Full Judgment Text
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CASE NO.:
Appeal (crl.) 238-239 of 2001
PETITIONER:
PRAKASH DHAWAL KHAIRNAR (PATIL)
Vs.
RESPONDENT:
State of Maharastra.
DATE OF JUDGMENT: 12/12/2001
BENCH:
M.B. SHAH , R.P.SETHI
JUDGMENT:
WITH
CRIMINAL APPEAL NO.489 OF 2001
State of Maharashtra Appellant
Versus
Sandeep @ Babloo Prakash Khairnar (Patil) Respondent
J U D G M E N T
Shah, J.
In Sessions Case No.152 of 1999, by judgment and order dated
19.5.2000, Additional Sessions Judge, Nasik convicted Prakash
Dhawal Khairnar Patil (A-1) and Sandeep @ Babloo Prakash
Khairnar Patil (A-2) for the offence punishable under Sections 302,
120-B, 201, 397 read with Section 34 of the Indian Penal Code and
under Section 25(1)(b)(a) of the Arms Act read with Section 120-B of
Indian Penal Code. Both the accused were sentenced as under:-
(1) For the offence punishable under Section 302 read with
Section 120-B IPC
sentenced to death.
(2) For the offence punishable under Section 397 read with
section 34 IPC
to RI for two years and to pay a fine of
Rs.1000/-, in default of payment of fine to further
undergo imprisonment for six months;
(3) For the offence punishable under section 25(1)(b)(a) read
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with Section 3 of the Arms Act, read with Section 120-B
of IPC
to RI for three years and to pay a fine of
Rs.1000/-, in default of payment of fine to further
undergo imprisonment for six months;
(4) For the offence punishable under Section 201 IPC
to undergo RI for seven years and to pay a fine
of Rs.1000/-, in default of payment of fine to
further undergo imprisonment for six months;
Being aggrieved by the said judgment and order accused
preferred Criminal Appeal No.400 of 2000 before the High Court of
Bombay. For confirmation of death sentence, the matter was referred
to the High Court which was numbered as Confirmation Case No.3 of
2000. After considering the evidence on record in its entirety, the
High Court dismissed the appeal filed by A-1 Prakash Patil and
confirmed his conviction under Section 302 IPC and maintained the
death sentence. The Court also convicted him under Section
25(1)(b)(a) of the Arms Act and maintained the sentence. The Court
set aside the conviction of the accused under Section 397 read with
Section 34 IPC. However, the High Court partly allowed the appeal
filed by A-2 Sandip Patil and acquitted him from all the charges
except the one punishable under Section 201 IPC and reduced the
sentence to the period already undergone. Against the said judgment
and order dated 7.12.2000, A-1 has preferred Criminal Appeal
Nos.238-239 of 2001 and the State of Maharashtra has filed Criminal
Appeal No.489 of 2001 against the acquittal of A-2.
In this case, dispute of partition of lands led one brother to
anhilate entire family of his brother and also to commit murder of his
own mother. AppellantPrakash Patil is the father of Sandeep @
Babloo Prakash Khairnar (Patil), A-2. Sandeep who was then aged 17
years was studying in First Year Engineering and was staying in a
hostel at MIT, Pune. Supadu Dhawal Patil was the real brother of
appellant Prakash Patil. Kesarbai was their mother and Pushpatai
was wife of Supadu Patil and they were having one son Rakesh @
Pappu and two daughters, Poonam and Rupali alias Buntitai.
Deceased Supadu Patil, his wife Pushpatai, mother Kesarbai,
daughters Rupali and Poonam and son Rakesh died due to fire arm
injuries on the fateful night of 24th October, 1996. Supadu Patil was
working as an agricultural officer at Malegaon and was staying in his
own bungalow which was constructed at village Soyagaon, which was
at a distance of 2 km. from Malegaon. He was running a nursery in the
field adjoining to his bungalow which was virtually a farm house.
