Bombay High Court
Ramdas Anaji Mahadik @ Vinherkar vs State Of Maharashtra And Anr on 5 February, 2024
Author: N.R. Borkar
Bench: Anuja Prabhudessai, N. R. Borkar
2024:BHC-AS:9081-DB
j-a-22-499-975-14-975-19-122-20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO. 22 OF 2014
Ramdas Anaji Mahadik @ Vinherkar ...Appellant
(Org. Accused No.1)
Versus
1. The State of Maharashtra
2. Vivek S. Vinherkar ...Respondents
WITH
APPEAL NO. 499 OF 2014
Chandrakant @ Chandu Mangal Patil ...Appellant
(Org. Accused No.4)
Versus
The State of Maharashtra ...Respondent
WITH
APPEAL NO. 122 OF 2020
Rajan @ Raja @ Bala Shankar Nayar ...Appellant
(Org. Accused No.8)
Versus
1. The State of Maharashtra
2. Vivek S. Vinherkar ...Respondents
WITH
APPEAL NO. 975 OF 2019
The State of Maharashtra
(Through Mahad Taluka Police
Station, Taluka Mahad, Dist. Raigad
Vide C.R. No. 08 of 2007) ... Appellant
Versus
1. Ramdas Anaji Mahadik @ Vinherkar
2. Santosh Sadanand Mahadik
3. Gilbirt William Ohol
4. Chandrakant @ Chandu Mangal Patil
5. Prashant Kamlakar Vinde
6. Rajan @ Raju @ Bala Shankar Nayar
7. Sandeep Sadanand Mahadik @ Vinherkar ...Respondents.
WITH
INTERIM APPLICATION NO. 4051 OF 2022
IN
APPEAL NO. 22 OF 2014
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WITH
INTERIM APPLICATION NO. 801 OF 2019
IN
APPEAL NO. 122 OF 2020
Mr. Nitin Sejpal a/w. Ms Pooja Bhojne, Ms Akshata Desai for the
Appellant in Appeal No.22/14 for the Respondents in Appeal
No. 975/19.
Ms Pooja Bhojne for the Appellant in Appeal No.499/14.
Mr. Ajay Patil, APP for the Appellant/State in Appeal No. 975/19
and for the Respondent/ State in Appeal Nos.22/14, 499/14 &
122/20.
None present for the Appellant in Appeal No.122/20.
Mr. Amit Mane, Appointed Advocate for Respondent No.2 in
Appeal No.22/14 and 122/20.
CORAM : SMT ANUJA PRABHUDESSAI &
N. R. BORKAR, JJ.
RESERVED ON : 27 SEPTEMBER 2023.
PRONOUNCED ON : 05 FEBRUARY 2024.
COMMON JUDGMENT (PER N.R. BORKAR, J.)
1. All these Appeals are fled against one and the same
judgment and order dated 1 January 2014 passed by the
Additional Sessions Judge, Mangaon, Dist. Raigad in Sessions
Case No. 43 of 2008. All these Appeals were therefore heard
together and are being disposed of by this common judgment.
2. In the above sessions case, in all nine accused viz.
accused No.1 - Ramdas Anaji Mahadik @ Vinherkar (appellant
in Appeal No.22 of 2014), accused No.2- Santosh S. Mahadik,
accused No.3 - Gilbirt W. Ohol, accused No.4 - Chandrakant @
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Chandu Mangal Patil (appellant in Appeal No.499 of 2014),
accused No.5 Ramchandra @ Ram Bajirao Sonawane, accused
No.6 - Ronald A. Parera, who died during the trial, accused No.7
- Prashant K. Vinde, accused No.8 - Rajan @ Raju @ Bala
Shankar Nayar (appellant in Appeal No. 122 of 2020) and
accused No.9 - Sandeep S. Mahadik @ Vinherkar were tried for
the ofences punishable under Sections 364, 365, 120-B, 302
read with 34 and 201 of the Indian Penal Code, 1860 (for short
"IPC").
