IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPEAL NO.703 OF 2001 APPEAL NO.703 OF 2001 APPEAL NO.703 OF 2001 Praful Sudhakar Parab ] age 24 years, occupation ] police constable, residing ] at Hari Om Society, ] Plot No.386/43-D,Sector-3 ] Charkop, Kandivali (West) ] Appellant/ Mumbai - 400 067. ] ori.accused versus The State of Maharashtra ] Respondent ------- Shri P.M. Pradhan, Senior Counsel, instructed by Shri A.R. Pitale, Advocate, for the Appellant. Smt. Usha Kejariwal, A.P.P. for the Respondent. ------- Coram Coram Coram : N. V. Dabholkar : N. V. Dabholkar : N. V. Dabholkar and and and Smt.V.K.Tahilramani,JJ. Smt.V.K.Tahilramani,JJ. Smt.V.K.Tahilramani,JJ. Reserved Reserved Reserved on: on: on: 30/01/2006. 30/01/2006. 30/01/2006. Pronounced Pronounced Pronounced on: on: on: 14/02/2006. 14/02/2006. 14/02/2006. Oral Judgment ( (Per: Dabholkar, J.) 1. Sessions Case No. 459 of 1997 was concluded by Additional Sessions Judge for Greater Bombay, vide his judgment and order dated 31.7.2001. Present appellant was tried for offences punishable under Sections 364 and 302 of Indian Penal Code. At the conclusion, he was held guilty for committing murder of Prabhudas Narayan Raut, and sentenced to suffer life imprisonment, to pay a fine of Rs.5000/=, in default, rigorous imprisonment for three months. Feeling aggrieved by the said finding of guilty, conviction and sentence, original accused has approached this court, by this appeal under Section [2] 374(2) of the Code of Criminal Procedure, 1973. 2. The accused Praful and victim Prabhudas, both were members of State police force at the time of the incident. The incident in question is said to have taken place some time after 7.00 p.m. of 7.12.1996. The accused, at that time, was working as pay-sheet clerk, attached to LA-IV, Police Training Centre, Marol. In that capacity, his duty was to disburse salary amount, as also amount of other allowances, received from head clerk, to the police staff. Before transfer to LA-IV, he was attached to Police Training School (‘PTS’, for short). Deceased Prabhudas Raut was senior clerk in the salary branch of PTS. . Sudhakar Parab (PW-17), father of the accused, was also serving as head constable with the police department, since 30 years prior to the incident. He was residing at Goregaon. It is the claim of the prosecution that, although initially, accused was residing with his father, he was forced by father to leave the house, in view of vices to which the accused was addict, i.e. consumption of liquor, attending the bar and spending lavishly on dancing girls etc. Due to such habits, the accused was always in need of money. . On 7.12.1996, Saturday, Prabhudas (victim) [3] attended his duties and left the office at about 6.30 p.m. with Dilip Waingankar (PW-2). While returning home, Prabhudas, carried with him four cash books, a day-book, RBI voucher, a calculator and a bunch of keys, in a bag. PW-2 Dilip and Prabhudas separated for respective homes, from Jogeshwari at about 7.30 p.m. . At about 8.00 p.m., while victim Prabhudas was at his residence along with his wife Kalpana (PW-8) and son Anish (PW-11), accused Praful approached him and informed Prabhudas that his presence is required at the office, by his superior Shri Patil. Prabhudas did not believe the message. He sought confirmation, by a telephonic call and realised that, the message given by the accused was false one. Prabhhudas returned home, by leaving accused outside the house. He assured his wife to investigate on Monday, as to who had given such a false message. At about 9.00 p.m., the deceased Prabhudas and wife Kalpana went to a telephone booth and while Kalpana was having conversation with her brother, accused reached house of the victim. He learnt whereabouts of the couple, from child Anish and approached them at the telephone booth. There, accused again persuaded Prabhudas to accompany him to the office. After telephone call of Kalpana was over, all three returned to the house of Prabhudas. Accused consumed a glass of water, the victim took up the bag [4] brought from the office, with all its contents and left the house with the accused. It is the case of the prosecution that, after this departure, Prabhudas never returned. . On 8.12.1996, at about 8.00 a.m., Kalpana contacted Marol office, for enquiring whereabouts of her husband. She was informed by telephone operator that, nobody had gone to Marol office, PTS on the preceding night. Consequently, she informed her relatives and search for deceased Prabhudas began. . Kalpana along with her relative Santosh Shedge (nephew) visited Police Inspector Shri Suryawanshi at PTS, Marol. She also enquired with the officers and policemen at Naigaon office. Police Constables Sanap and