1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 26 OF 2009 1. Shri Shantaram Raikar/Gaonkar 2. Smt. Shashikala Raikar/Gaonkar, Both resident of Diggi, Zoida, Karwar, Karnataka, Both presently undergoing life sentences at Aguada Central Jail, Aguada, Bardez, Goa. ... Appellants versus State of Goa, Through Public Prosecutor, Panaji Goa. ... Respondent Shri M. Amonkar, Advocate for the Appellants. Shri C. A. Ferreira, Public Prosecutor for the Respondent. CORAM : NARESH H. PATIL & N. A. BRITTO, JJ. DATE : 5TH APRIL, 2010. JUDGMENT(Per N. A. BRITTO, J.) This appeal is filed by the accused(Appellants herein) and is directed against Judgment and Order dated 2-1-2009 of the learned Children's Court, Panaji, by which both the accused have been convicted and sentenced 2 for infanticide under Section 302 r/w 34 IPC, and for causing the evidence to disappear under Section 201 IPC, inter alia, for life imprisonment. Charge was also framed under Section 8 of Goa Children's Act, 2003 but there is no finding given on that aspect by the learned Children's Court. 2. Both the accused are from Diggi, Karwar in the State of Karnataka. Both of them were working as farm labourers in the farm of PW2/ Cristina Crasto at Bhatti, Sanguem, Goa. Both of them got friendly and A-2/Shashikala conceived a child through A-1/Shantaram. They started to reside in the farm house of PW2/Cristina Crasto. It appears A-1/Shantaram was earlier married. 2.1 A-2/Shashikala visited her maternal house at Diggi, Karwar for Ganesh festival of 2006, and at that time she was pregnant of seven months. She told her brother PW1/Suresh Mirashi that she was in love with A-1/Shantaram, and seeing that A-2/Shashikala was pregnant through A-1/Shantaram, the latter was called by the Village Committee and both agreed to get married, and their marriage was solemnized on 14-9-2006 in a temple at Ramnagar, and after that they again came down to Goa and resided in the said farm house along with A-1/Shantaram's mother. 3 2.2 A-2/Shashikala delivered a girl child on 8-11-2006 at GMC, Bambolim, and returned on the same day to the said farm house. In March, 2007, A-2/Shashikala returned to her maternal house for Zatra and Shigmo festival. When her brother PW1/Suresh Mirashi inquired about her husband and child, A-2/Shashikala informed them that A-1/Shantaram was harassing her and not looking after her. Then the said PW1/Suresh Mirashi along with his brother Santosh, the said A-2/Shashikala, one Ravi, Chandrakant, Keshav and Ramesh went to the Ramnagar Police Station in Karnataka to complain to the Police about the harassment to A-2/Shashikala, upon which A-1/Shantaram was called to the Police Station, and then they were advised to report the matter to Sanguem Police Station as both the accused were residing within the jurisdiction of that Police Station. 2.3 PW1/Suresh Mirashi along with both the accused and the said group of persons went to the Sanguem Police Station on 17-3-2007 but it appears that on that day the Police were busy with Shigmo festival. On this day, A-2/Shashikala is stated to have told PW1/Suresh Mirashi, that she did not know what A-1/Shantaram did with the child, whether he had sold the child or killed it. He went again along with the accused and the said persons on 18-3-2007. At this time, A-1/Shantaram is stated to have informed PW1/Suresh that he had pressed the chest and neck of the child on 9-12-2006 at about 12.30 hours and buried the girl child in the nearby cashew plantation. 4 The complaint came to be lodged against both the accused and which was registered by PW10/P.I. Ramesh Gaonkar of Sanguem Police Station. The complaint of harassment was forgotten by him. 2.4 Both the accused were detained and later arrested on the same day at about 19.45 hours in the presence of two panch witnesses, none of whom have been examined by the prosecution. On 20-3-2007, A-1/Shantaram was interrogated and he volunteered to disclose the place of the pit where the child was buried and the koita with which the pit was dug. Accordingly, the body of the girl child was exhumed in the presence of PW2/Cristina Crasto, PW4/Ravindra, PW7/Pratap Singh Velip Kankar, the Sub Divisional Magistrate, and PW5/Dr. Ghodkirekar and subsequently autopsy was conducted by the same doctor. 2.5 The body of the child had decomposed and skeletonized, and, therefore no opinion as to the cause of death could be given by PW5/Dr. Ghodkirekar. The koita was seized from the house where the accused were residing. After investigations a charge-sheet came to be filed against both the accused for the said offences. 