Rameshwar S/O Dinaji Dhawde (In ... vs The State Of Maharashtra Through ...
2016 Latest Caselaw 988 Bom

     CRI.APPEAL NO.455.13.odt                      1




                                                                                   
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   NAGPUR BENCH : NAGPUR




                                                           
                             CRIMINAL APPEAL NO.455 OF 2013




                                                          
     Rameshwar s/o Dinaji Dhawde,
     Aged about 22 years,
     R/o. Bramhni, Tahsil-Amgaon,
     District-Gondia.
     (Presently at Central Prison, Nagpur)                  ..             Appellant




                                              
                              ig    .. Versus ..

     The State of Maharashtra,
     through P.S.O., P.S. Amgaon,
                            
     District - Gondia.                                     ..             Respondent


                           ..........
      

     Shri R.M. Daga, Advocate for the Appellant,
     Shri M.J. Khan, A.P.P. for the Respondent-State.
   



                           ..........

                                    CORAM :  B.R. GAVAI  AND
                                             MRS. SWAPNA JOSHI, JJ.

DATED : MARCH 30, 2016.

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

1. The appellant challenges the judgment and order passed by

the learned Sessions Judge, Gondia in Sessions Trial No.41/2012, dated

6.4.2013, vide which the learned Trial Judge has convicted and

sentenced the appellant for the offences punishable under Sections 302

and 309 of the Indian Penal Code. The accused is sentenced to undergo

imprisonment for life and to pay a fine of Rs.5,000/-, in default to

undergo rigorous imprisonment for six months for the offence

punishable under Section 302 of the Indian Penal Code, whereas the

accused is sentenced to suffer simple imprisonment for six months for

the offence punishable under Section 309 of the Indian Penal Code.

2. The prosecution case, in brief, is thus :

The deceased Motabai was a mother of the appellant and

they were residing together at Brahmni, Tahsil-Amgaon, District-Gondia.

Deceased Motabai was receiving pension after the death of her husband.

The appellant was not doing anything and was addicted to liquor. It is

the case of the prosecution that the appellant used to demand money

from deceased Motabai for consuming liquor and on that count there

used to be quarreled between them.

On the morning of 13.6.2011, PW-1 Devraj Dhawde, who is

cousin of the appellant, learnt that deceased Motabai was lying dead in

her house. Consequently he visited the house of deceased Motabai. On

visiting the house, he saw deceased Motabai was lying on the ground

and there were injuries on her person. Two sickles and one axe was

found lying which were stained with blood. The appellant was sitting in

his house and there was injury on his person also. The accused

informed Devraj Dhawde (PW-1) that he had attacked deceased Motabai

by means of sickles and axe and caused her death as she did not pay

money for consuming liquor. The accused also informed that after

commission of this heinous act, he had repentance and consequently he

attempted to commit suicide. PW-1 Devraj called the President of the

"Tanta Mukti Samiti" and also the Police Patil. Both of them i.e. PW-2

Kewalram Pande, Police Patil and PW-3 Kashiram Nagrikar, the

President of the "Tanta Mukti Samiti" came on the scene of occurrence.

The appellant informed them about the commission of crime.

Telephonic information was given to the police, who arrived at the spot

and removed the accused to the Rural Hospital, Amgaon.

First Information Report came to be lodged, vide Crime

No.59/2011, below Exh.41. Oral report was lodged by PW-1 Devraj

Dhawade below Exh.40. On the basis of the same, the printed FIR was

registered vide Crime No.59/2011, below Exh.41. Investigation was set

into motion. At the conclusion of investigation, charge-sheet came to be

filed in the Court of learned Judicial Magistrate, First Class, Amgaon.

Since the offence was exclusively triable by the Court of Sessions, the

case came to be committed to the Sessions Court, Gondia. The charges

for the offences punishable under Sections 302 and 309 of the Indian

Penal Code came to be framed against the accused. The accused

pleaded not guilty and claimed to be tried. At the conclusion of the trial,

the learned Trial Judge passed the order of conviction and sentence as

afore-stated. Being aggrieved thereby the present appeal.

