Bombay High Court
Rakesh Mahadu Dandekar And Anr vs The State Of Maharashtra on 11 June, 2025
Author: Sarang V. Kotwal
Bench: S. V. Kotwal
2025:BHC-AS:24011-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.498 OF 2013
Rakesh Mahadu Dandekar & Anr. .... Appellants
versus
The State of Maharashtra .... Respondent
INTERIM APPLICATION NO.1812 OF 2025
IN
CRIMINAL APPEAL NO.498 OF 2013
Rakesh Mahadu Dandekar & Anr. .... Applicant
versus
The State of Maharashtra .... Respondent
WITH
CRIMINAL APPLICATION NO.1639 OF 2014
IN
CRIMINAL APPEAL NO.498 OF 2013
Mahendra @ Belu Govind Karwa .... Applicant
versus
The State of Maharashtra .... Respondent
.......
• Mr. Dinesh G. Mishra, Advocate for Appellants.
• Ms. Geeta P. Mulekar, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL &
Digitally
signed by
MANUSHREE SHYAM C. CHANDAK, JJ.
MANUSHREE NESARIKAR
NESARIKAR Date:
2025.06.18
15:48:40
DATE : 11th JUNE, 2025
+0530
Nesarikar
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JUDGMENT :
(PER : SARANG V. KOTWAL, J.)
1. The Appellants have challenged the Judgment and
Order dated 02/04/2013 passed by the Additional Sessions
Judge, Palghar, in Sessions Case No.05/2009. The Appellants
were the original accused Nos.1 and 2 respectively. There were
two more accused who were acquitted from all the charges.
2. By the impugned Judgment and Order, the Appellants
were convicted as follows ;
(i) The Appellants were convicted for commission of
offence punishable u/s 302 of the Indian Penal
Code and were sentenced to suffer imprisonment
for life and to pay a fine of Rs.10,000/- and in
default of payment of fine to suffer further simple
imprisonment for one year.
(ii) Both of them were convicted for commission of
offence punishable u/s 120-B of the Indian Penal
Code and were sentenced to suffer imprisonment
for life and to pay a fine of Rs.10,000/- and in
default of payment of fine to suffer further simple
imprisonment for one year.
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(iii) They were also convicted for commission of
offence punishable u/s 201 of the Indian Penal
Code and were sentenced to suffer simple
imprisonment for seven years and and to pay a
fine of Rs.5,000/- and in default of payment of
fine to suffer further simple imprisonment six
months.
(iv) All the substantive sentences were directed to run
concurrently.
(v) The other accused i.e. accused No.3 Seema
Dandekar and accused No.4 Sonu Kakwa were
acquitted of all the charges.
3. Heard Mr. Dinesh G. Mishra, learned counsel for the
Appellants and Ms. Geeta P. Mulekar, learned APP for the State.
4. The prosecution case involves murder of four persons,
viz. Vanasubai, Sanjay, Sadhana and Rekha. Sanjay was nephew
of Vanasubai and Sadhana was niece of Vanasubai. Sadhana was
Sanjay’s sister. Rekha was engaged to Sanjay. But was residing
with him. The accused No.3 Seema was daughter-in-law of
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Vanasubai. Accused No.1 Rakesh i.e. the present Appellant No.1
was Seema’s son and Vanasubai’s grandson. Accused No.4 Sonu
was brother of accused No.3 Seema. Accused No.2 i.e. the
Appellant No.2 Mahendra was Rakesh’s friend. There were other
two accused Ghanshyam Harijan and Shamsunder Harijan. But
they were absconding and did not face the trial.
5. Somewhere between night of 14/08/2008 and
15/08/2008, Vanasubai was murdered by throttling. Sanjay,
Sadhana and Rekha were missing. The prosecution case is that
because of the dispute regarding the property, Seema and
Rakesh conspired with other accused to commit murder of the
deceased persons. In executing their plan, they first committed
murder of Vanasubai by throttling. The other three deceased
were assaulted in Vanasubai’s house. Then they were taken to a
Nala. They were forcibly drowned in the water. The accused tied
their dead bodies and threw them in a septic tank behind a
railway colony near Gholwad.
6. Vanasubai’s niece Geeta was the first informant in this
case. She saw Vanasubai lying dead in her house on
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15/08/2008. The police were informed. Initially the accidental
death was reported and the enquiry was made. Subsequently,
according to the police, it was investigated as a case of murder.
The accused were arrested. It is alleged that the accused No.1
Rakesh showed willingness to point out the place where the
dead bodies of Sanjay, Sadhana and Rekha were disposed of.
Accordingly, the police were taken near a septic tank, from
where the three highly decomposed dead bodies were taken out.
According to the prosecution, the accused had tied wires around
the dead bodies. Then the dead bodies were tied to heavy
stones. The accused dumped those bodies in the septic tank. The
accused Seema allegedly gave voluntary statement, pursuant to
which, the pieces of some wires used for tying the dead bodies
were recovered from the place, where the three deceased were
assaulted. The accused No.2 i.e. the Appellant No.2 Mahendra
expressed his willingness to give confessional statement and
therefore he was taken to a Judicial Magistrate. His confessional
statement was recorded after giving him more than 24 hours to
contemplate about the consequences of giving the confessional
statement. It is alleged that he described the entire incident
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involving the other accused and himself in committing the
murder and in disposing of the dead bodies.
7. The investigation was completed and the charge-sheet
was filed. The case was committed to the Court of Session.
