Suraj Harisingh Bahadur v. The State of Maharashtra

15. PW-13, Dr. Dhritimanh Ratneshwar Nath have deposed that he was attached to K.E.M. Hospital. He conducted autopsy on the dead body of Harisingh alongwith Professor Walter Vaz on 26.09.2009. On external examination he noticed following injuries:

16. PW-14, Prashant Raje, conducted investigation. He was attached to RAK Marg, police station, as P.I.. According to him, API Sanjay Nikam (PW-9) registered ADR no. 79 of 2009 on 25.09.2009. After receiving preliminary cause of death, he filed report at Police Station which was accepted and crime was registered vide C.R. No. 266 of 2009 under Section 302 of IPC. Accused was arrested on 26.09.2009. Injuries were found on his person. He was sent for medical examination. Statements of witnesses were recorded. Charge-sheet was filed on 26.11.2009. During cross-examination, he deposed that the day on which the message was received he visited the spot at 2.00 p.m.. He made some enquiry with witnesses who were present at the spot. He did not record statement of any witnesses. ADR report was not filed in the Court. Generally, SHO register an offence. On 25.09.2009, PSI, Gaikwad was SHO at police station. He did not receive information in respect of present crime. ASI, Ughade who was relieving officer for PSI, Gaikwad. He has not register any FIR. Duck Villa is residential as well as commercial building. There was no complaint with his police station, between accused and deceased prior to the incident. They did not get any witness to show that in the night of incident, there was quarrel between accused and deceased. There is pump house in the compound of Duck Villa building and it is to the backside of the building. Person who is residing in society has given information to the police regarding the incident relating to the deceased. The rough sketch of the spot of incident, is prepared. There is no reason for him not to file the said map in this case. Society is not maintaining visitor register. There is only one gym in the building and he has not collected the register from the gym. Outsider also come to the gym. The evidence of carrier is not important in this case. He did not mention the fact in the panchanama that enquiry was made with pancha witnesses, whether they acted as panch in the past. Blood stains were not found either on the clothes of accused or deceased. He did not file station diary in this case.

17. Learned Advocate for the appellant made following submissions in support of, challenge to the impugned judgment convicting the appellant for the offence under Section 302 of IPC. (a) There is no eye witness to the incident. The entire case is based on circumstantial evidence. The prosecution has to establish the chain of circumstances to prove the guilt of accused. (b) The evidence of the witnesses does not inspire confidence and conviction cannot be based on such evidence.

(c) The alleged confession, in the form of history recorded by

(d) The evidence of previous quarrel, last seen together suffers from serious discrepancies. Statements of PW-8, PW-9, PW-10, PW- 11 and PW-12, were recorded belatedly. Their version speaks volume of doubt. (e) Section 106 of Evidence Act, could not have been invoked against the accused as it has not been established that the accused and the deceased were together at the same premises on the date of incident. The prosecution has failed to establish the involvement of the appellant in the offence, and in the absence of cogent evidence, the accused cannot be convicted with the aid of Section 106 of Evidence Act. (f) No adverse inference could be drawn against the appellant, on account of alleged injuries found on his person. During his cross-examination. PW-4 has deposed that the injury was within 24 hours. The circumstances would indicate that the incident had occurred 45 hours before his examination. (g) The cause of death has not been established beyond doubt. PW-13, has stated that cause of death is due to cerebral anoxia and apoplexy as a result of instrumental strangulation(unnatural). However, he stated that unless the instrument is shown to him he would not be in position to disclose which instrument has caused strangulation.

18. Learned counsel for the appellant has relied upon filling decisions:

(i) Shambhu Nath Mehra v/s. State of Ajmer AIR 1956 SC

404.

(ii) Ram Singh v/s. Sonia and Othrs. (2007) 3 SCC 1.

(iii) Gargi v/s. State of Haryana (2019 ) 9 SCC 738.

(iv) Mayur Parmar and Anr. v/s. State of Maharashtra (2016

(3) BOM. C. R. (CRI) 201).

