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2015 Supreme(Bom) 2129
IN THE HIGH COURT OF BOMBAY
P.V. Hardas and Dr. Shalini Phansalkar Joshi, JJ.
Anand Augstin Bhambal – Appellant
Vs.
The State of Maharashtra – Respondents
Criminal Appeal No. 1276 of 2007
Decided On: 24.03.2015
Advocate Appeared:
For Appellant : N.N. Gawankar, Manas Gawankar and Sharon Patole, Advs.
For Respondents: Sangeeta D. Shinde, A.P.P.
Headnote:Evidence Act, 1872 - Section 27 Indian Penal Code, 1860, Sections 302 and 392 Recovery evidence. Where evidence of I.O. who recovered material objects, was convincing one therefore same cannot be rejected for want of corroboration. That seizure panchanamas of the articles under Section 27 of the Evidence Act, can be proved even on the basis of sole testimony of Investigating Officer because in the first place the evidence of Police Officer carries equal weightage and it cannot be disbelieved merely because he is a Police Officer. As held by the Apex Court in Madan Singh v. State of Rajasthan, AIR 1978 SC 1511, if the evidence of Investigating Officer who recovers material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution cases.
It is also well-settled that the presumption that people act honestly applies to Police Officers also. If the panchas are not available or unreliable, the panchanama can be proved by Investigating Officer. There is no principle of law that police officer’s evidence cannot be relied upon without corroboration. Here in the present case the evidence of Investigating Officer PW 16 PI Patil, is having a ring of truthfulness and sense of straightforwardness. His cross-examination has not made any dentin his credibility or reliability. Therefore, there is absolutely no reason to disbelieve his evidence merely because the panchas are won over or have not supported the prosecution case.
[INDIAN] PENAL CODE, 1860 - Sections 302 and 392 Evidence Act, 1872, Section 114(a) Conviction for murder & robbery. Where presumption under Section 114(a) of Act that it was accused who committed robbery and murder in one incident, was not rebutted therefore guilt of accused proved beyond reasonable doubt. In the instant case the appellant was found in possession of the stolen articles, within two days from the date of incident, it is also proved on record that the offence of robbery and murder were committed in one and the same transaction, they are integral parts of the same incident. The appellant has failed to offer any explanation for the possession of the articles to rebut the presumption which is necessary to be drawn from the facts on record. Therefore, this sole circumstance by itself becomes sufficient to prove the guilt of the appellant for both the offences punishable under Sections 302 and 392 of the IPC..
Key Points: - The recovery panchanama can be proved by sole testimony of the Investigating Officer when the recovery is convincing, and police evidence is given weight without requiring corroboration [4000505070022]. - If the appellant is found in possession of stolen articles within two days of the incident and robbery and murder are part of the same transaction, the presumption under Section 114(a) supports guilt for both offences (Sections 302 and 392 IPC) unless explained otherwise [4000505070024][4000505070027]. - The postmortem evidence supports homicidal death due to intracranial haemorrhage from head injury, not accidental death, establishing the homicidal nature of Bhagwan's death [4000505070010][4000505070011]. - Recovery of stolen articles from the appellant and co-accused within two days, corroborated by identification by P.W. 1 Bimba and P.W. 2 Spruha, strengthens the prosecution case for both robbery and murder [4000505070018][4000505070019]. - Blood-stained clothes recovered under Section 27 of the Evidence Act contribute to the link but are not solely relied upon; the overall recovery evidence is described as clinching [4000505070028]. - The trial Court’s conviction for appellant under Sections 302 and 392 is upheld; the appellate argument challenging panchanama evidence is rejected, citing Madan Singh v. State of Rajasthan and the general admissibility of police recovery evidence [4000505070022][4000505070023][4000505070027]. - The appellant’s lack of an explanation for possession of stolen property weakens his position and supports the presumption of guilt under 114(a) [4000505070024].
What is the sufficiency of recovery evidence under Section 27 of the Evidence Act and its reliance on the Investigating Officer's testimony without corroboration?
