2006 Supreme(Bom) 187

IN THE HIGH COURT OF BOMBAY
Barku Bhavrao Bhaskar
Versus
State
Decided on, FEBRUARY 10, 2006

Headnote:Evidence Act, 1872 - Section 3 - Evidence of "last seen together" - Must be nearest to the time of death and need not necessarily be nearest to the time of discovery. - No doubt, last seen together is a very strong circumstance that suggests the accused-companion being the killer of the victim by inference. The evidence regarding last seen together must be nearest to the time of death and need not necessarily be nearest to the time of discovery of the dead body. Even a large time gap between the point of time of last seen together and the time of death may not be fatal in each and every case. For example, if assailant departs with victim from place ’A’ by informing that victim is being taken to a distant place for a tour and returns alone, in this case, there may be a large time gap between last seen together and the death. Length of time gap, however, would not be detrimental to prosecution merits. Even the smallest time gap may not serve the purpose of the prosecution, if there is somebody who had seen the victim alive subsequent to the point of time of last seen together and without being in company with the accused or suspect. Minimum time gap between last seen and the death gives credibility to the evidence of the witnesses who claim to have last seen the victim and the accused together. Time gap between last seen and discovery of dead body is immaterial. By larger time gap between last seen and death also the evidence of witnesses need not be discarded in the light of the illustration and the evidence of last seen together c an be worthless, only if, defence creates a probability of somebody having seen the victim alive, after the point of time about which the witnesses speak of last seen together.

       Evidence Act, 1872 - Section 8 - Motive - Absence of motive would not cause failure of the prosecution if involvement of the accused in the crime can otherwise be established. - In the cases based on circumstantial evidence, motive can provide one of the links in the chain of circumstances. But absence of motive would not cause failure of the prosecution, if involvement of the accused in the crime can otherwise be established. No doubt, some amount due, appears to be inadequate as motive for murder. But motive, which is internal state of mind, is always in the hidden compartment of the mind of the culprit and hence, it is not possible to perceive the same in each and every case. That is why, although proof of motive on record strengthens the prosecution case, absence of such proof is not sufficient to throw the prosecution case overboard. How much sharp would be the reaction of an individual to any situation, cannot be judged by any safe parameters. In a give case, petty dues may be sufficient motive for a culprit to be violent. In another case, in spite of more serious reasons, some individual may continue to be calm and composed.

       Evidence Act, 1872 - Section 24 - Confession - Merely because the accused was serving under the complainant as a labourer the confession made by him cannot be said to have been made to a person in authority as contemplated by Section 24. - The threat, inducement or promise, in order to make the confession irrelevant or inadmissible, must flow from a person in authority and the Court should be in a position to form an opinion that the accused has made the confession on the supposition that, he would avoid any evil of a temporal nature in reference to the proceedings against him. Threat, inducement or promise contemplated by Section 24 has also to be one, relating to the charge against the accused person. In the matter at hands, promise that he will not be beaten, was made to the accused by the complainant, his colleague and his brother. The extra judicial confession was made in the absence of police and before taking the accused to the police station. It was not from a person in authority, either relating to the investigation, or trial of the accused. Merely because the accused was serving under the complainant as a labourer, the confession cannot be said have been made to a person in authority as contemplated by Section 24 of the Evidence Act. Even the person in authority must be an authority in reference the charge that maker of confession was expected to face. The complainant and his brother, in that sense were not the persons in authority.

       Evidence Act, 1872 - Section 27 - Evidence of discovery - Two witnesses deceased about the discovery of dead body at the instance of information given by the accused i.e. complainant and Investigating Officer - Merely because a formal memorandum of the statement of accused is not reduced in writing or because a panchanama of the discovery is not reduced to writing that by itself will not be sufficient to discredit or disbelieve the witnesses. - Neither a memorandum of the statement of the accused is recorded nor a panchanama regarding the manner in which the accused led the police party to the location of the dead body is reduced to writing. Two witnesses deposed about the discovery of dead body at the instance of information given by the accused i.e. the complainant and API. Both of them claim that after recording of complaint, police party along with 7-8 others and the accused proceeded by police jeep where the spot and the dead body, covered by stones, was pointed out by the accused.

       Held, that merely because a formal memorandum of the statement of accused is not reduced to writing or because a panchanama of the discovery is not reduced to writing, that by itself will not be sufficient to discredit or disbelieve the Investigating Officer and the father of the victim. Section 27 makes the statements of the accused persons, even if confessional and whilst in police custody to a police officer, admissible in evidence because of confirmation of truthfulness of the information by the discovery i.e. doctrine of confirmation by subsequent events. Section 27 does not lay down any procedure regarding the manner in which the statement made by the accused person to the police officer should be recorded or that the proceedings of the discovery and the manner in which the accused led the police party to the location where the concealed article is discovered should be reduced to writing. Writings regarding the events those take place during the course of investigation, which are commonly termed as "panchanamas " is a matter of convention. The convention is established as a result of necessity. A police officer may investigate more than one cases at each station not only during his entire tenure but even during a single day. He is expected to render an accurate account of such events when the matter enters, trial and he is required to step into the witness box. These writings titled as "memoranda or panchanamas " serve the purpose of enabling the police officers or to that extent all witnesses, who participate in the investigation; to refresh their memory by referring to the contents of the writing, which are reduced to writing when the things are fresh in the memory, either of the Investigating Officer or the person who is summoned to witness the event.