Ajay Dattaram Surve vs The State Of Maharashtra
2021 Latest Caselaw 7561 Bom

                                                                                    apeal141.2010.doc



         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 141 OF 2010
 Ajay Dattaram Surve.
 Aged 28 years, residing at
 Tulsani, Tal. Sangmeshwar,
 District Ratnagiri.
 (now confined at Nasik Road
 Central Prison, Nasik Road.)                               ... Appellant.
                                                                (Accused No. 1)
 V/s.
 State of Maharashtra.                                      ... Respondent.
                                ALONGWITH
                       CRIMINAL APPEAL NO. 833 OF 2009
 Anant @ Anna Rama Tambe,
 Age : 30 years,
 R/o at & post- Nivali, Shindewaid,
 Tal. & District Ratnagiri.                                 ... Appellant.
                                                                (Accused No. 3)
 V/s.
 State of Maharashtra.                                      ... Respondent.


                                     -------------------
 Mr. Manas Gawankar i/b. Ms. Sharon Patole, advocate for appellant in
 Cri. Appeal No. 141 of 2010.
 Mr. Rakesh Bhatkar a/w. Mr. Mohan Devkule a/w. Mr. Mohit Dalvi
 a/w. Mr. Adesh Chavande, advocate for appellant in Cr. Appeal No.
 833 of 2009.
 Ms. P.P. Shinde, APP for State.
                                    ---------------------
                               CORAM : SMT. SADHANA S. JADHAV &
                                       N.R. BORKAR, JJ.
                 RESERVED ON : MARCH 9, 2021.
              PRONOUNCED ON : JUNE 8, 2021.

Talwalkar                                                                                      1



     ::: Uploaded on - 08/06/2021                            ::: Downloaded on - 08/06/2021 22:50:19 :::
                                                                      apeal141.2010.doc




JUDGMENT (PER SMT. SADHANA S. JADHAV, J):

1 The appellants impugn the Judgment and Order passed by

Learned Additional Sessions Judge, Ratnagiri in Sessions Case No.

10/2008 dated 20/6/2009 thereby convicting the accused No. 1 Ajay

Dattaram Surve for the offence under section 302 of the Indian Penal

Code and sentencing him to suffer imprisonment for life. The accused

No. 1 is also convicted for offence punishable under section 392 of the

Indian Penal Code and sentenced to suffer R.I. for 10 years and to pay

fine in the sum of Rs. 1000/- I.d. to suffer R.I. for 8 months. The

accused No. 1 is further convicted for the offence punishable under

section 201 of the Indian Penal Code and sentenced to suffer R.I. for 2

years. The accused No. 1 is further convicted for the offence

punishable under section 182 of the Indian Penal Code and sentenced

to suffer R.I. for 6 months and to pay fine of Rs. 100/- I.d. to suffer

R.I. for 15 days. The accused No. 3 Anant @ Anna Rama Tambe is

convicted for the offence punishable under section 414 of the Indian

Penal Code and sentenced to suffer R.I. for 2 years and to pay fine of

Rs. 500/- I.d. to suffer R.I. for 6 months.

apeal141.2010.doc

2 Case involves the death of one Nanikram Sukeja resident of

Ulhasnagar. He was a partner of Konark Company, which is engaged in

taking contracts of excavation of sands. He was also engaged in

collection of octroi taxes. On 6th May, 2007 Nanikram had left

Ulhasnagar to go to Chiplun. On the way, he had collected Rs.

3,25,000/- from the office of the company. His relatives Shankarlal

Makhija and Girish Wagh wanted to go to Malkapur, which falls on the

way to Chiplun and therefore, they had accompanied Nanikram. He

was also carrying with him royalty books. On the same day, he

reached Malakapur at about 7 p.m., dropped his companions, checked

into a hotel and then after freshening left for Chiplun. He had also

informed his companions that he would return to Malkapur within 2 to

4 days. They had travelled in a Tata Sumo Jeep, which was driven by

the accused No. 1 Ajay.

