essential in order to prove that appellant-accused no.1 had given some fictitious names for getting the job with the transport company and thereby from the inception of his job he had some mala fide intention.14. The second circumstance is regarding PW No.6 seeing appellant-accused Nos.1 and 2 with the victim at Baba Dhaba on the night of 12th March, 2008. On this aspect the substantive evidence of PW No.6 is of much importance. According to him, he had last seen the deceased in the company of the appellant-accused and then subsequently identified both the accused at the police station on 17th March, 2008. On this aspect, according to the first informant PSI Suresh Ghadge PW No.15, one another driver by name Sunil Bharate and cleaner Sanjay Shankar Pawar were the persons who had seen the appellants-accused in the company of the victim on the night of 12th March,2008. According to PW No.15, he recorded statements of these two witnesses as to the presence of appellants-accused with the deceased thus furthering the circumstances of last seen together. In spite of this, these two witnesses are not examined during the trial. In our considered opinion, if these two witnesses would have been examined, it would have strengthened the case of the prosecution but for their evidence the case of the prosecution rests only on substantive evidence of PW No.6 on this aspect of last seen together. Again, according to the case of the prosecution and according to PW No.13 and PW No.6 appellant accused No.1 was supposed to work as cleaner and was in fact deputed on the tanker No.MH-04-CA-6387 being driven by PW No.6 on that night. However, according to PW No.6 when he met both the appellants-accused at Baba Dhaba and also met the victim, appellant-accused No.1 changed his mind and decided to accompany the victim on his tanker No.MH-04-CA-6385.It is admitted position that there is nothing brought on record as to the actual duty assigned to appellant-accused no.1 during that relevant period and no any register, entry or log book, or any other relevant document is brought to ascertain that appellant accused no.1 was to work as cleaner on the tanker driven by PW No.6. Otherwise also, according to the prosecution, there was no cleaner on the tanker driven by the victim on that night and as such appellant accused no.1 and his friend accused no.2 decided to go back to Mumbai in the said tanker with victim. There is no explanation from PW No.13 the owner of the Transport company as to why there was no cleaner on the tanker driven by the victim. Mainly for non-examination of the another independent driver Sunil Bharate and his cleaner Sanjay Pawar, it must be said that the case of the prosecution is handicapped in order to pinpoint the appellants-accused on this aspect of last seen together. Moreover, there is a gap in between the incident of last seen together and finding of dead body on the next day. All these aspects are detrimental to the case of the prosecution. Needless to mention that the circumstance of last seen together is a weak type of evidence and it is to be ascertained whether there is any time gap in between the incident of last seen and the murder of the victim as such this second circumstance as to last seen together is not so clinching in character though argued to that effect on behalf of the prosecution by the learned APP for the State.15. So far as third circumstance is concerned, according to the case of the prosecution, PW Nos.7, 8 and 9 who are different villagers had happened to purchase cotton seed oil from the accused persons when tanker was halted on the road. Also according to the case of the prosecution, these witnesses have identified both the appellants-accused in the test identification parade held on 16th April, 2008. We have carefully gone through the substantive evidence of these witnesses and also have carefully gone through the test identification parade evidence wherein the TI parade was conducted by Shivram Shinde PW No.16, then Tahsildar. Apparently, according to the case of the prosecution when a large scale publicity was made regarding discovery of dead body in the tanker No.MH-04-CA-6385, certain villagers including PW Nos.7, 8 and 9 came forward and attended the police station along with the bulk of cotton seed oil purchased from accused persons. According to PW No.7 Kailash, he purchased 20 kilograms of oil on 13th March, 2008 at Jaigaon - Brahmanwadi at 5:00 p.m. to 6:00 p.m. He deposited 20 kilograms of oil with the police vide panchnama dated 19th March, 2008 i.e. Exh.25. At this juncture, it must be mentioned that for the said panchnama, prosecution has examined panch witness PW No.2 Dnyaneshwar Ganjve. Said panch did not support the case of the prosecution regarding handing over of 20 kilograms of oil by PW No.7 at the police station.Apart from this, during that period of 19th March, 2008, the appellant-accused were in the police custody and as such considering the presence of PW No.7 at the police station allegedly for handing over the oil, it cannot be ruled out that there was possibility for said PW No.7 to see the appellants-accused at the police station. Moreover, according to PW No.7 he identified both the appellant-accused in the test identification parade conducted on 16th April, 2008. Again on this aspect of conducting of the test identification parade apart from examining PW No.16, Shivram Shinde, prosecution has examined PW No.1 Sampat Shinde as a panch who attended the said test identification parade. Moreover, there was no any panchnama drawn for taking the sample from the bulk of cotton seed oil deposited by PW No.7 with the police station. According to the prosecution, the sample taken out from the oil deposited by PW