Criminal Appeal No. 191 of 2021 · The High Court
Case Details
2024:BHC-AUG:26873-DB Cri.Appeal No.191/2021:: 1 ::CORRECTED JUDGMENTIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.191 OF 2021Dnyaneshwar s/o Vyankatrao KatekorAge 42 years, Occ. Labour,R/o Dnyaneshwar Nagar, L.I.C. Colony,Latur, Taluka Latur, District Latur… APPELLANT VERSUSThe State of Maharashtra through Shivaji Nagar Police Station, Latur, Taluka Latur, District Latur(Copy to be be served on PublicProsecutor, High Court of Judicature of Bombay, Bench at Aurangabad) … RESPONDENT.......Ms. Madhaveshwari Mhase, Advocate for appellant (amicus-curiae)Mrs. S.N. Deshmukh, A.P.P. for respondent....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 1st October, 2024.Date of pronouncing judgment : 21st October, 2024.JUDGMENT (PER R.G. AVACHAT, J.) :The appellant has been convicted for the offencepunishable under Section 302 of the Indian Penal Code andtherefore, sentenced to suffer imprisonment for life and to payfine of Rs.5000/- with default stipulation, vide judgment and
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Cri.Appeal No.191/2021:: 2 ::order dated 15/12/2020, passed by Sessions Judge, Latur inSessions Case, No.50/2019. The appellant is therefore beforeus in this appeal.2.Briefly stated, the case of the prosecution beforethe Trial Court was as follows :- Usha (deceased) was a real sister of theappellant’s wife. There was matrimonial discord betweenUsha and her husband. She was, therefore, living separatelyaway from her husband. For a few months, she had stayed atthe house of her parents. Then she took a premises on rentand started residing therein along with her son. The premisesshe was residing was in the nearby of the premises theappellant used to reside in. The appellant felt that moralconduct of Usha was not proper. He was, therefore, annoyedwith her. On 26 February 2019, he had a quarrel with his wife(P.W.1 Manisha) over behaviour of Usha. Usha was said tohave also come to the appellant’s house that time. There washeated exchange of words between the appellant and Usha.She then went away to her residence. Cri.Appeal No.191/2021:: 3 ::3.It was also the case of the prosecution that theappellant had quarrel with his wife. Thereafter he gave threatsof eliminating her. She too, therefore, left the appellant’shouse along with her son for the house of her parents, with anintention not to return. She, however, did not disclose thesame to the appellant. 4.The appellant would run a laundry. He left thehouse for the laundry in the morning on the following day i.e.on 27 February. By little past 2.00 p.m. the appellant allegedlykilled Usha (his sister-in-law) by inflicting number of blows withknife. He left the knife then and there. The offence took placeat Adarsh Nagar. Then, the appellant went to Shivaji NagarPolice Station, Latur. He confessed to the commission of thecrime. The Police Station Officer Sharad Lobhe (P.W.6) waspresent there. He asked the appellant to remain there. Hethen informed his higher ups. After a while, P.W.1 Manishaapproached the Police Station and lodged the F.I.R. (so called)Exh.21 against the appellant. A crime vide C.R. No.95/2019was, therefore, registered under Section 302 of the IndianPenal Code r/w Section 4/27 of the Arms Act. Cri.Appeal No.191/2021:: 4 ::5.The appellant was arrested. Inquest wasconducted. Crime scene panchanama was drawn. The knifecame to be seized from the crime scene. Autopsy on themortal remains of Usha was conducted. Clothes on the personof the appellant were taken charge of. Statements of thepersons acquainted with the facts and circumstances of thecase were recorded. C.A. reports were received. The seizedarticles were also sent for D.N.A. profiling. On completion ofthe investigation, a charge sheet was filed against theappellant.6.The Trial Court framed the Charge (Exh.13). Theappellant pleaded not guilty. His defence was of falseimplication. He put on record his side of the story (in writing) inresponse to the last question put to him in his examinationunder Section 313 of the Cr.P.C. According to him, hehappened to be in Adarsh Nagar Colony. He saw an unknownperson assaulting his sister-in-law (deceased). He, therefore,intervened to save her. The assailant too assaulted him withone blow of knife. In view of his intervention, clothes on hisperson got stained with the blood of the deceased. Accordingto him, he had been to the Police Station to report about thesaid incident. What he stated to the police was not reduced Cri.Appeal No.191/2021:: 5 ::into writing. Meanwhile, his wife came to the