Bombay High Court
Ajay Peter Topannu vs The State Of Maharashtra on 9 January, 2025
Author: S. M. Modak
Bench: Sarang V. Kotwal, S.M. Modak
2025:BHC-AS:2450-DB
202-APEAL-801-2014+APEAL-150-2023+IA-5135-2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.801 OF 2014
Ajay Peter Topannu
Occupation : Labour, Age : 26 Years,
Residing at : 1-D, Area Aamby Valley City,
SATISH Ambavane, Taluka : Mulshi, District : Pune
RAMCHANDRA
SANGAR (Originally from Marchamishan, Thana Rania, ...Appellant
Digitally signed by
Post : Marcha, District : Khunti, Jharkhand) (Ori.Accused)
SATISH RAMCHANDRA
SANGAR
Date: 2025.01.18 Versus
16:08:15 +0530
The State of Maharashtra
Through : Paud Police Station,
Pune District. ...Respondent
==================================
WITH
CRIMINAL APPEAL NO.150 OF 2023
WITH
INTERIM APPLICATION NO.5135 OF 2024
[FOR EARLY HEARING THROUGH JAIL]
Mangara Bhikari Barla
Occupation : Labour, Age : 37 Years,
Residing at : 1-D, Area Ambi Valley City,
Ambavane, Taluka : Mulshi, District : Pune
(Originally from Bakaspur, Thana Karra,
Taluka : Khunti, District : Ranchi, Jharkhand) ...Appellant
Versus
The State of Maharashtra
Through : Paud Police Station, ...Respondent
Pune District. (Ori.Accused No.2)
=================================
Mr.Satyavrat Joshi a/w Ms.Shivani Kondekar, Mr.Samay Pawar,
Mr.Yash Fadtare, Mr.Ishan Paradkar, Mr.Ashish Kachole,
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Ms.Sakshi Mane, Ms.Reena Prajapati - Advocates for Appellant
in Criminal Appeal No.801 of 2014.
Mr.Prosper D'Souza (Appointed Advocate through Legal Aid)
for Appellant in Criminal Appeal No.150 of 2023 and Interim
Application No.5135 of 2024.
Mr.Arfan Sait - APP on behalf of Respondent-State in both the
Criminal Appeals and in Interim Application.
=================================
CORAM : SARANG V. KOTWAL &
S.M. MODAK, JJ.
DATE : 9th JANUARY 2025
ORAL JUDGMENT : (PER : S. M. MODAK, J.)
1. Both these Appeals are disposed of by this common
order, because they are arising out of the same impugned
judgment and order.
2. The Appellant-Ajay Peter Topannu in Criminal
Appeal No.801 of 2014, was the original accused No.1 and the
Appellant in Criminal Appeal No.150 of 2023-Mangara Bhikari
Barla was the original accused No.2. Both of them were tried in
Sessions Case No.633 of 2012 by the Additional Sessions Judge
- Pune. The learned Judge vide his judgment and order dated
23rd April 2014, convicted both of them for commission of
offence punishable under Section 302 read with 34 of the
Indian Penal Code, 1860 ("IPC") and, both the Appellants were
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sentenced to suffer rigorous imprisonment for life and to pay a
fine of Rs.5,000/- (Rupees Five Thousand) each and in default,
to suffer, rigorous imprisonment for one month, each. They
were also convicted for the offence punishable under Section
201 read with 34 of IPC and both of them were sentenced to
suffer rigorous imprisonment for five years and to pay a fine of
Rs.500/- (Rupees Five Hundred) each and, in default, to suffer,
rigorous imprisonment for one month, each. They were
granted set off under section 428 of the Code of Criminal
Procedure, 1973 ("Cr.P.C.").
3. For the sake of convenience, both the Appellants
are referred to as the original accused or by their names.
4. Heard learned counsel Shri.Satyavrat Joshi for the
Appellant in Criminal Appeal No.801 of 2014, learned
appointed counsel Mr.Prosper D'Souza for the Appellant in
Criminal Appeal No.150 of 2023 and learned APP Mr.Arfan Sait
for Respondent-State in both the Appeals.
5. The prosecution case, in brief, is as follows:-
A. The accused were working as labourers in Aamby
Valley city situated within the limits of village Ambavane,
Taluka : Mulshi, District : Pune. One Rajkumar Sahu was also
working as a labourer in the same project. It is the prosecution
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case, that Rajkumar used to tease the wives of the accused and
therefore, the accused were annoyed with him. On 20 th May
2012, at about 8.00 p.m., the accused took Rajkumar near Tata
dam which was locally known as "Mulshi dam" and committed
his murder by using an axe.