19. Learned APP supported the judgment of Trial Court convicting the appellant, and contended that there are circumstances, to indict the appellant in the crime. His submissions can be summarised as follows:

(i) Judgment of the Trial Court is based on evidence and cogent reasons.

(ii) Although the case is based on circumstantial evidence, there are several circumstances, which establish the guilt of the accused.

(iii) The evidence of the witnesses is reliable. There is no reason for PW-8, 9, 10, 11 and 12 to depose against the appellant.

(iv) The prosecution has established that the appellant and the deceased were not in good terms. There were previous quarrels, threats, hence appellant had motive to commit crime.

(v) The appellant and the accused were occupying the same premises. The presence of the appellant at place of incident has been established. The body of deceased was found in the pump house, where small hut was erected. The accused and deceased were occupying same premises. In the circumstances, the accused had special knowledge, as to how the victim had died and who killed him. In the absence of explanation, recourse can be taken to Section 106 of Evidence Act for considering it as one of the link to connect the appellant in the crime.

(vi) There is evidence of last seen together. On the day of incident, there was quarrel between the accused and deceased, which is deposed by witnesses.

(vii) There is nothing to indicate that any other person must have killed the deceased. The nature of relationship between the deceased and the accused, has been referred to by the witnesses, which indicate that there was animosity between them.

(viii) The deceased was strangulated. Belt was recovered from the scene of offence. The Medical Officer has opined that it is the case of instrumental strangulation.

(ix) Injuries were found on the person of the accused. This fact is evident from the deposition of PW-4. There is no explanation from the accused for injuries sustained by him. The injuries had occurred during the scuffle with the deceased.

(x) The conduct of the accused after incident, would indicate that he was not found disturbed, on account of death of his father and did not take immediate steps to lodge complaint with the police.

(xi) The accused made confession to PW-4 while providing history that he has caused death of his father by throttling and injuries were caused to his left ear during the struggle. The evidence of PW-4 confirms the cause of those injuries.

20. On assessing the evidence of the witnesses, it is apparent that, the prosecution case is based on following circumstances:

(i) Nature of relationship between the accused and the deceased on account of quarrels between them. Threat given by accused to the deceased prior to death of deceased.

(ii) The deceased and accused are father and son, and they were occupying the same premises. The incident has occurred in the premises, occupied by them. There is no explanation from the accused about the special knowledge with regards to cause of death.

(iii) The deceased and the accused were last seen together on the day of incident.

(iv) Extra-judicial confession of the accused to PW- 4.

(v) Conduct of the accused.

(vi) Injuries on the person of the accused.

(vii) Death by strangulation.

21. On scanning the evidence, it is apparent that the evidence relied by the prosecution is not full proof. The evidence on record does not establish the case beyond all reasonable doubt against the accused. When it comes to circumstantial evidence, the circumstances should be of conclusive nature. There must be chain of evidence far complete not to leave any reasonable ground for conclusion, consistent with the innocence of accused.

22. The deceased is the father of the appellant/accused. The alleged incident had occurred in the night of 24.09.2009 and 25.09.2009. The accused was working as watchman at Duck Villa building. From the evidence of PW-1, it appears that dead body was lying between the two buildings i.e. Duck Villa building and Jayant Villa Building. There was one pump room. The accused was present at the spot, the clothes of the deceased were seized along with the belt, which was lying at the scene of offence. PW-1, witness is resident of Duck Villa. He has deposed that the buildings were having compound wall from all the sides with height of 3 to 4 feet. There are residential chawls at the backside of the building. One watchman was appointed for both the buildings. The evidence of PW-1 elicits that the accused was present at the spot. He had not seen any quarrel between the deceased and the accused. The conduct of the accused is reflected through his evidence, indicating that he did not flee from the scene of offence. He was found sitting near body of deceased. There was nothing to indicate at first blush that he is involved in crime. No one suspected him. The deposition of PW-1 is not clear, with regards to exact location, where the incident had occurred. He has stated that the body was lying between two buildings. He has not specifically stated that deceased was lying below the hut or inside the pump house. In the panchanama exhibit ‘10’, however, it is mentioned that on the rear side of Duck Villa building, there is pump house, and in front of the pump house, temporary hut is erected and the dead body was found in front of the door of pump house below the hut. We do not find that evidence of this witness has any incriminating value against the accused. PW-2 is the panch witness. He was called at the police station for seizure of clothes of the deceased. The evidence of this witness also cannot be held to be adverse against the accused. PW-3, is the pancha witness for arrest panchanama. He has referred to the fact that he was called at the police station and the accused was introduced to him by police. He noticed abrasion on elbow joint, backside of right ear and below left ear. It is apparent that the accused was called at the police station and arrested. He never tried to evade arrest.

