Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.178 OF 1993
Anil s/o Shyamrao Kolcharlewar,
aged about 25 years,
Occupation: Agriculturist,
R/o Titvi- Paradpar, Tahsil Chimur,
District Chandrapur. .. Appellant
Accused
... Versus ..
State of Maharashtra .. Respondent
Shri N. A. Badar, Advocate, for the Appellant/Accused.
Shri N.S. Khubalkar, APP for the Respondent/State.
..........
CORAM :K.J. ROHEE & S.R.DONGAONKAR, JJ.
DATE OF RESERVING THE JUDGMENT : OCTOBER 24, 2007
DATE OF PRONOUNCING THE JUDGMENT : OCTOBER 26, 2007
JUDGMENT : (PER : K. J. ROHEE, J)
The appellant/accused has challenged his
conviction for the offence punishable under Section 302 of IPC and
sentence of imprisonment for life and fine of Rs.1000/- in default
nd
R.I. for 3 months imposed by 2 Additional Sessions Judge,
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Chandrapur in Sessions Case No.140/1992 decided on 17.4.1993.
2. The appellant had five sisters namely Urmila, Nalu, Lila,
Mangala and Pratibha. Urmila, Nalu and Mangala are married. Lila
and Pratibha were unmarried. The appellant has no brother. His
father died in the year 1987 leaving behind him ancestral land at
village titvi and village Paradpar, tahsil Chimur, district
Chandrapur. His father had given 2 acres land to each sister of
the appellant. About 28/29 acres of land is in the name of the
appellant. The relations between the appellant and his brother-in-
law Hanumantrao Bongirwar (Husband of Nalu) were strained
because of monetary affairs. His mother is alive. Appellant’s
mother Sushilabai is alive.
3. From the rainy season of 1991, the appellant was residing
alone at village Titvi for looking after his land. His mother
Sushilabai and sisters Lila and Pratibha were residing at village
Paradpar. On 20.3.1992 in the morning the appellant went to
village Paradpar for giving mutton to his mother and sisters.
However, his mother and sisters abused him. His sister Nalu and
Lila assaulted him. In order to save himself, he ran towards his
field situated near village Titvi. After about half an hour his sister
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Lila came to Titvi for working on road near the field of the
appellant. When he saw her, the appellant at once assaulted her
with Bichva-Adkitta . He gave several blows with the result she
died on spot. Several labours who had come for the work on road,
had seen the incident. However, nobody rescued her. Thereafter
the appellant went to the house of Police Patil namely Dattu
Kashiram Wankhede of village Titvi and narrated the incident to
him. The Police Patil asked him to accompany him to the Police
Station. Accordingly the appellant accompanied the Police Patil to
P.S. Bhishi and informed the Police about the incident. He also
produced Bichva-Adkitta . PSI Deshpande (PW12) took down the
statement of the appellant (Exh.45). PSI Deshpande registered
Crime No. 19/1992 under Section 302 of IPC against the appellant.
PSI Deshpande seized Bichva-Adkitta stained with blood under
seizure panchanama (Exh.29). PSI Deshpande arrested the
accused and seized blood stained full pant, blood stained shirt and
blood stained baniyan from the accused under seizure
panchanama (Exh.30). The appellant was sent for medical
examination. PW8 Dr. Kuril, Medical Officer, Primary Health
Centre, Bhishi examined the appellant. He noted contusions and
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incised wounds on the person of the appellant and issued medical
certificate (Exh.32). PSI Deshpande proceeded to the spot. He
prepared spot panchanama (Exh.9) and inquest panchanama (Exh.
41). On the next day autopsy was conducted by PW9 Dr. Swami,
Medical Officer, Rural Hospital,Chimur. He noted as many as 22
incised wounds on the upper part of the body of the deceased. In
his opinion, the probable cause of death was shock due to internal
haemorrhage due to injuries caused to (1) lungs, (2) liver, (3)
stomach and (4) kidney. The property was sent for chemical
analysis. Blood of group “O” was found on the knife ( Bichva-
Adkitta ) and clothes of the deceased and the accused. The blood
group of deceased and accused, however, could not be
ascertained. After completion of investigation, the accused was
charge sheeted.
