Moreshwar S/O Wamanrao Hanskar ( ... vs The State Of Maharashtra Thr. ...
2016 Latest Caselaw 414 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR




                                                        
                        CRIMINAL APPEAL NO.278 OF 2013 




                                               
                                    WITH 
                        CRIMINAL APPEAL NO.303 OF 2013
                                   
    1)  CRIMINAL APPEAL NO.278 OF 2013   :
                                  
    Moreshwar s/o. Wamanrao Hanskar,
    Aged about 33 years, Occ. Labour,
         

    r/o. Junala, Tq. Wani, Distt.
    Yavatmal (In Jail).               ..........                 APPELLANT
      



        // VERSUS //





    The State of Maharashtra,
    through P.S.O., Police Station,
    Gadchandur, Tq. Rajura,
    Distt. Chandrapur.                      ...........            RESPONDENT





    -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                  Mr.R.H.Rawlani, Adv. for Appellant.
              Mr.S.M.Ghodeswar, A.P.P. for Respondent/State.
    -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-




          ::: Uploaded on - 15/03/2016                   ::: Downloaded on - 31/07/2016 08:08:36 :::
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    2)  CRIMINAL APPEAL NO.303 OF 2013   :




                                                                                           
    Sewaklal s/o. Ramaji Yede,




                                                                   
    Aged about 47 years, Occ.Kirana Shop,
    r/o.Nanda Fata, Tq. Korpana,
    Distt. Chandrapur (Presently at 
    Central Prison, Nagpur)           ..........                           APPELLANT




                                                                  
         // VERSUS //




                                                    
    The State of Maharashtra,       
    through P.S.O., Police Station,
    Gadchandur, Tq. Rajura,
    Distt. Chandrapur.                      ...........                    RESPONDENT
                                   
    -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                   Mr.R.M.Daga, Adv. for Appellant.
           

              Mr.S.M.Ghodeswar, A.P.P. for Respondent/State.
    -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        



                                    CORAM     :  B.R.GAVAI &
                                                         A.S.CHANDURKAR, JJ.

                               DATE          : 7th/8th March, 2016.





    ORAL JUDGMENT     (Per B.R.Gavai, J)  :

1. These two appeals filed by original accused nos. 1 and 3

take exception to the Judgment and order passed by the learned

3 apeal278.13.odt

Additional Sessions Judge, Chandrapur, dt.7.1.2013 in Sessions Case

No.106 of 2011 thereby convicting them for the offences punishable

under Section 302 r/w. Section 120-B of the Indian Penal Code and

sentencing them to suffer imprisonment for life and to pay a fine of

Rs.5,000/- each and in default, to suffer rigorous imprisonment for

three months.

2. The prosecution story in brief, as could be gathered from the

material placed on record, is thus :

Waman Bhiwapure (PW-4), a Sarpanch of Gram Panchayat,

Thutra, received an information on 21.4.2011 that the dead body of

unknown person was lying on the road side. As such, he went to the

spot, saw the dead body and informed about the same to Police

Station, Gadchandur vide report at Exh.53. Accordingly, A.D.

No.9/2011, u/s. 174 of the Code of Criminal Procedure came to be

registered. P.S.I. Arvind s/o. Dewaji Gurukar (PW-13) inquired into

the Marg. He recorded spot panchanama (Exh.40) and Inquest

panchanama (Exh.42). From the spot, he also seized one big stone

stained with blood, a small stone, simple earth and earth smeared

4 apeal278.13.odt

blood (Exh.44). The dead body was sent to hospital for post mortem

along with police questionnaire. Dr. Sanjay Ramesh Umate (PW-3)

conducted autopsy on the dead body of deceased and opined in his

P.M. Notes, that the cause of death was injury to the external genitals

and bleeding thereafter with fracture thoracic ribs. The Investigating

Officer also took blood sample and seized clothes of the deceased.

