Bombay High Court
Pralhad Dyanoba Gajbhiye vs State Of Maharashtra on 25 January, 1996
Equivalent citations: 1996CRILJ2558
Author: S.P. Kulkarni
Bench: S.P. Kulkarni
JUDGMENT M.B. Ghodeswar, J.
1. This appeal is directed against the judgment and order dated 6-2-1993 passed by 8th Additional Sessions Judge, Nagpur, in Sessions Trial No. 918/1991 convicting the appellant for the offence punishable under Sections 302 and 201 of I.P.C. and sentencing him imprisonment for life.
2. Shortly stated the facts of the prosecution case are as under :
Bhimrao Patil, since deceased, was married to Mainabai daughter of Dnyanoba Gajbhiye (original accused No. 1) in the year 1984. After marriage, they were residing at Mowad. The incident in this case is alleged to have been taken place in the night intervening between 3rd and 4th June, 1991 in Narkhed at the house of original accused No. 1 Dnyanoba, the appellant and other acquitted accused Ramesh are the sons of accused No. 1 Dnyanoba. They were residing jointly in the house at Narkhed. Some one month or so prior to the incident Mainabai w/o Bhimrao was taken to her maternal house at Narkhed and Bhimrao had gone to Raisen in Madhya Pradesh in search of work. On 21-5-1991, Mainabai sustained burn injuries in the house of her father. She was taken to Indira Gandhi Medical Hospital, Nagpur where she was admitted and received the treatment. Bhimrao Patil returned to his village Mowad around 1st of June, 1991 when he was informed by his father PW 7 Gajanan and brother PW 5 Sukdeo about burning incident of Mainabai at Narkhed and hence it is alleged that immediately Bhimrao went to Narkhed. The prosecution case further is that Bhimrao and Mainabai were not pulling on well together. Their relations were strained and accused had a grudge against Bhimrao because of illtreatment by him to Mainabai and, therefore, in the night the accused assaulted Bhimrao throughout the night by sticks and other weapon by tying his hands and legs by rope. He died. For a day, the body was concealed in the house of the accused and in the night of 4th and 5th June, 1991, the accused tied the big stone with the coconut rope on the dead body and it was thrown in manhole of the septic tank and manhole was closed. As Bhimrao did not return to Mowad, his brother PW 5 Sukdeo came to Narkhed, made inquiries about Bhimrao but he could not get any trace. He wrote a latter (Exh. 55) to his brother-in-law on 17-6-1991 showing his suspicion that the accused killed Bhimrao. As the foul smell was emitting from the Gutter, the information was given to Nagar Parishad. The dead body was taken out and information was given to Police Station Narkhed. PW 13 Ganpat Padole, Head Constable, was deputed to make inquiry. Along with police staff and panchas, he went on the spot. He has drawn the inquest panchanama Exh. 26 on 18-6-1991. Head was cut and severed from the body. Big stone was tied over the body. Nobody identified the body and the body could not be identified. As the body was highly in a decomposed state, PW 13 Padole, has requested the doctors of the Primary Health Centre, Narkhed, to perform the post mortem examination over the dead body on the spot. Accordingly doctors came on spot and performed post mortem examination in between 6.20 to 6.50 p.m. and gave report Exh. 37. In the meanwhile PW 13 Ganpat Padole has drawn an identification panchanama Exh. 43 in between 16.30 to 17 hours before panchas to the effect that PW 5 Sukdeo his identified the dead body to be that of his brother Bhimrao, as there was old scar on the body because of fall from the tree and from the clothes which were on the person of the dead body. On the basis of the inquiry report (Exh. 79) of PW 13 Ganpat Padole, PW 14 PSI Askar registered an offence vide Crime No. 131/91 under Section 302 of I.P.C. against the accused