Bombay High Court
Chandrakant Digambar Tanksale vs The State Of Maharashtra on 26 April, 2010
Author: B.H. Marlapalle
Bench: B.H. Marlapalle, A.A. Sayed
1
]IN THE HIGH COURT OF JUDICUATURE AT MUMBAI
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 320 OF 1991
Chandrakant Digambar Tanksale )
age-19, r/o. Sangvi-I, Taluka )
Karmala, District Solapur, At )
present in Central Prison Yeroda, )
Pune. ) .. ... Appellant.
Versus
The State of Maharashtra ) .. ... Respondent.
Mrs. Smita Kadu, Advocate appointed for the Appellant.
Mrs. P. P. Shinde, APP for the Respondent-State.
CORAM : B. H. MARLAPALLE &
A. A. SAYED, JJ.
DATED : 26TH & 27TH APRIL, 2010
JUDGMENT ( Per B.H. Marlapalle, J.)
:
This appeal arises from the order of conviction and sentence passed on 28th March, 1991 by the learned 2nd Additional Sessions Judge at Solapur, in Sessions Case No. 154 of 1989 and by the said order the appellant - Accused has been convicted for the offence punishable under Section 302 of the Indian Penal Cod and sentenced to suffer life imprisonment. On filing this appeal he was released on bail on 3rd June, 1991 on the same terms as before the trial Court. By ::: Downloaded on - 09/06/2013 15:53:25 ::: 2 our order dated 25th March, 2010 we had cancelled the bail granted to the appellant as he did not cause his appearance through an advocate and therefore as of now he continues to be in jail. We, therefore, appointed Smt. Smita Kadu, Advocate to argue this appeal.
2. Digamber Nagnath Tanksale and Ramchandra Nagnath Tanksale are two of the six sons of Nagnath Tanksale. The family of Digamber stayed in Sangvi-2 and that of Ramchandra stayed in Sangvi-I. It appears that Sangvi was only one and it got divided into two different parts on account of Ujani Dam. Ramchandra had three sons i.e. Prabhakar, Bharat and Mohan. About a week prior to the date of the incident, he had lost his second son Bharat and therefore the accused and his family had come to the house of Ramchandra. In his agriculture land, Ramchandra has also built a farmhouse and on the night of 11th April, 1988 the accused was in the said farmhouse.
His dinner was brought by the deceased-Mohan, the youngest son of Ramchandra and they had dinner together and went to bed in the same farmhouse. On the next morning the accused, who claimed to be sleeping outside the farmhouse/hut opened the door and noticed that Mohan who was sleeping inside was lying in a pool of blood and was dead. The accused, therefore, went to his uncle Ramchandra ::: Downloaded on - 09/06/2013 15:53:25 ::: 3 PW6 and informed him that someone in the night had killed Mohan.
The Village Police Patil and some other family members came to the farmhouse and saw that the Mohan was dead with head injuries. The Police Patil PW4 Shri Uttam Madhavrao Patil went to Kem Outpost and lodged a complaint (FIR at Exh.22). Nobody suspected the accused till 15th April, 1988, despite the fact that the dead body of Mohan was sent for postmortem and as per the postmortem notes Mohan had died a homicidal death. However, on 16th April, 1988 the Police Patil and others were called to the Karmala Police Station and therefore while waiting at the bus stand of Kavitgaon, Shri Krishnath Potdar inquired with the accused as to how Mohan was killed and it appears that the accused made an extra judicial confession. This was intimated to the Police Station and on the same day the accused was arrested and the arrest panchnama at Exh.50 was prepared.
3. PW9 Mohan Ithape, P. S. I., had already drawn Inquest Panchanama, Exh.10 and spot panchanama Exh.8 on 12th April, 1988 itself. He had recorded the statement of some people. On the arrest of the accused his clothes were seized under panchnama at Exh.24.
When the dead body of Mohan was handed over to PW6 for the last rites, the clothes from his person were also seized under ::: Downloaded on - 09/06/2013 15:53:25 ::: 4 panchanama at Exh.11. PW9 continued with the investigation till 22nd May, 1988 and from 23rd May, 1988 the investigation was taken over by PSI Mali. He submitted the charge sheet on 7th July, 1988 and C.A. Report was received at Exh.41 and 42. As per the C.A. Report at Exh.41 the blood group of the deceased was detected to be "A" and that of the accused was "O". The accused was released on bail on 12th July, 1988 by the Sessions Court.
