Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1029 OF 2014
Umesh Tukaram Padwal & Anr. .....Appellants
Versus
The State of Maharashtra .....Respondent
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
This appeal is directed against the judgment dated
09.10.2013 of the High Court of Judicature at Bombay in
Criminal Appeal No. 130 of 2006, confirming the judgment
passed by the Additional Sessions Judge, Kalyan in Sessions
Signature Not Verified
Case No. 282 of 2002. The impugned judgment confirmed the
Digitally signed by
VISHAL ANAND
Date: 2019.09.03
16:08:16 IST
Reason:
conviction of Accused No. 1 for the offence punishable under
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Section 420 of the Indian Penal Code (for short “IPC”) for
cheating the deceased and the informant out of a sum of Rs.
45,000/, and of Accused Nos. 1 and 2 for the offences
punishable under Sections 364 and 302 read with Section 34,
IPC, for abducting the deceased in order to murder him, and
subsequently committing such murder, in furtherance of their
common intention. Accused Nos. 1 and 2 are Appellant Nos. 1
and 2 herein.
2. The case of the prosecution in brief is as follows:
About a month prior to the incident, PW1 Jayram Dhum,
the informant and the maternal uncle of the deceased
Dnyaneshwar, came to know that Umesh Padwal (Accused No. 1)
used to arrange jobs at the Jindal plant at Vasind and charge
money in return. As the deceased was unemployed, on 1.7.2002,
PW1 approached Accused No. 1 to procure employment for the
deceased at the Vasind plant. Accused No. 1 demanded a sum of
Rs. 60,000/ to arrange a job as desired. On 7.7.2002, PW1 met
Accused No. 1 at a juice shop in Kalyan, and paid him a sum of
Rs. 10,000/.
On 10.07.2002, the deceased Dnyaneshwar came to Kalyan
from his native place, with a sum of Rs. 45,000/, out of which
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PW1 deducted Rs. 10,000/, which he had paid on behalf of the
deceased. The next day, on 11.07.2002, at around 11.30 a.m.,
they again met Accused No. 1 at the same juice shop in Kalyan,
and handed over the remaining sum of Rs. 35,000/ to him. At
this rendezvous, Accused No. 1 was accompanied by Pravin
Godse (Accused No. 2), who Accused No. 1 introduced as his
neighbour and friend. From there, Accused No. 1 left with
Accused No. 2 and the deceased for the Jindal plant at Vasind,
telling PW1 that he need not come along. At around 8 p.m. in
the evening, PW1 went to Accused No. 1’s house to inquire about
the whereabouts of the deceased, who had not yet returned to
Kalyan, and learnt that Accused No. 1 had not returned either.
Since the deceased was untraceable, the first information was
eventually lodged with the Police Station for the aforementioned
offences on 13.07.2002.
The body of the deceased was recovered on 14.7.2002 from
the valley at Goraksha Gad at the instance of Accused No. 1. The
clothes of the deceased were also recovered nearby. Accused No.
1 also led to the recovery of some personal documents of the
deceased that had been handed over to Accused No. 1 previously
by PW1, as well as a sum of Rs. 10,000/, a nylon rope and a
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piece of electric wire. Accused No. 2 led to the recovery of a sum
of Rs. 800/.
After the investigation, the police filed a chargesheet
against four persons including the appellants herein. It was
alleged that the four accused had strangulated the deceased and
thrown his body into the valley at Goraksha Gad.
3. The Trial Court convicted Accused Nos. 1 and 2 and
acquitted the other two accused. The judgment of the Trial Court
was confirmed by the First Appellate Court. Since the acquittal of
the other accused was not challenged, we make no reference to
the allegations made and evidence adduced against them in the
rest of the judgment.
4. Heard the learned advocates on either side and perused the
records.
