2017 Supreme(Bom) 24

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH
S.S. SHINDE & K.K. SONAWANE, JJ.
Radha @ Ashtha D/o Vitthal Takaras – Appellant
Versus
The State of Maharashtra, through Police Station, Bardapur – Respondent
Criminal Appeal No. 213 of 2015
Decided On : 04-01-2017

Important Point:- The theory of last seen together is not of universal application and may not otherwise sufficient to sustain conviction unless supported by other ring in the chain of circumstances. It is manifestly clear that the extra-judicial confession is a weak piece of evidence and courts are to view it with great care and caution. For an extra-judicial confession to form basis of conviction, it should not suffer from any material discrepancy and inherent improbabilities

Headnote:Indian Penal Code, 1860 - Sections 302 and 201-Evidence Act, 1872, Sections, 3, 27 and 8-Murder and causing disappearance of evidence-Proof of.-Where merely evidence of recovery of clothes was found to be a corroborative piece of evidence but prosecution could not prove complete chain of circumstances as could establish the guilt of accused, conviction order was unsustainable and quashed.

       Evidence Act, 1872 - Section 3-Circumstantial evidence-Appreciation of.-Where the circumstances on which prosecution relied upon, were not found sufficient to form a complete chain of incriminating circumstances pointing to guilt of the accused, said circumstantial evidence was held to unreliable.

       Considering the totality of the evidence on record, that the circumstances relied upon by the prosecution are not established by convincing evidence t6 form a complete chain of incriminating circumstances pointing to the guilt of the accused/appellant. The law postulates that the suspicious circumstances however strong cannot take place of proof. Therefore, the conviction recorded by the trial Court appears not supported by credible evidence. The prosecution miserably failed to prove the guilt of the accused beyond reasonable doubt. Eventually, the appellant/accused is entitled for benefit of doubt accrued in the prosecution case. In the aftermath, Court has no alternative but to exonerate the accused/appellant from the charges levelled against her by extending benefit of doubt in the prosecution case.

       Evidence Act, 1872 - Section 8-Motive-Evidentiary value of.-Where it was unbelievable that the accused would take victim to another village and instead of giving victim in the custody of parents of PW 5, killed her for trifle reason of causing disturbance and troubling her, the motive propounded on behalf of prosecution, appears slender in nature and was not sufficient to draw inference against accused.

       The motive behind the commission of crime alleged by the prosecution appears not plausible and sustainable one. It would be reiterated that there are no circumstances on record to establish that the victim `P` was given in custody of the accused `R` at Delhi Railway station for taking her to Latur. The prosecution did not collect the railway ticket of journey of accused `R` with victim `P`. It is also the fact that parent of PW 5 were residing at Latur. Accused `R` while carrying victim `P` must have alighted at Latur Railway station for going ahead to her village Babhalgaon. It is also brought in evidence of the prosecution witnesses, PW 5 and PW 8, that the phone number of sister of PW 5 was given, to accused `R` for calling them to take victim `P` from the custody of accused `R`. In such circumstances, in case victim `P` was causing trouble or harassment to accused `R` at Latur, she would have called the parents or sister of complai- nant `S`, after getting down from the train at Latur Railway Station, to take victim `P` with them. It is unbelievable that accused `R` would take victim `P` from Latur to village Babhalgaon and instead of giving the victim `P` in the custody of parents of PW 5, killed her for trifle reason of causing disturbance and troubling her. The motive propounded on behalf of prosecution, appears slender in nature and not sufficient to draw adverse inference against accused `R`.

       Evidence Act, 1872 - Section 27-Extra-judicial confession-Evidentiary value of.-Since extra-judicial confession is weak piece of evidence and in order to form basis of conviction, extra-judicial confession should not suffer from any material discrepancy and inherent probabilities.

       In the light of aforesaid legal guidelines, it is manifestly clear that the extra-judicial confession is a weak piece of evidence and Courts are to view it with great care and caution. For an extra-judicial confession to form basis of conviction, it should not suffer from any material discrepancy and inherent improbabilities. In the matter in hand, as discussed above, there are vital discrepancies in the evidence of PW 5 and PW 8 on the point of extra-judicial confession made by accused `R` to them. Moreover, failure to disclose about the extra-judicial confessional statement of the accused to the police by the prosecution witnesses in their statement at the earliest also proved fatal to the prosecution case. Therefore, evidence of PW 4, PW 5 and PW 8 is unreliable, suspicious and not credible one. Their evidence do not inspire confidence and cannot form basis for conviction of the accused in this case.