Bhagwat Putalaya Pawar v. The State of Maharashtra

10. On internal examination, Dr.Bhoi noticed, inter-alia, haematoma in frontal region of the scalp and fracture of thyroid cartilage. Dr.Bhoi (P.W.No.7) affirmed that the above external injury No.1 corresponds with the injury noted on the scalp. In his opinion, the cause of death was head injury, which was inflicted with excessive force. The injury was sufficient in the ordinary course of nature to cause death.

11. The authorship of homicidal death was sought to be established by the prosecution by placing reliance on the following circumstances:

1) The accused voluntarily made an extra judicial confession before Balasaheb Jadhav (P.W.No.2), his employer.

2) The accused pointed out the place where the body of the deceased was buried, firstly, to Mr. Balasaheb Jadhav (P.W.No.2) and, secondly, to the party which had gone to exhume the dead body.

3) Blood stains were found on the clothes and tarpaulin in the make-shift tent where the deceased and accused were residing together.

4) The accused made discovery leading to the recovery of weapon of offence (wooden log) and the implements used for digging the pit (pickaxe and spade) and the blood stained clothes of the accused.

5) Failure of the accused to explain the circumstances in which the deceased died and the contemporaneous and subsequent incriminating conduct of the accused.

12. The learned Sessions Judge was of the view that each of the above circumstances were fully and conclusively established and they formed a complete chain of the circumstances which led to no other hypothesis than that of the guilt of the accused.

13. Mr. Prosper D'Souza urged with a degree of vehemence that the claim of extra judicial confession allegedly made by the accused is far from established. Taking the Court through the testimony of Balasaheb Jadhav (P.W.No.2), Mr. D'Souza submitted that from the tenor of the testimony of Balasaheb Jadhav (P.W.No.2) it becomes evidently clear that the witness was apprised about the alleged occurrence much before the confessional statement. In the circumstances the claim of Balasaheb Jadhav (P.W.No.2) does not allure confidence, urged Mr.D'Souza.

14. Balasaheb Jadhav (P.W.No.2) wants the Court to believe that on 14th February 2014, when there was an alleged quarrel between the accused and the deceased, he was at his native place, Karkel, District Beed. On being informed about the occurrence on 15th February 2014, he rushed to Solapur. When he reached the work site, except Chandu, who was sick, nobody was present as the rest of the labourers had gone on a fishing expedition. Balasaheb Jadhav (P.W.No.2) claimed to have found the accused at a coal shop at Tilak Chowk, Solapur.

15. Balasaheb Jadhav (P.W.No.2) informed the Court that the accused told him that there was some pretty quarrel between him and the deceased over serving dinner. They both were under influence of alcohol. The accused did not remember as to how he had assaulted the deceased. The accused had buried the dead body of the deceased. Balasaheb Jadhav (P.W.No.2) further affirmed that the accused had shown him the spot where the dead body of the deceased was buried.

16. During the course of the cross examination of Balasaheb Jadhav (P.W.No.2), it was elicited that he came to know about the occurrence initially from other people and thereafter the accused informed him about the occurrence. Banking upon the aforesaid admission, a strenuous effort was made by Mr.D'Souza to draw home the point that the claim of Balasaheb Jadhav (P.W.No.2) does not merit acceptance.

17. It is trite that an extra judicial confession, made in a sound state of mind, and if found to be voluntary and true, can be relied upon by the Court. A confession has to be proved like any other fact. In the very nature of the things, the value of the evidence as to the confession hinges upon the veracity of the witness before whom the confession has been allegedly made. If the witness, to whom the confession is made, appears to be unbiased, not inimically disposed towards the accused, and against whom no motive, for attributing an untruthful statement to the accused, can be alleged, and the said person deposes to the statement made by the accused in clear, unambiguous and unequivocal terms, then the evidence can be said to pass the test of credibility and trustworthiness.

18. A profitable reference in this context can be made to the judgment of the Supreme Court in the case of Sahadevan Vs. State of, wherein after reference to the previous pronouncements, the Supreme Court culled out the principles which govern the appraisal of evidence as to an extra judicial confession in para No. 16 as under:

19. Reverting to the facts of the case, the claim of Balasaheb Jadhav (P.W.No.2) is required to be appreciated in the context of the incontestable facts that Balasaheb Jadhav (P.W.No.2) had taken the contract for cutting the wood, set up the coal kiln and put the labourers including the accused and the deceased in make shift tents at the work site itself. The labourers, who were brought from various places for the work at the site, were strangers to the persons and the place. They were made to put up in make-shift tents. The relationship transgressed beyond the employer and contract labourer. Balasheb Jadhav (P.W.No.2) was responsible for the safety and well-being of the labourers. Conversely, for the labourers, Balasaheb Jadhav (P.W.No.2) was the only person to whom they could approach in any eventuality. For them, Balasaheb Jadhav (P.W.No.2) was the person in authority.