B. On the next date, one of the witnesses overheard
them talking about commission of the offence and their plan to
leave from that area. In the meantime, search was taken for
Rajkumar who was found missing since evening of 20 th May
2012. The witness, who overheard the accused, informed the
others. The accused were confronted. They led the co-workers
and the supervisors to the spot where the body was found in
the water. The police were informed. The FIR was lodged and
investigation was carried out. At the instance of accused No.2,
the murder weapon i.e. the axe and his clothes were recovered.
The clothes of accused No.1 were also recovered from another
spot at his instance.
C. At the conclusion of the investigation, the charge-
sheet was filed and the case was committed to the Court of
Session. During trial, the prosecution examined 11 witnesses
including the security officers, site supervisor, panchas, the
persons to whom allegedly the accused had made an extra-
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judicial confession, the medical officer who conducted post
mortem and the investigating officers.
D. The learned Judge believed the prosecution
witnesses in respect of the incriminating circumstances against
the accused. The defence of the accused was of total denial.
Three circumstances which weighed with the learned Judge
were, the last seen theory, the recovery and, the extra- judicial
confession.
E. The FIR was lodged by PW No.2-Kailas Dhole. He
has deposed, that he was serving as a security supervisor at
Aamby Valley since about 10 years prior to the incident. One
supervisor PW No.4-Rajesh Dube made a phone call to the
security officer PW No.1-Ramdatta Yadav. At that time, PW
Nos.1 and 2 were told that Rajkumar Sahu was murdered.
Therefore, both of them i.e. PW No.1 and PW No.2 went to the
labour camp. They met PW No.5-Dinesh Benjamin who
informed them about Rajkumar's murder.
F. PW No.2-Kailas has further deposed, that all of
them, then, went to the room of the accused Nos.1 and 2 as
Dinesh Benjamin has raised suspicion against them. PW Nos.1
and 2 made inquiries with the accused about Rajkumar. The
accused No.1-Ajay tried to run away but he was apprehended.
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On further enquiry, the accused No.1 told them, that he himself
and the accused No.2 had committed Rajkumar's murder in the
night. He further said that, Rajkumar used to tease their wives
and therefore, they committed his murder. Then, PW No.2 and
others asked them about the dead body. The accused informed
them that the dead body was thrown in the water canal of Tata
dam. The accused took them to that place. It was about
thousand feet on southern site of One-D Labour Camp. The
dead body was found in the water. There were signs that the
dead body was dragged for a distance of 500-600 feet.
G. PW No.2 and others, then made a phone call to the
senior security manager, PW No.7-Colonel Sumant
Bhattacharya. He came there within 15 minutes. He again
made enquiry with the accused. Again, they gave extra-judicial
confession about the incident. According to them, they had
committed his murder at about 8.00 p.m., on 20 th May 2012.
PW No.7, then asked PW No.2 to lodge FIR. Accordingly, PW
No.2-Kailas Dhole lodged the FIR with Paud Police Station. It is
brought on record at Exhibit-20. PW No.2 showed the spot of
offence to the police. The dead body was taken out from the
canal. There was neck injury on the body.
H. In the cross-examination, he deposed, that at the
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time of incident, about 25 to 30 labourers with their family
members were residing in that Labour Camp. The total area of
Aamby Valley is of 14000 acres, there were 15 security
supervisors and 350 to 400 security guards deployed.
I. PW No.1-Ramdatta Yadav was the security officer
as mentioned by PW No.2-Kailas. He has described the phone
call made by Ramdatta Yadav referred to by the PW No.2.
According to PW No.1, that phone call was made at about 7.10
to 7.15 a.m., regarding the murder of Rajkumar. PW No.5-
Dinesh informed him, that both the accused had committed the
murder. PW No.1 and others tried to catch the accused but they
tried to run away but they were apprehended.
J. He has further deposed, that both the accused
made an extra-judicial confession, that they had committed the
murder of Rajkumar at about 8.00 p.m., on 20 th May 2012. PW
No.1 told him to show the place of offence. Then, the body was
shown. PW No.7-Colonel Sumant Bhattacharya was informed.
He also made enquiries. He identified both the accused before
the Court. However, he could not tell, out of them, who was
the accused No.1 and who was the accused No.2.
In the cross-examination, he deposed, that there
were 4000 labourers working in Aamby Valley. He denied the
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suggestion that they apprehended the accused by entering their
room. He also admitted, that PW No.5-Dinesh had only
expressed a suspicion against the accused. Importantly, in the
cross-examination, he has stated, that PW No.2-Kailas and
Madhavendra Rai had chased the accused and apprehended
them. After that, the hands of the accused were tied by a rope.
