[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO. 342 OF 1995. CRIMINAL APPEAL NO. 342 OF 1995. CRIMINAL APPEAL NO. 342 OF 1995. Dashrath Sakharam Sutar, Residing at Sutarwadi, Pashan, Opposite Vithoba Mandir, Pune. ..Appellant (Orig. accused No.1) V/s. The State of Maharashtra .. Respondent. Shri A.B. Vagyani for the appellant. Shri D.R. More, A.P.P. for the Respondent/State. CORAM : S.S. PARKAR, & CORAM : S.S. PARKAR, & CORAM : S.S. PARKAR, & ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. DATE : 8TH APRIL, 2005. DATE : 8TH APRIL, 2005. DATE : 8TH APRIL, 2005. ORAL JUDGMENT (PER ANOOP V ORAL JUDGMENT (PER ANOOP V ORAL JUDGMENT (PER ANOOP V. MOHTA, J.) MOHTA, J.) MOHTA, J.) . The present appeal by the appellant, as he has been convicted, under Section 302 of Indian Penal Code (IPC) and sentenced to undergo imprisonment for life. 2. The appellant-accused No.1 and one Pralhad-accused No.2 were charged and tried jointly for committing the murder of one Chandrakant Parshuram Bajare ( the deceased). As per the prosecution, accused No.2, being friend, used to visit the house of the deceased. The deceased had advanced the loan to accused No.2 for purchasing autorickshaw and also for the marriage of his daughter, which remained unpaid. [2] Accused No.2, induced the appellant, to commit the murder of the deceased. The appellant was unemployed. Accused No.2, had promised an employment in return. The appellant on such inducement and promise on 30/1/1992, at about 11.00 p.m., in front of Chankya Housing Society, near Deep Bunglow square, Pune, beat the deceased with fists and kicks. The appellant also gave blows of stones on his head, after removing the clothes of the deceased. The deceased was unconscious, because of the head injuries by the stones. This incident was witnessed by P.W. 2, Vishwas Chavan, who was sitting along with Shivaji, P.W. 3 near bonfire beside the bunglow of Mr. Shirole. At the relevant time, P.W.3 went out for urination, but he immediately returned and informed about the on going fight. P.W. 2 and P.W. 3 rushed towards the place of the occurrence. One Jekab was also standing there. They saw one bicycle beside the road and one man was beating another man. The victim fallen on the ground, was having a black pant and a white shirt and the assailant was having white shirt and white pyjama and was bald. They saw that the assailant was hitting with fists and kicks, then he took out the clothes of the deceased and assaulted with the stones. As other persons also came near the place, the [3] assailant ran away on the bicycle. Both these witnesses, however, at the relevant time could not see the face of the assailant. 3. On 31/1/1992 at about 7.50 a.m. Maruti Hajare, PSI, P.W. 4, received a message, that an injured person lying in front of Chankya Housing Society, was taken to Sasoon Hospital, Pune. The injured was in the emergency ward. P.W. 4 PSI, therefore, went to the spot of incident. The spot panchanama was prepared (Exh.9). The clothes, slippers and driving licence of the deceased were seized. The blood stained stones were also seized. Articles 1 to 8 are placed on the record. The first information report ( F.I.R.) Exh.17 was lodged. The report, Exh.18 was also sent to the police station. The offence was registered at Cr.No. 45/1992. The statement of P.W. 1 was recorded on that day. The further investigation thereafter,was carried out by PSI Mundhe (P.W.,9). On 1st February, 1992, Mundhe, examined 5 witnesses, including Vishwas Chavan, P.W. 2; Shivaji, P.W. 3. Other witnesses were examined on 2nd February, 1992. On 6/2/1992, he arrested accused No.2. On 7/2/1992 the appellant was arrested. The blood stained white shirt and a white Pyjama (article 9 and [4] 10) from the person of the accused-appellant were also seized and seizure panchanama was drawn (Exh.29). The supplementary statement was recorded on 9/2/1992. The property and articles were sent to the Chemical Analyser and the same was received vide Exh. 36 and 37. The prosecution, as per the letter Exh.23 to Subhash Dahiwal (PW7), (Special Judicial Magistrate) (SJM) requested to hold the identification parade. It was also informed to the SJM to record the confessional statement of the accused-appellant in Cr.No. 45/1992. The SJM, by it’s letter, instructed to keep the appellant present, for recording statement on 9/3/1992. After completing all the formalities, and essential questionings, recorded the statement of the appellant, Exh. 24. The SJM, thereafter, gave 24 hours time for the reflection and remanded the appellant