3. Shri R.M. Daga, the learned counsel appearing on behalf of

the appellant, submits that the conviction is based solely on the

circumstances of extra-judicial confession. Learned counsel further

submits that extra-judicial confession is a very weak piece of evidence.

Learned counsel submits that unless there is some corroboration by

proving incriminating circumstances, a conviction on the basis of an

extra-judicial confession would not be sustainable. Learned counsel

submits that for accepting the extra-judicial confession to be valid, it is

necessary that it should be truthful, voluntary and the one which would

inspire confidence in the mind of the Court. Learned counsel submits

that the perusal of the evidence of PW-2 and PW-3 itself would reveal

that the so called extra-judicial confession is after a question was put to

the accused. Learned counsel, therefore, submits that in view of the law

laid down by the Hon'ble Apex Court in the case of Sahadevan and

another .vs. State of Tamil Nadu, reported in (2012) 3 SCC (Cri), 146

and the Division Bench of this Court in the case of Ishwar s/o Pandurang

Masram .vs. The State of Maharashtra, reported in 2013 ALL MR (Cri)

2750, to which one of us (B.R. Gavai, J) was a Party, the said extra-

judicial confession cannot be treated as a voluntary and the conviction

cannot be based on the basis of the said dying declaration without there

being corroboration. Learned counsel further submits that the present

case being based on circumstantial evidence, it is necessary for the

prosecution to prove that no other hypothesis than the guilt of the

accused is possible. It is, therefore, submitted that conviction cannot be

based on such evidence. Learned counsel, therefore, prays for allowing

the appeal and setting aside the order of conviction and sentence.

Learned counsel further submits that even accepting the prosecution

case as it is, the death has occurred due to heavy blood loss and not as a

direct result of injuries sustained by the deceased. Learned counsel

submits that, as a matter of fact, the conduct of the appellant in

immediately showing repentance by causing grievous injuries, which

then resulted into the death, offence would rather fall under Section

304-I of the Indian Penal Code. Therefore, in the alternative, learned

counsel submits that if this Court is not inclined to set aside the order of

conviction, then from the material placed on record, this Court may

come to a conclusion that the offence would not fall under Section 302

of the Indian Penal Code.

4. Shri M.J. Khan, the learned Additional Public Prosecutor

appearing on behalf of the respondent-State, submitted that merely

because the conviction is based on the circumstantial evidence, the

extra-judicial confession cannot be thrown out of consideration.

Learned Additional Public Prosecutor submits that unless it is pointed

out that the confession is given under threat, coercion, duress or on

some promises, the same will have to be held to be voluntary and

truthful and the conviction could be based on the basis of the same.

Learned Additional Public Prosecutor has done elaborate research on the

issue and has pointed out to us various judgments of the Hon'ble

Supreme Court. Shri Khan has placed reliance on the judgment of the

Hon'ble Apex Court in the cases of Ajay Singh .vs. State of Maharashtra,

reported in 2007 (3) Crimes 1 (SC), Ram Singh .vs. Sonia and others,

reported in 2007 (2) Crimes 1 (SC) and Chattar Singh and another .vs.

State of Haryana, reported in 2009 CRI.L.J. 319.

5.

With the assistance of the learned counsel for the appellant

and the learned Additional Public Prosecutor for the respondent-State,

we have scrutinized entire evidence on record.

6. Undisputedly, the present case is based on circumstantial

evidence. As has been held by the Hon'ble Apex Court in the case of

Sharad Birdhichand Sarda .vs. State of Maharashtra, reported in (1984)

4 SCC 116 that for resting a conviction on the basis of circumstantial

evidence, it will be necessary for the prosecution to prove beyond

reasonable doubt each and every incriminating circumstances. Not only

this but the prosecution will have to establish the chain of circumstance

which is so interwoven to each other that leads to no other conclusion

than the guilt of the accused. Prosecution will also have to establish that

every hypothesis except the guilt of the accused is ruled out. In the light

of these guiding principles as laid down by the Hon'ble Apex Court, we

have examined prosecution evidence, as has been brought on record.

