Gautam Kamlakar Pardeshi And Anr vs The State Of Maharashtra
2022 Latest Caselaw 5276 Bom

                                                                                                 APEAL224.2018.doc



                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CRIMINAL APPELLATE JURISDICTION
                                            CRIMINAL APPEAL NO. 224 OF 2018
                       1. Gautam Kamlakar Pardeshi.
                       Age: 32 years, Occ. Unemployed.
                       R/o. Room No. 16, Thakurwadi,
                       Kharodi Naka, Virar (W).

                       2. Rahul @ Lalya Yogesh Jadhav
                       Age: 19 years, Occ. Student,
                       R/o. Green View Society, E/53,
                       2nd floor, Virar(W).
                       (Both at present detained at Central
                       Prison, Thane.)                                         ... Appellants.
                       V/s.
                       The State of Maharashtra,
                       At the instance of Arnala Police Station.               ... Respondent.
                                                        ------------------
                       Ms. Vrushali Maindad, Advocate appointed a/w. Ms. Shaheen Kapadia
                       a/w. Ms. Ankita Nishad, advocate for appellants.
                       Ms. P.P. Shinde, APP for State.
                                                       ---------------------

          Digitally
                                        CORAM : SMT. SADHANA S. JADHAV &
ARUNA S
          signed by
          ARUNA S
          TALWALKAR
                                                MILIND N. JADHAV, JJ.
TALWALKAR Date:
          2022.06.10
          16:24:27
          +0530
                                   RESERVED ON : APRIL 21 2022.
                           PRONOUNCED ON : JUNE 10, 2022.


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

1 The appellants are convicted for the offence punishable under

section 302 of the Indian Penal Code and sentenced to suffer Life

Imprisonment and to pay fine of Rs. 10,000/- each in default to suffer R.I. for

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six months. The appellants are further convicted for the offence punishable

under section 201 of the Indian Penal Code and sentenced to suffer R.I. for 5

years and to pay fine of Rs. 5,000/- each in default to suffer R.I. for 3

months, by the Additional Sessions Judge, Vasai vide Judgment and Order

dated 16th February, 2018 in Sessions Case No. 76 of 2014. Hence, this

appeal.

2 Such of the facts necessary for the decision of this appeal are as

follows:

(i) That on 4/1/2014 at about 7.45 a.m. Joseph Rodrigues had been

to his wadi (a small piece of agricultural land) for giving water to Banana

trees through water pump. Since flow of the water was not proper, he had

been to the water pump and at that time, he had noticed that a dead body was

floating in the well. The backside of the dead body was open from waist to

leg. It was in a plastic gunny bag.

(ii) Joseph Rodrigues (P.W.1) returned home and informed to his

brother about the same. He then called upon the Councillor of the area who

further passed on the information to the police patil. At the instance of the

police patil a fire brigade team alongwith police came to the spot. The dead

body was pulled out of the well by the fire brigade.

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(iii)         P.W. 7 then reported the matter to the police, on the basis of

which accidental death was registered vide ADR No. 3 of 2014.

(iv) Investigation of the ADR No. 3 of 2014 was given to P.W. 2

Hemantkumar Katkar, PSI of Palghar Police Station. He had carried out

initial steps in investigation. The inquest panchanama was drawn by him,

which is marked at Exh. 25. A coir rope was seized which is marked at

Article B and Article A is the plastic gunny bag. The advance death

certificate was served upon P.W. 2 on the next day. After initial enquiry, P.W.

2 registered Crime No. 1 of 2014 at Palghar Police Station.

(v) In the course of investigation, the Investigating officer recorded

the statement of one Jeris @ Anna Falix Pillai (P.W.8) and Martin Niel

Moris(P.W.9) who had lastly seen the accused with the deceased. One Hitesh

Raut(P.W.11) who was running a pan stall disclosed to the police that he had

seen a mentally ill person standing near his pan shop. On the basis of the

statements of P.W. 8 and P.W. 9, the accused were arrested and charge-

sheeted.

(vi)          It was the case of the investigating agency that accused Pravin

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had also made an extra judicial confession to P.W. 9.

3 At the trial the prosecution examined as many as 13 witnesses to

bring home the guilt of the accused. However, the entire case of the

prosecution rests on the evidence of P.W. 3 Vinay Muley, a panch for

recovery of the clothes of the deceased at the instance of accused Gautam;

P.W. 4 Dr. Anant Kulkarni who performed the autopsy on the dead body of

the deceased ; P.W. 7 Joseph Rodrigues who set the law into motion; P.W. 8

Jeris Pillai, who saw the deceased in the company of the accused; P.W. 9

Martin Moris to whom extra judicial confession was made and P.W. 12 API

Santosh Barge who conducted investigation and filed charge-sheet.

