# Chandrabhan Sudam Sanap v. The State of Maharashtra

- **Citation:** 2025 INSC 116
- **Court:** Supreme Court of India
- **Decided:** 2025-01-28
- **Case number:** Criminal Appeal No. 879 of 2019
- **Bench:** B.R. Gavai, Prashant Kumar Mishra, K.V. Viswanathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chandrabhan-sudam-sanap-v-the-state-of-maharashtra-38104
- **Pages:** 64

## Headnote

Matter pertains to the correctness of the order passed by the High
Court upholding the conviction of the appellant for rape and murder
of the deceased and imposition of death sentence.
Headnotes†
Evidence - Circumstantial evidence - Admissibility of
evidence of witnesses and recovery - Admissibility of CCTV
evidence - Requirement of certificate u/s.65 B(4) - On facts,
conviction of the appellant for offences punishable u/ss.302,
364, 366, 376(2)(m), 376A, 392 rw ss.397 and 201 IPC for rape
and murder of the deceased and sentenced to death by the
courts below - Hypothesis of guilt, if established on basis of
the circumstantial evidence:
Held: There are gaping holes in the prosecution story leading to
the irresistible conclusion that there is something more than what
meets the eye - Circumstances relied upon when taken together do
not lead to the sole hypothesis of the guilt of the accused and the
chain is not complete - Test of Sharad Birdhichand Sarda's case
on circumstantial evidence not satisfied - Sustaining conviction
based on this sketchy and disjointed evidence not justified - On
the available evidence, extremely unsafe to sustain conviction
against the appellant - Prosecution did not establish its case
beyond reasonable doubt - Certificate u/s.65-B(4) is a condition
precedent to the admissibility of evidence by way of electronic
record - When the prosecution was aware of the need for the
s.65-B (4) certificate and they themselves collected it for the CDRs,
no reason as to why they did not collect the same for the CCTV
* Author
1042
[2025] 1 S.C.R.
Supreme Court Reports
footage - No reliance can be placed on the CCTV footage, insofar
as an attempt was made by the prosecution to attribute that the
appellant and the deceased were last seen together based on the
CCTV footage, and is eschewed the same from consideration -
Evidence of the prosecution witnesses for the last seen together
as well as evidence of the prosecution witnesses for sighting the
appellant, fails to inspire the necessary confidence to clinchingly
establish the circumstances of last seen - Test identification
parade vitiated as the photographs of the appellants were all over
the place in the media - Evidence of the dog walker to establish
presence of the appellant in the vicinity of the crime unnatural -
He is not the witness in the last seen category, but only claims to
have seen the appellant under circumstances which are doubtful,
thus, his evidence is discarded - Also, the evidence given by
other prosecution witnesses do not constitute circumstantial
evidence having any nexus with the commission of the crime,
thus, totally discarded from the chain of circumstances - Extra
judicial confession of the prosecution witness-so called friend of
the appellant, by its very nature, is a weak piece of evidence and
is rejected - There are so many omissions in the statement of
the said prosecution witness, as also no corroboration in material
particulars - Evidence of recovery of articles also not impressive -
Furthermore, the prosecution not been able to answer the infirmities
pointed out - Thus, no conviction for the offence charged could be
sustained against the appellant - Impugned judgment set aside
and the appellant is acquitted - Penal Code, 1860 - Evidence
Act, 1872. [Paras 49, 51, 70, 72, 75, 77, 81, 90, 104, 120, 121,
123, 124]

## Text

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[2025] 1 S.C.R. 1041 : 2025 INSC 116
Chandrabhan Sudam Sanap
v.
The State of Maharashtra
(Criminal Appeal No. 879 of 2019)
28 January 2025
[B.R. Gavai, Prashant Kumar Mishra and
K.V. Viswanathan,* JJ.]
Issue for Consideration
Matter pertains to the correctness of the order passed by the High
Court upholding the conviction of the appellant for rape and murder
of the deceased and imposition of death sentence.