5. There is no eyewitness to the incident of abduction and
murder in question, and the prosecution relies on circumstantial
evidence. The three main circumstances incriminating Accused
Nos. 1 and 2 for the offences of abduction and murder of the
deceased which have been relied upon by the prosecution are as
follows:
(i) The motive for commission of the offences;
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(ii) the circumstance that the deceased was last seen with
Accused Nos. 1 and 2 by PW1; and,
(iii) the recovery of the dead body of the deceased at the
instance of Accused No. 1, and of other incriminating
articles at the instance of Accused Nos. 1 and 2.
6. As far as the offence of cheating is concerned, it is
important to begin by noting that it is not in dispute that
Accused No. 1 often used to arrange jobs for people at the Jindal
plant at Vasind. As per PW1’s evidence, he approached Accused
No. 1 to secure a job for the deceased, for which the deceased
had to pay Accused No. 1 a sum of Rs. 45,000/. The evidence of
PW2, the mother of the deceased, also shows that such a sum
was arranged by the deceased and taken to Kalyan in order to
pay Accused No. 1 for getting him a job. However, there is no
evidence to show that Accused No. 1 had any intention to not
arrange a job for the deceased as promised. It must be noted here
that the Trial Court and the High Court have also not discussed
the evidence relating to the offence of cheating in much detail.
Even otherwise, the evidence on record, particularly looking to
the answers given by the prosecution witnesses in this regard,
does not inspire confidence in the mind of the Court.
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In such circumstances, it cannot be said that Accused No. 1
had any intention to cheat the deceased and PW1 during the
initial discussions with PW1 or while accepting money from PW
1 and the deceased. We are thus of the considered opinion that
the Courts below erred in convicting Accused No. 1 for the
offence under Section 420, IPC.
7. We are also of the view that the circumstances of ‘last seen’
and the recovery of the dead body and other incriminating
articles relied upon to prove the commission of the offences of
abduction and murder have also not been proved by the
prosecution beyond reasonable doubt.
8. We first address the circumstance that the deceased was
last seen on the morning of 11.07.2002 with Accused Nos. 1 and
2. In this regard, it is the consistent stand of the accused that the
deceased, for reasons best known to him, disappeared from the
Vasind Railway Station, about which Accused No. 1 had informed
PW1 on the same day. This has been brought out in the
deposition of PW1 as well as the first information he submitted.
In the first information given by PW1 (Exh. P27), he stated
that on the night of 11.07.2002, Accused No. 1 had contacted
him by calling a neighbour’s residence over the telephone at
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around 9 to 9.30 p.m., and enquired whether the deceased had
reached home. PW1 told him that the deceased had not
returned. Accused No. 1 then revealed that when he and the
deceased had arrived at the Vasind Railway Station, he had
excused himself to answer nature’s call after requesting the
deceased to wait for him. However, when he returned, he did not
find the deceased at the place where he had left him standing. In
a similar vein, PW1 also admitted in his crossexamination that
Accused No.1 had informed him on the night of 11.07.2002 itself
that he had lost touch with the deceased at the Vasind Railway
Station.
It is also important to note at this juncture that neither
Accused No. 1 nor Accused No. 2 absconded after the
disappearance of the deceased, and were found present in their
respective houses. All in all, the material on record indicates that
the accused did not have knowledge of the whereabouts of the
deceased after his disappearance, and that Accused No. 1 had
furnished an explanation as to how he parted with the deceased,
on the very day of his disappearance. In our considered opinion,
the circumstance of the deceased being last seen with the
accused therefore does not point towards their guilt.
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9. Importantly, our attention has been drawn to the entries in
the register seized from a hotel at Goraksha Gad under the
seizure memo at Exh. P52, where the names of the accused
along with the deceased were mentioned. It was alleged that the
entry was made by Accused No. 1. This was relied upon to argue
that it has been established that the accused were present with
the deceased at Goraksha Gad, and did not part with him at
Vasind Railway Station at all. However, we are not inclined to
accept this argument.