3. By the impugned judgment and order, the trial Court
convicted :
(i) Accused No.1 - Ramdas Anaji Mahadik @ Vinherkar
for the ofences punishable under Sections 364, 365, 302
read with 34 and 201 of the I.P.C. and sentenced him to
sufer rigorous imprisonment from 7 years to life
imprisonment;
(ii) Accused No.3 - Gilbirt William Ohol for the ofence
punishable under Section 202 of the IPC and sentenced
him to sufer the imprisonment for the period for which he
was in jail during trial, i.e., from 23 March 2007 to 26 June
2007;
(iii) Accused No.4 - Chandrakant @ Chandu Mangal Patil
for the ofences punishable under Sections 364, 365, 302
read with 34 and 201 of the I.P.C. and sentenced him to
sufer rigorous imprisonment from 7 years to life
imprisonment;
(iv) Accused No.7 - Prashant Kamlakar Vinde for the
ofences punishable under Sections 364 and 365 read with
34 of the I.P.C. and sentenced him to sufer imprisonment
from 7 years to 10 years. (Accused No.7 has not fled the
appeal);
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(v) Accused No.8 - Rajan @ Raju @ Bala Shankar Nayar
for the ofences punishable under Sections 302 read with
34 and 201 of the I.P.C. and sentenced him to sufer
rigorous imprisonment from 7 years to life imprisonment;
4. Criminal Appeal No. 22 of 2014, Criminal Appeal No. 499
of 2014 and Criminal Appeal No. 122 of 2020 are fled by
accused Nos.1,4 and 8 respectively against their conviction,
whereas Criminal Appeal No. 975 of 2019 is fled by the State
against acquittal of accused No.2- Santosh Mahadik, accused
No.5- Ramchandra @ Ram Bajirao Sonawane and accused
No.9- Sandeep S. Mahadik @ Vinherkar. Accused No.3 - Gilbirt
W. Ohol and accused No.7- Prashant Kamlakar Vinde have not
fled appeal against their conviction.
5. The deceased Shantaram was the relative of accused
Nos.1,2 and 9. He along with his family was residing in
Mumbai. According to the prosecution, there was a dispute
between the deceased and accused Nos.1,2 and 9 on account
of their ancestral agricultural land at their native village
Vinhere. There were some other disputes between them.
According to the prosecution, due to said disputes they made a
plan to kill the deceased and to execute the said plan, they
hired accused Nos.3 to 8. It is alleged that pursuant to the said
plan, on the date of incident which took place on 7 March 2007,
the deceased was abducted, he was killed and his dead body
was thrown in the valley near Chirekhind village on Poladpur-
Mahabaleshwar road.
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6. The trial Court to convict the accused Nos.1,3,4, 7 and 8
has relied upon the following circumstances.
(i) Enmity between accused No.1 and deceased;
(ii) Recovery of the dead body at the instance of
accused No.1;
(iii) Confessional statement of accused No.3.
7. We have heard learned counsel for the appellants/
accused, learned APP for the respondent No.1 - State and
learned appointed counsel for the respondent No.2.
Enmity:
8. The trial Court to arrive at the conclusion that there was
enmity between accused No.1 and the deceased has relied
upon the evidence of PW-1 Vivek Vinherkar, the son of the
deceased, PW-3 Ashok Vinherkar, the cousin of the deceased
and PW-5 Vanita Devalekar, the sister of the deceased.
9. The learned counsel for the appellants/accused submit
that PW-1 Vivek has admitted in his evidence that he had no
personal knowledge about the alleged enmity. It is submitted
that thus the evidence of PW-1 as regards alleged enmity is of
no consequence.
