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2010 Supreme(Bom) 1106
In the High Court of Bombay at Aurangabad
THE HONOURABLE MR. JUSTICE S.B. DESHMUKH & THE HONOURABLE MR.
JUSTICE S.S. SHINDE
Lalsing Sutarya Pawara
Versus
The State of Maharashtra
CRIMINAL APPEAL NO.623 OF 2008
Decided on : 06-08-2010
For the Appellant :Smt. Maya Jamdade, (appointed) Advocate.
For the Respondent: V.D. Godbharle, A.P.P.
Headnote:Evidence Act, 1872 - Section 24 - Extra-judicial confession of accused-appellant - Effect of - Held - Appellant-accused admittedly confessed of crime to son of landlord (child witness) then to landlord and other witnesses - Evidence on record shows, witnesses quarrelling with accused after which he made confession - It could not be valid confession - Accused entitled to benefit of doubt. - Therefore, the entire prosecution story which is really based upon extra-judicial confession of the accused cannot be relied upon. As discussed herein above, the extra-judicial confession of the appellant/accused before P.Ws. 2, 5, 6 and 7 and other two - three persons was a result of coercion and pressure and insistence by 6 to 7 persons to confess the guilt. Such extra-judicial confession, which is obtained by coercion and quarrel, cannot form the basis of the conviction. The statement of P.W. 1 Medical Officer before the Court that the injuries sustained by the deceased Yadibal were not possible by said wooden log recovered from the accused further falsifies the prosecution case. Therefore taking into consideration the entire evidence on record, it appears that the same suffers from infirmities and no reliance can be placed on such evidence. Court also finds contradiction in the statement of the witnesses. Therefore, taking overall view of the matter, in the facts and circumstances of this case, Court is of the opinion that the benefit of doubt should go to the appellant/accused.
Indian Penal Code, 1860 - Sections 201 and 302 Conviction and sentence under Appeal against Death of lady last seen with accused As per police report, offence admitted by accused and body of deceased recovered at his instance before panchas Clothes of deceased also recovered at instance of accused Held Case built on circumstantial Evidence of accused being last seen with deceased two three days prior to death is of child witness aged 12 years No corroboration to it A gap of 4 days in lodging complaint Body of deceased found in decomposed state Evidence of Doctor no where indicated that death of deceased taken place prior to any particular days Where about at deceased before her death not within special knowledge of No case made out against accused Accused-appellant entitled to benefit of doubt. After taking into account the entire evidence brought on record by the prosecution, it emerges that the prosecution theory entirely depends upon three broad circumstances. It is not in dispute that whole prosecution story is based upon circumstantial evidence. There is no eye witness to the incident. In dealing with circumstantial evidence, this Court observed in the case of Dinesh Bhagwan Bharwad v. State of Maharashtra, 2010 (2) Bom CR (Cri) (AB) 53 : 2010 All MR (Cri) 2072, as below :
"5. The case in hand is based upon circumstantial evidence. In dealing with the circumstantial evidence, the Apex Court since 1952 till date has consistently held that the following conditions must be fulfilled before the case against an accused can be said to be full established on circumstantial evidence;
(i) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ’may be’ fully established,
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(iii) the circumstances should be of a conclusive nature and tendency,
(iv) they should exclude every possible hypothesis except the one to be proved, and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must that in all human probability the act must have been done by the accused.
In the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in 1985 (1) Bom CR 208 (SC) : 1984 DGLS (Soft) 173 : (1984) 4 SCC 166, the Apex Court has held that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
It is also to be borne in mind that the case in hand is a case of circumstantial evidence and if two views are possible on the evidence on record, one pointing to the guilt of the accused and other his innocence, the accused is entitled to have the benefit of one which is favourable to him.’’
The Honourable Supreme Court in case of Hanuman Govind Nargundkar and another v. State of M.P., reported in 1952 DGLS (Soft) 48 : AIR 1952 SC 3431, held that in dealing with circumstantial evidence, the Rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn, should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilty of the accused.
