Bombay High Court
Raosaheb Maroti Nemane vs The State Of Maharashtra on 1 February, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:2259-DB
1 Cri-Appeal-427-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 427 OF 2022
Raosaheb S/o Maruti Nemane
Age: 40 years, Occu: Labour,
R/o: Pokhari, Tq. Phulambri,
District Aurangabad
[Presently in Jail] ... Appellant
Versus
The State of Maharashtra
Through A.G.P. Office
High Court, Benct at Aurangabad ... Respondent
...
Mr. Bobde Sopan G. and Ms. Shital J. Yadav, Advocates for Appellant
Ms. U. S. Bhosle, APP for the Respondent/State
...
CORAM : R. G. AVACHAT &
NEERAJ P. DHOTE, JJ.
Reserved on : 17th January, 2024
Pronounced On : 1st February, 2024
JUDGMENT :
[ PER NEERAJ P. DHOTE, J.]
1. This is an Appeal under Section 374 (2) of the Code of Criminal
Procedure [for short 'Cr.PC'] against the conviction of the Appellant for the
offences punishable under Sections 302 and 201 of the Indian Penal Code,
1860 [for short "IPC"] recorded by the learned Additional Sessions Judge,
Aurangabad vide the Judgment and Order dated 23/01/2019, in Session
Case No. 263 of 2013 arising out of the Crime No.56 of 2013 registered
with Phulambri Police Station on the report lodged by - Sunil Motilal
Harne (PW-1).
2. Prosecution's case as revealed from the Police Report is as under : -
2 Cri-Appeal-427-2022.odt
2.1 PW - 1 - Sunil Motilal Harne resident of Pokhari, Taluka Phulambri,
District Aurangabad, got the information from the Deputy Sarpanch and
Police Patil of his village that the Appellant killed his wife in the night in
between 10:00 pm to 11:00 pm on 29/04/2013 in his own residence and had
buried her body. At that time, PW - 1 was at Aurangabad and after receipt
of the information, he went to his village. He verified the information and
informed the Police. The Police went to the place of incident where the
dead body was buried. The dead body was that of the Appellant's wife.
There were several injuries on the dead body. The Crime came to be
registered against the Appellant for the offences punishable under Sections
302 and 201 of IPC.
2.2 The necessary panchnamas were carried out, the Appellant came to
be arrested, the dead body was sent for postmortem, the statements of
witnesses came to be recorded, iron rods came to be seized at the instance of
the Appellant and seized muddemal articles were referred for chemical
examination and after completion of the investigation, the Appellant came
to be charge-sheeted.
3. The learned Trial Court framed the Charge against the Appellant for
the offences punishable under Sections 302 and 201 of IPC vide Exhibit-5,
to which, the Appellant pleaded not guilty and claimed to be tried. To prove
the Charge, the prosecution examined in all eight (8) witnesses and brought
on record the relevant documents. After the prosecution closed it's evidence,
the Appellant's statement came to be recorded under Section 313(1)(b) of
Cr.PC. The Appellant denied the prosecution's case. Thereafter, the
impugned Judgment came to be passed.
4. It is submitted by the learned Advocate for the Appellant that there is
no eye witnesses to the incident and the prosecution could not prove the
Charge against the Appellant. He submitted that the prosecution has failed
3 Cri-Appeal-427-2022.odt
to bring on record the motive behind the crime. He submitted that the
discovery of pipes is not proved. He further submitted that the evidence in
the nature of extra judicial confession is liable to be discarded being
untrustworthy. He submitted that the impugned Judgment and Order be set
aside and Appeal be allowed.
5. It is submitted by the learned APP that there are extra judicial
confessions, which implicate the Appellant and the circumstances proved by
the prosecution establishes involvement of the Appellant in the crime. She
submitted that as the crime was committed in the residence of the Appellant,
the burden shifts upon the Appellant to prove that the offence is committed
by someone else and not by him. She submitted that the Appeal be
dismissed.