3. Both the accused were therefore charged and tried with the allegation that on 9-11-2006 at about 12.30 hours both the accused in 5 furtherance of their common intention committed murder of their six days old child by pressing her neck and chest, and thereafter buried her dead body by digging a pit in a nearby cashew plantation. In support of the charge, prosecution examined 10 witnesses including the said P.I. Shri Gaonkar. 4. The case of both the accused was that they were falsely implicated. According to both, PW1/Suresh was against them because they got married against their wishes. According to A-2/Shashikala, the child died a natural death. Both the accused did not examine any witnesses. 5. The learned Children's Court after assessing the evidence produced by the prosecution came to the conclusion that the prosecution had proved beyond reasonable doubt that both the accused persons with their common intention had caused the death of the child on 9-11-2006 and with a view to conceal the murder had buried the child in a property at Valkini Colony at Sanguem by digging a pit, and, therefore proceeded to convict and sentence the accused as aforesaid. 6. The case of the prosecution is based on circumstantial evidence, namely, extra judicial confessions made by A-1/Shantaram to two witnesses, namely, to his brother-in-law PW1/Suresh and to the landlady PW2/Cristina Crasto; recovery evidence of the body on the basis of information given by the 6 accused No.1; and so also the koita. Shri Amonkar, the learned Counsel appearing on behalf of the accused, has submitted that the accused No.1 Shantaram does not deny that the pit was pointed out by him but according to the learned Counsel, the pit was pointed out by him because that is the place the child was buried after it died a natural death. According to him the koita is not at all connected with the digging of the pit. 7. The law on circumstantial evidence is well settled. In a case based on circumstantial evidence the prosecution is expected to prove the circumstances beyond reasonable doubt and all the circumstances so proved taken together must lead to no other inference except of the guilt of the accused and to justify an inference of the guilt of the accused the circumstances from which such inference is sought to be drawn must be incompatible with his innocence and incapable of any other explanation, other than of his guilt. The law on extra judicial confession is also well settled. Although there is preponderance of judicial opinion that an extra judicial confession is a weak piece of evidence, there is neither any rule of law nor of prudence that evidence furnished by extra judicial confession cannot be relied upon unless corroborated by some other credible evidence. (See P. R. Singh v. State of Punjab(AIR 1977 SC 2274) followed in State of U.P. v. M. K. Anthony(AIR 1985 SC 48). The question is of its reliability, and reliance can be placed on an uncorroborated extra judicial confession in case the same is 7 reliable, for the purpose of conviction. The value of extra judicial confession depends upon the veracity of the evidence of the witness to whom it is made. This position is reiterated in State of Rajasthan v. Kashi Ram(AIR 2007 SC 144) by observing that it is possible to base a conviction on the basis of extra judicial confession in case it is proved like any other fact but the value thereof depends upon the veracity of the witness to whom it is made. Again, the Apex Court in Muhammed Azad @ Samin v. State of West Bengal (2009 AIR SCW 752) has stated that it is not open to any Court to start with the presumption that extra judicial confession is a weak type of evidence. An extra judicial confession, if voluntary and true and made in a fit state of mind can be relied upon by any Court. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. The Apex Court in Baldev Singh v. State of Punjab(2009 AIR SCW 3730) has sounded a note of caution stating that no conviction ordinarily can be based solely thereupon unless the same is corroborated in material particulars(emphasis supplied). Nevertheless, it may be stated as a proposition of law that a conviction can be based on extra judicial confession in case the Court is satisfied that the evidence of extra judicial confession is reliable, trustworthy and beyond reproach. 