APEAL. 101-91 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 101 OF 1991 Shivaji Vasang Bagale residing at Bombay At present convicted Prisoner in Yerawada Central Prison Yerawada, Pune ....Appellant. Vs. The State of Maharashtra ... Respondent -- Mr. Niranjan Mundargi i/b Mr. A. P. Mundargi, for the Appellant. Ms. A. T. Jhaveri, APP for the Respondent-State CORAM : V. M. KANADE, & A. M. THIPSAY, JJ. CLOSED FOR JUDGMENT ON : AUGUST 30, 2011 JUDGMENT PRONOUNCED ON : OCTOBER 18 , 2011 JUDGMENT [ PER : V. M. KANADE, J.] 1. The appellant Shivaji Vasant Bagale has filed this appeal against the judgment and order passed by the Additional Sessions Judge, Sawantwadi, Sindhudurga, dated 13th December, 1990. By the said judgment and order the appellant was convicted for the offence punishable under Section 302 of the I. P. Code and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 500/- and in default in payment of fine to suffer further three months simple imprisonment. He is also convicted for the offence punishable under Section 201 of the I.P. Code and sentenced to suffer one year rigorous APEAL. 101-91 - 2 - imprisonment and to pay fine of Rs. 200/-; in default to suffer further simple imprisonment for one month. The substantive sentences were directed to run concurrently. 2. The brief facts in nutshell are as under- . The deceased Sudha was residing at village Terse- Bambarde, taluka Kudal. She was wife of Arjun Puralkar who was residing in Mumbai. On 7-11-1988 deceased Sudha left her house to purchase food grains and other articles from the fair price shop at about 3.00 p.m. and after purchasing the required articles from the fair price shop, she went to the house of maternal uncle Ankush Daji Gawade (PW 6), had a cup of tea and left his place at about 5.30 p.m. However, she did not return home and therefore, efforts were made by her relatives to find her and a missing report was thereafter lodged at the police station. The said missing report was reduced into writing by the police and signature of PW 1 Govind Puralkar was obtained. Thereafter on the next day, again PW 1 who was brother of the husband of deceased Sudha along with others and while passing the place, called Rede Galli they found broken pieces of bangles and slippers of deceased Sudha and therefore information was given to the police. Soon after the police arrived at the spot and at that time Daji Gawade (PW 7) informed the police that Shivaji Bagale, the appellant herein, was seen on the previous night besides the bushes at Redegalli and accordingly, police went in search of Shivaji Bagale. He was arrested in presence of witnesses and police made inquiry with the accused and took search of his clothes and found a Mangalsutra. At that time the accused confessed that he had committed the murder of APEAL. 101-91 - 3 - Sudha and thrown her dead body in a well and thereafter accused took them towards the well. Thereafter the dead body was recovered from the well. FIR was registered and thereafter sari of the deceased was recovered at the instance of the accused from another well. So also the articles such as the bag and the tin in which rationing articles were purchased by the deceased were recovered at his instance. The prosecution examined 20 witnesses and closed its evidence. Statement of the accused was recorded under Section 313 Cr. P. C. The trial court held that the prosecution has established its case beyond reasonable doubt and convicted the accused. 3. The learned counsel appearing on behalf of the appellant submitted that case of the prosecution was based on the circumstantial evidence. It was submitted that chain of circumstances on which reliance was placed by the prosecution has not been established beyond reasonable doubt by the prosecution and there was a missing link in the prosecution case. It was submitted that the entire prosecution case was based on the extra judicial confession of the accused in presence of the witnesses when he was apprehended by the police and that as a result of the said confession before the police he had shown the place where the dead body was thrown in the well and the said dead body was recovered at his instance. It was submitted that the said extra judicial confession and the discovery which was made at the instance of the accused has to be discarded, being hit by Section 25 of the Indian Evidence Act and being violative of Article 20(3) of the Constitution of India. Secondly, it was submitted that there were several discrepancies, contradictions and omissions in the evidence of APEAL. 