2001 Supreme(SC) 1666

2001(8) Supreme 709
SUPREME COURT OF INDIA
(From Bombay High Court)
M.B. Shah and R.P. Sethi, JJ.
Prakash Dhawal Khairnar (Patil) -Appellant
versus
State of Maharashtra -Respondent
Criminal Appeal Nos. 238-239 of 2001
With
Criminal Appeal No. 489 of 2001
Decided on 12-12-2001
Counsel for the Parties :
For the Appellant : Shirish Gupta, Senior Advocate, Manoj S. Mohite, Mrs. R. Sabarwal, Sunil K. Verma, Ms. Shasmita S. Kaushik and S.M. Jadhav, Advocates.
For the Respondent : V.B. Joshi, S.S. Shinde, Ravindra K. Adsure, Advocate for S.V. Deshpande, Advocate/Advocates.

VERY IMPORTANT POINT
While conviction of Prakash Patil (A1) for the offence punishable u/s. 302 Indian Penal Code and u/s. 25(1)(b)(a) of Arms Act is maintainable on the confession of his son (A2) coupled with other circumstantial evidence, the award of death sentence cannot be confirmed as his offence is not a rarest of rare case - Despite murder of whole family of 5, death sentence is substituted by life imprisonment of at least 20 years.

Headnote:(i) Indian Penal Code, 1860-Section 302 and Section 25(1)(b)(a) of Arms Act-Conviction of appellant-Prakash A1 for murdering his brother, his wife, his three children and mother-Conviction based on confession of his own son (A2) and circumstantial evidence of motive i.e. enmity on partition matter, recovery of blood stained shirt and pant from the house of his brother-in-law, unexplained injury on surface of shoulder of A1 in statement u/s. 313 Cr. P.C.-Accused was last seen leaving Malegaon after the incident-Appeal against-Whether there is any flaw in conviction? (No)-Each circumstance analysed in detail (see paras 10 to 15).

       Held : In our view, both the courts have rightly relied upon the circumstantial evidence for connecting A-1 with the crime, which is sufficient to connect the accused with the crime. The circumstances, except the confessional statement of A-2 Sandeep, even though the learned counsel for the appellant has taken us through the relevant evidence, we do not think that the appreciation of evidence by courts below is in any way erroneous. (Para 9)

       (ii) Criminal Procedure Code, 1973-Section 164-Confession of accused 2-Evidence Act, 1872-Section 30-High Court giving benefit of doubt to A2 in regard to conspiracy for murders but convicted A1 on the basis of A2 s confession and circumstantial evidence-Whether A2 s confession was admissible in evidence? (Yes)-Result A1 is liable for conviction u/s. 302 IPC and Section 25(1)(b)(a) of Arms Act.

       Held : Firstly, the confessional statement of A-2 recorded under Section 164 Cr.P.C. by the Magistrate would be admissible in evidence as accused Nos. 1 and 2 were jointly tried. The said statement is proved by examining the Magistrate who recorded the same - (Re. Ghulam Hussain vs. The King [(1950) 52 BLR 508] Only question would be - to what extent it can be used against A-1. In the present case, conviction of A-1 for the offence for which he is charged is based on circumstantial evidence. Conviction of A-2 for the offence punishable under Section 201 is also based on circumstantial evidence and after taking into consideration confessional statement. The circumstantial evidence which gets corroboration from the confessional statement of A-2 for connecting A-1 with the crime could be relied upon. This Court in Aghnoo Nagesia vs. State of Bihar [(1966) 1 SCR 134], held that confessional statement includes not only admission of the offence but also other admissions of incriminating facts relevant to the offence such as motive, preparation, absence of provocation, concealment of weapon, and subsequent conduct which throw light upon the gravity of the offence and the intention and knowledge of the accused. The Court also observed that each and every admission of incriminating fact contained in the confessional statement is part of the confession. Further, explanation to Section 30 of the Evidence Act clarifies that offence as used in the Section includes the abetment of, or attempt to commit, the offence. Dealing with the scope of Section 30 this Court in State vs. Nalini [(1999) 5 SCC 253] has held that a plain, reading thereof discloses that when the following conditions exist, namely, (i) more persons than one are being tried jointly; (ii) the joint trial of the persons is for the same offence; (iii) a confession is made by one of such persons (who are being tried jointly for the same offence); (iv) such a confession affects the maker as well as such persons (who are being tried jointly for the same offence), and (v) such a confession is proved in court, the court may take into consideration such confession against the maker thereof as well as against such persons (who are being jointly tried for the same offence). The Court further observed thus:-