4. The defence of the accused is of denial. According to him
at the time of incident he was standing on a hillock. After hearing
shouts of Lila, he went near Lila. He, however, did not notice
injuries and returned to his house. At about 12/12.30 in the noon,
the Police and Police Patil came to his house. He was taken to the
Police Station and was arrested.
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5. The prosecution examined 12 witnesses in order to prove
the guilt of the appellant. PW1 Dattu Kashiram Wankhede is the
Police Patil of village Titvi to whom the appellant allegedly
narrated the incident. PW2 Narayan Keshav Ghodmare and PW3
Nirmalabai Laxman Dange are the eye witnesses. PW4 Abhiman
did not corroborate the prosecution version. PW5 Nalubai is the
sister of the appellant. PW7 Pralhad Janbaji Uikey and PW10 Shalik
Fakruji Bhonde are panch witnesses. PW9 Dr. Swami and PW8 Dr.
Kuril are the Medical Officers. PW12 PSI Deshpande and PW11 HC
Fullewar are the investigating officers.
6. The appellant examined DW1 Ramchandra Maroti Kawle
in support of his defence.
7. After considering the evidence on record, the trial Court
held that Lila met with homicidal death and that it was the
appellant who committed murder of his sister Lila. The trial Court
accordingly convicted and sentenced the appellant as stated
above. The said conviction and sentence is under challenge.
8. We have heard Shri N.A. Badar, Advocate for the
appellant and Shri N.S.Khubalkar, APP for the State. We have also
gone through the record and proceedings of the trial Court with
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the assistance of the learned counsel.
9. At the out set it may be noted that during trial itself the
learned defence counsel had conceded that the death of Lila was
homicidal and the only contest was whether it was the appellant
who was responsible for the death of Lila. The learned counsel
appearing before us also did not raise any contention about
homicidal death of Lila. Hence we do not propose to discuss the
inquest panchanama or post mortem report about the cause of
death of Lila. We proceed on the admitted position that Lila met
with homicidal death.
10. The trial Court has observed in the judgment that the
present case is based on direct as well as circumstantial evidence.
Thereafter the trial Court discussed the evidence.
11. PW2 Narayan, PW3 Nirmalabai and PW4 Abhiman are the
eye witnesses to the incident. They are the neighbours who were
working on Employment Guarantee Scheme. On the date of
incident, there was no holiday as can be seen even from the
evidence of DW1 Ramchandra Maroti Kawle who also claimed to
be the labour working under Employment Guarantee Scheme.
PW2 Narayan Keshav Ghodmare and PW3 Nirmalabai Laxman
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Dange have described the said incident. PW4 Abhiman Bhiwa
Meshram, however, did not support the prosecution and turned
hostile. The presence of PW2 and PW3 at the place of incident at
the relevant time cannot be doubted as there was no holiday on
that day. There is no reason for them to falsely implicate the
appellant in the incident. They are independent witnesses and are
not interested either in the appellant or the deceased. The trial
Court relied on their evidence as trustworthy by observing that
their testimony is corroborated by the medical evidence of
multiple injuries on the person of Lila.
12. Shri Badar pointed out that though the Police machinery
swung into action promptly and though the alleged eye witnesses
were available, their statements were not recorded on the same
day, but were recorded on the next day. Thus there has been
inordinate delay in recording the statements of eye witnesses and
that the said delay has not been explained. It is fatal to the
prosecution. In this respect he relied on Ashok Raghunath
Bawane .vs. State of Maharashtra- 2007 ALL MR (Cri) 2554
wherein it is observed that:
“Unexplained inordinate delay caused in recording
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statement of eye-witnesses would be fatal to the
prosecution.”
