Bombay High Court
Rohidas Manik Kasrale vs The State Of Maharashtra on 7 December, 2011
Bench: V.M. Kanade, A.M. Thipsay
Apeal-1496-03
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1496 OF 2003
Rohidas Manik Kasrale, )
Aged 30 years, Indian Inhabitant, )
r/a. Trupti Spt. Room No.14, )
Bhola Nagar, Kalwa, Thane ) ... Appellant
Versus
The State of Maharashtra, )
(At the instance of Kalwa Police Station )
in C.R. No.78 of 2003) ig ) ... Respondent
Mr. Arfan Sait for the Appellant.
Mr. K.V. Saste, APP, for the Respondent-State.
CORAM : V.M. KANADE &
A.M. THIPSAY, JJ.
RESERVED ON TH SEPTEMBER, 2011.
: 15
TH DECEMBER,
PRONOUNCED ON : 7 2011
.
JUDGMENT {PER A.M. THIPSAY, J.} :
1. This Appeal is directed against the Judgment and Order dated 22nd
August, 2003, passed by the 2nd Additional Sessions Judge, Thane, in
Sessions Case No.78 of 2003, convicting the Appellant, who was the sole
accused in that case, of an offence punishable under Section 302 of the
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Indian Penal Code. The learned Additional Sessions Judge sentenced the
Appellant to suffer imprisonment for life and also to pay a fine of Rs.1,000/-
with a default sentence of six months. The Appellant, being aggrieved by
the said order of conviction and sentence, has appealed to this Court.
2. The prosecution case before the learned Additional Sessions Judge,
Thane, was that the Appellant and his wife Lata used to reside at Room
No.14, Trupti Apartment, Bhola Nagar, Kalwa, Thane, with their two
daughters. The Appellant and his wife Lata, both, were working as
Insurance Agents in Panaromic Company. The relations between the
Appellant and his wife were not good. The Appellant used to suspect the
character of Lata. In November, 2002, during Diwali Vacation, both the
daughters of the Appellant and Lata had gone to reside with their maternal
uncle Prakash More (PW-6). On 13th November, 2002, the Appellant and
Lata had gone to Matunga to attend the meeting of the Company and they
returned home at 12:30 hours in the midnight. They changed their clothes.
That, at that time, three persons of the age group of 18 to 20 came to the
house of Appellant and Lata, and started talking to Lata. Those persons
were not known to the Appellant and, therefore, he asked Lata about them.
Over this, Lata was annoyed and answered in fury that 'they were her
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stones (nxM)', and that 'the Appellant had no business to ask about it'. On
this, the said three persons left, but a quarrel took place between the
Appellant and Lata. Lata gave a fist blow to the Appellant on his face. The
Appellant was angered and he strangulated Lata by pressing her odhni
around her neck. Lata died due to the compression of throat. The Appellant,
thereafter, called his relatives, including the brothers of Lata, Baburao More
(PW-3) and Prakash More (PW-6). The Appellant told them that three
unknown persons had entered the house, made him unconscious by giving a
blow and had, thereafter, killed Lata. The Appellant, thereafter, went to
Kalwa Police Station and lodged a report in writing (Exhibit 20) implicating
himself as the offender. API Tukaram Kamble (PW-5) registered a case and
arrested the Appellant under Arrest Panchnama (Exhibit 21). API Kamble
(PW-5) visited the spot. Inquest Panchnama (Exhibit 12) in respect of the
dead body was drawn. The dead body was sent for post-mortem
examination. Dr. Dattatraya Kulkarni (PW-4) performed the post-mortem
examination. The death of Lata was opined to be caused by 'ligature
strangulation'. Further investigation was carried out by PI Ashok Pawar
(PW-7), who carried out Spot Panchnama (Exhibit 13). The Appellant, while
he was in police custody, disclosed certain information, pursuant to which
one odhni was seized from his house under a Panchnama (Exhibits 14A and
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14B). The seized articles, including the nail clippings of the Appellant and
blood samples of the deceased Lata, etc. were sent for chemical analysis to
the Forensic Science Laboratory, Bombay. The reports from the Chemical
Analyzer were received in due course (Exhibits 29 to 34). On completion of
investigation, a Charge Sheet was filed against the Appellant.
3. The prosecution examined totally seven witnesses during the trial.
Sunil Sawant, a Police Constable, who had visited the house of the
Appellant along with the Appellant, PI Ashok Pawar (PW-7) and Panchas on
14th November, 2002, is the first witness. He had witnessed the production
of one Odhni by the Appellant. The second witness Pandurang Gajge is also
a Panch in respect of the Inquest Panchanma (Exhibit 12) and the Spot
Panchnama (Exhibit 13). He is also a witness in respect of the alleged
disclosure statement made by the Appellant and the recovery of one Odhni
from the cupboard inside the room of the Appellant under a Panchnama
(Exhibits 14A and 14B). The third witness Baburao More, it may be
recalled, is the brother of deceased Lata, while the fourth witness is Dr.
Dattatraya Kulkarni, who had conducted the post mortem examination on
the dead body. The fifth witness is API Tukaram Kamble, who had registered
the First Information Report on the basis of information given to him by the
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Appellant. The sixth witness for the prosecution is Prakash More, another
brother of deceased Lata. The seventh witness, as aforesaid, is the
Investigating Officer PI Ashok Pawar.