8. During trial, the prosecution examined 20 witnesses.
Most of the witnesses were Pancha witnesses for various
Panchanamas. Most of these Panchas turned hostile. They did
not support the prosecution case at all. Remaining witnesses
were the informant Geeta Thapad and the deceased Rekha’s
father Wadasha. P.W.11 Dr. Amitkumar Desak had conducted
post mortem examination on Vanasubai’s dead body. He had also
examined the accused No.1 for his injuries. Similarly, P.W.12 Dr.
Kapil Patil had examined the accused No.1 for his injuries.
9. There were two Nodal Officers from the mobile phone
service providers and then there was evidence of the
Investigating Officers in respect of the investigation carried out.
The defence of the accused No.1 was that one Kamlesh @ Kalia
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and one Mahendra Panchal were interested in the same property
of Vanasubai. They wanted the Appellant Rakesh to give his
share to both of them. But since he refused, Kalia and Mahendra
Panchal implicated the Appellant Rakesh falsely in this case.
Those two were helped by Sanjay’s father Vansha and one
Yashwant who was working at Gholwad police station, where
the FIR was registered.
The property in question originally belonged to Hasam
Khan, who had bequeathed that property to Vanasubai.
Appellant Rakesh, Sunita and Rahul were to get that property
after Vanasubai’s death.
10. The defence of the other Appellant Mahendra was that
police had told him that Vanasubai and three others were
murdered and that he had to give statement against the
Appellant Rakesh and others. According to Appellant No.2
Mahendra, he refused to do so. Therefore he was assaulted and
kept in prison. The police told him to give evidence before a
Judge and that then he would be released from that case.
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Accordingly he only nodded before the J.M.F.C. and he was
falsely implicated in this case.
11. The learned Judge considered the evidence on record.
He relied on the confession given by the Appellant No.2. He
relied on the evidence of the police witnesses against the
Appellant No.1 in respect of discovery of dead bodies and
mainly on these two aspects convicted both the Appellants.
12. The prosecution evidence is as follows :
P.W.1 Geeta Thapad was Vanasubai’s niece. Vanasubai
was residing at Jambugaon, Waghmarapada in a Wadi. P.W.1
Geeta’s brother Sanjay and sister Sadhana were staying with
Vanasubai. According to the P.W.1, Vanasubai’s son Mahadu was
residing separately. On 15/08/2008, P.W.1 went to Vanasubai’s
house to tie Rakhi to her brother Sanjay. At that time, nobody
was in the house. She opened the door and entered the house.
She saw that Vanasubai was lying on her bed. She tried to wake
her up, but Vanasubai did not respond. P.W.1 then called others.
It was realized that Vanasubai was dead. P.W.1 then called one
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9 / 48 [email protected]Kalia Chikoowala informing him about Vanasubai’s death. After
that she informed the police. They recorded her information
which was registered as Accidental Death Report at 06.35 p.m.
on 15/08/2008 at Gholwad police station. Her Accidental Death
Report mentions that Mahadu was Vanasubai’s son from her first
husband. She got married second time with Hasam. Accused
No.3 Seema was Mahadu’s wife.
In the cross-examination she stated that she was in
Vanasubai’s house between 12.00 p.m. to 02.00 p.m. on that day.
Kalia did not come there. The police came to the house at about
04.00 p.m. Vanasubai was in the habit of drinking liquor. She
had met Kalia Chikoowala 4-5 days prior to the incident in
Vanasubai’s Wadi. Kalia used to purchase Chikoos from
Vanasubai. She admitted that she had been to Vanasubai’s house
to meet her on 14/08/2008 in the evening. She further admitted
that she gave statement to the police as per her talk with Kalia
Chikoowala.
13. P.W.2 Dilip Bhimara was a Pancha for the Spot
Panchanama of the house where Vanasubai was found dead. He
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was also a Pancha for inquest Panchanama. Both the
Panchanamas are produced at Ex.29 and 30. These
Panchanamas were carried out after 07.00 p.m. on 15/08/2008.
14. P.W.4 Wadasha Kharpade was the fatherof the deceased
Rekha who was engaged to Sanjay. He deposed that Rekha was
residing with Sanjay and they were residing with Vanasubai.
Sadhana was Sanjay’s sister. She was also residing with them.
The accused No.3 Seema and accused No.4 Sonu were
instrumental in getting Sanjay and Rekha engaged. Accused
No.3 Seema was Vanasubai’s daughter-in-law and accused No.1
was Seema’s son and Vanasubai’s grandson. They were residing
in another Wadi. He deposed that there were disputes between
Rakesh, Seema and Vanasubai over Chikoo Wadi. On
19/10/2007 when this witness had visited the accused Seema
and Rakesh’s house, Seema’s mother had expressed her
unhappiness as Seema was not in good financial condition and
also because P.W.4 Wadasha’s daughter Rekha and Sanjay were
residing happily with Vanasubai. Rekha had a telephonic talk
with P.W.4 on 11/08/2008. She was to come to his house for
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Raksha Bandhan. But he did not meet her. On 17/08/2008, one
Daswant Kharpade informed this witness that Rekha, Sanjay and
Sadhana were not traceable and that Vanasubai was murdered.
On 31/08/2008, he was informed that the three dead bodies
were found. He went to the spot where the dead bodies were
kept near Gholwad Railway Colony. He identified the dead
bodies as those of Rekha, Sanjay and Sadhana.
In the cross-examination, he deposed that Vanasubai’s
husband Hasam was the owner of that Wadi. He had already
passed away. He admitted that he had not told about
unhappiness expressed by Seema’s mother to him when his
police statement was recorded. In his police statement dated
19/08/2008 he has not mentioned about telephonic talk he had
with Rekha on 11/08/2008.
