Bombay High Court
Rahul Alias Gorya Pravin Sinha vs The State Of Maharashtra on 18 July, 2023
Bench: A.S. Gadkari, Prakash Deu Naik
2023:BHC-AS:19942-DB
SAT 201-APEAL-54-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 54 OF 2019
WITH
INTERIM APPLICATION NO. 2592 OF 2022
WITH
INTERIM APPLICATION NO. 899 OF 2019
Pandhari Laxman Shendge
Age : 25 Years,
R/o. Khwaja Vasti, Miraj, Dist. Sangli
Presently at Kolhapur Central Prison,
Kalamba, Dist. Kolhapur ...Appellant/Applicant
Versus
State of Maharashtra
Through Mahatma Gandhi Chowk
Police Station, Miraj ...Respondent
WITH
CRIMINAL APPEAL NO. 89 OF 2019
WITH
CRIMINAL APPLICATION (APPA) NO. 1326 OF 2018
WITH
INTERIM APPLICATION NO. 1305 OF 2019
Rahul Alias Gorya Pravin Sinha
Age : 24 Years,
Presently at Kolhapur Central Prison,
Kalamba, Dist. Kolhapur ...Appellant/Applicant
Versus
The State of Maharashtra
At the instance of Mahatma Gandhi
Chowk Police Station, Miraj ...Respondent
Digitally signed
by SUNNY
Mr. Amit Mane for Appellant in Appeal No.54 of 2019 and Applicant in
ANKUSHRAO
SUNNY THOTE
ANKUSHRAO
THOTE Date:
2023.07.18
Interim Application No.2592 of 2022.
19:10:10
+0530 Ms. Nasreen S. K. Ayubi, Appointed Advocate for Appellant in Appeal
No.89 of 2019 and for Applicant in Interim Application No.1305 of
2019 and 1326 of 2018.
Mrs. M. H. Mhatre, APP for Respondent - State.
1/19
::: Uploaded on - 19/07/2023 ::: Downloaded on - 20/07/2023 01:26:09 :::
SAT 201-APEAL-54-2019.doc
CORAM : A. S. GADKARI AND
PRAKASH D. NAIK, JJ.
RESERVED ON : 24th FEBRUARY, 2023.
PRONOUNCED ON : 18th JULY, 2023.
JUDGMENT : (PER - PRAKASH D. NAIK, J.)
1. The Appellants were prosecuted for offences under
Sections 302 r/w 34 of Indian Penal Code (for short 'IPC') in
Sessions Case No.16 of 2016 before the Court of Sessions at Sangli.
They were convicted vide Judgement and order dated 30 th June,
2018 passed by the learned Additional Session Judge, Sangli and
sentenced to suffer life imprisonment.
2. The prosecution case is as follows :-
Informant Maya and deceased Gajanan were in
relationship. Gajanan was addicted to liquor. He committed theft.
There were differences between them. They separated from each
other about two years prior to the incident in question. On 1 st
August, 2015 dead body of Gajanan was found near the railway
track. Maya identified the body as that of Gajanan. In her
statement to the Police she stated that, she had seen Gajanan
having quarrel with two persons under the influence of liquor.
Gajanan called them 'Bhadkhau'. They were angry. They assaulted
Gajanan in front of grocery shop of Yuvraj. All of them went
towards railway bridge. Police investigated the matter and arrested
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Accused. Stone used for giving blow on Gajanan was seized.
Clothes of the Accused were seized. Charge-sheet was filed for
offence punishable under Section 302 of IPC.
3. Charge was framed. Prosecution examined 15 witnesses.
PW-1 Maya Rajput is the first informant. PW-2 Vishal Vinayak
Gosavi is Pancha of spot Panchanama. PW-3 Arjun Satvekar is the
Panch witness for seizure of clothes of victim. PW-4 Rahim
Dhanawade is the Panch witness for statement and recovery of
clothes from Accused No.1. PW-5 Mayur Sathe is the Panch witness
for statement and recovery of clothes from Accused No.2. PW-6
Sanjay Durve is the witness to whom Accused No.2 made extra
judicial confession. PW-7 Mustafa Shaikh is the owner of hotel in
which Accused were working. PW-8 Ranjana Bhajnavale is sister of
deceased. PW-9 Ajmuddin Shaikh, Panch for inquest Panchanama.
