Accused entitled to benefit of doubt since suspicion not proof in law: Bombay High Court

 on 27 01 2022 on 05 02 crapl702.14 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 702 OF 2014 Avdhoot Vithal Ghate(C 16833) Age 19 years Occ. Labour R o. Kakaddati Tq. Pusad Dist. Yeotmal(Ori. Accused) versusThe State of Maharashtra Through the Police Inspector Nagar Taluka police stationTq. Nagar Dist. Ahmednagar ...Respondent .....Mr. Sunil B. Jadhav Advocate for the appellant: 1. This appeal is directed against the judgment and order passedby the Additional Sessions Judge Ahmednagar dated 24.4.2014 inSessions Case No. 713. 2.Brief facts of the prosecution case are as follows: on 27 01 2022 on 05 02 crapl702.14 2 a)Deceased Pandurang Patil and the appellant accusedAvadhoot Ghate both were working as labourers. DeceasedPandurang was hailing from Jalgaon whereas appellant accusedAvadhoot is resident of Pusad district Yeotmal. Both of them insearch of labour work had come to Ahmednagar. On 12.10.2012 deceased Pandurang appellant accused and one other labourerstarted working in the field of P.W.4 Raosaheb Sonawane atHingangaon. P.W.3 Vaijanath Kardile a teacher is also havingagricultural land at village Jakhangaon situated near Hingangaon andhe was also in need of labourers for cutting the crop of Bajra andthus he had requested P.W.4 Raosaheb Sonawane to send thosethree labourers to his field after his work is over. On 15.10.2012 P.W.3 Vaijanath Kardile brought those three labourers from the fieldof Raosaheb Sonawane. It further reveals from the prosecution storythat on the next day deceased Pandurang and the appellant accused expressed their desire to attend one religious function atHingangaon. Thus they went to village Hingangaon. They hadconsumed liquor. Subsequently a quarrel had taken place betweenthem at Hingangaon. Deceased Pandurang was insisting theappellant accused Avadhoot to do some more work and also abusedhim on that count. Consequently the appellant accused Avadhootgot annoyed and while returning after attending the religious functionat Hingangaon the appellant accused Avadhoot had committedmurder of deceased Pandurang by smashing his head with the helpof one big stone. on 27 01 2022 on 05 02 crapl702.14 3 b)On 19.10.2012 P.W. 1 Police Patil Ramesh Angre wasinformed by one Chandu Shaikh that near his field he has noticedsome blood stains some diaries stones one pant and also onedead body. Thus on the same day at about 3.00 p.m. P.W.1 PolicePatil Ramesh Angre went to the spot. He saw the dead body lyingon the spot as well as there were blood stains. The said dead bodywas in crushed condition. One barmoda pant and a blue shirt wereon the person of deceased. The said dead body was lying in thornybushes. He then went to Nagar Taluka police station and lodged thereport Exh.11. The police thereafter visited the spot and seized thearticles. PW.16 A.P.I. Milind Patil has sized those articles by drawingpanchanama and also sent the dead body to Civil Hospital forpostmortem examination after preparing the inquest panchanamaExh.19. A.P.I. Milind Patil has recorded the statements of thewitnesses. He has also effected arrest of the appellant accused bypreparing arrest panchanama Exh.62. On 5.12.2012 while theappellant accused Avadhoot was in police custody he made avoluntary statement to produce the clothes and also to show the spotof incident. Thus memorandum panchanama was prepared atExh.27 and thereafter his one shirt and one pant having stains ofblood came to be seized from the spot as shown by him by drawingpanchanama Exh.28. The said shirt and pant having blood stainsare articles 18 and 19 before the Court. During the course ofinvestigation P.W.16 A.P.I. Milind Patil has also obtained the on 27 01 2022 on 05 02 crapl702.14 4 confession of accused and the report of the identification parade fromthe Special Judicial Magistrate. The investigating officer hascompleted all the formalities and after completion of investigation submitted the charge sheet against the appellant accused. c)The learned Additional Sessions Judge has framed chargeagainst the appellant accused for the offence punishable underSections 302 and 201 of I.P.C. The appellant accused has pleadednot guilty to the said charges and claimed to be tried. The defence ofthe accused is of total denial and false implication. The prosecutionhas examined in all 16 witnesses to substantiate the charges levelledagainst