Headnotes†
Evidence - Circumstantial evidence - Admissibility of
evidence of witnesses and recovery - Admissibility of CCTV
evidence - Requirement of certificate u/s.65 B(4) - On facts,
conviction of the appellant for offences punishable u/ss.302,
364, 366, 376(2)(m), 376A, 392 rw ss.397 and 201 IPC for rape
and murder of the deceased and sentenced to death by the
courts below - Hypothesis of guilt, if established on basis of
the circumstantial evidence:
Held: There are gaping holes in the prosecution story leading to
the irresistible conclusion that there is something more than what
meets the eye - Circumstances relied upon when taken together do
not lead to the sole hypothesis of the guilt of the accused and the
chain is not complete - Test of Sharad Birdhichand Sarda's case
on circumstantial evidence not satisfied - Sustaining conviction
based on this sketchy and disjointed evidence not justified - On
the available evidence, extremely unsafe to sustain conviction
against the appellant - Prosecution did not establish its case
beyond reasonable doubt - Certificate u/s.65-B(4) is a condition
precedent to the admissibility of evidence by way of electronic
record - When the prosecution was aware of the need for the
s.65-B (4) certificate and they themselves collected it for the CDRs,
no reason as to why they did not collect the same for the CCTV
* Author
1042
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Supreme Court Reports
footage - No reliance can be placed on the CCTV footage, insofar
as an attempt was made by the prosecution to attribute that the
appellant and the deceased were last seen together based on the
CCTV footage, and is eschewed the same from consideration -
Evidence of the prosecution witnesses for the last seen together
as well as evidence of the prosecution witnesses for sighting the
appellant, fails to inspire the necessary confidence to clinchingly
establish the circumstances of last seen - Test identification
parade vitiated as the photographs of the appellants were all over
the place in the media - Evidence of the dog walker to establish
presence of the appellant in the vicinity of the crime unnatural -
He is not the witness in the last seen category, but only claims to
have seen the appellant under circumstances which are doubtful,
thus, his evidence is discarded - Also, the evidence given by
other prosecution witnesses do not constitute circumstantial
evidence having any nexus with the commission of the crime,
thus, totally discarded from the chain of circumstances - Extra
judicial confession of the prosecution witness-so called friend of
the appellant, by its very nature, is a weak piece of evidence and
is rejected - There are so many omissions in the statement of
the said prosecution witness, as also no corroboration in material
particulars - Evidence of recovery of articles also not impressive -
Furthermore, the prosecution not been able to answer the infirmities
pointed out - Thus, no conviction for the offence charged could be
sustained against the appellant - Impugned judgment set aside
and the appellant is acquitted - Penal Code, 1860 - Evidence
Act, 1872. [Paras 49, 51, 70, 72, 75, 77, 81, 90, 104, 120, 121,
123, 124]
Case Law Cited
Anvar P.V. v. P.K. Basheer & Ors. [2014] 11 SCR 399 : (2014)
10 SCC 473; Sharad Birdhichand Sarda v. State of Maharashtra
[1985] 1 SCR 88 : (1984) 4 SCC 116 - relied on.
State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru [2005]
Supp. 2 SCR 79 : (2005) 11 SCC 600; Shafhi Mohammad v. The
State of Himachal Pradesh (2018) 2 SCC 801; Sonu @ Amar v.
State of Haryana [2017] 8 SCR 151 : (2017) 8 SCC 570; Arjun
Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. [2020] 7
SCR 180 : (2020) 3 SCC 216; Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal & Ors. [2020] 7 SCR 180 : (2020) 7 SCC 1;
Sundar @ Sundarrajan v. State by Inspector of Police [2023] 5
[2025] 1 S.C.R.
1043
Chandrabhan Sudam Sanap v. The State of Maharashtra
SCR 1016 : 2023 SCC OnLine SC 310; Mohd. Arif @ Ashfaq v.
State (NCT of Delhi) [2022] 7 SCR 792 : (2023) 3 SCC 654; State
of Goa v. Sanjay Thakran & Anr. [2007] 3 SCR 507 : (2007) 3
SCC 755; Anjan Kumar Sarma & Ors. Vs. State of Assam [2017]
3 SCR 991 : (2017) 14 SCC 359; Suryamoorthi and Another v.
Govindaswamy and Others (1989) 3 SCC 24; Gireesan Nair &
Ors. v. State of Kerala [2022] 8 SCR 599 : (2023) 1 SCC 180;
Sattatiya @ Satish Rajanna Kartalla v. State of Maharashtra (2008)
3 SCC 210; Nikhil Chandra Mondal v. State of W.B. [2023] 2 SCR
20 : (2023) 6 SCC 605; Laxmi Raj Shetty v. State of T.N. [1988]
3 SCR 706 : (1988) 3 SCC 319; Hanumant v. State of Madhya
Pradesh [1952] 1 SCR 1091 : AIR 1952 SC 343 - referred to.
List of Acts
Penal Code, 1860; Evidence Act, 1872; Code of Criminal Procedure,
1973.
List of Keywords
Murder; Rape; Death sentence; Circumstantial evidence; Five
golden principles of circumstantial evidence; Sharad Birdhichand
Sarda's case on circumstantial evidence; Last seen together
evidence; Identification Parade; Law on circumstantial evidence;
Evidence of recovery; Sole hypothesis of the guilt; Admissibility
of CCTV footage; Life span of CCTV footage; Admissibility of
electronic records; Secondary evidence for adducing electronic
records; Certificate u/s.65-B of the Evidence Act; Inherently
inadmissible document; Recovery; Chain of circumstances; Extra
judicial confession; Gaping holes in prosecution story.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
879 of 2019
From the Judgment and Order dated 20.12.2018 of the High Court
of Judicature at Bombay in CCN No. 3 of 2015
Appearances for Parties
Advs. for the Appellant:
Shri Singh, Ms. Pratiksha Basarkar, Ms. Sakshi Jain, Ms. Surabhi
Vaya, Ms. Pritha Srikumar Iyer.