4 According to P.W. 7 Joseph Rodrigues, he had filed a report

thereby informing the police that when he had been to the well to start the

motor pump, he had noticed that an unidentified dead body was floating in

the well. On the basis of his report, ADR No. 3 of 2014 was registered and

investigation was set in motion. In the cross-examination, he had admitted

that he had not informed the police that upon seeing the dead body in the

well, he had first informed his brother, who called the local councilor and

then on the basis of the information of the police patil, the police had arrived

at the spot. It is categorically stated in the cross-examination that the said

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well was a common well and the residents in the wadi used to draw water

from the well turn by turn. That there was no fencing around the wadi and

therefore, trespassers had an easy access to the wadi. According to him,

whenever a thief is apprehended in the wadi, the thief used to be assaulted by

the agriculturists. That the accused were not residents of the wadi and

therefore, he had not seen the accused in the close vicinity of the wadi. That

when he saw the dead body, he had not noticed any injury on the dead body

and therefore, he had presumed that the said person must have had an

accidental fall.

5 P.W. 8 Jeris Pillai has deposed before the court that he is a

resident of Virar Garden. On 31st December, 2013 he was celebrating the

New Year Eve alongwith the accused Pravin, Gautam, Rahul and Raj Martin.

They had enjoyed the party. At about 3 a.m. to 4 a.m. they all dispersed and

went to their respective houses. On 1 st January, 2014 in the morning Raj

Martin approached him and informed him that his cousin Cyril has arranged a

party and that he should join him. P.W. 8 obliged. P.W. 8 was in the

company of Raj Martin till 11 to 11.30 p.m. in Gokul township. In his

presence, Raj received a phone call from Pravin. Pravin asked both of them

to come behind the MM Bar. They reached there by 1 a.m. and saw a

mentally ill person wandering on the road. The said person had dashed

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Gautam. They had tried to inquire with the said person but he gave no reply.

Then under the pretext of giving food to the said person, Pravin, Gautam and

Rahul led him to pump house and started assaulting him. The accused then

denuded the said person of his clothes. In the meanwhile, P.W. 8 and Raj

Martin were being invited for the party and therefore, they left. P.W. 8 stayed

in the house of Raj Martin till 3.30 a.m. and went to his own house.

6 On 2nd January, 2014 Pravin and Raj asked P.W. 8 to reach

Chaware wadi at about 8 to 8.15 p.m. When he visited Chaware wadi, he saw

all the three accused were present and at that time, Gautam informed

everybody that the mentally ill person, they encountered in the previous night

was in fact a demon(Khavis). Gautam then disclosed that they had assaulted

the said person on the head, killed him and threw his body in the well situated

behind Sakharambaba Sankul. They were performing some ritual and then

handed over a lemon to P.W. 8 informing him that the said lemon will protect

him.

7 On 4/1/2014 P.W. 8 had seen the fire brigade taking out the dead

body from the well. It is elicited in the cross-examination that P.W. 8 is an

alcoholic. After consuming alcohol he used to consume ganja. Martin was

his good friend and used to consume alcohol with P.W. 8. In a state of

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intoxication, his mind used to be out of control. That from 31 st December,

2013 to 4th January, 2014 he had enjoyed parties every day. He has further

admitted that on 1st January, 2014 he returned from Gokul township to Martin

at about 9.30 p.m. and Cyril's party had started at 9.30 p.m. He was under

the influence of alcohol when he reached MM. Bar at about 1 a.m. They had

again consumed liquor at MM. Bar. The fact that Pravin had called upon Raj

is an omission. In fact, Gautam had told Pravin that the said person is not a

beggar but a thief. That they were aware that there was some tussle between

the said unknown person and a rickshawalla who had asked said unknown

person to get out of the rickshaw and after that the unidentified person had

disappeared from the spot.

8 According to P.W. 8, all the three accused were under the

influence of liquor and therefore, were not in position to walk properly. The

pump house is situated in the wadi and there is no facility of light near the

pump house. That he had accompanied Martin to Bolinj Naka and then they

both returned to the house of Martin. That Martin was in a hurry to reach

home since the family members were calling him persistently. On 2nd January,

2014 he woke up at about 3 p.m. and thereafter, had not visited any of the

places like Sakharababa Sankul and Pump house. In the evening of 2 nd

January, 2014, he found nothing objectionable. It is specifically admitted that

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he had not suspected Rahul, Pravin and Gautam as the assailants of the

unknown person as he had not seen any one of them assaulting the said

unknown person. He had not seen the dead body nor the police had called

upon him to see the dead body. There are material omissions in the evidence

of P.W. 8 which go to the root of the matter.