7. The learned Trial Judge has relied on ten incriminating

circumstances as has been pointed out in paragraph 7 of the judgment.

Since in an appeal we are required to re-appreciate the evidence to find

out as to what are the circumstances which are proved by the

prosecution beyond reasonable doubt and as to whether the

circumstances so proved make out a case of conviction or not.

8.

We are of the considered view that the prosecution has

proved following circumstances beyond reasonable doubt.

(1) Extra-judicial confession;

(2) Motive;

(3) Finding of the accused and the deceased on the

spot of incident immediately after the death of the deceased;

(4) The First Information Report immediately lodged

after the incident which implicates the present appellant.

9. Insofar as the first circumstance is concerned, Shri Daga,

learned counsel for the appellant heavily attacks on extra-judicial

confession. He submits that the extra-judicial confession solely cannot

be a circumstance for resting the order of conviction. We may gainfully

refer to the law laid down by the Hon'ble Apex Court in various cases.

It will be relevant to refer the following observations of the Hon'ble Apex

Court in the case of Chattar Singh .vs. State of Haryana.

"An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the

court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the

evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the

confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can

be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even

remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the

witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime

and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be

the basis of a conviction if it passes the test of credibility."

(emphasis supplied)

It could thus be seen that the Apex Court in clear terms held that the

value of the evidence as to the confession depends on the reliability of

the witness who gives the evidence. It is further held that it is not open

to any court to start with a presumption that extra-judicial confession is

a weak type of evidence. It would depend on the nature of the

circumstances, the time when the confession was made and the

credibility of the witnesses who speak of such a confession. It has been

held that such a confession can be relied upon and conviction can be

founded thereon if the evidence about the confession comes from the

mouth of witnesses who appear to be unbiased, not even remotely

inimical to the accused. A conviction can be based on the basis of such a

conviction if words spoken to by the witness are clear, unambiguous and

unmistakably convey that the accused is the perpetrator of the crime. It

has been held that after subjecting the evidence of the witness to a

rigorous test on the touchstone of credibility, the extra-judicial

confession can be accepted and can be the basis of a conviction.

10. In the case of Chattar Singh and another .vs. State of Haryana

(supra), Hon'ble Apex Court had again an occasion to consider the

position with regard to extra-judicial confession. It will be relevant to

refer to the following observations made in paragraphs no.17 & 18 of

the aforesaid judgment.

"17..... If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the

veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by

them for the purpose of securing such a confession. The

question whether a confession is voluntary or not is always a question of fact. All the factors and all the

circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or

promise, must be considered before deciding whether the court is satisfied that in its opinion the impression

caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is

deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. (See R.V.

Warickshall). It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human

nature, if the facts confessed were not true. Deliberate

and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of

the maker of it. So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender

and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe's Evidence, 9th Edn., p. 284). A promise is always attached to the

confession alternative while a threat is always attached

to the silence alternative; thus in one case the prisoner is measuring the net advantage of the promise, minus the

general undesirability of false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present

satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must

be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of

the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or

promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the court is to determine the absence of presence of an inducement,

promise etc. or its sufficiency and how or in what

measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the court, to give the accused persons grounds which

would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words

"appear to him" in the last part of the section refer to the mentality of the accused.

18. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the

witness to whom it has been made. The value of the

evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any

court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the

confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can

be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth

of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom

nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the

witness are clear, unambiguous and unmistakably

convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the

witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of

credibility."

