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Judgment
S. M. Modak, J
Four convicted accused persons have assailed before us the judgment dated 3rd April, 2014 delivered by Additional Sessions Judge, Chandrapur, in
Sessions Case No. 36 of 2013. All are convicted of the offences punishable under Sections 364, 302, 201 read with Section 120-B of Indian Penal
Code.
There was a love affair in between Lalita [appellant in Criminal Appeal No. 498 of 2014] and Sardar Khan Pathan [appellant in Criminal Appeal
No. 295 of 2014. Shri Ashok Walkondawar, being the husband of appellant, Lalita, was coming in their way. For eliminating him, appellants, Lalita and
Sardar Khan, hatched a criminal conspiracy and they took the help of Huma Ali Yunus Ali [appellant in Criminal Appeal No. 260 of 2014]. He offered
hisâ€Indica†Car for travelling, whereas Vinod Kerbaji Kurode [appellant in Criminal Appeal No. 308 of 2014] rendered his services as a driver.
Appellant, Lalita, used to narrate her ill-treatment at the hands of deceased Ashok to her paramour â€" appellant, Sardar Khan.
In pursuance to that conspiracy, appellant, Lalita, brought her deceased husband, Ashok, to Kathoda Phata, and there all the three appellants also
came. All the three appellants along with deceased Ashok sat in the Indica car and they went to village Saibori, Tq. Mahagaon, Distt. Yavatmal.
There, they consumed alcohol. There was an agricultural field of Nujat Ali. They injected dog killing medicine to the deceased and killed him by
strangulation. They took the dead body to the house of appellant, Sardar Khan, at village Patan [Adilabad] [Andhra Pradesh].
Somehow Pusad villagers came to know about the incident. It was made known to Pusad Police also. On suspicion, police took the custody of
appellants, Sardar Khan and Vinod Kurode. Pusad police enquired with their counterparts at Korpana, Distt. Chandrapur, about missing of deceased
Ashok Walkondawar. On enquiry with appellant, Lalita, it was confirmed. Then, Pusad Police handed over the appellants, Sardar Khan and Vinod
Kurode, to Korpana Police Station.
Appellant, Lalita, was made as the first informant and the offence of kidnapping, murder and destroying of evidence was registered. Completion of
investigation resulted into filing of a charge-sheet against four appellants. Wife, Lalita, and her paramour, Sardar Khan, were impleaded as Accused
Nos. 1 and 2, whereas driver, Vinod, and owner of the Indica Car, Huma Ali, were impleaded as Accused Nos. 3 and 4. All were convicted after trial
by learned Additional Sessions Judge, Chandrapur.
We have heard learned Adv. Shri Tiwari for the appellant, Huma Ali, and learned Adv. Shri S. P. Bhandarkar for rest of the three appellants.
Learned Additional Public Prosecutor, Shri N. B. Jawade, argued on behalf of the State. With their assistance, we have gone through the records. On
their perusal, we find that the conviction is not proper. Learned trial Judge has discussed about the law on the point of conspiracy properly. But when
he comes to the question of appreciation of evidence, he has overlooked the missing links and established principles of appreciation of evidence.
It is true that the case is based on circumstantial evidence. It is difficult to gather the evidence in such type of cases. It is still more difficult if the
incident has taken place at various places. It is also difficult to collect the evidence, particularly when the incident took place in the night hours.
It is pertinent to note that there are three places of the incident in question. One is the place from where appellant, Lalita, handed over her deceased
husband, Ashok, to rest of the three accused persons. It is at Kathoda Phata, Tq. Korpana, Distt. Chandrapur. The second place is situated in the
agricultural field of Nujat Ali at village Saibori, Distt. Yavatmal. The third place is situated in the house of appellant, Sardar Khan, at village Patan
[Adilabad] [Andhra Pradesh]. The dead body was buried and exhumed from that place.
After going through the record and evidence, we do find that police have taken a lot of pains in collecting the evidence. The prosecuting agency
was also vigilant while conducting the trial. But what we find is that there are certain inherent weaknesses at the stage of collection of evidence. One
such instance is when Pusad Police took the appellants, Sardar Khan and Vinod, into their custody. It was on suspicion. But at that time only,
appellant, Sardar Khan, disclosed about burial of the dead body of Ashok in his house at village Patan. It means, police were knowing this fact earlier
to disclosure statement given by appellant, Sardar Khan. Though sufficient efforts were taken to examine the witnesses on the point of presence of
the three appellants [other than the appellant, Lalita] in village Saibori, Distt. Yavatmal, on material point, they have resiled from their police
statements.
We find that the trial Court has convicted the appellants morally rather than on legal principles. We will elaborate them hereinafter.
Broadly, there are two aspects. One is a homicidal death and second is involvement of the accused. Prominently, two causes of death have come
in the evidence. One is administration of dog killing medicine and second is strangulation. But we find strangulation is the only cause of his death.