4. The prosecution examined in all 9 witnesses and there is no eye witness to the incident. It relied upon the last seen theory and a confessional statement of the accused recorded by PW8 Shri S. P. Hoshing, the learned J.M.F.C. at Karmala at the relevant time, on 2nd May, 1988 (Exh.38). The panchnama at Exh. 8, 10 and 11 were the admitted documents and PW1 Pandurang Dolas, PW2 Dinkar Jadhav, PW3 Rajendra Manjare and PW5 Ashok Mane were the punch witnesses. In his statement under Section 313 of the Criminal Procedure Code recorded by the trial Court, while denying his involvement in the incident, the accused for the first time after a gape of about 3 years alleged that his confessional statement was not voluntary and the same was made on account of the fear and pressure he suffered at the hands of the Police Sub-Inspector. The ::: Downloaded on - 09/06/2013 15:53:25 ::: 5 learned Judge of the trial Court accepted the case of the prosecution on the basis of the last seen theory as well as the judicial confession made by the accused and recorded by PW8 Shri Hoshing and held that the accused had committed the murder of Mohan, in the night on 11th April, 1988.
5. it is submitted by Mrs. Kadu, the learned appointed advocate that though the last seen theory is not much conclusive,the confession statement recorded by PW8 was not reliable and it was not corroborated. She pointed out that in the confession statement allegedly made by the accused, three weapons are claimed to have been used to assault the deceased i.e. stone, suva (a bar like sharp weapon) and a wooden stick, but in the prosecution case the recovery of only stone has been claimed. In addition the weapon suva was alleged to have used for the injury piercing through the head but in the PM report at Exh.32 no such injury is seen. The learned Counsel also pointed out that in the confession statement the weapon suva was claimed to have been kept on the roof of the hut after the incident, wherein it was the prosecution case that it was recovered from some other place. As per the learned Counsel the accused was of a tender age of 19 years and he was terrified because ::: Downloaded on - 09/06/2013 15:53:25 ::: 6 of the ill-treatment by the police and therefore under the fear of such treatment to be continued and by way of inducement he was forced to make the confession statement. She alleged that it was not truthful and made voluntarily and therefore the trial court committed serious error in relying upon the same. Hence the learned defence counsel strongly urged to quash and set aside the impugned order of conviction and sentence.
6. Mrs. Shinde, learned APP has supported the order of conviction and sentence on the ground that the last seen theory as well as the confession statement was rightly appreciated by the trial court. She submitted that the retraction of the confession statement for the first time after three years and that too while recording the statement under Section 313 of the Criminal Procedure Code was inconsequential to the prosecution case and the learned Trial Judge has rightly discarded the same. Mrs. Shinde, the learned APP, emphasised that the accused was on bail during trial and at any time before recording the evidence he had ample opportunity to retract from his confessional statement, but he did not do so and therefore it must be safely accepted that by way of an after thought he retracted from his confessional statement only when the trial court was ::: Downloaded on - 09/06/2013 15:53:25 ::: 7 recording his plea under Section 313 of the Criminal Procedure Code. She therefore, urged to dismiss the appeal by confirming the order of conviction and sentence.
7. PW7 Dr. (Mrs.) Saroj Khot, was the Medical Officer of Municipal Dispensary at Karmala since 1st July, 1986 and she stated before the Trial Court that on 13rd April, 1988 the dead body of Mohan son of Ramchandra Tanksale was referred by the Karmala Police Station for postmortem and she performed the same between 10.30 a.m. and 12.30 p.m., on the same day. On examination of the said body, she noticed the following injuries:
1) C.LO.W. Size 7" x 3" x 1/2" obliquely over occipital region;
2) Fracture at nasal bone;
3) Fracture at middle part of mandible;
4) Fracture fissured 4" length on left parietal region;
5) Fracture fissured 3-1/2 length on rt. Parietal region;
6) Transverse fissured fracture 4" length on occipital region;
7) Transverse fissured fracture 2" length on frontal bone.
The Doctor further stated that all the injuries were ante-mortem and ::: Downloaded on - 09/06/2013 15:53:25 ::: 8 they could have been caused by any hard and blunt object like stone (Art. 11) and these injuries were sufficient in ordinary course of nature to cause death In the opinion of the doctor the cause of death was "Shock and hemorrhage due to fractured of skull". She confirmed the postmortem report at Exh.14. This witness was not subjected to cross-examination and therefore it has to be safely accepted that Mohan died a homicidal death while asleep in the night of 11th April, 1988 in his farm house.
8. We are, therefore, required to consider whether the prosecution proved its case beyond reasonable doubts that it was the appellant accused who intentionally caused the death of Mohan by smashing his head by a big stone.
