2025 INSC 93
SUPREME COURT OF INDIA
(HON’BLE J.B.
PARDIWALA, J. AND HON’BLE R. MAHADEVAN, JJ.)
SADASHIV DHONDIRAM
PATIL
Petitioner
VERSUS
STATE OF MAHARASHTRA
Respondent
Criminal
Appeal No.1718 OF 2017-Decided on 09-01-2025
Criminal, Murder
(A)
Penal Code, 1860, Section 302/201 - Evidence Act, 1872, Section 25 -
Maharashtra Village Police Act, 1967, Section 13, 15 – Appeal against
conviction – Circumstantial evidence – Appreciation of evidence -Extra
judicial confession – Made to Police Patil – Admissibility in evidence - PW 2,
Police Patil of the Village cannot be termed as a Police Officer for the
purpose of Section 25 of the Evidence Act - Extra-judicial confession alleged to have
been made by the accused before PW 2 is admissible in evidence and is not hit
by Section 25 of the Evidence Act - However, such extra-judicial
confession should be found to be true & trustworthy before it is relied
upon by the Court to hold the accused guilty - Besides, the above such
extra-judicial confession should also be found to be free of any inducement,
coercion etc. and it should be shown to have been made by the accused on
his own free will and volition - A very omnibus & vague statement seems to
have been made as deposed by both the witnesses in their oral evidence - What
is alleged to have been conveyed cannot be said to be an extra- judicial
confession - High Court fell in error in relying upon the extra-judicial
confession even while rightly holding that the same was admissible in evidence
as Village Police Patil cannot be said to be a Police Officer.
(Para 36 to 42)
(B)
Penal Code, 1860, Section 302/201 – Evidence Act, 1872, Section 27 - Murder –
Circumstantial evidence –
Appreciation of evidence – Disclosure statement - It is the case of the
prosecution that after the arrest of the appellant is said to have on his own
free will and volition made a statement before the Investigating Officer and he
was ready and willing to point out the place where he had concealed the weapon,
i.e., the iron rod - Accordingly, the
Investigating Officer along with two independent witnesses in the form of
panchas went to the place as led by the appellant - The place was the house itself where the
incident had occurred. According to the Investigating Officer, the appellant
pointed out the iron rod which was lying in one corner of the house - The same
was seized in the presence of the panch witnsses and was sent to the Forensic
Science Laboratory for chemical analysis - Panch witnesses have not supported
the case of the prosecution - They
failed to prove the contents of the discovery panchnama - If the panch witnesses are declared hostile
then the prosecution is obliged to prove the contents of the
said discovery panchnama through the evidence of the Investigating Officer
- From the plain reading of the oral
evidence of the Investigating Officer if the discovery is believable and
inspires confidence, the same can definitely be looked into as one of the
incriminating pieces of evidence against the accused - All that the I.O. did
was to depose that he had drawn the panchnama and in the end identified his
signature on the same and that of the panch witnesses - This cannot be said to
be proving the contents of the panchnama in accordance with la -. In such
circumstances, the circumstance of discovery also cannot be relied upon.
(Para 42 to 50)
(C)
Penal Code, 1860, Section 302/201 –
Appeal against conviction – Circumstantial evidence – Appreciation of
evidence – Motive – Held that motive is a double-edged weapon - Motive cannot
be the sole basis for convicting the accused and that too for a serious offence
like murder - Motive may be considered along with other pieces of reliable
evidence in the form of incriminating circumstances.
