Case: Deepak Bajirao Shelke Vs. State of Maharashtra

3. Case of the prosecution, insed No.1 was working with New Bal Road Lines, a Transport Company, owned by one Paramjeetsingh Khushalsingh Bal, Vikroli, Mumbai (PW No.13). Accused No.1 was working as a cleaner on tanker No.One PW No.6 Satyandrajeetsingh was also working with new New Bal Road Lines as driver of tanker No.Victim, the deceased Avdheshkumar Nai was also working with same transport company as driver on another tanker No.According to the case of the prosecution, appellantaccused no.1 had given his biodata to the Transport Company prior to his appointment as a cleaner. As such about two months prior to the incident which occurred on 12th/13th March, 2008,No.1 was given the said employment by PW No.13.According to the case of the prosecution,No.2 is the friend of accused No.1 and apparently they both met PW No.6 Satyendrajeetsingh on the night between 12 and 13th March, 2008 at about 11:00 p.m. or there about.They met at Baba Dhaba situate on Chandwad to Malegaon road on Mumbai Agra highway. At that Dhaba they also met the deceased Avdheshkumar Nai who was then driving his tankerand was proceeding towards Mumbai. PW No.6 Satyendrajeetsingh was driving tankerand was proceeding from Chembur to Calcutta. At the Baba Dhaba these four persons met each other and they had talk as victim PW No.6 andNo.1 were employed with the same Transport Company and were knowing each other. During that conversation,no.1 heard that victim had loaded about 1496 kilograms cotton seed oil from Bhagvati Refinery Pvt. Ltd. Varkheda Road, Pachora, District Jalgaon and he was proceeding to Mumbai to deliver the same.According to the case of the prosecution,though appellant accused No.1 was supposed to work on the tanker driven by PW No.6 as a cleaner, he changed his mind and boarded the tanker of the deceased along with his friend accused no.2 saying that he wanted to go back to Mumbai and will not accompany PW No.6 on his tanker to Calcutta.4.According to the case of the prosecution,ed strangulated the deceased and dumped his body in the wooden box kept in the cabin of the driver and thereafter parked the tanker by the side of the road in between villages Jaigaon and Brahmanwadi, Taluka Sinnar. Also according to the case of the prosecution, on 13th March, 2008 in the evening time both the appellants were found selling cotton seed oil to nearby villagers pretending that they wanted to raise money for repairs of tanker. They sold the oil @ Rs.50/per kilogram. On the same night at about 8:30 p.m. they allegedly went to the S.T. bus stand of Sinnar along with the tanker and asked onedriver by name Prakash Zagde (PW No.10) to follow their tanker and then proceeded towards Gurhewadi. At that place about a distance of 3 kilometers from Sinnar they parked tankerand boarded inwhich was following the tanker. In the said rickshaw they went towards Musalgaon shivar and from same locality they picked up two girls and again boarded the rickshaw and both theand two girls then reached to Yashraj Hotel at Sinnar at about 10:00 p.m.driver PW No.10 was instructed to come to that place on the next day morning. Accordingly, on 14th March, 2008 at about 9:00 a.m. PW No.10 attended the hotel and took both the girls which were brought to the hotel by earlier night by theto their place.5. Also according to the case of the prosecution on 14th March, 2008 in the morning both thehired one Omni motor vehicle and visited Ganesh temple at Ozar and then went to Sangamner and after taking meals returned back to Sinnar.6. Also according to the case of the prosecution, in the meantime some bad smell was emitting from the tanker which was parked by theAs such, complaint was made to Sinnar Police Station and the dead body of victim was revealed from inside cabin of the driver, dumped in the wooden box. As the body could not be taken out from the wooden box, the box was cut open. Accordingly, ADR was registered. Inquest panchnama was conducted. Dead body of victim was sent to Municipal Hospital, Sinnar for postmortem. Search of drivers cabin of truck was conducted. Relevant papers concerning the truck were found. After finding the address and telephone numbers of the transport company, Manager of the Company was called and he was informed regarding finding of dead body of one person in the cabin of driver of tanker No.The owner of the Transport Company (PW No.13) was summoned. Accordingly, he came and identified the dead body as that of his driver Avdheshkumar Nai. Another driver by name Satyendrajeetsingh (PW No.6) was also informed and through him it was revealed that the present appellantaccused no.1, the cleaner on the tankerand his friend had accompanied the victim from Baba Dhaba. PW No.6 Satyendrajeetsingh also attended the police station on his way back from Raipur and he also identified the dead body as that of Avdheshkumar Nai.7.According to the case of the prosecution,ed No.1 was