2006 Supreme(SC) 1242

2006(9) Supreme 481
SUPREME COURT OF INDIA
(From Bombay High Court)
S.B. Sinha and Markandey Katju, JJ.
Subhash Harnarayanji Laddha - Appellant
versus
State of Maharashtra - Respondent
Criminal Appeal No. 844 of 2006
With
Criminal Appeal Nos. 845 and 846 of 2006
Decided on 5-12-2006
Counsel for the Parties :
For the Appellant : Vijay Kotwal, Uday Umesh Lalit, Sr. Advocates, Venkateswara Rao Anumolu, Ms. Meenakshi Arora and Gaurav Agrawal, Advocates.
For the Respondent : Sushil Karanjkar and Ravindra Keshavrao Adsure, Advocates.

Headnote:Indian Penal Code, 1860 - Section 302 r/w 120-B - Three appellants A2 to 4 convicted for murder as in conspiracy with accused A1 to commit murder of deceased - Deceased owned land and was purported to have entered into an agreement with appellants to sell the land - A purported General Power of Attorney is said to have been executed by deceased in favour of accused No. 1 - Accused No. 5, convicted u/s 465 IPC, was said to have impersonated deceased - On basis of that deed of attorney, which was forged, accused No. 1 executed sale deed in favour of appellants and received Rs. 9 lakhs - Deceased was found missing and his dead body was recovered after one and half month - PW1 turned approver and gave details as to how deceased was murdered - Trial Court and High Court found that Agreement to sell was for Rs. 15 lakhs and sale deed having been executed for Rs. 9 lakhs showed appellants must have conspired with A1 - Accused A1 had taken approver PW1 to hotel where accused A2 was present and when A2 was asked to pay some money, he refused saying “who had asked to murder the deceased” - Courts below opined that circumstances were sufficient to conclude that appellants had conspired in murder - Appeal - Purported agreement to sell was not proved and no explanation why original agreement was not produced - Appellants might be present on date of execution of sale deed but that would not lead to inference that they were party to conspiracy - Prosecution could not be said to have proved that appellants were either party to conspiracy for forgery of power of attorney or for murder of deceased - Conviction was liable to be set aside.

       Held : The High Court proceeded to hold that keeping in view the fact that the prosecution did not explain non production of original Agreement to Sell dated 16.5.2000 and merely produced a xerox copy thereof, the same was not admissible in evidence. It, however, relied upon the oral testimonies of PW25 and PW38 to form an opinion that in view of the fact that the amount of consideration fixed in the Agreement to Sell dated 16.5.2000 was Rs.15 lakhs, the sale deed having been executed for a consideration of Rs.9 lakhs, the appellants herein must have conspired with the accused No.1 for commission of the said offence. It was also noticed that when the accused No.1 took PW1 to Hotel Dreamland where the accused no.2 was sitting, he was asked by the former to pay some amount to him but he refused to do so saying "who had asked you to murder the deceased". It was opined that the aforementioned circumstances are sufficient to come to the conclusion that the appellant herein conspired amongst themselves to commit the said crime.(Para 16)

       With a view to ascertain the involvement of appellants, we may notice that in the conspiracy to forge power of attorney, it has not been proved that apart from accused nos.1 and 5 anybody else was involved. Article L, the purported agreement to sell having not been proved, the contents thereof were wholly inadmissible in evidence. If it was not admissible in evidence, no part thereof far less the amount of consideration specified therein or the amount of earnest money stated therein could be used by the prosecution against the appellants. If the said document had not been proved, no reliance thereupon could be placed for any purpose whatsoever. The said agreement also said to have been cancelled. PW25, on whose deposition the High Court had relied upon, stated that a sum of Rs.2 lakhs was paid by way of earnest money. PW38, however, states that only a sum of Rs.75,000/- was paid. She further states that the original agreement was with PW25. He did not produce the same. The Public Prosecutor did not offer any explanation whatsoever as to why the original agreement for sale was not produced.(Para 18)

       According to the learned Trial Judge they came in picture only at the time of execution of the sale deed. They may be present on the date of the execution of the sale but that by itself in our considered opinion, does not lead to an inference that they were parties to conspiracy. No evidence was brought on records to show the involvement of the appellants prior to 3.9.2000. Even no prosecution witness had stated that the deceased was done away with as he came to learn about the forgery and that he had been deprived of a huge sum of amount.(Para 21)

       In absence of any connecting links in the chain we are unable to agree with the findings of the learned Trial Judge as also the High Court that conspiracy by the appellants for committing forgery of the power of attorney has been established. If ingredients of conspiracy have not been established for proving the prosecution case as regards commission of forgery, the larger conspiracy also cannot be said to have been proved.(Para 23)

       It is in the aforementioned situation, we are of the opinion that it will be hazardous to convict the appellants herein only on such slander evidence. Suspicion howsoever grave may be is no substitute for proof. Circumstantial evidence which might have been brought on records are not such which can lead us to a firm conclusion that there had been a pre-concert amongst the appellants on the one hand and the accused no.1 on the other. There is even no allegation far less any proof that at any point of time prior to 3.9.2000 the accused no.2 had met accused No.1.(Paras 25)

       We may also notice that even the investigating officer did not consider it appropriate to charge the appellants herein for commission of murder of the deceased or they being party to the conspiracy. As noticed hereinbefore only in 2004 the charges against the appellants were amended.(Paras 26)

       For the reasons stated above we are of the opinion that the appellants herein are entitled to benefit of doubt. The appeals are allowed and the impugned judgment of conviction and sentence is set aside.(Paras 27)