1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.33 OF 2009 Subhash S/o.Shravan Kamble, Age-30 years, Occu-Labour, R/o.Warvada, Tal.Ausa, Dist. Latur APPELLANT VERSUS The State of Maharashtra RESPONDENT Mr.S.J.Salunkhe h/f. Mr.S.A.Ambad, learned counsel for the appellant. Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 06/10/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By the present appeal, the appellant has questioned the correctness of the judgment and order dated 22/09/2008, passed in Sessions Case No.113/2007, by the Ad-hoc Additional Sessions Judge-2 Latur, by which the appellant was convicted for the offence punishable u/s. 302 of The IPC, and sentenced to suffer life imprisonment and to pay fine in the sum of Rs.2,000/- i.d. to suffer further RI for 4 months. Appellant was also convicted for the offence punishable u/s. 201 of The IPC, and was sentenced to suffer RI for 6 2 years and to pay fine in the sum of Rs.2,000/- i.d. to suffer further RI for 4 months. Both the substantive sentences were ordered to run con-currently. 2. Such of the facts as are necessary for the decision of this appeal can be summarized as follows : a) On 15/06/2007, one Yunus Shaikh, P.W.No.3, resident of Warwada, Tal.Ausa, Dist. Latur, at about 11.00 a.m. or so, noticed dead body of one female, floating in a well situated in his agricultural field near Shivali-Bhada Road. Immediately, he had reported the same to Village Police Patil Bhausaheb Manik Gawali. Police Patil then came to the spot and verified the situation, and reported the incident in Bhada Police Station to one API Maruti Jagannath Kshirsagar. Accordingly, AD was registered vide ADR No.22/2007 u/s. 174 of The Cr.P.C. b) During the investigation of the said ADR No.22/2007, API Kshirsagar visited the spot. He then took out the dead body from the well. In the presence of witnesses, he prepared inquest panchnama of the dead body (Exh.23). He also prepared memorandum of spot (Exh.24). While preparing memorandum of spot, he had seized pieces of broken bangles, ornaments, stone stained with blood, one pair of ladies sleeper chappal, ladies wrist watch, white coloured button of the shirt, which articles were found nearby the well. 3 c) From the spot itself, female dead body was sent to P.H.C. Bhada with Police constable B.No. 1185 to conduct the post mortem. Doctor Santosh Sadashiv Hindole, (P.W.No.9), attached to P.H.C. Bhada as Medical Officer, conducted the autopsy on the dead body. During the post mortem, he noticed following external injury Cut lacerated wound on frontal region of head admeasuring 4" x 1- 1/2" x 2". Further he noticed following internal injuries : 1) Cut lacerated wound 1-1/2" x 1" x 1", 2) fracture of frontal bone, 1" x 1", 3) Covering of brain is pale. Accordingly, he had prepared post mortem report (Exh.30). According to him, the probable cause of death is due to Hypovalemic Shock due to head injury causing cerebral hemorrhage. d) While conducting the post mortem, clothes on the dead body were removed and brought in the police station. Then they were seized under seizure memo (Exh.26). Before the autopsy was conducted on the dead body, photograph of the deceased were snapped. e) During the AD inquiry, photograph of the deceased was shown to nearby residents/inhabitants, in which it revealed that one person by name Raghunath Waghmare (P.W.No.10) noticed the deceased alongwith one small child and 2 persons passing from the rough pathway in the evening of 15/06/2007. Out of those 2 4 persons, one was his relative by name Shravan Kamble resident of Warvada. Accordingly, his statement was recorded. AD inquiry further revealed that the said Shrawan alongwith his son had left to Pune. AD inquiry further revealed that the deceased was resident of village Dharphal, Tal. and Dist. Osmanabad and her name is Ashabai. Deceased was residing with the son of Shrawan Kamble at Pune. On the basis of information collected during the AD inquiry, API Kshirsagar lodged the complaint (Exh.54) on behalf of State in Bhada Police Station, which was recorded by A.P.I. Shashikant Doke (P.W.No.16) on 21/06/2007. On the basis of this report, an offence came to be registered vide CR No.69/2007 u/s. 302, 201 r/w. 34 of The IPC against the Shrawan Kamble and an unknown person. Thereafter, further investigation was handed over to Dy.S.P. Shri.Doshi (P.W.No.17) f) During the further investigation, Dy.S.P. Shri. Doshi, arrested Shrawan Kamble on 22/06/2007 under arrest memo Exh.57 and arrested appellant on 23/06/2007 under arrest memo at Exh.58. After the arrest of the