Police Stationand lodged a false report. His relations with his wife were notgood. She had lent a sum of Rs.1,30,000/- to a driver of aschool Van. 7.To bring home the charge, the prosecutionexamined 9 witnesses and produced in evidence certaindocuments. On appreciation of the same, the Trial Courtconvicted and consequently sentenced the appellant as statedabove. The appellant was acquitted of the charge for theoffence under the Arms Act.8.Heard. Learned Advocate appointed to representthe appellant would submit that the case was based oncircumstantial evidence. The offence took place in a broaddaylight. The investigating officer did not examine anyindependent witness. The crime scene is at a thicklypopulated area. Whatever was stated by the appellant to thepolice was in fact the F.I.R. The same has been suppressedfrom the Court. She relied on the judgment of the Apex Courtin case of Sevi & anr. Vs. State of T.N. & anr., AIR 1981 SC1230. The learned Advocate then submitted that, whateverwas allegedly disclosed by the appellant to the Medical Officer Cri.Appeal No.191/2021:: 6 ::at the time of his medical screening and even allegedly told tohis wife at the Police Station was not admissible in evidence.Merely because the blood stains of the deceased were foundon his person, would not be sufficient to convict the appellantfor a serious offence of murder. She adverted our attention tothe written submissions put up by the appellant before the TrialCourt. According to her, this is reason why his shirt wasstained with the blood of the deceased. She, therefore, urgedfor allowing the appeal.9.The learned A.P.P. would, on the other hand,submit that, P.W.1 Manisha, wife of the appellant had noreason to speak against her own husband keeping her maritallife at stake. The inconsistent suggestions were put to differentwitnesses regarding the wife to have lent a sum ofRs.1,30,000/- to a School Bus Driver and Rs.90,000/- to arickshaw driver. The appellant on his own goes to the PoliceStation and reports about the commission of the crime is aconduct inconsistent with his innocence. The appellant did notgive description of the alleged assailant. Adarsh Colony,where the crime took place is a vicinity whereat the appellanthad his laundry. His presence thereat at the relevant time was,therefore, but natural. The appellant admits his presence and Cri.Appeal No.191/2021:: 7 ::even blood stains of the deceased on his clothes. In the cross-examination of the Police Station Officer, he denied to havevisited the Police Station. A false defence goes a long way toreinforce the prosecution case. According to learned A.P.P.,the defence raised by the appellant was afterthought. Hecould have raised the same the moment he was arrested andproduced before the Magistrate. Even his bail application wassilent in that regard. Police machinery is an independent entity.It cannot be said to have any enmity with the appellant.According to learned A.P.P., the D.N.A. report goes a long wayto indicate involvement of the appellant in the crime inquestion. The weapon and mobile phone were found near thedead body. The learned A.P.P. ultimately urged for dismissalthe appeal.10.Considered the submissions advanced. Perusedthe evidence on record. Also perused the judgment impugnedherein.11.The case is based on circumstantial evidence. Thethe Apex Court in case of Sharad Birdichand Sarda Vs. Stateof Maharashtra, (1984) 4 SCC 116, has observed thus :- Cri.Appeal No.191/2021:: 8 ::“153.A close analysis of this decision would showthat the following conditions must be fulfilled beforea case against the accused can be said to be fullyestablished.(1)The circumstances from which the conclusionof guilt is to be drawn should be fully established,(2)The facts so established should be consistentonly with the hypothesis of the guilt of the accused,that is to say, they should not be explainable on anyother hypothesis except that the accused is guilty,(3)The circumstances should be of a conclusivenature and tendency,(4)They should exclude every possiblehypothesis except the one to be proved, and(5)There must be a chain of evidence socomplete as not to leave any reasonable ground forthe conclusion consistent with the innocence of theaccused and must show that in all human probabilitythe act must have been done by the accused.”12.In the case in hand, the prosecution appears tohave been relying on the following circumstances to bringhome the charge :(1)Homicidal death.(2)Motive.(3)Appellant visiting the Police Station on his own.