Pavan Vasudeo Sharma vs The State Of Maharashtra Thr. Secretary

4. On 04.01.2006 PW1-PSI Dabir received a phone call that one injured person was lying near a motorcycle on Mumbai-Pune highway. Said PW1 went to the spot and took the injured to the hospital where he was declared dead. On the basis of motorcycle driving licence found in the trousers of the deceased, he was identified as one Bhima Waghmare. The family members were, thereafter, informed and FIR Exhibit 13 was lodged pursuant to which an offence was registered vide C.R.No.5 of 2006. The investigation commenced and body was sent for post-mortem. PW3 Dr. Joshi conducted the post-mortem and found the following external injuries:-

During his personal search, a 9 mm pistol (service revolver) and two live cartridges were recovered from Accused No.1. Two cell phones were also found from him. In the search of Accused No.2, a chopper was found. All those four persons came be to apprehended in kidnapping case. The recovered pistol was sent for forensic analysis. The forensic analyst found that the bullet which was recovered from the stomach of deceased Bhima Waghmare, was fired from the same pistol. The live cartridge that was recovered from Accused No.1 was test fired by the forensic analyst from the CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary 5 same pistol and the features of the firing pin impression on the cartridge tallied with those found from the bullet recovered from the body of deceased Bhima Waghmare.

8. PW2 Seema widow of the deceased Bhima Waghmare stated in her deposition that her husband was having two mobile numbers and one of them was 9850520922. She accepted that in her first reporting she had expressed suspicion against some other persons including professional rivals of her husband. PW5 Sachin Mahadev Shinde, Nodal Officer of Idea Cellular Company stated that mobile phone number 9850520922 was subscribed by one Sanjay S. Roy having his address as Sai Prasad Foods Ltd., Telco Road, First Floor, near Raka Gas Company, Chinchwad Station, CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary 6 Pune-411019. He also produced the record of calls details vide Exhibit 55 showing relevant pages of call details with regard to period January 2006 and February 2006 about user of the mobile. PW6 Senior Police Inspector Pandurang Udhavrao Kohimkar was the Investigating Officer in the matter. He did not depose about any Test Identification Parade nor did he produce any record regarding identification of Accused Nos. 1 and 2 by PW11 Police Naik Nagare. PW12 Sanjay Lokhande, father of Akash Lokhande testified that demands for ransom were made from him and the communication was received from mobile number 9850520922. During his testimony he also mentioned that the person who was making the demand had casually mentioned that they had killed a person at Karjat.

9. It was the case of the prosecution that the pistol seized from the Apellant-Accused No.1 was a service weapon which was entrusted to PW11 Police Naik Nagare, which weapon was snatched from him on 20.12.2005. It was the same weapon which was found to be used in the commission of offence of murder of Bhima Waghmare. There was no direct evidence in the form of any eyewitness account which was available on record and the prosecution mainly relied upon certain circumstances in support of its case. The circumstantial evidence in the matter was based mainly on two features:-

11. Both the convicted accused challenged their conviction and sentence by preferring two appeals being Criminal Appeal No.700 of 2013 and Criminal Appeal No.1056 of 2013. As regards Accused No.1, the High Court found that the prosecution had established its case and there was sufficient evidence to prove that he was involved in the crime relating to the CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary 8 murder of Bhima Waghmare. The High Court, however, found that there was no material to connect Accused No.2 with the crime and, therefore, acquitted him of the charges levelled against him under Sections 302, 392 of IPC and under Section 3(25) of the Indian Arms Act but maintained his conviction and sentence insofar as offence under Section 37(1) read with Section 135 of the Bombay Police Act was concerned.

17. Applying the principles as culled out in the aforesaid decision, which have stood the test of time, in our view, the matter is not free from doubt. The circumstances relied upon must rule out every single hypothesis except the guilt of the person accused of an offence. There are too many missing links in the present matter and in our considered view, the material on record does not exclude every single hypothesis except the guilt of the man.

18. We, therefore, give benefit of doubt to the Appellant. This appeal is, therefore, allowed and the Appellant is acquitted of the charges levelled against him. He be set at liberty forthwith unless his presence is required in connection with any other offence.