2011 ALL MR (Cri) 34
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.D. SINHA AND V.K. TAHILRAMANI, JJ.

Ramu Appa Mahapatar Vs. State Of Maharashtra

Criminal Appeal No.252 of 2005

2nd December, 2010

Petitioner Counsel: Mrs. SONIA MISKEN
Respondent Counsel: Mr. H. J. DEDHIA

Penal Code (1860), S.300 - Evidence Act (1872), S.24 - Murder - Extra Judicial confession - Reliability - Prosecution case that accused assaulted deceased who was living with him with the help of grinding stone and stick - Accused was present on the day of incident in the house with the deceased and his son - Possibility of any other person causing death of deceased by inflicting multiple injuries has been completely ruled out - Finding of blood on the spot of incident, grinding stone and broken bangles as well as mangalsutra of the deceased - Extra-judicial confession made before brother of deceased is totally voluntary and therefore, admissible - Conviction of accused is proper. (Paras 14, 15)

JUDGMENT

D. D. SINHA, J.:- Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondents - State.

2. The appellant has challenged the validity of the findings of conviction recorded by the Ad-hoc Additional District and Sessions Judge, Thane, for the offence punishable under Section 302 of the Indian Penal Code vide a impugned judgment dated 25th October, 2004, whereby the appellant was sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.1,000/-, in default to suffer rigorous imprisonment for three months.

3. The brief facts of the prosecution case are as under :-

The appellant was living with deceased Manda, it was a live-in relationship. Both of them were living in chawl of one Ravindra Gopal Jadhav, who was the landlord. It is the case of the prosecution that the appellant informed Mr. Jadhav that his wife has expired and he was going to her parents house at Dipchole Village. The appellant along with his son left for village Dipchole. The appellant met brother of deceased Manda and informed him in the presence of Shankar, Pandhari and Chandabai that he had a quarrel with deceased Manda and therefore he assaulted her and Manda succumbed to the injuries. Before the appellant came back along with his relatives at the spot of incident at Village Kudus the complainant Ravindra had already opened the door of the house which was bolted from outside and he noticed that Manda was lying dead and had multiple bleeding injuries and her mangalsutra and glass bangles were broken, some of the household articles were scattered on the ground. Complainant enquired with the appellant about the incident when he returned along with his relatives. The appellant told him that deceased Manda was suspecting that he had illicit relations with some other woman therefore there was a quarrel in which he had assaulted Manda with the help of grinding stone and stick. Landlord of the appellant Mr. Ravindra Jadhav lodged a complaint in the police station, hence offence under Section 302 of the Indian Penal Code was registered against the appellant.

4. Police drew inquest panchanama Exhibit 12, spot panchanama Exhibit 9 and seized in all 12 articles from the spot of incident. The investigating officer seized the clothes of the deceased, collected provisional death certificate of the deceased, post mortem notes and arrested the appellant under arrest panchanama Exhibit 29, seized the weapon i.e. stick pursuant to the memorandum statement. On completion of investigation, charge-sheet was filed against the appellant for the offence punishable under Section 302 of the Indian Penal Code. Charge was explained and read over to the appellant to which he pleaded not guilty and claimed to be tried.

5. The learned counsel for the appellant has submitted that there was no direct evidence adduced by the prosecution and the prosecution case is based on testimony of P.W.1 Ravindra, P.W.3 Bhagwan, P.W.4 Chandabai and P.W.6 Shankar for establishing the fact of extra-judicial confession alleged to have been given by the appellant to these witnesses. It is contended that the case of the prosecution is solely based on extra-judicial confession alleged to have been made by the appellant to these witnesses. It is submitted that the evidence of extra-judicial confession basically being a weak kind of evidence, should not be accepted unless it shows that the statement made by the appellant is totally voluntary and is corroborated by other evidence. The learned counsel for the appellant has submitted that in the instant case the evidence of extra-judicial confession alleged to have been made by the appellant to the prosecution witnesses is not consistent with the material particulars of the prosecution case and for want of corroboration it is highly unsafe to place reliance on such extra-judicial confession.