Evidence of Medical Officer, Dr. B. Shekhar Rao, is sufficient. He carried out autopsy at Rajiv Gandhi Institute at Adilabad. Asphyxia due to
strangulation is the cause of death. No poison was found during viscera examination.
When it comes to involvement of the accused, there are various witnesses examined on different circumstances. Admittedly, there is no witness to
the incident of wife, Lalita, bringing her deceased husband, Ashok, to Kathoda Phata. There is no witness to the incident of journey of rest of the three
appellants with deceased Ashok upto village Saibori. Learned trial Judge has given importance to the First Information Report lodged by the appellant,
Lalita, at Korpana Police Station on 26th October, 2012. It is after that the appellants, Sardar Khan and Vinod, were taken into custody by Pusad
Police. This is not the case wherein appellant, Lalita, herself went to Korpana Police Station and lodged the complaint. Though Police Inspector,
Vasant Kuwar, was examined on the point of First Information Report, learned trial Judge has overlooked the law on the point of admissibility of
confession in the FIR by the accused, more particularly in paras 63 and 66 of the impugned judgment, there is a discussion on the point of contents of
the FIR. Admittedly, the accused cannot be compelled to give evidence against herself. Court cannot make use of confession given by the accused in
the FIR. The law on this point is very clear. Such an FIR by the person subsequently made as an accused can be used only for a limited purpose.
There are catena of decisions on this point. As back as in the year 1966, Hon'ble Supreme Court has dealt with this issue. It was in case ofA ghnoo
Nagesia Vs. State of Bihar [AIR 1966 SC 119.] A similar occasion had arisen before Hon'ble Supreme Court. Confessional part cannot be used
against the accused. As per Section 25 of the Indian Evidence
Act, there is a total bar for using the confession made to a Police Officer. Whether the accused is in custody or not, is irrelevant. Confession to a
Police Officer is admissible only under Section 27 of the Indian Evidence Act. Only for a limited purpose, confession under Section 25 of the Indian
Evidence Act is relevant. Motive is one of the factors for which such confession can be used. However, when we peruse the FIR given by the
appellant, Lalita [recorded by Police Inspector, Shri Kuwar], we find that it it is in the nature of confession. So, we hold that such confession cannot
be used for any purpose. But learned trial Judge has used this circumstance to infer about the discord in between deceased Ashok one one hand, and
wife, Lalita, on the other hand. He has also used it as a motive for the murder.
No doubt, Dilip Walkondwar, being the brother of the deceased, was examined. It has come in his evidence about a visit by appellant, Sardar
Khan, to the house of deceased Ashok. He has also identified the dead body of his brother. We are not disbelieving him. But this motive could have
been accepted provided there are other sufficiently proved circumstances. We are disagreeing with the learned trial Judge on the point of use of FIR
by appellant, Lalita, for any purpose.
EVIDENCE ON THE POINT OF VISIT TO VILLAGE SAIBORI
There are in all four witnesses. They are either relatives or persons known to the appellant, Sardar Khan. They are PW 4 â€" Raju Suryabhan
Vairagade, and PW 7 â€" Anjum Khan Liyakat Ali Khan. They have deposed on introductory facts. But when it comes to the question of involvement
of the accused, they have conveniently resiled from the police statements. There is one more point disagreeing with the findings of the learned trial
Judge. It is on the point of use of judicial statements by some of these witnesses. Learned trial Judge went to the extent of reading their contents.
Anjum Khan [PW 7] is the maternal uncle of the appellant, Sardar Khan. The incident of killing Ashok took place in the agricultural field of Nujat
Ali Khan [PW 5]. Said Nujat Ali Khan is also examined, whereas Ansar Hamid Khan Pathan [PW 6] is the person who gave dog killing medicine to
the appellant, Sardar Khan. His field is situated adjacent to the field of Nujat Ali. He was present at the relevant time of murder. He only heard a loud
talking. Raju Vairagade [PW 4] supplied liquor to the appellant, Sardar Khan.
On reading their evidence, one appellant, Sardar Khan, had been to the field can only infer that the of Nujat Ali. We can only infer that he was
drunk, accompanied by some persons. But, here, who are those persons and what has happened in the field, their evidence is neither sufficient, nor
there are corroborative materials.
