police and gives statement, he may be deemed to have surrendered
himself to the custody of police and he may be deemed to be in the
custody of police. In this regard, the provision of section 46 (1) of
Cr.P.C. can be referred and it runs as under :-
"46. Arrest how made. -(1) In making an arrest the
police officer or other person making the same shall
actually touch or confine the body of the person to be
arrested, unless there be a submission to the custody
by word or action."
Thus, in a case like present one, when person like accused No. 1 is
before police and he makes statement about commission of
cognizable offence, murder, the Court can presume that he had
submitted himself to the custody of police and he was inviting
accusation of offence of murder. Whether that information is
admissible in the evidence or not is the different point, but due to
disclosure made, it can be presumed that he had submitted himself
to the custody of police by his word and also by his action.
29) It was submitted for the appellants, accused that for
using section 27 of the Evidence Act, 'statement' of the person
needs to be proved and in the present matter, there is no such
statement, no separate memorandum of statement of accused No. 1
and evidence is given only on the conduct of accused, showing the
Cri. Appeal No. 486/02 & Ors.
place from where the dead body is recovered. In this regard, it can
be said that the record created by Shelke (PW 14) shows that the
information was supplied by accused No. 1. He prepared the record
of that information by mentioning the statement in F.I.R. and by
incorporating the statement in other documents like panchanama as
already mentioned. Whether that record is sufficient can be
ascertained from the provision of section 162 (1) of Cr.P.C. The
provision of section 162 (1) of Cr.P.C. runs as under :-
"162. Statements to police not to be signed: use
of statements in evidence.- (1) No statement made
by any person to a police officer in the course of an
investigation under this Chapter, shall, if reduced to
writing, be signed by the person making it; nor shall
any such statement or any record thereof, whether in a
police diary or otherwise, or any part of such
statements or record, be used for any purpose, save as
hereinafter provided, at any inquiry or trial in respect
of any offence under investigation at the time when
such statement was made.
(2) Nothing in this section shall be deemed to apply
to any statement falling within the provisions of clause
(1) of section 32 of the Indian Evidence Act, 1872 (1of
1872), or to affect the provisions of section 27 of that
Act."
Thus, the statement as per the aforesaid provision can be found in
Cri. Appeal No. 486/02 & Ors.
any record including the F.I.R. given by police officer. The wording of
provision of section 27 of the Evidence Act and also the exception
given in section 162 of Cr.P.C. need to be read together. These
provisions show that 'statement' of accused can be proved by
examining independent witnesses like panch witnesses and even by
examining other persons like Baban (PW 2) if the police officer is not
available. However, as it is the statement given to police officer, the
police officer like Shelke (PW 14) can definitely give evidence on the
statement made to him, if he has created the record of it as
mentioned in section 162 of Cr.P.C. The evidence discussed above
shows that only due to information supplied by accused No. 1, the
dead body of Babarao which was in buried condition came to be
recovered. So, this Court holds that the conditions laid down in
section 27 of the Evidence Act are satisfied in the present matter and
aforesaid evidence is sufficient to prove that accused No. 1 had
given statement to police and that led to discovery of fact, the dead
body of Babarao which was concealed by burying it at the place
shown by the accused No. 1. Here only it needs to be observed that
nowhere in section 162 of Cr.P.C. or section 27 of the Evidence Act, it
is laid down that there needs to be separate record of memorandum
and on it signature of the accused, who made statement needs to be
obtained.
30) The aforesaid discussion shows that there is not only the
Cri. Appeal No. 486/02 & Ors.
evidence under section 27 of the Evidence Act available against
accused No. 1, but there is evidence on motive. On motive, there is
more evidence of persons like Dhondabai (PW 1), mother of
deceased. Her evidence shows that she had not only learnt about the
illicit relations, but she had seen them in that position and such
evidence is brought on the record during cross examination. She has
given evidence that she had also informed police about her suspicion
which she was having against accused Nos. 1 to 4. She has given
evidence that during inquiry, accused told to police about the
incident. The distance between her village and village of Mardasgaon
is hardly 2 k.m. as per the evidence brought on record in her cross
examination. She has given evidence that the wife of deceased,
accused No. 3 was not giving information about the whereabouts of
deceased and she was not satisfied about the information supplied
by accused No. 3. She gave statement to police immediately i.e. on
17.8.1997. Further, there is the evidence of Ram Kale (PW 5)
showing that accused No. 1 was working with him in the same field
where deceased was living with his family. He has given evidence
that on inquiry accused No. 1 had supplied him information that the
deceased had gone to Gangakhed for marketing. Though some
omissions were confronted to Ram Kale in relation to the previous
statement, the omissions are not duly proved by putting the
omissions to the police officer, who recorded the statement. Thus,
accused No. 1, at whose instance dead body is recovered had
Cri. Appeal No. 486/02 & Ors.
supplied false information subsequent to 2.8.1997 that deceased had
gone to Gangakhed for marketing. The evidence of Ram Kale can be
used also on circumstance like opportunity to him. He has given
specific evidence that accused No. 1 used to live in the field, though
occasionally. His evidence shows that it is accused No. 1, who was
having control over everything in the field including the use and
operation of electrical pumps.