He further deposed, that they had consumed liquor and they
had committed his murder and they showed willingness to
point out the place of incident.
K. PW No.4-Rajesh Dube was referred to by both PW
No.1 and PW No.2. He has deposed, that on 21 st May 2012,
one Ghanshyam Chauhan called him telephonically and told
him about Rajkumar's murder. PW No.4, in turn, made a phone
call to PW No.1 to tell him about the incident. He has deposed
that, the accused were apprehended by PW Nos.1 and 2 and
then, they were taken to the control room. The accused were in
tears and, they made an extra-judicial confession that as
Rajkumar had teased their wives, they had killed him.
He admitted in the cross-examination, that when
he had seen that both the accused were in tears in the control
room, their hands were tied at their backside. He himself had
served them refreshment with his own hands.
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L. PW No.3-Dasa Barla was the witness on the theory
of "last seen together". He has deposed, that in the night of 20 th
May 2012, he was in his room situated at One-D Labour Camp.
At about 7.00 p.m., he noticed, that both the accused along
with Rajkumar Sahu were proceeding towards Tata dam. He
deposed, that at that time, the accused No.1 was having an
axe.
On 21st May 2012, he was called by PW No.2-
Kailas and the police at Tata dam at about 2.30 p.m. They saw
the dead body in the water. There was injury on the head and
neck and other parts of the body. The inquest panchnama was
prepared. This witness had signed that panchnama as a
pancha. It is produced on record at Exhibit-22. He admitted, in
the cross-examination, that at the time of inquest panchnama,
he did not inform the police and others, that he had seen both
the accused and Rajkumar on 20 th May 2012 at 7.00 p.m., and
that the accused No.1 was armed with an axe. He admitted,
that all the labourers used to be under fear of the supervisors.
M. PW No.5-Dinesh Benjamin was another witness on
the theory of "last seen together". He has deposed, that on 20 th
May 2012, at about 7.00 p.m., he was standing in front of his
room. He had seen both the accused and Rajkumar going
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towards Tata dam. On the next day morning at about 6.00
a.m., he noticed, both the accused were chitchatting with each
other. He listened to their talk and he heard, that the accused
were saying that they had killed Rajkumar and that they
wanted to leave Pune. This statement which the accused made
was told by him to one Ghanshyam Chauhan. After that, PW
No.1 and PW No.2 had come to One-D Labour Camp. PW No.5,
then informed both these witnesses about what he had heard
from the accused. After that, PW No.1 and PW No.2 made
enquiries with the accused and then, the accused led them to
Tata dam where the witnesses noticed the dead body.
In the cross-examination, he admitted, that his
police statement did not mention the fact, that he had
informed PW No.1 and PW No.2 about the statement which he
had overheard from the accused mentioning their guilt.
N. PW No.6-Dattatraya Mate was a panch for spot
panchnama which is produced at Exhibit-29. The spot was
shown by PW No.1. PW No.7-Colonel Sumant Bhattacharya
has supported the narration of PW No.1 and PW No.2 and he
added, that he had enquired with both of them about the
incident. Initially, they did not reply but later on, they
confessed, that they had committed Rajkumar's murder
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because, he used to tease their wives. He, then informed Paud
Police Station and deputed PW No.2-Kailas to give the FIR. The
police came at the spot at 11.30 a.m. The dead body was
removed at 1.00 p.m.
In the cross-examination, he stated that both the
accused simultaneously made a statement accepting their guilt.
O. PW No.8-Shivraj Ramrao Mule was the medical
officer who had conducted the post mortem examination.
There were 7 CLWs on the dead body and the cause of death
was mentioned as "hypovolumic shock due to massive
hemorrhage due to cutting of neck vessels and multiple
fracture of skull bones".
He further deposed, that the death might have
taken place within 24 hours from the time when the autopsy
was conducted. The record shows that the post mortem
examination was conducted between 6.00 p.m., to 7.00 p.m.
That means, the death according to him, could have occurred
at any time between 7.00 p.m., on 20th May 2012 to 7.00 p.m.,
on 21st May 2012.
P. PW No.9-Ghanshyam Chauhan was told by PW
No.5 that PW No.5 had overheard the accused talking about
committing murder of Rajkumar. He then made a phone call to
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PW No.4-Rajesh Dube and informed about the said act.
