w w w . L a w y e r S e r v i c e s . i n


Mahavir Raghunathrao Hulungare v/s The State of Maharashtra

    Criminal Appeal No. 668 of 2017
    Decided On, 21 September 2022
    At, High Court of Judicature at Bombay
    By, THE HONOURABLE MR. JUSTICE A.S. GADKARI & THE HONOURABLE MR. JUSTICE MILIND N. JADHAV
    For the Appellant: Sayaji D. Nangre, Advocate. For the Respondent: Ajay Patil, APP.


Judgment Text
Milind N. Jadhav, J.

1. This Appeal challenges the legality of Judgment and Order dated 08.04.2014 passed by learned Additional Sessions Judge, Greater Mumbai in Session case no. 534 of 2012, convicting Appellant for offence under Section 235(2) of Criminal Procedure Code, 1973 (for short “Cr.P.C.”) for committing offence punishable under Section 302 of Indian Penal Code, 1860 (for short “IPC”) and sentencing him to suffer imprisonment for life and to pay fine of Rs.1,000/- and in default thereof to suffer further rigorous imprisonment for a period of 6 months.

2. Prosecution case is based on circumstantial evidence Appellant is convicted for the murder of his wife Lata (deceased) on 30.04.2012. Defence raised by Appellant before the trial court is that, Lata was maintaining illicit relations with one Mohmmad Shaik; Appellant saw Mohmmad Shaik attacking Lata with a knife at around 4:00 p.m. in room No.115, Mane chawl, Khindipada, Bhandup (West) and intervened to protect her from the attack; in the process Appellant suffered three minor injuries on his palms below the fingers.

3. Facts of the prosecution case which emerge from the record are as under:

3.1. Appellant, Lata, PW-2 (daughter) and one son resided in room No.115, Mane chawl.

3.2. On 30.04.2012, at about 04:30 p.m. Appellant approached SHO of Bhandup Police Station and recorded his statement that, at around 04:00 p.m. he killed his wife Lata with a knife after a quarrel between them, when he told Lata to stop continuing with illicit relations since their children had grown up. Exh.32 is the statement of Appellant recorded by SHO, Bhandup Police Station. This statement dated 30.04.2012 is signed by Appellant in presence of SHO, Bhandup Police Station. On the basis of this statement Crime No.174 of 2012 was lodged by SHO; proforma FIR was also prepared/filled in and criminal law was set into motion.

3.3. PW- 11 SHO thereafter visited spot of incident alongwith Appellant; in presence of pancha witnesses PW-4 and PW-5 opened the locked door of room No.115 by taking key from Appellant and they saw Lata lying dead in a pool of blood with multiple injuries on her hand, face, neck and stomach. PW-9 photographer and one doctor were called immediately. Dr. Singh examined Lata and declared her dead. Spot panchanama was carried out in the presence of PW-7 pancha witness vide Exh.23; one blood stained white pant, one baniyan, and one knife (weapon), mat stained with blood, ornaments of Lata viz. earrings, mangalsutra and anklets were recovered from the spot and seized vide Exh.24; PW-11 SHO prepared ADR form after sending Lata’s dead body for postmortem. Appellant was arrested, clothes worn by Appellant were seized; on taking personal search of Appellant it was noticed that he had three injuries on both his hands, hence he was referred for Medical Examination to PW-13 - Dr. Manisha Andruew Bhosale; she examined Appellant and issued injury certificate vide Exh.44. PW-1 – Dr. Sanjay Wathore conducted postmortem on the dead body of Lata and issued the postmortem (PM.) report (Exh.13).

3.4. PW-12 - is the Investigating Officer (for short “I.O.”); he collected PM report, recorded statements of witnesses and sent the seized articles for chemical analysis. He has proved the C.A. Report Exh.41 in respect of clothes, weapon and articles. After completing investigation, charge-sheet was filed in the court of Metropolitan Magistrate, 53rd Court, Mulund, Mumbai. Since the offence under section 302 IPC is exclusively triable by the Court of Sessions, case was committed to the Sessions Court for trial. Charge was framed against Appellant below Exh.4. It was read over and explained to him in vernacular; Appellant pleaded not guilty and claimed to be tried. His defence was of total denial. To bring home the guilt of Appellant, prosecution examined 13 witnesses.

