Case: State of Maharashtra Vs. Purushottam Dashrath Borate & Another

Oral Judgment: (V.M. Kanade, J.)Confirmation Case No.1 of 2012 has been submitted to us by the Sessions Court in view of the provisions of section 366 of the Criminal Procedure Code.2. The Sessions Court was pleased to convict the accused under section 235(2) of the Cr.P.C. for the offence punishable under section 302 read with section 120-B of the Indian Penal Code and both the accused were sentenced to death and to pay fine of Rs.5000/- each on both counts and, in default, to undergo rigorous imprisonment for one year. A further direction was given that both be hanged by neck till they are dead. The Sessions Court was also pleased to convict accused Nos.1 and 2 for the offence punishable under 376(2) read with section 120-B of the Indian Penal Code and both were sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5000/- each and, in default, to undergo rigorous imprisonment for one year. The accused Nos.1 and 2 were also further convicted for the offence punishable under section 364 read with section 120-B of the Indian Penal Code and both were sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5000/- each and, in default, to undergo rigorous imprisonment for one year. Accused Nos.1 and 2 were further convicted for the offence punishable under section 400 read with section 120-B of the Indian Penal Code and they were sentenced to suffer rigorous imprisonment for two years and, in default, to undergo rigorous imprisonment for three months. A further direction was given that the substantive sentences should run concurrently.3. In view of the provisions of section 366 of Cr.P.C., the Sessions Court was pleased to send the case for confirmation of death sentence to this Court.4. The original accused Nos.1 and 2 have also filed Criminal Appeal No.632 of 2012 challenging the judgment and order passed by the Sessions Judge, Pune dated 20th March, 2012 whereby they were convicted and sentenced as referred to in para 2 above. Appellants/original accused shall be hereinafter referred to for the sake of convenience as accused Nos.1 and 2.BRIEF FACTS:5. Prosecution case, in brief, is that the deceased Jyotikumari Ramanand Chaudhary was employed in Wipro Company as Associate and pursuant to the terms and conditions of service, she was required to attend night-shift between 11.00 P.M to 9.00 A.M. The deceased was working in the BPO Branch of the said Wipro Company for about an year and the date of the incident was the her last day since she had tendered her resignation one month prior to the incident.6. The employer of the deceased, had arranged for transportation of their employees from the place of their residence to the office and back to their residence when they were required to attend the office at night-shift. One of the conditions which was imposed by the employer on the owner of the vehicle who was authorized to bring employees to the BPO Office at night was that in the case of pick up of female employee, it was necessary to arrange for a security guard in the vehicle in order to ensure security of the female employee. According to the prosecution, on the date of the incident i.e. on 1/11/2007 which happened to be the last day on which the deceased Jyotikumari Chaudhary was supposed to report to work at night-shift, accused No.1 was deputed to pick her up at about 10.30 P.M. at night and, thereafter, collect three other employees; two of which were male employees and the third one was a female employee. Private Cab Service which was organized by Wipro was owned by Om Sai Enterprises who had a fleet of cars which were taken on hire by the Company for the purpose of transporting employees of the Company to the BPO Office.On 1/11/2007, at about 10.30 P.M., accused No.1 arrived at the residence of deceased and before reaching her place of residence, as was the usual practice, gave a missed call to the deceased from the mobile phone which was kept in the said vehicle to the mobile phone which was used by the deceased which was given to her by her sister. After the deceased received missed call, she called back accused No.1 - driver of the Cab and told him that she would be coming down within 10 minutes. At the relevant time, when the phone call was received, deceased was playing with her nephew i.e. son of her sister (P.W.13) and brother-in-law (P.W.12) According to the prosecution, when she was going down, her nephew started crying and, therefore, her brother-in-law took her nephew and came down to see her off in order to ensure that his son stops crying. After her brother-in-law (P.W.12) came down alongwith deceased Jyotikumari, the accused No.1 had arrived at the residence with the cab and at the backseat accused No.2 also had accompanied accused No.1. Prosecution case is that P.W.12 - Gaursunder Prasad, therefore, had an occasion to see both accused Nos.1 and 2. Jyotikumari was taken away by accused No.1 in the cab. The second person who was to be picked up was P.W. 11 - Sagar Bidkar.7. When accused No.1 did not come in time to pick him up, P.W.11 - Sagar Bidkar made a phone call to accused No.1, who informed him that he would be coming there shortly. Thereafter, P.W.11 called him on number of occasions and accused No.1 informed him that tyre of the car was punctured and, therefore, he was delayed in picking him up. When P.W.11 inquired about Jyotikumari, accused informed him that the deceased had refused to come. According to the prosecution, when the cab picked up P.W.11 - Sagar Bidkar, at that time accused No.2 was also sitting on the backseat of the car and accused No.1 introduced him to P.W.11. The car picked up P.W.11 at about 12.45 A.M. and just before the cab reached the gate of the BPO Office, accused No.2 got down and, thereafter, accused No.1 requested P.W.11 to make an endorsement that there was delay on account of tyre being punctured. It is alleged that accused No.1 also informed the Security Officer to make an endorsement that the car had come on time. However, P.W.11 made an endorsement pointing out the reason why there was delay in reaching BPOs Office. After dropping P.W.11 at Office, accused No.1 took away the car. Since the deceased did not return home, her sister Sudhakumari (P.W.13) was worried and she started making inquiries. She was informed by the BPO Office that her sister Jyotikumari did not attend the night-shift. She, therefore, frantically called her husband (P.W.12) and informed this fact to him. At that time, her husband had taken their Santro Car to the garage.In the meantime, she also received telephone call from Jeevan Baral (P.W.14) who was friend of the deceased who informed her about the conversation which he had with the deceased on the night of 1st November, 2007 between 10.30 P.M. to 11.00 P.M. He informed P.W. 13 that while he was talking with the deceased, at one occasion the deceased had inquired with the driver - accused No.1 why he was taking her on a different route and reply was given by the driver that some other person was to be picked up at Nigdi. He also informed her that conversation continued and he had made inquires as to whether everything was alright and, according to him, deceased had informed him that driver of the car was Purushottam Borate and his friend Pradeep Kokade accused No.2 was also in the car. At about 11.00 P.M., he heard a loud voice and, thereafter, mobile phone was switched off. He further informed her that he had immediately contacted sister of the deceased who was in Delhi and also had made telephone call to the police on emergency call No.100 and also tried to contact Pune Control Room. However, he was not successful in reaching either sister of the deceased at Delhi or Pune Police. He informed her that he had obtained her phone number from elder sister of Jyotikumari and had called her in the morning. After P.W.13 received phone call from Jeevan Baral (P.W.14), she immediately contacted her husband (P.W.12) and, thereafter, went to Chatushringi Police Station to lodge a missing report. P.W.12 accordingly accompanied his wife and gave a missing report.According to P.W.12 though he had given all the details including the fact that accused No.1 had taken the deceased in his cab, this fact was not mentioned in the missing report. The missing report was registered at Chatushringi Police Station at about 4.35 P.M. In the meantime, P.W.8 - Punkaj Bodake, while he was walking near his house, noticed the dead body of a woman and he, therefore, immediately informed the Police Patil Hiraman Bodke (P.W.1). Police Patil arrived at the scene and intimated this fact to Talegaon Dabhade Police Station at about 9.15 A.M. to 9.30 A.M. An offence under section 302 of the Indian Penal Code was registered by Talegaon Dabhade Police Station and wireless message was circulated after the spot panchanama was prepared. After the offence was registered, spot panchanama was prepared in the presence of panch Raju Tikhe (P.W.3). Panchanama began at 11.30 A.M. and was over at about 12.00 noon. Inquest panchanama was also prepared in the presence of panch Santosh Botre (P.W.2) which began at 10.15 A.M. and was over at 11.45 A.M. The dead body was, thereafter, taken to the hospital for postmortem. Dr. Madhav Waghmare (P.W.16) performed postmortem on deceased Jyotikumari and gave an opinion that the probable cause of death was on account of shock and haemorrhage due to grievous injury to vital organs with skull fracture involving frontal, left temporal, parietal bone with laceration to brain with fracture ribs 2, 3 4 right lung ruptured with strangulation. He, however reserved his opinion on the question of offence of rape and waited for Chemical Analysers Report. After CA report was received, he gave an opinion that the deceased was also raped before her death.8. Soon after the FIR was registered, investigation commenced and police made inquiries with Wipro Company. The Security Officer made inquiries with the owner of the cab Hiraman Bhandare (P.W.10) who, in turn, made inquiries with accused No.1 who informed him that Jyotikumari was not picked up by him and that there was a friend named Shankar who had accompanied him in the cab and he had reached the house of P.W.11 - Sagar Bidkar late on account of the burst of tyre. Prosecution case is that P.W. 10 - Bhandare had taken the accused No.1 to the Police Station. On 2/11/2007, in the afternoon, Investigating Officer made inquiries and after inquiries were made, accused Nos.1 and 2 were taken into custody on 3/11/2007 at 5.30 A.M. in order to ensure that evidence is not destroyed and when the accused agreed to disclose the ornaments and articles of the deceased which were with them, police accompanied accused Nos.1 and 2 to their respective houses and recovered the articles from their houses. Accused No.1 took the police to his house and certain articles which were kept by him behind the photograph of his family deity were removed and gold ring, Titan watch and SIM Card were seized by the police. Similarly, accused No.2 also produced ear ring and Nokia Mobile Phone.Accused were also examined by a Doctor who submitted his report regarding injuries which were found on the person of the accused. Investigating Officer, thereafter recoded statements of witnesses. Statement of P.W. 14 - Jeevan Baral was recorded on 10/11/2007. Test identification parade was held by Naib Tahsildar at Tahsil Office at Wadgaon, Maval on 14/1/2008 in which P.W.12 brother-in-law of the deceased identified accused Nos.1 and 2 as persons who were seen in the cab. He identified accused Nos.1 and 2. Accused were, thereafter, arrested at about 11.30 A.M on 3/11/2007 and arrest panchanama was prepared. Thereafter, on 4/11/2007 at the instance of accused No.1, Odhani of the deceased was recovered from the place which was shown by accused No.1. Accused No.1 also informed the police that purse of the deceased was thrown by him in Pawana River. Statement of Bashir Shaikh was also recorded by the police who was examined as P.W.9, who had seen accused Nos.1 and 2 at about 8.30 P.M. in village Mamurdi. Blood of the accused was sent for chemical analysis and the report was received. The vehicle in which the deceased was taken by accused No.1 was seized and the panchanama was made and blood sample of the deceased was sent for chemical analysis. Blood of the deceased was found to be of "B" Group and Blood of accused No.1 was found to be of "A" Group and that of accused No.2 was found to be of "O" Group. Thereafter, charge-sheet was filed.9. Initially, charge had been framed on 5/3/2009 for the offences punishable under sections 364, 376(2)(g) and also under sections 302 read with section 34 of the Indian Penal Code and under section 404 read with section 34 of the Indian Penal Code. Thereafter, the charge was altered on 3/4/2010 and independent charge of conspiracy under section 120-B was added. Similarly, charge of conspiracy under section 120-B was added with the charge for the offences punishable under sections 364, 376(2)g) and 302 of the Indian Penal Code. Similarly, the charge of conspiracy under section 120-B was also added to the charge for the offence punishable under section 404 of the Indian Penal Code. The accused pleaded not guilty to the said charge.10. Prosecution examined in all 29 witnesses out of which P.W. Nos.1, 8, 9, 10, 11, 12, 13, 14, 17, 18 and 29 are examined on the aspect circumstantial evidence, P.W. Nos.16 and 24 are doctors and they have been examined to establish rape and murder, P.W. Nos.2, 3, 4, 5, 6, 7, 15 and 26 have been examined as panch witness to prove the panchanamas and P.W. Nos.19, 20, 21, 22, 23, 25, 27 and 28 have been examined as Investigating Officers who have carried out investigation.WITNESSES EXAMINED ON CIRCUMSTANTIAL EVIDENCE11. P.W.1 - Hiraman Bhikoba Bodke was the Police Patil who has registered a complaint personally with Talegaon Dabhade Police Station, which is at Exhibit-20. P.W. 8 -Punkaj Laxman Bodake was the person who first saw the dead body and informed the complainant about it. P.W.9 -Bashir Dastagir Shaikh was the witness who has seen both the accused together at 8.30 P.M. at village Mamurdi. P.W. 10 - Hiraman Baban Bhadare was the owner of the car in which the deceased was picked up by the accused. P.W. 11 -Sagar Manoj Bidkar was the another employee of the Wipro Company who was to be picked up, after picking up the deceased, by the accused. P.W. 12 - Gaursunder Abhayshankar Prasad was the brother-in-law of the deceased who had last seen the deceased in the company of the accused on 1/11/2007 at 10.30 P.M. P.W. 13 - Sudhakumari Gaursunder was the sister of the deceased. P.W. 14 - Jeevan Jyoti Anandchandra Baral was the last person who spoke with the deceased on mobile at night between 10.30 and 11.00 P.M. P.W. 17 - Amol Ramchandra Mugade was the Security Supervisor of Wipro Company. P.W. 18 - Kishore Vasantrao Ghadge was the Naib Tahsildar who held the identification parade and P.W. 29 - Ganesh Ramrao Pawar was the Asst. Nodal Officer of Airtel Company.WITNESSES EXAMINED AS MEDICAL OFFICERS12. P.W. 16 - Dr. Madhav Adelu Waghmare conducted autopsy of the deceased and P.W. 24 - Dr. Purushotam Ganesh Darshane has examined both the accused persons.PERSONS EXAMINED AS PANCH WITNESSES13. P.W. 2 - Santosh Mohan Botre was a panch witness in respect of inquest panchanama dated 2.11.2007 at Exhibit-11. P.W. 3 - Raju Dnyandeo Tikhe was a panch witness in respect of spot panchanama dated 2.11.2007 at Exhibit-23. P.W. 4 - Hanumant Gulab Chavan was the panch witness in respect of seizure panchanama of vehicle dated 3.11.2007 at Exhibit-42. P.W. 5 - Shahaji Babanrao Ghojage was the panch witness in respect of identification of clothes and articles which were seized under panchanama dated 3.11.2007 at Exhibit-44. P.W. 6 - Sunil Arjun Bodake was the panch witness who seized the clothes under panchanama dated 2.11.2007 at Exhibit-46. P.W. 7 - Vijay Gulabrao Shirke was the panch in respect of recovery of articles from accused. P.W. 15 - Ankush Kisan Tumkar was the panch witness in respect of seizure of Odhani. P.W. 26 - Sanjay Babanrao Bodake was the panch witness who prepared panchanama dated 9.11.2007 in respect of identification of Odhani by deceaseds sister and brother-in-law.WITNESSES EXAMINED AS INVESTIGATING OFFICERS14. P.W. 19 - Dadasaheb Bhimrao Sawane was the Police Personnel at the relevant time, who carried muddemal to CA dated 13.11.2007 which is at Exhibit-115. P.W. 20 -Kumudini Nanasaheb Ahire was the Police Personnel at the relevant time, who took entry of occurrence report and statement of complainant in the station diary which is at Exhibit-302. P.W. 21 - Seshrao Baburao Suryawanshi was the Senior Inspector of Police at the relevant time. P.W.22 -Shahaji Ramchandra Athavale was PSO at the relevant time, who first recorded the complaint and filed an application for getting the identification parade conducted and who extracted blood sample of the accused. P.W. 23 - Rajan Sanjanrao Kadam was PSI attached to Talegaon Dabhade Police Station at the relevant time. P.W. 25 - Adinath Devidas Nagne was the Police Naik at the relevant time. P.W. 27 - Rajendra Ganpati Patil was in-charge/Investigating Officer of Talegaon Dabhade Police Station at the relevant time.15. Trial Court held that the prosecution established its case beyond the reasonable doubt and, therefore convicted the accused for the offences with which they were charged and sentenced them to death for the offence punishable under section 302 of the Indian Penal Code.16. Another fact which needs to be mentioned here is that during pendency of the trial, advocate who was engaged by the accused was debarred by Bar Council of Maharashtra & Goa and, as a result, the said Advocate Mr.Kawchale obtained discharge from the Court in June 2011. By the time the said advocate took discharge, he had already cross-examined number of prosecution witnesses. Trial Court, in order to ensure that no prejudice is caused to the accused, permitted the accused to engage another advocate and, accordingly, Mr. A.R. Patil filed his vakalatnama on 1/8/2011. He made an application on 6/8/2011 seeking adjournment for the purpose of cross-examining the witnesses who were already cross-examined by the advocate who was debarred by the Bar Council of Maharashtra & Goa and his application was allowed and the matter was adjourned to 22/8/2011. On 22/8/2011, the matter was again adjourned to 15/9/2011. On that date, again application was made by new advocate seeking further time to cross-examine the witnesses. Trial Court by a detailed order at Exhibit-207 took into consideration various aspects of the case and more particularly the order passed by this Court directing expeditious disposal of the trial and also took into consideration the fact that sufficient opportunity was given to the new advocate to cross-examine the witnesses and, therefore though request for longer date was refused, the matter was kept on the next day in order to enable the new advocate of the accused to cross-examine the witnesses. Thereafter, an opportunity was given to the new advocate Mr. A.R. Patil appearing on behalf of the accused to again cross-examine all the witnesses who were earlier cross17/ examined by their erstwhile advocate Mr. Kawchale.17. We have heard the learned Counsel Mr. R. S. Kate appearing on behalf of the appellants/original accused Nos.1 and 2 and Mrs Revati Mohite Dere, the learned Public Prosecutor at great length.18. Both the learned Counsel have taken us through the entire evidence adduced by the prosecution including the documents which have been brought on record as also through the judgment and order passed by the Trial Court. Mr. Kate, the learned Counsel appearing on behalf of accused Nos.1 and 2 has also submitted written submissions. Submissions of the learned Counsel appearing on behalf of the appellants/accused Nos.1 and 2:19. Mr. Kate the learned Counsel appearing on behalf of the appellant firstly submitted that this is a case of circumstantial evidence and entire burden of establishing the case against the accused was on the prosecution. He submitted that perusal of depositions and the sequence of events would reveal that there were several missing links and the procedure which was followed was improper and illegal. He submitted that, at each stage, it could be shown that the investigation was not done properly and it clearly revealed that the prosecution had tried its best to suppress material facts which would be evident from the documents which have been brought on record. He submitted that in case of circumstantial evidence burden lies on the prosecution to prove the chain of events in such a manner that it would unerringly point to the guilt of the accused. He submitted that if there is a missing link to the said chain of circumstances then benefit would have to be given to the accused. He then submitted that if various circumstances which have been brought on record by the prosecution by examining various witnesses are taken in to consideration, it would reveal that none of these circumstances have been successfully proved.20. The learned Counsel Mr. Kate, at the outset, invited our attention to the theory of last seen together and pointed out evidence of P.W. 12 - Gaursunder Prasad. He submitted that the conduct of P.W.12 was not that of a prudent man. He submitted that it was unlikely that at a cold night of November, witness would venture to take his child of 7 months to the ground floor to see off his sister-in-law. He further submitted that it was unlikely that P.W. 12 would have got an opportunity to see accused Nos.1 and 2 at night so as to remember their faces and clothes which they were wearing. He submitted that, therefore, theory of last seen together which was put up by the prosecution could not be relied upon. He then submitted that P.W.12 when he went to the Police Station to record a missing report did not mention that accused No.2 was present in the vehicle and that the deceased was taken by accused Nos.1 and 2 in their cab when she left the house at 10.30 P.M. on 1/11/2007. He submitted that this fact further created a grave suspicion regarding truthfulness of the version given by P.W.12.21. He then submitted that the second witness who was examined by the prosecution was P.W. 11 - Sagar Bidkar. He submitted that Sagar Bidkar did not report the fact that accused No.2 had accompanied accused No.1 in the vehicle. He submitted that this witness knew that the driver was duty bound to take a security guard of the Company. He submitted that the evidence of this witness was not reliable since he had identified accused No.2 after a gap of more than three years and this identification in the court was of no value since the witness admitted that he had seen the accused in the Police Station on 2/11/2007 when they were being interrogated by the police. He submitted that P.W.11 also has admitted that on the roster which has been brought on record at Exhibit-68, there was no stamp though there was a stamp put by the security guard on the other two exhibits.22. The learned Counsel then invited our attention to the evidence of P.W.13 - Sudhakumari Gaursunder. He submitted that this witness in her evidence has stated that her mobile phone was being used by the deceased and the model Number was 1108 and IMEI Number was 955030006094300. He submitted that, however, mobile phone which was recovered at the instance of accused No.2 was of Model No.1100 and its IMEI Number was 955030006094300. He then submitted that there was delay in recording the police statement of the said witness. He further submitted that there was some discrepancy in the evidence of P.W.12 and P.W.13. He, therefore, submitted that the theory of last seen together was not established if the evidence of this witness is taken into consideration.23. So far as the identification parade which was held by Naib Tahsildar is concerned, the learned Counsel submitted that there was delay of almost three months in holding the identification parade. He further submitted that provisions of the Criminal Manual were violated by the Naib Tahsildar. He submitted that it was necessary to follow guidelines particularly the guideline 2(h). He submitted that under the said guideline, it was necessary to hold separate test identification parade in cases where physical appearance viz stature and complexion of both the accused is different. He also attacked the veracity of the panchanama in respect of test identification parade. He submitted that there was difference in ink on three pages of the panchanama and also difference in the margin