Appeal against the judgment of Hon’ble High Court upheld conviction
1. The present appeal calls in question the correctness of the judgment of the High Court of Judicature at Bombay dated 20.12.2018 in Confirmation Case no. 3 of 2015 with Criminal Appeal No. 1111 of 2015. By the said judgment, the High Court upheld the conviction and the sentence of death imposed on the appellant by the Court of Sessions for Greater Bombay (hereinafter referred to as the ‘Trial Court’) in Sessions Case No. 388 of 2014 and consequently dismissed the criminal appeal filed by the appellant. The Trial Court convicted the appellant for the offences punishable under Sections 302, 364, 366, 376(2)(m), 376A, 392 read with Section 397 and 201 of the Indian Penal Code (for short ‘IPC’). For the offences punishable; under Section 302 IPC, the appellant was sentenced to death; under Section 364 IPC, rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/-, in default to undergo rigorous imprisonment of one year; under Section 366 IPC, a sentence of ten years RI and to pay a fine of Rs. 10,000/-, in default RI for one year; under Section 376(2)(m) IPC, a sentence of RI for ten years; under Section 376A IPC, RI for life which was to mean imprisonment for remainder of his natural life; under Section 392 read with 397 IPC, a sentence of RI for seven years and under Section 201 IPC, he was sentenced to RI of seven years. All the sentences were to run concurrently. The appellant was directed to pay a sum of Rs. 50,000/- as compensation to be payable to the parents of the deceased.
Facts
The case of the Prosecution
Deceased missed in the train voyage and lodged missing complaint
2. The deceased is a 23 year old young woman (hereinafter referred to as ‘EA’ in the judgment). PW-26 Singavarapa Jonathan Surendra Prasad is the father of the deceased EA. According to the prosecution, the deceased, who was working in Mumbai and staying at the YWCA Hostel for Women in Andheri, visited her parents at Machilipatnam in Andhra Pradesh between 22.12.2013 and 04.01.2014. On 04.01.2014, PW-26 dropped her at the Vijayawada Railway Station at about 05:00 AM. The deceased EA boarded Visakhapatnam LTT Express which was to reach Mumbai early morning on 05.01.2014. The deceased EA called her father at 09:00 PM on 04.01.2014 when the train was crossing Solapur Station. According to PW-26, after reaching Mumbai, EA did not contact him. He, however, constantly made attempts to contact her mobile number but there was no response. PW-26 contacted the YWCA Hostel where she was staying, and he was informed that EA had not turned up. According to PW-26, on 05.01.2014 itself, he lodged a missing complaint with the Railway Police Station at Vijayawada. Thereafter, he took the missing complaint and went to Mumbai. He along with his relatives went to LTT Railway Station where the Railway Police told PW-26 that the case did not come under their jurisdiction and directed him to go to Kurla Police Station.
Deceased’s body recovered beyond recognition but a ring in her finger identified her and hence FIR registered
3. Thereafter, PW-26 states that with the help of police they started searching for his daughter and the last signal of the tower location of her mobile was found at Bhandup. The anxious father continued his search along with his relatives. Ultimately, on 16.01.2014, they found the body of EA in the bushes near the Express Highway. PW-26 states that the condition of the body was burnt and beyond recognition. Based on a ring in her finger, he identified the body as that of his daughter. According to PW-26, as the case came under Kanjur Marg Police Station, he lodged a complaint therein for the offence of murder and an F.I.R. (Exh.134) was registered.
Final cause of death due to head injury
6. The provisional cause of death was given as evidence of blunt injuries over the body and genital injuries were noticed. However, final opinion was reserved pending chemical analysis of samples. After receipt of the chemical analysis report, final cause of death was given as death due to head injury with smothering associated with genital injuries.
7. Most importantly, the time of death was estimated to be 8-10 days before the post-mortem date as no maggots or pupa were seen on the body. The post-mortem date was 17.01.2014. The defence has a case based on this that death would have occurred anytime between 07.01.2014 and 09.01.2014. The appellant also raised an issue about the failure to draw Panchnama when the brassier of the deceased was purportedly handed over in the hospital to PW-7 Bhausaheb Suresh Mistry. It was only in the police station, according to the prosecution, as spoken to by PW-14 Satyavan Shridhar Gawade, that the Panchnama for the brassier was prepared. The stand was that between the hospital and the police station, the brassier was not in a sealed condition. It has also been the case of the defence that PW-30 Dattatray Tukaram Naikodi admits to have not made the handing over Panchnama of the brassier from the hospital and also that the brassier was not seen mentioned in the spot Panchnama Exh.38 or inquest Panchnama Exh.84.