It is true that in the present case the statements of PW2 and PW3
were not recorded on the same day, but on the next day.
However, in view of the attending circumstances it cannot be said
that the delay is inordinate so as to render the testimony of those
witnesses untrustworthy. It may be noted that in the case relied
upon by Shri Badar it has further been observed that :
“other attending circumstances are also required
to be considered by the Court while concluding this
issue one way or the other.”
It may further be noted that in the case relied upon by Shri Badar
the statements of eye witnesses were not recorded by the
investigating officer for number of days which is not a case in the
present case. In the present case the statements of PW2 and PW3
were recorded promptly and there is nothing to suspect their
veracity.
13. Shri Badar further submitted that PW2 and PW3 have not
described the actual assault, they have also not seen the weapon
of assault and as such no reliance can be placed on their
testimony. We are not able to appreciate this submission. It may
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be noted that PW2 and PW3 were working as labours and there
were several labours with them. They observed the incident from
some distance and in such circumstances they might not have
minutely observed the weapon. It may be noted that it was a
morning time and there is no possibility of mistaken identity on the
part of these eye witnesses. It may be noted that there were
50-60 persons present around but none of them intervened when
the appellant assaulted Lila. However, that would not render their
evidence untrustworthy. We find that the trial Court was justified
in relying on the evidence of PW2 and PW3 which is amply
corroborated by medical evidence.
14. It may be seen that immediately after the incident the
appellant was medically examined by PW8 Dr. Kuril (Exh.32) who
noted the following injuries on the person of the appellant:-
“1. Contusion with swelling over elbow joint
Rt. hand posteriorly laterally 2” X 1” with
tenderness.
2. Multiple abrasion over face near angle of
mouth Rt. side and over chine with bleeding old.
3. Incised wound over middle and index
finger in between both finger. Adjacent to each
other. Small size with sharp margins.
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4. Incised wound with cut out sclase of skin
at the base of thumb dorsal side with bleeding.
5. Injury over the palm at hypothenar area
with remove piece of flash small size.”
It may be noted that the appellant failed to explain those injuries.
It is thus apparent that those injuries might have been caused to
him while inflicting blows by the weapon on the person of Lila. The
defence of the appellant that he rushed near Lila after hearing her
shouts is thus rendered false. The defence of the appellant is false
also on the ground that on seeing his sister Lila he simply went to
the house and did nothing. He even did not note injuries on her
person. This is very surprising. It is nothing but an attempt on the
part of the appellant to hide the fact of assault by him on Lila.
15. Now besides the above direct evidence, there is
circumstantial evidence in the form of extra judicial confession
alleged to have been made by the appellant to PW1 Dattu
Kashiram Wankhede, the Police Patil of village Titvi. The trial
Court has believed and accepted this piece of circumstantial
evidence. Shri Badar submitted that extra judicial confession is a
weak piece of evidence and the Court should be slow in relying on
it. In this respect Shri Badar relied on State of Rajasthan .vs.
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Kashiram (2007) 1 Supreme Court Cases (Cri) 688 .
16. Shri Badar further submitted that the Police Patil is a
Police Officer and a confession made to him is inadmissible in
evidence as hit by Section 25 of the Evidence Act. In this respect
he relied on Ramsingh .vs. State of Maharashtra – 1999 CRI.
L. J. 3763 in which relying on the earlier decision the Court held
that Police Patil is a Police Officer and confession made to him is
inadmissible in evidence. In view of the above position of law, we
find that the trial Court was not justified in accepting the
confession alleged to have been made by the appellant to PW1
Dattu Kashiram Wankhede who was Police Patil it being
inadmissible in evidence.
17. The trial Court was not justified in observing that the
confession to Police Patil can be accepted because it was made
before the arrest of the appellant by the Police as there was no
force or influence which might have induced the appellant to
make confession. In our view, it is immaterial whether the alleged
confession was made before or after the arrest of the appellant.
What is material is that it was made to the Police Patil who is a
Police Officer.
