Bombay High Court
Umesh Jagnu Sarjare vs The State Of Maharashtra on 27 November, 2015
Bench: V.K. Tahilramani
OJ APEAL 1163 OF 2008.doc
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1163 OF 2008
Umesh Jagnu Sarjare, ]
aged about 21 years ]
residing at Vidi Kamgar Vasahat ]
Near shop of scrap ] ... Appellant
Chandan Nagar, ] Ori. Accused.
Pune ]
ig ]
At present in Central Jail Yerwada ]
V/s.
The State of Maharashtra ]
At the instance of Yerwada Police ] ... Respondent
Station, Pune. ]
Ms. Rebecca Gonsalvez a/w Mr. Chetan Alai, for Appellant.
Mr. A.S. Shitole, A.P.P., for the Respondent-State.
CORAM : SMT. V. K. TAHILRAMANI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
DATE : 15th JULY, 2015.
ORAL JUDGMENT : [Per: Dr. Shalini Phansalkar-Joshi, J.]
1. The appellant, who stands convicted for the offence
punishable under Section 302 of the Indian Penal Code and
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sentenced to suffer rigorous imprisonment for life and to pay
fine of Rs.500/- in default to suffer rigorous imprisonment for
15 days, by judgment and order dated 29.3.2008, in Sessions
Case No.342 of 2006, of Additional Sessions Judge, Pune, by
this appeal, challenges his conviction and sentence.
2. Brief facts, as are necessary for deciding this
appeal, can be stated as follows :-
P. W. 2 Nasir Khan is running Maharashtra Scrap
Centre at Chandanwadi, Pune. In the year 2006, the
appellant, deceased Bablu and P.W.5 Raju Rajput, were
working in his shop. On 4.4.2006 at about 6.45 a.m., the
appellant came to his house and confessed to him that he has
committed serious mistake. On enquiries, as to which mistake
he has committed, the appellant informed him that there was
quarrel between him and the deceased Bablu on that night at
about 12.30, on the issue of who will cook the food and in the
said quarrel, he had cut the throat of the deceased with knife
and assaulted the deceased with stone on his head. The
appellant requested P.W.2 Nasir to save him or to give some
money so that he can go to his native place. P.W.2 Nasir,
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assured to save him and made him wait at his house. Then
without the knowledge of appellant P.W.2 Nasir went to Shiv
Rana Pratap Police Chowky and gave information of whatever
the appellant has confessed before him. The police
accompanied him to his house and then alongwith the
appellant they went to the scrap material shop of P.W.2 Nasir.
There the appellant showed place which was near godown
outside the tin shade. The dead body of Bablu was lying on
the handcart which was without wheels. All of them then went
to police chowky again and there complaint of P.W.2 Nasir
Khan was recorded by P.W.6 PSI Naikwade vide Exh.26.
3. On his complaint C.R.No.138 of 2006 was registered
against the appellant for the offence punishable under Section
302 of IPC. During the course of investigation, appellant was
arrested on the same day. The spot panchanama Exh.22 was
made in the presence of P.W. 1 panch Bashir Khan. From the
spot, blood stained stone and the piece of wooden frame with
blood stains thereon were seized. After the inquest
panchanama, the dead body was sent for postmortem. P. W.7
Dr. Milind Wabale of Sasson Hospital conducted autopsy on
the same day and opined that the cause of death was
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traumatic and haemorrhage shock as a result of cut throat
injury associated with blunt injury on the head. The
postmortem report is produced at Exh.52.
4. During police custody, the appellant expressed his
willingness to show the place at which he has concealed the
knife, his T-shirt and pant. His statement was reduced to
memorandum Exh.31 in presence of panch P.W.3 Vikrant
Shinde. Thereafter the appellant guided police and panchas
to the heap of plastic scrap material in the godown and
therefrom he produced blood stained knife, T-shirt and pant.
These articles were seized under panchanama Exh.32. The
seized articles were sent to Chemical Analyzer on 5.4.2006
vide requisition letter Exh.47. The Chemical Analyzer's reports
are produced in the case at Exh.58 to 60. Further to
completion of investigation, P.W. 6 PSI Naikwade filed
chargesheet in the court against the appellant.
5. On committal of the case to the Sessions Court,
trial Court framed charge against the appellant vide Exh.5.
The appellant pleaded not guilty and claimed trial raising
defence of denial.
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6. In support of its case, the prosecution examined in
all 7 witnesses and on appreciation of their evidence, the trial
Court held the guilt of the appellant to be proved and
convicted and sentenced him as aforesaid.
