Santosh Baccharam Patil vs The State Of Maharashtra And Anr.
2002 Latest Caselaw 221 Bom

JUDGMENT

R.K. Batta, J.

1. These appeals arise out of Sessions Case No. 87 of 1995 (Crime No. 27/94) which has been decided by the learned Additional Sessions Judge, Sangli vide judgment dated 8.1.1998. The prosecution had charged five accused for offences under Sections 302 and 364 read with 34 of the I.P.C. Section 201 read with 34 of the I.P.C. Section 401 read with 34 and 109 of the I.P.C. and Section 120-B of the I.P.C.

2. The prosecution had in all examined 21 witnesses in support of the said charges. The learned Additional Sessions Judge, Sangli vide judgment dated 8.1.1998 held accused No. 1 Pramod Akaram Shinde, accused No. 2 Santosh B. Patil and Accused No. 3 Dattatraya Manohar Toraskar guilty for the offences punishable under Section 120-B read with 302 of the I.P.C. Section 364 read with 34 of the I.P.C. Section 302 read with 34 of the I.P.C. and Section 201 read with 34 of the I.P.C. The said three accused have been sentenced to various terms of imprisonment and fine. The substantive sentences have been ordered to run concurrently. Out of the fine, an amount of Rs. 50,000/- has been ordered to be given to the wife of the deceased. The period during which the said accused were in custody has been ordered to be set off under Section 428 of the Cr.P.C. Accused No. 4 Pramod Palange and accused No. 5 Akaram Ganpat Shinde were acquitted of all the charges. The appellants in Criminal Appeal No. 308 of 1998 are original accused Nos. 2 and 3 and shall hereinafter be referred as accused Nos. 2 and 3. The appellant in Criminal Appeal No. 406 of 1998 is original accused No. 1 and shall hereinafter be referred as accused No. 1. All the said accused challenge their conviction and sentences imposed on them in these appeals. The appeals were heard together and it is proposed to dispose of the two appeals by common judgment.

3. The prosecution case, in brief, is that deceased Vasant Mali was serving at Dubai and in the month of May, 1994 he had come to India on leave. On 2nd of June, 1994 the deceased Vasant went to his Company's shop at Pune for going to Dubai and obtained the ticket for going to Dubai on 5.6.1994. From Pune he came to the house of his brother-in-law Sanjay Mali at Yedenipani. On 4.6.1994 he took dinner with his brother-in-law Sanjay Mali, then went to Shirol factory bus stop. At that time he was carrying a briefcase of black colour containing clothes and foreign currency notes etc. He was wearing a reddish check shirt and blue pant. At the bus stop of Shirol, one tanker was stopped by the deceased and his brother-in-law who had accompanied him to Shirol bus stop and the deceased sat in the cabin of the said tanker for going upto Jaysingpur. At Jaysingpur deceased got down from the said tanker and sat in a truck for going towards Sangli. From Sangli the deceased had to go to Pune.

