Madhukar Vijay Mali vs The State Of Maharashtra
2022 Latest Caselaw 3449 Bom

                                          1
                                                        901.apeals-1030-626-17-.odt


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO.1030 OF 2017

Madhukar Vijay Mali                                        ... Appellant
           Versus
State of Maharashtra                                       ... Respondent
                                       ....
                                      WITH
                          CRIMINAL APPEAL NO.626 OF 2017

Sanju @ Sanjay Motiram Suryawanshi                         ... Appellant
           Versus
State of Maharashtra                                       ... Respondent

                                    ....
Mr. Abbas Z. Mookhtiar, Advocate (appointed) for the Appellant in
Criminal Appeal No.1030/2017.
Mr. Manoj Harit, Advocate a/w. Akhil Kupade & Mohammed A. Shaikh
i/b. Manoj Harit & Company, for the Appellant in Criminal Appeal
No.626/2017.
Ms. G.P. Mulekar, APP, for the Respondent-State.
                                    ....

                              CORAM :   S. S. SHINDE AND
                                        SARANG V. KOTWAL, JJ.

RESERVED ON : 24th MARCH, 2022

PRONOUNCED ON : 30th MARCH, 2022

JUDGMENT : [PER SARANG V. KOTWAL, J.]

1 Both these Appeals are decided by this common judgment

because they arise out of the same trial and in both these appeals

the same judgment and order are impugned.

Deshmane(PS) 1 / 29

901.apeals-1030-626-17-.odt

2 Criminal Appeal No.626/2017 is filed by the original

accused No.1 Sanju @ Sanjay Suryawanshi and Criminal Appeal

No.1030/2017 is preferred by the original accused No.2 Madhukar

Mali. Both of them were tried in Sessions Case No.55/2013 by the

Additional Sessions Judge, Niphad, District-Nashik.

3 Vide judgment and order dated 7.1.2017, both the

Appellants were convicted for commission of the offences

punishable under Sections 302 and 324 of the Indian Penal Code

read with Section 34 of IPC. For commission of the offence

punishable under Section 302 of IPC, both of them were sentenced

to suffer life imprisonment and to pay fine of Rs.1500/- each; and

in default to suffer further RI for six months. For commission of the

offence punishable under Section 324 of IPC, both of them were

sentenced to suffer RI for one year and to pay fine of Rs.500/-

each; and in default to suffer SI for three months. The sentences

were directed to run concurrently. The Appellants were acquitted

for commission of the offence punishable under Section 201 read

with 34 of IPC. They were given set-off under Section 428 of Cr.P.C.

for the period undergone by them as under-trial prisoners during

2 / 29

901.apeals-1030-626-17-.odt

trial. In further discussion, both the Appellants are referred to by

their original status as accused Nos.1 and 2 before the trial Court.

4 The prosecution case, in brief, is as follows:

On 5.7.2013 in the early hours, both the accused

assaulted one Chacha @ Suresh @ Ashok Gupta with an iron hook

and a knife. They wanted liquor from him. He had refused and,

therefore, he was assaulted by both of them. This incident took

place in Hotel Bhagyodaya on Mumbai-Agra Road, near village

Pimpalgaon (B), Taluka-Niphad, District-Nashik. They concealed

the dead body in a shed and then they went to Hotel Akash and

demanded liquor from one Ganesh. On his refusal, accused No.1

assaulted him on the head with a glass-bottle causing injuries on

his forehead and cheek. Ganesh woke up one Daulat at nearby tea-

stall and told him about the assault. Daulat confronted the

accused. On his enquiry, accused No.1 told them that they had

committed murder of Ashok Gupta and they had concealed his

body in a shed. Daulat telephonically informed Kiran, the owner of

the Hotel Bhagyodaya, who came there and all of them went to the

shed where the dead body was concealed. The police were

3 / 29

901.apeals-1030-626-17-.odt

informed. The accused were handed over to the police. The FIR

was lodged. Various panchnamas were conducted. The dead body

was sent for postmortem examination. The accused were

immediately arrested and the investigation was conducted. At the

conclusion of the investigation, the charge-sheet was filed and then

the case was committed to the Court of Sessions.

