Case: Gautam Kamlakar Pardeshi and ors Vs. The State of Maharashtra

2. Such of the facts necessary for the decision of this appeal are as follows:(i) That on 4/1/2014 at about 7.45 a.m. Joseph Rodrigues had been to his wadi (a small piece of agricultural land) for giving water to Banana trees through water pump. Since flow of the water was not proper, he had been to the water pump and at that time, he had noticed that a dead body was floating in the well. The backside of the dead body was open from waist to leg. It was in a plastic gunny bag.(ii) Joseph Rodrigues (P.W.1) returned home and informed to his brother about the same. He then called upon the Councillor of the area who further passed on the information to the police patil. At the instance of the police patil a fire brigade team alongwith police came to the spot. The dead body was pulled out of the well by the fire brigade.(iii) P.W. 7 then reported the matter to the police, on the basis of which accidental death was registered vide ADR No. 3 of 2014.(iv) Investigation of the ADR No. 3 of 2014 was given to P.W. 2 Hemantkumar Katkar, PSI of Palghar Police Station. He had carried out initial steps in investigation. The inquest panchanama was drawn by him, which is marked at Exh. 25. A coir rope was seized which is marked at Article B and Article A is the plastic gunny bag. The advance death certificate was served upon P.W. 2 on the next day. After initial enquiry, P.W. 2 registered Crime No. 1 of 2014 at Palghar Police Station.(v) In the course of investigation, the Investigating officer recorded the statement of one Jeris @ Anna Falix Pillai (P.W.8) and Martin Niel Moris(P.W.9) who had lastly seen the accused with the deceased. One Hitesh Raut(P.W.11) who was running a pan stall disclosed to the police that he had seen a mentally ill person standing near his pan shop. On the basis of the statements of P.W. 8 and P.W. 9, the accused were arrested and charge-sheeted.(vi) It was the case of the investigating agency that accused Pravin had also made an extra judicial confession to P.W. 9.3. At the trial the prosecution examined as many as 13 witnesses to bring home the guilt of the accused. However, the entire case of the prosecution rests on the evidence of P.W. 3 Vinay Muley, a panch for recovery of the clothes of the deceased at the instance of accused Gautam; P.W. 4 Dr. Anant Kulkarni who performed the autopsy on the dead body of the deceased ; P.W. 7 Joseph Rodrigues who set the law into motion; P.W. 8 Jeris Pillai, who saw the deceased in the company of the accused; P.W. 9 Martin Moris to whom extra judicial confession was made and P.W. 12 API Santosh Barge who conducted investigation and filed charge-sheet.

Reasoning:
4. According to P.W. 7 Joseph Rodrigues, he had filed a report thereby informing the police that when he had been to the well to start the motor pump, he had noticed that an unidentified dead body was floating in the well. On the basis of his report, ADR No. 3 of 2014 was registered and investigation was set in motion. In the cross-examination, he had admitted that he had not informed the police that upon seeing the dead body in the well, he had first informed his brother, who called the local councilor and then on the basis of the information of the police patil, the police had arrived at the spot. It is categorically stated in the cross-examination that the said well was a common well and the residents in the wadi used to draw water from the well turn by turn. That there was no fencing around the wadi and therefore, trespassers had an easy access to the wadi. According to him, whenever a thief is apprehended in the wadi, the thief used to be assaulted by the agriculturists. That the accused were not residents of the wadi and therefore, he had not seen the accused in the close vicinity of the wadi. That when he saw the dead body, he had not noticed any injury on the dead body and therefore, he had presumed that the said person must have had an accidental fall.8. According to P.W. 8, all the three accused were under the influence of liquor and therefore, were not in position to walk properly. The pump house is situated in the wadi and there is no facility of light near the pump house. That he had accompanied Martin to Bolinj Naka and then they both returned to the house of Martin. That Martin was in a hurry to reach home since the family members were calling him persistently. On 2nd January, 2014 he woke up at about 3 p.m. and thereafter, had not visited any of the places like Sakharababa Sankul and Pump house. In the evening of 2nd January, 2014, he found nothing objectionable. It is specifically admitted that he had not suspected Rahul, Pravin and Gautam as the assailants of the unknown person as he had not seen any one of them assaulting the said unknown person. He had not seen the dead body nor the police had called upon him to see the dead body. There are material omissions in the evidence of P.W. 8 which go to the root of the matter.9. P.W.9 Martin Moris was resident of Virar Garden. P.W.9 was a good friend of accused and used to consume liquor alongwith them in the premises of pump room which is situated behind the Sakharambaba Sankul. According to P.W. 9, on 31/12/2013 he had accompanied P.W. 8 to Gokul township and then they returned home at about 9 p.m. A party was going on. They joined the party. P.W. 8 Jeris was receiving calls from Pravin persistently and therefore, they both decided to meet Pravin at Bolinj Naka. Pravin was not present at the spot but a beggar was wandering here and there. The said beggar had a bad smell. Pravin asked them to come behind MM Bar. P.W. 8 and P.W. 9 obliged. He saw all the accused present there. The beggar had dashed Gautam and the said gesture annoyed Gautam. The beggar was apprehended by Gautam and Pravin, but he was unable to speak except uttering the words Mumbai station. They suspected him to be a thief. Pravin caught hold of the beggar whereas Gautam and Rahul gave him fists and blows. Then they went to pump house. P.W. 8 and P.W. 9 were asking the accused to release the beggar and not to assault him. Rahul and Pravin denuded the beggar of his clothes and assaulted him. P.W. 9 received phone call from his sister and therefore, left the spot. On 2nd January, 2014 accused Pravin called P.W. 9 at Bolinj Naka and informed him that the said person was not a human being but a demon and all three of them killed the said person with a stone. Pravin also informed that the dead body of the said person was thrown in a well. All the three accused suspected the said person to be a demon. While handing over lemon, they informed P.W. 9 that the said spirit could cause harm to him and his family. He has also admitted to be an alcoholic. That they used to consume drugs together. On 31st