Friday 5 December 2014

Guidelines to Magistrates and sessions judge regarding notice to admit documents in criminal prosecution



This  Court has  observed in large  number  of  Sessions 
Trials  having  perused the  original  records  of  the  cases  that the 
notice under section 294 (1) is given by the prosecutors before the 
Court in a format prepared by them as per their whims.  It is also 
found that such applications are also tendered handwritten and 

lists are submitted to the Court and the Court has been accepting 
the said lists mechanically and going ahead with the hearing and 
orders on Section 294 (1) application.  Thus, both the prosecutor 
as well as Presiding Officer of the Court, ministerial staff and in 
cases where counsel for the accused gives such application, none 
cares to see that the format of list under section Section 294(2) 
has been prescribed.  In Criminal Manual Chapter VI para 32, such 
a form is prescribed which reads thus:
“Admission   of   certain   documents   directly   in  
evidence without formal proof.
Attention of the Magistrates and Judges is 
invited   to   Section   294   of   the   Code   of   Criminal  
Procedure, 1973, according to which the particulars  
of   the   documents   filed   before   the   Court   shall   be  
included   in   a     list,   in   the   prescribed   form   given  

case may be, or the pleader for the prosecution or  
the accused, if any, shall be called upon to admit or  
below, and the prosecution or the accused, as the  
deny the genuineness of each such documents and if  
the   genuineness   of   any   document   is   not   disputed  
such   document   may   be   read   in   evidence   in   any  
inquiry, trial or other proceedings, without proof of  
the signature of the person to whom it purports to  
be signed which, however, the Court may in List of  
*Prosecution
By the *accused.

documents filed before .........Court
Particulars   of   the  Pages Whether 
By   whom  Names   of   attesting  Remarks   if 
documents   with 
original 
prepared persons   whether  any
dates
certified copy
they   are   cited   as 
witnesses
Sr
No
30.
We are not only amazed but are anxious since the said 
format prescribed by para 32 quoted above is not at all being used 
either by prosecution or by accused or by the Presiding Officer of 
the   Court   and   that   is   the   reason   why   the   prosecution   or   the 
counsel for the accused have been preparing format and the list 
contemplated by Section 294 (1) as per their own whims.   We 
deprecate   such   a   practice   since   according   to   us   the   format 
provided by para 32 is prescribed with precision and none of the 

parties should be allowed to have the format of their own.   We 
also   deprecate   the   practice   of   exhibiting   the   documents   not 
included in the list under Section 294 (2) and in this case Exhs.87 
and 88 which were not included in the list Exh.­22 contemplated 
by Section 294 (2) Cr.P.C.
We direct the Registry to send the copy of paras 27 to 
29 with cover page of this judgment to the Registrar General for 

being circulated to the Magistrates and the trial Judges.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

Criminal Confirmation Case No. 1/2013
State of Maharashtra,
thr. PSO Gadge, Nagar,
Amravati, Tq. Dist. Amravati.

...V E R S U S...

 Ajay Dayaram Gopnarayan,

Achalpur, Tq. Achalpur,
CORAM:­  A. B. CHAUDHARI & Z. A. HAQ, JJ.

Date of Pronouncing the Judgment:­  17.01.2014
Citation;2014 CRLJ(NOC)504 Bom

This is a Criminal Reference Registration No.1/2013 for 
1.
Dayaram Gopnarayan.

confirmation   of   death   sentence   against   accused   no.1­Ajay 
Both   the   accused   persons   Ajay   Dayaram   Gopnarayan 
2.
and   Nitin   Nandkishor   Gudadhe   have   also   preferred   Criminal 
Appeal   No.225/2013   praying   for   acquittal   against   judgment   of 
conviction for offences punishable under section 302 and 392 of 
I.P.C. and accused no.1­Ajay is sentenced to death while accused 
no.2­Nitin Gudadhe is sentenced to life imprisonment and to pay a 
fine of Rs.1000/­ in default to suffer rigorous imprisonment for six 
months.
Both the matters are taken up together for hearing and 
disposal.  Hence, this common judgment.

3.
F A C T S:
The   prosecution   case   is   that   the   deceased   Vijayatai 
Vitthalrao Pund aged about 75 years, who was mother of PW1­
Sunil   Vitthalrao   Pund,   a   practicing   lawyer   by   profession   at 
Amravati   was   residing   in   Venus   Park   area   of   Kanta   Nagar, 

Amravati.     The   house   was   constructed   by   PW1­Sunil   about   6­7 
years before the date of incident by engaging a building contractor 
PW2­Dilip Lade and during the construction activity, accused no.1­
Ajay   and   accused   no.2   Nitin   in   turn   were   engaged   by   Dilip   as 
Labourers.  After construction of the house, accused no.1­Ajay on 
his request to PW1­Sunil, started residing in one room at one end 
of   his   house   and   was   also   doing   the   work   of   cleaning   the 
courtyard, gardening work in the house, so also the sundry works 
like   payments   of   electricity   bills   etc.     He   resided   for   about   11⁄4 
month.     During   the   said   period   accused   no.1­Ajay   also   used   to 
earn by driving auto rickshaw and used to park his auto rickshaw 
in front of the house of PW1­Sunil.  But then, he stayed only for 
11⁄4 month, 10 months prior to the date of incident and left the 
house.     At   the   relevant   time,   PW1­Sunil's   wife   and   son   were 

residing   at   Nagpur.     On   the   date   of   incident   namely   on 
17.07.2008, PW1­Sunil came from the Court at about 2.30 p.m., 
took   lunch   and   left   for   his   village   Porgavan,   Tq.   Morshi,   Dist. 
Amravati with his driver in the car.  Deceased Vijayatai was alone 
at   home.     PW1­Sunil   locked   the   main   gate   of   the   compound 
though small gate beside it was open.   PW3­Sunita went to the 
house   of   Vijayatai   at   about   3.30   p.m.   as   instructed   by   the 

neighbour Smt. Chaudhari and rung the door bell and gave calls to 
Vijayatai but she did not receive any response and at that time she 
saw one Luna parked in front of the house and a pair of footwear 
in front of the main door of the house.  She then went back.  At 
about 6.00 pm she met Tulsabai and told her about 'no response' 
and, therefore, both of them went and knocked the door and rung 
the   bell   but   there   was   no   response   from   inside.     Tulsabai, 
therefore, went to rear side of the house to find that the backside 
door was open.   She went inside from that door to see Vijayatai 
lying in a pool of blood and as such opened the door of the hall 
and started shouting and crying in frightened condition.  Both of 
them informed the neighbourers, Shri Nagalkar and Shri Adhao 
and informed them about it.  At about 6.55 p.m. PW1­Sunil came 
back from village Porgavhan to see that the crowd had gathered in 

front of his house.   He went inside the house to find his mother 
lying in pool of blood with several injuries on neck, throat and 
head.  He saw handle of the cupboard of his wife was bent though 
the   cupboard   was   closed.     He   then   lodged   the   report   at   Police 
Station Gadge Nagar.   Dog squad was called, finger print expert 
was also called with photographer who took photographs.  Inquest 
Panchanama   and   spot   panchanama   was   conducted.     The   dead 

body was, thereafter, sent for post mortem.  Investigation started 
and   finally   both   the   accused   were   traced   and   arrested   and   the 
evidence was collected.   The chargesheet was filed in the Court. 
The trial was held.   As many as 19 witnesses were examined by 
the prosecution.  The defence was of total denial.  The trial court 
heard the parties, framed points for determination and recorded 
his findings holding that though there was no eye witness to the 
incident, the chain of circumstances was complete and as a result, 
recorded the judgment of conviction of both the accused persons. 
The   trial   Court   found   accused   no.1­Ajay   to   be   the   person   of 
unscrupulous character, who according to the trial court, took the 
advantage of the trust of the lady in him who for his intention to 
commit   theft   and   robbery,   committed   brutal   murder   of   the 
deceased Vijayatai.  The trial Court, therefore, held him to be the 

life sentence.  Hence this reference and appeal.
SUBMISSIONS:
4.
person deserving death sentence and accused no.2­Nitin deserving 
Mr. S.S. Doifode, the learned A.P.P., in support of the 
reference for confirmation of death sentence and in his opposition 