5 During trial, the prosecution examined nine witnesses.

• PW-1 Daulat Padvi was the first informant. • PW-2 Ganesh Gavade was the injured who was assaulted by the accused.

• PW-3 Ayyub Pathan, PW-4 Kiran Jadhav, PW-5 Harshad Ambore and PW-7 Sudam Chavan were the panchas to various panchnamas but they did not support the prosecution case and were declared hostile.

• PW-6 Constable Dattatraya Jagtap had carried the articles to Forensic Laboratory for analysis.

• PW-8 Dr. Rekha Sonawane had conducted the postmortem on the dead body and had also examined the injured witness Ganesh.

• PW-9 Prashant Ahire was the investigating officer.

Besides this evidence, the prosecution produced C.A.

report on record, which showed presence of 'B-Group' blood on the

4 / 29

901.apeals-1030-626-17-.odt

clothes of the deceased as well as of both the accused. The same

blood group was seen on the iron hook recovered at the instance of

accused No.2. There was blood found on the knife but the

blood-group was inconclusive. The knife was found near the spot

where Ashok Gupta was assaulted.

6 The defence of the accused was of total denial. After

recording the evidence and the statements of the accused under

Section 313 of Cr.P.C. and after hearing the arguments, learned

Judge convicted and sentenced the accused as mentioned earlier.

7 Heard Mr. Abbas Mookhtiar, learned counsel for the

Appellant in Criminal Appeal No.1030/2017, Mr. Manoj Harit,

learned counsel for the Appellant in Criminal Appeal No.626/2017

and Ms. G.P. Mulekar, learned APP for the State.

8 Before referring to the submissions of learned counsel

and learned APP, reference can be made to the evidence on record.

9 PW-1 Daulat Padvi was the first informant. He has

deposed that he has a 'tea stall' near Hotel Bhagyodaya. At about

4.00 a.m. to 5.00 a.m. on the day of the incident, he heard shouts.

5 / 29

901.apeals-1030-626-17-.odt

He woke up and saw that PW-2 Ganesh who was working in Hotel

Akash was shouting loudly. He had suffered bleeding injuries on

the head. PW-1 asked him about his injuries. He told that accused

No.1 had assaulted him by a bottle as PW-2 had refused to give

liquor to both the accused. Accused No.1 had told him that they

had assaulted one person known as 'Chacha' because even Chacha

had not given them liquor. Chacha was assaulted with knife and

iron hook. After that they came to Hotel Akash and demanded

liquor from PW-2 Ganesh; and on his refusal assaulted him. PW-1

then called Kiran telephonically. Kiran came there and made

enquiries with the accused. They told Kiran that after the assault

they took Chacha to one shed. After giving this information, both

the accused took these witnesses to that shed. PW-1 and others

saw that Chacha was lying on his back. The blood was oozing from

his mouth. He was not responding. There were no signs of

breathing. PW-1 and others concluded that he had died. They took

the accused to the police station. PW-1 filed his FIR against both

the accused. The FIR is produced on record at Exhibit-38. The

police also recorded his supplementary statement on the same day.

6 / 29

901.apeals-1030-626-17-.odt

The accused had assaulted 'Chacha' in Hotel Bhagyodaya.

In his cross-examination, he has stated that Hotel

Bhagyodaya and Hotel Akash are situated within a distance of 100

to 130 ft. They were situate near Bombay-Agra Road. Kiran had

made a phone call to Pimpalgaon police station. The police came

there at about 5.30 a.m. to 6.00 a.m.. PW-1 went to the police

station at about 6.00 a.m. to 6.15 a.m. by private vehicle. He went

there on the motorcycle. According to him, PW-2 Ganesh went to

the police station in PW-4 Kiran's car. According to him, accused

No.2 was working in the Market Yard. He could not explain why it

was not mentioned in the FIR that they had taken the accused to

the police station. He did not know the full names of the accused.