the accused. The appellant accused has not examined anywitness in defence. After recording the statement of the appellant accused under section 313 of Cr.P.C. and after hearing both sides learned Additional Sessions Judge Ahmednagar has found theappellant accused guilty of offence under Section 302 of I.P.C.Learned Additional Sessions Judge has thus passed the sentenceagainst the appellant accused. The operative part of the judgmentand order of conviction dated 24.4.2014 is reproduced herein below: “1)Accused Avdhoot Ghate is hereby convicted of theoffence punishable under Section 302 of Indian PenalCode and is sentenced to suffer Rigorous Imprisonmentfor life.2)Accused is hereby acquitted of the offence on 27 01 2022 on 05 02 crapl702.14 5 punishable under Sectin 201 of the Indian Penal Code.3)Muddemal Property namely clothes stones notebooks books and other articlesbeingworthless be destroyed after the period of appeal is over.”3.Learned counsel for the appellant accused submits that theprosecution case entirely rests upon circumstantial evidence andthere is no direct evidence in this case. There is no chain ofcircumstantial evidence. The prosecution has failed to establish themotive on the part of the appellant accused for commission of crimeof murder. Learned counsel submits that P.W.3 Vaijanath Kardile inwhose field the appellant accused was working as labourer alongwithdeceased Pandurang has admitted that there was no dispute orquarrel taken place amongst the labourers working in his field.Learned counsel submits that even there is no evidence about lastseen together. P.W.3 Vaijanath Kardile has admitted in his crossexamination that in his presence deceased Pandurang andappellant accused Avdhoot had not gone to Darshan of Palkhi(religious function). Learned counsel submits that except the socalled evidence about confession there is no connecting evidenceagainst the appellant accused. Learned counsel submits that thoughP.W.11 Special Judicial Magistrate Bhaskar Bhos was notempowered he has conducted the identification parade.Furthermore the so called identification parade suffers from variousdeficiencies. Learned counsel submits that the confession Exh.42 is on 27 01 2022 on 05 02 crapl702.14 6 also not free from suspicion. P.W.11 Bhaskar Bhos has not compliedwith the procedural mandate before recording the confession. Hehas not got satisfied himself as to whether the confession isvoluntary. Learned counsel submits that at the most suspicion iscreated against the appellant accused. The said suspicion howeverstrong it may be cannot take the form of legal proof. Learnedcounsel submits that the appellant accused is entitled for the benefitof doubt. Learned counsel for the appellant accused in order tosubstantiate his submissions placed reliance on the followingcases: i)Judgment dated 22.11.2021 delivered by this Court incriminal appeal No. 341416 SCC 547iii)Haricharan Kurmi and Anr. vs. State of Bihar reportedin AIR 1964 SC 1184iv)Sarwan Singh Rattan Singh and Anr. vs. State ofPunjab reported in AIR 1957 SC 637v)Hari Om Alias Hero vs. State of Uttar Pradesh reportedin4 SCC 345 on 27 01 2022 on 05 02 crapl702.14 7 vi)Musheer Khan alias Badshah Khan and another vs.State of Madhya Pradesh reported in2 SCC 748 4.Learned A.P.P. submits that the prosecution has proved thecase by establishing the chain of circumstantial evidence. Theprosecution has proved beyond doubt the homicidal death ofdeceased Pandurang. The prosecution has also proved thatdeceased Pandurang and appellant accused Avdhoot were workingin the field of P.W.3 Vaijanath Kardile prior to the death ofPandurang. Even though deceased Pandurang and appellant accused Avdhoot had gone to village Hingangaon to attend thereligious function however appellant accused Avdhoot had returnedto the field of P.W.3 Vaijanath Kardile alone. He had given evasiveanswers to the queries put forth by P.W.3 Vaijanath Kardile as to thewhereabouts of deceased Pandurang. Furthermore at the instanceof the appellant accused his shirt and pant came to be seized fromthe hidden place and the C.A. report also indicates human bloodstains on his clothes. Furthermore P.W.11 Bhaskar Bhos theSpecial Judicial Magistrate has recorded the confessional statementof the appellant accused Part I Exh.37 and Part II Exh.42 respectively. He had given the appellant accused 24 hours of time torethink about the confession and in that way also concluded aboutvoluntarily