Firstly, PW7, the owner of the hotel from where the register
was seized, has not supported the above case of the prosecution.
He specifically denied that Accused No. 1 had written the entries
in the presence of PW7 and that he had identified the accused as
having visited his hotel. In such circumstances, we find it unsafe
to rely on the entries found in this diary.
Secondly, there is nothing on record to show that the
prosecution made an effort to collect any admitted writing of
Accused No. 1 during the course of investigation and to compare
the disputed writing of Accused No. 1 with the same. Without
there being proof of the similarity of the handwriting found in the
diary seized under Ext. P52 and any admitted writing of Accused
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No. 1, it is not open to the Court to presume that the handwriting
in the entry found in the register is that of Accused No. 1. Thus,
it appears that the prosecution pleads on the basis of mere
assumptions that the entries found in the register were made by
Accused No. 1. The diary entries can therefore not be relied upon
in any manner.
10. Insofar as the circumstance regarding the recovery of the
body of the deceased at the instance of Accused No. 1 is
concerned, we are of the considered opinion that the prosecution
has manipulated the records to reflect such recovery.
The voluntary disclosure statement of Accused No. 1 was
recorded by PW10, the SubInspector of Police, and marked as
Ext. P39 (considering only the portion relevant under Section 27
of the Indian Evidence Act, 1872). According to the prosecution,
Accused No. 1 led the police to the spot from where the body of
the deceased had been thrown down into the valley of Goraksha
Gad, and that the body was ultimately found on a tree in an
inaccessible part of the valley.
PW10 has deposed that after Accused No. 1 expressed his
willingness to reveal the spot from where the body of the
deceased had been disposed, PW10 prepared the memorandum
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panchnama at Exh. P39 recording the disclosure statement of
Accused No. 1 in the presence of two panchas, both of whom
signed the statement along with PW10. One of the panchas was
examined as PW4 to support the aspect of recovery of the dead
body. The other pancha was not examined. PW4 affirmed that
the said panchnama contained his signature. However, he
admitted in his crossexamination that he had also visited the
police station on 12.07.2002 and 13.07.2002, and further that
Accused No. 1 did not state anything in his presence before the
police. Thus, it is clear that the evidence of PW4 belies the
evidence of PW10 that the disclosure statement of Accused No. 1
was recorded in the presence of the panchas on 14.07.2002. It
seems that the prosecution wants to make their case watertight
by taking PW4’s assistance and bringing him as a witness to the
disclosure statement as well. In this regard, the defence is
justified in arguing that the prosecution has tried to improve its
case from stage to stage by introducing material which was
originally absent.
11. Additionally, we find that the timings of the events starting
from the recording of the disclosure statement of Accused No. 1
to the recovery of the body have not been established clearly,
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which casts further doubt on the aspect of recovery. PW4
deposed in his examinationinchief that he was called to the
police station to act as a pancha around 12.30 p.m. on
14.07.2002, but he also deposed in the same breath that he was
called for the first time to the police station at 7.35 a.m. that
morning. As noted above, he admitted in his crossexamination
that he had also visited the police station on the two preceding
days. Furthermore, PW4 admitted that he arrived at the scene of
offence around 12.30 to 1.00 p.m., along with the police, Accused
No. 1 and some relatives of the deceased, including PW1. Thus,
PW4’s testimony pertaining to the time of being called to the
police station and of visiting the spot of recovery is replete with
inconsistencies.
The deposition of PW10, the SubInspector, further
complicates the matter. He admitted in his crossexamination
that when Accused No. 1 told him about the body of the deceased
being at Goraksha Gad, PW10 started preparing the
memorandum panchnama pertaining to A1’s disclosure (Ext. P
39), which was recorded at the police station. At about 6.35
a.m., he and the panchas along with Accused No.1 started for
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Goraksha Gad. Thus, the timings deposed to by PW10 are fully
contrary to the evidence of PW4.