4. The prosecution case further is that at Sangli bus stop he was accosted by accused No. 1 Pramod Shinde who told him that he was going to Pune along with other passengers and that he could come along with them. The bus fare was agreed to be charged. The deceased sat on the back seat of the car on which one of the co-accused Dattatraya Toraskar was sitting and the other co-accused Santosh Patil was on the front seat. All of them left Sangli at about 9 p.m.. When they reached at Hatkanangle, the deceased had already slept in the car. After going to some distance the car was turned towards the road leading to Itakare village and after passing one km. distance of Itakare road, the vehicle was stopped on the left side of the road. The deceased was still asleep on the back side. Accused No. 1 Pramod Shinde told accused Santosh Patil to alight from the said seat and sit near the right side of the deceased and accordingly accused Santosh Patil went and sat on the right side of the deceased, the other co-accused Dattatraya Toraskar was already sitting at the left side of the deceased. Both the accused Dattatraya Toraskar and Santosh Patil caught hold of the deceased, accused No. 1 Pramod Shinde took out a gupti and while sitting on the front seat i.e., of driver's seat gave three blows of Gupti on the chest of the deceased. Thereafter the deceased was dragged out of the vehicle and was thrown on the left side of the road. Two currency notes of Rs. 500/- each were taken out from his pocket by co-accused Santosh Patil and handed over to accused No. 1 Pramod Shinde. All the accused are then said to have gone to dhaba on the way where they took food. The brief case of the deceased was opened, in which 6 foreign currency notes were found, besides clothes. The clothes were thrown in the flowing water of panchganga river and the empty brief case was kept in the vehicle. The said brief case was thrown away after two days by accused No. 1 Pramod Shinde. The dead body was noticed by Sarjerao Patil P.W. 1 while he was travelling in a autorickshaw from village Aitwade to Yedenipani. While he was proceeding in the ricksaw and crossed national highway by about one km. and were proceeding towards the village, he saw by the side of the road in a bush a male lying with blood on his person. The dead body was having reddish coloured shirt and bluish coloured trouser and a leather belt. He lodged a report with the police. In the cross-examination he stated that the road by which the dead body was lying is a busy road and village Aitwade is about one and a half to two km. away from the national highway. The distance between the approach road coming to national highway from Yedenipani to Aitwade is about one km. The inquest panchanama of the dead body was conducted by the police. Photographs of the dead body were taken at the spot. News with photograph was given in the news paper and the photograph was circulated in the adjoining villages by beating of drum in order to ascertain the identification of the dead person. After about a month of the incident, P.W. 5 Sanjay Ganpati Mali, brother-in-law of the deceased came to know that the deceased had not reached Dubai. He therefore approached the police and identified the photograph of the deceased as also the clothes worn by the deceased when he left in order to go to Sangli. During the course of the investigation the police recovered gupti at the instance of the accused No. 1 Pramod Shinde under Section 27 of the Indian Evidence Act, the rexin and the mat of the car having blood stains alleged to have been used in the crime were sent to C.A. In the identification parade the accused were identified.

5. The Trial Court after assessing the evidence on record in detail came to the conclusion that the confession made by the accused No. 1 Pramod Shinde before P.W. 15 Shivayya Gurulingayya Nandimath S.J.M. was not only voluntary but true as also the same was corroborated by various circumstances on record. He therefore held accused No. 1 Pramod Shinde guilty of the offences as stated above. Insofar as co-accused No. 2 Santosh Patil and co-accused No. 3 Dattatraya Toraskar are concerned the Trial Court was of the view that the retracted confessional statement made by accused No. 1 Pramod Shinde was by itself sufficient to hold accused No. 2 Santosh and accused No. 3 Dattatraya guilty along with accused No. 1 Pramod Shinde for the offences. In addition he found that the confessional statement had been corroborated by witnesses and the circumstances on record. He therefore held accused No. 2 Santosh and accused No. 3 Dattatraya also guilty for the offences as stated above.

6. The learned Advocate Mr. Khandeparkar argued Appeal No. 406 of 1998 on behalf of the accused No. 1 Pramod Shinde. The learned Advocate Mr. Nitin Pradhan has argued Appeal No. 308 of 1998 on behalf of accused No. 2 Santosh Patil and accused No. 3 Dattatraya Toraskar. The learned A.P.P., argued on behalf of the State.

7. The learned Advocate for accused No. 1 Pramod Shinde has argued before us that the confession of accused No. 1 Pramod Shinde has been recorded after he was in prolonged custody and as such his confession cannot be considered as voluntary. In this connection it is pointed out that the accused No. 1 Pramod was in custody from 12th July, 1994 till 8.9.1994 when he was produced for the purpose of confessional statement and he was detained in various criminal cases during the said period and that time given for reflection that is 24 hours, in the facts and circumstances cannot be considered sufficient so as to hold that the confession is voluntary. In this connection reliance has been placed by the learned Advocate for the accused No. 1 Pramod Shinde, on Nathu v. State of U.P. , which lays down that prolonged custody immediately preceding the making of the confession is sufficient unless it is properly explained to stamp it as involuntary.

