Full Judgment Text
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CASE NO.:
Appeal (crl.) 844 of 2006
PETITIONER:
Subhash Harnarayanji Laddha \005. Appellant
RESPONDENT:
State of Maharashtra \005. Respondent
DATE OF JUDGMENT: 05/12/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
WITH
CRIMINAL APPEAL NOs. 845 AND 846 OF 2006
S.B. SINHA, J.
These three appeals arising out of a common judgment of conviction
and sentence, were taken up for hearing together and are being disposed of
by this common judgment. Accused Nos.2 to 4 before the learned Sessions
Judge are before us. Accused No.1 was Ajay @ Rameshwar Raghuram @
Sheshrao Galat Dhabekar, Accused No.5 was Baijrao @ Rawalsingh Saju
Rathod. Accused No.1 was convicted for commission of an offence under
Sections 302, 364, 467, 468, 471 read with Section 120B of the Indian Penal
Code whereas Accused No.5 was convicted for commission of an offence
under Section 465 of the Indian Penal Code and was sentenced to undergo
Rigorous Imprisonment for two years.
The deceased was one Yadav Navkar. He was resident of Survey
No.45 of Village Umri, Taluka Akola. He purported to have entered into an
agreement of sell in respect of the said land with the appellants herein on or
about 16.5.2000. The amount of consideration stipulated therein is said to
be fifteen lakhs. There exists a dispute as to whether he had accepted a sum
of Rs.75,000/- or a sum of Rs.2 lakhs by way of earnest money. A purported
General Power of Attorney is said to have been executed by the deceased in
favour of accused no.1 on 30.6.2000. Accused No.5 is said to have
impersonated as the deceased. The said power of attorney was found to be a
forged one.
An advertisement for sale was issued in a newspaper known as "Daily
Deshonnati" on 26.7.2000 stating that 1 Hectare 1 Are in Survey No.45 is
available for sale. Admittedly, a Deed of Sale was executed by the accused
No.1 in favour of the appellants herein for a sale consideration of Rs.9 lakhs
on 8.8.2000.
As the deceased was found missing since 3.9.2000, a report to that
effect was lodged by his wife Smt.Kaushalyabai (PW38). As despite the
said report of Kaushalyabai, the deceased could not be traced out, another
report was made by her stating that her husband could not be traced since
3.9.2000. The High Court recorded the principal allegations contained in the
said report in the following terms:
"\005that her husband Yadav Navkar had left the house on 3rd
September, 2000 at about 9 O’clock and he had stated he will
return within half an hour but he had not returned. The missing
report was registered and search was carried out for Yadav
Navkar but he was not traced. Meanwhile, Kausalyabai
received a letter in the name of her daughter Geeta purported to
have been addressed by Yadav Navkar informing her that he
had gone to village Pandhari near Shegaon and then he had left
for Shirdi. Since Yadav Navkar was still not traceable search
was being carried out. Thereafter, Kausalyabai received
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information that the land owned by her husband bearing Survey
No. 45 of village Umri, Taluka Akola was sold by one Ajay
Galat (accused no. 1) under the garb of general power of
attorney executed by Yadav Navkar in his favour to accused
nos. 2 to 4 and that the said power of attorney was executed by
Yadav Navkar in favour of the accused no. 1 on 30.6.2000. She
also learnt that the sale-deed in respect of the said land was
executed on 8.8.2000 for consideration of Rs. 9 lacs. However,
since Yadav Navkar along with his family members had gone
to pilgrimage and had returned to Akola on 1.7.2000 in the
morning it was impossible for Yadav Navkar to execute the
power of attorney on 30th June, 2000. Moreover, earlier there
was an agreement of sale executed between the deceased and
accused nos. 2 to 4 in respect of the very same property under
which Yadav Navkar had received an amount of Rs. 75,000/-.
The said agreement which was executed on 16th May, 2000 was
later on cancelled and hence there was no possibility of Yadav
Navkar selling the same land to accused nos. 2 to 4. On 14th
October, 2000 Kausalyabai lodged a report stating all the above
referred facts. She also stated in the said report that accused no.
1 Ajay Galat had been to her house on 3rd September, 2000 and
her husband had gone with him and then her husband had not
returned. She suspected the role of accused no. 1 in
commission of murder of her husband\005"
It was further alleged that she was informed by her husband that the
deal was settled with a person named Suresh Deshmukh (PW25) and he had
given a sum of Rs.75,000/- by way of earnest money and in that view of the
matter she suspected that Accused No.1 might have abducted her husband
and kept him confined to some place or might have caused danger to his life
in order to grab the amount received by him on the basis of the said forged
general power of attorney.
On the basis of the said report, a First Information Report was
registered by the police under Section 364 IPC.