7. This judgment of the trial Court is challenged in this
appeal by learned counsel for appellant and supported by the
learned APP. In our considered opinion, in order to effectively
deal with the rival submissions advanced by them, it would be
useful to refer to the evidence on record.
8. The only eye witness examined by prosecution to
prove its case is P.W.5 Raj Rajput, who was, at the relevant
time working in the shop of P.W.2 Nasir alongwith deceased
Bablu and the appellant and in whose presence the incident
has happened. As per prosecution case, P.W.5 has witnessed
the incident of assault at night in which the appellant has
stabbed the deceased with knife and assaulted the deceased
with stone on his head. This witness has, however, not
supported the prosecution case. According to him, at 10.30
p.m., he left to watch movie and at that time both the
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deceased and appellant were in the room. He returned at
2.30 a.m. and woke up at 8.30 a.m., when he found many
people gathered outside his room and further saw that
deceased was lying in injured condition. Though he is
declared hostile and cross-examined by learned APP, nothing
worthwhile is elicited in his cross examination to prove the
fact that he was also present at the time of incident and has
witnessed the same.
9. As a result, the prosecution case now stands on
circumstantial evidence alone. The circumstances which are
relied upon by the prosecution are as follows:-
1. Extra judicial confession made by the appellant
before P.W.2 Nasir Khan.
2. Recovery of dead body at the instance of
appellant.
3. Homicidal death
4. Recovery of blood stained clothes and the knife
at the instance of appellant.
5. Recovery of blood stained stone from the spot.
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10. The main plank of prosecution case is on the
evidence of P.W.2 Nasir Khan before whom the appellant has
made extra judicial-confession. As per his evidence both the
appellant and the deceased were working in his shop
alongwith P.W.5 Raj Rajput. On 4.4. 2006, at about 6.45 a.m.,
the appellant came to the house and confessed to him that
he has committed mistake (Maze kadun Galti Zali). When he
asked him as to what was the mistake, the appellant told him
that he and the deceased quarrelled on the last night and in
that quarrel, he killed deceased (Maine Bablu ko khatm kiya).
P.W. 2 Nasir Khan asked him as to why he did like that,
thereupon the appellant told him that they quarrelled on the
count of who will prepare food. As per P.W.2 Nasir Khan, he
told the appellant that he would go to police station and lodge
complaint against him. The appellant shown willingness and
readyness for the same. Then P.W.2 Nasir went to police
station and gave information.
11. As per evidence of P.W.2 Nasir, he alongwith police
returned to the house. The appellant was present there. The
appellant showed the place where dead body of the deceased
was found lying, which was on the hand cart outside his shop.
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After the inquest panchanma, dead body was sent for
postmortem and then P.W.2 Nasir Khan went to police station
and lodged complaint against the appellant vide Exh.26.
12. There is corresponding evidence on record to that
effect of P.W.6 PSI Naikwade, who has deposed that at about
11.45 a.m. P.W.2 Nasir Khan came to police station and lodged
complaint on which he registered C.R. No.138 of 2006. On the
same day, he has carried out investigation in the crime by
visiting the spot. There at the spot he found blood stained
quilt, one stone, small wooden plank with blood stains
thereon, which came to be seized under panchanama Exh.22.
P.W.1 Bashir Khan, who is panch to the spot panchanama, has
also deposed that the blood stains were noticed on the quilt,
stone and wooden plank. These three articles were also seized
under panchanama.
13. Then, there is corroborating evidence of P.W.7 Dr.
Milind Wable, who has conducted postmortem on the dead
body of Bablu and found following injures :-
OJ APEAL 1163 OF 2008.doc
External injuries :-
1. Oblique lacerated wound, 4 cms above lateral angle of
right eye brow 2 x 1 cm underlying bone fractured.
2. Horizontal lacerated wound, 5 cm above right ear - 1.5 x
1 cm underlying bone fractured.
3. Lacerated wound, 2 cm behind injury No.2 measuring 2 x
0.75 cms underlying bones fractured.
4. Lacerated wound 4 cms behind injury No.3, 3 x 1 cm
bone deep.
5. Abrasion pinna of right ear 2.5 x 1.5 cms.
6. Contused abrasion, 2 cms behind right ear, 3 cms in
diameter, surrounding area of 1 cm contused.
7. Abrasion, forehead 3 cms, above lateral angle at left
eyebrow 4 x 3 cms.
8. Left black eye.
9. Right black eye.
10. Abrasion 1 cm below right eye 1.5 cm diameter.
11. Abrasion, 1 cm anterior to right ear 2 x 1 cms.
12. Cut throat injury at the level of thyroid, starting from 8
cms below right mastoid extending upto 6 cms below
left angle of mandible, measuring 12 x 4 cms.
