Bombay High Court
Swapnil S/O. Tarachand Gawande vs State Of Mah. Thr. Pso, Chandrapur City, ... on 18 January, 2024
2024:BHC-NAG:683
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (BA) NO. 314/2023
Swapnil s/o Tarachand Gawande V/s State of Maharashtra
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Mr. Shashank Manohar, counsel for applicant.
Ms. Trupati Udeshi, APP for the non-applicant/State.
CORAM : URMILA JOSHI-PHALKE, J.
DATE OF RESERVE : 09/01/2024.
DATE OF DECISION : 18/01/2024.
1. The present application is preferred by the
applicant for grant of bail under Section 439 of the Code
of Criminal Procedure,1973, in connection with Crime No.
521/2022, registered with Police Station Chandrapur City,
District Chandrapur, for the offences punishable under
Sections, 302, 449, 506, 120-B, 182 and 201 of the Indian
Penal Code, 1860.
2. The applicant is arrested on 23/09/2022
since then he is behind the bar.
3. Crime No. 521/2022 is registered on the basis
of report lodged by wife of the deceased namely Sunita
Manoj Rasekar, on an allegation that she was residing
along with her husband - Manoj Ramesh Rasekar along
with two children and mother-in-law. On 22/09/2022, at
about 2.00 a.m. in the midnight, somebody entered in her
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bedroom, covering his face by wearing a monkey cap and
wearing black clothes, showing her knife, and pressed the
neck of her husband by means of pillow and committed
his murder. He has also threatened her to hand over to
him whatever gold ornaments she is having and thereafter,
he committed the theft by snatching the golden
Mangalsutra of her mother-in-law and left the place. On
the basis of the said report, the Police have registered the
crime against the unknown person.
4. During the investigation, the Investigating
Officer arrested the present applicant and wife of the
deceased, as it is revealed to him that there were illicit
relations between the present applicant and the informant
and they have hatched the present conspiracy. Co-accused
Sunita Manoj Rasekar, called the present applicant in her
house for elimination of her husband and the present
applicant has committed the murder by pressing the neck
of the deceased. It is alleged by the prosecution that
during the investigation, it revealed that the daughter of
co-accused Sunita Manoj Rasekar was studying in 7 th
Standard, and the present applicant is a teacher. As the
informant was visiting the school of her daughter got
acquaintance with him and they have developed illicit
relationship between them. In the meantime, co-accused
Sunita disclosed to the present applicant that her husband
is not behaving with her properly and was harassing him,
therefore, they have hatched the plan to commit the
murder of the deceased, and accordingly, on the date of
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incident, the co-accused allowed the present applicant to
enter in her house and assisted him for committing the
murder of her husband/deceased.
5. During the investigation, the statement of the
witnesses are recorded to show that the co-accused made
an extra-judicial confession to one Rakesh Pramod
Tembhurkar on 23/09/2022 itself. The incriminating
article i.e. lock is also recovered on the basis of the
information given by the present applicant. The
investigating agency further placed reliance on the CDR
report showing that prior to the incident, there was a call
from the mobile phone of the present applicant on the
mobile phone of the co-accused. Thus, there is a prima-
facie material against the present applicant to connect him
with the alleged incident.
6. Mr. Shashank Manohar, learned counsel for
the applicant submitted that except the extra-judicial
confession, there is no material on record to connect the
present applicant with the alleged offence. During the
investigation, the Investigating Officer has not collected
any material to show that there was any illicit relation
with the co-accused of the applicant. The prosecution
relied upon the statements of the daughter of the deceased
and the co-accused which is only shows that co-accused
used to visit the school of her daughter, and was talking
with the present applicant. The statement only show that
the co-accused used to send some food to the present
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applicant. Except the statements of the daughter of the
deceased and the co-accused, there is absolutely no
material to connect the present applicant.
7. He submitted that as far as the extra-judicial
confession is concerned, though confession is made by the
co-accused to the witness Rakesh on 23/09/2022,
however, first time, he has disclosed it on 12/10/2022 i.e.
after 20 days when his statement is recorded.
8. He further submitted that the statement of
the mother-in-law of the co-accused is also recorded to
show that there was an illicit relationship between the
applicant and the co-accused and the co-accused has
allowed the present applicant to enter in the house. In
fact, the mother-in-law of the co-accused was present at
the time of drawing panchanama on 22/09/2022. At the
relevant time, she has not narrated any such incident and
her statement was recorded first time on 25/09/2022 i.e.
after three days and she has disclosed a complete different
story.