It could thus be seen that the Apex Court in clear terms has held that a

deliberate and voluntary confessions of guilt, if clearly proved, are

among the most effectual proofs in law. It has been further held that an

involuntary confession is one which is not the result of the free will of

the maker of it. It has been further held that where the statement is

made as a result of harassment and continuous interrogation for several

hours after the person is treated as an offender and accused, such

statement must be regarded as involuntary. It has further been held

that if the statement is extracted by promise, threat, then such a

confession would not be admissible in law. However, the Apex Court

held that every inducement, threat or promise does not vitiate a

confession. It has been held that the object of the rule is to exclude only

those confessions which are testimonially untrustworthy. The

inducement, threat or promise must be such as is calculated to lead to an

untrue confession. The Apex Court further held that the value of the

evidence as to the confession depends on the reliability of the witness,

who gives the evidence. It has been held that the trustworthiness of the

confession would depend on the nature of the circumstances, the time

when the conviction was made and the credibility of the witnesses who

speak to such a conviction. It has been held that after subjecting the

evidence of the witness to a rigorous test on the touchstone of

credibility, the extra-judicial confession can be accepted and can be the

basis of a conviction if it passes the test of credibility.

11. Insofar as the judgment of the Apex Court in the case of

Sahadevan and another .vs. State of Tamil Nadu (supra), on which Shri

Daga, the learned counsel for the appellant, strongly relied is concerned,

the said judgment also reiterates the same position of law. The Hon'ble

Apex Court has reproduced various judgments in the said case. It will

be relevant to refer to paragraph 15 of the said judgment.

"15. Now, we may examine some judgments of this

Court dealing with this aspect.

15.1. In Balwinder Singh v. State of Punjab, this Court stated the principle that :

"10. An extra-judicial confession by its

very nature is rather a weak type of evidence and requires appreciation with a great deal of care and

caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.

15.2. In Pakkirisamy v. State of T.N., the Court held that :

"8... It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any

reliance upon such extra-judicial confession".

15.3. Again in Kavita v. State of T.N., the Court stated the dictum that :

"4. There is no doubt that convictions can be based on extra-judicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any

other fact and the value thereof depends upon veracity

of the witnesses to whom it is made.".

15.4. While explaining the dimensions of the

principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in

State of Rajasthan v. Raja Ram, stated the principle that :

"19. An extra-judicial confession, if

voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will

have to be proved like any other fact. The value

of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made."

The Court further expressed the view that :

"19. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of

witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to

indicate that he may have a motive of attributing an untruthful statement to the accused."

15.5. In Aloke Nath Dutta v. State of W.B., the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material as unjustified, observed:

"87. Confession ordinarily is admissible in

evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances

and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the

said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii)

truthfulness of the confession; and (iii) corroboration.

ig 89. A detailed confession which would otherwise be within the special knowledge of the

accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If

it is not done, no conviction can be based only on

the sole basis thereof."

15.6. Accepting the admissibility of the extra-

judicial confession, the Court in Sansar Chand v. State of Rajasthan held that :-

"29. There is no absolute rule that an extra-judicial confession can never be the basis of a

conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P., Sivakumar v.

                     State  (SCC paras 40 and 41 : AIR paras 41 &  42),  
                     Shiva     Karam     Payaswami   Tewari   v.   State   of  
                     Maharashtra and Mohd. Azad v. State of W.B.]




                     30.     In   the     present     case,     the     extra-judicial  




                                                                                        
                     confession     by   Balwan   has   been   referred   to   in   the  

judgments of the learned Magistrate and the Special

Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of

inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872."

15.7. Dealing with the situation of retraction from the extra-judicial confession made by an accused,

the Court in Rameshbhai Chandubhai Rathod v.

State of Gujarat, held as under :

                                    "53.     It   appears,   therefore,   that     the  
                     appellant     has     retracted     his   confession.   When   an  
      

extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must

invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted

confession, unless the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true."