Therefore, keeping in mind the aforesaid principles laid down by the Apex Court while dealing with the circumstantial evidence, we proceed to examine the case in hand. The prosecution has claimed that P.W. 4 Sanju had seen the deceased Yadibai in the company of the accused Lalsing on 17th June, 2007 at S.T. Stand, Thalner. It is an admitted position that at the relevant time i.e. on the date of the incident, this witness was of 11 years age and when he deposed before the Court, his age was 12 years. On careful scrutiny of the evidence brought on record, we find that there is no corroboration to the evidence of this witness. Though the learned A.P.P. has tried to submit that the statement of P.W. 4 Sanju that he had last seen the deceased Yadibai in the company of accused is corroborated by the evidence of P.Ws. 2 and 5, in Court’s opinion, these witnesses have deposed before the Court only on the basis of the narration of P.W. 4 Sanju ie. hearsay evidence. There is no any other witness who has stated that he had also seen the deceased Yadibai in the company of the accused Lalsing. The Honourable Supreme Court, time and again, has laid down that the evidence of the child witness should be carefully evaluated and should find corroboration before being relied upon. The Supreme Court has taken this view in case of State of U.P. v. Ashok Dixit and another, reported in 2000 DGLS (Soft) 360 : 2000 DGLS (Cri) Soft 510 : (2000) 3 SCC 70. Yet in another reported judgment in the case of State of Rajasthan v. Om Prakash, reported in 2002 DGLS (Soft) 527 : 2002 DGLS (Cri) Soft 752 : (2002) 5 SCC 745, the Apex Court held that the testimony of the child witness needs to be carefully evaluated and must find adequate corroboration before it is relied upon. In case of Acharaparambath Pradeepan and another v. State of Kerala reported in 2006 DGLS (Soft) 1018 : (2006) 13 SCC 643, the Apex Court held that the evidence of child witness needs corroboration. The corroboration is more a rule of practical wisdom than of law. Therefore, what follows from the authoritative pronouncements of the Honourable Supreme Court, while evaluating the evidence of child witness, great care has to be taken and corroboration to his evidence is rule of prudence than of law. On careful scrutiny of the evidence brought on record by the prosecution, in the instant case, it appears to us that there is no corroboration to the evidence of P.W. 4 Sanju. Even if it is considered that the evidence of P.W. 4 Sanju is reliable, still question remains about the time gap between last seen together and the registration of offence. It is an admitted position that P.W. 4 Sanju had seen the deceased Yadibai in the company of accused on 17th June, 2007 at S.T. Stand, Thalner and offence was registered on 21st June, 2007. Therefore, there is considerable time gap of four days in registering the FIR. On careful scrutiny of the prosecution evidence, it appears to us that the prosecution has not brought on record anything to show that during the interregnum period i.e. from 17th June, 2007 to 21st June, 2007 there was no other possibility by which Yadibai died. In other words, the prosecution has not placed anything on record to rule out the possibility of death of Yadibai by some other reason from 17th to 21st June, 2007 i.e. from the date on which P.W. 4 Sanju saw the deceased last in the company of the accused till offence was registered.
Another point, which is necessary to be considered in this case is about the place where P.W. 4 Sanju had last seen the deceased Yadibai in the company of the accused. It is the prosecution case that P.W. 4 Sanju had seen the deceased in the company of accused at the S.T. Bus Stand, Thalner. At this juncture, it would be relevant to refer to the decision of the Apex Court in the case of State of Goa v. Sanjay Thakran and another, 2007 (1) Bom CR (Cri) 584 : 2007 DGLS (Soft) 238 : 2007 DGLS (Cri) Soft 539 : (2007) 3 SCC 755. In paragaph 34, the Apex Court held :
"34....... then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."
On careful scrutiny of the evidence brought on record by the prosecution, Court do not find that such evidence is brought on record by the prosecution to rule out the possibility of any other person meeting or approaching the deceased at the place of the incident or before commission of the crime, in the intervening period. The prosecution has also not demonstrated that the accused was in exclusive possession of the place where the incident occurred or where he was last seen together with the deceased and there was no possibility of any intrusion to that place by any third party. Therefore, in Court’s opinion, it will be unsafe to rely on the evidence brought on record by the prosecution on the point of deceased being last seen in the company of the accused.