8. The next submission advanced by the learned Advocate for the accused No. 1 Pramod Shinde is that the confessional statement of accused No. 1 Pramod Shinde does not get corroboration on material particulars from any evidence on record and as such the conviction of accused No. 1 Pramod Shinde is liable to be set aside. In this connection he has pointed out that though in the confessional statement, accused No. 1 Pramod Shinde is said to have been stated that the deceased was wearing white shirt and black pant, but a number of witnesses examined by the prosecution have stated that on the person of the deceased there was reddish coloured shirt and bluish coloured pant. He also urged that there is discrepancy of timing of incident as stated in the confessional statement vis-a-vis in the evidence on record; that there is discrepancy relating to the contents of the brief case as stated in the confession and what was recovered as also the evidence of the witnesses. It is also pointed out that the washing of the vehicle is not corroborated by any witness; that according to the confessional statement the suit case (not briefcase) was thrown in the university ground, but investigating agency has recovered the same from the house of Pramod Palange and that in the confessional statement he has stated that he had sold all the foreign currency, but one foreign currency was found inside the suit case, which was recovered from the co-accused Pramod Palange who is acquitted, it was also pointed out by the learned Advocate for the accused No. 1 Pramod Shinde that the gupti in question is said to have been used in the two cases and the blood was also found on the gupti, but the same was not shown to Dr. P.W. 6 Dr. Dilip Shamrao Savant. It was also pointed out by him that dhaba owner where the accused are said to have taken food does not prove the identity of the accused. After placing reliance on Kashmira Singh v. State of M.P. , it is urged that the confessional statement of accused No. 1 Pramod Shinde does not get sufficient corroboration from other evidence on record and hence the conviction of accused No. 1 Pramod Shinde is liable to be set aside.

9. The learned Advocate Mr. Nitin Pradhan has argued on behalf of accused No. 2 Santosh Patil and accused No. 3 Dattatraya Toraskar. He urged before us that the evidence as against accused No. 2 Santosh and accused No. 3 Dattatraya is retracted confessional statement of the co-accused, which cannot be used against them unless there is other independent evidence to consider their involvement in the crime, which is not there at all. The evidence in this case being circumstantial in nature and on the basis of material evidence produced before the Court, conviction of accused cannot be sustained. He took us through the evidence of various witnesses including P.W. 1 Sarjerao, P.W. 5 Sanjay Ganapati Mali, P.W. 8. Mohammad Mahamuddin Kothwal, P.W. 15 Shivayya Gurulingayya Nandimath, P.W. 17 R.D. Dhumal, P.W. 21 D.Y. Mandlik besides the evidence of P.W. 9 Shrikant Mahadeo Mudakahiwale and P.W. 12 Jourasing Karnalsingh Gill. According to the learned Advocate for the accused Nos. 2 and 3 Santosh and Dattatraya, the prosecution has failed to establish last seen theory the evidence of P.W. 17 Ramchandra Dhumal. No blood stains have been found on the clothes of the accused Nos. 2 and 3 which were attached by the police. On the question of use of retracted confession of co-accused, he placed reliance on a number of authorities including Kashmira Singh v. State of Madhya Pradesh, (supra) the Constitutional Bench judgment of the Apex Court in Haricharan Kurmi v. State of Bihar , and Suresh Budharmal Kalani @ Kalani v. State of Maharashtra . He also placed rulings on the use of retracted confessional statement as against the maker of the confessional statement. The said rulings are : (1) Shankar @ Gaurishankar and Ors. v. State of Tamil Nadu ; (2) Madi Ganga v. State of Orissa ; (3) Nathu v. State of U.P., (supra) He accordingly submitted that there is no legal evidence so as to sustain the conviction of accused Nos. 2 and 3 Santosh Patil and Dattatraya Toraskar in the appeal. He also pointed out that in the Trial Court judgment at page 424 and 425 in para 41 there is misstatement of law by the Trial Court when it is stated that the guidelines contained in the Criminal Manual are only guidelines and are not mandatory.

10. The learned A.P.P., on the other hand argued that the confessional statement of accused No. 1 Pramod Shinde is not only voluntary but it gets corroboration on material particulars from the other evidence on record. It is pointed out that the confessional statement of the accused No. 1 Pramod Shinde that he had inflicted three gupti blows on the chest of the deceased is corroborated by evidence of Dr. Dilip Savant P.W. 6; the use of gupti in the crime gets corroboration from the recovery of gupti at the instance of accused No. 1 Pramod Shinde, under Section 27 of the Indian Evidence Act; the brief case (it has been referred by some witnesses as suit case) which is black in colour, which the deceased is said to be carried with him when the incident in question took place has been identified by P.W. 5 Sanjay Mali brother-in-law of the deceased; and that on the mat and rexin in the car, blood was found by the C.A. According to him, there is not only general corroboration of the confession on material particulars, but there is ample evidence to sustain conviction and no case has been made out for interference in the conviction of the accused. Regarding accused Nos. 2 and 3 also it is urged that their involvement in the conspiracy has been proved from the evidence on record including their identification by the prosecution witnesses.