PW-10 Shamrao Sawant is Executive Magistrate who conducted
test identification parade. PW-11 Subodh Gore is photographer
and video grapher. PW-12 Dr. Surekha Gawade is Medical Officer
who conducted postmortem. PW-13 Dr. Arati Apate is the Medical
Officer who examined the Accused. PW-14 Dr. Shital Shinde, is the
Medical Officer who collected blood samples on the stone. PW-15
Sangeeta Mane is Investigating Officer.
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4. Learned Advocate for Appellant in Criminal Appeal No.54
of 2009 submitted as under :-
i. The prosecution has failed to establish the involvement
of the Appellant/Accused No.1 in this case. The evidence of
the witnesses suffers from discrepancies. The case of the
prosecution is based on circumstantial evidence. The chain of
circumstances is not proved. Evidence of complainant suffers
from doubt. Test identification parade was conducted
belatedly. After filing of charge-sheet no permission was
sought for bringing on record the memorandum of test
identification parade which was recorded after the charge-
sheet was filed. PW-1 had admitted that, she did not inform
the Police that two persons took deceased with them to
railway bridge and could not give explanation for not stating
the same. She could not provide the date on which she was
called at Police Station at 7:00 p.m. She did not state that the
time when the incident of abuses took place and when the
deceased was taken to railway bridge.
ii. PW-2 stated that, the spot shown by Arun Khatib on 1 st
August, 2015. However, it is not categorically stated that it
was a spot of incident. The prosecution has relied upon the
extra judicial confession. PW-6 stated that Accused No.2 was
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working in hotel Anarkali as cook and also working with
Accused No.2. He admitted that he is illiterate. He cannot
read and write. He did not report the incident to Police about
quarrel between Accused and Gajani. The extra judicial
confession cannot be relied upon. It is weak piece of
evidence. The theory of last seen together suffers from doubt.
iii. Reliance is placed on the following decisions :
i. State of Rajasthan V/s. Raja Ram, (2003) 8 SCC 180.
ii. Sahadevan and Another V/s. State of Tamil Nadu, (2012)
6 SCC 403.
iii. Hari Charan Kurmi And Jogia Hajam V/s. State of Bihar, 6
SCR 623.
iv. Dana Yadav @ Dahu and Others V/s. State of Bihar,
(2002) 7 SCC 295.
v. Shahaja @ Shahajan Ismail Mohd. Shaikh V/s. State of
Maharashtra, 2022 SCC Online SC 883.
5. Learned Advocate for Appellant in Criminal Appeal No.89
of 2019 adopted the submissions of learned Advocate in other
appeal.
6. Learned APP submitted that, although there is no eye
witness to the incident, the circumstances brought on record.
Proves the involvement of the Appellants. The evidence of PW-1
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shows that the Appellants were quarreling with the deceased and
all of them went together towards railway bridge. She has
identified the Appellants as persons who were quarreling with
deceased. There is evidence of extra judicial confession made by
one of the Appellant. Stone used for giving blow on the deceased
was seized. There is strong circumstantial evidence against
Appellants.
7. There is no eye witness to the incident of assault and
murder of deceased Gajanan. The case is based on circumstantial
evidence. Prosecution is relying on circumstance of last seen
together and extra judicial confession by one of the Accused.
8. As per the legal precedents of the Apex Court the
foundation of 'last seen together' theory is based on principles of
probability, cause and connection. Where a fact has occurred with
series of acts, preceding or accompanying it, it can safely be
presumed that the fact was possible as a direct cause of the
preceding or accompanying acts, unless there exists a fact which
breaks the chain upon which the inference depends. The
circumstance of 'last seen together' does not by itself and
necessarily lead to the inference that it was the Accused who
committed the crime. There must be something more establishing
connectivity between Accused and the crime.
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9. It is the settled position of law that, extra judicial
confession, if true and voluntary, can be relied upon by the Court to
convict the Accused. It would depend on the nature of the
circumstances, the time when the confession is made and the
credibility of witness who speak for such a confession. The Court
has to be satisfied that it is voluntary and not result of inducement,
threat or promise. The extra judicial confession is a weak piece of
evidence by itself. It has to be examined by the Court with great
care and caution. It should inspire confidence. It should be
voluntary and truthful. It attains greater credibility and evidentiary
value, if it is supported by chain of cogent circumstances as further
corroborated by other evidence for conviction on extra judicial
confession, it should not suffer from any material discrepancies and
inherent in probabilities.
10. We have examined the evidence on record to ascertain
whether there is sufficient evidence to convict the Appellants for
the charged offences.