(4)Clothes on the person of the appellant stained with bloodof the deceased, the knife too found to have stained withthe blood of the deceased and the appellant. Cri.Appeal No.191/2021:: 9 ::(5)Admitted presence of the appellant at the crime scene,his failure to disclose the description of the so calledassailant.(6)False defence raised by the appellant. 13.Let us advert to the evidence on record andappreciate the same.Deceased Usha was sister-in-law of the appellant(wife’s sister). She had deserted her husband and initiallyresided at the house of her parents. Later on, she took oneroom premise on rent and started residing in theneighbourhood of the appellant in L.I.C. Colony at Latur. Theappellant would run a laundry. Initially his laundry was atAdarsh Nagar Colony. His parents-in-law would reside atMantri Nagar.Homicidal Death :14.The incident took place little past 2.00 p.m. atAdarsh Nagar Colony on 27 February 2019. The fact thatUsha met with homicidal death is not in dispute. The postmortem examination report (Exh.61) indicates she hadsuffered 29 incised and stab injuries. It was a brutal murder. Cri.Appeal No.191/2021:: 10 ::We are short of words to condemn the same. As per theopinion of P.W.8 Dr. Dharmaraj who conducted autopsy, thedeceased died of “multiple injuries”. We, therefore, do notpropose to refer to the inquest panchanama (Exh.28) in detail.Motive :15.In a case based on circumstantial evidence, motiveplays an important role. However, failure to prove motive is notalways fatal to the prosecution to bring home the charge.Motive is a fact which moves the culprit to commit the crime.The same could be said to have been locked in his mind. Inthe case in hand, immoral conduct/ behaviour of the deceasedwas said to be a reason for the appellant to commit hermurder. Admittedly, the deceased was a sister of appellant’swife. The relation between him and her were not such thatwould lead him to commit her murder on such ground. P.W.1Manisha, wife of the appellant deposed that deceased Ushahad taken a room on rent in her neighbourhood, at L.I.C.Colony. On the previous day of the incident, a quarrel hadtaken place between her (P.W.1 Manisha) and the appellantover conduct of Usha. Usha had also come to her residencethat time. A quarrel ensued between appellant and her as well.She further testified that the appellant had asked his wife to Cri.Appeal No.191/2021:: 11 ::leave from that place as he wanted to kill Usha. By that timeor therebefore, Usha had left the appellant’s house. P.W.1Manisha further testified that, she, therefore, took her son withhim and left the house for her mother’s place.16.The evidence of P.W.1 Manisha further disclosedthat, on the following day i.e. on 27, by little past 2.00 p.m., shereceived phone call from her another sister (Babita), informingher that somebody killed Usha and her dead body was thrownat Adarsh Colony. She, therefore, rushed to Adarsh Colony.She saw Usha was lying in a pool of blood. A knife was alsolying nearby. She then went to the Shivaji Nagar PoliceStation. The appellant was present thereat. At that time, theappellant told her that he in fact wanted to kill her (P.W.1Manisha), but as he did not find her (P.W.1), therefore, hekilled Usha. According to her, the shirt on his person wasstained with blood. She lodged the report (Exh.21) against theappellant at Police Station.17.When P.W.1 Manisha testified in her examination-in-chief itself that the appellant wanted to kill her, but insteadhe found Usha at the place and therefore, he killed her,suggests that something odd relationship was there between Cri.Appeal No.191/2021:: 12 ::the appellant and his wife. There is no evidence at all toindicate behaviour of Usha was not good.18.In her cross-examination, she testified that, thelaundry shop of the appellant was initially situated at AdarshColony. He shifted his shop to Kanheri Road. At the time ofcommission of the crime, his shop was not in Adarsh Colony.She admitted that, his most of the customers were residents ofAdarsh Colony. The appellant would give home service to hiscustomers i.e. he would collect clothes from the houses of hiscustomers and after ironing them would deliver at the house ofhis respective customers. The same suggests he had everyreason to be at Adarsh Colony by the time the crime tookplace. She further testified that, on the day of the occurrence,her daughter was staying at the house of the appellant. Theappellant’s mobile phone was with her. When she reached thecrime scene, police and her relatives had already been there.She denied that the dead body had already been shifted to thehospital before her reaching the crime scene. According toher, the crime scene was shown by the appellant for drawing ofthe panchanama. The crime scene panchanama indicatesthat it was shown by P.W.1 herself and appellant was not Cri.Appeal No.191/2021:: 13 ::at all present at the time of drawing of the crime scenepanchanama.19.The incident took place in a thickly populated area.There was traffic on the road. She denied that the appellanthad been to the Police Station to inform about the incident.Rest of her examination-in-chief has been denied by puttingher suggestions in that regard in her cross-examination. 