11. Keeping in view of rival contentions advanced by both the sides, we shall first deal with the position of law in respect of use of retracted confession as against the maker of confession and as against the co-accused. Section 30 of the Indian Evidence Act lays down that when more persons than one are being tried jointly for the same offences and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. The law on this aspect is now well settled by a series of judgments of the Apex Court and judgment of the Privy Council in Bhoboni Sahu v. The King . The observations made by the Privy Council in the said judgment were quoted with approval by the Constitution Bench of Apex Court in Haricharan Kurmi v. State of Bihar , which reads as under:

A confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the same and weighed with the other evidence.

12. Earlier in Kashmira Singh v. State of Madhya Pradesh (supra) also following observations had been made which were approved by the Constitution Bench of the Apex Court which reads as under:

The confession of an accused persons is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.

13. Though there is nothing in Section 30 which prevents the Court from convicting the accused after taking the confession of co-accused into consideration, but the role attributed in the confession of co-accused uncorroborated by any other evidence is not alone sufficient to sustain conviction. Therefore, the Court should first marshal the evidence against the co-accused excluding the confession altogether for consideration and see whether if it is believed, the conviction can be safely based on it. If it is capable of belief independently of the confession then, ofcourse It is not necessary to call the confession in aid, but if implicit reliance cannot be placed on the evidence, the Judge may call in aid the confession in order to lend assurance to the other evidence.

14. Insofar as the case of an accused who makes confession is concerned, if the Court believes the confession to be voluntary and true such confession can be acted upon, but the Courts as rule of prudence still look for corroboration of the confessional statement and in this connection the Apex Court in Shankar @ Gaurishankar and Ors. v. State of T.N. , lays down as under:

The confession is a form of admission consisting of direct acknowledgment of guilt in a criminal charge. It must be in express words by the accused in a criminal case of the truth of the guilt fact charged or some essential part of it and a statement that contains a self-exculpatory matter cannot amount to a confession. The confession should be a voluntary one, that means not caused by inducement threat or promise. Whether a confession is voluntary or not is essentially a question of fact. The judicial confession are those which are made before a Magistrate or in Court in due course of legal proceedings and when such a confession is retracted the Courts have held that apart from the statement being voluntary it should be true and should receive sufficient corroboration in material particulars by independent evidence. The rule of prudence namely requiring corroboration does not mean that each and every circumstances mentioned in the confession with regard to the participation of the accused in the crime must be separately and independently corroborated. It is sufficient if there is general corroboration of the important incidents, just like in the case of an approver's evidence and it is not necessary that the corroborative evidence itself should be sufficient for conviction. It is not illegal to base a conviction on an incorroborated, confession of an accused person but as a rule of prudence which has sanctified itself to the rule of law, the Court do look for corroboration before acting upon and accepting the retracted confession and what amount of corroboration would be necessary in a case would be a question of fact to be determined in the light of the circumstances of the case.

15. Having noted the position of law on the subject, we shall first take up the case of accused No. 1 Pramod Shinde. The evidence against him consists of retracted confessional statement made by him before Special Judicial Magistrate P.W. 15 Shivayya Gulingayya Nandimath; recovery of gupti which is said to have been used in the crime at his instance under Section 27 of the Indian Evidence Act; recovery of the brief case which the deceased was carrying at the time of the incident at his instance and evidence in the nature of corroboration on material particulars of the confessional statement made by accused No. 1 Pramod Shinde.