10. PW-3 Ashok is the frst informant in the present case. The
learned counsel for the appellants/accused submit that
according to PW-3, he was with the deceased at the time of
alleged abduction, however, he has not disclosed about the
alleged enmity in the frst information report lodged on 7 March
2007. It is submitted that according to PW-3, he was also
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present when the dead body of the deceased was brought to
village Vinhere on 14 March 2007, still he did not disclose
about the alleged enmity to the Investigating Ofcer. It is
submitted that PW-3 has disclosed about the alleged enmity
to the Investigating Ofcer for the frst time in his
supplementary statement dated 19 March 2007. The learned
counsel for the accused submits that considering the overall
facts and circumstances it would not be safe to place reliance
on the evidence of PW-3 to hold that there was enmity
between the deceased and accused No.1.
11. The learned counsel for the accused further submits that
similar is the situation of PW-5 Sou. Vanita. It is submitted that
she too did not disclose about the alleged enmity to the police
till recovery of the dead body of the deceased. It is submitted
that even otherwise the evidence of PW-5 in relation to alleged
enmity is vague. It is submitted that the trial Court therefore,
erred in arriving at the conclusion that there was enmity
between the accused No.1 and the deceased.
12. On the other hand, the learned APP for the State submits
that the trial court has rightly relied upon the evidence of PW-3
and PW-5 to conclude that there was enmity between the
deceased and accused No.1. It is submitted that the evidence
of PW-1, PW-3 and PW-5 cannot be discarded merely on the
ground of delay in disclosing about the alleged enmity to the
Investigating Ofcer.
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13. We have perused the evidence of PW-1, PW-3 and PW-5.
According to PW-1, there was enmity between his father and
accused Nos.1,2 and 9. PW-1 has, however, admitted in his
cross-examination that he had no personal knowledge about it.
Thus, the evidence of PW-1 is of no consequence on the point
of alleged enmity.
14. PW-3 on the point of enmity has stated that the relations
between the deceased and accused Nos.1,2 and 9 were
strained and thus meeting was held. In the said meeting, the
accused No.1 had uttered the words that he would kill the
deceased. PW-3 in his evidence has not disclosed as to when
this meeting was held. He has admitted that he disclosed
about it to the police for the frst time on 19 March 2007, i.e.,
after 12 days of the alleged abduction. Thus, in our view, it
would not be safe to rely upon the evidence of PW-3 on the
point of alleged enmity.
15. PW-5, on the point of enmity, has stated that prior to the
incident accused No.1 had threatened the deceased of dire
consequences. The evidence of PW-5 about the alleged threat
is vague. Apart from it, PW-5 has admitted in her evidence that
she disclosed about the alleged threat to the police on 14
March 2007, i.e., after 7 days of the alleged incident of
abduction.
16. According to the witnesses, the deceased was repeatedly
threatened. However, there is not even a single complaint to the
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police. Apart from it, no independent witness has been
examined on the point of alleged enmity. The trial Court was
therefore, not justifed in arriving at the conclusion that there
was enmity between the deceased and accused Nos.1,2 and 9.
ABDUCTION AND MURDER:
17. According to the prosecution, the alleged abduction took
place when the deceased was gong to Karanjadi Railway
Station from his native village - Vinhere where he had come to
attend annual fair of Zolai Devi. According to the prosecution,
at the time of alleged abduction, PW-3 Ashok and PW-6 Mahesh
were with the deceased.
18. The learned counsel for the accused submits that
according to PW-3 and PW-6, the accused came in Tata Sumo
Jeep. Accused Nos.4 and 7 got down from the said Jeep. They
introduced themselves as police personnel. They made the
deceased to sit in the Jeep and took him away. It is submitted
that the trial Court to convict accused Nos.4 and 7 has relied
upon the evidence of PW-3 and PW-6 and the retracted
confessional statement of accused No.3. It is submitted that
admittedly accused Nos.4 and 7 were not known to PW-3 and
PW-6 and thus test identifcation parade was conducted. The
learned counsel for the accused submit that the trial Court
while relying upon the test identifcation parade has ignored
that it was not conducted in accordance with rules provided
under the criminal manual. It is further submitted that the trial
Court erred in relying upon the alleged confession of accused
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No.3 which is exculpatory in nature. It is further submitted that
even otherwise the incriminating material in the alleged
confession was not put to the accused at the time of recording
their statement under Section 313 of Cr.P.C. It is submitted that
the trial Court thus erred in convicting the accused Nos.1,4 and
7 for the ofence of abduction.