20.P.W.2 Vaishnavi is the daughter of the appellantand P.W.1 Manisha. According to her, about 5 to 6 days beforethe incident, quarrel used to take place between the appellantand her mother over the behaviour of Usha. She (P.W.2Vaishnavi) was a college student. According to her, shereturned to her residence by 1.00 p.m. on 26 February. Thattime the appellant was keeping silence and her mother (P.W.1Manisha) asked her to take lunch. Thereafter P.W.1 Manishawent to the house of her sister Usha. Then she took the lunch.She also then went to the house of Usha (deceased). P.W.1Manisha went on to testify that Usha told her that her mother(P.W.1 Manisha) was going to separate from her husband(appellant) and she (P.W.2) should decide as to with whom she Cri.Appeal No.191/2021:: 14 ::would prefer to stay/ reside. Thereafter her mother (P.W.1Manisha) went to her parent’s house. She talked to hermother on phone. The mother told her not to relate anything tothe appellant (This indicates all was not well between theappellant and his wife).21.P.W.2 Vaishnavi further testified that, on thefollowing day the appellant left the house by 11.00 in themorning for laundry shop. On her request, the appellant kepthis cell phone with her. He asked her to call the adjoining shopowner to his laundry shop in case of urgency. Since theappellant did not return by 1.00 p.m., she made a call to thatshop owner. She learnt from him the appellant to have beennot in the laundry. He, however, told her that the laundry wasopen. thereafter her mother called her on cell phone andinformed the appellant to have committed murder of Usha.She, therefore, went to the crime scene. 22.During her cross-examination, she was confrontedwith her police statement to bring on record certain omissionsamounting to contradictions. Para 5 of her cross-examinationis, therefore, reproduced below as it is :
Legal Reasoning
Cri.Appeal No.191/2021:: 15 ::“I had stated to the police that on account of mymaternal aunt there were quarrels between mymother and father. I had stated to the police thatmy mother had gone to reside with her parents on26/2/2019. I had stated to the police that myfather had not come home at about 1.00 p.m. Icannot assign any reason as to why police did notrecord all above facts in my statement.”23.She denied that she and her brother would go toschool in a school van. She claimed ignorance about hermother to have paid Rs.1,30,000/- to a driver of School Van.She further claimed ignorance as to quarrel to have beentaking place between the appellant and his wife on account ofthe said fact. She, however, admitted that once her motherhad consumed sleeping pills and therefore she was admitted inSunrise Hospital. According to her, she used to behave as perthe directions of her mother. She admitted that after thequarrel, her mother (P.W.1 Manisha) was not ready to stay withthe appellant. Her further cross-examination is in the nature ofsuggestions denying her evidence in examination-in-chief.24.P.W.3 Shriniwas is a witness to the crime scenepanchanama (Exh.46). He was a Peon serving with PanchayatSamiti, Zilla Parishad, Latur. He accompanied the police ofShivaji Nagar Police Station to Adarsh Colony. At the spot a Cri.Appeal No.191/2021:: 16 ::lady was lying in injured condition. The cell phone and a knifewere lying by her side. He referred to the crime scenepanchanama (Exh.46). According to him, the police seized thecell phone and the knife. He identified those articles.25.P.W.3 Shriniwas further testified that, on the sameday by 7.30 p.m. police seized clothes on the person of theappellant under the panchanama (Exh.47) drawn in hispresence. (The learned A.P.P. heavily relied on this pieceof evidence.)26.During his cross-examination, he testified that hesigned the panchanama after having read the same. Thepanchanama is silent to state therein that a lady was lying in apool of blood. He admitted that the police had not affixedlabels bearing signatures of himself and another panch, on thearticles seized from the