16. We shall to start with deal with the argument advanced by the learned Advocate for the accused No. 1 Pramod Shinde, that the prolonged custody of accused No. 1 Pramod Shinde from 12th July, 1994 to 8th September, 1994 in different cases vitiates confession. According to him, the confessional statement which has been recorded on 10.9.1994 cannot be said to be voluntary. Before the Trial Court the voluntariness of the confession had been challenged on various grounds, but the same are not pressed into service before us. According to the learned Advocate for the accused No. 1 Pramod, 24 hours reflection time given by the Special Judicial Magistrate P.W. 15 Shivayya was totally inadequate and sufficient for the said purpose and as such in the circumstances, the confession made by the accused No. 1 Pramod Shinde cannot be said to be voluntary. In the case before the Apex Court upon which reliance was placed by the learned Advocate for accused No. 1 Pramod Shinde in this respect, the accused was in separate custody of the Police Officer P.W. 33 when the confession was made. The Apex Court in this context had held that the prolonged custody immediately preceding the making of confession is sufficient, unless it is properly explained, to stamp it as involuntary and P.W. 33 had not made any attempt to explain the unusual circumstances under which the confession was recorded. In the case before us it is no doubt true that the accused No. 1 Pramod Shinde was in custody before the police in different crimes from 12th July, 1994 to 8.9.1997, yet when he was produced before the Special Judicial Magistrate P.W. 15 Shivayya on 9.9.1994, the S.J.M. P.W. 15 Shivayya had not only taken necessary precautions but he had ensured that the accused No. 1 Pramod Shinde voluntarily desired to make confession. Accused No. 1 Pramod had expressed in clear terms that he was repenting; that he desired to become good citizen as a result of which he wanted to make statement. The S.J.M. made it crystal clear to accused No. 1 Pramod that he will not be kept in police custody and gave 24 hours time for reflection to accused No. 1 Pramod Shinde. The said accused was then produced on the next day before S.J.M. i.e. on 10.9.1994. The S.J.M. had once again taken all necessary precautions which are required for the purpose of recording confessional statement. He satisfied himself that the accused No. 1 Pramod voluntarily wanted to make confession without being in any manner influenced from any quarter. He had no complaint against anyone. The learned S.J.M. P.W. 15 Shivayya also enquired with accused No. 1 as to whether 24 hours time were given for reflection was sufficient and he answered in the affirmative. The S.J.M. further told accused No. 1 that he was ready to give more time for the purpose of reflection, but the accused No. 1 Pramod Shinde in categorical terms stated that time given to him was sufficient and more time was not necessary. It is then after taking precautions which are in law required to be taken that the S.J.M. P.W. 15 Shivayya had recorded the confessional statement of accused No. 1 Pramod Shinde. We find that the confession given by accused No. 1 Pramod Shinde is voluntary. Therefore now we have to determine as to whether the said confession is truthful and whether there is general corroboration of the confession from the evidence on record.

16. The Apex Court in Madi Ganga v. State of Orissa , as also in Shrishail Nagesh Pare v. State of Maharashtra 1985 Cr.L.J. 1173, by placing reliance on Subramaniam Goundan v. State of Madras , has laid down that in case of confession, general corroboration is sufficient to sustain conviction as against the evidence of accomplice which is required to be corroborated on material particulars.

17. The accused No. 1 had made the following confessional statement before S.J.M. P.W. 15 Shivayya which is as follows:

In the year 1994 in the month of June on one day in the evening at about 6.00 hours, I had taken our fiat vehicle bearing No. MAF-734 and went towards the house of my friend Dattatraya Manohar Toraskar r/o Javaharnagar Kolhapur. As per our pre plan I told to Dattatraya Toraskar that we had taken out fiat vehicle to Sangli and about the committal of robbery of passengers. If a passenger is noticed in our vehicle, then it will require to kill him. He was ready to come with me. I and Dattatraya Toraskar approached by the vehicle to the house of our other friend Pramod Pradeep Palange r/o Rajarampuri Kolhapur. The plan robbery of passenger is expressed to Pramod Palange on the said day the grandmother of Pramod Palange was seriously ill. Therefore Pramod Palange could not come with us to Sangli. But Pramod Palange accompanied with us to the Santosh Bacharam Patil r/o Shanunagar Kolhapur. The idea of plan of robbery was given to Santosh Patil. He was ready to come with us to Sangli. Then we leave Pramod Palange to his house.

On that day in the evening at about 7.00 hours I, Santosh Patil and Dattatraya Toraskar proceeded towards Sangli in my vehicle. I was driving my vehicle. Santosh was sitting at my neighbour and Dattatraya was on the back seat. At about 8.00 hours, we reached on the S.T. Stand at Sangli. I parked my vehicle in the dark on the side of the road in front of the Sangli S.T. Stand.

I told to Santosh Patil, you act as passenger and asked to Dattatraya Toraskar to stood in front of number plate of vehicle and take care that the passenger should not see the vehicle numbers. I went on the Sangli S.T. Stand to find the passenger. After passing of the sometime I noticed one person on Sangli S.T. Stand, he was wearing white shirt and black pant and having insert. One black colour suit case was in his hand. I asked to this person that where he intended to go. That person said to me that he intended to go at Pune. I told to that person that "I have my vehicle, we are proceeding to Mumbai. One passenger is in vehicle. Are you intend to come in our vehicle". Then that person asked me "How much money will I take. Then I told him to pay the S.T. charges. This person was ready to come with me. I took him towards my vehicle. This person passenger sat on the back side towards the driver side (i.e. on the back of the driver seat). I sat to drive the vehicle, Santosh Patil sat in my neighbour. Dattatraya Toraskar sat near the person to whom brought as a passenger from the Sangli S.T. Stand.