There are limitations on the use of a witness's statement recorded by the Magistrate under the provisions of Section 164 of the Criminal Procedure
Code. It can be used by either side. While appreciating the evidence, any Judge is having three materials before him â€" one is police statement,
second is judicial statement and the third is the evidence. On material aspects, these witnesses have resiled from the police statements. They have
simply said about giving the statements before magistrate. Admittedly, they have not deposed before the Court about what they have stated before the
Magistrate. Their deposition on the point of judicial statement was not challenged during defence cross-examination. This fact weighed the mind of
learned trial Judge and he gave importance to judicial statements. We disagree with this approach. Learned trial Judge was conscious that such a
judicial statement is not substantive evidence. Still he considered them. We do not find any fault on the part of defence in not challenging the judicial
statements. Reason is : it is not sufficient on the part of the prosecution witnesses to say that they have given statements before the Magistrate. They
are required to depose before the Court about its contents. If they have not said so, defence is justified in not challenging the same. Hence, we discard
the prosecution evidence on the point of judicial statements. Except for the facts stated above, the evidence of PWs 4 to 7 is not useful to the
prosecution.
DISCLOSURE STATEMENTS
The appellant, Sardar Khan, has shown the place where he killed Ashok and the place where he buried the dead body. On the point of place of
burial, there are two witnesses. Ramesh Gangaram Meshram [PW 2], a Panch witness, and Investigating Officer â€" Vijaykumar Chavan, Sub-
Divisional Police Officer [PW 18]. The place is in the house of appellant, Sardar Khan, at village Patan [Mahagaon] [Andhra Pradesh]. We do not
find any fault in the evidence of Panch witness, Ramesh Meshram, and of Investigating Officer, Chavan. But on legal aspect, we find that this piece
of evidence cannot be considered against the appellant, Sardar Khan. We are not discussing the law point of disclosure in detail. Suffice it to say that
as per the statement, Police came to know certain facts before the dead body was found out and so, the discovery statement about knowing earlier
the place of burial cannot be read in evidence under Section 27 of the Evidence Act.
We have, however, every reason to believe the Tahsildar, Ms. Sushila Rao [PW 13]. The Panchanama about exhumation of the dead body and
also Inquest Panchanama were performed at that place. Evidence of Ramesh Meshram, Panch [PW 2], is reliable on that point. The dead body was
in a highly decomposed condition. Ashok's brother, Dilip [PW 17], has identified the dead body. Upto this stage, we do not find any lacuna in the
prosecution evidence. But when it comes to the question of first disclosure, other available evidence on record nullifies the earlier effect, as stated
earlier.
MATERIALS POINTED OUT BY DEFENCE
One letter was written by Sub-Divisional Police Officer, Gadchandur, to Sub-Divisional Magistrate/Tahsildar, Bela, dated 26th October, 2012.
Admittedly, this letter was not tendered in evidence. It may be due to oversight of defence or due to deliberate attempt on the part of prosecution. But
a Court of Law cannot overlook it, particularly when it is filed by the investigating agency. At an appellate stage, we are taking its cognizance. From
the contents of that letter, one fact is clear that Patan police knew about burial of a dead body in the house of Sardar Khan at village Patan
[Adilabad]. Even this fact is found in the evidence of Police Inspector, Vasant Kuwar [PW 11]. He registered the FIR of wife, Lalita.
If this circumstance is considered, it falsifies the prosecution evidence about knowledge attributable to the appellant, Sardar Khan. In fact, the
police were knowing the fact of burial of a dead body earlier to disclosure statement. If it is not brought to the notice of the trial Court, then trial Court
is justified in accepting the evidence on the point of the disclosure. But we are not accepting it for the above reasons. We are accepting it only on the
point of burial of a dead body in the house and its exhumation. The investigating agency has collected the Tax Receipt of that house; but it has come in
the cross-examination of Tahsildar that the house was in an abandoned condition. There is a doubt about exclusive custody of that house by the
appellant, Sardar Khan. We disagree with the conclusion drawn by the trial Court.
DISCLOSURE ABOUT PLACE OF MURDER
There is evidence of Anandrao Bandurkar [PW 3] and Investigating Officer, Shri Chavan [PW 18]. It is the agricultural field at village Saibori
belonging to Nujat Ali. Police have seized plain soil, blood-mixed soil and one “Newar Patti†and beads. These articles were sent for chemical
analysis. On reading their evidence, we do not find any reason to disbelieve them. But from the concerned Chemical Analyser's report, no conclusion
about the blood of deceased lying thereon can be drawn.
SUPPORTING MATERIALS ON THE POINT OF BURIAL
Though the prosecution has proved seizure of spade and “Sabbal†through Anandrao Bandurkar [PW 3] and Investigating Officer, their use
by appellant, Sardar Khan, as instruments for burial could not be proved. Material witnesses, Sheikh Mohd. Hasan Mohd. [PW 9] [spade] and Mobin
Khan Afzal Mohd. Khan [PW 10] [“Sabbalâ€], have resiled from their police statements. The appellant, Sardar Khan, collected them from these
two witnesses. That is why, we initially said the misfortune of the prosecution. These witnesses have not supported on the point of that particular
circumstance. In absence of that, seizure of spade and “Sabbal†cannot be used as a circumstance to show involvement of appellant, Sardar
Khan.