4. We have heard Mr. Arfan Sait , the learned Advocate for the Appellant.
We have heard Mr. K.V. Saste, the learned APP for the Respondent-State. We
have carefully gone through the entire evidence adduced before the learned
Additional Sessions Judge, Thane. We have perused the impugned
judgment.
5. It is contended by Mr. Sait, the learned Advocate for the Appellant,
that the prosecution had not been able to prove the charge against the
Appellant. He submitted that the conviction of the Appellant, as recorded by
the learned Additional Sessions Judge, Thane, is based only on surmises and
conjectures. He submitted that the case of the prosecution is based only on
the alleged confessional statement made by the Appellant to the Police and,
that, the same being inadmissible in evidence, cannot be taken into
consideration. He submitted that once the confessional statement is
excluded, there was hardly any evidence against the Appellant to hold him
guilty. He has relied upon a number of authoritative pronouncements of the
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Supreme Court of India and one of this Court, in support of the contentions
advanced by him, dealing with, inter alia, burden of proof on accused, in
view of the provisions of Section 106 of the Evidence Act, effect of absence
of explanation of incriminating circumstances and/or a false plea by an
accused, etc. We have taken into consideration the principles enunciated
therein, which, in our opinion, are well settled.
6.
It is true that the case against the Appellant is based only on
circumstantial evidence. Admittedly, there are no eye witnesses to the
incident.
7. Whether the circumstances, which are alleged against the Appellant,
are satisfactorily proved and, whether such proved circumstances unerringly
point out to the Appellant as the culprit, are the questions that need
determination.
8. That, Lata died an unnatural death due to asphyxia is not in doubt or
dispute at all. The evidence of Dr. Kulkarni (PW-4) shows that there were
following external injuries on the dead body of Lata :
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"(i). Ligature mark on the neck, front aspect,
horizontal, just below thyroid cartilage, 6.1"
x 0.4", 4' right of midline and 2.1" left side
of midline, on front of neck on dissection
haemorrhages in the muscles and thyroid
gland and neck structure, e/o bruising of
neck, muscles of neck structure.
Haemorrhage int he right and left
submandibular glands, lower aspect;
(ii). Linear pressure abrasion on the right side of
neck, below injury No.1, horizontal, 0.8" x
0.1".
(iii).
Pressure abrasion on neck, liner just below
and medial to injury No.2 0.2" x 0.1";
(iv).& (v). Pressure abrasions, linear, on the right side
of neck, above injury No.1, 0.2" x 0.1" and
0.2" x 0.1";
(vi). Linear pressure abrasion above injury No.1
on left side of front of neck, 0.3" x 0.1";
(vii). Linear pressure abrasion, above injury No.1
on left side of neck, 0.5" x 0.1";
(viii). Linear pressure abrasion above injury No.2
and left of injury No.7, 0.2" x 0.1";
(ix). Partially nealed scabbed abrasion, on right
knee front, 4 x 0.1"."
9. On internal examination, Dr. Kulkarni (PW-4) noticed hemorrhage in
muscles of neck structure and submandibular glands and thyroid glands. He
also mentioned in his evidence the other internal injuries that were noticed
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by him during the post-mortem examination and submitted that they were
corresponding to the external injuries noticed. He had given the cause of
death as 'ligature strangulation' and opined the death to be homicidal. His
evidence is corroborated by the notes of the post-mortem examination
(Exhibit 15) made contemporaneously by him and, therefore, can be safely
accepted. As a matter of fact, there is no challenge to his evidence.
10.
Thus, that the death of Lata was homicidal is satisfactorily established.
11. The point which now requires to be determined is whether the
Appellant is the culprit.
12. It would be appropriate to refer to the evidence of each witness to
comprehend what are the circumstances which are appearing against the
Appellant in evidence, whether they are satisfactorily established and,
whether they lead to the conclusion that the Appellant, indeed, committed
the murder of his wife Lata.
13. The evidence of Sunil Sawant (PW-1), a Police Constable, shows that
in the night between 13th and 14th November, 2002, he was on patrolling
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duty at Kalwa. As per the directions of his superior API Kamathe, he went to
the room of the Appellant at about 4:00 a.m. for guarding the place. The
room was locked at that time. That, about 5:45 a.m., Police Inspector Pawar
(PW-7), the Appellant and two Panchas came there and, that, the lock was
opened by the Appellant. That, the Appellant entered the room and
produced one Odhni from a cupboard, which was taken charge of under a
Panchnama. The time 5:45 a.m., as mentioned by this witness, does not
seem to be correct, in view of the other evidence and it appears that it was
meant to be 5:45 p.m.. Anyway, this is not very significant in the
circumstances and in the view that we are taking.
14. The evidence of Gajge (PW-2), a Panch, shows that on 14th November,
2002, in the morning, he was taken by the Police to the house of the
Appellant, where Inquest Panchnama (Exhibit-12) of the dead body of Lata
was drawn. A Spot Panchnama (Exhibit-13) was also drawn. That, on the
same day, this witness was again called at Kalwa Police Station at about
5:00 p.m. According to him, at that time, the Appellant, who was there,
made a statement to the effect that he would produce the odhni. This was
recorded under a Panchnama (Exhibit-14A) and then the Police, this
witness, the other Panch and the Appellant went to the Appellant's house
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i.e. the said Room No.14. That, the room was locked. It was opened by the
Appellant. Thereafter, the Appellant produced odhni from the cupboard,
which was seized under a Panchnama (Exhibit 14-B). According to this
witness, there were stains of blood on the odhni (Article 1). In the cross-
examination, it is revealed that this witness was known to the Appellant
and, that, in the night of incident, on seeing that a mob had gathered there,
he had gone to the house of the Appellant at about 3:30 a.m. According to
him, there were discussions among the people that three persons had
entered the house of the Appellant and had assaulted his wife and, that, this
story had been told by the Appellant also. It also transpires that it is
thereafter that the accused made a telephone call to the Police Station and
then the Police reached there. The suggestion that he had not witnessed any
statement made by the Appellant and, that, no odhni was recovered at the
instance of the Appellant was denied by him.