on three pages. He submitted that signatures of witnesses were taken on 14/1/2008 and the panchanama on the first page mentions that it was prepared on 16/1/2008. He, therefore, submitted that from this it was evident that signature of panchas were taken on 14/1/2008 and the panchanama was prepared subsequently on 16/1/2008. He submitted that the explanation given by the witnesses and the Investigating Officer for delay in holding the test identification parade could not be accepted. Reliance has been placed on the judgments of the Apex Court in Musheer Khan vs. State of MP (2010) 2 SCC 748 and in Munshi Singh vs. State of MP (2005) 9 SCC 631. It has been submitted that, therefore, Trial Court erred in relying upon the evidence in respect of identification of the accused by P.W.12 - Gaursunder Prasad.24. He submitted that evidence of P.W. 14 - Jeevan Baral could not be relied upon since his theory that he had called the deceased from Bangalore on that day itself was very doubtful. He submitted that though the Investigating Officer had tower records available with him in respect of mobile calls made by P.W.14, these records were not produced and, therefore, there was no material on record to establish that this witness was in Bangalore and not in Pune on that date. He then submitted that though this witness had admitted that he was having love affair with the deceased, he did not immediately come to Pune after he heard news of tragic death of the deceased. He submitted that the excuse given by this witness that he was ill could not be accepted since he had not produced any material to show that he was unwell. He further submitted that this witness has not stated that when he had telephonic conversation on mobile phone with the deceased, he had not heard any phone calls being received or made by the accused. He submitted that it is a matter of record that P.W. 11 - Sagar Bidkar and other witnesses also had made telephone calls to accused No.1 several times. He further submitted that there was no material on record to show that the cell number which shows conversation between deceased and the person who made telephone call from cell no.9986233097 was that of P.W.14 -Jeevan Baral. He then submitted that the conversation recorded by P.W.14 also could not be relied upon since he had mentioned in his evidence that the deceased had questioned accused No.1 as to why he had brought her to a jungle. He submitted that there was no jungle near the said spot.25. He then submitted that the Trial Court had erred in giving much importance to the evidence of prosecution witnesses in respect of recovery of articles at the instance of both the accused and the identification by P.W.12 and 13. He submitted that the said recovery could not be treated as recovery under section 27 of the Evidence Act since the accused were not in custody of the police at that time since they were formally arrested at about 11.30 A.M. on 3/11/2007, though panchanama had commenced at 7.30 A.M. It has been then submitted that most of the panch witnesses who were examined were not independent panch witnesses but were interested witnesses since they were either serving at Wipro Company or at Om Sai Service which was a Company which had given vehicles on hire to Wipro for the purpose of transporting its employees during night-shift. He pointed out various discrepancies in the panchanama and also in respect of difference in model number of mobile phone which was seized and which was recovered at the instance of accused No.2 and also in respect of IMEI Number. The detailed submissions made by the learned Counsel appearing on behalf of the appellants/accused on this aspect will be considered when this point is discussed in the judgment.26. He then submitted that P.W. 16 - Dr Madhav Waghmare who performed postmortem of the deceased had, in his evidence, clearly stated that there were no injuries to Labia Majora and Labia Minora. He submitted that this witness has further admitted in his evidence that if two persons commit rape on a woman, there may be injuries to Labia Majora. He submitted that this doctor has also stated that he did not notice signs of rape during postmortem and only after he saw the CA report, he came to the conclusion that rape was committed on the victim Jyotikumari. The learned Counsel submitted that doctor also admitted that he did not find marks of struggle, abrasion, teeth bite or any other injuries on the person of the accused during medical examination. He submitted that Doctor has admitted that there were no injuries on the male organs of the accused. He further submitted that though postmortem was conducted on 2/11/2007 and it was signed on the same day, a certificate which was issued mentioned the name of the deceased as Jyotikumari when, admittedly, at that time, identity of the dead body was not known. He submitted that this created a doubt regarding credibility of medical evidence. He submitted that from this evidence, no inference could be drawn that rape was committed on deceased.27. He further submitted that P.W. 24 - Dr. Purushottam Darshane who examined the accused did not assist the prosecution since this witness has admitted that he did not notice external injuries on the private parts of the accused and that the injuries on the person of the accused were possible by assault by stick or by pipe.28. He then submitted that the prosecution has miserably failed to establish the charge of criminal conspiracy which was subsequently added to the existing charge. He submitted that so far as P.W. 9 - Bashir Shaikh is concerned, Trial Court had partly rejected his evidence since he was unable to read the number of the vehicle in the cross-examination, though he had mentioned the number in examination-in-chief. He submitted that the Trial Court having partly disbelieved this witness, could not have partly relied on his evidence for the purpose of holding that charge of criminal conspiracy was proved. Reliance has been placed on the judgment of the Apex Court in Kanbi Nanji Virji and others vs. State of Gujarat AIR 1970 SC 219 . He submitted that had the accused hatched conspiracy and committed rape and murder, they would have carried some weapon or some intoxicating substance for committing the said offence. However, no such recovery was made at the instance of the accused of such weapon or intoxicating substance. It has been submitted that it was not brought on record as to who was responsible for carrying blade with which injuries were caused on the wrist of the deceased. It has been further submitted that from the evidence of P.W. 11 - Sagar Bidkar it could be seen that the accused No.1, when contacted by P.W. 11, had informed him that he would pick him up at 10.30 P.M. It has been submitted that if intention of the accused was to commit crime, he would not have so informed the said witness P.W.11. The learned Counsel further submitted that ingredients of criminal conspiracy were not proved by the prosecution and this fact was not taken into consideration by the learned judge.He submitted that so far as the CA report regarding blood-stains found in the car is concerned, no panchanama was drawn to show that samples of the blood were collected from the car itself. He submitted that P.W.4 - Hanumant Chavan and the Investigating Officer Seshrao Suryawanshi (P.W.21) have admitted that they did not find any blood-stains in the car. He further submitted that though there were tyre marks seen at the spot of the incident, these tyre marks were not obtained by the Investigating Officer and, as such, it could not be established that the vehicle which was seized by the police was the same vehicle which was used in the commission of offence. Reliance has been placed on the judgment in Varun Chaudhary vs. State of Rajasthan (2011) 12 SCC 545. It has been further submitted that P.W.12 - Gaursunder Prasad in his evidence has not stated which seat was occupied by the deceased while she was travelling in the cab. It has been submitted that finding of the Trial Court that the deceased was sitting on the backseat and there was accused No.2 who could overpower her was just a surmise and conjecture. He submitted, therefore, the case of conspiracy was not established by the prosecution beyond the reasonable doubt.29. The learned Counsel then submitted that so far as recovery of Odhani at the instance of accused No.1 is concerned, prosecution has relied on evidence of P.W.15 -Ankush Tumkar for establishing this fact. He submitted that evidence of this witness does not inspire confidence. He submitted firstly that though articles have been recovered from accused No.1 on 3/11/2007 from his house, the Odhani has been recovered from different place just to show that Talegaon Dabhade Police Station has recovered incriminating article. He submitted that the said Odhani was found in open place in bushes and, therefore, no evidentiary value could be given to recovery of Odhani from open place which is easily accessible to the public. He submitted that though alleged recovery was made on 4/11/2007, the second remand report dated 12/11/2007 mentions that further PCR was necessary for seizure of purse and Odhani of the deceased. He submitted that it has been established that the Odhani was not recovered till 12/11/2007 and, therefore, identification of Odhani by P.W. 12 and 13 could have no evidentiary value. He submitted that, therefore, finding of blood and semen stains on the said Odhani has no evidentiary value.30. The learned Counsel then submitted that there was material discrepancy in respect of colour of the clothes and the place where the dead body was lying. Reliance has been placed on the evidence of P.W.1 - Hiraman Bodke, P.W. 2 -Santosh Botre, P.W. 3 - Raju Tikhe and P.W. 8 - Punkaj Bodake. He submitted that P.W. 1 has stated different colours of clothes in examination-in-chief and cross-examination and in the complaint. Similarly, it has been pointed out that P.W. 2 and 3 have stated that the dead body was lying at rough surface whereas P.W. 8 has given a different version that the body was lying on paddy crop. He submitted that that from this evidence it was clear that dead body was lying at a distance of 10 feet from the express highway and was clearly visible from the highway. He then submitted that there was discrepancy in the panchanama of identification of clothes which was prepared in the presence of P.W. 5 - Shahaji Ghojage. It has been submitted that the panchanama was drawn between 7.15 A.M. to 8.00 A.M. when the accused were not arrested and the offence was registered only under section 302 of the Indian Penal code. It has been submitted that, in the panchanama, apart from mentioning section 302, the sections which were mentioned were 376(g), 363, 404 read with 34 of the Indian Penal Code. He submitted that no explanation was given as to how those sections were mentioned in the panchanama.31. The learned Counsel submitted that so far as P.W. 6 -Sunil Bodake is concerned, he was relative of P.W.1 -Hiraman Bodke and, therefore, he was not an independent witness. He submitted that this witness (P.W.6) has admitted that though clothes of the deceased were packed and sealed no signatures of pancha were obtained on it. He submitted that this witness (P.W.6) was also a panch witness in respect of identification of the articles of the deceased by P.W.12 and 13.32. The learned Counsel then attacked the testimony of P.W.10 - Hiraman Bhandare on various grounds. He submitted that this witness admitted that accused Borate was not having I-Card of Wipro Company and that phone number was not written on Exhibits-67 to 69. He submitted that this witness admitted that on the roster at Exhibits 67 to 69, in the column of name of driver, his name was mentioned as driver and not that of accused No.1. The explanation given by him that he was a driver of the cab of the day-shift has not been corroborated by any documentary evidence. He submitted that this witness has admitted that the vehicle was taken in custody by the Chatushringi Police Station on 2/11/2007.33. The learned Counsel appearing on behalf of original accused Nos.1 and 2 then submitted the Trial Court has relied on the evidence of CA report as one of the circumstances against the accused. He submitted that there are several discrepancies in the said report and, as such, Trial Court erred in relying on the CA report since the material on record indicates that the articles were not sent and received by the office of the CA in sealed condition on 13/11/2007. He then pointed out that P.W. 19 - Dadasaheb Sawane who carried muddemal to CA admitted in his evidence that person who received muddemal had not stated that muddemal was received in sealed condition. The learned Counsel further submitted that under covering letter dated 13/11/2007, 23 articles were sent to CA, however, CA report shows that only 18 articles were received under the said covering letter. He then submitted that CA report furthers shows that two articles were received by letter dated 3/11/2007, two articles were received by letter dated 9.11.2007 and six articles were received by letter dated 2/11/2007. He submitted that, according to CA report, in all 30 articles were received by them on 13/11/2007, though evidence on record indicated that this witness has stated that only 23 articles were carried and received by the Office of CA. He then submitted that CA report at Exhibit-99 shows that in covering letter dated 2/11/2007, offences under sections 302, 376 read with section 34 are mentioned and even the name of Jyotikumari Chaudhary finds place in the said letter. He submitted that, therefore, finding of the Trial Court based on the report of CA, was, therefore, patently illegal and perverse.34. The learned Counsel then submitted that so far as evidence of P.W. 29 - Ganesh Pawar, Nodal Officer of Airtel is concerned, this witness admitted that they had supplied all the information called by the police and more particularly tower location of a particular mobile phone. However, this information was suppressed by the police and the said material was not placed before the Court. He submitted that, therefore, an adverse inference ought to have been drawn by the Trial Court against the prosecution for non-production of details of tower location. He, therefore, submitted that from the evidence of P.W. 29, it could be seen that the statement of P.W. 14 - Jeevan Baral that he had called from Bangalore was not proved.35. The learned Counsel, thereafter, attacked the evidence of the Investigating Officer. He submitted that the Trial Court has failed to take into consideration omissions and discrepancies proved through the evidence of Investigating Officers viz P.W. 20 - Kumudini Ahire, P.W. 23 - Ranjan Kadam, P.W. 21 - Seshrao Suryawanshi and P.W. 27 -Rajendra Patil. The detailed submissions of the learned Counsel for the accused on this aspect shall be taken into consideration while discussing evidence of this witness.36. Lastly, the learned Counsel submitted that the accused persons were not defended by a qualified lawyer. He submitted that the advocate who had appeared on behalf of the accused was not qualified as a lawyer since his Sanad was later on suspended during the pendency of trial. He submitted that when a new lawyer was engaged in the matter, he was also not given sufficient time to examine the witnesses. He contended that 8 to 9 witnesses were examined on one day and cross-examination was completed within 3 to 4 days. He submitted that, therefore, this indicated that proceedings were completed hurriedly and in an arbitrary manner. He submitted that prejudice, therefore, was caused to the accused and this has violated the right of the accused to be heard and their right to free and fair trial was violated. Reliance has been placed on the judgment of the Apex Court in Mohd. Hussain vs. State (2012) 2 SCC 584.Submissions of Mrs. Revati Mohite Dere, the learned Public Prosecutor appearing on behalf of the State:37. On the other hand, Mrs. Revati Mohite Dere, the learned Public Prosecutor submitted that prosecution had established all the circumstances beyond the reasonable doubt and there was no missing link between the said circumstances. She submitted that the first circumstance of last seen together was established by P.W. 12 - Gaursunder Prasad, brother-in-law of the deceased. She submitted that evidence of P.W. 12 was corroborated in all material particulars by his wife P.W.13 - Sudhakumari Gaursunder who is a sister of the deceased. She submitted that the facts which happened after missed call was given by accused No.1 have been corroborated in material particulars by P.W. 13. She submitted that P.W.12 has given an explanation regarding the circumstances under which the entire details were not mentioned in the missing report filed by him. She submitted that these facts were further corroborated by P.W. 14 -Jeevan Baral, who, in his evidence, has mentioned the events which transpired from 10.30 P.M. to 11.00 P.M. when he was in touch with the deceased on mobile phone. She submitted that the said fact has been established by the Call Log which has been produced on record at Exhibit-90 which clearly established that P.W. 14 had made telephone call from his mobile phone to the mobile phone which was in possession of the deceased. She submitted that this evidence, therefore, was consistent with the prosecution case.38. She then submitted that the second circumstance was also established by P.W. 8 - Punkaj Bodake and P.W. 12 Gaursunder Prasad. The second circumstance is regarding the clothes which were worn by the deceased when she was last seen in the company of accused Nos.1 and 2. P.W. 12 in his evidence has given description of the clothes and articles and these articles were identified by P.W.13 - Sudhakumari Gaursunder and the evidence of P.W.12 has been corroborated by his wife. The learned Public Prosecutor further submitted that P.W.8 was the person who saw the dead body in the morning and he has also given description of the clothes and sandals which were found on the spot. She submitted that this fact was further corroborated by P.W. 1 -Hiraman Bodke who had also given explanation regarding discrepancy of mentioning different colour of the clothes which were worn by the deceased. It has been submitted that the articles which were recovered at the instance of the accused and which were worn by the deceased were identified by P.W. 12 and 13. It has been further submitted that there was no discrepancy in respect of the article mobile which was seized at the instance of the accused. She submitted that P.W. 13 has stated that she had purchased the said mobile and had produced the receipt. Similarly, she has also produced the receipt in respect of Titan Watch which was purchased.39. The learned Public Prosecutor then submitted that so far as identification parade is concerned, the fact that the identification was already held on 14/1/2008 was not disputed and, on the contrary, was admitted by the accused which was evident from the answer given by the accused to the questions asked in their statements recorded under section 313 of Cr.P.C. She submitted that question Nos.118 and 121 have been answered by the accused in the affirmative. Similarly, accused No.2 had answered question No.84 pertaining to holding of identification parade on 14/1/2008. She submitted that, therefore, both the accused have admitted that the identification parade was, in fact, held on 14/1/2008. She submitted that Naib Tahsildar had explained the discrepancy in respect of date. She submitted that, by mistake, he had mentioned the date as 16/1/2008 instead of 14/1/2008 and he had realized this fact subsequently. She then submitted that there was no discrepancy in respect of fact of permission to take blood sample. She submitted that after the initial report regarding blood of the accused was inconclusive, permission was obtained to take blood of the accused on 14/1/2008 and accordingly blood samples were taken on that date which was evident from Exhibits 100 and 101. She submitted that this further corroborated the fact that the identification parade was held on 14/1/2008. She then submitted that the submission of the Counsel for the accused that the identification parade was not held as per the guidelines of the Criminal Manual is also not correct.40. She then invited our attention to the third circumstance which was established by the prosecution. She submitted that Call Log record indicated that Jeevan Baral (P.W.14) on 1/11/2007 had a talk with the deceased Jyotikumari between 10.30 P.M. and 11.00 P.M. and, thereafter, mobile of the deceased was switched off. She submitted that evidence of P.W. 14 as to what happened during the said period was relevant and admissible since it was a conversation relating to cause of death and the said evidence was admissible under section 32 of the Evidence Act. She submitted that this fact was borne out from the Call Log details at Exhibit-90. She then submitted that the Doctor who performed the postmortem has stated that age of the injuries was 16 hours prior to the postmortem. She submitted that if the said time is calculated, injuries were caused some time between 11.00 P.M. and 12.00 in the night. She submitted that, therefore conversation of P.W. 14 - Jeevan Baral immediately prior to the injuries being caused to the deceased when custody of the deceased was with accused Nos.1 and 2, coincided with the time of injuries which were caused and, therefore, statements made and heard by P.W. 14 were relevant to cause of death of the deceased and were admissible. Reliance has been placed on the judgment of the Apex Court in Sharad Sardas case. It has been submitted that there was no suggestion made by the Counsel for the accused that P.W. 14 was in Pune at the relevant time in the cross-examination of the witness.41. The learned Public Prosecutor then invited our attention to the evidence of P.W. 29 - Ganesh Pawar. She submitted that this Officer of Airtel Company has explained that first 14 numbers are unique to every mobile phone and that the last digit is zero and, therefore, there was no substance in the allegation that the last digit is not similar.42. She then submitted that the 4th circumstance which was established by the prosecution was the finding of white Indica Car bearing No.MH-14-AH-4560. She submitted that the said car had come to pick up the deceased on 1/11/2007 and the accused No.1 was entrusted with the duty of transporting the deceased and other night-shift employees to the Office. She submitted that P.W. 12 - Gurusunder Prasad in his evidence has stated that the deceased left in the car alongwith the accused by 10.30 P.M. from the house. P.W. 11 - Sagar Bidkar has stated that on the date of the incident Indica Cab was going to pick him up. Further evidence of P.W.11 that accused Nos.1 and 2 were present there is also corroborated by P.W.10 - Hiraman Bhandare.43. The learned Public Prosecutor submitted that the roster at Exhibit-68 showed that security stamp was not on the roster dated 30/10/2007 and 1/11/2007. She submitted that P.W.10 - Bhandare has stated in his evidence that the car was in possession of accused No.1 and accused No.1 was driving the said vehicle from 29/10/2007 to 1/11/2007 for picking up night-shift employees. She submitted that the mobile phone number used by accused No.1 used to remain in the vehicle which was borne out by Exhibit-90 and this fact was established by P.W.11 who had also spoken to accused No.1 on the same number. She submitted that evidence of this witness (P.W.10) corroborated evidence of P.W.11 that accused No.1 was the driver of the vehicle and was entrusted with the duty of picking up employees and that the mobile was in the car. He submitted that the fact that the said vehicle was driven by accused No.1 was established by P.W.17 - Amol Mugade who had produced Exhibit-68 and Exhibit-106 which indicates that accused No.1 was the driver of the said vehicle on that night. She submitted that this fact was also established by P.W. 9 - Bashir Shaikh who has stated in his evidence that prior to picking up the deceased, the accused No.1 had been to village Mamurdi and had picked up accused No.2 and accused No.1 was driving white Indica Car No.MH-14-AH-4560. She submitted that, therefore, the fact that accused No.1 and 2 were in the vehicle and that accused No.1 was driving the vehicle was established by the evidence given by P.W. 9 - Bashir, P.W.10-Bhandare, P.W. 11 - Sagar, P.W. 12 - Gaursunder and P.W. 17 - Amol.44. The learned Public Prosecutor then submitted