23. PW-5 is the photographer. He was called at the spot to take photograph of the body of the deceased. He has stated that no seizure panchanama was prepared, when photographs were handed over to police. The spot was backside portion of the building. He entered the premises from the backside. PW-6 is the pancha witness for seizure of clothes of accused. The seizure is not incriminating evidence against the appellant.

24. We have analysed the evidence of PW-08, PW-10, PW-11 and PW-12. The prosecution is relying on the evidence of these witnesses with regards to previous quarrels, previous threats and last seen together circumstances to connect accused with crime. PW-8, is working as watchman at Sainath Bar. According to him the accused and the deceased (Harisingh) are from his village. Deceased used to come to his service place to meet him. On 24.09.2009, Harisingh (deceased) had been to him and he told about the quarrel with his son(accused). Harisingh also informed that he has been threatened by the accused that he would be killed. He was advised not to sleep with the son. On the next day, Sagar Singh (PW-10) informed about the death of Harisingh. The evidence of this witness is apparently after thought. The statement has been recorded after the arrest of the appellant. He stated that before entering witness box, police had told him what he has to depose before the Court. He also stated that Harisingh (deceased) was not his friend. He was not disclosing all details. After his death, he did not visit his house to see his dead body. In the light of this version, it is difficult to accept his deposition that the deceased had visited him and told him about the quarrel and threat issued to the deceased by accused. It is also pertinent to note that he was working in Sainath Bar as well as cleaning vehicles at Krishna Kunz building, where he used to visit daily. But he did not disclose the fact that Harisingh had visited him on 24.09.2009 to anybody. He has stated that he has disclosed the fact to Sagar and not to anybody that Harisingh complaining against his son. Although, death took place on 25.09.2009 which came to his knowledge on that day, he did not visit the place of incident nor visited police station on his own accord. Evidence of this witness with regards to the previous quarrel and threat, do not inspire confidence. PW-10, Sagar Singh, is the witness whose reference is made by PW-8. This witness have referred to quarrel between the accused and his father on 24th September, 2009 at about 8.00 p.m. and threat issued by the accused to his father. He has stated that the accused and the deceased were talking with each other in Nepali language. On the next day, accused told him that his father is dead. He went to the spot. He met Laxman and spoke to him about death of Harisingh. At that time, Laxman told him that Harisingh was making grievance against Suraj. From his evidence, it is disclosed that he knew about death of his father on 25th September, 2009. Laxman had told him about the complaint of Harisingh about his son. He did not understand the nature of version during the quarrel between accused and the deceased. He was called by the police after 2 to 3 days. He did not disclose anything about the quarrel between deceased and the accused till recording his statements by police. He did not visit police on his own accord. Thus, although he was aware about the alleged previous quarrel, and his statement was recorded belatedly to introduce the theory of previous quarrel and threat. He visited the spot in the morning, when no one was there. According to Harisingh was with him up to Wadala Railway Station after the quarrel on 24th September, 2009. He do not know where he went from Wadala Railway Station. Thus, post quarrel and threat, the deceased accompanied him. He stated that he did not understand the reason for quarrel. The accused and deceased were talking with each other in Nepali. Thus, no reliance can be placed on the evidence of this witness to establish charge against the appellant.