to the appeal preferred by both the accused persons against the 
impugned judgment and order of conviction and sentence, made 
the following submissions.
The judgment and order recorded by the trial court is 
(i)
fully   supportable   and   justified   on   evidence   and   the   findings 
recorded   by   the   trial   court   for   convicting   the   accused   persons. 
There is no infirmity whatsoever in the impugned judgment and, 
therefore, the same is liable to be confirmed.
(ii)
The   learned   A.P.P.   as   well   as   counsel   for   the 
respondents­accused  took  us   through  the  entire   evidence   of  the 
prosecution witnesses PW1 to PW19 that was tendered before the 
trial Court.
(iii)
The   prosecution   proved   the   chain   of   circumstances 
beginning   with   accused   nos.1   and   2   working   as   labourers   with 

contractor PW2­Dilip when the house of   PW1 Sunil was under 
construction in 2004.  Accused no.1­Ajay, 10 months prior to the 
date of incident, resided in a room in the house of PW1­Sunil for 
about 1 1⁄4 month and was doing domestic work. The prosecution 
also established the commission of theft of Luna bearing no. MH­
27/M­4204   owned   by   PW9­Ravindra   Gadari   from   the   Treasury 
Office inasmuch as the said Luna was found at the house of the 

sister   of   the   accused   no.1­Ajay,   upon   discovery   memorandum 
(iv)
made by him.
The fact that the accused no.1­Ajay and accused no.2­
Nitin had, at about 3.40 to 4.00 pm, were seen with Luna being 
parked by them near the compound of gate of PW1­Sunil and that 
they went inside the house upon the deceased opening the front 
door of the house in response to the ringing of bell has been firmly 
established by PW4­Balkrishna.
(v)
The fact that the PW3­Sunita at about 4.00 pm went to 
the   house   of   the   deceased   and   rang   the   bell   but   there   was   no 
response and while going out, she found Luna parked in front of 
the house of the deceased, has been proved by her.
(vi)
The fact that finger prints were found on the spot of the 
incident of accused no.2­Nitin Gudadhe, has also been established. 

