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Judgment
P.N. DESHMUKH, J
(1)This appeal takes exception to the judgment dated 19/12/2016 passed by learned Additional Sessions Judge, Achalpur in Sessions Trial No.50/2015
by which appellant/accused came to be convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to suffer life
imprisonment and to pay fine of Rs.5000/Â and in default, to undergo simple imprisonment for six months. Accused is further convicted for the
offence punishable under Section 324 of Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.2000/Â‐
and in default, to suffer simple imprisonment for two months. Both the sentences are directed to run concurrently.
(2) It is the case of prosecution that on 14/2/2015 at about 3 a.m. while P.W.2 Manohar, Police Patil was sleeping in his house situated in his field, one
Mangal Babu Jawarkar visited him and informed that accused had visited him at about 1 a.m. in the midnight and informed that his wife Ganga was
ill. Mangal further informed that he, therefore, accompanied accused to his house and found his wife lying dead and blood was oozing from her
eyes, mouth, etc. Accordingly, P.W.2 Manohar along with Mangal visited house of accused at about 4 a.m. and noted that accused was present
near dead body of his wife in his house and on enquiry with him, informed that his wife was under the influence of liquor and invited quarrel with
him when he committed assault upon her by wooden plank and plastic shoes. P.W.2 Manohar thereafter gave information to Police on phone, upon
which Police arrived on the spot and lodged his report, which was recorded by P.W.6 Arvind Raut, PSI as per Exh. 18, who on the basis of same,
registered offence punishable under Section 302 of Indian Penal Code vide Crime No. 54/2015 and investigated the same.
(3) During the course of investigation, spot panchanama came to be drawn vide Exh. 11 while muddemal articles, which were found on the spot
consisting of broken bangle pieces, three teeth, wooden plank, plastic shoes, simple earth, earth mixed with blood, one shirt, full pant and petticoat
came to be seized under panchanama (Exh. 12).   One shirt of P.W.3 Arun was seized under panchanama (Exh. 13) and inquest panchanama
was drawn vide Exh. 14.
(4) The dead body of Ganga was forwarded for post mortem under requisition memo (Exh. 33) and clothes of deceased Ganga as well as her blood
sample were seized vide panchanama (Exh. 34). As P.W.3 Arun, son of deceased Ganga as well as accused, had also sustained injuries, he was
referred for medical examination and on receipt of his injury certificate, offence punishable under Section 324 of Indian Penal Code came to be added
in the present crime. During the course of investigation, query was made to P.W.4 Dr. A. Hasim Shaikh seeking his opinion with regard to
possibility of injuries sustained by deceased Ganga by wooden plank and plastic shoes and about probable time of death of Ganga, which opinion is
given by Medical Officer on the requisition (Exh. 31). Blood sample of P.W.3 Arun was collected and seized under panchanama (Exh. 36).Â
All the seized muddemal articles were forwarded to Chemical Analyser for analysis vide memo (Exh. 37). On obtaining sketch of scene of offence
(Exh. 38),  recording statements of witnesses and on completion of investigation, chargeÂsheet came to be filed before the Court of Judicial
Magistrate, First Class, Dharni.  In the course of time, case came to be committed for trial to learned Sessions Judge.
(5) Charge was framed against accused for the offences punishable under Sections 302 and 324 of Indian Penal Code, to which he denied and
claimed to be tried. Defence of accused is of total denial and false implication.
(6) To prove the charge levelled against accused, prosecution in all examined six witnesses and commenced its evidence by examining P.W.1
Balakram, who has proved spot panchanama and seizure panchanama of articles from spot, P.W.2 Manohar, Police Patil â€" complainant, who has
proved his report (Exh. 18), P.W.3 Arun, son of deceased Ganga and accused, who is also injured in the course of same transaction, P.W.4 Dr. A.
Hasim Shaikh, who has performed post mortem and issued post mortem notes (Exh. 29), P.W.5 Kisan on circumstances establishing presence of
accused in his house during night of incident and concluded its evidence by examining P.W.6 Arvind Raut, PSI Â Investigating Officer.
(7) Heard Shri Thote, learned Counsel for appellant/accused and Smt. Joshi, learned Additional Public Prosecutor for respondent.