       "In Kashmira Singh vs. State of MP [1952 SCR 526] this Court approved the principles laid down by the Privy Council in Bhuboni Sahu vs. R. [AIR 1949 PC 257] and observed :

       "But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."

       In this case, the High Court has not relied upon the confessional statement as a substantive piece of evidence to convict accused No. 1. It has been used for lending assurance to the proved circumstances. The High Court held that the proved circumstances would not involve accused no. 2 for the offence punishable under Section 302 IPC and the circumstantial evidence does not establish that there was any common intention or conspiracy between the father and the son to commit the offence. However, the Court held that Sandeep had seen his father committing multiple murders and when he destroyed the evidence relating to those murders by throwing the articles from Mhatre bridge on two separate occasions, it was absolutely clear that he did this with primary object of saving his father and, therefore, he would be liable to be convicted for the offence under Section 201 IPC. Hence, it cannot be said that confessional statement is wholly exculpatory. In this view of the matter, we would briefly refer to the confessional statement of A-2 which lends assurance to the circumstantial evidence. Firstly, the important circumstance - that after the incident accused Nos. 1 and 2 left Malegaon at about 5.00 a.m. in the taxi of PW15 Uttam Thethe. Secondly, A-2 threw plastic bag containing blood stained T-shirt, handkerchief, gloves, pair of white sleepers, six empty cartridges in Mhatre Bridge, Pune and on the basis of information given by him the said bag was recovered near Mhatre Bridge, Pune. From the bag, the articles mentioned above were found. In the confessional statement, it is stated that at the time of incident his father has put on T-shirt which was hanging on the wooden peg in the bungalow. On the T-shirt blood stains were found of group A and O . Thirdly, A2 also produced a torch and a blood stained school bag and currency to the tune of Rs. 7100/-, which is proved and gets corroboration from the confessional statement. Fourthly, it is proved that A-2 came to the house of deceased on 23.10.1996 and left in the early morning without informing anyone by keeping a chit, which was placed on the door. Coupled with the aforesaid circumstance, it is to be borne in mind that at 2.30 a.m. (night-time) he facilitated A-1 Prakash Patil to enter the house through the kitchen gate without informing anyone. It appears that he was waiting for his father to come at night time. He did not make any attempt to save the deceased, who were closely related to him nor raised any hue and cry when he heard fire shots. From his confessional statement it is clear that after committing the five murders, when his father was removing all the evidence from the scene of offence, like wiping the gun with a handkerchief, putting the cartridge belt in the Godrej cupboard, then going to the devghar and going to WC, he (Sandip Patil) had ample opportunity of running out of the house or making hue and cry or informing someone, but he did not do so. On the contrary, he preferred to wait and watch his father wiping all the clues from the scene and thereafter left the premises along with his father. Hence, it would be totally wrong to say that his statement is exculpatory and the High Court has rightly referred to inculpatory part and has used the same for lending assurance to the circumstantial evidence brought on record. In this view of the matter, we confirm the conviction of the accused Prakash Patil for the offence punishable under Section 302 IPC and under Section 25(1)(b)(a) of the Arms Act. (Paras 17 to 20)

       (iii) Murder of whole family on dispute over partition by Fire Arm-Question of sentence-Courts below granting death sentence-Whether be confirmed? (No)-Death sentence altered to life imprisonment atleast for 20 years as the case does not come under rarest of the rare case (see paras 21 to 23).

       (iv) Appeal Against Acquittal of A2 of main offence of conspiracy for murder with A1-Whether be accepted? (No)-It is dismissed. (Para 24)