PW33 Vyankat @ Pintya used to sleep in the shed to the northern side
which was at a distance of 225 feets. As per the inspection note,
bungalow was at a secluded place. Sister of Supadu Patil Vijaya
Zumbar Patil was also living alongwith her husband at Soyagaon. A1
Prakash Patil was staying at Nasik with his family members and was
serving in Maharashtra Engineering Research Institute at Nasik as a
Water Analyser (Sr. Scientific Assistant)
It is the prosecution version that on 23rd October, 1996, A-2
Sandeep had gone to the bungalow of Supadu Patil, his uncle, in
Soyagaon, Malegaon, District Nasik to attend the birthday of Rakesh
son of Supadu Patil. There was enmity between Supadu Patil and
Prakash Patil because of dispute for partition of agricultural land. On
occasions there were quarrels and exchange of abuses between them.
A-2 Sandeep Patil who came at the residence of Supadu Patil on 23rd
October, 1996, stayed there till morning of 25th October, 1996 and left
the house after the incident. Vyankat Pagare PW33 who was Supadu
Patil’s servant and was residing in a shed stated that he heard that
Buntitai (Rupali) was crying ’aai ga’ (Oh mother) and thereafter
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Kesarbai saying ’shant ho’. He also heard some fire shots. It is his
say that as Supadu Patil used to kill pigs by his gun, he went off to
sleep. At about 6 a.m. when he was folding his bed, one Suresh who
was living in the farm house of Supadu Patil, came there and told that
he went to Supadu Patil’s bungalow to bring a bucket for milking the
she-buffaloes and found the door of bungalow to be locked and a chit
kept thereon, on which it was written - "we are all going out of
station. The reason was not to be assigned by us. We are returning on
Sunday or Monday. All work should be stopped". Suresh handed
over the said chit to him. By that time, Subhash who was working
with Supadu Patil came there. PW33 Vyankat Pagare told Suresh and
Subhash about what he had heard at night. He took the chit and asked
Subhash to go to Viju Atya, sister of Supadu Patil. On receipt of the
information, Viju Atya came along with her husband, Zumbar Patil.
Zumbar asked Subhash to call Ashok Anna PW1. On receiving the
information, Ashok Anna and the driver of Supadu Patil came there.
On their arrival, Vyankat Pagare informed them about what he had
seen. They found that the doors and windows of the bungalow were
closed and the kitchen door was closed from inside. By pushing the
kitchen door, it opened out. They found the keys of Supadu Patil’s van
lying on the dining table. One Arun took those keys by inserting a
bamboo through the grill and thereafter went to Lonkhadi, the house
of the parents of Pushpatai. Thereafter, Ashok Anna and others took a
round of the bungalow of Supadu Patil. They pushed the rear door of
the window of the bedroom and entered the house and saw that
Supadu Patil and Pushpatai were lying in a pool of blood. At that
juncture, Vyankat Pagare started crying. Ashok Anna left for
informing the police on scooter and telephoned Chavani police
station. Within a short time police came there. They found that six
corpses were lying inside the bungalow. PI More recorded the FIR,
prepared inquest reports and sent the dead bodies for the post mortem.
A reddish round shaped leather cartridge belt having 16 empty
sockets, 9 live 12 bore cartridges and a 12 bore shot gun were seized.
The said articles were sent to the Chemical analyst. Dr. Bharat Wagh
PW36 who performed autopsy on the dead bodies found that the
injuries on the deceased were caused by the fire arms.
On 26.10.96, while PI More was taking search of the bungalow
of Supadu Patil, he found black coloured pants belonging to Supadu
Patil inside which a chit addressed to Supadu Patil’s daughter Poonam
was found. He attached it under a panchnama Ex.48. The said chit
was written by Sandeep Patil and bore his address as Room No. 120,
Maharashtra Institute of Technical Boys’ Hostel, Paud Road, Kothrud,
Mahaganesh Colony, Pune-29. Consequently, he deputed PSI Ugale
to go to Pune and obtained the handwriting of Sandeep Patil. On
27.10.96, PSI Ugale in the presence of panch Shailendra Joshi PW4
seized the chit under a panchnama Ex.61 which was taken out by
Sandeep Patil from the wooden cupboard of his room at MIT Hostel,
Pune. On 28.10.96, appellant Prakash Patil and Sandeep Patil were
arrested.