persons. He went on spot i.e. the house of accused and during search, one sword, one coir and one cloth were seized from the house of the accused. All the accused were arrested on 19-6-1991 vide arrest panchanama Exh. 33 and they were in police custody up to 26-6-1991. During investigation, a stick from the thrust ceiling of the house was discovered on the memorandum of appellant and one golden chain was recovered on the memorandum of acquitted accused Ramesh. Of course the trial Court has disbelieved the evidence of this discovery. The Investigation Officer has recorded the statements of the witnesses including the neighbours of the accused and the relatives of deceased Bhimrao. On 26-6-1991, the Police produced the accused before the Judicial Magistrate Narkhed and requested for further police custody. The Judicial Magistrate, however, declined to grant further police custody and remanded the accused to magisterial custody. On the same day, the investigating officer has given requisition (Exh. 61) to the Judicial Magistrate for recording the confession of the appellant/accused and acquitted accused Ramesh under Section 164 of Cr.P.C. The Judicial Magistrate First Class granted permission and directed that the accused should be produced on the next day i.e. on 27-6-1991 before him. On 27-6-1991, the Judicial Magistrate PW 6 Prakash Ambekar, recorded the confessional statements of appellant/accused and another accused Ramesh. It is alleged that both the accused have admitted their guilt. The seized property in this case was sent to Chemical Analyser for analysis and after necessary completion of investigation, the charge sheet came to be filed.
3. During trial, the prosecution has examined in all 14 witnesses. In short the evidence of these witnesses is as under :
PW 1 Maroti, peon of Nagar Parishad, Narkhed, gave a complaint regarding the dead body to Police Station Narkhed. PW 2 Abdul Majid is a panch on identification panchanama Exh. 43 who has stated that the dead body was recovered from the Gutter and relatives have identified it but in cross-examination he states that the dead body could not be identified. PW 3 Jaipal is a panch on the spot panchanama Exh. 45 of the house of the accused. PW 4 Suresh is also a panch on the memorandum of accused/appellant Exh. 47 in pursuant of which the stick was seized as per seizure Exh. 48 and on the recovery of golden chain Exh. 52 at the instance of accused Ramesh. He has not supported the prosecution case. Therefore, he was cross-examined by the prosecution. PW 9 Vitthal, PW 10 Chandrabhan and PW 11 Mahendra are examined as eye witnesses but they have not supported the prosecution. Hence they were cross-examined. Nothing is elicited in support of prosecution in their cross-examination. PW 7 Gajanan Patil, father of Bhimrao, has stated that the relations between Bhimrao and Mainabai were cordial. He has also identified the clothes over the dead body to be that of Bhimrao. PW 8 Narendra Arkhel has removed the dead body from Gutter. He has given the description of the clothes over the dead body and he has identified the clothes before the Court. He has stated that the legs of the dead body were tied with the rope of coconut. PW 12 is Raju Furve, Photographer, who has taken the photographes of the dead body and the spot. He has proved the photographs Exh. 72 to 77. PW 13 Ganpat Padole has conducted the inquiry and submitted his report Exh. 79 and PW 14 Namdeo Askar, PSI is investigating officer.
4. PW 5 Sukdeo is brother of Bhimrao and PW 6 Prakash Ambekar is the Judicial Magistrate at Narkhed. On the basis of the evidence, the learned trial Judge believed the evidence of the prosecution regarding confession by appellant/accused and the circumstantial evidence and recorded a finding of conviction against appellant and acquitted the other two accused.