15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra- judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire

confidence and the court should find out whether

there are other cogent circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B. and

Pancho v. State of Haryana].

12. It could thus be seen that after surveying the earlier position

of law, Their Lordships of the Apex Court came to the conclusion that

the extra-judicial confession must be established to be true and made

voluntarily and in a fit state of mind. The words of the witnesses must

be clear, unambiguous and should clearly convey that the accused is the

perpetrator of the crime. It has further reiterated that the extra-judicial

confession can be accepted and can be the basis of conviction, if it passes

the test of credibility. The extra-judicial confession should inspire

confidence and the Court should find out whether there are other cogent

circumstances on record to support it. No doubt, in the said case, Their

Lordships rejected the extra-judicial confession on the ground that it was

recorded after four days and that the statement which is sought to be

made in the extra-judicial confession on the independent scrutiny of the

evidence was found to be not established by the Court. On the contrary,

it was found that the motive which was attributed to the said extra-

judicial confession was contradicted by the prosecution witnesses itself.

13. Insofar the judgment of the Division Bench, to which one of

us (B.R. Gavai, J.) is a party, is concerned, in the said case also, the

Court has rejected the extra-judicial confession of three witnesses.

Insofar as one witness was concerned, his statement was recorded after

12 days and, therefore, his testimony was not found to be trustworthy.

Insofar as the second witness was concerned, the court did not accept

his testimony. Inasmuch as from the deposition, it was found that extra-

judicial confession was not given to him to a third person. Insofar as

third witness was concerned, it was found that extra-judicial confession

was not voluntarily as all answers were given in replies to the queries

made by his superior in an inquiry.

14. We are unable to accept the contention of Shri Daga, learned

counsel, that if a confession is given by an accused to a witness on some

questions being put to him, the said confession would partake character

of untruthfulness. We find that upon survey of the judgments of the

Hon'ble Apex Court, such would not be the position. A confession which

is held to be involuntarily must be extracted giving some threats,

coercion or promises. A confession given in an ordinary conversation by

asking some question would not by itself make it involuntarily. As has

already been held by the Apex Court, before accepting the evidence of

confession, the character of the witnesses, the circumstances in which it

is made and the time at which it is made, will have to be taken into

consideration by the Court.

15. In the light of this legal position, as enumerated by the Apex

Court, we will have to examine evidence regarding the extra-judicial

confession in the present case. PW-1 Devraj Thuna Dhavde is the first

informant. No doubt that he has turned hostile and denied lodging of

First Information Report. However, the First Information Report has

been duly exhibited in the evidence of PW-14 Pundlik Deshmukh, ASI,

who has recorded the First Information Report. His evidence is sought

to be attacked on the ground that he is a hostile witness. By now, it is

settled position of law that merely because witness is hostile witness, his

entire testimony need not be discarded. Such part of testimony of

hostile witness, which is found to be trustworthy and cogent, can be

accepted in evidence. In his examination-in-chief, he states that he had

visited the house of the accused and noticed that Motabai was lying on

the ground, accused was lying on the cot and one axe and two sickles

were also lying. He further states that the accused was stained with

blood. He further states that he noticed one axe and two sickles at that

place. Thereafter, he called the President of "Tanta Mukti Samiti" and

Police Patil. He further states that message was given on telephone to

police. However, the later part regarding his lodging of the report is

denied by him. However, it is pertinent to note that in his cross-

examination, he has stated thus :

"It is correct to say that I and Police Patil visited house of accused. It is correct to say that Motabai was lying

there and one axe and two sickles were also lying. It is

correct to say that the accused informed that he had killed his mother, later on, he inflicted injuries on his

neck and private part."

It could thus be seen that this witness has clearly admitted in his

examination-in-chief that the Police Patil has visited the house of the

accused. He further admitted that Motabai was lying there and one axe

and two sickles also lying. He further admitted that the accused

informed him that he had killed his mother and inflicted injuries on his

neck and private part. It could thus be seen that the said confession is

given by the accused to his own cousin immediately after the incident.