10 The FIR at Exhibit-38 shows that it was registered vide

C.R. No.112/2013 under Sections 302, 201, 324 read with 34 of

IPC at Pimpalgaon (B) police station. There is a mention that the

crime was registered and a station diary entry was taken at about

5.00 a.m. on 5.7.2013. Thus, there was immediate reporting of the

offence to the police station.

7 / 29

901.apeals-1030-626-17-.odt

11 PW-2 Ganesh Gavade is an important witness. He has

deposed that he was serving in Hotel Akash. He and one Ramesh

were staying in the same hotel. At the time of incident, both the

accused came to his hotel at about 4.00 a.m. and asked for liquor.

PW-2 refused. They went away and came back and again asked for

liquor. Accused No.1 held him and gave a blow with bottle on his

head and face. PW-2 Ganesh shouted for help from Ramesh, but,

he did not wake up. Ganesh then rushed outside and went to PW-1

Daulat. He was also sleeping, but, he woke up. PW-2 told him

about the assault. PW-1 Daulat made enquiries with accused No.1.

At that time accused No.1 told him that since PW-2 Ganesh had not

given them liquor he was assaulted. He further told them that they

had assaulted Chacha as he had also not given them liquor. He

further told them that both of them assaulted Chacha at

Bhagyodaya Hotel by knife and iron hook and then threw him in

one shed. PW-2 Ganesh has further deposed that PW-1 Daulat then

called Kiran by making a phone call. Kiran came there. He also

made enquiries with accused No.1. Even at that time, accused No.1

repeated the same story. Kiran then went to the shed to verify that

8 / 29

901.apeals-1030-626-17-.odt

story. Thereafter the police took them to the police station. They

gave yadi for medical treatment of PW-2 Ganesh. Police then

recorded his statement. His statement was also recorded under

Section 164 of Cr.P.C. before the Judicial Magistrate First Class.

PW-2 Ganesh identified clothes worn by the accused at the time of

commission of the offence.

In his cross-examination, he has stated that both these

hotels did not have permission for selling liquor. Accused No.1 was

working in Hotel Bhagyodaya. Ramesh was sleeping at some

distance in his hotel. Broken pieces of glass-bottle had fallen on the

ground. According to PW-2, he went to the police station with

Kiran and PW-1 Daulat in Daulat's car. According to him, he went

to the police station at about 9.00 a.m. to 9.30 a.m. and then went

to the Rural Hospital at about 10.00 a.m.. He had shown the spot

of incident to the police.

12 PW-4 Kiran Jadhav is another important witness. PW-1

and PW-2 have referred to him in their depositions. He has

deposed that Hotel Bhagyodaya was situated in front of the Market

Yard at Pimpalgaon. Sudhakar Bakre, accused No.1 and the

9 / 29

901.apeals-1030-626-17-.odt

deceased Ashok Gupta @ Chacha were serving in that Hotel. The

deceased Chacha was staying there in the hotel. On the day of

incident, in the early hours, PW-1 Daulat called him on mobile

phone and told him that both the accused had assaulted Ashok @

Chacha and PW-2 Ganesh. He then went to the hotel immediately.

In the hotel, PW-1 Daulat, PW-2 Ganesh and accused No.1 were

present. He made enquiries with accused No.1. He told the same

story to PW-4 Kiran. Accused No.1 took PW-4 Kiran and Daulat to

that shed. They saw that Chacha was lying dead. He had sustained

injuries on face, head and nose. Chacha did not respond to PW-4's

calls. He was dead. After that PW-2 Ganesh, accused No.1 and

PW-4 himself went to the police station and handed accused No.1

in the custody of the police.

In the cross-examination, he has admitted that his hotel

did not have permit to sell liquor. Accused No.1 was knowing that

liquor was not sold in that hotel. He came to the hotel between 5

a.m. to 6 a.m.. He went to the police station at about 6.30 a.m.