3 In the night of 7th May, 2007 the accused No. 1 informed

the police at Sakharpa out post, Devrukh that on the way from

Malkapur to Chiplun at Amba Ghat, a Scorpio Jeep had accosted their

vehicle (Tata Sumo). 5 to 6 persons alighted from the said jeep, had a

conversation with Nanikram in Sindhi language and thereafter, they

apeal141.2010.doc

kidnapped him. He further informed that 2 persons from the said jeep

had closed his mouth with handkerchief, after which he fell

unconscious. He had regained consciousness in the morning of 7 th

May, 2007. At that time, he was on the road near Oras. On 7 th May,

2007, P.W. 22 Girish Koyande of Deorukh Police Station received a

telephonic information from an unknown person that on 6 th May, 2007

a crime has taken place in Amba Ghat. On 7 th May, 2007 P.W. 22

reached Sakharpa out post. The accused No. 1 Ajay Surve was brought

to Sakharpa out post. Statement of accused No. 1 was recorded in the

intervening night of 7th and 8th May, 2007 in which he disclosed above

information. Hence, on 8th May, 2007 Crime No. 42 of 2007 was

registered at Devrukh Police Station against unknown persons for

offence punishable under section 302, 395, 397, 365, 328, 201 of the

Indian Penal Code.

4 On the same day i.e. on 8th May, 2007 P.W. 17 Rajesh, son of

the missing person appeared before the police. His statement was

recorded. P.W. 17 had cooperated with the police to search for his

father. At the time of recording the statement of accused No. 1, P.W.

22 had noticed that the said complainant i.e. accused No. 1 had

apeal141.2010.doc

sustained an incise wound on his left humerus. P.W. 22 had suspected

the accused no. 1, who was the complainant in Crime No. 42 of 2007

and doubted the genuineness of the information given by him.

5 On 10th May, 2007 wireless message was received at the

police station that they have found an unidentified body of a male

person. Ganpat Gawade(P.W.1) was informed by Santosh Mitore that a

dead body of an unidentified male person is lying at Phanas Wadi.

They had visited the spot and found the dead body by the side of the

road passing from Bavnadi to Charveli. A foul smell was emanating

and therefore, they did not go near the dead body. On the instructions

of P.W. 1, Mahesh Mhap informed the police about the same. At about

8.30 p.m., statement of P.W. 1 was recorded. On the basis of which,

A.D. No. 32 of 2007 was registered and the investigation was set in

motion.

6 In fact, on 9th May, 2007 a Tata Sumo Jeep bearing No.

MH-04-AS-2329 was found and the same was seized on 10 th May,

2007. At the time of detailed panchanama, they found empty beer

bottles in the jeep.

apeal141.2010.doc

7 Inquest panchanama on the dead body was performed.

P.W. 20 Sanjay Durgule was the panch. The inquest panchanama

indicated that the dead person was about 45 to 50 years of age and he

was wearing shirt and bermuda pant. The panchanama is at Exh. 67.

That, the dead body was in decomposed state and could not be

identified. At the time of inquest, it was noticed that the penis of the

dead body was circumcised, which is usually found in Muslim male.

That, fluid was oozing from the dead body. That, they had not found

any wrist watch on the wrist of the deceased. The recitals of Exh. 67

would establish that the death was due to head injury. The same was

confirmed by performing post mortem. The post mortem notes are at

Exh. 18. The cause of death is shown as "Neurohaemorrhagic shock

due to head injury". The post mortem was performed on 10/5/2007.

Column No. 7 of the post mortem notes shows wrist watch in working

condition and one yellow colour ring in right hand index finger. There

were maggots all over the dead body. The post mortem was also

conducted on the spot by the Medical Officer, Primary Health Center,

Hathkhamba and was then handed over to Gram Panchayat and with

the help of Gram Panchayat staff, said dead body was buried.

                                                                       apeal141.2010.doc



8              On 11th May, 2007 P.W. 21 had learned about the

registration of Crime No. 42 of 2007 at Deorukh Police Station. That, a

dead body was found in the jurisdiction of Ratnagiri Rural Police

Station and therefore, A.D. was registered. Inquest was performed.

Post Mortem was conducted on the spot and the body was buried.

Upon learning about this, P.W. 21 had transferred all the papers of A.D.

No. 32 of 2007 to Deorukh Police Station.

9 On 11th May, 2007, P.W. 17 was informed by one of the

partner of the company namely, Jethanand that an unidentified dead

body was found within the jurisdiction of Ratnagiri Rural Police Station

and that the dead body was buried. P.W. 17 reached Deorukh Police

Station and thereafter, the body was exhumed. P.W. 17 had identified

the dead body to be that of his father, mainly by seeing the wrist watch

and the finger ring. The cell phone which was used by the deceased

was in fact, allotted to an employee by the company, namely, Dagadu

Malban. The Cell Phone number is 9422637629. P.W. 17 had informed

the police that while travelling to Oras, his father was carrying royalty

books and debit card of UTI bank. The accused No. 1 was again

interrogated and finally he was arrested on 15/7/2007 as he was

apeal141.2010.doc

protected by an order of pre-arret bail till 5/7/2007.

