1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO. 622 OF 2008 Jyoti Baban Kale, Aged : 20 years, Residing at Vasmat Taluka, Zilla Hingoli, Waptigaon, Presently in custody in the Yerwada Central Prison, Yerwada, Pune ..APPELLANT (Orig. Accd. No.2) VERSUS State of Maharashtra At the instance of Purna Police Station ..RESPONDENT Mr S.J. Salgare, Advocate holding for Smt. S.S. Jadhav for the appellant; Mr N.R. Shaikh, A.P.P. for the respondent WITH CRIMINAL APPEAL NO.395 OF 2008 Ananda s/o Champatrao Kale, Age : 21 years, Occu.Agril., R/o Wapti, Tq. Basmath, District Parbhani [At present in jail] ..APPELLANT (Orig. Accused No.1) VERSUS 2 State of Maharashtra Through Police Station Officer, Police Station, Purna District Parbhani ..RESPONDENT Mr S.S. Rathi, Advocate for the appellant; Mr N. R. Shaikh, A.P.P. for the respondent. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 6th September, 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) Since both these appeals arise from the judgment of the Trial Court, both these appeals are being decided by this common judgment. The appellants herein stand convicted for an offence punishable under section 302 and 201 read with section 34 of the Indian Penal Code and stand sentenced to imprisonment for life and to each pay fine of Rs. 1,000/- with a default stipulation of undergoing further S.I. for one month and R.I. for three years and to pay fine of Rs.500/- each, in default to suffer S.I. for fifteen days with a direction that the substantive sentences shall run concurrently, by the Additional Sessions Judge, Parbhani, by judgment dated 4.7.2008, in Sessions Trial No.139 of 2007, by these appeals question the correctness of their conviction and sentence. 3 2. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus :- P.W.4 P.S.I. Premchandra Poul was attached to Purna Police Station. On 9.5.2007 accused no.2 Jyoti had come to the police station, Purna and had made certain confessional statement. On the basis of the said confessional statement, the P.I. Shri Patil had directed P.W.4 P.S.I. Poul to visit the scene of the offence. P.W.4 accordingly took accused no.2 in a police jeep to a spot at a distance of 2-1/2 kms. from the police station, by the side of railway track. The spot was pointed out by accused no.2 Jyoti. He noticed that the ditch was filled with mud and red coloured cloth was found in the ditch. He accordingly returned to the police station and informed P.I. Patil. Two Police Constables were deputed to guard the spot. Accordingly P.W.7 A.S.I. Raosaheb Pawar recorded the complaint of accused no.2 Jyoti and obtained her thumb impression. The aforesaid complaint at Exh.51 was treated as the first information report and an offence punishable under sections 302, 201 and 506 of the Indian Penal Code came to be registered against original accused no.1 Ananda vide Crime No.51 of 2007. Investigation accordingly came to be entrusted to P.W.5 P.S.I. Amjad Sayyad. P.W.5 Amjad Sayyad who was entrusted with the investigation went to the scene of the offence along with Constable Pote and Dukare and directed them to guard the spot and issued a letter to the Tahsildar at Exh.33 and also a letter to the Medical Officer for performing the post mortem. The 4 Tahsildar and the Medical Officer arrived on the next day i.e. on 10.5.2007. P.W.3 Tukaram Ghansawankar, a Naib Tahsildar who was in-charge of Purna Taluka, upon receipt of the communication at Exh.33 attended the Purna police station along with the two panchas, namely Kabir Ahmed and Vidyakumar Lahane. Original accused no.1 Ananda Kale was brought before him and accordingly accused no.1 Ananda expressed his willingness to point out the place where the dead body of an infant boy was buried. Accused no.1 Ananda then took the police and the panch along with him to the railway track and pointed out the place where a male child had been buried. At that spot certain thorns had been spread and accordingly a labour by name Thuraji Gavali removed those thorns and excavated the spot. From the spot a piece of sari of yellow and red colour one plastic chappal of right foot was unearthed. The dead body, however, was not found. A search of the nearby place was undertaken and a white coloured shirt with black dots was found. The aforesaid articles came to be seized under panchnama at Exh.35. Accused no.2 Jyoti and P.W.1 Baban were referred for medical examination to the Civil Hospital at Parbhani and the accused no.2 came to be arrested on 9.5.2007 at 11.00 