6. Admittedly, there are no eye witnesses to the incident. The case is
based on circumstantial evidence. The law on the point of circumstantial
evidence is well settled. In the case based on circumstantial evidence, (a) the
chain of circumstances from which the conclusion of guilt is to be drawn
should be fully established (b) the facts so established should be consistent
only with the hypothesis of the guilt of the accused (c) the circumstances
should be of a conclusive nature (d) the circumstances should exclude every
possible hypothesis except the one sought to be proved and (e) there must be a
chain of evidence so complete so as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and must show that in
all human probability the act must have been done by the accused.
7. To prove the homicidal death, the prosecution has examined PW - 5,
namely, Dr. Kailas Ukhardaji Zine. His evidence show that from
05/09/1997 he was serving as a Lecturer in Forensic Medicine and
Toxicology Department of Government Medical College and Hospital
(Ghati) Aurangabad and in the year - 2013, he was promoted as Professor
and Head of Department. On 13/04/2013, the dead body of Renukabai w/o
4 Cri-Appeal-427-2022.odt
Raosaheb Nemane was referred to him for post mortem. He found twenty
three (23) injuries on the body, which were in the nature of abrasion,
contusion, laceration, diffused contusion and multiple abrasions on different
parts of body. He found the following injuries on palpation mentioned in
column No.18 of post mortem, which are as follows:
"1. Closed, displaced, compound fractures of left humerous at upper and
lower end of shaft.
2. Open displaced fracture of distal phalynx of left thumb."
8. He gave the probable cause of death as "shock and hemorrhage due
to multiple injuries by hard and blunt object". He opined that the manner of
death was homicidal. The post mortem report at Exhibit-64 is brought in
evidence, which corroborate his testimony. In the cross-examination,
suggestions are given that all the injuries were simple in nature and were not
the cause of death and the injuries (head injury) may have been caused by
fall in the ditch. The evidence of this Doctor - witness show that the death of
Renukabai was Homicidal Death.
9. The prosecution has brought on record the evidence in the nature of
extra judicial confession by examining PW - 4 [Bajirao Limbaji Pawar]
and PW - 6 [Sangeeta Bhagwan Jadhav]. The law on the point of
evidentiary value of the extra judicial confession is well settled. Useful
reference can be made to the Judgment in the case of Pritinder Singh @
Lovely vs. The State of Punjab; (2023) 7 SCC 727. The relevant
observations of the said Judgment are as follows:
" 22. The law with regard to extra-judicial confession has been succinctly discussed in
Munna Kumar Upadhyay v. State of A.P., wherein this Court has also referred to its earlier
judgments, which read thus:
"56. This Court has had the occasion to discuss the effect of extra-judicial confessions in a
number of decisions. In Balwinder Singh v. State of Punjabs this Court stated the principle
that:
'10. An extra-judicial confession by its very nature is rather a weak type of
evidence and requires appreciation with a great deal of care and caution. Where
5 Cri-Appeal-427-2022.odt
an extra-judicial confession is surrounded by suspicious circumstances, its
credibility becomes doubtful and it loses its importance'.
57. In Pakkirisamy v. State of T.N., the Court held that:
'8. ... It is well settled that it is a rule of caution where the court would generally
look for an independent reliable corroboration before placing any reliance upon
such extra-judicial confession'.
58. Again, in Kavita v. State of T.N., the Court stated the dictum that:
'4. There is no doubt that convictions can be based on extra-judicial confession
but it is well settled that in the very nature of things, it is a weak piece of
evidence. It is to be proved just like any other fact and the value thereof depends
upon the veracity of the witness to whom it is made'.
59. While explaining the dimensions of the principles governing the admissibility and
evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja
Rams stated the principle that:
'19. An extra-judicial confession, if voluntary and true and made in a fit state of
mind, can be relied upon by the court. The confession will have to be proved like
any other fact. The value of the evidence as to confession, like any other evidence,
depends upon the veracity of the witness to whom it has been made'.
The Court further expressed the view that:
'19. ... Such a confession can be relied upon and conviction can be founded
thereon if the evidence about the confession comes from the mouth of witnesses
who appear to be unbiased, not even remotely inimical to the accused, and in
respect of whom nothing is brought out which may tend to indicate that he may
have a motive of attributing an untruthful statement to the accused.....'
