NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1029 OF 2014

Umesh Tukaram Padwal & Anr.     .....Appellants

Versus

The State of Maharashtra                               .....Respondent   

J U D G M E N T

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

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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, PW­1 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,

PW­1 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, PW­1 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

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PW­1 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 PW­1 that he need not come along. At around 8 p.m. in

the evening, PW­1 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 PW­1, as well as a sum of Rs. 10,000/­, a nylon rope and a

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piece of electric wire.  Accused No. 2 led to the recovery of a sum

of Rs. 800/­.

After the investigation, the police filed a charge­sheet

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;

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(ii) the circumstance that the deceased was last seen with

Accused Nos. 1 and 2 by PW­1; and,

(iii) the recovery of the dead body of the deceased at the

instance of Accused No. 1, and of other incriminating

articles at the instance of Accused Nos. 1 and 2.

6. As far as the offence of cheating is concerned, it is

important to begin by noting that it is not in dispute that

Accused No. 1 often used to arrange jobs for people at the Jindal

plant at Vasind. As per PW­1’s evidence, he approached Accused

No. 1 to secure a job for the deceased, for which the deceased

had to pay Accused No. 1 a sum of Rs. 45,000/­. The evidence of

PW­2, the mother of the deceased, also shows that such a sum

was arranged by the deceased and taken to Kalyan in order to

pay Accused No. 1 for getting him a job. However, there is no

evidence to show that Accused No. 1 had any intention to  not

arrange a job for the deceased as promised. It must be noted here

that the Trial Court and the High Court have also not discussed

the evidence relating to the offence of cheating in much detail.

Even otherwise, the evidence on record, particularly  looking to

the answers given by the prosecution witnesses in this regard,

does not inspire confidence in the mind of the Court.  

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In such circumstances, it cannot be said that Accused No. 1

had any intention to cheat the deceased and PW­1 during the

initial discussions with PW­1 or while accepting money from PW­

1 and the deceased. We are thus of the considered opinion that

the Courts below erred in convicting Accused No. 1 for the

offence under Section 420, IPC.  

7. We are also of the view that the circumstances of ‘last seen’

and the recovery of the dead body and other incriminating

articles relied upon to prove the commission of the offences of

abduction and murder have also not been proved by the

prosecution beyond reasonable doubt.   

8. We first  address the circumstance that  the deceased was

last seen on the morning of 11.07.2002 with Accused Nos. 1 and

2. In this regard, it is the consistent stand of the accused that the

deceased, for reasons best known to him, disappeared from the

Vasind Railway Station, about which Accused No. 1 had informed

PW­1 on the same day. This has been brought out in the

deposition of PW­1 as well as the first information he submitted.  

In the first information given by PW­1 (Exh. P­27), he stated

that on the night of  11.07.2002, Accused No. 1 had contacted

him by calling a  neighbour’s residence over the telephone at

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around 9 to 9.30 p.m., and enquired whether the deceased had

reached home. PW­1 told him that the deceased had not

returned.  Accused  No.  1 then  revealed that  when he  and  the

deceased had arrived at the Vasind Railway Station, he had

excused himself to answer nature’s call after requesting the

deceased to wait for him. However, when he returned, he did not

find the deceased at the place where he had left him standing. In

a similar vein, PW­1 also admitted in his cross­examination that

Accused No.1 had informed him on the night of 11.07.2002 itself

that he had lost touch with the deceased at the Vasind Railway

Station.

It is  also  important to  note  at this juncture  that  neither

Accused No. 1 nor Accused No. 2 absconded after the

disappearance of the deceased, and were found present in their

respective houses. All in all, the material on record indicates that

the accused did not have knowledge of the whereabouts of the

deceased after his disappearance, and that Accused No. 1 had

furnished an explanation as to how he parted with the deceased,

on the very day of his disappearance. In our considered opinion,

the circumstance of the deceased being last seen with the

accused therefore does not point towards their guilt.  

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9. Importantly, our attention has been drawn to the entries in

the register seized from a hotel at Goraksha Gad under the

seizure  memo at  Exh.  P­52,  where the  names  of the  accused

along with the deceased were mentioned. It was alleged that the

entry was made by Accused No. 1. This was relied upon to argue

that it has been established that the accused were present with

the  deceased at  Goraksha Gad,  and did not  part  with him at

Vasind Railway Station at all.  However, we are not  inclined to

accept this argument.  