8. That a girl child was born to both the accused is an accepted position which has been otherwise also proved by the prosecution with both 8 oral and documentary evidence, particularly a slip issued by Goa Medical College for naming the child-Exh.58 which shows that the girl child was born on 3-11-2006 at 10.45 a.m., the Birth Certificate-Exh.61 and the DNA finger printing and diagnostic report-Exh.63 and as well as the evidence of PW9/Rama who claims to have visited the residence of both the accused on 8-11-2006 at 9.00 p.m. and seen A-2/Shashikala carrying a child in both her hands. 9. The prosecution also examined PW2/Cristina Crasto and PW9/Rama also to presumably prove the motive that both the accused did not want the child, though no motive was alleged by the prosecution. PW2/Cristina Crasto stated that earlier both A-1/Shantaram and A-2/Shashikala had told her that they did not want to keep the child and that they would give it to any interested person. She did not specify any date when the said information was given to her by the accused. Likewise, PW9/Rama also stated that A-1/Shantaram had told him before the delivery that he would give the child to any person who was ready to accept and take care of the child. It was not the case of the prosecution that either of the accused had looked for and found no person who was interested to adopt the child or to look after the child, and, in our opinion the said statements made by the said two witnesses that either of the accused or both of them had told them that they would give 9 away the child to any interested person who would look after it, would not be a sufficient motive to do away with the child, as alleged by the prosecution. 10. We will consider the case of the prosecution against A-2/Shashikala, first. The only statement attributed to her by her brother PW1/ Suresh is that she told him that she did not know what A-1/Shantaram did with the child after she came to Ramnagar and that she was not knowing whether A-1/Shantaram had sold the child or had killed it. The complaint-Exh.17 filed by PW1/Suresh also does not state as to why he filed the complaint against his sister as well, since according to him, it is A-1/Shantaram alone had done away with the child by pressing the chest and neck on 9-11-2006. The learned Children's Court has not at all considered the case of the prosecution as against A-2/Shashikala independently when admittedly, she had not made any extra judicial confession to anyone nor any other evidence was produced against her by the prosecution. 11. The learned trial Court appears to have taken the silence of A-2/ Shashikala, being the mother, from 9-11-2006 till March, 2007 as evidence against her contending that she would have known about the death of the child right from 9-11-2006 and that only in March, 2007 her family members had become aware of the disappearance of the child. According to the learned Children's Court no evidence had been put forward by A-2/Shashikala to draw 10 any conclusion other than that she along with A-1/Shantaram had caused the death of the child and caused the evidence to disappear. The learned Children's Court also observed that although A-2/Shashikala in her statement under Section 313 had stated that the child died a natural death, both the accused did not bring on record anything to show that the child had died on 9-11-2006 due to some ailment or complication nor produced a death certificate which could have helped the accused that the case was of natural death. Shri C. A. Ferreira, the learned Public Prosecutor submits that the conduct of A-2/Shashikala is blame-worthy and in case her husband, namely A-1/Shantaram had done away with the child she should not have remained quite and since she has suppressed the action of her husband she too would be guilty of the offence alleged against her and in support of this submission Shri Ferreira, learned Public Prosecutor has placed reliance on the case of Prakash Chand v. State(Delhi Administration)(1979(3) SCC 90) wherein the Apex Court has observed that there is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by Section 162 Criminal Procedure Code. What is excluded by Section 162 Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person(not amounting to a statement) when confronted 11 or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police Officer and pointed out the place where stolen Articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act. 12. In our view there was no legal, admissible evidence produced by the prosecution to convict A-2/Shashikala in a grave charge of murder. We must remember that graver the charge, higher is the standard of proof required. No doubt, A-2/Shashikala was