(vii)
Sunil from accused no.2­Nitin Gudadhe was proved.
So also, the recovery of pass books and cheques belonging to PW1­
The recovery of stolen articles from both the accused 
persons were duly proved by the prosecution without any element 
of doubt.
(viii)
The recovery of clothes belonging to PW1­Sunil from 
accused no.1­Ajay on 20.07.2008 was proved.   There was further 
ig
recovery of clothes of accused on which in one case human blood 
Ajay was found.
The   learned   A.P.P.   contended   that   the   prosecution 
(ix)
of group 'A' of deceased Vijayatai on the clothes of accused no.1­
completely   linked   the   circumstances   and   thus   both   the   accused 
have   rightly   been   found   guilty   for   the   offence   of   murder   and 
robbery.
(x)
With reference to the confirmation of death sentence, 
the learned A.P.P. argued that the observations made by the trial 
court   in   the   judgment   about   the   heinous   crime   committed   by 
accused no.1 clearly indicate that the case at hand is the rarest of 
rare   in   the   sense   that   accused   no.1   Ajay   destroyed   the   faith 
reposed by deceased Vijayatai in him since he was working as a 
domestic servant and committed her murder in a brutal manner. 
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He,   therefore,   prayed   for   confirmation   of   death   sentence   to 
accused no.1 and life sentence to accused no.2.  He also prayed for 
dismissal of appeal preferred by respondents accused nos. 1 and 2.
(xi)
The   learned   A.P.P.   relied   on   judgments   in  Sandeep  
..vs..   State   of   Uttar   Pradesh;   (2012)   3   SCC   (Cri)   18;  
Earabhadrappa Alias Krishnappa ..vs.. State of Maharashtra;  
5.
ig
Allahabad 748 (V 47 C 214).
(1983)   2   SCC   330  and  Ram   Singh   ..vs..   State;   AIR   1960  
Per contra, Mr. R.J. Mundhada, learned counsel for the 
respondents­accused   persons,   submitted   the   written   notes   of 
arguments   in   support   of   his   appeal   and   in   opposition   to   the 
criminal   reference   for   confirmation   of   death   sentence   and   also 
filed copies of decisions of various courts.  He made the following 
submissions:
(i)
There is no direct evidence with the prosecution and 
reliance is placed by the prosecution only on the circumstantial 
evidence.
(ii)
The   circumstantial   evidence   tendered   by   the 
prosecution is very very weak and no conclusion of guilt of the 
accused persons can be drawn thereupon. The prosecution failed 
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to complete the chain of circumstances which are required to be 
proved   to   the   satisfaction   of   the   Court   in   the   light   of   several 
decisions of the Supreme Court on the said issue. The evidence of 
PW1­Sunil Pund, Advocate ought to have been rejected since he 
contradicted   Exh.­48   spot   panchanama   about   two   ladies   purses 
lying   on   the   bed   and   he   admitted   in   the   cross­examination 
whether four bangles and rings were stained with blood or not. 
ig
The FIR lodged by PW1­Sunil Exh.­35 had the scoring of words 
with   intention   to   commit   theft   therein   at   his   instance   thereby 
showing tampering of the FIR.  In nutshell, the inference ought to 
have been drawn that nothing was stolen from the house of PW1­
Sunil.
(iii)
The learned counsel for the respondent­accused nos. 1 
and   2   invited   our   attention   to   various   omissions   in   the   cross­
examination of PW1­Sunil and argued that the material portion of 
his evidence in the examination­in­chief was by way of omission 
amounting   to   contradiction   and   was,   therefore,   liable   to   be 
rejected but the trial Court did not take care to give importance to 
the said discrepancy clearly demolishing the prosecution case.
(iv)
The trial Court committed an error in holding that the 
articles allegedly recovered as stolen property were never proved 
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to be the articles recovered at the instance of any of the accused 
persons.  The evidence tendered by the prosecution for proving the 
alleged discovery/recovery does not establish recovery of articles 
allegedly stolen.   The FIR did not state what articles were stolen 
and whether six cheque books were missing from his house and, 
therefore, there was clear improvement made by PW1­Sunil and 
Exh.­85   is   a   document   prepared   by   the   prosecution 
ig
(v)
the prosecution in order to rope the accused persons in the crime.
contrary   to   the   truth.     The   alleged  theft   of   two  pants   and   two 
shirts   of   PW1­Sunil   is   also   unbelievable   since   the   same   was   an 
omission in the police statement and it is impossible to believe that 
the robbers would take away the clothes of PW1­Sunil.
(vi)
The evidence of other witnesses and in particular PW4­ 
Balkrishna, claiming to be the person who has last seen accused 
persons entering the house of the deceased, is the neighbour and 
cannot   be   relied   upon.     There   are   material   omissions   in   the 
evidence which have been ignored by the trial court. The evidence 
of   this   witness,   who   appears   to   be   the   star   witness   of   the 
prosecution, has totally been shaken in the cross­examination but 
the trial court has not carefully seen his evidence and in fact ought 
to have rejected the same.  The trial Court has ignored the ratio of 
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the judgment cited before the Court for rejecting the prosecution 
case   on   all   the   counts.     Learned   counsel   for   the   respondents­
accused   then   urged   this   Court   to   peruse   the   written   notes   of 
arguments filed by him.  
Finally he prayed for acquittal of the respondent nos. 1 
6.
ig
CONSIDERATION:
and 2.
We have perused and reappreciated the entire evidence 
of   PW1   to   PW19   so   also   all   the   documents   proved   by   the 
prosecution.  We have seen the impugned judgment and order of 
conviction   and   the   reasons   therefor.     We   have   heard   learned 
counsel   for   the   rival   parties   at   length.     We   have   perused   the 
written notes of  arguments filed by the  learned counsel  for  the 
respondents.     We  have   also  gone   through  the  various  decisions 
filed by counsel for both the parties.  We proceed to deal with the 
present proceedings keeping in mind the principles laid down by 
the apex Court in the matter of conviction based on circumstantial 
evidence and the other relevant aspects arising in the present case.
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13
PW1­Sunil deposed before the Court that on the date of 
7.
conf1.13.odt
incident, as usual he went to the court when his mother deceased­
Vijayatai was alone in the house.  He came back from the court at 
about 2.15 pm and went to his village at about 2.30 pm by motor 
car   with   his   driver,  leaving   his   mother   alone   in   the   house.     At 
about 7.00 pm, he saw crowd in front of his house and saw his 
mother dead with bleeding injuries.  He lodged the FIR with Police 
ig
Station at Exh.­35.   Prima facie, he found theft in his house and 
articles missing. He found some ornaments; gold chain (Kanthi) 
weighing   3   Tola   and   pendant   missing.     His   mother   deceased 
Vijayatai  used to wear  the  same  on  her  person.   We quote  the 
following material from the evidence of PW1­ Sunil.
“.....Gold  Kanthi  which my mother  used  to war is  
appearing  in her  photograph.    I can identify  gold  
Kanthi which my mother used to war.  Gold Kanthi  
and   P   endol   from   the   Muddemal   property   at  
Sr.No.18 is now shown to me belongs to my mother,  
it is now marked at Article No.11.  Gold Kanthi at  
Article   No.11   now   shown   to   me   and   the   Kanthi  
appearing in the photograph at Article No.10 is the  
same .  I can identify my shirts and pant those were  
stolen.     Two   half   Manila   of   white   colour   at  
Sr.Nos.14   and   17   from   Muddemal   prperty   now  
shown to me they belong to me.  Those half Manila  
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missing pant was of white colour, but it is not there  
in   the   Muddemal   prperty.     I   know   Accused   no.1  
are   now   marked   at   Article   Nos.   12   and   13.     My  
Ajay, he used to work with me.  The construction of  
my house commenced in the year 2004, that time  
Accused no.1 Ajay was working with the contractor.  
After  construction  of  my  house  commenced  in the  
year 2004 that time Accused no.1 Ajay was working  
with the contractor.  After construction of my house  
ig
Accused   no.1   Ajay   used   to   come   at   my   house  
intermittently.   AT that time he used to clean the  
courtyard of my house as well as he used to do the  
work   of   gardening.     Ten   months   prior   to   this  
incident Accused no.1 Ajay had come to my house.  
He was in need of shelter and work.  I provided one  
room   to   Accused  no.1   Ajay  for  his  residence.    He  
used to do the sundry work at my house.  The room  
given   to   Accused   no.1   Ajay   was   adjoining   to   my  
Deoghar and it was h aving a door opening towards  
the   courtyard.     Accused   no.1   Ajay   stayed   in   my  
room for about 1 and one 1/4th month.  He used to  
carry our electric bills for payment.   Accused no.1  
Ajay used to drive his Auto­rickshaw and he used to  
keep his Auto­rickshaw in front in my house.   One  
pair  of  footwear  was found  near  my house  but it  
was   not   belonging   to   me   or   my   family.     Accused  
No.1 Ajay is present in the Court today.” 
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15
We have perused the cross­examination of this witness 
8.
conf1.13.odt
very carefully.   We find that the omissions brought in the cross­
examination mostly relate to the statements in the FIR.  Since,  it 
is   the  well  settled law that  the   FIR  is   not an  encyclopedia  and 
since   the   report   Exh.­35   was   immediately   lodged   with   Police 
Station after his arrival at his house from his village, we do not 
expect   him   to   tell   each   and   every   details   in   the   FIR.     We, 
ig
thereafter, reject the submissions made by learned counsel for the 
respondent­accused about the omissions in his FIR brought in the 
cross­examination.   However, insofar as the important portion of 
his evidence about accused no.1 working in his house during the 
construction   of   house  and  thereafter   for   about  1  1⁄4   month  and 
missing of several articles as quoted by us above duly identified by 
him before the Court and missing from the person of the deceased 
is an evidence which is fully believable and we do not find any 
discrepancy in the evidence of PW1­ Sunil.  At any rate, PW1­Sunil 
is not an eye witness.   He deposed before the Court and is the 
most   natural   witness   insofar   as   the   circumstances,   which   were 
required to be proved by him have been duly proved.  We have no 
doubt that whatever is deposed by PW1­Sunil, is worth and is with 
full   credence   and   relevant   for   finding   out   the   complicity   of 
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respondents­accused.     The   FIR   Exh.­35   which   was   lodged 
immediately   after   the   incident,   fully   corroborates   his   evidence 
before the Court.
9.
The next witness is PW2­Dilip, the building contractor 
who deposed thus:
ig
“I know Accused No.1 Ajay and Accused No.2 Nitin.  
They worked with me.  Accused nos. 1 and 2 are not  
before the court today.  Accused Nos.1 and 2 worked  
as   labourers   with   me.     I   know   Dr.   Tote   from  
Amravati.  The construction of his hospital was done  
by me.  At that time Accused No.1 Ajay worked with  
me   as   a   labourer.     I   know   Advocate   Sunil   Pund.  
Before five to six years I constructed his house.   At  
that time Accused No.1 Ajay and Accused No.2 Nitin  
worked with me as labourers.” 
10.
The   aforesaid   evidence   of   PW2­Dilip   is   very   material 
evidence about accused no.1­Ajay and accused no.2­Nitin working 
with   him   as   labourers.     He   has   clearly   deposed   that   when 
construction   of   the   house   of   PW1­Sunil   was   being   carried   out, 
both the accused nos.1 and 2 were working with him as labourers. 
We have perused the cross­examination of this witness.   We find 
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that the said material evidence, which we have quoted, has not at 
all been shaken by the defence.   This clearly shows that accused 
nos.1 and 2 were working on the site of construction of the house 
of PW1­Sunil. The evidence of PW1­Sunil is also corroborated by 
this witness, who is an independent witness.
The next witness examined by the prosecution is PW3­
11.
ig
Sunita.  She deposed that she does household work in the colony. 
The deceased Vijayatai had come to the house of neighbour, Smt. 
Chaudhari   and   had   kept   a   message   for   Sunita   to   visit   her.     At 
about   3.20   pm,   she   went   to   the   house   of   Vijayatai.     She   went 
inside through the compound gate and rang the door bell and also 
gave a call to Vijayatai, however, she did not receive any response. 
She saw one Luna in front of the gate of the compound wall and a 
pair of footwear.  As she did not get any response, she went back. 
At about 6.00 pm she met Tulsabai, cook of Vijayatai the deceased 
and both of them went to the house of Vijayatai and again rang 
the door bell and also knocked the door but none opened the door 
and there was no response.  Tulsabai, thereafter, went to the rear 
side of the  house and entered from the rear door and raised a cry 
and rushed towards the road.  From the evidence of this witness, it 
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is clearly  established that Luna was parked in front of the gate of 
the compound wall and a pair of the footwear was lying and that 
there was no response despite door being knocked and the bell 
being   rung.   It   is   also   established   that   the   rear   side   gate   was 
opened   and   Tulsabai   made   entry   from   that   gate   to   find   the 
deceased lying.   We have perused the cross­examination  of this 
witness.  The material evidence about the parking of Luna in front 
ig
of   the   gate   and   the   compound  wall   is   intact   and   has   not  been 
shaken in the cross­examination i.e. all the circumstances which 
this witness has firmly proved.    
12.
The next witness PW4­Balkrishna is the most important 
witness   of   the   prosecution   and,   therefore,   we   have   carefully 
reappreciated his evidence.  He is resident of the same colony and 
he knows PW1­Sunil Pund since his house is at a distance of 50­60 
ft. of his house or rather his house is in front of the house of this 
witness.  He then deposed thus in his cross­examination:
“2.
Incident is dated 17­7­2008.   My office  
hours are from 10.30 a.m. to 4.30 p.m.  On the day  
of   incident   I   returned   home   in   between   3.45   pm.  
And 4.00 p.m.  I was to collect some documents as I  
being   a   patient   of   diabetes   I   returned   home   for  
taking   food.    When   I   rearched   to   the   gate   of   my  
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the Luna of green colour. They kept their Luna near  
the compound gate of Adv. Pund.   Then they went  
house I saw two young persons proceeding away by  
inside   the   premises   of   Adv.   Pund   and   they   had  
pushed the door bell of Adv. Pund.  Mother of Adv.  
Pund had opened the door of the house.  Thereafter,  
they went inside the house of Adv. Pund.
3.
.....Out of those two young persons I can  
identify   Gopnarayan.     The   witness   has   identified  
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Accused   No.1   Gopnarayan   sitting   in   the   court. 
Before   10   to   11   months   of   this   incident   Accused  
No.1 Gopnarayan was residing in the house of Adv.  
Pund.  Accused No.1 was having auto­rickshaw and  
at that time he used to keep his auto­rickshaw near  
the house of Adv. Pund.  Accused No.1 used to clean  
the courtyard of the house of Adv. Pund, therefore,  
he was  known  to me.    The witness  had  identified  
Accused   No.2   and   he   says   that   Accused   No.2   is  