Underlying structures including trachea, right earoid,
right jugulary show clear cut injury.
13. Multiple abrasions, anterior, aspect of right shoulder size
varying from 0.25 cm diameter to 1.5 x 1 cm, distributed
in an area of 8 x 4cms.
14. Two linear abrasions anterior aspect of left forearm 3
cms above wrist measuring 3.5 and 2 cm long
separated by a distance of 1.5 cms.
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15. multiple abrasion dorsum of left hand size varying from
0.25 cm diameter to 1 cm diameter diameter in an area
of 5x3.5 cms.
16. Multiple abrasions right leg all over size varying from
0.2 cm diameter to 2 x1.5 cm.
17. Abrasion posterior aspect of right shoulder 2 x 1 cms.
Internal injuries.
1. Depressed fracture, starting from anterior half of left
temporal bone, extending over both parietal and right
temporal, measuring 12 x 7 cms.
2. Fracture of anterior and middle cranial fozoa all bones.
Extra dural haemorrhage all over brain surface, subdural
haemorrhage all over brain surface, subarachnoid
haemorrhage with contusion at left temporal bone 4 x 2
cm, at left frontal bone 3 x 2 cm. Laceration of i) right
parietal bone 3 x 1 x 1 cms. ii) left parietal bone 4 x 1 x
1.5 cms. iii) Cerebellum 4 x 0.5 cms .
According to him, injury Nos. 1 and 12 and their
corresponding internal injuries were sufficient in the ordinary
course of nature to cause death individually, collectively and
together with external injuries. In his opinion, the cause of
death was traumatic and haemorrhage shock as a result of cut
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throat injury associated with blunt injury on head. In evidence
before the Court, he has stated that cut throat injury is
possible by knife whereas injury on head is possible with
stone. His evidence, therefore, proves homicidal death of
Bablu.
14. The prosecution has further relied upon evidence of
P.W.3 panch Vikrant Shinde and P.W.6 PSI Naikwade, to prove
that the blood stained knife and clothes of the appellant were
recovered at his instance under Section 27 of the Evidence
Act. The memorandum panchanama Exh.31 and the seizure
panchanama Exh.32 to that effect are produced on record. As
per evidence of P.W.6 PSI Naikwade, these articles were sent
to Chemical Analyzer and as per Chemical Analyzer's report,
human blood stains were found on those articles, though
results of blood grouping were inconclusive.
15. As per learned APP, this circumstantial evidence is
more than sufficient to establish the chain proving guilt of the
appellant beyond reasonable doubt, as no other inference
except that of guilt of the appellant can be drawn from it;
whereas according to learned counsel for appellant, none of
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the circumstance is sufficiently established by prosecution and
these circumstances do not lead to unerring conclusion that
none else except the appellant has committed the offence.
16. The first and foremost challenge raised by learned
counsel for the appellant is to the recovery of the blood
stained clothes and knife at the instance of appellant under
Section 27 of the Evidence Act, on the ground that at the time
of giving statement and recovery of articles, appellant was
hand cuffed as admitted by P.W.3 panch Vikrant Shinde.
Learned counsel for the appellant has relied upon judgment of
this Court in Deoraj Deju Suvarna and ors -vs- The State
of Maharashtra1 in which it was held that when the evidence
proves that accused was hand cuffed at the time of recovery it
cannot be said beyond reasonable doubt that recovery was
voluntary and not as a result of duress, threat or pressure by
the police authorities. In view of this clear legal position, we
are also not inclined to place reliance on the recovery
evidence.
17. Learned counsel for the appellant has also
1 1994 (4) Bom. C.R.85,
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challenged the spot panchanama on the ground that P.W.1
panch Bashir Khan has admitted that at the time of drawing
spot panchanama, he was not present there and he also
cannot state which articles were seized by the police at the
time of said panchanama. He has further admitted that the
police did not read over to him the contents of panchanama
and he has signed on the panchanama at the instance of
police. The prosecution has not disowned him despite these
admissions given by him in cross-examination. Therefore, in
our opinion also, his evidence is required to be excluded from
consideration altogether.
18. However, in our view, the spot panchanama cannot
be excluded from consideration as it is proved through the
evidence of P.W.6 Investigating Officer PSI Naikwade.