9. The another statement on which the
prosecution has relied upon is the statement of the son of
the deceased, who also narrated the role of the present
applicant. The entire prosecution story shows that the
person who entered in the house was covering his face
with a monkey cap. Though the Test Identification parade
is held on 10/11/2023, but the said Test Identification
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parade is not substantial evidence. Moreover, the recitals
of the FIR and the statements of the witnesses itself show
that the person was wearing a monkey cap, so there was
no opportunity for the prosecution witnesses to see the
assailant. Therefore, the identification parade held is also
not helpful to the prosecution. He submitted that extra-
judicial confession alleged to be made before the witness
Rakesh Tembhurkar who disclosed it to the police after 20
days. The said evidence is doubtful. He further submitted
that extra-judicial confession itself is a very weak type of
evidence which is not helpful to the prosecution to prove
the charge. The confession was surrounded by
suspicious circumstances.
10. In support of his contention, he placed
reliance Tejinder Singh alias Kaka V/s State of Punjab1
wherein it is held that extra-judicial confession alleged to
be made before sarpanch by some of accused and
sarpanch disclosed it to the Police Officer after 16 days is
unnatural. He also relied in the case of Balwinder Singh
Vs State of Punjab2 wherein it is held that the confession
which is surrounded by the suspicious circumstances is not
helpful to the prosecution. On the same point, he placed
reliance in the case of State of M.P. through CBI etc. V/s
Paltan Mallah and others etc.3 wherein it is held that
extra-judicial confession of the co-accused that other
accused gave him money to murder trade union leader,
1 2013 CRI. L.J.3130.
2 AIR 1996 SC 607.
3 AIR 2005 SC 733.
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however, no substantive evidence against other accused
persons, no conviction can be based on extra-judicial
confession.
He also placed reliance on Siddanki Ram
Reddy V/s State of Andhra Pradesh4, wherein it is held
that eyewitnesses have little time to see accused,
substantive evidence should be sufficiently corroborated
by a Test Identification parade held soon after occurrence
and any delay in holding Test Identification parade may be
fatal to the prosecution case. On the same point, he placed
reliance in the case of Gireesan Nair and others V/s State
of Kerala5 wherein also, it is held that in a cases where the
eyewitnesses had an ample opportunity to see the accused
before the identification parade is held, it may adversely
affect the trial.
11. Per contra, learned APP submitted that the
act executed by the present applicant with the help of
co-accused, who is wife of deceased, is a cold-blooded
murderer. The extra-judicial confession to the witness is
supported by the recovery of the incriminating article at
the instance of the present applicant. The C.D.R. report
showing that there was a call from the present applicant to
the co-accused, prior to the incident, and identification
parade wherein the applicant is identified by the
witnesses, sufficiently show the involvement of the present
applicant in the alleged offence. Therefore, considering
4 (2010) 7 SCC 697.
5 (2023) 1 SCC 180
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the nature of offence which is committed by the present
applicant for which the punishment of life imprisonment
and death is provided and the circumstances in which the
alleged incident has taken place, the present application
needs to be rejected.
12. After hearing learned counsel for the
applicant and after going through the investigation papers,
there is no dispute as to the fact that initially, the crime is
registered on the basis of the report lodged by wife of the
deceased against the unknown person. The investigation
papers further show that both the accused were arrested
on 23/09/2022, after registration of the crime. The
Investigating Officer has visited the alleged spot of
incident and drawn the spot panchanama. The spot of the
incident is shown by the mother of the deceased namely
Sulochana Rasekar. The recitals of the spot panchanama
show that mother of the deceased has narrated the
incident that when she was sleeping with her
grand-daughter in another room, and the deceased was
sleeping along with the co-accused and son, thereafter
somebody entered in the room and committed the murder
of the deceased.
13. On 22/09/2023, the Investigating Officer has
issued a letter to the Superintendent of Police for
obtaining the C.D.R. record of the present applicant and
the co-accused. First time, the statement of the mother of
deceased is recorded on 25/09/2022, wherein she has
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narrated the incident showing the involvement of the
present applicant in the alleged incident. It is pertinent to
note that when she was present at the time of drawing the
spot panchanama, she did not disclose anything about the
illicit relations between the present applicant and the
co-accused. She has also not narrated that the co-accused
was awaking at about 1.30 p.m. due to some reason.
14. Her statement shows that at about 2.00 p.m.
when she woke up, she saw that some unknown person
was sitting on the chest of her son and pressing his neck,
at the relevant time, her daughter-in-law was sitting near
to her son. The extra-judicial confession on which the
prosecution placed reliance, according to Rakesh
Pramodrao Tehumrkar (which was made to him on
23/09/2022) he is residing in the said locality i.e.