11. PW-1 Maya Raju Rajput has deposed that, after death of
her husband, she was acquainted with Gajanan Vilas Paras alias
Gajani (Deceased). He stayed with her for two years. However,
subsequently he was addicted to liquor and indulging in
commission of theft. In view of his conduct, she told him not to
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visit her house. After a period about two years, she saw him having
quarrel with two persons. They were abusing him. They took him
towards railway bridge. She returned home. On the next day she
saw the crowd near the bridge. She saw the dead body of Gajani.
She identified the same. She noticed injuries on his person. Police
arrived at the spot and prepared Panchanama etc., and thereafter
took away the dead body. The Police visited her house. She was
questioned whether she had seen anyone beating Gajani. She told
the Police that she did not see anybody while beating Gajani. She
was having suspicion regarding those two persons having quarrel
with Gajani. After three months of incident one person came to her
house and instructed her to visit Sangli Jail. She visited Sangli. She
identified the man who was having blackish complexion as the one
with Gajani on the previous day of incident. She also identified
another person having quarrel with Gajani on the earlier day of
incident. She know names of those persons. They are Pandhari and
Gorya. She identified accused sitting in the Court. She identified
the accused having blackish complexion as Pandhari and fair
complexion as Gorya. In the cross-examination it was deposed that
few cases were registered against Gajani in the past for committing
offence of theft. Her children were aggrieved of the relationship
between her and Gajani. Vishal and Sagar had beaten Gajani on
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that count. The parents of Gajani and sisters were opposing the
relationship between her and Gajani. She did not state to Police
that, those two persons took Gajani with tem to railway bridge.
She did not inform Police about the quarrel going on between
Gajani and two persons on the earlier day of incident. Since she
had concluded all the relations with Gajani she did not inform the
same to Police. She do not know the date on which she was called
to Sangli Jail to identify those two persons.
12. The prosecution is relying upon the circumstances of
deceased being last seen in the company of Accused on the basis of
evidence of PW-1. However, evidence of this witness suffers from
glaring infirmity as she has not disclosed to Police that the two
persons took Gajani with them towards railway bridge and the
quarrel was going on between Gajani and two persons on the
earlier day of incident. As per the evidence of this witness the
deceased was in relationship with her and they were not in touch
for a period about two years. She suddenly saw him having quarrel
with two persons and on the next day she saw some crowd
gathered near the railway bridge where the body of the deceased
was found lying with injuries on his person. Surprisingly she did
not go to Police immediately and informed them about the quarrel
which had occurred on the previous day of the said incident. She is
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not the eye witness to the incident of assault resulting in death of
the deceased. The Police visited her residence and made inquiry
with her. She told them that she did not see anybody beating
Gajani but she only saw the dead body. Even at that point of time
she did not disclose the Police about the quarrel of previous day
and fact that the deceased was accompanied by the assailants while
they proceeded towards railway bridge. The Accused were
unknown to PW-1. She was called to Sangli Jail after three
months. She do not know the date on which she was called to
Sangli Jail to identified those two persons. In her cross-
examination in chief PW-1 has stated that, she knows the names of
Accused and she named named them in the Court and identified
them. Test identification parade was conducted after filing of
charge-sheet. It is not clear how PW-1 was knowing the names of
Accused. The version of this witness speaks volumes of doubt and
no reliance can be placed on her evidence to convict the
Appellants.
13. PW-2 Vishal Vinayak Gosavi is the Panch witness to the
spot Panchanama. His evidence refers to the visit of the Police to
the spot and recording spot Panchanama. He stated that spot was
brought to their notice by one Arun Khatib. He is working with
Subodh Gore. He used to work with him. Mr. Gore is photographer.
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He accompanies Subodh Gore for work. Mr. Gore used to go
whenever he receives call from Police. Subodh Gore received call
from Police. When they reached the spot police were already
present at spot.
14. PW-3 Arjun Satvekar is the Pancha witness to the seizure
of the clothes of the deceased. He was called by Police. He was
told that two persons are ready to produce something. He was
shown clothes. He was told that the clothes were worn by
deceased and he had brought the same from hospital. Panchanama
was prepared. He could not give name of Police who called hi.
From his deposition it is not clear who had shown the clothes of
deceased and identified them as his clothes.
15. PW-4 Rahim Dhanvade is the Pancha witness for
Panchanama relating to disclosure statement made by Accused
No.1/Appellant No.1. He refers to the spot of incident being shown
by the Accused and recovery of clothes by the said Accused. On 3 rd
August, 2015 he was called by Police. One person who gave his
name as Pandhari Laxman Shendge was at Police Station. He was
ready to disclose the clothes worn by him at the time of offence.