60. In Aloke Nath Dutta v. State of W.B., the Court, while holding that reliance on extra-
judicial confession by the lower courts in absence of other corroborating material, was
unjustified, observed:
'87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be
acted upon. Confession may under certain circumstances and subject to law laid
down by the superior judiciary from time to time form the basis for conviction. It
is, however, trite that for the said purpose the court has to satisfy itself in regard to:
(i) voluntariness of the confession; (ii) truthfulness of the confession; (iii)
corroboration.
89. A detailed confession which would otherwise be within the special knowledge
of the accused may itself be not sufficient to raise a presumption that confession is
6 Cri-Appeal-427-2022.odt
a truthful one. Main features of a confession are required to be verified. If it is not
done, no conviction can be based only on the sole basis thereof'.
61. Accepting the admissibility of the extra-judicial confession, the Court in Sansar
Chand v. State of Rajasthan held that:
'29. There is no absolute rule that an extra-judicial confession can never be the basis
of a conviction, although ordinarily an extra- judicial confession should be
corroborated by some other material.
30. In the present case, the extra-judicial confession by Balwan has been referred to
in the judgments of the learned Magistrate and the Special Judge, and it has been
corroborated by the other material on record. We are satisfied that the confession
was voluntary and was not the result of inducement, threat or promise as
contemplated by Section 24 of the Evidence Act, 1872'.
62. Dealing with the situation of retraction from the extra-judicial confession made by an
accused, the Court in Rameshbhai Chandubhai Rathod v. State of Gujarat held as under:
'53. It appears therefore, that the appellant has retracted his confession. When an
extra-judicial confession is retracted by an accused, there is no inflexible rule that
the court must invariably accept the retraction. But at the same time it is unsafe for
the court to rely on the retracted confession, unless, the court on a consideration of
the entire evidence comes to a definite conclusion that the retracted confession is
true'.
63. Extra-judicial confession must be established to be true and made voluntarily and in a fit
state of mind. The words of the witnesses must be clear, unambiguous and should clearly
convey that the accused is the perpetrator of the crime. The extra-judicial confession can be
accepted and can be the basis of conviction, if it passes the test of credibility. The extra-
judicial confession should inspire confidence and the court should find out whether there are
other cogent c circumstances on record to support it".
10. The evidence of PW - 4 [Bajirao Limbaji Pawar] show that he was
residing in the hutment area at village Pokhari. In the morning of
30/04/2013, the Appellant had come to his house and gave a call, to which,
he and his wife got up. The Appellant told him that he had committed
murder of his wife and we should help him for burying the dead body of his
wife. This witness deposed that they did not help and thereafter, the
Appellant left. He further deposed that in the morning, he came to know
7 Cri-Appeal-427-2022.odt
that the Appellant murdered his wife. His evidence show that his statement
was recorded by the Police as per his say.
11. It is strange that when the Appellant had disclosed him that he killed
his wife and sought his help for burying the dead body, this witness kept
mum. This cannot be said to be a natural conduct. Further, his cross-
examination show that he stated the date of incident in his examination-in-
chief as instructed by the Police. Thus, evidence of this PW - 4 is required
to be seen with doubt.
12. The evidence of PW-6 - [Sageeta Bhagwan Jadhav] show that the
Appellant was her neighbour and deceased - Renuka was the Appellant's
wife. The incident took place on 29/04/2013. According to her, when she
and her husband were sleeping in the courtyard, they heard the noise of
shouting of deceased from her house around 9:00 to 10:00 and they got
frightened and went inside their house. According to her, the noise of
shouting was coming up to half an hour and thereafter, they went to sleep.
In the next day morning at about 6:00 to 7:00 am, when she was in the
courtyard, the Appellant told her that he killed his wife and buried in the
lake. The Appellant threatened her that if she disclosed about the same to
anybody then he will tell her name. Her evidence show that her statement
was recorded by the Police as per her say.