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18. The next circumstance is seizure of blood stained weapon
and blood stained clothes from the appellant and finding of blood
of “O” group thereon. The trial Court also considered the motive
for committing the offence. We are not impressed by the
reasoning given by the trial Court. However, it would not make
any difference because we have found that the direct evidence is
trustworthy to bring home the guilt to the appellant.
19. Shri Badar further submitted that the report (Exh.45)
alleged to have been lodged by the appellant contains
confessional statement and as such it is inadmissible in evidence
and could not have been relied upon to find the appellant guilty.
In support of this submission Shri Badar relied on the following
cases:-
i) AIR 1966 SC 119
Aghnoo Nagesia .vs. State of Bihar .
ii) 2006 ALL MR (Cri) 367,
Vetar Bhagwan Mandle .vs. State of Maharashtra.
iii) 2006 ALL MR (Cri) 1372
Keshav Maharu Sangle .vs. State of Maharashtra.
The ratio of the above cases is that the first information report
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made by the accused is confessional statement to a Police Officer
and as such no part of it can be admitted into evidence on account
of the ban in Section 25. Such report lodged by the accused is
admissible for limited extent of proving the fact of giving
information by the accused himself as evidence of his conduct
under S. 8 of the Evidence Act. The contents of F.I.R. are
absolutely irrelevant when it is confessional in nature and has
been filed by the accused himself. However, there is no bar to a
confession in F.I.r. being used in favour of the accused.
20. It may be noted that in the present case the trial Court
has not at all relied on the statement (Exh.45) given by the
appellant himself which was reduced to writing by PW12 PSI
Deshpande. Hence no fault can be found with the impugned
judgment in that respect.
21. Alternatively Shri Badar wants to look into the statement
(Exh.45) in order to bring the case under Section 304 Part II of IPC.
Shri Badar submitted that it was not a pre-planned murder. It was
without premeditation in a sudden fight in the heat of passion and
thus the case falls under Exception 4 to Section 300 of IPC. He
submitted that there was scuffle between the appellant and Lila in
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which the appellant sustained injuries. He also submitted that no
injuries were on vital part of body which indicates that the
appellant did not intend to cause death of Lila. Hence the case
would fall under Section 304 Part II of IPC. In support of this
submission, Shri Badar relied on the following cases:-
i) (2007) 2 Supreme Court Cases (Cri) 374
B.K. Channappa .vs. State of Karnataka .
ii) 2007 ALL MR (Cri) 142
Sanjay M. Kharade .vs. State of Maharashtra .
It may be seen that in the first case the injuries were not found on
the vital part of the body and in the second case there was
provocation and sudden quarrel. In the present case there were
as many as 22 incised wounds on various parts of body from neck
to umbilicus and particularly 4 incised wounds were found on right
lung. The statement of the appellant (Exh.45) does not show that
there was any provocation to him by Lila or that there was a
sudden quarrel in the field. On the contrary the report shows that
after quarrel between him and Lila at the house, he went to field,
stayed there for some time, thereafter he saw Lila coming for her
work near the field and at that time he assaulted with
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Bichva/Adkitta on her abdomen and repeated the blows. This
clearly indicates the intention of the appellant to kill Lila by acting
in a cruel manner. As such in our opinion, the case would not fall
under Exception 4 to Section 300 as urged by Shri Badar. We are
of the considered view that the conviction of the appellant for the
offence punishable under Section 302 of IPC is perfectly correct
and needs no interference. We see no substance in the appeal.
We, therefore, pass the following order:-
The appeal is dismissed. The conviction of the appellant
under Section 302 of IPC is maintained.
22. Shri N.A. Badar, Advocate is appointed to represent the
appellant/accused in the present appeal. His fees is quantified at
Rs.3000/- to be paid by the High Court Legal Services Sub-
Committee, Nagpur.
(S.R.DONGAONKAR, J.) (K.J. ROHEE, J.)
...