Though he is a police person and also Investigating Officer,
there is neither any rule of law nor procedure to disbelieve
evidence of police person or Investigating Officer, unless the
some material is brought on record to prove that he has any
reason to implicate accused falsely in the case. The
presumption that the witness speaks truth on oath applies
equally to police person also. Therefore, his evidence deserves
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to be relied upon. The presence of human blood on the
articles which were seized from the spot including the stone,
quilt and wooden frame, even if results of blood grouping are
inconclusive, is sufficient to prove the spot and the manner in
which the incident has happened.
19. The main attack of learned counsel for the
appellant
is on the evidence relating to extra-judicial
confession. She has relied upon judgment of Apex Court in
Sahadevan and another -vs- State of Tamil Nadu 2
&
Pancho -vs- State of Haryana 3 to submit that extra-judicial
confession is a weak piece of evidence; therefore, court must
ensure that the same inspire confidence and is corroborated
by other prosecution evidence. She has laid emphasis on the
principles laid down in para 16 of the judgment of Sahadevan
(supra) relating to evidence of extra-judicial confession.
These principles are :-
"16. Upon ... ... .... ...
(i) The extra-judicial confession is a weak evidence
by itself. It has to be examined by the court with
greater care and caution.
2 (2012) 6 SCC 403
3 (2011) 10 SCC 165
OJ APEAL 1163 OF 2008.doc
(ii) It should be made voluntarily and should be
truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater
credibility and evidentiary value if it is supported
by a chain of cogent circumstances and is further
corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis
of conviction, it should not suffer from any
material discrepancies and inherent
improbabilities.
(vi) Such statement essentially has to be proved
like any other fact and in accordance with law."
20. According to learned counsel for appellant, in the
instant case extra-judicial confession is not getting support
from the chain of circumstances and other prosecution
evidence and therefore, it cannot be relied upon as a sole
piece of evidence to convict the appellant.
21. Learned counsel for appellant has further relied on
Supreme Court Judgment in State of A. P. -vs E.
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Satyanarayana,4 wherein Three Judge Bench, relying upon
its earlier decisions held that :-
"The evidence in the form of extra-judicial
confession made by the accused to witnesses,
cannot be always termed to be tainted evidence.
Corroboration of such evidence is required only by
way of abundant caution. If the court believes the
satisfied
witnesses before whom confession is made and is
that the confession was true and
voluntarily made, then conviction can be found on
such evidence alone".
22. The Supreme Court in this decision has relied upon
its earlier judgment in Narayan Singh Vs State of M. P. 5
wherein it has cautioned that :-
"It is not open to Court trying criminal case to start
with presumption that extra-judicial confession is
always a weak type of evidence. It would depend
on the nature of the circumstances, the time when
confession is made and the credibility of witnesses
who speak for such a confession. The retraction of
extra-judicial confession which is a phenomenon in
criminal cases would by itself not weaken the case
of the prosecution based upon such a confession".
4 (2009) 14 SCC 400
5 1985 Cri L.J. 1862
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23. Supreme Court has in this judgment making
reference to its earlier decision in Kishore Chand -vs State
of H.P.6 further cautioned that:-
"Unambiguous extra-judicial confession possesses
high probative value force as it emanates from the
person who committed the crime and is admissible
in evidence provided it is free from suspicion and
suggestion of any falsity. However, before relying
on the alleged confession, the court has to be
satisfied that it is voluntary and is not the result of
inducement, threat or promise. The court is
required to look into the surrounding circumstances
to find out as to whether such confession is not
inspired by any improper or collateral consideration
or circumvention of law suggesting that it may not
be true. All relevant circumstances such as the
person to whom the confession is made, the time
and place of making it, the circumstances in which
it was made have to be scrutinized".
24. The Supreme Court in this judgment has relied
upon its earlier decision in Madan Gopal Kakkad -vs- Naval
Dubey7 which held that:-
6 1990 Cri LJ 2289
7 (1992) 2 SCR 921
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"Extra-judicial confession which is not obtained by
coercion, promise of favour or false hope and is
plenary in character and voluntary in nature can be
made the basis for conviction even without
corroboration".
25. This legal position is further confirmed by the Apex
Court in R. Kuppusamy -vs- State8 wherein it was held
that :-
"Despite the inherent weakness of an extra-judicial
confession as a piece of evidence, the same cannot
be ignored if it is otherwise shown to be voluntary and
truthful. It also cannot be termed as tainted evidence
requiring corroboration. If the Court found the witness
to whom confession was made to be trustworthy and
that the confession was true and voluntary, a
conviction can be founded on such evidence alone".