During the investigation, A-2 Sandeep moved an application
dated 8.11.1996 (Ex.113) before Judicial Magistrate First Class,
Malegaon (PW19) for revealing the true account of the incident. The
Magistrate took up the application for consideration on 9.11.1996 and
gave time of 24 hours for reflection. On 10.11.1996, A-2 was again
produced before the Magistrate and as he was willing to give
statement, his statement was recorded after necessary formalities. In
his confessional statement, he has stated as under:-
On.19.10.1996, after the studies of his Engineering Semester
were over, he had gone to Nasik. On 21.10.1996 i.e. on Dussehra day,
he and his father went to a shop by name ’Kumar Shirts’ for
purchasing shirt. He told his father that he wanted to go to his uncle’s
house at Soyagaon. His father told him that there was hearing of the
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case on 24.10.1996 in Malegaon Court and for that reason and to look
for purchaser for sale of the plot situated in Soyagaon, he would also
go to Soyagaon. On 23.10.1996 he had gone at his uncle Supadu
Patil’s house. On that day, he told his uncle that his father would
come for the case on 24.10.1996. After having meals etc. and after
watching TV and chatting, he had gone to sleep. On 24.10.1996, as
there was a hockey match, the deceased Rakesh left in the morning at
8.00 a.m. He and Poonam (deceased) studied in the bedroom upto
12.00 noon. Thereafter, his uncle left for attending the court case. In
the afternoon at about 2.15 p.m., Poonam left as she wanted to attend
college. Immediately thereafter, Pappu (Rakesh) came and thereafter
between 2.45 and 3.00 p.m., Rupali and Supadu Patil both had left for
agricultural field at Dubhadi by a vehicle and they returned between
6.30-7.00 p.m. As it was Rakesh’s birthday on that day, Supadu Patil
had brought ’pedhas’ from outside. Owalani (to move a lamp bin in a
circular motion before God and man) was done before him between
9.00-9.30 p.m. Thereafter, they all had their meals and had been
watching TV. As his uncle and aunt were observing fast on that day,
they did not have their meals. In the night at 10.30 p.m., his uncle,
aunt and Poonam went to sleep in the bedroom. He along with
Rakesh and Rupali was watching TV up to 11.30 p.m. At that time,
they both went to sleep in the same room where the TV was kept. As
per his habit in the hostel, he spread mattress next to Rakesh and sat
for doing his studies. In the night between 2.00 to 2.15 a.m., he kept
the book on the table and went to sleep on the mattress. However, he
could not sleep. At about 2.30 a.m., he heard his father’s voice calling
him. He opened the door. After entering into the bungalow, his father
asked him whether everybody had gone to sleep?’ He replied in the
affirmative and asked whether he should wake them up. Thereupon,
his father refused him by saying that he himself would wake them up.
Thereafter, A-1 asked him for his sweater. He shown him a sweater
lying in front of the cupboard in the devghar (the room of the
household goods). A-1 put on his sweater and went to the bedroom
and TV room and returned. Thereafter, he removed sweater and shirt
and put on T-shirt which was hanging on the wooden peg in front of
the basin. A-1 again went to the bedroom and he himself (A-2) went
to W.C. When he came out from the W.C. and washed and cleaned
his hands and went to the kitchen room for drinking water, he heard
the noise of firing of bullet from TV room. Immediately, he heard a
loud cry of Rakesh shouting "Aai Ga (Oh mother)", then he heard
another round of fire and heard a cry "Aai", probably of Rupali.
When he came near the curtain of TV room, he saw his father
wrapping a scarf on his face, putting on spectacles and holding a gun.
He ran towards the bath room. He saw Pappu was lying on the
mattress and Rupali was lying on the sofa. Both had sustained bullet
shots. As he was standing near the curtain, Poonam came there
running and as she could not identify him, she had a sharp clash with
him in which he sustained scratches on his nose because of her nails.
He then shook her and apprised of his identity. He thought that his
uncle and aunt would wake up and they might think that he himself
had killed them and out of this fear he tried to go outside through the
kitchen door but he could not go as the door was locked. When he was
in kitchen room, he heard his aunt, grandmother and Poonam saying
’bring vehicle and make a telephone’. He peeped into the kitchen and
saw his uncle going to the bedroom. He also heard the sound of
opening the cupboard. At that time, his father was standing in the
passage in front of the bathroom and W.C. from where he fired a shot.
His aunt and Poonam rushed from the TV room and they pushed his
father into the prayer room up to the fridge. There was a sharp clash,
during which he heard the sound of the bullet shot. Immediately,
Poonam collapsed on the floor of the prayer room. He further saw his
grandmother going to the bedroom and crying there. Thereafter, his
father went to the bedroom and he heard sound of two bullets shot.