13. When PW - 6 was the neighbour of the Appellant and she heard the
noise of the deceased, which was for half an hour, it is strange that they
(PW - 6 and her husband) did not raise alarm or went to rescue her being the
neigbourer. Her cross-examination show that there was quarrel between her
and the Appellant prior to the incident and there were cross complaints
against each other. This show that there were inimical terms between this
witness and the Appellant. Thus, her evidence is required to be seen with
doubt.
8 Cri-Appeal-427-2022.odt
14. The evidence of PW - 8, namely, Prafulla Hanmantrao Ankushkar,
who was the Investigating Officer, show that the population of village
Pokhari was near about 250 to 300 and there were two houses adjacent to
the house of Appellant. This establishes that the house of Appellant was not
in a secluded place. It is really strange that when the shouting of the
deceased lasted for about half an hour, no one from the locality. came
forward and tried to stop the incident and report the matter to the Police.
Thus the evidence of these two witnesses i.e. PW - 4 and PW - 5 lacks
credibility and hence discarded.
15. The other evidence is that of the informant who is examined as PW -
1 [Sunil Motilal Harne]. His evidence show that on 30/04/2013, he was at
Aurangabad and the Deputy Sarpanch and Police Patil of his village
informed him that the Appellant had killed his wife on 29/04/2013 in the
night in his house and buried her body near the percolation tank. He
reached to the village and informed the Police. Thereafter, the Police
arrested the Appellant and recovered her body which was buried and lodged
the report in the evening between 6:00 pm to 6:30 pm, which was at Exhibit
- 12. His evidence go to show that before registration of the crime, the
Appellant came to be apprehended. His evidence go to show that the Police
called the villagers with the hoe for digging and the Appellant had removed
the dead body. However, his cross-examination show that the Police had
come to the spot before he reached there and the work of removing the soil
or digging was going on for 30 to 45 minutes.
16. The evidence of PW - 8 [ Prafulla Hanmantrao Ankushkar] -
Investigating Officer show that on receiving the phone call of PW - 1 that
the Appellant had murdered his wife, he made the entry in the station diary
and went to the village, collected the information from the villagers and
apprehended the Appellant. Though PW - 8 [Prafulla Hanmantrao
9 Cri-Appeal-427-2022.odt
Ankushkar] / Investigating Officer deposed that after apprehending, the
Appellant told him that he assaulted his wife due to domestic quarrel and
buried her in small water pond and he visited the spot and noticed that there
was sign of burying the dead body. However, this evidence do not establish
that the dead body was discovered at the instance of the Appellant pursuant
to Section 27 of the Indian Evidence Act, 1872 [For short 'the Act'] to make
it relevant.
17. There is evidence of PW - 2, namely, Bhausaheb Appasaheb Dandge
to show that on 30/04/2013, he was asked by the Police to act as the panch
at the house of the Appellant, which was comprising of two rooms having
tin roof and cement flooring. His evidence show that the utensils were
scattered in the room and the quilt and blanket were lying in the room.
Though he deposed in his examination-in-chief that there were blood stains
on the quilt and blanket and found that the blood was spilled and was
rubbed by quilt in that room, in his cross-examination, he deposed that since
it was red in colour, he felt that it was blood. He goes to depose in the
cross-examination that the quilt and blanket were fully smeared with blood.
It has come in his evidence that during menstruation, the blood of woman
may fall on the quilt. His evidence show that there was no pool of blood.
Admittedly, there are no reports of chemical analysers brought in evidence
by the prosecution, though the evidence of PW- 8 [Prafulla Hanmantrao
Ankushkar] show that he referred the seized muddemal for chemical
analysis.
18. The above evidence of panch witness show that when he went there,
the house was open and the Police were making inquiry as to who had
opened the house and no person was knowing as to who opened the house.
It has come in his evidence that it was not revealed as to who opened the
house. His evidence go to show that the articles were not sealed by wax.
His evidence also go to show that the spot of incident was Vasti [locality]
10 Cri-Appeal-427-2022.odt
and there were houses adjoining to the house. The evidence of this panch
witness show that there were pieces of green colour bangles beneath the
quilt.