15. The evidence of Baburao (PW-3) - brother of the deceased Lata -
shows that at about 2:30 a.m., he received a telephone message calling him
to the house of the Appellant immediately. Surprisingly, it is not clear as to
from whom such telephone message was received; and neither the
prosecution, nor the defence, nor the learned Additional Sessions Judge,
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Thane, thought it necessary to be clear on this. However, the very next
sentence of this witness, as appearing in the notes of his evidence reads as
under :
It was informed that "quarrel had taken place
between him and my sister."
16.
Since from the context it is clear that word 'him' refers to the
Appellant, it indicates that such telephonic message was received by him
from the Appellant himself. This witness went there with his father and
other relatives, when the dead body of Lata was lying on the floor.
According to this witness, the Appellant was present there and had pressed
a handkerchief to his mouth. That, the Appellant was saying that some
outsiders had come and had assaulted him and Lata. Then the Police came
to the spot.
17. The evidence of Dr. Kulkarni (PW-4) has already been discussed
earlier.
18. The evidence of API Kamble (PW-5) shows that the Appellant went to
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the Kalwa Police Station at about 3:30 a.m., when this witness was on duty
there as Station Diary In-Charge. That, the Appellant gave information to
him to the effect that he had killed his own wife at about 1:00 a.m. and,
that, that information was reduced to writing by this witness and treated as
the First Information Report (Exhibit 20). It is thereafter that this witness
registered a case in respect of an offence punishable under Section 302 of
the Indian Penal Code, arrested the Appellant and visited the spot. Inquest
Panchnama (Exhibit 12) was drawn. That, the dead body was taken to the
hospital for post-mortem examination. In the cross-examination, it was
suggested to him that an information with respect to this offence was
received at the Police Station at about 2:00 a.m., but he denied the same. It
was also suggested to him that a wireless message was given to the
patrolling van for going to the spot and, that, the constable on patrolling
duty went there in the van, but this suggestion also has been denied by him.
It was suggested to him that the Police took the Appellant to the Police
Station in the Jeep which suggestion has also been denied by him. It was
suggested to him that the Appellant gave him information to the effect that
three unknown persons had come to his house and had assaulted his wife
and him and, that, those persons had pressed the odhni of the wife of the
Appellant against her neck. These suggestions had been denied by this
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witness as not correct. It was also suggested to him that the Appellant had
given information to the Police on telephone after regaining consciousness,
but this suggestion was also denied by this witness as not correct. Lastly, it
was suggested to him that a false First Information Report was written and
the signature of the Appellant was obtained thereon, which has also been
denied by him.
19.
The sixth witness Prakash More is another brother of deceased Lata.
He also claims to have gone to the house of Lata on receiving a telephonic
message in the morning that Lata was unconscious. He also did not speak
specifically as to who had given that phone message. However, he stated
that when he went there, he found that Lata was lying dead and the
Appellant was also present there. The version of this witness is that the
Appellant said that three unknown persons had come and had made him
and Lata unconscious. That, Police came on the spot and thereafter the
Appellant told this witness that he was annoyed with his wife and, that, he
murdered her by tying odhni to her neck and by strangulating her. According
to him, the telephonic message was received at about 2:45 a.m. In the cross-
examination, this witness had admitted that many persons from the
neighbourhood were present when he went to the spot and, that, Police
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came to the spot within about 15 to 20 minutes (after his going there).
According to him, torn piece of odhni was lying near the dead body and,
that, the Appellant said that the other piece was concealed by him. It is
further revealed during his cross-examination that a statement was recorded
by Police only on 29th November, 2002. He admitted that he did not lodge
any report in the matter as he did not know how the incident occurred. He
also admitted that the relations between the Appellant and the deceased
were normal. He, however, denied the suggestion that the Appellant had not
made any statement before him.
20. The evidence of PI Pawar (PW-7) shows that on 14th November, 2002,
he visited the spot and drew Spot Panchnama (Exhibit-13). That, the
Appellant gave certain information pursuant to which three pieces of odhni
were recovered from a cupboard in the house of the Appellant and seized
under a Panchnama (Exhibits 14A and 14B). He also stated that blood stains
were found on the odhni. That, the nail clippings of the Appellant as well as
the deceased Lata were taken by the Medical Officer and, that, they were
sent for chemical analysis along with the odhni under a forwarding letter
(Exhibit 28) on 19th November, 2002. It was suggested to this witness also,
in the cross-examination, that the Appellant had informed the Police on
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telephone that his wife was murdered by the three unknown persons, but he
had denied the said suggestion. The suggestion that no statement was made
by the Appellant and no odhni was recovered pursuant to any such
statement, as put to the witness in the cross-examination, was also denied
by him.