crime scene.27.He gave a vital admission stating to have signedboth, the spot panchanama and the seizure panchanama ofclothes at one and the same time. Meaning thereby, he signedboth the panchanamas either at the police station or at thecrime scene. Cri.Appeal No.191/2021:: 17 :: His evidence is silent to state that the crime scenepanchanama was shown by the appellant. since thepanchanama has been admitted in evidence, the readingthereof indicates that the crime scene was shown to the policeby P.W.1 Manisha. The panchanama is conspicuously silent tostate therein that a lady in injured state was seen lying at thecrime scene. The deceased/ injured might have been rushedto the hospital before drawing of the panchanama. But thecase of the prosecution is all along the same that the crimescene panchanama was drawn while the deceased was lyingat the crime scene itself.28.Another panchanama (Exh.47) indicates that awhite shirt, a banian, a Jean pant and motorbike came to beseized from the appellant during 7.30 to 8.00 p.m. on the sameday. It is true that P.W.1 Manisha was not suggestedduring her cross-examination that she had lent a sum ofRs.1,30,000/- and Rs.90,000/- to a school bus driver and anautorickshaw driver respectively. Cri.Appeal No.191/2021:: 18 ::29.P.W.4 Nilawati is a mother-in-law of the appellant.She testified that on 26 February i.e. on the preceding day ofthe incident, there was a quarrel between the appellant and hiswife. The quarrel was over domestic reason. Thereafter shewent to the house of the appellant along with Usha. Shereasoned with the appellant. The appellant, however, statedher that he would not keep Manisha (P.W.1) alive. (Here themotive changed). Thereafter she and Usha went to theirrespective places. After a while, she learnt Usha to have beenkilled.30.During her cross-examination, she denied P.W.1Manisha had lent Rs.90,000/- to an auto rickshaw driver andon that count there used to be quarrel between both, appellantand Manisha (P.W.1). She, however, admitted that Manisha(P.W.1) had consumed sleeping pills and was admitted toSunrise Hospital. When she and Usha had been to theappellant’s house on 26th, Vaishnavi (P.W.2) was presentthere, but Manisha was not.31.P.W.7 Karan is a son of deceased Usha. Hetestified that, about 5 days before the incident, a quarrel hadtaken place between his mother Usha and the appellant. The Cri.Appeal No.191/2021:: 19 ::rest of his evidence is not material since the case is based oncircumstantial evidence. His evidence only indicates that thedeceased had telephoned him by 2.00 p.m. that she would bereaching house shortly and thereafter they would take mealtogether. The mother, however, did not return.32.P.W.6 Sharad was an Assistant Sub-Inspector,Shivaji Nagar Police station at the relevant time. His evidencedisclosed that on 27 February 2019, he was Station DiaryIncharge from 2.00 p.m. to 8.00 p.m. According to him, by2.30 p.m., the appellant came to the Police Station. His righthand was injured and blood was oozing from it. His shirt wasalso stained with blood. The appellant told him to have killedhis sister-in-law with multiple stabs on account of suspectingher character. He further testified that the appellant alsoinformed him the place whereat he did the crime. It was nearthe house of one Bora at Adarsh Colony. Thereafter he tookthe appellant to the Police Inspector Shri Nikam. ThereafterShri Nikam left to the spot of the incident along with theappellant. he took the entry thereof in the station diary as well.He identified the appellant before the Court. Cri.Appeal No.191/2021:: 20 ::33.During his cross-examination, he deposed that hisstatement was recorded. He admitted to have not informedthe police in his statement that the appellant had told him tohave suspected character of his sister-in-law (deceased). Hetook entry of the incident narrated by the appellant. The rest ofhis cross-examination is regarding denial of his evidence inexamination-in-chief. He was specifically suggested that theappellant had not come to the Police Station for lodging of thereport about having committed murder of his sister-in-law, towhich he denied. 