appellant, clothes on his person were seized in the presence of witnesses under seizure memo (Exh.61). He then recorded disclosure statement of appellant as per his desire on 25/06/2007 in the presence of panch witnesses (Exh.62). At the instance of appellant, one sarree was recovered, which was thrown in the field of one Khandu Patil at Warwada, and seized under seizure memo (Exh.63). On 26/06/2007, an application was moved before J.M.F.C. Ausa Shri. Vijay Gaware to record the confession of 5 appellant which was recorded by Shri.Vijay Gaware (P.W.No.18) J.M.F.C. Ausa on 28/06/2007 (Exh.83). During further investigation, property seized during investigation was forwarded to CA alongwith forwarding letter (Exh.65). An information was called about the presence of appellant on duty from his employer. Information was also collected from Deccan Gymkhana, Police Station, Pune about the missing / abandon of small child near Shivaji Nagar, ST stand. After receipt of CA report, and on completion of investigation, on 23/08/2007, charge sheet was filed against the appellant and his father before J.M.F.C. Ausa. J.M.F.C. Ausa, committed the trial against appellant and his father to the Court of Sessions, Latur. g) R & P received from the Trial Court shows that learned Ad- hoc Additional Sessions Judge-3 Latur framed the charge at Exh.14 against the appellant and his father for the offence punishable u/s. 302, 201 r/w. 34 of The IPC, to which appellant and his father pleaded not guilty and claimed to be tried. h) During the trial, to substantiate the charge lavelled against appellant and the acquitted accused, prosecution has examined total 18 witnesses including 5 panch witnesses (including the panch witness to the test identification parade), owner of the field in which the dead body of deceased was found in the well, Medical Officer, who had conducted the autopsy on the dead body of the deceased, the witnesses who have claimed that they have seen appellant, and his father alongwith the deceased, brother in law of the deceased, 6 mother of the deceased, Nayab Tahsildar who had conducted the test identification parade, the A.P.I. who had registered the FIR, the Investigation Officer and the learned J.M.F.C., who have recorded the confession of the appellant. From the evidence recorded before the Trial Court, it is clear that the conviction recorded by the Trial Court is based on the circumstantial evidence and the confession of the appellant, which was recorded by the learned J.M.F.C., Ausa. On appreciation of this evidence, learned Trial Court was pleased to acquit the father of the appellant, while recorded conviction against the appellant for the charges mentioned in para no.1 of this judgment, which is questioned in this appeal. 3. Before considering the rival submissions of the learned counsel for appellant and of learned APP for State, it is necessary to discuss the evidence of material witnesses, recorded before the Trial Court. a) It is clear from the evidence of P.W.No.9 Dr.Santosh Sadashiv Hindole, who had conducted the autopsy on the dead body of the deceased Ashabai and prepared PM notes (Exh.30) that the death of the deceased is homicidal/un-natural death, and it is not under dispute at all. b) It is stated by P.W.No.12 Kabirdas Maruti Manjare, the brother in law of the deceased Ashabai that the deceased was residing with her sister Shobhabai, at Nigadi, Pune. Appellant is brother in law of the said Shobhabai and also residing in other part 7 of Pune. As the wife of appellant was ill and taking treatment at Bombay, appellant had developed illicit relations with Ashabai, who was deserted by her husband. One female child was born to Ashabai from the appellant out of this relationship. After wife of appellant was cured from her illness and returned back to Pune, appellant arranged separate residence for deceased Ashabai. There were frequent quarrel between appellant and deceased on account of the fact that the appellant was not providing regular maintenance to the deceased. Soon before the incident, for 8-10 days, appellant and deceased were dis-appeared from Pune,hence it was accordingly intimated to the mother of the deceased, P.W.No.13 Kantabai. It transpired from his cross-examination that all these facts came on record in his evidence were not disclosed by him in his police statement recorded during the investigation. So also, it transpired from the evidence of P.W.No.13 Kantabai, mother of the deceased that their were frequent quarrel between the appellant and deceased on account that the deceased was insisting