Roshan @ Roshya S/O. Narsing Pawara vs The State Of Maharashtra
2025 Latest Caselaw 2459 Bom

Bombay High Court

Roshan @ Roshya S/O. Narsing Pawara vs The State Of Maharashtra on 10 February, 2025

Author: R.G. Avachat

Bench: R.G. Avachat

2025:BHC-AUG:5210-DB
                                                                              APPEAL-884-23.odt



                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                              CRIMINAL APPEAL NO. 884 OF 2023

          Roshan @ Roshya Narsing Pawara
          Age: 34 years, Occu.: Labour,
          R/o Dhadne, Tq. Sakri,
          Dist. Dhule                                               ..APPELLANT
                VERSUS
          State of Maharashtra
          Through Police Inspector
          Police Station Sakri,
          Dist. Dhule                                               ..RESPONDENT
                                              ....
          Mr. M.A. Tandale, Advocate for appellant (appointed through Legal Aid)
          Ms. U.S. Bhosle, A.P.P. for respondent - State
                                              ....
                                                         CORAM : R.G. AVACHAT AND
                                                                 NEERAJ P. DHOTE, JJ.
                                                         DATE : 10th FEBRUARY, 2025

          ORAL JUDGMENT :

1. The challenge in this appeal is to a judgment of conviction and

order of consequential sentence dated 18th May, 2017 passed by the Court of

Session, Dhule ('trial Court') in Sessions Case No. 38 of 2016. Vide the

impugned judgment and order, the appellant has been convicted for the

offence punishable under Section 302 of the Indian Penal Code ('I.P.C.'), and

therefore, sentenced to suffer imprisonment for life and to pay fine of

Rs.1,000/- with default stipulation.

2. The facts in brief giving rise to the present appeal are as follows :-

Chhagan Pawara (deceased) was in emotional relationship with

PW 8 - Lalita. Both of them eloped on 02 nd January, 2016. While they were

APPEAL-884-23.odt

proceeding towards Sakri, two persons, including the appellant, met them.

Since it was late in the evening, those two took them to their field and then to

the house of the appellant. Wife of the appellant was at house. She

prepared food for all of them. After dinner, Chhagan and Lalita went to sleep

in the house, while the appellant and his wife slept outside the house. At

12:00 midnight, the appellant woke up Lalita and made enquiry about the

deceased. Before that the appellant had taken Chhagan (deceased) to the

field under the pretext of repairing the electric motor. The appellant then took

Lalita outside his house and told her to have killed Chhagan. She, therefore,

asked the appellant to reach her to her home. The appellant asked her to

join him to go to Gujarat. She refused. The appellant dropped her at

Shahada and went away for no return. Lalita alone came her home.

3. The dead body of Chhagan was noticed in an agricultural field.

The Police Patil of the village Dhadne reported the matter to police. Autopsy

and inquest were conducted on the mortal remains. It was found that the

deceased had suffered various injuries. The cause of his death was 'head

injury'.

4. PW 13 - Sapkal, PSI, lodged the First Information Report ('F.I.R.')

(Exh.44) against an unknown person. During investigation identity of the

deceased was disclosed. Statements of the persons acquainted with the

facts and circumstances of the case were recorded. Upon completion of

investigation, the appellant was proceeded against by filing the charge-sheet.

APPEAL-884-23.odt

5. The trial Court framed charge (Exh.8). The appellant pleaded not

guilty. His defence was of false implication. To bring home the charge, the

prosecution examined fourteen witnesses and produced in evidence certain

documents. On appreciation of the same, the trial Court convicted the

appellant.

6. Learned counsel for the appellant would submit that the case was

based on circumstantial evidence. No test identification parade was held.

The appellant allegedly made extra-judicial confession to PW 8 - Lalita.

Same is very weak piece of evidence. PW 8 - Lalita did not disclose the

same at the earliest. Learned counsel would further submit that the extra-

judicial confession is made to a person in confidence. Here, the appellant

and Lalita were unknown to each other. Only with a view to implicate the

appellant, case of extra judicial confession has been propounded. On the

question of recovery of the iron rod, learned counsel would submit that on

first visit, pursuant to the alleged disclosure statement, the iron rod was not

found in the well. It is surprising how come the iron rod was found in the

same well on the following day. The C.A. report (Exh.50) thereof does not

further the prosecution case. He, therefore, urged for allowing the appeal.

7. Learned A.P.P. would, on the other hand, submit that the

appellant made extra-judicial confession to an innocent lady. Pursuant to the

disclosure statement made by him, an iron rod came to be recovered. The

same speaks about the appellant's conduct. Learned A.P.P. reiterated the

APPEAL-884-23.odt

reasons given by the trial Court. She ultimately urged for dismissal of the

appeal.

8. Considered the submissions advanced. Perused the judgment

impugned herein. Let us turn to the evidence on record and appreciate the

same.

9. Chhagan met with homicidal death is not in dispute before us.

The postmortem report (Exh.34) proved by the evidence of PW 10 -

Dr.Mohammad indicates he (Chhagan) died of head injury. There were eight

injuries on the person of the deceased.