Firstly, PW­7, the owner of the hotel from where the register

was seized, has not supported the above case of the prosecution.

He specifically denied that Accused No. 1 had written the entries

in the presence of PW­7 and that he had identified the accused as

having visited his hotel. In such circumstances, we find it unsafe

to rely on the entries found in this diary.  

Secondly, there is nothing on record to show that the

prosecution  made  an effort to collect any  admitted  writing of

Accused No. 1 during the course of investigation and to compare

the disputed writing of Accused No. 1 with the same. Without

there being proof of the similarity of the handwriting found in the

diary seized under Ext. P­52 and any admitted writing of Accused

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No. 1, it is not open to the Court to presume that the handwriting

in the entry found in the register is that of Accused No. 1. Thus,

it appears that the prosecution pleads on the basis of mere

assumptions that the entries found in the register were made by

Accused No. 1. The diary entries can therefore not be relied upon

in any manner.

10. Insofar as the circumstance regarding the recovery of the

body of the deceased at the instance of Accused No. 1 is

concerned, we are of the considered opinion that the prosecution

has manipulated the records to reflect such recovery.  

 The voluntary disclosure statement of Accused No. 1 was

recorded by PW­10, the Sub­Inspector of Police, and marked as

Ext. P­39 (considering only the portion relevant under Section 27

of the Indian Evidence Act, 1872).  According to the prosecution,

Accused No. 1 led the police to the spot from where the body of

the deceased had been thrown down into the valley of Goraksha

Gad, and that the body was ultimately  found on a tree  in an

inaccessible part of the valley.

PW­10 has deposed that after Accused No. 1 expressed his

willingness to reveal the spot from where the body of the

deceased had been disposed, PW­10 prepared the memorandum

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panchnama at Exh. P­39 recording the disclosure statement of

Accused No. 1  in the presence of  two panchas,  both of  whom

signed the statement along with PW­10. One of the panchas was

examined as PW­4 to support the aspect of recovery of the dead

body. The other pancha was not examined. PW­4 affirmed that

the said panchnama contained his signature.   However, he

admitted in his cross­examination that he had also visited the

police station on 12.07.2002 and 13.07.2002, and further that

Accused No. 1 did not state anything in his presence before the

police.  Thus, it is  clear that the  evidence of  PW­4 belies the

evidence of PW­10 that the disclosure statement of Accused No. 1

was recorded in the presence of the panchas on 14.07.2002.   It

seems that the prosecution wants to make their case watertight

by taking PW­4’s assistance and bringing him as a witness to the

disclosure statement as well. In this regard, the defence is

justified in arguing that the prosecution has tried to improve its

case from stage to stage by introducing material which was

originally absent.

11. Additionally, we find that the timings of the events starting

from the recording of the disclosure statement of Accused No. 1

to the recovery of the  body have not  been established clearly,

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which casts further doubt on the aspect of recovery.   PW­4

deposed  in  his  examination­in­chief that  he  was  called to the

police station to act as a pancha around 12.30 p.m. on

14.07.2002, but he also deposed in the same breath that he was

called for the first time to the police station at 7.35 a.m. that

morning. As noted above, he admitted in his cross­examination

that he had also visited the police station on the two preceding

days. Furthermore, PW­4 admitted that he arrived at the scene of

offence around 12.30 to 1.00 p.m., along with the police, Accused

No. 1 and some relatives of the deceased, including PW­1. Thus,

PW­4’s  testimony pertaining  to  the  time of  being called  to  the

police station and of visiting the spot of recovery is replete with

inconsistencies.  

The deposition of PW­10, the Sub­Inspector, further

complicates the  matter.  He  admitted in  his  cross­examination

that when Accused No. 1 told him about the body of the deceased

being at Goraksha Gad, PW­10 started preparing the

memorandum panchnama pertaining to A1’s disclosure (Ext. P­

39),  which was recorded at the police  station.  At  about  6.35

a.m., he and the panchas along with Accused No.1 started for

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Goraksha Gad.  Thus, the timings deposed to by PW­10 are fully

contrary to the evidence of PW­4.   