that the next circumstance was recovery of articles from accused Nos.1 and 2. She submitted that gold ring, Titan Watch and SIM card of the mobile which was used by the deceased were recovered at the instance of accused No.1 from his residence and panchanama was made to that effect. P.W. 7 - Vijay Shirke is the Panch who has deposed about the said recovery. P.W. 21 - Seshrao Suryawanshi has stated that these articles were sent to Talegaon Dabhade Police Station in connection with CR No.167 of 2007. She submitted that on 4/11/2007, these articles were opened for identification by P.W.12 and P.W. 13 and P.W. 6 - Sunil Bodake is the panch in respect of the sealing of these articles and the panchanama to that effect was at Exhibit-48 and the concerned IO was P.W.27 - Rajendra Patil, PI. She further submitted that there was recovery of ring, Nokia mobile phone belonging to deceased in which IMEI Number is specified. She submitted that in the panchanama Model Number is mentioned as 1100 instead of 1108. She submitted that, obviously, it was a typographical mistake since Model No.1108 was mentioned in very small letters and the possibility of the witness having wrongly mentioned 0 instead of 8 could not be ruled out. She submitted that the fact that what was seized was a Nokia Mobile - Model No.1108 has been mentioned in the panchanama at Exhibit-51A which was prepared on 1/3/2011 between 10.00 and 11.00 A.M. She submitted that the allegation made by the Counsel for the appellants/accused that recovery was made in the morning prior to the arrest was incorrect.She submitted that explanation to that effect had been given by the Investigating Officer and that in view of the provisions of section 46 of the Criminal Procedure Code, accused were in the custody of the police when the recovery at their instance was made in the morning between 7.30 A.M to 10.30 A.M. In respect of discrepancy regarding CR being mentioned by Chatushringi Police Station, she submitted that there was wireless message circulated by Talegaon Dabhade Police Station on the instructions of P.W. 23 and in view of this Chatushringi Police Station knew about the said CR. She submitted that, therefore, allegation that the accused was illegally detained on 2/7/2007 was incorrect. She further submitted that the said Odhani was properly sealed and this could be seen from the evidence of P.W. 15 - Ankush Tumkar who was a panch and also the panch P.W. 6 - Sunil Bodake who has stated that the packet was opened for identification by P.W. 12 and P.W. 13. She then submitted that the articles were sent on 13/11/2007 which is evident from the evidence of P.W. 19 - Dadasaheb Sawane and letter at Exhibit 160. She also explained the discrepancy in respect of the articles which were received and were sent and more particularly how 23 articles were sent and CA report in respect of 18 was received. She submitted that CA report in respect of the clothes of the deceased and the CA report in respect of blood group of the accused Nos.1 and 2 clearly indicated that the blood and semen of the accused were found on the clothes of the deceased including Odhani.She submitted that CA report in respect of scratched material which was extracted from the Odhani indicated that some material and fiber which was detected on the ligature mark tallied with the fiber of the Odhani. She then submitted that Exhibits-99 and 166 also corroborated evidence of the witnesses. She submitted that though P.W. 16 - Dr. Madhav Waghmare had performed postmortem, he has stated in his evidence that he had reserved his opinion till he received CA report and this indicates that Doctor wanted to come to a definite conclusion from CA report. She submitted that from the evidence of the said Doctor, it could be seen that he had clearly stated that he suspected commission of rape and, therefore, he had waited to give his opinion till the receipt of CA report. She submitted that, therefore, merely because no injuries were found on the deceased that did not indicate that there was no rape.45. The learned Public Prosecutor then submitted that the next circumstance was regarding criminal conspiracy. The common object was to abduct, rape and murder. She submitted that there was an agreement between accused Nos.1 and 2 in respect of the said object and they accomplished and achieved this object. She submitted that there was a tacit agreement between the two accused and, according to the said agreement, both executed the plan. She submitted that so far as criminal conspiracy of abduction is concerned, accused No.1 had made misrepresentation to the victim that the car was being taken to the different place in order to pick up some one from Nigdi and under the guise of picking up some one from Nigdi, deceased was taken to an isolated place and there, their object of committing rape and murder was achieved. She submitted that P.W. 9 - Bashir Shaikh has stated in his evidence that accused No.1 had picked up accused No.2 from Mamurdi Village at 8.30 P.M. She submitted accused No.2 was picked up by accused No.1 at 8.30 P.M. to accomplish the said object. She submitted that the circumstance of tacit agreement between the two accused could be seen from the fact that accused No.2 was sitting on the backseat of the car, firstly, in order to ensure that victim does not escape and, secondly, in order to overpower her if she made any attempt to do so. She submitted that the other circumstance was deceitful means and inducement because of which accused Nos.1 and 2 made her travel beyond the point where she was supposed to go viz BPO Office. She submitted that subsequent false explanation and conduct of the accused also indicated that there was a pre-arranged plan that in the event of any inquiry being made by P.W.11 - Sagar Bidkar who was the next employee who was to be picked up what explanation was to be given to him.The learned Public Prosecutor then submitted that this fact could be further seen from the request made to security guard to make false entry that the car had come on time. She submitted that all these circumstances had been established by the prosecution beyond the reasonable doubt. She submitted that false explanation which was given by the accused, therefore, is a another circumstance in addition to the circumstances which were already proved by the prosecution. It has been submitted that burden of proving and explaining the facts which were within the knowledge of the accused under section 106 of the Evidence Act has not been discharged and, therefore, that was also an additional circumstance. She submitted that after committing rape and murder of the deceased, the accused quietly went to pick up Sagar Bidkar (P.W.11) and gave a false explanation to him that they were late on account of there being a tyre burst. Thereafter, they made entry in the register and after entering Wipro Office, asked P.W. 17 - Amol Mugade to make false entry. She submitted that another circumstance was before entering factory gate, accused No.2 was asked to get down. She submitted that false name of his friend was given to P.W. 10 - Hiraman Bhandare and when he made inquiry as to who was with accused No.1, he told him that one Shankar was in the car. She submitted that subsequent conduct was relevant in view of provisions of section 8 of the Evidence Act and this was established when false information was given to P.W. 10 - Bhandare, P.W. 11 - Bidkar and P.W. 17 - Mugade. She submitted that, therefore, under these circumstances, prosecution had established its case beyond the reasonable doubt.REASONS:46. We have given our anxious consideration to the submissions made by both, the learned Counsel appearing on behalf of the appellants/accused and the learned Public Prosecutor appearing on behalf of the state. We have also gone through the evidence on record and considered the findings recorded by the Sessions Court.47. We would like to deal with the last submission made by the learned Counsel appearing on behalf of the appellants/accused first. The learned Counsel has urged that an opportunity was not given to the accused of being heard and, as a result, they were deprived of their right of free and fair trial. In our view, the said submission cannot be accepted. It is a matter of record that advocate Mr Kawchale who was engaged by the accused has effectively represented the accused and had conducted the trial and cross-examined number of witnesses. However, during pendency of the trial on account of the order passed by the Bar Council of Maharashtra & Goa, his Sanad was suspended. He has preferred appropriate proceedings challenging the said order passed by the Bar Council and the said proceedings are pending. He, however, obtained discharge from the Trial Court in June 2011. The accused, therefore, were aware that they had to engage another advocate in June, 2011 itself. Pursuant to the application filed by the accused, this Court had expedited hearing of the trial and had further directed the Trial Court to dispose of the trial within a time bound schedule. Thereafter, accused engaged a new advocate who filed his vakalatnama. He, thereafter, immediately filed an application under section 311 of the Cr.P.C for recalling of all the witnesses who were already cross-examined by his erstwhile advocate appointed by the accused. This application was allowed by the Sessions Court and an order was passed after recalling of the witnesses who were cross-examined by Mr. Kawchale. The matter was thereafter kept for hearing on 6/8/2011. On that date the matter was adjourned to 22/8/2011. On the adjourned date, application was made seeking time to cross-examine the witnesses. The Sessions Court allowed the application and granted time till 15/9/2011, though High Court had expedited hearing of the trial. Again on that date, an application was made for further adjournment. This application was rejected by a detailed order. However, the Court adjourned the matter to 16/9/2011. In our view, therefore, sufficient time was given to the new advocate who was appointed by the accused and it cannot be said that there was any breach of principles of natural justice or breach of right of fair hearing and trial of the accused. Interestingly, the accused, during the course of their arguments on sentence before the Trial Court, had sought permission to appoint Mr. Kawchale to argue their case. The submissions made by the learned Counsel for the accused, therefore, cannot be accepted and the said submission has been rightly rejected by the Trial Court. In our view, therefore, no prejudice has been caused to the accused on account of refusal by the Trial Court to grant further adjournment. It is an admitted position that the said order refusing to grant adjournment was not challenged by the accused before the appropriate forum. In this context, it would be relevant to take into consideration the provisions of section 465 of Cr.P.C which read as under:-"465. Finding or sentence when reversible by reason of error, omission or irregularity.-(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."Taking into consideration the aforesaid provision, therefore, in our view, since the order refusing adjournment was not challenged further by the accused, it is not now open for the accused to challenge the finding or sentence recorded by the Trial Court after the trial was over in appeal. As noted by us earlier, no prejudice is caused to the accused by virtue of the order refusing to grant adjournment to the accused. It has to be noted here that application filed by a new advocate engaged by the accused for recalling all witnesses was allowed and all these witnesses were again permitted to be cross-examined by their new advocate. Therefore, it cannot be said that there was failure of justice on account of refusal to grant adjournment to the accused. Ratio of the judgment in Mohammad Hussein vs State (2012) 2 SCC 584 , in our view, therefore, would not apply to the facts of the present case.48. The second question which falls for consideration before us is : whether death of Jyotikumari Chaudhari was homicidal P.W. 16 - Dr. Madhav Waghmare who performed the postmortem has, in his evidence, mentioned the list of injuries which were found on the person of the deceased. The said injuries are as under(a) CLW on left parietal scalp region size 1"x 1/2" x deep bone(b) CLW on left tempro parietal scalp region size 1-1/2" x 1/2" x deep bone.(c) Ligature mark around the neck region. Nature - grievous, Position mark situated low down in the below thyroid the base of grove being soft and reddish. Dimension size - 6" x 1/2" x 1/4". Directions - Horizontally continuous low down in the neck below the thyroid cartilage, encircling the neck. Probable age of the injury 16 hours. Condition of subcutaneous tissue under the mark ecchymosed character of ligature mark-nylon rope fibers are used as ligature. Fracture hyoid bone. Fracture skull involving frontal parietal left temporal bone, fracture ribs right 2, 3, 4. A carefully search done of the neck at ligature mark minute fibers and any other material from ligature mark. Ligature mark found.Reddish ecchymosed margins. Preserved for C. A. Applied ligature mark on the neck while standing, thus using force backward and upward.(d) Multiple abrasion on left temporal to cheek left and lower mandibular size region 6" x 3" x 1/4".(e) Multiple abrasion at base of left clavical and mid-sternum thoracic regions size 2" x 2" x 1/4".(f) Multiple abrasions with finger nail marks, right side of neck region, fronto-laterally size 2" x 1- 1/2" x 1/4".(g) Multiple abrasion with finger nail marks on left side of the neck regions, fronto-laterally size 2-1/2" x 1" x 1/4".(h) Incised wound on right wrist joint region ventrally size 2 x 1-1/2" x deep bone (radial artery not cut).(i) Incised wound just below above injury No.8 on right wrist region ventrally size 2 x 1-1/2" deep bone.(j) Contusion on left eye and upper eyelid region size 1" x 1" (cynosed).(k) CLW on left eyebrow to frontal scalp region size 1" x 1/2" x deep bone.(l) There was not seen dribbling of saliva.(m) There is evidence and sign of struggle, scratches, nail marks on neck region. Fatal injury on head (tempro-parieto) and no fatal injury on abdomen. All these injuries were ante-mortem in nature. Injury Nos.1, 2 & 3 coupled with injury Nos.8 and 9 were sufficient in the ordinary course of nature to cause death.On internal examination following injuries were noticed.(1) CLW on left parietal scalp region.(2) CLW on left tempro parietal scalp region.(3) CLW on left eyebrow to frontal scalp region.(4) Fracture of skull involving frontal parietal left temporal bone.(5) Laceration to the brain.(6) Fracture to ribs (right 2, 3, 4) of right side.(7) Pleura ruptured right.(8) Fracture larynx and trachea, bronchial tube contains forth.(9) Right lung congested, emphysematous, bullae on the surface of the lung. Due to over distension rupture of intra-aveolar septa.(10) Pericardium congested.(11) Heart-cross section congested, right side of heart contained full of blood. Left side empty. Weight 100 gms.(12) Carotid arteries - Internal coat ruptured seen.(13) Abdomen - walls and peritoneum congested.(14) Pubic hair not found, matter due to the presence of semen or dried semen or stains. Bleeding from vagina is very slight. No injury is seen to labia majora and labia minora. No vaginal secretion seen. Uterus was congested and normal. Oss closed."P.W.16 has stated in his evidence that in his opinion probable cause of death was shock and haemorrhage due to grievous injury to vital organs with skull fracture involving frontal, left temporal, parietal bone with laceration to brain with fracture ribs 2, 3, 4 right lung ruptured with strangulation. He has also observed that strangulation made have been committed by overpowering the victim suddenly from behind by using rope with hands. This witness (P.W.16) was initially cross-examined by Mr. Kawchale and several suggestions were made regarding injuries which were caused and it was suggested that these injuries could have been caused on account of natural causes or accident. The new advocate Mr. A.R. Patil, who was appointed, however, did not seriously dispute that the death was homicidal. In our view, therefore, the prosecution has established that death of deceased Jyotikumari was homicidal and unnatural. The said question is, therefore, answered in the affirmative.49. So far as the offence of rape is concerned, the medical evidence will be taken into consideration at appropriate stage.50. In the present case, prosecution has examined 29 witnesses and the entire evidence is essentially circumstantial evidence. Before taking into consideration the rival submissions, It has to be kept in mind that in a case where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn are, in the first instance, to be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Secondly, the circumstances should be of a conclusive nature, and they should be such as to exclude every hypothesis but the one proposed to be proved. To put it in other words, there must be a chain of evidence so complete that it will not leave any reasonable ground for drawing a conclusion consistent with innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.51. The Apex Court in a series of decisions has consistently held that when a case rests upon the circumstantial evidence, such evidence must satisfy the following tests-(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence (see : Gambhir v. State of Maharashtra (1982 Cri.L.J. 1243));52. Secondly, the burden of proving the charge against the accused should be beyond the reasonable doubt. It has to be borne in mind that burden of proof in a civil case and in criminal case is distinct and different. In a civil case, the Court has to decide the case on preponderance of probabilities whereas in a criminal case, the burden on the prosecution is to prove the case beyond the reasonable doubt. The expression beyond the reasonable doubt, however, does not mean that there should be absence of doubt. The doubt mentioned in the said case should be a doubt of a reasonable man and that does not mean that there should be absolute proof or absence of complete doubt. It has also been held in several cases by the Apex Court that such doubt should not be fanciful doubt arising out of conjectures and surmises or raised as a result of fertile imagination of the accused.53. The Apex Court in State of U.P. vs. Ashok Kumar Srivastava AIR 1992 SC 840 has observed in para 9 of its judgment as under:"9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise. We are also conscious of the fact that the presumption of innocence is strengthened, certainly not weakened, by their acquittal by the High Court and ordinarily this Court is slow to interfere with an order of acquittal in exercise of its extraordinary powers under Section 136 of the Constitution."...Similarly, the Apex Court in State of West Bengal v. Orilal Jaiswal and another AIR 1994 SC 1418 has observed in para 14 of its judgment as under:-"14. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of Indian Evidence Act. Although, the courts conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater ((1950)2 All E R 458 at E. 459) has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter."Similarly, the Apex Court in State of Madhya Pradesh vs. Dharkole alias Govind Singh 2005 CRI L.J. 108 = AIR 2005 SC 44 in its judgment in para has observed as under:-"10. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to proof is an exercise particular to each case Referring to of probability amounts to proof is an exercise the inter-dependence of evidence and the confirmation of one piece of evidence by another a learned author says: (See "The Mathematics of Proof II": Glanville Williams: Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342)."The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.""11. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case.""12. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal and Anr. (AIR 1988 SC 2154 )."Similarly, the Apex Court in Gurbachan Singh v. Satpal Singh and others AIR 1990 SC 209 in its judgment in para 5 has observed as under:-"5. The conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated."54. Keeping in view the aforesaid principles laid down by the Apex Court, it will be necessary to examine whether the prosecution has proved its case beyond the reasonable doubt.55. In the present case, the prosecution has relied on the following circumstances:-(1) The deceased was last seen alive in the company of accused Nos.1 and 2 when she was picked up from her house and the brother-in-law of the deceased had an adequate opportunity to see the accused.(2) Before the deceased was picked up by the accused, the accused No.1 had given a missed call to the deceased on her mobile and the deceased had, thereafter, called the accused No.1 on the same number and had informed him that she was coming down within a period of 10 minutes.(3) The facts about deceased receiving a missed call and returning the call to the accused have been corroborated by P.W.12 and P.W. 13, brother-in-law and sister of the deceased respectively.(4) During the time when the accused were supposed to take the victim girl Jyotikumari to her BPO Office, telephone call was received by her on her mobile phone from Jeevan Baral from Bangalore and he had conversation with the deceased for about half an hour till the mobile phone of the deceased was switched off.(5) In the conversation with Jeevan Baral (P.W.14), the deceased had informed him that the car was driven by accused No.1 -Purushottam and his friend accused No.2 -Pradeep was also in the car.(6) There was a further conversation between the deceased and P.W. 14 - Jeevan Baral when P.W. 14 heard the deceased asking the driver accused No.1 - Purushottam where she was being taken and, thereafter, questioning him why she was taken to jungle and finally her mobile was switched off after he heard a loud noise.(7) The next circumstance is that the accused informed P.W.11 - Sagar Bidkar that he would be picked up in short time and that the tyre of the car had been burst and the tyre had to be removed and, therefore, there was delay.(8) Accused No.1 had picked up P.W.11 - Sagar Bidkar at 12.45 A.M. and at that time accused No.2 was there on the backseat of the car and was in a frightened condition.(9) Accused dropped P.W. 11 - Sagar Bidkar to the BPO Office and just before the car reached the gate of the BPO Office, accused No.2 got down from the car.(10) Accused No.1 requested P.W. 11 - Sagar Bidkar to give a false report that there was broke down of the car on account of tyre burst and therefore there was delay and a request was also made by the accused to the security guard to falsely state in the report that the car had arrived on time.(11) After dropping P.W. 11 - Sagar Bidkar, accused No.1 took away the white indica car which was in his possession right from time he picked up deceased Jyotikumari Chaudhary from her residence(12) The discovery of the dead body and the report and opinion given by the Doctor that death was homicidal and further opinion after CA report was received that before her death, she was raped.(13) Recovery of the articles from accused Nos.1 and 2 belonging to the deceased namely ear tops, gold ring, mobile phone, SIM Card, Titan Watch and Odhani at the instance of accused No.1 on the next date which was stained with blood and semen of accused Nos.1 and 2 were found on the said Odhani and identification of the articles by sister and brother-in-law of the deceased.(14) Identification of the accused by P.W. 12 -Gaursunder Prasad.(15) Production of Call Log Book in respect of the phone of the deceased showing the details of the phone calls received by her and made by her which also showed that a missed call was received by her from accused No.1 at about 10.15 P.M. and a return call was made by deceased to accused No.1 immediately thereafter. It also showed that a call was made by Jeevan Baral (P.W. 14) from his phone to the deceased on two occasions and the total duration of the call made was 6-7 minutes and 23 minutes.(16) The CA report indicating that semen of accused Nos.1 and 2 were found on the vaginal swab which was taken from the deceased at the time when the postmortem was performed and also semen of the accused Nos.1 and 2 being found on the clothes of the deceased. CA report indicating that the blood of the deceased was found in the car, which was of "B" Group.