High Court

Legal Reasoning

Cri Appeal No.784 of 2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO.784 OF 2019 Kailas s/o. Ananda Narke,Age : 42 years, Occ.Nil,r/o. Kasari, Tq. Shirur,Dist. Pune..AppellantVs.The State of Maharashtra,Through Police Inspector,Belwandi Police Station, Tq.Shrigonda,Dist. Ahmednagar..Respondent----Mrs.S.K.Doke and Mr.K.R.Doke, Advocates for appellantMr.N.R.Dayma, APP for respondent ---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. RESERVED ON :JUNE 13, 2024 PRONOUNCED ON: JUNE 19, 2024 JUDGMENT (PER R.G.AVACHAT, J.) :- The challenge in this appeal is to the judgment and orderdated 05.07.2019, passed by learned Addl. Sessions Judge,Ahmednagar, in Sessions Case No.156 of 2017. Vide the impugnedorder, the appellant has been convicted for the offences punishableunder Sections 302 and 201 of Indian Penal Code and therefore,sentenced to suffer imprisonment for life and R.I. for two years and topay fine of Rs.5,000 and Rs.1,000/-, respectively, with defaultstipulation. 2Cri Appeal No.784 of 20192.The prosecution case before the trial court, in short, wasas under:-Savita (deceased) was wife of the appellant. Themarriage between the appellant and deceased Savita took place on24.05.1997. The couple was blessed with two daughters - Vrushali(PW 7) and Rupali. Both were grown up daughters. One wasstudying in 12th standard, while the other was in 10th standard. Theappellant was in transport business. The appellant developed extra-marital relationship with a woman. There, therefore, used to befrequent quarrels between the appellant and Savita. Quarrel ensuedbetween the two over the same issue on 09.05.2017. When bothVrushali and Rupali went to attend the tuition classes, the appellanttook Savita under the pretext of taking her with him to Akola. Hetook her on motorbike from the place of his residence at villageKasari-Narkewadi, Tq. Shirur to Talegaon-Dhamdhere. He then tookher with him in the truck from village Talegaon-Dhamdhere. On theway, near Chikhali Ghat, he strangled her with rope. She died. Hethen threw her dead body out of the truck, under the bridge of Shivriver and went to Akola.3.Someone noticed the dead body of a woman indecomposed condition. The place whereat the dead body was found, 3Cri Appeal No.784 of 2019was within the limits of Belwandi Police Station. An intimationregarding finding of the dead body was given to police. The policeofficer rushed to the place. As the dead body was in highlydecomposed condition, spot-inquest (under panchnama Exh.19) wasconducted. The dead body was buried. On the other hand, theappellant had, on 12.05.2017, lodged a missing-person's report. Thephotographs of the dead body were shown to the appellant and hisbrother-in-law, PW 1 Sandeep (brother of deceased Savita) beforeidentifying the dead body. He also identified the photographs of thearticles shown to them on Whatsapp. Therefore, the dead body wasexhumed. It was subjected to post-mortem examination. The postmortem report (Exh.17) indicates that it was the case ofstrangulation. Vrushali (PW 7) and Rupali had informed theirmaternal uncle, PW 1 – Sandeep, that on the given day, there wasquarrel between the appellant and their mother and since then, theydisappeared.4.PW 1 – Sandeep (brother-in-law of appellant) lodged theFirst Information Report (Exh.15), alleging the appellant to havekilled Savita. Based on the same, crime vide C.R. No.I-40 of 2017,came to be registered. The appellant was arrested. Duringinvestigation, the appellant was found to have had made extra- 4Cri Appeal No.784 of 2019judicial confession to his friend PW 11 – Sachin. The seized articleswere sent to the Chemical Analyst. Statements of the personsacquainted with the facts and circumstances of the case wererecorded. Upon completion of the investigation, the appellant wasproceeded against by filing charge-sheet before the court of JudicialMagistrate, First Class, Shrigonda, Dist. Ahmednagar. LearnedJudicial Magistrate, First Class, Shrigonda, committed the case to theCourt of Session. The case, in turn, came to be assigned to learnedAddl. Sessions Judge, Ahmednagar (Trial Court).5.The trial court framed Charge (Exh.4) for the offencespunishable under Sections 302 and 201 of Indian Penal Code. Theappellant pleaded not guilty and claimed to be tried. His defencewas of false implication. To bring home the Charge, the prosecutionexamined fourteen witnesses and produced in evidence certaindocuments before the trial court. The trial court, on