nature of confession. P.W.11 Bhaskar Bhos the SpecialJudicial Magistrate has completed all formalities as per the guidelines on 27 01 2022 on 05 02 crapl702.14 8 given in the criminal manual. Further the witnesses have identifiedthe appellant during the course of identification parade. There is nosubstance in this appeal and the appeal is thus liable to bedismissed. .Learned APP further submits that the appellant has retractedthe confession only at the time of recording the statement underSection 313 of Cr.P.C.. It has been done under legal advice and assuch confession Exh.42 has been rightly relied upon by the trialcourt to convict the appellant accused. The retracted confessionmay form the legal basis for conviction. In the present case theconfession was not changed during the stage of framing of chargeand also during the course of examination of 16 prosecutionwitnesses.The learned A.P.P. in order to substantiate his submissions placed reliance on the judgment of the Supreme Court in the case ofManoharan vs. State by Inspector of Police Variety Hall PoliceStation Coimbatore in Review PetitionNos. 446 447 of2019 in Criminal appeal Nos. 1174 11719. 5.We have perused the material exhibits tendered by theprosecution the evidence of the prosecution witnesses thestatement of the appellant accused recorded under Section 313 ofthe Cr.P.C. and the impugned judgment. on 27 01 2022 on 05 02 crapl702.14 9 6.The prosecution case entirely rests upon the circumstantialevidence and there is no direct evidence in this case. So far as thehomicidal death of deceased Pandurang is concerned the same isnot seriously disputed by the appellant accused. The prosecution hasexamined P.W.12 Dr. Amol Shinde who has conducted post mortemexamination on the dead body of deceased Pandurang. In columnNo.17 he has noted the following two injuries: 1)Fractures present over skull bones broughtseparately margins irregular underlying meninges andbrain absent servical vertebrae No. 1 2 3 fractured inmultiple pieces margins irregular.2)Mandible fractured in multiple pieces marginsirregular.In his opinion the final cause of death was head injury. Postmortem report bears his signature which is marked at Exh.39. Hehas also accepted that the said injuries are possible with the help ofarticle 3 big stone before the Court. He has denied that the saidinjuries are possible by fall accidentally. Even considering the injuriesas described in column No.17 it can be positively said that the saidinjuries are outcome of smashing and it is not possible by accident.The prosecution has proved homicidal death of deceasedPandurang. on 27 01 2022 on 05 02 crapl702.14 10 7.It is well settled that if the prosecution case rests uponcircumstantial evidence the motive plays a great role. In the instantcase there is no motive. Deceased Pandurang and appellant accused Avdhoot were from two different districts regions and theyhad no previous acquaintance. In search of labour work they lefttheir respective native places and came to district Ahmednagar.Initially they had worked in the field of P.W.4 Raosaheb Sonawane.P.W.4 Raosaheb Sonawane had picked up three labourers fromAhmednagar Railway station i.e. deceased Pandurang appellant accused Avdhoot and one another labourer for cutting Bajra crop inhis field. Thereafter by consent those three labourers went to thefield of P.W.3 Vaijanath Kardile on 15.10.2012 for labour work.P.W.3 Vaijanath Kardile had also accepted that he had neverwitnessed any dispute or quarrel amongst those three labourersworking in his field. Except guess work of the investigating officerabout motive there is no evidence. 8.P.W.3 Vaijanath Kardile has deposed that on 16.10.2012 hehad informed the labourers working in his field that he was going forDarshan of Palkhi. On the same day at about 12.00 noon aftertaking Darshan he returned back to his field. He has deposed thatthose two labours had also told him that they also wanted to takeDarshan of Palkhi. P.W.3 Vaijanath Kardile has deposed that thethird labourer had already gone to Mirawali Pahad to attend another on 27 01 2022 on 05 02 crapl702.14 11 religious function. P.W.3 Vaijanath Kardile has deposed that after5.00 p.m. the appellant accused came alone. He appeared to beunder the influence of liquor. P.W.3 Vaijanath Kardile had asked himas to where his colleague deceased Pandurang had gone. However he has shown his ignorance about it. P.W.3 Vaijanath Kardile