On that day in the night at about 9.00 hours we left Sangli. I was driving my vehicle on the road which lead towards Kolhapur. Then after passing sometime we reached at Hatkangale. Then I was driving the vehicle on Hatkangale Wathar road. The person who brought as a passenger from Sangli S.T. Stand was slept in the vehicle. Then after sometime we reached at Wathar on Poona Bangalore Highway and thereafter 1 was driving my vehicle on Wathar of Pune Highway. After passing some distance the Itakare fata noticed on highway at left side. On this fata the vehicle was turned towards the road lead towards the Itakare village. After passing 1 km. distance of Itakare road the vehicle was stopped on the left side of the road and the vehicle was made off. The passenger brought from the Sangli S.T. Stand was yet in asleep on back side. I told to Santosh to alight from the front seat and to sit near the right side of the passenger. Accordingly Santosh opened the back side door of the vehicle and sit on the right side of the passenger and closed the door of vehicle. Dattatraya Toraskar was already on the left side of the passenger. Until the passenger was awaken Santosh and Dattatraya hold the passenger, I taken Gupti kept under the seat in my right hand and in the vehicle turned towards backside and given a three blows of gupti on the chest of the passenger brought from the Sangli S.T. Stand. Due to the blows of gupti on the chest there was bleeding. Santosh and Dattatraya then alighted from vehicle and then dredged the passenger from the left side door of the vehicle. Then thrown on the left side of the road. Santosh took two currency note of Rs. 500/- (total some of Rs. 1000/-) from the pocket of the passenger. The suit case of the passenger was in vehicle.

After consciousness that the passenger is dead I. Santosh Patil and Dattatraya Toraskar sit in the vehicle I started my vehicle, taken a turn of the vehicle and reached on the Poona Mangalore Highway. Then I was driving the vehicle towards Kolhapur.

After passing from one km. distance I stopped my vehicle on Dhaba which is situated on the highway. On that dhaba we taken a meal. The back seat of my vehicle was sustained the blood. On that dhaba we all three wash out the vehicle. After washing the vehicle we started the vehicle and proceeded towards Kolhapur side. Near the Kolhapur in Shiroli M.I.D.C. I stopped my vehicle near one factory. During the said night I, Santosh Patil and Dattatraya Toraskar slept in my vehicle.

Next day the morning at about 6.00 hours we awaken and proceeded towards Kolhapur city. While proceeding towards Kolhapur I stopped my vehicle on the beach of panchganga river. The suit case of we killed passenger was in my vehicle.

The said suit case was opened by Santosh. The clothes of passenger some papers the currency two notes of Rs. 500/- (total Rs. 1000/-) and 6 foreign currency notes were found in it. These two currency note of each Rs. 500/- and 6 foreign currency notes were given in my hand by Santosh. Santosh has thrown the clothes and papers from the bag in the flowing water of panchganga river and empty suit case was kept in my vehicle.

Then we three entered in Kolhapur village. First I dropped in his house. Then dropped to Dattatraya to his house. Then I went to Bhavani tank for bath. The gupti which issued to hit the above passenger is kept by me in the vehicle. The suit case of the passenger which made empty was also in my vehicle for two days. After two days 1 and Pramod Palange thrown the bag in the compound of University.

Approximately after 10-12 days the 6 currency notes was found in the bag of above passenger were sold to one Merchant in Bombay.

19. We shall, therefore, now examine the evidence on record to find out whether the confession made by accused No. 1 Pramod Shinde has received general corroboration as required in law or not. The prosecution with the help of evidence of P.W. 8 Mohammed Mohamuddin Kothwal has proved that the deceased had travelled in his tanker upto Jaysingpur and he had identified the deceased on the basis of the photograph of the deceased. He had also stated that the said person namely the deceased then sat in a truck for going to Sangli. The prosecution had examined P.W. 17 Ramchandra D. Dhumal who speaks of three boys in a fiat car in the month of June, 1994 at S.T. Stand, Sangli and one person was having brief case and he was talking with one of the said boys regarding going to Pune. He identified the said boys in the identification parade and identified the said person who was enquiring by the photograph shown to him in the Court. In fact this was best piece of evidence to substantiate the last seen theory of the deceased with the accused. However it appears that the photograph of the deceased was never shown to the witness except in the Court which to some extend weakens the deposition on this aspect. Nevertheless, his evidence goes to show that there were three persons in the fiat car at Sangli and one person was having briefcase and was to go to Pune and enquiries were made with one of the three persons.