9. The spot panchnama at Exh.8 shows that the farm house ad-
measured about 27' x 9' with a constructed wall on all the four sides and it had only one door without any window and that a roof made of sugarcane husk/fodder. The dead body of Mohan was lying in the said farm house when the accused had opened the door of the hut and PW4, PW6 and others came to the spot at about 10.00 a.m. And noticed it. The inquest panchanama at Exh.10 indicated the injuries ::: Downloaded on - 09/06/2013 15:53:25 ::: 9 only on the head of the deceased. There was blood around the body i.e. clothes smeared in blood. In the hut there were some clothes hanging and blood stains were seen on these clothes as well. All these articles seized from the spot as well as the clothes recovered from the person of the accused were found to be stained with the blood of the group "AB", as per the C.A. Report.
10. So far as the last seen theory is concerned, there is not much of a doubt. Even otherwise the evidence of PW6 Ramchandra Tanksale read with the inquest panchnama at Exh.10 reestablishes that the accused was in the company of the deceased in the night of 11th April, 1988, both of them had a dinner together and in the morning the accused claimed to have seen the Mohan dead in the hut. The accused claimed that he was sleeping outside and Mohan was sleeping inside as he was scared of thieves.
11. It is undoubtedly clear that when PW4 Uttam Patil lodged the complaint at Exh.22 on 12th April, 1988, nobody suspected the involvement of the accused and for the first time PW4 claimed that the accused made extra judicial confession in his presence to Krishnath Potdar at the bus stand of Kavitgaon. The prosecution did ::: Downloaded on - 09/06/2013 15:53:25 ::: 10 not leave its case only on this extra judicial confession. On 22nd April, 1988 the accused was granted magisterial custody and he was presented before the learned Judicial Magistrate, First Class at Karmala on 26th April, 1988 when he expressed his desire to make a confession. The learned Magistrate, therefore, directed that the accused be produced before him on 29th April, 1988. The learned Judicial Magistrate, First Class, asked certain questions to the accused and recorded his reply so as to ensure that the accused wanted to make confession voluntarily. He directed that the accused be continued in the magisterial custody and be produced on 2nd May, 1988. The accused was produced before the Court, the procedural requirement as mandated under Section 164 read with Section 281 of the Criminal Procedure Code was followed and the statement of the accused came to be recorded in Marathi on 2nd May 1988, by the learned Judicial Magistrate, First Class. With the assistance of Mrs. Kadu, we have gone through this confessional statement and the earlier recording made by the learned Judicial Magistrate, First Class on 29th April, 1988 as well as on 2nd May, 1988. We have no doubt that so far as the procedural requirement is concerned, there was full compliance so as to ensure that the accused voluntarily wanted his statement to be recorded. For justifiable reasons set out in the order ::: Downloaded on - 09/06/2013 15:53:25 ::: 11 of conviction, the learned trial Judge has held that the confessional statement was truthful and made voluntarily and therefore reliable.
The learned defence advocate disputed this finding. She pointed out that by referring to the deposition of PW9 Mohan Ithape that even after the accused was granted magisterial custody he was continued in the same jail wherein he was, during the police custody. There were police constables around the jail and the PSI who was in-charge of the jail. She, therefore, pointed out that it was a tutored confessional statement and recorded under duress. We do not find any force in these submissions. It has come on record that though it was a sub-jail at a Taluka place, it had two separate portions i.e. one for the police custody and the other for magisterial custody. Merely because the personnel guarding the jail are police constables or that the sub-jail was under the over all charge of the PSI it cannot be accepted that the accused was forced to make a confessional statement.
12. The law on the relevancy of the confessional statement recorded under Section 164 of the Criminal Procedure Code read with Section 31 of the Indian Evidence Act is well settled. We may refer to the following decisions; (1) Bharat v/s State of U.P., ::: Downloaded on - 09/06/2013 15:53:25 ::: 12 1971(3) SCC 950; (2) Shankaria v/s State of Rajasthan, (1978) 3 SCC 435; (3) Ammini and Ors. v/s State of Kerala, AIR 1998 SC 260 and (4) State (NCT of Delhi) v/s Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600. The learned trial Judge has referred to the Constitution Bench decision in the case of Subramania Goundan v/s The State of Madras, AIR 1958 SC 66, on the point of confessional statement and its retraction. It is well settled that confessions can be acted upon if the court is satisfied that they are voluntary and true. They must comply with the procedural requirement of Section 164 and 281 of the Criminal Procedure Code and such a statement must be free from inducement, threat or promise. Section 24 of the Indian Evidence Act, 1872, states that a confession made by accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It is also equally well settled that a true ::: Downloaded on - 09/06/2013 15:53:25 ::: 13 confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true. Confessions are considered reliable because no rational person would make admission against his interest unless prompted by his conscience to tell the truth. No confession made to a police officer can be proved against accused and Section 24 of the Indian Evidence Act lays down the obvious rule for its unreliability or otherwise.