15. The other witnesses were mainly Pancha witnesses who
had turned hostile. They are as follows :
• P.W.3 Shamshad Masmat was a Pancha for seizure of
deceased’s clothes.
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• P.W.5 Krishna Bich was the another hostile Pancha on the
point of the Appellant No.1 Rakesh showing spot from
where the dead bodies were recovered. He was also a
Pancha for inquest Panchanama.
• P.W.6 Joseph Dandekar was another Pancha for the same
important Panchanama, regarding Rakesh showing the
place from where the dead bodies were recovered.
• P.W.7 Rajesh Barad was a hostile Pancha in whose
presence allegedly the Appellant No.2’s motorcycle and
clothes were seized.
• P.W.8 Sunil Thakre was a Pancha in whose presence
wooden log and clothes of the Appellant Rakesh were
recovered and pieces of wires were recovered at the
instance of accused No.3. But he has not supported the
prosecution case and was declared hostile.
• P.W.9 Pravin Rayat was a Pancha who had turned hostile.
He was a Pancha for Spot Panchanama and for recovery
of motorcycle Panchanama.
• P.W.10 Nilesh Mhatre was a Pancha in whose presence a
mobile phone of the accused Sonu was recovered. But
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since Sonu is acquitted, his evidence is not of much
importance.
• P.W.14 Madan Patil, was a Photographer. But the
prosecution had dropped him and did not cause his
deposition to be recorded.
• P.W.16 Ishwarbhai Patel had drawn the map of the spot.
• P.W.17 Stephen Menezes and P.W.18 Vijay Shinde were
the Nodal Officers of mobile phone service providers.
But their evidence is not of much value.
• P.W.11 Dr. Amitkumar Desak had conducted post-mortem
examination on Vanasubai’s dead body. He found marks
of Asphyxia and there were five injuries on the face and
neck in the nature of abrasion, contusion and swelling.
The cause of the death was mentioned as ‘Respiratory
asphyxia due to compression of neck structures with
smothering with head injury.’
On 02/09/2008, he had examined the Appellant No.1
Rakesh at the instance of Gholwad police. They had sought his
opinion as to whether the injury on the Appellant No.1’s leg was
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due to biting and the police wanted to know the age of the
injury. According to this witness, there was abrasion with
underlying pus over the Appellant No.1’s leg above ankle joint.
The injury was simple and could have been inflicted by hard and
blunt object. The age of the injury could not be determined. He
had given opinion that the injury could have been caused by
biting. But in cross-examination he admitted that on
02/09/2008 he could not opine that the injury was caused due
to biting.
The injury certificate recording the examination of
Appellant No.1 carried out on 02/09/2008 is produced on
record at Ex.76.
16. Interestingly, the prosecution examined P.W.12 Dr. Kapil
Patil, who had also examined the Appellant No.1 Rakesh on
17/08/2008 at the request of the police. That medical certificate
is produced on record at Ex.80. That medical certificate shows
that the Appellant No.1 Rakesh had suffered 9 injuries in the
nature of abrasions on fingers of both hands, right wrist, near
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right eye, left rib and left ankle. The medical certificate shows
that those injuries were caused possibly between 24 to 70 hours
from the examination conducted on 17/08/2008. The injuries
were apparently caused by hard and blunt object. The police had
sought opinion of this Doctor regarding those injuries suffered
by the Appellant No.1. Significantly, at that stage, the Appellant
No.1 Rakesh was mentioned as ‘witness’ in the requisition letter
sent by police on 17/08/2008.
In the cross-examination, the stand taken by the
Appellant No.1 was that the injuries could have been caused in a
vehicular accident. This suggestion was accepted affirmatively
by P.W.12 Dr. Kapil Patil.
17. The post-mortem notes of the other three deceased
were produced on record at Ex.125, Ex.126 and Ex.127. Those
documents were admitted by the defence. However, these notes
do not throw light on the prosecution case, as the cause of death
could not be ascertained because the bodies were highly
decomposed.
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18. The C.A. reports were produced on record. However,
there were no Exhibit numbers to the C.A. Reports. One of the
C.A. reports mentions that the pieces of wires recovered at the
instance of the accused No.3 and those on the dead bodies were
similar and they were parts of each other. However, the
Panchanama Ex.95 itself mentions that those pieces of wires
were simply kept in front of Panchas when they were seized.
There is nothing to show that those pieces of wires were actually
tied around the dead bodies which were recovered. In any case,
both these Panchas Krishna Bich and Joseph Dandekar had
turned hostile. Therefore, these C.A. reports do not really help
the prosecution case.
The other main evidence in this case was in the form of
police witnesses and the learned J.M.F.C., who had recorded
confession of the accused No.2.
19. P.W.13 P.I. Siddharth Gade was the first Investigating
Officer. He has deposed about the Accidental Death Report dated
13/08/2008 recorded at Gholwad Police Station in respect of
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Vanasubai’s death. He had carried out the Spot Panchanma in
her house and had sent the dead body for post-mortem
examination. He had sent the letters for collecting Call Data
Record of certain mobile phone numbers and based on that
analysis arrested the accused No.1 Rakesh on 29/08/2008. He
seized the mobile phone handset and SIM card of one Ghanshyam
Harijan, who subsequently absconded. His further deposition is
quite important in the context of the present case and therefore
it is produced as is recorded by the learned Trial Judge.