to Magisterial custody. On 10/3/1992, at about 12.10 noon, all the necessary questions and answers were exchanged. There was no complaint or any objection about any kind of inducement, threat or promises by the police. After due satisfaction, the SJM recorded and endorsed the confessional statement and obtained the thumb-impression of the appellant (Exh.25). The necessary certificates were issued (Exh.,26) In the identification parade, as [5] main two witnesses were not available, therefore, they could not be produced. Mr. Jekab, who was present along with P.W. 2 and P.W. 3 could not be identified. On 30th April, 1992, the charge-sheet Exh.1 was submitted after completion of the inquiry and investigation. 4. Both the accused pleaded not guilty. Their defence was of total denial. The prosecution has examined 9 witnesses. No defence witness was examined. 5. The learned Sessions Judge, after considering the material, as well as, the confessional statement of the appellant, by the impugned judgment and order acquitted accused No.2 for want of evidence but convicted the appellant. The appeal was admitted on 19/7/1995. The appellant is released on bail. 6. Heard learned Counsel, Mr. A.B. Vagyani appearing for the appellant and the learned A.P.P. Mr. D.R. More for the Respondent/State. The contention of the appellant’s Counsel, are; that the confessional statement of the appellant, for want of corroboration and supporting material cannot be the basis for the [6] conviction; the eye witnesses PW 2 and PW 3 unable to identify the appellant, as they could not see the face at the time of incident; the Supreme Court Judgment AIR AIR AIR 1969 S.C. 422 ( Nishi Kant Jha V. State of Bihar) 1969 S.C. 422 ( Nishi Kant Jha V. State of Bihar) 1969 S.C. 422 ( Nishi Kant Jha V. State of Bihar) was misconstrued; the mandatary procedures as contemplated under section 164 of Cr.P.C., section 24 of Evidence Act, and the guide lines as provided, before recording confessional statement, were not complied with; the other witnesses turned hostile including P.W. Indrajit (arrest panchanama) and P.W.1, suman (wife of the deceased); there was no motive of the appellant to murder the deceased; The statement belatedly recorded. therefore, unreliable. The learned Judge, therefore, wrong in convicting the appellant. There is nothing to connect the accused with the crime, and benefit of doubt should be given also to the appellant. Lastly, prayed for leniency, as the appellant is not habitual criminal. The learned Counsel appearing for the appellant has referred the following case laws; 1. AIR 1969 S.C. 422 (Nishi Kant Jha V. State 1. AIR 1969 S.C. 422 (Nishi Kant Jha V. State 1. AIR 1969 S.C. 422 (Nishi Kant Jha V. State of Bihar. (2) AIR 1956 S.C. 217 ( Aher Raja of Bihar. (2) AIR 1956 S.C. 217 ( Aher Raja of Bihar. (2) AIR 1956 S.C. 217 ( Aher Raja Khima V. State of Saurashtra). (3) 1982 Khima V. State of Saurashtra). (3) 1982 Khima V. State of Saurashtra). (3) 1982 Cri.L.J. 216 (State Assam V. Rabindra Nath Cri.L.J. 216 (State Assam V. Rabindra Nath Cri.L.J. 216 (State Assam V. Rabindra Nath [7] Guha). (4) 1972 Cri. L.J. 961 (Hari Ram V. Guha). (4) 1972 Cri. L.J. 961 (Hari Ram V. Guha). (4) 1972 Cri. L.J. 961 (Hari Ram V. State). (5) 1994 Cri.L.J. 3139 ( Kartar Singh State). (5) 1994 Cri.L.J. 3139 ( Kartar Singh State). (5) 1994 Cri.L.J. 3139 ( Kartar Singh V. State of Punjab) (6) AIR 1978 S.C. 1248 V. State of Punjab) (6) AIR 1978 S.C. 1248 V. State of Punjab) (6) AIR 1978 S.C. 1248 (Shankaria V. State of Rajasthan) Shankaria V. State of Rajasthan) Shankaria V. State of Rajasthan) 7. The learned A.P.P. resisted the contentions raised by the Counsel for the appellant and supported the impugned judgment and order and also relied on AIR AIR AIR 1999 S.C. 2640 ( State of Tamil Nadu V. Nalini and 1999 S.C. 2640 ( State of Tamil Nadu V. Nalini and 1999 S.C. 2640 ( State of Tamil Nadu V. Nalini and others). Para 405; others). Para 405; others). Para 405; to support that there was no complaint about the police threat or coercion 8. We have also gone through the record and after reappreciation of the material, as well as, the evidence, we are convinced that the appellant has committed the offence in question. The judgment and order, therefore, need no interference. Our reasoning to maintain the order is as follows; 9. There is no dispute to the contents of panchanama Exh. 9, inquest panchanama Exh.10, panchanama of arrest, seizure of clothes, as those documents were produced by the prosecution under section 294 of Cr.P.C. and were