13. In the instant case, there is no enimity between the parties nor was there any dispute on account of any property or claim. The elder brother of deceased Mohan had died about a week back and therefore the accused had come to visit his grieving uncle and cousin.
Till 16th April, 1988 no one suspected the involvement of the accused and only after he made the extra judicial confession to the Police Patil, the wheels of investigation turned towards him. We, therefore, do not find any material to believe that it was a ploy engaged by the prosecution to get the confession statement recorded so as to obtain an order of conviction. Even otherwise, perusal of the confessional statement recorded by the learned Judicial Magistrate, First Class, ::: Downloaded on - 09/06/2013 15:53:25 ::: 14 indicates that the appellant was determined to make a confession despite the learned Presiding Officer had made him aware of its adverse consequences. The appellant insisted to record his confessional statement. The recording done, does not suffer from any exaggeration or manipulation and it inspires confidence to be a true and voluntary statement. It has been signed by the appellant himself and the verification has been done by the Judicial Magistrate, First Class, in keeping with the mandatory requirements of Section 164 and Section 281 of the Criminal Procedure Code as well as the procedure set out in the Criminal Manual. We are, therefore, satisfied that the confession statement cannot be termed as a tutored one as it is a truthful record of the confession made by the accused without any inducement or threat or force. At the same time, he was on bail from 12th July, 1988 and the confession was recorded on 2nd May, 1988. When his statement was being recorded under Section 313 of the Criminal Procedure Code on 25th March, 1991, he made a half hearted attempt to retract from the said statement. While he was on bail for about 3 years, at no point of time he appeared before the learned Additional Sessions Judge and applied for a withdrawal/retraction of the confessional statement. The trial Judge was, therefore, right in relying upon the said statement.
::: Downloaded on - 09/06/2013 15:53:25 ::: 1514. In the confession statement recorded on 2nd May, 1998, the appellant has stated that the deceased Mohan was his cousin from the maternal as well as paternal sides and about 2 days before the deceased had gone to village Hari Narayan Astha, where his maternal uncle Dattatraya Sathe was staying. The maternal uncle had told his family members to look after the deceased as a guest and he had gone to Patoga. The deceased used to chew tobacco and therefore the maternal uncle gave him the tobacco box. Thereafter the deceased suggested that Popat, Usha and Sunita along with him go to the mango tree and on reaching there he started teasing Usha.
This action resulted into sexual advancement towards Usha after sometime and therefore she started crying and threatened that she would tell this act of the deceased to her father. After hearing this, the deceased Mohan became aggressive and threatened her that he himself would go to her father and complain against her. Usha got scared and requested the deceased not to complain. After sometime, he again indulged in the sexual advancements towards Usha and despite her resistance he had sexual intercourse with Usha. 2/3 months back the deceased had gone to the house of the accused and told him about his sexual relationship with Usha. The accused ::: Downloaded on - 09/06/2013 15:53:25 ::: 16 informed the deceased that he was intending to marry Usha and asked him whether he would continue his relationship with her after her marriage with the accused, on which the deceased replied that he would continue his sexual relationship with Usha even after her marriage with the accused. This dialog between the two of them was on the earlier day to the incident and therefore the accused decided to finish the deceased. He asked the deceased whether he gets woken up in the night after he goes to sleep. The deceased replied to him in the negative. On Monday evening at 7.30 p.m., the deceased brought dinner for the accused to the farm house and the accused made up his mind that he got a good chance to finish the deceased. Both of them had dinner together and the accused put his quilt inside the farmhouse and both of them went to sleep The accused woke up after some time picked up big stone, an iron bar and a stick and came out of the farmhouse 4/5 times. He also ascertained whether anybody was there. Then the accused wrapped his two towels on his head and one towel of the deceased he wrapped on the waist. He also applied the black smock available from the tawa. He bowed his head before god Nagnath and applied the angara of god Dattatraya and gulal of god Bhairava and thereafter he came inside the farmhouse with a heavy stone in his hand. The deceased was ::: Downloaded on - 09/06/2013 15:53:26 ::: 17 sleeping on his stomach and the accused dropped the stone on the head of the deceased. The deceased uttered the word "Aai".
Immediately, the accused picked up the stone and dropped on the head of the deceased 2 more times. After this for the 4th assault, he used suva to pierce into the head of the deceased and for the 5th assault he used stick and also gave a kick on the waist of the deceased. He kept the deceased abusing, cleaned blood on his feet.