Khamkar, colleagues of the deceased, suggested to Kalpana that she should find out person with whom her husband had departed on earlier night. . While departing on earlier night, Prabhudas had informed Kalpana that, she need not be worried, since the person, with whom he was going, was nephew of one Shri Sawant, residing in the neighbourhood. In search of the accused, Kalpana approached Sawant family. Shri Sawant took Kalpana to the house of his sister i.e. mother of of the accused. Although, accused was not [5] present there, mother of the accused showed a photograph of the accused to Kalpana. From the photograph, Kalpana identified him to be the person with whom her husband had left on the former night. . After Kalpana returned home, she was informed by Sawant family that accused was available at their residence. Kalpana went to residence of Sawant family and questioned accused present there, regarding whereabouts of her husband. The accused was evasive and, therefore, Kalpana suspected foul-play, on the part of the accused. With the help of Devidas Raut, (PW-4), her brother-in-law and one Dattatraya Tembhekar, Kalpana managed to take the accused to police station. Dilip Shinde (PW-20), PSI attached to Meghwadi police station, who was on duty as Station House Officer (SHO, for short), upon hearing from Kalpana, reported the matter to his superior, Police Inspector Shri Sonar (PW-21) and as directed by PI Shri Sonar, Shri Shinde recorded statement of Kalpana and treated the same as missing report (Exh.22). . During interrogation, accused informed PSI Shri Shinde that, he had left deceased Prabhudas, along with couple of his friends, namely, Dalvi and Waingankar in a hotel at Panvel. PI Sonar, PSI Shinde took the accused to Panvel and upon enquiries in the hotel, called "Suman [6] Motels", which was pointed out by the accused; they were informed that no such persons, named, Prabhudas, Dalvi and Waingankar, visited or stayed at the said hotel. In fact, police authorities were informed that the hotel was exclusively for members only. . Persistent interrogation of the accused ultimately bore the fruit. The accused disclosed that he had committed murder of Prabhudas Raut and he also disclosed the date, time and the place of committing the said offence. (In fact, this narration of the accused, being confessional statement to police officer Shri Shinde, is not admissible confession, by virtue of section 25 of the Indian Evidence Act). According to this statement, accused was furious about the deceased, since the deceased had ridiculed the accused, on the point of accused having married a bar girl, named, Helen Fernandes. When this was revealed by accused, at 5.30 a.m., police, along with the accused, went to the scene of offence, a location between Jogeshwar-Vikroli link road and Marol pipeline, the accused showed the spot, so also the dead body of victim Prabhudas, in side the pipe. This was verified in the light of police van and search light. As it was dark, it was decided to conduct the panchanama proceedings etc. in the day light. The two guards were posted at the location, including PW-5 Yusuf Mulla and the party returned to police station. [7] FIR (Exh.51) was written by PSI Shri Shinde after confirmation of statement of the accused, by verifying existence of dead body etc. This was because, on earlier occasion, the accused had misguided the police to a Panvel hotel. Consequently, arrest of the accused was effected at about 7.00 a.m. vide panchanama of arrest at Exh. 39. With the arrest panchanama, belongings on the person of the accused, were taken charge of, which included jean pant (black colour), a shirt (green with red checks), cash of Rs.2084, identity card etc., including key chain having two keys. While drawing panchanama of the location, three shirt buttons, one rubber slipper, wrist watch, cash, bunch of keys (belongings on the person of the deceased and articles lying around) were seized under panchanama of seizure (Exh.24). In fact, this panchanama is a very curious document. It is a composite document, which contains certain details pertaining to narration by the accused, and it also contains details, which can be termed as ‘panchanama of scene of occurrence’, and it also contains the details of the dead body, which can be termed as ‘inquest’. The dead body was identified by PW-14 Devidas (brother of the victim). . Upon further interrogation, it is said that, accused showed willingness to give out clothes worn by him at the time of commission of offence and that [8] discovery was under panchanama (Exh.35) drawn in presence of panch witness Waman Gujaran (Exh.13). At the instance of information given by the accused, bunch of keys and black bag are also said to have been discovered, which were kept by him in the armory. The memorandum and panchanama to that effect are at Exhibits 30 and 30-A. . After other part of investigation, such as, recording of statements of witnesses, obtaining post mortem report after subjecting the dead body to autopsy and obtaining reports of analysis, by sending seized articles to Forensic Science Laboratory, charge sheet was submitted in the court of 44th Metropolitan Magistrate, on 7.3.1997. After committal by Metropolitan Magistrate, the trial before the Additional Sessions Judge, Greater, Bombay, ended in conviction as described above. 