appreciation ofthe evidence in the case, convicted and consequentially, sentencedthe appellant, as stated above.6.Heard learned counsel for the parties.7.Learned counsel for the appellant would submit that thecase is based on circumstantial evidence. She relied on the 5Cri Appeal No.784 of 2019judgment of the Apex Court in the case of Sharad BirdhichandSarda Vs. State of Maharashtra, (1984) 4 SCC 116. Accordingto her, none of the circumstances on the basis of which the chargewas sought to be proved, has been conclusively established.According to her, Vrushali (PW 7), daughter of the appellant and thedeceased, did not stand by the prosecution. There was no evidenceof last seen together. The prosecution is relying on the extra-judicialconfession, allegedly made by the appellant to PW 11 – Sachin. Shewould further submit that the extra-judicial confession is a very weakpiece of evidence. No conviction could be based solely on the extra-judicial confession. She relied on the following set of authorities :-(i)State of Maharashtra Vs. Uttam Sakharam Kamble, 2020 DGLS (Bom.) 1399;(ii)H.S.Pradeep Vs. State of Karnataka and anr., 2015 DGLS (Kar.) 1146;(iii)Balwinder Singh Vs. State of Punjab, AIR 1996 SC 607;(iv)Padala Veera Reddy Vs. State of A.P. and others, AIR 1990 SC 79;(v)Suvarna Shankar Yadav Vs. State of Karnataka, AIR Online 2018 Kar 2488;(vi)Moorthy Vs. State of Tamil Nadu; AIR Online2023 SC 645 6Cri Appeal No.784 of 2019Learned counsel, ultimately, urged for allowing of the appeal withacquittal of the appellant.8.Learned APP would, on the other hand, submit thatconviction can be sustained solely based on the extra-judicialconfession, provided that it is proved and found to be true and madevoluntarily. He relied on the Apex Court judgment in the case ofGura Singh Vs. State of Rajasthan, AIR 2001 SC 330. He thenadverted to our attention to the crime-scene panchnama (Exh.17).According to him, the rope with which the appellant strangled hiswife was found. The appellant made disclosure statement pointingout his truck. According to him, the trial court has passed a well-reasoned judgment and therefore, no interference therewith iswarranted.9.Considered the submissions advanced. Perused theevidence on record. Let us advert thereto and appreciate the same.Before taking up the said exercise, it is reiterated that the case isbased on circumstantial evidence. In the case of SharadBirdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC116, the Apex Court has observed thus :-“153. A close analysis of this decision would showthat the following conditions must be fulfilled before 7Cri Appeal No.784 of 2019a case against an 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 possible hypothesisexcept the one to be proved, and(5)There must be a chain of evidence so completeas not to leave any reasonable ground for theconclusion consistent with the innocence of theaccused and must show that in all human probabilitythe act must have been done by the accused.”10.Although the prosecution examined fourteen witnesses, afew witnesses are only relevant. However, a brief reference to theevidence of each and every witnesses would be made.11.Admittedly, Savita had married the appellant on24.05.1997. The couple was blessed with two daughters – Vrushali(PW 7) and Rupali. The family would reside at village Kasari-Narkewadi, Tq. Shirur, Dist. Pune. The house of the parents-in-law ofthe appellant was at village Talegaon-Dhamdhere, Tq. Shirur. Thedistance between Kasari-Narkewadi and Talegaon-Dhamdhere wasabout 5 kms. Vrushali (PW 7) and Rupali were aged 17 years and 16 8Cri Appeal No.784 of 2019years, respectively, at the relevant time. Both were taking educationin 12th and 10th standard. They would visit village Talegaon-Dhamdhere for tuition classes. The appellant was in transportbusiness. He owned a truck. As such, he used to be away fromhome.12.PW 2 – Balasaheb is a witness to the spot whereat thedead body of Savita was found. The spot panchnama (Exh.17)indicates that it was a place under the bridge on Shiv river, withinthe limits of village Chikhali. The dead body was in highlydecomposed condition. PW 3 – Sanjay is witness to the inquestpanchnama (Exh.19). It appears that since the identity of the deadbody had not come to light, same was buried.13.On the other hand, the appellant had lodge a missing-person's report at Belwandi Police Station. A phone-call was receivedby him from Belwandi Police Station, informing that the dead body ofa lady was noticed