4. PW- 1 is the Doctor who conducted postmortem on the dead body of Lata and proved PM report (Exh.13), which notified the following 16 external injuries:

(i) Stab injury on the left cheek 2 cm X 1 cm X 2 cm, just above the mandible 3 cm anterior and lower level of earlobe;

(ii) Stab injury at the junction of the sternoclavicular joint vertically 2 cm X 1 cm X 3 cm deep;

(iii) Stab injury on the right chest 3 cm away from the midline, 3 cm below right collar bone 2 cm X 1 cm bone deep;

(iv) Abrasion on the right breast, lateral and upper part of the nipple 2 cm x 1 cm. 3 stab injuries on the right chest 2 cm apart from each other;

(v) 2 cm x 1 cm on the sternum on the right side of the midline, bone deep;

(vi) Stab injury on the chest on the medial side of right nipple oblique 3 cm X 2 cm bone deep;

(vii) Stab injury on the right chest medially and upper side of breast 2 cm X 1 cm bone deep;

(viii) Multiple stab injuries on the abdomen with different size, shape and direction. Pattern as shown in figure;

(ix) Stab injury on the left arm anteriorly 3 cm x 2 cm muscle deep;

(x) Stab injury on the left arm 2 cm laterally and lower side of injury number 5, 2 cm X 2 cm muscle deep;

(xi) Stab injury on the left forearm just above the wrist joint on dorsal side, oblique 4 cm X 2 cm muscle deep;

(xii) Sharp cut injury on the right palm on middle and ring finger horizontally at the carpal joint 1 cm X 4 cm bone deep at middle finger and 1 cm X cm at ring finger;

(xiii) Sharp cut injury at base of the right palm on ulnar side 4 cm X 1 cm skin deep;

(xiv) Sharp cut injury on the left palm in between ring and little finger 2 cm X 1 cm;

(xv) 2 stab wounds on the medial side middle' of left forearm 2 cm X 1 cm each 4 cm apart;

(xvi) 2 stab wounds on the lower 1/3 of the left forearm 1 cm apart 2 cm X 1 cm each;

(xvii) Sharp cutting injury on the middle of the lateral side of the left leg 4 cm X 1 cm horizontal.

On internal examination, following injuries were noticed:

(a) Brain - pale meninges and brain tissue;

(b) upper lobe medially punctured through and through and thoracic cavity contained blood;

(c) Left lung also punctured through and through on medial side. thoracic cavity contained blood; and

(d) pericardium punctured and blood inside pericardium.

4.1. In his evidence PW-1 has deposed that cause of death of Lata, according to him, was due to hemorrhagic shock and multiple stab injuries on abdomen. PW-1 issued Cause of Death certificate vide Exh.14 and stated that the external injuries are possible by the knife i.e. seized ‘Article-A’ which was shown to him during his deposition. From the evidence of PW-1, it is discernible that there were multiple stab injuries on the body of Lata.

4.2. PW-13 examined Appellant after being referred for Medical examination by police authorities; she issued injury certificate vide Exh.43 notifying the following 3 injuries on his hands:-

(i) CLW Right base of thumb 2 cm x 2 cm x skin deep;

(ii) CLW over Left base of index finger and

(iii) CLW over middle finger.

4.3. PW-6 – Mohd. Rumel Ahmed Sayyed has identified the Appellant as the person who visited his shop and purchased one knife of Meena company for Rs.160/-. He has also identified the Appellant present in the Court and identified the knife i.e. ‘Article A’ shown to him in his evidence.