3. The prosecution has, in all examined 21 witnesses and according to their importance, they can be grouped as under. . PW-5 Police Constable Yusuf Mulla, was the PSO at Meghwadi Police Station, from 6.00 p.m. from [9] 8.12.1996 till 10.00 a.m. on the next morning. Kalpana (PW-8), the wife of the deceased, had approached to the police station, next day morning. At 17.15 hours, she had brought the accused with her and reported to PSI Dilip Shinde, that her husband was called and taken by the accused on 7.12.1996. Her narration was registered as missing report, by Shri Mulla. Shri Mulla had accompanied PI Sonar, PSI Shinde and the accused, to Suman Motels at Panvel. Shri Mulla and Police Constable (Bk.No.2763), were the persons asked to stay back, since it was decided to draw the panchanama in the morning. Consequently, he has witnessed all the events recorded in the panchanama (Exh. 24). PW-8 Kalpana Raut is the widow of the victim. Her evidence is important on the point of ‘last seen together’ and the manner in which she searched, traced out and presented the accused to Meghwadi Police Station. PW-9 Arvind Veerkar is a panch witness and panchanama (Exh.24) was drawn in his presence. Another panch witness Suresh Patil (PW-10) was present when black rexin bag and its contents were discovered from the guardroom, at the instance of the accused, vide panchanamas (Exhs.30 and 30-A). This panchanama was drawn by police constable Bhiva Parab (PW-6). PW-15 Shantaram Sawant is the maternal uncle of the accused, residing in the same locality, where, the deceased was residing. He has rendered full support to the deposition of Kalpana, regarding search and [10] apprehension of the accused. . Apart from PWs. 5,6,9 and 10 referred in above parabgraph, as they are the witnesses to seizure of certain articles, PW-16 is also panch witness to arrest panchanama (Exh.39) and seizure of belongings of the accused, under the said document. . The prosecution has examined four witnesses, who speak about bad habits of the accused and, therefore, his consistent need for money. This team of four witnesses, includes father of the accused, namely, Sudhakar Parab (PW-17), who had directed the accused to stay separately, if the accused could not leave without bad habits. Father also supports the case, by informing that on 8.12.1996, the accused had been to his residence for taking bath and seizure of clothes of accused by PSI Shinde on 9.12.1996 from his house. PW-4 Vasant, ASI, who was SHO on the night between 7th and 8th December, 1996, was reported by police constable More, that the accused had demanded the keys of pay office, on that night, which were denied to accused by police constable More. PW-12 Ramchandra Bandekar, another police constable, had lent an amount of Rs.2000/= to the accused, in April,1996. The accused had failed to return the same, and in December 1996, Ramchandra had seen the accused flinging currency note of Rs.500/= at [11] dancing girls at Sancheti Bar, near Goregaon Railway station. PW-18 Chandrakant Rane is receptionist of Hotel Woodland and has deposed about three visits of accused to the said hotel on 4th, 6th and 7th December, 1996 and short stay there, with girl named Kajal. . PW-3 Arun Dhole is a person from whom the accused had borrowed a T-shirt on the night of 7.12.1996 at about 11.30 p.m. He had also served water to the accused at his request. PW-19 Dr. Manik Sangle had carried out post mortem on the dead body of victim Prabhudas. . Remaining witnesses are comparatively of lesser importance. PW-1 Pradip (head constable) was telephone operator, from whom the deceased had confirmed that the message by the accused was not true. PW-2 Dilip is colleague of the deceased. On 7th evening, the two had left the office together and had separated for respective residences, from Jogeshwari at about 7.30 p.m. Evidence of PW-11 Anish, minor son of Kalpana and the deceased, is on the same line as that of Kalpana, on the point of ‘last seen together’. Waman Gujran (PW-13) is the panch witness to panchanama (Exh.35), under which, shirt, jean pant and boots of the accused were seized. PW-14 Devidas Raut is the brother of the deceased, and he had identified the dead body at the [12] location. PW-20 PSI Shinde and PW-21 Senior PI Sonar are the Investigating Officers. Evidence of PW-7, Ashok Jadhav, has become irrelevant, since it appears that for non return of cash by the accused, which was entrusted to him for disbursement, and about which PW-7 has deposed, separate prosecution was conducted against the accused. 