Apeal-1496-03 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1496 OF 2003 Rohidas Manik Kasrale, ) Aged 30 years, Indian Inhabitant, ) r/a. Trupti Spt. Room No.14, ) Bhola Nagar, Kalwa, Thane ) ... Appellant Versus The State of Maharashtra, ) (At the instance of Kalwa Police Station ) in C.R. No.78 of 2003) ) ... Respondent Mr. Arfan Sait for the Appellant. Mr. K.V. Saste, APP, for the Respondent-State. CORAM : V.M. KANADE & A.M. THIPSAY, JJ. RESERVED ON : 15 TH SEPTEMBER, 2011. PRONOUNCED ON : 7 TH DECEMBER, 2011 . JUDGMENT {PER A.M. THIPSAY, J.} : 1. This Appeal is directed against the Judgment and Order dated 22nd August, 2003, passed by the 2nd Additional Sessions Judge, Thane, in Sessions Case No.78 of 2003, convicting the Appellant, who was the sole accused in that case, of an offence punishable under Section 302 of the Apeal-1496-03 2 Dixit Indian Penal Code. The learned Additional Sessions Judge sentenced the Appellant to suffer imprisonment for life and also to pay a fine of Rs.1,000/- with a default sentence of six months. The Appellant, being aggrieved by the said order of conviction and sentence, has appealed to this Court. 2. The prosecution case before the learned Additional Sessions Judge, Thane, was that the Appellant and his wife Lata used to reside at Room No.14, Trupti Apartment, Bhola Nagar, Kalwa, Thane, with their two daughters. The Appellant and his wife Lata, both, were working as Insurance Agents in Panaromic Company. The relations between the Appellant and his wife were not good. The Appellant used to suspect the character of Lata. In November, 2002, during Diwali Vacation, both the daughters of the Appellant and Lata had gone to reside with their maternal uncle Prakash More (PW-6). On 13th November, 2002, the Appellant and Lata had gone to Matunga to attend the meeting of the Company and they returned home at 12:30 hours in the midnight. They changed their clothes. That, at that time, three persons of the age group of 18 to 20 came to the house of Appellant and Lata, and started talking to Lata. Those persons were not known to the Appellant and, therefore, he asked Lata about them. Over this, Lata was annoyed and answered in fury that ‘they were her Apeal-1496-03 3 Dixit stones (nxM)’, and that ‘the Appellant had no business to ask about it’. On this, the said three persons left, but a quarrel took place between the Appellant and Lata. Lata gave a fist blow to the Appellant on his face. The Appellant was angered and he strangulated Lata by pressing her odhni around her neck. Lata died due to the compression of throat. The Appellant, thereafter, called his relatives, including the brothers of Lata, Baburao More (PW-3) and Prakash More (PW-6). The Appellant told them that three unknown persons had entered the house, made him unconscious by giving a blow and had, thereafter, killed Lata. The Appellant, thereafter, went to Kalwa Police Station and lodged a report in writing (Exhibit 20) implicating himself as the offender. API Tukaram Kamble (PW-5) registered a case and arrested the Appellant under Arrest Panchnama (Exhibit 21). API Kamble (PW-5) visited the spot. Inquest Panchnama (Exhibit 12) in respect of the dead body was drawn. The dead body was sent for post-mortem examination. Dr. Dattatraya Kulkarni (PW-4) performed the post-mortem examination. The death of Lata was opined to be caused by ‘ligature strangulation’. Further investigation was carried out by PI Ashok Pawar (PW-7), who carried out Spot Panchnama (Exhibit 13). The Appellant, while he was in police custody, disclosed certain information, pursuant to which one odhni was seized from his house under a Panchnama (Exhibits 14A and Apeal-1496-03 4 Dixit 14B). The seized articles, including the nail clippings of the Appellant and blood samples of the deceased Lata, etc. were sent for chemical analysis to the Forensic Science Laboratory, Bombay. The reports from the Chemical Analyzer were received in due course (Exhibits 29 to 34). On completion of investigation, a Charge Sheet was filed against the Appellant. 