The accused Lalsing in his statement recorded under Section 313 of Cr PC, has stated that Yadibai used to consume liquor and used to stay out of house for 8 to 10 days. P.W. 6 Khatik, whose evidence is at Exh. 29, in his cross-examination has stated that Yadibai used to stay outside house for 4 to 8 days. P.W. 2 Ramdas complainant in his deposition before the Court has specifically stated that in their community, women folk are in habit of consuming liquor. Therefore, the statement of the accused in reply to question No. 37 of his statement under Section 313 of Cr PC, finds corroboration from the evidence of P.W. 2 Ramdas complainant on the point of consumption of liquor and further on the point of habit of Yadibai to stay outside the house for days together from the evidence of P.W. 6. Even, according to the prosecution story, Yadibai was married with one Madhu Pawara 17 years prior to recording of the evidence of P.W. 2 Ramdas before the Court. The appellant/accused was not husband of the deceased Yadibai. Therefore, the accused had no control over the activities of the deceased. It is also relevant to mention at this juncture that the Medical Officer in his evidence has stated that the body of the deceased was totally decomposed and scalp was missing. The doctor, in his evidence, has no where indicated that the death of the deceased had taken place prior to any particular days. In view of the discussion herein above, it cannot be said that the where about of the deceased Yadibai before her death was within the special knowledge of the appellant/accused.
Shinde, J.
1. The appellant – accused herein was tried by the learned Ad-hoc Addl. Sessions Judge-3, Dhule in Sessions Case No.89 of 2007 for the offence punishable under Section 302 and 201 of I.P.C. The learned trial Court vide its judgment and order dated 18th March, 2008, convicted the appellant – accused for the offences punishable under Sections 302 and 201 of I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 2000/-, in default, to suffer further simple imprisonment for six months for offence punishable under Section 302 of I.P.C. The appellant was further sentenced to suffer R.I. for two years and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for one month for the offence punishable under Section 201 of I.P.C. It is against this judgment and order of conviction and sentence, the appellant – accused has preferred the present appeal.
2. Briefly stated, the prosecution case is, as under:
Ramdas Kisan Pawara, the informant is brother of the deceased Yadibai. Marriage of Yadibai with Madhu Pawara, resident of Moida, Tal. Sendhawa took place prior to 20 years. The accused Lalsing Sutarya was not doing any work. Therefore, his brother Istrya Pawara ousted him. Therefore, Lalsing had started residing in the house of Yadibai and Madhu Pawara. Two years prior to the incident, accused Lalsing took away Yadibai to unknown place. In spite of search, Yadibai and Lalsing were not found. Thereafter on 17.6.2007 in the evening, Yadibai along with the accused Lalsing were found by Sanju Raju Pawara near the S.T. Stand of Thalner. At that time, Yadibai had worn a yellow sari, and accused Lalsing had worn a white shirt and black pant. When Sanju Pawara returned to his house, he found that accused Lalsing alone had come at the house of his brother. Two days thereafter when Ravindra Pawara had been at the house of Sanju Pawara, he came to know that Yadibai and accused Lalsing were found to Sanju at Thalner S.T. Stand and thereafter the accused Lalsing alone had returned to the house. On 20.6.2007 in the evening Ravindra met Ramdas Pawara the brother of Yadibai and informed the fact about Yadibai and Lalsing, which was disclosed to him by Sanju. Thereafter, they went to the field where the accused Lalsing was doing work. They found the accused Lalsing alone there. The accused Lalsing told them that he along with Yadibai had gone to the market, but thereafter Yadibai alone went to unknown place and he does not know her whereabouts. Thereafter, the son of the landlord arrived there but Lalsing did not disclose the whereabouts of Yadibai to him. However, thereafter when the landlord himself arrived at the spot, the accused Lalsing disclosed to them that he had killed Yadibai and thrown her dead body at the corner of Hatkoi nallah. Thereafter, the police along with the accused Lalsing, complainant Ramdas and others, went to Hatkoi nallah where the accused Lalsing showed them the dead body of Yadibai. On the basis of the report lodged by Ramdas, Crime No.29/2007 came to be registered at Thalner police station. API Daga Khairnar took over and conducted the investigation. During the investigation, the accused gave a confession statement to hand over the wooden log by which he had beaten and killed Yadibai. Thereafter, the API Khairnar along with the panch witnesses, went to Hatkoi nallah, as led by the accused, and at that place the accused took out one wooden log from one tree, and the same was seized by the Investigating Officer. Thereafter, the I.O. and police went to the hut of the accused, as led by the accused, where the accused took out his shirt and pant from the said hut and handed over to the API Khairnar, who seized the same under panchanama. The seized articles were forwarded to the Chemical Analyzer. During the investigation it was disclosed that as Yadibai was consuming liquor the accused Lalsing was suspecting of her character and therefore, he killed her by beating wit