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.178 OF 1993
Anil s/o Shyamrao Kolcharlewar,
aged about 25 years,
Occupation: Agriculturist,
R/o Titvi- Paradpar, Tahsil Chimur,
District Chandrapur. .. Appellant
Accused
... Versus ..
State of Maharashtra .. Respondent
Shri N. A. Badar, Advocate, for the Appellant/Accused.
Shri N.S. Khubalkar, APP for the Respondent/State.
..........
CORAM :K.J. ROHEE & S.R.DONGAONKAR, JJ.
DATE OF RESERVING THE JUDGMENT : OCTOBER 24, 2007
DATE OF PRONOUNCING THE JUDGMENT : OCTOBER 26, 2007
JUDGMENT : (PER : K. J. ROHEE, J)
The appellant/accused has challenged his
conviction for the offence punishable under Section 302 of IPC and
sentence of imprisonment for life and fine of Rs.1000/- in default
nd
R.I. for 3 months imposed by 2 Additional Sessions Judge,
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Chandrapur in Sessions Case No.140/1992 decided on 17.4.1993.
2. The appellant had five sisters namely Urmila, Nalu, Lila,
Mangala and Pratibha. Urmila, Nalu and Mangala are married. Lila
and Pratibha were unmarried. The appellant has no brother. His
father died in the year 1987 leaving behind him ancestral land at
village titvi and village Paradpar, tahsil Chimur, district
Chandrapur. His father had given 2 acres land to each sister of
the appellant. About 28/29 acres of land is in the name of the
appellant. The relations between the appellant and his brother-in-
law Hanumantrao Bongirwar (Husband of Nalu) were strained
because of monetary affairs. His mother is alive. Appellant’s
mother Sushilabai is alive.
3. From the rainy season of 1991, the appellant was residing
alone at village Titvi for looking after his land. His mother
Sushilabai and sisters Lila and Pratibha were residing at village
Paradpar. On 20.3.1992 in the morning the appellant went to
village Paradpar for giving mutton to his mother and sisters.
However, his mother and sisters abused him. His sister Nalu and
Lila assaulted him. In order to save himself, he ran towards his
field situated near village Titvi. After about half an hour his sister
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Lila came to Titvi for working on road near the field of the
appellant. When he saw her, the appellant at once assaulted her
with Bichva-Adkitta . He gave several blows with the result she
died on spot. Several labours who had come for the work on road,
had seen the incident. However, nobody rescued her. Thereafter
the appellant went to the house of Police Patil namely Dattu
Kashiram Wankhede of village Titvi and narrated the incident to
him. The Police Patil asked him to accompany him to the Police
Station. Accordingly the appellant accompanied the Police Patil to
P.S. Bhishi and informed the Police about the incident. He also
produced Bichva-Adkitta . PSI Deshpande (PW12) took down the
statement of the appellant (Exh.45). PSI Deshpande registered
Crime No. 19/1992 under Section 302 of IPC against the appellant.
PSI Deshpande seized Bichva-Adkitta stained with blood under
seizure panchanama (Exh.29). PSI Deshpande arrested the
accused and seized blood stained full pant, blood stained shirt and
blood stained baniyan from the accused under seizure
panchanama (Exh.30). The appellant was sent for medical
examination. PW8 Dr. Kuril, Medical Officer, Primary Health
Centre, Bhishi examined the appellant. He noted contusions and
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incised wounds on the person of the appellant and issued medical
certificate (Exh.32). PSI Deshpande proceeded to the spot. He
prepared spot panchanama (Exh.9) and inquest panchanama (Exh.
41). On the next day autopsy was conducted by PW9 Dr. Swami,
Medical Officer, Rural Hospital,Chimur. He noted as many as 22
incised wounds on the upper part of the body of the deceased. In
his opinion, the probable cause of death was shock due to internal
haemorrhage due to injuries caused to (1) lungs, (2) liver, (3)
stomach and (4) kidney. The property was sent for chemical
analysis. Blood of group “O” was found on the knife ( Bichva-
Adkitta ) and clothes of the deceased and the accused. The blood
group of deceased and accused, however, could not be
ascertained. After completion of investigation, the accused was
charge sheeted.
