ORDER
V.H. Bhairavia, J.
1. This appeal is preferred by the Stale against the order dated 31st March 1984 passed in Sessions Case No. 61 of 1983, thereby the respondents-accused have been acquitted of the offences punishable under sections 302 and 201 read with section 34 of the Indian Penal Code.
2. The prosecution case, in brief, is that respondent-accused Vinayak was serving as a sepoy in military at 14th Maratha Light Infantary, Aundh Camp, Pune. Respondent-accused Baban was also serving as a sepoy in the said Camp. In the year 1980 respondent-accused Vinayak was married with Vimal who was about 18 years' old at that time. After marriage, Vinayak used to visit his native place on long leave once in a year and used to stay with his wife Vimal and his parents in his house at village Tisangi. After about one year of the marriage, Vimal became pregnant and she was brought to her parents' house at village Hingangaon. Thereafter Vimal gave birth to a female child. Two months after the delivery, the father of respondent-accused Vinayak went to Hingangaon and brought Vimal and the child to his village Tisangi. It reveals from the record that Vimal was not keeping good health after the delivery and her father Mahadeo (P.W. 11) received a letter from the father of respondent-accused Vinayak, informing about the sickness of Vimal and he was requested to take his daughter Vimal to his house. Accordingly, Mahadeo (P. W. 11) went to Tisangi and brought Vimal to his house at Hingangaon and consulted Dr. Karande of Vite who checked Vimal and diagnosed the disease as tuberculosis. Vimal was advised complete bed rest for 6 to 7 months and to avoid sexual intercourse at least for a period of one year. It further reveals that after about a month, the father of respondent-accused Vinayak came to Hingangaon and told Mahadeo that his son Vinayak had come on leave and, therefore, Vimal should be sent to his house and it appears that Mahadeo reluctantly allowed Vimal to go to her matrimonial home at Tisangi. It appears that respondent-accused Vinayak and his father did not believe that Vimal was suffering from tuberculosis and, therefore, she was taken to a doctor at Miraj who also diagnosed the same diseasetuberculosis. Therefore, Vimal was sent back to her parents' place at Hingangaon. It reveals that after about a week, respondent-accused Vinayak himself went to Hingangaon to bring his wife Vimal but as Vimal had gone to Pune for interview in the nursery school and returned after four days' from Pune, respondent-accused Vinayak had to stay at Hingangaon for four days. Thereafter respondent-accused Vinayak came to his house along with his wife Vimal at Tisangi. It is stated that at the time of leaving the house of Mahadeo, respondent-accused Vinayak was in angry mood and was asking Mahadeo as to why Vimal was allowed to go to Pune. It further reveals from the record that respondent-accused Vinayak was also suspecting the character of his wife Vimal as she was found chitchatting with one Laxman Kadam in the presence of others at Hingangaon. It is stated that respondent-accused Vinayak, on expiry of his leave, went back to his place of service and joined duty in the military camp and his wife Vimal remained at Tisangi. Therefore, it reveals from the record that Mahadeo (P.W. 11) received a post card with postal stamp of 6-2-1983 (Exhibit 36) from his daughter Vimal requesting him to come to Tisangi immediately. Accordingly, Mahadeo went to Tisangi on 10-2-1983 to the house of respondent-accused Vinayak at about 4 p.m. At that time the mother of respondent-accused Vinayak was present in the house but did not find his daughter Vimal in the house. Mahadeo (P.W. 11) was informed that Vimal had gone for cooking in the house of one Patil and she would come back soon. However, Vimal did not come back for a pretty long time. Thereafter, Mahadeo started asking about the whereabouts of his daughter Vimal. In the meantime, at about 7 p.m. the father of respondent-accused Vinayak returned from the farm land with some she-buffaloes. When Mahadeo (P.W. 11) asked him about the whereabouts of Vimal, the father of respondent-accused Vinayak asked him (P.W. 11) to accompany him to the house of his brother Ganpat. Accordingly, Mahadeo (P.W. 11) went to the house of Ganpat alongwith respondent-accused Vinayak's father and there Mahadeo was told by Ganpat that Vimal had run away in the dawn with a cash of Rs. 125/- , certain ornaments and clothes. Hearing this, Mahadeo told Ganpat that his daughter Vimal was not of that type. However, Ganpat told Mahadeo not to disclose this to anyone. As that was night time, Mahadeo had to stay at the house of respondent-accused Vinayak and he left for Hingangaon in the early morning by bus at about 3.00 am and reached his house at Hingangaon on 11 -2-1983 in a disgusted mood.
3. It is the further prosecution story that one Ramchandra Bhausaheb Deshmukh (P.W. 8) owns a land bearing block No. 1198 at village Pusegaon and there is a well in this land. One Suresh Masne (P.W. 9) was in the service of P.W. 8 Ramchandra Deshmukh and was working in this field. On 13-2-1983 at about 8 a.m. P.W. 9 Suresh went to the said land and when he came near the well by about 10 a.m., he saw a bundle of gunny bag floating on the water in the well and one hand of a human being emerged out of the gunny bag. Therefore, P.W. 9 Suresh went to RW. 8 Deshmukh and told him about this fact. Thereafter both of them (P.Ws. 8 &9) went to the said land. In the well P.W. 8 Deshmukh saw a floating human body. Thereafter P.W. 8 Deshmukh went to Pusegaon Police Station. He reported the situation he saw in the well to the police and this information was recorded by P.W. 22 Arjun Narayan Dhuri, Assistant Police Inspector, of the said police station at the relevant time. On this information, P.W. 22 registered the offence as C.R. No. 15 of 1983 and made entry in the station diary. Thereafter P.W. 22 Dhuri started investigation and went to the land of P.W, 8 Ramchandra. One photographer and two panchas were called there. After takingphotographs, the bundle of gunny bag floating in the well was taken out and on opening the said gunny bag, a headless trunk of a female body was found and the head was found missing. A panchanama (Exhibit 14) was drawn to that effect. Again, photographs of that trunk were taken by the photographer and inquest panchanama (Exhibit 15) was drawn. It was found that there was only blouse on the trunk and both the legs were tied with a green cloth piece. There were five stones in that gunny bag. Some injuries were found on the neck and the thumbs of the hands were found cut. Certain other fingers were found half cut. The trunk was then entrusted with P.W. 23 Jadhav, a police constable, and thereafter the Medical Officer, Pusegaon, was called on the spot for autopsy. After drawing a panchanama (Exhibit 13), a search was made for the head of the trunk in the nearby lands and wells but it was not found.