hasdeposed that on the next date the appellant accused Avadhoot wasworking in his field alone. However after completing the day’s work the appellant accused Avdhoot told him that he wanted to return.Thus on 18.10.2012 in the evening P.W.3 Vaijanath Kardile hadhanded over an amount of Rs.520 to the appellant accused towardsthe work which he had done and accordingly appellant accusedAvdhoot had left his house. P.W.3 Vaijanath Kardile has alsodeposed that even for some time they had taken search of deceasedPandurang but he was not found. a.The evidence of P.W.4 Raosaheb Sonawane may not behelpful to the prosecution. However even if evidence of P.W.3Vaijanath Kardile is considered we do not find any evidenceindicating that deceased Pandurang was lastly seen alive in thecompany of appellant accused. It is necessary to repeat here thatthe dead body of deceased Pandurang was found on 19.10.2012.P.W.3 Vaijanath Kardile has also admitted in his cross examinationthat on 16.10.2012 deceased Pandurang and appellant accusedAvdhoot had no occasion to go together for Darshan of Palkhi in hispresence. Thus there is no evidence to substantiate the prosecution on 27 01 2022 on 05 02 crapl702.14 12 case that on 16.10.2012 deceased Pandurang left the field of P.W.3Vaijanath Kardile in the company of the appellant accused and hewas lastly seen alive at that time. Further there is a gap of nearabout 3 days when the dead body of Pandurang was found on19.10.2012. b)The prosecution has made one more attempt to prove that thedeceased was lastly seen alive in the company of the appellant accused. The prosecution has examined P.W.7 Natha Chaugula who is a liquor shop owner at village Hingangaon. According to him the appellant accused had come to his shop at about 2.00 p.m.alongwith one more person and purchased two pouches of countryliquor from his shop. The appellant accused and his friend went toJakhangaon. He claims to have identified the appellant accusedduring the identification parade but the prosecution has neither puthim any question as to who was that another person alongwith theappellant accused nor shown him the photograph of deceasedPandurang to substantiate its case that deceased Pandurang wasthe another person who accompanied the appellant accused to hisshop for purchase of country liquor pouches. P.W.7 NathaChaugula has also admitted in his cross examination that prior to thesaid incident the appellant accused had never come to his shop forpurchase of liquor. Thus evidence of P.W.7 Natha Chaugula is alsonot helpful for the prosecution. At the most evidence of P.W.7 NathaChaugula only indicates that on 16.10.2012 at about 2.00 p.m. the on 27 01 2022 on 05 02 crapl702.14 13 appellant accused alongwith one other person had gone to his shopfor purchase of two liquor pouches and nothing more than that. Sofar as identification of the appellant accused in the identificationparade by P.W.7 Natha Chaugula is concerned the same will bediscussed in the later part of the judgment. c)The prosecution has tried to connect the appellant accusedwith the commission of crime on the basis of one more circumstancethat is seizure of blood stained clothes of the appellant accused athis instance. The prosecution has examined P.W.9 BabasahebDarekar. He has failed to give details of memorandum panchnamaExh.27. He has merely stated that the appellant accused made astatement to produce the clothes. He has put signature on thememorandum at the instance of police. He has further deposed thatthey went to one bridge near Kalyan Road. There was a squareahead the bridge and also one gutter. He has further deposed thatthereafter the appellant accused had produced clothes i.e. a T shirtand a pant from the gutter. The police seized the same underrecovery panchnama Exh.28. P.W.9 Babasaheb Darekar the panchwitness has admitted in his cross examination that the police wastelling the directions to the driver when they were proceeding towardsthe bridge and at that time he was sitting alongwith the appellant accused in rear portion of vehicle. He has admitted that Patil Saheb(P.W.16 A.P.I. Milind Patil) told the driver to stop the vehicle nearbridge. There was no water in the guttar and only clothes were there. on 27 01 2022 on 05 02 crapl702.14 14 He has not deposed anything about blood stains on the clothes.P.W.16 A.P.I. Milind Patil though deposed about seizure of bloodstained clothes in presence of the panch witnesses