2014 Supreme(Bom) 83

In the High Court of Bombay at Nagpur
A.B. CHAUDHARI & Z.A. HAQ, JJ.
State of Maharashtra & Others
Versus
Ajay Dayaram Gopnarayan & Others
Criminal Confirmation Case No. 1 of 2013 & Criminal Appeal No.225 of 2013
Decided on: 17-01-2014

Headnote:Criminal Procedure Code, 1973 - Section 294 - List of documents under. - Documents not included inlist envisaged under Section 294(1) of CrPC, cannot be put forth for admission or denial. - Section 294, CrPC was enacted with a view that the prosecution evidence may be shortened and the prosecution may not be required to prove the documents which are admitted by accused persons. The intention of the Legislature was not to bind the accused persons or force him to admit or deny the genuineness of the documents produced by the prosecution that is why the Court would not be justified in passing the order directing accused to admit or deny the documents, obviously since it would violate Article 20(3) of the Constitution of India. Be that as it may, the question that arises for our consideration relates to the procedure, which must be followed while insisting for admission or denial of the genuineness of the documents. Section 294(1) in particular providing for insertion of the description of the document in the list to be prepared either by the prosecution or the accused for calling upon either party to admit or deny the genuineness of the documents must be held to be mandatory. In other words, for making use of or for asking for effective operation of Section 294(1), (2) or (3), the particulars of such documents must be included in the list. In other words, the documents which are not included in the list contemplated by Section 294(1) cannot be put forth for admission or denial nor can be exhibited or read in evidence without proof as contemplated by Section 294(3) of the CrPC. This is to prevent either the prosecution or the accused to push a document for clandestinely exhibiting it by admission and there read in evidence. That under Section 294(1), (2) and (3), only the documents included in the list either by the prosecution or the accused and submitted for admission or denial can be processed for putting the sanctity as legal evidence contemplated by Section 294(3) and not the documents which are not included in the list by either of the party.

       Let us now turn to the case at hand. The case at hand is typical example of such lapse on the part of the Presiding Officer as well as ministerial staff of the Sessions Court. The documents Exh.87 and 88 were never included in the list Exh.22 submitted by the prosecution under Section 294(1) of the CrPC that was given to the accused for admission or denial. Court have carefully perused the list, which was prepared and submitted to the Court by the prosecution with a notice to the accused for admission and denial under Section 294, CrPC but that the documents Exh.87 and 88 (two pages) are not to be found in the list. Perusal of the record clearly shows that the Presiding Officer or the ministerial staff of the Court exhibited Exhs. 87 and 88 without verifying whether Exh. 87 and 88 were included in the list flied by the prosecution merely because counsel for the accused admitted Exhs. 87 and 88. Thus, there is a blatant violation of the aforesaid procedure elucidated by us above. It is said, the prosecution is a ‘handmaid‘ of justice. That is not always so, as in the instant case, the provisions of Section 294 (1) and (2) being mandatory.

       Criminal Procedure Code, 1973 - Section 294 - Criminal Manual, Chapter VI, Para 32 - Admission of document. - Since document not included in list under Section 294(1), hence admission of document without formal proof under format prescribed in criminal manual, is deprecated.

       EVIDENCE ACT, 1872 - Section 3 - Appreciation of evidence of an eye- witness. - Evidence of witness that he saw both accused persons entering house of deceased and thereafter deceased found brutally murdered, is reliable. - The cross-examination does not show any discrepancy to demolish the aforesaid portion which is very material. On the contrary, minor omissions as to the exact time of return at home from his college or about he being a patient of diabetes cannot be the reason for rejecting the sworn testimony which is otherwise believable. Merely because he is a neighbour, he cannot be disbelieved. On the contrary, he is the most natural witness who happened to come to his home at the relevant time. The evidence that he had come back to his house in the afternoon at about 4.00 pm and saw both the accused persons going on Luna and then parking the same in front of the house of PW 1-’S’ and then entering the house by pressing the door bell and the deceased opening the door both of them entering the house through the door was all seen by this witness and that part is not an omission as contended by counsel for the respondents-accused persons. It is only about the time of the omissions that has been brought but that is also not correct since the time mentioned is 4.00 pm for return at the house and that he had come for collecting some important documents which is also not an omission as Court have checked the same from the record. There is whatsoever no explanation in the statement under Section 313, CrPC by both the accused persons as to why they entered the house by pressing doorbell because within a short time thereafter deceased was found brutally murdered.

       EVIDENCE ACT, 1872 - Section 27 - Evidence of recovery. - Where articles discovered at instance of accused brought to police station therefore it cannot be said that accused was not taken to spot where discovery was made under recovery panchanama. - The evidence of this independent witness has not been shattered and on the contrary, the clothes discovered by him were seized by police. The submission made by counsel for the accused that the process of sealing was done at Gadge Nagar Police Station and, therefore, this Panchanama should be disbelieved does not appeal to us. Court have carefully examined the submissions made by the counsel for respondents-accused persons. Court found that all the articles which were found upon discovery made by accused persons, were brought to the Police Station and documents were scribed and sealing was done. That may be an irregularity error but then Court do not think that the same should be taken as if the documents were manipulated and sealing was not done. Court do not find force in the said submission. Upon reading the recovery panchanama Exh. 58 read with Exh. 69 carefully the same stolen Luna was attached from the house of his sister Sau. Suryakanta Sawal situated at Naya Akola where accused No. 1 ‘A‘ took them upon making discovery memorandum statement.

       Court has perused the cross-examination of this witness and Court do not find any infirmity in the evidence of this witness who has deposed honestly on the discovery of various articles from accused No. 2 ‘N‘ though the Panchanama was ultimately prepared at the Police Station but then Court have already found that only the documentation was done at the police station which does not mean that the accused were not taken to the spot where the discovery was made under the recovery Panchanama.

       Indian Penal Code, 1860 - Sections 300 and 392 - Conviction for robbery and murder. - Since chain of circumstances pointing towards guilt of accused is complete hence conviction of accused persons just and proper.

       Indian Penal Code, 1860 - Sections 300 and 392 - Capital sentence for offences under. - In absence of any material on record to show that accused not having any criminal antecedents, would be a menace to society, accused sentenced to minimum sentence of 30 years with remission. - The case of the prosecution based on the evidence displayed, established the commission of offences by the accused Nos. 1 and 2, without any iota of doubt; that still the case at hand does not fall within the four corners of the principle of the ’rarest of the rare’ case. Such incidents of murder of old persons take place for robbery. But then it is not the case of the prosecution that accused No. 1-Ajay is a professional robbery or that there are any criminal antecedents with him. There is nothing on record to show that besides committing robbery, he had any intention or any other special interest to kill the old lady, the deceased. Further, there is nothing to show that he would be a menace to the society. At the same time considering the plight of the helpless old woman of about 75 years, who was brutally killed and the manner in which she was done to death by causing multiple injuries on vital parts of her body with a big knife, respondent No. 1 does not deserve any leniency particularly because he enjoyed the position of trust of the deceased but still committed the robbery and murder.