Vasant Chandar Waghmare vs The State Of Maharashtra
2021 Latest Caselaw 13643 Bom

                                                                                        appeal.98 of 2020.doc



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION
                            CRIMINAL APPEAL NO. 98 OF 2020


 Vasant Chandar Waghamare                                       }
 Age:- 40 years                                                 }
 R/o. Honad, Taluka-Khanapur                                    }      Appellant
 District-Raigad.                                               }      (orig. accused)

 Versus

 The State of Maharashtra                                       }
 through Atpadi Police Station                                  }
 District-Sangli                                                }      Respondent
                                        -------------------
 Ms. Megha Bajoria, Appointed Advocate by Court for the Appellant.
 Mr. Arfan Sait - APP for the State.
                                        ---------------------
                                   CORAM : SMT. SADHANA S. JADHAV &
                                           SARANG V. KOTWAL, JJ.

RESERVED ON : SEPTEMBER 14, 2021.

PRONOUNCED ON : SEPTEMBER 22, 2021.

JUDGMENT :- (PER SADHANA S. JADHAV, J.)

1. The appellant herein is convicted for the offence

punishable under Section 302 of Indian Penal Code by the Additional

Sessions Judge-2, Sangli in Sessions Case No. 108 of 2018 vide

judgment and order dated 19th June 2019. Hence, this Appeal.

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2. Such of the facts necessary for the decision of this appeal

are as follows:-

a) On 4th March 2018, at about 6.45p.m one

Rajendra Ramrao Chavan (P.W.1) lodged a report at the

police station alleging therein that he was in the business

of preparing Charcoal at village Kauthali. He was

supplying the said Charcoal to a trader at Uran, Panvel.

The present appellant was engaged as a labourer in the

said Charcoal Unit. The appellant was residing with his

mother in a hut belonging to the brother of the appellant.

He was the original resident of Honad, Taluka-Khalapur,

District-Sangli and informant had brought him at his

village and engaged him as a labourer. On 4 th March

2018, he claims to have visited the hut of the accused at

about 10.30a.m. He noticed that the accused was sleeping

in the hut in an injured condition. The accused appeared

to be under the influenced of Alcohol. The informant had

seen the mother of the accused lying near the hut in an

injured condition. His father Pralhad Pawar had verified

her pulse. He found her to be breathless and he was

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convinced that she had died.

b) According to the informant, upon enquiry the

accused had informed him that his mother had objected

to his consumption of alcohol, upon which he got

annoyed and assaulted her with a sickle on her head.

Thereafter, he regretted his act and therefore, he hit his

head on the wall. The informant had asked his relatives to

wait near the dead body and with the help of other

labourers he had taken the injured-accused to the

hospital. On the basis of the said report, Crime No. 58 of

2018 was registered at Sangli Police Station for the

offence punishable under section 302 of Indian Penal

Code.

c) The accused was admitted in the hospital on

4th March 2018 and was arrested on his discharge on

7th March 2018.

3. At the trial, the prosecution has examined four witnesses to

bring home the guilt of the accused. The conviction of the accused-

appellant rests upon an extra judicial confession of the accused given

to PW.1. Hence, it would be necessary to scrutinize the substantive

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evidence of PW.1.

4. PW.1-Rajendra Chavan has deposed before the Court in

consonance with the F.I.R. lodged by him and has reiterated the fact

that on his way to work, he had visited the hut of the accused along

with his father-in-law Pralhad. That his mother was lying at a distance

of five feet from the hut in an injured condition. Upon enquiry the

accused had admitted that he had caused the homicidal death of his

mother with a sickle as she had objected to his consumption of alcohol.

He had called his brother Sanjay to the spot along with labourers. He

had admitted injured in the hospital and thereafter, lodged a report.

The contents of the F.I.R. are admitted. Hence, F.I.R. is marked at

'Exhibit-15'. He has identified the clothes of the deceased and the

accused.

5. In the cross-examination, PW.1 has admitted that he has a

cellphone and motor-cycle. The spot of the incident can be reached

within 10 to 15 minutes from village Kauthali and one can reach the

police station within 15 minutes from the spot of incident. It is also

admitted that the Charcoal was prepared by burning Chilari trees

which he used to purchase on wholesale basis. He used to bring the

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labour from Khopoli, Raigad to work on his plant. Since he was

producing Charcoal in huge quantity, he had not executed any contract

with the labourer. He used to give advance amount to them and

maintained its accounts and also looked after their day to day essential

needs. In a specific question by the Court, PW.1 has admitted that the

accused and his mother were residing in a hut near the streamlet

where Chilari trees were grown in abundance. No basic facility like

water, electricity and WC were attached to the hut.