(17) The statement of the owner of the Car and the Security Officer confirming the fact that the accused was entrusted with the duty of picking up the deceased with the white Indica Car bearing No.MH-14-AH-4560 29th, 30th and 31st October, 2007(18) The Doctor who performed the postmortem gave an opinion that the deceased was raped and, thereafter, brutally murdered on the basis of injuries found on the deceased and the CA report which was received and also suspecting rape but withholding the report till arrival of the CA report.(19) The accused No.1 picking up accused No.2 at about 8.30 P.M. from village Mamurdi.(20) Accused Nos.1 and 2 had induced the deceased and had abducted her on the basis of deceitful means and inducement by taking her from her residence in the car which was meant to drop her at her office and instead of dropping her at her office, abducting her and taking her to a remote place and committing preplanned act of rape and murder(21) Accused No.1 and 2 had, on the basis of deceitful means, induced and abducted the deceased and they took her from her residence in the car which was meant to drop her at her office and instead of dropping at her office she was taken to a remote place where both the accused committed on her a preplanned act of rape and murder.56. In our view, after having perused the evidence, prosecution has established the chain of circumstances beyond the reasonable doubt for the following reasons.57. Prosecution, in this case, has examined four set of witnesses. The first set of witnesses are the witness who have proved various circumstances. The second set of witnesses are Doctors who have established that the deceased was raped and murdered. The third set of witnesses are the panchas who have proved the panchanamas which were drawn by the police and the last and fourth set of witnesses are the Investigating Officers who have carried out the investigation.58. The offence of conspiracy is defined in section 120-A of the Indian Penal Code which reads as under:-"120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,-(1) an illegal act, or(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:Provided that no agreement except an agreement to commit an offence shall amount to criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."For establishing the charge of conspiracy, therefore, it has to be established that there should be an agreement between two or more persons to commit an illegal act or an act which is not legal by illegal means. Prosecution, therefore, has to establish meeting of minds between two and more persons either by tacit or other kind of agreement to do illegal acts. The Apex Court has laid down parameters in establishing the case of conspiracy. The Apex Court has held that it is not always possible to find direct evidence to prove the conspiracy between two or more people and, therefore, very often, inference is required to be drawn on the basis of various circumstances to find out whether there was meeting of minds and the agreement between the parties for committing the said illegal act. The Apex Court in Firozuddin Basheeruddin and Others vs. State of Kerala (2001) 7 SCC 596 in its judgment in paras 23 to 39 has observed as under:-"23. Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. In the face of modern organised crime, complex business arrangements in restraint of trade, and subversive political activity, conspiracy law has witnessed expansion in many forms. Conspiracy criminalizes an agreement to commit a crime. All conspirators are liable for crimes committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity. To put it differently, the law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Contrary to the usual rule that an attempt to commit a crime merges with the completed offense, conspirators may be tried and punished for both the conspiracy and the completed crime. The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identity of his co-conspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of co-operation between the accused. What people do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy.""24. Another major problem which arises in connection with the requirement of an agreement is that of determining the scope of a conspiracy who are the parties and what are their objectives. The determination is critical, since it defines the potential liability of each accused. The law has developed several different models with which to approach the question of scope. One such model is that of a chain, where each party performs a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. No matter how diverse the goals of a large criminal organisation, there is but one objective: to promote the furtherance of the enterprise. So far as the mental state is concerned, two elements required by conspiracy are the intent to agree and the intent to promote the unlawful objective of the conspiracy. It is the intention to promote a crime that lends conspiracy its criminal cast.""25. Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendants liability than the fact that the crime was performed as a part of a larger division of labor to which the accused had also contributed his efforts.""26. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co-conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Explaining this rule, Judge Hand said:"Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made a partnership in crime. What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all. (Van Riper v. United States) (13 F.2d 961, 967 (2d Cir.1926).""27. Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres.""28. Interpreting the provisions in Sections 120A and 120B IPC, this Court in the case of Yash Pal Mittal v. State of Punjab (1977) 4 SCC 540 in para 9 at pages 543 & 544, made the following observations :"9. The offence of criminal conspiracy under Section 120-A is a distinct offence introduced for the first time in 1913 in Chapter V-A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-conspirators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. The significance of criminal conspiracy under Section 120-A is brought out pithily by this Court in Major E.G. Barsay v. State of Bombay (1962) 2 SCR 195 thus:The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable."We are in respectful agreement with the above observations with regard to the offence of criminal conspiracy.""29. In the case of Kehar Singh and Others v. State (Delhi Administration, (1988) 3 SCC 609 , a bench of three learned Judges in paras 271 to 276 held : (SCC pp. 731-733)"271. Before considering the other matters against Balbir Singh, it will be useful to consider the concept of criminal conspiracy under Sections 120-A and 120-B of IPC. These provisions have brought the Law of Conspiracy in India in line with the English law by making the overt act unessential when the conspiracy is to commit any punishable offence. The English law on this matter is well settled. The following passage from Russel on Crime (12th edn., Vol. I, p.202) may be usefully noted :The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough."272. Glanville Williams in the Criminal Law (2nd edn. p.382) explains the proposition with an illustration:The question arose in an lowa case, but it was discussed in terms of conspiracy rather than of accessoryship. D, who had a grievance against P, told E that if he would whip P someone would pay his fine. E replied that he did not want anyone to pay his fine, that he had a grievance of his own against P and that he would whip him at the first opportunity. E whipped P. D was acquitted of conspiracy because there was no agreement for concert of action, no agreement to "cooperate"."273. Coleridge, J., while summing up the case to jury in Regina v. Murphy (173 Eng. Reports 502) pertinently states :I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, "Had they this common design, and did they pursue it by these common means - the design being unlawful""274. It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to Sections 120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.""275. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand explains the limited nature of this proposition :Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; there need never have been an express verbal agreement, it being sufficient that there was a "tacit understanding between conspirators as to what should be done"."276. I share this opinion, but hasten to add that the relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group if irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard."59. Keeping in view the ratio of the judgments in the said cases, we now propose to examine the evidence which has been brought on record by the prosecution.60. Prosecution has on the point of last seen together relied on the evidence of P.W. 12 - Gaursunder Prasad. P.W.12 has stated that that he was staying at Panchavati, Pashan, Pune alongwith his wife and son Kartik and sister-in-law Jyotikumari Chaudhary. He has stated that she had completed her B.Sc. and was serving at Wipro Company as associate. He has further stated that she was working in shifts and one shift was of 10 hours. He has further stated that Office of Wipro Company was situated at Hinjewadi which was at a distance of about 12 to 15 k.m. from his house. He has further stated that the Company Cab used to pick her up from her residence and drop her on the following morning. He has also mentioned that she was having a mobile phone bearing No.9960621120 which was in the name of his wife but was given to her for use by his wife. He has then given a detailed account as to the events which transpired on the date of the incident. He has stated that on 1/11/2007 deceased Jyotikumari had a shift between 11.00 P.M to 9.30 A.M. and at about 10.15 P.M. she received a missed call of the driver of the cab and, thereafter, Jyotikumari had returned the call and informed the driver that she would be getting down. He has stated that prior to that his son was playing with Jyotikumari and he started crying and, therefore, he took his son alongwith him to see her off. He has also mentioned the clothes which were worn by the deceased viz saffron colour Salwar and yellow colour Kamij and odhani of saffron colour. He has also stated that she was wearing ear tops, one finger ring and Titan Watch, sandles of Woodland Company and she was having one purse with her.61. Thereafter he (P.W.12) has stated that one vehicle which was a white colour indica car came to pick up Jyotikumari and it was a cab having Registration No.MH-14-AH-4560 in which there were two persons; one was a driver and another person was on the backseat behind the driver. In his evidence, he has stated that the driver was somewhat blackish in colour and he was wearing a jacket on his person and also wearing a cap of maroon colour on his head. He has also stated that the other person was a boy of 19 to 20 years who was fair in colour and wearing blue pants and T-shirt on his person and the T-shirt was black in colour. He has also stated that there was a big street light next to his building and in that light he could see the driver and the other person. He has further stated that after the cab came there, he had a talk with Jyotikumari for about 5 minutes and, thereafter, she handed his son to him and the cab took away Jyotikumari.62. P.W. 12, therefore, has narrated sequence of events which transpired on 1/11/2007 and has given graphic account of the deceased Jyotikumari being picked up by accused Nos.1 and 2.63. P.W.12 has further narrated sequence of events which transpired on 2/11/2007. He has stated that he left the house at 9.00 A.M in his Santro Car and took it to garage at Bopodi since he wanted to repair his car. He has stated that the car was in the name of his wife and signature of his wife was required on insurance papers, he called his wife on phone and told her that she had to come to garage. His wife informed him that Jyotikumari had not returned home. He, therefore, gave call to his wife at 10.30 A.M. And, again, she informed him that Jyotikumari had not returned and that she was trying to contact her, however, her mobile phone was switched off. He has then narrated how his wife reached the garage on two wheeler and signed the insurance papers in the garage and dropped him at his office.64. The next sequence of events also has been narrated by P.W.12. He has stated that at about 12 noon, he again received call from his wife and, at that time also, she informed him that Jyotikumari had not come to the house. She also informed him that she had contacted office of Jyotikumari and she was informed that Jyotikumari did not come to the Office in the night-shift. He, therefore, went home and contacted Office of Jyotikumari and the persons in the Office of Jyotikumari informed him that Jyotikumari did not attend the Office on the night-shift. He has stated that his wife Sudha talked with team leader Shri Samrana who also reiterated the said fact about Jyotikumari not coming to the Office. He has narrated how his wife had informed him that one Jeevan Baral, friend of Jyotikumari residing at Banglore had telephoned her and told his wife that he had a talk with Jyotikumari on phone during 10.30 P.M. And 10.45 P.M. and, thereafter, the phone was cut and, thereafter, there was no contact on phone with Jyotikumari. She also mentioned that Jeevan Baral has inquired whether she had reached the house. He has stated that after he heard these facts from his wife he again contacted Jeevan Baral and he kept the loud speaker on. Jeevan Baral informed him that during his conversation with Jyotikumari between 10.30 P.M and 10.45 P.M. at one time Jyotikumari suddenly asked the driver Purushottam "Gadi Kaha Le Ja Rahe Ho".He has stated that Jeevan Baral then informed that he had heard voice of the driver and he said that he was to pick up one person from Nigdi and, thereafter, the talk between Jeevan Baral and Jyotikumari continued and, thereafter, he informed that Jyotikumari asked the driver why he was taking the car in jungle and, again, Jeevan heard talk of the driver mentioning to Jyotikumari that since the condition of the road was bad, he was taking the car through that place. Thereafter, he heard Jyotikumari asking the driver why the vehicle was stopped in jungle. He then informed this witness (P.W.12) that he felt that something was wrong and asked her whether she was alone in the car and, at that time, she informed him that friend of Purushottam viz Mr. Pradeep was in the car and told him not to worry and, thereafter, he heard a loud noise and the phone was disconnected. This witness (P.W.12) has then stated that after hearing the said story, he contacted the elder brother of Jyotikumari and informed him about the events which have taken place and, thereafter, he and his wife went to Chatushringi Police Station and lodged a missing complaint.65. P.W.12 has, thereafter, stated that on 3/11/2007 police came to him and told him that one dead body was found near Talegaon Dabhade Police Station and they accompanied them to identify the dead body and at about 7.00 A.M, police showed photograph of the dead body and then they went to mortuary of Sassoon Hospital. He and his wife identified the dead body and also clothes and sandles of Jyotikumari. He also identified the gold ring, Titan Watch and ear tops in the Court.66. P.W.12 has then stated that on 14/1/2008, he was called at the Office of Tahsildar for identification of the accused and in the identification parade, he identified the driver as well as his friend who was in the cab. He has stated that 14 persons were standing in one row and Tahsildar and two panchas were present.67. P.W.12 then identified mobile phone of Jyotikumari out of the four seized mobile phones which were shown to him and stated that the last digit of SIM card of Jyotikumari was 5547 and it was of Airtel and its IMEI number was 35503000/609430/2. He also identified the clothes of accused Nos.1 and 2. P.W. 12 has been cross-examined at length by Advocate Mr. Kawchale and, thereafter, by Advocate Mr. A.R. Patil at length. This witness has denied the suggestions which were put to him by both the advocates. His testimony has not been shaken by the cross-examination.68. Testimony of P.W. 12 is corroborated in material particulars by his wife P.W. 13 - Sudhakumari Gaursunder. His wife has reiterated the sequence of events which had taken place on 1/11/2007 from the point of time where the deceased had received "missed call" from accused No.1 to the point where the dead body of deceased was identified by this witness P.W.13 and her husband and also in respect of identification of the accused. P.W. 13 also has been cross-examined initially by advocate Mr. Kawchale and then by Advocate Mr. A.R. Patil. Both the advocates for the accused cross-examined the witness at length. All the suggestions made by advocates for the accused have been denied by this witness. Prosecution, therefore, has established the circumstance of the deceased being last seen in the company of accused Nos.1 and 2 which was proximate in point of time prior to her death. P.W. 12 has established that accused Nos.1 and 2 took the deceased in their cab and they were expected to drop her at her BPO office at Hinjewadi.69. P.W. 11 - Sagar Bidkar has stated in his evidence that accused Nos.1 and 2 were supposed to pick him up at about 10.45 P.M. He has stated that his Company had informed that accused No.1 was the driver of the cab and the details of the cab also were given to him and he has given those details in his evidence. P.W. 11 has further stated that accused No.1 did not come on time to pick him up and, therefore, he made telephone call to him. He has stated that accused No.1 informed him that he would be coming within a short time to pick him up. However, he did not come within 10/15 minutes and, therefore, he had called him again and, at that time, he has stated that at that time accused No.1 had told him that he had a flat tyre and, therefore, there was delay. P.W. 11 has stated that finally accused No.1 came to pick him up in white indica car bearing No.MH-14-AH-4560 at 12.45 A.M. He has further stated that alongwith accused No.1, his friend accused No.2 Pradeep was also in the car and who was sitting on the backseat. When he inquired about Jyotikumari, accused No.1 told him that she had not come with them on that date. P.W. 11 - Sagar Bidkar has further stated in his evidence that, thereafter, accused No.1 took the cab to the BPO office at Hinjewadi and just before entering the gate, accused No.2 got down from the vehicle. He has further stated that after they entered the premises, accused No.1 persuaded him to make an entry in the roster register that the cab was late on account of flat tyre and, accordingly, he made that entry. He has identified his handwriting at Exhibit-68.This witness also was cross-examined initially by Advocate Mr. Kawchale and later on by advocate Mr. A.R. Patil. Again, suggestions made to him by the Counsel for the accused were denied and the accused were not successful in creating any doubt regarding his testimony. P.W. 11, therefore, has corroborated the fact that on the fateful night, the accused No.1 was to first pick up Jyotikumari and, thereafter, pick him up. He has established that the accused No.1 did not come on time but came at 12.45 A.M. and gave false excuse that there was a flat tyre and, therefore, there was delay. He has further established that accused No.2 was also in the cab alongwith accused No.1 when they picked him up.70. The next witness who has been examined by the prosecution to establish the presence of the deceased in the cab from 10.15 P.M to 11.00 P.M is P.W. 14 - Jeevan Baral. He has stated in his evidence that he knew Jyotikumari since she was his childhood friend and they had studied in the same school and that on 1/11/2007, he had called her at 10.30 P.M. and had a long talk with her while she was going to the office in the office car. He has stated that he overheard the conversation between Jyotikumari and the driver - accused No.1 and when she had questioned the driver as to where he was taking the vehicle, he also overheard accused No.1 telling her that one person from Nigdi was to be picked up and, again, thereafter, conversation between the witness and the deceased continued and, thereafter, he again overheard the conversation between Jyotikumari and accused No.1 when she asked him why he had taken the car in the jungle. He also overheard the driver telling her that the condition of the road was not good and, therefore, he had taken another route. He has stated that he became suspicious because of the answers given by the driver and, therefore, he asked her whether she was alone in the car and Jyotikumari informed him that the friend of driver viz Pradeep was also in the car and, therefore, he should not worry. Again, thereafter, he overheard the conversation between the deceased and the driver and the deceased asked the driver why the car had stopped in the jungle and then he heard shout of Jyoti and she said "please what you are doing" and, thereafter, there was some loud noise and the phone was disconnected. This witness has, therefore, established that he had contacted Jyotikumari on 1/11/2007 and from 10.30 P.M to 11.00 P.M, she was in the office car which was driven by accused No.1 and in which accused No.2 was also present.He has further stated that the car was taken through a different route to a place away from the office of Jyotikumari and it had stopped in the jungle and, ultimately, he had heard a loud noise and also heard shouts of Jyotikumari and, thereafter, the phone was switched off. P.W. 14, therefore, further establishes the presence of the deceased in the office car which was driven by accused No.1 and in which accused No.2 was also present at the relevant time. He has stated that the number of his Mobile Phone was 9986233097 and the number of the Mobile Phone of Jyotikumari was 9960621120. Prosecution has produced the Airtel record of the mobile number of Jyotikumari from which it can be clearly seen that P.W. 14 -Jeevan Baral had, in fact, called her at the relevant time on two occasions i.e. at 10.30 P.M. and 10.45 P.M. Testimony, therefore of P.W. 14, also has been corroborated by the Airtel record which has been produced at Exhibit-19. P.W. 14 has further stated that immediately after the phone was switched off, he tried to contact Pune Police by dialing No.100 but he was not successful in getting in touch with the Pune Police on that number. He has stated that he then tried to talk with the sister of Jyotikumari at Delhi. He has stated that her phone was switched off.He has then stated that he again had tried to contact Jyotikumari but her phone was switched off. Thereafter, he again contacted her sister at Delhi but again there was no contact. This witness has further stated that on the next day on 2/11/2007 at about 11.00 A.M., he contacted Seemadeedi, elder sister of Jyotikumari and obtained telephone number of P.W. 13 - Sudhakumari and told her what had transpired on the earlier day and the conversation between him and Jyotikumari on phone on that day. He has further stated that he received the phone call at about 1.15 P.M. on 2/11/2007 from Sudhakumari and, at that time, P.W. 12 - Gaursunder also had talk with him. All these facts have been corroborated by P.W. 12 and P.W. 13. Again this witness (P.W.14) has been cross-examined by Advocate Mr. Kawchale and Advocate Mr. A.R. Patil. In his cross-examination, he admitted that there was love affair between him and Jyotikumari and he has further stated that he did not know the number of Wipro Company and the number of Sudhakumari or her husband. This witness (P.W.14) has been cross-examined at length on various aspects. However, in our view, no significant material has been brought on record. From the evidence of P.W. 12, P.W. 13 and P.W. 14, presence of the deceased Jyotikumari in the office car which was driven by accused No.1 and in which his friend accused No.2 Pradeep was present, has been established by the prosecution beyond the reasonable doubt.71. In view of the above evidence of P.W.11, P.W.12, P.W.13 and P.W. 14, circumstances Nos.1 to 10 mentioned in paragraph For establishing the charge of conspiracy, therefore, it has to be established that there should be an agreement between two or more persons to commit an illegal act or an act which is not legal by illegal means. Prosecution, therefore, has to establish meeting of minds between two and more persons either by tacit or other kind of agreement to do