4. The defence of the accused is of denial. According to him
at the time of incident he was standing on a hillock. After hearing
shouts of Lila, he went near Lila. He, however, did not notice
injuries and returned to his house. At about 12/12.30 in the noon,
the Police and Police Patil came to his house. He was taken to the
Police Station and was arrested.
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5. The prosecution examined 12 witnesses in order to prove
the guilt of the appellant. PW1 Dattu Kashiram Wankhede is the
Police Patil of village Titvi to whom the appellant allegedly
narrated the incident. PW2 Narayan Keshav Ghodmare and PW3
Nirmalabai Laxman Dange are the eye witnesses. PW4 Abhiman
did not corroborate the prosecution version. PW5 Nalubai is the
sister of the appellant. PW7 Pralhad Janbaji Uikey and PW10 Shalik
Fakruji Bhonde are panch witnesses. PW9 Dr. Swami and PW8 Dr.
Kuril are the Medical Officers. PW12 PSI Deshpande and PW11 HC
Fullewar are the investigating officers.
6. The appellant examined DW1 Ramchandra Maroti Kawle
in support of his defence.
7. After considering the evidence on record, the trial Court
held that Lila met with homicidal death and that it was the
appellant who committed murder of his sister Lila. The trial Court
accordingly convicted and sentenced the appellant as stated
above. The said conviction and sentence is under challenge.
8. We have heard Shri N.A. Badar, Advocate for the
appellant and Shri N.S.Khubalkar, APP for the State. We have also
gone through the record and proceedings of the trial Court with
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the assistance of the learned counsel.
9. At the out set it may be noted that during trial itself the
learned defence counsel had conceded that the death of Lila was
homicidal and the only contest was whether it was the appellant
who was responsible for the death of Lila. The learned counsel
appearing before us also did not raise any contention about
homicidal death of Lila. Hence we do not propose to discuss the
inquest panchanama or post mortem report about the cause of
death of Lila. We proceed on the admitted position that Lila met
with homicidal death.
10. The trial Court has observed in the judgment that the
present case is based on direct as well as circumstantial evidence.
Thereafter the trial Court discussed the evidence.
11. PW2 Narayan, PW3 Nirmalabai and PW4 Abhiman are the
eye witnesses to the incident. They are the neighbours who were
working on Employment Guarantee Scheme. On the date of
incident, there was no holiday as can be seen even from the
evidence of DW1 Ramchandra Maroti Kawle who also claimed to
be the labour working under Employment Guarantee Scheme.
PW2 Narayan Keshav Ghodmare and PW3 Nirmalabai Laxman
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Dange have described the said incident. PW4 Abhiman Bhiwa
Meshram, however, did not support the prosecution and turned
hostile. The presence of PW2 and PW3 at the place of incident at
the relevant time cannot be doubted as there was no holiday on
that day. There is no reason for them to falsely implicate the
appellant in the incident. They are independent witnesses and are
not interested either in the appellant or the deceased. The trial
Court relied on their evidence as trustworthy by observing that
their testimony is corroborated by the medical evidence of
multiple injuries on the person of Lila.
12. Shri Badar pointed out that though the Police machinery
swung into action promptly and though the alleged eye witnesses
were available, their statements were not recorded on the same
day, but were recorded on the next day. Thus there has been
inordinate delay in recording the statements of eye witnesses and
that the said delay has not been explained. It is fatal to the
prosecution. In this respect he relied on Ashok Raghunath
Bawane .vs. State of Maharashtra- 2007 ALL MR (Cri) 2554
wherein it is observed that:
“Unexplained inordinate delay caused in recording
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statement of eye-witnesses would be fatal to the
prosecution.”