(Para 51)
(D)
Penal Code, 1860, Section 302/201 – Evidence Act, 1872, Section 106 - Murder –
Circumstantial evidence –
Appreciation of evidence – Non-offering of explanation by accused – Judgment
and order of acquittal passed by the trial Court set aside by High Court - Submitted
on behalf of the prosecution that the dead body of the deceased was recovered
from the house itself, i.e., the place where the family was residing and that
in normal circumstances, the husband could be said to be the best person to
explain as to what had happened to his wife on the date of the incident and in
the absence of any such explanation, it could be said that the accused
committed the crime as alleged – Held that the initial burden of proof is
always on the prosecution - However, in cases where husband is alleged to have
killed his wife in the night hours & that too within the residential house,
then undoubtedly the husband has to offer some explanation as to what had actually
happened and if he fails to offer any plausible explanation, this can go
against him - However, Section 106 of the Evidence Act is subject to
one well-settled principle of law - The prosecution has to first lay the
foundational facts before it seeks to invoke Section 106 of the
Evidence Act - If the prosecution has not been able to lay the foundational
facts for the purpose of invoking Section 106 of the Evidence Act, it
cannot straightaway invoke the said Section and throw the entire burden on the
accused to establish his innocence - In
the overall view of the matter, convinced that the High Court committed error
in holding the appellant guilty of the offence of murder - Impugned Judgment
and Order passed by the High Court set aside.
(Para
53 to 58)
JUDGMENT
1.
This appeal arises from the Judgment and Order passed by the High Court of
Judicature at Bombay dated 3-7-2015 in Criminal Appeal No.70/94 by which the
High Court allowed the acquittal appeal filed by the State of Maharashtra and
thereby set aside the Judgment of the Additional Sessions Judge, Kolhapur dated
13-7-1993 in Sessions Case No.48/91 acquitting the appellant - herein (original
accused) for the offence punishable under Sections 302 and 201 respectively of
the Indian Penal Code (for short, the “IPC”).
2.
The case of the prosecution may be summarized as under:-
The deceased by name
Lata was married to the appellant herein.
A son was born in the
wedlock. However, it appears that marital life was not happy. The appellant –
herein was entertaining a doubt in his mind as regards the chastity of his
wife. One day all of a sudden, the deceased went missing.
3.
In such circumstances, the maternal uncle of the deceased by name - Yashwant
Ganpati Patil (PW 5) went to the house of Village Police Patial by name
Mr. Vasant Dattu Bhosale & informed him that his niece had gone missing.
4.
It appears that on 20-10-1990 at about 9.30 p.m. PW 5 brought to the notice to
PW 2 that his niece Lata was missing.
5.
The PW – 2, being the Village Police Patil, visited the house of the appellant
– herein and found that the dead-body of the deceased lying in one corner of
the house. The materials on record further indicate that the brother of the
appellant – herein by name Madhukar and his wife Laxmi (PW 4) along with their
daughter Mangal (PW 3) were also residing in the same house but separately in
one part.
6.
Upon recovery of the dead-body of the deceased, the inquest panchnama was
drawn. The body of the deceased was sent for postmortem examination. The
postmortem examination report noted that the cause of death was asphyxia due to
strangulation. It is the case of the prosecution that the appellant – herein
strangulated his wife to death with the help of an iron rod.
7.
This iron rod is also stated to have been discovered from the place of the
incident itself by way of a discovery panchnama drawn by the Investigating
Officer in the presence of the panch witnesses.
8.
The appellant was arrested in connection with the First Information Report that
came to be lodged by the PW-2 himself at the concerned Police Station for the
offence of murder.
9.
Upon completion of investigation, the Investigating Officer filed charge-sheet
for the offence enumerated above.
10.
The case being exclusively triable by a Sessions Judge came to be committed to
the Court of Sessions.
11.
The Trial Court framed charge vide order dated 20.02.1993 which reads thus:
“CHARGE
I, V. B. Deshmukh, 4th
Additional Sessions Judge, Kolhapur hereby charge you accused. Shri. Sadashiv
Dhondiram Patil, Age-33 years, Resident of Takali, Tal. Shirol, Dist. Kolhapur
as follows:-
That you accused on or
about 25.10.1990 at about 1.00 a.m. at Mouje Sainik Takali, Tal. Shirol, Dist.
Kolhapur did commit murder of your wife Sou. Lata Sadashiv Patil, Age-25 years
by pressing her neck and thereby committed an offence punishable section
302 of the Indian Penal Code.