near Belwandi bridge. PW 1 – Sandeep, brother ofdeceased – Savita, with some of his friends, therefore, accompaniedthe appellant to the police station. Earlier, the police had shownthem a photo of the dead body and her articles, on cellphone. PW 1– Sandeep had identified it to be the dead body of his sister Savita.It is in his (PW 1-Sandeep) evidence that on 12.05.2017, Vrushali 9Cri Appeal No.784 of 2019(PW 7) had informed him that there was quarrel between theappellant and Savita over the appellant's extra-marital relationship.He along with his friends, therefore, went to the house of theappellant to find both appellant and Savita were not home. They,therefore, took search for both of them. The appellant returnedhome in the evening. He lodged the missing-person's report withShikrapur Police Station. When PW 1 – Sandeep identified the deadbody to be that of his sister, same was exhumed. Needless tomention that the dead body was buried since it was in highlydecomposed condition and its identity was not established. 14.PW 4 – Dr. Manohar conducted autopsy. In his opinion,there was ligature mark on the neck of the deceased with ligaturematerial. Viscera and articles were preserved. After the C.A. Reportrelating to the viscera was received, he concluded it to be the caseof strangulation (post-mortem report Exh.21). In his final opinionand further going through the C.A report, he gave the cause of deathof the deceased - Savita as “death due to ligature strangulation”. Assuch, the fact that the deceased met with homicidal death has beenproved. 10Cri Appeal No.784 of 201915.The prosecution relied on the following circumstances:-(i)Motive :- Extra-marital relationship of the appellant;(ii)Quarrel took place between the appellant and deceased Savita on 12.05.2017;(iii)Both of them, after the quarrel, found to have beendisappeared;(iv)Extra-judicial confession made by the appellantMotive:-16.It is in the evidence of PW 1 – Sandeep that the appellanthad extra-marital relationship with one lady (name withheld).According to him, there used to be frequent quarrels between theappellant and the deceased over the same. It is further in hisevidence that on 12.05.2017, Vrushali (PW 7), daughter of theappellant and the deceased, had informed him on phone that therewas quarrel between the appellant and his wife. He, therefore,accompanied by his friends went to the appellant's house. Bothappellant and Savita were not present there. They, therefore, tooksearch of both of them. It is further in his evidence that in theevening of the very day, the appellant returned home. According tohim, he had gone to Akola. The appellant had lodged a missing-person's report with Shikrapur Police Station. 11Cri Appeal No.784 of 201917.In the cross-examination of PW 1 – Sandeep, it has beenbrought on record that he was not knowing about the incident, if any,happened at the house of the appellant at Kasari-Narkewadi. It is inhis evidence that both Vrushali (PW 7) and Rupali used to visitTalegaon-Dhamdhere to attend the tuition classes. It is further in hisevidence that he had no occasion to visit Kasari-Narkewadi before12.05.2017. He met the appellant on 13.05.2017. He could not tellthat Savita was missing for 2-3 days before 12.05.2017. He,however, denied to have lodged the FIR against the appellant onsuspicion. Since the case is based on circumstantial evidence andPW 1 – Sandeep being not knowing of extra-marital relationship ofthe appellant, his evidence would be relevant only for settingcriminal law into motion.18.The material evidence is that of PW 7 – Vrushali.Unfortunately, she did not stand by the prosecution. It is in herevidence that it was ninth day of the month of May. On that day, theappellant had left the house for village Yavat to load the goods in histruck. Thereafter, she and Rupali went to Talegaon-Dhamdhere toattend the tuition classes. Both she and Rupali returned home withinan hour. On the given day, the appellant did not return home. Shedenied the appellant to have had come home on motorbike. She 12Cri Appeal No.784 of 2019denied that there was quarrel between him and her mother Savitaand thereafter, both appellant and his wife left the home together(last seen together).19.Since Vrushali did not stand by the prosecution, she wassubjected to searching cross-examination. She was confronted withher police statement. Her attention was adverted to certain part ofher statement recorded under Section 161 of Cr.P.C. She disownedto have stated said matter. She