- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 86 OF 2007 Mr. Shyam Jagashi Chauhan ) Age 36 years, Occu.-Service) Resident of P.M.G.P. Colony) Chawl No. 29, Room No.12, ) Dharavi, Mumbai 400 017 ) Appellant At present in Kolhapur ) (Original Central Prison. ) Accused ) Vs. The State of Maharashtra ) Respondent (Dharavi Police Station) Sri. R. V. Gupte, Advocate for the appellant. Sri. H. J. Dedia, APP for the respondent. CORAM : SRI R.M.S. KHANDEPARKAR,& SRI. A.A. SAYED, JJ. DATE : JANUARY 28, 2008. ORAL JUDGMENT [PER R.M.S. KHANDEPARKAR, J.] . Heard. This appeal arises from the judgment and order dated 14th November 2006. By the impugned judgment and order, the trial Court has held the appellant to be guilty of offence punishable under section 302 of I.P.C. and has sentenced him to suffer life imprisonment and to pay fine of Rs.1,000/-, in default to suffer two years rigorous imprisonment. - 2 - 2. The brief facts relevant for the decision are that, the FIR No.19 of 2006 came to be lodged on 26th January 2006 at Dharavi Police Station, Mumbai under section 302 against the appellant herein, on the ground that after he had attended flag hoisting ceremony in the bit which is situated at Bhobighat, at about 13.15 hours one person approached him to inform that the said person who is the appellant herein had assaulted his uncle with a stone and consequently his uncle had suffered severe injury. After recording the FIR, the complainant visited the spot and found one person in injured condition, with blood oozing from his nose and mouth in semi conscious state and being unable to speak, lying on the ground at the residential premises of the appellant. When the complainant enquired as to how he was injured, the person is stated to have pointed out his finger towards the appellant and also pointed out the stone by which he was hit, pursuant to which the complainant informed about the incident to the control room and called a mobile van for taking the injured person to the hospital. The investigation revealed that the injured person had been to the appellant’s house for lunch. The wife of the appellant however, did not like it as he was under the influence of liquor and his behaviour was - 3 - objectionable. The appellant, therefore, asked his uncle to leave that house. The uncle refused to do so, there a was followed by quarrel between the appellant and the uncle and in the process the appellant assaulted the uncle with the stone resulting in head injury to his uncle. Realising his mistake, the appellant himself immediately rushed to the police station and informed about the incident. Thereupon injured was taken to the hospital and was admitted in ICU where he was treated for about five days and, thereafter, succumbed to his injury on 31st January 2006. After completion of investigation, charge sheet came to be filed against the appellant for the offence punishable under section 302 of I.P.C. The prosecution examined five witnesses and on conclusion of the trial, the learned Ad-hoc Additional Session Judge held the accused/appellant guilty of the offence punishable under section 302 I.P.C. and sentenced him to undergo the punishment as stated above. 3. The impugned judgment is sought to be challenged on the various grounds. Firstly, it is sought to be contended on behalf of the appellant that the trial Court erred in ignoring the mandate of section 235 (2) of the Code of Criminal Procedure in - 4 - as much as that the trial Court proceeded to impose the sentence immediately after holding the appellant to be guilty of the offence punishable under section 302 of I.P.C. without offering any opportunity to the appellant of being heard on the point of sentence. In case of conviction under section 302 of I.P.C. the minimum punishment prescribed is the life imprisonment in terms of the provisions of law under section 235 of the Code of Criminal Procedure the necessity of hearing the accused on the question of sentence stands excluded in a case where the Court intends to proceed in accordance with the provisions of section 360 Cr.P.C. but in no other case. In cases of conviction under section 302 of I.P.C. the minimum punishment being life imprisonment, the hearing of the accused person on the point of sentence may perhaps appear to be mere formality, yet it is the requirement of law. The provision of law which specifically requires the court to hear the person in criminal proceedings before imposing the sentence cannot be construed as merely directory, more particularly, in view of specific exclusion of compliance of such requirement only in a case of applicability of section 360 Cr.P.C. and in no other circumstances. It would therefore, be appropriate for the Session Court to hear the accused on the - 5 - point of sentence before passing the actual order imposing the sentence. However, on this count alone, there could be no interference in the impugned order as the said formality can also be complied with by the appellate Court. 