p.m. Accused no.1 was also referred for medical examination. The sniffer dog was summoned and smell of the seized shirt was given to the dog. The dog went upto the canal and thereafter stopped. A search for the dead body was taken but the dead body of the child was not found. On 11.5.2007 the medical examination report of Jyoti was collected, which indicated that accused 5 no.2 Jyoti had given a birth to a child about a month prior to the incident. On 13.5.2007 the police party proceeded to Pune along with accused no. 2 Jyoti to the house where she was previously residing at Vagoli. Statement of the land lady came to be recorded. Thereafter accused no.2 Jyoti came to be arrested. During custodial interrogation accused no.1 Ananda expressed his willingness on 21.5.2007 to point out the place where the remaining clothes of the child of accused no.2 Jyoti were kept. He accordingly led the police and the panch to a place near the Irrigation Department Guest House and from near a lime tree produced a piece of sari, an underwear of the child, a yellow coloured shirt and a green coloured shirt. The aforesaid articles came to be seized under panchnama at Exh.40. The seized articles came to be referred to the Chemical Analyser. The report of the Chemical Analyser at Exh.41 indicates that on the sari piece, small shirt and underwear and another shirt, no blood was detected. As per the C.A. report at Exh.44, blood was detected on a shirt and sari piece, which were seized on 10.5.2007. The aforesaid articles were found stained with blood of "A" group. The blood group of P.W.1 Baban was determined as "AB" group, while the blood group of accused Jyoti was determined as "A" group. Further to the completion of investigation a charge-sheet against the accused came to be filed. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.6 framed charge against the accused for offence punishable under 6 section 302 read with sec. 34 of the Indian Penal Code and 201 read with sec. 34 of the Indian Penal Code. Both the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined seven witnesses. The entire prosecution case is based on circumstantial evidence. 4. In order to deal effectively with the submissions advanced before us by Shri S.S. Rathi and Shri Salgare, learned Counsel for the appellants, it would be useful to refer to the prosecution evidence. P.W.1 Baban, husband of accused no.2 Jyoti states that Jyoti was married to him and she had given birth to a boy named Pandurang. Jyoti conceived on the second occasion when Pandurang was three years old. On account of her pregnancy she was not allowed to do work in the agricultural field and used to stay at home. On 22.11.2006 P.W.1 Baban along with his mother had worked in the land of accused no.2 Ananda Kale and had returned home at about 11.30 a.m. in order to collect an empty gunny bag. At that time he had noticed accused no.1 Ananda in the house along with accused no.2 Jyoti. On seeing him accused no.1 Ananda went away. P.W.1 was angry and accordingly scolded Jyoti as to why she had entertained Ananda when no one else was in the house. On the same day, on account of failure of the electricity he could not operate the thrashing machine and returned home but found the house locked. He inquired from his uncle Baburao as to where Jyoti had gone 7 and Baburao had informed him that Jyoti had gone to the agricultural field of P.W.1 Baban. Mother of P.W.1 Baban had gone to their land and had returned in the afternoon and had informed him that Jyoti was not found in the field. Accordingly a search for Jyoti was undertaken. It appeared that Jyoti had left the key of the house with one Ushabai. Inquiry accordingly was made at the house of her parents at Aundha and other villages at Kalamnuri, Salana and Ghoda. The whereabouts of Jyoti was not traced. On 23.11.2006, P.W.1 Baban had gone to the police station accompanied by the Police Patil P.W.2 Deelip Shinde and had lodged his report at Exh.19 regarding Jyoti who was missing. Thereafter on 6.5.2007 accused nos.1 & 2 had appeared in the police station, Kurunda and this fact was informed by father of accused no.1 to P.W.1 Baban. Along with Police Patil P.W.1 Baban had gone to the police station and the police informed him to take Jyoti along with him. P.W.1 Baban had declined to accept the custody of accused no.2 Jyoti. However, Police Patil and other persons had brought Jyoti and had kept her in the house of one Ramesh Kale. On the next day Police Patil, P.W.1 Baban and others