admitted in evidence by the [8] appellant. P.W. 6 Dr. Milind Wagale, who was on duty at the relevant time at Sasoon Hospital, had conducted the post-mortem examination on the dead body of the deceased and recorded in the post mortem report Exh.21 that, "cause of death in my opinion was due to head injury" "the external injury No. 1 could be caused by forceful blow of stone on the head." "The stone blow on the right side of the scalp as I found as external injury No.1 could cause subdural haemorrhage over occipital lobe and subaroid haemorrhage". "The external injuries Nos. 1 to 5 are the head injuries. The injuries No. 4 and 5 could be caused due to the internal bleeding below the scalp. The external injuries 2 and 3 are possible by the stone blows." "The external injuries 6 to 18 except 9 and 17 are possible not by bare kicks, but by kicks with some foot wear. The injury No. 9 and 17 were possible by some sharp object. The fracture on left libia and fibula corresponding to external injury No. 16 could be caused by blow of hard object such as stone. The internal injury on the head corresponding external injury Nos. 1 to 5 were sufficient in the ordinary course of nature to cause death." In the Cross-examination also P.W. 6 has stated that the external injuries No. 1 to 18 are [9] possible by vehicle but in that case there would be grease with abrasion which were not in this case. " The injuries No. 7 to 14 are not possible even if the person is dragged by the vehicle." After going through the evidence as well as post-mortem report there remained no doubt that the death of the deceased was homicidal and caused by heavy blow of the stones on the head. The inquest panchanama Exh.10 and panchanama of scene Exh.9 further supports the above fact. The blood stained white shirt and white payjama of the appellant were seized. The blood stained stones weighing 10 kgs and other about 1-1/2 Kgs., the driving licence of the deceased and blood stained earth were seized from the spot. The inquest panchanama supports the prosecution case, read with the evidence of P.W. 6, Dr. Wagale and post-mortem report and panchanama, that the deceased was mercilessly beaten by the stones, beside the Chankya Housing Society, Pune. As per inquest panchanama the body of the deceased was naked. The Chemical Analysers reports Exh.36 also supports the prosecution case, apart from the evidence of P.I. P.W.9 that, Article 1,2,3 and 8 were stained with blood of "B" group. The blood of the appellant Dashrath is of "O" group, Exh.37. On the deceased clothes (article 1 and 2) blood group "B" was [10] detected as per the C.A. report Exh. 36. The stones recovered/seized from the scene of offence, had human blood. The blood group of the deceased was "B". 10. P.W. 8,(Indrajit) even though, was declared hostile, in his cross-examination had admitted his signature on the arrest and seizure panchanama (Exh.29). The evidence of P.I. Mundhe, P.W.9 also supports the panchanama. When the appellant was arrested on 7/2/1992, he was wearing old blood stained white shirt (Art.8) and white Pyjama articles 9. The accused was arrested under panchanama Exh.29. The duly proved C.A. reports Exh.36 and 37 support the prosecution case, as human blood group "B" stains were found on the articles 1,2,3 and 8. Therefore, this also corroborates the prosecution case and involvement of the appellant and connect the appellant with the crime in question. 11. The next important aspect to support the order of conviction is, two witnesses P.W. 2 (Vishwas) and P.W. 3 (Shivaji). Both these witnesses have corroborated that on 30th January, 1992, at about 11 p.m. in front of Chankya Housing Society, near Deep Bunglow square, they were sitting near bonfire. P.W. [11] 3, Shivaji when went for urination, saw the fighting which was going on. He informed about the same to Vishwas, P.W.2. Both therefore, went near the place of occurrence. Both these witnesses, saw that one man was beating another man. The victim had fallen on the ground, was wearing black pant and whitish shirt ( panchanama Exh.9). The assailant was wearing white shirt and white pyjama. The assailant firstly beat the deceased with fists and kicks and secondly took out the clothes of the victim and lastly hit the victim with the stones. Thereafter the assailant took up the bicycle and went away. P.W. 3 has stated that the assailant hit the victim with stone. P.W. 3 Shivaji saw the fighting and he informed also Vishwas P.W. 2. A Welder Jekab also came there. The learned Advocate for the appellant referred the evidence