19. On the other hand learned APP supported the fndings
recorded by the trial Court on the point of alleged abduction. It
is submitted that PW-3 and PW-6 has identifed the accused
Nos.4 to 7 in test identifcation parade. It is submitted that the
confession of accused No.3 corroborates the evidence of PW-3
and PW-6.
20. We have perused the confession of accused No.3. The
same reads thus:
EXHIBIT - 188
STATEMENT OF ACCUSED UNDER SECTION 164 OF THE
CODE OF CRIMINAL PROCEDURE.
I, the Accused, by name Gilbert William Ohol, age
- 29 years, residing at - Pune, would like to state that
I work as a Driver on a Jeep.
I work as a driver on a Motor Jeep viz. TATA SUMO
SPACIO, which Jeep number is MH-04-CE-2771. I ply
this jeep on Mumbai-Pune route for ferrying the
passengers. On the date 06.03.2007, at or about
01:30 to 02:00 hrs. in the afternoon, I received a call
on my mobile phone from Raju Nair whose mobile
phone number was 9881672120 and he asked me to
bring the vehicle to Mahad. At that time, he further
told me that, his vehicle had gone out of order at
Mahad and that therefore, I should go there. At that
time, I told him that I could not aford to come by
leaving Mumbai-Pune route. At that time, he told me
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that he would pay me Rs.4,000/- (Rupees Four
Thousand) as hire charges. Thereupon, when I told
him that I did not know the road for Mahad, he told
me that I should take a right turn at Khopoli and then I
should proceed ahead straight away by Mumbai-Goa
Highway and then I would reach Mahad Village. At
that time, at or around 03:00 to 03:30 p.m., I left from
Dadar, Mumbai and reached at S.T. Stand, Mahad, at
or around 07:00 p.m. in the evening. After I reached
there, Raju Nair and other three persons met me near
S.T. Stand. I told Raju Nair for flling up diesel. Then,
they all four persons accompanied me in the vehicle
and we got the Jeep flled with diesel of Rs.1,500/-.
After flling diesel in the vehicle, we returned near S.T.
Stand and had meal in a hotel. Thereafter, as they
told me that they wanted to go to the fair at Vinhere,
we went there. After we reached at Vinhere, Raju Nair
gave me Rs.500/-. He told me that Ramdas Mahadik
who had accompanied them, hailed from the said
village and further told me to visit the fair and spend
the said money. At that time, the person by name
Ramdas Mahadik slept in the vehicle and the other
three persons left therefrom. The Jeep was parked on
the ground of a school. At about 01:30 to 02:00 a.m.,
when I returned to the vehicle, Mahadik was slept in
the vehicle and I also slept in the vehicle. At or about
02:00 to 02:30 a.m., the three persons who had gone
away, returned to the vehicle and said, "we will go to
Mahad, we will take rest in a lodge at Mahad and then,
in the morning, we will leave for Mumbai."
Thereafter, we came to Mahad and stayed in the
Lodge viz. "Sai Tej' at Mahad. In the next day
morning, at about 11:00 to 11:30 a.m., we got up and
had our bath etc.. One more person came at the said
place and took out and showed some diagram. After
having lunch etc., we left the lodge at 02:00 p.m..
