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PETITIONER: VINAYAK SHIVAJIRAO POL

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT:       22/01/1998

BENCH: CHIEF JUSTICE OF INDIA, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                THE 22ND DAY OF JANUARY, 1998 Present :                  Hon’ble the Chief Justice                  Hon’ble Mr. Justice M. Srinivasan Mr. Vijay  Kotwal and  Mr. S.R.  Chitale, Sr. Advocates, Mr. A.M. Khanwilkar,   Mr.  S.M. Jadhav  and Ms.  Abha R.Sharma, Advocates with them for the appellant. Mr. I.G.  Shah, Sr.  Advocate, Mr.S.S.  Shinde  and  Mr.  OM Nargolkar, Advocates for the respondent.                       J U D G M E N T The following Judgment of the Court was delivered: SRINIVASAN, J.      The pivotal  question in  this appeal  is  whether  the extra judicial  confession made  by the appellant could form the  basis  of  conviction  under  Section  302  I.P.C.  The question was  answered in  the negative  by  the  Additional Sessions Judge,  Sangli but  the High  Court gave a contrary answer and  reversed the  judgment of the Court of Sessions. Thus the appellant stood convicted and sentenced to death as the High  Court opined that ‘this case fails in the category of the  gravest   of grave  and rarest in rare cases’. After hearing the  appeal for some time, we decided that the death sentence awarded  to the  appellant may  not be  sustainable whether we accept or reject the appeal ultimately and passed on order  on 6.1.98 that the appellant be taken out from the Death Cell  and be  put in  the cell meant for life convicts till further  orders. Thereafter we completed the hearing of the appeal. 2.   The appellant  was a  in the Army at 14th Maratha Light Infantry,  Aundh   Camp,  Pune.  He  married  one  Vimal  of Hingangaon village  in 1980  and had  a female child about a year latter. Vimal was not keeping good health and was found to be  suffering from tuberculosis. She was advised complete bed rest  for 6  to 7 months and avoid sexual intercourse at least for one year. The parents of the appellant were living in the  village Tisangi.  Vimal was sent back to her parents but some  time later  she was  brought back by the appellant and left with his parents. 3.   The appellant  was allotted  the duty of a guard at the residence of  Commanding Officer  at Ghorpadi,  Pune for  24

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hours in  rotation in February, 1983. He was absent from his duty on  9th and  10th February and reported for duty on the 11th at  1.00 P.M. He gave an explanation for his absence to the authorities  concerned that  he had gone to his sister’s house at Akurdi, Pune. As it was found to be unsatisfactory, he was punished under the Army Act. 4.   In the  meanwhile on  10.2.83, Vimal’s  father went  to Tisangi in  response to  her letter  requesting him  to come immediately. She  was not  available and  the parents of the appellant could  not give  an explanation for her absence to his satisfaction. He went back to his village in a disgusted mood. 5.   On 13.2.83  a headless dead body was found in a well in Pusegaon Village. The body was in a highly decomposed state. It was  found that  there was only a blouse on the trunk and both the  legs were  tied with  a   green cloth  piece. Some injuries were  found in the neck and the thumbs of the hands were found  cut. Certain  other fingers were also found half cut. After  autopsy, search  was made  for the  head but  it could not be found. The fact was proclaimed by beat of drums in the nearby village so that the trunk of the body could be identified. But  nobody could identify the same and the same was cremated. 6.   On  17.2.83   the  appellant  approached  some  of  the superior officers  and confessed  before them  that  he  had killed his wife Vimal. He was told by them to put in writing whatever he  wanted to  say. He  wrote  out  a  confessional statement in  Marathi language  and  signed  below  it.  The writing was  attested by four military officers. He was kept under watch  by the  higher authorities in the guarded room. The military  authorities  informed  the  Superintendent  of Police at Sangli about the confessional statement and sent a copy of the same to him. They were requested to  contact the Superintended of  Police, Satara  as the offence was alleged to have  been committed  at Pusegaon in District Satara. The military authorities  communicated to  the Superintendent of Police the  information on 22.2.83. The police commenced the investigation and  obtained on  2.3.83 a  warrant  from  the Judicial Magistrate,  Kavathe-Mahankal for  the  arrest  and produced  before   the  Magistrate  on  5.3.83.  During  the interrogation the appellant mentioned the name of his friend Baban Shankar  Suryavanshi as his accomplice. The letter was also questioned  and he offered to make discovery of certain articles namely  a Kukhari  and a  steel box like a military box. The  appellant himself offered to make discovery of the head of his wife Vimal and as per his statement the head was recovered from  another well  in the  same village Pusegaon. Thereafter the  investigation was completed and charges were framed against the appellant and his friend. 7.   The Court of Sessions recorded the following findings:      I.   The dead  body was  that of Vimal, the wife of the appellant whose death was homicidal.      II. The appellant had sufficient motive for killing his wife.      III.  The   extra  judicial   confession  made  by  the appellant to the military authorities was voluntary.      IV. The  head of  the deceased  was discovered  at  the instance of the appellant.      V.   The letter  muddamal article 20 was written by the appellant to his friend. However, the  Court of  Sessions  took  the  view  that  the evidence led  by the prosecution ran counter to the contents of the  extra judicial  confession and  the same  could  not therefore be  relied upon  to convict the appellant. In that view, the Court of Sessions acquitted the accused.