Vishwakarma Chowk, Balaji Ward near to the house of the
deceased. He has not disclosed this fact to the Police,
though the Police visited the house for the purpose of spot
panchanama. First time his statement was recorded on
12/10/2022 when he disclosed the said incident.
15. From the investigation purpose, it reveals that
the applicant is arrested on 23/09/2022. From the
investigation papers, nothing reveal that on what basis,
the applicant is arrested on 23/09/2022. The investigation
papers are silent, whether the investigating agency has
received any C.D.R. report on 23/09/2023. The letter
issued by the Investigating Officer for obtaining the C.D.R.
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report is on 22/09/2022. The mobile phone of the present
applicant and the wife of the deceased were forwarded to
the Chemical Analsyers. The C.A. report shows that he did
not find any data relevant to the case. According to the
case letter, he found a clear WhatsApp Chat in the mobile
phone registered in the name of Sunita Manoj Rasekar,
who is the co-accused. He found that the mobile phone
was completely formatted and appeared to be a new
phone. Due to which, the data recovery was not successful
and there was no data found relevant to the case. Thus,
during the analysis of the mobile phone, nothing
incriminating is found connecting any communication
between the present applicant and the co-accused.
16. The learned APP vehemently submitted that
the co-accused has received the phone call of the present
applicant at about 00.27 a.m. and the duration of the call
was of 16 Seconds. The CDR Report, nowhere shows that
when the CDR reports are forwarded to the
investigating office, the said CDR reports are without
certificate under Section 65-B of the Indian Evidence Act.
Thus, except the said phone call absolutely, there is no
material to show that any communication between the
present applicant and the co-accused on the day of
incident. Though the prosecution relied upon the
statement of the son of the deceased, who states about the
communication between the present applicant of the
co-accused at the time of incident, the said statement was
recorded on 23/11/2022 under Section 164 of the Code of
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Criminal Procedure. His police statement is also recorded
on 09/11/2022 i.e. after 15 days of the incident. Prior to
recording of the statement, there is no whisper regarding
the involvement of the present applicant in the alleged
offence. The question which arises is that on 23/09/2022,
on what basis the investigating officer has arrested the
present applicant. The same is not answered by the
investigating agency.
17. It is well settled that there is neither any rule
nor law that evidence furnished by extra-judicial
confession cannot be relied upon unless corroborated by
some other credible evidence. The Courts have considered
the evidence of extra-judicial confession which comes
from the mouth of witness/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 for attributing an
untruthful statement to the accused; the words spoken to
by the witnesses are clear, unambiguous and
unmistakably convey that the accused is the perpetrator of
the crime and nothing is omitted by the witness which
may militate against it, then after subjecting the evidence
of the witness to a rigorous test on the touchstone of
credibility, if it passes the test, the extra-judicial confession
can be accepted and can be the basis of a conviction.
18. Considering the above all facts, I am of the
view that, at the time of considering the bail application,
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the evidence is not to be evaluated or appreciated, but for
the purpose of ascertaining whether the prima-facie case is
made out against the present applicant or not, some facts
required to be seen. Admittedly, till recording of the
statement of the mother-in-law, there was no clue for the
investigating agency regarding the involvement of the
present applicant. However, the present applicant was
arrested on 23/09/2022. As per the summary in the
charge-sheet, there was no good relationship between the
co-accused and her husband and therefore, she narrated
the incident to the present applicant and they have
hatched the conspiracy. To ascertain this fact, the
investigating agency has neither recorded any statement
of the witnesses nor placed any material to substantiate.
As observed by the Hon'ble Apex Court in various
judgments, the extra-judicial confession, though a weak
piece of evidence which can be considered if the evidence
about extra-judicial confession comes from the mouth of
the witness / witnesses who appeared to be unbiased, not
inimical and in respect of whom, nothing is brought out
which may tend to indicate that he may have motive for
attracting the untruthful statement to the accused. The
words spoken by the witnesses must be clear,
unambiguous and mistakenly convey that accused is the
perpetrator of the crime. Admittedly, no exact words
uttered by the co-accused are stating by the witness -
Rakesh, to whom the alleged extra-judicial confession is
made.
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19. The learned counsel for the applicant rightly
relied upon the judgment of the Hon'ble Apex Court in the
case of Tejinder Singh alias Kaka V/s State of Punjab cited
supra, wherein also the fact shows that extra-judicial
confession alleged to be made to the sarpanch and the
sarpanch disclosed it after 16 days is held to be unnatural.