34.Whatever has been allegedly stated by theappellant to the Police Station Officer amounting to confessionis inadmissible in evidence. Section 25 of the Evidence Actreads thus :“25.Confession to police officer not to beproved :- No confession made to a police officer,shall be proved as against a person accused of anyoffence.” The Trial Court has rightly relied on the Apex Courtjudgment in case of Aghnoo Nagesia Vs. State of Bihar (AIR1967 SC 119). Cri.Appeal No.191/2021:: 21 ::35.P.W.5 Dr. Dayanand was a Medical Officer, CivilHospital, Latur. He had examined the appellant by 9.00 p.m.on 27 February 2019. He noticed following two injuries on theperson of the appellant :1)Incised wound over right hand index finger middle 1/3rdpart palmer aspect 2.5 x 3 x 0.3 cm. 2)Incised wound over right forearm extensor aspect middle1/3rd part 3 x 0.2 x 0.1 cm.He issued the medical certificate (Exh.53). Theprosecution relies on the remark given in the medicalcertificate indicating the history given by the appellant asfollows :Patient given alleged history of accidental injurycaused while assaulting someone. Surgeonopinion taken. Treated on OPD basis. 36.P.W.9 Vilas did the investigation of the crime. Hetestified that, after taking over the investigation, he deputedA.P.I. Nikam to the crime scene A.P.I. Nikam has not beenexamined). Evidence of P.W.9 Vilas is silent to state that theappellant had accompanied A.P.I. Nikam to point out the crimescene. He claimed to have conducted the inquest Cri.Appeal No.191/2021:: 22 ::panchanama (Exh.28), panchanama of seizure of clothes ofthe appellant (Exh.47). he then took charge of the clothes ofthe deceased delivered by the Medical Officer. Panchanamato that effect is at Exh.50. Then he seized the cell phonedelivered by the appellant’s wife, under panchanama (Exh.49).Then he forwarded all the articles to CA’s office through PoliceConstable Kandhare. He referred to the forwarding letter(Exh.64). The Police Constable who carried the seizedmuddemal to Forensic Science Laboratory has not beenexamined.37.The C.A. reports have been admitted in evidencevide Exhibits 23 to 25 and 65.38.The aforesaid is the evidence in the case. It is truethat, normally a wife would not have a reason to falselyimplicate her husband in a serious crime like murder, but theevidence on record indicates that all was not well between theappellant and his wife. In the past, the wife (P.W.1 Manisha)had consumed sleeping pills and therefore, she was admittedto Sunrise Hospital. The same suggests that she hadattempted to commit suicide. There is further evidence toshow that in the morning of the fateful day, she left the Cri.Appeal No.191/2021:: 23 ::appellant’s house along with her son with a view not to returnback to her matrimonial house. The evidence of P.W.2Vaishnavi (daughter of the appellant and P.W.1 Manisha) eventestified that Usha (deceased) had informed her on that daythat her mother had decided to separately reside from herhusband and she asked her to take a decision with whom shewould prefer to reside. According to the appellant, his wifeP.W.1 Manisha had lent Rs.1,30,000/- to a school bus driver. Itwas a suggestion given to the daughter (P.W.2 Vaishnavi). Sheclaimed ignorance about it. Then a suggestion was given tothe appellant’s mother-in-law that P.W.1 Manisha (wife of theappellant) had lent Rs.90,000/- to one autorickshaw driver.The learned A.P.P. meant to submit that the appellant had alaundry business and was financially poor. We do not haveevidence on record to indicate that he was financially poor andhaving no ability to his wife to lend the amount. Thesuggestions were given as regards lending of two differentsums to different persons and not two different sums to oneperson so as to disbelieve the appellant’s suggestions or relyon the submission of the learned A.P.P. The appellant mightnot have been financially sound. The prosecution, however,has not brought on record any reason as to why did the Cri.Appeal No.191/2021:: 24 ::appellant’s wife had consumed sleeping pills in the past (anattempt to commit suicide). A motive for commission ofpresent crime is said to be immoral/ no good behaviour ofUsha (deceased). Usha was a sister-in-law of the appellant.This is somewhat distant relation. No good behaviour of asister-in-law may not constitute a sufficient motive for a personto commit her murder since there is nothing to indicate him tohave so caring relation with his sister-in-law. There is also noevidence to indicate that she was really of not good behaviour,although she was not staying with her husband. On thecontrary, the evidence of P.W.1 Manisha indicates that, theappellant had said her that he wanted to kill her (P.W.1). Samewas her case when she visited the Police Station to lodge thereport and that time the appellant allegedly said that he wantedto kill her, but she was not found. What was the reasontherefor is not forthcoming. Whatever P.W.1 Manisha hastestified in her examination-in-chief that the appellant told herto have killed her sister would be inadmissible as extra judicialconfession made as he was in the custody of police. Section26 of the Indian Evidence Act reads as under :“26.Confession by accused while in custody ofpolice not to be proved against him:- No confessionmade by any person whilst he is in the custody of a Cri.Appeal No.191/2021:: 25 ::police officer, unless it be made in the immediatepresence of a Magistrate, shall be proved as againstsuch person. 