31) The prosecution has relied on the judicial confession of
accused No. 2 which is proved as Exh. 75 in the evidence of Kailas
Bankar (PW 15), the learned Judicial Magistrate, Gangakhed. This
Court has carefully gone through Exh. 75. This document shows that
it was recorded on 24.9.1997. Accused No. 2 did not admit that he
had taken active part either in murdering Babarao or in burying dead
body at the aforesaid place. He gave statement that threats were
given to him and due to that, he only remained present when
Babarao was murdered by accused No. 1 by electrocution and when
the dead body of Babarao was buried by accused Nos. 1 and 4. On
this point, the learned counsel for the appellants placed reliance on
observations made by the Apex Court in the case reported as AIR
1957 SC 216 [Balbir Singh Vs. State of Punjab]. In this case,
while discussing the provision of section 24 of the Evidence Act, the
Apex Court has laid down that if in the statement, it is mentioned
that the maker of the statement was unwilling spectator of the crime
Cri. Appeal No. 486/02 & Ors.
committed by other accused, such statement cannot be used against
co-accused. This proposition can be used in the present matter in
view of the contents of the statement. Further, the record shows that
when the statement under section 313 of Cr.P.C. was recorded, the
contents of Exh. 75 were not put to the accused persons to give
them opportunity to have their say in respect of the contents of Exh.
75. For this reason, Exh. 75, is of no use to the prosecution in the
present matter.
32) Prosecution has examined Dhondiba Kadam (PW 7), who
is panch witness on Exh. 51. This witness has tried to say that
accused No.2 had made the demonstration about the use of current
of electricity for electrocution and about taking the supply of
electricity illegally from supply wires of Electricity Board. This part of
the evidence cannot be used in view of the restrictions put by
section 27 of the Evidence Act. Under Exh. 51, two pieces of wires
are shown to be recovered from the farm house of Ram Kale. This
circumstance also cannot be called as incriminating circumstance.
The evidence of Ram Kale (PW 5) shows that it is accused No. 1, who
was controlling things in his field. Dhondiba, accused No. 2 was not
working in the field of Ram Kale. Further, there is no linking evidence
to show that by using these wires and by taking supply of electricity
electrocution was done. Thus, the evidence of Dhondiba Kadam (PW
7) cannot be used against accused No. 2 also.
Cri. Appeal No. 486/02 & Ors.
33) Prosecution has examined two employees of Electricity
Board like Maheboobkhan (PW 9) and Mohammad Rafiyoddin (PW
10). Maheboobkhan (PW 9) turned hostile. Through his evidence, the
prosecution wanted to prove that the supply of electricity was taken
illegally in the field of Ram Kale. Mohammad Rafiyoddin (PW 10) has
deposed that Maheboobkhan (PW 9) had informed that supply of
electricity was taken illegally in the field of Ram Kale. As
Maheboobkhan (PW 9) has not given such evidence, the evidence of
Rafiyoddin (PW 10) in that regard is of no use. In any case, if the
evidence of judicial confession of accused No. 2 is excluded from the
consideration, the evidence of PW 9 and PW 10 can be of no use to
the prosecution for any purpose. There are many more reasons for
the same.
34) The prosecution has examined Dr. Bhagwan (PW 4), who
conducted the P.M. examination on the dead body of Babarao. He
has given evidence that he conducted P.M. examination between
12.30 p.m. and 2.30 p.m. of 17.8.1997. His evidence shows that the
dead body was in decomposed condition and due to that he could
not form definite opinion regarding the cause of death. The P.M.
report at Exh. 42 and the evidence of doctor show that there was
blackish coloured contusion near right elbow and sub-cutaneous
tissues were petrified. But he has not given evidence that such injury
Cri. Appeal No. 486/02 & Ors.
can be caused due to electrocution. He had preserved viscera.
Though Investigating Officer has given evidence that viscera was
sent to expert, there is no opinion of anatomy expert. Thus, the
prosecution has no convincing evidence to prove that the cause of
death of Babarao is electrocution.
35) The learned counsel for appellants, accused placed
reliance on some observations made by the Apex Court in the case
reported as AIR 1975 SUPREME COURT 258 [The State of
Punjab Vs. Bhajan Singh and Ors.]. In that case, the dead body
recovered was in decomposed condition and due to that, doctor
could not form opinion that it was homicide. Benefit of this
circumstance and also omission on the part of investigating agency
to obtain report of anatomy expert was given to the accused. The
facts and circumstances of each and every case are always different.
In that case, features of the person on whose dead body doctor
performed P.M. examination were unrecognizable. In the present
case, the dead body is identified by close relatives and also by the
employer of deceased. There is also evidence on motive and there is
evidence on other circumstances like opportunity to accused No. 1.
Due to facts and circumstances of the present matter, this Court
holds that the observations made by the Apex Court in the case cited
supra are of no help atleast to accused No. 1.
Cri. Appeal No. 486/02 & Ors.