Secondly that you on
aforesaid date, time and place knowingly that certain offence, to wit that you
committed murder of your wife by pressing her neck and offence punishable with
death or imprisonment for life has been committed, did cause of certain
evidence of the said offence to disappear to wit. that you put the dead body of
your wife in a gunny bag and thrown in the (iso) where the food-grains are
preserved with an intention to screening yourself from legal punishment and
thereby committed an offence punishable under section 201 of the
Indian Penal code, and within my cognizance.
And, hereby I direct
you that you be tried by me on aforesaid charges.
Today this 20th day of
February, 1993 at Kolhapur.
(V.B.Deshmukh),
4th Additional
Sessions Judge, Kolhapur..”
12.
In the course of the trial, the prosecution examined the following witnesses:-
1. Mr. Yeshvant Govind
Chavan Exhibit 13
2. Mr. Vasant Dattu Bhosale (Patil) Exhibit 16
3. Ms. Mangal Exhibit
19
4. Ms. Laxmi wife of
Madhukar Patil Exhibit 20
5. Mr. Yashvant
Ganapati Patil Exhibit 21
6. Mr. Yamnappa
Bhimrao Murali Exhibit 22
7. Mr. Amrut Rama Mane
Exhibit 24
8. Dr. Shashikant
Lakshman Pawar Exhibit 32
13.
The prosecution also relied upon the following pieces of documentary evidence:-
1. First Information
Report (Exhibit 17)
2. Inquest Panchnama
(Exhibit 8)
3. Spot Panchnama
(Exhibit 10)
4. Arrest Panchnama
(Exhibit 11)
5. Memorandum of the
Statement of accused (Exhibit 14)
6. Seizure punchnama
of iron-rod, Article No.1 (Exhibit 15)
7. Seizure punchnama
of the clothes of the deceased (Exhibit 12)
8. The Memorandum of
Post-mortem examination (Exhibit 33)
9. Advance Medical
Certificate (Exhibit 9)
10. Seven photographs (Exhibit 37 to 43)
14.
Upon closure of the recording of the evidence, the further statement of the
appellant – herein was recorded under Section 313 of the Code of
Criminal Procedure, 1973
15.
In the further statement, the appellant stated as under:-
Q.75 Do you want to say anything more about
your defence?
Answer : I am giving
written statement.
WRITTEN STATEMENT OF
THE ACCUSED UNDER SECTION
313 of Cr. P.C.
Few months prior to
death of my wife, I became disciple of Shri Rane of Shirol. He told me not to
sleep at home for 6 months. Therefore I use to stay at night generally at
Shirol. If I am at Takali, then I use to sleep at Kalleshwar temple. 2-3 days
prior to missing of my wife from the home, I was at Shirol.
When I returned on
Thursday or Friday, I came to know about missing of my wife from the home. I
enquired with, her maternal uncle, but she did not go there. I am implicated in
the present case only on the basis of doubt.
16.
The Trial Court upon appreciation of the oral as well as the documentary
evidence on record came to the conclusion that the prosecution had failed to
prove its case beyond reasonable doubt. The Trial Court accordingly acquitted
the appellant – herein.
17.
It may not be out of place to state that at this stage that the Trial Court
looked into only one piece of circumstance, i.e., the extra judicial confession
alleged to have been made by the appellant – herein before the (PW 2), i.e.,
the village Police Patil in the presence of his sister- in-law (PW 4) – Laxmi.
18.
It is also important to note that Madhukar (brother of the accused) passed away
during the course of trial and he could not have been examined as one of the
prosecution witnesses.
19.
The Trial Court took the view that the extra-judicial confession alleged to
have been by the appellant – herein before (PW 2) could not be said to be
admissible in evidence being hit by Section 25 of the Indian Evidence
Act.
20.
The Trial Court also disbelieved the discovery of the iron rod
under Section 27 of the Indian Evidence Act.
21.
The State, being dissatisfied with the Judgment and Order of acquittal passed
by the Trial Court, went in appeal before the High Court.
22.
The High Court reversed the acquittal and held the appellant – herein guilty of
the offence of murder and accordingly sentenced him to undergo life
imprisonment.
23.
In such circumstances, referred to above, the appellant is here before this
Court with the present appeal.
24.