illegal acts. The Apex Court has laid down parameters in establishing the case of conspiracy. The Apex Court has held that it is not always possible to find direct evidence to prove the conspiracy between two or more people and, therefore, very often, inference is required to be drawn on the basis of various circumstances to find out whether there was meeting of minds and the agreement between the parties for committing the said illegal act.72. The next circumstance is the recovery of the dead body from the open field near the house of the accused. The dead body was found on the next day i.e. on 2/11/2007 by P.W.8 -Punkaj Bodake. He has stated in his evidence that on 2/11/2007 when he proceeded towards his field at 7.15 A.M. on motor-cycle, he came near Drain No.2 and found a dead body of a female. He has stated that the age of the deceased was about 20 to 22 years and she was 5 to 5.3" in height. He noticed that there were injuries on her neck and her hairs were disturbed. He also noticed injuries on the right hand of the deceased. He has stated that she was wearing yellow kurta and saffron salwar on her person and she was in half naked condition and beside the dead body, there were reddish and white sandals of high heel. He, therefore, gave intimation to Police Patil Hiraman Bodke through mobile. Again this witness (P.W.8) has been cross-examined by Advocate Mr. Kawchale and Advocate Mr. A.R. Patil.73. P.W. 1 - Hiraman Bodke has stated that Punkaj Bodake informed him about the dead body of one unknown lady lying on Northern side of the Mumbai-Pune express highway in the area of Gahunje village. After receiving the call, he went to the spot and saw the dead body. He has also stated that the deceased was wearing yellow colour salwar and light saffron colour kurta and he has also mentioned about the pair of high heels of white colour lying nearby and also the injuries on her hand and one blood-stained stone lying near by. He has stated that panchanama of the spot and of the dead body was made by the police. In the cross-examination by Advocate Mr. Kawchale, the witness admitted that before the police he had stated that the deceased was wearing yellow colour kurta and light saffron colour salwar. He has also stated in the cross-examination that the house of the accused No.1 - Purshottam Borate is on Northern side of Express Highway and the houses of both the accused are situated at Village Gahunje. In the re-examination, however, he has explained the reason why he had incorrectly mentioned the colour of the salwar and kurta to the police. He has stated in re-examination that at that time he was frightened and was disturbed and while giving evidence in court he had given different colours of the clothes since he did not understand difference between salvar and kurta. P.W. 1 - Hiraman Bodke and P.W 8 -Punkaj Bodake have established that the dead body of Jyotikumari was found on the Northern side of the Mumbai-Pune Express Highway near village Gahunje and that the deceased was wearing yellow and saffron colour kurta and salwar. These witnesses, therefore, have corroborated testimony of P.W. 12 and P.W. 13 regarding the dress worn by Jyotikumari in the night of 1/11/2007 when she left the house and sat in the office car driven by accused No.1.74. After the dead body was discovered by P.W. 8 - Punkaj Bodake and a complaint was registered by P.W. 1 - Hiraman Bodke, the body was taken to the hospital and postmortem was performed. We have already noted that the doctor who performed the postmortem had given an opinion about cause of death and the said doctor also in his evidence has mentioned that he had suspected that the victim was raped before she was murdered. However, in order to confirm the said finding he had waited for the report of CA which is at Exhibits 166 and 167 and after reading the CA report, he had confirmed that the deceased was raped before she was murdered. From the evidence of P.W. 16 - Dr. Madhav Waghmare, prosecution has established that the death of Jyotikumari was homicidal and that she was raped before she was murdered.75. The next circumstance which has been established by the prosecution is regarding recovery of the articles belonging to the deceased on the next day at the instance of accused Nos.1 and 2 viz ear tops, gold ring, mobile phone, SIM card, Titan Watch and Odhani. Prosecution has examined P.W. 7 - Vijay Gulabrao Shirke regarding recovery of articles from the accused. P.W. 7 has stated in his evidence that at about 6.50 A.M. to 7.00 A.M., one constable met him near the gate of University. He has stated that on 3/11/2007, in his presence, PI Suryawanshi asked accused No.1 his name and address and he also asked him as to what he wanted to state and accused No.1 told him that he had concealed a watch, one finger ring and SIM card of mobile of Jyoti Chaudhary and he would point out the said spot. He has stated that the statement of accused No.1 was reduced in writing by the constable and signatures of panchas and also the signature of accused No.1 were obtained on that statement. This witness then identified accused No.1 -Purushottam Borate and also identified his signature on the memorandum/panchanama at Exhibit-50. He has then stated that accused No.2 was also asked by PI Suryawanshi his name and address and he also asked him as to what he wanted to state and accused No.2 too stated that he would show the place where he had concealed the ear rings and mobile of Jyotikumari in his house. He identified accused No.2 - Pradeep Kokade in the Court and also identified his signature on the memorandum/panchanama at Exhibit-51.76. This witness (P.W.7) thereafter stated that PI Suryawanshi called one jeep and both the accused and panchas boarded the said jeep and the jeep proceeded as per the directions given by both the accused. He has stated that accused Borate pointed out one house and as per his direction the jeep was stopped in front of the said house and, thereafter, accused Borate entered his house in their presence and he went to his bed room and produced one finger ring, watch and SIM card. He has stated that these articles were kept by the police in one paper and wrapped and these articles were sealed and the panchanama was prepared which is at Exhibit-50-A. He has stated that signatures of panchas were obtained on one label and the said label was affixed to the sealed articles and the panchanama was completed at the house of accused No.1 -Borate. He has stated that the finger ring was of gold and the watch was of Titan Company and it had a yellow dial and it was a ladies wrist watch and the SIM card was of Airtel Company. This witness (P.W.7) identified the seized articles in the Court. He has stated that, thereafter, accused No.2 -Kokade asked PI Suryawanshi to take the vehicle near one house and, thereafter accused and panchas entered the house. Accused No.2 thereafter went near a cupboard and opened the door and produced one mobile and a pair of ear rings. He has further stated that police collected those articles in one paper and they were wrapped and a seal was affixed on the said paper and his signature alongwith signature of co-panch was taken on the label which was affixed on the said articles. Panchanama of the said articles which were recovered at the instance of accused No.2 was prepared which is at Exhibit-51-A.He has stated that the mobile handset was of Nokia Company and the model number of the said handset was 1100. He has further stated that ear rings were of gold. P.W. 7 identified the gold ear rings and Nokia handset which were produced in court. Again this witness was cross-examined at length by Advocate Mr. Kawchale and Advocate Mr. A.R. Patil. The suggestions put to him in the cross-examination were denied. P.W. 7 - Vijay Shirke, therefore, has established the recovery of articles belonging to the deceased which were worn by her when she left the house at the instance of accused from their respective houses and these articles were later on identified by P.W. 12 and P.W.13, brother-in-law and sister of the deceased in the Police Station and thereafter in Court. P.W. 12 and 13 also had given description of the articles before identifying them. Prosecution, therefore, has clearly established that the articles belonging to the deceased were found to be in possession of accused Nos.1 and 2 on the next day i.e. on 3/11/2007, one day after the death of Jyotikumari. Prosecution has established that these articles which were recovered at the instance of the accused were worn by the deceased Jyotikumari which fact has been established by identification of the articles by P.W. 12 -Gaursunder and P.W. 13 - Sudhakumari. This circumstance, therefore, further establishes that after committing rape and murder of the deceased, the accused had removed the articles from her body and had concealed them in their houses.77. One other circumstance is the recovery of Odhani at the instance of accused No.1. P.W. 15 - Ankush Tumkar in his evidence has stated that on 4/11/2007, he had accompanied the co-panch Pappu Yeole and accused Purushottam Borate who had stated that he would show the place where he had thrown the Odhani and purse of Jyotikumari. Accordingly, he alongwith co-panch, accused Purushottam and PI Patil went in a jeep and the accused asked them to take the jeep to Somatne Phata. He has stated that at a particular place accused went to the bushes and produced one Odhani from bushes which was saffron in colour and the said Odhani was accordingly seized under seizure memo and it was wrapped in paper and sealed. His signature was taken on label alongwith signature of co-panch and PI Patil and thereafter it was affixed to the article which was seized. The accused then directed the jeep to be taken near the bridge and, thereafter, when the jeep stopped near the bridge, he stated that the purse was thrown from the bridge. This witness (P.W.15) has stated that 2 to 3 fishermen were asked to take search in the water of the river. However, purse was not found. The witness identified the seized Odhani before the Court. The panchanama in respect of seizure of Odhani was proved at Exhibit-96-A. This is one other circumstance which establishes recovery of Odhani at the instance of accused No.1 which belonged to Jyotikumari. This Odhani also has been identified by P.W.12 and 13 as the same Odhani which was worn by the deceased Jyotikumari and they have also stated in their evidence that the deceased was wearing this Odhani when she left the house.78. Prosecution has then established that P.W. 12 and P.W. 13, brother-in-law and sister of the deceased identified Odhani which was seized at the instance of accused No.1. P.W. 26 - Sanjay Bodake has stated that he alongwith his friend Sattyawan Bodake were introduced with two persons viz Gaursunder Prasad and Sudhakumari and PSI showed them one sealed packet and they verified that the seal was intact and it was opened in their presence and in the said packet there was saffron Odhani on which there were blood stains and white stains. He has stated that Gaursunder and Sudhakumari identified the said Odhani as belonging to Jyotikumari Chaudhary. After it was identified by P.W.12 and 13, it was again kept in another packet and the packet was sealed and labeled and panchanama at Exhibit-157 was prepared.79. Similarly, P.W. 5 - Shahaji Babanrao Ghojage has stated in his evidence that he has acted as panch and two relatives of Jyoti were present. There were six packets which were sealed and these packets were opened and the relatives were shown the articles contained therein viz one kurta of yellow colour, salwar of saffron colour, one Bra, one Petticoat, knicker and a pair of sandles. He has stated that the relatives identified these articles as belonging to Jyotikumari. Thereafter, again, these articles were packed and sealed and his signature was obtained on seizure memo. He has identified his signature on the seizure memo which is at Exhibit-45. He identified these articles in Court.80. The next circumstance is regarding CA report. Prosecution has examined P.W. 19 - Dadasaheb Bhimrao Sawane who was a Police Constable. This witness in his evidence has stated that he was working at Talegaon Dabhade Police Station and on 13/11/2007 API R.G. Patil directed him to carry Muddemal to CA which was pertaining to Crime No.167/2007. He has stated that 23 articles in sealed condition were handed over to him and a forwarding letter was given to him by the API and he carried the said Muddemal to CA with requisition letter in sealed condition and he handed over Muddemal to CA who acknowledged the receipt. The requisition letter alongwith acknowledgement is at Exhibit-116. This witness in his cross-examination by Advocate Mr. Kawchale has stated that Muddemal was lying with Muddemal Clerk and he had made entry in the station diary when he received the articles which were to be taken to CA and in the letter which is at Exhibit-116, it was mentioned that Muddemal contains sample of blood, semen and pubic hair of the accused. In the cross-examination by A.R. Patil, he has stated that he was not in a position to say in whose custody the Muddemal was kept prior to 13/7/2007. he has stated that Muddemal Register is maintained with the Police Station. However, he had not brought the Muddemal Register.81. P.W. 27 - Rajendra Ganpati Patil who is the Investigating Officer in his evidence has corroborated the evidence of P.W. 19 - Dadasaheb Sawane. He has stated in para 13 of his evidence that on 13/11/2007, seized articles were sent to CA for analysis with a requisition letter which is at Exhibit-116 and that the articles were sent in sealed condition and the acknowledgement was given by the CA at Exhibit-116 and that these seized articles were sent to CA by the Constable Dadasaheb Bhimrao Sawane (P.W.19). He further stated that CA reports are at Exhibits 166, 145, 99, 100, 101, 102, 103, 167.82. Exhibit-166 is the CA report in respect of 18 articles viz kurta, salwar, knicker, petticoat, brassiere belonging to the deceased, cotton swab, earth wrapped in paper labelled C-2 earth wrapped in paper labelled C-3, Blade, Odhani, Full Jerkin, Cap, Full Pants, Half T Shirt, Underwear, Full Jean Pants with leather belt, Half T Shirt and Underwear. In the CA report it is mentioned that semen of accused Nos.1 and 2 were found on kurta and salwar and on the knicker, semen of accused No.2 was found. Similarly, on Odhani also, semen of accused Nos.1 and 2 was found. Similarly, on blade (Article-9) blood of the deceased was found and her blood was also found on the Odhani.83. Exhibit-167 is the CA report in respect of Indica Motor Car. In the report it is stated that no semen was detected. However, blood of the deceased was found in the car.Exhibit-99 is the CA report in respect of six sealed parcels in which blood, pubic hair, vaginal swab, nails clippings, ligature mark of skin and scratch material on ligature mark of the deceased were sealed. In the nails clippings also blood group B was found and human semen was found on the pubic hair and in the vaginal swab.Exhibit-100 is the CA report in respect of blood of accused No.2 - Pradeep Kokade and it is stated that blood group of Accused No.2 is O.Exhibit-101 is the CA report in respect of blood group of accused No.1 - Purushottam Borate and it is stated that his blood group is A.84. Results of the CA reports establish that deceased Jyotikumari, before she was murdered, was raped and semen of accused Nos.1 and 2 was found on her Odhani and clothes and also in the vaginal swab which was taken by the doctor who performed the postmortem. CA reports, therefore, establish that the deceased was raped and semen of accused Nos.1 and 2 was found in the vaginal swab and also on the clothes which were worn by her.85. The other circumstance which has been established by the prosecution is the scratch material which was found in ligature mark on the neck of the deceased which tallies with the Odhani belonging to the deceased which was recovered at the instance of accused No.1. Exhibit-222 is the CA report in respect of Odhani which was sent to CA. Exhibits-221 and 222 clearly establish that ligature mark and the material which was found on the ligature mark indicated that the Odhani which was at Exhibit-221 and the fiber which was detected on the ligature mark tallies with the fiber cloth from Odhani.86. Prosecution has then examined P.W. 4 - Hanumant Gulab Chavan who was a panch witness in respect of seizure of the vehicle which was used in the commission of the offence. P.W. 4 has stated that the vehicle was Tata Indica of white colour and the number of the vehicle was MH-14-AH-4560. He has further stated that there were papers in the drawer of the vehicle and there were also other papers and sheets of Wipro Company. One sheet was dated 31/10/2007 and it was in the name of Jyotikumari. Another sheet was dated 1/11/2007 on which there was no signature and the police packed these documents, sealed them and obtained the signature of this witness on a label which was affixed on the packet. This witness (P.W.4) identified these seized sheets before the Court. In the cross-examination, this witness admitted that he is a Proprietor of OM Sai Company and that he used to supply vehicles to Mico Company and one Wasim Shaikh was the owner of Mico Company. He has further admitted that there was an agreement between Mico Company and Wipro Company about supply of vehicles. He has further stated that there was written agreement between OM Sai Company and Mico Company and his Company used to supply 16 to 17 vehicles to the said Company. Panchanama in respect of seizure of vehicle is at Exhibit-43.87. Prosecution has examined P.W. 10 - Hiraman Baban Bhandare who has stated that he was the owner of the said vehicle and he had purchased the car in the month of February, 2006. He has further stated that he had purchased the said vehicle for plying it as a taxi. He has produced the RC Book and the xerox copy of the RC Book after verification with the original was brought on record at Exhibit-66. He has stated that on 16/2/2006, he handed over the vehicle to OM Sai Enterprizes for giving it on hire and, accordingly, his car was given through Mico Cars Pvt Limited for hire and further he has stated that accused No.1 -Purushottam Borate was the driver of his vehicle for a period of one month. He has then stated that his car was given to Wipro, BPO Company, Hinjewadi, Pune by Mico Cars to carry their employees and the said car was with the Wipro Company till the date of the incident. P.W. 10 has stated that Purushottam Borate left the job as driver and, thereafter, he engaged one Manoj Gade as driver. He also left job after two months and he used to ply his own vehicle and on 24/10/2007, he engaged accused No.1 - Purushottam Borate again to drive the said vehicle. He then stated that he used to pick up and drop four employees of Wipro Company in his car and he and Purushottam Borate used to work in shifts. He has then stated that the procedure which was followed for picking up employees of the Company. He has stated that the Company used to give written information about employees to him one day prior to the pick up and drop and this information was provided in a chart in which mobile number of employees was also mentioned. He has stated that the driver used to give missed call to the concerned employee from the mobile which was supplied to him by Om Sai Enterprizes.He has then stated that as per the rule of the Company if the female employee was to be picked up then a duty was cast on the driver to pick up male employee first and otherwise if the first pick up was of female employee then to take a security guard alongwith driver. He has stated that it was the duty of the driver to follow the rules and it was his duty to pick up the security guard. He has then stated that from 24/10/2007 to 28/10/2007, he has plied his own vehicle during night shifts and during that period accused No.1 used to drive the vehicle in day-shift and on 29/10/2007 shift changed and he used to drive the vehicle during day time and accused No.1 used to ply the vehicle during night time from 29/10/2007. He has then stated that on 1/11/2007, accused Purushottam Borate returned the vehicle to him at 11.30 A.M. after night duty. He has further stated that the vehicle was taken by him at 8.30 P.M. on that day and he was pleased to return the vehicle on 2/11/2007 at about 11.00 A.M. This witness has stated that on the next day on 2/11/2007 since accused No.1 did not return the vehicle, he gave him a phone call on the mobile which used to remain in the vehicle and the driver Purushottam came to him at 12.30 P.M. Since inquiry was made regarding pick up of Jyotikumari Chaudhary from Wipro Company, he handed over phone to accused No.1 and, thereafter, accused No.1 told the Security Officer that the madam would not come and that he had been to her house.P.W. 10 has then stated that he asked the accused who was the second pick up and he was informed that Sagar Bidkar was the second employee. P.W. 10, therefore, contacted Sagar Bidkar on his mobile and he asked him what had happened at the time of pick up of Jyotikumari Chaudhary. He was informed by Bidkar that accused had told him that madam Chaudhary would not come and also told him that tyre of the vehicle was punctured. Mr. Bidkar also informed him that there was one man with the driver Purushottam. According to P.W. 10, when he made inquiries with Purushottam Borate about his friend, Borate - accused No.1 told him that the name of his friend was Shankar. He has then stated that he went to Company at 1.45 P.M. and after the Officer of the Company made inquiries, he took accused Purushottam to Chatushringi Police Station. This witness has also been cross-examined at length. However, despite searching cross-examination, evidence of this witness has not been shaken. A suggestion was put to this witness that he alongwith unknown driver and Officers of Wipro Company had committed murder of the deceased. Evidence of this witness is very significant. He is the owner of the vehicle which was used to pick up employees of the Company. He has deposed that Purushottam Borate was engaged by him as a driver. He has stated that Sagar Bidkar had informed him that there was one man of Purushottam Borate in the vehicle on that night and Purushottam Borate had given a false information that name of his friend was Shankar. P.W. 10 - Bhandare also has given rules which were to be followed by the Company namely of keeping security guard present if the first pick up was of a female employee and that responsibility was on the driver.He has stated that driver Purushottam had delivered the said vehicle to him on the next day at 12.30 P.M. on 2/11/2007. The chain of circumstances regarding custody of the vehicle being with accused No.1 has been established by this witness and, therefore, he is the last witness who deposed that Purushottam Boarate (Accused No.1) was employed by him as a driver who was to pick up Jyotikumari Chaudhary on 1/11/2007 in the said vehicle and it was his duty to keep a security guard in the vehicle since he was to pick up Jyotikumari first and instead of that he had kept a friend namely accused No.2 whose name was falsely given as Shankar. P.W. 10 - Bhandare has also stated that Sagar Bidkar had informed him that accused No.1 had informed him that the tyre of the vehicle was punctured. This witness in his cross-examination has stated that in the sheets of the Wipro Company which are at Exhibits-67 to 69 his name has been mentioned as driver of the vehicle. He has given explanation that since the sheets had to be given in advance, he used to mention his name and distance while filling up the sheets and, therefore, his name has appeared on Exhibits-67 to 69 and the Company had already calculated distance of 44 k.m. which was mentioned by him in every sheet. Merely because name of P.W. 10 has been mentioned in the sheets, it cannot be established that he was driving the vehicle or had driven the vehicle during night-shift on three days in view of the other evidence which has come on record. P.W. 10 has also established that the vehicle was given to accused No.1 on 1/11/2007 at 8.30 P.M.88. Prosecution has then examined P.W. 9 - Bashir Dastagir Shaikh for the purpose of establishing the presence of accused No.2 alongwith accused No.1 in the vehicle on that day. P.W.9 in his evidence has stated that he is having chicken shop and it is known as Bashir Chicken Centre. He has stated that he knew accused No.2 Pradeep since he resides near his house. He