had taken Jyoti to the house of her sister, but her mother was not present there. Thereafter they went to the house of her relative at Kalamnuri where also mother of Jyoti was not present. Thereafter they had gone to village Salva where mother of Jyoti was not present. From there they proceeded to village Ghoda to the house of sister of Jyoti where mother of Jyoti was present. Mother of Jyoti was requested to accept the custody of Jyoti, which was declined by her mother. In the 8 evening Jyoti was brought back to their village and was taken in the house of P.W.1 Baban. On the next day Baban and his mother inquired from Jyoti as to what had happened to her child as she was pregnant of 3 to 3-1/2 months when she had left his house. Initially Jyoti informed him that she had aborted. However, this explanation was not accepted by P.W.1 Baban as he pointed out to her that there was secretion of milk in her breast and, therefore, she must have delivered a child. Ultimately Jyoti admitted that she had delivered a child at the Kolthe Hospital of village Bahuli at Pune. Thereafter while they were returning to reach Purna and were walking by the side of the railway track, accused no.1 Ananda had stated that if the child is taken to the village, people would say that the child was the child of accused no.1 Ananda and accordingly he would be defamed. Ananda, therefore, asked Jyoti to hand over the child to him otherwise he would kill her. Jyoti accordingly handed over the child to Ananda and he buried the child in a ditch. Jyoti was asked by P.W.1 Baban as to why she had not disclosed this incident to the police at Kurunda on 6.5.2007 and she replied that the police had not questioned her. Jyoti was accordingly taken to police station, Kurunda where the police were informed about the disclosure made by Jyoti. The police accordingly asked P.W.1 Baban to take her to Purna police station within whose jurisdiction the said offence was committed. Accordingly P.W.1 Baban, Jyoti and others reached the Purna police station in the evening where she had narrated the facts to the police who had reduced it into writing. In cross-examination he has admitted as true that accused 9 no.1 was visiting his house and there was no enmity with accused no.1. He has admitted that Jyoti had stayed the previous night at his house and on the next day she was questioned by Baban and his mother. He has also admitted as correct that Jyoti had admitted that she and accused no.1 Ananda were residing at Pune as brother and sister. He has also admitted that he did not believe the statement of Jyoti. He has denied the suggestion that he had given threats and had forced Jyoti to make the disclosure. He has also admitted that he was aware that Jyoti had eloped with accused no.1 but had not lodged a complaint regarding the same. 5. P.W.2 Deelip, Police Patil, deposes on similar lines except that he states that on 6.5.2007 statement of Jyoti had been recorded by the Kurunda police station and thereafter P.W.1 Baban had declined to accept the custody of Jyoti and Jyoti was kept in the house of one Ramesh Kale. He then states about accompanying Baban and Jyoti to the house of her sister in search of the mother of Jyoti and ultimately mother of Jyoti also declining to accept the custody of Jyoti. He then states about accompanying Baban to the Kurunda police station on the next day and thereafter the police informing to approach the Purna Police Station. In cross-examination omission has been proved that he had not stated in his previous statement that on 8.5.2007 in the morning P.W.1 Baban had disclosed to him about the disclosure made by Jyoti. 10 6. P.W.4 P.S.I. Poul states about Jyoti being brought to the Purna police station on the morning on 9.5.2007 and about the disclosure made by Jyoti and thereafter proceeding to the spot which was at a distance of 2-1/2 Kms. from the police station. He states that the ditch was filled and surprisingly states that "red coloured cloth was in the ditch." He then states about two Police Constables being asked to guard the spot. In cross-examination he states that he had not reduced into writing the information given by Jyoti. 