We have heard Mr. Sachin Patil, the learned counsel appearing for the appellant
and Mr. Aniruddha Joshi, the learned Senior counsel appearing for the
respondent – State.
25.
We take notice of the fact that the entire case hinges on circumstantial evidence.
The High Court relied upon the four pieces of incriminating evidence for the
purpose of holding the accused guilty of the offence of murder of his wife:-
(i) extra-judicial
confession alleged to have been made by the appellant before (PW 2) on 29-10-1990
(ii) discovery of the
weapon of offence, i.e., the iron rod;
(iii) motive to commit
crime;
(iv) the incident
occurred inside the house and, therefore, the appellant could be said to be
within the special knowledge as to what had happened on the fateful day of the
incident.
26.
The High Court while reversing the acquittal invoked Section 106 of
the Evidence Act and shifted the burden on the appellant – herein to establish
or rather explain what exactly had happened with his wife.
27.
It appears that when the Trial Court acquitted the appellant – herein, the
position of law as regards the admissibility of an extra-judicial confession
said to have been made before the Village Police Patil was something different.
A Division Bench of the High Court in “Ram Singh vs. the State of
Maharashtra & Anr” (1999) Criminal Law Journal 3763 had held that a
village Police Patil is a Police officer and, therefore, any confession made to
him is inadmissible in evidence in view of Section 25 of the Evidence
Act.
28.
In the said Judgment, the Division Bench also looked into &
discussed Section 14 of the Maharashtra Village Police Act, 1967,
under which a Police Patil is appointed.
29.
We quote the relevant observations of the said Judgment as under:-
13. Section 14 of the Maharashtra Village
Police Act, 1967, provides inter alia:
"(1) The Police
Patil shall apprehend any person within the limits of his village who he may
have reason to believe has committed any serious offence, and shall forward
such person, together with all articles likely to be useful as evidence, to the
Station Officer.
(2) Every person so
apprehended shall within 24 hours be produced before the nearest Magistrate,
excluding the time necessary for the journey from the place where he is
apprehended to the Court of the Magistrate."
14. Sub-section (1) of S. 13 of the
Maharashtra Village Police Act, 1967, provides:
"The Police Patil
shall forthwith proceed to the place of incident and call upon two or more
intelligent persons belonging to the village or neighbourhood, who shall
investigate the causes of death and all the circumstances of the case, and make
a written report of the same, which the Police Patil shall cause to be
forthwith delivered to the Station Officer."
15. Section 15 of the Maharashtra Village
Police Act, 1967, provides inter alia:
"(1) The Police
Patil, in making any investigation coming within the scope of his duty, shall
have authority to call and examine witnesses, and record their statement, and
to search for concealed articles, taking care that no search be made in a
dwelling-house between sunset and sunrise without urgent occasion.
(2) The Police Patil
shall also have authority, in carrying out any search or any pursuit of
supposed criminal, to enter and act within the limits of other villages, being
bound however to have immediate information to the Police Patil thereof, who
shall afford him all the assistance in his power, and be immediately
responsible for continuing the search and pursuit."
16. On plain reading
of these provisions under the Maharashtra Village Police Act, 1967, it
will be clear that the Police Patil has power to apprehend a person, if he
suspects that a person has committed serious offence. He has to send report to
the Police Station and the person is required to be produced within 24 hours
from the time and Police Patil apprehend such person. Not only that a
preliminary investigation with respect to such crime also can be made by the
Police Patil and he can even chase the accused and apprehend the accused. So,
it is obvious that the observations of the learned Additional Sessions Judge
quoted above are made without reading the appropriate provisions. Before making
any such observations in the judgment, the Judge, at least, of the cadre of
Additional Sessions Judge, is expected to go through the relevant provisions of
law. Sweeping observations should not be made just to boost the reasoning which
is being given in the judgment.
17. In the light of
the provisions of the Mahar- ashtra Village Police Act, 1967, it has to be
seen whether any confession made before the Police Patil is hit by Section
25 of the Evidence Act. The powers of the Police Patil which are referred
to above clearly indicate that when any offence takes place, he can act as
a Police Officer. He is not a mere spectator or informant. So, for all
practical purposes, he is a Police Officer and, therefore, any confession made
before the Police Patil would become inadmissible in evidence as being made
before a Police Officer.