“16. Subsequently on 31/8/2008 when Rakesh
Dandekar was in my custody he made voluntary
statement stating that he is ready to discover the dead
bodies of three persons named Sanju Raman Dandekar,
Sadhana Raman Dandekar and Rekha Sanju Dandekar.
Hence, I recorded his voluntary statement in presence
of panch witnesses. Now I am shown the said voluntary
statement recorded. It bears my signature, signature or
Rakesh and the panch witnesses. The voluntary
statement is marked Exh.91.
17. In pursuance of the voluntary statement he
carried us to Jambhulgaon, Waghmarapada, in the
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crime and thereafter he carried us to the spot where
the dead bodies were dumped and he carried us
towards a abandoned safety tank of railway colony. He
after going to the said septic tank showed us the three
bodies which were dumped in the said septic tank. The
said septic tank were having two compartments and
two dead bodies were in one compartment and
another dead body was in another compartment. We
fetched the dead bodies out of the said septic tank in
presence of panch witnesses and with the help of
persons present over there. After the dead bodies were
brought on the ground, Vansha Govind Kharpade
identified the dead bodies to be of the deceased
persons by naming them. Thereafter I prepared the
discovery panchanama and obtained signatures of the
panch witnesses over the discovery panchanama and
also obtained signatures of the accused and I have also
signed below it. Now I am shown the said discovery
panchanama. It is marked Exh.91-A.”
He further deposed that the dead bodies were tied with
a nylon rope and iron wires and those were also seized under
the panchanama.
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20. In the cross-examination he referred to the information
given by Kalia Chikoowala regarding the Will executed by
Hasam Khan in respect of his property. Vanasubai was not
willing to give that property to Mahadu i.e. the father of the
Appellant No.1. He admitted that foul smell started emanating
after the dead bodies were fetched out of the septic tank. He
also admitted that he did not record statements of any of the
residents of railway colony. Interestingly, he has further deposed
that he was not aware as to whether public was aware before
31/08/2008 that there were dead bodies in the septic tank. He
denied the suggestion that the railway colony residents had
informed him about the foul smell. He denied the suggestion
that since he could not nab the real culprit, he falsely implicated
the Appellant No.1 Rakesh.
21. From the record it appears that, the FIR was lodged on
16/08/2008 by PI Siddharth Gade regarding death of Vanasubai,
which was registered vide C.R. No.I-29/2008 at Gholwad Police
Station, against unknown persons.
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22. P.W.15 ACP Mohammad Makandar was the second
Investigating Officer, who investigated the offence from
01/09/2009. He recorded statements of some of the witnesses.
He had seized a motorcycle on 03/09/2008. The wooden sticks
and the clothes worn by the Appellant No.1 Rakesh were
recovered on 03/09/2008. Those two wooden sticks and the
clothes were recovered kept on one tree. However, this witness
P.W.15 has not stated about the exact words used by the
Appellant No.1 Rakesh regarding the authorship of concealment
and the place where those articles i.e. the two wooden sticks
and clothes were kept by him on the tree. This aspect is
important because the Panchas have turned hostile and the
investigating officer’s evidence will have to be scrutinized
carefully on the basis of the law laid down by the Hon’ble
Supreme Court in this behalf.
23. Rest of the deposition of this witness is in respect of the
recovery at the instance of the accused Seema, which is not
material because she is already acquitted. He had taken steps to
conduct DNA test of the dead bodies to establish that those dead
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bodies were of the three deceased. However, the DNA report is
not on record. He has further deposed that he had written a
letter to the learned J.M.F.C.. Dahanu to record statement of the
Appellant No.2 u/s 164 of Cr.P.C. After that, the statement was
recorded by the learned J.M.F.C. Dahanu on 18/09/2008. The
Will and the revenue record were produced on record at Ex.111.
The said Will mentions that Hasam had bequeathed the
property to Vanasubai absolutely. However, it was mentioned
that Vanasubai would not have right to transfer the immovable
properties and she was to have only a life interest in the
properties. After her death, the property was to vest absolutely
in the name of the Appellant No.1 Rakesh and his sister Sunita
unconditionally.
Thus, in any case, the Appellant No.1 Rakesh was the
beneficiary under the Will. The deceased Vanasubai had only an
interest till her life.
He had filed the charge-sheet after completion of the
investigation.
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24. P.W.19 PI Sunil Vadke had assisted P.W.15 ACP
Makandar in the investigation. Under his supervision, the mobile
phone was recovered from the accused Sonu. He had recorded
statements of some other witnesses. He had obtained C.A.
Reports.
25. The last witness i.e. P.W.20 was J.M.F.C. Sabina Altaf
Maliq/Sabina Mustafa Shaikh. She was posted at Dahanu at the
relevant time i.e. on 17/09/2008. She had stated that, on that
day, she received a letter from P.W.15 ACP Makandar requesting
her to record the confessional statement of the Appellant No.2
Mahendra in connection with the said offence i.e.
C.R.No.21/2008 of Gholwad police station. She further deposed
that she put some questions to the Appellant No.2 on
17/09/2008 and recorded his answers. She gave 24 hours
period for reflection and directed the police to produce him on
18/09/2008. Then she sent him to the Magisterial custody. On
18/09/2008, the Appellant No.2 was produced before her at
05.15 p.m. She ensured that there was no policeman in the
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Court Room. She again asked the Appellant No.2 whether he
wanted to give any voluntary statement. He showed his
willingness to make the voluntary statement. On her questioning
he told her that period of 24 hours was sufficient for reflection.