In this judgment the Supreme Court again declared that:-
"Courts cannot start with the presumption that extra-
judicial confession is always suspect or a weak type
of evidence but it would depend on the nature of the
circumstances, the time when the confession is made
and the credibility of the witnesses who speak about
8 (2013) 3 SCC 322
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such a confession and whether the confession is
voluntary and truthful. It is eventually the
satisfaction of the Court".
26. If above said criterias are applied to the evidence of
extra-judicial confession made by the appellant in the present
case, then in our considered opinion, it satisfies all these acid
tests. The person to whom extra-judicial confession is made
by the appellant is P.W.2 Nasir Khan in whose shop the
appellant and the deceased were employed. There is no
evidence that the appellant was having any other relative or
close friends in the locality or even in the city before whom
he could have made such extra-judicial confession.
27. Moreover, though P.W.2 Nasir is cross-examined at
length, there is not a single suggestion, even for the sake of it,
put up to him that he is not an independent witness or his
credibility is under suspicion. Both the deceased and the
appellant were working in his shop and hence he had no
reason to state falsely either against deceased or the
appellant. No material is also elicited in his cross-examination
to show that he was inimically disposed against the appellant
for any reason whatsoever. In such situation he is not only an
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independent witness but also a natural witness to whom the
confession could have been made by the appellant. There is
also nothing in his cross-examination to show that he has
advanced any inducement or promise to the appellant for
making such confession. Appellant has come to his house in
the early morning of his own accord which proves
voluntariness. This witness is also trustworthy as immediately
after the confession was made by the appellant, he has given
information to police and subsequently lodged complaint also.
28. Though it is argued that the confession is made at
a delayed time and hence it should be disbelieved, the
evidence on record goes to prove that the incident has taken
place after midnight and immediately in the early morning at
6.45 a.m. itself the appellant has gone to the house of P.W.2
and gave confession. Therefore, it cannot be said that it is
marred with delay as at the earliest opportunity such
confession is made.
29. Thus, the confession is proved to be true and
voluntary. The credibility and impartiality of P.W.2 Nasir before
whom confession is made is also not challenged in any way.
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Therefore, we are satisfied that the extra-judicial confession in
the present case deserves to be accepted to place implicit
reliance thereon.
30. It is also not the case that this extra-judicial
confession is not getting support from any other source. It is
corroborated by the recovery of dead body and most
importantly from medical evidence which shows homicidal
death of Bablu, that too in the manner like cut throat injury
with sharp edged weapon and injuries on head with blunt
object. Therefore, in our considered opinion, the extra-judicial
confession alone can form the sole basis for conviction of the
appellant.
31. The last argument advanced by learned counsel for
appellant pertains to delay in lodging of F.I.R. She has relied
on State of Andhra Pradesh -vs- E. Satyanarayana 9 to
submit that where Investigating Officer deliberately failed to
record F.I.R. on receipt of information of cognizable offence
and First Information Report is prepared after reaching the
spot, after due deliberations, consultation and discussion,
such investigation cannot be relied upon.
9 (2009) 14 SCC 400
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32. However, on appreciation of evidence on record, in
this case, we do not find that there is any delay as such in
registering F.I.R. Initially P.W.2 Nasir Khan has given only
information to the police about extra-judicial confession made
by the appellant. The said information was verified by visiting
the spot where the dead body was found and thereafter again
the police, P.W.2 Nasir and the appellant came to the police
station and then complaint was recorded at 11.45 a.m.
Thereafter, the offence came to be registered at about 12.30
p.m. The spot panchanama is made subsequent to
registration of F.I.R. in between 1 to 2.00 p.m. In the spot
panchanama Exh.22, C.R.No.138 of 2006 is also found
mentioned. There is also no evidence on record to show that
there were any deliberations, consultation and discussion
before registration of the offence as nothing is brought on
record to prove that P.W.2 Nasir Khan, who has lodged
complaint and P.W.6 PSI Naikwade who has registered the
offence, had any animus against appellant to implicate him
falsely in the case.
33. To sum up, therefore, we have no hesitation in
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holding that as the evidence relating to extra-judicial
confession is found in the present case to be completely
reliable, trustworthy and credible, to the satisfaction of this
Court and as it is also supported with other corroborative
circumstances and evidence on record, the prosecution has
succeeded in bringing home the guilt of the appellant.
34.
Consequently, the conviction of the appellant, as
recorded by the trial Court for the offence punishable under
Section 302 of the Indian penal Code is upheld and confirmed.
The appeal stands dismissed.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [SMT. V. K. TAHILRAMANI, J.]
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CERTIFICATE
Certified to be true and correct copy of the
original signed judgment.