was suggested that the appellantreturned home on 12.05.2017. She admitted the same. It is furtherin her evidence that both Rupali and herself were residing along withtheir paternal grand-parents at Talegaon-Dhamdhere. True, PW 7 –Vrushali being daughter residing with the parents of the appellant,did not stand by the prosecution. The fact remains that the evidenceas regards the circumstances, i.e. the appellant's extra-maritalrelationship; there used to be frequent quarrels between him and hiswife; on the given day too, there was quarrel and then, he took hiswife with him on motorbike; and thereafter, the dead body ofdeceased Savita was found, could not be established, so as to callupon the appellant to explain what he did/or happened with his wifepost he took her with him. 13Cri Appeal No.784 of 201920.According to the prosecution, the appellant madedisclosure statement pointing out his truck. We fail to understandhow said disclosure statement (Exh.75) is relevant to further theprosecution case, as there is nothing to indicate any nexus betweenthe offence and the truck pointed out by the appellant pursuant tohis disclosure statement.Extra-judicial confession:-21.PW 11 – Sachin testified that he owned a truck. He wasin transport business. He used to transport the products of PravinMasale. He knew the appellant since both of them were in the samebusiness. It is further in his evidence that on 09.05.2017, he hadgone to Yawat for loading the good in his truck. The appellant hadalso come to Yawat on the given day. After loading his truck, theappellant asked him to take some advance money from petrol-pumpon his behalf. The appellant told him that he wanted to go his homeand he will collect said amount from him (PW 11-Sachin) duringjourney. Accordingly, the appellant left for his home. Thereafter,PW11 – Sachin collected advance amount from petrol-pump andstarted proceeding to Akola. On the next day, at 10.00 a.m., hereached Akola. The appellant came there. He gave him money.PW11 – Sachin then found the appellant in frightened condition. He 14Cri Appeal No.784 of 2019inquired with him as to why he (appellant) was frightened. Theappellant replied to have committed murder of his wife. Said witnessstated to have not asked the appellant as to why did he kill his wife.He denied the appellant to have told him about the quarrel betweenhim and his wife being the reason for committing her murder. Saidwitness was declared to have not been supporting the prosecution.Learned APP in-charge of the case, therefore, put PW 11 – Sachinleading questions, whereby, it has been brought on record that theappellant had stated him that on 09.05.2017, he (appellant) went toTalegaon-Dhamdhere with his truck and thereafter, went to his homeon motorcycle. At that time, his wife – Savita told him not tocontinue with the illicit relationship and on that count, quarrel tookplace between the two. The appellant abused and beat Savita as hewas annoyed. Savita was also angry. The appellant pacified heranger and under some pretext, took her to Talegaon-Dhamdhere onmotorcycle. Thereafter, the appellant took Savita with him in thetruck. They started proceeding along Ahmednagar – Daund road. Onthe night of 10.05.2017, at about 02.00 a.m, after crossing ChikhaliGhat, quarrel again took place between them. The appellant, inanger, parked his truck near the bridge over Shiv river andcommitted murder of his wife Savita by strangulating her with ropeand threw her corpse from the truck. It appears that the said 15Cri Appeal No.784 of 2019statement was part of PW 11 – Sachin's police statement. It wasmarked as “A”. He admitted that he had cordial relations with theappellant.22.PW 11 – Sachin was then subjected to cross-examinationby the defence Advocate. He was confronted with his statement(Exh.63) under Section 164 of Cr.P.C. He admitted the appellant tohave told him on phone, that his wife was missing from his house.He was asked, as to whether he did inquire with the the appellant,as to why he committed murder of his wife. He answered saidquestion as he thought that he (appellant) might have consumedliquor. 