6. The learned counsel for the appellant has further submitted that human blood found on the clothes of the appellant though was of 'A' group, however it is not in dispute that the blood group of the appellant and deceased is/was 'A' and therefore this is neither the incriminating circumstances nor connects the appellant with the crime in question. It is further contended that the testimony of P.W.1 Ravindra, P.W.3 Bhagwan, P.W.4 Chandabai does not inspire confidence and in absence of necessary corroboration, conviction of the appellant for the offence punishable under Section 302 of the Indian Penal Code, merely in view of the medical evidence of Dr. Anand is unsustainable in law and therefore the impugned judgment and order is liable to be quashed and set aside.

7. The learned Additional Public Prosecutor on the other hand has supported the impugned judgment and order of conviction passed by the trial court and contended that the evidence of P.W.1 Ravindra, P.W.3 Bhagwan and P.W.4 Chandabai shows that the appellant made an extra-judicial confession which was completely voluntary and was not made under any kind of pressure and therefore the trial court was justified in holding that the prosecution succeeded in proving the case beyond all reasonable doubt, since said extra-judicial confession was completely corroborated by the medical evidence.

8. We have considered the contentions canvassed by the respective counsels for the parties. Before we scrutinise the evidence of prosecution witnesses, it will be appropriate to consider the law relating to extra-judicial confession. It is well settled that the confession cannot be used against the accused person until court is satisfied that it is voluntarily. In order to render a confession admissible it must be totally voluntary and free from police influence. Similarly the confession of the accused should show that the accused in unequivocal terms admitted the crime apart from the fact that it is made voluntarily and is true. Extra-judicial confession is one which is made by party elsewhere than before the Magistrate or in the Court and the said statement is admissible in the evidence not only made in respect of the crime but also in respect of those acts of the accused from which guilt can be implied. Whether or not the confession is voluntary will depend upon the facts and circumstances of each case and its admissibility will have to be considered in the light of provisions of Section 24 of the Evidence Act. An extra-judicial confession can be made to any person or collection or body of persons. It is well settled that merely because the person to whom the confession is made is a father or brother of the accused, it will be improper to discard the same only on the basis of existence of relationship between them if it satisfies other legal requirements in law. The conduct of the accused after commission of crime to reveal the facts pertaining to the crime committed by him to a total stranger is difficult to accept, however, if the said confession satisfies the requirements of law then the court should not be reluctant to accept such extra-judicial confession particularly because unnatural conduct may not necessarily shake the veracity of the witnesses testimony in all circumstances, but the court must look for corroboration to get the assurance of truth. If the confession, voluntarily and truthfully made is an efficacious proof of the guilt. It is pertinent to note that if the confession is believed by the court to be truthful same can safely be accepted, in a given case even without corroboration. It is no doubt true that there is no legal bar to convict the accused on the basis of an extra-judicial confession which is voluntarily made and true, but the rule of prudence requires the court to seek corroboration from independent evidence.

9. Now we propose to examine the prosecution evidence pertaining to extra-judicial confession made by the appellant to the prosecution witnesses in the light of the law on the subject. In the instant case the important evidence adduced by the prosecution to prove the extra-judicial confession is of P.W.3 Bhagwan brother of the deceased, P.W.4 Chandabai wife of P.W.3 Bhagwan. Witness Bhagwan in his examination in chief has stated that on 21st September, 2003 at about 7.30 a.m. he was sitting along with one Maruti, Pandurang Thorat in front of his own house. One Shankar Rama Bhoye was also present with them. At that time appellant came along with his son Kiran and told him in the presence of others that there was a quarrel between him and deceased Manda and appellant assaulted Manda who succumbed to the injuries. It has come in the examination-in-chief of this witness that the landlord of the appellant P.W.1 Ravindra was present at that time. The evidence of this witness further shows that this witness and others those who were present went to the house of the appellant and saw Manda lying dead in pool of blood and had sustained injuries on her forehead, head and face. Witness Bhagwan has further stated in his examination-in-chief that the appellant also informed him and others that he assaulted deceased Manda with grinding stone and wooden stick. In the cross-examination of this witness it has come that deceased Manda as well as the appellant used to visit this witness and also used to stay with him of and on. In the cross-examination Bhagwan was confronted with his police statement by the defence in order to show that there is a omission about the appellant confessing to him that he assaulted Manda with grinding stone and wooden stick. It is pertinent to note that the defence did not prove this omission by putting it to the investigating officer at the time of recording of his evidence in the court and therefore same cannot affect veracity of the testimony of this witness. The defence failed to elucidate any other material in the cross-examination of P.W.1 Bhagwan which would affect the veracity of the testimony of this witness relating to extra-judicial confession made by the appellant to this witness.