7. P.W.5 Amjad Sayyad, a P.S.I. attached to the Purna police station states about the investigation carried out by him. He states about issuing a communication Exh.33 to the Tahsildar. P.W. 3 Tukaram Ghansawankar, a Naib Tahsildar states about receipt of the communication at Exh.33 and attending the police station on 10.5.2007 and thereafter questioning accused no.1 Ananda. He states that the accused no.1 had expressed his willingness to point out the spot where the body of the child was buried. He states about excavating the ditch which was pointed out by accused no.1 Ananda and finding of a yellow coloured sari piece and a plastic Chappal. He states about the search undertaken in the nearby place and about finding a white coloured shirt with black dots and the seizure of the same pursuant to the panchnama at Exh.35. P.W.5 P.S.I. Sayyad then states the various steps in the investigation including the disclosure statement of accused no.1 leading to the discovery of the remaining clothes of the infant child. 11 8. Learned Counsel for the appellants have urged before us that statement/extra judicial confession of Jyoti was not a voluntary statement given by her. Jyoti had obviously eloped with accused no.1 Ananda and had stayed with him for nearly seven months. Jyoti had given birth to a child and this is clear from the documents at Exhs.23, 24, 25, 26 and 31 which have been admitted by the defence. It is, therefore, urged before us that since Jyoti was not accepted initially either by her husband and subsequently by her mother, Jyoti was left with no other alternative but to given an exculpatory statement in respect of the death of her child. It is further urged before us that extra judicial confession is basically a weak type of evidence which is generally not accepted without corroboration. It is also urged before us that the statement of Jyoti or the statement of accused no.1 Ananda cannot be said to be a disclosure statement as the dead body of the child was not found pursuant thereto. 9. According to us, not much reliance can be placed on the extra judicial confession of accused no.2 Jyoti. Firstly, it is exculpatory in nature and had not been made at the first opportunity which was available to Jyoti. Jyoti had been refused to be accepted by her husband and by her mother. According to us, this is what must have prompted Jyoti to offer an explanation which would somehow ensure that she comes out unscathed in the entire incident. Apart from that, the place 12 pointed out by Jyoti was excavated but the dead body of the child was not found. Therefore, the extra judicial confession made by Jyoti on that score also does not appear to be true. The extra judicial confession of Jyoti, therefore, does not appear to be a voluntary and a truthful version of the incident alleged to have occurred in respect of the death of her child. In this context a reference may usefully be made to the judgment of Supreme Court in Kanan & ors. vs. State of Kerala, AIR 1979 SC 1127 . The Supreme Court in the aforesaid judgment at paragraph 2 has held thus :- "Coming to the extra-judicial confession of Pivachi before P.W.27, we find it difficult to accept this evidence which is a very weak type of evidence." 10. A reference may also be made to the judgment of Supreme Court in State of M.P., through CBI etc. vs. Paltan Mallah and ors., etc., AIR 2005 SC 733, particularly at paragraph 17 of the judgment, which reads thus :- "Another incriminating circumstance sought to be proved against the accused is the extra-judicial confession alleged to have been made by the ninth accused Paltan Mallah wherein he named A-1, A-2, A-5 and A-6. It is alleged that he made the confession to P.W-105 Satyaprakash Nishad and A-9 is alleged to have disclosed 13 to PW-105 that these accused persons had given him money and he murdered Shankar Guha Nivogi for the sake of money. Under Section 30 of the Evidence Act, the extra-judicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against these accused persons, the extra- judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra-judicial confession." 11. Reference may also be made to the judgment of Supreme Court in Balbir Singh vs. State of Punjab, 1999 (4) Crimes 99 (SC), wherein the Supreme Court has held thus :- "An extra judicial confession even if believed is considered a very weak piece of evidence and ordinarily is not accepted without independent corroboration." 