25. PW-11, has deposed that he is serving at Sainath Bar, where PW-8 is also employed. On 24.09.2009, he went to attend fair at 12.30 a.m., and returned at 1.45 a.m.. He went to Duck Villa building to sleep. Suraj (accused) was sleeping on bed. Thus, from his evidence it is disclosed that he used to visit said place for sleeping. He saw accused sleeping in the room. He did not notice deceased at the place where the accused was sleeping. He also stated that the accused was woke up told him about quarrel with his father, and went to sleep. The version of this witness, does not inspire confidence. It is not established that on the night of incident the accused and deceased were sleeping together in the same premises. It is difficult to accept that accused woke up only to tell him that there was a previous quarrel. Undisputedly, he did not disclose that he assaulted his father. Taking the prosecution case as it is, the premises were utilized allegedly by the deceased, the accused and PW-11 and one more person Karan. He did not notice anything suspicious in the night of 24th and 25th September, 2009. He woke up in the morning on visit of the Manager of the Gym. The door of Gym was opened by accused. Thereafter, the witness went to sleep near another gate in the same building. Accused told him that his father is dead, and prior to that he entered into the room. Thereafter, the accused entered in room and saw dead body of Harisingh. The version of this witnesses is confusing. He entered into the premises at about 1.45 a.m.. He slept there. He woke up at 5.45 a.m. till then there was nothing to indicate that deceased was killed at the said place by accused. In the morning, according to him, he went to sleep at another gate. Thereafter, it was disclosed by accused that his father is dead. Thus, it is not clear as to what time the victim was killed. If deceased was found in the room in the morning, then why this witness has not referred to his presence in room, when he was sleeping with the accused. It is not clear whether the accused, PW-11 and the deceased were sleeping in the same room. From his evidence, it is also revealed that both the gates of building are open even in night time. There is every possibility that some outsider has entered into the premises and committed the crime. PW-11 stated that no quarrel took place in his presence between accused and deceased. On the day of incident he did not state to the police in respect of quarrel between accused and his father. He also did not disclose this fact to anybody. On 30.09.2009 on his own accord he has not stated to police anything about the quarrel between the accused and his father. Thus, the circumstances of disclosure by the accused about the quarrel is creation of this witness. We do not find that the evidence of this witness can be considered as strong circumstance against the accused.

26. PW-12, conduct Gym, situated at Duck Villa building. He has disclosed that the accused and the deceased were residing together in the pump house, which is to the backside of both the building. He also stated that room was allowed to be occupied by one Karan in the absence of accused. Thus, one more person had access to the pump room. Karan told him that the relation between the accused and deceased are not good. It is not clear whether statement of Karan was recorded during investigation. He has not been examined. According to him on 23.09.2009, he noticed swelling on the forehead of the accused for which he gave explanation that he slipped on the backside portion of the building. On 24.09.2009 he learnt about the death of deceased. The case of the prosecution is that the incident had occurred in the night of 24.09.2009 and 25.09.2009. The swelling on the forehead referred to by this witness, is insignificant as it was noticed by him on 23.09.2009. In any case, the injury allegedly noticed by PW-4 is contrary to evidence of PW-12. According to him he learnt about the incident on 24.09.2009. The body of deceased was found on 25.09.2009. He also deposed that there are several other residential buildings near Duck Villa and Jayant Villa buildings. He did not state anything to police on his own accord. Police recorded the statement. Subsequently, on 24.09.2009, police came to the spot in the morning time. He informed police about the incident. He does not know whether his statement was recorded by police. Apparently, his statement was recorded on 29.09.2009, which was brought on record, at the instance of the prosecution by preferring application exhibit ‘35’. He has disclosed the incident to police on 29.09.2009. Thus, it is very difficult to believe the version of the witness which suffers from serious doubt.