Q. PW No.10-Ganesh Kadam was a panch and in his
presence, the axe and clothes were recovered at the instance of
the accused No.2 on 25th May 2012 and clothes were recovered
at the instance of accused No.1 on 25 th May 2012. The axe and
the clothes of the accused No.2 were recovered at his instance
from the backside of the Labour Camp. He admitted, that the
said spot from where the recovery is effected was an open
place and was accessible to all. The clothes of the accused No.1
were recovered at his instance from a heap of stones.
R. PW No.11-Narayan Nyahalde was the investigating
officer. He had carried out the investigation after the FIR was
lodged. He has deposed, about the investigation, recording of
statements, effecting recovery and sending the articles to the
chemical analyzer.
S. The chemical analyzer's reports were produced at
Exhibit-49 onwards. There were stains of human blood on the
axe and the clothes recovered from the accused. Another
chemical analyzer's report show that the earth collected from
the spot showed the same texture and characteristics on the
axe and clothes of the accused.
This, in short, is the evidence led by the
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prosecution. As mentioned earlier, the defence of the accused
was of total denial.
6. During arguments, learned Advocate Shri.Joshi
made the following submissions:-
a. The evidence of 'last seen' from the mouth of PW
No.3 - Dasa and PW No.5 - Dinesh suffers from
inherent lacunae. There are also improvements in
their testimonies.
b. The 'extra-judicial confession' given in the labour
camp and at the spot, as deposed by the relevant
witnesses, cannot be said to be voluntary,
considering the circumstance under which, it was
alleged to be given.
c. The 'extra-judicial confession' alleged to be given in
the control room. It certainly was forced because
the witness PW No.4-Rajesh has deposed, that their
hands were tied.
d. The recovery of clothes and weapon is from the
place accessible to the public and it cannot be said
to be within their special knowledge.
e. The CA report does not help the prosecution case
because the result of analysis is inconclusive.
7. To buttress his submission, he relied upon the
following two judgments:-
(i) Ramreddy Rajesh Khanna Reddy and Another V/s.
State of A.P.1 and more specifically, the observations in para
1 (2006) 10 Supreme Court Cases 172
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Nos.26 and 27. It deals with, how the evidence of ' last seen
theory' has to be appreciated. It deals with the situation where
there is a time gap in between the point of time ; when the
accused and deceased were last seen alive and the deceased
was found dead.
(ii) Sahadevan and Another V/s. State of Tamil Nadu 1
and more specifically, the principles reproduced in Para No.16
about the manner of appreciation of extra-judicial confession.
8. Learned Advocate Mr.D'Souza for the Accused No.2
-Mangara also argued on the same lines and according to him,
the trial Court has not appreciated the evidence on the basis of
well established principles of 'appreciation of evidence'. He
prayed for setting aside the conviction. He submitted, that
there is no evidence to establish the motive that the deceased
used to tease the wives of the accused.
9. Learned APP, with full force, tried to support the
judgment and according to him, the persons to whom, the
extra-judicial confession was given, cannot be said to be ' a
person in authority' and as such, the bar under Section 24 of
the Indian Evidence Act, 1872 will not come into picture. To
support his submission, he relied upon the observations in case
1 (2012) 6 Supreme Court Cases 403
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of Santokhi Beldar V/s. King-Emperor1. In that case, the
Tahsildar, to whom a confession was given, was not considered
as 'a person in authority'. The Tahsildar can be having some
influence in the village, but he was not having interest in the
prosecution of the accused and hence, the bar under Section 24
of the Evidence Act was held not applicable. Learned APP
emphasised on the above said circumstance, and he also
invited our attention to an attempt made by both these
Appellants to flee away, when they were inquired by PW No.1 -
Ramdatta and PW No.2-Kailas and others at the Labour Camp.
10. The defence of the Appellants was of denial. In
these Appeals, we are required to ascertain, whether the
prosecution evidence was sufficient to arrive at the conclusion
about guilt of both the Appellants and whether, the trial Court
was justified in convicting them.
Reasons
11. There are following main circumstances against the
Appellants:-
Last seen together theory
In that connection, the prosecution has examined
PW No.3-Dasa Barla and PW No.5-Dinesh Benjamin. Out of
1 Volume : XII, Patna Series : 241.
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whom, Dasa Barla was panch for inquest panchnama which
was conducted on 20th May 2012. At that time, he had not told
the police officers or anybody else about the theory that he had
seen both the accused together with the deceased at about 7.00
p.m., on 20th May 2012. His statement was recorded on 22 nd
May 2012 and therefore, for the first time, he mentioned about
the "last seen theory" after two days. Till then, he had not told
anybody about this theory. Therefore, he does not appear to be
a reliable witness. The other witness PW No.5-Dinesh
Benjamin is also not a reliable witness. It was difficult to accept
that he overheard the accused talking with each other about
commission of murder. It is difficult to believe, that they might
have discussed this issue when he was around within an
audible distance. Apart from that, the "last seen theory" is not
significant because of the time gap between the time when the
accused and deceased were seen together and when the dead
body was found or when the death had occurred was quite big.