It is true that in the present case the statements of PW2 and PW3
were not recorded on the same day, but on the next day.
However, in view of the attending circumstances it cannot be said
that the delay is inordinate so as to render the testimony of those
witnesses untrustworthy. It may be noted that in the case relied
upon by Shri Badar it has further been observed that :
“other attending circumstances are also required
to be considered by the Court while concluding this
issue one way or the other.”
It may further be noted that in the case relied upon by Shri Badar
the statements of eye witnesses were not recorded by the
investigating officer for number of days which is not a case in the
present case. In the present case the statements of PW2 and PW3
were recorded promptly and there is nothing to suspect their
veracity.
13. Shri Badar further submitted that PW2 and PW3 have not
described the actual assault, they have also not seen the weapon
of assault and as such no reliance can be placed on their
testimony. We are not able to appreciate this submission. It may
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be noted that PW2 and PW3 were working as labours and there
were several labours with them. They observed the incident from
some distance and in such circumstances they might not have
minutely observed the weapon. It may be noted that it was a
morning time and there is no possibility of mistaken identity on the
part of these eye witnesses. It may be noted that there were
50-60 persons present around but none of them intervened when
the appellant assaulted Lila. However, that would not render their
evidence untrustworthy. We find that the trial Court was justified
in relying on the evidence of PW2 and PW3 which is amply
corroborated by medical evidence.
14. It may be seen that immediately after the incident the
appellant was medically examined by PW8 Dr. Kuril (Exh.32) who
noted the following injuries on the person of the appellant:-
“1. Contusion with swelling over elbow joint
Rt. hand posteriorly laterally 2” X 1” with
tenderness.
2. Multiple abrasion over face near angle of
mouth Rt. side and over chine with bleeding old.
3. Incised wound over middle and index
finger in between both finger. Adjacent to each
other. Small size with sharp margins.
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4. Incised wound with cut out sclase of skin
at the base of thumb dorsal side with bleeding.
5. Injury over the palm at hypothenar area
with remove piece of flash small size.”
It may be noted that the appellant failed to explain those injuries.
It is thus apparent that those injuries might have been caused to
him while inflicting blows by the weapon on the person of Lila. The
defence of the appellant that he rushed near Lila after hearing her
shouts is thus rendered false. The defence of the appellant is false
also on the ground that on seeing his sister Lila he simply went to
the house and did nothing. He even did not note injuries on her
person. This is very surprising. It is nothing but an attempt on the
part of the appellant to hide the fact of assault by him on Lila.
15. Now besides the above direct evidence, there is
circumstantial evidence in the form of extra judicial confession
alleged to have been made by the appellant to PW1 Dattu
Kashiram Wankhede, the Police Patil of village Titvi. The trial
Court has believed and accepted this piece of circumstantial
evidence. Shri Badar submitted that extra judicial confession is a
weak piece of evidence and the Court should be slow in relying on
it. In this respect Shri Badar relied on State of Rajasthan .vs.
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Kashiram (2007) 1 Supreme Court Cases (Cri) 688 .
16. Shri Badar further submitted that the Police Patil is a
Police Officer and a confession made to him is inadmissible in
evidence as hit by Section 25 of the Evidence Act. In this respect
he relied on Ramsingh .vs. State of Maharashtra – 1999 CRI.
L. J. 3763 in which relying on the earlier decision the Court held
that Police Patil is a Police Officer and confession made to him is
inadmissible in evidence. In view of the above position of law, we
find that the trial Court was not justified in accepting the
confession alleged to have been made by the appellant to PW1
Dattu Kashiram Wankhede who was Police Patil it being
inadmissible in evidence.
17. The trial Court was not justified in observing that the
confession to Police Patil can be accepted because it was made
before the arrest of the appellant by the Police as there was no
force or influence which might have induced the appellant to
make confession. In our view, it is immaterial whether the alleged
confession was made before or after the arrest of the appellant.
What is material is that it was made to the Police Patil who is a
Police Officer.
