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2014 DIGILAW 1644 (BOM)

Vikas Vishwanath Kharat v. State of Maharashtra

2014-07-28

A.S.GADKARI, V.K.TAHILRAMANI

body2014
JUDGMENT (Per A.S. GADKARI, J.): 1. The appellant, original accused, has preferred the present appeal against the impugned judgment and order dated 13th February 2012 passed by the Ad-Hoc Judge City Civil Court & Additional Sessions Judge, Greater, Mumbai in Sessions Case No. 527 of 2010 thereby convicting the appellant for an offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer life imprisonment and also to pay fine of Rs.3,000/-, in default of payment of fine to suffer rigorous imprisonment for 6 months, which shall run in excess of the aforesaid substantive sentence of imprisonment. 2. The facts which can be enumerated from the record, may briefly be stated thus: (i) PW-8 Ankush Ahire, a Police Naik was then attached to Vikhroli Police Station from 24.5.2009. On 3.5.2010, he was on day duty from 9 a.m. to 8 p.m. and was allotted First Investigation Department. PW-8 Mr. Ankush Ahire when was on duty on 3.5.2010, a person came to the police station at around 2.45 p.m. and informed him that, his mother is lying dead in his residential house and he has killed her. PW-8 Mr. Ankush Ahire therefore took the said person/appellant to PW-10 Mr. Ramdas Shingote, Police Sub Inspector and thereafter they went to the Chamber of Senior Police Inspector Mr. Gaikwad. To know about the authenticity of the information given by the said person, PW-8 Mr. Ankush Ahire asked his name whereupon the appellant disclosed his name as Vikas Vishwanath Gharat and informed to PW-8 that, there was quarrel between him and his mother at about 1 p.m. on account of his mother had not prepared proper food and also that his brother Vishal had told him that the appellant is not doing any work and should eat the food which is being eaten by all family members. After quarrel, Vishal left for his work. That the appellant was quarreling with his mother and since he was angry, he picked up a knife from the kitchen and started assaulting his mother. There was scuffle between him and his mother and his mother tried to rescue herself. He thereafter hit on the head of his mother with a hammer and pressed her neck till she died. That the appellant was quarreling with his mother and since he was angry, he picked up a knife from the kitchen and started assaulting his mother. There was scuffle between him and his mother and his mother tried to rescue herself. He thereafter hit on the head of his mother with a hammer and pressed her neck till she died. As there was no blood-stains on the clothes of the accused/appellant, the police officer enquired about his clothes to which the appellant replied that he has changed his clothes which were stained with blood and has kept them at his residence. (ii) The police thereafter, with a view to verify the authenticity of the version of the appellant, accompanied him to his residence. After reaching to the 4th floor, Building No.193, B-Wing, the appellant showed his house and took out a key from his pocket. The appellant opened the lock of the said room. After opening the door, the appellant and the police personnel went inside the house and saw that his mother was lying in the bathroom. The appellant also informed about his clothes which were lying on the bed having blood stains. (iii) Initially, Vikhroli Police station registered the said incident as an Accidental Death Register No.29 of 2010 dated 3.5.2010 on the basis of the statement given by the appellant to the police. The said A.D.R. No.29 of 2010 is at Exhibit 28. P.S.I. Mr. Shingote thereafter conducted the inquest panchanama of the dead body in the presence of two panchas. The said inquest panchanama is at Exhibit 22. P.S.I. Mr. Shingote sent the dead body to the hospital for conducting postmortem examination. PW-10 P.S.I. Mr. Shingote prepared the spot panchanama which is at Exhibit 26. PW-10 P.S.I. Mr. Shingote seized one iron hammer, one knife, piece of kadappa stone of kitchen, one small steel stool (pat), pieces of bangles, Sandobanian, blue colour Bermuda pant from the spot. Blood was spread on the floor. PW-10 P.S.I. Mr. Shingote collected the blood in bottle for sample. The articles which were seized from the spot were sealed in the presence of panchas. (iv) PW-10 P.S.I. Mr. Shingote thereafter registered the offence against the appellant bearing C.R. No.147 of 2010 u/s 302 of the Indian Penal Code. The printed First Information Report is at Exhibit 30. PW-10 P.S.I. Mr. Shingote collected the blood in bottle for sample. The articles which were seized from the spot were sealed in the presence of panchas. (iv) PW-10 P.S.I. Mr. Shingote thereafter registered the offence against the appellant bearing C.R. No.147 of 2010 u/s 302 of the Indian Penal Code. The printed First Information Report is at Exhibit 30. PW-10 P.S.I. Mr. Shingote arrested the appellant after preparing arrest panchanama which is at Exhibit 31. During the course of investigation, the nail clippings and blood of the appellant were collected and was sent for forensic examination. Thereafter the investigation