The evidence of PW4 also reveals that the dead body was
found “ ” and was completely decomposed. The
hanging to one tree
dead body was taken out of the valley in a trolley, and the
panchanama was prepared thereafter. Though it is the case of
the prosecution that the body was thrown in the valley, there is
nothing on record to show the body was found
in what manner
hanging on a tree. The defence, in that context, argued that the
death must have been a suicidal death, and not homicidal. In
addition, if the body was fully decomposed, as PW4 has deposed,
the identification of the dead body also becomes doubtful.
Thus, the evidence relied upon by the prosecution is full of
irreconcilable inconsistencies which cast serious doubt on the
presence of the panchas during the recording of the disclosure
statement and the recovery of the body of the deceased. In our
considered opinion, the prosecution has made a botched attempt
to improve its case regarding the recovery of the dead body from
time to time. Having regard to the totality of the facts and
circumstances, we are not satisfied with the evidence on record
as well as the reasons assigned by the Courts below in relying on
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the circumstance of the recovery of the dead body at the behest of
Accused No. 1.
12. In light of the above discussion, we are of the view that the
other recoveries made at the instance of Accused Nos. 1 and 2
are also tainted and cannot be relied upon. Importantly, the
panchas examined to prove such recoveries did not fully support
the case of the prosecution either.
13. The only circumstance that remains to be discussed is the
circumstance of motive. Essentially, the proof of the motive for
the offence of abduction and murder alleged by the prosecution
depends on whether the offence of cheating was committed by
Accused No. 1. This is because it is alleged that Accused No. 1
knew that he could not arrange employment for the deceased,
but still accepted money for this purpose from PW1 and the
deceased, with an intention to cheat them, and subsequently,
Accused Nos. 1 and 2 murdered the deceased in order to avoid
repayment.
We have already discussed in the preceding paragraphs that
the evidence relating to cheating is unreliable, and that it cannot
be said that Accused No. 1 committed this offence. Thus, the
entire argument of motive stands negated. Even otherwise, if the
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alleged motive is held to have been proved by the prosecution, the
said circumstance cannot be made the sole basis to convict the
accused for the offences of the abduction and murder of the
deceased.
14. It is also relevant to note at this juncture that the
prosecution has even failed to establish the probable cause of
death of the deceased, though it was recorded in the inquest
panchnama (Ext. P19) that death was caused by strangulation.
The doctor who prepared the postmortem report (Ext. P18) was
not examined by the prosecution to prove the contents of the
report. However, as per the report, which has been admitted by
the accused, the doctor could not identify any of the injuries on
the body as antemortem, or give an opinion on the cause of
death, since the body was highly decomposed. No ligature marks
could be seen on the neck either, because of the state of
decomposition.
15. In a case based on circumstantial evidence, the
circumstances relied upon by the prosecution should be proved
beyond reasonable doubt, and such proved circumstances should
form a complete chain so as not to leave any doubt in the mind of
the Court about the complicity of the accused. In the instant
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case, none of the circumstances relied upon by the prosecution
have been proved beyond reasonable doubt, and there is no
question of a complete chain of circumstances being formed that
would point towards the guilt of the accused. In our considered
opinion, the benefit of doubt should therefore be granted in their
favour. We are accordingly of the opinion that the Courts below
erred in convicting Accused Nos. 1 and 2 for the offences of the
abduction and murder of the deceased.
16. Accordingly, the impugned judgment of the High Court as
well as of the Trial Court stand set aside and the appeal is
allowed. Accused No. 1 is acquitted of the offence under Section
420, IPC. Accused Nos. 1 and 2 are acquitted of the offences
under Sections 364 and 302 read with 34, IPC.
17. Vide order dated 08.08.2014, this Court granted bail to the
appellants. Their bail bonds stand discharged.
..........................................J.
(N.V. Ramana)
............................................J.
(Mohan M. Shantanagoudar)
............................................J.
(Ajay Rastogi)
New Delhi;
September 03, 2019.
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