appellant to give his name to their minor daughter, to which appellant was not ready. Appellant also threatened the deceased to finish her on this count. But these facts were not supported by the evidence of other relatives of the deceased or of appellant, which was collected during the investigation. c) It transpired from the evidence of P.W.No.18, Shri.Viju Gaware, the learned J.M.F.C. Ausa that before recording confession of the appellant, he took every precaution as contemplated under 8 Criminal Manual and thereafter recorded the confession of appellant Exh.83, which is free and voluntary confession, in which the appellant has given minute details of the offence/crime committed by him. It is suggested in his cross examination that the appellant was forced to give the confessional statement. d) In his evidence, P.W.No.17, Dy.S.P. Mr. Doshi, has stated that after arrest of appellant on 23/06/2007, on his willingness, an application was moved before J.M.F.C. Ausa on 26/06/2007 to record the confession of the appellant, which was recorded on 28/06/2007, by the J.M.F.C. Ausa. During this period, appellant was transferred to Magistrate custody from Police Custody and was kept in the Sub-Jail at Latur. Appellant was given sufficient time during this period to think over on the point of giving confession or not and after giving him full opportunity and on assuring that the appellant is ready to give confession, learned J.M.F.C. Ausa has recorded the confession of the appellant, which is free and voluntary confession. In his cross examination, he had denied the suggestion that appellant was torchered during the period of his police custody to give the confession statement. 4. It is contended on behalf of the appellant that the case of the prosecution is based on circumstantial evidence, and the confession of the appellant, and prosecution has not completed the chain of circumstances, on which the prosecution is relying. It is further contended that the confession of the appellant is not free and 9 voluntary confession, hence not admissible in evidence and conviction can not be based on such confession as contemplated under Law. Thus the counsel for appellant prays that the appeal be allowed and the appellant be set at liberty. As against this, learned APP appearing for State supports the judgment of conviction recorded by the Trial Court. 5. Considering these submissions across the bar, first we will deal with the circumstantial evidence against the appellant. a) To some extent, through P.W.No.12 Kabirdas Maroti Manjre and P.W.No.13 Kantabai Trimukh Hunde, prosecution has tried to establish the illicit relationship between the appellant and the deceased, which is the motive behind the crime, but that itself is not sufficient to hold that the appellant is guilty of the offence charged against him. b) Evidence collected during the investigation on the point that the deceased was last seen in the company of appellant, was also not established as P.W.No.7 Khandu Vishwanath Ubale, P.W.No.8 Devidas Eknath Ubale, P.W.No.10 Raghunath Baliram Waghmare have not supported the case of prosecution on this point. Apart from it, evidence of identification of appellant during the test identification parade, conducted by P.W.No.14 Prabhakar in the presence of P.W.No. 15 Ramesh is not useful in the light of the fact that the identifying witness P.W.No.10 Raghunath Waghmare, has not supported the 10 identification of the appellant during the test identification parade in his substantive evidence before the Lower Court. c) The circumstance about the recovery of sarree at the instance of appellant is also not established as P.W.No.7 Khandu Ubale, from whose field the sarree was recovered at the instance of appellant, has not supported the case of prosecution. Likewise witness to this recovery has also not supported the disclosure memorandum. Apart from it, the said sarree recovered allegedly at the instance of the appellant was not referred to the witnesses who have claimed that they have last seen the deceased in the company of appellant soon before the incident. From the discussion made in the paragraph supra about the circumstantial evidence, we are of the considered view that the prosecution has not completed the chain of circumstances which can point out the guilt of the accused. 