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18. The next circumstance is seizure of blood stained weapon
and blood stained clothes from the appellant and finding of blood
of “O” group thereon. The trial Court also considered the motive
for committing the offence. We are not impressed by the
reasoning given by the trial Court. However, it would not make
any difference because we have found that the direct evidence is
trustworthy to bring home the guilt to the appellant.
19. Shri Badar further submitted that the report (Exh.45)
alleged to have been lodged by the appellant contains
confessional statement and as such it is inadmissible in evidence
and could not have been relied upon to find the appellant guilty.
In support of this submission Shri Badar relied on the following
cases:-
i) AIR 1966 SC 119
Aghnoo Nagesia .vs. State of Bihar .
ii) 2006 ALL MR (Cri) 367,
Vetar Bhagwan Mandle .vs. State of Maharashtra.
iii) 2006 ALL MR (Cri) 1372
Keshav Maharu Sangle .vs. State of Maharashtra.
The ratio of the above cases is that the first information report
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made by the accused is confessional statement to a Police Officer
and as such no part of it can be admitted into evidence on account
of the ban in Section 25. Such report lodged by the accused is
admissible for limited extent of proving the fact of giving
information by the accused himself as evidence of his conduct
under S. 8 of the Evidence Act. The contents of F.I.R. are
absolutely irrelevant when it is confessional in nature and has
been filed by the accused himself. However, there is no bar to a
confession in F.I.r. being used in favour of the accused.
20. It may be noted that in the present case the trial Court
has not at all relied on the statement (Exh.45) given by the
appellant himself which was reduced to writing by PW12 PSI
Deshpande. Hence no fault can be found with the impugned
judgment in that respect.
21. Alternatively Shri Badar wants to look into the statement
(Exh.45) in order to bring the case under Section 304 Part II of IPC.
Shri Badar submitted that it was not a pre-planned murder. It was
without premeditation in a sudden fight in the heat of passion and
thus the case falls under Exception 4 to Section 300 of IPC. He
submitted that there was scuffle between the appellant and Lila in
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which the appellant sustained injuries. He also submitted that no
injuries were on vital part of body which indicates that the
appellant did not intend to cause death of Lila. Hence the case
would fall under Section 304 Part II of IPC. In support of this
submission, Shri Badar relied on the following cases:-
i) (2007) 2 Supreme Court Cases (Cri) 374
B.K. Channappa .vs. State of Karnataka .
ii) 2007 ALL MR (Cri) 142
Sanjay M. Kharade .vs. State of Maharashtra .
It may be seen that in the first case the injuries were not found on
the vital part of the body and in the second case there was
provocation and sudden quarrel. In the present case there were
as many as 22 incised wounds on various parts of body from neck
to umbilicus and particularly 4 incised wounds were found on right
lung. The statement of the appellant (Exh.45) does not show that
there was any provocation to him by Lila or that there was a
sudden quarrel in the field. On the contrary the report shows that
after quarrel between him and Lila at the house, he went to field,
stayed there for some time, thereafter he saw Lila coming for her
work near the field and at that time he assaulted with
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Bichva/Adkitta on her abdomen and repeated the blows. This
clearly indicates the intention of the appellant to kill Lila by acting
in a cruel manner. As such in our opinion, the case would not fall
under Exception 4 to Section 300 as urged by Shri Badar. We are
of the considered view that the conviction of the appellant for the
offence punishable under Section 302 of IPC is perfectly correct
and needs no interference. We see no substance in the appeal.
We, therefore, pass the following order:-
The appeal is dismissed. The conviction of the appellant
under Section 302 of IPC is maintained.
22. Shri N.A. Badar, Advocate is appointed to represent the
appellant/accused in the present appeal. His fees is quantified at
Rs.3000/- to be paid by the High Court Legal Services Sub-
Committee, Nagpur.
(S.R.DONGAONKAR, J.) (K.J. ROHEE, J.)
...
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