4. So far as defence of the accused is concerned, to the concluding question, in his statement under Section 313 of the Code of Criminal Procedure, as to whether he desired to say anything more, the accused responded by saying ;- " On 8.12.96, I was in my office distributing salary. It was Sunday. Sanap & Khamkar come to me telling that we should go to Khandare for Puja. As we went to Jogeshwari, there we came near the house of my maternal uncle. We went inside the house of my Mama (maternal uncle). Sanap and Khamkar pointed out to 10-12 persons present over there, that i was the same Prafulla Parab. After some time, Kalpana Raut and my mama arrived there. Kalpana Raut asked me, if I had gone to her house on the last night. I denied. From there, I was taken to police stn. Kalpana Raut pointed out to P.S.I. Shinde that [13] I had visited her house. I had denied that version. On the morning, I was arrested. " . In response to question No.7, about his identification by Kalpana (PW-8) at the place of his maternal uncle Shantaram Sawant (PW-8) on 8.12.1996, accused responded by saying that, he was sitting in the house of his maternal uncle. and he had stated that he had not gone to house of deceased on 7.12.1996. . While replying question No.8, he admits that he went to Meghwadi police station at 7.15 p.m., with Kalpana. He denies to have narrated to the police, story of having reached the deceased along with his colleagues Waingankar and Dalvi at hotel at Panvel. He also denied to have led the police to Suman Motel at Panvel. He also denied that he was teased by any other colleagues, on the point of his marriage with Helen Fernandes. . By replying question No. 15, " It is all false", he has denied discovery of dead body at his instance, but he has admitted seizure of articles as recorded in arrest panchanama (Exh.39) and in response to question Nos.17 and 18, he admitted that police had taken him to the spot but he claimed that the articles allegedly recovered from the location (vide exh.24), [14] were being seen by him for the first time, in the court. According to him, his clothes were seized from the police station and not from the residence of his father. About missing of three buttons from his shirt, he claims that he is unaware, whether that was done after his shirt was seized by the police. He denied to have borrowed T-shirt from PW-3 Arun, or to have demanded keys of salary branch, from police constable More, on the night of 7th and 8th December. . In replies to question Nos. 39 and 40, accused admits to have visited house of his father Sudhakar Parab on 8th morning, and departed after taking bath. He has denied his stay at hotel woodland with girl Kajal. When confronted with medical evidence, accused pleaded ignorance about the same. . It can be said that, the accused has not raised any concrete defence, but has tried to deny all the averments of the prosecution, suggesting him to be guilty of the murder. 5. By the impugned judgment, the trial court held that the death of Prabhudas was homicidal and the appellant-accused was responsible for the same. Consequently, the accused is held guilty for offence punishable under Section 302 of IPC. So far as offence [15] punishable under Section 364 IPC (abduction) is concerned, the trial court observed that the said charge does not survive. The reasons for such finding, as recorded in paragraph 43 of the judgment, tried to be criticised by Shri Pradhan, learned Counsel for the appellant. However, we have prevented him from doing so, in view of the fact that the consequent acquittal recorded in favour of the appellant, so far as offence under Section 364 IPC is concerned, is not under any challenge by the State. . For the reasons recorded in paragraphs 21 and 22, learned trial Judge had shown inclination to believe evidence of PW-8 Kalpana and PW-11 Anish (wife and son of the deceased) After discussing evidence of two Investigating Officers, PSI Shinde and PI Sonar, as also PW-5 Mulla and panch witness Arvind (PW-9) together with identification evidence of the brother of the victim, namely, Devidas ((PW-14), in paragraphs 23 to 25 of his judgment, the learned Judge discussed the medical evidence as rendered by Dr. Manik Sangle, p.m. notes and also panchanama (Exh.24), which also includes inquest portion, the learned Judge arrived at a conclusion