10 In the course of trial, P.W. 1 Ganpat Gawade had

substantiated that the information was given to the police station by

him through Mahesh Mhap about noticing an abandoned dead body in

a large pipe. The seizure of Tata Sumo Jeep bearing No. MH-04-AS-

2329 on 9th May, 2007 is proved by P.W. 2. The scene of offence

panchanama was recorded on the basis of the statement of the accused

No. 1 on 9th May, 2007 which is at Exh. 36.

11 In the course of investigation, it had transpired that

accused No. 1 had sold a mobile hand set to P.W. 13 Narayan Nanda

who runs Ashapura Mobile Shopee at Ratnagiri. P.W. 13 had purchased

the said hand set for Rs. 2300/-. On the same day, P.W. 14 Hanif had

purchased said mobile hand set from Ashapura Mobile Shopee. Hanif

was working as Mechanic in garage. On 21/6/2007 cell phone hand

set of Nokia Company was produced by Hanif to the police. It was

seized at garage in the presence of P.W. 9 Najam Hodekar, owner of the

garage and the panchanama is at Exh. 38. The prosecution had

attempted to prove that accused No. 1 was the person who sold the

apeal141.2010.doc

said cell phone to P.W. 13 Narayan Nanda by claiming that photograph

of the accused was shown to him. This could not have established by

itself that the prosecution has proved beyond reasonable doubt that

accused No. 1 had sold the said cell phone.

12 P.W.16 Suresh Lokhande, Sub-Divisional Engineer in BSNL

at Ratnagiri furnished call record details of mobile number

9422637629 from 6th May, 2007. Thereafter the handset was used for

a different SIM card baring No. 9422391046, registered in the name of

Hanif Jagirdar, employee of P.W. 9, Investigating Officer had not

verified the IMEI number to be the same. The call records also did not

show as to who was the last person to have called upon Nanikram.

The photograph of the accused No. 1 was shown to the shopkeeper

and he has mechanically identified the same. That, if the investigating

agency had kept a track of the cell phone from the date when the

report was lodged by accused No. 1, it would have been easier to trace

the accused who had sold the same after passage of time.

13 In the course of investigation, P.W. 17 Rajesh Sukheja had

specifically stated that his father had collected an amount of Rs.

apeal141.2010.doc

3,25,000/- from the office of the company and the money was given to

him by P.W. 26 Udhavdas Rupchandani. The same has been proved

through P.W.26. According to P.W. 26, on 6 th May, 2007 he had given an

amount of Rs. 3,25,000/- to Nanikram Sukheja for paying daily wages

and salary. P.W. 26 has deposed before the Court that on 6th May, 2007,

he had given Rs. 3,25,000/- to Nanikram for paying daily wages and

salary. That, he had handed over the amount in the bundle of Rs.

100/- currency notes. But, he was not sure as to whether the bundle

of the currency notes shown to him before the Court were the part of

the amount (Muddemal Article No. 10). Upon seeing the photograph,

he has identified that the accused No. 1 was the driver on Tata Sumo

Jeep. He has further admitted that he has seen the accused in the

Court on the previous date of hearing. According to him, there is no

documentary evidence to show that the said amount was paid to

Nanikram on that day, except the income tax return. In fact, two

bundles of Rs. 100/- denominations were affixed with the seal of UCO

Bank and Business Cooperative Bank and yet, P.W. 26 has failed to

identify the money which was recovered at the behest of accused No.

1. The prosecution claims that an amount of Rs. 1,69,150/- was

recovered at the instance of accused No. 1 from the house of accused

apeal141.2010.doc

No. 3.

14 The memorandum of accused No. 1 shows involvement of

one Sadik Mukadam(accused No. 2) who was arrested initially on the

ground that he used to be in contact with accused No. 1. Sadik

Mukadam is acquitted by the learned Sessions Court and there is no

appeal against acquittal.

15 The accused No. 3 was arrested since it was contended that

the accused No. 1 was residing with him till he was arrested. However,

accused no. 3 is convicted for an offence punishable under section 414

of the Indian Penal Code. The arrest panchanama of accused No. 1

dated 15/7/2007 at Exh. 19 shows that he was arrested in the police

station by local crime branch. The accused No. 3 was also arrested on

the same day.