101-91 - 4 - the prosecution witnesses in respect of various circumstances and therefore, no reliance could be placed on the evidence of said prosecution witnesses. Thirdly, it was submitted that two different versions have been given regarding the apprehension by the police and admittedly no panchanama was made when search of the appellant was taken. No panchanama was made at the time of recovery of dead body by the accused and therefore, the circumstances about the so called recovery of Mangalsutra and Rs.67/- as well as the dead body, could not be relied upon. Similarly, the recovery of ration articles allegedly purchased by deceased Sudha at the instance of appellant on 9-11-1988, recovery of sari of deceased Sudha on 10-11-1988 could not be relied upon. He also submitted that the witnesses had suppressed the material fact that relation of the deceased with her husband was strained. The learned counsel has taken us through the evidence of the witnesses and also the impugned judgment and order passed by the trial court. 4. On the other hand, learned APP appearing on behalf of the respondent-State has submitted that the prosecution had established the chain of circumstances which clearly point out to the guilt of the accused. She submitted that upon the discovery of the spot at which the incident had taken place, the police sprung into action and name of the appellant cropped up as a person who was seen at the spot on the earlier date by PW 2 and therefore, police went in search of the accused and the accused was apprehended. He was searched and a Mangalsutra was found in his pocket. He then confessed to the police and showed the dead body which was removed from the well at APEAL. 101-91 - 5 - his instance. Thereafter the sari was also recovered at his instance from another well and the rationing articles which were kept behind the bushes were also recovered. It is, therefore, submitted that these circumstances clearly indicated involvement of the accused/appellant in the commission of the said offence. He also relied upon the two judgments of the Apex Court in support of his submission. REASONS 5. Before we advert to the rival submissions made by the learned counsel appearing on behalf of the accused and the State, it has to be noted that entire case of the prosecution rests on circumstantial evidence. It has to be kept in mind that in case where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn are in the first instance to be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Secondly, the circumstances should be of a conclusive nature, and they should be such as to exclude every hypothesis but the one proposed to be proved. To put it in other words, there must be a chain of evidence is so complete that it will not leave any reasonable ground for drawing a conclusion consistent with innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 6. The Apex Court in a series of decisions has consistently held that when a case rests upon the circumstantial evidence, such evidence must satisfy the following tests- APEAL. 101-91 - 6 - (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete there that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence [ see : Gambhir v. State of Maharashtra (1982 Cri. L. J. 1243) ]; 7. It is an admitted position that in the present case the prosecution is relying on circumstantial evidence. It is necessary, therefore, to lay down the circumstances on which the reliance is placed by the prosecution to prove its case (1). On the date of the incident i.e. on 7-11-1988 the deceased Sudha left her house at about 3.00 p.m. to purchase articles from a fair price shop which is situated at a distance of about one & half miles from her residence. While going to the rationing shop, she was wearing Mangalsutra, two ear rings, a green coloured sari; she was also waring green colour bangles and had a tin in her hand along with cotton bags; APEAL. 101-91 - 7 - (2) she purchased the food-grains from the fair price shop; (3) after purchasing food-grains, she went to the house of her maternal uncle PW 7, had a cup of tea and left his house at 5.30 p.m. (confirm timing); (4) she did not return home and therefore, her relatives made every effort to find her. However, here whereabouts were not located and therefore, a missing report was lodged by her maternal uncle with the police station on the same date; (5) on the next day, again all of them went in search of deceased Sudha. At one place, they found broken bangles and it appeared that there was scuffle at that place. Therefore, this information was given to the police and police arrived at the scene; (6) PW 7 Daji informed the police that PW 2 had told him that he had seen the accused hiding in the bushes on the earlier date and therefore, the police went in search of the accused; (7) the police found accused, enquired with him, took search of his clothes and found a Mangalsutra in his pocket. He thereafter confessed that he had committed murder of deceased Sudha and agreed to show the place where he had thrown her dead body in a well; (8) the accused along with police and another witnesses showed the well where he had thrown the dead body and the said body was APEAL. 