5. The learned counsel for the appellant Shri M. H. Rizway has contended that the confessional statement of appellant is inadmissible in evidence on various counts. The chain of circumstances is not complete and hence the finding of conviction is not justified. The learned Additional Public Prosecutor has tried to support the order. In order to appreciate the contentions, it is necessary to see the evidence adduced in this case regarding the identification is the most important question in this case. The body came to be identified to be that of Bhimrao on the evidence of PW 5 Sukdeo. The evidence of Sukdeo has to be seen in detial. Sukdeo has stated that Bhimrao was properly treating Mainabai. Bhimrao was doing the labour work. Deceased Bhimrao reached Mainabai to her parents house one month prior and Bhimrao has gone to village Raisen in Madhya Pradesh. He learnt that Mainabai was burnt on 21-5-1991. She was admitted in Mayo Hospital. On 3-6-1991 Bhimrao came to Mowad from Raisen and he learned that his wife was burnt. Bhimrao told his father PW 7 Gajanan that he would go to Narkhed and make inquiry in what manner his wife got brunt. This witness has further stated that on 3-6-1991 Bhimrao went to Narkhed and thereafter he did not turn up. PW 5 Sukdeo and other relatives waited for Bhimrao for about 8 years. They also thought that he must have gone to Nagpur as Mainabai was admitted in Hospital. However, they came to know that on 3-6-1991 Bhimrao was heavily assaulted, his hands and feet were tied with rope and he was sent to Central Jail. They made inquiries with Police Station Narkhed and Police told them that Bhimrao was not arrested and he was not referred to Central Jail. On 18-6-1991 PW 5 Sukdeo, his brother-in-law Vithal Gajbhiye, his sister Dropadabai went to Narkhed. When they were proceeding to the house of accused, they noticed that there was crowd in front of the house. The dead body of Bhimrao was taken out from Gadar near the latrine. Two doctors were present there. However, the dead body could not be identified as the body was decomposed. The deceased was wearing black strip pant and he had mark of wound on left leg as he had fallen down from the tree about two years before the incident. This witness has stated that he asked the doctor whether the said injury was old injury and the doctor has replied in the affirmative. He further stated that he identified the dead body of his brother by his pant and injury and at the time of the identification, his sister and brother-in-law were present. He also proved the letter which he has written to his brother-in-law Exh. 55 that Bhimrao was not traced from 2-6-1991. On 20-6-1991 he lodged his complaint (Exh. 56) in Police Station Narkhed showing suspicion for killing of Bhimrao by the accused and showing motive that Bhimrao was wearing golden chain. In cross-examination some important omissions from his previous statement are brought on record in support that Bhimrao had the mark of wound on his leg, that he identified the dead body as Bhimrao was wearing black colour pant, and that one stone was tied to the waist and two on the legs of the dead body. He admitted that he had not mentioned in his complaint Exh. 56 that he had seen the dead body of the deceased and till the date of filing of the complaint Exh. 56, he was not knowing as to whether his brother was done to death. It may be seen that PW 5 Sukdeo lodged his complaint Exh. 56 on 20-6-1991 in Police Station Narkhed against the accused and Chindabai w/o Janbaji Gajbe. this complaint Exh. 56 cannot be treated as first information report in this case as already the investigation had commenced on 18-6-1991 when offence under Sections 302, 201 read with Section 34 of I.P.C. was registered vide Crime No. 131/91 on the inquiry report of PW 13 Ganpat Padole, H.C. The admission given by this witness in cross-examination that till the filing of the complaint Exh. 56 i.e. on 20-6-1991 he was not knowing as to whether his brother was done to death itself goes to show that this witness was not certain as to whether his brother was murdered.
6. Now the statement of PW 5 that he identified the dead body because there was scar on left leg is not at all corroborated by any other evidence nor by the medical evidence post mortem examination report Exh. 37.