amongst  those  two  young  persons.  I  can  identify  
  
  
Luna used by those two young persons that day if  
shown to me.”
13.
The above evidence is material evidence.  This witness 
has   recognised   both   the   accused   persons   as   the   persons   who 
entered the house of the deceased in the afternoon between 3.45 
to 4.00 pm.   On the   deceased Vijayatai opening the door of the 
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conf1.13.odt
house   in   response   to   the   bell   being   rung   by   them.     We   have 
perused the cross­examination of this witness on the aforesaid very 
material evidence about the accused persons entering the house 
after parking the Luna bike at the house of the deceased.   The 
cross­examination does not show any discrepancy to demolish the 
aforesaid portion which is very material.  On the contrary, minor 
omissions as to the exact time of return at home from his college 
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or about he being a patient of diabetes cannot be the reason for 
rejecting   the   sworn   testimony   which   is   otherwise   believable. 
Merely because he is a neighbour, he cannot be disbelieved.   On 
the   contrary,   he   is   the   most   natural   witness   who   happened   to 
come to his home at the relevant time.  The evidence that he had 
come back to his house in the afternoon at about 4.00 pm and saw 
both   the   accused   persons   going   on   Luna   and   then   parking   the 
same in front of the house of PW1­Sunil and then entering the 
house   by   pressing   the   door   bell   and   the   deceased   Vijayatai 
opening   the  door  both  of   them   entering   the  house   through  the 
door was all seen by this witness and that part is not an omission 
as   contended   by   learned   counsel   for   the   respondents­accused 
persons.  It is only about the time of the omissions that has been 
brought but that is also not correct since the time mentioned is 
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4.00   pm   for   return   at   the   house   and   that   he   had   come   for 
collecting   some   important   documents   which   is   also   not   an 
omission as we have checked the same from the record.  There is 
whatsoever   no   explanation   in   the   statement   under   section   313 
Cr.P.C. by both the accused persons as to why they entered the 
house by pressing doorbell because within a short time thereafter 
To   sum   up,   the   evidence   of   PW4­Balkrishna   as 
14.
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Vijayatai was found brutally murdered.
aforesaid has not at all been shaken and we are satisfied about the 
credibility of the evidence who is the immediate neighbour and 
saw both the accused persons and identified both of them in the 
court in his evidence as quoted by us above.  We have no manner 
of doubt that the evidence of this witness must be believed.
15.
The next witness is PW5­Tulsabai.   PW5­Tulsabai is a 
witness who did not get any response when she went with Sunita 
and thus entered the house from the rear side to find the deceased 
lying.
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22
PW6 Vijay Chandak, is also an important witness on the 
16.
conf1.13.odt
question of the discovery made by accused no.1­Ajay.   We quote 
relevant portion from his evidence as under:
“.....It was about 2.45 to 3.00 p.m.  Police Inspector,  
two constables and one other person were there.   I  
was asked to hear the statement of the said person  
to act as panch.  I gave consent to it.  Other panch  
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had also come there.  On interrogation, said person  
told  his  name  as  Ajay   Gopnarayan.     He   disclosed  
that he kept the bag containing clothes at the house  
of   his   sister   sitauted   at   Naya   Akola   dn   he   would  
point out the said bag.  The statement made by said  
person was recorded by police in my presence.   His  
statement now shown to me is the same, it bears my  
signature, it is at Exh.­57.  It is also signed by Ajay  
Gopnarayan   and   other   panc   witness.     Thereafter,  
myself,   other   panch,   Ajay   Gopnarayan   and   police  
went to Naya Akola by a Jeep.   We reached Naya  
Akola within 10 to 12 minutes.   Ajay Gopnarayan  
showed house of his sister.  He gave call to his sister,  
accordingly his sister came out of the house.  He had  
asked his sister to bring the bag kept by him inside  
her  house.    Accordingly,  she  brought  the  bag  and  
gave it to Ajay Gopnarayan.  Ajay Gopnarayan took  
out clothes from the said bag and they were handed  
over to police.  Three white shirts, three Pants, one  
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clothes if shown to me.   Those clothes were seized  
and sealed by police.  Two Shirts and one Pant were  
Lungi   were   in   the   said   bag.     I   can   identify   those  
having   blood   stains.     Seizure   panchanama   was  
prepared   by   police,   and   it   bears   my   signature.  
Siezure panchanama now shown to me is the same,  
it is at Exh.­58.  The witness has identified Accused  
Ajay  Gopnarayan  sitting  in the court.    A Shirt at  
Sr.No.27 in Muddemal  invoice, which is at Article  
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No.14 and Pants at Sr.No. 28 and 29 in Muddemal  
invoice, which are at Article No. 15 and 16 are the  
same.  The Shirts at Sr.No.14 and 17 in Muddemal  
invoice which are marked at Article No.12 and 13  
are the same.   The bag at Sr.No. 30 in Muddemal  
invoice,  and the Lungi  at Sr.No.  26 in Muddemal  
invoice   are   the   same.     They   are   now   marked   as  
Article No. 21 and 22 respectively.” 
17.
The above evidence of this witness in clear terms shows 
that   there   was   discovery   by   accused   no.1­Ajay   of   the   very 
important   articles   clearly   establishing   the   complicity   of   accused 
no.1­Ajay.  PW6­Vijay is an independent witness and has nothing 
to   do  with   the   either   side.    He   travelled  with   police   party  and 
accused no.1­Ajay to the house of his sister in Naya Akola and at 
his instance, the articles were discovered.  We have perused cross­

examination of this witness and we find that the evidence of this 
independent witness has not been shattered and on the contrary, 
the   clothes   discovered   by   him   were   seized   by   police.   The 
submission   made   by   learned   counsel   for   the   accused   that   the 
process of sealing was done at Gadge Nagar Police Station and, 
therefore, this Panchanama should be disbelieved does not appeal 
to us.  We have carefully examined the submissions made by the 

counsel   for   respondents­accused   persons.     We   find   that   all   the 
articles   which   were   found   upon   discovery   made   by   accused 
persons, were brought to the Police Station and documents were 
scribed and sealing was done.   That may be an irregularity error 
but then we do not think that the same should be taken as if the 
documents were manipulated and sealing was not done.   We do 
not find force in the said submission. Upon reading the recovery 
panchanama Exh.­58 read with Exh.­69 carefully we find that the 
same stolen Luna was attached from the house of his sister Sau. 
Suryakanta Sawai situated at Naya Akola where accused no.1­Ajay 
took them upon making discovery memorandum statement.  These 
documents Exh.­58 and 69 cannot be read in isolation to hold that 
discovery/recovery was not proved as contended by the learned 
counsel for the accused.

PW7­Rajendra   Baitule   is   the   next   witness   who   is   a 
18.