The police did not come to the hotel till PW-4 and others had

approached the police station. His statement was recorded on the

10 / 29

901.apeals-1030-626-17-.odt

next day.

13 PW-8 Dr. Rekha Sonawane had conducted the

postmortem examination on the deceased Ashok Gupta. She found

following injuries :

i. Stab injury over nose upper part right side circular 2 cm x 2 cm and 2/3 cm deep;

ii. CLW over left parietal area of skull 2 cm x 2 cm x 3 cm; iii. Multiple abrasions all over back and buttocks; iv. Multiple abrasions over face.

v. There was fracture of skull at nasal bones and left parietal area of the skull.

. The cause of death was due to shock due to head injury.

She had opined that the injuries mentioned in the postmortem

notes were possible due to stabbing by knife or by iron hook.

. She had examined PW-2 Ganesh on 5.7.2013. He had

suffered following two injuries:

i. Incise wound over forehead in mid line 2 cm x 0.02 cm. ii. Incise wound over left cheek near nose 3 x 0.02 cm.

Both the injuries were fresh and simple and they were

possible by sharp cutting instrument.

11 / 29

901.apeals-1030-626-17-.odt

In the cross examination, she deposed that the rigor

mortis on the dead body was absent. The death could have been

caused within 12 hours before the time of postmortem examination

which was conducted between 1.00 p.m. to 3.00 p.m. on 5.7.2013.

The postmortem notes were produced on record at Exhibit-50. This

evidence shows that the deceased had died homicidal death and

PW-2 Ganesh had suffered injuries as mentioned by him in his

deposition.

14 PW-9 API Prashant Ahire was the investigating officer. He

has stated that after the investigation was handed over to him, he

recorded supplementary statement of the informant. He seized the

clothes of accused No.1 under panchnama. He conducted the spot

panchnama. From Hotel Bhagyodaya the knife was seized. He

also drew panchnama of the place where PW-2 Ganesh was

assaulted. Accused No.2 was arrested by him. His clothes were

seized. At the instance of accused No.2, an iron hook was

recovered from his house on 6.7.2013. The articles were sent for

chemical analysis and at the conclusion of the investigation he filed

the charge-sheet.

12 / 29

901.apeals-1030-626-17-.odt

In the cross-examination, he has stated that in both these

hotels the liquor was not sold. He had not seized the glass bottle

from the spot. The weapons were not sent for finger-print

examination.

15 Since the panchas had turned hostile, all these

panchnamas were produced on record through the evidence PW-9

API Prashant Ahire. Accused No.1's clothes were seized under

panchnama carried out between 5.00 a.m. to 5.20 a.m. on

5.7.2013, which is produced on record at Exhibit-55/C. The spot

panchnama was carried out between 6.45 a.m. to 7.35 a.m. on

5.7.2013 and it is produced on record at Exhibit-56. The clothes of

accused No.2 were seized under panchnama carried out between

7.15 a.m. to 7.20 a.m. on 5.7.2013, which is produced on record at

Exhibit-57. The clothes of the deceased were seized under

panchnama Exhibit-58. The recovery of iron hook was made under

the panchnama at Exhibit-59. It was carried out between 5.55 p.m.

to 6.25 p.m. on 6.7.2013.

16 The C.A. reports show that the blood group of both

the accused was inconclusive. The blood group of the deceased

13 / 29

901.apeals-1030-626-17-.odt

was "B-Group". The blood on the knife was human, but, the

blood-group was inconclusive. The blood on the iron hook was of

"B-Group". The blood on the clothes of the deceased as well as on

the clothes of both the accused was of "B-Group".

. This is the evidence produced by the prosecution.

17 Learned counsel for accused No.1 submitted that there

are discrepancies in the evidence of PW-1 Daulat, PW-2 Ganesh and

PW-4 Kiran, which go to the root of the matter. Those

discrepancies show that all of them are telling false stories before

the Court. There is no corroborative piece of evidence to

substantiate their depositions. The call data record, showing that

the call was made to the police station, is not produced on record.