20. The dead body of the deceased was found by the road side on 5th June, 1994 by P.W. 1 Sarjerao. In the confessional statement, accused No. 1 Pramod Shinde had stated that the dead body of the deceased was thrown to the left side of the road after the vehicle was taken towards village Itakare. The dead body was found wearing reddish coloured T-shirt and bluish coloured pant. P.W. 5 Sanjay Mali brother-in-law of the deceased has also stated that the deceased was wearing reddish coloured shirt and bluish coloured pant and blue belt. The accused No. 1 Pramod Shinde in his confessional statement has stated that the said person was wearing white shirt and black pant. He had also stated that he had parked the fiat car in dark. Therefore it may not be possible to completely decipher the colour of the clothes of the deceased. At any rate bluish could be identified as black at night time. As far as the shirt is concerned, the overwhelming evidence on record is that the deceased was wearing reddish coloured shirt which was found on his person at the time when the body was found by the side of the road. Brother-in-law of the deceased also confirms that he was wearing reddish coloured shirt. Therefore, much value cannot be given to this variation vis-a-vis the confessional statement. The dead body was identified with the help of photographs taken by the police at the time of inquest. Accused No. 1 Pramod Shinde in his confessional statement has stated that the dead body was thrown along the road leading to Itakare village where it was found on the next day by Sarjerao P.W. 1. This part is substantially corroborated.

21. The discrepancy about the timing pointed out by the learned Advocate for the accused Nos. 2 and 3 Santosh and Dattatraya is not of much significance since timings have been given as approximately. Accused No. 1 had stated that he had given three blows of gupti on the chest of the passenger who had been brought from Sangli S.T. Stand. The Medical Officer P.W. 6 found three injuries on the chest of the deceased besides that 4th injury on the eye brow about which accused No. 1 had not stated. There is also general corroboration of the confessional statement on this aspect. The gupti which is said to have been used in the crime was recovered at the instance of accused No. 1 Pramod Shinde and the prosecution has examined P.W. 10 Vikas Nivrutti Kolekar to prove the said recovery.

22. P.W. 10 Vikas Kolekar has stated that on 25.8.1994 accused No. 1 Pramod Shinde made a statement that he was ready to show gupti. The said accused then led them in a jeep to Ghatage Apartment at Maharashtra Bazar Chowk. Accused No. 1 Pramod Shinde got down from the jeep and led them to the stair case and beneath the stair case by removing sand and bricks accused No. 1 took out the weapon gupti. He identified the said gupti as Article No. 21. The gupti was found concealed in the sand and bricks and it does not suffer from criticism that the said gupti has been recovered from the open space. The recovery of gupti at the instance of accused No. 1 Pramod Shinde has been duly proved by the prosecution which corroborates the confession made by accused No. 1 Pramod and the assault on the deceased was made by means of the said gupti. On the gupti blood of B group was found which is the blood group of the deceased.