20. Viewed through the aforesaid prism, the endeavour of the accused to make a clean breast of the transaction in which the deceased died and what happened thereafter, before Balasaheb Jadhav (P.W.No.2) appears to be natural. The attendant circumstances also lend credence to the claim of Balasaheb Jadhav (P.W.No.2). The claim of Balasaheb Jadhav (P.W.No.2) that he found the accused in a coal shop at Tilak Chowk, Solapur could not be impeached. The presence of accused in a coal shop in the circumstances appears natural as that could be the only acquaintance which a nomad labourer could develop. Balasaheb Jadhav (P.W.No.2) further affirmed that on the night on which the accused made the confession, they both stayed in Amar Lodge and, on the next day, he approached the police and lodged the report. This conduct of Balasaheb Jadhav (P.W.No.2) in ensuring that the accused remains with him till the matter is reported to police also shows the sense of responsibility which Balasaheb Jadhav (P.W.No.2) possessed.

21. Undoubtedly, Balasaheb Jadhav (P.W.No.2) claimed to have rushed to Solapur upon being apprised about the occurrence, which took place on the night of 14th February 2014. This factor, in the circumstances of the case, does not detract materially from the claim of Balasaheb Jadhav (P.W.No.2). Nor does it dilute the voluntariness and trustworthiness of the confessional statement made by the accused. Balasaheb Jadhav (P.W.No.2) must have inquired with the accused about the circumstances in which the deceased vanished. The fact that Balasaheb Jadhav (P.W.No.2) was already informed about the occurrence thus does not erode the credibility of his version.

22. Nothing could be elicited in the cross examination of Balasaheb Jadhav (P.W.No.2) to demonstrate that he had an axe to grind against the accused. On the contrary, the relationship between the accused and Balasaheb Jadhav (P.W.No.2) appeared to be one of trust and confidence. It seems that the accused was overcome by the urge to speak the truth before Balasaheb Jadhav (P.W.No.2). Hence, we are of the view that the learned Sessions Judge was within his rights in arriving at the conclusion that the extra judicial confession made by the accused before Balasaheb Jadhav (P.W.No.2) could be legitimately relied upon.

23. The recovery of the dead body at the instance of the accused was sought to be established by placing reliance on the testimonies of Mr.Shahu Kadam (P.W.No.3), Dr. Santosh Bhoi (P.W.No.7), and Mr. Hemantkumar Naiknaware (P.W.No.8), the photographer. It has come in the evidence of Mr.Shahu Kadam (P.W.No.3), the Nayab-Tahasildar, that pursuant to the request by the police, he had gone to the scene of occurrence. The accused had pointed out the spot where the dead body was buried. The said spot was dug out. The body of a female was found therein. There was an injury on the head near the ear. The accused identified the dead body to be that of his wife Parvatibai. Inquest Panchanama (Exh.13) and Exhumation Report (Exh.31) were drawn at the spot.

24. Dr.Santosh Bhoi (P.W.No.7) who was also a part of the said party lent support to the claim of Mr.Shahu Kadam (P.W.No.3). Dr. Santosh Bhoi (P.W.No.7) affirmed that the accused had pointed out the place wherefrom the body of the deceased was exhumed under the Exhumation Report (Exh.31). Hemantkumar Naiknaware (P.W.No.8), the Photographer testified to the fact that, at the instance of the accused, the process of digging out the dead body was carried out and he had photographed and video-graphed the said process.

25. A two-fold challenge was raised by Mr.Prosper D'Souza. One, the accused cannot be fastened with the exclusive knowledge of the dead body having been buried at the said spot which was at some distance from the work site. Two, the material on record indicates that the first informant was already aware of the said place and had, in fact, pointed out the same to the police party.

