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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. Tahilramani, Revati Mohite Dere, JJ.
Pundlik Basu Chavan - Appellant
Versus
The State of Maharashtra - Respondent
Criminal Appeal No. 1424 of 2011
Decided On : 05-01-2017
It is well-settled that the evidentiary value of an extra-judicial confession depends on the reliability of the witness, who gives the evidence. It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. Needless to state, it would depend on the nature of circumstances, the time when the confession was made and the credibility of the witness, who speaks of such a confession. An extra-judicial confession can be relied upon and conviction can be founded thereon, if the evidence comes from the mouth of the witness who is unbiased, not even remotely inimical to the accused and in respect of whom, nothing is brought out, which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused.
The words spoken by the witness are to be clear, unambiguous and should convey that the accused is a perpetrator of the crime. Thus, subjecting the evidence of such a witness to a rigorous test, on the touchstone of credibility, an extra-judicial confession can be accepted and can be the basis of conviction. The extra-judicial confession must be judged in the fact situation in each case and would depend not only on the nature and circumstances, but also on the time when the confession was made and the credibility of the witness, who testifies thereto.
Indian Penal Code, 1860 - Sections 302, 201 and 511-Evidence Act, 1872, Sections 3 and 27-Murder-Conviction.-It was alleged against accused-appellant that he caused death to his wife by throttling and caused disappearance of evidence of offence. Since extra-judicial confession of the appellant-accused was found to be credible, conviction based on such extra-judicial confession was held to be sustainable as there was no inimical relation between parties to falsely implicate him.
It is pertinent to note, that there is no omission with regard to the same in the 161 statement, which was promptly recorded on the very same day. It appears that in `K`s 164 statement recorded on 13th May, 2010, he has not stated that the appellant had disclosed to him, that the dead body was of his wife and that she had died due to consumption of poison or that he had throttled her. That nothing much turns on the same, as the said statement was recorded after more than 2 months of the incident. What is pertinent to note, is that `K` in his FIR, dated 3rd March, 2010 has disclosed in detail all the said facts/ details and has also reiterated the same in his evidence.
It is pertinent to note, that PW 24 was declared hostile by the prosecution. The reason for not supporting the prosecution, is evident from her evidence, that apart from the appellant, there was nobody to support the family and that they were facing difficulties, since the appellant was in prison. No credence can be given to the evidence of the said witness, in particular, to that part of the evidence, relied upon by the counsel. Similarly, there is no material on record to show that the gunny bag was there in the vehicle prior to it being hired by the appellant.
Revati Mohite Dere, J.
This appeal is directed against the judgment and order dated 7th June, 2011 passed by the learned Additional Sessions Judge, Gadhinglaj, Kolhapur, in Sessions Case No. 13 of 2010, convicting and sentencing the appellant as under :
for the offence punishable under Section 302 of the Indian Penal Code ('IPC'), to suffer RI for life and to pay fine of Rs. 2,000/-, in default, to suffer RI for 1 year;
for the offence punishable under Section 201 r/w 511 of the IPC, to suffer RI for 3 years and to pay fine of Rs. 1,000/-, in default, to suffer SI for 1 year;
The said sentences were directed to run concurrently.
2. The prosecution case in brief is as under :
According to the complainant Kasim Nadaf (PW 3), the owner of a Mahindra Pick-up van, on 3rd March, 2010, when he was waiting at the stand for his vehicle to be hired, the appellant came up to him and stated that he wanted to carry domestic articles from Waghrali to Sawantwadi. The fair was settled for Rs. 1,600/-. Kasim went with his vehicle to Village Waghrali and the appellant loaded his articles in the van. The vehicle then proceeded to Sawantwadi via Ajra. Before reaching Sawantwadi, the vehicle stopped at a dhaba and the appellant called a person from his phone. The appellant thereafter, disclosed to Kasim that the person with whom he wanted to work has declined to engage him and hence, he wanted to return to Gadhinglaj. On being asked for return fare, the appellant agreed to pay an additional amount of Rs. 500/-. While crossing the ghat section at Amboli, the appellant asked Kasim to stop the vehicle near a valley, pursuant to which, the vehicle was stopped. The appellant got down from the said vehicle and went to the rear side. The appellant called Kasim to the rear side of the vehicle and disclosed that he wanted to throw one gunny bag in the valley. Kasim inquired as to what was there in the gunny bag, however, the appellant was reluctant to disclose the same. When Kasim insisted on disclosing the contents of the gunny bag, the appellant stated that his wife's dead body was in the gunny bag. On further inquiry, the appellant disclosed that he had throttled his wife as she was not of good character. Kasim lured the appellant by saying that the bag could be thrown elsewhere and proceeded further. On the way, near Village Madalge, Kasim's friend Rajendra Mahadik's (PW 26) vehicle crossed his vehicle. Rajendra was on his way to Ajra, to deliver sugarcane. Rajendra called Kasim and asked where he was going. Kasim asked Rajendra to come back and meet him, pursuant to which, Rajendra turned back. When Rajendra came near Kasim's vehicle, Kasim narrated the incident to him and asked him to inform the same to his friends at Gadhinglaj. Thereafter, Kasim proceeded to Gadhinglaj. After reaching Gadhinglaj, as per the information received, his friends encircled the vehicle and took the vehicle to the Gadhinglaj Police Station. At the Gadhinglaj Police Station, Kasim narrated the entire incident to the Police Station Officer. The Police Station Officer asked Kasim to take the vehicle to Nesari Police Station, as the place of incident i.e. Waghrali, fell within the limits of Nesari Police Station. A constable was provided to escort them to Nesari Police Station. On reaching Nesari Police Station, Kasim narrated the incident to the PSO on duty, pursuant to which, an FIR was lodged which is at Exhibit 11. Photographs of the vehicle were taken and the gunny bag was removed from the vehicle. On opening the said gunny bag, two pillows and a bedsheet were found and below that, the dead body of a women was found. Inquest panchnama was prepared. The appellant identified the body as being that of his wife Gulabi and thereafter, the body was sent for postmortem examination. PI Shri Yashwant Dhage (PW 28) prepared the panchnama of the scene of offence, recorded the statements of the witnesses and arrested the appellant. Statements of Kasim Nadaf (PW 3), Rajendra Maha
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