Defence states that no semen was found on any articles
10. The defence also states that no semen was found on any articles received from the spot or the biological samples of the deceased since the chemical analysis Reports (Exh. 17 to Exh.34) indicates that on the scarf, T-shirt, knicker with cotton pad, burnt cloth pieces and in the partly burnt cloth pieces and grass, no semen was detected.
Death is homicide and due to one of the chances of forcible entry of some article in the vagina
11. Having carefully perused the evidence of PW-25 and the Exh.127 to Exh.130, we have no reason to dislodge the findings of the courts below that the death is homicidal in nature. The doctors have clearly opined that the final cause of death was due to head injury with smothering associated with genital injuries and clarified that injuries to the genitals are possible by forcible entry of some article in the vagina.
Trial
12. After the post-mortem, the body was handed over to PW-26 on 17.01.2014 for performance of last rites which were duly performed. The Appellant has a grievance that when he was arrested, there were parallel investigations being conducted by Kanjur Marg Police Station and Unit V, VI, VII and other Units of Crime Branch between 16.01.2014 and 02.03.2014. According to the defence, all reporting within the Crime Branch was oral and there was no legal basis for investigation by the Crime Branch till 02.03.2014, when formal orders transferring the investigation were made. Accordingly they contend that, as a result of this, the appellant was in a state of forced ignorance about events from 14 16.01.2014 to 02.03.2014, including possible exculpatory material found during the parallel investigation by the Crime Branch. The appellant was arrested on 02.03.2014. PW-8 Salim Mustaq Shaikh was the panch witness in the arrest panchnama (Exh.90). He deposed that during the physical search of the accused, one xerox copy of the letter in the back pocket of his jeans pant was found and when enquired by the police, the appellant told them that it was a Kundli (horoscope) (Article 28) prepared by PW-17 Rajabhau Baburao Aher. We have discussed this aspect in detail later in the judgment. The Crime Branch ultimately filed the charge-sheet for the offences mentioned above. PW-38 Vyanket Bhanudas Patil stated that investigation in serious offences parallel investigation is often conducted along with the police station having jurisdiction. The prosecution has submitted that parallel investigation was about detection and not collection of evidence. It was further submitted that no prejudice has been caused to the appellant. Keeping in mind the ultimate conclusion that we have arrived at, we do not deem it necessary to delve into this aspect in great detail. It is also not disputed that ultimately, on 02.03.2014, formal orders of transfer were made to the Crime Branch. PW-38 further admitted that he called for the opinion of three doctors marked as Exh.130, after framing of charges and that at the time of addition of Section 376(2)(m) the said opinion was not there. He expressly denied the suggestion that the report was planted since there was no prima facie material for the charges. We are satisfied that prejudice has been caused to the accused on this score. All the witnesses have been examined only after all the charges were in position.
Pen drive of CCTV footage obtained
13. Between 16.01.2014 and 02.03.2014, investigation was carried on and the prosecution claims that the pen drive of the CCTV footage for the date 05.01.2014 between 4:00 AM and 07:00 AM were taken on 18.01.2014 from the Lokmanya Tilak Terminus; then the father of the deceased was contacted with the pen drive for identification of deceased EA and statements of witnesses were recorded. Chargesheet was filed after obtaining the FSL report for offences mentioned above. At the trial, the prosecution examined 39 witnesses and marked approximately 200 exhibits. The defence 16 examined four witnesses. DW-1 to DW-3 reporters and editors who are associated with newspapers and DW-4 the official from the mobile company who spoke of CDR details and marked approximately eight exhibits. The appellant was examined under Section 313 and in answer to the last question as to whether he wanted to say anything more, the appellant stated that he was falsely implicated in the case and added that in February 2014, the Kurla Police detained him for 15 days.