(8) It is submitted by Shri Thote, learned Counsel for appellant/ accused, that accused is falsely involved by P.W.2 Manohar, Police Patil as his
relations with P.W.3 Arun, son of accused, were cordial though P.W.3 Arun committed assault on deceased Ganga finding her to have consumed
liquor. It is contended that if evidence of P.W.2 Manohar is not relied upon, there is no other evidence on record establishing involvement of
accused. Learned Counsel for appellant has not disputed homicidal death of Ganga, however, the specific case of accused is of denial and false
implication by P.W.2 Manohar to save P.W.3 Arun since they have good relations between them. It is, therefore, contended that in view of
submissions as aforesaid, appeal be allowed.
(9) Smt. Joshi, learned Additional Public Prosecutor for respondent, on the other hand, Â has submitted that from the evidence of P.W.1 Balakram
and P.W.3 Arun, who are independent witnesses, presence of accused in his house on the fateful night is established where dead body of hisÂ
wife was found and he has not given any satisfactory explanation as to cause of her death. It is further submitted that involvement of accused is
further established from the evidence of P.W.2 Manohar to whom accused has confessed his involvement in the crime. It is contended that there is
no reason for P.W.2 Manohar or P.W.5 Kisan to depose falsely against accused and in favour of P.W.3 Arun, who admittedly is son of accused.Â
It is further contended that the case of prosecution is based on direct evidence of P.W.3 Arun, who has witnessed the incident of assault on his
mother by accused and evidence of aforesaid witnesses is further found corroborated from the contents of spot panchanama, seizure panchanama of
articles from spot, particularly three teeth, post mortem report and Chemical Analyser's report and as there is no explanation by accused about death
of his wife in his house, appeal is liable to be dismissed.Â
(10) Having considered submissions advanced as aforesaid, we have scrutinized the evidence of prosecution witnesses. From the evidence of
P.W.2 Manohar, it is revealed that at 3 a.m. while he was in his house situated in his field, one Mangal came to him and informed that wife of
accused was ill. Accordingly, he along with Mangal came to the house of accused and found that his wife was dead and  blood was oozing from
her mouth. He has further deposed that accused was sitting next to the dead body of his wife and on enquiry to him, told that his wife had
consumed liquor and, therefore, he beat her with wooden plank. P.W.2 Manohar, therefore, lodged report with Police vide Exh. 18. In his
crossexamination it has come on record that said witness had good relations with P.W.3 Arun as both of them belong to same caste, however, he has
denied that in fact P.W.3 Arun had committed assault on his mother as she had consumed liquor and having good relations with him, he has implicated
the accused.  As such, it is the specific case of accused of his false implication. However, his defence cannot be acted upon for the reason of
P.W.3 Arun having sustained injuries upon his person in the course of same transaction. For that purpose, we have scrutinised evidence of P.W.3
Arun, who has deposed that at the time of incident, there was quarrel between him and accused, who under the influence of liquor beat him by stick
on his head, due to which he sustained bleeding injury and, therefore, he ran away from the house and went to the house of Batu Mangal Bawaskar
situated in front of his house and while he was present at that spot, witnessed accused assaulting his mother by wooden stick, due to which she
sustained bleeding injuries. He has further deposed that he could witness the incident in the source of solar light available on the spot. He has also
stated that due to assault, his mother fell down and thereafter accused dragged her body inside the house.
(11) P.W.3 Arun has further stated that at 6 a.m. he visited his house and found his mother to be dead and his father asked him whether she had died
as she was not talking. P.W.3 Arun has also deposed that he then went to house of one Govind Wakode to whom he informed about the incident
and by taking his bicycle went to Dharni to inform his elder brother Lalsingh. Admittedly, prosecution has not examined Govind Wakode, to whom
P.W.3 Arun claims to have narrated incident first in point of time. However, this by itself would not make his evidence doubtful as P.W.3 Arun is
son of accused as well as deceased and has no reason to falsely implicate his father. In fact, considering his evidence of having been assaulted by
stick on his head, due to which he sustained bleeding injury, which is found further substantiated from the evidence of P.W.4 Dr. A. Hasim Shaikh,
who on examining him on the following day at 4.15 p.m. had certified vide injury certificate (Exh. 28) to have sustained head injury possible by hard
and moderately heavy object, the case of P.W.3 Arun of his sustaining assault at the hands of accused cannot be doubted. This fact, therefore,
negates the probable case put forth on behalf of accused of P.W.3 Arun assaulting his mother.