mother of the child and it is quite possible that A-1/Shantaram had done away with the child, without her knowledge and her silence alone could certainly not be taken as evidence against her. That apart, it is a fundamental principle of law in criminal jurisprudence that an accused has a fundamental right to remain silent. It is quite possible that it is A-1/Shantaram who did away with the child and for some reason or other A-2/Shashikala had not complained about him, being her husband, to her close relatives. The evidence of her conduct at the most may only create a strong suspicion, against her but we follow another fundamental principle of criminal jurisprudence that suspicion however strong cannot take the place of proof. 12 Prosecution had not produced any legally acceptable evidence against her. Accused No.2/Shashikala therefore could not have been convicted. 13. That takes us to the extra judicial confession allegedly made to PW2/Cristina Crasto by A-1/Shantaram. According to PW2/Cristina Crasto A-1/Shantaram was one of the labourers engaged by her and when he had told her that his second wife was pregnant and had difficulty in taking her to the doctor, she had allowed her to stay with him in the farm house. According to her, on 3-11-2006 when the mother of A-1/Shantaram came to her and told her about the labour pains of A-2/Shashikala, she arranged a Sumo vehicle and took her first to Government Hospital at Curchorem and from there to Hospicio Hospital, Margao, and she returned home; and on the next day A-1/Shantaram came to her house and informed her about the delivery of the girl child but after some days when A-1/Shantaram again visited her and when she had inquired about the daughter, A-1/Shantaram told her that the child had expired on the way, after being discharged. She had stated that later she came to know that A-1/Shantaram was arrested by Sanguem Police and she went to see him at the Police Station, when she was informed by the Police that A-1/Shantaram had killed the child. She stated that she did not believe it as A-1/Shantaram was known to her as a good person and she went and inquired with A-1/Shantaram about the child in the Police Station and he told her that he and his wife A-2/Shashikala had killed the child. This extra judicial 13 confession has been used as a piece of evidence against both the accused and the learned Children's Court has proceeded to observe that this second extra judicial confession made by A-1/Shantaram to PW2/Cristina Crasto showed that both the accused persons had killed their child. 14. Shri M. Amonkar, learned Counsel appearing on behalf of the accused has submitted that the so-called extra judicial confession which was made by A-1/Shantaram whilst he was in police custody could not have been used against either of the accused as it was inadmissible in evidence in the light of Sections 25 and 26 of the Evidence Act, 1872, and in this context, Shri Amonkar, learned Counsel has placed reliance on the Judgments of the Apex Court in the case of Commissioner of Police, Delhi v. Narender Singh(AIR 2006 SC 1800) wherein the Apex Court referring to the case of Kuldip Singh v. State of Punjab and others((1996) 10 SCC 659) reiterated the legal position thus:- “10. Now coming to the main contention of the learned Counsel for the appellant, it is true that a confession or admission of guilt made by a person accused of an offence before, or while in the custody of a police officer is not admissible in a court of law according to Sections 25 and 26 of the Evidence Act, 1872 but it is equally well settled that these rules of evidence do not apply to departmental enquiries ....” 14 The Court further held that: “31. The policy underlying behind Sections 25 and 26 is to make it a substantive rule of law that confessions whenever and wherever made to the police, or while in the custody of the police to any person whomsoever unless made in the immediate presence of a Magistrate, shall be presumed to have been obtained under the circumstances mentioned in Section 24 and, therefore, inadmissible, except so far as is provided by Section 27 of the Act.” 15. Section 26 speaks about confession by an accused while in custody of Police. Sections 25 and 26 of the Evidence Act although seek to achieve the same purpose but they operate in somewhat two different fields. Section 25 raises an embargo as regards proof of confession before a Police Officer. The same need not be in police custody; whereas Section 26 raises a bar as regards admissibility of such confession, if