39.The incident took place in a broad daylight by littlepast 2.00 p.m. at Adarsh Colony. The residence of theappellant was in L.I.C. Colony. His laundry shop was atKanheri. As per the evidence of P.W. Vaishnavi, the laundryshop was open by 1.00 p.m., but appellant was not there.Admittedly, the appellant would give home service. Since hehad his laundry initially at Adarsh Nagar Colony, admittedly hismost of the customers were from that area. He being at thatarea at the relevant time, would, therefore, be not unnatural.There is also nothing to indicate that he was making search forthe victim to kill her. On the contrary, admittedly his most ofthe customers were from Adarsh Nagar Colony. He wouldcollect clothes from his customers from that area and afterironing them at his shop, would deliver the clothes at theresidence of his respective customers. The crime scene isright in front of residential house in Adarsh Nagar Colony.Admittedly, Usha (deceased) would reside in L.I.C. Colony.Her parents would reside at Mantri Nagar. At the cost ofrepetition, it is stated that there is no evidence to indicate theappellant was making search for Usha to eliminate her. Cri.Appeal No.191/2021:: 26 ::40.Admittedly, the appellant went to the Police Stationby 3.00 p.m. P.W.6 Sharad was on duty as a Station DiaryIncharge. According to him, the appellant related him to havekilled his sister-in-law with multiple stabs. Shirt on the personof the appellant stained with blood was seized. Thus,whatever was said to have been disclosed by the appellant toP.W.6 Sharad was in fact a First Information Report. The TrialCourt has rightly held accordingly. The Trial Court, however,relied on the oral evidence of P.W.6 Sharad and P.W.8 Dr.Dharmaraj to observe the appellant’s visit to the Police Stationas his conduct inconsistent with his innocence. On the basisof what such inference could be drawn is not known. We haveto read what was stated by the appellant to the Police Officerat Polcie Station in toto. Nothing can be picked and choose.Section 154 of the Cr.P.C. pertains to information in cognizablecases. For better appreciation, the same is reproducedbelow :154. Information in cognzable cases:- (1) Every information relating to the commissionof a cognizable offence, if given orally to anofficer in charge of a police station, shall bereduced to writing by him or under his direction,and be read over to the informant; and every suchinformation, whether given in writing or reduced to Cri.Appeal No.191/2021:: 27 ::writing as aforesaid, shall be signed by the persongiving it, and the substance thereof shall be enteredin a book to be kept by such officer in such form asthe State Government may prescribe in thisbehalf.”Reading of the aforesaid provision would indicatethat, whatever was stated by the appellant should have beenreduced into writing either by P.W.6 Sharad or P.W.9 Vilas.The appellant’s signature should have been obtainedtherebelow. In the case in hand, there is no compliance ofSection 154 at all. Even whatever was stated by the appellantwas said to have been recorded in the station diary entry. Thesaid station diary entry has also not been placed on record.According to the appellant, he had been to the Police Stationto inform about having seen an unknown person assaulting hissister-in-law. He had intervened to save her. In the process,he received two blows on his hand. According to him, his shirtthereby got stained with blood of the deceased. These weresuggestions given to P.W.1 Manisha. His case was put up toP.W.1 Manisha in cross-examination. The same has also beenplaced on record in defence statement. The Trial Court hasobserved the appellant to have not graced the dock (notexamined himself as a witness). We find the Trial Court lostsight of Section 315 of the Cr.P.C., which reads thus : Cri.Appeal No.191/2021:: 28 ::315. Accused person to be competent witness :-(1)Any person accused of an offence before aCriminal Court shall be a competent witness for thedefence and may give evidence on oath in disproofof the charges made against him or any personcharged together with him at the same trial :Provided that :-a)he shall not be