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SUPREME COURT OF INDIA
N.V. Ramana, Mohan M. Shantanagoudar, Ajay Rastogi, JJ.
Umesh Tukaram Padwal & Anr. – Appellants
Versus
The State of Maharashtra – Respondent
CRIMINAL APPEAL NO. 1029 OF 2014
Decided On : 03-09-2019
(a) Indian Penal Code, 1860 - Section 420 - Intention of accused to cheat the deceased during initial discussion or after receiving money not proved - Held, offence u/s 420 not made out. (Para 6)
(b) Criminal trial - Circumstantial evidence - Last seen theory - Appellant 1 informing the informant that he parted company with deceased when deceased disappeared from the railway station - Appellant 1 and deceased alleged to be together at a hotel - Hotel owner denying that appellant 1 filled the register and signed before him - Signature on hotel register not tallied with admitted signature of appellant 1 - Circumstance not proved - Conviction on such circumstance not safe. (Para 9)
(c) Criminal trial - Circumstantial evidence - Recovery of dead body at the instance of appellant 1 - Discloser statement alleged to be made by appellant 1 at police statement in presence of PW4 - PW 4 however denying any such statement in his presence - No explanation of position and state of dead body - Timings in the whole case not consistent - Prosecution held to be improvement at every stage - Circumstance cannot be relied to convict appellant 1. (Para 10, 11)
(d) Criminal trial - Circumstantial evidence - Motive - Murder of deceased alleged to avoid repayment of amount cheated by appellant 1 - Court holding that offence u/s 420 not made out - Motive negated - Even otherwise, other circumstances having not been established, accused cannot be convicted on sole ground of motive. (Para 13)
(e) Criminal trial - Circumstantial evidence - Possible cause of death not established - Doctor conducting post mortem examination not examined - Doctor not giving any possible cause of death. (Para 14)
Facts of the case:
Appellants were convicted and sentenced u/s 420, 364 and 302 r/w section 34 IPC for cheating the deceased and the informant out of 45000/- and abducting and killing the deceased.
High Court affirmed the conviction and the sentence.
Finding of the Court:
Prosecution has not proved its case.
Result: Appeal allowed.
JUDGMENT
MOHAN M. SHANTANAGOUDAR, J.
This appeal is directed against the judgment dated 09.10.2013 of the High Court of Judicature at Bombay in Criminal Appeal No. 130 of 2006, confirming the judgment passed by the Additional Sessions Judge, Kalyan in Sessions Case No. 282 of 2002. The impugned judgment confirmed the conviction of Accused No. 1 for the offence punishable under Section 420 of the Indian Penal Code (for short “IPC”) for cheating the deceased and the informant out of a sum of Rs. 45,000/-, and of Accused Nos. 1 and 2 for the offences punishable under Sections 364 and 302 read with Section 34, IPC, for abducting the deceased in order to murder him, and subsequently committing such murder, in furtherance of their common intention. Accused Nos. 1 and 2 are Appellant Nos. 1 and 2 herein.
2. The case of the prosecution in brief is as follows:
About a month prior to the incident, PW-1 Jayram Dhum, the informant and the maternal uncle of the deceased Dnyaneshwar, came to know that Umesh Padwal (Accused No. 1) used to arrange jobs at the Jindal plant at Vasind and charge money in return. As the deceased was unemployed, on 1.7.2002, PW-1 approached Accused No. 1 to procure employment for the deceased at the Vasind plant. Accused No. 1 demanded a sum of Rs. 60,000/- to arrange a job as desired. On 7.7.2002, PW-1 met Accused No. 1 at a juice shop in Kalyan, and paid him a sum of Rs. 10,000/-.
On 10.07.2002, the deceased Dnyaneshwar came to Kalyan from his native place, with a sum of Rs. 45,000/-, out of which PW-1 deducted Rs. 10,000/-, which he had paid on behalf of the deceased. The next day, on 11.07.2002, at around 11.30 a.m., they again met Accused No. 1 at the same juice shop in Kalyan, and handed over the remaining sum of Rs. 35,000/- to him. At this rendezvous, Accused No. 1 was accompanied by Pravin Godse (Accused No. 2), who Accused No. 1 introduced as his neighbour and friend. From there, Accused No. 1 left with Accused No. 2 and the deceased for the Jindal plant at Vasind, telling PW-1 that he need not come along. At around 8 p.m. in the evening, PW-1 went to Accused No. 1’s house to inquire about the whereabouts of the deceased, who had not yet returned to Kalyan, and learnt that Accused No. 1 had not returned either. Since the deceased was untraceable, the first information was eventually lodged with the Police Station for the aforementioned offences on 13.07.2002.
The body of the deceased was recovered on 14.7.2002 from the valley at Goraksha Gad at the instance of Accused No. 1. The clothes of the deceased were also recovered nearby. Accused No. 1 also led to the recovery of some personal documents of the deceased that had been handed over to Accused No. 1 previously by PW-1, as well as a sum of Rs. 10,000/-, a nylon rope and a piece of electric wire. Accused No. 2 led to the recovery of a sum of Rs. 800/-.
After the investigation, the police filed a charge-sheet against four persons including the appellants herein. It was alleged that the four accused had strangulated the deceased and thrown his body into the valley at Goraksha Gad.
3. The Trial Court convicted Accused Nos. 1 and 2 and acquitted the other two accused. The judgment of the Trial Court was confirmed by the First Appellate Court. Since the acquittal of the other accused was not challenged, we make no reference to the allegations made and evidence adduced against them in the rest of the judgment.
4. Heard the learned advocates on either side and perused the records.
5. There is no eyewitness to the incident of abduction and murder in question, and the prosecution relies on circumstantial evidence. The three main circumstances incriminating Accused Nos. 1 and 2 for the offences of abduction and murder of the deceased which have been relied upon by the prosecution are as follows:
(i) The motive for commission of the offences;
(ii) the circumstance that the deceased was last seen with Accused Nos. 1 and 2 by PW-1; and,
(iii) the recovery of the dea
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