No.7, was sent for chemical analysis however it is a factual position that the said CA report regarding the oil sample is not produced before the Court. As such there is no direct evidence that the oil allegedly deposited with the police station by PW No.7 was the oil out of the concerned tanker No.MH-04-CA-6385. As such in the above circumstances the evidence of PW No.7 cannot be taken as a clinching material to point out to the appellant-accused as the perpetrator of the crime of murder. Similar is the factual position regarding substantive evidence of PW Nos.8 and 9 who are the other two witnesses examined by the prosecution on the same aspect as to depositing of their respective bulk of oil allegedly purchased from the appellant and then subsequent identification of the appellant-accused in the test identification parade.So far as PW No.9 is concerned, in the substantive evidence before the Court he had not mentioned that he had identified the appellant-accused in the test identification parade. Again it is a factual position that when PW Nos.8 and 9 allegedly deposited the bulk of the oil purchased from the accused, there was no panchnama conducted when apparently the samples from the said bulk oil were allegedly taken out and sent for CA. Again for want of chemical analysis report there is no cognate link between the oil purchased by this witness and the oil contained in the concerned tanker. For these reasons as in the matter of evidence regarding PW No.7, evidence of PW Nos.8 and 9 also cannot be considered as incriminating against the appellants-accused so far their involvement in the offence of murder. In other words, this circumstance as to PW Nos.7, 8 and 9 purchased oil from the appellants-accused and subsequently identifying them in the test identification parade cannot be considered as a link in establishing the charge against the appellants-accused.16. According to the prosecution, the fourth circumstance against the appellant-accused is finding of the dead body of the victim, the driver of the tanker No.MH-04-CA-6385. It was found in the cabin of the driver and dumped in one wooden box and so far as another circumstance No.5 i.e. the seat belt recovered at the instance of accused Nos.1 and 2 under Section 27 of the Evidence Act, it must be said that initially on 14th March,2008 intimation was given to the police that some bad smell was coming from the tanker parked on a particular road as detailed above. As such police party went there and tanker was inspected. Dead body of the victim in the wooden box was found kept in the cabin of the driver. As mentioned earlier according to the case of the prosecution appellant-accused No.1 and his associate accused No.2 accompanied the victim in the said tanker at Baba Dhaba and thereafter on 14th March, 2008 the dead body of the victim was found in the tanker. Also according to the case of the prosecution accused Nos.1 and 2 made allegedly voluntary statements showing the weapon of offence i.e. seat belt from the said tanker. Said recovery purported to be under section 27 of the Evidence Act was under the panchnama Exh.23 and it happened on 18th March, 2008. In the said panchnama PW No.2 acted as one of the panch witnesses and another pancha was one Bhagwan Motiram Satwe.At this juncture, it must be mentioned that said another pancha was examined as PW No.4. We have carefully gone through the substantive evidence of both the witnesses i.e. PW Nos.2 and 4 and it must be said that both these witnesses are silent on the aspect as to any disclosure statements made in their presence by both the accused to produce the seat belt which was subsequently recovered from the cabin of the tanker No.MH-04-CA-6385. Apart from this hostility of both these panchas, it is a factual position that the said tanker was already seized by the police under panchnama dated 14th March,2008 and that time there was nothing objectionable found by the police as to blood stains on the seat belt attached to the drivers seat. Moreover, the said panch PW No.2 did not support the prosecution case and further mentioned in his examination-in-chief as appearing in paragraph No.6 of the notes of evidence only to the following effect and nothing more;"discovery panchnama thereof bears my signature but I do not know the contents of Exh.24."17. In any event, considering the substantive evidence of the prosecution witnesses even the circumstances Nos.(iv) and (v) mentioned above cannot be treated as clinching and pointing only towards the appellants-accused as perpetrators of the offence of murder and none-else.18. Lastly, the circumstance as to various places shown by the appellants-accused wherever they went with the tanker and then after obtaining the tanker going to hotel and also showing the shops from which they had purchased the clothes and foot wears etc. it must be mentioned that PW No.2 is the only pancha who has been examined by the prosecution. He is pancha regarding seizure of clothes of the victim on 15th March, 2008 vide Exh.13 and so also on the arrest panchnama of both the accused on 16th March, 2008 being Exh.17. He is also the pancha regarding seizure of tanker vide Exh.18 under which the said tanker was taken charge of on 16th March, 2008. He is also the pancha for identification of the clothes of the deceased by the wife of the deceased on 17th March, 2008 vide Exh.19. He is also the pancha regarding memorandum of statement allegedly made by appellant-accused No.1 pointing out the scene of offence i.e. the place where the victim was done away. He is the pancha for allegedly memorandum statements made by the appellants-accused dated 17th March,2008 pointing out the places from where both the appellants-accused took control of