He heard the cries of his aunt and grandmother at the same time. His
father came to the kitchen and asked him to prepare for leaving the
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bungalow. A-1 put off his spectacle. He (A-2) found tears in the eyes
of his father and that he was frightened. He put on his own clothes
and brought his sweater lying in the kitchen. When he was keeping
his white shirt, hanging on the string, in his bag, his father had gone to
WC. His father came out from WC wearing slippers and went to the
bedroom. He followed him to see as to what his father was doing.
His father wiped the gun with a handkerchief and hung the same on
the nail. He put the cartridge belt in the Godrej cupboard. Thereafter,
he collected keys lying on the floor near the cupboard and came out
from the bedroom. At that time, he started putting on his shoes kept
beneath the basin opposite the bathroom. At that time, his father
partially shut the door to open the cupboard kept behind the door of
the devghar. For that purpose, he pushed aside his suit case which
was kept nearby. He could not see as to what he took out from the
cupboard. When he was putting on his socks, he thought of going to
W.C. Hence, he removed his socks. Thereafter, he went to W.C. and
came out within five to ten minutes and washed his feet and put his
shoes. Then, his father handed over to him his suit case and school
bag. His father went to TV room and brought one pen (Reynold) and
paper and asked him to write as per his dictation. When he asked him
the reason, his father got annoyed and threatened him saying that he
should obey his order. Then he wrote the matter in a panic stricken
condition. Thereafter, his father put that pen into his bag. His father
further brought a torch from devghar. Then, they came out of the
bungalow. His father closed the door of the bungalow, locked it and
affixed a chit on that lock. On the road, his father took out bundle of
notes of rupees hundred from his pocket in the illumination of battery
and handed over to him. After the boundary of Mala (agricultural
field) was over, his father threw away keys by the side of that road.
He went up to Ekatamata chowk on foot. From there, they reached to
Malegaon S.T. Stand by an auto rickshaw. His father was waiting on
one side and he went to enquire as to when the bus would go to Nasik.
At that time, it was 5 a.m. Thereafter, they boarded one jeep which
was going to Nasik. His father alighted at Nimani bus stop and he got
down at C.B.S. Nasik and boarded the bus leaving for Pune from
Nasik. Thereafter, he reached his MIT hostel on auto rickshaw.
There was some quarrel regarding fare between him and the auto
rickshaw driver and he sustained injury at the hands of auto rickshaw
driver. On the same day i.e. on 25.10.1996, in the night between 8 to
8.30 p.m. when he removed the articles from his bag, he found one
blood smeared T-shirt, handkerchief, gloves, a pair of white slippers
and six empty cartridges. He thought that his father might have kept
the said articles in his bag when he had gone to W.C., because his
father had given him the said bag when he came out from the W.C.
He dropped the above articles from Mhatre bridge situated on the
Karve Road. In the night between 2.00 am to 2.30 am, police of
Kothrud police station took him to the said police station for making
enquiry and PSI Ugale came to Kothrud police station from Malegaon
in the morning to take him away. Thereafter, in the night of
27.10.1996, he was produced before the Addl. S.P., Malegaon. He
told the incident to him. On 28.10.1996, he was arrested by PW42
Ramesh D. More, Investigating Officer.
In appeal, the High Court has relied upon the following
circumstantial evidence to connect Prakash Patil A-1 with the crime:-
1. Motive.
2. Recovery of blood stained shoes.
3. Recovery of blood stained shirt and pants on 31st October.
4. Presence of injury over the right surface of his shoulder.
5. He was seen at Malegaon on 25th October at 5.00 a.m. when
he left by taxi of one Uttam Thethe, PW 15.
After considering the aforesaid circumstantial evidence, the
Court referred to the confessional statement of A-2 Sandip Patil as
one circumstance connecting A-1 Prakash Patil with the crime.
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The learned counsel Mr. Gupte also submitted that assuming
that the circumstances as alleged by the prosecution are proved, they
are not sufficient to connect the accused with the crime. It is his
contention that the investigation in the present case is totally faulty
and the investigating officer has only relied upon the confessional
statement without verifying finger-prints at the scene of offence.