(12) Though in the evidence of P.W.3 Arun there appears omissions, we do not find them to be material absolving involvement of accused in the
incident of assault on deceased Ganga as same is with regards to accused dragging her inside the house and about his visiting house at 6 a.m. and
noting that his mother had died. Even if these omissions are considered with the evidence of P.W.3 Arun, his evidence with regards to assault upon
deceased Ganga by accused cannot be doubted. Similarly, alternate defence suggested to this witness of deceased Ganga sustaining injuries due to
fall also does not appear to be convincing as there is no such evidence on record to establish that deceased Ganga sustained injuries due to fall,
particularly when according to the evidence of P.W.4 Dr. A. Hasim Shaikh, he on performing post mortem had noted as many as eight injuries, which
are as under :
 “(1) contusion right eye black colour 4 x 4 c.m.
(2) contusion left eye black colour 3.5 x 3.5 c.m.
(3) laceration right ear 5 x 1 c.m.
(4) laceration 3 x 1 x 1 c.m. over inner part of upper lip.
(5) laceration 1 x 0.5 x 0.5 over inner part of lower lip.
(6) fracture present base of nose.
(7) right fracture zigomatic bone.
(8) mandible right side fracture.â€
The Medical Officer in clear terms has deposed that cause of death of wife of accused was due to head injury and in response to query made by
Investigating Officer had specifically opined that injuries as stated in the post mortem report are possible due to wooden stick and by plastic shoes. In
that view of the matter, alternate defence of accused about deceased Ganga sustaining injuries by fall is totally uncalled for.
(13) From the evidence of P.W.1 Balakram, prosecution has proved spot panchanama (Exh. 11) as well as panchanama of seizure of articles from
spot (Exh. 12). The spot panchanama refers to sketch of scene of offence, which is house of accused. Perusal of said sketch would reveal that
house of Batu Mangak Mawalkar is situated just opposite to the house of accused having one small kutcha road in between. There is mention of
blood trail establishing dragging of body of deceased Ganga from courtyard inside the house, which aspect establishes that assault was committed
outside the house and as such, could be witnessed by P.W.3 Arun from the house of Batu Mawalkar situated just opposite to the spot at a short
distance. From the spot panchanama we also find that there was source of solar light on the spot, due to which P.W.3 Arun could witness the
incident and we take judicial note of the fact that there could be no case of false identity of accused as accused is father of P.W.3 Arun while
deceased Ganga is his mother. In that view of the matter, we find evidence of P.W.3 Arun to be fully reliable and convincing.
(14) In the inquest panchanama (Exh. 14), there is reference to injuries on the face of deceased Ganga while in the panchanama of seizure of articles
(Exh. 12), there is reference to seizure of three teeth from the spot. According to evidence of P.W.2 Manohar, blood was found oozing from the
mouth of deceased Ganga.  Panchanama also refers to presence of teeth on the spot while according to post mortem notes (Exh.29) injury no.8 is
fracture of mandible. This aspect further establishes fact of assault upon deceased Ganga, due to which she had suffered mandible fracture losing
her teeth, which came to be seized.
(15) Evidence of P.W.5 Kisan, who is an independent witness, further substantiates the case of prosecution when he has deposed that on the day of
incident at around 7Â8 p.m. while he was proceeding to his field, he noted quarrel in progress between accused and his son P.W.3 Arun when
accused committed assault on P.W.3 Arun. He claims to have intervened in the quarrel as P.W.3 Arun was beaten by accused by stick and
thereafter P.W.3 Arun ran away from the spot while P.W.5 Kisan went to his field. According to P.W.5 Kisan, when he visited house of
accused, he was present along with his wife and son. Evidence of P.W.5 Kisan as such establishes presence of accused in his house during night of
incident. As per his further evidence, on the following day at 9 a.m. he learnt about death of wife of accused. As such, evidence of P.W.5 Kisan
corroborates version of P.W.2 Manohar establishing presence of accused in his house during night of incident, which aspect even otherwise has not
been disputed by defence and in fact, evidence of both these witnesses on the aspect of presence of accused in his house in the night of incidentÂ
goes unchallenged.