3. The prosecution examined totally seven witnesses during the trial. Sunil Sawant, a Police Constable, who had visited the house of the Appellant along with the Appellant, PI Ashok Pawar (PW-7) and Panchas on 14th November, 2002, is the first witness. He had witnessed the production of one Odhni by the Appellant. The second witness Pandurang Gajge is also a Panch in respect of the Inquest Panchanma (Exhibit 12) and the Spot Panchnama (Exhibit 13). He is also a witness in respect of the alleged disclosure statement made by the Appellant and the recovery of one Odhni from the cupboard inside the room of the Appellant under a Panchnama (Exhibits 14A and 14B). The third witness Baburao More, it may be recalled, is the brother of deceased Lata, while the fourth witness is Dr. Dattatraya Kulkarni, who had conducted the post mortem examination on the dead body. The fifth witness is API Tukaram Kamble, who had registered the First Information Report on the basis of information given to him by the Apeal-1496-03 5 Dixit Appellant. The sixth witness for the prosecution is Prakash More, another brother of deceased Lata. The seventh witness, as aforesaid, is the Investigating Officer PI Ashok Pawar. 4. We have heard Mr. Arfan Sait , the learned Advocate for the Appellant. We have heard Mr. K.V. Saste, the learned APP for the Respondent-State. We have carefully gone through the entire evidence adduced before the learned Additional Sessions Judge, Thane. We have perused the impugned judgment. 5. It is contended by Mr. Sait, the learned Advocate for the Appellant, that the prosecution had not been able to prove the charge against the Appellant. He submitted that the conviction of the Appellant, as recorded by the learned Additional Sessions Judge, Thane, is based only on surmises and conjectures. He submitted that the case of the prosecution is based only on the alleged confessional statement made by the Appellant to the Police and, that, the same being inadmissible in evidence, cannot be taken into consideration. He submitted that once the confessional statement is excluded, there was hardly any evidence against the Appellant to hold him guilty. He has relied upon a number of authoritative pronouncements of the Apeal-1496-03 6 Dixit Supreme Court of India and one of this Court, in support of the contentions advanced by him, dealing with, inter alia, burden of proof on accused, in view of the provisions of Section 106 of the Evidence Act, effect of absence of explanation of incriminating circumstances and/or a false plea by an accused, etc. We have taken into consideration the principles enunciated therein, which, in our opinion, are well settled. 6. It is true that the case against the Appellant is based only on circumstantial evidence. Admittedly, there are no eye witnesses to the incident. 7. Whether the circumstances, which are alleged against the Appellant, are satisfactorily proved and, whether such proved circumstances unerringly point out to the Appellant as the culprit, are the questions that need determination. 8. That, Lata died an unnatural death due to asphyxia is not in doubt or dispute at all. The evidence of Dr. Kulkarni (PW-4) shows that there were following external injuries on the dead body of Lata : Apeal-1496-03 7 Dixit “(i). Ligature mark on the neck, front aspect, horizontal, just below thyroid cartilage, 6.1” x 0.4”, 4’ right of midline and 2.1” left side of midline, on front of neck on dissection haemorrhages in the muscles and thyroid gland and neck structure, e/o bruising of neck, muscles of neck structure. Haemorrhage int he right and left submandibular glands, lower aspect; (ii). Linear pressure abrasion on the right side of neck, below injury No.1, horizontal, 0.8” x 0.1”. (iii). Pressure abrasion on neck, liner just below and medial to injury No.2 0.2” x 0.1”; (iv).& (v). Pressure abrasions, linear, on the right side of neck, above injury No.1, 0.2” x 0.1” and 0.2” x 0.1”; (vi). Linear pressure abrasion above injury No.1 on left side of front of neck, 0.3” x 0.1”; (vii). Linear pressure abrasion, above injury No.1 on left side of neck, 0.5” x 0.1”; (viii). Linear pressure abrasion above injury No.2 and left of injury No.7, 0.2” x 0.1”; (ix). Partially nealed scabbed abrasion, on right knee front, 4 x 0.1”.” 9. On internal examination, Dr. Kulkarni (PW-4) noticed hemorrhage in muscles of neck structure and submandibular glands and thyroid glands. He also mentioned in his evidence the other internal injuries that were noticed Apeal-1496-03 8 Dixit by him during the post-mortem examination and submitted that they were corresponding to the external injuries noticed. He had given the cause of death as ‘ligature strangulation’ and opined the death to be homicidal. His evidence is corroborated by the notes of the post-mortem examination (Exhibit 15) made contemporaneously by him and, therefore, can be safely accepted. As a matter of fact, there is no challenge to his evidence. 10. Thus, that the death of Lata was homicidal is satisfactorily established. 11. The point which now requires to be determined is whether the Appellant is the culprit. 