Case is on circumstantial evidence
15. The case rests on circumstantial evidence. We are conscious of the five golden principles enunciated in long line of cases including Sharad Birdhichand Sarda vs State of Maharashtra, (1984) 4 SCC 116, wherein it was held as under:-
“para. 153 …“
Finding that PW.26 is the father was not disturbed
18. PW- 26, father of the deceased EA, identified her based on the ring in her finger. We have no reason to doubt his deposition. Notwithstanding the challenge mounted by the defence, we are fully convinced that PW-26 was the father of the deceased and, as such, we are not inclined to disturb the finding that PW-26 was indeed the father of the deceased EA; that deceased EA was dropped at the station in Vijayawada on 04.01.2014 by PW-26; that deceased called PW-26 when the train was crossing Solapur Station on 04.01.2014 at 09:00 PM and that the deceased died due to the injuries mentioned by the experts in the report.
DNA is also matched
19. PW-28 Shrikant Hanumant Lade also testified about the DNA profile of PW-26 – the father matching with the paternal alleles in the source, DNA of the deceased. His report is marked as Exh. 22. He compared the DNA profiles from the blood sample of PW-26 and the DNA extracted from the sweat detected on Exh.1 – ID card with belt, Exh.2-spectacles and the bone sample of the deceased. Notwithstanding our finding recorded later on on the alleged recovery aspect of the ID card from the sister, as far as this DNA matching is concerned, considering that the DNA has matched with the blood sample of PW-26 with that of the DNA profiles of the deceased, we have no reason to doubt that PW-26 is the father of the deceased EA.
Question on custody of blood samples is rejected
20. The defence feebly questioned the chain of custody with regard to the blood samples of PW-26 and about the lack of underlying scientific basis in the report and testimony of PW-28, the Assistant Director of FSL. We are not impressed with the said submission and hence, we reject the same, as we find no merits in the said submissions.
23. For convenience, the arguments of counsel have been dealt with while marshalling the evidence adduced by the prosecution in an effort to prove the circumstances. The circumstances alleged had been specified under the following order for providing a logical sequence:
i) The evidence of PW-1, PW-30, PW-31, PW-33 and PW-34 with regard to CCTV footage collected from the LTT Railway Station and its admissibility thereof.
ii) The evidence of PW-18, PW-19, PW-20 and PW-21 as advanced to establish the sighting of the accused at the LTT Terminus and also to establish last seen theory (PW-20 and PW-21).
iii) The evidence of PW-9, PW-12 and PW-22 with regard to the events that allegedly transpired on the night of 04.01.2014 and the morning of 05.01.2014.
iv) The evidence of PW-23 and PW-13 on the issue of alleged presence of the appellant near the scene of crime and his purported exit from the society building.
v) The evidence of PW-15, PW-16 and PW-17 with regard to the subsequent conduct of the accused in going to the astrologer and performing the puja at Nasik.
vi) Recovery of articles 22, 23 and 24 along with recovery of identity card, spectacles, eye liner pencil from the sister (not examined) of the accused and the alleged recovery of the Trolley bag from PW-24.
vii) Alleged extra judicial confession to PW-9 and the alleged recovery of the motorcycle bearing no.MH-03-AY-0241.
CCTV evidence analysis
CCTV footage and its admissibility thereof
24. The prosecution has relied on the CCTV footage which, according to them, was taken from the camera installed at the Lokmanya Tilak Terminus to establish the fact that the appellant was last seen with the deceased at around 05:00 AM in the morning of 05.01.2014. To establish this fact, the prosecution has examined PW-1 Girish Rajeshwar Mishra, PW-31 Chandramani Sitaram Pandey, PW-33 Vishal Bhaskar Patil and PW-34 Nishikant Vishwanath Tungare, the Police Inspector.
Fault on the server of CCTV
27. PW-33 Vishal Bhaskar Patil, is Police Constable attached to Lokmanya Tilak Terminus who was on duty in Railway Protection Force. He speaks of CCTV footage being taken after the Senior Police Officer met the officers of Railway Protection Force and obtained oral permission. On a specific question whether there was any fault in the CCTV server during the period 01.01.2014 to 08.01.2014, he answered that on 18.01.2014, there was a fault and the server was not working and therefore Mr. Pandey was called. He further stated that after repair, the servers were fine. He further stated that on 18.01.2014, there was no fault in the cameras of DVR-II.
29. PW-27 Hemant Dharma Kohli claims to be a neighbour in the building where the appellant resided. He deposes that, on 26.03.2014, the police asked him to come to the police station and he states that the police showed him two CCTV footages and in one footage he saw that the appellant was walking on the platform with one bottle of cold drink in his hand and in another footage he was driving the trolley bag. He also stated that the said person was the appellant in both the footages.