the tanker for further journey. It is at Exh.21. He is also a pancha for memorandum statement of the appellant-accused dated 18th March, 2008 pointing out the place where accused No.1 had kept Rs.6000/-. It is at Exh.22. This panchnama is not supported by the said witness PW No.2 and he turned hostile. He is also the pancha for panchnama Exh.23 dated 18th March, 2008 wherein accused No.2 pointed out the place where he had kept Rs.4000/-. Again for this panchnama PW No.2 had turned hostile.He is also the pancha for joint recovery at the instance of both the appellants-accused regarding the seat belt as mentioned above vide Exh.24 on 18th March, 2008 and subsequent production of Rs.4000/- from his house and jean pant and white colour shirt and also one yellow colour shirt and blue colour jean pant and pair of chappal. Apparently, according to the case of the prosecution that in the same panchnama Exh.24 in continuation of the alleged recovery at the instance of appellant-accused No.1, appellant-accused No.2 also produced his clothes and cash amount of Rs.6,000/- from his house and also pair of chappal. It must be mentioned that said PW No.2 pancha did not support the case of the prosecution either on the aspect of discovery of the seat belt or recovery of the articles at the instance of the respective accused persons. Again said PW No.2 was the pancha for seizure of 20 kilograms oil from PW No.7 under panchnama Exh.25 on 19th March, 2008. However, he turned hostile and was the pancha in the panchnama Exh.26 of 19th March, 2008 wherein allegedly appellant-accused No.1 made a memorandum statement and subsequently showed the place of Baba Dhaba. Again on this aspect said PW No.2 had turned hostile and did not support the case of the prosecution. Again same pancha was used by the investigating agency to conduct the panchnama Exh.28 on 19th March, 2008 wherein 70 kilograms oil was taken charge of from one witness Shivram Khairnar. Again said PW No.2 turned hostile and did not support the case of the prosecution on this count also. Said PW No.2 was also the pancha for the seizure of oil from PW Nos.8 and 9 and other villagers as allegedly these villagers and witnesses deposited 20 kilograms each. However, again for this panchnama said panch witness PW No.2 did not support the prosecution case and turned hostile.Again same PW No.2 was pancha for Exh.30 on 21st March, 2008 under which similar such 20 kilograms oil was seized from various villagers who were not examined by the prosecution. Also on this count PW No.2 did not support the case of the prosecution and turned hostile. Again vide Exh.31 on 22nd March, 2008 said PW No.2 allegedly acted as a panch wherein at the instance of the appellants-accused one shop was shown from where the clothes and foot wears were purchased. On this aspect the concerned shopkeeper was not examined by the prosecution and said pancha PW No.2 did not support the case of the prosecution and turned hostile. Again he was the pancha for Exh.32 dated 22nd March, 2008 wherein the appellant showed the place from where the clothes worth Rs.800/- and chappals worth Rs.239/- were purchased. Again this aspect was not fortified by this witness and he turned hostile to the case of the prosecution. Again same PW No.2 was the pancha for the panchnama Exh.33 on 23rd March, 2008 wherein allegedly appellant-accused had made memorandum statement pointing out the place where the concerned tanker was abandoned at Gurewadi road and then both the accused proceeded to hotel Yashraj. Again on this aspect PW No.2 did not support the case of the prosecution and turned hostile. Said PW No.2 also acted as a pancha on panchnama Exh 34 on 23rd March, 2008 wherein allegedly the appellant-accused showed the place from where both the accused had picked up two girls and proceeded to Hotel Yashraj. This aspect was also not supported by PW No.2 and he turned hostile to the case of the prosecution. He also acted as a pancha for the panchnama Exh.35 on 27th March, 2008 wherein the panchnama was drawn regarding taking of the samples of cotton seed oil, two liters each from four compartments of the concerned tanker.We have carefully gone through the substantive evidence of said PW No.2 and also the evidence of the Investigating Officer on this count. Specifically it must be mentioned that said pancha PW No.2 acted in almost 20 panchnamas. Out of them he had turned hostile and did not support the case of the prosecution in 14 panchnamas as detailed above. Needless to mention that use of the same pancha for almost in 20 panchnamas is definitely a circumstance doubting the case of the prosecution as to genuineness of various discoveries at the hands of the appellant-accused.19. In view of the above we are of the considered view that when the present matter is based on circumstantial evidence, the material available on record is not sufficient enough to rule out the possibility of any other person than the appellants-accused committing the murder of the victim and taking away the tanker. In other words, it must be mentioned that the investigating agency has not gathered the material which will clinchingly point out to the appellants-accused and none-else as the perpetrators of the offences charged.

Decision:
1[ds]In view of the above we are of the considered view that when the present matter is based on circumstantial evidence, the material available on record is not sufficient enough to rule out the possibility of any other person than thecommitting the murder of the victim and taking away the tanker. In other words, it must be mentioned that the investigating agency has not gathered the material which will clinchingly point out to these as the perpetrators of the offences charged.