ram singh vs state of maharashtra 1999

I have searched but could not find it can you give the citation of the case

    Ram Singh vs State Of Maharashtra And Anr. on 8/3/1999

JUDGMENT

   V.K. Barde, J.

   1. In Sessions Case No. 133/ 1998, Additional Sessions Judge, Nanded, has
convicted the accused of offence punishable under Section 302 of Indian Penal
Code and has sentenced him to suffer imprisonment for life and to pay a fine of
Rs. 500/-, in default of payment of fine, further rigorous imprisonment for 6
months. The appellant has filed the appeal against this order of conviction and
sentence.

   2. Heard Mr. Vijay Sharma, counsel (appointed) for the accused-appellant and
Mr. V.D. Sapkal, Additional Public Prosecutor, for the respondent-State.

   3. The prosecution case is that on 5-4-1993, Purbhaji (PW1), Police Patil of
village Nimgaon, received information that Nilabai, wife of the present accused
Ramsingh s/o. Laxman Rathod, was murdered. He, therefore, visited the house of
the accused and saw the dead body of Nilabai. There were stab injuries on her
person. He made enquiries with the accused and the accused told him that he was
suspecting character of his wife and, therefore, at about 12.30 midnight, he
committed murder of his wife. The Police Patil then went to Police Station,
Mantha and lodged the report. Crime No. 18/93 was registered. The Police took up
the investigation.

   4. The police visited the house of the accused. Inquest panchanama on the
dead body of Nilabai was prepared. The panchanama of that house was also
prepared. The accused was not present at his house. During the course of
investigation, Investigating Officer learnt that the accused and his parents
were ill-treating Nilabai because the demands of radio, gold finger ring and
wrist watch were not fulfilled by the mother of Nilabai. During the course of
investigation, the Police also recovered one knife from the house of the
accused, at the instance of the accused. After completing the investigation,
charge sheet was submitted against the three accused, that means, the present
appellant and his parents, for offence punishable under Section 498-A read with
Section 34 of Indian Penal Code, against all accused and under Section 302 of
Indian Penal Code, as against the present accused.

   5. As the offence punishable under Section 302 of I.P.C. is triable
exclusively by the Court of Session, Judicial Magistrate (F.C.), Hadgaon,
committed the case to the Court of Session at Nanded.

   6. The learned Additional Sessions Judge, Nanded, framed charge against the
present appellant and his parents, for offence punishable under Section 498-A
read with Section 34 of I.P.C and against the present accused-appellant, for
offence punishable under Section 302 of I.P.C. The accused pleaded not guilty.

   7. After recording evidence of the prosecution, statement of the accused and
hearing the arguments of both sides, the learned Additional Sessions Judge
acquitted all the three accused of offence punishable under Section 498-A read
with Section 34 of I.P.C, on the ground that no F.I.R. was lodged by the wife or
her near relatives or by a person duly authorised in that behalf, as
contemplated under the provisions of the Code of Criminal Procedure, 1973. So,
the offence punishable under Section 498-A of I.P.C. being non-cognizable, in
such circumstances, the accused could not be tried for that offence and he
acquitted the accused of offence punishable under Section 498-A read with
Section 34 of Indian Penal Code.

   8. However, so far as offence punishable under Section 302 of I.P.C. is
concerned, the learned Additional Sessions Judge has convicted and sentenced the
accused, as mentioned above, holding that there was the extra judicial
confession made by the accused and there were other circumstances to link the
accused with the crime.

   9. The learned counsel for the appellant has strongly contended that the
learned Additional Sessions Judge erred in relying upon the so called extra
judicial confession. The prosecution has examined the Police Patil Purbhaji (PW
1) and one Ramrao Rathod (PW 2). However, Ramrao Rathod (PW 2) has not supported
the prosecution case with respect to extra judicial confession alleged to have
been made by the accused. As per the prosecution case, one Kaniram and Ramrao
Rathod (PW 2) were with the Police Patil when the Police Patil visited the house
of the accused. But Kaniram is not examined by the prosecution. So, to prove the
extra judicial confession, there is only evidence of the Police Patil Purbhaji
(PW1).