101-91 - 8 - removed from the well with the help of a bamboo stick; (9) the accused was arrested and remanded to the police custody and on 9-11-1988 he agreed to show the place where the rationing articles purchased by deceased Sudha were kept. Accordingly, they were discovered at his instance and the panchanama was made in presence of panchas; (10) three days thereafter discovery of sari was made at his instance from another well; (11) a post-mortem was performed and the doctor gave his opinion that it was a homicidal death. These are the circumstances on which reliance was placed by the prosecution to establish guilt of the accused in commission of the said offence of murder. 8. The prosecution, therefore, has mainly relied on the discovery of dead body at the instance of the accused; recovery of Mangalsutra from his pocket; and subsequent recovery of rationing articles and sari at his instance. The prosecution also relied on the statement of PW 2 who alleged that he had seen the accused hiding behind the bushes in the evening at about 5.30 p.m. on the said road where the incident had taken place and the statement of the witnesses to corroborate the search which was undertaken and the information about pointing out spot to the police and the subsequent apprehension of the accused in the village. Physical search has been taken by the APEAL. 101-91 - 9 - police and the recovery is made at his instance and the statement of the witnesses to the effect that she was wearing a Mangalsutra and ear rings and identification of the Mangalsutra which was found in the pocket of the accused. The police also relied on the spot panchanama, inquest panchanama and recovery of rationing articles and panchanama of recovery of sari and the evidence of the panch witnesses. 9. Before we scrutinize and appreciate the evidence to see whether the said circumstances mentioned hereinabove have been established by the prosecution beyond reasonable doubt, it will be necessary to take into consideration the legal position in respect of (1) search of the accused by the police and seizure of the articles from his person; (2) evidentiary value of the things which are recovered at the instance of the accused. Section 51 of the Criminal Procedure Code lays down the provisions in respect of search of arrested person which reads as under - “S. 51. Search of arrested person – (1) Whenever a person is arrested by police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant and cannot legally be APEAL. 101-91 - 10 - admitted to bail or is unable to furnish bail, the officer making the arrest or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person. (2) Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.” Plain reading of the aforesaid provision clearly discloses that there is no provision which requires the panch to be called in case of search of the person. However, an obligation is to put on the police officer to put all the articles which are on his person in police custody and give receipt showing the articles taken in possession by the police officer to such person. 10. Section 46 of the Criminal Procedure Code lays down how an arrest is to be made. Section 46 reads as under- “S.46 Arrest how made – (1) in making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by APEAL. 101-91 - 11 - word or action. (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. [(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.] The word ‘arrested person’ which is used in section 51, therefore, has to be read in the context of provisions of section 46 of the Criminal Procedure Code. It follows, therefore, that even if person is not taken in custody in the police station when formally his body is confined by the police by touching, it would amount arrest of the person. 11. Section 27 of the Indian Evidence Act provides that confession of the accused when he is in custody of the police station though it is not admissible under section 25 or 26, if such confession APEAL. 101-91 - 12 - is supported by discovery of a fact, the confession has to be presumed to be true to that extent of discovery. The Privy Council in the case of – Pulukuri Kottaya and Ors. Vs. Emperor1 has observed as under- “10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused.” 1 A.I.R. (34) 1947 Privy Council 67 APEAL. 