Exh. 37 is admitted by the accused and the prosecution, therefore, chose not to examine the doctor who has performed the psotmortem examination. The doctor performed the autopsy over the-dead body on 18-6-1991 in between 6.20 p.m. to 6.50 p.m. on the dead body of unknown person of unknown village, unknown taluka and unknown district. There were wet clothes (i) shirt white with black lining, (ii) white vest, (iii) black pant with white lining and (iv) blue underwear. No special marks on the skin such as scars, tattooing etc. any malformations, peculiarities or other marks of identification was not seen as body was highly decomposed. Surface wounds and injuries were also not noticed as the body was highly in a decomposed state. Only bony skeleton was visible. There was fracture in right knee joint. On internal examination, only skull was present separated from the body in intact condition. In thorax column No. 20, only ribs were present. The doctor who performed the post mortem examination has given opinion as to the cause of death as under :-
"Because of the highly decomposed state of the body, a probable cause of death cannot be opined. The death probably took place 14-16 days before the body was found." In post mortem examination in column No. 7, the sex of the dead body is shown as male but age is not mentioned. Head Constable P.W. 13 Ganpat Padole who gave requisition (Exh. 28) to Civil Surgeon for post mortem examination, has shown the age of the dead body about 25 to 30 years. This is only his guess work. P.W. 5 Sukdeo is elder brother of Bhimrao. The skeleton is not sent for further examination for ascertaining the age of the dead body. It is important to note that even though P.W. 5 Sukdeo has stated that he told the doctors present about the scar on the left leg of the dead body, the post mortem report is silent about any mark or injury seen over the dead body because of highly decomposed condition. Therefore, the evidence of P.W. 5 Sukdeo that he identified the dead body of Bhimrao because of the old scar of injury cannot be believed. Therefore, no importance can be attached to the identification panchanama Exh. 43. The sister of Sukdeo and brother-in-law of Sukdeo are not examined. The doctor has opined that the death must have taken place 14 to 16 days before the body was found. The examination of doctor, therefore, was necessary and prosecution agency ought to have examined the doctor who performed the post mortem examination in such serious offence. Though P.W. 5 Sukdeo has stated that he searched for his brother in Narkhed and he came to know about the assault on Bhimrao by accused from the inquiry made by him from the neighbours, it is very unnatural that he would remain silent for number of days and not complain against the incident to any of the authorities. It is just possible that Exh. 55, the letter allegedly written by P.W. 5 Sukdeo to his brother-in-law, which is seized from his brother-in-law, is a suspicious letter and appears to be created for the purpose of evidence.
7. Next comes the question of the identification of the dead body by the clothes found on it. P.W. 2 Abdul Majid has stated that the relatives of the deceased identified the body because of the clothes the full pant and white shirt. P.W. 2 Abdul Majid though has stated that the relatives had identified the dead body, in cross-examination, he has admitted that it was difficult to identify the dead body from face and figure and further that there werw no special marks of identification on the clothes, such clothes are available in market. It is also pertinent to note that though prosecution has collected the evidence of the neighbouring witnesses, who have allegedly seen the assault going on in the house of accused, there is absolutely no evidence as to which clothes were worn by Bhimrao when the assault by accused was going on. In charge sheet, it is mentioned that 7 witnesses have seen the assault on Bhimrao going on and they gave him water to drink. Similarly two witnesses who were going by the road also witnessed the incident and also requested the accused not to beat Bhimrao. As there is no evidence as to which clothes Bhimrao was wearing, when he left Movad, similarly at the time of the alleged assault which clothes Bhimrao was wearing, it is very difficult to identify the dead body from the clothes without there being any special mark of identification. Considering this evidence, we find that there is no evidence to show that the dead body is of Bhimrao, the brother of P.W. 5 Sukdeo.