   10. No doubt, the Police Patil in his deposition at Exhibit 18, has stated
that on making enquiries with the accused on 5-4-1993 at about 7 a.m., accused
told him that at about 12.30 midnight, he stabbed and murdered his wife Nilabai
with a knife because he suspected her character. The F.I.R. filed by the Police
Patil is at Exhibit 19 and it also corroborates deposition of the Police Patil
in this respect.

   11. The learned Additional Sessions Judge has relied upon this confessional
statement made before Police Patil Purbhaji (PW 1). He has observed in his
judgment in para 17, as follows :-

     He is a Police Patil of village Nimgaon. Basically, he is an agriculturist.
The appointment of a Police Patil is not a permanent appointment but it is a
temporary appointment for a particular fixed period. A Police Patil has no
powers to arrest or investigate any criminal case. His job is to only report to
the Police if any criminal incident or if any unnatural death takes place in the
village. Necessarily, a Police Patil is an informant acting on behalf of the
Police. He does not possess any authority. He has no power worth the name so
that' an accused would be afraid of him.

   12. It is really regretted that the learned Additional Sessions Judge has
made these observations without going through the provisions of the Maharashtra
Village Police Act, 1967. No doubt, as per the provisions of the said Act,
Police Patil is expected to inform at the Police Station when any crime has
taken place in the village or when there is unnatural or sudden death or any
corpse is found within limits of village. Sections 12 and 13 of the said Act
make provision to that effect.

   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 Section 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 lain 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 Maharashtra Village Police Act,
1967, it has to be seen whether any confession made before the Police Patil is
hit by Session 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 mere 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) ILR17 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 Section 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 Sections 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
Section 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.C.

   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.

   20. The evidence of Ramrao Rathod (PW 2) is of no much help to the
prosecution. It only indicates that he had gone to the house of the accused in
the company of Police Patil and Kaniram. The accused was there. There was dead
body of Nilabai and thereafter, he and Kaniram along with Police Patil went to
the Police Station. So, from the evidence of Police Patil Purbhaji (PW 1) and
from the evidence of Ramrao Rathod (PW 2), the prosecution has established that
the dead body of Nilabai was found in the house of accused early in the morning
on 5-4-1993. The accused-appellant was also present there. There were stab
injuries on the dead body of Nilabai.

   21. The post mortem examination report is at Exhibit 34. The Doctor has noted
various stab injuries found on the person of Nilabai and has given opinion that
the cause of death is due to haemorrhagic shock due to stab injury on right
ventricle of heart and multiple injuries over body. The defence has not
challenged the post mortem examination report and even the cause of death given
by the Doctor. The prosecution has by this evidence established that Nilabai
died homicidal death.

   22. The other piece of evidence on which the prosecution is relying upon is
the recovery of a knife at the instance of the accused. The prosecution witness
No. 7, Chandrakant Bhore, in his deposition at Exhibit 28, has stated that the
accused made a statement in his presence and in the presence of other Panch,
that he had kept one knife under the tin roof of his house and he would produce
the same. Accordingly, memorandum of his statement was prepared. The accused
took the Police and Panchas to his house and then took out a knife from under
the tin roof from inside the house. The panchanama is at Exhibit 30.

   23. However, it has to be noted that though in the panchanama, it is
mentioned that there were faint stains of blood on the knife, the report of the
Chemical Analyser, Exhibit 37, indicates that no blood stains were seen on the
knife. So, the prosecution cannot connect the knife found with the alleged
crime. So, this recovery is of no use for the prosecution to make out the case
against the accused.

   24. The prosecution witness No. 3, Laddubai and prosecution witness No. 4,
Narayan, are mother and brother, respectively, of deceased Nilabai. While Vinod
(PW 5) is the cousin of deceased Nilabai. So also, Ramrao Jadhav (PW 6) is
cousin of deceased Nilabai. All these witnesses are examined to show that the
present accused and his parents were demanding certain valuable articles from
Nilabai and her mother and as these articles were not given to the accused, they
were ill-treating Nilabai. So, this evidence was basically adduced to prove
offence punishable under Section 498-A of Indian Penal Code. The prosecution has
not alleged that the murder of Nilabai took place because illegal demands were
not fulfilled by Nilabai and her mother. So, even if this evidence is there on
record, it is of no use to prove the case against the accused regarding the
alleged murder.