12. It would be appropriate to refer to the evidence of each witness to comprehend what are the circumstances which are appearing against the Appellant in evidence, whether they are satisfactorily established and, whether they lead to the conclusion that the Appellant, indeed, committed the murder of his wife Lata. 13. The evidence of Sunil Sawant (PW-1), a Police Constable, shows that in the night between 13th and 14th November, 2002, he was on patrolling Apeal-1496-03 9 Dixit duty at Kalwa. As per the directions of his superior API Kamathe, he went to the room of the Appellant at about 4:00 a.m. for guarding the place. The room was locked at that time. That, about 5:45 a.m., Police Inspector Pawar (PW-7), the Appellant and two Panchas came there and, that, the lock was opened by the Appellant. That, the Appellant entered the room and produced one Odhni from a cupboard, which was taken charge of under a Panchnama. The time 5:45 a.m., as mentioned by this witness, does not seem to be correct, in view of the other evidence and it appears that it was meant to be 5:45 p.m.. Anyway, this is not very significant in the circumstances and in the view that we are taking. 14. The evidence of Gajge (PW-2), a Panch, shows that on 14th November, 2002, in the morning, he was taken by the Police to the house of the Appellant, where Inquest Panchnama (Exhibit-12) of the dead body of Lata was drawn. A Spot Panchnama (Exhibit-13) was also drawn. That, on the same day, this witness was again called at Kalwa Police Station at about 5:00 p.m. According to him, at that time, the Appellant, who was there, made a statement to the effect that he would produce the odhni. This was recorded under a Panchnama (Exhibit-14A) and then the Police, this witness, the other Panch and the Appellant went to the Appellant’s house Apeal-1496-03 10 Dixit i.e. the said Room No.14. That, the room was locked. It was opened by the Appellant. Thereafter, the Appellant produced odhni from the cupboard, which was seized under a Panchnama (Exhibit 14-B). According to this witness, there were stains of blood on the odhni (Article 1). In the cross- examination, it is revealed that this witness was known to the Appellant and, that, in the night of incident, on seeing that a mob had gathered there, he had gone to the house of the Appellant at about 3:30 a.m. According to him, there were discussions among the people that three persons had entered the house of the Appellant and had assaulted his wife and, that, this story had been told by the Appellant also. It also transpires that it is thereafter that the accused made a telephone call to the Police Station and then the Police reached there. The suggestion that he had not witnessed any statement made by the Appellant and, that, no odhni was recovered at the instance of the Appellant was denied by him. 15. The evidence of Baburao (PW-3) – brother of the deceased Lata – shows that at about 2:30 a.m., he received a telephone message calling him to the house of the Appellant immediately. Surprisingly, it is not clear as to from whom such telephone message was received; and neither the prosecution, nor the defence, nor the learned Additional Sessions Judge, Apeal-1496-03 11 Dixit Thane, thought it necessary to be clear on this. However, the very next sentence of this witness, as appearing in the notes of his evidence reads as under : It was informed that “quarrel had taken place between him and my sister.” 16. Since from the context it is clear that word ‘him’ refers to the Appellant, it indicates that such telephonic message was received by him from the Appellant himself. This witness went there with his father and other relatives, when the dead body of Lata was lying on the floor. According to this witness, the Appellant was present there and had pressed a handkerchief to his mouth. That, the Appellant was saying that some outsiders had come and had assaulted him and Lata. Then the Police came to the spot. 17. The evidence of Dr. Kulkarni (PW-4) has already been discussed earlier. 18. The evidence of API Kamble (PW-5) shows that the Appellant went to Apeal-1496-03 12 Dixit the Kalwa Police Station at about 3:30 a.m., when this witness was on duty there as Station Diary In-Charge. That, the Appellant gave information to him to the effect that he had killed his own wife at about 1:00 a.m. and, that, that information was reduced to writing by this witness and treated as the First Information Report (Exhibit 20). It is thereafter that this witness registered a case in respect of an offence punishable under Section 302 of the Indian Penal Code, arrested the Appellant and visited the spot. Inquest Panchnama (Exhibit 12) was drawn. That, the dead body was taken to the hospital for post-mortem examination. In the cross-examination, it