In the meanwhile a dead body was found by the officers of Police
Station Bhaisdehi, Madhya Pradesh. A First Information Report was also
recorded by the officer of the said Police Station. Information with regard to
the dead body was received by the officers of Police Station Civil Lines,
Akola on 22.10.2000. On the next day, i.e., on 23.10.2000 PW38
Kaushalyabai along with others went to Police Station Bhaisdehi and on the
basis of the articles purported to have been found on his dead body as also
the photographs of the dead body, she identified it to be that of her husband
Yadav Nawkar.
On the same day Sunil Manmothe (PW1) surrendered before the
Akola Police. He informed the investigating officer that Yadav Nawkar was
murdered by Accused No.1. He turned as an approver and was examined by
the prosecution in support of its case as PW1. In his statement he furnished
details as to how the deceased had been taken from Akola on 3.9.2000 to
various places and was ultimately murdered. He also disclosed the role
played by him at the instance of accused No.1 after the said incidence of
murder.
During investigation, inter alia, it was found that Accused No.5 had
executed an earnest note in respect of the land belonging to the deceased.
Rajesh Ingole and Suresh Deshmukh were called to identify Accused No.5
as they were witnesses to the earnest note dated 16.5.2000 (Article "L").
A charge-sheet thereafter was filed by the Police Officer incharge of
Akola Civil Lines Police Station. In the charge-sheet Accused No.1 was
alleged to have committed crime under Sections 364, 302, 201, 420, 467,
468, 471 read with Section 34 IPC and Accused Nos.2 to 4 have committed
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crime under Sections 420, 467, 468, 471 read with Section 34 IPC. The
statement of PW1 was recorded under Section 306 of the Code of Criminal
Procedure after grant of pardon to him on 26.12.2001. Initially charges were
not framed against Accused Nos. 2 to 4 under Sections 302 and 102B of the
Indian Penal Code against the appellants but later the same were altered by
an order dated 20.7.2004.
The prosecution, in support of its case, examined 49 witnesses. We
are, however, concerned with the evidence of those witnesses only, namely,
PW 1 Ajay Galat who became the approver; PW25 Suresh Deshmukh in
whose presence the purported agreement to sell (Article L) dated 16.5.2000
was executed; and PW38 Kaushalyabai who was the complainant.
The appellants were convicted by the learned Trial Judge. Their
appeal before the High Court has also been dismissed by reason of the
impugned judgment.
Accused No.1 being not before us, it is not necessary for us to
scrutinize the entire evidence on record. It is also not necessary to go into
the niceties of legal questions as regards the mode and manner in which the
PW1 was granted pardon and was made an approver by the police. Accused
No.5 has been convicted under Section 365 IPC and sentenced to two years
RI. He has accepted the verdict and did not prefer any appeal before the
High Court.
The case of the prosecution, to some extent, may be held to have been
proved, namely, Accused No.1 in collaboration with Accused No.5 forged
the general power of attorney and he, relying on, on the basis thereof
executed a deed of sale in favour of Accused Nos.2 to 4. Prior thereto an
advertisement was published in the newspaper and a sum of Rs.9 lakhs in
cash was received by Accused No.1 from the appellants herein and out of
the said sum he deposited a sum of Rs.8 lakhs in different banks. His
involvement in the murder of the deceased is also not in dispute. The
identity of the dead body is also not in dispute before us. The mode and
manner in which the deceased has been done away with is also accepted.
The role played by the approver Accused No.1 may not also be of much
significance for our purpose.
The purported circumstances which had weighed the learned Trial
Judge as also the High Court to arrive at a finding of guilt against the
appellants herein revolve around execution of the sale deed as also the
purported earnest note (Article L). It is also not in dispute that PW1 had
named the accused No.2 in his statement but had not named the accused
Nos.3 and 4.
The High Court proceeded to hold that keeping in view the fact that
the prosecution did not explain non production of original Agreement to Sell
dated 16.5.2000 and merely produced a xerox copy thereof, the same was
not admissible in evidence. It, however, relied upon the oral testimonies of
PW25 and PW38 to form an opinion that in view of the fact that the amount
of consideration fixed in the Agreement to Sell dated 16.5.2000 was Rs.15
lakhs, the sale deed having been executed for a consideration of Rs.9 lakhs,
the appellants herein must have conspired with the accused No.1 for
commission of the said offence. It was also noticed that when the accused
No.1 took PW1 to Hotel Dreamland where the accused no.2 was sitting, he
was asked by the former to pay some amount to him but he refused to do so
saying "who had asked you to murder the deceased". It was opined that the
aforementioned circumstances are sufficient to come to the conclusion that
the appellant herein conspired amongst themselves to commit the said crime.
The theory propounded by the prosecution was that the accused had
entered into two conspiracies, one was the smaller one being forgery of
power of attorney which was used for execution of the sale deed and the
other one leading to murder of the deceased. The said smaller conspiracy
appeared to have given rise to the larger conspiracy, namely, murder of the
deceased so that accused no.1 can appropriate the entire amount of
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consideration. Both the conspiracies although might have been hatched at
two different stages, were treated to be parts of the same transaction.