4. The impugned judgment is then sought to be assailed on the ground that the trial Court erred in holding the statement alleged to have been made before the police officer to be an extra judicial confession, ignoring the provisions of law comprised under section 25 of the Indian Evidence Act. In that connection attention is also drawn to the decision of the Apex Court in State of Assam Vs. Muhim Barkataki State of Assam Vs. Muhim Barkataki State of Assam Vs. Muhim Barkataki reported in AIR 1987 Supreme Court 98 AIR 1987 Supreme Court 98 AIR 1987 Supreme Court 98. The learned APP on the other hand submitted that the Court has not merely relied upon the statement of the accused made to the police officer but has taken into consideration even the statements of PW 1 and PW 4 which were recorded by the police authorities in the course of investigation and which were sought to be resiled by those witnesses only at the time of recording of evidence and considering the same, it cannot be said to be hit by section 25 of the Evidence Act. - 6 - 5. Perusal of the evidence clearly disclose that PW 1 and PW 4 had in no uncertain terms stated before the Court that they did not know about the alleged incident and they did not witness the same. It is true that the statement of PW 1 under section 161 Cr.P.C. was sought to be established through PW 3. At the outset, it is to be noted that the statement under section 161 of Cr.P.C. by itself is not an admissible piece of evidence. It can be used only to contradict the witness with reference to her father’s statement. Even otherwise, it is pertinent to note that apart from the confirmation of statement of the said witness under section 161 Cr.P.C. through PW 3, the police officer, who had recorded the statement, there is no independent evidence, on record to suggest that either both or any of the witnesses were present at the time of the alleged incident. There is not even a whisper about the same through any other independent witness in the course of the evidence recorded before the trial Court. When both the witnesses have expressed in clear terms that they have not witnessed the alleged incident, it was primarily necessary to establish their presence at the place and time of incidence, in order to believe the police authorities claim about recording of the statement of those witnesses regarding their presence - 7 - at the site. There has been no attempt made by the prosecution to establish this basic fact which was required to be established in order to give some credibility to the testimony of PW 3 regarding the alleged statement of the PW 2 to the said police officer under section 161 of Cr.P.C. There was not even a suggestion made to all those witnesses that they were present at the time of the incident and that they were either suppressing the truth or were telling false on oath in respect of the alleged ignorance about the incident to them. 6. It is pertinent to note that the Apex Court in Aghnoo Aghnoo Aghnoo Nagesia Vs. State of Bihar Nagesia Vs. State of Bihar Nagesia Vs. State of Bihar reported in 1966 1966 1966 Cri.L.J.100 Cri.L.J.100 Cri.L.J.100 clearly ruled while dealing with the scope of section 25 of the Evidence Act that a confession made to a police officer under no circumstances is admissible in evidence against the accused. It was further clarified that said section covers a confession made when he was free and not in police custody, as also the one made before any investigation had begun. The law on the point of the confession stated to have been made by the accused before the police officer being very clear to the effect that it is hit by section 25 of the Evidence Act, irrespective of the fact that such confession - 8 - was made even prior to the commencement of investigation and obviously prior to the recording of FIR, the learned counsel appearing for the appellant is justified in contending that the trial Court could not have relied upon the alleged extra judicial confession stated to have been made by the appellant to PW 2. Plain reading of the impugned judgment discloses that the trial Court has heavily relied upon the said alleged statement of the appellant by referring to two decisions of the Apex Court (i) State State State of Assam Vs. Muhim Barkataki of Assam Vs. Muhim