goldsmith.     Though,   this   witness   hesitantly   supported   the 
prosecution but  whatsoever worth; his evidence can be believed. 
The portion from his evidence in the examination­in­chief that the 
accused Nitin was brought by police to his shop and identified that 
he was the very person who had come to his shop earlier but since 
he had no receipt of the ornaments, which he wanted to sell, he 
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had   not   purchased   the   same   is   not   shaken   in   the   cross­
examination.   He agreed that he had not purchased the articles 
from the accused for want of receipt and, therefore, the accused 
approached   the   another   goldsmith.     The   evidence   that   it   was 
accused no.2, who offered to sell the ornaments to him and that 
he had refused to purchase the ornaments from him because he 
had no receipt of the ornaments, inspires confidence.   We have 
checked cross­examination of this witness and we do not find that 
the   material   evidence   has   at   all   been   shaken   in   the   cross­
examination.  From his evidence, it is clear that accused no.2­Nitin 
had visited the shop of this witness offering to sell ornaments with 
him but since he had no receipt, this witness declined to purchase 
the ornaments from him and that was in the month of July­2008. 
This evidence having gone unchallenged, it was for the accused 
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conf1.13.odt
no.2­Nitin to give a satisfactory explanation to this evidence in his 
statement under Section 313 of the Cr.P.C., which he did not do.
19.
We   have   then   PW8­Vinod,   a   Motor   Mechanic,   who 
deposed   about   Luna   being   brought   at   his   shop   for   repairs. 
Accused   no.1­Ajay   then   confirmed   the   possession   of   Luna   with 
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accused no.1­Ajay and nothing more.
PW9­Ravindra Gadari, is owner of the said Luna which 
20.
was stolen from the Treasury Office.  He identified the Luna about 
which he had lodged the report of theft with Police Station.   We 
quote his evidence from para (1) thus:
“1.
I am doing service in Agricultural Office,  
Amravati.  I used to attend my office by using Luna.  
I had purcahsed the said Luna in the   year 2000.  
The   documents   of   said   Luna   are   with   me.     Said  
Luna is of green colour and having the number MH­
27/M­4204.  My Luna was stolen during last three  
years.   On 17.7.2008, I went to treasury office for  
submitting   bills   of   my   office.     I   went   to   treasury  
office with my Luna at 11.00 a.m.   After  keeping  
Luna at the stand of treasury ofice, I went inside the  
treasury office.  I came out of treasury office at 4.00  
p.m.  I did not see my Luna at the stand of treasury  
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conf1.13.odt
Police Station on the next day.  Police had asked me  
to make inquiry regarding Luna for two days.  Then  
office.  I made inquiry in the vicinity and I went to  
I lodged  report  to  Gadge  Nagar  Police  Station  on  
19th.   Said  Luna  is now  with  me.    Today,  I have  
brought said Luna in the Court.
2. & 3.
4.
I   had   taken   my   Luna   on   supratnana  
from   the   court.     I   had   submitted   copies   of  
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documents regarding my Luna in the court.   Form  
No.   23   from   the   remand   paper   is   shown   to   the  
witnesses.  This document is referred by the defence  
counsel in cross­examination, therefore, it has been  
marked at Exh.67.   Witness says that chassis and  
engine number of his Luna are there in Exh.67.  In  
my   Police   statement   I   have   stated   that   chassis  
number of my Luna as BK­0­3023041 and engine  
nubmer as BK­1­3027978....”
The Luna that was seized at the instance of the accused 
no.1­Ajay from the house of his sister on discovery, was clearly 
identified by this witness which is clear from para 4 of the cross 
examination with the same Engine No. and Chassis No.  It is, thus, 
clear   that   accused   Ajay   had   committed   theft   of   the   said   Luna 
belonging to this witness and post commission of the offences had 
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conf1.13.odt
gone   to   the   house   of   his   sister   at   Naya   Akola   stands   firmly 
established by the prosecution.  
We   have   perused   his   cross­examination.   The 
submission that the report in respect of that Luna was lodged after 
the   incident   of   murder   does   not   appeal   to   us   because   there   is 
evidence to show that the Police Station Officer had asked him to 
search the Luna for two days and then lodge report with Police 
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Station and that he had actually searched his Luna with his friend 
but could not find it and hence he lodged the report.  We do not 
think this witness would lodge a false report about the theft of his 
Luna in order to involve the accused persons in the absence of any 
enmity against them nor there is any suggestion to the effect that 
he was influenced by police to do so.
21.
The  next  witness  is  PW­10   Nandkumar   who  deposed 
about the personal search of both accused persons.   This witness 
proved document Exh.­69 about which we have already made a 
discussion that though the documentation was made in the Crime 
Branch Office in respect of both accused persons; the same was in 
consequence to the discovery memorandum and the visit to the 
site  where  incriminating  articles  against them were  found upon 
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conf1.13.odt
their personal search.  At any rate, he is an independent witness. 
Exh­69 describes the injury on the person of accused no.1­Ajay, 
which   were   found   upon   his   personal   search.     We   quote   the 
following portion of the injuries from the said document Exh.­69 
thus:
“On   making   minute   inspection   of   person   of   above  
accused, it is observed that there are injuries at three  
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places on the left neck and at one place below the left  
ear.  A mark like that of scratch is visible on the left  
side   portion   below   the   jaw.     Similarly,   mark   of  
abrasion is visible on his left elbow.  A cut injury to  
the   extent   of   two   centimeters   is   visible   on   inner  
portion   of   first   phalange   of   his   right   thumb.  
Similarly,   a scratch­mark  is  visible   on   the   portion  
22.
Exh.­70 is another document in respect of the injuries. 
We quote following portion from the said document in respect of 
the accused no.2­Nitin about injury:
between the said thumb and forefinger.”
“(1)
Mark of injuries visible (on his person),  
viz. On the left cheek on the portion below the right  
ear, below left ear, on the left side portion below the  
jaw, on the left elbow on right thumb and on middle  
portion of fore finger.   The medical examination is  
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23.
and before what period the said injuries are caused.”
being done in order to know as to with what object  
PW11­Dr. Pallawi examined both the accused persons 
and   issued   certificate   Exh.­73   and   74   about   injury.     Though, 
injuries   are   in   the   nature   of   abrasion   on   the   person   and   were 
examined on the date of arrest itself namely on 19.07.2008, the 
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accused   persons   did   not   say   a   word   in   their   statement   under 
Section 313 of the Cr.P.C. about the cause of the injuries.   The 
learned counsel for the accused invited our attention to the injury 
certificate Exh.­135, 136 and contended that on 20.07.2008, there 
were no injuries on the person of the accused persons.   We have 
examined the said submission and we find that the evidence about 
their medical examination on 19.07.2008 by PW11 Dr. Pallavi has 
not been seriously challenged.   The examination after more than 
24 hours on 20.07.2008 of both the accused showing no injuries 
may not show the presence of abrasions due to softening of the 
abrasions or for want of careful examination thereof.   This is all 
the more so because the accused no.2 was examined by PW11­Dr. 
Pallavi  on   the  very  date  of  arrest and she   found  abrasions   and 
noted   the   same.     There   is   no   reason   why   her   sworn   testimony 
should be disbelieved.
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PW13­Ashish   Raut   also   discovered   the   articles   at   the 
24.
conf1.13.odt
instance of accused no.2­Nitin Gudadhe which he had hidden. We 
quote his evidence as under:
“1.
Before two years I was called by Police to  
act as a panch.  Accordingly, I went to Gadge Nagar  
Police Station.   Police and one person were present  
there.  Said person was interrogated by Police in my  
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presence.  He has admitted to point out gold Kanthi  
that was kept by him in the rear side of his house  
situated   at   Reosa.     Said   person   told   his   name   as  
Nitin Gudadhe resident of Reosa.  Said person made  
the said statement in my presence and in presence of  
Sudhakar   Wighe.     His   statement   was   recorded   by 
Police and they obtained our signatures on it.   His  
statement   was   also   signed   by   him   and   the   Police  
Inspector.   Memorandum  statement  now shown to  
me   is   the   same,   it   bears   my   signature,   it   is   at  
Exh.78.     Thereafter,   myself   another   panch,   Nitin  
Gudadhe  and Police went to Reosa  by jeep.    After  
going to village Reosa Nitin Gudadhe has asked to  
stop the jeep.  Thereafter, he took us to his house by  
foot.  He then went to the rear side of his house and  
he took out a plastic packet kept under the heap of  
stones.  One gold Kanthi and two gold Chains were  
in the said plastic packet.   One Pearl Necklace was  
also there in the plastic packet.  
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Those articles were seized by Police in my  
presence.   The description of those articles given in  
seizure panchanama is correct. Seizure panchanama  
2.
conf1.13.odt
now shown to me is the same, it is signed by me and  
another   panch.   The   seizure   panchanama   is   at  
Exh.79.  I can identify those articles.  Gold Kanthi at  
Article No.11 and the ornaments of Bentac at Article  
No. 18 before the Court now shown to me are the  
same.   Pearl Necklace includes in the ornaments of  
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Bentac at Article No. 18.  After the seizure of those  
articles we went to Police Station.   On the way to  
Police   Station,   Police   were   interrogating   Nitin  
Gudadhe.  At that time Nitin Gudadhe told that he  
had thrown one Purse near Power House situated on  
Morshi   road.     He   admitted   to   point   out   the   said  
Purse.     After   going   to   Police   Station   his  
memorandum   statement   was   accordingly   recorded  
by   Police.   His   memorandum   statement   bears   my  
signature. His memorandum statement is at Exh.80.  
Memorandum statement was recorded by Police as  
per his version.
3.
Thereafter,   myself,   Sudhakar   Wighe,  
Nitin   Gudadhe   and   Police   went   to   Power   House  
sitauted   on   Morshi   road.     Nitin   Gudadhe   pointed  
out the spot in front of Power House.  Purse was not  
found   on   the   said   spot,   however,   two   bank  
passbooks  and one cheque  book  were found  there.  
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by Police.  Seizure panchanama now shown to me is  
the   same,   it   bears   my   signature,   it   is   at   Exh.81.  
Those bank passbooks and cheque book were seized  
Bank pass­books and cheque book before the Court  
at Article no.17 are the same.  Person who made the  
memorandum statements that day is present in the  
Court, he is the Accused No.2 in this case.  Then we  
went to Police Station.  In the Police Police Station  
the   clothes   worn   by   Nitin   Gudadhe   were   seized.  
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Seizure panchanama of his clothes was prepared by  
Police in my  presence.  Seizure  panchanama  of his  
clothes bears my signature, it is at Exh.82.   I can  
identify those clothes if shown to me.”
25.
We have perused the cross­examination of this witness 
and we do not find any infirmity in the evidence of this witness 
who has deposed honestly on the discovery of various articles from 
accused   no.2­Nitin   though   the   Panchanama   was   ultimately 
prepared at the Police Station but then we have already found that 
only the documentation was done at the police station which does 
not mean that the accused were not taken to the spot where the 
discovery   was   made   under   the   recovery   Panchanama 
Exhs.­ 81 and 82.