identified accused Nos 1 and 2. He has stated that on the date of the incident, accused No.1 was a driver on the Indica Car, number of which was mentioned by him in the evidence. He has stated that at about 8.00 to 8.30 P.M., he had purchased certain medicines and he alongwith Rahul and accused Pradeep Kokade were talking with each other with accused No.1 Purushottam Borate came in Indica Car and at that time he was alone in the vehicle and he picked up Pradeep alongwith him and went away. In the cross-examination, this witness (P.W.9) has admitted that he is not conversant with the English language and he could neither read nor write English. He also admitted that he did not know Marathi and could not read or write in Marathi. This witness could not read the number which was written by the Counsel for the accused. The Trial Court, however, in our view, has rightly relied on his evidence of having seen accused No.1 driving Indica car and accused No.2 accompanying accused No.1 in the said car at 8.30 P.M. on 1/11/2007. Merely because this witness was unable to read the number which was written by the Counsel for the accused that cannot be a ground for discarding his entire testimony. It is possible that this witness may have made improvement regarding number of Indica Car, however, this witness who was a friend of accused Nos.1 and 2 had no reason to give false evidence that accused Nos.1 and 2 were seen by him at 8.30 P.M. in the night when accused No.1 was driving a white Indica Car. He has also stated that the number plate was yellow. Therefore, even if the witness may not have remembered number of the said car, he has given rest of the details which further establish another chain in the chain of circumstances.89. The other circumstance which establishes that accused No.1 was driving the vehicle is the evidence of P.W. 17 -Amol Ramchandra Mugade has stated that he joined the service at Denta Force Company as security and was sent to Wipro Company at Hinjewadi as Security Supervisor. He has further stated that on 1/11/2007, he had a night shift and Anil Pawar, Bharat Shinde, Bhagwat Vanare, Ganesh Nikam were security guards. On 2/11/2007, at about 1.00 a.m., accused No.1 - Purushottam Borate, driver of Cab No.535 came to him with a roster of the vehicle. He told him that scheduled time to enter the vehicle was 11.00 P.M. and he was asked to show that the vehicle had entered at 11.00 P.M. He, however, refused to make a false entry and mentioned in the roster that the vehicle had arrived at 1.00 A.M. and he signed the roster at Exhibit-68. He also identified accused No.1 in the Court. In the cross-examination, he admitted that the work to check identity cards of Cab drivers was given to Bhagwat Vanare and he did not remember whether Purushottam Borate was having identity card of Wipro Company. No significant material has been brought on record in the cross-examination of this witness and his testimony of having seen accused No.1 driving white Indica Car on the said day has been established. He has also brought on record the endorsement which was made by him about entry of the vehicle at 1.00 A.M. and also the request made by accused No.1 of making a false entry that vehicle had arrived at 11.00 P.M. and not at 1.00 A.M. He has also stated in his evidence that accused No.1 went away with the vehicle. The chain of circumstances in respect of accused No.1 being in possession of the vehicle from 8.30 P.M. on 1/11/2007 to 1.00 A.M. on 2/11/2007 when he dropped Sagar Bidkar (P.W.11) has been established by this witness and it is also established that accused No.1 took away the vehicle after the entry was made in the roster at Exhibit-106 and extract of which is at Exhibit-68.90. Prosecution has examined P.W. 29 - Ganesh Ramrao Pawar in order to bring on record call details in respect of mobile phone number 9960621120 used by deceased Jyotikumari Chaudhary and the call details are at Exhibit-90. P.W. 29 has stated that he was working as Assistant Nodal Officer of Airtel Company from June, 2007 and, at the relevant time, Vijay Shinde was working as Nodal Officer. He has stated that Vijay Shinde left the employment of Airtel Company and the authorized Nodal Officer is the only person who has access to the server. He has further stated that the information regarding incoming and outgoing calls of the Company is stored in the server of the Company and this information is automatically stored as soon as the calls are made and there is no human intervention in this process and for getting the information about incoming and outgoing calls, the authorized Nodal Officer has to enter the password in the server and then such information is retrieved. The password of the server of the Company is only with the authorized Nodal Officer of the Company and on the date of the incident, he was helping the Nodal Officer Shri Vijay Shinde. He has further stated that the Airtel Company was using the Oracle Data Base System for preserving the data of the phone calls and in the year 2008, there was no Indexing System with Airtel Company and, therefore, data of the phone call which used to be retrieved was not received in ascending and descending form and only from 2009 onwards, Indexing System was installed by the Airtel Company. He then stated that each mobile instrument has unique International Mobile Equipment Identity number (IMEI).He has then stated that IMEI number of cell phone is of 15 digits and out of that first 14 digits are unique to that mobile phone and the first 14 digits are automatically stored in the server of the Company and the 15th digit of IMEI number is stored as zero and that this system is uniform to all the service providers. He has then stated that on 29/1/2008, Airtel Company received a request letter from Talegaon Dabhade Police Station to provide name and address of the subscriber as well as call details of mobile phone No.9960621120. He has then stated that as per record of the Airtel Company, mobile phone number was in the name of Sudhakumari and the call details were then supplied to the police alongwith the covering letter. The aid covering letter is at Exhibit-118 and the certificate is at Exhibit-119. He has stated that these call details were retrieved from the server in his presence by Shri Vijay Shinde who was the then Nodal Officer. He has then stated that entry at Serial No.16 at Exhibit-90 showed that there was outgoing call from mobile phone of Jyotikumari to the mobile Phone No.9975558535 and duration of the call was eight seconds and this call was made at 10-20-26 P.M on 1/11/2007 which tallies with the evidence given by P.W. 12 that Jyotikumari after she made call to the mobile which was in possession of accused No.1 informing him that she was coming down to get into the cab.The next entry at Serial No.6 from call details at Exhibit 90 is in respect of incoming call received by Jyotikumari from mobile phone No.9986233097 which is the phone number of Jeevan Baral (P.W.14). This witness (P.W.29) has stated that the phone call was made at 10-31-10 P.M on 1/11/2007 and duration of that call was 406 seconds. He has then stated that entry at Sr No.17 from call details at Exhibit-90 is regarding incoming call to mobile phone of Jyotikumari from mobile phone of Jeevan Baral (P.W.14) and, according to the said entry, the call was made at 10-38-28 P.M. on 1/11/2007 and duration of that call was 1422 second that is for about 23.7 minutes. This evidence therefore clearly corroborates with the evidence of P.W.14 that he had made two phone calls one at 10.30 P.M. and the other at 10.38 P.M. which lasted for about 24 minutes till about 11.00 P.M. when the phone call was switched off. In the cross-examination, he has admitted that if a call is made on mobile phone then the signal first goes to the tower of the locality where the mobile phone holder is present and then it comes to the server. He has sated that, he is unable to tell location of main server of the Company in the year 2007 and inward and outward register is maintained in the Company which was not brought by him in the Court. He has admitted that letter from Sub-divisional Police Officer dated 29/1/2008 was received by the Company and that entry at serial No.1 at Exhibit-90 showed that there was incoming call on the mobile number of Jyotikumari from mobile number of Jeevan Baral (P.W.14). Despite the said cross-examination by the Counsel for the accused, testimony of this witness, in our view, has not been shaken at all.91. Prosecution has then examined P.W. 18 - Kishor Vasantrao Ghadge Naib Tahsilar for establishing test identification parade held by him on 14/1/2008 in which P.W.12 identified both the accused. Prosecution through evidence of P.W. 18 has brought on record identification parade panchanama at Exhibit-114. P.W. 18 during his deposition gave graphic account of what was happened on the date of test identification parade and the manner in which he has held the test identification parade. He has also deposed regarding the date on which he has received the request letter for holding the test identification parade in the instant case. Thus, evidence of P.W. 18 also explains the delay which had occurred in conducting the test identification parade and so also the error occurred in mentioning the date in the test identification parade panchanama. Though this witness was extensively cross-examined on behalf of the defence, after careful perusal of the entire deposition of this witness, we are unable to persuade ourselves to accept that his evidence was shaken in any manner due to elicitation of any particular answer during cross-examination. Since during the evidence of P.W. 12, it has already come on record that P.W. 12 by then was knowing the name of the driver of the said car and his friend namely Pradeep, we do not propose to dilate in detail about the evidence of P.W. 18 and propose to deal with the defence criticism while dealing with the relevant submissions canvassed.92. Apart from independent charge of conspiracy which was framed against accused under section 120-B, the additional charge is also framed in respect of each of the individual offences under section 302, 276, 404 and 364 of the Indian Penal Code. Taking into consideration the testimony of the prosecution witnesses who were examined by the prosecution, in our view, prosecution has established beyond the reasonable doubt that there was a conspiracy on the part of accused Nos.1 and 2 to abduct the victim from her house and then to take her to a secluded spot for the purpose of committing rape and to commit murder so that the victim does not report commission of the offence to the police. This is evident from the deposition of P.W. 9 - Bashir Shaikh, P.W. 12 - Gaursunder Prasad, P.W. 13 - Sudhakumari Gaursunder, P.W. 14 - Jeevan Baral and P.W. 11 - Sagar Bidkar. Evidence of these witnesses reveal that there was a prearranged plan between accused Nos.1 and 2 to commit the said offence. The accused No.1 was on the night-shift to pick up employees of Wipro BPO, Hingewadi and was aware that on that date the first employee who was to be picked up was the victim Jyotikumari and though he was aware that it was the duty of the driver to take a security guard from BPO office in the case of first female pick up, even then the accused No.1 took his friend accused No.1 - Pradeep, gave a missed call to Jyotikumari and picked her up from her residence. Though both the accused were seen by P.W. 12 that did not deter them from executing their prearranged plan. Accused No.1 while using deceitful means induced the deceased to sit in the car though the car was being taken to a different place by giving a false explanation that the car was being taken beyond Hinjewadi to pick up another person from Nigdi. On account of the false explanation given by accused No.1, deceased Jyotikumari did not raise any hue and cry.Thereafter, when the car was taken to a lonely road, again the victim protested and accused No.1 again made a false representation that he was taking that road since the usual road was bumpy and rough. Accused Nos.1 and 2 were aware that the deceased was having a talk with her friend on her mobile and even then undeterred by the said fact, they switched off her phone and committed heinous act of rape turn by turn on the victim and, thereafter, murdered her in a most brutal manner. The prearranged plan and conspiracy is further established from the fact that after committing the said heinous offence, duo coolly went to pick up P.W.11 - Sagar Bidkar. Another circumstance which clearly establishes conspiracy and prearranged plan of the accused can also been seen from the fact that, possibly, while the said offence of rape and murder was being committed, accused No.1 kept on giving a false explanation to P.W. 11 - Sagar Bidkar about the reason for delay. He informed P.W. 11 that the tyre of the vehicle was punctured and, therefore, there was delay in picking him up. From the evidence of P.W.11, it can be seen that ultimately at 12.45 A.M. accused No.1 took the vehicle to the residence of P.W. 11 - Sagar Bidkar and even at that time accused No.2 was present on the backseat of the car. P.W. 11 also has observed that though accused No.1 was calm and quiet, accused No.2 was a little frightened. There is further evidence of tacit agreement between accused Nos.1 and 2 which can be gathered and inferred from the fact that when the car reached BOP Office, accused No.2 got down from the vehicle and accused No.1 persuaded Bidkar to make a false entry giving a false reason for the delay caused in reaching the office.From the evidence of Security Officer P.W. 17 - Amol Mugade, it can be seen that accused No.1 further tried to persuade the Security Officer to make a false entry that the car had reached on time. The said conduct of accused Nos.1 and 2 clearly reveals the prearranged plan. Though it is difficult to come to a definite conclusion that the said plan was hatched, the circumstances established by the prosecution proves that there was a tacit understanding between the two firstly in order to give false sense of security to the victim Jyotikumari, accused No.2 accompanied accused No.1 in the vehicle and he was sitting on the backseat, possibly to give an impression that he was either a security guard of the Company or to give a false sense of security to the victim that there was one other person present in the car. Secondly, as is evident from the evidence, accused No.2 sat on the backseat to ensure that in the event the victim Jyotikumari did not accept the false explanation given by accused No.1 of taking the car beyond Hinjewadi and made an attempt to raise hue and cry, accused No.2 could overpower her. Further, evidence of conspiracy can be gathered from the fact that accused No.2 was picked up at 8.30 P.M. itself after the accused No.1 took delivery of car from P.W. 10 - Bhandare.Another circumstance which also clearly establishes that there was tacit agreement between the two accused, can be seen from the evidence of P.W. 10 who has stated in his evidence that when he inquired about friend of accused No.1, he falsely informed him that his name was Shankar and thus tried to hide the identity of accused No.2. Accused Nos.1 and 2, therefore, in accordance with their prearranged plan committed an offence of abduction, rape and murder though they were seen by P.W. 12 - Gaursunder Prasad and though they were aware that victim Jyotikumari was speaking continuously on mobile phone with Jeevan Baral (P.W.14). All these circumstances, therefore clearly reveal that there was prearranged plan to commit the said offence and the accused were not deterred by the fact that they were seen by P.W. 12 or their names were disclosed by victim Jyotikumari to P.W. 14 when she was being abducted by them. Further inference about conspiracy can be drawn from the fact that after committing the said ghastly act of commission of abduction, rape and murder, they removed valuable articles of the deceased and divided the booty among themselves and kept the articles in their houses and disposed of other articles such as Odhani and purse after removing the valuables from the said purse.93. In our view, taking into consideration the ratio of the judgment of the Apex Court referred to in para 58 hereinabove and the settled law on this point, we have no manner of doubt that the prosecution has established the case of conspiracy beyond the reasonable doubt and, therefore, Trial Court has rightly convicted the appellants/accused for the offence of conspiracy independently and also alongwith other individual offences committed by them.94. So far as the admissibility of evidence under section 8 of the Evidence Act and section 32 of the Evidence Act in respect of deposition given by P.W. 14 - Jeevan Baral regarding conversation between him and the deceased Jyotikumari is concerned, it is necessary to take into consideration the provisions of section 8 of the Evidence Act which read as under:-"S.8. Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.Explanation 1.-The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.Explanation 2.-When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant."Perusal of the said provision clearly reveals that all such facts which point out to the preparation etc are admissible. Similarly, under section 32 of the Evidence Act any statement made by the deceased and heard by another person would be admissible and would not be hit by the rule of hearsay evidence. In the present case Call Log record which has been brought on record at Exhibit 90 by P.W. 29 clearly reveals that P.W. 14 had made telephone call on mobile of victim and she was continuously talking to her while she was being driven by the accused No.1 in the Indica Car. P.W. 16 - Dr. Madhav Waghmare has stated in his evidence that age of the injury was about 13 hours prior to the postmortem. The postmortem was performed on 2/7/2007 at 3.30 P.M. and if the said time is calculated, it would reveal that the said injuries were caused to her on the previous night between 11.00 P.M. to 12.00 midnight. Call record and the evidence of P.W. 14 reveals that he was having talk with her between 10.30 P.M. To 11.00 P.M. on 1/11/2007. The conversation between the deceased and the witness P.W. 14 therefore was more proximate in point of time prior to her death which took place at about 12.00 midnight and, as such, conversation between the deceased and P.W. 14 on the mobile phone is relevant and admissible under the provisions of section 32 sub-clause (1) of the Evidence Act.95. Prosecution, therefore, has established each and every circumstance and which unerringly points towards the guilt of accused Nos.1 and 2 and from the said evidence it is not possible to come to any other conclusion except holding that the accused has committed the said offence96. Once the chain of circumstances has been conclusively established by the prosecution, burden of proof shifts on the accused in so far as facts which are within the knowledge of the accused are concerned under the provisions of section 106 of the Evidence Act. Section 106 of the Evidence Act reads as under:-"S. 106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."97. In the present case, the accused have put in a defence of denial. No evidence of whatsoever nature has been led by the accused to point out that the deceased was not in their company on the fateful night. They have not examined any witness to establish that there was puncture in one of the tyres of the car and they stopped it to repair the said tyre. No explanation also has been given by the accused in their statement under section 313 of the Cr.P.C. The accused, therefore, have miserably failed in discharging the burden which was cast on them and that would be an additional circumstance which will have to be taken into consideration against the appellants/accused.98. We, therefore, concur with the findings recorded by the Trial Court on the question of conspiracy and also in respect of chain of circumstances which has been established by the prosecution.99. We may now deal with the submissions which are made by the learned Counsel appearing on behalf of the appellants/accused which have been elaborately referred to by us in paras hereinabove. Before we refer to the said submissions of the learned Counsel appearing on behalf of the appellants/accused, it has to be seen that apart from raising defence of denial during the cross-examination of various witnesses, various suggestions have been made to the witnesses. It was suggested to P.W. 12 - Gaursunder Prasad that, in fact, he had committed murder of Jyotikumari and had conspired with other unknown accused. Somewhat similar suggestion was made to P.W. 14 - Jeevan Baral that possibly he was the perpetrator of the offence. A suggestion was also made that one Arunkumar may have also committed the said offence. A similar suggestion was made to P.W. 10 - Hiraman Bhandare, the owner of the white Indica Car which was used as taxi that he alongwith Security Officer of Wipro Company had committed the said offence. Apart from making these suggestions, the learned Counsel appearing on behalf of the appellants/accused seriously challenged the manner in which the identification parade has been held by P.W. 18 - Kishor Ghadge, Naib Tahsildar. So far as the test identification is concerned, firstly it has been submitted that signature of panchas was obtained on the blank paper and subsequently the panchanama was handwritten. It has been submitted that the panchas had signed on 14/1/2008 and in the panchanama it was mentioned that the panchanama was signed on 16/1/2008. It has been submitted that the ink on each page was different and lastly the Counsel for the accused submitted that space between the two lines had changed and this was done to ensure that the contents of the panchanama are squeezed in such a way that they could be written just above the signatures of the panchas.It has also been contended that ink on each page was different. It is not possible to accept the said submission made by the learned Counsel appearing on behalf of the appellants/accused. As rightly pointed out by Mrs Revati Mohite Dere, the learned Public Prosecutor that the Naib Tahsildar had explained that he had committed an error in mentioning the date 16/1/2008 and that he realized this mistake when he saw the panchanama in court. In our view, explanation given by the Naib Tahsildar is a plausible explanation and the said mistake could have been inadvertently crept in and there was no reason for the Naib Tahsildar to have noticed the said mistake earlier. It will not be possible on the basis of the said mistake to jump to the conclusion that the said panchanama was in fact written on 16/1/2008. The submission, therefore, made by the learned Counsel for the appellants/accused is without any substance. We have perused the panchanama. We, initially, were shown the xerox copy of the panchanama. We, therefore, called for the original record and examined the original panchanama and we found that there is no difference of ink which was used in writing the said panchanama. The ink which was used by panchas for signing the panchanama is different which is possible because panchas may have signed with their own pens and, therefore, no inference can be drawn that the signature was obtained on the blank pages and thereafter the panchanama was prepared.100. The second objection regarding holding of the test identification parade is that the procedure which is laid down under the guidelines of the Criminal Manual was not followed by the Naib Tahsildar who had conducted the test identification parade. Reliance was placed on guideline No.2(h). It has been submitted that under the said guideline, it is specifically mentioned that in the event the appearance of the two accused is diametrically different then in such cases two different identification parades should be held. It has been submitted that accused No.1 was having dark complexion whereas accused No.2 was having fair complexion. It has been submitted that Naib Tahsildar (P.W.18) in his evidence has taken that 12 dummies of both the complexions were taken. It has been submitted that there was no material to show that the said statement was correct. In our view, there is no substance in the said submission. Naib Tahsildar (P.W.18) in his evidence has given elaborate details regarding the manner in which the test identification parade has been held. We are fully satisfied that there is no irregularity by the Naib Tahsildar in holding the test identification parade and P.W. 12 -Gaursunder Prasad identified the said accused in the identification parade.101. One other objection which has been taken by the learned Counsel appearing on behalf of the appellants/accused is regarding the delay in holding the test identification parade. It has been submitted that the accused were arrested on 3/11/2007 and identification parade was held on 14/1/2008. It has been submitted that there was delay of more than three months. This submission is also without any substance since explanation has been given by the Investigating Officer (P.W.27) regarding the delay which was caused in the test identification parade. He has stated that he has immediately sent request letter to Naib Tahsildar on 19/11/2007 to hold identification parade and he was informed by Naib Tahsildar that since he was busy, the said parade could not be held. The investigating Officer, therefore, again wrote a letter to Naib Tahsildar on 26/11/2007 and 7/1/2008 and, finally, when the Naib Tahsildar was free, identification parade was held. Naib Tahsildar - Kishor Ghadge (P.W.18) also in his evidence has reiterated the said fact and has explained that he could not held the identification parade earlier. The objection raised by the learned Counsel appearing for the appellants/accused to the delay in holding of the test identification parade cannot be entertained and accepted.102. In our view, there is no discrepancy or irregularity or illegality committed by Naib Tahsildar in holding the test identification parade. In our view, even otherwise even if the said evidence regarding identification of the accused by P.W. 12 in test identification parade itself would not be very relevant since the witness knew the accused and had learnt their names when the investigation was going on as the P.W. 12 had an occasion to properly see the accused for 5 to 10 minutes when they had picked up the deceased Jyotikumari and he had seen them in the street light on that date. Investigating Officer (P.W.27), however, may have thought it fit to hold the test identification parade to satisfy his own doubt. The law on this point is quite well settled.103. The next submission which has been made by the learned Counsel appearing on behalf of the appellant is regarding the arrest of the accused and the manner in which the articles have been recovered at the instance of the accused under section 27 of the Evidence Act. It has been submitted that the accused were arrested on 3/11/2007 at about 11.30 A.M. and articles were seized at their instance by panchanama dated 3/11/2007 which was prepared at 7.30 A.M. It has been submitted that the said recovery, therefore could not be held to be recovery under section 27 of the Evidence Act since the accused were not arrested. The said submission, in our view, is without any substance. It has to be noted here that the Panch witness P.W. 7 - Vijay Shirke in whose presence recovery has been made, has clearly stated that accused were taken in the jeep of the police alongwith PI Suryawanshi and the panchas and the accused went one by one to the respective homes of the accused and in the presence of panchas and Investigating Officer, showed the place where the said articles were hidden by them and they were thereafter seized and sealed by them. It is a well settled position in law that for the purpose of arrest of the accused though, normally, arrest panchanama is made at the subsequent time, the moment the accused is in control and custody of the police, he is deemed to be arrested. Section 46 of the Criminal Procedure Code reads as under:-"46. Arrest how made.