however he hasalso not deposed about the blood stains on the clothes of theappellant accused. Though the appellant accused came to bearrested on 02.12.2012 as per the arrest panchnama Exh.62 however the said memorandum and recovery panchnama shown tohave been drawn on 5.12.2012. Furthermore if P.W.16 A.P.I. Patilwas giving directions as to where the clothes were hidden memorandum and recovery panchnama which came to be drawn interms of the provisions of Section 27 of the Evidence Act loses itssignificance. Even though the panch witness so also the P.W. 16A.P.I. Milind Patil have not disclosed about the blood stains however as per the report of the Chemical Analyzer Exh.73 humanblood was found on the full shirt of the appellant accused. We arenot inclined to rely upon this circumstance at all. It appears to us thatthe investigating officer created this evidence with some obliquemotive. d)So far as the evidence about identification parade isconcerned the prosecution mainly relied upon the evidence ofP.W.11 Bhaskar Bhos the Special Judicial Magistrate. P.W.11Bhaskar Bhos is not specifically empowered to conduct theidentification parade. P.W.3 Vaijanath Kardile and P.W.4 RaosahebSonawane both were knowing the appellant accused as he was on 27 01 2022 on 05 02 crapl702.14 15 working in their field as a labour for a considerable period. We do notfind any reason to conduct the identification parade of the appellant accused by calling said P.W.3 Vaijanath Kardile and P.W.4Raosaheb Sonawane. e)So far as evidence of P.W.7 Natha Chaugula is concerned the prosecution claims that he has identified the appellant accused.P.W.7 Natha Chaugula has admitted in his cross examination that on16.10.2012 for the first time the appellant accused had come to hisshop for purchase of liquor. He has further deposed that duringidentification parade the persons who were alongwith the accusedwere not wearing red shirt. It does mean that the appellant accusedalone wore red shirt. He has further admitted that some persons werehaving short height and some persons were taller. He has alsoadmitted that some persons in the row were having fair complexionand some of them were having dark complexion. It thus appears thatno care was taken while choosing the persons to stand in the row. Itis needless to say that the persons standing in the row alongwith theaccused must be of same appearance and height as far as possible. f)We have carefully perused the evidence of P.W.11 BhaskarBhos on the point of identification parade. He has not followed theguidelines laid down in the criminal manual for conducting theidentification parade. The same is also evident from the identificationparade Exh.36. on 27 01 2022 on 05 02 crapl702.14 16 g)Even assuming that P.W.7 Natha Chaugula has identified theappellant as the person who purchased two pouches of liquor fromhis shop alongwith some other person however the prosecution hasfailed to establish the identity of the other persons. The prosecutioncase thus rests upon guess work and conjectures. The prosecutionpresumed that the said person who accompanied the appellant accused while purchasing the pouches of liquor was none else butthe deceased. The prosecution has failed to establish thiscircumstance against the appellant accused. 9.Learned counsel for the appellant accused has placedreliance on the following two cases for appreciation of circumstantialevidence: v)Hari Om Alias Hero vs. State of Uttar Pradesh reportedin4 SCC 345vi)Musheer Khan alias Badshah Khan and another vs.State of Madhya Pradesh reported in2 SCC 748 10.In the case of Hari Om Alias Hero vs. State of UttarPradeshthe Supreme Court has obeserved that it is wellsettled that in case of circumstantial evidence all the incriminatingfacts and circumstances should be fully established by cogent andreliable evidence and the facts so established must be consistentwith the guilt of the accused and should not be capable of being on 27 01 2022 on 05 02 crapl702.14 17 explained away on any other reasonable hypothesis than that of hisguilt. The circumstantial evidence should unmistakably point to oneand one conclusion only that the accused person and none otherperpetrated the alleged crime. If the circumstances proved in aparticular case are not inconsistent with the innocence of theaccused and if they are susceptible of any rational explanation noconviction can lie.11.In the case of Musheer Khan alias Badshah Khan andanother vs. State of Madhya Pradeshrelied upon bylearned counsel for the appellant the Supreme court has observedthat the prosecution must establish a complete chain ofcircumstances and not the snapped and scattered links. TheSupreme Court has also considered the rule of prudence whileappreciating the circumstantial evidence. 