The   report   of   the   Chemical   Analyser   shows   that   the 
26.

blood group of the deceased Vijayatai was “A”,   from the various 
blood stained articles seized from the spot.   The report Exh.­105 
shows article 14 seized from the accused no.1 with human blood 
and articles 15 and 16 seized from accused no.2 were also having 
human   blood.     Article   16   is   having   blood   group   “A”   of   the 
deceased.  The blood group of the accused no.2 Nitin has not been 
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determined.   The  blood group  of  accused no.1­Ajay Exh.­107 is 
“A”.       It   is   not   the   case   of   accused   no.1­Ajay   that   there   was 
bleeding injury at any point of time from his person on any of the 
articles seized from him.  It was for him to explain the existence of 
human blood on article 14 seized from him so also for accused 
no.1­Nitin from whom articles 15 and 16 both blood stained were 
seized.  They did not explain anything.
27.
The learned counsel for the respondent­accused invited 
our attention to Exh.­88, which was admitted by accused persons 
and   thus   exhibited.     They   were   issued   pursuant   to   Exh.­87 
requisition given by police officer to the Medical Officer, General 
Hospital, Amravati.  On perusal of these two documents, which are 
purportedly showing the blood group reports of accused no.1 Ajay 

and Nitin as “O” positive and “B” positive respectively, we find that 
these two reports Exh.­88 or two pieces of papers at record page 
nos. 168 and 170 are  almost of the size of 1/8th of the full scape 
paper   torn   out   of   the   printed   form   in   the   hospital   that   too   in 
different handwriting and without any endorsement or signature 
or   certification   from   anybody   mentioning   the   blood   groups   of 
accused   persons   as   aforesaid.     There   is   no   stamp   of   hospital 

anywhere nor any details as to who determined their blood groups 
and how.   They are torn pieces of the printed papers.   It is true 
that   these   two   pieces   of   printed   paper   were   produced   by   the 
prosecution with Exh.­77 but then it is for the Court whether to 
accept or not the same as legal evidence.  The reason is that it is 
not clear who determined blood group and whose handwriting it 
is.  These two pieces of papers have been admitted by the defence 
and,   therefore,   exhibited   purportedly   with   reference   to   Section 
294 of Cr.P.C. in a most casual manner.
28.
Section 294 of the Cr.P.C. reads thus:
“294.
No formal proof of certain documents­  (1)  
Where  any document  is filed  before  any  Court  by  
the   prosecution   or   the   accused,   the   particulars   of  
every such document shall be included in a list and  

or the pleader for the prosecution or the accused, if  
genuineness of each such document.
(2)
any,   shall   be   called   upon   to   admit   or   deny   the  
the prosecution or the accused, as the case may be,  
The list of documents shall be in such form  
as may be prescribed by the State Government.
(3)
Where the genuineness of any document is  
not   disputed,   such   document   may   be   read   in  
evidence  in  any  inquiry,  trial   or   other  proceeding  

under  this Code without  proof  of the signature  of  
the person by whom it purports to be signed:
Provided   that   the   Court   may,   in   its  
discretion, require such signature to be proved.”
The   aforesaid   section   was   introduced   by   amendment 
after year 1970.  Section 294 Cr.P.C. was enacted with a view that 
the prosecution evidence may be shortened and the prosecution 
may not be required to prove the documents which are admitted 
by accused persons.   The intention of the Legislature was not to 
bind   the   accused   persons   or   force   him   to   admit   or   deny   the 
genuineness of the documents produced by the prosecution  that is 
why the Court would not be justified in passing the order directing 
accused to admit or deny the documents, obviously since it would 
violate Article 20 (3) of the Constitution of India.   Be that as it 
may, the question that arises for our consideration relates to the 

procedure, which must be followed while insisting for admission 
or   denial   of   the   genuineness   of   the   documents.     To   our   mind, 
Section   294   (1)   in   particular   providing   for   insertion   of   the 
description of the document in the list to be prepared either by the 
prosecution or the accused for calling upon either party to admit 
or   deny   the   genuineness   of   the   documents   must   be   held   to   be 
mandatory.   In other words, for making use of or for asking for 

effective operation of section 294 (1), (2) or (3), the particulars of 
such documents must be included in the list.  In other words, the 
documents   which   are   not   included   in   the   list   contemplated   by 
Section 294 (1) cannot be put forth for admission or denial nor 
can   be   exhibited   or   read   in   evidence   without   proof   as 
contemplated by Section 294 (3) of the Cr.P.C.   This is to prevent 
either   the   prosecution   or   the   accused   to   push   a   document   for 
clandestinely exhibiting it by admission and then read in evidence. 
We, therefore, reiterate that under section 294 (1), (2) and (3), 
only the documents included in the list either by the prosecution 
or   the   accused   and   submitted   for   admission   or   denial   can   be 
processed for putting the sanctity as legal evidence contemplated 
by Section 294 (3) and not the documents which are not included 
in the list by either of the party.

Let us now turn to the case at hand.  The case at hand 
is typical example of such lapse on the part of the Presiding Officer 
as well as ministerial staff of the Sessions Court.  The documents 
Exh.­87 and 88 were never included in the list Exh.­22 submitted 
by the prosecution under section 294 (1) of the Cr.P.C. that was 
given to the accused for admission or denial.   We have carefully 

perused the list, which was prepared and submitted to the Court 
by the prosecution with a notice to the accused for admission and 
denial under section 294 Cr.P.C. but we find that the documents 
Exh.­87   and   88   (two   pages)   are   not   to   be   found   in   the   list. 
Perusal of the record clearly shows that the Presiding Officer or 
the   ministerial   staff   of   the   Court   exhibited   Exhs.­87   and   88 
without verifying whether Exh.­87 and 88 were included in the list 
filed by the prosecution merely because counsel for the accused 
admitted   Exhs. 87 and 88.   Thus, there is a blatant violation of 
the  aforesaid  procedure  elucidated by us  above.   It  is  said,  the 
prosecution is a 'handmaid' of justice.  In our opinion, that is not 
always so, as in the instant case, the provisions of Section 294 (1) 
and (2) being mandatory.  To sum up, we hold that Exhs.­87 and 
88 cannot be read in evidence as contemplated by Section 294 (3) 

and, therefore, we reject these documents Exh.­87 and 88.
29.
This  Court has  observed in large  number  of  Sessions 
Trials  having  perused the  original  records  of  the  cases  that the 
notice under section 294 (1) is given by the prosecutors before the 
Court in a format prepared by them as per their whims.  It is also 
found that such applications are also tendered handwritten and 

lists are submitted to the Court and the Court has been accepting 
the said lists mechanically and going ahead with the hearing and 
orders on Section 294 (1) application.  Thus, both the prosecutor 
as well as Presiding Officer of the Court, ministerial staff and in 
cases where counsel for the accused gives such application, none 
cares to see that the format of list under section Section 294(2) 
has been prescribed.  In Criminal Manual Chapter VI para 32, such 
a form is prescribed which reads thus:
“Admission   of   certain   documents   directly   in  
evidence without formal proof.
32.
Attention of the Magistrates and Judges is 
invited   to   Section   294   of   the   Code   of   Criminal  
Procedure, 1973, according to which the particulars  
of   the   documents   filed   before   the   Court   shall   be  
included   in   a     list,   in   the   prescribed   form   given  

case may be, or the pleader for the prosecution or  
the accused, if any, shall be called upon to admit or  
below, and the prosecution or the accused, as the  
deny the genuineness of each such documents and if  
the   genuineness   of   any   document   is   not   disputed  
such   document   may   be   read   in   evidence   in   any  
inquiry, trial or other proceedings, without proof of  
the signature of the person to whom it purports to  
be signed which, however, the Court may in List of  
*Prosecution
By the *accused.