21. The first circumstance sought to be proved against the Appellant is
that he had confessed about his guilt. There is no doubt that the First
Information Report lodged by him, being confessional in nature, cannot be
used against him in view of the provisions of Section 25 of the Evidence Act.
The legal position being very clear and undisputed on this point, this aspect
does not need any further discussion. However, the evidence also shows that
the Appellant had confessed about his guilt to Prakash (PW-6). The question
that would need consideration is whether such extra judicial confession
would be admissible against the Appellant because, apparently, such
confessional statement was made after the arrival of the Police on the spot.
22. Section 25 of the Evidence Act provides that no confession made to a
Police Officer shall be proved as against a person accused of any offence.
Section 26 of the Evidence Act provides that no confession made by any
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person whilst he is in the custody of a Police Officer shall be proved as
against him unless such confession is made in the immediate presence of a
Magistrate.
23. The admissibility of a confession made by an accused to a third person
in the presence of a Police Officer has been an issue which has been the
subject matter of discussion in several authoritative pronouncements. What
Section 25 bars is a confession made to a Police Officer and not confession
made in the presence of a Police Officer. Thus, if a confession is made to a
person other than a Police Officer, though when a Police Officer would be
present at that time, it would not hit by Section 25 of the Evidence Act. This
would be the theoretical position, but difficulties arise in determining
whether the confession in a given case was, in fact, made to a Police Officer
or to some other person. The rigors of Section 25 of the Evidence Act cannot
be allowed to be diluted merely on the claim that the confession was not
made to the Police but to somebody else, though the Police may very well be
present. This would then be a question to be determined on the basis of
facts of each case.
24. In Jagjitsingh Tannasingh Vs. State of Kutch, reported in 1956 Cri.
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L.J. 217, it was observed as follows :
"(17).Section 25 of the Evidence Act refers to
confessions made to a Police Officer and not
to confessions made in the hearing of Police
Officer. If a confession is made to a person
who is not a Police Officer, Section 25 of the
Evidence Act would not apply to it even
though a Police Officer may have over-heard
it."
25.
In Alluri Ramayya Vs. State of Maharashtra, reported in 1987 Cri.
L.J. 1172, a Division Bench of this Court, after referring to a number of
judgments on this aspect, concluded that mere physical presence of a Police
Officer would not make a confession made by an accused to others
inadmissible. Reliance was placed on the following observations made by
the Supreme Court of India in Sita Ram Vs. State of Uttar Pradesh,
reported in AIR 1966 SC 1906.
"The presence or absence of the police officer
near the accused is not decisive on the question
whether the confession is hit by S. 25. A
confession to a stranger though made in presence
of a police officer is not hit by S.25."
26. In Sita Ram's case (supra), Their Lordships of the Supreme Court of
India were dealing with the admissibility of the confessional statement in a
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letter written and signed by the Accused (Appellant before the Supreme
Court) and addressed to the 'Sub-Inspector'. Their Lordships differed in
their views. The majority view (held by A.K. Sarkar, C.J. and Mudholkar, J.)
was that though the letter contained a confession and was addressed to a
Police Officer, it was not 'a confession made to a Police Officer' so as to
attract the bar of Section 25 and, therefore, was admissible in evidence. The
reasoning behind the majority view was that the letter was not written 'in
the presence of a Police Officer and obviously the letter could not have been
a confession to Police Officers if the words 'Sub-Inspector' had not been
written therein'. While countering the majority view, Bachawat, J., made
the aforesaid observations that 'presence or absence of the Police Officer near
the accused was not decisive on the question whether the confession is hit by
Section 25 of the Evidence Act'. Though the context in which the said
observations were made in the aforesaid case of Sita Ram (supra) was
entirely different, reliance was placed on the said observations in Alluri
Ramayya's case (supra) as making the legal position in that regard clear.
27. In the instant case, the confession was made to Prakash (PW-6) and
not to the Police. It, therefore, would not be hit by Section 25 of the
Evidence Act. Also, the Appellant was not in the custody of Police at that
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time. Therefore, the bar under Section 26 of the Evidence Act also would
not apply. We are conscious of the fact that the Appellant would not be said
to be 'not in custody of the Police' merely because a formal arrest had not
been made, but, in the instant case, there is nothing to show that the
Appellant was accused or suspected of the commission of the murder and
was placed under any restraint by the Police before such statement was
allegedly made by the appellant to Prakash (PW-6).
28. Mr. Sait, the learned Advocate for the Appellant, contended that even
if admissible, no reliance can be placed on the said extra judicial confession
in the present case. In fact, the learned Additional Sessions Judge, Thane,
had not placed any reliance on this extra judicial confession. Having held
that the extra judicial confession allegedly made by the Appellant in this
case was not hit either by Section 25 or Section 26 of the Evidence Act, it
would be necessary to consider whether the same is reliable and can be
safely accepted. We would, however, discuss this aspect of the matter at a
later stage in the course of discussing all the circumstances appearing
against the Appellant from the evidence.
29. It is a sound rule of appreciation of evidence that one must first begin
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from the circumstances which are undisputed or satisfactorily proved. The
other circumstances, and whether they are satisfactorily proved or not, can
be more properly assessed in the background of the undisputed or
satisfactorily proved circumstances. Thus, in this case, the fact that the
Appellant was present when the murder of Lata took place is not in dispute
at all. That, the murder had taken place in the own house of the Appellant
and Lata and that too after midnight is also not in dispute.