There are no independent witnesses examined in this case. The

motive is not established.

18 Learned counsel further submitted that there is nothing

to show that liquor was being sold in either of these hotels and,

therefore, the very basis of the prosecution case is not proved; since

allegedly the accused had assaulted the deceased and PW-2 Ganesh

14 / 29

901.apeals-1030-626-17-.odt

because they did not give liquor to them. The blood group of the

accused was not determined. According to the prosecution story,

even PW-2 Ganesh had suffered bleeding injuries when both the

accused were present and, therefore, it cannot be said with

certainty that the blood found on the clothes of the accused was

that of the deceased alone. The prosecution has not established the

blood group of the injured PW-2 Ganesh.

19 Learned counsel submitted that the incident had taken

placed in the night and, therefore, it was not possible to see

everything clearly and, therefore, the witnesses could have been

mistaken. There is discrepancy in the medical evidence in respect

of injury to PW-2. There are indications in the postmortem that the

time of death may not be in the night. The timings of the FIR,

panchnamas and the witnesses going to the police station did not

match. There are discrepancies as to who exactly had gone to the

police station.

20 Learned counsel for accused No.1 specifically submitted

that the extrajudicial confession in this case is not reliable. There

was no reason for accused No.1 to have made this extrajudicial

15 / 29

901.apeals-1030-626-17-.odt

confession to any of the witnesses. There is no other independent

witness or corroboration to this extrajudicial confession and,

therefore, it cannot form basis of conviction.

21 Learned counsel for accused No.1 relied on various

judgments to submit that the conviction could not be based on

extrajudicial confession. He relied on the judgment of the Hon'ble

Supreme Court in the case of Vinod @ Manoj Vs. The State of

Haryana1, wherein it was observed that merely because extra

judicial confession was proved which was a weak type of

circumstance, the accused could not be convicted for the offence of

rape and murder.

22 Learned counsel then relied on the case of Sahadevan and

another Vs. State of Tamil Nadu 2. The Hon'ble Supreme Court in that

case had observed that when the prosecution relied on a extra-

judicial confession, the Court has to examine the same with a

greater degree of care and caution. In paragraph-16 of that

judgment, various propositions were mentioned. The observations

made in paragraph-16 are as follows :

1    Passed in Criminal Appeal No.1822/2011 decided on 23.10.2019 (Hon'ble Supreme Court)
2    (2012) 6 SCC 403

                                                                                               16 / 29

                                                          901.apeals-1030-626-17-.odt

"16. Upon a proper analysis of the above - referred judgments of this Court, it will be appropriate to state the principles which would make an extra judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra - judicial confession alleged to have been made by the accused:

(i) The extra - judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra - judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra - judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law."

23 Learned counsel for accused No.2 submitted that the

evidence of recovery of iron hook at the instance of accused No.2 is

not free from doubt. There is nothing to show that accused No.2

could have gone home and could have concealed the iron hook

considering the sequence alleged in the prosecution case. There is

17 / 29

901.apeals-1030-626-17-.odt

a discrepancy as to when was he exactly arrested. No further

details are provided. There is no explanation why he could not be

arrested or apprehended though he was present with accused No.1

when the witnesses were informed about the murder of deceased

Gupta. The blood stains on the clothes of the accused No.2 do not

show that it was the blood of the deceased alone. Therefore, the

only circumstance against him, at the highest, is the extra-judicial

confession made by accused No.1.

24 Learned counsel submitted that the law on this aspect is

well settled that the conviction cannot be based solely on the

confession made by the co-accused. Learned counsel for that

purpose relied on the judgment of the Hon'ble Supreme Court in

the case of Pancho vs. State of Haryana3.

25 Both learned counsel submitted that alternatively the

offence will not fall within the meaning of 'murder' as defined

under Section 300 of IPC. There was no premeditation and

preparation to commit the offence. And, therefore, the offence

would be of a much lesser degree.