She made him aware that he was not bound to give any
statement and whatever he was to tell, could be used against
him. She asked him whether anybody had threatened him or
had given him any promise. He denied regarding the same. She
was then satisfied that he was giving statement out of his free
will. She then recorded the confession. She had given another
certificate below the recorded statement that she had explained
to him that he was not bound to make the confession and that if
he did so, the confession might be used against him. She gave a
certificate that the confession was voluntarily given. She further
recorded in the certificate that the statement was read over to
the Appellant No.2 and he had admitted it to be correct.
In the cross-examination, she deposed that she was
aware of the guidelines mentioned in the Criminal Manual
regarding recording of the confession. She further deposed that
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the Appellant No.2 was a tribal and was illiterate. It was further
admitted by her that the language of the Court at the time when
she recorded the statement was Marathi. She had noticed that
the Appellant No.2 was not knowing English. But she found it
convenient to record the confession in English and therefore she
had recorded it in English. She admitted that she was aware at
the time of her deposition that the confession should bear thumb
impression or signature of the person making it. However, at the
time when she recorded it, she did not know that. Therefore,
there is no thumb impression of the Appellant No.2 on the
confessional statement. She also stated that she was aware that
it was necessary to state in the certificate that she had explained
contents of the recording to the Appellant in vernacular.
26. The gist of the confessional statement was that he had
gone to the Appellant’s house at 06.00 O’Clock. He had
consumed liquor. The other accused i.e. Ghanshyam, Sundaram
and Seema were present there. Then they went to Vanasubai’s
house, where Sanju, Sadhana and Rekha were present along
with Vanasubai. Ghanshyam committed murder of Vanasubai by
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throttling. The Appellant No.2 himself was simply standing
there. After that, Rakesh and Sundaram started beating Sanju.
When Sadhana and Rekha came to save him they were also
beaten. The accused tied Sanju, Sadhana and Rekha with a rope
to a tree. They waited for about ½ hour. Then Rakesh sat on the
motorcycle driven by Ghanshyam. Sanju and Sadhana were
made to sit on the same motorcycle between Ghanshyam and
the Appellant No.1 Rakesh. Sundaram walked alongwith Rekha.
The Appellant No.2 himself walked behind Rekha. They were
taken to a Nala, near the railway station at Gholwad. The water
was knee high. The accused forced the heads of all the three in
the water. Because of that all the three died. Then the Appellant
No.2 and Ghanshyam carried Sanju to the septic tank. It was
open and the dead bodies were dumped in that septic tank. After
that all the accused returned back. On 15/08/2008, the accused
Sonu gave Rs.2,000/- to the Appellant No.2 and promised to pay
Rs.10,000/- more.
The certificate was appended to this confessional
statement as mentioned earlier.
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27. This in short is the evidence led by the prosecution.
28. Learned counsel for the Appellants submitted that
there is no direct evidence against the Appellants. The
circumstantial evidence is extremely weak. There was no motive
to commit murder of any of the deceased. The Appellant Rakesh
was a beneficiary under the Will executed by Hasam Khan and
therefore there was no reason to commit murder of Vanasubai
for the property. In any case, there was absolutely no reason to
commit murder of Sanjay, Sadhana and Rekha. The other co-
accused Seema and Sonu are acquitted on the basis of similar
evidence. Therefore, the benefit should have been extended to
the present Appellants as well. The only evidence against the
Appellant No.1 Rakesh is about the two Panchanamas. One of
them was in respect of discovery of dead bodies at his instance
and the other was in respect of the recovery of two wooden
sticks and his clothes kept on a tree. However, both these
Panchanamas were carried out in presence of the two Panchas
who were declared hostile. Therefore, the evidence in respect of
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these circumstances is only through the evidence of
Investigating Officer, which is highly unreliable and therefore
cannot form basis for conviction. The dead bodies were found in
a septic tank near railway colony. Dead bodies were found after
quite some time. They were highly decomposed. It is impossible
that the residents could not have noticed the foul smell
emanating from the septic tank. It was quite probable that
somebody from the colony had informed the police and thus the
dead bodies were recovered. The police had not recorded the
statements of any of the residents of railway colony and
therefore adverse inference needs to be drawn.
29. He further submitted that similarly, there is hardly any
evidence against the Appellant No.2. The only piece of evidence
against him is in the form of confessional statement. However,
the required mandatory procedure for recording confessional
statement was not followed by the learned J.M.F.C. Therefore,
the confessional statement loses its evidentiary value. The maker
of the confession has not attributed any significant role to
himself and therefore it can hardly be a confessional statement.
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30. The defence of the Appellant No.2 was that he was told
by the police to give the confessional statement on the promise
of releasing from custody, is quite probable. He was unable to
understand English. He was not explained the contents in his
language. The confessional statement does not bear his
signature. Learned J.M.F.C. has not stated that he was given
sufficient warning that the statement could be used against him
as evidence. Therefore, this confession cannot form basis of
conviction.
31. There is no other incriminating evidence against either
of these Appellants. The C.D.R. are not material because they do
not take the prosecution any further. In any case the description
in the confessional statement indicates that the incident could
not have been taken place in the manner it was described. It was
highly improbable that two of the deceased would travel on the
motorcycle driven by Ghanshyam while Rakesh was also sitting
on the motorcycle. It was even more improbable that Rekha
walked more than 1 km towards Nala without raising any shouts
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or without struggling. There is no linking evidence to show as to
how the dead bodies were carried to the septic tank. All this has
raised serious doubt about the prosecution case.