was transferred to Police Inspector Mr. Malekar (PW-11) on 5.5.2010. After receiving the case diary of the case, Mr. Melekar (PW-11) recorded the statements of six witnesses. He sent seized articles to the Chemical Analyzer for examination. As PW- 11 Mr. Malekar was transferred to Thane, the investigation of the said crime was handed over to P.I. Mr. Dilip Thorat (PW-12) on 11.6.2010. PW-12 Mr. Dilip Thorat thereafter collected the reports of Chemical Analyzer, recorded statements of witnesses and after completion of the investigation, submitted the chargesheet in the Court of competent jurisdiction. (v) The charge was framed below Exhibit 2. The said charge was read over and explained to the appellant in vernacular language, to which he pleaded not guilty and claimed to be tried. The defence of the appellant is of total denial and false implication. The Trial Court, after hearing the parties to the Sessions Case No.527 of 2010, has convicted and sentenced the appellant by the impugned judgment and order dated 13th February 2012 as stated herein above. 3. Heard Mr. Nitesh S. Nevshe, learned Counsel appointed for the appellant by the Legal Aid Committee and Smt. V.R. Bhonsale, learned APP for the respondent-State. We have carefully scrutinized the record and also the impugned judgment and order passed by the Trial Court. The learned Counsel for the appellant has submitted that the statement of the appellant dated 3.5.2010 on the basis of which A.D.R. No. 29 of 2010 has been recorded, is a confessional statement given in the police station and the same cannot be relied upon to base his conviction. He has further submitted that there is no other evidence on record which will otherwise implicate the appellant in the present crime. He has further submitted that there is no other evidence on record which will otherwise implicate the appellant in the present crime. He therefore submitted that the appeal may be allowed and appellant may be acquitted from the charges levelled against him. Per contra, the learned APP has supported the impugned judgment and order and submitted that even if the inculpatory part of the statement dated 3.5.2010 given by the appellant which is a confession in nature as contemplated under Section 25 of Evidence Act to the police in the police station is excluded, after excluding the same, the remaining contents of the said statement can be taken into consideration, as contemplated under Section 27 of the Indian Evidence Act. She further submitted that after excluding the inculpatory confession, in view of the settled legal position, the present case is based on the circumstantial evidence and the evidence on record which is in the form of strong circumstances rules out any other hypothesis than appellant being the only person who is guilty of the present crime. 4. As stated herein above and in view of the evidence of PW-8 Mr. Ankush Ahire, the appellant himself went to the police station and informed about the death of his mother and informed that he committed the said crime. The police after visiting the said spot and after verifying the truthfulness of the statement of the appellant, initially registered A.D.R. No.29 of 2010. The appellant was not an accused till the recording of his statement dated 3.5.2010 which is annexed at Exhibit 28 and therefore it cannot be said that the said statement is hit by Section 25. The learned A.P.P. relied upon the judgment of the Supreme Court in the case of Vikram Singh & Ors Vs. State of Punjab, reported in AIR 2010 SC 1007 , wherein the Supreme Court in para no.11 after elaborating the niceties of Sections 25 and 26 of the Indian Evidence Act, has held that, whereas Section 25 prohibits proof of a confession made by a person to a police officer whether or not at the time of making the confession, he was in custody, Section 26 prohibits proof of a confession by a person in custody made to any person unless the confession is made in the immediate presence of a Magistrate. The expression, accused of any offence in Section 27, as in Section 25, is also descriptive of the person concerned i.e. against a person who is accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer. The Supreme Court further held that, the ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered. 5. At this stage a useful reference can be made to celebrated judgment of the Supreme Court in the case of Aghnoo Nagesia Vs. State of Bihar, reported in AIR 1966 SC 119 , wherein the Supreme Court, in para-18 of the said judgment has held thus: “18. If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of S. 25 is lifted by S. 27.” It has been further held by the Supreme Court in para-19 of the said judgment as under: “Some of the decided cases took the view that if a part of the report is properly severable from the strict confessional part, then the severable part could be tendered in evidence. We think that the separability test is misleading, and the entire confessional statement is hit by S. 25 and save and except as provided by S. 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence.” 6. We think that the separability test is misleading, and the entire confessional statement is hit by S. 25 and save and except as provided by S. 