27. From the evidence of these witnesses, it cannot be said that the prosecution has established the links to connect the appellant with the crime. From the evidence of PW-1, it has revealed that the dead body of deceased was found between two buildings. He has referred to pump room. He has also referred to presence of accused. Thus, the accused was sitting near the body of deceased and his movements were not suspicious. PW-7, ASI, Vijay Chalke has also stated that the accused was sitting at the spot, near the body of deceased. Even, PW-9, Sanjay Nikam have deposed that the accused was present near the body of deceased. No adverse inference could be drawn against the appellant with regards to his conduct post the incident of death of his father. PW-7, received the message from control room about the death of deceased. He reached the spot. He did not suspect involvement of the appellant in crime. His statement was recorded on 27.09.2009. He did not file report on 25.09.2009. He made enquiry with the accused, who was sitting at the spot of incident. Although, he was at the spot from 1.50 p.m. to 4.00 p.m., he did not notice anything incriminating against the accused. According to him, statement of accused was being recorded by API, Nikam (PW-9). From the evidence of PW-9, it can be seen that message was received by the police station about death of one person at Duck Villa building, and the said message was given to ASI, Chalke (PW-7). PW-09, went to the spot. PI, Raje (PW-14) and PSI, Kokare were present at the spot. Accused was found sitting near dead body of his father. Enquiry was made with him. Statement of accused was recorded, and ADR No. 79 of 2009 was registered. Thus, inspite of enquiry with the accused, his involvement was not disclosed, and ADR came to be registered. The accused was present all throughout during enquiry and investigation. He never attempted to flee from place of incident. It is unclear on what basis, the involvement of the accused was disclosed on 26.09.2009, the day on which he was arrested. It is pertinent to note that the statements of PW-8, PW-10, PW-11 and PW-12 were recorded subsequently. It would indicate that the appellant was arrested without any incriminating evidence and the statements of the witnesses were recorded subsequently to create evidence against the appellant. The version of those witnesses, is afterthought and concocted. It is relevant to note that the FIR was registered on 26.09.2009 by PW-9 against unknown person. The time of recording the FIR is 2.00 p.m.. General diary reference was made at 2.30 p.m.. The appellant was arrested on 26.09.2009 at

16.40 p.m..

28. From the evidence of witnesses, it is elicited that the dead body was found at the backside of Duck Villa building. There are two gates to the building. There were two buildings adjacent to each other. There is a compound wall which is about 3 feet in height. The two buildings were residential. Gym is conducted in one of the building. The gates used to be open. Outsiders had access to the gym. There were residential chawls outside the compound of the buildings. The pump house room had access to persons other than the accused and deceased. The possibility of deceased being killed by any other person, cannot be ruled out.

29. PW-1, is the resident of Duck Villa building. He had never seen any quarrel between the accused and the deceased. The other resident of the building were not examined. PW-7, and PW-9 did not notice injury on the person of the accused. They did not suspect involvement of the appellant at inception.

30. PW-4, has been examined with dual purpose to establish that there were injuries on person of accused and that the accused has made extra judicial confession to this witness. It is pertinent to note that the dead body of deceased was found in the morning of 25.09.2009. The alleged incident had occurred between the night of 24.09.2009 and 25.09.2009. The appellant was arrested on 26.09.2009 at about 16.40 p.m.. As per certificate issued by PW-4 exhibit ‘20’, accused was examined by him on 26.09.2009 at 8.00 p.m.. PW-4, have deposed that the injury found on the person of the accused, was within 24 hours. The accused was examined almost after 45 hours from the time of alleged incident. Exhibit 20 mentions that the accused have consented for his physical examination and he has put up his thumb impression as well as signature. Below the signature and thumb impression, writing was executed on exhibit ‘20’ about marks of identification and the injuries like linear, multiple obression, 0.[1] to 0.[2] mtr. In length, on lateral aspect of left pinna redish in colour, tender within 24 hours. The cause of injuries is hard, sharp pointed object. No external injury was noted on body. The said certificate also records history allegedly given by the accused that he killed his father Harisingh on 25.09.2009 at about 1.00 a.m. by throttling and during struggle he got injury to his left ear. We have noted hereinabove that PW-7, PW-9 and PW-14, did not suspect the involvement of the appellant/accused. The FIR was registered against unknown person, even after interrogating the accused. They have not referred to presence of any injuries on the person of the accused. The signature and thumb impression is related to consent for his physical examination and not to the other content of exhibit 20. There is every possibility that the history reflected in exhibit-20, was copied from the covering letter mentioning the short history of the case sent while the accused was brought by the police to the hospital. Apart from the above discrepancies, it is difficult to accept that the content of exhibit – 20 would amount to extra-judicial confession by accused to PW-4.