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8.   On appeal, the High Court set aside the judgment of the trial court  and convicted  the appellant  for  the  offence under Section 302 I.P.C. He was sentenced to death. The High Court however confirmed the acquittal of the other accused. 9.  Before proceeding further it is necessary to set out the statement of extra judicial confession made by the appellant to the  military authorities.  It has been extracted in full in the  judgment of  the High Court as translated and placed before it. It reads as follows:        "1. Shipai No. 277/892, am giving         in writing as to how I killed my        wife as her behavior was not good         and I myself had caught her with                             another man.      On 9th February in the afternoon at      4.00  p.m.   I  was   on  duty   at      Brigadier   Saheb’s   Bungalow   at      Ghorpadi,  Pune.   From   there   I      straightway came  to bus  stand and      went to  Satara by bus. While going      I was  carrying one  steel box, one      Kukari  and  one  rug.  High  these      luggage I  reached home  at a  2.00      a.m. on  10th. After reaching home,      I went to the place where my mother      , father  and wife were sleeping. I      woke up my wife. After that time my      mother also  woke up. My wife said,      "come, I  will prepare tea for you.      I told  my mother  that I am taking      my wife  and she  should stay there      only. Then,  I came with my wife to      the other home. After coming to the      other home, I closed the outer door      and also  closed the  inner door of      the room. Then I pretended to sleep      with my  wife and pressed her neck.      I pressed  the neck  till she died.      After she  was dead.  I put  her in      the time box which I had taken with      me and  covered with  rug. Then  at      2.30 a.m.  I can’t  to bus  stop at      the platu of Ghat Nagre which is 2-      1/2 miles  away from  our  village.      Thus, in the morning at 5.30 a.m. I      came to  Nagare Fata  by Bombay  to      Jat bus.  At that  spot within  two      minutes one  truck came. I got into      the Miraj  Railway Station at 10.00      a.m. I boarded a train and got down      at Koregaon. I went to Koregaon bus      station in  Bullock Cart.  Then  in      the afternoon  at 1.00  p.m. I went      to Aundh  Fata bus stop, which is 2      miles west  of village  Puregaon by      bus. It  was 3.30 in the afternoon.      At that  time I  waited there  till      night  9   p.m.   and   after   the      vehicular  and  human  traffic  was      stopped, I started my work. Earlier      I had  inspected the  wells in  the      area, Then  I carried  the box to a      gulch (Nala).  After  reaching  the      nala, I took out the dead body from      the box  and severed  the head  and

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    both the  thumbs. Then  I  put  the      body only  in a  gunny bag and went      to a  well. At  the well  i put two      big stones  in the  gunny  bag  and      tied the  mouth closed of the gunny      bag and throw it in the well.      Then again  I came  back  near  the      bed. I  wrapped the head in a cloth      and with  that head went near other      well. Then  I tied  two stones with      that head and throw it in the well.      The *  I tied the thumbs in a cloth      and put  them in  pocket. I  washed      the box  and   in the well. At that      time some truck came from Puregaon.      I came  to Satara  S.T. station  at      10.30 p.m.  at night in that truck.      Then I  removed the  kukri from the      box and  kept it  in the  cloth bag      which was  with me.  I left the box      there only  and came to W.C. at the      Station. In  the W.C.  I throw  the      thumbs and  kukari and  flushed it.      At Aundh  Phata I burnt her clothes      and mixed  it in  soil. And then at      11.00   p.m. I  sat in  the bus and      got down  at Pune  on 11th  at 1.00      a.m. Then  I went  for Guard.  Then      there was  report. I told the Guard      Commander that  I had  gone  to  my      sister at  Akurdi. Then  on 14th at      12.00 noon I came to the Main Line.      I had  given the  same statement to      Company Commander on 16th.      This entire statement is absolutely      true.      Shipai  Vinayak   Shivaji  Pal  No.      277/892                   Sd/-                17/2/1983" 10.  There is  no ambiguity in the above statement. It shows that the  appellant killed  his wife.  Both the  Courts have found  that  the  statement  was  made  voluntarily  by  the appellant. The  sequence of  events shows  that at  the time when the  appellant made  a confession,  neither he  nor the military authorities  had any  knowledge of  the recovery of the headless  trunk of  the appellant’s  wife. The  military authorities were  in  no  was  biased  or  inimical  to  the appellant. Nothing is brought out in the evidence in respect of the  military officers which may indicate that they had a motive  for  attributing  an  untruthful  statement  to  the appellant. The  statement has  been proved  by  one  of  the officers to  whom it  was made.  The said  officer has  been examined as  PW 32.  A perusal  of the  appellant  that  the statement was obtained from him on inducement and promise is not true.  In such  circumstances it is open to the Court to rest its  conclusion on  the basis  of such statement and no corroboration is necessary. 11.  In State of U.P. Versus M.K. Anthony. AIR 1985 S.C.  48 an  extra judicial  confession was made by the accused to  his friend.  The Court  found that the statement was unambiguous  and unmistakably  conveyed that the accused was the  perpetrator of the crime. The Court also found that the testimony  of the  friend  was  truthful,  reliable  and trustworthy. It  was therefore  held by  this Court that the