19. From the above evidence of the spot panch, it is clear that the place
where the Police had gone and conducted the spot panchnama was a small
dwelling comprising of two rooms which was open. Minute scrutiny of the
evidence on record show that it is not established by the prosecution that the
spot of incident was the house of the Appellant. Though the PW - 2
[Bhausaheb Appasaheb Dandge] the spot panch in his evidence deposed that
the house of the Appellant was facing towards east and there was a road
towards western side of his house and his house comprised of two rooms
having tin roof and cement flooring, in his cross-examination, it has come
that he had no opportunity to go to that house anytime before and he could
not say what was the house number. His evidence further show that the said
house was at far distance from his house. Thus, there is no convincing and
conclusive evidence to establish that the said spot was the place owned by
the Appellant and he was lastly seen with the deceased at that place.
20. PW - 3 [Appasaheb Damodhar Harne] was examined by the
prosecution to show that two pipes and clothes were seized at the instance
of the Appellant pursuant to the provisions of Section 27 of the Act. His
evidence show that he did not support the prosecution. Though he was
cross-examined by the prosecution, nothing material has come to establish
the discovery of the pipes and the clothes at the instance of the Appellant
whereas his evidence show that the said articles were seized by the Police
from the open space.
21. In his evidence, PW - 8 [Prafulla Hanmantrao Ankushkar] -
Investigating Officer deposed that two iron rods and clothes i.e. one shirt
and pant were seized pursuant to the memorandum prepared on the
11 Cri-Appeal-427-2022.odt
statement of the Appellant. His evidence show that the said articles were
seized from open space of Gram Panchayat. Even if the said discovery and
seizure are accepted, there is no evidence to connect them with the crime
and therefore, it will not be relevant as per Section 27 of the Act.
22. There is evidence of PW - 7, namely, Salman Shah Shakeel Shah
which show that on 30/04/2013, he acted as the panch for seizure of one red
colour saree, black colour blouse and sky colour petty coat under the
panchnama at Exhibit - 77. The said seizure takes the case of prosecution
nowhere as according to this witness, the said clothes were shown to him by
the Police and he did not know what was written in the panchnama.
23. Evaluation of the evidence available on record show that, it is not
established that it was the Appellant who killed his wife and buried her in
the village. The evidence available on record is neither trustworthy nor
concrete. The evidence of each witness if taken individually and even
collectively, do not establish the Charge against the Appellant. The burden
as contemplated under Section 106 of the Act will not shift on the Appellant
for the reason that the prosecution has completely failed to discharge its
initial burden to show the involvement of the Appellant in the crime. There
is no iota of evidence to prove that the Appellant was lastly seen with the
deceased. The place, which according to the prosecution is the place of
crime where the spot panchnama is conducted was the house which was
found open when the panch witness and the Police had reached there. It is
not proved by the prosecution that the said place belong to the Appellant.
Even if it is presumed that the said place was the house of the Appellant, it
is highly improbable that despite shouting of the deceased in the house
which was located in the populated area surrounded by the other houses, no
one informed the Police immediately nor went to the said spot. It appears
highly improbable that after committing the murder the Appellant took the
dead body and during the night buried her in such a depth, which required
12 Cri-Appeal-427-2022.odt
several persons to dig and remove for 30 to 45 minutes and that to at the
place which was near the percolation tank in the village. The Appellant was
arrested prior to registration of crime. This clearly establishes that the
Appellant was arrested on mere Suspicion. At the most, the prosecution
evidence raises Suspicion against the Appellant, however, it is settled
position under the law that Suspicion however strong cannot take the place
of proof.
24. In the backdrop of the above, we proceed to pass the following order:
ORDER
(I) The Criminal Appeal is allowed.
(II) The Judgment and Order dated 23/01/2019 passed by the learned
Additional Sessions Judge, Aurangabad, in Sessions Case No.263/2013
convicting and sentencing the Appellant for the offences punishable under
Sections 302 and 201 of IPC, is quashed and set aside.
(III) The Appellant stands acquitted for the offences punishable under
Sections 302 and 201 of IPC.
(IV) The Appellant be released forthwith, if not required in any other
offence.
(V) The Record and Proceedings be sent back to the learned Trial Court.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
Sameer