3    (2011) 10 SCC 165

                                                                             18 / 29

                                                 901.apeals-1030-626-17-.odt


    26        Learned APP opposed these submissions. According to

her, there was sufficient evidence against both the accused. She

submitted that the FIR was lodged immediately. The station diary

entry was taken immediately. All the panchnamas were carried out

one after the other immediately. There was no scope for concocting

false story to involve the accused falsely.

27 She submitted that for some time accused No.2 was not

present at the spot after the witnesses had arrived and, therefore,

there was a possibility that he could have gone home and concealed

the weapon.

28 She submitted that PW-2 Ganesh's evidence cannot be

discarded lightly because he is an injured eye witness. All these

witnesses i.e. PW-1, PW-2 and PW-4 corroborate each other on

material aspects. She submitted that in a given case conviction can

be based on the extrajudicial confession. She relied on the

judgment of the Hon'ble Supreme Court in the case of Jagroop Singh

Vs. State of Punjab4. In that case, in paragraph-29, it was observed

that the evidence in the form of extra-judicial confession made by

4 (2012) 11 SCC 768

19 / 29

901.apeals-1030-626-17-.odt

the accused before the witnesses cannot be always termed to be a

tainted evidence. Corroboration of such evidence is required only

by way of abundant caution. If the Court believes the witness

before whom the confession is made and is satisfied that it was true

and voluntarily made, then the conviction can be founded on such

evidence alone. The aspects which could be considered are the

nature of circumstances, the time when the confession was made

and the credibility of the witnesses who speak for such a

confession. That apart, before relying on the confession, the Court

has to be satisfied that it is voluntary and is not the result of

inducement, threat or promise.

29 She further submitted that in the present case, the extra-

judicial confession is corroborated by the fact that the dead body

was discovered at a place shown by accused No.1 after making the

extra-judicial confession. The evidence of PW-2 Ganesh and his

injuries also lend sufficient corroboration to this extra-judicial

confession. She submitted that considering the nature of injuries,

the offence will definitely fall within the meaning of 'murder' as

defined under Section 300 of IPC.

20 / 29

901.apeals-1030-626-17-.odt

Reasons :

30 We have considered these submissions. Before discussing

the evidence against accused No.1, we propose to discuss the

evidence against accused No.2. As mentioned earlier, there is one

major circumstance against him i.e. recovery of blood stained iron

hook at his instance from his house. The blood group was of "B-

Group", which was the blood group of the deceased.

In this context it is necessary to examine the prosecution

case. According to PW-1 Daulat, both the accused had taken the

witnesses to the shed where the dead body was found. He

categorically stated that they had taken both the accused and PW-2

Ganesh to the police station. However, this does not appear to be

correct because PW-4 Kiran has specifically deposed that he himself,

accused No.1 and PW-2 had gone to the police station and accused

No.1 was given in the custody of the police. He has not made

reference to accused No.2. He has also deposed in his examination-

in-chief that when he came to the hotel after being informed by

PW-1 Daulat, he had seen PW-1 Daulat, PW-2 Ganesh and accused

No.1 present there. He has not mentioned that accused No.2 was

21 / 29

901.apeals-1030-626-17-.odt

present with them. He had made enquiries with accused No.1, and

then accused No.1 had taken the witnesses to the shed where the

deceased was lying. Thus, there is no consistency about the

presence of accused No.2 when PW-4 Kiran had come to the spot.

Accused No.2 was arrested separately. The prosecution case does

not provide a vital link about the time when accused No.2 had

accompanied accused No.1, and the time when he was actually

arrested. He was arrested in the morning of 5.7.2013. The

recovery was made at his instance from his house on the next day

evening i.e. on 6.7.2013. The whereabouts of accused No.2

between 5.00 a.m. to 7.30 a.m. are not clearly established. In any

case the conviction against him cannot be based only on the

circumstance of this doubtful recovery.