9 P.W.9 Martin Moris was resident of Virar Garden. P.W.9 was a

good friend of accused and used to consume liquor alongwith them in the

premises of pump room which is situated behind the Sakharambaba Sankul.

According to P.W. 9, on 31/12/2013 he had accompanied P.W. 8 to Gokul

township and then they returned home at about 9 p.m. A party was going on.

They joined the party. P.W. 8 Jeris was receiving calls from Pravin

persistently and therefore, they both decided to meet Pravin at Bolinj Naka.

Pravin was not present at the spot but a beggar was wandering here and there.

The said beggar had a bad smell. Pravin asked them to come behind MM

Bar. P.W. 8 and P.W. 9 obliged. He saw all the accused present there. The

beggar had dashed Gautam and the said gesture annoyed Gautam. The

beggar was apprehended by Gautam and Pravin, but he was unable to speak

except uttering the words "Mumbai station". They suspected him to be a

thief. Pravin caught hold of the beggar whereas Gautam and Rahul gave him

fists and blows. Then they went to pump house. P.W. 8 and P.W. 9 were

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asking the accused to release the beggar and not to assault him. Rahul and

Pravin denuded the beggar of his clothes and assaulted him. P.W. 9 received

phone call from his sister and therefore, left the spot. On 2 nd January, 2014

accused Pravin called P.W. 9 at Bolinj Naka and informed him that the said

person was not a human being but a demon and all three of them killed the

said person with a stone. Pravin also informed that the dead body of the said

person was thrown in a well. All the three accused suspected the said person

to be a demon. While handing over lemon, they informed P.W. 9 that the said

spirit could cause harm to him and his family. He has also admitted to be an

alcoholic. That they used to consume drugs together. On 31st December,

2013 the party continued for the whole night and spilt over till 8 a.m. of 1 st

January, 2014. He was a good friend of Pravin and vouched for him as a

good person with a helping nature and no criminal antecedents. He admits

that he has not given description of the said unknown person to the police.

There are material omissions in the evidence of P.W. 9. His evidence that his

friend had threatened him of dire consequences in the eventuality of

disclosing facts to the police is a material omission.

10 P.W.4 Dr. Anand Kulkarni has performed autopsy on the dead

body. His qualification was B.A.M.S.(Bachelllor of Aurvedic Medical

Science). According to him, the injuries were antemortem. On external

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examination, he found following injuries on the said dead body.

(i) Contusion size 3 cm. x 1 cm. on chest right side 2 cm. above

nipple, colour black.

(ii) CLW size 5 cm. x 2 cm. x bone deep on right temporal region,

3" above right ear, brain protruding from fracture skull, colour

was black and angles were broad and borders were irregular,

(iii) CLW size 1 cm. x ½ cm. x bone deep, just above injury no.2,

colour was black, angles were broad and borders irregular,

(iv) CLW 1 cm. x 3 mm. X bone deep, just above injury no. 3, colour

was black and angles were broad and borders irregular,

(v) Contusion size 6 cm. x 1 cm. near left shoulder tip, colour was

black.

(vi) Contusion size 1 cm. x 1 cm. on left forearm lateral side

midway, between elbow and wrist, colour was black.

All injuries nos. 1 to 6 were possible due to hard and blunt object within 36

hours to 7 days of examination. Injury nos. 2 , 3 and 4 were grievous

whereas injury nos. 1, 5 and 6 were simple injuries. Injury no. 2, 3 and 4

were sufficient in the ordinary course to cause death. On internal

examination, he found following injuries:

(i) Subcutaneous haematoma 2 cm. x 4 cm. on left temporal region,

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(ii) fracture skull, right temporal region 7 cm. x 2 cm. horizontal

below injury No. 2, 3 and 4 described under Col. 17.

(iii) Brain covering were contused below injury No. 2, 3, 4 described

under col. 17 on right temporal region,

(iv) Subdural blackish Haemotoma on right temporal region irregular

sized and shape.

The autopsy was performed alongwith Dr. D. A. Jadhav. But the PM. Notes

were prepared in the handwriting of P.W. 4. The same are proved and

marked at Exh. 43. On 13th January, 2014 police had shown a stone to P.W.