31. PW-34 deposed that he went to Kurla Terminus for the first time on 18.01.2014 at 10:00 AM and he further stated that he did not enquire with the persons from the Railway Station about the incident. He however, stated that when he was in the CCTV control room, other staff members were enquiring about the crime. PW-34 deposes that he gave the copies of the photographs of the deceased EA to all the investigating team members and that was a coloured photograph. He however added that neither did he collect the photograph of the accused after watching the CCTV footage nor asked for the sketch of the accused. PW-34 deposed that he did not show the CCTV footage to PW-18 Shivkaran Chotelal Patel.
No sketch or photograph of person in CCTV footage was prepared and footage was also not sent for forensic
32. Mr. Shri Singh, learned counsel vehemently contended that the CCTV footage in no way advances the case of the prosecution. According to the learned counsel, if the footage was admittedly from DVR-II, the life span of the footage would have been only till 17.01.2014 and since admittedly the Panchnama was drawn on 18.01.2014 and the pen drives were taken on 18.01.2014, the CCTV footage is not reliable. CCTV footage, if available from 18.01.2014, was inexplicably not used for identification by chance witnesses, raising doubts on its seizure and veracity. According to the learned counsel, if the CCTV footage had been obtained from 18.01.2014, there was no reason why it was not shown to PW-18 Shivkaran Chotelal Patel (statement recorded on 08.02.2014), PW19 Surendra P.P. Nayar (statement recorded on 22.01.2014) and PW-23 Prahlad Kumar Yadav (statement recorded on 19.01.2014) to confirm that the individual person that they saw on 05.01.2014 33 was in fact the same person seen in the CCTV footage. In any case, according to the learned counsel, PW-18, PW-19 and PW-23 only claim to have seen the appellant and not the appellant and the deceased together. Equally, according to the learned counsel, a serious doubt arises since PW-20 Ramesh Sonu Rathod and PW-21 Ganesh Krishna Shetty were also not shown the CCTV footage since they claim to have seen the appellant with the deceased. No sketch or photograph of the person in the CCTV footage was also prepared and the footage was also not sent for forensic analysis
34. We find that the infirmities referred to by the defence namely, about the life span of the CCTV footage in DVR-II being 12 days; the absence of identification of both the appellant and deceased in the same footage by the witnesses; the absence of explanation as to how the Police knew that the person PW-18 and 19 were speaking to was the same person in the footage and other infirmities raised have not been adequately answered by the prosecution in its evidence. Learned Additional Solicitor General Mr. Raja Thakare painstakingly took us through the available evidence and objectively placed the matter before us. However, from the material available on record, these lingering doubts in our mind have not been adequately addressed.
Failure to follow the mandate of section 65-B IEA
35. However, what resolves this issue against the prosecution completely is the failure of prosecution to follow the mandate under Section 65-B of the Indian Evidence Act, and the failure to produce the Section 65-B(4) certificate. Section 65-B reads as under:-
“ section 65-B … “
Importance of objection regarding compliance of section 65-B IEA
38. According to the learned counsel, since the exhibits were marked before 18.09.2014, the appellant did not have the benefit of the decision of the Anvar P.V. (supra) when the footages were marked.
39. In Shafhi Mohammad v. The State of Himachal Pradesh (2018) 2 SCC 801 (delivered on 30.01.2018), a two Judge Bench of this Court after noticing Anvar P.V. (supra) held that a party who is not in possession of device from which the document is produced cannot be required to produce the certificate under Section 65-B(4) of the Indian Evidence Act. It also held that applicability of requirement of certificate being procedural can be relaxed by the Court wherever interest of justice so justifies.
40. In Sonu @ Amar vs State of Haryana (2017) 8 SCC 570, (delivered on 18.07.2017) the following paragraphs being crucial are extracted hereinbelow:-
“paras. 30, 31, 32 …”
As rightly pointed out by Mr. Raja Thakare, learned Additional Solicitor General, it was held in Sonu (supra) that objection about Section 65-B(4) of the Indian Evidence Act, not being complied, cannot be taken at the appellate stage since that will deny an opportunity for the prosecution or the opposite party to rectify the defect. It was also held that the documents were not inherently inadmissible in evidence.