What is the applicability of Section 114(a) of the Evidence Act in cases where robbery and murder are part of the same transaction, and does possession of stolen property within two days establish guilt for murder and robbery?
What are the appellate court's conclusions regarding homicidal death versus accidental death and the sufficiency of the prosecution's evidence to convict for sections 302 and 392 IPC?
Dr. Shalini Phansalkar Joshi, J.
1. The appellant-original accused No. 1, in Sessions Case No. 165 of 2005, who stands convicted, by Ad-hoc District Judge-1, Kalyan, by judgment dated 12.9.2007, for the offence punishable under Section 302 and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 2.000/- in default to suffer rigorous imprisonment for 8 months and also under Section 392 of the IPC and sentenced to suffer rigorous imprisonment for 7 years and to pay fine Rs. 1,000/- in default further to undergo rigorous imprisonment for six months, by this appeal challenges his conviction and sentence. The facts, as are necessary, for the decision of this appeal may be stated as follows:-
P.W. 2 Spruha, the daughter of P.W. 1 Bimba and the deceased Bhagwan, performed registered marriage with the appellant on 1.11.2004. However, she did not disclose the said fact to her family members. In April, 2005, she had given her gold chain to the appellant. When she demanded the same, appellant informed that he had hypothecated it as he needed money. In May, 2005, the appellant came to P.W. 2 Spruha's parent's house alongwith accused No. 2 Raju Kamble with a proposal for marriage with P.W. 1 Spruha. However, as the appellant was jobless, P.W. 2 Spruha's father refused the proposal. Thereafter on 3.7.2005, the appellant promised to return her gold chain to P.W. 1 Spruha, and for that purpose called her at Kalyan Railway Station, on the next day at about 10.30 a.m. alongwith her mother.
2. Accordingly, on 4.7.2005, P.W. 2 Spruha and P.W. 1 Bimba, her mother went to Kalyan Railway Station under the guise of purchasing vegetables. There they waited for some time. However, the appellant did not turn up. At about 12.30 p.m., when they returned to their house, they found the door open. When they went inside, they noticed the dead body of Bhagwan lying on the cot with his legs tied with saree. They also noticed that he has sustained several injuries on his person. Immediately they took him to Shridevi Hospital where he was declared dead. After returning to the house, P.W. 1 Bimba and P.W. 2 Spruha found that cash amount of Rs. 2500/-, gold rings, gold necklace and some other articles were stolen from the house. P.W. 1 Bimba, therefore, reported the matter to the police.
3. P.W. 15 PSI Adhagale, who, at the relevant time was on duty at Kolshewadi Police Station, recorded the complaint of P.W. 1 Bimba and on the said complaint, he registered C.R. No. 145 of 2005 against the unknown person. Alongwith P.W. 1 Bimba, he visited the spot and made inquest panchanama of the dead body vide Exh. 77A and referred the dead body for postmortem.
4. P.W. 16 Police Inspector Bajarang Patil, then took over further investigation of the case. He visited the spot and in presence of panchas made spot panchanama Exh. 77. From the spot, he seized the iron pipe of the vacuum cleaner and some blood stained clothes. On the same day, he recorded statements of 10 witnesses including neighbours. Again on 5th July, 2005, he visited the spot and recorded the statement of P.W. 4 Rekha and some other witnesses. On that day at about 4.00 p.m. present appellant came to be arrested by Police Inspector Pawar. PSI Vibhute arrested accused No. 2 Raju Kamble. Both the accused were produced before P.W. 16 PI Patil. He arrested them under panchanama Exh. 109 and referred them for their medical examination. Some minor injuries were found on the hands of the appellant and his medical certificate is produced at Exh. 90. During the course of interrogation, accused No. 2 Raju gave disclosure statement which was recorded at Exh. 110 and at his behest the stolen necklace came to be seized under panchanama Exh. 111.
5. On 6th July, 2005, the appellant gave disclosure statement; the memorandum panchanama of the same was made vide Exh. 112 and at his behest, from his house, the other stolen articles like mobile phone, camera, gold rings, gold coins and some cash amount came