5. Appellant recorded his statement under Section 313 of Cr.P.C. vide Exh.46 and supplementary statement vide Exh.46A. Appellant’s case in his 313 statement was of total denial. According to him one Mohd. Shaik committed the murder of Lata; that he attempted to save her and in the process sustained minor injuries on his palms below the fingers; that when he went to lodge report in the police station, after hearing him, he was kept waiting for sometime in by the SHO and thereafter falsely implicated for committing the crime and most importantly despite informing the police about Mohd. Shaik being the culprit, police did not investigate in that respect at all.

6. Admittedly there is no eye witness to the incident. Prosecution case is based on circumstantial evidence and particularly on the following circumstances:-

(i) that appellant was last present in the house along with Lata before the incident;

(ii) that after the incident, he changed his clothes as they were stained with blood and approached the police station after bolting the door from outside and locking it;

(iii) that he informed the police about commission of the crime due to quarrel with Lata and led them to the spot;

(iv) that weapon (knife) used by him was recovered from the spot along with his bloodstained clothes;

(v) that he had purchased the knife from the market and the shopkeeper identified the Appellant.

It is to be noted here that, Appellant himself approached the SHO, informed and confessed about the crime and recorded his statement vide Exh.32 and the same was treated as FIR.

7. We have heard both the learned advocates appearing for the respective parties and with their able assistance perused the entire record of the case.

8. Mr. Sayaji D. Nangre, learned advocate appearing for Appellant has at the outset drawn our attention to Exh.32 i.e. FIR. Perusal of which shows that the said statement has been signed by Appellant and endorsed by SHO, Bhandup police station; the proforma FIR is also placed on record and it is seen that the complainant/informant is the Appellant himself. He submitted that what is considered as FIR is the information given by Appellant himself at the police station, which is reduced to writing by SHO (PW- 12) and it is endorsed by the same officer. He submitted that the only principal evidence against Appellant consists of this FIR i.e. Exh.32 which contains a full confession of guilt by Appellant; that the only circumstance which can be held against Appellant is that he himself led the police to the scene of crime but that by itself cannot be held to prove that Appellant committed the crime; that there was no CA report of bloodstained clothes seized which is proved by prosecution so as to indict the Appellant for committing the crime. He therefore submitted that the confessional FIR report cannot be used against Appellant in view of provisions of Sections 24 to 27 of Indian Evidence Act, 1872 (for short ‘‘Evidence Act”) and if the said FIR is excluded, then the other evidence on record is not only insufficient but materially inadequate and deficient to convict the Appellant. He has therefore prayed for setting aside and quashing of the impugned Judgment convicting the Appellant.

9. PER-CONTRA, Mr. Ajay Patil, learned APP has supported the impugned judgement and contended that the learned Trial Court has in paragraph Nos.15 to 20 considered the defence raised by the Appellant, inter alia, pertaining to the admissibility of Exh.32 i.e. FIR in view of the provisions of Sections 25 to 27 of the Evidence Acts. He submitted that, assuming for the sake of argument that all inculpatory statements in Exh.32 are removed, even then on the basis of the three exculpatory statements and other material on record, the offence against Appellant stands proved beyond reasonable doubt. He submitted that from the statements and conduct of Appellant it is clear that he committed the crime and thereafter lodged report that Lata’s body was lying in the house and this proves that he is the author of crime; that, statements in the FIR stand corroborated by spot panchanama and evidence given by PW-2 and PW-3, so as to indict the Appellant. He therefore submitted that the learned Trial Court has considered the entire evidence of the prosecution and passed a reasoned Judgment which deserves to be upheld.