The evidence of PW­4 also reveals that the dead body was

found “hanging to one tree” and was completely decomposed. The

dead body was taken out of the valley in a trolley, and the

panchanama was prepared thereafter. Though it  is the case of

the prosecution that the body was thrown in the valley, there is

nothing on record to show in what manner  the body was found

hanging on a tree. The defence, in that context, argued that the

death must have been a suicidal death, and not homicidal. In

addition, if the body was fully decomposed, as PW­4 has deposed,

the identification of the dead body also becomes doubtful.  

Thus, the evidence relied upon by the prosecution is full of

irreconcilable inconsistencies  which cast  serious  doubt  on  the

presence of the panchas during the recording of the disclosure

statement and the recovery of the body of the deceased. In our

considered opinion, the prosecution has made a botched attempt

to improve its case regarding the recovery of the dead body from

time to time.  Having regard to the totality of the facts and

circumstances, we are not satisfied with the evidence on record

as well as the reasons assigned by the Courts below in relying on

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the circumstance of the recovery of the dead body at the behest of

Accused No. 1.   

12. In light of the above discussion, we are of the view that the

other recoveries made at the instance of Accused Nos. 1 and 2

are also tainted and cannot be relied  upon. Importantly, the

panchas examined to prove such recoveries did not fully support

the case of the prosecution either.

13. The only circumstance that remains to be discussed is the

circumstance of motive. Essentially, the proof of the motive for

the offence of abduction and murder alleged by the prosecution

depends on whether the offence of cheating was committed by

Accused No. 1. This is because it is alleged that Accused No. 1

knew that he could not arrange employment for the deceased,

but  still  accepted money  for this  purpose from PW­1 and  the

deceased,  with an  intention  to  cheat them,  and subsequently,

Accused Nos. 1 and 2 murdered the deceased in order to avoid

repayment.  

We have already discussed in the preceding paragraphs that

the evidence relating to cheating is unreliable, and that it cannot

be said that  Accused No.  1 committed this  offence.  Thus, the

entire argument of motive stands negated. Even otherwise, if the

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alleged motive is held to have been proved by the prosecution, the

said circumstance cannot be made the sole basis to convict the

accused for the offences  of the abduction  and  murder  of the

deceased.

14. It is also relevant to note at this juncture that the

prosecution has even failed to establish the probable cause of

death of the  deceased, though  it  was  recorded in the inquest

panchnama (Ext. P­19) that death was caused by strangulation.

The doctor who prepared the post­mortem report (Ext. P­18) was

not examined by  the  prosecution to prove  the contents of the

report. However, as per the report, which has been admitted by

the accused, the doctor could not identify any of the injuries on

the body as  ante­mortem, or  give  an opinion on  the  cause of

death, since the body was highly decomposed. No ligature marks

could be seen on the neck either, because of the state of

decomposition.  

15. In a case based on circumstantial evidence, the

circumstances relied upon by the prosecution should be proved

beyond reasonable doubt, and such proved circumstances should

form a complete chain so as not to leave any doubt in the mind of

the  Court  about the  complicity  of the  accused. In  the instant

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case, none of the circumstances relied upon by the prosecution

have been proved beyond reasonable doubt, and there is no

question of a complete chain of circumstances being formed that

would point towards the guilt of the accused. In our considered

opinion, the benefit of doubt should therefore be granted in their

favour. We are accordingly of the opinion that the Courts below

erred in convicting Accused Nos. 1 and 2 for the offences of the

abduction and murder of the deceased.

16. Accordingly, the impugned judgment of the High Court as

well as of the Trial  Court stand set aside and the appeal is

allowed.  Accused No. 1 is acquitted of the offence under Section

420, IPC.  Accused Nos.  1 and 2 are acquitted of the  offences

under Sections 364 and 302 read with 34, IPC.

17. Vide order dated 08.08.2014, this Court granted bail to the

appellants. Their bail bonds stand discharged.

..........................................J. (N.V. Ramana)

............................................J. (Mohan M. Shantanagoudar)

............................................J. (Ajay Rastogi)

New Delhi; September 03,  2019.

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