6. P.W.1 has specifically admitted that he had not informed the

police about the death of the mother of the accused after he learnt

about it from his father-in-law. The reason assigned is that he was

frightened. PW. 1 had also not divulged the said fact to the labour. It is

also admitted that the dead body was at the spot when the accused

was taken to the rural hospital, Atpadi. It is admitted that he has not

intimated the police about the death of the mother of the accused

when they visited the rural hospital, although he had opportunity to do

so. He could not assign any specific reason for non disclosure of the

said fact. It is admitted that the accused was taken to the hospital at

5.00p.m. to 5.30p.m. and he visited the police station at about

6.45p.m. since the time was spent in calling upon his brother and other

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labour. He admits to have visited the police station on 5 th March 2018.

A specific suggestion was given to PW.1 that he was author of the

injuries sustained by the accused as well as his deceased mother. He

has denied the suggestion that in the previous night i.e. on 3 rd March

2018 he and his father-in-law were consuming alcohol near the house

of the accused. There is a specific suggestion that the deceased had

informed PW.1 that the deceased had asked her son to inform PW.1

that they were to leave at dawn on 4th March 2018. PW.1 had then

insisted upon returning the advance amount given to the accused and

despite the assurance given by the accused that they would return for

work, he had abused the accused, threatened him, that if they left

without informing him they would be killed with a sickle.

7. The tenor of the cross-examination clearly reflects the

defence of the accused.

8. PW.3-Prasad Todkar has performed autopsy on the dead

body of deceased-Kamal. According to PW.3, on 4 th March 2018 at

about 9.00p.m. the dead body was referred to the hospital for autopsy.

The dead body was identified by Sanjay Chavan. The postmortem

notes are at 'Exhibit-30'. The injuries sustained by the deceased are as

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follows :-

1) Stab wound 5x1cm on frontal area of head extending from hairline towards backwards in the direction of sagittal plane.

3) Stab wound 3 x 1cm on left temporal area.

9. PW.3 has clarified that injury nos. 1 and 3 are sufficient in

the ordinary course of nature to cause death. PW.3 has not mentioned

the time of probable death in the postmortem note but has admitted

that since rigor mortis had receded, the death must have occurred

more than 12 to 18 hours before it was brought for autopsy. However,

PW.3 was not sure as to whether the death has occurred on 3 rd March

2018 between 8.00 to 10.00 p.m.

10. It is the case of the prosecution that the accused/appellant

was injured. However, the investigating agency has not placed on

record the injury certificate. The prosecution has also not examined the

medical officer who had treated the injured in Rural hospital at Atpadi

but the reason for arresting the accused on 7 th March 2018 is assigned

to his admission in the rural hospital from 4th March 2018 to 7th March

2018. The accused was wearing the same shirt from 4 th March 2018 to

7th March 2018.

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11. PW.4.-A.P.I, Sudhakar Dedhe has admitted that on 5th

March 2018 he had issued a letter to the medical officer, Rural

Hospital, Atpadi for obtaining his opinion regarding the injuries of the

accused. The said letter is marked at 'Exhibit-44'. It is contended that

the opinion of the medical officer was not received. The clothes of the

accused along with clothes of the deceased were sent for chemical

analysis. The CA report is on record at 'Exhibit-13' and it appears that

the blood group of the accused is 'O' whereas the blood group of the

deceased is 'A'. The articles were sent for chemical analysis and it has

the blood group 'A'. There are no blood stain of 'A' blood group on the

clothes of the accused.

12. Appointed learned counsel to espouse the cause of the

appellant has vehemently urged that the extra judicial confession in

the present case is shrouded with mystery. According to her, in the

eventuality, the said information was divulged in the morning at 10.00

to 10.30 a.m. there was no reason to lodge the F.I.R. at 6.45p.m.

Moreover, the injured was taken to the hospital at 5.30p.m. and till

then the dead body of Kamal was lying on the spot. It is urged before

the Court that the accused has stated the actual events that led to the

death of his mother in his statement under section 313 (2) of Cr.P.C. It

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is submitted that in fact, the accused and his mother were working as

bonded labour. They were brought from their village for cutting the

Chilari trees which are used for making of Charcoal.

13. We have perused the statement of accused under section

313 (2) of Cr.P.C. The accused has specifically stated that in the late

hours of 3rd March 2018, PW. 1 and his father-in-law were consuming

alcohol near his hut. The accused, at the behest of his mother was

insisting upon going for pilgrimage (Wari), that PW.1 had denied the

leave on the ground that there was a heavy demand of Charcoal. He

could not afford to give leave to the labour. Moreover, he was insisting

upon returning Rs.10,000/- which was given as advance, forthwith

and therefore had abused and assaulted the accused.

14. It is contended that PW.1 had raised a sickle to assault the

accused. However, his mother had intervened to safeguard her son and

at that stage had fallen prey to the assault by PW.1 who were under the

influence of Alcohol at the relevant time. That on the following day he

was taken to the hospital and thereafter was implicated in a false case

by PW.1.

