23rd August, 2013.

Petitioner Counsel: Mr. DHAIRYASHEEL PATIL h/f. Mr. N.B. NARWADE
Respondent Counsel: Mr. P.P. MORE

Cases Cited:
Aghnoo Nagesia Vs. State of Bihar, AIR 1966 SC 119 [Para 26]
State of U.P. Vs. Deoman Upadhyaya, AIR 1960 SC 1125 (1) [Para 28]

JUDGMENT

JUDGMENT :- The appeal is filed against judgment and order of Sessions Case No. 145 of 2011, which was pending in the Court of Additional Sessions Judge, Ahmednagar. The Trial Court has convicted and sentenced the appellant for offence punishable under section 304 (1) of Indian Penal Code. Rigorous imprisonment of 10 years is given to the appellant and fine of Rs. 10,000/- is also imposed for this offence. He is also convicted and sentenced for the offence punishable under section 201 of Indian Penal Code. Both the sides are heard.

2. In short, the facts leading to the institution of the appeal, can be stated as follows :-

The appellant is resident of Mahavir Nagar, Ahmednagar. The incident took place on the night between 30.3.2011 and 31.3.2011. There was live telecast of cricket match between India and Pakistan on T.V. Arrangement was made in the temple of Lord Ganesha situated at Civil HUDCO, Nagar for watching the match on big screen of T.V. The match was over at about 11.00 p.m. of 30.3.2011. Many person, who were mainly youngsters, had gathered there to watch the match. When the match was over, appellant - Dinesh and his friends like Chandrakant alias Kaka Shelke, Laxman Shelke, Parshuram Shelke and Bhau Pagare went towards the cycle shop of Kaka Shelke, which is situated just opposite to this temple.

3. Deceased Raju Dinde went towards the cycle shop and after seeing the appellant and his friends near shop, he started giving abuses to them. As there was no reason for giving such abuses and Raju was attempting to quarrel without any reason, the appellant and his friends started assaulting Raju with fist blows and kicks. During the incident, the appellant took out a knife from pocket of his clothes and gave blows of knife on the chest and abdomen of Raju. Raju collapsed due to these blows. Then Kaka Shelke threw a stone on the face of Raju. Raju died on the spot.

4. Few youngsters, who were returning from the temple, witnessed aforesaid incident. Nobody dared to intervene in the incident. When appellant and his friends realised that Raju was no more, they dragged the dead body of Raju up to garbage heap, which was lying near a bridge. The bridge is situated in the vicinity of the aforesaid shop. The appellant and his friends then tried to clean up the things like blood by using water. Then they returned their respective houses.

5. On the same night, after some time of the incident, the appellant started repenting over the incident. Then he went to Police Station Tophkhana from Ahmednagar and he gave report about the incident. The Police Station Officer of this police station recorded the report of the appellant and on that basis, the crime at C.R. No. 125 of 2011 came to be registered at 00.35 hour of 31.3.2011 for the offences punishable under sections 302, 201 and 34 of I.P.C. The P.S.O. gave report about this information to Superior Officer. The Deputy Superintendent of Police - Sham Ghuge rushed to the police station. He took over the investigation of the case. Ghuge visited the spot of offence. In his presence inquest panchanama came to be prepared by other Police Officer. Articles like clothes of the deceased and blade of knife, which was found in the dead body, were taken over under inquest panchanama. The dead body was referred for the P.M. examination. The accused came to be arrested. His clothes and shoe pair were taken over under panchanama. Panchanama of spot of offence also came to be prepared in presence of panch witnesses. The appellant showed this spot to police. Blood was found both inside of the shop and outside of the shop. Articles like earth sample mixed with blood, razor having blood stains, three stones having blood stains were taken over from the spot under the spot panchanama. It transpired during investigation that shirt of the appellant was having blood stains and he had burnt the shirt on the backside of the aforesaid temple and he had taken a T-shirt of his friend. Statement of that friend came to recorded. On the basis of statement given by the accused, the recovery of pieces of burnt shirt was made. Cover of the knife used in the incident was also recovered from the top of the roof of the temple on the basis of statement given by the appellant. The appellant disclosed that he had purchased the knife from one shop and he took the police to said shop. Statement of the shop owner came to be recorded. Statements of so many eye witnesses came to be recorded.

6. Kaka Shelke could not be traced, but aforesaid other friends of the appellant came to be arrested. When chargesheet was filed Kaka Shelke was shown as absconding accused. The aforesaid articles were sent to C.A. Office. The charge was framed for the aforesaid offences. The appellant pleaded not guilty. The other accused, who faced the trial, also pleaded not guilty. The accused/appellant took the defence of total denial. He also took the defence of alibi and he examined his father to show that he was present in the house at the relevant time and he was watching the aforesaid match in the house on T.V. The Trial Court has held that evidence is sufficient to prove the offence of homicide. The Trial Court has held that the offence under section 304 (1) of I.P.C. is proved as the incident was started by deceased by giving abuses.