16 At the time of recovery, 11 bundles of 100 notes of Rs.

100/- denomination (1,10,000), one bundle of 100 notes of Rs. 500/-

denomination (Rs. 50,000/-), one bundle of 100 notes of Rs. 50/-

denomination (Rs. 5,000), 35 notes of Rs. 100/- denomination(Rs.

3,500/-) and 13 notes of Rs. 50/- denomination (Rs.650/-), total Rs.

apeal141.2010.doc

1,69,150/- were recovered. However, it is not the contention of P.W. 26

that he had also given notes of Rs. 500/- denomination. The

remainder amount has not been recovered. Neither it is shown that it

was shared by all the accused. The prosecution has not examined any

panch witness to prove that an amount of Rs. 1,69,150/- was

recovered at the instance of accused No. 1 from the house of accused

No. 3. The prosecution has placed implicit reliance upon the recovery

of the amount of Rs. 1,69,150/- at the behest of accused No. 1. It is

the contention that the accused No. 1 had not offered any explanation

in respect of his knowledge about the amount of Rs. 1,69,150/- in the

house of accused No. 3.

17 It is pertinent to note that it is a specific case of the

prosecution that Nanikram had left for Oras alongwith Shankarlal

Makhija and Girish Wagh. However, statement of both the witnesses

was not recorded till 11th May, 2007. It is admitted by P.W. 26 that the

amount shown to him may not be the same which was given to

Nanikram. It is also admitted that there were several rival groups in

the business of sand excavation and the suggestion that the possibility

of Nanikram being murdered at the hands of one of the rival groups

apeal141.2010.doc

cannot be ruled out, has been answered evasively by P.W. 26. People in

the vicinity knew that Nanikram used to travel on that road to make

payment to daily wagers and salary on the excavation site and

therefore, the possibility that the act was committed by sand mafia

cannot be ruled out. It is also stated that there are several civil and

criminal cases pending against Konark Company in the Court of

Chiplun and surrounding area.

18 All this could have been proved by the prosecution in the

eventuality of there being some investigation in Crime No. 42 of 2007

on the basis of the complaint of the accused No. 1. The toll plaza was

the easiest mode, by which the investigating agency could have found

out, as to whether any Scorpio Jeep had travelled at the relevant time

on the same road as that of Tata Sumo Jeep. It appears that ever since

inception, P.W. 22 was suspecting the accused No. 1 and his report was

taken with a pinch of salt and hence, it was not a fair investigation. It

is true that lacunas in the investigation would not entitle an accused to

seek acquittal. However, the prosecution has to stand on its own legs

and there is a long distance to be travelled between "may be" and

"must be" which has to be covered by the prosecution on its own

apeal141.2010.doc

strength. Although P.W. 22 claims that he was suspecting accused No.

1 to be the miscreant, had not kept any vigilance on the movement of

the accused No. 1 to verify whether he had taken the said amount and

spent it at various places.

19 In the present case, P.W. 17 had specifically claimed that

his father was 63 years old. That, it was incumbent upon the

investigating agency to have done DNA profiling in order to establish

that the dead body, which was found in the pipe on the roadside of

Bavnadi to Charveli was that of Nanikram. There is variance in the age

of the deceased as mentioned in the inquest panchanama and post

mortem notes, whereas, actual age of the deceased was more than 60

years. In fact, P.W. 17 Rajesh Sukheja was 31 years old when the

incident had occurred and in his previous statement, he has given the

age of his father as 60 years whereas, he had informed the

investigating officer that the age of his father was 63 years. The dead

body on which inquest was made was of a male person who was 45

years old. DNA profiling could have been the only mode by which it

could be proved that the dead body was that of Nanikram. Moreover,

the identity of the dead body as 'Muslim' dismantles the theory of the

apeal141.2010.doc

prosecution that the dead body was that Nanikram who was a Hindu.

