Ramu Appa Mahapatar vs The State Of Maharashtra
2010 Latest Caselaw 237 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           APPELLATE SIDE




                                                                              
                    CRIMINAL APPEAL NO. 252 OF 2005




                                                      
    Ramu Appa Mahapatar               ]
    C-5180, Nasik Road Central Prison ]         ..Appellant/ Accused




                                                     
                  versus

    The State of Maharashtra              ]     ..Respondents




                                             
    Mrs. Sonia Misken - Advocate appointed for Appellant / Accused.
                           
    Mr. H. J. Dedhia - Additional Public Prosecutor for Respondents - State.
                          
                                CORAM : D. D. SINHA AND
                                        SMT. V. K.TAHILRAMANI, JJ.

Date of Reserving the Judgment : 25.11.2010 Date of Pronouncing the Judgment : 02.12.2010

JUDGMENT : (Per : D. D. Sinha, J.)

1. Heard the learned counsel for the appellant and the learned Additional

Public Prosecutor for the respondents - State.

2. The appellant has challenged the validity of the findings of conviction

recorded by the Ad-hoc Additional District and Sessions Judge, Thane, for

the offence punishable under Section 302 of the Indian Penal Code vide a

impugned judgment dated 25th October, 2004, whereby the appellant was

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sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.

1,000/-, in default to suffer rigorous imprisonment for three months.

3. The brief facts of the prosecution case are as under:-

The appellant was living with deceased Manda, it was a live-in

relationship. Both of them were living in chawl of one Ravindra Gopal

Jadhav, who was the landlord. It is the case of the prosecution that the

appellant informed Mr. Jadhav that his wife has expired and he was going to

her parents house at Dipchole Village. The appellant along with his son

left for village Dipchole. The appellant met brother of deceased Manda and

informed him in the presence of Shankar, Pandhari and Chandabai that he

had a quarrel with deceased Manda and therefore he assaulted her and

Manda succumbed to the injuries. Before the appellant came back along

with his relatives at the spot of incident at Village Kudus the complainant

Ravindra had already opened the door of the house which was bolted from

outside and he noticed that Manda was lying dead and had multiple

bleeding injuries and her mangalsutra and glass bangles were broken, some

of the household articles were scattered on the ground. Complainant

enquired with the appellant about the incident when he returned along with

his relatives. The appellant told him that deceased Manda was suspecting

that he had illicit relations with some other woman therefore there was a

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quarrel in which he had assaulted Manda with the help of grinding stone and

stick. Landlord of the appellant Mr. Ravindra Jadhav lodged a complaint in

the police station, hence offence under Section 302 of the Indian Penal Code

was registered against the appellant.

4. Police drew inquest panchnama Exhibit 12, spot panchnama Exhibit

9 and seized in all 12 articles from the spot of incident. The investigating

officer seized the clothes of the deceased, collected provisional death

certificate of the deceased, post mortem notes and arrested the appellant

under arrest panchnama Exhibit 29, seized the weapon i.e. stick pursuant to

the memorandum statement. On completion of investigation, charge sheet

was filed against the appellant for the offence punishable under Section 302

of the Indian Penal Code. Charge was explained and read over to the

appellant to which he pleaded not guilty and claimed to be tried.

5. The learned counsel for the appellant has submitted that there was no

direct evidence adduced by the prosecution and the prosecution case is

based on testimony of P.W. 1 Ravindra, P.W. 3 Bhagwan, P. W. 4 Chandabai

and P.W. 6 Shankar for establishing the fact of extra judicial confession

alleged to have been given by the appellant to these witnesses. It is

contended that the case of the prosecution is solely based on extra judicial

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confession alleged to have been made by the appellant to these witnesses. It

is submitted that the evidence of extra judicial confession basically being a

weak kind of evidence, should not be accepted unless it shows that the

statement made by the appellant is totally voluntary and is corroborated by

other evidence. The learned counsel for the appellant has submitted that in

the instant case the evidence of extra judicial confession alleged to have

been made by the appellant to the prosecution witnesses is not consistent

with the material particulars of the prosecution case and for want of

corroboration it is highly unsafe to place reliance on such extra judicial

confession.