8. This takes us to other important evidence of the confession statement of appellant/accused recorded by the Judicial Magistrate First Class, Narkhed, P.W. 6 Prakash Ambekar. P.W. 6 had deposed that on 26.6.1991 he received requisition from Police Station, Narkhed to record the confession of the accused persons i.e. appellant and accused Ramesh vide Exh. 61. He granted permission and directed to produce the accused persons before the Court on the next date i.e. on 27-6-1991. On 26-6-1991 both the accused were remanded to Magisterial custody. On 26-6-1991 the accused were produced before him. In the beginning, he recorded the confession of appellant Prahlad. He stated that at the time of recording confession, the police were asked to go out of the Court building P.W. 6, accused and the clerk were the only person present in the Chamber. Before recording the confession, he told the accused that he was not bound to make any such confession and if such confession is made by him, it would be used against him as an evidence. Therefore, he gave the time of 15 to 20 minutes for reflection. He further stated that he was satisfied that the accused was going to make confession voluntarily. He started recording confession. He further stated that he recorded the confession in the very words of the accused. It was read over to him. He admitted that it was his true narration. Then his signature was obtained on Exh. 62. Then he made memorandum below the recorded confession and signed it. Thereafter he recorded the confession of accused Ramesh. As accused Ramesh is acquitted, it is not necessary to refer to this recording of confession, but he also gave the time of 15/20 minutes for reflection, followed the same procedure as that of recording of confession of appellant. In cross-examination, he has admitted that Exhs. 61 to 63 do not mention that he had put questions to the accused as to whether they had any illtreatment at the hands of the Police and he did not feel it necessary to ask such questions about ill-treatment to the accused. So also he could not assign any reasons as to why in Exh. 61 to 63 it is not mentioned that any time for reflection was given to the accused. Further that the confessions of both the accused were recorded in his chamber and that P.W. 6, his clerk and accused were present. He admitted that the investigating officer had produced the accused persons before him on 27-6-1991. Further that he did not mention the time of recording the confessions. But he has stated that the confessions were recorded in the second half of the Court working hours. Before recording confessions of the accused, they were in his custody for half an hour and prior to that they were in the police custody. There is also no mention in Exhs. 62 and 63 that he asked the Police to go away out of the Court premises. Same reason is given that he did not feel if necessary to mention it. Moreover, before recording the confessions, warning to accused is not mentioned. He told the accused persons after recording their confessions that they are not going to send back to the police custody. He denied the suggestion that he did not observe any safe-guard or rules at the time of recording the confessions of accused persons and that no sufficient time was given to them for reflection. He also admitted that he did not ask accused as to why they are making such statement. He stated that he ascertained from the accused as to whether they were subjected to threat by the police. However, there is no mention of this fact in Exhs. 62 and 63. The learned counsel for the appellant has vehemently criticised this evidence of confession on the ground of its admissibility. He has urged several points (i) no sufficient time for reflection was given, (ii) the accused were in the custody of police (iii) P.W. 6 has not administered warning to accused before recording of the statement, (iv) P.W. 6 has not made any attempt to satisfy himself that the statement of accused is voluntary and he has not appended his certificate, (v) oath was administered to the accused, (vi) P.W. 6 has also not made any attempt as to why the accused was making statement, (vii) P.W. 6 has not informed the accused that he is the Judicial Magistrate and (viii) no assurance that the accused would not be sent back to Police.
9. Perusal of confessional statement Exh. 62 shows that in the beginning the oath is administered. The confession statement is recorded in vernacular Marathi. Below the statement, there is signature of the accused and below that there is certificate in the handwriting of P.W. 6 showing that he explained to accused that he was not bound to make a confession i.e. warning and he was satisfied that this confession was voluntarily made and it contains full and true account of the statement made by him. This Court in Criminal Manual in Chapter I, Paras 17 to 23 has laid down the procedure for recording of confession statement and also prescribed the form of recording the confession and questionaire in Part I and Part II, for the guidance of the Judicial Magistrate and "not to administer oath" is given in bold letters, From the recording of the confession Exh. 62, it seems that PW 6 was not aware of any of these instructions issued by this Court. The counsel for the State has relied on the case of Dagdu v. State of Maharashtra . Placitum B thereof reads as under (Para 50) :-
"The failure to comply with Section 164(3), Cr.P.C. or with the High Court Circulars will not render the confessions inadmissible in evidence. Relevency and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act."
