1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NOS. 7 AND 8 OF 2006 CRIMINAL APPEAL NO. 7 OF 2006 Ramanand Pandey, s/o Badrinath, H.No.160, Noronha House, Vidya Nagar, Borda, Margao, Gooa(Presently in custody at Central Jail Aguada). ... Appellant versus State, through the Public Prosecutor. ... Respondent Mr. P. P. Singh, Advocate for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. CRIMINAL APPEAL NO. 8 OF 2006 Rajesh Chaubey, s/o Sudhakar, age 35 years, H. No. 535, Davorlim Housing Board, Davorlim, Salcete, Goa (Presently in custody at Central Jail Aguada). ... Appellant versus State, through the Public Prosecutor. ... Respondent 2 Mr. S. G. Bhobe, Advocate for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. CORAM : S. A. BOBDE & N. A. BRITTO, JJ. DATE : 27TH JUNE, 2007. J U D G M E N T(Per N. A. BRITTO, J.) These appeals are filed by the accused who have been convicted and sentenced for life imprisonment under Section 302/34 I.P.C. and to pay a fine of Rs.5000/- each, in default to undergo imprisonment for six months, by Judgment dated 26/28-11-2005 of the learned Additional Sessions Judge, Margao in Sessions Case No. 18 of 2004. 2. There is no dispute that A-2/Rajesh is the brother-in-law of A-1/Ramanand and the latter was the proprietor of Vidya Marketing Agency situated at Anand Bhavan Building, Station Road, Margao. This building has ground and three floors. The deceased Raj Kumar Soni, aged 23 was an ex-employee of A-1/Ramanand and his dead body was found in the office of the said Vidya Marketing Agency which is situated on the second floor of the said building where there were no other offices except one which was closed. On the ground floor there was Shahi Darbar Hotel run by PW18/Mohammad Bawa and on the third floor there were no offices or shops but only a godown. On the first floor, there were some offices. The staircase to go on the upper floors was a 3 separate staircase, but adjacent to the said hotel. 3. The accused were charged and tried with the allegation that on 17-3-2004 at about 18.30 hours at the said agency office of A-1/Ramanand both the accused in furtherance of their common intention assaulted the deceased Raj Kumar Soni and A-1/Ramanand stabbed the deceased with a knife(M.O.18) thereby causing his instantaneous death, the motive being a dispute over money transaction. 4. Although the prosecution had cited an eye witness the person of PW6/Manoj whose statement they had got recorded under Section 164 of the Code of Criminal Procedure, 1973(Code, for short) in the presence of Special Judicial Magistrate PW12/Shri Faria, the said Manoj Kumar resiled from the statements earlier given by him both under Section 161 as well as Section 164 of the said Code and as a result he was cross-examined by the prosecution. The said PW6/Manoj Kumar was an ex-employee of the said agency of A-1/Ramanand and the prosecution has not been able to derive any benefit from the said cross-examination. Therefore, the evidence of PW6/Manoj Kumar Pandey has been of no use to the case of the prosecution and as rightly observed by the learned trial Court a statement recorded of a witness under Section 164 of the Code could have been used only for the purpose of contradiction or corroboration and for no other purpose. The learned trial Court in this context relied upon the case of Ram Kishan Singh v. Harmit Kaur and another(AIR 1972 SC 468) wherein the Apex Court has reiterated the principle 4 that a statement under Section 164 of the Code is not a substantive evidence and it can be used only to corroborate or to contradict the witness. 5. The case of the prosecution thereafter rested on circumstantial evidence. 6. The case of the prosecution was unfolded, first by PW18/Mohammad Bawa and next by PW1/PSI Prabhudessai. As per PW18/Mohammad Bawa both the accused had their business of sales at Vidya Marketing Agency much before he took over the hotel business. According to him, on 17-3-2004 at about 7.00 p.m., A-1/Ramanand came and told him that some person came to attack him and he made a phone call to the Police and at that time both the accused were present and he noticed that there were bleeding injuries on the hand of A-2/Rajesh and A-1/Ramanand appeared to be nervous and although there were no injuries on his body there were blood stains on his shirt and thereafter the Police Officer came and A-1/Ramanand went along with him but he did not