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence.” 6. Thus, after taking into consideration the ratio laid down by the Supreme Court in Vikram Singh's case (supra) and Aghnoo Nagesia's case (supra), we refrain ourselves from taking into consideration the inculpatory confessional part of the statement of the appellant dated 3.5.2010 made by him in the presence of the police officer. After excluding that part of the statement, which is a confession given by the appellant to a police officer in the police station, what remains is his statement as contemplated under Section 27 of the Indian Evidence Act whereby the appellant led the police to the spot of incident and the other circumstances which corroborate discovery at the instance of the appellant which would lead to the hypothesis, of the appellant being the only perpetrator of the said crime. As stated above, after excluding the inculpatory confessional part from his statement dated 3.5.2010, what remains is the circumstantial evidence against the appellant. We will now take into consideration the circumstances on the basis of which the appellant has been charged and convicted. 7. In pursuance of the disclosure made by the appellant in presence of PW-8 Mr. Ankush Ahire and PW-10 P.S.I. Mr. Ramdas Shingote, the appellant led the police personnel to his house. After reaching the house of the appellant, it was noticed that the said room was locked. The appellant opened the said lock with a key which was in his pocket. The police officer (PW-10) went inside the room and saw one woman was lying in unconscious condition. PW-10 P.S.I. Mr. Shingote thereafter called Doctor Panchal who was nearby to the spot of incident who after examination declared the woman to be dead. The appellant himself disclosed the name of the said lady as Smt. Anjanabai, his mother. The police seized the articles i.e. iron hammer, knife, broken piece of kadappa of kitchen, small steel stool, pieces of bangles, sando-banian and a Bermuda pant from the spot. The said articles are Article Nos.7-small pat, Article-8- hammer, Article No.9- knife, Particle No.10 kadappa stone of kitchen, Article No.12- sando-banian and Article No.13-Bermuda pant. The police seized the articles i.e. iron hammer, knife, broken piece of kadappa of kitchen, small steel stool, pieces of bangles, sando-banian and a Bermuda pant from the spot. The said articles are Article Nos.7-small pat, Article-8- hammer, Article No.9- knife, Particle No.10 kadappa stone of kitchen, Article No.12- sando-banian and Article No.13-Bermuda pant. After postmortem examination, the clothes and ornaments of deceased Anjanabai were seized by effecting a panchanama which is at Exhibit 16. PW-10 P.S.I. Mr. Shingote identified the articles which were of the deceased namely yellow colour petticoat Article-1, black colour torn saree and blouse-Article-2, broken pieces of bangles i.e. Article-3 collectively. The said articles were sent to the Chemical Analyzer. 8. Before adverting ourselves with the evidence of the Chemical Analyzer, let us evaluate the motive in the present crime. PW-1 is Vishal Kharat, the younger brother of the appellant and PW-2 is Dipali Sadake, married sister of the appellant. PW-2 resides in the nearby vicinity of the appellant and deceased Anjanabai. PW-1 Vishal in his testimony has stated that he was residing at the same house in which the incident took place with his mother Smt. Anjanabai and his brother i.e. the appellant since his birth. In the year 2010, he was working as Technician in Company at Andheri. The appellant was not doing any job since 2008. But he was sometimes doing work of private electrician. The appellant used to consume liquor and used to quarrel with their mother. The appellant without doing any work was demanding money from his mother. The appellant also used to quarrel with his mother on account of meals by saying that the mother is not cooking proper food. PW-1 Vishal had told the appellant to leave the habit of consuming liquor. PW-2 i.e. married sister of the appellant has also corroborated the version of PW-1 and has stated that the appellant used to demand money from her mother for consuming liquor and if the money is not paid, the appellant used to quarrel with her. Her mother used complain about the behaviour of the appellant to her. 9. PW-3 is Jivan Arun Kharat, the cousin brother of the appellant, who also corroborates with PW-1 and PW-2 as far as the addiction of the appellant to liquor and his regular quarrel with his mother i.e. deceased Anjanabai. The prosecution has examined PW-4 namely Swapnil Chiplunkar. Her mother used complain about the behaviour of the appellant to her. 9. PW-3 is Jivan Arun Kharat, the cousin brother of the appellant, who also corroborates with PW-1 and PW-2 as far as the addiction of the appellant to liquor and his regular quarrel with his mother i.e. deceased Anjanabai. The prosecution has examined PW-4 namely Swapnil Chiplunkar. This witness had worked with the appellant as a helper. The appellant used to tell him that his mother harasses him and there used to be frequent quarrels between the appellant and his mother. This witness has further stated that, once the appellant had told him that the appellant has got bored with his mother and he will kill her. Even though in the evidence recorded by the Trial Court of this witness i.e. of PW-4, in para-3 it is mentioned that “the appellant will beat her” i.e. his mother, after verification of the said word from the original statement denotes that the appellant had stated that, he will kill his mother. Thus after taking into consideration the evidence of PW Nos.1, 2, 3 and 4, it is crystal clear that the motive behind the crime was the frequent quarrels amongst the appellant and his mother on account of appellant's idleness and addiction to liquor. 