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15. According to the learned counsel, in view of this, the

accused seems to be a victim of circumstances. He is falsely implicated

and deserves to the acquitted.

16. Per contra, learned APP submits that the theory put up by

the accused is an after thought and his defence taken by the accused is

at the stage of recording statement under Section 313 of Code of

Criminal Procedure. However, the extra judicial confession made, PW.1

cannot be overlooked as it was made soon after the incident.

17. The submission of the learned APP cannot be considered in

the present case as there are specific suggestions to PW.1 that he is the

perpetrator of the crime and has falsely implicated the accused.

Therefore, it cannot be said that the defence under section 313 of Code

of Criminal Procedure is an after thought.

18. The case rests on the extra judicial confession. The Hon'ble

Apex Court in a catena of decision has held that 'the extra judicial

confession must be voluntary and truthful'. In the case of Balwinder

Singh vs. State of Punjab1 the Apex Court has held as follows:

(ii) Extra-judicial confession:

1   1995 SCC Supl.(4) 259

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An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extra judicial confession.

19. In view of this, it would be necessary to appreciate the

extenuating circumstances in which the case has come to light and

therefore, it becomes necessary to appreciate the evidence of PW.1 and

his conduct upon being informed by the accused that he had caused

the homicidal death of his mother.

20. According to PW.1 the incident had come to light at about

10.30a.m. after he had seen the accused in an injured condition and

his mother lying dead near the unprotected hut. No immediate steps

were taken by the complainant. He had taken injured to the hospital at

about 5.30p.m. and thereafter, at about 6.45p.m. had lodged the F..I.R.

There is no plausible explanation on the part of the complainant for

the inordinate delay in setting the law into motion. The police had

reached the spot at about 7.00p.m. This was despite the fact that P.W.1

had a cellphone and a motor-cycle. The distance between the spot of

incident and the police station could be covered within 10 to 15

minutes and yet no positive steps were taken by PW.1 to set the law in-

motion.

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21. It would be apt to refer to the principle laid down by the

Hon'ble Apex Court in the case of Thulia Kali vs. The State of Tamil

Nadu2 in which the Apex Court has held as follows:-

'That the delay in lodging the report would raise considerable doubt regarding the veracity of the evidence of two witnesses and point to an infirmity in that evidence and would render it unsafe to base the conviction of the appellant. The first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as, the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a Creature of after thought. It is therefore essential that the delay in lodging the report should be satisfactorily explained'.

22. The possibility and probability that the F.I.R. is a figment of

after thought of PW.1 cannot be ruled out.

23. By elimination, it is reiterated by the learned APP that the

case exclusively rests on the extra judicial confession. It is also stated

that the deceased Kamal has died while in custody of her son. An extra

judicial confession in the nature of his explanation can be considered

as a circumstance and can be relied upon.

24. We disagree with the proposition that this is a case of

custodial death. The dead body of mother of the accused was lying 2 1972 SCR (3) 622

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almost more than 5 feet away from hut. The accused had not fled from

the scene of occurrence and was lying in the hut in an injured

condition till he was taken to the hospital by P.W.1.

25. The conduct of PW.1 appears to be doubtful. There is no

respect for the deceased. The dead body was abandoned for more than

8 hours at the spot, even after he learnt about the incident.

26. It is settled principle that the sanctity of extra-judicial

confession would depend upon veracity and credibility of the witness

to whom it was made. It is a weak piece of evidence and an accused

can be convicted on the basis of the same provided that it is free from

doubt and the conduct of the person to whom such confession was

made, soon after the incident would inspire confidence of the Court. To

make extra judicial confession reliable, it has to be necessarily clear,

consistent and convincing. In this case, the extra-judicial confession

does not pass this test and hence the prosecution has failed to prove its

case beyond reasonable doubt.

27. The learned advocate, Ms. Megha Bajoria was appointed in

the present matter to espouse the cause of the appellant as it happens

to be an appeal filed by the appellant, who is in custody. She has put in

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her best efforts to espouse the cause of the appellant. Hence, her

professional fees are quantified as per rules to be paid to her by High

Court Legal Aid Services Committee, Mumbai.

28. In view of the above observations and discussions, the

conviction of the accused will be unsustainable in the eyes of law.

Hence, the appeal deserves to the allowed.

                                         ORDER


                i)         The appeal is allowed.

                ii)        The conviction and sentence imposed vide Judgment

and order dated 19th June 2019 passed by the Additional Sessions Judge-2, Sangli is hereby quashed and set aside.

iii) The appellant is acquitted of all the charges levelled against him.

iv) The appellant be released forthwith, if not required in any other case.

                v)         Fine be refunded, if already paid.

                vi)        The appeal is accordingly disposed of.


   (SARANG V. KOTWAL, J)                        (SMT. SADHANA S. JADHAV, J)




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