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conviction of  the accused on such extra judicial confession was proper  and no  corroboration was necessary. It was also held that  much importance  should not  be  given  to  minor discrepancies and technical errors. 12.  In  the  present  case  apart  from  the  statement  of recovery there  is  a  clinching  circumstance  against  the appellant. That  is, the  head  of  the  deceased  wife  was recovered from  another well situated in the land of another person and  the said  recovery was  made  at the instance of the appellant.  The said  fact of  the head being in another well was within the exclusive knowledge of the appellant and if he  had not  committed the murder he could not have shown the well  in which  the head  was found.  The High Court was therefore perfectly  justified in relying upon the statement of confession  and the  recovery of the head at the instance of the  appellant for  holding that the appellant was guilty of murder. 13.  The High  Court is  also right  in placing  reliance on muddamal article  20, a  letter written  by the appellant to his friend  who was  the second accused which indicated that there was some evil plan between the two. 14.  Learned counsel for the appellant strenuously contended that the  High Court is not justified in upsetting the order of acquittal  passed by  the trial  court when  the same was based on  several reasons set our therein. It is also argued that none  of the  reasons given by the trial court has been independently considered  by the  High Court.  According  to learned counsel  each and every reason found in the judgment of the  trial court  must be  dealt with  by the  High Court before it  reverses the conclusion of the trial court. It is also argued  that the  medical evidence as well as the other circumstantial evidence  are contrary to the contents of the statement of  confession made  by the  appellant and  in the face of  such contradictions  and Court  ought not  to  have relied on  the extra  judicial  confession.  It  is  further contended that  the High Court ha sin fact accepted one part of the  statement of  confession  finding  it  to  be  true. According to  the learned  counsel such a course is not open to the High Court. 15.  We have carefully gone through the judgment of both the Courts below  and also  the   evidence on  record. The trial court has given various reasons for not accepting the extra- judicial confession  but all  are on  the premise  that  the other evidence on record is contrary thereto. The High Court has relied  upon the crux of the statement of confession and proceeded on the footing that the other details mentioned in the statement are not of much relevance and even if there is a variation  between such  details and the other evidence on record, it  would be  of no consequence. We are in agreement with the view taken by the High Court. 16.  The main  contention of  the appellant  is that  in the post mortem examination the opinion  expressed by the doctor is that the death occurred due to haemorrhage by cutting off the head  and that there is no evidence of the strangling of the deceased  by the  appellant. There  is no  merit in this contention. Even  if there  had been any mark of strangling, the same  would not be visible as the neck was cut. The body was found in such highly de-composed condition, it would not have been  possible at all for the doctor, who conducted the post  mortem,   to  have  found  anything  relating  to  the strangling of  the deceased  by the  appellant. Further, one important factor should be kept in mind when we consider the evidence afforded  by the  post mortem report. When the post mortem was  carried out,  the appellant  had  not  made  the confession. On  seeing  the  headless  trunk,  normally  and