30. The learned Additional Sessions Judge, Thane, observed that the
following circumstances were relied upon by the prosecution :
"(a). The relations between the accused and the
deceased were strained.
(b). The accused alone and not other person had an
opportunity to commit the murder.
(c). The accused made extra judicial confession.
(d). The accused gave report to police.
(e). The story of three assailants committing murder
given by the accused is false and is not believable.
(f). The cloth piece (Odhani) used in the crime was
recovered at the instance of the accused."
31. The learned Additional Sessions Judge, Thane, held that the
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circumstances mentioned at (a), (b) and (e) were satisfactorily proved. He
held that the circumstances mentioned at (c), (d) and (f) were not
satisfactorily proved. The learned Additional Sessions Judge, Thane,
however, concluded that the three circumstances, which in his opinion had
been satisfactorily proved, left no manner of doubt that the Appellant had
committed the offence in question. We have gone through the reasoning of
the learned Additional Sessions Judge, Thane, in that regard.
32. As regards circumstance (e), we agree with the finding of the learned
Additional Sessions Judge, Thane, that the story put forth by the Appellant
was unbelievable and apparently false. The story that three unknown
persons had come to his house, had made him unconscious and thereafter
killed Lata does not appear to be probable at all, for the following reasons.
33. No robbery or theft took place in the house or in respect of the
belongings of the Appellant and/or the deceased. That is not the case of
anyone including the Appellant. The Inquest Panchnama (Exhibit 12) shows
that even the ornaments which Lata was wearing such as the bangles, rings,
etc. had also not been removed. Thus, robbery was not the motive behind
the alleged assault by the 'three unknown persons'.
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34. Further, except the injuries on or around neck, there were no other
injuries on the body of Lata. Now, if any unknown persons had come to the
house in the midnight, naturally the attention of the Appellant as well as
Lata would be towards those persons and, if they, indeed, attacked Lata and
Appellant, resistance would be put by Lata as well as by the Appellant. In
that case, Lata was likely to sustain some more injuries on the other parts
of her body also.
35. What is more significant is that the Appellant had sustained only a
minor injury on his face i.e. the portion around his lip was swollen. This
injury, admittedly, is of a very minor nature and could be caused only by a
single fist blow. Now assuming Lata was being attacked by the outsiders,
who had allegedly come to the house, the Appellant would have tried to
intervene in which process he could have suffered certain injuries. Since he
has not sustained any such injuries, his version cannot be accepted.
Moreover, if Lata was being attacked, the least the Appellant was expected
to do is to raise shouts, which was also, admittedly, not done by him. The
Appellant's version that he lost his consciousness because of a single blow
which caused a minor injury to his lips, which has obviously been invented
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to offer an explanation as to why he did not resist or even shout at that
time, cannot be believed.
36. The outsiders who had allegedly come, if could go to the extent of
killing Lata, it was highly unlikely on their part to have left the Appellant
without causing any harm to him. The story put forth by the Appellant is,
thus, improbable in itself. The outsiders could not have grabbed Lata in such
a way so as to be able to precisely strangulate her without causing any
injuries on her body and, further, they could not have been successful in
simultaneously giving a blow to the Appellant on his lips. Thus, we have no
manner of doubt that the story put forth by the Appellant was unbelievable
and false. We are in agreement with the finding of the trial Court in this
regard.
37. That, the Appellant had taken a false defence is, undoubtedly, a
circumstance which weighs against him.
38. As regards circumstance (b), that the Appellant had opportunity to
commit murder cannot be doubted at all. We agree with the conclusion
arrived at by the learned Additional Sessions Judge, Thane, in that regard.
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Though the circumstance (b), as recorded by the learned Additional
Sessions Judge, Thane, speaks of no other person having had an opportunity
to commit the murder is rather wide and putting it in that manner may not
be approved, (as that is the controversy which is to be decided), that the
Appellant had the opportunity to commit the murder, is satisfactorily
established, in our opinion. In fact, this is not in dispute at all.
39.
Coming to the circumstance (a), it does appear that the Appellant
used to suspect the character of Lata. This has been stated by Prakash
(PW-6). Even Baburao (PW-3) has stated that there used to be quarrels
between the Appellant and Lata and, that, their matrimonial life was not
happy. In our opinion, it can be accepted in view of the evidence of
Baburao (PW-3) and Prakash (PW-6) that the relations between the
Appellant and Lata were some what strained though they had been residing
together. That, the Appellant used to suspect the character of Lata is a factor
which would certainly create strain in their relationship. However, though
we agree with the conclusion of the learned trial Court that this
circumstance has been satisfactorily established, we are not inclined to give
much importance to this, in as much as, these generally strained relations
could not have been the cause of murdering Lata.
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40. We may now come to the circumstance (c) i.e. extra judicial
confession allegedly made by the Appellant. The evidence regarding this has
not been believed by the learned Additional Sessions Judge, Thane. We have
already held that in the facts of this case, the confessional statement
allegedly made by the Appellant is not barred either under the provisions of
Section 25 or Section 26 of the Evidence Act. We may now consider the
reliability of the evidence in that regard.