Question put to the witness regarding section 65-B IEA certificate itself considered as objection at the earliest
43. We are dealing with a criminal case where the accused is being tried for the offences which involve capital punishment. A court of law in this scenario cannot be technical about the manner of objections that are raised. Even though objection has not been raised specifically when the CCTV footage was exhibited by PW1, when PW-38 was in the witness box a specific question was put to him and subsequent to evidence, he deposed that he was aware of the necessity of furnishing 65-B certificate while collecting electronic evidence. On the facts of the present case, we are inclined to treat it as an objection taken at the earliest point in time. Thus, when the prosecution was aware of the need for the 65-B (4) certificate and they themselves collected it for the CDRs there was no reason as to why they did not collect the same for the CCTV footage.
44. The resort to Section 465(2) Cr.P.C. by the learned A.S.G. does not impress us because according to us, objection has been taken at the earliest available instance.
47. A two-Judge Bench in a referral order reported in Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors., (2020) 3 SCC 216 referred the following question to a larger bench:
“3. We are of the considered opinion that in view of Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , the pronouncement of this Court in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC (Civ) 346 : (2018) 1 SCC (Cri) 860] needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that there is an element of urgency in the matter.”
48. The reference came to be answered in the judgment reported in (2020) 7 SCC 1 by a three-Judge bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. The relevant portions of which are as under:-
Paras. 45, 46, 47, 56, 61, 73 …”
Certificate under section 65-B IEA is condition precedent to the admissibility of electronic evidence
49. This judgment has put the matter beyond controversy. In view of the above, there is no manner of doubt that certificate under Section 65-B (4) is a condition precedent to the admissibility of evidence by way of electronic record and further it is clear that the Court has also held Anvar P.V. (supra) to be the correct position of law.
CCTV footage is discarded from reliability
51. In view of the above, we are not able to place any reliance on the CCTV footage, insofar as an attempt is made by the prosecution to attribute that the appellant and the deceased EA were last seen together based on the CCTV footage. We eschew the same from consideration.
Evidence analysis
Evidence of PW-20 and PW-21 for the last seen together as well as evidence of PW-18 and PW-19 for sighting the appellant
55. PW-20 claimed that he was watching them for two minutes from a distance. He claimed that the girl was wearing T-shirt, jeans and Dupatta though he could not say about the colour of the Dupatta and T-Shirt. He stated that the girl was of 4’5’’ in height. He admits that he came to know about the murder of the said girl on 05.01.2014 and was aware that the police was enquiring about the murder. He admits that he did not mention in his statement that he was on duty from 09:00 PM on 04.01.2014 to 09:00 AM on 05.01.2014. He stated that the person showed on VC screen was the person that he saw on the night of 04.01.2014 to 05.01.2014.
Parking charges not paid was not proved: 57. Thereafter, he deposed about going to Arthur Road Jail on 20.03.2014 and speaks of identifying the appellant in the identification parade. He admits that the police met him for the first time on 01.03.2014 and showed a passport size photograph of the girl. Again on 04.03.2014, the girl’s photograph was shown to him. He admits that the police asked him to give the list of vehicles which were parked in the parking area on the night of 04.01.2014 to 05.01.2014. He further deposed that he used to put the number when the vehicle entered the parking place. He however deposed that since the receipt of the vehicle of the accused was not prepared, he did not mention the number on any receipt. He admits that no action or complaint was lodged against the appellant for not paying parking charges and did not try to catch him.
58. He however states that when he met PW-20 Ramesh Rathod, he did not tell him that he went to the police and did not talk with Ramesh about the recording of his statement. He states that the passage of exit was 2.5 feet and passage was always crowded after the arrival of train and further added that if two persons pass together, it is not necessary that they have arrived together.
66. Admittedly, according to the learned counsel, CCTV footage was not shown to the witnesses and as such it was unclear as to on what basis the Police knew that the person they were speaking of, was the same man in the footage. Learned counsel further questions that TI Parade was of no value since as was submitted earlier, the photographs were widely circulated in the Media from as early as 04.03.2014.
68. According to the learned counsel, the deceased who alighted from the Train on 05.01.2014 was found dead on 16.01.2014. As per Dr. Chauhan, PW-25, the death was traced back 8-10 days before the post-mortem, which was held on 17.10.2014. Going by this, the deceased could have been killed at any point between 07.01.2014 and 09.01.2014 even as per the version of the prosecution. Learned counsel further claims that the place where the body was found, was not under the exclusive possession of the appellant and submits that without the prosecution discharging its burden that no third person could have intervened, the burden under Section 106 of the Evidence Act would not shift to the appellant.