23. The prosecution case is that the deceased was carrying black brief case at the time of the incident and this is spoken of by P.W. 5 Sanjay Mali, who is the brother-in-law of the deceased. He has stated that the said brief case was black in colour and its lock was of number. Though some of the witnesses have referred to this as suit case, yet P.W. 5 Sanjay Mali has identified Article 8 as the same briefcase which the deceased has with him at the time in question. This brief case was attached by the police at the instance of accused No. 1 Pramod Shinde. In this connection prosecution has examined P.W. 19 Prakash Gavade. Accused No. 1 in his confessional statement has stated that he along with Pramod Palange had thrown the bag in the compound of University. P.W. 19 panch has stated that on 17.7.1994 one accused with surname Palange had shown his readiness to show some articles. This witness was permitted to be cross-examined by the learned P.P. and during cross-examination he admitted that accused No. 1 Pramod Shinde had stated that he had kept the articles in the crime at the house of his friend Palange and that the memorandum of statement of accused No. 1 Pramod Shinde was recorded as per his say. Thereafter the memorandum was signed by them. Accused Pramod Shinde took them to the house of accused Palange by walk and showed the house where he had kept the articles. He took them in the house upstairs and produced two suit cases. He admitted that he did not remember the details of the memorandum of seizure panchanama due to lapse of time even though the same was recorded in his presence. However, he confirms the said memorandum and the panchanama having been recorded and signed by him. In the suit case one foreign currency note was found which is article No. 9 which was identified by P.W. 5 Sanjay Mali as one of the currency note which were with the deceased. The accused No. 1 Pramod Shinde in his statement has stated that he has sold six currency notes at Bombay, but the prosecution did not make any efforts in that direction. The suit case which has been recovered has been identified as article No. 8, as the same which was identified by P.W. 5 Sanjay Mali, when he has left. Ofcourse in respect of certain events, after the commission of the crime, like taking food at dhaba, has not been proved by the prosecution even though P.W. 12 Jourasingh Gill was examined to that effect. We therefore do not find any merit in the appeal or sufficient justification for interfering with the conviction of accused No. 1 Pramod Shinde, as recorded by the learned Additional Sessions Judge, Sangli.

24. Coming to the case of accused No. 2 Santosh and accused No. 3 Dattatraya, the principle which has to be applied is that first we have to marshal the evidence against them excluding confession altogether from consideration and see whether if it is believed the conviction can be safely based on it. The principle has been laid down by the Apex Court in Kashmir a Singh v. State of Madhya Pradesh (supra) which has been approved by the Constitution Bench of the Apex Court in Haricharan Kurmi v. State of Bihar (supra). Insofar as these cases are concerned, we do not find that there is any independent evidence on record from which conclusion could be drawn about the involvement of these two accused in the crime. In the absence of such evidence it will not be proper to rely only on the retracted confessional statement of co-accused so as to sustain the conviction of the accused for serious crime of murder. The law on this aspect is crystal clear which has been stated above. Accordingly the conviction and sentence of accused Nos. 2 and 3 cannot be sustained.

25. Before parting with the matter we would like to point out that the learned Additional Sessions Judge, Sangli in para 41 has stated that the instructions contained in the Criminal Manual issued by this Court, that ordinarily confessions should be recorded in the Open Court during the Court hours and on the basis of the expression used ordinarily it appears that the learned Additional Sessions Judge, Sangli has concluded that it is clear that the guidelines are not mandatory but simple guidelines. This approach of the learned Additional Sessions Judge, Sangli is not correct. The guidelines are issued by this Court by virtue of powers under Article 227(2) of the Constitution of India and the same are required to be followed. Infact the Apex Court in Sarwan Singh Rattan Singh v. State of Punjab , has drawn the attention of the Punjab High Court so as to suitably amend the circulars in respect of recording of confessional statement under Section 164 of the Cr.P.C. on the line of similar circular issued by the High Court of Punjab, Bombay and Madras. The Apex Court in Dagdu and Ors. v. State of Maharashtra , has observed that failure to comply with the Section 164(3) of the Cr.P.C. and with the High Court Circulars will not render the confessions inadmissible but strict and faithful compliance with Section 164 of the Cr.P.C. and with the instructions issued by the High Court affords in a large measure the guarantee that the confession is voluntary in nature. The failure to observe the safeguard prescribed therein are in practice calculated to impair the evidentiary value of the confessional statements. Therefore, the Court recording confession under Section 164 of the Cr.P.C. have to strictly and faithfully comply with the provisions of Section 164 of the Cr.P.C. and with the instruction issued by the High Court. At any rate the non compliance of said provision by itself does not render the confession inadmissible by itself.

26. For the aforesaid reasons, the Criminal Appeal No. 406 of 1998 filed by the accused No. 1 Pramod Akaram Shinde against the judgment and order dated 8.1.1998 in Sessions Case No. 87 of 1995 is hereby dismissed. His conviction and sentence is hereby confirmed. However the conviction and sentence of accused Nos. 2 Santosh Bacharam Patil and accused No. 3 Dattatraya Manohar Toraskar, which is challenged in Criminal Appeal No. 308 of 1998 against the judgment and order dated 8.1.1998 in Sessions Case No. 87 of 1995 is set aside. The said appeal is accordingly allowed. The said accused No. 2 Santosh and accused No. 3 Dattatraya shall be set at liberty forthwith in case they are not required in any other case.