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2012 Supreme(Bom) 1088
In the High Court of Bombay at Goa
A.P. LAVANDE & U.V. BAKRE, JJ.
Gurudas Gaonkar, S/o Mahadev
Versus
State (Through P. P.)
Criminal Appeal No. 44 OF 2011
Decided on : 21-06-2012
For the Appellants:Rajneesh Naik, Advocate.
For the Respondent: Mrs. Sarojini Sardinha, Additional Public Prosecutor.
Headnote:EVIDENCE ACT, 1872 - Section 26 - Custody - Meaning thereof - Held - It need not mean custody after formal arrest. Relying upon Section 25 of the Indian Evidence Act. The statement was made by the accused while he was in the custody of the police and in the presence of the police and, therefore, the same is not admissible. First of all, the statement made by the accused, as above, cannot be termed as confession. A confession must either admit in terms the offence, or, at any rate substantially all the facts which constitute the offence. The statement made by the accused can, however, be said to be an admission of a grave incriminating fact. Here, the same was not made to a police officer but to a Sub-Divisional Magistrate (PW 3), who has stated in the cross-examination that no police person was present when the disclosure was made to him by the accused. Section 26 of the Indian Evidence Act provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. In the present case, there was no offence registered against the accused as on 10.3.2006. The offence was registered on 11.3.2006 and the accused was formally arrested on 12.3.2006. Be that as it may, the word "custody" has not been defined in the Evidence Act. It need not mean custody after formal arrest. Admittedly, the accused was with the police as from 9.3.2006 and hence can be said to be in custody of police as on 10.3.2006. However, since the statement was made by the accused to PW 3 who was a Magistrate, even if it was confession, it was admissible. As that statement is a non- confessional statement, it would be admissible under Section 21 of the Evidence Act, as it is relevant as an admission.
Indian Penal Code, 1860 - Sections 302 and 201 - Appeal against conviction. Held - Death was homicide - Accused had ill-feeling against his wife as such motive is proved - Recovery of article at instance of accused proved - Circumstantial evidence is sufficient to prove that the accused caused death of deceased - There is no evidence to hold that the accused had intention to cause death of deceased - Accused convicted under Section 304(II).
EVIDENCE ACT, 1872 - Sections 21, 25 and 26 - Statement of accused - Whether confession or not. - Held - Confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence - Statement was made before the Magistrate when there no police person was present - Since the statement was made by accused to Magistrate even if it was confession, it was admissible - Statement made by the accused can be said to be admission of grave incriminating fact - Statement of accused cannot be termed as confession - As that statement is a non-confessional statement it would be admissible under Section 21.
U.V. Bakre, J.
This appeal is directed against the judgment and order dated 7th/8th April, 2008, passed by the learned Sessions Judge, South Goa, Margao (Trial Judge), in Sessions Case No. 19/2006. The appellant, accused in the said case, was tried for offences punishable under Sections 302 and 201 of the Indian Penal Code (I.P.C.). He has been convicted for committing both the offences. In respect of the offence under Section 302 of I.P.C., the accused has been sentenced to undergo life imprisonment and also to pay a fine of Rs.5000/-, in default to undergo rigorous imprisonment for further period of three months, whereas, in respect of the offence under Section 201 of I.P.C., he has been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/-, in default to undergo one month rigorous imprisonment. The substantive sentences have been ordered to run concurrently. The appellant shall hereinafter be referred to as the accused.
2. Case of the prosecution, in short, was that on 8/3/2006 between 16.00 hours to 17.00 hours, at Haldikune Netravali, Sanguem, theaccused committed murder of his wife Mrs. Prema Gaonkar, by assaulting her with a danda on her head and thereafter buried her in order to destroy the evidence.
3. Facts, revealed from the case papers, are as under:-
“On 9/3/2006, Santosh Gaonkar, Police Constable B.N. 5604 (P.W. 8) was on duty at Vichundrem Outpost along with Police Constables namely Devendra Pagui (P.W. 10) and Shri Ghadi, when three persons including the accused came there at about 23.20 hours and the accused stated that his wife had committed suicide by hanging in the jungle area. The matter was reported to the Officer-in-charge of Sanguem Police Station namely P. I. Ramesh Gaonkar (P.W. 22). Thereafter, under instructions of P.W. 22, Mr. Pagui (P.W. 10) and Ghadi went to the spot along with the accused and upon being asked to show the spot, the accused pointed out to some trees. However, later on in the torch light, they could see some mud dug out and therefore, suspicion was raised over the accused. The accused was taken to Sanguem Police Station and the matter was informed to P.W. 22 who, on 10/3/2006, recorded the report of the accused, which is at Exhibit 87 and registered U.D. no. 3/2006 under Section 174 of the Code of Criminal Procedure (Cr. P.C) and requested Sub Divisional Magistrate of Quepem namely Mr. Pratapsingh Kankar (P.W. 3) to conduct the Inquest panchanama. P.W. 22 then went to the spot at Sanvri road, Netravali and commenced the panchanama of the scene of occurrence, which is dated 10/3/2006 in the presence of two panchas, namely Damodar Gawli ( P.W. 9) and Mrs. Antoneta Mascarenhas. In the meantime, P.W. 3 arrived at the spot due to which the panchanama of the scene of occurrence was kept pending. After conducting preliminary inquiry with villagers and also inquires with the accused, P.W. 3 drew the Exhume-cum-Inquest panchanama in the presence of the same panchas. The Inquest panchanama is at Exhibit 25. The panchanama of the scene of occurrence and sketch were then completed and the same are at Exhibit 55 colly. Photographs were clicked by Mr. Mohammed Zalim Shaik (P.W. 14) and these photographs are at Exhibits 33 colly. and 70 colly. The dead body, which was exhumed from the pit, and identified to be of the wife of the accused, was referred by P.W. 3 to Hospicio Hospital for postmortem examination. Dr. Avinash Pujari (P.W. 4) conducted the post-mortem examination on the dead body of the wife of the accused on 11/3/2006 and the Autopsy report is at Exhibit 42. The clothes which were on the person of the deceased were attached at Hospicio Hospital, Margao, Morgue under the panchanama which is at Exhibit 61 and Shri Ramesh Sanguekar (P.w. 11) acted as one of the panch witnesses to the same. After receipt of the Autopsy report from P.W. 22, P.W. 3 lodged report dated 11/3/2006 against the accused, which is at Exhibit 28, upon which Crime No. 9/06