10. Before we advert to adjudicate the submissions advanced on behalf of the respective parties, it would be apposite to refer to the relevant provisions of the Evidence Act in respect of the scope and ambit of admissibility of a confessional statement or admission against the maker of such statement. Law relating to confession is to be found generally in Sections 24 to 30 of the Evidence Act. We may usefully refer to the relevant provisions which have been elaborately explained and dealt with in paragraph Nos. 9 to 19 and 21 of the decision of the Apex court in the case of Aghnoo Nagesia Vs. State of Bihar (AIR (1966) SC 119 :: 1966 SCR (1) 134); said paragraphs are reproduced below and read thus :

“9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is a species of admission, and is dealt with in Sections 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides : "No confession made to a police officer, shall be proved as against a person accused of an offence." The terms of s. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by s, 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by s. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Sections 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-s (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of s. 27 of the Evidence Act. The words of s. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under s. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by s. 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under s. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by s. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by s. 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.

10. Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under s. 157 of the Evidence Act or to contradict him under s. 145 of the Act, if the informant is called as a witness If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under s. 8 of the Evidence Act. If the information is a non-confessional statement, it is admissible against the accused as an admission under s. 21 of the Evidence Act and is relevant, see Faddi v. The State of Madhya Pradesh (1) Criminal Appeal No. 210 of 1963 decided on January 24, 1964 explaining Nisar Ali v. State of U. P. (2) MANU/SC/0032/1957 : 1957CriLJ550 and Dal Singh v. King Emperor L. R. 44 I. A. 137. But a confessional first information report to a police officer cannot be used against the accused in view of s. 25 of the Evidence Act.

11. The Indian Evidence Act does not define "confession". For a long time, the Courts in India adopted the definition of "confession" given in Art. 22 of Stephen's Digest of the Law of Evidence. According to that definition, a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. This definition was discarded by the Judicial Committee in Pakala Narayanaswami v. The King Emperor L.R. [1939] .I. A. 66. Lord Atkin observed :

"........... no statement that contains self-exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession."

12. These observations received the approval of this Court in Palvinder Kaur v. The State of Punjab: 1953 CriLJ 154 . In State of U. P. v. Deoman Upadhyaya (6) MANU/SC/0060/1960 : 1960 CriLJ 1504 , Shah, J. referred to a confession as a statement made by a person stating or suggesting the inference that he has committed a crime.

13. Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self- exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence, and if part ofthe admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. See Hanumant v. State of U. P. (1) 1953 CriLJ 129 and Palvinder Kaur v. The State of Punjab [1953] S. C 94. The accused is entitled to insist that the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused.

14. Now, a confession may consist of several parts and ma reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession.

15. If proof of the confession is excluded by any provision of law such as s. 24, s. 25 and s. 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as s. 27 of the Evidence Act. Little substance and content would be left in Sections 24, 25 and 26 if proof of admissions of incriminating facts in a confessional statement is permitted.

16. Sometimes, a single sentence in a statement may not amount to a confession at all. Take a case of a person charged under s. 304-A of the Indian Penal Code and a statement made by him to a police officer that "I was drunk; I was driving a car at a speed of 80 miles per hour; I could see A on the road at a distance of 80 yards; I did not blow the horn; I made no attempt to stop the car; the car knocked down A". No single sentence in this statement amounts to a confession, but the statement read as a whole amounts to a confession of an offence under s. 304-A of the Indian Penal Code, and it would not be permissible to admit in evidence each sentence separately as a non-confessional statement. Again, take a case where a single sentence in a statement amounts to an admission of an offence. 'A' states "I struck 'B' with a tangi and hurt him". In consequence of the injury 'B' died. 'A' committed an offence and is chargeable under various sections of the Indian Penal Code. Unless he brings his case within one of the recognised exceptions, his statement amounts to an admission of an offence, but the other parts of the statement such as the motive, the preparation, the absence of provocation, concealment of the weapon and the subsequent conduct, all throw light upon the gravity of the offence and the intention and knowledge of the accused, and negatives the right of private defence, accident and other possible defences. Each and every admission of an incriminating fact contained in the confessional statement is part of the confession.