- (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action:(Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.)(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.((4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made)." Keeping in view the aforesaid provision and taking into consideration the statements of the panch witness, it can be seen that the accused were in the custody of the police from 5.30 A.M. in the morning of 3/11/2011 and, therefore, though, formally, the arrest panchanama was made at 11.30 A.M., they were in the custody of the police since morning and the Investigating Officer has given an explanation by stating that the recovery was made at the instance of the accused earliest in order to ensure that the said articles are not removed by any one. The said explanation is a plausible explanation and the Investigating Officer clearly disclosed his presence of mind in immediately taking the accused to the place where they had hidden the articles belonging to the deceased. The said submission, therefor, is without any merit and cannot be accepted.104. It has been then stated that the accused were, in fact, arrested on 2/11/2007 though they were shown to be arrested on 3/11/2007. The said submission is only required to be stated before being rejected. There is no material on record to show that the accused were, in fact, arrested on 2/11/2007 or they were in the custody of police throughout the night on 2/11/2007. P.W. 10 - Bhandare has stated that he had taken accused No.1 - Purushottam to the Police Station on 2/11/2007. However, there is no evidence on record to suggest that the accused continued to remain in the custody of the police on 2/11/2007.105. The learned Counsel appearing on behalf of the appellants/accused, then attacked the manner in which the articles were sent to the Chemical Analyser. It has been submitted by Mr. Kate the learned Counsel appearing on behalf of the appellants/accused that the Constable who took the articles to the CA, in the cross-examination has stated that he did not bring the Muddemal Register. It has been submitted that it was incumbent for the police to have maintained the Muddemal Register and to have made entry in the said Register. It has been submitted that since Muddemal Register was not prepared, there was no material to show where the said articles were kept by the police before they were sent to CA. Our attention was also invited to the letter of requisition which was written by the police to the CA and it has been submitted that there was discrepancy in the dates which are mentioned in the said covering letter. In our view, there is absolutely no substance in the said submission. The defence could have called for the Muddemal Register. Police Constable who was a carrier of the Muddemal articles has, in his cross-examination, stated that he had not brought Muddemal Register to the Court. If the defence wanted to establish that no entry was made in the Muddemal Register, the defence could have called for the Muddemal Register. This has not been done and, therefore, it is not now open for the accused to contend, without calling for the Register that, in fact, no Register was maintained. Such inference cannot be now drawn by the accused.106. From the evidence of panch witnesses, it can be seen that at every stage the said Muddemal was wrapped in a paper and sealed. Even the panch witnesses who were present at the time of identification of the articles by relatives of the victim Jyotikumari, viz P.W. 12 Gaursunder Prasad and P.W. 13 - Sudhakumari Gaursunder, have stated that when they came there for identifying the articles, the seal was removed and the articles were identified and, thereafter, again, the said articles were wrapped in a paper and resealed and their signatures were again taken. Similarly, objection in respect of alleged discrepancy regarding dates on the covering letter also is required to be stated for the purpose of rejecting the said objection as the alleged discrepancy has been explained by the learned Public Prosecutor.107. It has been then contended that the covering letter which was sent along with Muddemal articles disclose that 23 articles were sent. It has been submitted that, however, report of the CA indicates that only 16 articles were received by the CA. In our view, there is no substance in the said submission. Perusal of the covering letter indicates that number of articles were kept in one packet containing number of such packets and total number of such packets therefore could have been 16. Some of these articles were kept in a sealed file particularly blood of the accused and other articles were kept in other packets. The said submission also is, therefore, without any substance.108. The learned Counsel appearing on behalf of the appellants/accused then submitted that the statement of P.W. 14 - Jeevan Baral was recorded after a lapse of 10 days and that no explanation whatsoever was given by the witness as to why he reached late. It has been submitted that though tower records were made available to the police the said tower records were not brought on record. It has been submitted that the tower record could have established the place from where P.W.14 had made telephone calls to the deceased. It has been submitted that if tower records had revealed that phone calls were made from Pune to the deceased then it could suggest that there was a possibility that P.W. 14 - Jeevan Baral himself might have been responsible for the commission of the said offence. The said submission, in our view, is without any substance. P.W. 14 in his evidence has stated that after he came to know about death of Jyotikumri, he was depressed and did not eat foot for two days and was required to be hospitalized. The said explanation is absolutely plausible. The witness (P.W.14) in his evidence has stated that he was in love with the deceased and knew her since his childhood. He had made telephone calls to her on the earlier night and had talked to her practically till 11.00 P.M. after which the phone was switched off. He was genuinely concerned about her safety and had tried to contact Pune Police Control Room. He has also contacted sister of the deceased at Delhi and on the next date contacted P.W.13 - Sudhakumari. This discloses that he had taken all possible steps to find out what had happened to the deceased after her phone was switched off. It is natural that after having learnt about the death of the deceased, he might have blamed himself for not having been in a position to save her life. Delay, therefore, caused in recording his statement after 10 days has been satisfactorily explained. Further, merely because the tower records were not brought on record, no inference can be drawn against the prosecution.109. It has been then submitted that no reliance could be placed on the recovery of dupatta (Odhani) at the instance of accused No.1. It has been submitted that though accused No.1 had disclosed the place where he had kept the articles of deceased on 3/11/2007 itself, there was no reason why he would wait for a period of one day i.e. till 4/11/2007 to show where the said dupatta was kept. Secondly, it has been contended that the said dupatta was recovered from the open space which was accessible to the public. Both these submissions cannot be accepted. It has to be noted that so far as the recovery of articles at the instance of accused No.1 is concerned, they were made before he was formally arrested and taken in custody on 3/11/2007 at 11.30 A.M. Possibly, during interrogation, after he was taken in custody, he must have disclosed the place where he had thrown the dupatta. Secondly, the dupatta was thrown behind the bushes and, as such, it cannot be said that this place was accessible to the public at large. Thirdly, it has to be noted that the said dupatta was thrown by the accused after coming from the place where they had committed the offence and while going towards house of P.W. 11 - Sagar Bidkar. The said dupatta, therefore, was thrown while returning and it was on their way while they were going towards the house of P.W. 11. Therefore, the said submission is not acceptable.110. The learned Counsel appearing on behalf of the appellants/accused also challenged the veracity of evidence of P.W. 12 - Gaursunder Prasad and P.W.13 - Sudhakumari Gaursunder. He has pointed out how the evidence given by P.W.12 and 13 was not probable and also commented on the conduct of P.W.12. We are unable to accept the said submission. P.W. 12 has given reliable, cogent and trustworthy evidence and his conduct is most natural of taking the child to the ground floor to see her (Jyotikumari) off which is perfectly a normal phenomena.111. It has been then contended that there was discrepancy in the IMEI Number and Model Number of the mobile of the deceased Jyotikumari. This submission is also without any merit. The Nodal Officer of Airtel Company viz P.W. 29 - Ganesh Pawar has given an explanation that the first 14 digits are unique and the last digit is always zero and, therefore, though last IMEI number was 2 it was shown as 0 in the records. Similarly, this witness (P.W.29) has stated that Model Number was 1100, though, in fact, the number is 1108. This also is a minor discrepancy and the said discrepancy could have been crept in because it is possible that last digit might have been read as "0" instead of "8". The model number is found inside the mobile and it is written in very small numbers and he might have to stretched his eyes to see the said model number which is written next to IMEI number. It is possible that witness might not have properly noticed the last digit 8 and might have mentioned it as 0. The said discrepancy, therefore, cannot be said to be material discrepancy to discard the evidence in respect of recovery of mobile phone at the instance of accused No.2.112. It has been then contended that there was no material on record to indicate that the deceased was raped. It has been submitted that there was no injury to her private parts and more particularly there was no injury found on the Labia Majora and Labia Minora. It has been submitted that P.W. 16 - Dr Madhav Waghmare who performed post-mortem, initially did not give opinion that the deceased was raped before she was murdered and the said opinion was given only after CA report was received. It has been submitted that the doctor had given an interview to the newspaper in which he had stated that he had not noticed any signs of rape on the victim. There is no merit in the said submission. Doctor (P.W.16) who performed the postmortem has clearly stated that he had suspected that the deceased was raped and then murdered. However, he thought it fit to obtain CA report and deferred his opinion till the receipt of CA report and only after CA report was received, he has given his opinion about rape. Secondly, mere absence of injury on private parts cannot be a ground for coming to the conclusion that there is no rape. If a victim is threatened and does not offer resistance, even in such cases no injuries are found on private parts.The victim was taken to a remote and uninhabited place. Two grievous injuries were found on her wrist. A blade was recovered from the spot. It is highly probable that she might have been threatened with a blade or some other instrument and, therefore, she might not have offered resistance which would explain absence of injuries on her private parts. It has also been contended that so far as the vehicle is concerned, P.W. 4 - Hanumant Chavan has admitted that there were no blood stains in the car. It has also been contended that there was no corroborative evidence to prove that the sheets which were recovered from the car which are at Exhibits 67 to 69 are true and correct since the truthfulness of the said sheets was not verified by the Company. In our view, this can hardly be called as material since it has been established that the victim was in the car along with driver accused No.1 Purushottam and one other person viz Pradeep - accused No.2 and this was witnessed by P.W.12. Her presence in the car also has been corroborated by P.W. 14 - Jeevan Baral who has heard the victim taking names of accused Nos.1 and 2. As we have pointed out earlier that the prosecution has to establish its case beyond the reasonable doubt and the said expression does not mean that there should be absence of doubt and, at the same time, doubt which is raised should not be fanciful and should not be in the form of conjectures and surmises.

Decision:
1[ds]The learned Counselhas urged that an opportunity was not given to the accused of being heard and, as a result, they were deprived of their right of free and fair trial.In our view, the said submission cannot be accepted. It is a matter of record that advocate Mr Kawchale who was engaged by the accused has effectively represented the accused and had conducted the trial andnumber of witnesses. However, during pendency of the trial on account of the order passed by the Bar Council of MaharashtraGoa, his Sanad was suspended. He has preferred appropriate proceedings challenging the said order passed by the Bar Council and the said proceedings are pending. He, however, obtained discharge from the Trial Court in June 2011. The accused, therefore, were aware that they had to engage another advocate in June, 2011 itself. Pursuant to the application filed by the accused, this Court had expedited hearing of the trial and had further directed the Trial Court to dispose of the trial within a time bound schedule. Thereafter, accused engaged a new advocate who filed histhereafter, immediately filed an application under section 311 of the Cr.P.C for recalling of allthe witnesses who were alreadyby his erstwhile advocate appointed by the accused. This application was allowed by the Sessions Court and an order was passed after recalling of the witnesses who wereby Mr. Kawchale. The matter was thereafter kept for hearing on 6/8/2011. On that date the matter was adjourned to 22/8/2011. On the adjourned date, application was made seeking time tothe witnesses. The Sessions Court allowed the application and granted time till 15/9/2011, though High Court had expedited hearing of the trial. Again on that date, an application was made for further adjournment. This application was rejected by a detailed order. However, the Court adjourned the matter to 16/9/2011. In our view, therefore, sufficient time was given to the new advocate who was appointed by the accused and it cannot be said that there was any breach of principles of natural justice or breach of right of fair hearing and trial of the accused. Interestingly, the accused, during the course of their arguments on sentence before the Trial Court, had sought permission to appoint Mr. Kawchale to argue their case. The submissions made by the learned Counsel for the accused, therefore, cannot be accepted and the said submission has been rightly rejected by the Trial Court. In our view, therefore, no prejudice has been caused to the accused on account of refusal by the Trial Court to grant further adjournment. It is an admitted position that the said order refusing to grant adjournment was not challenged by the accused before the appropriateour view, since the order refusing adjournment was not challenged further by the accused, it is not now open for the accused to challenge the finding or sentence recorded by the Trial Court after the trial was over in appeal. As noted by us earlier, no prejudice is caused to the accused by virtue of the order refusing to grant adjournment to the accused. It has to be noted here that application filed by a new advocate engaged by the accused for recalling all witnesses was allowed and all these witnesses were again permitted to beby their new advocate. Therefore, it cannot be said that there was failure of justice on account of refusal to grant adjournment to the accused. Ratio of the judgment in Mohammad Hussein vs State (2012) 2 SCC 584  , in our view, therefore, would not apply to the facts of the presenthas stated in his evidence that in his opinion probable cause of death was shock and haemorrhage due to grievous injury to vital organs with skull fracture involving frontal, left temporal, parietal bone with laceration to brain with fracture ribs 2, 3, 4 right lung ruptured with strangulation. He has also observed that strangulation made have been committed by overpowering the victim suddenly from behind by using rope with hands. This witness (P.W.16) was initiallyby Mr. Kawchale and several suggestions were made regarding injuries which were caused and it was suggested that these injuries could have been caused on account of natural causes or accident. The new advocate Mr. A.R. Patil, who was appointed, however, did not seriously dispute that the death was homicidal. In our view, therefore, the prosecution has established that death of deceased Jyotikumari was homicidal and unnatural. The said question is, therefore, answered in the affirmative.In the present case, prosecution has examined 29 witnesses and the entire evidence is essentially circumstantial evidence. Before taking into consideration the rival submissions, It has to be kept in mind that in a case where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn are, in the first instance, to be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Secondly, the circumstances should be of a conclusive nature, and they should be such as to exclude every hypothesis but the one proposed to be proved. To put it in other words, there must be a chain of evidence so complete that it will not leave any reasonable ground for drawing a conclusion consistent with innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.In our view, after having perused the evidence, prosecution has established the chain of circumstances beyond the reasonable doubt for the following reasons.Testimony of P.W. 12 is corroborated in material particulars by his wife P.W. 13Sudhakumari Gaursunder. His wife has reiterated the sequence of events which had taken place on 1/11/2007 from the point of time where the deceased had received "missed call" from accused No.1 to the point where the dead body of deceased was identified by this witness P.W.13 and her husband and also in respect of identification of the accused. P.W. 13 also has beeninitially by advocate Mr. Kawchale and then by Advocate Mr. A.R. Patil. Both the advocates for the accusedthe witness at length. All the suggestions made by advocates for the accused have been denied by this witness. Prosecution, therefore, has established the circumstance of the deceased being last seen in the company of accused Nos.1 and 2 which was proximate in point of time prior to her death. P.W. 12 has established that accused Nos.1 and 2 took the deceased in their cab and they were expected to drop her at her BPO office at Hinjewadi.69. P.W. 11Sagar Bidkar has stated in his evidence that accused Nos.1 and 2 were supposed to pick him up at about 10.45 P.M. He has stated that his Company had informed that accused No.1 was the driver of the cab and the details of the cab also were given to him and he has given those details in his evidence. P.W. 11 has further stated that accused No.1 did not come on time to pick him up and, therefore, he made telephone call to him. He has stated that accused No.1 informed him that he would be coming within a short time to pick him up. However, he did not come within 10/15 minutes and, therefore, he had called him again and, at that time, he has stated that at that time accused No.1 had told him that he had a flat tyre and, therefore, there was delay. P.W. 11 has stated that finally accused No.1 came to pick him up in white indica car bearingat 12.45 A.M. He has further stated that alongwith accused No.1, his friend accused No.2 Pradeep was also in the car and who was sitting on the backseat. When he inquired about Jyotikumari, accused No.1 told him that she had not come with them on that date. P.W. 11Sagar Bidkar has further stated in his evidence that, thereafter, accused No.1 took the cab to the BPO office at Hinjewadi and just before entering the gate, accused No.2 got down from the vehicle. He has further stated that after they entered the premises, accused No.1 persuaded him to make an entry in the roster register that the cab was late on account of flat tyre and, accordingly, he made that entry. He has identified his handwriting atwitness also wasinitially by Advocate Mr. Kawchale and later on by advocate Mr. A.R. Patil. Again, suggestions made to him by the Counsel for the accused were denied and the accused were not successful in creating any doubt regarding his testimony. P.W. 11, therefore, has corroborated the fact that on the fateful night, the accused No.1 was to first pick up Jyotikumari and, thereafter, pick him up. He has established that the accused No.1 did not come on time but came at 12.45 A.M. and gave false excuse that there was a flat tyre and, therefore, there was delay. He has further established