made by an accused in the custody of a Police Officer although such a confession might have been made before a person who is not a police Officer. The Apex Court in Commissioner of Police, Delhi v. Narender Singh(supra) has further held that the policy underlying behind Sections 25 and 26 is to make it a substantive rule of law that confessions whenever and wherever made to the police, or while in the custody of the police to any person whomsoever unless made in the immediate presence of a Magistrate, shall be presumed to have been obtained under the 15 circumstances mentioned in Section 24, and, therefore inadmissible except so far as is provided by Section 27 of the Act. The Apex Court has further held that a confession would mean incriminating statement made to the police suggesting inference of the commission of the crime and it, therefore, follows that the extra judicial confession alleged to have been made by A-1/Shantaram to PW2/Cristina Crasto was clearly inadmissible in evidence, and, therefore could not have been made use of or relied upon by the prosecution as one of the pieces of evidence against any of the accused. 16. That takes us to the first extra judicial confession alleged to have been made by A-1/Shantaram to his brother-in-law, PW1/Suresh Mirashi prior to lodging the FIR. According to him, when A-2/Shashikala returned to her maternal house in March, 2007, they had inquired from her about her husband and the child. In the same breath in cross-examination he stated that he had not asked about the child. If that is so, one wonders why? According to him he had gone to Ramnagar Police Station to inform about the harassment of A-2/Shashikala and although according to him, A-1/Shantaram was called there and he came, the Police advised them to report the matter to Sanguem Police Station as both the accused were residing within the jurisdiction of that Police Station. As can be seen from the complaint dated 18-3-2007-Exh.17, PW1/Suresh with both the accused and the said group of persons including PW3/Ravi had been to the Police Station at Sanguem on 17-3-2007 and on 16 that day the Police remained busy with the Shigmo festival, and therefore he went again on 18-3-2007 to the Police Station. One does not know where both the accused or for that matter PW1/Suresh along with others who accompanied him stayed the intervening night of 17/18-3-2007 or whether they stayed along with both the accused at their residence in the farm house of PW2/Cristina Crasto. On 18-3-2007, PW1/Suresh Mirashi who had gone to give a complaint of harassment against A-1/Shantaram for the harassment caused by him to his sister A-2/Shashikala ended in giving the complaint against both and this on the specious allegation that while at the Police Station A-1/Shantaram informed him that he had pressed the chest and neck of the child on 9-11-2006 at about 12.30 hours and had buried the child. Admittedly, no complaint of harassment was filed by PW1/Suresh against A-1/Shantaram. One fails to understand as to why A-1/Shantaram should have at all accompanied PW1/Suresh to the Police Station when the latter was going to file a complaint against the former. It is also not understood the reason why A-1/Shantaram should have confided in his brother-in-law, PW1/Suresh, when the latter had gone to give a complaint against the former. 17. Shri Amonkar, learned Counsel on behalf of the accused submits that the statement attributed by PW1/Suresh to A-1/Shantaram does not amount to a confession as according to the learned Counsel A-1/Shantaram did not tell him that he had killed the child. Next, learned Counsel submits that 17 the statement of PW1/Suresh is unbelievable since it was not expected of A-1/Shantaram to tell his own brother-in-law PW1/Suresh that he had killed the child at a time when PW1/Suresh had gone to file a complaint against him. Learned Counsel further submits that there were several persons present when the alleged extra judicial confession was made by A-1/Shantaram to PW1/Suresh, and, therefore the evidence of PW1/Suresh has remained uncorroborated when in fact it could have been corroborated with the evidence of the said persons who were present along with him. 18. On the other hand, Shri Ferreira, learned Public Prosecutor submits that the said extra judicial confession was made before the lodging of the complaint. Learned Public Prosecutor further submits that PW1/Suresh was not a stranger, and, therefore was a natural witness to whom the extra judicial confession could have been made and further