December, 2013 the party continued for the whole night and spilt over till 8 a.m. of 1st January, 2014. He was a good friend of Pravin and vouched for him as a good person with a helping nature and no criminal antecedents. He admits that he has not given description of the said unknown person to the police. There are material omissions in the evidence of P.W. 9. His evidence that his friend had threatened him of dire consequences in the eventuality of disclosing facts to the police is a material omission.11. P.W. 12 Santosh Barge, API has deposed before the court the steps taken by him in the course of investigation. According to him, accused Pravin Wagh had burnt his bloodstained clothes. Stone was recovered at this instance. The clothes of the deceased were recovered at the instance of accused Gautam from the lake. The clothes of the accused Gautam were also recovered from his house. There were blood stains on the pant below the knee area. Similarly, there is recovery of clothes of Accused Rahul. He disclosed that he had thrown the clothes with bloodstains in lake. P.W. 12 has admitted that no blood stains were seen on the scene of offence. There was no material to show that the dead body was dragged from pump house to well. P.W. 12 had admitted that he has not recorded the statement of the owner of land Joseph Rodrigues, in which the well and pump house were situated. There was no compound to the well as well as the pump house. The dead body was not identified. According to him, he did not feel it necessary to record statement of the owner of the land. There is no investigation besides the evidence of P.W. 8 and P.W. 9 that the deceased was a beggar nor it had transpired that the deceased was a thief. But in the course of investigation, it had transpired that on the day of the incident, an auto rickshaw driver had teased the deceased but the said auto rickshaw driver could not be tressed.12. The accused were not subjected to alcoholic examination. There was no evidence to show that anyone in the locality besides P.W. 8 and P.W.9 had seen the deceased in the locality. In the course of investigation, clothes of deceased were not shown to eye witnesses for verification. In the panchanama at Exh. 31, it is specifically mentioned that the clothes were wet and therefore, the signatures of the panchas will be obtained after the clothes dried. There is no evidence to show that after seizure, the clothes were sealed. Some currency notes were recovered in the course of seizure of clothes, but there is no reference from whom the notes were seized and to whom they were given. The currency notes are not deposited in the court either. The big stone which was seized was not sent for chemical analysis. During investigation, P.W. 12 had opened the seal of stone for the purpose of showing the same to the medical officer. There is a distance of 50 to 60 ft. between the pump room near lake and the pump room near the well. But there were no marks of dragging the dead body nor there was trail of blood. No liquor bottles were found near any of the pump room. During investigation, P.W. 12 had not collected the call details records of accused and witnesses. P.W. 12 had proved the omissions and contradictions in the evidence of the witnesses. It is categorically admitted by P.W. 12 that in the present case, there is no eye witness to the murder.16. The evidence in the present case is in the nature of the circumstances of last seen theory and extra judicial confession to P.W. 9. The prosecution has only relied upon the evidence of P.W. 8 and P.W. 9 who were under the influence of alcohol throughout that period. P.W. 8 and P.W. 9 were in the company of the accused when the incident of assault had taken place. The fact that they had tried to persuade the accused not to assault the deceased is in the nature of a material omission and the said omission is proved in accordance with law. P.W. 8 and P.W. 9 were also not in a proper frame of mind even to understand the events which they have seen. They have not disclosed anything to police immediately. It is not known as to what was the material on record to show that the accused and the witnesses were in each others company at the time of incident. It is true that the accused had no animus or intention to assault the deceased much less to kill him. The identity of the deceased has not been established. The deceased was also not apprehended when he was attempting to commit theft. It is the case of the P.W. 8 and P.W. 9 that the accused had assaulted only with fists and blows. There is no recovery of weapon. However, according to P.W. 4, the assault was with a hard and blunt object. The evidence in the nature of extrajudicial confession is week, since there is no material on record to show that it was a voluntary disclosure to its fullest extent. The accused were not in their senses till late in the afternoon of 1st January, 2014 and that they had continued the party for 4 days after the incident. The dead body was found on 4th January, 2014 and the condition of dead body shows that the death must have occurred atleast four days before. P.W. 11 Hitesh Raut has disclosed that he had seen a mentally ill person standing near pan shop on 1/1/2014 at about 12 to 12.30 a.m. P.W. 11 has been declared hostile by the prosecution. P.W. 11 was also not called by the police for identifying the dead body.17. The prosecution has failed to establish that P.W. 8 and P.W.9 had seen the deceased in the company of the accused. The only description is that he was a mentally ill person. But the identity of the person as the deceased has not been established. The statement of P.W. 8 and P.W. 9 are recorded after the arrest of the accused. Therefore, again there is no material to show that it was on the basis of their statement that the accused were arrested.18. The extrajudicial confession does not inspire confidence as P.W. 9 was in the company of the accused on 31st December, 2013 as well as on 1st January, 2014. There was no reason for the accused to tell P.W. 9 on the eve of 2nd January, 2014 that they had killed the deceased. Moreover, P.W. 9 had neither reported it to the police nor he had verified that the body was thrown in the well. The body was recovered on 4th January, 2014. The material infirmities in the evidence of P.W. 8 and P.W. 9 do not inspire the confidence of the court.19. Last seen theory by itself is not sufficient to prove that the accused are the authors of the fatal injuries sustained by the deceased. In fact, the prosecution has to establish the time when the deceased was lastly seen in the company of the accused and the time of death. Unless there is proximity in the time of last seen and the time of death, the evidence cannot be taken into consideration to convict the accused.