It is true that there is some force in the contention of the learned
counsel for the accused that the investigation in this case is to some
extent faulty and the investigating officer has not tried to collect other
evidence after recording the confessional statement. In our view, both
the courts have rightly relied upon the circumstantial evidence for
connecting A-1 with the crime, which is sufficient to connect the
accused with the crime. The circumstances, except the confessional
statement of A-2 Sandeep, even though the learned counsel for the
appellant has taken us through the relevant evidence, we do not think
that the appreciation of evidence by courts below is in any way
erroneous. Still however, in short, we would refer the relevant part of
the evidence.
Motive
To prove motive, the prosecution examined two witnesses,
namely, PW33 Vyankat Pagare and PW34 Raosaheb Patil. PW33
Vyankat Pagare, who was a servant of Supadu Patil stated that he
knew Supadu Patil’s brother Prakash Patil because Prakash Patil used
to visit Supadu Patil. His evidence shows that A-1 Prakash Patil used
to tell Supadu Patil that the land should be partitioned and he should
be given his share and Supadu Patil used to tell him that he would
think on it later. On this score, there used to be quarrels and exchange
of abuses between them. It is the say of Vyankat that whenever
Prakash Patil was going to Soyagaon he was staying at his sister
Viju Atya’s house and not at Supadu Patil’s house. PW34 Raosaheb
Patil, brother-in-law of Supadu Patil has also stated there was illwill
between Supadu Patil and Prakash Patil. His evidence shows that
Pushpatai had told him that the dispute between Prakash Patil and
Supadu Patil was on account of partition of agricultural land. He also
stated that about 4 months prior to the incident, when he had gone to
Supadu Patil’s house, he found Supadu Patil, Prakash Patil and son of
their paternal aunt talking in the drawing room. When he asked his
sister Pushpatai as to what was going on, she replied that they were
talking about carving of plots and it was the usual dispute.
Both Vyankat Pagare, PW33 and Raosaheb Patil PW34 stated
that Prakash Patil had threatened to kill Supadu Patil. The High Court
considered that had their relations been good, then appellant Prakash
Patil’s wife and daughters would also have visited Supadu Patil, but
the evidence of Vyankat shows to the contrary. The dispute between
two brothers was with regard to partition of agricultural land and
deceased Supadu Patil, it appears, was evading in giving share of the
land to A-1 Prakash Patil.
Recovery of blood stained shoes, shirt and pants.
At the time of his arrest on 28.10.1996, appellant Prakash Patil
was putting on blood stained shoes which were seized under a
panchnama. From the evidence of Prabhakar Shewale, PW7 and PI
Ramesh More PW42 and the recovery panchnama of the shoes Ex.58,
it is established beyond doubt that the shoes put on by A-1 were
having blood-stains. The defence version that when Prakash Patil, on
learning about the multiple murders, entered the house, his shoes
might have been stained with blood is rightly not believed by the High
Court. The High Court rightly pointed out that the evidence of PW33
Vyankat Pagare and PW1 Ashok Bachav shows that on 25.10.96 at
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1.30 to 2.00 p.m., A-1 Prakash Patil came at the place of the incident.
Further, a perusal of the inquest report shows that it was conducted
between 10.45 a.m. to 12.10 p.m.. on 25.10.96. By the time accused
Prakash Patil reached the place of the incident, the six corpses had
already been sent for autopsy and, therefore, there was no reason of
his entering inside the house and seeing them. Further, the shoes were
sent to the Chemical Analyst and the blood of ’A’ group, which
matched with the blood group of the deceased Kesarbai, was found on
them. The nail clippings of the feet of the appellant-Prakash Patil
were also sent to the Chemical Analyst and blood of ’O’ group was
found on them which is that of the appellant-Prakash Patil.
Recovery of the blood stained shirt and pants on 31.10.96
from the house of his brother-in-law Zumbar Patil in
Soyagaon.
In this connection, evidence of PI More PW42 shows that on
31.10.96 he interrogated Prakash Patil and during the course of his
interrogation, he shown his willingness to produce the clothes which
he had worn at the time of the incident and stated that he had kept the
same in the house of Zumbar Patil. Consequently, in presence of
Panchas Prakash Chitalkar PW2 and Nagesh More PW3 the
willingness of Prakash Patil was recorded vide panchnama Ex.55 and
at the house of Zumbar Patil, the appellant produced pants and shirt
which were hanging on the western side of the wall and which were
stained with blood. Blood of ’O’ group was found on the said pants.