18. In this respect,
we would like to refer two rulings of our High Court. The first is, in the case
of Queen Empress v. Bhima ((1894) ILR 17 Bom 485), and the other is
in the case of Vistari Narayan Shebe v. The State of Maharashtra 1978
Cri LJ 891. It is observed in the case of Vistari Narayan Shebe by the Division
Bench, as follows (at page 895):
"In our opinion,
it is fairly well established that the police patil is a police officer within
the meaning of Sec. 25 of the Evidence Act. As early as in 1893 this
Court held in Queen Empress v. Bhima ((1894) ILR 17 Bom 485), that a
police patil is a police officer within the meaning of Ss. 25 and 26 of
the Indian Evidence Act. A confession made to a police patil is
inadmissible in evidence. It must be remembered that the words "a police
officer" found in S. 25 of the Indian Evidence Act should not be
read in any strict technical sense but according to its more comprehensive and
more popular meaning. Nor is the term confined to a person actually in charge
of investigating the offence under the Cr. P.С."
19. Thus, it will be
very clear that any confessional statement made by the accused before the
Police Patil is not admissible in evidence. If the learned Additional Sessions
Judge had considered this aspect in that perspective, he would not have relied
upon the evidence of the Police Patil to hold that the extra judicial
confession made by the accused before the Police Patil could be sufficient to
convict the accused. The deposition of the Police Patil as well as the F.I.R.
which include this confessional statement are inadmissible in evidence and,
therefore, this evidence brought on record by the prosecution has to be
excluded altogether”.
30.
In the year 2009, a Full Bench of the Bombay High Court, answered a reference
titled “Rajeshwer S/o Hiraman Mohurle vs. State of Maharashtra” reported in
(2009) Criminal Law Journal 3816. The Full Bench was called upon to answer
whether a Village Police Patil is a Police Officer within the meaning
of Section 25 of the Evidence Act or not.
31.
The Full Bench of the High Court overruled the above referred Division Bench
Judgment and took the view that a Village Police Patil is not a Police Officer
within the meaning of Section 25 of the Evidence Act and any
confession made before him would be admissible in evidence as an extra-judicial
confession. We may quote the relevant paragraphs of the said Full-Bench
Judgment as under:-
“18. Upon objective
analysis of the principles aforestated, it can be stated with some certainty
that merely because a person is appointed to a post which vests him with
limited powers of Investigation and inquiry or any power ancillary thereto or
empowers him to prevent commission of crime in an area would not per se make
him a Police Officer in law so as to attract the bar contained in section
25 of the Evidence Act. We have already noticed in some detail that the
powers vested in Police Patil under the Village Police Act are
expected to be exercised for performance of duties and functions stated
under section 6 of that Act. The duties and functions of the Police
Patil are of a very restricted nature and do not vest in him all the powers
including the power to file a charge-sheet under section 173 of the
Criminal Procedure Code which a Police Officer under the Code possess. On the
contrary, he is expected to assist the Police Officers when called upon by them
in performance of their duties. He has to act under the orders of the District
Magistrate and even is expected to collect and communicate to the Station
Officer intelligence affecting the public peace. The basic and primary
distinction between the powers of the Police Officer under the Code and the
power and duties of the Police Patil under the Village Police Act, is that
while the investigating officer or Police Officer in charge of a Police Station
is duty bound in, law to conduct inquiry or, investigation in a just, proper
and fair manner independently being uninfluenced by any other facts. There
the restricted duties and powers relating to investigation and even otherwise
vested in the Police Patil are to be exercised under the supervision of higher
authorities as indicated in the provisions of the Village Police Act.