16. The next witness is PW-2 Kewalram Patle. In his

examination-in-chief he states thus :

"In my presence Devraj asked the accused what had

happened. At that time the accused informed that as Motabai did not pay him money for consuming liquor, therefore, he had killed Motabai. At that time, accused

also informed that due to repentance he decided to finish his life and he inflicted injuries on his neck and private part."

It could thus be seen that the accused had also given extra-judicial

confession in the present case to this witness that he had killed Motabai.

He had also informed that due to repentance, he decided to finish his life

and he inflicted injuries on his neck and private part. Insofar as the

extra-judicial confession is concerned, in the cross-examination, neither

there is any suggestion that confession was involuntarily or was given

under threat or coercion. As such no damage has been done to the extra-

judicial confession given in the examination-in-chief to this witness.

17. The third witness is PW-3 Kashiram Nagrikar, who was the

President of "Tanta Mukti Samiti". He states in his evidence that on

13.6.2011 he received telephone call from the Police Patil at about 6.30

a.m., who informed him that accused had killed Motabai. He went to

the house of Police Patil. Thereafter, he and Police Patil went to the

house of the accused. Motabai was lying on ground and the accused

was sitting there. There were injuries on the person of Motabai, one axe

and two sickles were lying on the ground. The relevant part of his

evidence is reproduced thus :

"We asked the accused what had happened. The accused informed that as Motabai did not pay money for liquor, therefore, he killed Motabai."

Insofar as this witness is concerned, only three questions are asked to

him in his cross-examination. There is not a single question asked in the

cross-examination about extra-judicial confession.

18. In the totality of the circumstances, we are of the considered

view that the evidence of all three witnesses i.e. PW-1 Devraj Dhavde,

PW-2 Kewalram Patle and PW-3 Kashiram Nagrikar is reliable,

trustworthy and cogent. All three of them have reached the spot

immediately. The time gap between the incident and the extra-judicial

confession is very short. It was done immediately after the incident of

attack on the mother and the attack on himself due to repentance. The

perusal of the testimony of all these witnesses would reveal that these

witnesses are independent witnesses. Nothing has been brought on

record that they are having any inimical terms with the accused. We,

therefore, find that the witnesses are reliable, credible and their

testimony is trustworthy. We further find that the words in which

confession is given to them by accused clearly implicates the accused in

the crime. We, therefore, found that the prosecution has proved the

circumstances of extra-judicial confession, which is voluntarily,

trustworthy and cogent beyond all reasonable doubt. The extra-judicial

confession of the witnesses, as reproduced by us, is clearly admits the

guilt of the accused.

19. As already discussed herein-above, the conviction could also

be rested only on the basis of sole circumstances of extra-judicial

confession. However, as has been held by the Hon'ble Apex Court, it will

always be prudent to find some corroboration from the other

circumstances.

20. We find that the prosecution has also proved the

circumstances of motive beyond reasonable doubt. The evidence of

PW-2 Kewalram Patle would show that the accused was not doing any

work, he was addicted to liquor and he used to quarrel with deceased

Motabai. He further states that Motabai had complained to "Tanta

Mukti Samiti" alleging that accused used to beat her. He further states

that an understanding was given to accused. The extra-judicial

confession made by him to this witness would also show that since

Motabai did not pay money for consuming liquor, he had killed Motabai.

The testimony of this witness is duly corroborated by PW3-Kashiram

Nagrikar. He has also stated in his evidence that accused used to

demand money for the liquor from Motabai. He has further stated that

the accused used to dispute for money and, therefore, Motabai had gone

to her daughter for some time. The extra-judicial confession made to

him also show that the accused informed that as Motabai did not pay

money for liquor, he had killed Motabai. We are, therefore, of the

considered view that the prosecution has proved the motive behind the

crime. The prosecution has proved beyond reasonable doubt that denial

on the part of Motabai of giving money to the accused for purchasing

liquor was the motive behind the crime.