3. On the next day i.e. on 22.4.2011, at around 11.30 a.m.,

father of the deceased lodged report below Exh.37 alleging therein

that accused no.1 Sevaklal had come to his residence at 11.00 a.m. on

20.4.2011. He further stated in the said oral report that, around 4.00

p.m., accused Sevaklal had alone come to his house and without

informing anything, went away taking deceased Shankar along with

him. He has further stated that deceased Shankar did not come to the

house. He received information on 21.4.2011 that his son was found

dead on Gadchandur to Rajura road near Thutra Bus Stand. It is

further alleged in the said oral report that there was a relationship

between accused no.1 and original accused no.2 Suvarna wd/o.

Shankar Kasti. The report further states that the first informant had a

suspicion that accused no.1 has committed murder of his son. On the

5 apeal278.13.odt

basis of the said oral report, the First Information Report came to be

lodged below Exh.38. Investigation was set into motion. Accused no.1

was arrested on 16.5.2011. During his police custody, on his

memorandum below Exh.103, his clothes, mobile phone sets and five

sim cards came to be recovered. Hero Honda Motor cycle was also

seized. Accused no.3 was also arrested on 17.5.2011. On

memorandum u/s. 27 of the Indian Evidence Act, 1872, his mobile

hand set and mobile phone of deceased, handkerchief, Sim Card and

clothes came to be recovered from the house of his mother-in-law. It

further appears that the confessional statements of accused nos. 2 and

3 were also recorded by the learned Judicial Magistrate, First Class,

Rajura. Statements of various witnesses were also recorded.

4. After conclusion of investigation, charge sheet came to be

filed in the Court of Judicial Magistrate, First Class, Rajura. Since the

case was exclusively triable by the Sessions Court, the same came to

be committed to the learned Sessions Judge at Chandrapur vide order

of the learned Judicial Magistrate, First Class, Rajura dt.18.7.2011.

The learned Sessions Judge framed charges against the present

appellants as well as original accused no.2 Suvarna wd/o. Shankar

6 apeal278.13.odt

Kasti for the offences punishable under Section 302 r/w. 34 of the

Indian Penal Code, under Section 201 r/w.34 of the Indian Penal

Code and under Section 120B of the Indian Penal Code. The charges

were read over to the accused, to which they pleaded not guilty and

claimed to be tried. At the conclusion of the trial, the learned trial

Judge acquitted original accused no.2; however, passed an order of

conviction and sentence as aforesaid. Being aggrieved thereby, the

present appeals are filed.

5. Mr.R.M.Daga, learned Counsel for original accused

no.1/appellant herein submits that the present case is based solely on

the circumstantial evidence. He submits that unless prosecution

proves each and every incriminating circumstance beyond reasonable

doubt and further proves the chain of circumstances which are so

interlinked to each other that they leads to no other conclusion than

guilt of the accused, the order of conviction would not be sustainable.

The learned Counsel submits that insofar as the circumstance

regarding the accused last seen with the deceased is concerned, the

only evidence is that of Namdeo s/o. Rama Kasti (PW-1) and Angad

s/o. Bhaskar Bandgar (PW-11). It is further submitted by the learned

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Counsel that, according to this witness, accused no.1 was last seen in

the company of the deceased at around 3.30 to 4 p.m. However, as

against this, as per evidence of Billukumar s/o. Baby Pille (PW-9), the

deceased was last seen in the company of accused no.3 at around 8.00

p.m. It is further submitted that the evidence in respect of the accused

last seen in the company of deceased would not be of any assistance

to the case of prosecution inasmuch as it is not accused no.1 who was

lastly seen in the company of the deceased but it was accused no.3

who was lastly seen in the company of the deceased. The learned

Counsel submits that the other circumstances regarding recovery of

mobile handset and clothes would not be of much relevance. It is

further submitted that the mobile which was seized from the accused

was belonging to him and hence, naturally the mobile was found in

the custody of the accused. Insofar as seizure of clothes is concerned,

the report of Chemical Analyser shows that no traces of blood are

found on the clothes.