6. There is no doubt that the conviction can be based on the confession of the accused subject to the condition that the confession of the accused must be a free and voluntary. Section 24 of The Indian Evidence Act deal with the relevancy and admissibility of the confession recorded during the investigation, which read as follows : A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from 11 a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 7. It is observed in the matter of Queen Empress versus Appa Bin Bapu, reported in BLR, Vol.1, page 357 that, "the admitted ill- usage, viz., the unjustifiable violence used to the accused for his arrest, the illegal detention of the accused in police custody for more than 24 hours after his arrest, and the marks on his person, was held to have vitiated the voluntary character of the confession of the accused, and the confession was, therefore, not admitted in evidence. A Magistrate who recorded, under section 164, Criminal Procedure Code, confession of the accused, instead of first satisfying himself that the accused was about to make a confession voluntarily." 8. It is observed in the matter of Nathu versus State of Uttar Pradesh, reported in AIR 1956, SC 56 that, "the prolonged custody immediately preceding the making of the confession is sufficient, unless it is properly explained, to stamp it as involuntary. The fact that the cross examination of the C.I.D. Inspector such as that he was given bhang and liquor, or shown pictures, or promised to be made an approver, and they have been rejected as unfounded does not relieve the prosecution from its duty of positively establishing that the 12 confession was voluntary and for that purpose, it is necessary to prove the circumstances under which this unusual step was taken." 9. It is also observed in the matter of Devendra Prasad Tiwari versus State of U.P., reported in AIR 1978, SC 1544 that, "before a confessional statement made under section 164 Cr.P.C. can be acted upon, it must be shown to be voluntary and free from police influence." 10. It is also observed by the Apex Court in the matter of Mohd. Khalid versus State of Bengal, reported in (2002) 7 SCC 334 that, "that brings us to another angle i.e. acceptability of the confession. Section 24 of the Evidence Act interdicts a confession if it appears to the court to be the result of any inducement, threat or promise in certain conditions. The principle therein is that confession must be voluntary. It must be the outcome of his own free will inspired by the sound of his own conscience to speak nothing but the truth. Words and phrases, Permanent Edn., vol. 44, p.622 defines "voluntary" as : 'Voluntary' means a statement made of the free will and accord of accused, without coercion, whether from fear of any threat of harm, promise, or inducement or any hope of reward - State v. Mullin." In Words and Phrases by John B.Saunders, 3rd Edn., Vol. 4, p. 401, "voluntary" is defined as : "...... The classic statement of the principle is that of 13 Lord Sumner in Ibrahim v. R. (AC at p. 609) where he said, " it has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to be a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale". However, in five of the eleven textbooks cited to us ... support is to be found for a narrow and rather technical meaning of the word "voluntary". According to this view, "voluntary" means merely that the statement has not been made in consequence of (i) some promise of advantage or some threat, (ii) of a temporal character, (iii) held out or made by a person in authority, and (iv) relating to the charge in the sense that it implies that the accused's position in the contemplated proceedings will or may be better or worse according to whether or not the statement is made.' R.v.Power (All ER at pp. 454, 455), per Cantley, V." 11. To test, whether the confessional statement of the appellant recorded by P.W.No.18, learned J.M.F.C., Ausa Shri.Viju Gaware, at Exh.83 is his free and voluntary statement, it is useful to quote certain facts revealed in the evidence of P.W.No.17, the Investigation Officer, Dy.S.P. Shri.Tushar Chandrakant Doshi. From his evidence, it revealed that after the arrest of the appellant on 23/06/2007 till 14 26/06/2007, he was in police custody. He has stated in his evidence before the Lower Court that he called upon Subhash, the appellant herein to verify whether he is ready to give statement u/s. 164 of The Cr.P.C. before Magistrate when he was in PCR. Accused Subhash made statement before him that he is ready to give the statement u/s. 164 of The Cr.P.C. before the Magistrate. On 26/06/2007, such request was made by us before J.M.F.C. Ausa by way of an application Exh.64 that the appellant is ready to give his confession u/s. 164 of The Cr.P.C. On that day, he himself was also present in