know where A-2/Rajesh went. In cross-examination, he stated that his relationship with A-1/Ramanand was only that of a neighbour and nothing beyond that. 7. As per PW1/ Shri Prabhudessai, he was attached to Margao Police Station and was a Duty Officer on 17-3-2004 from 13.00 hours. According to him at about 7.15 p.m. Havaldar Talekar informed him that he had received information from the Police Control Room, Margao, that one person had 5 stabbed himself near Shahi Darbar and upon receipt of the said information, he immediately rushed to the spot and made inquiries with the staff of Shahi Darbar restaurant where he came to know that a fight had taken place in the office of Vidya Marketing Agency situated on the second floor. He further stated that it was revealed that one person was lying in the said office and another injured was shifted to hospital. He also stated that while inquiring one person wearing yellow shirt with blood stains informed him that he had requested the staff of Shahi Darbar to inform about the incident to the Police and the said person gave his name and address as Ramanand Pandey, native of Uttar Pradesh and proprietor of the said Vidya Marketing Agency at Margao and further informed him that one Raj Kumar Soni who was his ex-employee had come to his office at about 6.30 p.m. asking for money and he had arguments with him and also informed him that during heated arguments with him and his brother-in-law A-2/Rajesh they had a scuffle and during the said scuffle the said A-2/Rajesh was injured and the said Raj Kumar Soni was lying in the office. As per him, A-1/Ramanand also informed him that he had sent A-2/Rajesh to the hospital in his Maruti van along with one Mobin who drove the said Maruti van. As far as the aforesaid part of the statement of PW1/PSI Prabhudessai is concerned, it need be observed that the information that a person had stabbed himself was presumably first given by A-1/Ramanand to PW18/Mohammad Bawa and who had conveyed the same to PCR(Police Control Room), Margao and in turn the same was conveyed to PW1/PSI Prabhudessai. The story of a fight having taken place in the Vidya Marketing Agency or that a person was lying in the said office and the other was shifted to the hospital presumably came 6 from no other than A-1/Ramanand himself. The learned Sessions Judge has held the said information given by A-1/Ramanand to be inadmissible, as being hit by Section 25 of the Evidence Act, at the same time holding that when the said information was given the investigations had not started. What Section 25 of the Evidence Act prohibits being proved is a confession made to a Police Officer by a person accused of an offence. The word “confession” has not been defined under the Evidence Act, 1872 but an admission has been defined under Section 17 of the said Act, as a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under circumstances mentioned therein. Although, a confession will include an admission and in turn an admission a statement, the reverse is not necessarily true. A statement in order to amount to a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence as stated by Lord Atkin in Privy Council decision in the case of Pakala Narayana Swami v. Emperor(AIR 1939 P.C. 47) and followed in Veera Ibrahim v. The State of Maharashtra(AIR 1976 SC 1167). This Court in Satyawan Pagi v. Union of India and another(2006 (1) Bom. C. R. (Cri.) 529) held that “if a person admits facts necessary to convict him, it is a confession and if such admission does not give all essential elements of crimes, it is only an admission and not a confession. Confession in other words, is a direct admission or acknowledgment of the guilt by a person who had committed a crime. As per Stephen in his Digest of the Law of Evidence, a “confession” is defined as an admission made at any time by a person charged with a crime stating or suggesting the inference 7 that he has committed the crime. In order to distinguish a confession from an admission, a simple test is applied and if a statement by itself is sufficient to prove the guilt of the maker, it is a confession but if the statement falls short of it, it amounts to an admission. Admittedly, PW1/PSI Prabhudessai had reached the scene to verify the information received that a person had stabbed himself. There was no accusation made against A-1/Ramanand when PW1/PSI Prabhudessai reached the place nor