1044
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Advs. for the Respondent:
Raja Thakare, A.S.G., Siddharth Dharmadhikari, Aaditya Aniruddha
Pande, Bharat Bagla, Aditya Krishna, Ms. Preet S. Phanse, Adarsh
Dubey.
Judgment / Order of the Supreme Court
Judgment
K.V. Viswanathan, J.
1.
The present appeal calls in question the correctness of the judgment
of the High Court of Judicature at Bombay dated 20.12.2018 in
Confirmation Case no. 3 of 2015 with Criminal Appeal No. 1111 of
2015. By the said judgment, the High Court upheld the conviction
and the sentence of death imposed on the appellant by the Court
of Sessions for Greater Bombay (hereinafter referred to as the 'Trial
Court') in Sessions Case No. 388 of 2014 and consequently dismissed
the criminal appeal filed by the appellant. The Trial Court convicted
the appellant for the offences punishable under Sections 302, 364,
366, 376(2)(m), 376A, 392 read with Section 397 and 201 of the
Indian Penal Code (for short 'IPC'). For the offences punishable;
under Section 302 IPC, the appellant was sentenced to death; under
Section 364 IPC, rigorous imprisonment for 10 years and to pay a
fine of Rs. 10,000/-, in default to undergo rigorous imprisonment of
one year; under Section 366 IPC, a sentence of ten years RI and to
pay a fine of Rs. 10,000/-, in default RI for one year; under Section
376(2)(m) IPC, a sentence of RI for ten years; under Section 376A
IPC, RI for life which was to mean imprisonment for remainder of his
natural life; under Section 392 read with 397 IPC, a sentence of RI
for seven years and under Section 201 IPC, he was sentenced to
RI of seven years. All the sentences were to run concurrently. The
appellant was directed to pay a sum of Rs. 50,000/- as compensation
to be payable to the parents of the deceased.
The case of the Prosecution:-
2.
The deceased is a 23 year old young woman (hereinafter referred
to as 'EA' in the judgment). PW-26 Singavarapa Jonathan Surendra
Prasad is the father of the deceased EA. According to the prosecution,
the deceased, who was working in Mumbai and staying at the YWCA
[2025] 1 S.C.R.
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Chandrabhan Sudam Sanap v. The State of Maharashtra
Hostel for Women in Andheri, visted her parents at Machilipatnam
in Andhra Pradesh between 22.12.2013 and 04.01.2014. On
04.01.2014, PW-26 dropped her at the Vijayawada Railway Station
at about 05:00 AM. The deceased EA boarded Visakhapatnam LTT
Express which was to reach Mumbai early morning on 05.01.2014.
The deceased EA called her father at 09:00 PM on 04.01.2014 when
the train was crossing Solapur Station. According to PW-26, after
reaching Mumbai, EA did not contact him. He, however, constantly
made attempts to contact her mobile number but there was no
response. PW-26 contacted the YWCA Hostel where she was
staying, and he was informed that EA had not turned up. According
to PW-26, on 05.01.2014 itself, he lodged a missing complaint with
the Railway Police Station at Vijayawada. Thereafter, he took the
missing complaint and went to Mumbai. He along with his relatives
went to LTT Railway Station where the Railway Police told PW-26
that the case did not come under their jurisdiction and directed him
to go to Kurla Police Station.
3.
Thereafter, PW-26 states that with the help of police they started
searching for his daughter and the last signal of the tower location
of her mobile was found at Bhandup. The anxious father continued
his search along with his relatives. Ultimately, on 16.01.2014, they
found the body of EA in the bushes near the Express Highway.
PW-26 states that the condition of the body was burnt and beyond
recognition. Based on a ring in her finger, he identified the body as
that of his daughter. According to PW-26, as the case came under
Kanjur Marg Police Station, he lodged a complaint therein for the
offence of murder and an F.I.R. (Exh.134) was registered.
4.
PW-30 Dattatray Tukaram Naikodi is the Police Inspector who was
then attached to Kanjur Marg Police Station. He recorded the F.I.R.
and registered the crime bearing No. 6 of 2014 for the offences
punishable under Section 302 and 201 of IPC at about 08:15 PM
(information received at 5.45 PM) on 16.01.2014. He proceeded to
the spot and found a decomposed body of a female. He arranged
for dog squad and for persons from the Forensic Science Laboratory
(FSL). He made arrangements for lighting and conducted the inquest
Panchnama which is marked as Exh.84 and seized the ring of
yellow metal (Article 27) and thereafter he sent the body for postmortem. A spot Panchnama was also drawn in the presence of two
panchas. While PW-2 Bapu Mahadev Adsul deposed with regard
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to spot Panchnama (Exh.38), PW-6 Nirmala Vilas Kadu testified for
the inquest Panchnama (Exh. 84). PW-30 further testified that on
the spot a mobile phone of Samsung company with two sim cards,
one grey colour scarf, red colour T-shirt, bunch of hair, one knicker
and one wrist-watch having a broken belt were found and seized.
He collected the blood samples, the grass and the mud from the
spot with the help of FSL persons. He deposed that the back portion
of the body and chest were decomposed and that the chest was
looking like half burnt. He deposed further that the leg was half burnt.