When we left the said place after our lunch, I was told
that we had to go to Karanjadi Railway Station. The
person who showed the diagram, got down at a place
from where the Karanjadi Phata was at a distance of
50 ft. away. He told us that we should go in the right
hand direction. At that time, at a distance of 150 to
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200 mtrs. away from Karanjadi Phata, in all 4 persons
were walking on Railway Station Road. They were
comprised of 3 males and 1 female. Ramdas Mahadik
pointed Raju Nair that one of the said persons was
Shantaram Vinherkar. At that time, Raju Nair and 2
other persons who had maintained (hair) cut like
Police and who had told me that they were Police
personnel, got down and they made Shantaram
Vinherker to sit in the jeep and told him that they had
come from Mumbai and that they were the Police
Personnel. Thereafter, Raju Nair brought us to Mahad
to make entry in the Mahad Police station. Thereafter,
another person told not to make entry in the Police
station and further told that we would go directly and
asked to drive jeep towards Poladpur. We flled the
Jeep with Diesel of Rs.1000/- at the Petrol pump at
Poladpur. At that time, I was told that they wanted to
go to Mahabaleshwar from the said place. When I
told that I did not know the road, the person of strong
built and looking like the police personnel, asked me
to drive the vehicle towards right side. After we drove
the vehicle upto 10 to 12 k.m., suddenly we came
across a mountain pass and all those persons started
beating up Shantaram Vinherkar in the jeep itself.
They asked him : "From whom you have taken monies
to give jobs? We have received a complaint in respect
thereof and therefore, we are taking you alongwith
us." After going ahead for some distance, they asked
to stop the jeep on big turn, brought Shantaram
Vinherkar out from the jeep. At that time, he was
lying unconscious. At that time, Raju Nair and the
person looking like the Police took big stone, hit the
same on his head, lifted him and threw him down in
the valley. Thereafter, I was asked to drive the jeep
towards Mahabaleshwar. I drove the jeep towards
Mahabaleshwar. After reaching at Mahabaleshwar,
two persons of them were asking me to again drive
the jeep in straight direction and two persons of them
were asking me to take a left turn. At that time, they
assaulted me and threatened me : "If you disclose this
incident to anybody, we will not let you to drive the
vehicle on Mumbai Pune route and will not leave you
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as well." Due to the said threat and fear, I met with an
accident on Mahabaleshwar-Satara road. Thereupon, I
contacted my brother from my mobile phone.
Thereupon, my brother came at the said place with
'Indica' car. We went to Pune alongwith my brother to
bring crane to tow the jeep. Two persons who were
alongwith me in the jeep, came at Katraj and another
person came alongwith crane at the place of incident.
They lifted and towed the said vehicle and we came to
Pune. The person who had accompanied me, left from
Pune. I did not disclose about this incident to my
family and at anywhere else. Being scared, I fed to
Goa. The Police went at my house in Pune and they
brought my brother and the said 'Sumo' vehicle at
Mahad. At that time, I had telephoned my brother on
mobile phone and had told him that I was at Panjim.
The Police came at Panjim, they caught me at the S.T.
Stand at Panjim and brought me to Mahad.
Note : I can read Marathi language a little bit and can
write in Marathi language a little bit. I can speak
Marathi and can understand the conversation in
Marathi. This statement is read out to me and I
understood the same.
Note : I can read & write English."
21. Perusal of confessional statement of accused No.3 show
that it is exculpatory. This Court in Mohd. Sameer Mohd.
Juber Shaikh vs. The State of Maharashtra 1, has held
that :
"29. It is thus clear that Section 30 of the Evidence Act
thus allows use of the confession of one accused against
co- accused on fulflling the following conditions :-
i) There must be a joint trial for the same ofence.
ii) The statement of the accused which is sought to
be used against co-accused must be a confession.
Iii) The confession of guilt must inculpate himself as
well as other i.e. co-accused. It must implicate the maker
1 Appeal No.255 of 2009 a/w. 1241 of 2008 decided on 10.1.2017
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to the same extent as co-accused.
iv) The confession of guilt must be duly proved.
30. Thus careful scrutiny of the provisions of Section 30
of the Evidence Act makes it clear that when the
statement of the accused does not amount to confession,
i.e., when it is wholly or partly exculpatory, it cannot be
used against co-accused. Where an accused pleads
innocence and throws the blame on the co-accused, such
statement cannot be termed as confession of that accused
and as such cannot be used against co-accused. For
making use of it against co-accused the statement of
accused must amount to a distinct confession of his own
guilt. Self exculpatory statement of the accused as such
cannot be used to infer guilt of co-accused".