17. If the confession is caused by an inducement, threat or promise as contemplated by s. 24 of the Evidence Act, the whole of the confession is excluded by s. 24. Proof of not only the admission of the offence but also the admission of every other incriminating fact such as the motive, the preparation and the subsequent conduct is excluded by s. 24. To hold that the proof of the admission of other incriminating facts is not barred by the bar of s. 24 does not apply to the other admissions, but through receivable in evidence, they are of no weight, as they were caused by inducement, threat or promise. According to this suggestion, the other admissions are relevant, but are of no value. But we think that on a plain construction of s. 24, proof of all the admissions of incriminating facts contained in a confessional statement is excluded by the section. Similarly, Sections 25 and 26 bar not only proof of admissions of an offence by an accused to a police officer or made by him while in the custody of a police officer but also admissions contained in the confessional statement of all incriminating facts related to the offence.

18. A little reflection will show that the expression "confession" in Sections 24 to 30 refers to the confessional statement as a whole including not only the admissions of the offence but also all other admissions of incriminating facts related to the offence. Section 27 partially lifts the ban imposed by Sections 24, 25 and 26 in respect of so much of the information whether it amounts to a confession or not, as relates distinctly to the fact discovered in consequence of the information, if the other conditions of the section are satisfied. Section 27 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and thus, fall within the purview of Sections 24, 25 and 26. Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, s. 30 permits the Court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Section 30 thus shows that matters affecting other persons may form part of the confession.

19. If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by s. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of s. 25 is lifted by s. 27.

21. We think, therefore, that save and except parts 1, 15 and 18 identifying the appellant as the maker of the first information report and save and except the portions coming within the purview of s. 27, the entire first information report must be excluded from evidence.”

11. Now having regard to the rival submissions, following question of law arises for our consideration in the present case:-

Since admittedly Exh.32 i.e. the confessional statement of Appellant to the police is considered as FIR, then if the said statement of guilt is excluded, can the Appellant be indicted and convicted on the basis of the remaining exculpatory statement in Exh.32 and the other evidence on record.

12. Admittedly in the present case there are no eye witnesses of the murder; the only principal evidence against Appellant is the FIR i.e. Exh.32 which contains the confession of guilt by Appellant.

13. The FIR bearing C.R. No.174 of 2012 dated 30.04.2012 has been lodged at 04:30 p.m., the name of the complainant is Mahavir Hulungare (Appellant). Exh-32 is the statement of the Appellant which is the basis for lodgement of FIR. The said statement can be broken into four unnumbered paragraphs. Typed copy in verbatim of Exh-32 is reproduced below:-

“LANGUAGE”

sd/- sd/- sd/-

A.C.P. Sr.P.I. P.I. (Crime)

1 May 2012 1 May 2012 1 May 2012”

13.1. The English translation of the aforesaid statement is as under:-

“I, Mahavir Raghunath Hulungare, age 46 years, business nothing – nil, Residing at Room No.115, Mane chawl, Durga Cross Road, Khindipada, Bhandup (W), Mumbai – 400 078. I am residing since 25 years with my wife Sau Lata aged 42 years, on the above address. I have two sons namely Gajanan 20 years and Gowardhan 18 years and one daughter Prasanna 22 years.

I am residing with them. My daughter Prasanna and son Gajanana are in private service in the area of Bhandup and son Gowardhan is taking education. My wife was doing work on daily wages two years ago. Now she remain at house. I was also doing work on daily wages at Garment factory. Right now I am removed from service therefore I also remained at house.

As my wife is having illicit relation with one person of his vicinity, there used to be quarrel in between me and my wife. Today in the morning also on account of her illicit relation there was quarrel between me and my wife and therefore I have decided to kill her therefore after breakfast at about 11.00 p.m., I went to Mulund to purchase knife. After purchasing knife from hawker. I came back to the house in evening at 4.00 p.m. I told my wife to leave illicit relation as our children now grown up however my wife got annoyed. I assaulted with knife with me on her face, neck, hands, stomach and legs on my wife. At that time, her blood fall on my person and on my clothes. At the time of assaulting to my wife, said knife also cause injury to my both palms. Wife fell down in pull of blood. After her moment was stopped, I thrown the said knife in the house. I kept my bloodstained clothes in the house and after wearing another clothes. After locking the house I came to Bhandup police station to lodge report by auto rickshaw and informed to Shri. Gadkari and requested him to accompany me.

