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CASE NO.: Appeal (crl.)  844 of 2006

PETITIONER: Subhash Harnarayanji Laddha                                     \005. Appellant

RESPONDENT: State of Maharashtra                                            \005. Respondent

DATE OF JUDGMENT: 05/12/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T WITH CRIMINAL APPEAL NOs. 845 AND 846 OF 2006

S.B. SINHA, J.

       These three appeals arising out of a common judgment of conviction  and sentence, were taken up for hearing together and are being disposed of  by this common judgment.  Accused Nos.2 to 4 before the learned Sessions  Judge are before us.  Accused No.1 was Ajay @ Rameshwar Raghuram @  Sheshrao Galat Dhabekar, Accused No.5 was Baijrao @ Rawalsingh Saju  Rathod.  Accused No.1 was convicted for commission of an offence under  Sections 302, 364, 467, 468, 471 read with Section 120B of the Indian Penal  Code whereas Accused No.5 was convicted for commission of an offence  under Section 465 of the Indian Penal Code and was sentenced to undergo  Rigorous Imprisonment for two years.   

       The deceased was one Yadav Navkar.  He was resident of Survey  No.45 of Village Umri, Taluka Akola.  He purported to have entered into an  agreement of sell in respect of the said land with the appellants herein on or  about 16.5.2000.  The amount of consideration stipulated therein is said to  be fifteen lakhs.  There exists a dispute as to whether he had accepted a sum  of Rs.75,000/- or a sum of Rs.2 lakhs by way of earnest money.  A purported  General Power of Attorney is said to have been executed by the deceased in  favour of accused no.1 on 30.6.2000.  Accused No.5 is said to have  impersonated as the deceased.  The said power of attorney was found to be a  forged one.          An advertisement for sale was issued in a newspaper known as "Daily  Deshonnati" on 26.7.2000 stating that 1 Hectare 1 Are  in Survey No.45 is  available for sale.  Admittedly, a Deed of Sale was executed by the accused  No.1 in favour of the appellants herein for a sale consideration of Rs.9 lakhs  on 8.8.2000.           As the deceased was found missing since 3.9.2000, a report to that  effect was lodged by his wife Smt.Kaushalyabai (PW38).  As despite the  said report of Kaushalyabai, the deceased could not be traced out, another  report was made by her stating that her husband could not be traced since  3.9.2000.  The High Court recorded the principal allegations contained in the  said report in the following terms: "\005that her husband Yadav Navkar had left the house on 3rd  September, 2000 at about 9 O’clock and he had stated he will  return within half an hour but he had not returned.  The missing  report was registered and search was carried out for Yadav  Navkar but he was not traced.  Meanwhile, Kausalyabai  received a letter in the name of her daughter Geeta purported to  have been addressed by Yadav Navkar informing her that he  had gone to village Pandhari near Shegaon and then he had left  for Shirdi.  Since Yadav Navkar was still not traceable search  was being carried out.  Thereafter, Kausalyabai received

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information that the land owned by her husband bearing Survey  No. 45 of village Umri, Taluka Akola was sold by one Ajay  Galat (accused no. 1) under the garb of general power of  attorney executed by Yadav Navkar in his favour to accused  nos. 2 to 4 and that the said power of attorney was executed by  Yadav Navkar in favour of the accused no. 1 on 30.6.2000.  She  also learnt that the sale-deed in respect of the said land was  executed on 8.8.2000 for consideration of Rs. 9 lacs.  However,  since Yadav Navkar along with his family members had gone  to pilgrimage and had returned to Akola on 1.7.2000 in the  morning it was impossible for Yadav Navkar to execute the  power of attorney on 30th June, 2000.  Moreover, earlier there  was an agreement of sale executed between the deceased and  accused nos. 2 to 4 in respect of the very same property under  which Yadav Navkar had received an amount of Rs. 75,000/-.   The said agreement which was executed on 16th May, 2000 was  later on cancelled and hence there was no possibility of Yadav  Navkar selling the same land to accused nos. 2 to 4.  On 14th  October, 2000 Kausalyabai lodged a report stating all the above  referred facts.  She also stated in the said report that accused no.  1 Ajay Galat had been to her house on 3rd September, 2000 and  her husband had gone with him and then her husband had not  returned.  She suspected the role of accused no. 1 in  commission of murder of her husband\005"

       It was further alleged that she was informed by her husband that the  deal was settled with a person named Suresh Deshmukh (PW25) and he had  given a sum of Rs.75,000/- by way of earnest money and in that view of the  matter she suspected that Accused No.1 might have abducted her husband  and kept him confined to some place or might have caused danger to his life  in order to grab the amount received by him on the basis of the said forged  general power of attorney.   

       On the basis of the said report, a First Information Report was  registered by the police under Section 364 IPC.

       In the meanwhile a dead body was found by the officers of Police  Station Bhaisdehi, Madhya Pradesh.  A First Information Report was also  recorded by the officer of the said Police Station.  Information with regard to  the dead body was received by the officers of Police Station Civil Lines,  Akola on 22.10.2000.  On the next day, i.e., on 23.10.2000 PW38  Kaushalyabai along with others went to Police Station Bhaisdehi and on the  basis of the articles purported to have been found on his dead body as also  the photographs of the dead body, she identified it to be that of her husband  Yadav Nawkar.   

       On the same day Sunil Manmothe (PW1) surrendered before the  Akola Police.  He informed the investigating officer that Yadav Nawkar was  murdered by Accused No.1.  He turned as an approver and was examined by  the prosecution in support of its case as PW1.  In his statement he furnished  details as to how the deceased had been taken from Akola on 3.9.2000 to  various places and was ultimately murdered.  He also disclosed the role  played by him at the instance of accused No.1 after the said incidence of  murder.   