31. The evidence of witnesses discloses that the appellant was arrested on 26.09.2009 and he was produced for examination on the same day at 8.00 p.m.. Thus, the appellant was in custody of police. PW-4 has also stated that the accused was brought for medical examination by API, Nikam (PW-9). Any confession made by the accused while in police custody to any person would be hit by Section 26 of Evidence Act. Hence, the alleged confession has no legal sanctity and cannot be relied upon

32. Section 26 of the Evidence Act reads as follows: “Section 26 -No confession made by any person whilst he is in the custody of a police officer, unless, it be made in the immediate presence of a Magistrate, shall be proved as against such person. In this Section “Magistrate” does not include the head of a village discharging Magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882).” The extra-judicial confession allegedly made by the accused to PW-4 is hit by Section 26 of the Evidence Act, since, assuming that the accused has provided the history in the nature of confession, it was made while in police custody and consequently cannot be admitted into evidence.

33. PW-13, conducted autopsy, cause of death according to him, was cerebral anoxia and apoplexy as a result of instrumental strangulation(unnatural). However, the prosecution has not been able to establish as to who has caused the death and how. It is not proved as to which instrument was used in commission of crime. Belt was recovered from the place of incident. PW-13, has not stated that the victim was strangulated by leather belt. No opinion was sought, whether death can be caused by leather belt, seized by police. PW-13, has categorically stated that he has not mentioned the instrument of instrumental strangulation, since unless the instrument is shown to him by I.O. he would not be in position to disclose the instrument which caused strangulation. The instrument was not shown to him either during investigation or while record his evidence.

34. The prosecution had tried to invoke Section 106 of the Evidence Act. The trial Court has also relied upon the said provision and opined that there is no explanation from the accused, which was considered as one of the circumstances to prove his guilt. On scrutiny of evidence of witnesses, it is apparent that the prosecution has failed to establish that the appellant is author of crime, the appellant and the deceased were together in the same premises at the time of incident and no other person had access to the place of incident. Section 106 of Evidence Act can be quoted for reference, which reads as follows: “Section 106- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations- (a) when a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.” It is settled principle of law that the prosecution must discharged the initial burden of establishing prima facie the guilt of the accused beyond all reasonable doubt.

35. Thus, we are of the opinion that the prosecution has failed to establish the circumstances against the accused. It is difficult to arrive at a conclusion that the circumstances taken jointly form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused, and none else.

36. In Kishorchand V/s. State of Himachal Pradesh 1991 (1) SCC 286, it was observed that in a case of circumstantial evidence, all circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. It is not necessary that each circumstance by itself be conclusive but there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that in all probability the act must have been done by the accused and the accused alone. Paragraph 6 of this decision would be relevant which reads as follows: “Para 6- In assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. In regard to the proof of basic or primary facts, the court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The Court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such a to show that in all probability the act must have been done by the accused and the accused alone.”