Similar is the case, here also, though confession is made
by the co-accused to the witness Rakesh on 23/09/2022,
however, first time, he has disclosed it on 12/10/2022 i.e.
after 20 days.
20. The prosecution further placed reliance of the
Test Identification Parade. The said Test Identification
parade is held on 10/11/2023 i.e. after a delay of
approximately more than one and half month. The facts of
the case show that the person entered in the house by
wearing a monkey cap. So the question is, whether there
was an opportunity for the witnesses to see the assailant.
The delayed identification parade also creates a doubt
about the prosecution case. Another circumstance on
which, the prosecution relied upon is the recovery of the
lock which is searched on the basis of information given
by the present applicant. Admittedly, the said recovery is
not made under Section 27 of the Indian Evidence Act
after recording the Memorandum Statement of the present
applicant.
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21. The Hon'ble Apex Court in the case of
Subramanya V/s State of Karnataka 6, while considering
the scope of Section 27 under the Indian Evidence Act
held that for the purpose of proving the discovery of
clothes of the applicant at his instance by drawing a
panchanama under Section 27 of the Indian Evidence Act.
The prosecution has to prove and establish the discoveries
in accordance with law.
22. It is held that the investigating officer first to
call the two independent witnesses at the Police Station
itself, once the two independent witnesses would arrive at
the Police Station, thereafter, in their presence, the
accused should be asked to make an appropriate
statement as he may desire in regard to point out the place
where he is said to have hidden the weapon of
offence etc. When the accused while in custody makes
such statement before the two independent witnesses, the
exact statement or rather the exact words uttered by the
accused should be incorporated in the first part of the
panchanama that the investigating officer may draft in
accordance with law. This first part of the panchanama for
the purpose of Section 27 of the Indian Evidence Act is
always drawn at the police station in the presence of the
independent witnesses so as to lend credence that a
particular statement was made by the accused expressing
his willingness on his own free will and to point out the
place where the weapon of offence or any other article
6 2022 SCC Online SC 1400
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used in the commission of the offence had been hidden.
Once the first part of the panchanama is completed
thereafter the police party along with the accused and the
two independent witnesses would proceed to the
particular place as may be led by the accused. If from that
particular place anything like the weapon of offence or
blood stained clothes or any other article is discovered,
then that part of the entire process would form the second
part of the panchanama. As such the law accepts that, the
investigating officer to draw the discovery panchanama as
contemplated under Section 27 of the Indian Evidence
Act.
23. In the present case, the investigating agency
has drawn one panchanama showing it as a Kruti
Panchanama and relied upon Kruti/verification
panchanama. As per the investigating agency,
during the said verification panchanama, the applicant has
shown the place where he shown the said lock, and the
packet of insecticides. Admittedly, none of the witnesses
have described the said lock, at the time of recording the
said statement.
24. Thus, considering the entire material, the
applicant has made out the case to release him on bail.
The entire case is resisted on circumstantial evidence and
the extra-judicial confession. Though prosecution has tried
to show that, mother of the deceased is an eye witnesses
of the said incident, but her statement is recorded after
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three days. On the date of arrest, absolutely there was no
material with the investigating agency to prosecute the
accused/applicant for the said offence. As per the
allegation, the applicant and the other co-accused were
having extra-marital relationship which is not supported
by any of the statement of the witnesses. Now, the
investigation is completed, charge-sheet is filed.
Considering the nature of the evidence collected by the
investigating agency during the investigation, and
considering the fact that now charge-sheet is filed, further
incarceration of the present applicant is not required and
therefore, the application deserves to be allowed by
imposing certain conditions. Accordingly, I proceed to pass
following order:
a) The applicant - Swapnil s/o Tarachand
Gawande, in connection with Crime
No.521/2022 registered at Police Station
Chandrapur City, Police Station, Chandrapur, for
the offence punishable under Sections, 302,
449, 506, 120-B, 182 and 201 of the Indian
Penal Code, 1860 is released on bail on
executing P.R. bond in the sum of Rs.50,000/-
with one solvent surety in the like amount.
b) The applicant shall not enter into the vicinity of
the Vishwakarma Square, Balaji Ward,
Chandrapur, District Chandrapur till the
culmination of the trial.
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c) The applicant shall not induce, threat or
promise to any witnesses who are acquainted
with the facts of the present case and shall not
tamper with the prosecution evidence.
d) The criminal application is disposed of.
[URMILA JOSHI-PHALKE, J.]
Signed by: Mr. R.K. NANDURKAR
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Designation: PA To Honourable Judge
Date: 18/01/2024 14:39:59