70. Analysing the evidence, we must record that the witnesses fail to inspire the necessary confidence that a Court of Law looks for, to clinchingly establish the circumstances of last seen. To start, the statement of PW-20 was recorded on 20th March, 2014 a good two and a half months after 05.01.2014. Statement of PW-21was recorded on 04.03.2014 a good two months later. The police has not explained as to why this delay happened, particularly when they have been inquiring at the Station since 16.01.2014.
Witnesses did not disclosed seeing the appellant and deceased together
71. PW-20 was approached on 07.01.2014 and was interacted with for thirty minutes and PW-21 was approached on 01.03.2014. Neither of them disclosed anything about seeing the appellant and the deceased together.
Photos of appellant already published in newspapers
72. PW-20, on top of it, admits to Police pressurising the taxi drivers. There is also contradiction between PW-20 and PW-21. PW-20 states that he gave the statement only after PW-21 told him about his statement. PW-21 denies any such happening. The way his physical features are remembered also does not inspire confidence. It should not be forgotten that they are referring to a time when the Station would have been bustling with hectic activity, when the train would have arrived and people would be departing in hordes in a hurried manner. To recollect something that happened two and a half months back in this situation would be a tall order. The Identification Parade conducted by PW-39 Vishnu Janu Kanhekar also lacks steam since the photographs of the appellant were admittedly published earlier in the newspapers as deposed by DWs 1, 2 and 3.
75. However, evidence of PW-20 and PW-21 does not point towards the guilt of accused even if we discount all these infirmities. The law on circumstantial evidence mandates that any other hypothesis must be ruled out. This is not a case where any conviction could be sustained even if we believe PW-20 and PW 21 on the basis of their evidence, in view of our holding with regard to the other circumstances, some of which have been recorded hereinabove and some of which are to follow hereinbelow. In view of the same, even we have to assume that the evidence of PW-20 and 21 are to be taken at their face value (which is difficult) we still do not find the evidence clinching to record the conviction.
Evidence of PWs – 9, 10, 12 and 22 and the alleged extra judicial confession to PW-9
Unable to say date and month: 92. PW-10 states that his Pan Card, Voting Card and Ration Card were given for purchasing the said Motor Bike while the payment was being made by PW-9 also known as Nandkishore Sahu. He states that PW-9 was using the said Motor Bike and he gave the documents since such documents were not with Sahu. His case is that he gave the documents and Sahu (PW-9) made the payment and that the police recorded his statement. He is not able to say the date and month when the Motor Bike was purchased and there was nothing with him to show that it was purchased in his name and was used by Sahu. He states that the Police called him in connection with the case on 05.03.2014 and told him that the vehicle was seized in the said murder case.
104. In view of all these, it was contended that PW-9’s testimony regarding the extra judicial confession which is inherently a weak piece of evidence is completely unreliable particularly when prosecution’s own witness speaks of his being taken into custody and, in any event, 2 days before the recording of the statement it being publicly announced that Nandkishore (PW-9) was already in contact with the Police. According to Shri Singh, no new information was brought on record and PW-9’s deposition merely brings together the disparate pieces of evidence already available with the Police. According to the learned counsel no importance should be attached to the extra judicial confession, since it served merely to bolster the circumstantial evidence on which the case depends.
Prosecution did not prove PW.9 gained the trust of accused for extra judicial confession: 108. We have carefully considered the efficacy of the extra judicial confession of PW-9. Extra judicial confession, by its very nature, has been held to be a weak piece of evidence. Normally it is given to persons who enjoyed the confidence and trust of the accused. From the evidence mentioned above, we are not able to find that PW-9 enjoyed the confidence of the accused so as to safely infer that the accused would have made a clean breast of things to PW9. Further disturbing feature in this case is that PW-22 does speak of Police taking PW-9 into custody in connection with this case. There is no re-examination of PW-22 at this stage.
No corroboration in material particulars for extra judicial confession: 110. Further, from DW-2 read with Article 41, it is clear there are reasonable grounds to believe that PW-9 was in interaction with Police in some capacity. In any event, discounting all that, from the cross-examination portion extracted above of PW-38 with so many omissions in the statement of PW-9, we do not feel it prudent to sustain the conviction based on the purported extra judicial confession given to PW-9. Moreover, there is no corroboration in material particulars and hence we are inclined to reject the extra judicial confession purportedly given to PW-9.