Police Patil is required to perform his functions and discharge his duties
subject to the orders of the Magistrate and is also required to assist and help
the Police Officers in discharge of their duties. In these circumstances, it
will be a farfetched submission that the Police Patil has to be treated as a
Police Officer in law for all intent and purposes. The consistent view of the
Supreme Court as is evident from the above referred judgments is that the
officer, other than a police officer, invested with powers of an officer
-In-charge of a Police Station is not entitled, to exercise all the powers
under Chapter XII of the Code Including the power to submit a report or charge-
sheet/challan under section 173 of the Code. This feature has been the hallmark
and is held to be determinative factor by the Supreme Court. Once this aspect
is missing from the ambit of the powers vested in the officer, he cannot be
stated to be a Police Officer for the purposes of section 25 of the
Indian Evidence Act. The Police Patil under the Village Police Act is
also not a Police Officer on the deeming fiction of law as there is no
provision in the Statute which specifically or even otherwise requires the
Police Patil to be treated as a Police Officer for all intent and purpose.
19. It will be useful
to refer to the reasoning recorded by the Supreme Court in the case of Badku
Joti Savant (supra) even at the cost of repetition. In paragraph 9 while
discussing section 21 of the Central Excise Act which states that a
Central Excise Officer under the Act has all the powers of an officer in-charge
of a Police Station under Chapter XIV of the Criminal Procedure Code, the
Court rejected the contention that therefore he should be deemed to be a Police
Officer within the meaning of section 25 of the Evidence Act.
Reference was made to the provisions of section 78(3) of the Bihar
and Orissa Excise Act, 1955 and section 77 of that Act which stated
that Excise Officer empowered under the provisions shall be deemed to be the
officer in-charge of a Police Station and shall have the power of such officer
to investigate a cognizable case. But even there the Supreme Court held that
this power does not include the power to submit a charge-sheet
under section 173 of the Criminal Procedure Code under
the Excise Act unlike the Bihar and Orissa Act and thus held that
Central Excise Officer is not an officer deemed to be in-charge of a Police
Station. In other words, the Supreme Court declined to accept the applicability
of the deemed fiction of law to the extent of terming the Central Excise
Officer as a Police Officer for the purpose of section 25 of the
Evidence Act.
20. The distinction
between the powers of investigation given to a Police Officer under the Code
and that of a Police Patil under the Village Police Act is quite
obvious from the provisions of the two Statutes. Police Patil has been vested
with very limited powers that too under the control and for the benefit of the
Executive Magistrate/Police Officer and his duties are primarily to ensure that
offences and public nuisance are not committed in the village and to bring the
offenders to justice. The expression "bringing the offenders to
justice" appearing in section 6 of the Village Police Act along
with its other provisions has to be given its normal and plain meaning. There
is no need, keeping in view the scheme of the Act or the legislative intent, to
expand the meaning of this expression and enlarge the scope of provisions of
this section on certain presumption of law. The powers of the Police Patil as
stated under section 13 to 15 of the Village Police Act,
are to be read and construed ejusdem generis to the provisions of section
6. The bare reading of these provisions show that Police Patil is not vested
with the powers of preparing and filing a charge-sheet before the Court of
competent jurisdiction. The powers of Police Patil to investigate and control
over the apprehended persons are very limited in contradistinction to powers of
a Police Officer under the Code. In terms of section 156 of the Code,
a Police Officer is vested with the power to investigate any cognizable case
under the provisions of Chapter XIII even without orders of the Magistrate. On
the other hand, when a Police Patil apprehends a person in exercise of his powers
vested under section 14(i) of the Village Police Act, he has to
forward such person to the Station Officer, who in turn shall produce such
person before the Magistrate within twenty four hours. Thus Legislative intent
behind section 6 appears to be that Police Patil is a person
responsible primarily for village surveillance, prevention of crime and
providing his assistance and help to the police in discharge of his duties.
