BALAJI GUNTHU DHULE vs. STATE OF MAHARASHTRA

1 REPORTABLE IN THE SUPRENE COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.784 OF 2008 BALAJI GUNTHU DHULE ...APPELLANT VERSUS STATE OF MAHARASHTRA ...RESPONDENT O R D E R 1). This appeal by special leave is directed against the judgment and order passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal No.108 of 2004 dated 19.10.2005. JUDGMENT 2). The appellant, before us is convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (“IPC” for short) and sentenced to imprisonment for life, by the Trial Court, on the allegation that he has caused the death of one Ranga Rao in a quarrel which ensued between Ranga Rao and one Smt. Shantabai (other accused who Page 1 2 expired during the trial). The Prosecution, in support of its case, had examined several witnesses, including six eye—witnesses— P.Ws. 4, 5,

10, has convicted and sentenced the appellant and two others, as mentioned earlier. Aggrieved by the said judgment and order passed by the Trial Court, the appellant and two others were before the High Court in an appeal filed under Section 374(2) of the Code of Criminal Procedure,1973 (“the Code” for short). 3). The High Court, after re-appreciation of the JUDGMENT evidence on record, has acquitted the two other accused, but has convicted the appellant only for an offence under Section 302 of the I.P.C. It is the correctness or otherwise of the said order which is called in question by the appellant before us. Page 2 3 4). We have heard learned counsel for the parties to the lis . 5). Learned counsel appearing for the appellant has taken us through the judgment and order passed by the High Court. We gather on perusal of the judgment that the High Court after detailed consideration of the evidence of P.Ws. 4, 5, 7 and 8 has rejected the same for the reasons assigned in the judgment. However, it has confirmed the order of the Trial Court primarily based on the evidence of PW-10, that too by drawing a distinction based on the analysis of the question: “whether P.W.10 JUDGMENT was present at the time of the incident or at least after the incident.” The High Court comes to the conclusion and records that since P.W.10 had taken the deceased to the hospital, he could have been present at least after the incident. Page 3 4 6). To come to a conclusion that P.W.10 was present at the time of the incident, strangely, in our opinion, the High Court has relied upon the

foremost, as the law stands today, the statement of the accused recorded under Section 313 of the Code cannot be put against the accused person. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution. The statement made under this Section should not be considered in isolation but in conjunction with evidence adduced by the JUDGMENT prosecution. 7). This Court in Manu Sao v. State of Bihar , (2010) 12 SCC 310, has examined the vital features of Section 313 of the Code and the principles of law as enunciated by judgments, analysing the guiding factors for proper application and Page 4 5 consequences that shall flow from the said provision and has observed :

JUDGMENT 15 . Another important caution that courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Code as it cannot be regarded as a substantive piece of evidence. In Vijendrajit Ayodhya Prasad Goel v. State of Bombay (AIR) 1953 SC 247, the Court held as under: (AIR p. 248, para 3) “3. ... As the appellant admitted that he was in charge of the godown, Page 5 6

16. On similar lines reference can be made to a quite recent judgment of this Court in Ajay Singh v. State of Maharashtra, (2007) 12 SCC 341, where the Court held as under: (SCC p. 347, paras 11-13) JUDGMENT “11. So far as the prosecution case that kerosene was found on the accused’s dress is concerned, it is to be noted that no question in this regard was put to the accused while he was examined under Section 313 of the Code. Page 6 7

‘8. ... The statements of the accused recorded by the committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box [and that they] have to be received in evidence and treated as evidence and be duly considered at the trial.’“ JUDGMENT This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there. 13. The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in Page 7 8 judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.”

8). Herein, the appellant in his statement under Section 313 of the Code admits that there was a quarrel between Shantabai (deceased accused) and P.W.1O and while rushing to the spot of quarrel the JUDGMENT deceased involuntarily fell on a cement concrete platform - Otta and thereby suffered the fatal injury. The prosecution story was that a quarrel between the deceased and Shantabai in fact took place, however, the fatal injury was caused by a deliberate blow by the appellant on the deceased. In our opinion, there is absolute contradiction in Page 8 9 the statement made by the appellant in his statement under Section 313 of the Code and that statement could not have been put against the

occurrence of the incident. Therefore, the said witness, in our opinion, cannot be considered as eye-witness to the incident as such. 9). The High Court has also relied upon the postmortem report of the Doctor. In our opinion, since the entire evidence of the eye—witnesses has not been accepted by the High Court, it could not JUDGMENT have merely relied upon the postmortem report to convict the appellant for an offence under Section 302 of the I.P.C. Further, in our view, the postmortem report should be in corroboration with the evidence of eye—witnesses and cannot be an evidence sufficient to reach the conclusion for Page 9 1 convicting the appellant. In view of the above, we have no other alternative but to allow this appeal and set aside the judgment and order passed by the

10. In the result, the appeal is allowed with a direction that the appellant-accused be released forthwith, if he is not required in any other offence/case. Ordered accordingly. ........................J. JUDGMENT (H.L. DATTU) ........................J. (CHANDRAMAULI KR. PRASAD) NEW DELHI, SEPTEMBER 19, 2012. Page 10