12.So far as the confession Exh.42 is concerned it is well settledthat the confessional statement is admissible in evidence and it is arelevant fact. However the court may rely upon it if it is voluntarilymade. It may also form the basis of conviction. The confessionshould not only be voluntary but also should be uninfluenced by anyother factor. It is not open to a Magistrate recording the confessionto lead the accused as if he is examining a witness. A confessioncannot be used against an accused person unless the court issatisfied that it was voluntary. on 27 01 2022 on 05 02 crapl702.14 18 a)In the instant case P.W.11 Bhaskar Bhos the SpecialJudicial Magistrate on 15.12.2012 went to District Prison Ahmednagar for conducting identification parade for which he is notempowered. He has merely acted on the basis of letter Exh.35 dated14.12.2012 received from Nagar Taluka police station for conductingthe identification parade. After completing the said so calledidentification parade with quick succession he has proceeded forrecording part I of the confession statement Exh.37 of the appellant accused. It is to be mentioned here that the said identificationparade was conducted in respect of the appellant accused only andfor none else. b)Exh.37 is part I of the confession which contains record ofquestions put by P.W.11 Bhaskar Bhos Special Judicial Magistrateto the appellant accused. A great responsibility is thrown on theMagistrate while recording confession and it is not desirable that heshould observe the formalities only given in the printed form. Heshould also observe the spirit and for that purpose he should not bein hurry in starting to record the confession. He should put forwardevery endeavour to satisfy by fully questioning the accused as towhether he is making the confession voluntarily. P.W.11 BhaskarBhos the Special Judicial Magistrate has admitted in his cross examination that part Iof the confession was recorded informat. He was not aware even on 15.12.2012 that the appellant on 27 01 2022 on 05 02 crapl702.14 19 accused was going to give confession. P.W.11 Bhaskar Bhos hasfurther stated in his cross examination that he was having printedproforma of confession. He has also stated in the cross examinationthat he has not personally conducted verification of person ofaccused before recording the confession. He has further stated incross examination that in part I he has not made a noting that thepolice from Taluka police station was not present. c)So far as Part II of the confession Exh.42 is concerned though there is paper work indicating that after giving 24 hours torethink P.W.11 Bhaskar Bhos Special Judicial Magistrate hasrecorded the part II statement of the appellant accused voluntarily however he has accepted in his examination that he has notmentioned in the certificate at the bottom of comfession that thestatement given by the appellant accused was true and correct. Inthe criminal manual so far as the aspect of recording of confession isconcerned the following three certificates at the bottom of theconfession are contemplated. Certificate I :“Certified that the above confession was recorded in mypresence and hearing and the record contains a full andtrue account of the statement made by the accused.”Certificate II :“I have explained to .....that he is not bound tomake confession and that if he does so any confession on 27 01 2022 on 05 02 crapl702.14 20 he may make may be used as evidence against him and Ibelieve that his confession was voluntarily made. It wastaken in my presence and hearing and was read over tothe person making it and admitted by him to be correctand it contains a full and true account of the statementmade by him.”Certificate III : “I certify that on the following grounds I believe that theconfession is genuine :DipakbhaiJagdishchandra PatelHaricharan Kurmi & Another(supra) and Sarwan Sigh s o Rattan Singhon the point ofvoluntary nature of confession. However there is no reason todispute the legal position about voluntary nature of recording ofconfession in the above cited cases. on 27 01 2022 on 05 02 crapl702.14 22 14.Learned