In para 50 it is observed as under :
"Learned counsel appearing for the State is right that the failure to comply with Section 164(3), Cr.P.C. or with the High Court Circulars will not render the confessions inadmissible in evidence. Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act. Section 29 of that Act lays down that if a confession is otherwise relevant it does not become irrelevant merely because, inter alia, the accused was not warned that he was not bound to make it and the evidence of it might be given against him. If, therefore, a confession does not violate any one of the conditions operative under sections 24 to 28 of the Evidence Act, it will be admissible in evidence. But as in respect of any other admissible, oral or documentary, so in the case of confessional statements which are otherwise admissible, the Court has still to consider whether they can be accepted as true. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon confession even if it is admissible in evidence. That shows how important it is for the Magistrate who records the confession to satisfy himself by appropriate questioning of the confessing accused, that the confession is true and voluntary. A strict and faithful compliance with Section 164 of the Code and with the instructions issued by the High Court affords in a large measure the guarantee that the confession is voluntary. The failure to observe the safeguards prescribed therein are in practice calculated to impair the evidentiary value of the confessional statement."
It may be pertinent to not that P.W. 6 has not made any preliminary questioning to accused on 26-6-1991 when he granted permission to Investigation Officer on Exh. 61 and directed the accused to be present on the next day i.e. 27-6-1991. The prosecution has not led any evidence to the effect where the accused were kept when they were ordered to be put in Magisterial Custody on 26-5-1991 and from where the accused were produced in Court on 27-6-1991. P.W. 6 has admitted that it was the Investigating Officer who produced the accused on 27-6-1991 before him and only for half an hour they were in this custody and before that they were in custody of the police. This creates a doubt whether the accused were really produced from jail or whether the were under the sureillance of the Police and, therefore, it is doubtful whether the accused were free from the hands of Police. In the case cited supra, the time for reflection was already granted for a day when accused were produced before the Magistrate and second chance was given for 15 to 20 minutes for reflection before recording of the confession. In the facts and circumstances of this case, the time of 15 to 20 minutes for reflection given to accused cannot be said to be sufficient for the purpose of reflection. The learned counsel for the appellant has relied on the judgment Brijbasi Lal v. State of M.P., (1987) 3 Crimes 169 : (1988 Cri LJ 573), Akanman Bora v. State of Assam, to sow that the Judicial Magistrate is not entitled to administer oath and the statement recorded under oath or solemn affirmation is inadmissible as per the Constitutional mandate. He again relied on the judgments reported in 1990 Cri LJ 385 (Punj & Har), Hari Kishan v. State of Haryana, that presence of police officers outside Court room when confession is being recorded, is not reliable confession is being recorded, is not reliable confession as it cannot be said to be voluntary and genuine, and also 1991 Cri LJ 269 (Orissa), Govinda Pradhan v. State, that time of 5 to 10 minutes for reflection cannot be sufficient and further on the decision : Davendra Prasad Tiwari v. State of U.P., that there is no record to show that the accused was sent to jail. The learned Additional Public Prosecutor has submitted that there is no statutory provision that the Judicial Magistrate should record the preliminary questioning, of the accused before recording the statement. The Judicial Magistrate has deposed in Court that he has made preliminary inquiry with the accused. It is true that P.W. 6 has deposed that he made preliminary inquiry but as we have observed earlier, the time of 15 to 20 minutes for reflection is not sufficient and, therefore, the evidence of P.W. 6 is not of any consequence. Considering the evidence of confession as deposed by P.W. 6, in our view, it is not admissible in evidence. Moreover, it is not reliable and dependable to accept the same as the voluntary statement of the accused.
10. While parting, we observe that the case is not properly conducted in the trial Court on behalf of the prosecution and it would be appropriate if the Judicial Magistrates follow the guidelines issued in Criminal Manual for their guidance for recording of confessions for avoiding any chances of miscarriage of justice.
11. In the result, we find accused not guilty of any offence. Hence interference is required. The appeal is allowed. The conviction and sentence recorded by trial Judge is quashed and set aside. The appellant is acquitted of the offence charged with.
He be set at liberty forthwith if not required in any other case.
12. Appeal allowed.