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naturally, the  doctor would  have proceeded  to conduct the post mortem  on the  footing  that  the  death  occurred  on account of  the chopping  of the  head. In such a situation, the doctor  expressed an  opinion  that  death  was  due  to haemorrhage but  it is  seen that  in the post mortem report there is  no reference  to the symptoms which indicated such haemorrhage. The  same reasoning  would apply to the opinion of the  doctor that the injuries found on the body were ante mortem. 17.  Our attention has been drawn to some of the passages in the Modi’s Textbook of Medical Jurisprudence and Toxicology, edited by  C.A.  Franklin,  Twenty-first  Edition  and  also Parikh’s Text  Book of  Medical Jurisprudence and Toxicology edited by  Dr. C.K.  Parikh. None  of the passages is of any help in  the present  case in  view of  the facts  mentioned above and  in particular  the circumstance that the body was highly de-composed  when it  was discovered.  Reference  has also been  made to the following passage in the Text Book on Medical Jurisprudence and Toxicology by John Glaister:      "Ante-mortem    and     post-mortem      bruises.           The signs which are indicative      of   ante-mortem    production   of      bruises   are   swelling   of   the      tissues, discoloration of the skin,      extravasation  of  blood  into  the      true skin and subcutaneous tissues,      with infiltrating.  When bruise  is      well  developed,   an  examiner  is      justified in assuming the view that      it  was   produced   during   life.      Nevertheless    for    medico-legal      purposes,      a      microscopical      examination  should   be  made   to      verify the  present of  infiltrated      blood.   Since    infiltration   is      possible only  while the  heart  is      beating, this  sign  is  conclusive      that the injury was produced during      life. While  molecular life remains      in   the    tissues,   considerable      violence applied  to  a  dead  body      with  a   blunt   instrument   will      producea    slight     degree    of      extravasation,  but  never  to  the      same extent  as  during  life,  and      infiltration of the tissues will be      absent.           Suspected  areas  of  bruising      should   always   be   incised   to      differentiate them from color marks      due  to   hypothesis,  since   both      conditions may  coexist in the same      region of  the body.  In  bruising,      extravasated blood  is present, but      in hypothesis  the present,  but in      hypothesis the served small vessels      are   filled    with   blood    and      extravasation is absent." 18.  There is nothing on record to show that the post mortem examination was  of the type mentioned in the above pessage. In such Circumstances we are unable to place any reliance on the opinion of the doctor who conducted the post mortem. 19.  In Manquli  Dei Versus State of Orissa AIR 1989 Supreme Court 483  the wife  killed her  husband and buried the dead

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body in  the house.  According to her confessional statement she gave  four axe  blows on  the head  of the deceased. The dead body  was recovered  according her  statement  but  the injuries on  the dead body were not visible as it was highly de-composed. The Court held that the confession could not be rejected merely  on the  ground that  only one simple injury was stated  in the  post mortem  report. The  facts  in  the present case are similar and the same principle will apply. 20.  There is  no substance in the contention that the steel box discovered  on the statement of the second accused could not be  sufficient to  place the  dead body inside and carry it. Comments  are also  made that the discovery of the steel box and  kukhari belies  the statement of the appellant that he had  discarded the  same before returning to his place of duty. A  card-board model  of the  steel trunk  was produced before us.  In our  view that  size of  the trunk  is  quite sufficient to  place the  body of  the  deceased  inside  by folding it  which could  be possible  immediately after  the death. In  any event the variation between the minor details contained  in   the  statement   of   confession   and   the circumstances brought  out in  the evidence  will not in any was affect  the  acceptability  of  the  confession  of  the appellant that he killed his wife. 21.  Learned counsel  for the  appellant has referred to the decisions in  Nishi Kant  Jha Versus The State of Bihar 1969 (1) S.C.C.  347. Harchand  Singh &  Another Versus  State of Haryana (1970)  3 S.C.C.  397. Makhan  Singh Versus State of Punjab 1988  (Supp) S.C.C.  526. Chhittar  Versus  State  of Rajasthan 1995  Supp. (4)  S.C.C.519. None of the rulings is of any  help to  the appellant  as  the  facts  therein  are entirely different.  The principles  on which extra-judicial confession could  form the  basis of  a conviction  are well settled. We  have already  referred to the judgment in State of U.P.  Versus M.K.  Anthony (Supra) and Manquli Dei Versus State of Orissa (supra). We may usefully add the decision in Piara Singh and others Versus State of Punjab AIR  1977 S.C. 2274. In  that case  it was  held that  law does not require that the  evidence of an extra judicial confession should in all cases  be corroborated  and where  such  confession  was proved by  an independent  witness  who  was  a  responsible officer and  who bore  no animus  against the accused, there was hardly any justification to dis-believe the same. 22.  In the  result we  have no  hesitation  to  uphold  the judgment of  the High  Court in  so  far  as  it  finds  the appellant to be guilty of committing the murder of his wife. The conviction is therefore upheld. 23.  However, we  are not satisfied that this is a rarest of rare cases  in order  to warrant  award of death sentence to the appellant.  The ends of justice would be met by reducing the sentence  to one of imprisonment for life. The appeal is allowed to  that extent  and the  sentence  awarded  to  the appellant is altered into one of imprisonment for life.