31 The other circumstance against accused No.2 is recovery

of blood stained clothes of "B-Group". However, as rightly

submitted by both learned counsel; the blood group of PW-2

Ganesh was not determined, the blood group of both the accused

was not determined. Therefore, that circumstance cannot be held

against either of the accused.

22 / 29

901.apeals-1030-626-17-.odt

32 As rightly submitted by learned counsel for accused No.2,

the confession of co-accused cannot be the basis of conviction of

accused No.2. Learned counsel for accused No.2 has rightly relied

on the judgment of the Hon'ble Supreme Court in the case of

Pancho (supra), wherein from paragraphs-24 to 28, this particular

aspect is discussed based on the cases of Kashmira Singh Vs. State of

M.P.5 and Harichanran Kurmi Vs. State of Bihar6 and other

judgments.

In paragraph-28 of Pancho's case (supra), it was held that

in dealing with a case against an accused, the Court cannot start

with the confession of a co-accused; 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

assertions to the conclusion of guilt which the judicial mind is

about to reach on the said other evidence.

In the present case there is no sufficient material against

5 AIR 1952 SC 159 6 AIR 1964 SC 1184

23 / 29

901.apeals-1030-626-17-.odt

accused No.2 to reach independent conclusion that he had

committed murder and, therefore, the confession of the co-accused

cannot be pressed into service to form basis of his conviction.

33 Thus, we find that the evidence against accused No.2 is

not sufficient to base conviction against him and he deserves to be

given benefit of doubt.

34 As far as accused No.1 is concerned, the strongest

circumstance against him is the extra-judicial confession. The law

on this subject is well settled, which is referred to in the judgments

cited by both the sides which are referred to hereinabove. The

Hon'ble Supreme Court in the case of Velayuda Pulavar Vs. State by

Sub-Inspector of Police7 has held in paragraph-10 that it is well

settled that the conviction can be recorded solely on the basis of the

extra-judicial confession if it is found to be credible and worthy of

acceptance.

35 In the case before us, the extra-judicial confession is

made by accused No.1 before PW-1 Daulat, PW-2 Ganesh and PW-4

Kiran. There is no reason to disbelieve these witnesses. They had 7 (2009) 14 SCC 436

24 / 29

901.apeals-1030-626-17-.odt

reported this fact to each other immediately, and more particularly,

even the police were informed immediately as can be seen from the

facts of the case discussed earlier. The extrajudicial confession

finds corroboration from the fact that the accused No.1 himself had

led the witnesses to the shed where the deceased was kept. Thus

pursuant to the extra-judicial confession, in fact the dead body was

discovered from the place which was known to accused No.1. This

is a very strong circumstance and it lends strong corroboration to

the extra-judicial confession.

36 Apart from that, the evidence of PW-2 Ganesh also

strengthens the case against the accused No.1 and lends sufficient

corroboration to his extra-judicial confession. He is an injured eye

witness. As deposed by PW-8 Dr. Rekha Sonawane, PW-2 Ganesh

had suffered incised wound over forehead and incised wound over

left cheek. This corroborates his own evidence. There is no reason

to disbelieve this injured witness. There are some discrepancies as

to in which vehicle/s the witnesses went to the police station and

which of the witnesses accompanied each other. However, these

are the minor discrepancies because there are station diary entry,

25 / 29

901.apeals-1030-626-17-.odt

spot panchnama, arrest panchnama, seizure of clothes panchnama

recorded immediately one after the other in the early morning

itself. All this lends sufficient corroboration to the extrajudicial

confession. Therefore, we are satisfied that the prosecution has

proved its case against the accused No.1 based on this evidence.

37 The next question would be whether accused No.1 can be

said to have committed the offence of murder or is it a lesser

offence. The evidence of PW-8 Dr. Rekha Sonawane shows that the

deceased had suffered one stab injury over nose and one CLW over

left parietal area. The other injuries were abrasions over back,

buttocks and face. The abrasions could have been caused because

the deceased was dragged upto the shed. They are not result of

any assault. The only vital injury appears to be the one on the head.