the Court alongwith the accused. After the application was allowed, the learned J.M.F.C.Ausa took the appellant in MCR and ordered to produce the appellant before him on 28/06/2007. It transpired from his cross examination that appellant was arrested on 23/06/2007 and produced before the Court on 24/06/2007. Police custody was granted till 26/06/2007. He requested the Court for extension of PCR in respect of appellant on 26/06/2007. At the same time, on 26/06/2007 itself, he moved an application before the learned J.M.F.C. for recording confession of appellant and transfer the appellant in Magistrate custody from PCR. He had further admitted that he was present in the Court on 26/06/2007 for submitting the report before Magistrate to record confession of the appellant and till the order was passed, he was present in the Court. This evidence require to be considered in the light of the fact that the appellant was produced before the learned J.M.F.C. on 28/06/2007 from Sub Jail, Latur. On that day, Police Constable Shinde and Police Constable Jadhav took custody of appellant from Sub Jail, Latur and produced 15 him before the learned J.M.F.C. to record his confession. In this context, evidence of P.W.No.16 Shashikant Sandip Doke, API attached to Bhada Police Station, also play very vital role. Thus from his evidence, it is clear that after the appellant was produced before J.M.F.C. Ausa on 26/06/2007 and application moved by the I.O. Dy.S.P. Shri.Doshi to record the confession of the appellant was granted and he was transferred to Magistrate Custody and ordered to keep in Sub Jail, Latur with further directions to produce the appellant on 28/06/2007 before Court, and accordingly was produced before the J.M.F.C. Latur by the authorities. In the premise, even though it is strongly denied by the investigation agency that the appellant was not under the control and custody of the police, doing the investigation in this crime during this period, it is to be inferred that the appellant was in prolong custody and under the control of Bhada Police Station, he was produced before J.M.F.C. Ausa on 28/06/2007 to record his confession. The compact effect of this evidence is that during this period, the appellant was under the control of the investigation agency and his confession recorded by the J.M.F.C.Ausa is to be inferred as not a free and voluntary confession. In the premise, as observed by the Apex Court in catena of judgments referred supra, and as in the statement recorded u/s. 313 of The Cr.P.C., the appellant has taken the stand that before he was produced before J.M.F.C. Ausa to record his confession on 28/06/2007, he was torchered by A.P.I. Shri.Doke and Dy.S.P. Shri.Doshi. This explanation require to be accepted. 16 12. While opposing these submissions across the bar, learned APP has placed reliance about the observations in the matter of Lokeman Shah and another versus State of West Bengal etc., reported in 2001 Cr.L.J. 2196, wherein it is observed that the material facts stated in detail by the accused squarely indicate that the confession statement of the accused is his voluntary statement and it is admissible and reliable. It can be used by the Court to draw the inference that the accused, at his own, has given the statement before the Magistrate u/s. 164 of The Cr.P.C. 13. While discussing the evidence of P.W.No.16, A.P.I. Shri.Doke, who was assisting during the investigation to Dy.S.P. Shri.Doshi, P.W.No.17, we have inferred that appellant was under their control, hence we are of the considered view that the confession of the appellant recorded by P.W.No.18 J.M.F.C. Ausa is not free and voluntary statement of the appellant. 14. If the Lower Court had recorded the conviction by relying on the evidence of confession of the appellant about his guilt, and the circumstantial evidence against him, but in view of the facts and legal position discussed supra, we are of the considered view that the confession of the appellant is not his free and voluntary statement, as required u/s. 24 of the Indian Evidence Act, then we have to discard that piece of evidence. Earlier we have concluded that the evidence available before the Trial Court is not sufficient to complete the chain of circumstances, which can point out the guilt of the 17 accused, then on both these grounds, prosecution failed to prove the case against accused. In the premise, we are of the opinion that the appellant is entitled for the benefit of doubt. Hence order : Criminal appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/OCT. 2010/cri.appeal 33-09