6. Mr.R.H.Rawlani, learned Counsel for original accused

no.3/appellant herein submits that the only evidence against the said

appellant are :

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                 a)     The evidence of Billukumar Pille (PW-9),

                 b)     Confessional statement which is relied on by the 




                                                                

learned trial Judge u/s.30 of the Indian Evidence Act

and,

c) recovery of mobile handset of the deceased from

the said accused.

The learned Counsel submits that insofar as evidence of Billukumar

Pille (PW-9) is concerned, no identification parade is held and as

such, identification in dock would not be sustainable. He further

submits that insofar as recovery of mobile handset of deceased is

concerned, prosecution has not led any evidence to establish that the

mobile handset which was recovered from the appellant belongs to

the deceased. Insofar as confessional statement is concerned, the

learned Counsel submits that the same cannot be relied on for

convicting the appellants.

7. Mr.S.M.Ghodeswar, learned A.P.P. submits that prosecution

has proved each and every incriminating circumstance. The learned

9 apeal278.13.odt

A.P.P. submits that prosecution has proved beyond reasonable doubt

that death of deceased was homicidal. He submits that it is also

proved that original accused no.1 had illicit relationship with original

accused no.2. Therefore, the learned A.P.P. submits that prosecution

has proved motive for the crime. He further submits that though

motive may not be relevant factor in case of direct evidence, it plays

vital role in the case based on circumstantial evidence. Learned A.P.P.

further submits that, the prosecution, on the basis of evidence of

Namdeo Kasti (PW-1), Billukumar Pille (PW-9) and Angad Bangar

(PW-11), has proved that the accused/appellants were last seen in the

company of deceased. He submits that the time gap between the

deceased last seen in the company of the accused and the dead body

of deceased being found is so narrow that it leads to no other

inference, than that it is only the present appellants who were

responsible for causing death of the deceased. The learned Counsel

further submits that prosecution has also proved the Call detail report

showing that there was a constant conversation between all the three

accused prior to and after death of deceased.

10 apeal278.13.odt

8. By now, the law regarding conviction in a case resting on

the circumstantial evidence is well established. Their Lordships of

Hon'ble Apex Court in the case of Sharad Birdhichand Sarda .vs.

State of Maharashtra reported in (1984) 4 SCC 166 observed thus :

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against

an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be'

established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should

be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following

observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between

'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

11 apeal278.13.odt

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say.

they should not be explainable on any other hypothesis

except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not

to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all

human probability the act must have been done by the accused."

"154. These five golden principles, if we may say so,

constitute the panchsheel of the proof of a case based on circumstantial evidence."

9. It could thus be seen that a duty is cast on the prosecution

to prove each and every incriminating circumstance beyond

reasonable doubt. Not only that, prosecution has to establish the chain

of established circumstances which leads to no other conclusion than

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guilt of the accused. It is further necessary for the prosecution to

prove beyond reasonable doubt that all other possibilities except guilt

of the accused are ruled out. It is a well established position of law

that howsoever strong suspicion is there, the same cannot take place

of truth beyond reasonable doubt.

10. In the light of this legal position, we will have to examine

the present case. We have scrutinized the material on record with the

assistance of the learned A.P.P. as well as the learned Counsel for the

appellants.

11. Though the learned trial Judge has not culled out the

circumstances, which he has found to be proved beyond reasonable

doubt, from the perusal of the Judgment, it would reveal that the

learned Judge has found the following circumstances to be proved.

a) From the evidence of Namdeo Rama Kasti (PW-1)

- father of deceased, Ku.Alka d/o. Shankar Kasti (PW-6) -

daughter of deceased and Vaishali d/o. Mahadeo Ghorpade

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(PW-7), that there was illicit relationship between original

accused no.1 and accused no.2, wife of the deceased.

b) On the basis of evidence of Namdeo Kasti (PW-1)

and Angad Bangar (PW-11), that the deceased was last seen

in the company of accused no.1 on 20.4.2011.

c) On the basis of evidence of Billukumar Pille (PW-

9), that accused no.3 was last seen in the company of

deceased at around 8.30 p.m. on 20.4.2011.

d) The confessional statement of accused no.3,

seizure of mobile of deceased from accused no.3 and the Call

detail report of conversion between all the three accused

prior to and after death of deceased.

e) One of the circumstances as against accused no.1

is regarding attempt on the part of accused no.1 to ask

Nandlal s/o. Ghudanlal Rahangdale (PW-10) to give false

information to the police.