The learned counsel for the appellant, however, contended that the
aforesaid evidence is not reliable because there was no necessity of
keeping the said clothes hanging in the house of Zumbar Patil, his
brother-in-law. He contends that the evidence of panchas and the
panchnama become doubtful and could be at the instance of
investigating officer. In our view, there is no reason to discard the
evidence of independent panch witnesses and the courts below have
rightly relied upon the same. In any case, it does not call for any
interference in this appeal.
Injury on surface of shoulder.
Prakash Patil was medically examined on 29.10.96 at 6.25 a.m.
by Dr. Wagh PW36 and he found superficial abrasion with formation
of scab with dark colouration over right superior surface of shoulder
1 inch medial to acromion prominance one inch in length and the
direction was obliquely downward on right side. According to the
prosecution, the said injury was suffered by the accused Prakash Patil
when he was repeatedly firing from the gun during the course of the
incident. The High Court pointed out that neither in his statement
under Section 313 Cr.P.C. nor in the written statement accused
Prakash Patil furnished any explanation as to how he sustained the
said injury. The Court held that the injury is located near that part of
right shoulder where the gun is held at the time of firing and as there
was no explanation by the appellant as to how he suffered it. It was
probable that he sustained as a result of the impact of the gun by
repeated firing. The learned senior counsel Mr. Gupte submitted that
courts below have erroneously relied upon the aforesaid circumstance
to connect A-1 with the crime. It is his say that as the accused had lost
his mother, brother and other relatives, he was required to go for
cremation and naturally carry the dead body on his shoulders and,
therefore, he must have sustained that injury at that time. In our view,
this so-called explanation comes for the first time before this Court.
Accused has not given such explanation under section 313 Cr.P.C. or
in his written statement nor such submission was made before the
High Court. In this view of the matter, it is difficult for us to accept it
as a reasonable explanation for the injury sustained by the appellant.
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Accused were seen leaving Malegaon after the incident.
Both the accused left Malegaon on 25.10.96 at about 5 a.m. in
the taxi of Uttam Thethe PW15, who has identified them in the test
identification parade conducted on 22.11.96. He stated before the
Court that he is a driver and that he used to carry the bundles of
newspapers from Nasik to Malegaon by a jeep. For this, he was
leaving Nasik at about 2.30 a.m. and reaching at Malegaon at 4.45 -
5.00 a.m. After handing over the bundles of newspapers at Malegaon
S.T. stand, he used to take some passengers for the purpose of his
miscellaneous expenses to go to Nasik. On 25.10.1996, A-1 and A-2
had travelled by his jeep. In our view, there is no reason to disbelieve
the evidence of this witness and the High Court has rightly not given
any importance to the contention raised by the learned counsel for the
appellant that the evidence of PI More reveals that he interrogated
witness on 18.11.1996, yet in his application dated 13.11.1996, Ex.
191 for holding the TI Parade, name of the witness is mentioned by
observing that there was some confusion on the part of witness PI
More with regard to the date as the name of the witness is specifically
mentioned in the application dated 13.11.1996. In any case, this
mistake of date would have no bearing on the identification of the
accused in TI Parade.
Confessional Statement of A-2.
In the light of the above stated evidence, we may consider the
confessional statement of Sandeep Patil (A-2) which is Ex.116
recorded by the Judicial Magistrate on 10.11.1996. The High Court
arrived at the conclusion that the confessional statement of Sandeep
Patil was voluntary and not the result of any duress or coercion by the
police and was recorded by JMFC after due warning and after giving
him sufficient time to reflect whether he wanted to make it.
Learned senior counsel Mr. Gupte submitted that the High
Court has given benefit of doubt to A-2 with regard to conspiracy for
commission of murders and, therefore, as he is acquitted for the main
offence, his confessional statement is not admissible in evidence.