10. So far as the evidence of P.W.4 Chandabai is concerned, she has stated in her examination-in-chief that on 21st September, 2003 her husband P.W.3 Bhagwan was chitchatting with Shankar, Maruti and Pandurang, at that time the appellant came there with his son Kiran and told her as well as others that he had a quarrel with Manda, assaulted her and she was dead. The evidence of this witness shows that the appellant after he made an extra-judicial confession left his son Kiran with this witness and went away. Testimony of this witness is free from contradictions and omissions and therefore the testimony, in our view, is cogent and it corroborates the testimony of P.W.3 Bhagwan in respect of the extra-judicial confession made by the appellant.

11. The evidence of P.W.1 Ravindra (landlord of the appellant) shows that on 21st September, 2003 at about 6.15 a.m. appellant came to him along with his son and informed him that his wife has expired. The appellant thereafter went to the house of the parents of deceased to call her relatives. This witness went to the house of the appellant along with his brother. The door of the house was bolted from outside. They opened the door and saw that wife of the appellant was lying dead on the floor in pool of blood. At that time appellant came back with the brother of the deceased. The evidence of this witness further shows that when this witness inquired with the appellant about the incident, appellant told this witness in the presence of others that he assaulted the deceased Manda with the grinding stone. The evidence of this witness Ravindra further shows that he immediately went to the police station and lodged the complaint, Exhibit 7. There is nothing adverse has come in the cross-examination of this witness so as to discredit his testimony. His evidence is free from omissions and contradictions in regard to the material particulars of the prosecution case pertaining to extra-judicial confession as well as other circumstances brought on record by the prosecution.

12. The evidence of P.W.6 Shankar shows that on 21st September, 2003 he was sitting with P.W.3 Bhagwan, Maruti and Pandurang in front of the house of P.W.3 Bhagwan. At about 7.30 a.m. The appellant came there in auto rickshaw with his son. Appellant told P.W.3 Bhagwan that he had a quarrel with deceased Manda, assaulted her and she died due to said assault. It has come in the testimony of this witness that appellant left his son with Chandabai (P.W.4) the wife of Bhagwan (P.W.3) and went away. This witness along with others went to the house of the appellant and saw Manda lying dead on the floor of the room. Since the omissions were not proved by the investigating officer, the same cannot be relied on for discrediting the testimony of this witness.

13. We have considered the evidence of P.W.1 Ravindra, P.W.3 Bhagwan, P.W.4 Chandabai and P.W.6 Shankar individually as well as collectively, it shows that the confession made by the appellant was totally voluntary and not under any pressure. As per the confessional statement made by the appellant, he had assaulted Manda with the grinding stone and therefore it will be appropriate to consider at this stage the medical evidence of Dr. Anand P.W.10 who had conducted post mortem examination on the dead body of deceased Manda. The evidence of Dr. Anand shows that the deceased suffered following 16 external injuries :

1. 2 C.L.W. just in front of right pinnai, i) 1 c.m. x 1 c.m. x bone touch sharp edges, ii) 1 cm x 2 cm x bone touch sharp edges.

2. 2 C.L.W. on forehead just above the upper eye lid right side laterally, 3 cm x 1 cm x bone touch sharp edges.

3. 1 C.L.W. on right temporal bone just behind and above right ear 7 cm x 1/2 cm x bone tough sharp edge.

4. 1 C.L.W. behind right ear 3 cm x 1/2 cm x muscle deep sharp edges.

5. 1 C.L.W. on right lip laterally 2 cm x 1/2 cm x muscle deep.

6. Right chick 2 C.L.W., 1) 2 cm x 1/2 cm x skin deep sharp edge, 2) on mandible just below lower lip 1 cm x 1/2 cm x muscle deep sharp edges.