32. Learned APP on the other hand, submitted that there
are strong circumstances against both the accused. The
Appellant No.1 Rakesh had strong motive to commit murder of
Vanasubai because he could have got the property only after her
death. He had to eliminate the other three deceased because
they were staying with Vanasubai. Therefore, it was quite
natural for him to have conspired with the other accused to
commit murder of Vanasubai. She submitted that the most
incriminating piece of evidence against the Appellant No.1
Rakesh is discovery of dead bodies at his instance. It was only at
the instance of the Appellant No.1 Rakesh that the dead bodies
could be discovered. This is a strong evidence against him. She
submitted that though the Panchas of this Panchanama has not
supported the prosecution case, the evidence of the police officer
is admissible and therefore, conviction can be based on his
evidence. She submitted that apart from discovery of the dead
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bodies, there is another circumstance of recovery of the
Appellant No.1’s clothes and two sticks which were kept on a
tree by him. Both these circumstances along with motive form a
complete chain against the Appellant No.1.
33. As far as the Appellant No.2 Mahendra is concerned,
his confessional statement can be read in evidence. It is not an
exculpatory statement because he had played an important role
of carrying the dead bodies from the spot where the murder was
committed upto to the septic tank where the dead bodies were
thrown. There is no reason to discard the testimony of the
learned J.M.F.C. The confessional statement is corroborated by
the evidence against the Appellant No.1 and therefore taking all
these circumstances together, the prosecution has successfully
proved its case against both the Appellants beyond reasonable
doubt.
34. We have considered these submissions. As referred to
by both the learned counsel the major pieces of evidence against
the Appellant No.1 Rakesh are the two important Panchanamas.
The first is about discovery of the dead bodies from the septic
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tank near the railway colony at Gholwad and the other is about
recovery of the two sticks and his clothes kept on a tree.
Importantly, the Panchas to both these Panchanamas have
turned hostile and have not supported the prosecution case. In
this context, the only evidence available with the prosecution is
that of the Investigating Officer P.W.13 P.I. Gade. We have
already reproduced the evidence given by him in his own words
in that behalf. Therefore, it will have to be seen as to the legal
implication of such statement. In this context we are seeking
guidance from the judgments of the Hon’ble Supreme Court in
the following two cases :
(i) Ramanand Alias Nandlal Bharti Vs. State of
Uttar Pradesh, as reported in (2023) 16
Supreme Court Cases 510.
(ii) Sadashiv Dhondiram Patil Vs. State of
Maharashtra, as reported in (2025) 4 Supreme
Court Cases 275.
35. The relevant portion from Ramanand‘s case is in
paragraph Nos.57 to 59 which read thus:
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“57. The reason why we are not ready or rather
reluctant to accept the evidence of discovery is that
the investigating officer in his oral evidence has not
said about the exact words uttered by the accused
at the police station. The second reason to discard
the evidence of discovery is that the investigating
officer has failed to prove the contents of the
discovery panchnama. The third reason to discard
the evidence is that even if the entire oral evidence
of the investigating officer is accepted as it is, what
is lacking is the authorship of concealment. The
fourth reason to discard the evidence of the
discovery is that although one of the panch
witnesses PW2, Chhatarpal Raidas was examined by
the prosecution in the course of the trial, yet has not
said a word that he had also acted as a panch
witness for the purpose of discovery of the weapon
of offence and the blood stained clothes. The
second panch witness namely Pratap though
available was not examined by the prosecution for
some reason. Therefore, we are now left with the
evidence of the investigating officer so far as the
discovery of the weapon of offence and the blood
stained clothes as one of the incriminating pieces of
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witnesses to the discovery panchnama are not
examined or if no witness was present at the time of
discovery or if no person had agreed to affix his
signature on the document, it is difficult to lay
down, as a proposition of law, that the document so
prepared by the police officer must be treated as
tainted and the discovery evidence unreliable. In
such circumstances, the Court has to consider the
evidence of the investigating officer who deposed to
the fact of discovery based on the statement elicited
from the accused on its own worth.
58. Applying the aforesaid principle of law, we find the
evidence of the investigating officer not only
unreliable but we can go to the extent to saying that
the same does not constitute legal evidence.
59. The requirement of law that needs to be fulfilled
before accepting the evidence of discovery is that by
proving the contents of the panchnama. The
investigating officer in his deposition is obliged in
law to prove the contents of the panchnama and it
is only if the investigating officer has successfully
proved the contents of the discovery panchnama in
accordance with law, then in that case the
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evidence. In the present case, what we have noticed
from the oral evidence of the investigating officer,
PW7, Yogendra Singh is that he has not proved the
contents of the discovery panchnama and all that he
has deposed is that as the accused expressed his
willingness to point out the weapon of offence the
same was discovered under a panchnama. We have
minutely gone through this part of the evidence of
the investigating officer and are convinced that by
no stretch of imagination it could be said that the
investigating officer has proved the contents of the
discovery panchnama (Exh.5). There is a reason
why we are laying emphasis on proving the
contents of the panchnama at the end of the
investigating officer, more particularly when the
independent panch witnesses though examined yet
have not said a word about such discovery or
turned hostile and have not supported the
prosecution. In order to enable the Court to safely
rely upon the evidence of the investigating officer, it
is necessary that the exact words attributed to an
accused, as statement made by him, be brought on
record and, for this purpose the investigating officer
is obliged to depose in his evidence the exact
statement and not by merely saying that a discovery
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place.”
36. Similarly, the relevant portion in Sadashiv‘s case is in
paragraph Nos.42 to 45, which are as follows :
“42. In this regard, we may only say that panch
witnesses have not supported the case of the
prosecution. They failed to prove the contents of the
discovery panchnama.