36) The aforesaid discussion shows that the evidence as
against accused No. 1, though circumstantial is sufficient to point
finger to him. It was necessary for him to explain the things. When
the dead body in aforesaid condition is recovered and it is only
accused No. 1 who knows the place, it becomes necessary for him to
explain the things. If he does not give explanation, inference can be
drawn against him that he had finished the deceased and then he
had buried the dead body. Such inference is possible due to other
circumstances also which need to be read together with the
circumstance of discovery of dead body on the basis of information
supplied by the accused. When the dead body is decomposed, but it
is identified by the close relatives, the circumstance that the
prosecution has no evidence to prove that it is a case of homicide,
cannot give any benefit to the accused. The deceased was Hindu and
in ordinary course, his dead body would not have been buried. Thus,
he died unnatural death. Further, false information was supplied by
accused No. 1 with regard to the whereabouts of deceased when he
knew that the dead body was buried at the place mentioned above.
Due to these circumstances, this Court holds that the conviction
given by the Trial Court to accused No. 1 for the offence punishable
under section 302 and 201 of IPC cannot be interfered with.
37) Though the evidence given as against accused No. 1 is
sufficient for proving the offences, the evidence as against the
Cri. Appeal No. 486/02 & Ors.
remaining accused is not that sufficient. This Court has already
observed that the so called judicial confession of accused No. 2
cannot be used in the present matter against any accused including
accused No. 2. Accused No. 4 had virtually no motive for the crime.
The main witness Laxmi who could have given evidence on motive
against accused No. 4 is not examined. Accused No. 4 had no
opportunity also and it is not a case of conspiracy. The articles shown
to be recovered like implements of agriculture cannot be linked with
the offence.
38) Accused No. 2 was working in other field and not in the
field of Ram Kale. He had virtually no motive for finishing Babarao.
The statement under section 164 of Cr.P.C., which can be said to be
retracted in view of the answer given in statement under section 313
of Cr.P.C. is not sufficient to convict accused No. 2. Further, the
circumstance of recovery of articles like agricultural implements is
not incriminating circumstance as there is no linking evidence. Due
to absence of expert evidence, the case of prosecution that the two
letters purportedly written by Babarao were actually written by
accused No. 2 is not proved against accused No. 2.
39) So far as accused No. 3 is concerned, it can be said that
there is strong suspicion against her. There is evidence on the record
to prove that she had illicit relation with accused No. 1 and she had
Cri. Appeal No. 486/02 & Ors.
motive for the crime. However, it is not the case of prosecution that
she had played active role in murder of Babarao. It is also not the
case of prosecution that she had any role in burying the dead body.
The possibility that she had not consented, but accused No. 1
finished Babarao cannot be ruled out.
40) The circumstance that accused No. 3 gave false
information to mother of deceased that he had gone to Gangakhed
for marketing can also be not used as incriminating circumstance as
there is possibility that on that day, she had no information that on
the previous night, Babarao was murdered. The place of murder is
not fixed in the present matter.
41) In view of the discussion made above, this Court holds
that interference is warranted in the decision of the Trial Court given
as against accused Nos. 2 to 4. The Trial Court has used the evidence
given on recovery of agricultural implements on the basis of
statement given by accused Nos. 2 and 4. The Trial Court has also
used the evidence given on demonstration given by accused No. 2 of
use and taking current of electricity from public supply. The Trial
Court had not kept in mind the restrictions or conditions put by
section 27 of the Evidence Act while considering the so called
evidence given against accused Nos. 2 and 4 under section 27 of the
Evidence Act. The Trial Court has not considered the circumstances
Cri. Appeal No. 486/02 & Ors.
mentioned above with regard to the judicial confession and that
evidence is also used against all the accused. Due to the reasons
given those circumstances cannot be considered as incriminating
circumstances and proved circumstances. The Trial Court has
committed error in convicting accused Nos. 2 to 4. In the result,
following order.
ORDER
(I) Criminal Appeal Nos. 486 and 487 of 2002 are
allowed. The conviction given to accused No. 2 Dhondiba
s/o. Sonba Ghalewad and accused No. 4 Nivrutti s/o.
Kondiba Ghalewad for the offences punishable under
sections 302 and 201 r/w. 34 of IPC is hereby set aside.
They stand acquitted of the offences for which they were
charged. Fine amount, if any, deposited by them is to be
returned to them.
(II) Criminal Appeal No. 508/2002 filed by accused
No. 3 Radhabai w/o. Babarao Dhanewad is hereby allowed.
The conviction given against her for the offences
punishable under section 302 and 201 r/w. 34 of IPC is
hereby set aside and she stands acquitted of these
offences. The fine amount, if any, deposited by her is to be
returned to her.
Cri. Appeal No. 486/02 & Ors.
(III) Criminal Appeal No. 508/2002 filed by accused
No. 1 - Haribhau s/o. Dadarao Dhobale stands dismissed.
He is to surrender to his bail bonds for undergoing the
sentence.
[ARUN M. DHAVALE, J.] [T.V. NALAWADE, J.]
ssc/