   25. The prosecution witness No. 8, Madhav Molke, is the Panch witness in
whose presence, the Panchanama of the house of the accused was prepared. The
panchanama is at Exhibit 32. This witness has stated that the dead body of
Nilabai was found in the room of the house of the accused. There were blood
spots at various places in the house and there were stab injuries on the person
of Nilabai. One quilt, one Lungi, blood mixed soil and plain soil, as sample,
were collected from the house under the panchanama. The prosecution witness No.
9 is Pralhad Khalse, Head Constable of Police Station, Mantha and through him,
the inquest panchanama Exhibit 13 and panchanama of the spot, Exhibit 32, are
proved by the prosecution. The last witness is Bhagwan Wagmare. P.S.I, who
carried out investigation of this offence.

   26. The learned Additional Public Prosecutor has argued that there is no eye
witness to the incident. The prosecution has based its case on circumstantial
evidence. Even though, the confessional statement made by the accused before the
Police Patil is not admissible in evidence, there are other circumstances which
prove the case against the accused.

   27. The circumstances pointed out by the learned Additional Public Prosecutor
are : (i) That, the accused and Nilabai, husband and wife, were residing
together in the house. No other person was residing with them, (ii) The dead
body of Nilabai was found in the house of the accused early in the morning on
5-4-1993 and the evidence indicate that the death took place in the night
between 4th and 5th April 1993. (iii) The injuries on the person of Nilabai
clearly indicate that she died homicidal death, (iv) The accused was seen near
the dead body of Nilabai by the Police Patil and the other witnesses when they
visited the house of the accused early in the morning on 5-4-1993. However,
later accused absconded, (v) The accused had not explained as to how Nilabai
received those injuries when he had the opportunity early in the morning on
5-4-1993.

   28. The learned Additional Public Prosecutor has further pointed out the
circumstance, that the accused has taken the defence that he was not at home
during that night. He had gone to irrigate the crop in the land of Sarpanch,
Chouramba, because on that night, water was released from dam in the canal.
However, to make out this defence of alibi, the accused has not examined any
witness or has not brought any circumstance on record to show that he has
probable defence by way of alibi.

   29. The learned Additional Public Prosecutor has further pointed out that the
accused has given the explanation in statement under Section 313 of Cr. P.C.,
that the neighbours were saying that theft had taken place on that night and
thieves committed murder of Nilabai. This is altogether false defence taken by
the accused. No witness has come forward stating that there was theft on that
night. So, false defence taken by the accused is one of the important links in
the circumstantial evidence.

   30. In support of this argument, the learned Additional Public Prosecutor has
relied upon the rulings of the Supreme Court, in the cases : (I) Ram Kumar
Madhusudan Pathak v. State of Gujarat(1998CriLJ4048): (II) State of Rajasthan v.
Mahavir alias Mahavir Prasad (1998 Cri LJ 4064), and, (III) Md. Mahiruddin v.
State of Bihar (1999 Cri LJ 461).

   31. In all these three matters, the Apex Court has taken into consideration
the circumstance of false defence taken by the accused to be one of the links to
establish the guilt against the accused.

   32. However, while considering these rulings of the Apex Court, we have to
first take into consideration, the evidence led by the prosecution in this case.
It is the cardinal principle of the criminal jurisprudence that the prosecution
has to prove its case by bringing on record cogent and reliable evidence. The
prosecution cannot rely upon the false defence as the piece of evidence against
the accused. The defence may be that of alibi or of any other type. In matters
of circumstantial evidence, the defence taken by the accused would be taken into
consideration as an additional piece of evidence, only if the prosecution has
established, on its own evidence, case against the accused. The false defence
taken by the accused or failure of the accused to prove the defence of alibi
cannot by itself be a ground for conviction.

   33. In all these rulings, to which a reference is made by the learned
Additional Public Prosecutor, the Court first came to the conclusion that there
was sufficient and reliable evidence against the accused to hold that he had
committed the offence and then the Court took into consideration the false
defence taken by the accused.

