Waman Sadashio Nandeshwar vs State Of Mah.Thr.Pso Chandrapur
2017 Latest Caselaw 2130 Bom

Judgment

                                                                         apeal220.05

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

                CRIMINAL APPEAL NO.220 OF 2005

Waman s/o Sadashio Nandeshwar,
Aged about 56 years, R/o Pimpalgaon,
District : Chandrapur, presently
undergoing sentence in Central Prison,
Nagpur.                                                           ..... Appellant.

                                   ::   VERSUS   ::

State of Maharashtra, 
through Police Station Officer,
Bramhapuri, District Chandrapur.           ..... Respondent.

==============================================================
          Shri R.R. Gour, Counsel for the appellant (appointed).
          Shri V.A. Thakare, Additional Public Prosecutor for the 
          Respondent/State.
==============================================================


                                 CORAM : B.P. DHARMADHIKARI &
                                         V.M. DESHPANDE, JJ.  
                                 DATE  : MAY 3, 2017.



JUDGMENT (Per : V.M. Deshpande, J.)

1. Being aggrieved by judgment and order of

conviction dated 5.1.2005, in Sessions Case No.48 of 2004,

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by which learned 4th Ad hoc Additional Sessions Judge,

Chandrapur convicted the appellant for the offence

punishable under Section 302 of the Indian Penal Code

and directed to suffer imprisonment for life and to pay a

fine of Rs.1,000/-, and in default to suffer rigorous

imprisonment for six months, appellant/accused has

filed this appeal.

2. This Court admitted the present appeal on

8.4.2005. Vide order dated 29.7.2005, this Court by

suspending substantive jail sentence of the appellant,

released him on bail.

3. We have heard learned counsel Shri R.R.

Gour appointed for the appellant by the High Court

Legal Services Sub Committee, Nagpur and learned

Additional Public Prosecutor Shri V.A. Thakare for the

respondent/State. With able assistance of both learned

.....3/-

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counsel, we have gone through the record and

proceedings and also the impugned judgment.

4. On 13.1.2004, PW10 Police Inspector Jivan

Tulshiram Kshirsagar reduced into writing oral report

of PW1 complainant Murlidhar Somaji Tikle in respect

of murder of his nephew Bhaskar Jagan Tikle. Oral

report is at Exhibit 22 whereas printed F.I.R. is at

Exhibit 23. The crime was registered vide C.R. No.3 of

2004.

On 131.1.2004 itself, PW10 Jivan Kshirsagar

took appellant for inquiry. He arrested appellant on

next day i.e. 14.1.2004 vide arrest panchanama Exhibit

35. In the meanwhile, dead body of Bhaskar was sent

for postmortem. The postmortem was conducted by

PW8 Dr. Purushottam Madhukarrao Balpande. While

conducting postmortem, he noticed following injuries

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on the body of Bhaskar :

i) Lenier deeply laceration measuring 5 x 6 x 7 cm.,

ii) Skull fracture present 6 xx 6½ x 5 cm. over the vertex measuring in deep direction.

iii) Celrbral hemispear tear and separated laterally, superior region measuring 4 x 3½ x 1½ cm.

Postmortem report is at Exhibit 45. The

appellant was also referred to Dr. Purushottam

Balpande for his medical examination. However, no

injury was noticed on the person of the appellant.

5. After arrest of appellant on 14.1.2004,

investigating officer seized clothes of the appellant by

drawing seizure memo Exhibit 38 on 15.1.2004 at 7:00

o'clock in the evening. When the appellant was in police

custody, he made a disclosure statement whereby he

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agreed to take out the weapon which he has concealed.

The memorandum statement is at Exhibit 25 and

consequent recovery panchanama of the weapon is at

Exhibit 56. The investigating officer, thereafter, sent

the muddemal property for chemical analysis to the

chemical analyzer. The muddemal property, which was

sent, includes (i) blood as well as simple earth collected

from the spot of the incident, (ii) weapon i.e. pickaxe

recovered at the instance of the appellant, and (iii)

clothes of the deceased.

6. After completion of other usual investigation,

final report was presented in the Court of law. Learned

Magistrate, in whose Court final report was presented,

noticed that the offence is exclusively triable by the

Court of sessions and, therefore, he passed committal

order. After said order, the case was committed to the

.....6/-

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Court of Sessions and it was registered as Sessions Case

No.48 of 2004. Learned 4th Ad hoc Additional Sessions

Judge, Chandrapur framed the charge vide Exhibit 15

against the appellant. The appellant denied the charge

and claimed to be tried.