41. The tenor of the evidence of Prakash (PW-6) indicates that he was not
interested in implicating the Appellant falsely. He has admitted in the cross-
examination that the relations between the Appellant and the deceased Lata
were 'normal', which he would never have done if he wanted to implicate
the Appellant. Further, in the facts and circumstances of this case, late
recording of his statement under Section 161 of the Code of Criminal
Procedure would also not be a decisive factor, so as to reject the evidence of
this witness. It is because the Appellant himself had reported the matter to
the Police and was already implicated on the basis of his own statement;
and it was quite natural under the circumstances that neither the Police nor
the witness would perceive the urgency of recording the statement of this
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witness under Section 161 of the Code of Criminal Procedure.
42. On considering all the relevant aspects of the matter, we are unable to
hold that the evidence that the Appellant had confessed to Prakash (PW-6)
that he himself had killed Lata is unreliable and needs to be excluded from
consideration. Undoubtedly, though such evidence in the instant case would
not be sufficient, in itself, to come to a conclusion about the guilt of the
Appellant, it certainly has corroborative value.
43. It is well settled that the burden of proof is always on the prosecution
and an accused need not prove anything. The accused is even not obliged to
give his version of the incident. It is also well settled that false defence
taken by an accused by itself would not amount to the proof of his guilt, but
would only be a circumstance that would be considered against him. It is
also well settled that in every criminal trial, the charge against an accused
should be proved beyond reasonable doubt.
44. In the facts and circumstances of this case, a discussion regarding the
fundamental principles of criminal jurisprudence may not be out of place. It
has been already observed that the Appellant had an opportunity to commit
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the offence and, that, he gave a false story of three unknown persons
coming to their house and having murdered Lata is satisfactorily
established. Additionally, he also confessed to Prakash (PW-6) that he had
murdered Lata. The question is whether these circumstances when taken
together are sufficient to hold that the case against the Appellant had been
proved 'beyond reasonable doubt'.
45. The phrase 'beyond reasonable doubt' has been often referred to and
is well understood. However, attempts to define this term precisely have
been held to be not advisable or practical. It is, however, settled that 'proof
beyond reasonable doubt' does not mean 'proof beyond any doubt'
whatsoever. It cannot be considered as if a mathematical formula. The
learned Author Glanville Williams in his celebrated book 'The Proof of
Guilt' has said the following with respect to the quantum of proof :
"To say that the burden of proving a crime is
generally on the prosecution does not conclude
all questions. What degree or quantum of proof
is needed: is it mere likelihood, or certainty, or
something in between these two extremes? This
question in turn raises a fundamental issue of
penal policy : how far is it permissible, for the
purpose of securing the conviction of the guilty,
to run the risk of innocent persons being
convicted?"
(Stevens & Sons, Third Edition 1963)(Page No.186)
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46. After discussing how the principle got itself developed from time to
time, the learned Author ultimately concludes as under :
"It is, then, a question of degree : some risk of
convicting the innocent must be run. What this
means in terms of burden of proof is that a case
need not be proved beyond all doubt. The
evidence of crime against a person may be
overwhelming, and yet it may be possible to
conjecture a series of extraordinary
circumstances that would be consistent with his
innocence - as by supposing that some stranger,
of whose existence there is no evidence,
interposed at the crucial moment and actually
committed the crime, when all the evidence
points to the fact that the accused was alone on
the spot, or by supposing, on a charge of
murder, that the deceased died of heart failure
the moment before the bullet entered his body.
The fact that these unlikely contingencies do
some times occur, so that by neglecting them
there is on rare occasions a miscarriage of
justice, cannot be held against the
administration of the law, which is compelled to
run this risk." [Emphasis supplied]
[Stevens & Sons, Third Edition 1963] [Page No.190]
47. In Miller V/s. Minister of Pensions, reported in (1947) ALL England
Law Reports 372 (Vol.2), Lord Denning, J., observed as follows :
"1. ....................................... Proof beyond reasonable
doubt does not mean proof beyond the shadow of
a doubt. The law would fail to protect the
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community if it admitted fanciful possibilities to
deflect the course of justice. If the evidence is so
strong against a man as to leave only a remote
possibility in his favour which can be dismissed
with the sentence "of course it is possible, but not
in the least probable," the case is proved beyond
reasonable doubt..........................................."
[Emphasis supplied]
48. In the instant case, the following factors constitute very strong
circumstances against the Appellant.
(i). That, admittedly, the Appellant and Lata were present in
their own house after midnight;
(ii). Lata died a homicidal death;
(iii). The explanation of how she died, as given by the
Appellant, is found to be false.
49. That, there was no robbery or any serious assault on the Appellant is
also a significant circumstance against the Appellant. That, the outsiders if
at all wanted to commit any serious offence such as murder would have
ordinarily carried weapons with them, but the absence of any injuries on the
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body of Lata and only a minor injury on the lip of the Appellant indicated
no use of weapons. Further, though the assault on Lata was deadly, the
Appellant sustained only a very minor injury is also significant. These two
circumstances further strengthen the suspicion against the Appellant. The
other circumstances, namely, that the Appellant used to suspect the
character of the deceased Lata and, that, he confessed about his guilt to
Prakash (PW-6), are also required to be considered along with these
circumstances. The extra judicial confession, though by itself would not be
conclusive to establish the charge against the Appellant, when considered
along with the other proved circumstances, affords sufficient corroboration
to those circumstances. While considering the reliability and acceptability of
extra judicial confession, it ought to be seen as to whether it is consistent
with the rest of the circumstances which are either undisputed or
satisfactorily proved and, in our opinion, in this case, the extra judicial
confession fits in properly with the other circumstances that have been
satisfactorily proved.