12. Prosecution then alleges that pursuant to the disclosure statement of accused no.1 Ananda a piece of sari and a slipper was recoverred at the instance of accused no.1 Ananda from the place which was pointed out by him. In this regard evidence of P.W.4 P.S.I. Poul clearly indicates that accused no.2 had made a disclosure to him and he had accordingly proceeded to the aforesaid place. He found that the ditch had been filled 14 in but from the ditch he found a red coloured cloth. If the ditch was filled, we fail to understand as to how he had found a red coloured cloth. It would obviously mean that P.W.4 P.S.I. Poul had excavated the ditch and had found only a red coloured cloth. It further appears that thereafter the ditch came to be filled in and curiously after the ditch was filled in some thorns were spread on the ditch. The very same spot was shown by accused no.1 Ananda to P.W.5 and P.W.3. The aforesaid ditch was excavated and from the ditch the yellow coloured sari and one slipper came to be seized. If the ditch had been excavated earlier by P.W.4 P.S.I. Poul, it is curious that the aforesaid articles had not been noticed by him. The guard was placed immediately on 9.5.2007. It is obvious that the aforesaid articles had been planted. The sari which had been identified by P.W.6 as the piece of sari which had been given by her to accused no. 2 Jyoti was found stained with blood of "A" group. According to us, no reliance at all can be placed on the finding of C.A. that the aforesaid piece of sari was found stained with blood as the factum of recovery of the sari from the ditch has not been proved by the prosecution. Curiously, no panch witnesses to the memorandum have been examined. No separate memorandum has been drawn. P.W.3 Tahsildar went to the police station accompanied by the staff from his office. The aforesaid persons are the panch witnesses to the panchnama at Exh.35. All this creates doubt about the genuineness of the recovery alleged to have been made pursuant to the statement given by accused no.1 on 10.5.2007. 15 13. Another circumstance on which reliance is placed is the finding of a shirt belonging to a child in the vicinity of the ditch. Prosecution has not examined the witness who is alleged to have identified the said shirt as the one which had been given by her to accused no.2. In the absence of such evidence, the finding of the aforesaid shirt near the scene of the offence does not connect the accused with the commission of the crime. The fact that the shirt was found stained with blood of "A" group, therefore, loses its significance. 14. Another circumstance on which reliance is placed by the prosecution is the disclosure statement alleged to have been made by accused no.1 Ananda on 21.5.2007 during custodial interrogation leading to the discovery of the other wearing apparel of the small child. The aforesaid articles had been seized from a open place which was accessible to all. Apart from that, the disclosure memorandum is alleged to have been made after 14 days of the incident during which period the accused no.1 was in the custody of police. Curiously, no such disclosure memorandum had been made by accused no.1 Ananda earlier. Apart from that, the said clothing has not been proved by the prosecution as the clothing of the deceased child. In any event, nothing incriminating was found on the clothing by the Chemical Analyser when examined by him. 16 15. The last circumstance i.e. the identification of the piece of sari by P.W.6 Pushpabai has been relied upon by the prosecution. We have already held that no reliance at all can be placed on the evidence relating to the seizure of said piece of sari from the spot alleged to have been shown by accused no.1 Ananda. Apart from this, P.W.6 Pushpabai Satav has admitted in cross-examination that she does not remember if the police had shown her two pieces of sari. She has further admitted that she could not identify from articles no.1 & 4 as to which piece of sari was shown to her. Since we have already held that the recovery of piece of sari from the scene of the offence has not been proved by the prosecution, mere identification of the piece of sari as the one given by P.W.6 Pushpabai to accused no.2 Jyoti would not advance the prosecution case any further. 16. We have examined the prosecution case in the light of the submissions advanced before us by the learned Counsel for the appellants and the learned A.P.P. The present case rests on circumstantial evidence. Prosecution is required to establish all the circumstances on which the prosecution proposes to rely. It is also necessary that the circumstances so established by the prosecution should be of a conclusive nature. The circumstances so proved should form a complete chain which should exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. In the present case the prosecution has not been able to 17 produce the corpus