12. We will first examine the evidence regarding motive. In this

regard, the prosecution and the learned trial Judge have relied on the

evidence of aforesaid three witnesses i.e. Namdeo Rama Kasti (PW-1),

14 apeal278.13.odt

Ku.Alka d/o. Shankar Kasti (PW-6), and Vaishali d/o. Mahadeo

Ghorpade (PW-7). Insofar as Namdeo Kasti (PW-1) is concerned,

though, in the oral report and in the F.I.R., he states that he had

suspicion regarding illicit relationship between original accused no.1

and original accused no.2 Suvarna, in his substantive evidence, there is

no whisper regarding the same. It is a settled position of law that F.I.R.

is not a substantive piece of evidence. It can only be used to corroborate

the substantive evidence. It could thus be seen from the evidence of

Namdeo (PW-1) that there is no whisper regarding the same in his

substantive evidence and as such, mention about the same in the F.I.R.

would be of no consequence. Insofar as evidence of Alka Kasti (PW-6) is

concerned, the only statement that can be of some assistance to the case

of prosecution is that she states in her evidence that "sometimes the

accused no.1 Sevaklal was taking halt in the night at our house. He used

to supply liquor to my father. At the time of incident my step-mother

went to her parental home since one month prior to incident as there

were quarrels with the father on the count of phone of the accused no.1

Sevaklal ".

15 apeal278.13.odt

13. However, the part of evidence that "accused no.1 used to

supply liquor to her father as well as her father quarelled with her step-

mother due to frequent telephonic calls from accused no.1 Sevaklal and

due to that reason, her step-mother went away" is an improvement.

Both these omissions are duly proved in the evidence of I.O. Arvind

(PW-13). It is further to be noted that she admits in her evidence that

there were cross terms between them and her step-mother. She

further admits that, due to that reason, they left the house and started

residing separately. She has further admitted that since they were

separate, she knew no reason about quarrel between her father and

step-mother. Insofar as evidence of Vaishali (PW-7) is concerned,

there is not even a whisper in her deposition with regard to original

accused no.1. We are unable to understand as to how the learned trial

Judge has found the evidence of this witness to be relevant for the

purpose of establishing illicit relationship between original accused

no.1 and original accused no.2. We are of the considered view that

prosecution has utterly failed to prove this circumstance.

14. That leaves us with the circumstance regarding

memorandum of original accused no.1, u/s.27 of the Indian Evidence

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Act. The prosecution has relied on the evidence of Nashir Khan s/o.

Afzal Khan (PW-12) to prove the memorandum u/s.27 and recovery

of motor cycle, clothes of accused and his mobile phones. By now, it is

a settled position of law that, that part of a statement made u/s.27 of

the Indian Evidence Act which leads to discovery in consequence of

such statement from accused would be admissible in evidence.

However, by now, it is also a settled position of law that such a

discovery has to be made from a place which is solely within the

knowledge of such person and which is not accessible to any one else.

Perusal of memorandum and seizure panchanama would reveal that

recovery is made from the house of appellant from bed room. The

seizure panchanama shows that the accused had opened the cupboard

and took out the sim cards, mobile handsets and clothes, which he

had kept in a plastic bag in the cupboard, which were used by him

while committing crime. Panchanama does not show that the

cupboard was locked and the lock was opened by original accused

no.1. In any case, it is difficult to believe that a person would keep the

clothes used by him while committing crime for almost a period of one

month and that too, in his house. In that view of the matter, we find

that said recovery would not be of any assistance to the prosecution

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case. Moreover, the C.A. report does not show anything incriminating

insofar as the said clothes are concerned.