Even above all this, his duties and functions have been made subject to orders
of the District Magistrate. The Police Patil does not enjoy absolute freedom in
relation to investigation, apprehending the suspect and even in exercise of
other powers vested in him under law. The powers to be exercised and duties and
functions to be performed by him are under the supervisory control of the
stated authorities. The duties, functions and powers vested in an authority by
a Statute are relatable to the source which prescribes such functions and
powers. The ambit, scope and effect of exercise of such power can be tested by
two different concepts i.e. quo modo and actio quaelibet it suia via. In what
manner the powers are to be exercised as per the prescribed procedure, the
performance or action must follow its prescribed procedure. On applying the
above stated principles and testing them with reference to the maxims stated
(supra), it is not possible for the Court to hold that either the manner of
functions and powers of Police Patil or method in which they are to be
performed are equitable to the authority, powers and functions of a Police
Officer, in law. Therefore, we are unable to contribute to the view that Police
Patil is a Police Officer in law for all intent and purpose and confession
before him would attract the bar contemplated under section 25 of the
Indian Evidence Act, 1872.
21. In view of our
above discussion, now we proceed to record the answer to the question of law
framed by the Division Bench. Our answer is as follows:-
"We are of the
considered view that the Police Patil appointed under the Maharashtra
Village Police Act, 1967 is not a 'Police Officer' for the purposes
of section 25 of the Indian Evidence Act, 1872".
32.
It appears that the High Court while reversing the acquittal relied upon the
above-referred Full Bench Decision for the purpose of taking the view that the
extra-judicial confession made by the appellant – herein before PW 2 could be
said to be admissible in evidence.
33.
One interesting question that arises for our consideration at this stage is
that at the relevant point of time i.e., in 1993 when the Trial Court acquitted
the appellant – herein the position of law was that an extra-judicial confession
said to have been made by an accused before a village Police Patil could be
said to be inadmissible in evidence being hit by Section 25 of the
Evidence Act.
34.
In the year 2009, the Full Bench of the Bombay High Court while answering a
reference held that a Village Police Patil is not a Police Officer. Therefore,
if the accused herein had stood acquitted having regard to the position of
law prevailing at the relevant point of time then relying on a subsequent
decision taking a contrary view whether the accused could have been held
guilty?
35.
It could be argued that the Full Bench decision of the Bombay High Court came
to be delivered in the year 2009 whereas the appellant was acquitted by the
Trial Court sometime in the year 1993. The position of law till 2009 was that a
Village Police is a Police Officer and therefore, any confession made to him
would be inadmissible in evidence in view of Section 25 of the
Evidence Act, more particularly in view of the Division Bench decision of the
Bombay High Court rendered in Ram Singh (supra). We do not propose to
consider the question whether the High Court could have relied upon the Full
Bench decision after the appellant came to be acquitted by the Trial Court in
1993 thereby giving retrospective effect as regards its applicability.
36.
We proceed on the footing that PW 2 – Vasant Dattu Bhosale, Police Patil of the
Village cannot be termed as a Police Officer for the purpose of Section
25 of the Evidence Act. We also proceed on the footing that the
extra-judicial confession alleged to have been made by the accused before PW 2
is admissible in evidence and is not hit by Section 25 of the
Evidence Act. However, such extra-judicial confession should be found to be
true & trustworthy before it is relied upon by the Court to hold the
accused guilty.
37.
Besides, the above such extra-judicial confession should also be found to be
free of any inducement, coercion etc. and it should be shown to have been
made by the accused on his own free will and volition.
38.
We requested the learned counsel appearing for the State to show us from the
oral evidence on record, more particularly, the deposition of PW 2 as well as
the deposition of PW 5, the exact words alleged to have been uttered by the
appellant – herein in the form of an extra-judicial confession.
39.
We on our own also looked into and are convinced that what is alleged to have
been conveyed cannot be said to be an extra- judicial confession. A very
omnibus & vague statement seems to have been made as deposed by both the
witnesses in their oral evidence.
40.
This Court in “C.K. Ravindra vs. the State of Kerala” AIR 2000 SC 369
had held that before placing reliance upon the extra-judicial confession, the
Court must be convinced as regards the exact words or even the words as nearly
as possible. This Court took the view that it would be difficult to rely upon
the extra-judicial confession if the exact words or even the words as nearly as
possible have not been reproduced, the said statement cannot be said to be
voluntary. In such circumstances, the same may have to be excluded from the
purview of consideration.
41.