4. It is admitted that injury Nos. 1, 2 and 6 are not possible by the stone,

which was seized in the course of investigation. The dead body was in

swollen condition, but there was no water in the lungs. There were no clothes

on the dead body when the body was sent for post mortem and therefore,

there was no question of dry and wet clothes. According to P.W. 4, after

completion of post-mortem he had handed over the clothes mentioned in

column no. 8 to police. It is clarified that the dead body was wrapped in a

curtain and the said curtain was wet. Column No. 12 and 13 of the

postmortem reports shows as follows :

12. Extent and signs of Whole body swollen and disfigured. Bullae decomposition, presence formation & ruptured all over body skin flaccid post-mortem lividity of and detach on pulling tongue protruded outside buttocks, loins, back and mouth maggots all over body (pupae) ½ cm. long thighs or any other part. p.m. lividity on back buttocks and scapular Whether bullae present regions fixed.

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     and the nature of their
     contained             fluid.
     Condition of the cuticle.
13. Features- Whether natural       Swollen eyes swollen & closed. Tongue
    or swollen, stale of eyes,      protruded outside mouth due to decomposition,
    position of tongue: nature      blood clots present in limb right ear.
    of fluid (if any) oozing
    from mouth, nostrils- or
    ears.

The cause of death was "due to intracranial hemorrhage due to head injury.

11 P.W. 12 Santosh Barge, API has deposed before the court the

steps taken by him in the course of investigation. According to him, accused

Pravin Wagh had burnt his bloodstained clothes. Stone was recovered at this

instance. The clothes of the deceased were recovered at the instance of

accused Gautam from the lake. The clothes of the accused Gautam were also

recovered from his house. There were blood stains on the pant below the

knee area. Similarly, there is recovery of clothes of Accused Rahul. He

disclosed that he had thrown the clothes with bloodstains in lake. P.W. 12 has

admitted that no blood stains were seen on the scene of offence. There was

no material to show that the dead body was dragged from pump house to

well. P.W. 12 had admitted that he has not recorded the statement of the

owner of land Joseph Rodrigues, in which the well and pump house were

situated. There was no compound to the well as well as the pump house. The

dead body was not identified. According to him, he did not feel it necessary

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to record statement of the owner of the land. There is no investigation besides

the evidence of P.W. 8 and P.W. 9 that the deceased was a beggar nor it had

transpired that the deceased was a thief. But in the course of investigation, it

had transpired that on the day of the incident, an auto rickshaw driver had

teased the deceased but the said auto rickshaw driver could not be tressed.

12 The accused were not subjected to alcoholic examination. There

was no evidence to show that anyone in the locality besides P.W. 8 and P.W.9

had seen the deceased in the locality. In the course of investigation, clothes of

deceased were not shown to eye witnesses for verification. In the

panchanama at Exh. 31, it is specifically mentioned that the clothes were wet

and therefore, the signatures of the panchas will be obtained after the clothes

dried. There is no evidence to show that after seizure, the clothes were sealed.

Some currency notes were recovered in the course of seizure of clothes, but

there is no reference from whom the notes were seized and to whom they

were given. The currency notes are not deposited in the court either. The big

stone which was seized was not sent for chemical analysis. During

investigation, P.W. 12 had opened the seal of stone for the purpose of

showing the same to the medical officer. There is a distance of 50 to 60 ft.

between the pump room near lake and the pump room near the well. But

there were no marks of dragging the dead body nor there was trail of blood.

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No liquor bottles were found near any of the pump room.                   During

investigation, P.W. 12 had not collected the call details records of accused

and witnesses. P.W. 12 had proved the omissions and contradictions in the

evidence of the witnesses. It is categorically admitted by P.W. 12 that in the

present case, there is no eye witness to the murder.

13 The learned Counsel for the appellants has vehemently

submitted that the prosecution has not proved its case beyond reasonable

doubt. It is argued that it is the case of the prosecution that accused had

assaulted the deceased with fists and blows. The medical evidence is

otherwise. The medical evidence shows that the assault was with hard and

blunt object. That the accused had no reason to assault the deceased and that

they have been falsely implicated only because they happened to be alcoholic

and drug addict. However, that by itself is not sufficient to hold that the

accused are the perpetrators of the crime. Hence, they deserve to be

acquitted. It is also urged that the accused have not fled from the scene of

offence. They did not have a guilty mind. That in the eventuality they had

committed an offence, they would have fled from the spot. There are no

independent witnesses. P.W. 8 and P.W. 9 were in the company of the

accused from 31st December, 2013 to 4th January, 2014. They have

suppressed the facts and hence, their evidence does not inspire the confidence

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to convict the accused.