A.P.P. has relied upon the case Manoharan vs.State by Inspector of Policeof the Constitution andin the alternate its reliance for having been retracted by thepetitioner it may be briefly noticed that on a conjoint reading ofthe confessional scheme comprising of Sections 163 164Cr.P.C. and Section 24 IEA as construed in a catena ofdecisions of this Court it is obvious that even in the absence ofan express provision for retracting a confessionary statementonce made the Courts have preferred a rule of prudencewhereby in case of retraction the Court reduces the probativevalue of such confessionary statements and seekscorroborating evidence.24. Hence the cornerstone of a valid confession in India isonly whether such a statement was made in compliance withstatutory provisions which mandate that the same must bebefore the Magistrate after compliance with certain safeguardsmeant to ensure voluntariness and lack of coercion by thepolice. This has been so noted by this Court in Bharat v. Stateof U.P. “7. ... Confessions can be acted upon if the court issatisfied that they are voluntary and that they are true.The voluntary nature of the confession depends uponwhether there was any threat inducement or promiseand its truth is judged in the context of the entireprosecution case. The confession must fit into theproved facts and not run counter to them. When thevoluntary character of the confession and its truth areaccepted it is safe to rely on it. Indeed a confession if it on 27 01 2022 on 05 02 crapl702.14 23 is voluntary and true and not made under anyinducement or threat or promise is the most patentpiece of evidence against the maker. Retractedconfession however stands on a slightly differentfooting. As the Privy Council once stated in India it isthe rule to find a confession and to find it retracted later.A court may take into account the retracted confession but it must look for the reasons for the making of theconfession as well as for its retraction and must weighthe two to determine whether the retraction affects thevoluntary nature of the confession or not. If the court issatisfied that it was retracted because of anafterthought or advice the retraction may not weighwith the court if the general facts proved in the caseand the tenor of the confession as made and thecircumstances of its making and withdrawal warrant itsuser. All the same the courts do not act upon theretracted confession without finding assurance fromsome other sources as to the guilt of the accused.Therefore it can be stated that a true confession madevoluntarily may be acted upon with slight evidence tocorroborate it but a retracted confession requires thegeneral assurance that the retraction was anafterthought and that the earlier statement was true. ...”15.In para 29 of the judgment the Supreme Court has observedabout the use of retracted confession by referring the view expressedin Subramania Goundan v. State of Madras reported in AIR 1958SC 66 as well as by a four Judge Bench of the Court in Pyare LalBhargava vs. State of Rajasthan reported in AIR 1963 SC 1094.Para 29 of the judgment in Manoharanreads as under: “29. That apart even if the confession dated 20.11.2010 wereto be treated as being retracted vide letter dated 25.07.2012(as adopted during examination under Section 313 of theCode) still the original confession can be relied upon. Coupledwith corroborating evidence conviction can also be secured on on 27 01 2022 on 05 02 crapl702.14 24 the strength of such confession. The rule regarding use ofsuch retracted confessions was noted by this Court inSubramania Goundan v. State of Madras as well as by a four Judge Bench of the Court in Pyare lal Bhargava vs. State ofRajasthan holding that:“A retracted confession may form the legal basis of aconviction if the court is satisfied that it was true andwas voluntarily made. But it has been held that a courtshall not base a conviction on such a confessionwithout corroboration. It is not a rule of law but is only arule of prudence. It cannot even be laid down as aninflexible rule of practice or prudence that under nocircumstances such a conviction can be made withoutcorroboration for a court may in a particular case beconvinced of the absolute truth of a confession andprepared to act upon it without corroboration but it maybe laid down as a general rule of practice that it isunsafe to rely upon a confession much less on aretracted confession unless the court is satisfied thatthe retracted confession is true and voluntarily madeand has been corroborated in material particulars.”16.In the instant case we do not find the retracted confession astrue and voluntary. Further the same has not been corroborated inmaterial particulars. The prosecution has failed to prove the caseagainst the appellant accused beyond reasonable doubt. We haveobserved in the foregoing paras as to how the prosecution has failedto establish the chain of circumstances. 