documents filed before .........Court
Particulars   of   the  Pages Whether 
By   whom  Names   of   attesting  Remarks   if 
documents   with 
original 
prepared persons   whether  any
dates
certified copy
they   are   cited   as 
witnesses
Sr
No
30.
We are not only amazed but are anxious since the said 
format prescribed by para 32 quoted above is not at all being used 
either by prosecution or by accused or by the Presiding Officer of 
the   Court   and   that   is   the   reason   why   the   prosecution   or   the 
counsel for the accused have been preparing format and the list 
contemplated by Section 294 (1) as per their own whims.   We 
deprecate   such   a   practice   since   according   to   us   the   format 
provided by para 32 is prescribed with precision and none of the 

parties should be allowed to have the format of their own.   We 
also   deprecate   the   practice   of   exhibiting   the   documents   not 
included in the list under Section 294 (2) and in this case Exhs.87 
and 88 which were not included in the list Exh.­22 contemplated 
by Section 294 (2) Cr.P.C.
We direct the Registry to send the copy of paras 27 to 
29 with cover page of this judgment to the Registrar General for 

being circulated to the Magistrates and the trial Judges.  We also 
direct   the   Registry   to   send   the   copy   thereof   to   the   Principal 
Secretary,   Law   and   Judiciary,   Mantralaya,   Mumbai   who   may 
supply   the   printed   format   of   list   u/s   294   (2)   Cr.P.C.   to   the 
prosecutors in the courts of Magistrates and the Judges, also by 
putting on website.
31.
At any rate, according to us, these documents Exhs. 87 
and 88 cannot be said to have been proved in accordance with law 
and will have to be ignored.  Even if these documents under Exh.­
87 and 88 are taken into consideration, they are of no help to the 
defence inasmuch as they show different blood groups than the 
blood group “A” of the deceased and, therefore, no foundation can 
be laid by the defence on the basis of Exh.­88 which would, in no 

manner, support the defence.  We, therefore, find that the forensic 
complicity of both the accused persons.
32.
evidence   has   been   duly   proved   and   it   shows   the   clear   cut 
PW18­Devidas is Finger Print Expert.  Learned counsel 
for the accused criticized the manner in which the finger prints 
and   the   photographs   were   taken,   so   also   the   approach   of 

Supervising Officers, who approved the report of finger prints as 
that   of   accused   no.2­Nitin.     We   quote   the   evidence   of   PW18­
Devidas, which reads thus: 
“.....I then compared the finger prints of the accused  
with the fit chance print.   The chance print which  
was found  fit when I compared  with the prints of  
the hands of accused sent by the police, I found that  
the chance print tallied with the left print palm of  
accused Nitin.  I then prepared my opinion on 24­7­
2008.  Exh.­124 is the same.  My opinion has been  
approved by Deputy Director Finger Prints, Nagpur.  
To that effect, I received  a letter.   That letter  was  
addressed  to police station Gadge Nagar  and copy  
was   given   to   me.     The   copy   which   I   received   is  
marked at Exh.125.  At the office of Deputy Director  
Finger Prints, Nagpur as per procedure my opinion  
was re­examined and thereafter the Deputy Director  
approved my opinion.  The committee approved my  
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conf1.13.odt
Exh.124.    While comparing  the chance prints and  
the impressions of the hands of accused I took the  
opinion.     The   endorsement   to   that   effect   is   on  
enlargement   thereof.     I   have   produced   those  
enlargements.   They are marked at Exhs. 126 and  
127.    I  marked  the  characteristic  thereon.     I  had  
shown   nine   characteristic   in   the   enlargements   by  
giving  number.    I have  prepared  the  statement  of  
reasoning thereon which is marked at Exh.128.  As  
ig
per   my   opinion   the   print   of   accused   Nitin   tallied  
with the chance print.
It is my say that the finger prints of one  
(2)
person   never   tally   with   the   finger   prints   of   any  
another   person.     These   finger   prints   of   a   person  
never change.”
33.
We have perused the cross­examination of this witness. 
We have also applied our mind to the expert opinion on the finger 
prints.  We do not find anything in the cross­examination to reject 
the   evidence   of   this   witness   on   the   proof   of   finger   prints   of 
accused   no.2­Nitin.     The   minor   nature   of   discrepancy   in   the 
certification by higher authorities after examination pointed to us 
by counsel for the accused persons also does not impress us since 
there is no material discrepancy in the drawing of finger prints and 
examination thereof and the conclusion arrived at namely that the 
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44
conf1.13.odt
finger prints collected from the spot matched with accused no.2­
Nitin's   finger   prints.     The   submission   that   no   injuries   were 
mentioned in the arrest Panchanama of accused persons also does 
not impress us since for independently recording the finger prints 
that would not be relevant and it is clear that by itself would not 
create any doubt.  At any rate, there is evidence of PW4­Balkrishna 
ig
Nitin which we have believed.
and   recovery   of   blood­stained   articles   as   against   accused   no.2­
34.
To  conclude,   upon   making   detailed   reappreciation   of 
the evidence and discussion as above, we find that the following 
list of circumstances have been duly established by the prosecution 
without leaving any manner of doubt and which have been rightly 
culled out by the trial Court and we quote the same as under:
“(1)
Accused   No.1   was   seen   on   16.7.2008  
passing through the nearby vicinity of the house of  
complainant.
(2)
Accused  No.1 and 2 were seen by PW4  
when he came to his home at around 3.45 to 4.00  
p.m.  The accused were seen lastly parking Luna in  
front   the   house   of   complainant   entering   in   the  
premises, ringing the door bell and opening of the  
door by the deceased, who took the accused persons  
inside the house.
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45
PW5 went to the house of deceased and  
she got no response from inside.
(4)
saw   Luna   was   standing   near   compound   gate   and  
(3)
conf1.13.odt
At   around   6.00   to   6.30   p.m.   deceased  
was  found  lying  dead  in a pool  of  blood  by  PW3  
and 5.
(5)
The idol of god was lying on the way in  
back door when PW5 entered inside the house.
The   idols   were   also   found   scattered   on 
(6)
complainant.
PW8 motor mechanic corroborated that  
(7)
ig
the   back   side   open   space   of   the   house   of  
the   Accused   No.1   had   brought   Luna   to   him   in  
repairy.
P.W.9 was the owner  of the Luna used  
(8)
by the accused in the crime.
(9)
The blood stained clothes of the accused  
persons seized from them.
(10)
The   blood   stained  Kanthi   seized   at  the  
instance   of   the   Accused   No.2   and   the   recovery   of  
pass books, cheque books from the place shown by  
the Accused No.2.
(11)
The   chance   print   collected   from   steel  
almirah   from   inside   the   house   of   complainant  
tallied  with  those  of  the  palm  print  impression  of  
the Accused No.2.
(12)
Accused  No.2 had gone to Daryapur  to  
the shop of PW7 to sell some golden ornaments.
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46
Accused   not   explaining   incriminating  
circumstances as proved by the prosecution.
The   circumstances   show   that   when  
(13)
conf1.13.odt
P.W.5   went   to   the   house   of   deceased   the   accused  
were   inside   the   house   and   by   noticing   somebody  
ringing the door bell they ran away from the back  
door hurriedly, however prior to that the deceased  
was already killed.  P.M. report explains the time of  
death after 3­4 hours of meal.  Thus the accused in  
ig
the   afternoon   at   around   4.00   p.m.   after   having  
lunch by the deceased killed her.  Thereafter there is  
no   evidence   of   entry   of   any   body   else   inside   the  
house   besides   the   entry   of   P.W.5   who   noticed  
deceased in a pool of blood.”
We are in full agreement with the conclusions drawn by 
the trial court about the aforesaid chain of the circumstances being 
duly proved and that the prosecution succeeded in proving its case 
beyond any doubt.
35.
We have no manner of doubt that it were the accused 
persons   who   committed   such   a   heinous   crime   of   robbery   and 
murder   for   petty   gains.   We   are   fully   convinced   that   it   were 
accused   Ajay   and   Nitin,   who   fully   knowing   the   timings   of   the 
loneliness of the deceased Vijayatai in the house in the afternoon 
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conf1.13.odt
made a plan and entered the house taking advantage of accused 
Ajay's   proximity   with   the   family   of   the   deceased   Vijayatai.     By 
betraying the trust reposed in Ajay, they entered her house, the 
deceased having no slightest inclination about their intention to 
commit   robbery   and   her   murder.     We,   therefore,   hold   both 
accused  guilty   of  commission   of  offence  under   section  392   and 
ig
The   next   question   is   about   the   confirmation   of 
36.
302 of the I.P.C.
imposition of sentence of death to accused no.1 awarded by the 
trial   Court.       We   have   carefully   examined   the   said   issue   about 
sentence   in   the   light   of   the   various   decisions   cited   by   learned 
counsel for the rival parties.
37.
We   find   that   the   learned   trial   Judge   has   referred   to 
several decisions for infliction of death sentence on accused no.1­
Ajay.  We have perused those decisions.  The reasons furnished by 
trial court for inflicting the death sentence are to be found in para 
111.  We quote the same as under:
“(111)
There   are   no   mitigating   circumstances  
coming   before   the   court   as   against   the   Accused  
No.1.  He is an adult, was 32 years old at the time  
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48
conf1.13.odt
about  his mental  or financial  status  is shown,  no  
murder.  To sum up the Accused no.1.
(1)
enmity or rivalry is seen, instigating him to commit  
of offence, made the deceased to trust him.  Nothing  
has   committed   the   murder   along   with  
Accused   No.2   in   extremely   brutal,   gruesome,  
diabolic manner so as to arouse intense and extreme  
indignation of the community.
has   murdered   deceased   for   his   gain  
(2)
(3)
ig
evincing total depravity and meanness. 
has   murdered   an   old,   unprotected  
helpless   woman   who   trusted   him   and   who  was  a  
well   known   eminent   personality   respected   by   the  
community. 
had cooked plan, and executed in broad  
(4)
day light.
(5)
created terror in the society.
Murder is a heinous crime.  If offence is  
proved   punishment   is   imprisonment   for   life.     The  
law has again categorized the murders in common  
and uncommon categories.  Uncommonness depends  
upon the factual matrix of each case, but it must be  
affecting the community.  Judicial notice of the fact  
can be taken that the state machinery is trying to  
take  measures  for  the  safety  of  old  citizens  inside  
their homes.”