(16) From the evidence of P.W.2 Manohar and P.W.5 Kisan, presence of accused in the house in the night of incident is established. In fact,
according to evidence of P.W.2 Manohar, when he visited the house of accused, he was even found present sitting next to the dead body of his
wife. Evidence of P.W.5 Kisan establishes presence of accused in the house during night when incident of assault on P.W.3 Arun took place.
Similarly, evidence of P.W.3 Arun establishes presence of accused in his house. Thus, from the evidence on record it is seen that accused was
present in the house along with deceased Ganga and in fact, from the evidence of P.W.3 Arun, it has come on record that after he was assaulted by
accused and had left house, only accused and deceased Ganga were in the house, who were seen present after the incident also.  In this view of
the matter, Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles which underlie Section 106 of the Indian
Evidence Act can be applied in cases where certain facts are especially within the knowledge of a person. In the case of State of Rajasthan vs.
Kashi Ram {(2006) 12 SCC 254}, the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his
special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Indian Evidence Act. In a case resting on circumstantial
evidence, if accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the
chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the
prosecution. It lays down the rule that when accused does not throw any light upon facts, which are specially within his knowledge and which
could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional
link, which completes the chain.
(17) With regards to submissions advanced by Smt. Joshi, learned Additional Public Prosecutor for respondent, on the alleged extra judicial confession
by accused to P.W.2 Manohar, we are not impressed with the submissions for the reason that from the evidence of P.W.2 Manohar it has come on
record that when he enquired with accused as to what had happened, at that time accused told him that as his wife was under the influence of liquor,
he beat her with wooden stick. Evidence of P.W.2 Manohar as such is of his enquirng with the accused. We, therefore, find that it is not the
case of prosecution that accused voluntarily made any statement to P.W.2 Manohar and for that purpose, we rely upon the judgment of the Hon'ble
Apex Court in the case of Sahadevan and another vs. State of Tamil Nadu, reported in (2012) 3 SCC (Cri) 146 : {2012 ALL SCR 1956) whereinÂ
Hon'ble Apex Court had an occasion to consider the issue regarding extra judicial confession. It will be relevant to refer to paragraph nos. 15 and
16 of the aforesaid judgment :
“15.   Now, we may examine some judgments of this Court dealing with this aspect.
15.1 In Balwinder Singh vs. State of Punjab (1995 Supp. (4) SCC 259), this Court stated the principle 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 an extra judicial confession is
surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.
 15.2 In Pakkirisamy vs. State of T.N. {(1997) 8 SCC 158}, the Court held that it is well settled that it is a rule of caution where the Court would
generally look for an independent reliable corroboration before placing any reliance upon such extraÂjudicial confession.
15.3 Again in Kavita vs. State of T.N. {(1998) 6 SCC 108}, the Court stated the dictum that there is no doubt that convictions can be based on extra
judicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and
the value thereof depends upon veracity of the witnesses to whom it is made.
15.4 While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extraÂjudicial confession, this Court in
the case of State of Rajasthan vs. Raja Ram {(2003) 8 SCC 180} stated the principle that an extraÂjudicial confession, if voluntary and true and made
in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of evidence as to
confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.
The Court further expressed the view that : such a confession can be relied upon and conviction can be founded thereon if the evidence about the
confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing
is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused.
 15.5 In the case of Aloke Nath Dutta v. State of W.B. {(2007) 12 SCC 230}, the Court, while holding the placing of reliance on extraÂjudicial
confession by the lower courts in absence of other corroborating material, as unjustified, observed :
“87.    Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain
circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the
said purpose the court has to satisfy itself in regard to : (i) voluntariness of the confession; (ii) truthfulness of the confession; and (iii) corroboration.
A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption
that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on
the sole basis thereof.â€
15.6 Accepting the admissibility of the extraÂjudicial confession, the Court in the case of Sansar Chand vs. State of Rajasthan {(2010) 10 SCC 604}
held that :
“29. There is no absolute rule that an extraÂjudicial confession can never be the basis of a conviction, although ordinarily an extrajudicial
confession should be corroborated by some other material (Vide Thimma and Thimma Raju vs. State of Mysore, Mulk Raj v. State of U.P.,
Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v.
State of W.B.}.