7. In order to bring home guilt of the appellant,

the prosecution has examined in all 10 witnesses and

also relied upon various documents. Learned Judge of

the Court below convicted the appellant and ordered

sentence as observed in the opening paragraph of the

judgment.

8. Perusal of the impugned judgment shows that

learned Judge of the Court below has discarded entire

evidence of the prosecution to connect the appellant to

the crime except extra-judicial confession made by the

appellant to PW2 Kishor Bhagwan Nandardhane. It is

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to be noted here that chemical analyzer's report Exhibit

67 shows no blood stain on the weapon that was

recovered at the instance of the appellant. Further, it is

to be noted that though clothes of the appellant were

seized, those clothes were not sent to this chemical

analyzer.

9. Learned Judge of the Court below has, in our

view, rightly discarded evidences of other witnesses

including evidence of Sunanda Kamdi who claimed to

have witnessed actual assault.

10. In the present appeal, therefore, we have to

examine as to whether learned Judge of the Court

below was right in convicting the appellant on the basis

of extra-judicial confession which according to the

prosecution was made by the appellant to PW2 Kishor

Nandardhane.

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11. By now, it is a settled principle of law that

extra-judicial confession by itself is a very weak piece of

evidence and only on this basis of such extra-judicial

confession the conviction could not be secured or

should be maintained unless said extra-judicial

confession is corroborated by other admissible

evidence.

12. Perusal of impugned judgment shows that

learned Judge of the Court below has relied upon a

decision of the Gujarat High in the case of Jayeshkumar

Parshottamdas Valand ..vs.. State of Gujarat, reported

at 1998 CRI.L.J. 4260 and observed that extra-judicial

confession need not be independently corroborated if

found to be voluntary, reliable, and unbiased.

13. The Honourable Apex Court in the case of

Pakkirisamy ..vs.. State of Tamil Nadu, reported at

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(1997) 8 SCC 158 has ruled that it is well settled that

extra-judicial confession is a weak piece of evidence and

the Court should be slow to accept such type of evidence

and the Court should generally look for an independent

reliable corroboration before placing any reliance on

such extra-judicial confession.

14. The incident has occurred on 13.1.2004.

According to Kishor Nandardhane, who is vegetable

seller, after selling vegetables at Wadsa, he came to

village at 4:00 p.m. and after taking his lunch at 4:30

p.m., he went to the field of Bhaskar (deceased).

According to his version, when he was going to the field

of Bhaksar, he noticed Waman (appellant) coming from

the field and that time Waman disclosed to this witness

that he has beaten Bhaskar. In his cross-examination,

he has admitted that while returning from the said field,

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he noticed wife of deceased. However, he chose not to

disclose beating of Bhaskar at the hands of the present

appellant. The statement of this man is recorded on

next day. The evidence of this witness shows that he is

a chance witness since he has admitted that he also

used to go to the agricultural field of others. Keeping

silence for one day, though he noticed Bhaskar

(deceased) in a dead condition after receiving

information from the appellant that he has given

beating to Bhaskar, in our view, brings his evidence in

shadow, coupled with the fact that there is no other

corroboration to statement of PW2 Kishor Nandardhane

either from a scientific evidence. Further, Kishor is

totally silent about disclosing this fact to other

prosecution witnesses. Though their evidences are

discarded by learned Judge of the Court below, they

claim that they received information from Kishor.

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15. In view of aforesaid discussions, in our view,

it will be unsafe to uphold the conviction of the

appellant on uncorroborated extra-judicial confession

made to PW2 Kishor Nandardhane. Consequently, we

pass the following order:

ORDER

i) The criminal appeal is allowed.

ii) Judgment and order of conviction, passed

by learned 4th Ad hoc Additional Sessions

Judge, Chandrapur, in Sessions Case No.48 of

2004, is hereby quashed and set aside.

iii) The appellant is acquitted of the offence

punishable under Section 302 of the Indian

Penal Code.

iv) Bail bond of the appellant stands

cancelled.

.....12/-

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The learned counsel Shri R.R. Gour

appointed for the appellant, who has very ably pleaded

the case, is entitled to receive his professional charges

from the High Court Legal Service Sub Committee,

Nagpur. We quantify the same at Rs.7,500/- (rupees

seven thousand five hundred only).

                   JUDGE                                            JUDGE


!!  BRW  !!




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