called on fax from the office of PW No.13 and that time it was revealed thatNo.1 has given a fictitious name as Arjun Patil while taking employment with transport company. During the investigation enquiries were made regarding who were the villagers who had purchased the cotton seed oil from thepersons. As such statements of said villagers were recorded including PW Nos.7, 8 and 9. Thereafter, on secret information both the appellants accused were arrested. They were identified by PW No.6 Satyandrajeetsingh, driver of tanker No.They were also identified by PW No.13 Paramjitsing, owner of the transport company.According to the case of the prosecution,they were arrested on 16th March, 2008 under the arrest panchnama in which PW No.1 and PW No.2 were the panch witnesses. The test identification parade was conducted on 16th of April, 2008 i.e. after about a month after the arrest of the accused persons. Said test identification parade was conducted by one Shivrao Shinde (PW No.16), then Tahsildar. In the said test identification parade, both thewere identified by PW No.7,8 and 9, the villagers, who purchased the cotton seed oil from thepersons.8. Earlier on 16th March, 2008 investigation was handed over to one Sanjay Barkund PW No.18.According to the case of the prosecution,while in police custodyNo.1 made a voluntary statement to show the place where the dead body was concealed in the tanker. As such memorandum panchnama was drawn. Even according to the case of the prosecution, themade different memorandum statements and took to the police party and panchas to various places including the place from where the concerned tanker being driven by the victim was taken in their control, the place where they done away with the victim by strangulating him with theof the driver seat and dumped the dead body in the wooden box situate in the cabin of the tanker, the places where the tanker was taken and where it was halted and where the oil was sold to some villagers, the place where the tanker was abandoned and they alighted theEven according to the case of the prosecution various voluntary statements were made by theto show the places from where they had purchased the clothes, chappals, etc, from the funds obtained from selling the oil from the tanker to the villagers. Also according to the case of the prosecution,No.2 made a voluntary statement and then produced a cash ofshirt and pant and one more shirt and pant from the house. AlsoNo.1 made voluntary statement and then produced cash ofshirt and pant from his house.10. It is also the case of the prosecution that when the hotel Yashraj was pointed out by the accused persons where they had taken girls on the night after abandoning the tanker, extract of hotel register was seized, so also the statements of Hotel Manager and waiters were recorded.11. Also according to the case of the prosecution, on 27th March, 2008 oil samples from each compartment of the tanker were collected for sending to the Chemical Analyser. Also according to the prosecution, oil samples from the oil purchased by different villagers were taken and also such samples were sent for chemical analysis. On completion of investigation and after obtaining CA reports etc,was filed before the Judicial Magistrate FC, Sinnar and the case was committed to the Court of Session and was tried as Session Case No.208 of 2008 and ended in conviction of both thepersons for the offence as detailed above.12. At the threshold, it must be mentioned that the entire case of the prosecution is based only on circumstantial evidence and broadly speaking the following are the circumstances which need to be considered whether incriminating or otherwise against theThe said circumstances are;(i)No.1 was in the employment of PW No.13 about two months prior to the incident so also victim and PW no.6 were in the employment of PW No.13 as drivers of respective tankers.(ii) PW No.6 met both theat Baba Dhaba on the night of 12th March, 2008 and saw them going with the victim by travelling in the tanker driven by the victim. So also PW No.6 identifiedNo.1 at Police Station Sinnar on 17th March, 2008.(iii) PW Nos.7, 8 and 9 purchased the cotton seed oil from the accused persons and thereafter identified the accused persons in test identification parade held on 16th April, 2008.(iv) Dead body of victim was found in the box which was kept in the drivers compartment of tankerand said tanker was found abandoned on the road and it was subsequently taken charge of under the panchnama.(v) Seat belt attached to the driver seat of the tankerwas recovered at the instance of both the accused under the panchnama.(vi)Both theshowed different places wherever they went with tanker and thereafter abandoned the tanker, went to the hotel Yashraj and also showed the shops from where they purchased clothes andout of the money obtained by selling the cotton seed oil to various villagers.

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