22. Apart from above, the incriminating material in
confession of accused No.3 was not put to the accused at the
time of recording of their statement under Section 313 of the
Cr.P.C. The trial Court has acquitted all the accused of the
charge punishable under Section 120-B of the IPC for lack of
evidence to that efect. Considering the overall circumstances,
the trial trial Court was not justifed in convicting the accused
Nos.1,4 and 7 for the ofence of abduction only on the basis of
evidence of PW-3 and PW-6 who identifed them in test
identifcation parade and before the Court.
23. According to the prosecution, after the alleged abduction,
the deceased was killed and his body was thrown in the valley.
It is alleged that the dead body was recovered at the instance
of accused No.1. To prove this circumstance, the prosecution
has examined panch witness PW-4 Ravindra Pawar.
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24. According to PW-4 on 14 March 2007 when he was at
Mahad Bus Stand, two policemen came to him and requested
him to act as a panch witness for recording memorandum
statement. He accompanied them to Mahad Police Station.
Accused No.1 was there in the police station. Another panch
witness was also there. According to PW-4, accused No.1 had
shown the place where the dead body of deceased was thrown
and the dead body was found in a decomposed condition.
25. In the cross-examination, PW-4 has admitted that he is
resident of Mumbai. He has further admitted that on 14 March
2007, he had gone to Mahad to meet Estate Agent Shri. Dhule.
On that date, he had important work to show agricultural land
to the said Estate Agent. PW-4 is a witness on the other
panchanamas also.
26. The evidence of PW-4 does not inspire confdence.
According to PW-4 himself, on 14 March 2007 he had gone
from Mumbai to Mahad to attend his important work. It is
unlikely that instead of attending the said work he would agree
to act as panch witness on multiple panchanamas. Apart from
it, the Investigating Ofcer has admitted in his cross-
examination that the dead body was visible from the road.
27. Considering the overall facts and circumstances of the
case, it is difcult to hold that the prosecution has proved it's
case against the accused beyond reasonable doubt. Hence, the
following order is passed.
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ORDER
a. Criminal Appeal No.22 of 2014, Criminal Appeal
No.499 of 2014 and Criminal Appeal No. 122 of 2020
are allowed;
b. The impugned judgment and order dated 1 January
2014 passed by the Additional Sessions Judge,
Mangaon, District Raigad in Sessions Case No. 43 of
2008 convicting the appellant/original accused No.1 -
Ramdas Anaji Mahadik @ Vinherkar and the appellant/
original accused No.4 - Chandrakant @ Chandu
Mangal Patil for the ofences punishable under
Sections 364, 365, 302 read with 34 and 201 of the
I.P.C. and the appellant/original accused No.8 - Rajan
@ Raja @ Bala Shankar Nayar for the ofences
punishable under Sections 302 read with 34 and 201
of the I.P.C. is set aside and they are acquitted of the
said charges;
c. The appellant/original accused No.1 - Ramdas and
appellant/original accused No.8 - Rajan are in jail, they
be released forthwith unless their custody is required
in connection with any other crime;
d. The bail bonds of appellant/original accused No.4 -
Chandrakant shall stand cancelled;
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e. The appellant/original accused No.1 - Ramdas,
appellant/original accused No.4 - Chandrakant and
appellant/original accused No.8 - Rajan shall execute
P.R. Bond in the sum of Rs.15,000/- (Rupees Fifteen
Thousand) each and one surety of like amount in
terms of section 437-A of the Code of Criminal
Procedure, before the concerned trial Court at Raigad;
f. The fne, if any, paid by the accused Nos.1, 4 and 8 be
refunded to them;
g. Criminal Appeal No. 975 of 2019 stands dismissed.
h. Pending Interim Applications, if any, are disposed of.
(N.R. BORKAR, J.) (SMT. ANUJA PRABHUDESSAI, J.)