7. It was submitted for the appellant that evidence given by prosecution is not convincing and further, there is no corroborative evidence of independent witnesses. It was submitted for appellant that the so called first information report given by appellant cannot be used against him. Both the sides cited some reported cases.

8. The appellant has not disputed that Raju Dinde died homicidal death. Though there is no dispute over the cause of death, for better appreciation of the evidence, it is desirable in this case to make short discussion about the evidence given on the cause of death.

9. There is evidence of Ghuge (PW 18), Investigating Officer, and Bhagwat (PW 16) on inquest panchanama which is at Exh. 70. The panch witnesses of inquest panchanam have turned hostile. The evidence of two Police Officers and Exh. 70 show that they noticed bleeding injuries on the head, chest and abdomen of the dead body. The blade of knife had remained inside the body at lumbar region. Dr. Sanjay (PW 12) conducted the post mortem examination. His evidence shows that as many as eight antimortem injuries were found on the dead body. There were stab injuries on left thigh, at umbilical region, at right lumber region, at left lumber region and over chest. One penetrating injury was found over epigastic region. One crushed injury was found on face at left cheek. The P.M. report at Exh. 67 is proved in the evidence of doctor and it is consistent with the evidence given by doctor. The doctor has given opinion that the stab injuries were caused by using sharp weapon. Doctor has given opinion that the death of Raju took place due to haemorrhagic shock due to aforesaid stab injuries. This evidence is sufficient to prove that Raju died homicidal death.

10. The prosecution has examined eye witnesses like Deepak (PW 5), Dnyaneshwar (PW 6), Amol (PW 7), Sonu (PW 9), Ravi (PW 10) and Ganesh (PW 11). All the witnesses have turned hostile. No incriminating circumstance is brought on the record during cross examination of these witnesses by the prosecutor. Special Judicial Magistrate, Ghugarkar (PW 13) is examined to prove the statements of some eye witnesses recorded under section 164 of Criminal Procedure Code. As the witnesses have turned hostile, there is no need to discuss such record.

11. Two brothers of deceased viz. Avinash (PW 8) and Devidas (PW 15) are examined to show that on that night at about 1.30 hours, they learnt from police that Raju was murdered. Their evidence also shows that they further learnt that one of the accused had given information about the murder to the police. Though the name of appellant was not informed to them, the circumstance that at 1.30 hours of that night police approached them and gave aforesaid information is important as it helps in appreciation of other evidence. This circumstance needs to be treated as relevant circumstance.

12. Pandharinath (PW 17), A.S.I., was attached to Tophkhana Police Station. He was P.S.O. from 8.00 p.m. of 30.3.2011 to 8.00 a.m. of 31.3.2011. He has given evidence that appellant came to the police station on that night and he gave report about the incident. This witness has deposed that he recorded the report given by the appellant and he registered the crime on the basis of this report. The witness has deposed that the F.I.R., Exh. 86, was signed by the appellant in his presence. This witness prepared printed F.I.R. which is at Exh. 88. This witness has given evidence that he gave information about this incident to his Superior Officer by sending a report. Exh. 87 is the office copy of that report. Exh. 86 and the other record show that the crime came to be registered at 00.35 hours on that night. Thus, it can be said that prior to that time, the accused had approached police.

13. The F.I.R. at Exh. 86 is duly proved in the evidence of PW 17. This document contains the narration of entire incident of homicide. It also contains the narration of the incident of shifting of the dead body from the place of offence to other place, where the dead body was found. If the provision of section 25 of Evidence Act, which creates bar for using confessional statement, is kept in mind and if the provision of section 27 of Evidence Act is used, following information which can be found in Exh. 86, F.I.R., can be separated and considered :-

(i) that, there was blood in front of cycle shop of Kaka Shelke situated at Ganesh Chowk, Civil HUDCO, Nagar, and

(ii) the dead body of Raju Dinde was lying in the heap of garbage near a bridge situated in the vicinity of the shop of Kaka Shelke.

14. Sham Ghuge (PW 18), Deputy Superintendent of Police, who made investigation, has given evidence that he received the information from police station at about 1.00 a.m. His evidence in cross examination shows that he reached the police station within 10 minutes of receiving of the information. In the cross examination, he has given one admission that after reaching the police station, he first went to the spot for making observation and then he returned to police station. In the cross examination, it is brought on record that he called the witnesses in the morning to witness spot panchanama. Though this admission is there, not much can be made out of this admission. In view of the provision of section 27 of Evidence Act, what is relevant is the giving of information by the accused and the discovery of the things on the basis of such disclosure. In such a case, it becomes necessary to ascertain as to whether police had received information first time from the accused or whether the information was already received from other sources by police. The record and the evidence of aforesaid two Police Officers (PW 17 and 18) show that police received information first time from the appellant, on the basis of that information crime was registered, Ghuge took over the investigation immediately after 1.00 p.m., and on the basis of this information he visited the spot, mentioned in the spot panchanama.