5.
PW-25 Dr. Gajanan Shirserao Chavan, Assistant Professor, Forensic
Medicine Department, J.J. Hospital conducted the post-mortem
between 11:00 AM and 12:30 PM on 17.01.2014. The dead body
was received at 05:45 AM. According to the doctor, the dead body
showed a black colour brassier avulsed with metallic hook and a
pink colour hair band. Rigor Mortis was absent and variable mixed
pattern of decomposition was seen. Facial skin was burnt, there was
blackish adherent to skull bone; no maggots were seen, the genitals
were distorted due to decomposition and the vaginal wall showed
blackish, reddish discolouration. Limbs, hand and feet were absent.
He noticed the following:-
12.
E x t e n t , a n d s i g n s o f
decomposition, presence, postmortem lividity of buttocks, loins,
back and thighs or any other part
whether bullae present and the
nature of their contained fluid.
Condition of the cuticle.
Va r i a b l e m i x e d p a t t e r n o f
decomposition was seen. Fascial
skin burnt, blackish adherent to skull
bone. Skin absent at some places of
extremities and abdomen exposing
bones and abdominal viscera at
places. Ends of long bones are
nibbled and exposed.
13.
Features - whether natural or
swollen, state of eyes, position
of tongue, nature of fluid (if any)
oozing from mouth, nostrils or
ears
Natural separations seen at most of
the joints without evidence of ante
mortem fractures. No maggots and
no foul smell. Features distorted due
to decomposition. Tongue absent,
Eyes sunken. No oozing of fluid from
eyes, mouth and nose.
14.
Condition of skin - marks of blood
etc. in suspected drowning the
presence or absence of cutes
anserina to be notes.
Skin destroyed due to decomposition.
[2025] 1 S.C.R.
1047
Chandrabhan Sudam Sanap v. The State of Maharashtra
15.
Injuries to external genitals.
Indication of purging.
G e n i t a l s d i s t o r t e d d u e t o
decomposition. Vaginal wall shows
blackish, reddish discolouration
at posterior wall, confirmed by cut
section. Swabs taken for CA.
16.
Position of limbs - Especially of
arms and of fingers in suspected
drowning the presence or
absence of sand or earth within
the nails or on the skin of hands
and feet.
Limbs, hand & feet absent. Nibbling
seen as mentioned in column No. 12
right middle ring, little finger present.
Nails of this finger showing bluish
black discolouration.
17.
Surface wounds and injuries-
Their nature, position, dimensions
(measured) and directions to be
accurately stated - their probable
age and causes to be noted
If bruises be present what is the
condition of the subcutaneous
tissues?
(N.B.- when injuries are numerous
and cannot be mentioned within
the space available they should
be mentioned on a separate
paper which should be signed)
1) Contusion over LT-Left fronto
temporal area 4 x 5 cm, blackish
red colour
2) Contusion over lower lip right
side against canines - blackish red
in colour 2 x 2 cm. Both contusions
confirmed by cut section.
18.
Other injuries discovered
by external examination or
perlustration as fractures etc.
No ante mortem fracture.
22.
Opinion as to the cause probable
cause of death
Evidence of blunt injuries over body
and genital injuries seen. However,
final opinion reserved pending for
C.A. of samples.
6.
The provisional cause of death was given as evidence of blunt
injuries over the body and genital injuries were noticed. However,
final opinion was reserved pending chemical analysis of samples.
After receipt of the chemical analysis report, final cause of death
was given as death due to head injury with smothering associated
with genital injuries.
7.
Most importantly, the time of death was estimated to be 8-10 days
before the post-mortem date as no maggots or pupa were seen on
1048
[2025] 1 S.C.R.
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the body. The post-mortem date was 17.01.2014. The defence has a
case based on this that death would have occurred anytime between
07.01.2014 and 09.01.2014. The appellant also raised an issue about
the failure to draw Panchnama when the brassier of the deceased
was purportedly handed over in the hospital to PW-7 Bhausaheb
Suresh Mistry. It was only in the police station, according to the
prosecution, as spoken to by PW-14 Satyavan Shridhar Gawade,
that the Panchnama for the brassier was prepared. The stand was
that between the hospital and the police station, the brassier was
not in a sealed condition. It has also been the case of the defence
that PW-30 Dattatray Tukaram Naikodi admits to have not made the
handing over Panchnama of the brassier from the hospital and also
that the brassier was not seen mentioned in the spot Panchnama
Exh.38 or inquest Panchnama Exh.84.
8.
The defence has also raised a grievance with regard to the final
conclusion in the death certificate (Exh.128) about the cause of death
being "head injury with smothering associated with genital injuries",
contending that this was without any medical or scientific basis since
PW-25 admitted in evidence that there was nothing found in the
chemical analysis report which he was awaiting. The defence also
stated that there was no mention in the Post-mortem Report (Exh.127)
of forceful penetration and that a belated query letter of 28.07.2014
(Exh.129) was sent, in response to which three doctors including PW25 stated that injury in column 15 mentioned hereinabove could be
due to forcible entry of some article in the vagina and subsequently
due to decomposition, vide Exh.130, dated 14.08.2014.