   34. It is true that in the present case, the prosecution has established that
the accused and deceased Nilabai were residing together in one house, that,
Nilabai was found dead in that house in between night of 4th and 5th April 1993
and the death was homicidal death. It is also seen from the statement of the
present accused appellant and the statements of parents of the accused
appellant, under Section 313 of Cr. P.C., that the parents of the accused were
residing separately from accused and Nilabai. That means, as per the statement
made by the present accused, under Section 313 of Cr. P.C., he and Nilabai were
residing alone in that house. So, in ordinary circumstances, one can expect some
explanation from the accused regarding cause of death of Nilabai.

   35. The accused has taken the defence that on that night, he had gone to the
field of Sarpanch, Chouramba, to irrigate the standing crop. The accused has not
made out this defence of alibi by producing on record any circumstance to
corroborate it. However, it also has to be noted that the prosecution has not
produced any witness stating that on that night the accused was at home with his
wife. No neighbour is examined to prove that the accused was at home on that
night. So, positive evidence which was expected from the prosecution, basically
to prove that accused and Nilabai were alone in that night is not forthcoming.

   36. There are no circumstances to infer that the accused must have been at
home during that night. So, merely because the accused has failed to establish
his defence of alibi, presumption cannot be drawn that the accused was at home
during the fateful night. To say that the defence taken by the accused is false,
there must be some material on record produced by the prosecution to conclude
that the accused was at home and there is no such material. So, in the given
circumstances, it cannot be said that the accused has taken a false stand and
false defence of alibi. When the prosecution is not able to show that the
accused was at home on the fateful night, the statement made by the accused
cannot be branded as false statement.

   37. It is in the evidence of Police Patil Purbhaji (PW 1) and Ramrao Rathod
(PW 2), that the accused was at his home near the dead body of Nilabai when they
visited early in the morning on 5-4-1993. It also further appears that when the
Police went to that place, the accused was not at home. The evidence indicates
that the accused was arrested on the next day at village Chabra, as stated by
P.S.I. Wagmare (PW 10).

   38. The learned Additional Public Prosecutor has argued that the accused was
absconding and this is a circumstance pointing out to his guilt. Merely because
the accused was not at home when Police reached there, it cannot be said that
the accused was absconding. No such specific case is made out by the
prosecution. Furthermore, this circumstance was not put to the accused in his
statement under Section 313 of Cr. P.C. with a view to obtain his explanation
regarding allegation that he was absconding. The accused could have explained
his absence if an opportunity had been given to him. However, absence of the
accused when the Police reached at his house, cannot be considered that he was
absconding. So, this circumstance also cannot be considered as a link to connect
the accused with the alleged crime.

   39. Once the prosecution is not able to prove that the accused alone was at
home with his wife when she received the injuries, it cannot be said that the
prosecution has established all links by bringing on record the circumstantial
evidence to draw the conclusion that the accused committed murder of his wife.
This may be a case of strong suspicion against the accused. But suspicion can
never take place of the proof.

   40. The learned Counsel for the appellant has relied upon various rulings of
the Supreme Court to show how false defence or wrong defence taken by the
accused cannot be a ground for convicting the accused. We do not think that it
is necessary to refer to all these rulings because of the above discussions.
Merely by proving that Nilabai met with homicidal death in the matrimonial
house, the prosecution cannot prove beyond reasonable doubt, that the accused
and accused alone was responsible for her death. Hence, we hold that the learned
Additional Sessions Judge erred in convicting the accused-appellant of offence
punishable under Section 302 of Indian Penal Code.

   41. Hence, Criminal Appeal No. 5/1994 is allowed. The order of conviction and
sentence passed in Sessions Case No. 133/1993, on 30th November 1993, by the
Additional Sessions Judge, Nanded, is set aside and the accused-appellant is
acquitted of offence punishable under Section 302 of Indian Penal Code. He be
released forthwith, if not required in any other case. Fine, if paid, be
refunded to the appellant.

   42. Mr. Vijay Sharma, Counsel appointed for the appellant, has made strenuous
efforts to conduct this appeal and he has given proper help to the Court. Hence,
his fees are quantified at Rs. 1,000/- (Rupees one thousand only).

 

Sorry Pooja - You said "brief facts" and I missed the ame.

Thanks, Mr. Menon for the details.

This is sheer injustice. Seems like various Acts and provisions in the law have crippled justice....

How could Ram go scotfree...

If there is no way to prove, there must exist a way to disprove too!!

Members' comments requested..