43. If the panch witnesses are declared hostile then the
prosecution is obliged to prove the contents of the
said 17 discovery panchnama through the evidence
of the Investigating Officer. The question is how is
the I.O. expected to prove the contents of the
panchnama.
44. The position of law in this regard is very clear. Just
because the panch witnesses have turned hostile
does not mean that such discovery should be
disbelieved. From the plain reading of the oral
evidence of the Investigating Officer if the discovery
is believable and inspires confidence, the same can
definitely be looked into as one of the incriminating
pieces of evidence against the accused.
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45. However, unfortunately in the case on hand, all that
the I.O. did was to depose that he had drawn the
panchnama and in the end identified his signature
on the same and that of the panch witnesses. This
cannot be said to be proving the contents of the
panchnama in accordance with law. In such
circumstances, the circumstance of discovery also
cannot be relied upon.”
37. In particular, in Ramanand‘s case the Hon’ble Supreme
Court has observed that the Investigating Officer had not stated
about the exact words uttered by the accused at the police
station in that case. Even if the entire evidence of the
Investigating Officer was accepted as it is, what was lacking was
the authorship of concealment.
38. In the present case before us, as can be seen from the
above discussion, the Investigating Officer has failed to
reproduce the exact words uttered by the accused when the
Investigating Officer deposed before the Court. Most
importantly, he has not stated in his substantive evidence about
the authorship of concealment. It was observed by the Hon’ble
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Supreme Court that Investigating Officer was obliged to depose
in his evidence the exact statement and not by merely saying
that the discovery panchnama was drawn as the accused was
willing to take out those articles from a particular place. These
observations are clearly applicable to the evidence led by the
prosecution in the present case. This discussion is applicable to
both the Panchanamas, i.e. the discovery of the dead bodies and
the recovery of two wooden sticks and clothes of the accused
No.1 Rakesh.
39. Another significant aspect in this case is about the
injuries suffered by the Appellant No.1. The record shows that
the police had sent the Appellant No.1 for medical examination
on 17/08/2008. He had suffered many abrasions. At that point
of time, the Appellant No.1 was treated as a witness which can
be seen from the medical certificate. Then there is no
explanation as to what transpired to change his status as a
witness to an accused. Absolutely, no explanation is offered. All
these factors cumulatively have resulted in raising serious doubt
about the prosecution case in respect of evidence given by the
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Investigating Officers. Since there is no independent evidence in
the form of the Panchas in respect of recovery and discovery
Panchanamas, we do not feel it safe to rely only on the evidence
of the Investigating Officers in that behalf in this particular case.
40. It also must be noted that the Investigating Officer had
not recorded statements of any of the residents of the said
railway colony at Gholwad. The dead bodies were taken out
from a septic tank from that colony. Therefore, the independent
witnesses were easily available. But the prosecution has not
produced any such evidence and none of the residents of the
said railway colony is examined at the time of trial. Even their
statements are not recorded during the investigation. All this has
raised serious doubt about the discovery of the dead bodies at
the instance of the Appellant No.1 and by the same reasoning
even the recovery of clothes and sticks does not inspire
confidence.
41. As far as the confessional statement of the Appellant
No.2 is concerned, we find that there are major infirmities in
that evidence as well.
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42. In this context section 164(2), 164(4) and 281 of
Cr.P.C. are important which read thus;
“164 : Recording of confessions and statements :
(1) ......
(2) The Magistrate shall, before recording any
such confession, explain to the person making
it that he is not bound to make a confession
and that, if he does so, it may be used as
evidence against him; and the Magistrate
shall not record any such confession unless,
upon questioning the person making it, he has
reason to believe that it is being made
voluntarily.
(3) ......
(4) Any such confession shall be recorded in the
manner provided in section 281 for recording
the examination of an accused person and
shall be signed by the person making the
confession; and the Magistrate shall make a::: Uploaded on – 18/06/2025 ::: Downloaded on – 21/06/2025 19:35:33 :::
40 / 48 [email protected]memorandum at the foot of such record to the
following effect:–
“I have explained to (name) that he is not
bound to make a confession and that, if he
does so, any confession he may make may be
used as evidence against him and I believe
that this confession was voluntarily made It
was taken in my presence and hearing, and
was read over to the person making it and
admitted by him to be correct, and it contains
a full and true account of the statement made
by him
(Signed) AB
Magistrate.
281 – Record of examination of accused.
(1) Whenever the accused is examined by a
Metropolitan Magistrate, the Magistrate shall
make a memorandum of the substance of the
examination of the accused in the language of
the Court and such memorandum shall be
signed by the Magistrate and shall form part
of the record.
(2) Whenever the accused is examined by any
Magistrate other than a Metropolitan
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Magistrate, or by a Court of Session, the
whole of such examination, including every
question put to him and every answer given
by him, shall be recorded in full by the
Presiding Judge or Magistrate himself or
where he is unable to do so owing to a
physical or other incapacity, under his
direction and superintendence by an officer of
the Court appointed by him in this behalf.
(3) The record shall, if practicable, be in the
language in which the accused is examined or,
if that is not practicable in the language of the
Court.
(4) The record shall be shown or read to the
accused, or, if he does not understand the
language in which it is written, shall be
interpreted to him in a language which he
understands, and he shall be at liberty to
explain or add to his answers.
(5) It shall thereafter be signed by the accused
and by the Magistrate or Presiding Judge,
who shall certify under his own hand that the
examination was taken in his presence and
hearing and that the record contains a full::: Uploaded on – 18/06/2025 ::: Downloaded on – 21/06/2025 19:35:33 :::
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the accused.