On which police officer Gadkari along with police came to my house and as today on 30/04/2012 in evening at 4.00 p.m., I assaulted my wife with knife as she was having illicit relation and requested police to take action against me.

My statement is reduced into Marathi as per my say. I read the same. It is correct.”

13.2. Unnumbered paragraph No.1 of the statement given by Appellant and reduced into writing is about information of the family of Appellant and other details of family members. Paragraph No.1 does not say anything about the crime in question.

13.3. Paragraph No.2 of the statement begins by giving details about the illicit relationship of Appellant’s wife and Mohd. Shaik and that being the motive for Appellant to have killed her because of the quarrel which took place between them. It further records that Appellant after breakfast at about 11 went to Mulund to purchase knife, which he purchased from a hawker, he returned back to his house and thereafter told his wife to stop continuing her illicit relations since their children had grown up, but his wife was annoyed. Hence he assaulted her on her face, neck, stomach and legs. That he also incurred injuries due to the knife on his palms; that he changed his blood-stained clothes and threw away the knife in his house; that his wife fell down in a pool of blood; that thereafter he locked the house and reached Bhandup police station by auto rickshaw to lodge report and informed the police i.e. Mr. Gadkari (PW-11) about the incident and requested him to accompany him to the spot. Contents of paragraph No.2 are entirely confessional, save and except the following three sentences:-

(i) Therefore, after breakfast at about 11, I came to house;

(ii) Wife fell down in pool of blood;

(iii) After locking the house, I came to Bhandup Police Station by Auto rikshaw and informed to Shri. Gadkari and requested him to accompany me.

13.4. Paragraph No.3 of the statement is repetition of the incident which is narrated in paragraph No.2. The contents of paragraph No.3 is confession. Paragraph No.4 is merely directive and is not relevant.

13.5. On perusal of the contents of Exh-32, if the confessional portion as stated hereinabove is excluded then the question that arises for consideration is whether on the basis of the remaining statements, can it be proved or presumed that the Appellant committed the murder of his wife Lata. After carefully considering the contents of Exh-32, we are afraid to state that we do not think so that once the above confessional statements are excluded, the remaining portion of Exh.32 and the other material evidence relied upon by prosecution on record would prove that the Appellant is the author of the crime.

14. It is contended on behalf of Appellant that the aforesaid entire statement is a confession made to a police officer and is not provable against Appellant having regard to the provisions of Section 25 of Evidence Act. Section 25 provides that no confession made to a police officer shall be proved as against a person accused of an offence. This provision means that a confession made to a police officer under any circumstances whatsoever is not admissible in evidence against an accused. Section 26 of the Evidence Act in furtherance prohibits proof against any person of a confession, made by him in the custody of a Police officer unless it is made in the immediate presence of Magistrate. Section 27 of the Evidence Act is the only exception and provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as it relates distinctly to the fact thereby discovered, may be proved.

15. On minute perusal of the FIR (Exh.32) when read, it reveals that if the confessional/incriminating statements are excluded there is no other evidence whatsoever on record which is sufficient to convict the Appellant. On marshalling of the evidence in the present case, we say so, for the following reasons:-

(i) The Judgment of the Apex court in the case of Aghnoo Nagesia (Supra) is settled law and the facts of the present case are squarely covered by the ratio of the said decision. If the confessional statements made in the FIR (Exh.32) are excluded, merely on the basis of the three sentences alluded to hereinabove, Appellant cannot be indicted or convicted in view of the applicability of the provisions of Sections 24 to 30 of the Evidence Act;