With a view to ascertain the involvement of appellants, we may notice
that in the conspiracy to forge power of attorney, it has not been proved that
apart from accused nos.1 and 5 anybody else was involved. Article L, the
purported agreement to sell having not been proved, the contents thereof
were wholly inadmissible in evidence. If it was not admissible in evidence,
no part thereof far less the amount of consideration specified therein or the
amount of earnest money stated therein could be used by the prosecution
against the appellants. If the said document had not been proved, no reliance
thereupon could be placed for any purpose whatsoever. The said agreement
also said to have been cancelled. PW25, on whose deposition the High
Court had relied upon, stated that a sum of Rs.2 lakhs was paid by way of
earnest money. PW38, however, states that only a sum of Rs.75,000/- was
paid. She further states that the original agreement was with PW25. He did
not produce the same. The Public Prosecutor did not offer any explanation
whatsoever as to why the original agreement for sale was not produced.
According to PW38 she obtained a xerox copy of the said agreement of sale
from the Collectorate. At whose instance the said xerox copy was filed with
the Collector of the District has not been established.
Inconsistencies in the statements of PW25 and PW38 are galore. If
the said agreement was cancelled, whether the amount of earnest money was
returned to the appellants or not has not been stated.
In her report dated 18.9.2000 PW38 did not disclose the said
agreement for sale. She did not make any allegation against the appellants
herein even in her second report. The suspicion that the deceased was done
away with must have been crystallized by then but as indicated hereinbefore
no allegation whatsoever was made against the appellants. There is
furthermore nothing on record to show that they had anything to do with
Accused No.1 during the period between 16.5.2000 to 30.6.2000 when the
purported power of attorney was executed.
The learned Trial Judge, in his judgment, opined that till execution of
the sale deed the appellants had nothing to do with the commission of the
offence. According to the learned Trial Judge they came in picture only at
the time of execution of the sale deed. They may be present on the date of
the execution of the sale but that by itself in our considered opinion, does
not lead to an inference that they were parties to conspiracy. No evidence
was brought on records to show the involvement of the appellants prior to
3.9.2000. Even no prosecution witness had stated that the deceased was
done away with as he came to learn about the forgery and that he had been
deprived of a huge sum of amount. If the statement of PW38 was correct
that a deal had been made by her husband with PW25 only, it is difficult to
arrive at an inference that the appellants were parties to both the
conspiracies. In her own words:
"\005He had settled the deal of agricultural land with Suresh
Deshmukh and he had immediately handed over to me an
amount of Rs.75,000 received as an earnest money. He did not
tell me about any other transaction with anybody besides the
aforesaid deal\005"
Her statement before the court was made on the basis of what she had
learnt from her husband. She had no direct knowledge thereabout. Her
statement was not admissible in evidence under Section 32 of the Indian
Evidence Act.
In absence of any connecting links in the chain we are unable to agree
with the findings of the learned Trial Judge as also the High Court that
conspiracy by the appellants for committing forgery of the power of attorney
has been established. If ingredients of conspiracy have not been established
for proving the prosecution case as regards commission of forgery, the larger
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conspiracy also cannot be said to have been proved.
Except PW1 nobody has deposed with regard to commission of
murder. PW1, in his statement before the police, did not even name accused
no.2. His name was disclosed by him, for the first time, in his statement
made before the Magistrate under Section 164 Cr.P.C. In his statement
before the learned Magistrate he merely alleged that accused no.1 had taken
him to Dreamland Hotel where accused no.2 was sitting. Why accused no.1
took him to the hotel has not been explained. Why accused no.1 wanted
accused no.2 to pay him some money has also not been disclosed. Even if
the statement made by PW1 that accused no.1 did ask the accused no.2 to
pay some money, the very fact that he declined to do so stating "who has
asked him to commit murder of the deceased" is itself pointer to the fact that
even accused no.2 was not a party to the conspiracy.
It is in the aforementioned situation, we are of the opinion that it will
be hazardous to convict the appellants herein only on such slander evidence.
Suspicion howsoever grave may be is no substitute for proof.
Circumstantial evidence which might have been brought on records are not
such which can lead us to a firm conclusion that there had been a pre-concert
amongst the appellants on the one hand and the accused no.1 on the other.
There is even no allegation far less any proof that at any point of time prior
to 3.9.2000 the accused no.2 had met accused no.1.
We may also notice that even the investigating officer did not
consider it appropriate to charge the appellants herein for commission of
murder of the deceased or they being party to the conspiracy. As noticed
hereinbefore only in 2004 the charges against the appellants were amended.
For the reasons stated above we are of the opinion that the appellants
herein are entitled to benefit of doubt. The appeals are allowed and the
impugned judgment of conviction and sentence is set aside. The appellants
shall be set at liberty forthwith unless wanted in connection with any other
case.