Newspaper evidence
Statement in newspaper is hearsay and inadmissible
111. In the case of Laxmi Raj Shetty vs. State of T.N., (1988) 3 SCC 319, this Court held as under: –
“26. It is now well settled that a statement of fact contained in a newspaper is merely hearsay that therefore inadmissible in evidence in absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. The accused should have therefore produced the persons in whose presence the seizure of the stolen money from Appellant 2’s house at Mangalore was effected or examined the press correspondents in proof of the truth of the contents of the news item…”
114. Insofar as the recovery of the trolley bag is concerned, the evidence of PW-24 should be read with evidence of PW-4 Abdul Sattar Sayyed Ali Shaikh-the Panch witness. PW-24 Kamlabai Kisan Sanap stated that on a particular date which she does not remember, she was sitting near the public toilet; that the appellant on VC (video conference) came to see her; that she asked her why she was sitting there and asked her whether she could take the bag; that when she asked why she is giving the bag he told her that his sister is no more and is giving the bag which is of black colour and having two wheels; that there were some clothes inside the bag which she threw since they were dirty and 2 other clothes she sold for Rs. 20; that she has kept the bag at Misrawada in a room and that she handed over to Police and they left the house after taking thumb impression on paper.
Must be or should be proved: 121. All these facts cumulatively constrain us to conclude that there are gaping holes in the prosecution story leading to the irresistible conclusion that there is something more than what meets the eye in this case. While the old adage, witness may lie but not the circumstances, may be correct, however, the circumstances adduced, as held by this Court, should be fully established. There is a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as held by this Court. The circumstances relied upon when stitched together do not lead to the sole hypothesis of the guilt of the accused and we do not find that the chain is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused.
Conclusion
Conviction set aside
123. On the available evidence, we are of the opinion that it will be extremely unsafe to sustain a conviction against the appellant. The prosecution has not established its case beyond reasonable doubt. Hence, we are constrained to come to the sole irresistible conclusion that the appellant is not guilty of the offences for which he has been charged.
124. In view of what has been stated hereinabove, we allow the appeal and set aside the judgment of High Court of Judicature at Bombay dated 20.12.2018 in Confirmation Case no. 3 of 2015 with Criminal Appeal No. 1111 of 2015 and acquit the appellant with regard to the offences for which he was charged in this case. The appellant shall be set at liberty forthwith, if not required in any other case.
Judgments cited/relied/quoted
- Sharad Birdhichand Sarda vs. State of Maharashtra – (1984) 4 SCC 116
- Shivaji Sahabrao Bobade vs. State of Maharashtra – (1973) 2 SCC 793
- State (N.C.T of Delhi) vs. Navjot Sandhu @ Afsan Guru – (2005) 11 SCC 600
- Anvar P.V. vs. P.K. Basheer & Ors. – (2014) 10 SCC 473
- Sahadevan vs. State of T.N. – (2012) 6 SCC 403
- Suryamoorthi vs. Govindaswamy – (1989) 3 SCC 24
- Gireesan Nair & Ors. vs. State of Kerala – (2023) 1 SCC 180
- Nikhil Chandra Mondal vs. State of W.B. – (2023) 6 SCC 605
- Sonu @ Amar vs. State of Haryana – (2017) 8 SCC 570
- Mohd. Arif @ Ashfaq vs. State (NCT of Delhi) – (2023) 3 SCC 654
- Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors. – (2020) 3 SCC 216
- Laxmi Raj Shetty vs. State of T.N. – (1988) 3 SCC 319
- State of Goa vs. Sanjay Thakran & Anr. – (2007) 3 SCC 755
- Anjan Kumar Sarma & Ors. vs. State of Assam – (2017) 14 SCC 359
- Sattatiya @ Satish Rajanna Kartalla vs. State of Maharashtra – (2008) 3 SCC 210
- Reg vs. Hodge – [1838] 2 Lew 227
- Hanumant vs. State of Madhya Pradesh – AIR (1952) SC 343
Party
Chandrabhan Sudam Sanap vs. The State of Maharashtra – Criminal Appeal No. 879 of 2019 – 2025 INSC 116 – 28th January, 2025 [3 judge bench].
Relevant judgment: https://section1.in/trial-court-shall-not-insist-the-defence-counsel-to-put-particular-question-in-particular-manner/