10. The question is whether the appellant is the author of the crime.

The motive is that the appellant wanted to have illicit relationship with PW 8 -

Lalita. He, therefore, took the deceased to the field and killed him.

11. PW 6 - Bhimrao was the Police Patil of village Dhadne, Tq. Sakri,

Dist. Dhule. He reported police about finding of a dead body in the field of

PW 5 - Subhash Ahirrao. The evidence of this witness is not of much

importance except to make out a case of dead body to have been found in

the field of PW 5 - Subhash. The evidence of PW 5 - Subhash is on the

lines of PW 6 - Bhimrao. Based on the report, case of unnatural death was

registered and enquired into. A police officer paid visit to the spot whereat

the dead body was found. PW 1 - Subhash Bahiram is a witness to the

crime scene panchanama (Exh.14), inquest panchanama (Exh.15) and

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seizure of clothes on the person of the deceased (Exh.16). PW 2 -

Nandkumar is also a witness to these panchanamas. PW 3 - Laxman was

the Police Station Officer on the given day, who registered the crime

pursuant to the F.I.R. lodged by PW 13 - Sapkal, PSI.

12. PW 7 - Rahul is the interpreter. He interpreted the evidence of

Lalita since she did not understand Marathi. She was conversant with

Pawara language only. Fate of the appeal is based on the sole testimony of

PW 8 - Lalita. She was seventeen years of age. She testified that she had

accompanied deceased - Chhagan on 02nd January, 2016. They first went

to the house of his brother - Sarpa at village Fagne. They stayed there

overnight. Then they came to Dhule and further went to Sakri. When they

were proceeding ahead of Sakri, two unknown persons, including the present

appellant met them. Since it was late in the evening, those two took them to

their field and then to the house of the appellant. Wife of the appellant was

at house. She prepared food for all of them. After dinner, she and Chhagan

slept in the house, while the appellant and his wife slept outside the house.

At 12:00 midnight the appellant woke her up and made enquiry about the

deceased. Before that the appellant had taken Chhagan (deceased) to the

field under the pretext of repairing the electric motor. The appellant then took

her outside his house and told to have killed Chhagan. She, therefore, asked

the appellant to reach her to her home. The appellant asked her to join him

to go to Gujarat. She refused. The appellant dropped her to Shahada and

went away for no return. She alone came her home.

APPEAL-884-23.odt

13. She was subjected to a searching cross-examination. She

admitted to have had love affair with Chhagan. She denied the appellant to

have made her extra-judicial confession. To rest of the questions, she did

not give in.

14. PW 9 - Gulabsingh was a Police Constable. He testified that

Lalita gave statement in Pawara language and the same was interpreted by

him in Marathi language. PW 11 - Sarpa was the brother of the deceased.

On receipt of phone call from police station, he went to the hospital and

identified the body of his brother (deceased). PW 12 - Vijay was the police

officer, who filed the charge-sheet after the investigation was completed by

PW 14 - Wasave, Police Inspector.

15. The charge was sought to be brought home on the basis of extra-

judicial confession made by the appellant. So far as regards recovery of an

iron rod pursuant to the disclosure statement made in the presence of panch

witness (PW 4 - Deepak) and the investigating officer, same came to be

seized from a well. The evidence of these witnesses indicate that pursuant

to the disclosure statement on the previous day, a search was made in the

well. That time the iron rod was not found. On the following day again they

visited the very well and found the iron rod. Learned counsel for the

appellant, therefore, right in submitting that it was surprising as to how come

the iron rod was found in the well when it was not found in spite of a search

APPEAL-884-23.odt

that was made in the same well on the earlier day. He had every reason to

contend that the iron rod might have been thrown in the well and then it is

shown as discovered. Be that as it may. Since the iron rod was in the well

water, the C.A. report thereof does not indicate blood stains thereon of the

blood group of the deceased.

16. The extra-judicial confession is said to be a very weak piece of

evidence. Such a confession is made to a person in confidence. Here is the

case, where the appellant and PW 18 - Lalita were not acquainted with each

other. It would, therefore, be not believable that the appellant would confess

her to have killed her lover. PW 14 - Sapkal, Investigating Officer admitted

that PW 18 - Lalita did not understand Marathi, whereas her police

statement is shown to have been recorded in Marathi language. The one,

whose assistance was taken to translate Lalita's statement from Pawara to

Marathi, has not been examined. On arrest of the appellant, no test

identification parade was held. Lalita saw him before the Court first time after

she was allegedly at the appellant's house on the fateful night.

17. Appreciation of the aforesaid evidence lead us to infer the

prosecution to have failed to bring home the charge beyond reasonable

doubt. The trial Court ought not to have convicted the appellant based on

such quality of evidence. In the result, we are inclined to allow the appeal in

terms of following order :-

APPEAL-884-23.odt

ORDER

(I) Criminal appeal is allowed.

(II) Impugned judgment and order dated 18th May, 2017 passed by the Court of Session, Dhule in Sessions Case No. 38 of 2016 thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code is set aside. He stands acquitted thereof.

(III) Since the appellant is on bail, his bail bonds stand suspended.

           (IV)    Fine amount, if paid, be refunded to him.




      ( NEERAJ P. DHOTE, J. )                      ( R.G. AVACHAT, J. )
SSD