Bombay High Court
Santosh S/O Bhagwan Tammewar vs The State Of Maharashtra And Anr on 18 April, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 852 OF 2017
Santosh S/o Bhagwan Tammewar
Age : 40 years, Occ : Business,
R/o Shankar Nagar, Tq. Biloli,
Dist. Nanded.
..APPLICANT
-VERSUS-
1) The State of Maharashtra
Through Ramtirth Police Station,
Dist. Nanded.
2) Umesh S/o Vitthalrao Phulari
Age : 26 years, Occ : Agri.,
R/o Naigaon, Tq. Naigaon,
Dist. Nanded.
..RESPONDENTS
...
Advocate for applicant :Mr. R.S. Shinde holding
for Mr. S.S. Patil
APP for Respondent/State : Mr. S.G. Karlekar
Advocate for respondent no.2 : Mr. U.B. Bilolikar
...
CORAM : S.S. SHINDE &
K.K. SONAWANE, JJ.
RESERVED ON : 12th April, 2017
PRONOUNCED ON : 18th April, 2017
JUDGMENT (PER S.S. SHINDE, J) :-
This application is filed by the
original complainant seeking leave to appeal
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against the judgment and order dated 8th July,
2016 passed by the Additional Sessions Judge,
Biloli in Sessions Case No.2/2015, thereby
acquitting original accused no.3 - Umesh
Phulari.
2. The learned counsel appearing for
the applicant invites our attention to the
grounds taken in the application and submits
that, out of four accused, three accused are
convicted by the trial Court and they have
filed Appeal before this Court, which is
pending. It is submitted that, as against
respondent no.2, there is specific evidence
available on record, however, the trial Court
has acquitted him without properly
appreciating the said evidence on record. It
is submitted that, on the same set of
evidence, when other three co-accused are
convicted, there was no reason for the trial
Court to acquit the present respondent no.2.
It is submitted that, all three accused, who
are convicted, have categorically stated the
involvement of respondent no.2, and
therefore, the application seeking leave to
appeal may be allowed.
3. The learned A.P.P. appearing for the
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respondent/State adopted the arguments
advanced by the learned counsel appearing for
the applicant and submits that, the
application deserves to be allowed.
4. The learned counsel appearing for
respondent no.2, relying upon the findings
recorded by the trial Court and the original
record containing the notes of evidence,
submits that, there is absolutely no evidence
as against the present respondent no.2. He
submits that, except the statements of co-
accused implicating respondent no.2, there is
no other evidence at all. He submits that,
the benefit of doubt is rightly extended in
favour of respondent no.2, and therefore, the
application seeking leave to file appeal may
be rejected.
5. We have given careful consideration
to the submissions of the learned counsel
appearing for the parties. With their able
assistance, we have perused the grounds taken
in the application, annexures thereto and the
original record containing the notes of
evidence.
6. Upon careful perusal of the entire
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evidence, it appears that, except the
statements of co-accused, there is no other
evidence available as against respondent
no.2. In case of other three co-accused, who
are convicted, their statements were
recorded, which were treated as confessional
statements. However, in case of present
respondent no.2, even his statement is not
recorded, which can be treated as
confessional statement. In fact, there are no
confessional statements of the accused
recorded in this matter as contemplated under
the Evidence Act. The learned Trial Court
considered the memorandum statement of
accused recorded for recovery of
incriminating articles under section 27 of
Evidence Act. Admittedly, the entire case is
based upon circumstantial evidence. In case
of co-accused, they made confessional
statements and even the panchas to the said
statements have supported the prosecution
case. Therefore, we find it difficult to
persuade ourself to grant relief in favour of
the applicant. The conviction cannot be based
upon solely statements of the co-accused in
absence of any other piece of evidence.
7. The Supreme Court in the case of
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Haricharan Kurmi V/s State of Bihar 1 has held
that, as a result of the provisions contained
in Section 30 of Evidence Act, the confession
of a co-accused has to be regarded as
amounting to evidence in a general way,
because whatever is considered by the Court
is evidence; circumstances which are
considered by the Court as well as
probabilities do amount to evidence in that
generic sense. Thus, though confession may be
regarded as evidence in that generic sense
because of the provisions of section 30, the
fact remains that, it is not evidence as
defined by section 3 of the Act. The result,
therefore, is that in dealing with a case
against an accused person, the Court cannot
start with the confession of a co-accused
person; it must begin with other evidence
adduced by the prosecution and after it has
formed its opinion with regard to the quality
and effect of the said evidence, then it is
permissible to turn to the confession in
order to receive assurance to the conclusion
of guilt which the judicial mind is about to
reach on the said other evidence. It has been
further held that, thus, the confession of a
co-accused person cannot be treated as
1 AIR 1964 SC 1185
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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. The
Supreme Court has also reiterated the same
view in the cases of Union of India V/s Bal
Mukund and others2, R. Janakiraman V/s State
Represented by Inspector of Police, CBI, SPE,
Madras3, Pancho V/s State of Haryana4 and
Sunil Rai Alias Pauya and others V/s Union
Territory, Chandigarh5
8. The High Court of Kerala in the case
2 (2009) 12 SCC 161
3 (2006) 1 SCC 697
4 (2011) 10 SCC 165
5 (2011) 12 SCC 258
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of C.B. Xavier Cochin V/s Inspector,
Mattancherry Municipality, Mattancherry6 has
held that, the confession of a co-accused in
no doubt admissible in evidence, but such
confession uncorroborated by any other
evidence alone is not sufficient to sustain
conviction. Further the court cannot straight
way start with the confession of a co-
accused, if there is substantial evidence
against the accused and there remains some
doubt lingering, the confession of the
accused may be taken into account to set that
doubt at rest. Thus the confession of a co-
accused can be invoked only to give
additional strength or added assurance to the
other items of evidence led into the case
already. But where there is no other item of
evidence to connect the first accused with
the crime, the statement of the second
accused made in the course of his Section 342
examination cannot be pressed into service in
assessing the guilt of the first accused.
9. For the reasons aforesaid, we are
not inclined to entertain the application
seeking leave to appeal. Hence the
application sands rejected. Leave to file
6 AIR 1968 KERA 66 (V 55 C23)
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appeal as against respondent no.2 - Umesh
Vitthalrao Phulari stands refused.
(K.K. SONAWANE, J.) (S.S. SHINDE, J.)
SGA