that accused No.2 was also in the cab alongwith accused No.1 when they picked him up.70. The next witness who has been examined by the prosecution to establish the presence of the deceased in the cab from 10.15 P.M to 11.00 P.M is P.W. 14Jeevan Baral. He has stated in his evidence that he knew Jyotikumari since she was his childhood friend and they had studied in the same school and that on 1/11/2007, he had called her at 10.30 P.M. and had a long talk with her while she was going to the office in the office car. He has stated that he overheard the conversation between Jyotikumari and the driveraccused No.1 and when she had questioned the driver as to where he was taking the vehicle, he also overheard accused No.1 telling her that one person from Nigdi was to be picked up and, again, thereafter, conversation between the witness and the deceased continued and, thereafter, he again overheard the conversation between Jyotikumari and accused No.1 when she asked him why he had taken the car in the jungle. He also overheard the driver telling her that the condition of the road was not good and, therefore, he had taken another route. He has stated that he became suspicious because of the answers given by the driver and, therefore, he asked her whether she was alone in the car and Jyotikumari informed him that the friend of driver viz Pradeep was also in the car and, therefore, he should not worry. Again, thereafter, he overheard the conversation between the deceased and the driver and the deceased asked the driver why the car had stopped in the jungle and then he heard shout of Jyoti and she said "please what you are doing" and, thereafter, there was some loud noise and the phone was disconnected. This witness has, therefore, established that he had contacted Jyotikumari on 1/11/2007 and from 10.30 P.M to 11.00 P.M, she was in the office car which was driven by accused No.1 and in which accused No.2 was alsothis witness (P.W.14) has beenby Advocate Mr. Kawchale and Advocate Mr. A.R. Patil. In hishe admitted that there was love affair between him and Jyotikumari and he has further stated that he did not know the number of Wipro Company and the number of Sudhakumari or her husband. This witness (P.W.14) has beenat length on various aspects. However, in our view, no significant material has been brought on record. From the evidence of P.W. 12, P.W. 13 and P.W. 14, presence of the deceased Jyotikumari in the office car which was driven by accused No.1 and in which his friend accused No.2 Pradeep was present, has been established by the prosecution beyond the reasonable doubt.man Bodke has stated that Punkaj Bodake informed him about the dead body of one unknown lady lying on Northern side of theexpress highway in the area of Gahunje village. After receiving the call, he went to the spot and saw the dead body. He has also stated that the deceased was wearing yellow colour salwar and light saffron colour kurta and he has also mentioned about the pair of high heels of white colour lying nearby and also the injuries on her hand and onestone lying near by. He has stated that panchanama of the spot and of the dead body was made by the police. In theby Advocate Mr. Kawchale, the witness admitted that before the police he had stated that the deceased was wearing yellow colour kurta and light saffron colour salwar. He has also stated in thethat the house of the accused No.1Purshottam Borate is on Northern side of Express Highway and the houses of both the accused are situated at Village Gahunje. In thehowever, he has explained the reason why he had incorrectly mentioned the colour of the salwar and kurta to the police. He has stated inthat at that time he was frightened and was disturbed and while giving evidence in court he had given different colours of the clothes since he did not understand difference between salvar and kurta. P.W. 1Hiraman Bodke and P.W 8Punkaj Bodake have established that the dead body of Jyotikumari was found on the Northern side of theExpress Highway near village Gahunje and that the deceased was wearing yellow and saffron colour kurta and salwar. These witnesses, therefore, have corroborated testimony of P.W. 12 and P.W. 13 regarding the dress worn by Jyotikumari in the night of 1/11/2007 when she left the house and sat in the office car driven by accused No.1.74. After the dead body was discovered by P.W. 8Punkaj Bodake and a complaint was registered by P.W. 1Hiraman Bodke, the body was taken to the hospital and postmortem was performed. We have already noted that the doctor who performed the postmortem had given an opinion about cause of death and the said doctor also in his evidence has mentioned that he had suspected that the victim was raped before she was murdered. However, in order to confirm the said finding he had waited for the report of CA which is at Exhibits 166 and 167 and after reading the CA report, he had confirmed that the deceased was raped before she was murdered. From the evidence of P.W. 16Dr. Madhav Waghmare, prosecution has established that the death of Jyotikumari was homicidal and that she was raped before she was murdered.This witness (P.W.7) thereafter stated that PI Suryawanshi called one jeep and both the accused and panchas boarded the said jeep and the jeep proceeded as per the directions given by both the accused. He has stated that accused Borate pointed out one house and as per his direction the jeep was stopped in front of the said house and, thereafter, accused Borate entered his house in their presence and he went to his bed room and produced one finger ring, watch and SIM card. He has stated that these articles were kept by the police in one paper and wrapped and these articles were sealed and the panchanama was prepared which is atHe has stated that signatures of panchas were obtained on one label and the said label was affixed to the sealed articles and the panchanama was completed at the house of accused No.1Borate. He has stated that the finger ring was of gold and the watch was of Titan Company and it had a yellow dial and it was a ladies wrist watch and the SIM card was of Airtel Company. This witness (P.W.7) identified the seized articles in the Court. He has stated that, thereafter, accused No.2Kokade asked PI Suryawanshi to take the vehicle near one house and, thereafter accused and panchas entered the house. Accused No.2 thereafter went near a cupboard and opened the door and produced one mobile and a pair of ear rings. He has further stated that police collected those articles in one paper and they were wrapped and a seal was affixed on the said paper and his signature alongwith signature ofwas taken on the label which was affixed on the said articles. Panchanama of the said articles which were recovered at the instance of accused No.2 was prepared which is athas stated that the mobile handset was of Nokia Company and the model number of the said handset was 1100. He has further stated that ear rings were of gold. P.W. 7 identified the gold ear rings and Nokia handset which were produced in court. Again this witness wasat length by Advocate Mr. Kawchale and Advocate Mr. A.R. Patil. The suggestions put to him in thewere denied. P.W. 7Vijay Shirke, therefore, has established the recovery of articles belonging to the deceased which were worn by her when she left the house at the instance of accused from their respective houses and these articles were later on identified by P.W. 12 and P.W.13,and sister of the deceased in the Police Station and thereafter in Court. P.W. 12 and 13 also had given description of the articles before identifying them. Prosecution, therefore, has clearly established that the articles belonging to the deceased were found to be in possession of accused Nos.1 and 2 on the next day i.e. on 3/11/2007, one day after the death of Jyotikumari. Prosecution has established that these articles which were recovered at the instance of the accused were worn by the deceased Jyotikumari which fact has been established by identification of the articles by P.W. 12Gaursunder and P.W. 13Sudhakumari. This circumstance, therefore, further establishes that after committing rape and murder of the deceased, the accused had removed the articles from her body and had concealed them in their houses.77. One other circumstance is the recovery of Odhani at the instance of accused No.1. P.W. 15Ankush Tumkar in his evidence has stated that on 4/11/2007, he had accompanied thePappu Yeole and accused Purushottam Borate who had stated that he would show the place where he had thrown the Odhani and purse of Jyotikumari. Accordingly, he alongwithaccused Purushottam and PI Patil went in a jeep and the accused asked them to take the jeep to Somatne Phata. He has stated that at a particular place accused went to the bushes and produced one Odhani from bushes which was saffron in colour and the said Odhani was accordingly seized under seizure memo and it was wrapped in paper and sealed. His signature was taken on label alongwith signature ofand PI Patil and thereafter it was affixed to the article which was seized. The accused then directed the jeep to be taken near the bridge and, thereafter, when the jeep stopped near the bridge, he stated that the purse was thrown from the bridge. This witness (P.W.15) has stated that 2 to 3 fishermen were asked to take search in the water of the river. However, purse was not found. The witness identified the seized Odhani before the Court. The panchanama in respect of seizure of Odhani was proved atThis is one other circumstance which establishes recovery of Odhani at the instance of accused No.1 which belonged to Jyotikumari. This Odhani also has been identified by P.W.12 and 13 as the same Odhani which was worn by the deceased Jyotikumari and they have also stated in their evidence that the deceased was wearing this Odhani when she left the house.78. Prosecution has then established that P.W. 12 and P.W. 13,and sister of the deceased identified Odhani which was seized at the instance of accused No.1. P.W. 26Sanjay Bodake has stated that he alongwith his friend Sattyawan Bodake were introduced with two persons viz Gaursunder Prasad and Sudhakumari and PSI showed them one sealed packet and they verified that the seal was intact and it was opened in their presence and in the said packet there was saffron Odhani on which there were blood stains and white stains. He has stated that Gaursunder and Sudhakumari identified the said Odhani as belonging to Jyotikumari Chaudhary. After it was identified by P.W.12 and 13, it was again kept in another packet and the packet was sealed and labeled and panchanama at4. Results of the CA reports establish that deceased Jyotikumari, before she was murdered, was raped and semen of accused Nos.1 and 2 was found on her Odhani and clothes and also in the vaginal swab which was taken by the doctor who performed the postmortem. CA reports, therefore, establish that the deceased was raped and semen of accused Nos.1 and 2 was found in the vaginal swab and also on the clothes which were worn by her.85. The other circumstance which has been established by the prosecution is the scratch material which was found in ligature mark on the neck of the deceased which tallies with the Odhani belonging to the deceased which was recovered at the instance of accused No.1.is the CA report in respect of Odhani which was sent to CA.and 222 clearly establish that ligature mark and the material which was found on the ligature mark indicated that the Odhani which was atand the fiber which was detected on the ligature mark tallies with the fiber cloth frombecause name of P.W. 10 has been mentioned in the sheets, it cannot be established that he was driving the vehicle or had driven the vehicle duringon three days in view of the other evidence which has come on record. P.W. 10 has also established that the vehicle was given to accused No.1 on 1/11/2007 at 8.30 P.M.88. Prosecution has then examined P.W. 9Bashir Dastagir Shaikh for the purpose of establishing the presence of accused No.2 alongwith accused No.1 in the vehicle on that day. P.W.9 in his evidence has stated that he is having chicken shop and it is known as Bashir Chicken Centre. He has stated that he knew accused No.2 Pradeep since he resides near his house. He identified accused Nos 1 and 2. He has stated that on the date of the incident, accused No.1 was a driver on the Indica Car, number of which was mentioned by him in the evidence. He has stated that at about 8.00 to 8.30 P.M., he had purchased certain medicines and he alongwith Rahul and accused Pradeep Kokade were talking with each other with accused No.1 Purushottam Borate came in Indica Car and at that time he was alone in the vehicle and he picked up Pradeep alongwith him and went away. In thethis witness (P.W.9) has admitted that he is not conversant with the English language and he could neither read nor write English. He also admitted that he did not know Marathi and could not read or write in Marathi. This witness could not read the number which was written by the Counsel for the accused. The Trial Court, however, in our view, has rightly relied on his evidence of having seen accused No.1 driving Indica car and accused No.2 accompanying accused No.1 in the said car at 8.30 P.M. on 1/11/2007. Merely because this witness was unable to read the number which was written by the Counsel for the accused that cannot be a ground for discarding his entire testimony. It is possible that this witness may have made improvement regarding number of Indica Car, however, this witness who was a friend of accused Nos.1 and 2 had no reason to give false evidence that accused Nos.1 and 2 were seen by him at 8.30 P.M. in the night when accused No.1 was driving a white Indica Car. He has also stated that the number plate was yellow. Therefore, even if the witness may not have remembered number of the said car, he has given rest of the details which further establish another chain in the chain of circumstances.89. The other circumstance which establishes that accused No.1 was driving the vehicle is the evidence of P.W. 17Amol Ramchandra Mugade has stated that he joined the service at Denta Force Company as security and was sent to Wipro Company at Hinjewadi as Security Supervisor. He has further stated that on 1/11/2007, he had a night shift and Anil Pawar, Bharat Shinde, Bhagwat Vanare, Ganesh Nikam were security guards. On 2/11/2007, at about 1.00 a.m., accused No.1Purushottam Borate, driver of Cab No.535 came to him with a roster of the vehicle. He told him that scheduled time to enter the vehicle was 11.00 P.M. and he was asked to show that the vehicle had entered at 11.00 P.M. He, however, refused to make a false entry and mentioned in the roster that the vehicle had arrived at 1.00 A.M. and he signed the roster atHe also identified accused No.1 in the Court. In thehe admitted that the work to check identity cards of Cab drivers was given to Bhagwat Vanare and he did not remember whether Purushottam Borate was having identity card of Wipro Company. No significant material has been brought on record in theof this witness and his testimony of having seen accused No.1 driving white Indica Car on the said day has been established. He has also brought on record the endorsement which was made by him about entry of the vehicle at 1.00 A.M. and also the request made by accused No.1 of making a false entry that vehicle had arrived at 11.00 P.M. and not at 1.00 A.M. He has also stated in his evidence that accused No.1 went away with the vehicle. The chain of circumstances in respect of accused No.1 being in possession of the vehicle from 8.30 P.M. on 1/11/2007 to 1.00 A.M. on 2/11/2007 when he dropped Sagar Bidkar (P.W.11) has been established by this witness and it is also established that accused No.1 took away the vehicle after the entry was made in the roster atProsecution has examined P.W. 29Ganesh Ramrao Pawar in order to bring on record call details in respect of mobile phone number 9960621120 used by deceased Jyotikumari Chaudhary and the call details are atP.W. 29 has stated that he was working as Assistant Nodal Officer of Airtel Company from June, 2007 and, at the relevant time, Vijay Shinde was working as Nodal Officer. He has stated that Vijay Shinde left the employment of Airtel Company and the authorized Nodal Officer is the only person who has access to the server. He has further stated that the information regarding incoming and outgoing calls of the Company is stored in the server of the Company and this information is automatically stored as soon as the calls are made and there is no human intervention in this process and for getting the information about incoming and outgoing calls, the authorized Nodal Officer has to enter the password in the server and then such information is retrieved. The password of the server of the Company is only with the authorized Nodal Officer of the Company and on the date of the incident, he was helping the Nodal Officer Shri Vijay Shinde. He has further stated that the Airtel Company was using the Oracle Data Base System for preserving the data of the phone calls and in the year 2008, there was no Indexing System with Airtel Company and, therefore, data of the phone call which used to be retrieved was not received in ascending and descending form and only from 2009 onwards, Indexing System was installed by the Airtel Company. He then stated that each mobile instrument has unique International Mobile Equipment Identity number (IMEI).He has then stated that IMEI number of cell phone is of 15 digits and out of that first 14 digits are unique to that mobile phone and the first 14 digits are automatically stored in the server of the Company and the 15th digit of IMEI number is stored as zero and that this system is uniform to all the service providers. He has then stated that on 29/1/2008, Airtel Company received a request letter from Talegaon Dabhade Police Station to provide name and address of the subscriber as well as call details of mobile phone No.9960621120. He has then stated that as per record of the Airtel Company, mobile phone number was in the name of Sudhakumari and the call details were then supplied to the police alongwith the covering letter. The aid covering letter is atand the certificate is atHe has stated that these call details were retrieved from the server in his presence by Shri Vijay Shinde who was the then Nodal Officer. He has then stated that entry at Serial No.16 atshowed that there was outgoing call from mobile phone of Jyotikumari to the mobile Phone No.9975558535 and duration of the call was eight seconds and this call was made atP.M on 1/11/2007 which tallies with the evidence given by P.W. 12 that Jyotikumari after she made call to the mobile which was in possession of accused No.1 informing him that she was coming down to get into the cab.The next entry at Serial No.6 from call details at Exhibit 90 is in respect of incoming call received by Jyotikumari from mobile phone No.9986233097 which is the phone number of Jeevan Baral (P.W.14). This witness (P.W.29) has stated that the phone call was made atP.M on 1/11/2007 and duration of that call was 406 seconds. He has then stated that entry at Sr No.17 from call details atis regarding incoming call to mobile phone of Jyotikumari from mobile phone of Jeevan Baral (P.W.14) and, according to the said entry, the call was made atP.M. on 1/11/2007 and duration of that call was 1422 second that is for about 23.7 minutes. This evidence therefore clearly corroborates with the evidence of P.W.14 that he had made two phone calls one at 10.30 P.M. and the other at 10.38 P.M. which lasted for about 24 minutes till about 11.00 P.M. when the phone call was switched off. In thehe has admitted that if a call is made on mobile phone then the signal first goes to the tower of the locality where the mobile phone holder is present and then it comes to the server. He has sated that, he is unable to tell location of main server of the Company in the year 2007 and inward and outward register is maintained in the Company which was not brought by him in the Court. He has admitted that letter fromPolice Officer dated 29/1/2008 was received by the Company and that entry at serial No.1 atshowed that there was incoming call on the mobile number of Jyotikumari from mobile number of Jeevan Baral (P.W.14). Despite the saidby the Counsel for the accused, testimony of this witness, in our view, has not been shaken at all.91. Prosecution has then examined P.W. 18Kishor Vasantrao Ghadge Naib Tahsilar for establishing test identification parade held by him on 14/1/2008 in which P.W.12 identified both the accused. Prosecution through evidence of P.W. 18 has brought on record identification parade panchanama atP.W. 18 during his deposition gave graphic account of what was happened on the date of test identification parade and the manner in which he has held the test identification parade. He has also deposed regarding the date on which he has received the request letter for holding the test identification parade in the instant case. Thus, evidence of P.W. 18 also explains the delay which had occurred in conducting the test identification parade and so also the error occurred in mentioning the date in the test identification parade panchanama. Though this witness was extensivelyon behalf of the defence, after careful perusal of the entire deposition of this witness, we are unable to persuade ourselves to accept that his evidence was shaken in any manner due to elicitation of any particular answer duringSince during the evidence of P.W. 12, it has already come on record that P.W. 12 by then was knowing the name of the driver of the said car and his friend namely Pradeep, we do not propose to dilate in detail about the evidence of P.W. 18 and propose to deal with the defence criticism while dealing with the relevant submissionscircumstance which also clearly establishes that there was tacit agreement between the two accused, can be seen from the evidence of P.W. 10 who has stated in his evidence that when he inquired about friend of accused No.1, he falsely informed him that his name was Shankar and thus tried to hide the identity of accused No.2. Accused Nos.1 and 2, therefore, in accordance with their prearranged plan committed an offence of abduction, rape and murder though they were seen by P.W. 12Gaursunder Prasad and though they were aware that victim Jyotikumari was speaking continuously on mobile phone with Jeevan Baral (P.W.14). All these circumstances, therefore clearly reveal that there was prearranged plan to commit the said offence and the accused were not deterred by the fact that they were seen by P.W. 12 or their names were disclosed by victim Jyotikumari to P.W. 14 when she was being abducted by them. Further inference about conspiracy can be drawn from the fact that after committing the said ghastly act of commission of abduction, rape and murder, they removed valuable articles of the deceased and divided the booty among themselves and kept the articles in their houses and disposed of other articles such as Odhani and purse after removing the valuables from the said purse.93. In our view, taking into consideration the ratio of the judgment of the Apex Court referred to in para 58 hereinabove and the settled law on this point, we have no manner of doubt that the prosecution has established the case of conspiracy beyond the reasonable doubt and, therefore, Trial Court has rightly convicted the appellants/accused for the offence of conspiracy independently and also alongwith other individual offences committed bythe present case Call Log record which has been brought on record at Exhibit 90 by P.W. 29 clearly reveals that P.W. 14 had made telephone call on mobile of victim and she was continuously talking to her while she was being driven by the accused No.1 in the Indica Car. P.W. 16Dr. Madhav Waghmare has stated in his evidence that age of the injury was about 13 hours prior to the postmortem. The postmortem was performed on 2/7/2007 at 3.30 P.M. and if the said time is calculated, it would reveal that the said injuries were caused to her on the previous night between 11.00 P.M. to 12.00 midnight. Call record and the evidence of P.W. 14 reveals that he was having talk with her between 10.30 P.M. To 11.00 P.M. on 1/11/2007. The conversation between the deceased and the witness P.W. 14 therefore was more proximate in point of time prior to her death which took place at about 12.00 midnight and, as such, conversation between the deceased and P.W. 14 on the mobile phone is relevant and admissible under the provisions of section 32