15. That leads us to memorandum of accused no.3 and recovery

pursuant thereto. The memorandum of accused no.3 is recorded on

19.5.2011 i.e. almost after a period of one month from the date of

commission of crime. It is allegedly stated by accused no.3 in the

memorandum that he had concealed mobile handsets, sim cards and

his clothes in house of his mother-in-law. The seizure panchanama

would show that when the accused directed the police to the house of

his mother-in-law, they found one woman in the house, who was

identified by accused no.3 as his mother-in-law. The seizure

panchanama further shows that accused went inside the house,

opened an old godrej cupboard and took out incriminating material

therefrom. It could thus be seen that the recovery is made from the

place which was accessible to one and all. It was not exclusively

within the knowledge of accused no.3. In any case, the Chemical

Analyser did not find anything incriminating insofar as the clothes of

accused no.3 are concerned.

18 apeal278.13.odt

16. That leaves us to the most important circumstance

regarding last seen. We will first consider the case of accused no.3

Moreshwar Hanskar. Prosecution in this respect has relied on the

evidence of Billukumar Pille (PW-9), who is an auto rickshaw driver.

He states that, on 20.4.2011, at around 6 p.m., when he was waiting

for passengers near the Bus stand, one passenger came for village

Thutra. He was told by the said person that there is a passenger who

has consumed liquor and was unable to walk. He was told by that

person that he would pay Rs.200/-. His friend Avinash was also with

him. Therefore, said witness along with his friend Avinash went near

Surya Beer Bar, Gadchandur. One person was found lying there after

consuming heavy liquor. All the three of them took the said drunkard

in the autorickshaw. The said witness then carried the said two

passengers to Thutra Bus Stand. He told them that he would leave

them in the village but they declined. It was about 8 to 8.30 p.m. He

identified the person to be a person having shoulder-cut hair on his

head and French cut beard. Billukumar Pille (PW-9) further states in

his evidence that, on the next day, he came to know that the drunkard

person had died. He further states that, after 2-3 days, he was called

by police at the Police Station. There were two persons in the Police

19 apeal278.13.odt

Station. The person who was having shoulder-cut hair on head and

French cut beard was also present there. This witness had identified

him in the Police Station. Thereafter, witness Billukumar identified

accused no.3 in the dock. It could thus be seen that identification of

accused no.3 by the said witness is firstly in the Police Station

immediately after 2-3 days and thereafter in the dock. It is not in

dispute that accused no.3 was not acquainted with Billukumar Pille

(PW-9). No identification parade has been held. In that view of the

matter, the fact regarding the said witness identifying accused no.3 at

the instance of Police cannot be ruled out. In that view of the matter,

we find that it cannot be said that prosecution has proved beyond

reasonable doubt that original accused no.3 was last seen with the

deceased.

17. Now coming to the case of accused no.1, prosecution relies

on the evidence of Namdeo Kasti (PW-1) and Angad Bangar (PW-11).

Namdeo Kasti (PW-1) is father of the deceased. The incident has

occurred somewhere in the night of 20th April, 2011. The dead body

was recovered in the morning of 21st. The information regarding

death of deceased was received by this witness in the morning of 21st

20 apeal278.13.odt

itself. Namdeo Kasti (PW-1) had gone to take body of deceased on

21st itself. Admittedly, the police personnel were present at that time.

However, witness Namdeo does not disclose about the same to police

on the same day. He waits for almost a period of 24 hours and lodges

the First Information Report on the next day at about 11.30 p.m.