26. It is undoubtedly true that Mr. Balasaheb Jadhav (P.W.No.2) claimed that the accused had shown him the place where the body of the deceased was buried on the very day the accused made the confession. Before lodging of the First Information report, Mr.Balasaheb Jadhav (P.W.No.2) was aware of the spot. It is also true that the accused had not made any disclosure statement on 17th February 2014, while he was in police custody, to point out the place where the dead body was buried. The prosecution has claimed that the accused led the police party including the Executive Magistrate and the Medical Officer to the said place and pointed out the spot where the dead body was buried. Mr. Shahu Kadam (P.W.No.3), Dr.Santosh Bhoi (P.W.No.7), Mr. Hemantkumar Naiknaware (P.W.No.8), and Mr.Balkrishna Govind Salunkhe (P.W.No.9), the Investigating Officer, were all in unison on the point that the accused had pointed out the said spot. Nothing material could be elicited in their cross examination to discard their claim.

27. The fact that there was no preceding statement, by itself, does not render the aforesaid evidence of the accused pointing out the place where the dead body of the deceased was buried, unworthy of consideration. Under section 8 of the Indian Evidence Act, 1872 (‘Evidence Act’), the conduct of the accused which influences or is influenced by any fact in issue or relevant fact also becomes relevant. For want of preceding disclosure statement, the recovery of the dead body at the instance of the accused may not be admissible under section 27 of the Evidence Act. However, the aforesaid evidence of the accused having led the police party and pointed the place where the dead body was buried would be admissible under section 8 of the Evidence Act as conduct of the accused.

28. A profitable reference in this context can be made to a judgment of the Supreme Court in the case of A.N. Venkatesh & Anr. Vs. State of Karnataka 2, wherein, the accused therein had abducted a boy for ransom, killed him and buried the dead body, and, on being apprehended by police, had shown the place where the dead body was buried, the Supreme Court held that the said act of the accused of pointing out the place from where the dead body of the deceased was exhumed would be admissible as conduct under section 8 of the Evidence Act irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of section 27.

29. The observations in paragraph 9 are material:

35. In the case at hand, neither during the course of crossexamination of prosecution witnesses nor in his examination under section 313, the accused offered any explanation. This failure of the accused to offer explanation regarding the circumstances in which the deceased met homicidal death constitutes a strong circumstance against the accused. Nor there is any material to show the conduct of the accused compatible with his innocence like reporting the matter of the deceased having sustained injuries on account a cause, not attributable to the accused, approaching the authorities or Balasaheb Jadhav (P.W.No.2) or soliciting the assistance of co-labourers in arranging for the treatment of the deceased etc. The aforesaid circumstances cumulatively render the necessary corroboration to the evidence of Mr. Balasaheb Jadhav (P.W.No.2) on the point of extra judicial confession.

36. On an independent analysis of the evidence, in the backdrop of the broad probabilities of the case, we are of the view that the circumstantial evidence does not leave any reasonable ground for the conclusion consistent with the innocence of the accused and, conversely, it shows that, in all probability, the accused had caused the death of the deceased.

37. For the foregoing reasons, we do not find any infirmity in the conclusion arrived at by the learned Sessions Judge that the accused was the author of the homicidal death suffered by the deceased.

38. We have examined the evidence and material to ascertain as to whether the case falls within any of the exceptions enumerated in section 300 of the Penal Code for, in that eventuality, the offence would be ‘culpable homicide not amounting to murder’ punishable under First Part of section 304 of the Penal Code. In the facts of the case, the applicability of Exception 4 to section 300 of the Penal Code may warrant consideration. From the phraseology of Exception 4 to section 300, it becomes abundantly clear that to bring a case within its ambit, it has to be established that the act causing the death of the deceased was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

39. If we take the extra-judicial confession at par and give maximum latitude to the accused, we may draw an inference of sudden fight in the heat of passion upon a sudden quarrel between the accused and the deceased. The fact that the accused and the deceased were under the influence of alcohol may have added the fuel to the fury on account of the verbal altercation. However, we cannot loose sight of the injuries sustained by the deceased. Dr.Santosh Bhoi (P.W.No.7), the Autopsy Surgeon, found two distinct external injuries, i.e., one above left eyebrow and glabella and another incised wound over right scapula. Dr.Santosh Bhoi (P.W.No.7) further noticed fracture of thyroid cartilage, on internal examination. It was not a case of a single blow. The contemporaneous conduct of the accused of surreptitiously burying the dead body also has a material bearing. It would be unjustifiable to draw an inference that the accused had not taken undue advantage or acted in cruel or unusual manner. Thus, all the ingredients envisaged by Exception 4 to section 300 of the Penal Code cannot be said to have been made out. Hence, the conviction of the accused for the offence punishable under section 302 of the Penal Code does not warrant any interference. Resultantly, the appeal deserves to be dismissed.

40. Hence, the following order:- O R D E R The appeal stands dismissed. [ N.J. JAMADAR, J. ] [ SMT.