(6) Nothing in this section shall be deemed to
apply to the examination of an accused
person in the course of a summary trial.
43. The concerned provisions in the criminal manual can
be found in Chapter 1, clauses 18(vi) and (vii).
The criminal manual also lays down the procedure for
recording the confessional statement. One of the important
requirements of this procedure is that learned Magistrate is duty
bound to warn the maker of the confession that he is not bound
to give confession and if he gives the confession, it can be used
against him in evidence. In the present case, though the form
recorded by the learned Magistrate on 17/09/2008 mentions
that she had so warned the maker. In her substantive deposition,
learned Magistrate has nowhere stated that the Appellant No.2
was warned on 17/09/2008. She has deposed in her deposition
that on 18/09/2008, when he was again produced before her,
she gave such warning. This is an important lapse, which
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prejudicially affects the Appellant No.2. We considered the
substantive piece of evidence of the P.W.20 in this behalf, in
which she had mentioned about that warning given on
18/09/2008. This is important because the maker should be
aware of the consequences of making the confession and for that
exact reason he is to be given a period of atleast 24 hours to
think about all these consequences. In this particular case, this
aspect is missing.
44. Another serious lacuna in the procedure for recording
of the confession is that the confessional statement does not
bear thumb impression or the signature of the Appellant No.2.
The third important lapse is that though the certificate mentions
that the statement was read over to the Appellant No.2, it can be
seen that the statement was recorded in English. P.W.20 has
admitted that the Appellant No.2 was a tribal and illiterate. He
was not knowing English language and therefore merely reading
over the statement to him does not show that it was explained to
him in a language known to him. There is neither such
endorsement on the certificate nor has she stated in her
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deposition that the statement was explained to him in the
language which was known to him.
In the cross-examination she has admitted that she was
aware that it was necessary to state in the certificate that the
contents of the statement were explained to the maker in
vernacular. This particular aspect is missing from the evidence.
All these are important aspects which prejudicially affect the
Appellant No.2. In this context, a reference can be made to the
observations of the Hon’ble Supreme Court in the case of
Dagadu and Others Vs. State of Maharashtra , as reported in
1977 Cr.L.J. 1206. Paragraph No.50 in that context is important,
which reads thus;
“50. Learned counsel appearing for the State is right
that the failure to comply with s. 164(3), Criminal
Procedure Code, or with the High Court Circulars
will not render the confessions inadmissible in
evidence. Relevancy and admissibility of evidence
have to be determined in accordance with the
provisions of the Evidence Act. Section 29 of that
Act lays down that if a confession is otherwise.
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relevant it does not become irrelevant merely
because, inter alia, the accused was not warned
that he was not bound to make it and the evidence
of it might be given against him. If, therefore, a
confession does not violate any one of the
conditions operative under ss. 24 to 28 of the
Evidence Act, it will be admissible in evidence. But
as in respect of any other admissible evidence, oral
or documentary, so in the case of confessional
statements which are otherwise admissible, the
Court has still to consider whether they can be
accepted as true.. If the facts and circumstances
surrounding the making of a confession appear to
cast a doubt on the veracity or voluntariness of the
confession, the Court may refuse to act upon the
confession even if it is admissible in evidence. That
shows how important it is for the Magistrate who.
records the confession to satisfy himself by
appropriate questioning of the confessing accused,
that the confession is true and voluntary. A strict
and faithful compliance with s. 164 of the Code
and with the instructions issued by the High Court
affords in a Large measure the guarantee that the
confession is voluntary. The failure to observe the
safeguards prescribed therein are in practice
calculated to impair the evidentiary value of the
confessional statements.”
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45. From these observations and from the record of this
case we are of the opinion that the failure to observe safeguards
prescribed in these provisions has diminished the evidentiary
value of the confessional statement purportedly made by the
Appellant No.2. P.W.15 ACP Makandar has not explained as to
how the Appellant No.2 expressed his desire to give confession.
That link is missing from the evidence. Thus, if the circumstance
of confessional statement of the Appellant No.2 is not
established then, there is no other evidence against him. As
discussed, we do not find it safe to rely on this confessional
statement.
46. As a result of the above discussion, in our opinion, the
prosecution has failed to prove its case against both the
Appellants beyond reasonable doubt. On the other hand, the
defence taken by the Appellant appears to be probable in view of
the fact that the Appellant No.1 Rakesh was a beneficiary of the
property which was originally owned by Vanasubai’s husband
Hasam. The prosecution has also kept away Kalia, who was the
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first person to whom P.W.1 had informed about the incident.
Considering all these aspects, the Appellants will have to be
given benefit of doubt.
47. Hence, the following order :
ORDER
(i) The Appeal is allowed.
(ii) The Judgment and Order dated 02/04/2013
passed by the Additional Sessions Judge,
Palghar, in Sessions Case No.05/2009, convicting
and sentencing the Appellants, is set aside.
(iii) The Appellants are in custody. They shall be
released forthwith if not required in any other
case.
(iv) Before their release, the Appellants shall execute
P.R. Bonds in the sum of Rs.25,000/- each, u/s
481 of the Bhartiya Nagrik Suraksha Sanhita
(BNSS) (correspondingly u/s 437-A of Cr.P.C.)
for their appearance in case the Appeal is
preferred.
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(v) Fine amount if deposited by the Appellants, be
refunded to them.
(vi) With the disposal of the Appeal the connected
applications are also disposed of.
(SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)
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