This submission, in our view, is without any substance. Firstly, the
confessional statement of A-2 recorded under Section 164 Cr.P.C. by
the Magistrate would be admissible in evidence as accused Nos. 1 and
2 were jointly tried. The said statement is proved by examining the
Magistrate who recorded the same. (Re. Ghulam Hussain vs. The
King [(1950) 52 BLR 508] Only question would beto what extent
it can be used against A-1. In the present case, conviction of A-1 for
the offence for which he is charged is based on circumstantial
evidence. Conviction of A-2 for the offence punishable under Section
201 is also based on circumstantial evidence and after taking into
consideration confessional statement. The circumstantial evidence
which gets corroboration from the confessional statement of A-2 for
connecting A-1 with the crime could be relied upon. This Court in
Aghnoo Nagesia vs. State of Bihar [(1966) 1 SCR 134], held that
confessional statement includes not only admission of the offence but
also other admissions of incriminating facts relevant to the offence
such as motive, preparation, absence of provocation, concealment of
weapon, and subsequent conduct which throw light upon the gravity
of the offence and the intention and knowledge of the accused. The
Court also observed that each and every admission of incriminating
fact contained in the confessional statement is part of the confession.
Further, explanation to Section 30 of the Evidence Act clarifies
that "offence" as used in the Section includes the abetment of, or
attempt to commit, the offence. Dealing with the scope of Section 30,
this Court in State vs. Nalini [(1999) 5 SCC 253] has held that a plain
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reading thereof discloses that when the following conditions exist,
namely, (i) more persons than one are being tried jointly; (ii) the joint
trial of the persons is for the same offence; (iii) a confession is made
by one of such persons (who are being tried jointly for the same
offence); (iv) such a confession affects the maker as well as such
persons (who are being tried jointly for the same offence); and (v)
such a confession is proved in court, the court may take into
consideration such confession against the maker thereof as well as
against such persons (who are being jointly tried for the same
offence). The Court further observed thus:-
"In Kashmira Singh vs.State of MP [1952 SCR
526] this Court approved the principles laid down by the
Privy Council in Bhuboni Sahu vs. R. [AIR 1949 PC
257] and observed:
"But cases may arise where the Judge is not
prepared to act on the other evidence as it stands
even though, if believed, it would be sufficient to
sustain a conviction. In such an event the Judge
may call in aid the confession and use it to lend
assurance to the other evidence and thus fortify
himself in believing what without the aid of the
confession he would not be prepared to accept."
In this case, the High Court has not relied upon the confessional
statement as a substantive piece of evidence to convict accused no.1.
It has been used for lending assurance to the proved circumstances.
The High Court held that the proved circumstances would not involve
accused no.2 for the offence punishable under Section 302 IPC and
the circumstantial evidence does not establish that there was any
common intention or conspiracy between the father and the son to
commit the offence. However, the Court held that Sandeep had seen
his father committing multiple murders and when he destroyed the
evidence relating to those murders by throwing the articles from
Mhatre bridge on two separate occasions, it was absolutely clear that
he did this with primary object of saving his father and, therefore, he
would be liable to be convicted for the offence under Section 201 IPC.
Hence, it cannot be said that confessional statement is wholly
exculpatory.
In this view of the matter, we would briefly refer to the
confessional statement of A-2 which lends assurance to the
circumstantial evidence. Firstly, the important circumstance that
after the incident accused nos.1 and 2 left Malegaon at about 5.00 a.m.
in the taxi of PW15 Uttam Thethe. Secondly, A-2 threw plastic bag
containing blood stained T-shirt, handkerchief, gloves, pair of white
sleepers, six empty cartridges in Mhatre Bridge, Pune and on the basis
of information given by him the said bag was recovered near Mhatre
Bridge, Pune. From the bag, the articles mentioned above were
found. In the confessional statement, it is stated that at the time of
incident his father has put on T-shirt which was hanging on the
wooden peg in the bungalow. On the T-shirt blood stains were found
of group ’A’ and ’O’. Thirdly, A2 also produced a torch and a blood
stained school bag and currency to the tune of Rs.7100/-, which is
proved and gets corroboration from the confessional statement.
Fourthly, it is proved that A-2 came to the house of deceased on
23.10.1996 and left in the early morning without informing anyone by
keeping a chit, which was placed on the door. Coupled with the
aforesaid circumstance, it is to be borne in mind that at 2.30 a.m.