50. Considering the total effect and weight of all the relevant
circumstances which are satisfactorily proved, we are of the opinion that,
that the Appellant had caused the death of Lata by strangulating her is
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satisfactorily established. It may be observed that any doubt in that regard
could be entertained only if the theory of three unknown persons
(outsiders) having come and killed Lata --- without leaving any traces of
their coming and going --- could be considered as plausible. As elaborately
discussed earlier, such possibility has to be totally ruled out. In any case,
such possibility, which even otherwise is not based on any evidence, can
certainly be dismissed as 'not in the least probable'. In our opinion,
therefore, the case against the Appellant was proved beyond reasonable
doubt. The conclusion arrived at in that regard by the trial Court appears to
be proper and legal to us.
51. One aspect which, in our opinion, still needs consideration is about
the provision of law in which the offence committed by the Appellant would
fall. Whether it would be one of murder punishable under Section 302 of
the IPC or a lesser offence of culpable homicide not amounting to murder
would, indeed, need consideration. Mr. Sait, the learned Advocate for the
Appellant, contended that the offence would not be of murder because the
Appellant had apparently done the act under grave and sudden provocation.
We have carefully considered this aspect of the matter.
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52. Exception (1) to Section 300 of the Indian Penal Code reads as
under :-
"Exception 1 - When culpable homicide is
not murder - Culpable homicide is not murder if
the offender, whilst deprived of the power of self-
control by grave and sudden provocation, causes
the death of the person who gave the provocation
or causes the death of any other person by
mistake or accident.
The above exception is subject to the following
provisos :-
First - That the provocation is not sought or
voluntarily provoked by the offender as an excuse
for killing or doing harm to any person.
Secondly - That the provocation is not given by
anything done in obedience to the law, or by a
public servant in the lawful exercise of the powers
of such public servant.
Thirdly - That the provocation is not given by
anything done in the lawful exercise of the right of
private defence.
Explanation - Whether the provocation was grave
and sudden enough to prevent the offence from
amounting to murder is a question of fact."
(Emphasis supplied)
53. Now, in the instant case, except the victim Lata and the Appellant,
there was nobody present at the time of the incident and, therefore, the
only version in that regard would be that of the Appellant himself. The
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Appellant himself reported the matter to the Police and his version in the
report was the one which he himself had given immediately after the
incident with respect to the happenings. Now, the report made by him to the
Police, being confessional in nature, cannot be proved against him in view
of the clear mandate of Section 25 of the Evidence Act. However, Section 25
of the Evidence Act prohibits the use of a confession when it is sought to be
proved against the accused i.e. in support of prosecution; but not when it is
to be used for him
. There are reported judgments wherein it has been held
that the explanation for murder in a confession by the accused to the Police
in a First Information Report may be relied upon to prove motive, or
provocation, with a view to extenuate the offence, or sentence, or to prove self
defence, etc.
54. In Lalkhan Vs. Emperor, reported in AIR (35) 1948 Lahore 43,
though the confession made by the accused to the Police was not taken into
consideration against the accused, it was taken into consideration for
ascertaining the version of the accused and based on his version, the offence
committed by him was held to be of culpable homicide not amounting to
murder.
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55. In Hasil s/o. Qabul Vs. Emperor, reported in A.I.R. (29) 1942
Lahore 37, it was held that the prohibition contained in Section 25 applied
only to confessions which are to be proved against the accused, but not
when the same is to be considered for the accused. In that case, the Sessions
Judge had refused to rely on the confessional statement made by the
accused before the Police, which the accused wanted to use in his favour for
showing what offence had been committed. The Lahore High Court held
that such confessional statement could be taken into consideration for the
accused and the prohibition contained in Section 25 of the Evidence Act
would not apply to such use of the confessional statement.
56. In re Mottai Thevar, reported in A.I.R. 1952 Madras 586,
Somasundaram, J., while agreeing with the conclusions arrived at by Mack,
J., in his separate judgment, observed as follows :-
"(10). Section 25, Indian Evidence Act says that no
confession made to a police officer shall be
proved as 'against' a person accused, of any
offence. I underline the word 'against'. The
confession does not therefore prohibit the
use of it in favour of the accused."
57. We have gone through the First Information Report (Exhibit 20). The
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version of the Appellant is that the conduct and character of Lata was not
good. According to him, she would quite often leave the house without
informing him and leaving the children in the house itself; and would return
late in the night. That, on 14th November, 2002, the Appellant and Lata
returned home at about 12:30 hours in the midnight. After they changed
their clothes, three persons, unknown to the Appellant and in the age group
of 18 to 20 years, came at the door of the house and started talking
something to Lata. The Appellant asked Lata as to who the said persons
were, whereupon Lata became angry and said that they were her
'stones' (nxM ) and 'what the Appellant had to do with that' and, that, 'the
Appellant had no business to enquire about that'. The said three persons
went away, but there was a quarrel between the Appellant and Lata. In that
quarrel, Lata gave a fist blow to the Appellant on his face. The Appellant
was angry and, therefore, throttled her by tightening the dupatta of Lata,
which she was having around her neck.