that the death of Prabhudas was homicidal. Learned Judge rejected the argument of the defence counsel that the missing report lodged by Kalpana (Exh.22) was the genuine FIR and not the formal [16] complaint (Exh.51) tendered by PSI Shinde, after almost all the investigation. The trial court seems to be in agreement with the defence counsel that the confessional portions in Exhibits 51 and 51-A, are hit by section 25 of Indian Evidence Act and, therefore, inadmissible in evidence. . After considering evidence led by the prosecution, in the form of depositions of Kalpana and her son Anish, PW-3 Arun, who had lent T-shirt to the accused, PW-17 Sudhakar (father of the accused), PWs. 6 and 10, namely, Police Constable Bhiva and panch Suresh (discovery panch to panchanamas Exhibits 30 and 30-A and regarding discovery of black bag and its contents from guardroom, as also evidence of two Investigating Officers, regarding various panchanamas, the trial judge summed up his conclusions in paragraph 40 of the judgment, as to the circumstances established by the prosecution, which show compatibility of the accused in relation to crime in question. The trial judge observed thus; " The unshaken testimoney of the Kalpana Raut (PW-7), her son Anish Raut (PW-11) clearly indicate that by misrepresentation the accused taken the Prabhudas Raut with an intention to commit murder and the chain of events from [17] taking him from his house, getting T-Shirt from the PW-3 Arun Dhole, washing his clothes in the house of his father (as stated by PW-17, Sudhakar Parab), then recovery of art. No.18 with detached buttons of the shirt and then the recovery of bunch of keys (art.5) on 9.12.96 as per the statement of the accused, forms a complete chain of events and cumulatively shows that there is no escape from the conclusion that it was the accused who could have committed the offence of responsible for the homicidal death of deceased Prabhudas Raut. " . So far as motive is concerned, the trial court has referred to evidence of father Sudhakar (PW-17), Head Constable Ashok Jadhav (PW-7), Police Constable Ramchandra Bandekar (PW-13) and arrived to the conclusion as follows;- " ............................................. There can be a reasonable presumption, which can be drawn from the testimony of the above said witnesses that the accused as (was) misappropriating the amount which was given to him for disbursement of (to) the employees of LA-V and in order to make the good [18] amounts of his extravagant expenses, the accused wanted to open safe with the keys in possession of Prabhakar (Prabhudas) Raut and for that purpose, he committed the murder and snatched the keys from his bag and then had gone to PTS, Marol and kept bag inside the rifle stand. " . While deviating from the initial case for motive, the trial court observed that the accused made a false statement about his being teased by the victim, on the point of his marriage with Helen Fernandes. The trial court also observed that, it was the accused, who had knowledge about the location of the dead body. Thus, impliedly, the trial court has accepted the prosecution story about the discovery of dead body at the instance of the accused. . For these reasons, the trial court has accepted that the prosecution has established the circumstances, unerringly pointing towards the guilt of the accused. 6. Heard Shri Pradhan, learned Counsel, with Shri Pitale, Advocate for the appellant, and APP Smt. Usha Kejariwal for Respondent-State. [19] . As expected, learned Counsel for the appellant has seriously assailed the circumstances relied upon by the prosecution and held proved by the trial court, and pleaded that those are not proved by reliable and cogent evidence. So far as prosecution story that, three detached buttons were recovered at the location and near the dead body (Exh.24) and the shirt of the accused was seized under panchanama (Exh.35), is concerned, it was submitted that such a picture could be painted by the prosecution. This is because, the accused was practically in police custody, since evening of 8th December, when Kalpana presented him before the police. Even technically, the accused is shown arrested at 07.10 hours (Exh.39) and recovery of loose buttons at the location under panchanama (Exh.24), was at 8.10 hours. Seizure of the clothes from the house of father under Exhibit 35, is shown at 11.30 hours. Painting a picture by manipulation, it was submitted; was not impossible. . Evidence of Kalpana, regarding victim last being seen alive and in the company of accused, is urged to be disbelieved, by relying upon medical evidence. The post mortem notes at Exh. 44, show that the stomach and small intestine of the victim was empty, as against the case