He took the team towards backside of railway brige. He showed
spot of incident. He took out one shirt from heap of scrap material.
Thereafter he handed over pant from hotel.
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16. PW-5 Mayur Sathe has acted as Pancha witness for
disclosure statement made by Accused No.2 with regards to
recovery of his clothes. On 4th August, 2014 he was called by Police
Officer. He stated that he hidden the clothes worn by him at the
time of commission of alleged offence. Accused produced clothes.
Police seized them.
17. PW-6 Sanjay Durve has deposed that he is acquainted with
both the Accused. On 31st July, 2015 he was working in railway
station parking. Accused Gorya came in the parking with
motorcycle. One Amit Nikam was present with PW-6. Accused
Gorya told him that he has given blow of small stone to Ganya and
Pandhari is beating him with big stone. Subsequently he came to
know from Police that they committed murder of Ganya. He was
called in Miraj Court. His statement was also recorded in Miraj
Court. The statement recorded under Section 164 of Cr.P.C. of this
witness was marked as Exh.36. In the cross-examination he stated
that, he did not report to the Police that Accused Gorya told him
that he and Pandhari were having quarrel with Gajani and they
beat him by stone. He could have reported the matter to Police. He
is personally not observing the persons coming and going from the
railway station.
SAT 201-APEAL-54-2019.doc
18. Accused No.2 has retracted his extra judicial confession
which is evident from the explanation given by him while recording
his statement under Section 313 of Cr.P.C. It is relevant to note that
according to this witness the confession was made by Accused
No.2. The Accused No.2 has allegedly stated to him that he gave
blow by small stone and the Accused No.1 assaulted the deceased
with big stone. He also told him that there was quarrel amongst
them. Thus, the Accused No.2 has allegedly attributed the role of
assaulting the deceased with bigger stone to Accused No.1 and
assault by smaller stone to him. This witness did not approach
Police and lodge complaint. His silence speaks doubt about
genuineness of his version.
19. PW-7 Mustafa Omar Shaikh has stated that he was
acquainted both Accused. On 30th July, 2015 at about 11:45 p.m.
the Police came to his stall while he was closing his stall. They
found that the stall is about to be closed. They filed a complaint
under Section 33(w) of Bombay Police Act. On next day he sent
Accused in the Court on motorcycle to pay fine. Both Accused
came to stall on next day. He sent them to Court. They paid the
fine. Police came to his stall and informed him about incident of
murder. Sachin informed him that Accused were having dispute
with Gajani.
SAT 201-APEAL-54-2019.doc
20. PW-8 Ranjana Bhajnavale is the sister of deceased. She
identified the dead body of deceased. She came to know that
somebody murdered him by giving stone blow out of quarrel.
21. PW-9 Ajmuddin Khatib is the witness to inquest
Panchanama. He stated that dead body was found on spot. One
lady by name Maya was present at the spot. She identified the
body. There was head injury on body.
22. PW-10 Shamrao Savant was working as Nayab Tahasildar.
According to him he received letter for conducting test
identification parade on 26th November, 2015. He fixed parade on
5th November, 2015. There was only one witness. PW-1 identified
Accused by touching them. He stated that PW-1 has identified the
Accused in the parade. In the cross-examination he states that he
did not make any entry about presence of clerk with him in office
register. He did not call the Police to inform them about his visit to
the jail. PW-1 had arrived in the jail. The incident had occurred on
31st July, 2015. PW-1 had witnessed the incident of quarrel between
Accused and deceased for a brief period. Parade was conducted on
26th November, 2015.
23. PW-11 Subodh Gore is the photographer. He snapped
photographs of dead body on the spot. He videographed the
statement of Accused No.1 on 3rd August, 2015. On 4th August,
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2015 he again videographed and took photographs. It was
regarding statement by Accused No.2.
24. PW-12 Dr. Surekha Gawade was posted as Medical Officer
in Miraj College. She conducted postmortem. She found CLW over
left pinna of size 2x1x1 cm. She found cut outside the ear, CLW on
the left eye brow. CLW over left temporal region. She noticed
haemotoma under scalp at left temporal region. She found that left
temporal bone had depressed fracture. There was subdural
haemotoma over the left temporal parietal region. She found
diffused subarchanoid hemorrhage. She stated that there is
difference in age mention in inquest Panchanama, advance death
certificate and postmortem.
25. PW-13 Dr. Arati Apte was serving as CMO in Government
Medical Hospital, Miraj. She conducted examination of Accused.