10. This brings us to scrutinize the forensic evidence as against the appellant. As stated herein above, the police prepared the spot panchanama which is at Exhibit 26 and seized certain articles from the spot. Those articles are iron hammer, a knife, small steel stool, Bermuda half pant, sando banian and blood from the flooring. The said articles were sent to the Chemical Analyzer. In the evidence of PW-10 P.S.I. Mr. Shingote, it has categorically been mentioned that the articles which were seized under Exhibit 26 were seized in the presence of panch-witnesses at the spot. Exhibit 26 i.e. scene of offence panchnama also discloses that after seizure of the aforesaid articles, the same were sealed on the spot. The appellant has not brought on record any evidence which would discredit the testimony of PW-9 Mahesh Chavan who is panch-witness to Exhibit 26 and PW-10 P.S.I. Mr. Shingote. In our considered opinion, the articles which were sent to the Chemical Analyzer were not at all tampered with or there was no possibility of they being tampered with by anybody. The appellant has not brought on record any evidence which would discredit the testimony of PW-9 Mahesh Chavan who is panch-witness to Exhibit 26 and PW-10 P.S.I. Mr. Shingote. In our considered opinion, the articles which were sent to the Chemical Analyzer were not at all tampered with or there was no possibility of they being tampered with by anybody. The Chemical Analyzer’s report which is at page 173 of the paper book shows that the item no.1 is a sando-banian, item no.2 is a Bermuda pant, item no.6 is a knife, item no.7 is a hammer, item no.10- is a steel seat (pat), item no.12 is a blouse and item no.13 is a petticoat. The Chemical Analysis of the blood stained articles discloses that all the articles were having blood stains of human blood and of “A” blood group. The chemical analysis further discloses that the blood group of deceased Anjanabai was of “A” group. The Chemical Analyzer’s report (page 180) further discloses that the blood group of appellant is “A” blood group. It is also to be noticed here that in the nail clippings of the appellant blood of human origin has been detected. The said Chemical Analyzer’s report is at page 179 and 180 of the paperbook. The appellant has not explained about the finding of the human blood in his nail clippings in his statement recorded under Section 313 of Cr.P.C. The appellant has also not given any explanation about the finding of blood on his clothes i.e. sando-banian and Bermuda pant which were lying on the bed of the spot. The finding of blood of the deceased Anjanabai on the clothes of the appellant coupled with the seizure of weapons used by the appellant are very strong incriminating circumstance against the appellant. 11. Thus, the strong circumstances which are in the form of motive and finding of blood group as stated above, leads us to the sole hypothesis that the appellant and appellant alone is the perpetrator of the present crime. The circumstances so proved by the prosecution are of conclusive nature i.e. they should have a definite tendency of implicating the appellant. The circumstances so established are forming a complete chain which excludes every hypothesis of the innocence of the accused and unquestionably point the finger of guilt towards the appellant. The circumstances so proved by the prosecution are of conclusive nature i.e. they should have a definite tendency of implicating the appellant. The circumstances so established are forming a complete chain which excludes every hypothesis of the innocence of the accused and unquestionably point the finger of guilt towards the appellant. In our opinion, the circumstances which are emerging from record are capable of only one inference i.e. the appellant and the appellant alone has committed the present crime. We have no hesitation that the appellant and the appellant only has committed the present crime. 12. After scrutinizing the entire evidence on record, we are of the considered opinion that the present appeal sans of any merits and the same is hereby dismissed. Since the appellant is in the jail, the Registry is directed to communicate this order to the appellant. 13. Before parting with this judgment, we must record our appreciation for Advocate Mr. Nitesh Nevshe who was appointed by the Legal Services Committee to represent the appellant in this appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs.5000/-.