15. Ghuge (PW 18) has given evidence that during investigation, he prepared panchanama at Exh. 90 under which he took over the clothes of deceased and blade of knife which was found in the dead body. The inquest panchanama was prepared by P.S.I. - Mantonde under the instructions of Ghuge. Ghuge has given evidence that he prepared spot panchanama at Exh. 90 in the presence of panch witnesses and he took over eight articles from the spot. Ghuge has given evidence that he took over the clothes of accused/appellant under panchanama at Exh. 93. All these articles are identified by Ghuge in his evidence.

16. Ghuge (PW 18) has given evidence that on 5.4.2011 appellant gave statement to him of which memorandum was prepared. The memorandum is proved as Exh. 100. In the statement, accused disclosed that cover of knife was kept by him on the temple and he had burnt his shirt on the backside of this temple. These articles came to be recovered and seized under seizure panchanama which is at Exh. 100/1. At this stage, it needs to be mentioned that no blood was found on these two articles and there is no need to discuss this evidence more. Ghuge's evidence shows that he made investigation in respect of the T-shirt which accused was wearing at the time of his arrest. That evidence needs no discussion as the so called friend of appellant has not given evidence on this incident.

17. In the cross examination of Ghuge (PW 18), it is brought on the record that the investigation revealed that due to the abuses given by the accused, the incident started and in that incident the offence of homicide took place. In the cross examination, it is suggested to Ghuge that some persons of Muslim community, who became angry after the match had probably committed the murder of Raju. This suggestion is denied by Ghuge. It is suggested to Ghuge that the signatures of the accused, appearing on the F.I.R. and other documents, were obtained by using force. These suggestions are also denied.

18. The spot panchanama at Exh. 92 shows that it was prepared between 00.45 hours and 12.00 hours of 31.3.2011. In view of the aforesaid evidence, it can be said that there is little bit discrepancy about the time of starting of spot panchanama. However, as the panchanama was concluded at 12.00 hours of 31.3.2011 and as there are other circumstances, this discrepancy has not created reasonable doubt about the evidence given by Ghuge. The spot panchanama shows that the appellant showed the spot of offence and the spot where the dead body was lying, to police. It is already observed that what is material is information, which was given by the appellant in F.I.R. The spot of offence is situated in front of cycle shop of Kaka Shelke and this shop is situated in front of temple of Lord Ganesha, where many youngsters had gathered on that night. The spot panchanama shows that this shop was opened for preparing the panchanama. It shows that pool of blood was found at north-west corner near the door of the shop, inside of the shop. There was platform of 5 ft. x 5 ft. in front of the shop, having cover of tiles. Many blood stains were found on this platform. At north corner of the shop, outside of the shed, blood stains were found on the ground. One stone having blood stains was found in front of the shop and two stones, having bloods stains, were found on the road, which is at some distance from this shop. The north-south road is known as Civil-HUDCO coloney - Makasare Health Club Road. A tiffin of steel of four boxes was found in front of the shop. A black plastic chappal was found there. A razor (blade, generally used by barbers), having blood stains, was found in front of shop. A bridge is situated at the distance of 48 fts. from this shop. The dead body of Raju was lying near this bridge. In the spot panchanama, in hand sketch map, approximate location, of the aforesaid things are shown. From this map, it can be said that the bridge and the dead body were on the western side of the cycle shop and the Civil HUDCO - Health Club road. All aforesaid articles and also earth samples mixed with blood were taken over under this panchanama. The articles seized under this panchanama and other panchanamas, which are already mentioned, were sent to C.A. Office by Ghuge (PW 18). The office copy of covering letter is proved as Exh. 112.

19. The evidence on record does not show that police already knew aforesaid two spots. It was mid night. In the spot panchanama, there is mention that accused was present on the spot when panchanama was being prepared. Even if in view of the circumstances already discussed, this portion is ignored, the other portion of spot panchanama can be used to ascertain as to whether it is consistent with the information given by the accused in F.I.R. There is no law that memorandum of information should be prepared in the presence of independent witnesses. In view of this position of law, the relevant portion of F.I.R., Exh. 86, which is already separated, can be used under section 27 of Evidence Act. This information led to the discovery of things which are noted in the spot panchanam, Exh. 92. This Court has no hesitation to hold that the documents at Exhs. 86 and 92 and the substantive evidence of aforesaid two Police Officers, is sufficient to prove that the conditions laid down in section 27 of Evidence Act are satisfied.