       During investigation, inter alia, it was found that Accused No.5 had  executed an earnest note in respect of the land belonging to the deceased.   Rajesh Ingole and Suresh Deshmukh were called to identify Accused No.5  as they were witnesses to the earnest note dated 16.5.2000 (Article "L").   

       A charge-sheet thereafter was filed by the Police Officer incharge of  Akola Civil Lines Police Station.  In the charge-sheet Accused No.1 was  alleged to have committed crime under Sections 364, 302, 201, 420, 467,  468, 471 read with Section 34 IPC and Accused Nos.2 to 4 have committed

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crime under Sections 420, 467, 468, 471 read with Section 34 IPC.  The  statement of PW1 was recorded under Section 306 of the Code of Criminal  Procedure after grant of pardon to him on 26.12.2001.  Initially charges were  not framed against Accused Nos. 2 to 4 under Sections 302 and 102B of the  Indian Penal Code against the appellants but later the same were altered by  an order dated 20.7.2004.           The prosecution, in support of its case, examined 49 witnesses. We  are, however, concerned with the evidence of those witnesses only, namely,   PW 1 Ajay Galat who became the approver; PW25 Suresh Deshmukh in  whose presence the purported agreement to sell (Article L) dated 16.5.2000  was executed; and PW38 Kaushalyabai who was the complainant.   

       The appellants were convicted by the learned Trial Judge. Their  appeal before the High Court has also been dismissed by reason of the  impugned judgment.

       Accused No.1 being not before us, it is not necessary for us to  scrutinize the entire evidence on record.  It is also not necessary to go into  the niceties of legal questions as regards the mode and manner in which the  PW1 was granted pardon and was made an approver by the police.  Accused  No.5 has been convicted under Section 365 IPC and sentenced to two years  RI. He has accepted the verdict and did not prefer any appeal before the  High Court.   

       The case of the prosecution, to some extent, may be held to have been  proved, namely, Accused No.1 in collaboration with Accused No.5 forged  the general power of attorney and he, relying on, on the basis thereof  executed a deed of sale in favour of Accused Nos.2 to 4. Prior thereto an  advertisement was published in the newspaper and a sum of  Rs.9 lakhs in  cash was received by Accused No.1 from the appellants herein and out of  the said sum he deposited a sum of Rs.8 lakhs in different banks. His  involvement in the murder of the deceased is also not in dispute. The  identity of the dead body is also not in dispute before us. The mode and  manner in which the deceased has been done away with is also accepted.  The role played by the approver Accused No.1 may not also be of much  significance for our purpose.   

       The purported circumstances which had weighed the learned Trial  Judge as also the High Court to arrive at a finding of guilt against the  appellants herein revolve around execution of the sale deed as also the  purported earnest note (Article L).  It is also not in dispute that PW1 had  named the accused No.2 in his statement but had not named the accused  Nos.3 and 4.

       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.   

       The theory propounded by the prosecution was that the accused had  entered into two conspiracies, one was the smaller one being forgery of  power of attorney which was used for execution of the sale deed and the  other one leading to murder of the deceased.  The said smaller conspiracy  appeared to have given rise to the larger conspiracy, namely, murder of the  deceased so that accused no.1 can appropriate the entire amount of

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consideration.  Both the conspiracies although might have been hatched at  two different stages, were treated to be parts of the same transaction.   

       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.   According to PW38 she obtained a xerox copy of the said agreement of sale  from the Collectorate. At whose instance the said xerox copy was filed with  the Collector of the District has not been established.   

       Inconsistencies in the statements of PW25 and PW38 are galore.  If  the said agreement was cancelled, whether the amount of earnest money was  returned to the appellants or not has not been stated.           In her report dated 18.9.2000 PW38 did not disclose the said  agreement for sale.  She did not make any allegation against the appellants  herein even in her second report.  The suspicion that the deceased was done  away with must have been crystallized by then but as indicated hereinbefore  no allegation whatsoever was made against the appellants.  There is  furthermore nothing on record to show that they had anything to do with  Accused No.1 during the period between 16.5.2000 to 30.6.2000 when the  purported power of attorney was executed.

       The learned Trial Judge, in his judgment, opined that till execution of  the sale deed the appellants had nothing to do with the commission of the  offence.  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.  If the statement of PW38 was correct  that a deal had been made by her husband with PW25 only, it is difficult to  arrive at an inference that the appellants were parties to both the  conspiracies.  In her own words:

"\005He had settled the deal of agricultural land with Suresh  Deshmukh and he had immediately handed over to me an  amount of Rs.75,000 received as an earnest money.  He did not  tell me about any other transaction with anybody besides the  aforesaid deal\005"

       Her statement before the court was made on the basis of what she had  learnt from her husband.  She had no direct knowledge thereabout.  Her  statement was not admissible in evidence under Section 32 of the Indian  Evidence Act.             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

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conspiracy also cannot be said to have been proved.           Except PW1 nobody has deposed with regard to commission of  murder.  PW1, in his statement before the police, did not even name accused  no.2.  His name was disclosed by him, for the first time, in his statement  made before the Magistrate under Section 164 Cr.P.C.   In his statement  before the learned Magistrate he merely alleged that accused no.1 had taken  him to Dreamland Hotel where accused no.2 was sitting.  Why accused no.1  took him to the hotel has not been explained.  Why accused no.1 wanted  accused no.2 to pay him some money has also not been disclosed.  Even if  the statement made by PW1 that accused no.1 did ask the accused no.2 to  pay some money, the very fact that he declined to do so stating "who has  asked him to commit murder of the deceased" is itself pointer to the fact that  even accused no.2 was not a party to the conspiracy.           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.           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.         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.  The appellants  shall be set at liberty forthwith unless wanted in connection with any other  case.