Nodoubt that delay in lodging the F.I.R. is not always fatal to the

prosecution case. In the present case, police personnel were very

much present on 21st itself. Witness Namdeo could have very well

informed the police about original accused no.1 taking away the

deceased on 20th at around 3 to 4 p.m. In the normal circumstances,

Namdeo Kasti (PW-1) would have disclosed the said fact to police

immediately. It is further to be noted that a specific suggestion was

given to the said witness Namdeo that one Mr.Borkar who belongs to

a political party had written the F.I.R. Though he has denied the said

suggestion, he has admitted that said Borkar has also signed the

report. Witness Namdeo has further admitted that he does not know

reading and writing. He has further admitted that the contents were

not explained to him. Insofar as suggestion given to him regarding

dispute between said Borkar and accused no.1, he pleads ignorance.

In view of above, we are of the view that it will not be safe to rely on

21 apeal278.13.odt

the evidence of this witness to come to the conclusion that original

accused no.1 was last seen in the company of deceased.

18. Insofar as evidence of Angad Bangar (PW-11) is concerned,

the said witness appears to be a chance witness. The statement of this

witness is also recorded on 23rd i.e. three days after the date of

incident. If he had really seen the original accused no.1 in the

company of deceased, he could have very well informed the police

about the same on 21st. In that view of the matter, we find that

prosecution has failed to prove the circumstance of original accused

no.1 last seen in the company of deceased beyond reasonable doubt.

19. Insofar as the circumstance regarding original accused no.1

asking Nandlal Rahangdale (PW-10) to give false information to the

police is concerned, prosecution relies on the evidence of said witness

Nandlal, who is distantly related to accused no.1. In his evidence, he

states that, on 20.4.2011, accused no.1 had telephoned him that he

will be coming to his place for dinner. However, he did not come and

came there in the next day morning. He states that at around 7.00

a.m. there was a ring on his mobile phone from his wife. He further

22 apeal278.13.odt

states that accused Sevaklal told him that he was told by his wife that

yesterday the person whom he had left at Gadchandur was murdered

and that his father had been to her house. Witness Nandlal further

states that though he was asked to speak to police, he refused to do

so. He further states that accused no.1 had requested him to tell police

that accused Sevaklal was in his house beyond night. However, it is to

be noted that his statement is recorded on 2.5.2011. He further

admitted that, for the first time, he had told police on 2.5.2011

regarding telephonic conversation between him and Sevaklal. Apart

from that, merely a false explanation or failure to give explanation

cannot be a circumstance to complete the chain of circumstances to

prove the guilt beyond reasonable doubt. It will be appropriate to

refer to para 151 of the Judgment of Sharad Birdichand Sarda (cited

supra), which reads thus :

"151.It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the

weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete then a false plea or a false defence may be called

23 apeal278.13.odt

into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all

the links in the chain are complete and do not suffer from

any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by

a Court."

20. It could thus be seen that, as has been held by the Hon'ble

Apex Court, only after prosecution proves the case beyond reasonable

doubt on the basis of proven incriminating circumstances, false

explanation or failure to give explanation can be used only to give

credence to the finding of guilt as has been recorded. In that view of

the matter, as such we find that the said evidence of Nandlal

Rahangdale (PW-10) will also be of no assistance to the prosecution

case.

21. That leads us to the last circumstance with regard to

confession of original accused nos. 2 and 3, which has been heavily

relied on by the learned trial Judge while arriving at the finding of

guilt.

24 apeal278.13.odt

22. The confessional statement of original accused no.2 was

recorded on 31st May, 2011 at 11.00 a.m. In the said statement, she

admits regarding her relationship with accused Sevaklal. She further

states that accused Sevaklal used to give threats to assault her and her

husband. She further states that, on account of drunkardness of her

husband, she had gone to her father's house. She further states that

after she came to her matrimonial house, she came to know from her

neighbourers that her husband died. She further states that accused

Sevaklal and three others had killed him. Perusal of her statement

would show that her version is based on hearsay knowledge and

suspicion. As such, the said statement would be of no use to the

prosecution case.