9.
Exh.130, which sets out the queries and the answers are extracted
hereinbelow:
"Sir,
The opinion on the following points with regard to the
facts mentioned in column No. 15 of the post-mortem
Report, as asked by you vide letter under reference are
given as under:
1) What could cause the condition of the organ, as
mentioned in the column No. 15?
Answer:- Such condition can be caused due to said
private part (organ) sustaining injuries before death and
subsequently due to decomposition (of its surface)
[2025] 1 S.C.R.
1049
Chandrabhan Sudam Sanap v. The State of Maharashtra
2) Whether forcible entry of some article in the vagina
could cause the condition of the organ as mentioned in
column No. 15?
Answer:- Yes, on the basis of the entry made in respect
of the private part such condition can be caused due to
forcible entry of some article in the vagina.
3) Whether the condition of the organ as mentioned in
column No. 15 could be caused due to decomposition?
Answer:- peruse the answer given at Sr. No. 1.
Sd/- (Illegible)
(Dr. M.M. Jawle)
Assistant Professor
Deptt. Of Forensic
Medicine Grant
Medical College,
Mumbai-08
Sd/- (Illegible)
(Dr. G.D. Nithurkar)
Assistant Professor
Deptt. Of Forensic
Medicine Grant
Medical College,
Mumbai-08
Sd/- (Illegible)
(Dr.G.S. Chavan)
Deptt. Of Forensic
Medicine Grant
Medical College,
Mumbai-08"
10. The defence also states that no semen was found on any articles
received from the spot or the biological samples of the deceased
since the chemical analysis Reports (Exh. 17 to Exh.34) indicates
that on the scarf, T-shirt, knicker with cotton pad, burnt cloth
pieces and in the partly burnt cloth pieces and grass, no semen
was detected.
11. Having carefully perused the evidence of PW-25 and the Exh.127 to
Exh.130, we have no reason to dislodge the findings of the courts
below that the death is homicidal in nature. The doctors have clearly
opined that the final cause of death was due to head injury with
smothering associated with genital injuries and clarified that injuries
to the genitals are possible by forcible entry of some article in the
vagina.
12. After the post-mortem, the body was handed over to PW-26 on
17.01.2014 for performance of last rites which were duly performed.
The Appellant has a grievance that when he was arrested, there
were parallel investigations being conducted by Kanjur Marg Police
Station and Unit V, VI, VII and other Units of Crime Branch between
16.01.2014 and 02.03.2014. According to the defence, all reporting
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within the Crime Branch was oral and there was no legal basis
for investigation by the Crime Branch till 02.03.2014, when formal
orders transferring the investigation were made. Accordingly they
contend that, as a result of this, the appellant was in a state of forced
ignorance about events from 16.01.2014 to 02.03.2014, including
possible exculpatory material found during the parallel investigation
by the Crime Branch. The appellant was arrested on 02.03.2014.
PW-8 Salim Mustaq Shaikh was the panch witness in the arrest
panchnama (Exh.90). He deposed that during the physical search of
the accused, one xerox copy of the letter in the back pocket of his
jeans pant was found and when enquired by the police, the appellant
told them that it was a Kundli (horoscope) (Article 28) prepared by
PW-17 Rajabhau Baburao Aher. We have discussed this aspect in
detail later in the judgment. The Crime Branch ultimately filed the
charge-sheet for the offences mentioned above. PW-38 Vyanket
Bhanudas Patil stated that investigation in serious offences parallel
investigation is often conducted along with the police station having
jurisdiction. The prosecution has submitted that parallel investigation
was about detection and not collection of evidence. It was further
submitted that no prejudice has been caused to the appellant.
Keeping in mind the ultimate conclusion that we have arrived at, we
do not deem it necessary to delve into this aspect in great detail. It
is also not disputed that ultimately, on 02.03.2014, formal orders of
transfer were made to the Crime Branch. PW-38 further admitted
that he called for the opinion of three doctors marked as Exh.130,
after framing of charges and that at the time of addition of Section
376(2)(m) the said opinion was not there. He expressly denied the
suggestion that the report was planted since there was no prima
facie material for the charges. We are satisfied that prejudice has
been caused to the accused on this score. All the witnesses have
been examined only after all the charges were in position.
13. Between 16.01.2014 and 02.03.2014, investigation was carried on
and the prosecution claims that the pen drive of the CCTV footage
for the date 05.01.2014 between 4:00 AM and 07:00 AM were taken
on 18.01.2014 from the Lokmanya Tilak Terminus; then the father
of the deceased was contacted with the pen drive for identification
of deceased EA and statements of witnesses were recorded.
Chargesheet was filed after obtaining the FSL report for offences
[2025] 1 S.C.R.
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Chandrabhan Sudam Sanap v. The State of Maharashtra
mentioned above. At the trial, the prosecution examined 39 witnesses
and marked approximately 200 exhibits. The defence examined four
witnesses. DW-1 to DW-3 reporters and editors who are associated
with newspapers and DW-4 the official from the mobile company
who spoke of CDR details and marked approximately eight exhibits.