She did not find any abnormality.
26. PW-14 Dr. Shital Shinde has stated that she received letter
on 2nd August, 2015 from Mahatma Gandhi Police Station, Miraj.
Police requested to her to take dired blood stains on the stones
brought by them. She collected the samples in bottle.
27. PW-15 Sangeeta Mane was posted as API at Mahatam
Gandhi Police Station, Miraj. She conducted investigation. Accused
were arrested. Charge-sheet was filed. In the cross-examination it
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was stated that it is necessary to make entry in the station diary if
the police wants to go out of Police Station. She has not produce
any document to that effect. PW-1 was present on the spot before
their arrival. PW-1 did not lodge any complaint to the Police
Station regarding the incident of quarrel as stated by her. She did
not record statements of two sons, daughter and mother of PW-1.
She recorded statements of Amit Nikam, Sanjay Durve and Ranjana
Bhajnavale at Police Station. Sanjay Duve and Amit Nikam had not
lodged any complaint against Accused on 31 st July, 2015. She did
not record statement of owner of parking. There is no timing
mentioned in the log book showing as to exactly when they left for
investigation of present matter. She had sent a letter for opinion of
the Medical Officer regarding the possibility of injuries by stone.
The Medical Officer communicate to sent stones. However she did
not provide stones though there were blood stains on it. She did
not produce the bills issued by the photographers alongwith the
charge-sheet. The Executive Magistrate informed her that he was
going to conduct T.I. parade.
28. Blood group of Accused could not be determined and it
was inconclusive. The blood group on clothes seized during
investigation was inconclusive. The species origin was human
blood.
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29. From the evidence of aforesaid witnesses it can been seen
that, there is no strong evidence to establish the chain of
circumstances to prove that the Appellants have committed murder
of the deceased. The two circumstances relied upon by the
prosecution are weak in nature and are not sufficient to prove the
guilt.
30. In the case of Hari Charan Kurmi And Jogia Hajam V/s.
State of Bihar, 6 SCR 625, it is observed that a confession cannot be
treated as evidence which is substantive evidence against a co-
accused in dealing with a criminal case where the prosecution
relies upon the confession one Accused against another Accused,
the proper approach to adopt is to consider the other evidence
against such Accused and if the said evidence to be satisfactory and
the Court is inclined to hold that the said evidence may sustained
the charge framed against the said Accused, the Court turns to the
confession with a view to assure itself that the conclusion which it
is inclined to draw from the other evidence is right.
31. In the case of State of Rajasthan V/s. Raja Ram, (2003) 8
SCC 180, it is held that in the case of circumstantial evidence the
conviction can be justified only when all the incriminating facts and
circumstances are found to be incompatible with the innocence of
the Accused or the guilt of any other persons. The circumstances
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have to be proved beyond reasonable doubt and have to be shown
to be closely connected with the principle fact sought to be inferred
from those circumstances. Extra judicial confessions are those
which are made by the party else where then before a Magistrate or
Court. Extra judicial confessions are generally made by a party
before private individual. The confession cannot be used against
an Accused unless the Court is satisfied that it was voluntary and at
that stage the question whether true or false does not arise. If the
facts and circumstances surrounding the making of a confession
appear to caste a doubt on the veracity or voluntariness of the
confession, the Court may refuse to act upon it even if it is
admissible in evidence.
32. In the case of Sahadevan and Another V/s. State of Tamil
Nadu, (2012) 6 SCC 403, it is observed that extra judicial
confession is a weak piece of evidence. Court must ensure that it
inspires confidence. In DANA Yadav and Others V/s. State of Bihar
(2002) 7 SCC 298, it is observed that though primary evidence, the
identification of Accused in T.I. parade is not substantive one.
33. Considering the nature of evidence adduced by the
prosecution, we are of the considered opinion that, the prosecution
has failed to establish that the Appellants have committed murder
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of deceased. The Appellants deserves to be acquitted. Hence the
following order.
ORDER
i) Criminal Appeal No.54 of 2019 and Criminal Appeal
No.89 of 2019 are allowed;
ii) Judgment and order dated 30th June, 2018 passed by
the learned Additional Session Judge, Sangli in Sessions Case
No.16 of 2016 convicting the Appellants for offence under
Section 302 r/w 34 of IPC is set aside and the Appellants are
acquitted.
iii) The Appellants be set at liberty, unless required in any
other case.
iv) Interim Applications are disposed off.
[PRAKASH D. NAIK, J.] [A. S. GADKARI, J.]