(ii) It is pertinent to note that Exh.32 is the statement given by Appellant on the basis of which Crime No.174 of 2012 came to be registered for offence punishable under section 302 IPC. However, Appellant in his statement recorded under section 313 of Cr. P.C. has stated about the motive that deceased Lata was having illicit relations with Mohd. Shaik, that there was a quarrel in the morning between him and Lata about her illicit relation and most importantly PW-12 the Investigating Officer in his cross-examination has admitted that he did not make any effort to find out Mohd. Shaik, alleged boyfriend of deceased Lata;

(iii) PW-13 - Dr. Manisha Andruew Bhosale attached to Mulund General Hospital examined and treated Appellant for his injuries at 11:25 p.m. on the date of incident in Mulund General Hospital. She issued injury Certificate notifying three injuries (Exh.44) below the fingers of Appellant; in her cross examination she has admitted that injuries mentioned in the injury certificate issued by her are possible if a person is attempting to save another person who is being stabbed;

(iv) Evidence of PW-6 shopkeeper shows that PW-6 has identified the Appellant is the same person who has purchased the knife (weapon) from his shop. This is a strong incriminating circumstance against Appellant;

(v) In answer to question No.139 in the Section 313 statement, Appellant has given the entire details of the incident; Appellant has stated that when he returned home he witnessed Mohd. Shaik assaulting Lata with knife; he intervened and caught hold of the knife with both his hands and pushed Mohd. Shaik; thereafter he came out of the house and bolted the door from outside and shouted “bachao bachao”; since no one came to his rescue, he took an auto rickshaw and went to the police station and narrated the incident to Mr. Gadkari, That Mohd. Shaik alias Abdul Kadir Sayyed has many cases registered against him and he has been falsely implicated in the crime;

(vi) Appellant has relied upon the decision in the case of Lakshmi Singh Vs. State of Bihar (AIR (1976) SCC 2263) and contented that if there are minor injuries, the same need not be proved in evidence and they stand proven by the Medical Certificate, which in the present case is Exh.44, the injury certificate issued by PW-13;

(vii) In another unreported Judgment dated 04.07.2006 passed by the Division Bench of this Court in Criminal Appeal No.107 of 2001 in the case of Manahor Patil v. State of Maharashtra, this Court after referring to the decision in the case of Aghnoo Nagesia (supra) has held that the finding of the Trial Court was based mainly on the inference drawn from the conduct of the accused who according to prosecution surrendered himself to the police station and this cannot be said or considered to be evidence against the accused. Paragraph Nos.21 to 23 of the said Judgment are relevant and read thus: “21. Hence, the reliance placed by the learned trial court on the various circumstance spelt out in the judgment to arrive at the conclusion that the appellant accused was guilty of having committed murder of his uncle Kashinath Ramchandra Patil, is misplaced. In the decision tendered by the supreme court in the case of Aghnoo Nagesia vs. State Supreme of Bihar reported in AIR 1966 SC 119, the Supreme Court has cautioned and has held in the paras 12, 13 and 14 as under:

“12. Shortly, put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. See Hanumant Govind v. State of M.P. 1952 SCR 1091 at P.111 (AIR 1952 SC 343 at p.350) and 1953 SCR 94 (AIR 1952 SC 354). The accused is entitled to insist that the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is selfexculpatory; and the prosecution intends to use the whole of the statement against the accused.

13. Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive the preparation, the opportunity, the provocation the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, i.e. some fact which by itself or alongwith other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also, every other admission of an incriminating fact contained in the statement is part of the confession.

14. If proof of the confession is excluded by any provision of law such as S.24, S.25 and S.26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as s.27 of the Evidence Act. Little substance and content would be left in Ss. 24, 25 and 26 if proof of admissions of incriminating facts in a confessional statement is permitted."