6. The learned counsel for the appellant has further submitted that

human blood found on the clothes of the appellant though was of 'A' group,

however it is not in dispute that the blood group of the appellant and

deceased is / was 'A' and therefore this is neither the incriminating

circumstances nor connects the appellant with the crime in question. It is

further contended that the testimony of P.W. 1 Ravindra, P.W. 3 Bhagwan,

P.W. 4 Chandabai does not inspire confidence and in absence of necessary

corroboration, conviction of the appellant for the offence punishable under

Section 302 of the Indian Penal Code, merely in view of the medical

evidence of Dr. Anand is unsustainable in law and therefore the impugned

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judgment and order is liable to be quashed and set aside.

7. The learned Additional Public Prosecutor on the other hand has

supported the impugned judgment and order of conviction passed by the

trial court and contended that the evidence of P.W. 1 Ravindra, P.W. 3

Bhagwan and P.W. 4 Chandabai shows that the appellant made an extra

judicial confession which was completely voluntary and was not made

under any kind of pressure and therefore the trial court was justified in

holding that the prosecution succeeded in proving the case beyond all

reasonable doubt, since said extra judicial confession was completely

corroborated by the medical evidence.

8. We have considered the contentions canvassed by the respective

counsels for the parties. Before we scrutinise the evidence of prosecution

witnesses, it will be appropriate to consider the law relating to extra judicial

confession. It is well settled that the confession cannot be used against the

accused person until court is satisfied that it is voluntarily. In order to render

a confession admissible it must be totally voluntary and free from police

influence. Similarly the confession of the accused should show that the

accused in unequivocal terms admitted the crime apart from the fact that it

is made voluntarily and is true. Extra judicial confession is one which is

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made by party elsewhere than before the Magistrate or in the Court and the

said statement is admissible in the evidence not only made in respect of the

crime but also in respect of those acts of the accused from which guilt can

be implied. Whether or not the confession is voluntary will depend upon the

facts and circumstances of each case and its admissibility will have to be

considered in the light of provisions of Section 24 of the Evidence Act. An

extra judicial confession can be made to any person or collection or body of

persons. It is well settled that merely because the person to whom the

confession is made is a father or brother of the accused, it will be improper

to discard the same only on the basis of existence of relationship between

them if it satisfies other legal requirements in law. The conduct of the

accused after commission of crime to reveal the facts pertaining to the

crime committed by him to a total stranger is difficult to accept, however, if

the said confession satisfies the requirements of law then the court should

not be reluctant to accept such extra judicial confession particularly because

unnatural conduct may not necessarily shake the veracity of the witnesses

testimony in all circumstances, but the court must look for corroboration to

get the assurance of truth. If the confession, voluntarily and truthfully made

is an efficacious proof of the guilt. It is pertinent to note that if the

confession is believed by the court to be truthful same can safely be

accepted, in a given case even without corroboration. It is no doubt true that

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there is no legal bar to convict the accused on the basis of an extra judicial

confession which is voluntarily made and true, but the rule of prudence

requires the court to seek corroboration from independent evidence.

9. Now we propose to examine the prosecution evidence pertaining to

extra judicial confession made by the appellant to the prosecution witnesses

in the light of the law on the subject. In the instant case the important

evidence adduced by the prosecution to prove the extra judicial confession

is of P.W. 3 Bhagwan brother of the deceased, P.W. 4 Chandabai wife of

P.W. 3 Bhagwan. Witness Bhagwan in his examination in chief has stated

that on 21st September 2003 at about 7.30 a.m. he was sitting along with one

Maruti, Pandurang Thorat in front of his own house. One Shankar Rama

Bhoye was also present with them. At that time appellant came along with

his son Kiran and told him in the presence of others that there was a quarrel

between him and deceased Manda and appellant assaulted Manda who

succumbed to the injuries. It has come in the examination in chief of this

witness that the landlord of the appellant P.W. 1 Ravindra was present at

that time. The evidence of this witness further shows that this witness and

others those who were present went to the house of the appellant and saw

Manda lying dead in pool of blood and had sustained injuries on her

forehead, head and face. Witness Bhagwan has further stated in his

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examination in chief that the appellant also informed him and others that he

assaulted deceased Manda with grinding stone and wooden stick. In the

cross-examination of this witness it has come that deceased Manda as well

as the appellant used to visit this witness and also used to stay with him of

and on. In the cross-examination Bhagwan was confronted with his police

statement by the defence in order to show that there is a omission about the

appellant confessing to him that he assaulted Manda with grinding stone and

wooden stick. It is pertinent to note that the defence did not prove this

omission by putting it to the investigating officer at the time of recording of

his evidence in the court and therefore same cannot affect veracity of the

testimony of this witness. The defence failed to elucidate any other

material in the cross-examination of P.W. 1 Bhagwan which would affect the

veracity of the testimony of this witness relating to extra judicial confession

made by the appellant to this witness.