23. Insofar as original accused no.3 is concerned, his statement

was also recorded on the same day. The learned trial Judge has

reproduced the statement of this accused in extenso. Perusal of the

said statement would show that accused Moreshwar has stated about

accused Sevaklal giving him Rs.300/- for providing drinks to the

deceased. He further states regarding taking the deceased to the side

25 apeal278.13.odt

of the road. He further states regarding accused Sevaklal coming

there, assaulting the deceased with stone and thereafter asking him to

throw away the stone. He further states that accused Sevaklal had

asked him to keep mobile of deceased with him. He further states that

accused Sevaklal had given him new sim card prior to 3-4 days of the

incident and asked him to use the same. He has further states that he

had thrown the sim card of deceased in Wardha river. He further

states that accused no.1 had given him an amount of Rs.11,000/- and

asked him not to tell anything about the incident to any anyone.

Nodoubt that there is certification after confession by learned Judicial

Magistrate, First Class regarding confession being voluntary in nature.

The learned trial Judge has heavily relied on provisions of Section 30

of the Indian Evidence Act for using the said confessions for the

purpose of conviction.

24. The Apex Court in the case of Kashmira Singh .vs. The

State of M.P. reported in AIR 1952 SC 159, which case incidently had

arisen out of the Judgment of Nagpur High Court and the Judgment

was delivered by Hon'ble Shri Justice Bose, who had also adorned the

Seat as a Judge of Nagpur High Court, had an occasion to consider the

26 apeal278.13.odt

provisions of Section 30 r/w. Section 3 of the Indian Evidence Act.

The Apex Court in the said case held that confession of accused person

is not an evidence in the ordinary sense of the term as defined in

Section 3. It has been held that confession is a very weak type of

jevidence. The Apex Court observed in paragraph nos. 10 and 11

thus :

"10.Translating these observations into concrete terms they

come to this. The proper way to approach a case of this kind is, first to marshall the evidence against the accused

excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the

confession, then of course it is not necessary to call the

confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a

conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without

the aid of the confession he would not be prepared to accept.

11.Then, as regards its use in the corroboration of accomplices and approvers. A co-accused who confesses is

27 apeal278.13.odt

naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has

repeatedly been pointed out. The danger is in no way

lessened when the evidence is not on oath and cannot be tested by cross-examination. Prudence will dictate the same rule of caution in the case of a witness who though not an

accomplice is regarded by the Judge as having no greater probative value. But all these are only rules of prudence. So far as the law is concerned, a conviction can be based on

the uncorroborated testimony of an accomplice provided

the Judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would

be safe in a given case to disregard it. Two of us had occasion to examine this recently in Rameshwar v. The State of Rajasthan, Cri. App. No.2 of 1951 : (A.I.R. 1952

S.C. 54). It follows that the testimony of an accomplice can

in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. As the Privy Council observe in Bhuboni

Sahu vs. The King, 76 Ind. App 147 at p. 157 :

"The tendency to include the innocent with the guilty is

peculiarly prevalent in India, as Judges have noted on innumerable occasions, and it is very difficult for the Court to guard against the danger... The only real safeguard against the risk of condemning the innocent with the guilty

28 apeal278.13.odt

lies in insisting on independent evidence which in some measure implicates such accused. "

25. It could thus be seen that the Apex Court has held that the

proper way to approach a case is first to marshall the evidence against

the accused excluding the confession altogether from consideration and

see whether, if it is believed, a conviction could safely be based on it. It

has further been held that if conviction could safely be based on it, if it

is capable of belief independently of the confession, then it is not

necessary to call the confession in aid. However, the Apex Court has

further held that but cases may arise where the Judge is not prepared to

act on the other evidence as it stands even though, if believed, it would

be sufficient to sustain a conviction. In such an event, the Judge may

call in aid the confession and use it to lend assurance to the other

evidence and thus fortify himself in believing what without the aid of

the confession he would not be prepared to accept. It could thus be

seen that the Apex Court has held that first the other evidence has to be

marshalled and if upon accepting the evidence as proved by prosecution

independent of confession the Judge comes to the conclusion that guilt

of the accused is proved then there should be no difficulty in resting the

29 apeal278.13.odt

order of conviction. However, in a borderline case, though the evidence

brought on record may be found sufficient to pass an order of

conviction; however, the Judge is not prepared to do so, then, in such a

case, the confession can be used to corroborate the other evidence.