He also cleaned his body and came out of the hut. In the morning he got up and went to the father of the deceased and informed him that Mohan was killed by someone. The father and wife of the deceased came to the hut and saw Mohan dead. The accused informed them that he did not know the assailant of the deceased.
15. We have to examine whether this confessional statement is corroborated by some other evidence brought on record by the prosecution. Firstly, it is not disputed that the accused and the deceased were staying at the hut in the night of 11th April, 1988 and the deceased had carried dinner from his farmhouse for the accused and this admission has come in the written arguments submitted before the trial court on behalf of the accused. Secondly, it is also not much in dispute that it was the accused who went to PW6 ::: Downloaded on - 09/06/2013 15:53:26 ::: 18 Ramchandra, the father of the deceased and informed him that his son Mohan was dead and he did not know the accused as he was sleeping outside the hut. Thirdly, the clothes recovered from the person of the accused were sent for Chemical Analysis and they were found to be stained with blood of group "AB". Fourthly, the stone which was used to smash the head of the deceased was also recovered and sent for Chemical Analysis and the reports are at Exh.42, indicated that it was the blood of group "AB" which was noted on the stone. Fifthly, the spot panchanama clearly indicated the marks of the stone from where it was picked up. Sixthly, the towel which was wrapped around and stained with blood was also detected to have human blood and the accused failed to give any explanation in this regard. Seventhly, as per the postmortem report the deceased had sustained multiple injuries on his head and as per the confession statement the stone was dropped on the head of the deceased 3 times consecutively. The doctor, while in the witness box before the trial Court, stated that the injury Nos.1 to 4 could have been caused by the article like the stone which was shown to him. In our opinion, these circumstances corroborate the confession statement and therefore the trial Court did not commit any error in accepting the same to base the conviction of the accused for the ::: Downloaded on - 09/06/2013 15:53:26 ::: 19 murder of the deceased Mohan. We have considered the cross-
examination of PW9 Mohan Ithape and there is no reason to believe that because of the threat or fear of the said Officer the accused was forced to make the confession statement before the learned Judicial Magistrate, First Class. He denied the allegations that any third degree method was used against the accused or that the accused was tutored or had given any threat to the accused. The statement recorded by the learned Judicial Magistrate, First Class, was part of the police papers right from the time the charge sheet was filed on 7th July, 1988. We also do not find any infirmity in accepting and relying upon the Chemical Analysis's report, as has been done by the trial Court.
16. The trial Court was right in recording its finding that when the accused made confession statement before the learned Judicial Magistrate, First Class, on 2nd May, 1988, he was free from any pressure or fear or torture or threat or physical assault or the consequents of such confession statement. The trial Court rightly disbelieved that the accused made confession statement under the threat/pressure of the Police Officer and the statement was not recorded hurriedly. On the issue of motive, as disclosed by the ::: Downloaded on - 09/06/2013 15:53:26 ::: 20 appellant in his confession statement, it is to be noted that if the confessions statement is found to be truthful, voluntary and free from any fear, the circumstance of motive may not be a material circumstance so as to affect the prosecution's case or weaken it. The motive may be at times, exaggerative or even fabricated, but so long as the confession is found to be reliable and corroborated by other circumstances, the veracity of the motive could not be an issue so as to detain the Court from deciding the prosecution case regarding the culpability of the accused. The trial Court rightly noted in its judgment that the confession statement was voluntary, made with free will and without any fear and pressure and the accused did not suffer from any mental disorder. We agree with the said findings and more so that PW8 Shashikant Hosing, the learned Judicial Magistrate, First Class, had stepped in the witness box and there was nothing to impinge his testimony on the recording of the confession statement.
17. In the premises, we do not find any merit in the challenge to the order of conviction and sentence passed by the learned Additional Sessions Judge in Sessions Case No.154 of 1989 and therefore this appeal is hereby dismissed. The order of conviction ::: Downloaded on - 09/06/2013 15:53:26 ::: 21 and sentence passed in Sessions Case No.154 of 1989 by the Additional Sessions Judge, Solapur, dated 28th March, 1991 is hereby confirmed. Undoubtedly, the accused appellant shall be entitled for set off, if any, under Section 428 of the Criminal Procedure Code.
18. Appointed advocate's professional fees is quantified at Rs.4,000/-.
19. A copy of this order shall be forwarded to the concerned Jail Authority forthwith so that it is made available to the accused without any delay.
Sd/-
(B. H. MARLAPALLE, J.) Sd/-
(A. A. SAYED, J.) ::: Downloaded on - 09/06/2013 15:53:26 :::