20 This cannot be said a case of corpus delicti, as the

prosecution has placed implicit reliance upon the identification of the

dead body by the son of the deceased to be that of Nanikram. The

Court cannot be oblivious of the fact that the body was in completely

decomposed state and even, according to P.W. 17, he had identified the

body on the basis of a ring and the wrist watch. No wrist watch was

found on the person of the deceased which is clear from the inquest

panchanama which is at Exh. 67. In the absence of any fair

investigation, it cannot be said that the dead body was that of

Nanikram. This would be the most important link. Moreover, accused

No. 3 has also been convicted only for an offence punishable under

section 414 of Indian Penal Code and it cannot be imagined that the

accused No. 1 had alone done the entire act of killing the deceased by

giving a blow on his head and then concealing the dead body in a pipe

on the road. Moreover, it is not the case of the prosecution that the

deceased was wearing the same clothes which were found on the dead

body while leaving the house. It is neither the case of the prosecution

that circumcision on the penis was a result of fresh injury, nor the

apeal141.2010.doc

same is proved either through P.W. 17 or his mother.

21 Learned Counsel for the appellant has submitted that the

prosecution has not proved the guilt of the accused beyond reasonable

doubt, firstly, recovery of an amount of Rs. 1,69,150/- does not ipso

facto prove that it was the accused, who had stolen the amount from

the deceased and in that course, had killed him. It is also submitted

that since the recovered amount is not proved by P.W. 26 to be the

same amount which was given to Nanikram, as he did not have record

about denominations and the recovery of amount by itself would not

prove that it was none another than the accused No. 1 who had killed

Nanikram and therefore, he could not have been convicted for an

offence punishable under section 302 of the Indian Penal Code.

Hence, he deserves to be acquitted for an offence punishable under

section 302 of the Indian Penal Code.

22 Per contra, learned APP has submitted that the accused No.

1 has failed to give an explanation under section 106 of the Indian

Evidence Act, as at the relevant time the deceased was in the exclusive

company of accused No. 1. It is submitted that there can be an error in

apeal141.2010.doc

determination of age. The learned APP has supported the Judgment of

conviction.

23 It is incumbent upon the prosecution to prove all the

circumstances to eliminate every possibility of the accused being

innocent and that none other than the accused No. 1, who had

committed the said offence.

24 The Hon'ble Supreme Court in landmark Judgment of

Sarwan Singh vs. The State of Punjab, 1 has laid down a guiding

principle in cases which rest upon circumstantial evidence. It is held as

follows :

"that considered as a whole the prosecution story may be true;

but between 'may be true' and 'must be true' there is inevitably a

long distance to travel and the whole of this distance must be

covered by legal, reliable and unimpeachable evidence."

25 Learned Sessions Judge has also convicted the accused No.

1 for an offence punishable under section 182 of the Indian Penal

Code. Section 182 of the Indian Penal Code reads as under :

11947 AIR 637

apeal141.2010.doc

"182. False information, with intent to cause public servant to use his lawful power to the injury of another person.--Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant--

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

In view of the above, the accused No. 1 is entitled to be acquitted of

the charge under section 182 of the Indian Penal Code.

26 The fact that the accused No. 1 is being acquitted of section

302 of the Indian Penal Code, it can be safely inferred that he had not

created any disappearance of evidence, which would lead to the

principal offence and in view of that the accused No. 1 deserves to be

acquitted for the offence punishable under section 201 of the Indian

Penal Code. Similarly, since the amount that was recovered

purportedly at the behest of the accused No. 1 from the house of the

apeal141.2010.doc

accused No. 3 has not been proved to be same amount beyond

reasonable doubt, which was handed over to the deceased by P.W. 26 is

sufficient to acquit the accused No. 1 of the offence punishable under

section 392 of the Indian Penal Code by giving benefit of doubt.

27 In view of the above discussion, accused No. 3 also

deserves to be acquitted of the charge under section 414 of the Indian

Penal Code.

28                Hence, following order is passed :



                                       ORDER

(i)               Both the Criminal Appeals are allowed.



(ii)               The conviction and sentence imposed vide Judgment and

Order dated 20/6/2009 passed by Learned Additional Sessions Judge,

Ratnagiri in Sessions Case No. 10/2008 against accused No. 1 and

accused No. is hereby quashed and set aside. The accused No. 1 and

accused No. 3 are acquitted of the charges levelled against them.

(iii) The accused No. 1 be released forthwith, if not required in

apeal141.2010.doc

any other case.

(iv) The bail bond of accused No. 3 stands cancelled.

(v) The fine amount, if paid by accused Nos. 1 and 3, be

refunded.

(vi) Both the appeals are disposed of accordingly.

       (N.R. BORKAR, J)               (SMT. SADHANA S. JADHAV, J)