10. So far as the evidence of P.W. 4 Chandabai is concerned, she has

stated in her examination-in-chief that on 21st September 2003 her husband

P.W. 3 Bhagwan was chitchatting with Shankar, Maruti and Pandurang, at

that time the appellant came there with his son Kiran and told her as well as

others that he had a quarrel with Manda, assaulted her and she was dead.

The evidence of this witness shows that the appellant after he made an extra

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judicial confession left his son Kiran with this witness and went away.

Testimony of this witness is free from contradictions and omissions and

therefore the testimony, in our view, is cogent and it corroborates the

testimony of P.W. 3 Bhagwan in respect of the extra judicial confession

made by the appellant.

11. The evidence of P.W. 1 Ravindra (landlord of the appellant) shows

that on 21st September 2003 at about 6.15 a.m. appellant came to him

along with his son and informed him that his wife has expired. The appellant

thereafter went to the house of the parents of deceased to call her relatives.

This witness went to the house of the appellant along with his brother. The

door of the house was bolted from outside. They opened the door and saw

that wife of the appellant was lying dead on the floor in pool of blood. At

that time appellant came back with the brother of the deceased. The

evidence of this witness further shows that when this witness inquired with

the appellant about the incident, appellant told this witness in the presence

of others that he assaulted the deceased Manda with the grinding stone. The

evidence of this witness Ravindra further shows that he immediately went to

the police station and lodged the complaint, Exhibit 7. There is nothing

adverse has come in the cross-examination of this witness so as to discredit

his testimony. His evidence is free from omissions and contradictions in

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regard to the material particulars of the prosecution case pertaining to extra

judicial confession as well as other circumstances brought on record by the

prosecution.

The evidence of P.W. 6 Shankar shows that on 21st September 2003 he

12.

was sitting with P.W. 3 Bhagwan, Maruti and Pandurang in front of the

house of P.W. 3 Bhagwan. At about 7.30 a.m. The appellant came there in

auto rickshaw with his son. Appellant told P.W. 3 Bhagwan that he had a

quarrel with deceased Manda, assaulted her and she died due to said

assault. It has come in the testimony of this witness that appellant left his

son with Chandabai (P.W. 4) the wife of Bhagwan (P.W. 3) and went away.

This witness along with others went to the house of the appellant and saw

Manda lying dead on the floor of the room. Since the omissions were not

proved by the investigating officer, the same cannot be relied on for

discrediting the testimony of this witness.

13. We have considered the evidence of P.W. 1 Ravindra, P.W. 3

Bhagwan, P.W. 4 Chandabai and P.W. 6 Shankar individually as well as

collectively, it shows that the confession made by the appellant was totally

voluntary and not under any pressure. As per the confessional statement

made by the appellant, he had assaulted Manda with the grinding stone and

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therefore it will be appropriate to consider at this stage the medical evidence

of Dr. Anand P.W. 10 who had conducted post mortem examination on the

dead body of deceased Manda. The evidence of Dr. Anand shows that the

deceased suffered following 16 external injuries :

1. 2 C.L.W. just in front of right pinnai, i) 1 c.m. x 1 c.m. x bone touch

sharp edges, ii) 1 cm x 2 cm x bone touch sharp edges.

2. 2 C.L.W. on forehead just above the upper eye lid right side laterally,

3 cm x 1 cm x bone touch sharp edges.

3. 1 clw on right temporal bone just behind and above right ear 7 cm x

½ cm x bone tough sharp edge.

4. 1 clw behind right ear 3 cm x ½ cm x muscle deep sharp edges.

5. 1 clw on right lip laterally 2 cm x ½ cm x muscle deep.

6. Right chick 2 clw, 1) 2 cm x ½ cm x skin deep sharp edge, 2) on

mandible just below lower lip 1 cm x ½ cm x muscle deep sharp

edges.