The appellant was examined under Section 313 and in answer to
the last question as to whether he wanted to say anything more, the
appellant stated that he was falsely implicated in the case and added
that in February 2014, the Kurla Police detained him for 15 days.
14. We have heard Mr. Shri Singh, learned counsel appearing pro bono,
for the appellant who presented the case comprehensively and
was ably assisted by M/s Pritha Srikumar Iyer, Pratiksha Basarkar,
Sakshi Jain and Surabhi Vaya. The prosecution has been effectively
represented by Mr. Raja Thakare, learned Additional Solicitor General
ably assisted by M/s Siddharth Dharmadhikari, Aaditya Aniruddha
Pande, Bharat Bagla, Aditya Krishna, Preet S. Phanse, Adarsh
Dubey and Ms. Yamini Singh. Both sides have submitted detailed
written submissions. We have also considered the submissions and
perused the records including the Trial Court records.
15. The case rests on circumstantial evidence. We are conscious of
the five golden principles enunciated in long line of cases including
Sharad Birdhichand Sarda vs State of Maharashtra, (1984) 4
SCC 116, wherein it was held as under:-
"153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
"(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned "must or should" and not "may
be" established. There is not only a grammatical but a
legal distinction between "may be proved" and "must be
or should be proved" as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC
793] where the observations were made:
"Certainly, it is a primary principle that the accused must
be and not merely may be guilty before a court can convict
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and the mental distance between 'may be' and 'must be' is
long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have been
done by the accused."
16. Keeping in mind the above principles, we have approached the case
at hand. The High Court has tabulated the following circumstances
to sustain the conviction in Para 40 of the Judgment:-
"(i) The deceased EA who was working with TCS Andheri,
Mumbai and a resident of Vijaywada, Andhra Pradesh
has boarded the train from Vijaywada to LTT, Kurla on
4th January2014.
(ii) Phone calls made by her father to EA on 5th January
were not answered and she did not reach her hostel
located in Andheri.
(iii) A partly burnt decomposed body was found on 16th
January2014 near the service road of Eastern Express
Highway near Kanjur Marg which came to be identified by
PW no.26 as to be of his missing daughter EA.
(iv) The post mortem report establish that the death of
the deceased was homicidal and there was injury to her
private parts, thereby establishing that she was raped.
(v) The Inquest Panchnama and Post Mortem report
establish that the body was partly burnt and attempt was
made to destroy the evidence by burning the body.
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Chandrabhan Sudam Sanap v. The State of Maharashtra
(vi) The accused consumed liquor at the residence of
PW no.12 in the company of PW no. 9 and then left his
residence by a motorcycle belonging to PW No.9.
(vii) The CCIV footage collected from the LTT Railway
station disclosed that the accused was loitering on the
platform at 4:50 am.
(viii) In the CCIV footage it is seen that the deceased had
accompanied the accused while leaving LTT and she was
last seen in the company of the accused in the footage.
(ix) The accused was seen near the spot on the Eastern
Express Highway with the trolley bag and a bag pack
belonging to the deceased.
(x) The circumstance of the accused seen along with the
trolley bag in the morning on the date of incident by PW
13 leaving the building.
(xi) The subsequent conduct of the accused i.e. going
to the Astrologer and performing a puja in order to wash
off the sin committed on a woman and the entry in the
register of PW 17 establishing that he has paid an amount
of Rs.3,000/- for performing the said puja.
(xii) Articles 22, 23 and 24 belonging to the deceased
were identified by PW No.26 came to be recovered at the
instance of the accused along with her articles i.e. identity
card, spectacles, her eye-liner, pencil and the DNA Test
confirm that it belonged to the deceased.
(xiii) The accused in his extra-judicial confession to PW9
had disclosed that he had poured petrol on the dead
body of EA and set it on fire after committing rape and
on killing her.
(xiv) The medical examination of the accused about his
potency test and mental health."
We have, while marshalling the evidence below, kept each of
the above circumstances in mind. Few circumstances relied
upon by the High Court, do not figure in the tabulation. They
have also been discussed hereinbelow.
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17. Insofar as the circumstances elucidated hereinabove, circumstance
no. 1 to 4 pertains to the homicidal nature of the death of the
deceased after her travel from Vijayawada in the morning of 4th
January, 2014. We have already found that the death was homicidal
in nature relying on the evidence of PW-25 and the post-mortem
documents (Exh.127 to Exh.130).
18. PW- 26, father of the deceased EA, identified her based on the ring in
her finger. We have no reason to doubt his deposition. Notwithstanding
the challenge mounted by the defence, we are fully convinced that
PW-26 was the father of the deceased and, as such, we are not
inclined to disturb the finding that PW-26 was indeed the father of
the deceased EA; that deceased EA was dropped at the station in
Vijayawada on 04.01.2014 by PW-26; that deceased called PW-26
when the train was crossing Solapur Station on 04.01.2014 at 09:00
PM and that the deceased died due to the injuries mentioned by the
experts in the report.