Barkataki of Assam Vs. Muhim Barkataki reported in AIR AIR AIR Supreme Supreme Supreme Court 98 Court 98 Court 98; (ii) Ishwari Prasad Misra Vs. Ishwari Prasad Misra Vs. Ishwari Prasad Misra Vs. Mohammad Mohammad Mohammad Isa Isa Isa reported in A.I.R. 1963 Supreme Court A.I.R. 1963 Supreme Court A.I.R. 1963 Supreme Court 1728 1728 1728. As regards the Muhim Barkataki’s case Muhim Barkataki’s case Muhim Barkataki’s case the Apex Court had given credibility to the statement made before the police authorities on two grounds. Firstly, it was a dying declaration, and secondly there were other testimonies on record which lend support to the said dying declaration. In Ishwar Ishwar Ishwar Prasad’s Prasad’s Prasad’s case case case the issue was whether witness was an interested witness or not and in that context it was observed that merely because a statement has been made by the police officer, that itself cannot be a justification to discard his testimony. A statement of fact made by the police officer on the basis of his personal knowledge is different from the evidence - 9 - relating to the statement alleged to have been made by another person to the police officer. Being so, the decision either in Muhim Barkataki’s case or Ishwari Prasad’s case can be of no help to the prosecution to canvass the contention that the testimony of PW 2 would be sufficient to hold that the appellant had confessed the alleged crime. 7. The impugned judgment is then assailed on the ground that apart from the three testimonies of the police officers which do not establish the alleged offence having been committed by the appellant in any manner, the prosecution has not led any other evidence and the learned Ad-hoc Additional Session Judge erred in ignoring the same while convicting the appellant under section 302 of I.P.C. Indeed the prosecution has examined five witnesses, out of that three are police officers, one is sister of the accused and another is neighbour of the accused. PW 1 and PW 4 namely sister and neighbour of the appellant, as already observed, have categorically stated that they had not witnesed the incident and the prosecution could not establish their presence at the time of alleged incident The PW 2 is the complainant and his testimony is based on the alleged information given by the appellant to him. There has - 10 - been no corroboration of his testimony in any manner. As already observed above, his testimony is not reliable nor his statement about the alleged confession can be relied upon. Apart from the alleged confession, statement under section 161 Cr.P.C. of PW 1, the testimonies of PW 1 and PW 4, the prosecution has not placed on record any material which could establish the prosecution case. Since the very presence of the PW 1 and PW 4 has not been established at the time of incident, question of relying upon the testimony of PW 3 on the basis of the statements of the witnesses stated to have been recorded under section 161 Cr.P.C. does not araise apart from the fact that reliance thereon is impermissible and illegal. As regards the testimony of PW 5 he is a mere investigating officer, having no personal knowledge about the incident. 8. It is pertinent to note that prosecution apart from producing one medical certificate about the cause of death, did not bother to produce post mortem report, nor they examined the doctor. In view of the fact that the testimony of PW 2 and PW 3 was challenged in the course of cross-examination and it was specifically denied that the appellant had ever admitted the alleged crime, it was but necessary for - 11 - the prosecution to examine the doctor and also to bring on record other cogent evidence which could reveal the overt act, if any, on the part of the appellant which might have contributed for the death of the concerned person. The prosecution having totally failed in this regard, there is absolutely no evidence which could establish the involvement of the appellant in the death of the concerned person. It is to be noted that it was a specific case of the prosecution that the man was assaulted with stone by the appellant. However, the same has not been established by examining any witness, not even a doctor who could have stated and confirmed that injuries suffered by the injured deceased were possible with the stone or otherwise. 9. In the result, therefore, the appeal succeeds and the impugned judgment is hereby quashed and set aside. The appellant is acquitted of the offence for which he was charged and sentenced. The accused shall be released forthwith unless required in any other case. Sd/- [ R.M.S. KHANDEPARKAR, J.] Sd/- [ A. A. SAYED,J.]