7. On palpation fracture mandible in mid-line.

8. 1 C.L.W. on left pinna upper lobe 2 cm x 2 mm x skin deep.

9. 1 C.L.W. on nasion 2 cm x 2 mm x bone deep.

10. Open fracture of nasal bone of nasion.

11. 1 C.L.W. on left occiput just behind left ear 4 cm x 1-1/2 cm x bone touch.

12. 1 C.L.W. on left side of occiput just below above mentioned injury 3 cm x 1-1/2 cm x bone touch sharp edges.

13. On palpation fracture ribs rights side anterior 6th, 7th, 8th right side posterior - 5th, 6th, 7th, 8th and 9th.On left sides anterior - 5th, 6th, 7th, 8thpaostserior - 5th, 6th, 7th, 8th, 9th & 10th

14. Contusion on right pectoral region from left nipple to sternum oblique - 7 cm x 1/2 cm x black in colour.

15. Pectoral region 2 cm below nipple, 9 cm x 1/2 cm, black in colour.

16. Contusions on back 4 in numbers, 2 oblique on right side -

i) 15 cm x 1/2 cm black in colour

ii) 20 cm x 1/2 cm black in colour, 2 on left side oblique

iii) 12 cm x 1/2 cm black in colour

iv) 19 cm x 1/2 cm black in colour

On internal examination, the deceased suffered following injuries :Injury under the scalf was Hoemotoma on right temporal bone 7 cm x 2 cm cannot be washed out with floating water.

1. Examination of skull and vault and base-fracture right Zygomatic bone just underneath the injury mentioned in No.17 - 1st injury.

2. Brain covering intact, brain matter congested.

As per column no.20 - examination of Thoras, fracture ribs right side anterior - 6th, 7th, 8th and 9th ribs right sides posterior, 5th, 6th, 8th and 9th Left side anterior - 5th, 6th, 7th, 8th and 9th - left side posterior 5th, 6th, 7th, 8th and 9th and 10th

Right lung - congested and small laceration on lower lobe,posteriorly at the base 2 cm x 1/2 cmleft Lung - congested.

As per column no. 21, Abdomen, 1 noted cavity 100 to 150 ml of blood. On examination of Bucal cavity, teeth and tongue, bucal cavity was intact, tongue was within the mouth and there was fracture under mid-line.

Liver - there were three lacerations 1) at apeoh right lobe x 4 cm x 2 cm oblique

2) on left lobe 7 cm x 2 cm transverse

3) on left lobe 9 cm x 1 cm oblique

The doctor has opined that the cause of death was shock and hemorrhage due to injuries to vital organs like lungs and liver and multiple injuries. The doctor specifically opined that probable cause of death was haemorrhaegic shock with neurologic shock due to multiple injuries which were sufficient in ordinary course of nature to cause death. According to doctor the age of injuries was less than 24 hours. The post-mortem examination was conducted by doctor on 21st September, 2003. The medical evidence, in our view, completely corroborates the extra-judicial confession made by the appellant to the prosecution witnesses. The medical officer has also opined that injuries mentioned in column 17 were possible by article '11' i.e. grinding stone and article '12' i.e. wooden stick. Defence, in our view, failed to get any material in the cross-examination of the medical officer which would affect veracity of the testimony of medical officer.

14. In the instant case the evidence adduced by the prosecution clearly shows that the extra-judicial confession made by the appellant was totally voluntary and not under any pressure which is also corroborated by the following circumstances established by the prosecution.

1. The appellant was present on the day of incident in the house with the deceased and his son;

2. Deceased died a homicidal death considering the medical evidence of P.W.10 Dr. Anand;

3. Possibility of any other person causing death of deceased Manda by inflicting multiple injuries has been completely ruled out by the prosecution as there is nothing on record to show that anybody had any axe to grind either against the appellant or deceased Manda;

4. Finding of blood on the spot of incident, grinding stone and broken bangles as well as mangalsutra of the deceased.

15. Evidence of the prosecution, in our view, is cogent and trustworthy and therefore the judgment and order of conviction passed by the trial court is just and proper and is also sustainable in law. Hence, appeal dismissed.

Appeal dismissed.