21. The third circumstance, which we find that the prosecution

has proved is immediate lodging of the First Information Report and the

implication of the present appellant therein. The evidence of PW-1

Devraj, PW-2 Kewalram and PW-3 Kashiram would clearly show that

immediately after they came to know about the incident, police arrived

at the spot immediately. Though PW-1 has denied lodging of First

Information Report, which is below Exh.41, it is proved in the evidence

of PW-14. The First Information Report is lodged within a hour of the

incident coming into notice and it clearly implicates the present

appellant.

22. The next circumstance, which we find that the prosecution

has proved beyond reasonable doubt is, that immediately after the

incident, the deceased Motabai and the appellant were found together

on the spot in an injured condition. The evidence of PW-1 Devraj, PW-2

Kewalram and PW-3 Kashiram would prove beyond reasonable doubt

that immediately after the incident, the deceased and the accused were

found together on the spot.

23. We are, therefore, of the considered view that the prosecution

has proved beyond reasonable doubt the aforesaid incriminating

circumstances and has further proved that the circumstances so proved

are so interwoven to each other that lead to no other conclusion than

the guilt of the accused. We are, therefore, of the considered view that

no interference is warranted in the findings of the learned Trial Court

that it is the present appellant alone who is an author of the crime.

24. The next question is, as to whether, the conviction under

Section 302 of the Indian Penal Code is sustainable or not. The perusal

of the spot panchanama would reveal that one axe and two sickles were

found on the spot. The evidence of PW-7 Dr. Rishekesh Sambharkar

would reveal that he had noticed following two injuries on the person of

the deceased.

(1) Stab wound on right side of neck, 6 x 2 x 3.5 c.m.s, right side at thyroid cartelage upto below the pinna.

(2) Incised wound at right parital occipital region 5 x 0.5 c.m."

The cause of death given by him is due to haemmorhogic shock. In

his evidence, he has admitted that deceased had died due to sudden loss

of blood. As against this, it could be seen that the injuries sustained by

the appellant are of more grievous nature. The appellant has sustained

following injuries.

(i) Incised wound on throat, 7 x 2 x 1 c.m.

(ii) Incised wound on lower part of penis or panic, 3.5 x 0.5 x 0.5 c.m.

(iii) Small hesitation wound on middle part of penis or panic, 1 x 0.5 x 0.5 c.m.

It could thus be seen that the possibility of the appellant getting annoyed

on account of the denial of the deceased Motabai in refusing to pay any

heed to his demand for purchasing liquor and out of this they quarreling

and in that quarrel, in a heat of passion, the appellant assaulting the

deceased, cannot be ruled out. From the nature of injuries, it cannot be

said that the appellant has taken undue advantage or acted in a cruel or

unusual manner. On the contrary, it appears that immediately after

noticing that he has done what he should not have done, he has

assaulted himself and in which he has sustained more grievous injuries.

We, therefore, find that the case would rather fall under Exception 4 of

Section 300 of the Code of Criminal Procedure. We are, therefore, of the

view that the conviction under Section 302 of the Indian Penal Code

would not be sustainable and the conviction would be rather under

Section 304 Part-I of the Indian Penal Code. Insofar as the conviction

under Section 309 of the Indian Penal Code is concerned, we find that

no interference is warranted.

25. In the result, the Criminal Appeal is partly allowed. The

order of conviction under Section 302 of the Indian Penal Code

is altered to one under Part-I of Section 304 of the Indian Penal Code

and the appellant-accused is sentenced to suffer rigorous

imprisonment for ten years for the said offence. Rest of the order

impugned is maintained.

26. We place on record our appreciation to Shri M.J. Khan, the

learned Additional Public Prosecutor appearing on behalf of the

respondent-State for valuable assistance rendered by him.

                              JUDGE                                   JUDGE
     Gulande