14 Learned counsel for the appellants placed reliance upon the

Sahadevan and anr. v.s. State of Tamilnadu1.

"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra- judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.

16 Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.

The Principles

i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

ii) It should be made voluntarily and should be truthful.

iii) It should inspire confidence.

iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

1    (2012) 6 SCC 403
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               v)    For an extra-judicial confession to be the basis of

conviction, it should not suffer from any material discrepancies and inherent improbabilities.

vi) Such statement essentially has to be proved like any other fact and in accordance with law."

The learned Counsel for the appellants has placed reliance upon the same

judgment to substantiate that the factum of last seen has to be corroborated

and shall not suffer from any and discrepancies as well.

15 Per contra, the learned APP has submitted that P.W. 8 and P.W. 9

are eye witnesses and they had seen the deceased lastly in the company of

the accused.

16 The evidence in the present case is in the nature of the

circumstances of last seen theory and extra judicial confession to P.W. 9. The

prosecution has only relied upon the evidence of P.W. 8 and P.W. 9 who were

under the influence of alcohol throughout that period. P.W. 8 and P.W. 9 were

in the company of the accused when the incident of assault had taken place.

The fact that they had tried to persuade the accused not to assault the

deceased is in the nature of a material omission and the said omission is

proved in accordance with law. P.W. 8 and P.W. 9 were also not in a proper

frame of mind even to understand the events which they have seen. They

have not disclosed anything to police immediately. It is not known as to what

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was the material on record to show that the accused and the witnesses were

in each other's company at the time of incident. It is true that the accused had

no animus or intention to assault the deceased much less to kill him. The

identity of the deceased has not been established. The deceased was also not

apprehended when he was attempting to commit theft. It is the case of the

P.W. 8 and P.W. 9 that the accused had assaulted only with fists and blows.

There is no recovery of weapon. However, according to P.W. 4, the assault

was with a hard and blunt object. The evidence in the nature of extrajudicial

confession is week, since there is no material on record to show that it was a

voluntary disclosure to its fullest extent. The accused were not in their senses

till late in the afternoon of 1st January, 2014 and that they had continued the

party for 4 days after the incident. The dead body was found on 4 th January,

2014 and the condition of dead body shows that the death must have occurred

atleast four days before. P.W. 11 Hitesh Raut has disclosed that he had seen a

mentally ill person standing near pan shop on 1/1/2014 at about 12 to 12.30

a.m. P.W. 11 has been declared hostile by the prosecution. P.W. 11 was also

not called by the police for identifying the dead body.

17 The prosecution has failed to establish that P.W. 8 and P.W.9 had

seen the deceased in the company of the accused. The only description is that

he was a mentally ill person. But the identity of the person as the deceased

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has not been established. The statement of P.W. 8 and P.W. 9 are recorded

after the arrest of the accused. Therefore, again there is no material to show

that it was on the basis of their statement that the accused were arrested.

18 The extrajudicial confession does not inspire confidence as P.W.

9 was in the company of the accused on 31 st December, 2013 as well as on 1 st

January, 2014. There was no reason for the accused to tell P.W. 9 on the eve

of 2nd January, 2014 that they had killed the deceased. Moreover, P.W. 9 had

neither reported it to the police nor he had verified that the body was thrown

in the well. The body was recovered on 4 th January, 2014. The material

infirmities in the evidence of P.W. 8 and P.W. 9 do not inspire the confidence

of the court.

19 "Last seen theory" by itself is not sufficient to prove that the

accused are the authors of the fatal injuries sustained by the deceased. In

fact, the prosecution has to establish the time when the deceased was lastly

seen in the company of the accused and the time of death. Unless there is

proximity in the time of last seen and the time of death, the evidence cannot

be taken into consideration to convict the accused.

20              In view of the above discussion, it can be safely inferred that the


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prosecution has failed to establish the guilt of the accused beyond reasonable

doubt. The appellants deserve to be acquitted of all the charges levelled

against them. Hence, following order is passed :

ORDER

(i) The Criminal Appeal is allowed.

(ii) The conviction and sentence imposed upon the appellants vide Judgment and Order dated 16th February, 2018 passed by the learned Additional Sessions Judge, Vasai in Sessions Case No. 76 of 2014 is hereby quashed and set aside. The appellants are acquitted of all the charges levelled against them.

(iii) The appellant be released forthwith if not required in any other offence. Fine amount if paid be refunded.

(iv) The Criminal Appeal is disposed of accordingly.

(MILIND N. JADHAV, J) (SMT. SADHANA S. JADHAV, J)

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