20. It is true that panch witnesses on Exh. 92 has turned hostile. The record shows that police used witnesses for all the panchanamas including Exh. 92. The panch witnesses have admitted that they have signed on these documents. In view of the facts and circumstances of this case, this Court holds that there is no reason to disbelieve the aforesaid Police Officers.

21. The evidence of Ghuge (PW 18) shows that under panchanama at Exh. 93, he took over the clothes of accused like jeans pan, which had blood stains, pair of shoe and one T-shirt on 31.3.2011. This panchanama was drawn between 5.30 a.m. and 6.00 a.m. The arrest panchanama in respect of the appellant is at Exh. 106. It is dated 31.1.2011. There is no reason to disbelieve this evidence also. These articles were also sent to C.A. Office.

22. As the conditions laid down in section 27 of the Evidence Act are not satisfied, this Court is not discussing in detail the disclosures made by appellant, which can be found in Exhs. 100 and 105. The panchanamas prepared on the basis of these disclosures also need not be considered. Similarly the evidence at Exh. 111 also need not be discussed as there is no evidence of Ravindra in support of that document.

23. Police Constable Anand (PW 19) is examined to prove that that he carried the aforesaid articles to C.A. Office. The office copy of covering letter sent to C.A. office, Exh. 112, is proved in the evidence of Ghuge. The C.A. report at Exh. 74 shows that human blood was detected on shoe pair of the accused and on the jeans pant of the accused. Human blood was found on the blade of knife recovered from the dead body, on the stones seized under the spot panchanama, in the earth sample taken over from the spot of offence and also on razor taken over from the spot of offence. Only because the blood group of the deceased and the blood group which was detected on the aforesaid articles could not be detected, aforesaid circumstances, circumstantial evidence, cannot be discarded. The presence of human blood on the aforesaid things is certainly incriminating circumstance and it can be used against the accused. It is not the case of the appellant that he had sustained any injury and that can also be seen from the arrest panchanama.

24. The discussion made above shows that immediately after 11.00 p.m. of 30.3.2011 the incident in question took place. The appellant approached police before 00.35 hours of 31.3.2011. There was human blood on his pant and shoe pair. He had come to police station to give report about the incident. This is the evidence on the conduct of the accused and it shows the nexus of the accused with the crime. Such conduct is definitely relevant under section 8 of Evidence Act.

25. Defence witness Dnyandeo is father of accused/appellant. He has given evidence that appellant/accused was watching cricket match on T.V. set in the house on that night. He has deposed that police picked up the appellant from the residential place on that night. This defence of alibi is not at all convincing and it cannot be believed. This defence was first time taken after starting of the trial. There is record of police station and there are many circumstances, which are against the accused. There is circumstantial check to the evidence on presence of the accused on the spot at the relevant time.

26. The learned counsel for the appellant has placed reliance on the case reported as AIR 1966 SUPREME COURT 119 [Aghnoo Nagesia Vs. State of Bihar]. The sum and substance of the discussion of relevant provisions of Evidence Act can be found at paragraph Nos. 18 and 20 of this case. They are as under :-

"(18) 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.

(19) ........

(20) We think, therefore, that save and except part 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."

27. The proposition made by the Apex Court cannot be disputed. This Court has considered only that portion from F.I.R. of the accused, which falls under section 27 of Evidence Act. This Court has considered the conduct of the accused, which is separable from the statement and which can be used under section 8 of Evidence Act.

28. The learned APP placed reliance on the case reported as AIR 1960 SUPREME COURT 1125 (1) [State of U.P. Vs. Deoman Upadhyaya]. This case is decided by five Hon'ble Judges of the Apex Court. The provisions of section 24, 25 and 27 are discussed. The Apex Court has held that the challenge to the constitution validity of section 27 of Evidence Act is not tenable. The Apex Court has discussed the provision of section 162 of Cr.P.C. in relation of section 27 of Evidence Act. The discussion made by the Apex Court was in the mind of this Court, when this Court appreciated the aforesaid evidence.

29. From the evidence which is discussed by this Court, the only inference possible is that the appellant was involved in the attack made on Raju with dangerous weapon like knife. In view of the injuries described in P.M. report by doctor, inference of intention is easy. Only due to the case of prosecution that the deceased had started quarrel and incident started due to the fault of deceased, the Trial Court has held the appellant guilty of the offence punishable under section 304 (1) of I.P.C. The State has not challenged that decision. In view of these circumstances, this Court holds that there is no reason to interfere the judgment and order of Trial Court. The evidence discussed shows that the dead body was shifted by the appellant from the place of offence to make the evidence disappear. Thus, there is evidence for proof of offence punishable under section 201 of I.P.C. also. There is no reason to interfere on the point of quantum of sentence in view of the evidence of doctor.

30. In the result, the appeal stands dismissed.

Appeal dismissed.