The cause of death was also mentioned as 'shock due to the head

injury'. Therefore, this is a case where the death was caused

because of one blow on the head.

38 Even as per the prosecution case, which is based on the

extra-judicial confession given by accused No.1 himself that the

incident had occurred on the spur of the moment. There was no

26 / 29

901.apeals-1030-626-17-.odt

premeditation. It was a result of sudden quarrel. It is only when the

deceased had refused to give liquor, this blow was given to him.

Finding of a knife in a hotel is not an unusual circumstance. Thus,

there was no premeditation and no preparation to commit this

offence. The case will fall within Exception-4 to Section 300 of IPC.

The assailant had given only one blow on the head in a sudden

fight. Therefore, at the highest the case would be that of culpable

homicide not amounting to murder. Considering that the blow was

given on the head with a sharp weapon, the intention can be

attributed to the accused No.1. Therefore, it would be a case under

Section 304 Part-I of IPC. Accused No.1 is in custody since

5.7.2013. Considering the overall circumstances the sentence of

ten years RI to him would serve the ends of justice.

39 As far as conviction of accused No.1 under section 324 of

IPC is concerned; since the prosecution has proved that accused

No.1 had assaulted the injured witness PW-2 Ganesh, he is

convicted under Section 324 of IPC instead of Section 324 read

with Section 34 of IPC.

40        Hence, the following order :


                                                                          27 / 29

                                                  901.apeals-1030-626-17-.odt




                          :: O R D E R ::


i.     Criminal Appeal No.1030/2017 preferred by accused No.2

Madhukar Mali is allowed. He is acquitted of all the charges

faced by him in Sessions Case No.55/2013 on the file of the

Additional Sessions Judge, Niphad, District-Nashik. Accused

No.2-Madhukar Mali shall be released forthwith, if not

required in any other case.

ii. The fine amount, if paid, shall be refunded to accused No.2-

Madhukar Mali.

iii. Accused No.2 Madhukar Mali shall execute a PR bond before

the trial Court, under Section 437A of Cr.P.C., in the sum of

Rs.30,000/- (Rupees Thirty Thousand Only) with one or two

sureties, within a period of six weeks from today.

iv. Criminal Appeal No.626/2017 preferred by accused No.1 Sanju

@ Sanjay Suryawanshi is partly allowed. The conviction and

consequent sentence awarded for commission of offence

punishable under Section 302 of IPC read with 34 of IPC is set

28 / 29

901.apeals-1030-626-17-.odt

aside and instead he is convicted for the offence punishable

under Section 304(Part-I) of IPC. Accused No.1 Sanju @

Sanjay Suryawanshi is sentenced to suffer R.I. for ten years

and to pay fine of Rs.1500/- (Rupees Fifteen Hundred Only);

and in default of payment of fine to suffer further R.I. for six

months.

v. Instead of Section 324 read with 34 of IPC, the accused No.1

Sanju @ Sanjay Suryawanshi is convicted under Section 324 of

IPC and is sentenced to suffer R.I. for one year and to pay fine

of Rs.500/- (Rupees Five Hundred Only); and in default of

payment of fine to suffer S.I. for three months.

vi. Both the sentences are directed to run concurrently.

vii. Accused No.1 Sanju @ Sanjay Suryawanshi is entitled to get

set off for the period spent as under-trial prisoner as per

Section 428 of Code of Criminal Procedure.

viii. With these directions, both the Appeals are disposed of.

                           (SARANG V. KOTWAL, J.)                                     (S. S. SHINDE, J.)

PRADIPKUMAR
PRAKASHRAO             Deshmane (PS)
DESHMANE

 Digitally signed by
 PRADIPKUMAR
 PRAKASHRAO
 DESHMANE
 Date: 2022.03.30
 11:08:03 +0530
                                                                                                            29 / 29