In the present case, the extraÂjudicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special
Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of
inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872.â€
15.7 Dealing with the situation of retraction from the extrajudicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai
Rathod v. State of Gujarat {(2009) 5 SCC 740}, held as under :
“53.  It appears, therefore, that the appellant has retracted his confession. When an extraÂjudicial confession is retracted by an accused,
there is no inflexible rule that the Court must invariably accept the retraction. But at the same time it is unsafe for the Court to rely on the retracted
confession, unless the Court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true.â€
15.8 ExtraÂjudicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be
clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extraÂjudicial confession can be accepted and
can be the basis of conviction, if it passes the test of credibility. The extraÂjudicial confession should inspire confidence and the Court should find
out whether there are other cogent circumstances on record to support it. {Ref. Sk. Yusuf v. State of W.B. {(2011) 11 SCC 754} and Pancho v.
State of Haryana {(2011) 10 SCC 165}.
The Principles :
Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extraÂ‐
judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the
judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extraÂjudicial confession alleged to have been
made by the accused.
(i) The extraÂjudicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extraÂjudicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further
corroborated by other prosecution evidence.
(v) For an extraÂjudicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.â€
(18) It is thus found that on considering legal position on the aspect of extra judicial confession, Hon'ble Apex Court in unequivocal terms has held
that extraÂjudicial confession is a weak evidence by itself and needs to be acted upon with great care and caution. It is held that extraÂjudicial
confession has to be voluntarily made, should be truthful, should inspire confidence, needs to be corroborated by other evidence and should not suffer
from any material discrepancy.
(19) In the light of above principles, we have examined the extrajudicial confession relied by prosecution and as stated above, from the evidence of
P.W.2 Manohar, we find that alleged extraÂjudicial confession made by accused is not voluntary and as such, we do not accept the submissions
advanced on behalf of prosecution on this aspect as from the evidence of P.W.2 Manohar, it is clear that it is made by accused on making enquiry.Â
As such, we find that extraÂjudicial confession is not voluntary, but is by way of answer to the question put to him by P.W.2 Manohar.
(20) Another aspect, which further substantiates the case of prosecution, thereby establishing involvement of accused is Chemical Analyser's
report. It has come in the evidence of Investigating Officer that after drawing spot panchanama, he seized articles found on the spot under
panchanama (Exh. 12) and also collected blood sample of deceased Ganga and P.W.3 Arun and forwarded the same along with muddemal
articles for analysis to Chemical Analyser under covering letter (Exh.37). Blood group of deceased Ganga is certified to be “O†vide Chemical
Analyser's report (Exh. 42) while blood group of P.W.3 Arun is certified to be of group “A†vide Exh.44.  Vide Chemical Analyser's
report (Exh. 41), human blood is detected on Exhs. 1 to 9 and 11 and blood group on Articles 4 and 5 is certified to be of group “Oâ€, which are
clothes of accused. Though no blood group of accused is found to be investigated, there is no explanation by accused as to how blood is found on
his clothes being full pant and shirt. Similarly, full shirt of P.W.3 Arun is found stained with blood of group “Aâ€, which is his own blood groupÂ
Finding of blood of group “O†of deceased Ganga on pant and shirt of accused and of group “A†on shirt of P.W.3 Arun thus establishes
assault upon deceased Ganga as well as P.W.3 Arun.
(21) Shri Thote, learned Counsel for appellant/accused, has relied upon decisions of Hon'ble Apex Court in Dasari Siva Prasad Reddy vs. Public
Prosecutor, High Court of A.P. {(2004) 11 SCC 282}, Jose alias Pappachan vs. SubÂInspector of Police, Koyilandy and another {(2016) 10 SCC
519) and Pundalik vs. State of Maharashtra {(2010) 15 SCC 122}.  However, we do not find same to be of any help to accused as same are on
circumstantial evidence while in the case in hand, there is direct evidence of P.W.3 Arun. The judgment in the case of Pundalik (supra) also cannot
be applied in the set of facts as in that case, injuries sustained by deceased were not sufficient in the ordinary course of nature to cause death, but
according to medical evidence, haemorrhagic shock was caused because of collection of blood in thoracic cavity and fracture of shaft femur.Â
(22) In that view of the matter, considering the direct evidence of P.W.3 Arun and other circumstances as aforesaid, we find that prosecution has
established charge levelled against appellant/accused beyond reasonable doubt. We, therefore, find the appeal to be devoid of merit.
Hence, the same is dismissed.
The fee payable to learned Counsel appointed for appellant/ accused is quantified as rupees five thousand.