(night-time) he facilitated A-1 Prakash Patil to enter the house through
the kitchen gate without informing anyone. It appears that he was
waiting for his father to come at night time. He did not make any
attempt to save the deceased, who were closely related to him nor
raised any hue and cry when he heard fire shots. From his
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confessional statement it is clear that after committing the five
murders, when his father was removing all the evidence from the
scene of offence, like wiping the gun with a handkerchief, putting the
cartridge belt in the Godrej cupboard, then going to the devghar and
going to WC, he (Sandip Patil) had ample opportunity of running out
of the house or making hue and cry or informing someone, but he did
not do so. On the contrary, he preferred to wait and watch his father
wiping all the clues from the scene and thereafter left the premises
along with his father. Hence, it would be totally wrong to say that his
statement is exculpatory and the High Court has rightly referred to
inculpatory part and has used the same for lending assurance to the
circumstantial evidence brought on record. In this view of the matter,
we confirm the conviction of the accused Prakash Patil for the offence
punishable under Section 302 IPC and under Section 25(1)(b)(a) of
the Arms Act.
Sentence:
Learned counsel for the appellant however submitted that this
would not be a rarest of rare case so as to impose the death penalty.
He submitted that because of long standing dispute for partition of the
properties, the incident ooccurred wherein the act was committed
under total desparation. Further, he submitted that the circumstantial
evidence relied upon by the Court, even if are sufficient for convicting
the accused, it is not safe enough to act upon such circumstances for
putting out a life.
From the record, it is revealed that accused Prakash Patil did
not have any criminal tendency. He was working as Water Analyser
(Sr. Scientific Assistant). The facts and circumstances of the case
reveal that he killed his brother, brother’s wife and children because
of frustration, as he was not partitioning the alleged joint property.
No doubt, it is heinous and brutal crime but at the same time it will be
difficult to hold that it is rarest of rare case. It is also difficult to hold
that appellant is a menace to the Society and there is no reason to
believe that he cannot be reformed or rehabilitated and that he is likely
to continue criminal acts of violence as would constitute a continuing
threat to the society. [Re: Om Prakash vs. State of Haryana [(1999)
3 SCC 19]. Even A-2 in his confessional statement has stated that
after the commission of the offence, he found tears in the eyes of his
father, A-1. This may indicate that A-1 may repent for rest of his life
for commission of such ghastly act. However, at this stage, for
imposing appropriate punishment, we would refer to the decision
rendered by this Court in Shri Bhagwan vs. State of Rajasthan
[(2001) 6 SCC 296] wherein while reducing the death sentence to
imprisonment for life, Court considered Section 57 of IPC and
referred to the following observations in Dalbir Singh vs. State of
Punjab [(1979) 3 SCC 745 para 14]:-
"The sentences of death in the present appeal are
liable to be reduced to life imprisonment. We may add a
footnote to the ruling in Rajendra Prasad vs. State of
U.P. [(1979) 3 SCC 646]. Taking the cue from the
English legislation on abolition, we may suggest that life
imprisonment which strictly means imprisonment for the
whole of the man’s life, but in practice amounts to
incarceration for a period between 10 and 14 years may,
at the option of the convicting court, be subject to the
condition that the sentence of imprisonment shall last as
long as life lasts where there are exceptional indications
of murderous recidivism and the community cannot run
the risk of the convict being at large. This takes care of
judicial apprehensions that unless physically liquidated
the culprit may at some remote time repeat murder.
(emphasis added)"
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The Court also observed that though under the relevant Rules a
sentence for imprisonment for life is equated with a definite period of
20 years, there is no indefeasible right of such prisoner to be
unconditionally released on the expiry of such particular term,
including remissions and that is only for the purpose of working out
the remissions that the said sentence is equated with definite period
and not for any other purpose. The Court, thereafter, directed that the
accused shall not be released from prison unless he had served out at
least 20 years of imprisonment including the period already
undergone by the appellant. In this case also, considering the facts
and circumstances, we set aside the death sentence and direct that for
murders committed by him, he shall suffer imprisonment for life but
he shall not be released unless he had served out at least 20 years of
imprisonment including the period already undergone by him.
In the result, Criminal Appeal Nos.238-239 of 2001 filed by
A1-Prakash Dhawal Khairnar is allowed to the aforesaid extent.
Criminal Appeal No.489 of 2001 filed by State of Maharashtra against
A-2 is dismissed.
.J.
(M.B. SHAH)
New Delhi ....J.
December 12, 2001. (R.P. SETHI)
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