37. In the aforesaid decision the Supreme Court has further observed that an unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. Court has to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. For this purpose, the Court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Section 26 provides that no confession made by any person while he is under custody of the police officer, unless it be made in the immediate presence of a Magistrate shall be proved against such person. In the fact of case before the Supreme Court, it was observed that with a view to avoid rigour of Section 25 and 26, the witness created artificial scenario of his leaving for further investigation and kept the accused in custody of another witness who is the pradhan of village to make an extra-judicial confession. It would be legitimate to conclude that the accused was taken into police custody and while in custody extra-judicial confession was obtained through witness to accommodate the prosecution. Thus, by operation of Section 26 of the Evidence Act, the confession made by the accused to the witness while he was in custody of police officer, shall not be proved

38. In Ram Singh V/s. Sonia & Othrs (Supra) it was observed that the confession by the accused while in police custody not to be proved against him. Temporary disappearance of police from the scene at the time when accused making extra-judicial confession to scientific assistant would be hit by Section 26 of Evidence Act, since it was made by accused while in police custody. The confession was made by accused after his arrest while he was in police custody, although at the point of time when the confession was made, the police personnel went away from the scene temporarily. It would be hit by Section 26 of the Evidence Act and cannot be admitted into evidence.

39. In Gargi V/s. State of Haryana (Supra) the Apex Court has reiterated the principles governing circumstantial evidence. It was observed that circumstantial evidence is one whereby other facts are proved from which existence of fact in issue may either be logically inferred, or atleast rendered more probable. The circumstantial evidence, in the context of crime, essentially means such facts and surrounding factors which do point towards complicity of charged accused and then, chain of circumstances means such unquestionable linking of facts and surrounding factors that they established only guilt of charged accused beyond reasonable doubt, while ruling out any other theory or possibility or hypothesis. The Supreme Court also considered Section 106 of Evidence Act and observed that the conduct of the accused post alleged incident of murder would be considered if unnatural and manifested guilt of accused. However, the accused in that case who was the wife of the deceased neither concealed herself nor altered the scene of crime in any manner and there had not been any oddity in her manners and demeanour.

40. In Shambhunath Mehra V/s. State of Ajmer (Supra) the Apex Court has dealt with the principles underlying Section 106 of Evidence Act which has been explained beautifully in paragraph 9, 10 and 11 of the said decision which reads as follows: “Para-9, This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that be did not commit the crime for which he is tried. These cases are Attygalle v. Emperor(1) and Seneviratne v. R. (2).

10. Illustration (b) to section 106 has obvious reference to a very special type of case, namely to offences under sections 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not be purchased a ticket. On the other band, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity.

11. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.”

41. The division bench of this Court in Mayur Malji Parmar and Anr V/s. State of Maharashtra 2016 (3) Bom.C.R. (CRI) 201 has observed that, Section 106is designed to meet certain exceptional cases where the prosecution is unable to prove certain facts which are specially within the knowledge of the accused. This section however, does not absolve the prosecution from discharging its initial burden of proving the guilt of the accused. The burden to establish the basic factum probans is solely and exclusively on the prosecution. It is from such established facts that the Court can infer and presume, probability about existence or non-existence of a further fact. It is only then that Section 106 would apply to cases where the accused by virtue of his special knowledge is required to offer explanation regarding such facts which are preeminently and exclusively within his knowledge. Failure to offer explanation of such facts specially within the knowledge of the accused would authorise the Court to draw a different inference. It has also to be borne in mind that the said explanation is not tested or evaluated on the highest parameter but preponderance of the probability is the criteria applicable to the explanation of the accused.

42. In the light of guiding principles and the facts of this case, the evidence before the Trial Court which has been analysed hereinabove, we are of the opinion that the prosecution has failed to establish all the links to prove the guilt of the appellant. Hence, the conviction of the appellant deserves to be set aside.

43. Hence, we pass following order: ORDER

1. The appeal is allowed. The judgment and order dated 8th March, 2011, in Sessions Case No. 58 of 2010, whereby the sentence and conviction was awarded by the learned 1st Ad-Hoc Additional Sessions Judge, Sessions Court for Gr. Bombay at Fort, Mumbai, is quashed and set-aside. The appellant be set at liberty forthwith, if not needed in any other case.

2. This order will be Secretary of this Court. All concerned will act on production (PRAKASH D. NAIK, J.) (PRASANNA B. VARALE, J.)