19. PW-28 Shrikant Hanumant Lade also testified about the DNA
profile of PW-26 - the father matching with the paternal alleles in
the source, DNA of the deceased. His report is marked as Exh. 22.
He compared the DNA profiles from the blood sample of PW-26
and the DNA extracted from the sweat detected on Exh.1 - ID card
with belt, Exh.2-spectacles and the bone sample of the deceased.
Notwithstanding our finding recorded later on on the alleged recovery
aspect of the ID card from the sister, as far as this DNA matching
is concerned, considering that the DNA has matched with the blood
sample of PW-26 with that of the DNA profiles of the deceased, we
have no reason to doubt that PW-26 is the father of the deceased EA.
20. The defence feebly questioned the chain of custody with regard to the
blood samples of PW-26 and about the lack of underlying scientific
basis in the report and testimony of PW-28, the Assistant Director
of FSL. We are not impressed with the said submission and hence,
we reject the same, as we find no merits in the said submissions.
21. Insofar as circumstance no. 5, that an attempt was made to destroy
the evidence by burning the body is concerned, herein again the
prosecution must demonstrate that there was evidence circumstantial
or otherwise pointing to the involvement of the appellant.
22. That leaves us with circumstance no. 6, 7, 8, 9, 10, 11, 12 and 13.
Insofar as circumstance no. 14 is concerned about the potency and
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Chandrabhan Sudam Sanap v. The State of Maharashtra
mental health of the accused, that by itself again will not point to
the involvement unless other circumstances are made out. Hence,
what is really to be addressed is circumstance no. 6 to 13 pointed
out above.
23. For convenience, the arguments of counsel have been dealt with
while marshalling the evidence adduced by the prosecution in an effort
to prove the circumstances. The circumstances alleged had been
specified under the following order for providing a logical sequence:
i)
The evidence of PW-1, PW-30, PW-31, PW-33 and PW-34 with
regard to CCTV footage collected from the LTT Railway Station
and its admissibility thereof.
ii)
The evidence of PW-18, PW-19, PW-20 and PW-21 as advanced
to establish the sighting of the accused at the LTT Terminus
and also to establish last seen theory (PW-20 and PW-21).
iii)
The evidence of PW-9, PW-12 and PW-22 with regard to the
events that allegedly transpired on the night of 04.01.2014 and
the morning of 05.01.2014.
iv)
The evidence of PW-23 and PW-13 on the issue of alleged
presence of the appellant near the scene of crime and his
purported exit from the society building.
v)
The evidence of PW-15, PW-16 and PW-17 with regard to the
subsequent conduct of the accused in going to the astrologer
and performing the puja at Nasik.
vi)
Recovery of articles 22, 23 and 24 along with recovery of
identity card, spectacles, eye liner pencil from the sister (not
examined) of the accused and the alleged recovery of the
Trolley bag from PW-24.
vii) Alleged extra judicial confession to PW-9 and the alleged
recovery of the motorcycle bearing no.MH-03-AY-0241.
CCTV footage and its admissibility thereof:-
24. The prosecution has relied on the CCTV footage which, according
to them, was taken from the camera installed at the Lokmanya Tilak
Terminus to establish the fact that the appellant was last seen with
the deceased at around 05:00 AM in the morning of 05.01.2014.
To establish this fact, the prosecution has examined PW-1 Girish
Rajeshwar Mishra, PW-31 Chandramani Sitaram Pandey, PW-33
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Vishal Bhaskar Patil and PW-34 Nishikant Vishwanath Tungare, the
Police Inspector.
25. According to PW-1, the data for 05.01.2014 between 04:00 AM to
07:00 AM consisting of the CCTV footage for that time was copied
in two pen drives on 18.01.2014. He has deposed that PW-31
Chandramani Sitaram Pandey searched for the particular date and
copied the footage to the pen drives and in this way the footage was
copied from the computer in two pen drives. In all 425 files were
copied, according to the witness. The witness states that he signed
the Panchnama and thereafter PW-34 Nishikant Vishwanath Tungare
sealed the articles and stamped it. Mr. Tungare told PW-1 that one
pen drive was for the court and one was for operational purpose.
The Panchnama was marked as Exh.36. In Exh.36 Panchnama
the following description of digital video recorder 1 and digital video
recorder 2 is given:
"Shri Chandramani Pande, acceding to the request made
by the Senior Police Inspector, Shri Tungare, gave brief
information in respect of the machinery installed in the said
CCTV Control Room. He said that there are 36 cameras
in Kurla Terminus area and the recording done by the said
cameras is seen on two screens, installed in the control
room. Now two screens are seen in the control room,
one of the said screens is of LG Company, the recording
by 16 cameras, seen on the said screen is stored in HP
Company computer CPU, attached thereto. They call the
said CPU as Digital Video Recorder-1 (DVR-I). Further, the
recording by 20 cameras, seen on the another Samsung
Company screen is stored in the i-ball Company computer
CPU, attached thereto. They Call the said CPU as Digital
Video Recorder-2 (DVR-2). The technician, Shri Pande
showed both the said computer CPU. The said CPU are
seen to have electric supply from the electric connection
in the said room and both the said CPUs are seen to be
connected with wires to two separate screens and to the
camera installed on platform."