was suggested to him that an information with respect to this offence was received at the Police Station at about 2:00 a.m., but he denied the same. It was also suggested to him that a wireless message was given to the patrolling van for going to the spot and, that, the constable on patrolling duty went there in the van, but this suggestion also has been denied by him. It was suggested to him that the Police took the Appellant to the Police Station in the Jeep which suggestion has also been denied by him. It was suggested to him that the Appellant gave him information to the effect that three unknown persons had come to his house and had assaulted his wife and him and, that, those persons had pressed the odhni of the wife of the Appellant against her neck. These suggestions had been denied by this Apeal-1496-03 13 Dixit witness as not correct. It was also suggested to him that the Appellant had given information to the Police on telephone after regaining consciousness, but this suggestion was also denied by this witness as not correct. Lastly, it was suggested to him that a false First Information Report was written and the signature of the Appellant was obtained thereon, which has also been denied by him. 19. The sixth witness Prakash More is another brother of deceased Lata. He also claims to have gone to the house of Lata on receiving a telephonic message in the morning that Lata was unconscious. He also did not speak specifically as to who had given that phone message. However, he stated that when he went there, he found that Lata was lying dead and the Appellant was also present there. The version of this witness is that the Appellant said that three unknown persons had come and had made him and Lata unconscious. That, Police came on the spot and thereafter the Appellant told this witness that he was annoyed with his wife and, that, he murdered her by tying odhni to her neck and by strangulating her. According to him, the telephonic message was received at about 2:45 a.m. In the cross- examination, this witness had admitted that many persons from the neighbourhood were present when he went to the spot and, that, Police Apeal-1496-03 14 Dixit came to the spot within about 15 to 20 minutes (after his going there). According to him, torn piece of odhni was lying near the dead body and, that, the Appellant said that the other piece was concealed by him. It is further revealed during his cross-examination that a statement was recorded by Police only on 29th November, 2002. He admitted that he did not lodge any report in the matter as he did not know how the incident occurred. He also admitted that the relations between the Appellant and the deceased were normal. He, however, denied the suggestion that the Appellant had not made any statement before him. 20. The evidence of PI Pawar (PW-7) shows that on 14th November, 2002, he visited the spot and drew Spot Panchnama (Exhibit-13). That, the Appellant gave certain information pursuant to which three pieces of odhni were recovered from a cupboard in the house of the Appellant and seized under a Panchnama (Exhibits 14A and 14B). He also stated that blood stains were found on the odhni. That, the nail clippings of the Appellant as well as the deceased Lata were taken by the Medical Officer and, that, they were sent for chemical analysis along with the odhni under a forwarding letter (Exhibit 28) on 19th November, 2002. It was suggested to this witness also, in the cross-examination, that the Appellant had informed the Police on Apeal-1496-03 15 Dixit telephone that his wife was murdered by the three unknown persons, but he had denied the said suggestion. The suggestion that no statement was made by the Appellant and no odhni was recovered pursuant to any such statement, as put to the witness in the cross-examination, was also denied by him. 21. The first circumstance sought to be proved against the Appellant is that he had confessed about his guilt. There is no doubt that the First Information Report lodged by him, being confessional in nature, cannot be used against him in view of the provisions of Section 25 of the Evidence Act. The legal position being very clear and undisputed on this point, this aspect does not need any further discussion. However, the evidence also shows that the Appellant had confessed about his guilt to Prakash (PW-6). The question that would need consideration is whether such extra judicial confession would be admissible against the Appellant because, apparently, such confessional statement was made after the arrival of the Police on the spot. 22. Section 25 of the Evidence Act provides that no confession made to a Police Officer shall be proved as against a person accused of any offence. Section 26 of the Evidence Act provides that no confession made by any Apeal-1496-03 16 Dixit person whilst he is in the custody of a Police Officer shall be proved as against him unless such confession is made in the immediate presence of a Magistrate. 