17.In view of the above in our considered opinion theprosecution has failed to prove the case against the appellant accused beyond reasonable doubt. The prosecution has failed toestablish the chain of circumstances. We have observed in the on 27 01 2022 on 05 02 crapl702.14 25 foregoing paras that at the most suspicion is created against theappellant accused but the said suspicion however strong it may be cannot take the form of legal proof. The appellant accused is thusentitled for benefit of doubt. Hence we proceed to pass the followingorder: O R D E R I.Criminal appeal is hereby allowed. II.The impugned judgment and order of convictionpassed by the Additional Sessions Judge Ahmednagar in Sessions Case No. 713dated 24.04.2014 thereby convicting the appellant accused Avdhoot Vithal Ghate for the offencepunishable under Section 302 of I.P.C. and sentencinghim to suffer rigorous imprisonment for life is herebyquashed and set aside.III.The appellant accused Avdhoot Vithal Ghate is herebyacquitted of all the charges. The appellant accusedshall be set at free forthwith if not required inconnection with any other case. IV.The appellant accused Avdhoot Vithal Ghate shallexecute P.B. of Rs.15 000 with one surety of thelike amount to appear before the higher court as andwhen the notice is issued in respect of any appeal orpetition filed against the judgment of this Court. Suchbail bonds shall remain in force for a period of sixmonths from the date of its execution. on 27 01 2022 on 05 02 crapl702.14 26 V.Criminal Appeal is accordingly disposed of.18.We quantify the legal fees and expenses of the learnedcounsel Mr. S.B. Jadhav appointed to represent the cause of theappellant for Rs.15 000 to be paidby the High Court Legal Services Sub Committee Aurangabad. (V. K. JADHAV J.) rlj 

Summary: An accused charged of murder is entitled to benefit of doubt since suspicion, no matter how strong it may be, is not sufficient to be considered as a legal proof is upheld by the High Court of Judicature at Bombay Bench of Aurangabad through a learned division bench led by HONOURABLE MR. JUSTICE VK JADHAV and HONOURABLE MR. JUSTICE SK MORE in the case of Avdhoot Vithal Ghate v. State of Maharashtra (CRIMINAL APPEAL NO. 702 OF 2014). Brief facts of the case are that Ghate was arrested in 2012 for allegedly killing a co-worker by hitting his head with a stone during a drunken argument. After questioning sixteen witnesses in the trial, which lasted more than a year, Sessions Court found Ghate guilty and convicted and sentenced him to life imprisonment.The court overturned the conviction of the Sessions Court in Ahmednagar on an appeal by Avdhoot Ghate, a worker from Jalgaon. The appellants objected to the order, arguing that the prosecution’s case was based on circumstantial evidence and that there was no direct evidence against him to substantiate the chain of events. He further argued that the prosecution failed to provide its rationale. The respondent relied on Ghate’s confession statement recorded by the Special Jurisdiction Judge. The judge gave Ghate one day time to reconsider the confession, thus, deciding on the voluntary nature of the confession. This confession was not withdrawn during the framing of the charge and during the interrogation of the 16 prosecution witnesses.They also claimed that witnesses identified the suspect during identification. The Bombay High Court held that the evidence revealed that the prosecution’s case was based entirely on circumstantial evidence and that there was no direct evidence in the case.The Board did not find confession statement to be true and voluntary and was not supported by other materials.Suspicion is created against the appellant-defendant, but the suspicion, no matter how strong, cannot take the form of legal evidence. Hence, conviction was overturned on the grounds that the prosecution failed to prove the case beyond reasonable doubt. Click here to read the judgement