101-91 - 13 - Various requirements of Section 27 of the Indian Evidence Act can be summed up as follows- (i) the fact of which the evidence is sought to be given, must be relevant to the issue; (ii) the fact must have been discovered; (iii) the discovery must have been made in consequence of some information received from the accused and not by accused’s own act; (iv) a person giving the information must be accused of any offence; (v) he must be in custody of the police officer; (vi) the discovery of an act must be deposed to; (vii) only that portion of the information which relates distinctly or strictly to the fact can be discovered; 12. The doctrine, therefore, is founded on the principle that if any act is discovered after the search is carried out on the search of any information obtained from the prisoner, such discovery is a guarantee that the information supplied by the prisoner is true. It goes without saying, therefore, that recovery of articles at the instance of the accused has to be proved by the independent witnesses and not merely on the statement of the police officer, unless it is shown that compulsion has been used in obtaining the information. The Apex APEAL. 101-91 - 14 - Court in the case of – Prabhoo Vs. State of U.P. 1 observed that statement of the accused that axe with which the murder has been committed and his blood stained and dhoti were in the house, – were incriminating statements made to the police officer and were hit by Sections 25 and 26 of the Indian Evidence Act, and these statements were not admissible in evidence. It further held that the circumstantial chain in the case of – State of UP Vs. Deoman Upadhyaya2 did not depend merely on the production of the gandasa but on the other circumstances as well and the decision did not proceed merely on the production of a blood-stained weapon. Similarly, in the case of -State of Haryana Vs. Ram Singh3, the Apex Court has held that “where all disclosures, discoveries and even arrests have been made in the presence of the same three totally interested witnesses and no independent witness was found out for the said purpose, it creates doubt, benefit of which must go to the accused”. Similarly, in the case of – Bakshish Singh Vs. State of Punjab4 it was held that “recovery of the dead body on the information given by the accused, only raised strong suspicion against the accused”. 13. Keeping in view the aforesaid observations made by the Apex Court on the aspects of recovery, search and seizure by the police from the accused, it will have to be examined whether the prosecution has conclusively proved each circumstance against the accused. 1 AIR 1963 SC 1113 2 (1961) 11 SCJ 334 3 AIR 2002 SC 620 4 AIR 1971 SC 2016 APEAL. 101-91 - 15 - 14. Prosecution has examined in all 20 witnesses. There are no eye witnesses to the said incident. P.W.1 - Govind Bhiva Puralkar is the brother of the husband of the deceased. He has stated that the deceased Sudha went to bring ration from fair-price shop at about 3.00 P.M. and did not come back till about 6.30 P.M and that she was wearing earrings and there was Mangalsutra on her neck and she was wearing green coloured saree. He has also stated that she had worn slippers while going out and when she did not return till 6.30 P.M., he sent his son Rajan Govind to see her and one Amrut with Vishnu and one other person also had accompanied his son. They made inquiry at fair-price shop. However, they learnt that she had left after purchasing the food-grains. They also learnt that deceased Sudha had gone to the house of her maternal uncle Ankush Gawade. He, however, informed P.W.1’s son that she had left at about 5.30 P.M. He has stated that, thereafter, all of them tried to find her. However, there was no trace of Sudha and, therefore, he lodged a missing complaint at the Police Station. According to P.W.1, on the next day morning, he again went in search of Sudha alongwith his brother and maternal nephew. They also met Ankush Gawade while they were searching her. While they were passing from the place called Redegali, they found broken pieces of bangles and slippers of Sudha. He, therefore, identified those bangles and slippers. They felt that some mishapped had taken place and they stayed there and sent Kashiram to the Police Station and after some time Kashiram and Police returned to the place within a short time. Police were shown bangles and slippers. At that time, Daji Gawade came there. He informed the Police that the APEAL. 101-91 - 16 - accused Shivaji Bagale was seen there at previous night and, therefore, Police went in search of Shivaji Bagale. He identified the accused before the Court. According to him, Police brought the accused at the place where they were sitting and the Police made inquiry with the accused and the accused confessed before them that he had committed murder of deceased Sudha and when inquiry was made by the Police about dead body, he informed them that he had thrown the dead body in a well called Vinantale and that he would show them the well. When they reached the well, the accused informed them that the dead body was thrown in the said well. Thereafter, Police brought one bamboo stick and took search in the well with the help of bamboo and the dead body of Sudha came up floating after the