23. The admissibility of a confession made by an accused to a third person in the presence of a Police Officer has been an issue which has been the subject matter of discussion in several authoritative pronouncements. What Section 25 bars is a confession made to a Police Officer and not confession made in the presence of a Police Officer. Thus, if a confession is made to a person other than a Police Officer, though when a Police Officer would be present at that time, it would not hit by Section 25 of the Evidence Act. This would be the theoretical position, but difficulties arise in determining whether the confession in a given case was, in fact, made to a Police Officer or to some other person. The rigors of Section 25 of the Evidence Act cannot be allowed to be diluted merely on the claim that the confession was not made to the Police but to somebody else, though the Police may very well be present. This would then be a question to be determined on the basis of facts of each case. 24. In Jagjitsingh Tannasingh Vs. State of Kutch, reported in 1956 Cri. Apeal-1496-03 17 Dixit L.J. 217, it was observed as follows : “(17).Section 25 of the Evidence Act refers to confessions made to a Police Officer and not to confessions made in the hearing of Police Officer. If a confession is made to a person who is not a Police Officer, Section 25 of the Evidence Act would not apply to it even though a Police Officer may have over-heard it.” 25. In Alluri Ramayya Vs. State of Maharashtra, reported in 1987 Cri. L.J. 1172, a Division Bench of this Court, after referring to a number of judgments on this aspect, concluded that mere physical presence of a Police Officer would not make a confession made by an accused to others inadmissible. Reliance was placed on the following observations made by the Supreme Court of India in Sita Ram Vs. State of Uttar Pradesh, reported in AIR 1966 SC 1906. “The presence or absence of the police officer near the accused is not decisive on the question whether the confession is hit by S. 25. A confession to a stranger though made in presence of a police officer is not hit by S.25.” 26. In Sita Ram’s case (supra), Their Lordships of the Supreme Court of India were dealing with the admissibility of the confessional statement in a Apeal-1496-03 18 Dixit letter written and signed by the Accused (Appellant before the Supreme Court) and addressed to the ‘Sub-Inspector’. Their Lordships differed in their views. The majority view (held by A.K. Sarkar, C.J. and Mudholkar, J.) was that though the letter contained a confession and was addressed to a Police Officer, it was not ‘a confession made to a Police Officer’ so as to attract the bar of Section 25 and, therefore, was admissible in evidence. The reasoning behind the majority view was that the letter was not written ‘in the presence of a Police Officer and obviously the letter could not have been a confession to Police Officers if the words ‘Sub-Inspector’ had not been written therein’. While countering the majority view, Bachawat, J., made the aforesaid observations that ‘presence or absence of the Police Officer near the accused was not decisive on the question whether the confession is hit by Section 25 of the Evidence Act’. Though the context in which the said observations were made in the aforesaid case of Sita Ram (supra) was entirely different, reliance was placed on the said observations in Alluri Ramayya’s case (supra) as making the legal position in that regard clear. 27. In the instant case, the confession was made to Prakash (PW-6) and not to the Police. It, therefore, would not be hit by Section 25 of the Evidence Act. Also, the Appellant was not in the custody of Police at that Apeal-1496-03 19 Dixit time. Therefore, the bar under Section 26 of the Evidence Act also would not apply. We are conscious of the fact that the Appellant would not be said to be ‘not in custody of the Police’ merely because a formal arrest had not been made, but, in the instant case, there is nothing to show that the Appellant was accused or suspected of the commission of the murder and was placed under any restraint by the Police before such statement was allegedly made by the appellant to Prakash (PW-6). 28. Mr. Sait, the learned Advocate for the Appellant, contended that even if admissible, no reliance can be placed