P.W.2 and relied upon the statement that " since I had not seen the face of the appellant, I am not able to identify him" he also relied on the statement of P.W.3 Shivaji " I am not able to identify the assailant". Therefore, contended that those two witnesses cannot said to be eye witnesses of the incident and even though, they had noted the incident, they were unable to identify the appellant. The learned Counsel also argued that these are the [12] chance wintesses, therefore, cannot be relied upon. As noted in the present case, these two witnesses had witnessed the incident fully, but unable to identify the appellant. Both these witnesses have identified the clothes of the deceased and the accused, and corroborates the incident which was also supported by the other witnesses. The articles which were recovered from the spot also connect the same. The C.A. reports also supports the prosecution case, in so far as, blood stained clothes, and blood found on the spot, stones and on the clothes of the deceased, which were seized from the spot, apart from the driving licences with photographs of the deceased. The post-mortem report further supports, the injuries by the fist, kick blows and the stones. 12. The important connecting and corroborative aspect in the present case, is the confessional statement of the appellant Exh.24 & 25. We have noted that P.W. 2 and P.W. 3, were unable to identify the appellant, at the relevant time, even though they had witnessed, the whole incident. Both these witnesses nowhere mentioned about the presence of third person on the spot. The identification parade nowhere connect the [13] appellant with the crime, as these witnesses were not available for the identification parade. But still the appellant has made confessional statement. The said confessional statement was recorded by SJM PW.7. We have gone through the evidence of SJM and we have noted that he had followed all the essential and necessary formalities, before recording the confessional statement of the appellant on 9.3.1992. The confessional statement was recorded on the next date i.e. 10/3/1992. There was no objection of any kind raised by the appellant about any coercion, undue influence, inducement, threat or promises given by the police. Therefore, as recorded and, as noted from the record, we are also of the view that the confession given by the appellant-accused No. .1 was voluntary and without any threat or coercion and recorded as per the provisions of law. This confession in the facts and circumstances of the case, have corroborated other material evidence, therefore, the conviction can be based upon the same. 13. As we have noted the appellant had not admitted in this confessional statement that he had beaten and committed the murder of the deceased Chandrakant. This confession, is not fully corroborates the prosecution [14] case. The part of this statement, only corroborates, other prosecution evidence, specially, of P.W. 2 and P.W. 3. The appellant has confessed as under. "Pralhad Lakshman Wadkar had helped me to get employment at Maldhakka, Mangalwar Peth. He said to me that I may serve there temporarily and then he would help me to get employment at Bharat Forge Co. Then he used to come in the morning and in the evening at Maldhakka at the place of my work. I asked him not to come there. He said that he had a work with me. I asked him as to what was the work. He told me that one person was to be murdered, and that he would show me that person. I asked him as to what was the name of that person. He did not tell me. But he showed me the photo of a person who was to be murdered. I asked him as to why that person was to be murdered. Wadkar told me that, that person was always giving trouble to his wife and children. Accordingly, on 30/1/1992 the deceased man got down from the PMT bus at Simla office at about 9.30 p.m. and we took him by rickshaw near Chanakya Society near Deep Bungalow square. Wadkar, abused him and started beating. He said to the deceased that he would reach him home very well. The deceased was shouting as not to beat and that he had helped him much. That he had also kept the illicit relations with his wife. By seeing towards myself, deceased was saying ’O Pahilwan, please rescue’, But I could not do anything. Then Wadkar threatened me and asked to take off the pant of the deceased. I presumed that the public would think that the thieves had robbed him and hence, I took off his pant. Then Wadkar threatened me that my work was over and I should go therefrom. If anything would happen he would tell my name. Accordingly, I boarded other rickshaw and went to Pashan. Wadkar stayed there only. I do not know what happened thereafter. All this had happened on 30/1/1992 at 11,.00 to 11.30 p.m. [15] The above contents have been read over to me. They are true and correct. I am giving voluntarily this statement." 