1 IN THE HIGH COURT OF JUDICMTURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 3177 of 2008 In Criminal AppealNo. 201 of 2008 Kamlakar v. The State of Maharashtra ------------------------------------------------------------------------------------------------------------- - Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr S.V. Sirpurkar, Advocate for applicant Mr S.J. Jichkar, APP for State. Coram : D.D. Sinha and A.P. Bhangale, JJ Dated : 18th December 2008 1. Heard Mr S.V. Sirpurkar, learned counsel for applicant and Mr S.J. Jichkar, learned Addl. Public Prosecutor for respondent-State. 2. Learned counsel for the applicant has submitted that instant case is based on circumstantial evidence and in paragraph 64 of the judgment, the circumstances relied on by the Trial Court are as follows :- “(1). Homicidal death of both the deceased Gajanan and Balaji. 2 (2). Motive : Dispute over the property between the deceased and the accused. (3). Prompt report of the alleged incident by the deceased wife. (4). Soon after the incident both the accused also appeared in police station along with weapons used in the commission of the offence and blood stained clothes on their person. (5). Seizure of blood stained sticks and blood stained clothes on the person of both the accused by the police. (6). Prompt registration of the FIR after the incident. (7). Investigating Officer visited to the spot of the incident, recovered the dead bodies of both the deceased Gajanan and Balaji. (8). Serological report detecting human blood on the seized sticks from the possession of both the accused. (9). Serological report detecting human blood on clothes of both the accused. (10). Evidence of P.W. No. 3 PSI Samadhan Chavhan, evidence of Investigating Officer P.W. No. 7 Zalke and the independent witness P.W. No. 8 Wasudeo Ghugre pointing out involvement of the accused in the commission of the offence. (11). False defence taken by the accused. 3 (12). No plausible explanation tendered by the accused about the blood stains found on the clothes of the accused.” 3. Mr Sirpurkar, learned counsel for the applicant has submitted that in the instant case, the alleged incident had taken place on 17.10.2005 and after the alleged incident, the applicant along with other co-accused went to the Police Station and gave a confession to the Police Station Officer by admitting the guilt as well as by producing the bamboo sticks having blood stains. It is contended that the applicant has stated in his confession that the sticks used in the commission of an offence were the same sticks which were produced before the police officer in the Police Station having blood stains. It is contended that circumstances no. 4 and 5 mentioned in paragraph 64 of the judgment would support the contention canvassed by him in this regard. Mr Sirpurkar, learned counsel has contended that the entire confessional statement in all its different dimensions and fasets is hit by Section 25 of the Evidence Act and is completely inadmissible in law. It is contended that part of the confessional statement cannot be made admissible when the other part of the same confessional statement is inadmissible in law. It is contended that the entire confessional statement given by the appellant to the police officer including the production of sticks having blood stains, is inadmissible and, therefore, could not have 4 been relied on by learned Trial Court. 4. Mr Sirpurkar, learned counsel for the applicant has further contended that if these two inadmissible circumstances are kept out of consideration, in that event, the remaining circumstances do not complete the requisite chain in order to conclude that the applicant was guilty of an offence with which he was charged. It is, therefore, contended that the applicant may be released on bail. It is submitted that the applicant was on bail during the course of trial. Mr Sirpurkar has relied on the judgment of the Apex Court in Aghnoo Nagesia v. State of Bihar reported in AIR 1966 SC 119. 5. Mr S.J. Jichkar, learned Addl. Public Prosecutor for respondent-State, on the other hand, opposed the application for grant of bail on the ground that the circumstances which are brought on record by the prosecution are adequate enough to complete the chain and on the basis thereof, the Trial Court was justified in holding that the prosecution has proved the case beyond all reasonable doubt. Learned APP has submitted that it is not in dispute that the applicant, after the commission of an offence, went to the Police Station along with weapon of offence (bamboo sticks) having blood stains and produced the same before the Police Station Officer. It is also not in dispute that the clothes of the applicant which were having blood stains, were also seized in the Police Station. Learned APP has further contended 5 that