EVIDENCE ON THE POINT OF MEETING APPELLANTS WITH EACH OTHER
Through Panch witness, Manoj Dhurve [PW 1], supported by Investigating Officer, Shri Chavan, the prosecution brought on record the place
where the appellant, Lalita, asked her deceased husband to sit in the Indica car. It is at Kothoda Phata. At that place, other appellants came in Indica
car and then went further. This is not as per the disclosure statement. As said above, there are no eye-witnesses. In addition to that, there is evidence
of Shriniwas Kanakwar [PW 14]. He is a driver of Commander jeep and dropped the appellant, Sardar Khan, by his jeep at Goraj Phata. But he has
not supported on the point of meeting of minds. Shivprakash Joshi [PW 15] is another witness who runs his Pooja Restaurant & Hotel. The appellants,
Lalita and Sardar Khan, used to meet there, but he has not supported.
INVOLVEMENT OF APPELLANT, VINOD KURODE
The appellant, Vinod Kurode, is a driver of Indica Car. He dropped the appellant, Lalita, at Bhoraj Phata [Andhra Pradesh]. In addition to that, his
full-pant and full-shirt were seized by the police in presence of Anandrao Bandurkar [PW 3] who is a material witness. His blood sample was also
collected. We have perused the Chemical Analyser's report. The conclusion is not favouring the prosecution to show his involvement. Even if showing
the spot of dropping the appellant, Lalita, is considered, it does not further the prosecution case because we find other evidence inadequate.
INVOLVEMENT OF APPELLANT, HUMA ALI
Though he can be the owner of Indica Car, merely that evidence does not help the prosecution. A sample of a cushion seat was taken from his
car and the car is also seized. [PW 1 & Sub-Divisional Police Officer, Shri Chavan] Trial Court finds his defence unsatisfactory. He took his wife in
that car as her pregnancy was to be terminated. This story was not put to Investigating Officer during cross-examination. But the analysis done by the
Chemical Analyser does not connect him to carry the deceased Ashok in his car. It is Faizal Mohd. Nujat Ali Khan [PW 8] who took photographs of
the appellant, Huma Alii, and deceased, in the agricultural field. The said mobile and photographs were seized and the Panchanama is tendered in the
evidence through Anandrao Bandurkar [PW 3], Panch witness. But the witness Faizal has disowned taking of photographs and handing them over to
police. So, it cannot be used against the accused no.4, Huma Ali.
FINAL CONCLUSION
In view of the above discussion, we find that certain circumstances were proved by the prosecution - so to say showing the place of committing
murder at the agricultural field of Nujat Ali by the appellant, Sardar Khan, seizure of certain articles from that place. There is every reason to believe
exhumation of dead body from one house at village Patan [Adilabad] and it was of Ashok Walkondwar. There is every reason to believe that
appellant, Sardar Khan, had been to village Saibori in a drunken condition [dates and time not known] along with his colleagues. But, involvement of
Sardar Khan and other accused on the basis of such isolated and disjointed facts is not proved. There is a reason to believe that appellant, Lalita,
dropped her husband at Kathoda Phata. Except these circumstances, other circumstances are not proved by the prosecution. We do not agree with
the manner of appreciation of evidence by the trial Judge. From the available evidence, there is a reason to believe that there is a grave suspicion
about involvement of these four appellants. But law is clear. There is a difference between a grave suspicion and proof. Any evidence has to fall
within the four corners of accepted principles of law. We cannot be swayed away by moral convictions. Unfortunately, it has happened with the
learned trial Judge. So, we are inclined to set aside the conviction of all the appellants. We do set it aside. All the appeals deserve to be allowed. The
appellant, Sardar Khan Pathan son of Amirulla Khan Pathan in Criminal Appeal No. 295of 2014 needs to be set at liberty, if not required in any other
case. So also, the fine,if paid, needs to be returned. Hence, we proceed to pass the following order:-
[A] The appellants are acquitted of the offences punishable under Sections 364, 302, 201 read with Section 120-B of Indian Penal Code.
[B] Bail Bonds of Accused No.1, Sau. Lalita wife of Ashok Walkondawar in Criminal Appeal No. 498 of 2014, Accused No.3, Vinod son of Kerbaji
Kurode in Criminal Appeal No. 308 of 2014 and Accused No.4, Huma Ali son of Yunus Ali in Criminal Appeal No. 260 of 2014 are hereby
discharged.
[C] Accused No.2, Sardar Khan Pathan son of Amirulla Khan Pathan in Criminal Appeal No. 295 of 2014 being in jail is directed to be released
forthwith, if not required in any other crime.
[D] The directions issued by the trial Court as regards disposal of the Muddemal property are hereby confirmed.
[E] Fine amounts, if paid, be refunded to all the accused persons.