14. The basic link which was missing in the evidence of P.W. 2 and P.W. 3 was the identification of the appellant. Both these witnesses P.W. 2 and P.W. 3 have corroborated that on 30th January, 1992 one person was beating another person with kicks, fists and stones to another person. The clothes were removed by the assailant. P. W. 2 basically, stated that the assailant beat the deceased with stone. Both the witnesess P.W. 2 and P.W. 3 have stated that the assailant was beating and kicking the deceased. The appellant’s confessional statement corroborates the link that on 30/1/1992 that they took the deceased near Deep Bunglow, Pune and started abusing him and beating him. The appellant also confessed that as the accused No.2 asked him to take out the pant of the deceased. he took out his pant. The evidence of P.W. 2 and P.W. 3, read with the confessional statement of the appellant, there is a corroboration to the fact that the said assailant was no one else but the appellant, who was present at the scene of offence at the relevant time and killed the deceased with the stones. [16] 15. The appellant in his confessional statement further made reference of the presence of the accused No.2. The appellant nowhere admitted the guilt or admitted the beating the deceased with fist, kick and stones blows. The appellant expressed his ignorance about the events, as he left after removing pant of the deceased. The appellant however, confessed that all these events happened of 30/1/1992 at about 11 to 11.30 p.m. near Deep bunglow square, near Chankya Housing Society. Pune. Now, therefore, the question is whether an incriminating part of the confession can be taken note of to convict the accused, if corroborated by other prosecution evidence and if yes to what extent. The conviction in the present case is rest upon the inculpatory part of the confession made by the appellant, which corroborates with the evidence of P.W. 2 and P.W. 3. 16. Original accused No.2 was acquitted, as there was no connecting circumstances or material to point out that accused No.2 was present at the relevant time along with the appellant. P.W. 2 and P.W. 3 no where made reference of any third person on the spot at the [17] relevant time. The involvement of accused No.2 therefore, by the appellant has remained uncorroborated and that resulted into acquittal of accused No.2. However, the inculpatory part and or the piece of inculpatory statement of the appellant, connect and corroborate, by the other witnesses, and therefore, the circumstances are sufficient to connect the appellant with the crime in question. As held also by the learned Sessions Judge, while convicting the appellant for the offence under Section 302 of IPC. 17. The Apex Court in Nishi Kant V. State of Bihar, Nishi Kant V. State of Bihar, Nishi Kant V. State of Bihar, A.I.R. 1969,S.C. 422 A.I.R. 1969,S.C. 422 A.I.R. 1969,S.C. 422 (Constitutional Bench), after considering the earlier Apex Court’s decision including A.I.R. 1952 S.C. 343 (Hanumant V. State of Madhya A.I.R. 1952 S.C. 343 (Hanumant V. State of Madhya A.I.R. 1952 S.C. 343 (Hanumant V. State of Madhya Pradesh),A.I.R. 1952, 354 ( Palvinder Kaur V. State of Pradesh),A.I.R. 1952, 354 ( Palvinder Kaur V. State of Pradesh),A.I.R. 1952, 354 ( Palvinder Kaur V. State of Punjab), 1964 (1) Cri.L.J. 730 ( Narain Singh V. State Punjab), 1964 (1) Cri.L.J. 730 ( Narain Singh V. State Punjab), 1964 (1) Cri.L.J. 730 ( Narain Singh V. State of Punjab), of Punjab), of Punjab), held that; "In this case the exculpatory part of the statement in exh.6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the appellant was caused by the appellant’s attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under S. 342 Cr.P.C. to the effect that he had received the injury in a [18] scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13th October, 1961 negatives both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and have a bath in the river Patro, the amount of bleeding and the washing of the blood-stains being so considerable as to attract the attention of Ram Kishore Pandey, P.W. 17 and asking him about the cause thereof. The bleeding was not a simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according