This Court in “Balwinder Singh vs. State of Punjab” (1995)
Supplementary 4 SCC 259 had held that an extra-judicial confession by its very
nature is rather a weak type of evidence and requires appreciation with a great
deal of care and caution. Where extra-judicial confession is surrounded
by
suspicious
circumstances, its credibility becomes doubtful and would lose its importance.
42. In
such circumstances, referred to above, we are of the view that the High
Court fell in error in relying upon the extra-judicial confession even while
rightly holding that the same was admissible in evidence as Village Police
Patil cannot be said to be a Police Officer.
43.
We now come to the second piece of the circumstance relied upon.
44.
It is the case of the prosecution that after the arrest of the appellant –
herein, he is said to have on his own free will and volition made a statement
before the Investigating Officer and he was ready and willing to point out the
place where he had concealed the weapon, i.e., the iron rod.
45.
Accordingly, the Investigating Officer along with two independent witnesses in
the form of panchas went to the place as led by the appellant – herein.
46.
The place was the house itself where the incident had occurred. According to
the Investigating Officer, the appellant pointed out the iron rod which was
lying in one corner of the house. The same was seized in the presence of the
panch witnsses and was sent to the Forensic Science Laboratory for chemical
analysis.
47.
In this regard, we may only say that panch witnesses have not supported the
case of the prosecution. They failed to prove the contents of the discovery
panchnama.
48.
If the panch witnesses are declared hostile then the prosecution is obliged to
prove the contents of the said discovery panchnama through the evidence of
the Investigating Officer. The question is how is the I.O. expected to prove
the contents of the panchnama.
49.
The position of law in this regard is very clear. Just because the panch
witnesses have turned hostile does not mean that such discovery should be
disbelieved. From the plain reading of the oral evidence of the Investigating
Officer if the discovery is believable and inspires confidence, the same can
definitely be looked into as one of the incriminating pieces of evidence
against the accused.
50.
However, unfortunately in the case on hand, all that the I.O. did was to depose
that he had drawn the panchnama and in the end identified his signature on the
same and that of the panch witnesses. This cannot be said to be proving the
contents of the panchnama in accordance with law. In such circumstances, the
circumstance of discovery also cannot be relied upon.
51.
We are now left with motive. Motive is a double-edged weapon. Motive cannot be
the sole basis for convicting the accused and that too for a serious offence
like murder. Motive may be considered along with other pieces of reliable evidence
in the form of incriminating circumstances.
52.
We now come to the last part of the matter.
53.
The learned counsel appearing for the State submitted that the dead body of the
deceased was recovered from the house itself, i.e., the place where the family
was residing. He would submit that in normal circumstances, the husband could
be said to be the best person to explain as to what had happened to his wife on
the date of the incident.
54.
According to the learned counsel, when an offence is committed within the four
walls of the house and that too in secrecy, it is difficult for the prosecution
to establish its case beyond reasonable doubt and, therefore,
under Section 106 of the Evidence Act, it is for the accused to
explain what had actually happened and in the absence of any such explanation,
it could be said that the accused committed the crime as alleged.
55.
The law in the aforesaid regard is well-settled. Prosecution has to prove its
case beyond reasonable doubt & that too on its own legs. The initial burden
of proof is always on the prosecution. However, in cases where husband is
alleged to have killed his wife in the night hours & that too within the
residential house, then undoubtedly the husband has to offer some explanation
as to what had actually happened and if he fails to offer any plausible
explanation, this can go against him. However, Section 106 of the
Evidence Act is subject to one well-settled principle of law. The prosecution
has to first lay the foundational facts before it seeks to invoke Section
106 of the Evidence Act. If the prosecution has not been able to lay the
foundational facts for the purpose of invoking Section 106 of the
Evidence Act, it cannot starightaway invoke the said Section and throw the entire
burden on the accused to establish his innocence.
56.
In the overall view of the matter, we are convinced that the High Court
committed error in holding the appellant guilty of the offence of murder.
57.
In the result, this appeal succeeds and is hereby allowed.
58.
The impugned Judgment and Order passed by the High Court is hereby set aside.
59.
We are informed that the appellant has been enlarged on bail by this Court. His
bail bonds stand discharged.
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