58. We are conscious of the fact that this is Appellant's own version which
has not been tested. We are also conscious of the fact that the Appellant
might have introduced a false, or, at any rate, an inaccurate version just to
reduce the gravity of his culpable act. However, in this case, there is no
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evidence that something had happened just before the death of Lata which
provided, or was, a cause for the Appellant to kill her. Thus, that something
had happened, then and there, which resulted in the homicidal death of
Lata has to be accepted. The subsequent conduct of the Appellant
in calling the relatives of Lata is also consistent with the theory that the
homicide of Lata was not preplanned. The cause for the homicide was, quite
obviously, provided by something that had happened after the Appellant
and Lata had returned home. Since no other version - except that of the
Appellant - is available as to the circumstances in which the homicide took
place and since that version is consistent with the other circumstances,
which are appearing in the evidence adduced during the trial, the same may
be accepted. It would not be proper to invoke the principles governing proof
of a fact for placing reliance on the version of the Appellant, in as much as,
the approach in that regard should be only to see whether this version is
quite plausible and does not offend the facts proved by evidence. In the
circumstances, the version of the Appellant as to what led to the homicide of
Lata ought to be accepted, in our opinion.
59. We have anxiously considered whether if this version is accepted, the
case of the Appellant would fall within Exception (1) to Section 300 of the
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IPC. While deciding the question as to whether the provocation was grave
and sudden enough to prevent the offence from amounting to murder, the
following observations made by Their Lordships of the Supreme Court of
India in K.M. Nanavati Vs. State of Maharashtra, reported in AIR 1962
SC 605, may be usefully referred to;-
"Is there any standard of a reasonable man for
the application of the doctrine of 'grave and
sudden' provocation ? No abstract standard of
reasonableness can be laid down. What a
reasonable man will do in certain circumstances
depends upon the customs, manners, way of life,
traditional values, etc.; in short, the cultural,
social and emotional background of the society to
which an accused belongs. In our vast country
there are social groups ranging from the lowest
to the highest state of civilisation. It is neither
possible nor desirable to lay down any standard
with precision; it is for the Court to decide in each
case, having regard to the relevant
circumstances.............................................."
"The Indian law, relevant to the present enquiry
may be stated thus: (1) The test of 'grave and
sudden' provocation is whether a reasonable
man, belonging to the same class of society as
the accused, placed in the situation in which the
accused was placed would be so provoked as to
lose his self-control. (2) In India, words and
gestures may also, under certain circumstances,
cause grave and sudden provocation to an
accused so as to bring his act within the first
exception to Section 300 of the Indian Penal
Code. (3) The mental background created by the
previous act of the victim may be taken into
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consideration in ascertaining whether the
subsequent act caused grave and sudden
provocation for committing the offence. (4) The
fatal blow should be clearly traced to the
influence of passion arising from the provocation
and not after the passion had cooled down by
lapse of time, or otherwise giving room and
scope for premeditation and calculation."
60. The explanation below the Exception 1 is very important. It enjoins
that the question whether the provocation was grave and sudden enough to
prevent the offence from being murder should not be treated as a question
of law but one of fact and decided like any other question of fact. It follows,
therefore, that each case must be considered according to its own facts and
the Court must decide on the particular circumstances of that case whether
the provocation was grave and sudden enough to permit an indulgent view
of the crime committed by the accused.
61. The reaction of the Appellant must be judged in the background of the
fact that he had some objection about the conduct and character of Lata. In
this background, if three unknown persons would come to the house after
midnight and would start talking to his wife, the Appellant would naturally
be anxious to know who those persons were and what was the occasion for
them to come at such late hours and why his wife Lata was entertaining
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them. If instead of giving a reply to these questions, Lata rudely replied that
'they were her stones' and that 'he had nothing to do with that', naturally,
the Appellant would be further anxious and very angry. If, in these
circumstances, a quarrel takes place between him and Lata, during which
Lata gives a fist blow to him, on his face, there was every possibility of the
Appellant being deprived of his power of self control. There is no doubt in
our mind that the act of the Appellant was the result of a loss of his self
control, which arose on account of the grave and sudden provocation that
was caused to him by the words, action and conduct of Lata. Whether the
provocation was sufficiently grave cannot be measured by any particular
yard stick. The circumstances in which a human being may be provoked into
losing control of himself are of infinite variety and it would be futile to lay
down a universal standard for measuring the gravity of provocation in every
case. The Court must consider the reaction not of the normal man in the
abstract, but of the normal man whose impulses are conditioned by the
same environment as the accused. In the background of the discomfort,
which the Appellant was already feeling because of the doubt which he
entertained about the character of Lata, the coming of three unknown
persons after midnight and speaking to his wife, the non explanation of who
they were by the wife and her aggressive behaviour in giving a fist blow on
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the face of the Appellant in the quarrel, which resulted from the Appellant's
questioning her about those persons, were sufficient for the temporary loss
of self control on the part of the Appellant. In our opinion, therefore, the
offence committed by the Appellant would be one punishable
under Section 304 Part (I) of the IPC and not one punishable under Section
302 of the IPC.
The conviction of the Appellant, therefore, should be altered to one in
respect of an offence punishable under Section 304 of the IPC.
63 The Appeal is, therefore, partly allowed.
64 The conviction of the Appellant in respect of the offence punishable
under Section 302 of the IPC, as also the sentence of imprisonment for life
imposed upon him by the trial Court, is set aside. Instead, the Appellant is
convicted of an offence punishable under Section 304 of the IPC and is
sentenced to suffer R.I. for a period of ten years.
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65. The Appeal is allowed to the aforesaid extent and in the aforesaid
terms.
(A.M. THIPSAY, J.) (V.M. KANADE, J.)