called as a witness except onhis own request in writing ; b)his failure to give evidence shall not be madethe subject of any comment by any of the parties orthe Court or give rise to any presumption againsthimself or any person charged toegther with him atthe same trial.”41.It is true that, law has now been developed. If anyincriminating circumstance is appearing against the appellant,he is expected to explain the same. His keeping silent orcoming with a false defence fills in missing link and can beused in support of the prosecution, but in no case the appellantcan be called upon to prove his innocence. Needless tomention, the appellant can bring home his defence bypreponderance of probabilities.42.The crime scene panchanama indicates that it wasdrawn on the pointing of by P.W.1 Manisha and not theappellant. The same would not be a discovery under Section Cri.Appeal No.191/2021:: 29 ::27 of the Evidence Act. P.W.6 Sharad although stated that theappellant was sent along with Shri Nikam to the crime scene,the same found to be untrue since admittedly the appellantwas not present while the crime scene panchanama wasdrawn. The panch witness testified that he signed both thepanchanamas namely crime scene panchanama and thepanchanama of seizure of clothes of the appellant at one andthe same time. 43.On arrest of the appellant, he was medicallyexamined by P.W.5 Dr. Dayanand. He noticed following twoinjuries on his person.1)Incised wound over right hand index finger palmer aspectin middle 1/3rd part, measuring 2.5 x 0.3 x 0.3 cm. 2)Incised wound over right forearm extensor aspect inmiddle 1/3rd part, measuring 3 x 0.2 x 0.1 cm. The matter appearing in the remarks column ininjury certificate (Exh.53) is a history given by the appellantwould be inadmissible by virtue of Section 26 of the evidenceAct since he was produced before the Medical Officer by thePolice Station Officer for his medical examination. On thecontrary, this injury certificate may help the appellant to Cri.Appeal No.191/2021:: 30 ::reinforce his defence that he suffered two injuries to his handwhen intervened to save his sister-in-law. This might be thereason for the CA report/ DNA report indicating the knife andshirt of the appellant to have borne bloods of both, theappellant and the deceased. While scrutinizing the evidenceon record, and the questions put to the appellant in hisstatement under section 313 of the Cr.P.C., none of the C.A.report was put to him as an incriminating circumstance. Bethat as it may. Since his defence is that while he had been toAdarsh Nagar Colony, he had seen unknown personassaulting his sister-in-law, he intervened to save her. In theprocess he too suffered injuries to his hand. His clothes gotstained with the blood of the deceased. Thus, the appellantcould be said to have brought home his defence based onpreponderance of probabilities, leave apart the prosecution tohave failed to unerringly established the circumstancespointing towards the guilt of the accused, excluding possibilityof someone else to have committed the offence.44.So far as regards contention of the learned A.P.P.that the appellant has come up with his defence first timebefore the Trial Court is concerned, we must state that materialin that regard such as his bail application with contents therein Cri.Appeal No.191/2021:: 31 ::or submissions of his Advocate during remand report were notpart of the evidence and if the same was to be treated asincriminating material, the same should have first taken placeof an evidence and put to him in his examination under Section313 of the Cr.P.C. to solicit his explanation.45.Before parting, we appreciate the assistancerendered by Ms. Madhaveshwari Mhase, learned Advocateappointed for the appellant. In the aforesaid factual matrix, theTrial Court ought not to have convicted the appellant. We arenot at one with the findings recorded by the Trial Court. Theappellant is entitled to benefit of doubt. In the result, theappeal succeeds. Hence the order :O R D E R(i)The Criminal Appeal is allowed.(ii)Conviction of the appellant for the offence punishableunder Section 302 of the Indian Penal Code and theconsequential sentence, recorded by Sessions Judge, Latur inSessions Case, No.50/2019 vide judgment and order dated15/12/2020 is hereby set aside. The appellant is acquitted ofthe offence punishable under Section 302 of the Indian Penal Cri.Appeal No.191/2021:: 32 ::Code. The appellant be set at liberty forthwith if not required inany other case. Fine amount, if paid, be refunded to him.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)fmp/-