22. Now let us examine as to whether the prosecution has been able to prove that the sword which according to the prosecution was used for committing murder of the victim was seized from the appellant accused. P. W. No.11 in his evidence has deposed to the effect that when he was called at the police station to act as a panch he saw the appellant accused standing there and he had a sword in his hand and it was stained with blood. He also described the sword as 2 ft and 6 inches in length and has identified both the appellant accused as well as sword (Article 1) in the court. In his cross examination, this witness had candidly admitted that when he went to the police station he

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was not against knowing whether any case was registered against the accused and that the accused kept sword on the table in his presence, when he produced the same before the police. That goes to show that the sword was lying on the table in police station when it came to be seized. Therefore, it becomes doubtful whether the sword was seized from the accused or taken charge of from the table where it was found lying. Whatever it may be, it has to be appreciated in the matter that the panchas were called much after the accused had presented himself in the police station or was arrested and it is the case of the I.O. that the accused surrendered himself and handed over the sword to them. It is not expected that the panchas were already present when the appellant accused came to the police station and surrendered. Even otherwise, this fact cannot be considered as evidence against the accused in view of the fact that it is inculpatory in nature and would be hit by section 25 of the Evidence Act as the same also forms part of the F.I.R. 23. Now we are left with medical and forensic evidence which, though corroborative in nature, does not help the prosecution in establishing the guilt against the accused.” 16. The law on circumstantial evidence is well crystallized by the following decisions of the Apex Court. (i) Hanumant Vs. State of Madhya Pradesh (AIR 1952 SC 343 :: [1952] 1 SCR 1091); (ii) State of Punjab V. Jagir Singh (1973 AIR 2407 :: 1974 SCR (1) 328); (iii) Shankarlal Dixit V. State of Maharashtra (1981 AIR 965 :: 1981 (2) SCC 35); (iv) Sharad Sarda V. State of Maharashtra (AIR 1984 SC 1622 :: (1984) 4 SCC 116); (v) G. Parshwanath V. State of Karnataka (2010) 8 SCC 593). 17. The facts and chain of circumstances in a case based on circumstantial evidence needs to be firmly established by the prosecution leading to the only conclusion of guilt against the Accused (Appellant); the chain of circumstances so established should be such that the facts should be consistent with the only hypothesis of guilt of the accused. In the present case if the incriminating confessional statements in the FIR as seen above are removed, we are of the considered opinion that there is no material evidence what so ever to indict and convict the Appellant. In the present case we find that the entire confessional statement which is in unnumbered para 2 of the FIR i.e. Exh.32, once that part is severed from Exh.32, the entire confessional statement is hit by the provisions of Section 25 of the Evidence Act. The other statements in Exh.32 merely consist of the Appellant giving information as to the place where the dead body of Lata was lying and the discovery of the dead body as a consequence thereof. We are of the considered view that, this evidence is not sufficient to convict the Appellant for the offence punishable under Section 302 IPC. The principals enunciated in the decision of the Apex court in the case of Aghnoo Nagesia (supra) are squarely applicable to the present case and therefore we are unable to uphold the findings of the Trial Court by relying upon the contents of the confessional report lodged by Appellant. We are unable to accept the finding of the Trial Court that, there are many admissions made by Appellant in his report which can be considered against him, since the entire report is confessional statement. 18. In view of the above discussion and findings we are of the firm opinion that prosecution has not proved beyond reasonable doubt the offence of murder of Lata against the Appellant. 19. In the result, therefore present Appeal is allowed with following directions:- (i) We quash and set aside the Judgment and Order dated 08.04.2014 of Trial Court and acquit the Appellant of the charge under Section 302 IPC. (ii) The Appellant is ordered to be set at liberty forthwith if not required in any other case. Fine if any paid by Appellant, shall be returned to Appellant. 20. Before parting with the Judgment, we would like to place on record appreciation for efforts put in by Mr. Sayaji D. Nangre learned Advocate appointed by High Court Legal Services Committee, Mumbai for espousing the cause of Appellant, he was thoroughly prepared in the matter and rendered proper and able assistance to the Court. 21. All the concerned to act on an authenticated copy of this Order.
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