49
We have perused the latest decisions of the apex Court 
38.
conf1.13.odt
in the case of  Sandeep ..vs.. State of Uttar Pradesh; (2012) 3  
SCC (Cri) 18.   We quote para 71 and 72 from the said decision 
thus:
“71.
In order to appreciate the principle in a 
nutshell, what is stated in Haresh Mohandas Rajput  
(supra) can be usefully referred to which reads as  
under: (SCC pp. 63­64, para 20)

“20. The rarest of rare case” comes when a convict  
would be a menace and threat to the harmonious  
and  peaceful   coexistence   of  the  society.   The   crime  
may   be  heinous   or   brutal  but  may  not   be  in  the  
category of “the rarest of the rare case”. There must  
be no reason to believe that the accused cannot be  
reformed   or  rehabilitated  and   that  he  is  likely   to  
continue   criminal   acts   of   violence   as   would  
constitute   a   continuing   threat   to   the   society.   The  
accused may be a menace to the society and would  
continue   to   be   so,   threatening   its   peaceful   and  
harmonious coexistence. The manner in which the  
crime is committed must be such that it may result  
in   intense   and   extreme   indignation   of   the  
community   and   shock   the   collective   conscience   of  
the society. Where an accused does not act on any  
spur­of­the­   moment   provocation   and   indulges  
himself   in   a   deliberately   planned   crime   and  
meticulously executes it, the death sentence may be  

crime. The death sentence may be warranted where  
the   victims   are   innocent   children   and   helpless  
the most appropriate punishment for such a ghastly  
women. Thus, in case the crime is committed in a  
most   cruel   and   inhuman   manner   which   is   an  
extremely brutal, grotesque diabolical, revolting and  
dastardly  manner, where his act affects the entire  
moral fibre of the society e.g. crime committed for  
power   of   political   ambition   or   indulging   in  
be awarded.”
It   is,   therefore,   well­settled   that  
72.

organized criminal activities, death sentence should  
awarding   of   life   sentence   is   the   rule,   death   is   an  
exception. The application of the ‘rarest of rare case’  
principle is dependent upon and differs from case to  
case. However, the principles laid down earlier and  
restated   in   the   various   decisions   of   this   Court  
referred  to above  can  be broadly  stated  that  in a  
deliberately planned crime, executed meticulously in  
a diabolic manner, exhibiting inhuman conduct in a 
ghastly manner touching the conscience of everyone  
and thereby  disturb  the moral  fibre of the society  
would call for imposition of capital punishment in  
order to ensure that it acts as a deterrent.”
39.
We then   find  that  though  we   are  convinced that  the 
case   of   the   prosecution   based   on   the   evidence   displayed, 

established the commission of offences by the accused nos. 1 and 
2, without any iota of doubt; we are of the considered opinion, 
that still the case at hand does not fall within the four corners of 
the   principle   of   the   ‘rarest   of   the   rare'   case.    Such   incidents   of 
murder of old persons take place for robbery.   But then it is not 
the case of the prosecution that accused no.1­Ajay is a professional 
robberer   or   that   there   are   any   criminal   antecedents   with   him. 

There   is   nothing   on   record   to   show   that   besides   committing 
robbery, he had any intention or any other special interest to kill 
the old lady, the deceased Vijayatai.  Further, there is nothing to 
show that he would be a menace to the society.  At the same time 
considering   the   plight   of   the   helpless   old   woman   of   about   75 
years, who was brutally killed and the manner in which she was 
done to death by causing multiple injuries on vital parts of her 
body   with   a   big   knife,   respondent   no.1   does   not   deserve   any 
leniency particularly because he enjoyed the position of trust of 
the deceased Vijayatai but still committed the robbery and murder.
40.
In   the   case   of  Swamy   Shraddananda   ..vs..   State   of 
Karnataka; (2008) 13 SCC 767 while setting aside the sentence 
of death penalty and awarding life imprisonment, it was ordained 

should not be released from the prison till the end of his life.
that in  order  to serve  the  ends  of  justice, the  appellant therein 
In  Ramraj ..vs.. State of Chattisgarh; (2010) 1 SCC  
41.
573, while setting aside the death sentence, the Supreme Court 
directed that the accused therein shall serve minimum sentence for 
a   period   of   20   years   including   remission   and   would   not   be 

released on completion of 14 years imprisonment.
42.
We, on similar lines, strongly feel that the appellant­
accused   no.1   Ajay   should   serve   minimum   sentence   of   30   years 
with   remissions   while   the   accused   no.2­Nitin   should   serve 
minimum period of 20 years with remissions.
43.
We, therefore, pass the following order.
    O R D E R
(i)
Criminal Appeal No. 225/2013 filed by  
accused     no.1   Ajay   Dayaram   Gopnarayan   and  
accused no.2 Nitin Nadkishor Gudadhe is dismissed.
(ii)
Criminal Confirmation Case No. 1/2013  
for   confirmation  of  death   sentence   is  answered   as  
follows:

The   judgment   and   order   of   trial   court  
dated   01.03.2013   holding   the   appellants­accused  
no.1­Ajay  Dayaram Gopnarayan and accused no.2­
(a)

Nitin Nandkishore Gudadhe, guilty for the offences  
punishable under sections 302 and 392 of the I.P.C.  
and convicting accused nos. 1 and 2 for the offences  
punishable under sections 302 and 392 of the IPC is  
confirmed.
The award of death sentence to accused  
(b)

no.1­Ajay   Dayaram   Gopnarayan,   imposed   by   the  
trial court is set aside and in its place, it is ordered  
that   the   accused   no.1­Ajay   Dayaram   Gopnarayan  
shall undergo imprisonment for a period of 30 years  
with remissions.
Accused   no.2­Nitin   Nandkishore  
(c)
Gudadhe, is sentenced to undergo imprisonment for  
life   and   shall   undergo   sentence   of   minimum   20  
years   with   remissions   for   both   the   offences  
punishable under sections 302 and 392 of the I.P.C.
(iii)
All the sentences shall  run concurrently  
for all the aforesaid offences.
(iv)
Both the accused persons are entitled to  
set  off  under  section  428  of  the  Code  of  Criminal  
Procedure.


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