any first information report was lodged inasmuch as no investigations in any cognizable case had started. In our view, therefore, the said statements by A-1/Ramanand to PW1/PSI Prabhudessai and later on recorded by him in his FIR could not have been said to have been inadmissible. The said statements were relevant both under Sections 8 and 21 of the Evidence Act. In this context, ready reference could be made to a three Judge decision of the Apex Court in Agnunmagesia v. State of Bihar(AIR 1966 SC 119) wherein the Apex Court observed that where the accused gives the first information, the fact of giving his evidence is admissible against him as under Section 8 of the Evidence Act. If the information is non confessional, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant. Reference could also be made to Bheru Singh v. State of Rajasthan((1994) 2 SCC 467) wherein the Apex Court held that where the accused himself lodges the FIR, the fact of his giving the information to the Police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the FIR by the accused to the Police Officer could not be used at all against him in 8 view of the ban of Section 25 of the Evidence Act. Suffice it to observe that the statements made by A-1/Ramanand to PW1/PSI Prabhudessai were not confessional in nature but being admissions of relevant facts were admissible in evidence. 8. Reverting to the version of PW1/PSI Prabhudessai, he further stated that he along with A-1/Ramanand proceeded to the said office in Room No. S-5, first floor of the said building and while proceeding towards the said office he found blood stains on the staircase as well as in the passage upto the said office and then A-1/Ramanand opened the door of the office and one male person was lying on the floor in a pool of blood and he checked his pulse and found that he was dead. He stated that there were blood stains on the walls of the said office as well as on the table and he noticed a stab injury on the left side at the back and blood oozing out from it. He also noticed that there was a knife with black handle which was lying on the table top with blood stains. He stated that from the observations of the scene and the inquiries made by him he concluded that it was a case of homicide and therefore he lodged a complaint against both the accused for committing the murder of the deceased. PW1/PSI Prabhudessai stated that his complaint was recorded by PW19/P.I. Shirwaikar at the scene of offence and he was instructed to guard the scene of offence and thereafter PW19/P.I. Shirwaikar went back to the Police Station to register the complaint and thereafter returned and conducted the scene of offence panchanama. 9 9. PW19/PSI Shirwaikar has confirmed that he had received a phone call from PW1/PSI Prabhudessai stating that a dead body of a male person was lying in a pool of blood in Vidya Marketing Agency and a knife was seen on the spot whereupon he proceeded to the spot and thereafter recorded the complaint of the said PW1/PSI Prabhudessai. He also stated that PW1/PSI Prabhudessai had come to the conclusion that the injury on the deceased was not self inflicted and it was a case of homicide. As per him, the scene of offence panchanama was conducted in the presence of PW17/Gaus Mohidin and PW2/Makbul Ahamed. These two witnesses have not supported the said panchanama. Nevertheless what was seen at the scene has been sufficiently established by the prosecution through the evidence of PW1/PSI Prabhudessai, PW19/Shirwaikar, the photographer PW20/Shri Sakhalkar who produced 32 photographs along with the negatives besides two other Police Officials who had gone along with PW19/P.I. Shirwaikar, namely, PW21/Ramesh and PW22/Sameer. 10. On behalf of A-1/Ramanand, Mr. P. P. Singh, the learned Counsel has submitted that the independent witnesses having not supported the panchanama, the panchanama could not be said to have been proved and therefore the fact that the dead body of the deceased was found in the office of A-1/Ramanand could not be accepted. We are unable to accept this submission. PW1/PSI Prabhudessai was the first one to reach the scene of offence along with A-1/Ramanand himself when he found the dead body of the deceased and the knife on the table. Only because he is a Police Officer it does 10 not mean that his evidence should be discarded. In this context, we may refer to the decision of the Apex Court in