26. The law as laid down in the case of Kashmira Singh (supra)

further came for consideration before the Constitution Bench of the

Apex Court in the case of Haricharan Kurmi vs. State of Bihar

reported in AIR 1964 SC 1184 before the Constitution Bench of the

Apex Court. Their Lordships of the Apex Court considering a confession

which was somewhat similar to one given by original accused no.3

herein observed in paragraph 16 thus :

"It is true that the confession made by Ram Surat is a detailed statement and it attributes to the two appellants

a major part in the commission of the offence. It is also true that the said confession has been found to be voluntary, and true so far as the part played by Ram

Surat himself is concerned, and so, it is not unlikely that the confessional statement in regard to the part played by the two appellants may also be true; and in that sense, the reading of the said confession may raise a

30 apeal278.13.odt

serious suspicion against the accused. But it is precisely in such cases that the true legal approach must be

adopted and suspicion, however grave, must not be

allowed to take the place of proof. As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over

half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to

accept other evidence and feels the necessity of seeking

for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no

scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly

unsatisfactory and the prosecution seeks to rely on the

confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to

render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals. "

(emphasis supplied).

31 apeal278.13.odt

27. It could thus be seen that Their Lordships of the Apex Court

have observed that if the confession made by a person is found to be

voluntary and true insofar as the part played by the person making

confession is concerned, it was not unlikely that the confessional

statement in regard to the part played by the appellants may also be

true. The Apex Court further observed that in that sense, the reading of

the said confession may raise a serious suspicion against the accused.

However, Their Lordships observed that it is precisely in such cases

that the true legal approach must be adopted and suspicion, however

grave, must not be allowed to take the place of proof. Their Lordships

observed that in cases where the other evidence adduced against an

accused person is wholly unsatisfactory and the prosecution seeks to

rely on the confession of a co-accused, the presumption of innocence

which is the basis of criminal jurisprudence assists the accused person

and compels the Court to render the verdict that the charge is not

proved against him, and so, he is entitled to the benefit of doubt.

28. The Apex Court in a recent Judgment in the case of

Pancho .vs. State of Haryana reported in AIR 2012 SC 523 has

reiterated the same position. It has been held by Their Lordships that

32 apeal278.13.odt

the Court cannot start with confession of co-accused. It must begin with

other evidence adduced by prosecution and after it has formed its

opinion with regard to the quality and effect of said evidence, then only

it is permissible to turn to confession.

29. Applying the principle as laid down by the Apex Court, we

have scrutinized the other evidence as is led by the prosecution against

the present appellants i.e. original accused nos. 1 and 2. We have come

to the conclusion that prosecution has failed to prove a single

incriminating circumstance. In any case, prosecution has utterly failed

to prove the chain of circumstances which interlinked to each other

leads to no other conclusion than the guilt of the accused. In that view

of the matter, the confession of original accused no.3, in our view,

could not have been the sole basis for conviction of original accused

nos. 1 and 3. As already held by the Apex Court, however grave the

suspicion be, it cannot be permitted to take place of proof beyond

reasonable doubt. In such a case, accused would be entitled to the

benefit of doubt. In the result, both the appeals are allowed. The order

of conviction and sentence recorded by the learned Additional Sessions

33 apeal278.13.odt

Judge, Chandrapur, dt.7.1.2013 in Sessions Case No.106 of 2011 is

quashed and set aside.

The appellants are acquitted of the charges charged with.

They are directed to be set at liberty forthwith, if not required in any

other case.

                            JUDGE                                    JUDGE




                                                 
         jaiswal