23.The evidence of the other witnesses is not of anyassistance to the prosecution. PW 12 – Sanjay is the photographerwho snapped the photo of the crime-scene and the dead body. PW 8– Bandu is panch to the disclosure statement, pursuant to which theappellant pointed out the truck. Same has no relevance underSection 27 of the Evidence Act. PW 9 - Sambhaji is panch witness tothe panchnama (Exh.53), relating to seizure of clothes and articles ofthe deceased. PW 10 – Changdeo was entrusted with the inquiry ofthe A.D. No.27/2017. It is he who did the inquest panchnama(Exh.19) and drawn the spot panchnama (Exh.17). PW 13 – Sachin 16Cri Appeal No.784 of 2019Wangade is the Investigating Officer. As such, the case is solelybased on the extra-judicial confession made by the appellant to PW11. In the catena of authorities, it has been observed that the extra-judicial evidence is a weak piece of evidence. It is true that in thecase of Gura Singh (supra), it has been observed that convictioncan be based on extra-judicial confession, provided the same isproved or found to be true. In the case in hand, PW 11 – Sachin towhom the appellant is said to have made extra-judicial confession isresident of the place whereat the in-laws of the appellant wouldreside. It appears that the Investigating Officer did not make anyinvestigation as to whether really both appellant and PW 11 – Sachinwere close friends and whether both of them had been to Yawat onthe given day, to load the goods namely, Pravin Masale fortransporting it to Akola. It is not known as why the appellantrequired advance money and that too from the petrol-pump owner.There is no other evidence to indicate the truthfulness of the extra-judicial confession made by the appellant, meaning thereby theprosecution would be under obligation to show that the extra-judicialconfession made by the appellant was true. To prove the same,there has to be, at least, some corroborative evidence to indicate theappellant's involvement in the crime in question. Except the socalled extra-judicial confession made by the appellant to PW 11 – 17Cri Appeal No.784 of 2019Sachin, there is nothing on record to indicate that same was, in fact,made and true as well. The Investigating Officer was expected tomake investigation to prove that the appellant had really made suchextra-judicial confession and it was true, more so, when PW 11 –Sachin thought the appellant to have made such statement underinfluence of alcohol. It was the prosecution itself, which declaredPW11 – Sachin to have not been supporting the prosecution.Learned APP in-charge of the case, therefore, put him leadingquestions and cross-examined him. Same suggests that theprosecution found him to be not reliable witness. There is nothing toindicate that the said witness had shared said fact to anyone else orapproached the police station to report the same. 24.The facts in the case of Gura Singh (supra), on whichlearned APP relied on, indicate that there was some corroborativeevidence in the nature of disclosure statement made by theappellant therein, pursuant to which incriminating articles wererecovered. There were blood stains on the clothes so recovered.The person to whom the extra-judicial confession was made by theappellant therein, himself had lodged the FIR against the appellanttherein. As such, on the basis of the facts and circumstances in thecase of Gura Singh (supra), the Apex Court upheld the convictionand consequential sentence imposed by the trial court and 18Cri Appeal No.784 of 2019confirmed by the High Court. It is reiterated that the facts in the saidcase would indicate that there was some evidence corroborating theextra-judicial confession made by the appellant therein. So is not thecase herein. One to him the appellant is said to have made extra-judicial confession was declared hostile. True, the term “hostile” isnot there in any Act. The fact remains that the prosecution, i.e.learned APP in-charge of the case, put said witness leading questionsin his cross-examination. There being no other evidence incorroboration of the extra-judicial confession said to have been madeby the appellant to PW 11 – Sachin, in our view, the conviction andconsequential sentence recorded by the trial court warrantsinterference.25.In the result, the appeal succeeds. Hence, the followingorder:-(i)The appeal is allowed.(ii)The impugned order dated 05.07.2019, passed bylearned Addl. Sessions Judge, Ahmednagar, in Sessions Case No.156of 2017, convicting and sentencing the appellant for the offencespunishable under Sections 302 and 201 of Indian Penal Code, is setaside. The appellant stands acquitted thereof. 19Cri Appeal No.784 of 2019(iii)The appellant be released forthwith, if not required in anyother case.(iv)Fine amount paid by the appellant, if any, be refunded tohim. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] …........ KBP