Karamjit Singh v. State(Delhi Administration)(2003 Cri. L. J. 2021) wherein the Apex Court has held that the testimony of police personnel should be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not proper judicial approach to distrust and suspect them without good grounds. In the case of P. P. Fatima v. State of Kerala((2003) 8 SCC 726) it was contended that since the panch witness to the seizure panchanama had not supported the prosecution case, the seizure could not be accepted and the Supreme Court held that mere fact that a panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable, if otherwise the Court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made. In our view, there is nothing to doubt the evidence of PW1/PSI Prabhudessai or for that matter PW19/P.I. Shirwaikar or the other Police Officers and the photographer. The said evidence clearly shows that the dead body with the injury at the back was found in the office of A-1/Ramanand and a knife with blood was found on the table top. The manner in which the said knife was handled or was allowed to be handled by PW19/P.I. Shirwaikar leaves much to be desired. PW19/P.I. Shirwaikar ought to have seized and sealed the said knife at the scene itself and in case it was allowed to be taken by the finger print expert then it was necessary for the prosecution to have examined the said 11 expert to find out as to what he had done with the knife taken by him. The mere fact that subsequently the knife, M.O.18 was found to have blood stains, when examined in the CFSL, Hyderabad, can be no consolation to the prosecution. One does not know what happened to the said knife from the time it was taken by the finger print expert and till it was sent to the CFSL, Hyderabad. However, the fact remains that PW1/PSI Prabhudessai and others saw it with blood stains, on the table, which clearly suggests that it was used in the commission of the offence. 11. The inquest panchanama of the deceased was done in the presence of PW4/Ramdas Hazare. The body of the deceased was identified by the wife of the deceased PW11/Kavita and the clothes worn by the deceased, namely, a black colour T shirt soaked with blood and a cut mark/Exh.14-(a), a jean pant/Exh.14-(b) and an underwear of blue colour/Exh.14-(c) were attached by the Investigation Officer and the said attachment has been sufficiently proved by the evidence of the said PW4/Hazare. The dead body of the deceased was sent for post mortem examination and the same was conducted on the next day by PW13/Dr. Banaulikar and who found that the deceased was having a stab wound of 3.5x1.5 cms. which had penetrated into the left pleural cavity penetrating the left lower lobe to a length of 4 cms, cutting the chest wall to a length of 3 cms. which was directed forward, medially and upward. PW13/Dr. Banaulikar also found that there was a bruise on the left eye brow, a laceration on the left temporo frontal scalp and an abrasion over the left side of the neck, details of which he has given in his evidence as well as in his autopsy 12 report/Exh.68. According to him, the injury found on the deceased could have been caused by the knife/M.O.18. As per his opinion, the deceased died due haemorrhagic shock as a result of the first injury which according to him was caused by a sharp and penetrating weapon and which was necessarily fatal at the time of death. In cross-examination, he stated that one blow with the kitchen knife/M.O.18 was sufficient to cause the said first injury. The evidence of PW13/Dr. Banaulikar sufficiently proves that the death of the deceased was homicidal. 12. If PW18/Mohammad Bawa saw A-2/Rajesh with a bleeding injury on his hand, it is A-1/Ramanand who told PW1/PSI Prabhudessai that he was sent to the hospital in a Maruti van along with driver Mobin who was not examined as he was found not traceable. A-2/Rajesh was examined by PW16/Dr. Araujo in Dr. Carmo Gracias Nursing Home on 17-3-2004 at about 7.50 p.m. and as per Certificate/Exh.80 with history of a cut with a knife. According to PW16/Dr. Araujo, A-2/Rajesh had a clean cut wound over distal and right index finger and rupture of the extensor tendon and a contused lacerated wound in the web space of the thumb. As stated by him, A-2/Rajesh was discharged on 18-3-2004 after he was operated for the repair of tendon. According to PW16/Dr. Araujo, A-2/Rajesh had informed him that there was a fight due to which