7. On palpation fracture mandible in mid line.

8. 1 clw on left pinna upper lobe 2 cm x 2 mm x skin deep.

9. 1 clw on nasion 2 cm x 2 mm x bone deep.

10.Open fracture of nasal bone of nasion.

11.1 clw on left occiput just behind left ear 4 cm x 1 ½ cm x bone touch.

12.1 clw on left side of occiput just below above mentioned injury 3 cm

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x 1 ½ cm x bone touch sharp edges.

13.On palpation fracture ribs rights side anterior 6th, 7th, 8th right side

posterior - 5th, 6th, 7th, 8th and 9th.

On left sides anterior - 5th, 6th, 7th, 8th

paostserior 5th, 6th, 7th, 8th, 9th & 10th

14.Contusion on right pectoral region from left nipple to sternum oblique

- 7 cm x ½ cm x black in colour.

15.Pectoral region 2 cm below nipple, 9 cm x ½ cm, black in colour.

16.Contusions on back 4 in numbers, 2 oblique on right side-

          i)     15 cm x ½ cm black in colour

          ii)    20 cm x ½ cm black in colour, 2 on left side oblique
        


          iii)   12 cm x ½ cm black in colour
     



          iv)    19 cm x ½ cm black in colour

On internal examination, the deceased suffered following injuries:

Injury under the scalf was Hoemotoma on right temporal bone 7 cm x

2 cm cannot be washed out with floating water.

1. Examination of skull and vault and base-fracture right

Zygomatic bone just underneath the injury mentioned in No. 17 - 1st

injury.

2. Brain covering intact, brain matter congested.

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As per column no. 20 - examination of Thoras, fracture ribs right side

anterior - 6th, 7th, 8th and 9th ribs right sides posterior, 5th, 6th, 8th and 9th

Left side anterior - 5th, 6th, 7th, 8th and 9th - left side posterior 5th, 6th,

7th, 8th and 9th and 10th

Right lung - congested and small laceration on lower lobe,

posteriorly at the base 2 cm x ½ cm

left Lung - congested.

As per column no. 21, Abdomen, 1 noted cavity 100 to 150 ml of

blood. On examination of Bucal cavity, teeth and tongue, bucal cavity

was intact, tongue was within the mouth and there was fracture

under midline.

Liver - there were three lacerations 1) at apeoh right lobe x 4 cm x 2

cm oblique

2) on left lobe 7 cm x 2 cm transverse

3) on left lobe 9 cm x 1 cm oblique

The doctor has opined that the cause of death was shock and hemorrhage

due to injuries to vital organs like lungs and liver and multiple injuries. The

doctor specifically opined that probable cause of death was haemorrhaegic

shock with neurologic shock due to multiple injuries which were sufficient

in ordinary course of nature to cause death. According to doctor the age of

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injuries was less than 24 hours. The post-mortem examination was

conducted by doctor on 21st September 2003. The medical evidence, in our

view, completely corroborates the extra judicial confession made by the

appellant to the prosecution witnesses. The medical officer has also opined

that injuries mentioned in column 17 were possible by article '11' i.e.

grinding stone and article '12' i.e. wooden stick. Defence, in our view,

failed to get any material in the cross-examination of the medical officer

which would affect veracity of the testimony of medical officer.

14. In the instant case the evidence adduced by the prosecution clearly

shows that the extra judicial confession made by the appellant was totally

voluntary and not under any pressure which is also corroborated by the

following circumstances established by the prosecution.

1. The appellant was present on the day of incident in the house with the

deceased and his son;

2. Deceased died a homicidal death considering the medical evidence of

P.W. 10 Dr. Anand;

3. Possibility of any other person causing death of deceased Manda by

inflicting multiple injuries has been completely ruled out by the

prosecution as there is nothing on record to show that anybody had

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any axe to grind either against the appellant or deceased Manda;

4. Finding of blood on the spot of incident, grinding stone and broken

bangles as well as mangalsutra of the deceased.

15. Evidence of the prosecution, in our view, is cogent and trustworthy

and therefore the judgment and order of conviction passed by the trial court

is just and proper and is also sustainable in law. Hence, appeal dismissed.

(D. D. SINHA, J.)

(SMT. V. K. TAHILRAMANI,J.)