26. PW-31 Chandramani Sitaram Pandey is a CCTV operator doing the
job in the Central Railway in CCTV department since 2013. According
to his deposition, in one monitor, there are 20 cameras and in the
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Chandrabhan Sudam Sanap v. The State of Maharashtra
other there are 16 cameras and the cameras are fixed on all the
platforms and rooms and the servers are kept in the control room.
He states that there was automatic recording system in the camera
and the recording is saved in the server. According to PW-31, in one
server there is recording of 12 days and in another server there is
recording of one month. After 12 days and one month respectively, the
recordings in the servers get automatically deleted and the footage
cannot be saved after the said period unless the footage is saved
in the hard disc. According to him, the footage of 05.01.2014 was
available in the CCTV camera and it was copied to the pen drive and
given to the police. In cross-examination, he admitted that he was
an employee of contract company Sonal Enterprises. The witness
further deposed in the cross-examination as under:-
"12....The limitation for saving the period is for 12 days
is in DVR - II. It is correct to say that under DVR II, the
recording of 16 cameras is done. I have not stated in my
statement that there is recording of 20 cameras in DVRII. I cannot say why it is mentioned in the statement. The
portion marked 'B' in my statement is not stated by me.
13. Sixteen cameras are from platform Nos. 1 to 5 in
DVR - II. It is correct to say that the cameras of DVR I
is located in outer side of the platform. It is correct to say
that 16 cameras which are mentioned in DVR- II covers
the half platform and the bridge. It is correct to say that
the limitation for saving the data in these 16 cameras are
12 days. I cannot say the date whether the police came
to L.T.T. railway station on 18/01/2014. It is correct to say
that the date of 5th March will be deleted on 17th March
at night automatically....
15.... Before 18th the police from Kurla police station never
contacted me. RPF also did not call me during the period
of 05/01/14 to 18/01/14. It is correct to say that any video
can be edited at any stage but not from the server. One
can edit the recording from the Pen Drive."
He further admitted that he gave the recording in the pen drive from
the server. What is of significance is that the recording on platform
nos. 1 to 5 is in DVR-II where the life span is 12 days and also that
the DVR-I cameras are located in the outer side of the platform.
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27. PW-33 Vishal Bhaskar Patil, is Police Constable attached to
Lokmanya Tilak Terminus who was on duty in Railway Protection
Force. He speaks of CCTV footage being taken after the Senior
Police Officer met the officers of Railway Protection Force and
obtained oral permission. On a specific question whether there
was any fault in the CCTV server during the period 01.01.2014
to 08.01.2014, he answered that on 18.01.2014, there was a fault
and the server was not working and therefore Mr. Pandey was
called. He further stated that after repair, the servers were fine.
He further stated that on 18.01.2014, there was no fault in the
cameras of DVR-II.
28. Mr. Shri Singh, learned counsel relying on Section 65-B of the Indian
Evidence Act, 1872 has raised objection regarding admissibility of
CCTV evidence. Before we deal with the admissibility, we would
briefly discuss the evidence based on the CCTV to see if even
assuming the CCTV evidence was admissible as to where it takes
the prosecution case? The CCTV footage was marked through the
evidence of PW-1 as Article 1 and 1-A being the pen drive and Exh.36
being the Panchnama for collection of CCTV. The CCTV was first
played before PW-26, the father of the deceased EA who testified to
the effect that it was his daughter in the footage who was entering
the platform along with a trolley bag and a sack on the back. PW26 further stated that in one footage his daughter was holding the
mobile and one man was driving her trolley.
29. PW-27 Hemant Dharma Kohli claims to be a neighbour in the building
where the appellant resided. He deposes that, on 26.03.2014, the
police asked him to come to the police station and he states that
the police showed him two CCTV footages and in one footage he
saw that the appellant was walking on the platform with one bottle
of cold drink in his hand and in another footage he was driving the
trolley bag. He also stated that the said person was the appellant
in both the footages.
30. PW-34 Mr. Nishikant Tungare is a Senior Police Inspector attached to
Kanjur Marg Police Station. He speaks of visiting the CCTV control
room and asking for the footage of 05.01.2014 between 04:00 AM
and 07:00 AM. He speaks of calling for two pen drives from PC
Jadhav and about the drawing of Panchnama and completing the
same by 07:15 PM. Thereafter, he deposed to the following effect:
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Chandrabhan Sudam Sanap v. The State of Maharashtra
"8. During the investigation, it was found that one person
who is working in salt office which is near the spot is
having some important information with him. Therefore, I
asked the team to call him in the police station. I called
him and I recorded his statement. His name is Prahlad
Yadav. On 05/01/14 Prahlad Yadav saw that one person
was trying to start his motorcycle near the spot. I recorded
his statement on 19/01/14.
9.