The medical officer has deposed, that the death could have
occurred within 24 hours before 7.00 p.m., on 21 st May 2012.
Therefore, the death could have taken place any time between
7.00 p.m., on 20th May 2012 to 7.00 p.m., on 21st May 2012,
that is a long gap as rightly submitted by learned counsel for
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the Appellants. In the case of Ramreddy Rajesh Khanna Reddy
and Another V/s. State of A.P.1, the Hon'ble Supreme Court has
observed in paragraph No.27 as follows:-
"27. The last-seen theory, furthermore, comes into
play where the time gap between the point of time
when the accused and the deceased were last seen
alive and the deceased is found dead is so small that
possibility of any person other than the accused
being the author of the crime becomes impossible.
Even in such a case the courts should look for some
corroboration".
Therefore, we do not accept, that the alleged
theory of "last seen together" is an 'incriminating piece of
circumstance' against the accused in this case.
The evidence regarding extra-judicial confession
12. In this context, there is evidence of PW No.1-
Ramdatta Yadav and PW No.7-Colonel Sumant Bhattacharya in
particular. The question is, whether that extra judicial
confession was made voluntarily. As discussed earlier, the
witnesses have deposed, that both the accused were found in
the control room and their hands were tied from behind.
Therefore, they were definitely under control and were
overpowered by the supervisors and other security officers.
1 (2006) 10 Supreme Court Cases 172
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Hence, it is difficult to believe, that their confession was
voluntary. The extra-judicial confession in any case, is a weak
piece of evidence and it needs corroboration. It can be acted
upon only if the Court is satisfied, that it was voluntary and
truthful. In that connection, the principles laid down by the
Hon'ble Supreme Court in Sahadevan and Another V/s. State
of Tamil Nadu1 case are important which are as follows:-
"The principles
16. Upon a proper analysis of the abovereferred 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:
(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
1 (2012) 6 Supreme Court Cases 403
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other prosecution evidence.
(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."
(Emphasis laid)
Applying these principles, it is quite clear, that in
this case, the voluntariness of the alleged extra-judicial
confession appears to be doubtful and therefore, it is not
possible to rely on this extra-judicial confession to reach a
finding of guilt. The allegations, that the accused had shown
the place where the dead body was found, is also not an
incriminating circumstance in this case because it was part of
the same process of making confession which had led the
witnesses to the spot where the accused had allegedly
committed murder and from that spot, the dead body was
seen.
13. The evidence regarding PW No.5-Dinesh Benjamin
hearing the accused discussing amongst themselves about
commission of murder and about leaving Pune as mentioned
earlier, does not inspire confidence, as there was no reason for
the accused to discuss this topic within an audible distance
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where PW No.5 was present.
14. Other remaining circumstances is about recovery.
However, from the evidence, it can be seen that the panch has
accepted that the place from where the axe and clothes of the
accused No.2 were recovered at his instance, was open and was
accessible to all. Even, the clothes of accused No.1 were
recovered at his instance from a heap of stones. It is not
mentioned anywhere that the clothes were concealed.
Therefore, the finding of human blood on these articles, does
not help the prosecution case.
15. Though, the prosecution is claiming, that the
murder was committed because the deceased was teasing the
wives of the accused, no such evidence is brought on record.
16. Thus, from this discussion, it is quite clear, that the
prosecution has failed to prove every individual circumstance
beyond reasonable doubt against the accused and the
prosecution has failed to form a complete chain of
circumstances proving guilt of the accused.
17. With the result, the benefit of doubt must be given
to the accused and hence, they will have to be acquitted.
Hence, following order:-
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ORDER
(i) Both the Appeals are allowed.
(ii) The conviction and sentence recorded by the
Additional Sessions Judge - Pune dated 23rd April
2014 in Sessions Case No.633 of 2012 are set aside.
(iii) The Appellants be released forthwith, if not
required in any other case.
(iv) Fine, if deposited, be returned to the Appellants.
(v) Both the Appellants are directed to furnish a bond
for amount of Rs.30,000/- (Rupees Thirty
Thousand) each with one or more sureties in the
like amount under Section 437-A of Cr.P.C., before
their release from jail.
18. Both the Appeals are disposed of.
19. Interim Application also stands disposed of.
(S.M.MODAK, J.) (SARANG V. KOTWAL, J.)
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