in the instant case, though the confessional statement, if any, made by the applicant to the Police Station Officer is inadmissible, however, his conduct under Section 8 of the Evidence Act is admissible piece of evidence which can always be relied by the trial Court in view of the decision of this Court in Ashok Pochu Kogilwar v. State of Maharashtra (Criminal Appeal No. 289 of 2001, decided on 1st April 2005). It is, therefore, contended that the applicant is not entitled to be released on bail. 6. We have considered the contentions canvassed by learned counsel for the respective parties and also perused the circumstances considered and relied on by learned Trial Court as mentioned in paragraph 64 of its judgment as well as the decisions of the Apex Court and this Court cited and relied on by the respective counsel. 7. In the instant case, it is not in dispute that after the incident in question, the applicant along with co-accused went to the Police Station along with bamboo sticks (weapon of offence) having blood stains and produced the said sticks before the Police Station Officer. Similarly, clothes of the applicant having blood stains were also seized by the police officer in the Police Station. The applicant, after the incident in question, went to the Police Station and gave a confession about the commission of offence and produced the weapon of offence having blood stains as well as the clothes of the applicant having blood stains were seized in 6 the Police Station. The Trial Court placed relied on these circumstances while considering the circumstantial evidence adduced by the prosecution. The question which needs consideration in the instant case is, whether the production of weapon of offence having blood stains as well as seizure of blood- stained clothes of the applicant can be treated to be part and parcel of the confessional statement made by the applicant to the police officer and whether the whole confessional statement made to the Police Station officer is inadmissible in law or the production of weapon of offence is the conduct which is saved under Section 8 of the Evidence Act and to that extent, this circumstantial evidence is admissible in law. 8. It is well-settled that the confessional statement to the police officer is wholly inadmissible in law. However, in view of the law laid down by this court in the case of Ashok Pochu Kogilwar v. State of Maharashtra (supra), conduct of production of weapon was held to be admissible in evidence in view of the provisions of Section 8 of the Evidence Act. In the backdrop of the above-referred facts and circumstances, the relevant observations made by the Apex Court in case of Aghnoo Nagesia v. State of Bihar (supra) read thus : “(13). Now, a confession may consist of several parts and may reveal not only the actual commission of the 7 crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact i.e. some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession. (14). If proof of the confession is excluded by any provision of law such as S. 24, S. 25 and S. 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as S. 27 of the Evidence Act. Little substance and 8 content would be left in Ss. 21, 25 and 26 if proof of admission of incriminating facts in a confessional statement is permitted.” 9. The law laid down by the Apex court in the above- referred judgment makes it implicitly clear that the confessional statement consists of various parts, such as, actual commission of an offence, regarding motive, preparation, opportunity, provocation, weapon used, intention, concealment of weapon and subsequent conduct of the accused and each part individually or collectively is a part and parcel of the confessional statement. Similarly, in view of the law laid down by the Apex Court, it is impermissible to admit in evidence some part of the confession and as non-confessional statement and reject the other part of the statement as not admissible except statement and discovery under the provisions of Section 27 of the Evidence Act. 10. In the instant case, in view of the law laid down by the Apex Court and considering the facts and circumstances of the present case, we are of the view that the applicant has made out a case for grant of bail. The observations made by us in this order are prima facie in nature. 11. In the circumstances, application is allowed. Applicant be released on bail on his furnishing PR Bond in the sum of Rs. 10,000/- with two sureties in the like amount. Applicant is 9 directed to visit Police Station, Mul once in fifteen days starting from Sunday, 28th December 2008 between 01.00 pm and 03.00 pm. It is made clear that if the applicant commits breach of condition, it will be open for the respondent- State to move appropriate application for cancellation of bail. Hamdast granted. Judge. Judge. hsj