he had sustained the said injury and since he was bleeding profusely he had admitted him. A-2/Rajesh in his examination under Section 313 Cr. P. C. stated that the said injury was received by him due to the glass of window. The learned trial Court observed that there was no broken glass found 13 at the scene and therefore he could not have sustained such an injury. Both the accused were examined by PW13/Dr. Banaulikar on 19-3-2004 and PW13/Dr. Banaulikar had found no injuries on the person of A-1/Ramanand but found that A-2/Rajesh was having a sutured incised wound, of U shape over the ventral aspect of right index finger with vertical arms of 1 cm. each and horizontal arm of 1.7 cms. situated over the skin of second phalynx palmar aspect. In his opinion, the injury was defensive and was caused with a sharp edge of a weapon. PW13/Dr. Banaulikar further stated that upon inquiry with A-2/Rajesh as to the cause of the said two injuries, he told him that he was the brother-in-law of A-1/Ramanand who was a businessman and an employer of the victim Raj Kumar Soni and that on 17-3-2004 at 7.00 p.m. there was a quarrel between A-1/Ramanand and the victim Raj Kumar Soni in his presence on the issue of money transaction and that resulted in an attempt by the victim, Raj Kumar Soni to assault A-1/Ramanand with a sharp knife and since he(Rajesh) intervened to prevent the attack(A-2) got cut on his right hand while removing the knife from the victim Raj Kumar Soni's hand. He also stated that A-2/Rajesh removed the knife and threw it aside. The admission made by A-2/Rajesh to both the Medical Officers who examined him, namely, PW16/Dr. Araujo and PW13/Dr. Banaulikar clearly proves that he had sustained the said injury in a scuffle with a knife and therefore the plea put forward by him that he had sustained it with a broken window glass had necessarily to be considered as a false plea which could be taken as an additional circumstance against him. As far as an admission by an accused to a medical officer is concerned, the law is well settled, that the same are admissible in evidence when made in connection 14 with explaining the injuries found on the accused. (See State of Kerala v. Anmini(AIR 1978 SC 260) followed in Prakash Parab v. State(2006(1) AIR Bom. R. 775). 13. If PW18/Bawa saw A-1/Ramanand with a shirt with blood stains, the said shirt was attached by PW19/P.I. Shirwaikar under arrest panchanama Exh.37 at 00.30 hours on 18-3-2004 and although PW3/Vital stated that he had not seen any stains on the said yellow colour shirt/M.O.12-(a) he clearly identified the said shirt as the shirt which accused no.1 was wearing on that day. The evidence of PW3/Vital when considered in the light of the evidence of the Investigation Officer is more than sufficient to conclude that A-1/Ramanand soon after the incident was found with a yellow colour shirt on which PW18/Bawa had seen blood stains and which blood stains were subsequently confirmed by CFSL report Exh.104 to be of human blood but its group could not be detected due to disintegration of blood group specific substances. Evidently, A-1/Ramanand had no injury on him and gave no explanation as to how his shirt/Exh.12-(a) was found with human blood which could have been either of the deceased or that of A-2/Rajesh both of whom had bleeding injuries and which would show his involvement with the death of the deceased. The learned trial Court has also noted that another circumstance which connects A-2/Rajesh with the death of the deceased is that the prosecution had proved the blood group of A-2/Rajesh as O Rh and blood of group O was detected on the clothes of the deceased, namely, Exh.14(a), 14(b) including the underwear (Exh.14(c)). It may be noted here that the blood group of the deceased was B Rh positive but 15 the blood of this group was not found on the very shirt of the deceased namely Exh.14(a) which was otherwise stated to have been soaked with blood. Similarly, the blood group of A-2/Rajesh which was O Rh positive could also not be detected on the very shirt of A-2/Rajesh i. e. Exh.17(a) or on Exhs. 10 or 11 being the cotton pieces on which blood was collected from the corridor and which blood could have been only that of A-2/Rajesh who had come out from the office with the said bleeding injury on his hand. We are unable to understand and the prosecution has not given any plausible explanation, as to how the blood