4. Dr. Mhamadapure (P.W. 20), the Medical Officer In-Charge, Primary Health Centre, Pusegaon, performed the post-mortem examination of the trunk on 14-2-1983 at about 9.30 a.m. The trunk was in highly decomposed condition. He prepared his memorandum as per Exhibit 54. In all three incised wound were found over the 5th vertebra one after the other and parallel to each other and horizontal in direction. The fourth incised wound was found on the right palm. Right thumb was found cut from the metacarpal pharynx joint and the left thumb was found cut from the metacarpal pharynx joint.
5. It appears from the record that on 14-2-1983 P.W. 22 Dhuri, the Police Officer, alongwith other police constables again went to the same land block No. 1198 of P.W. 8 Ramchandra and water from the well was pumped out by a motor pump and tried to find out the missing head. It reveals that upto 4 p.m. they endeavoured to find out the head and the water was almost pumped out from the well but they could not find out the head. To that effect a panchanama was drawn at Exhibit 16. Thereafter, P.W. 22 Dhuri caused this fact to be proclaimed by beat of drums in the nearby villages so that the trunk of the female body could be identified. It further appears that P.W. 22 Dhuri made enquiries with people at villages Vardhangad and Visapur till 15-2-1983. On 16-2-1983, Sub-Inspector Mohite (P.W. 34) of Pusegaon Police Station, who was on bandobast duty, resumed his duties at the said police station and he took over the investigation of this case from P.W. 22 Dhuri. Sub-Inspector Mohite recorded the statements of P.W. 8 Ramchandra and P.W, 9 Suresh on 17-2-1983.
6. The other part of the crucial prosecution story emerged from the record is that on 9th and 10th February 1983 respondent-accused Vinayak was allotted the duty of a guard at the residence of Commanding Officer at Ghorpadi, Pune, for 24 hours in rotation. However, he was found absent from his duty on 9th and 10th February 1983 and he reported for duty on 11th February 1983 at 1 p.m. Respondent-accused Vinayak has given explanation for his absence to the military authorities that he had gone to his sister's house at Akurdi, Pune. This explanation of respondent-accused Vinayak was found not satisfactory and, therefore, he was punished under the Army Act by the authorities. The prosecution story proceeds further, that on 17-2-1983 in the morning, respondent-accused Vinayak approached one Mr. A.S. Gill, the Major, Captain Deshpande (P.W, 32), Subedar Raghuvir Savant and Havaldar Dhond in the military office and confessed before them that he has killed his wife Vimal. However he was asked by them to put in writing whatever he wanted to say. It is the further case of the prosecution that respondent-accused Vinayak then reduced in writing his confessional statement (Exhibit 73) in Marathi language and signed below it. This writing was attested by the aforesaid four military officers. It is stated that since then respondent-accused Vinayak was kept under watch by the higher authorities in the guard room. Thereafter the military authorities informed the Superintendent of Police, Sangli, about the confessional statement of respondent-accused Vinayak and sent a copy of the said confessional statement. Since the offence was alleged to have been committed at Pusegaon, District Satara, the military authorities were requested to contact the Superintendent of Police, Satara. Accordingly, the military authorities communicated to the Superintendent of Police, Satara, on 22nd February 1983. On receiving this, Sub-Inspector Mohite (P.W. 34) felt that the offence has taken place as disclosed in the extra judicial confession (Exhibit 73) at Tisangi, within the jurisdiction of Kavathe Mahankai Police Station. Accordingly, he forwarded all the papers to Kavathe Mahankall Police Station, which were received by P.W. 35 Deshmukh, Police Jamadar. Thereupon, he registered a fresh offence at Kavathe-Mahankal Police Station vide C.R. No. 18 of 1983 under sections 302 and 201 of the Indian Penal Code and started investigation. He immediately proceeded to village Tisangi to the house of the respondent-accused Vinayak. On reaching there, the house was searched but nothing incriminating was found. He recorded the statements of four witnesses. It further reveals that the Deputy Superintendent of Police arrived at about 2 p.m. on that day and under his supervision, further investigation was carried out. Further, on 25-2-1983 Sub-Inspector Patil (P.W. 36), who was on leave, has resumed his duties and took over the investigation from P.W. 35 Deshmukh. P.W. 36 Soubhash Patil recorded the statements of P.W. 11 Mahadeo, the father of deceased Vimal, and others. On 27-2-1983 with the permission of the Superintendent of Police, he proceeded to Pune to arrest respondent-accused Vinayak and reached there on the very day but the military authorities declined to hand over respondent-accused Vinayak to his custody since no permission was received from the higher authorities. On 2-3-1983, it is stated that a warrant from the Judicial Magistrate, Kavathe-Mahankal, was obtained for the arrest of the respondent-accused Vinayak and Sub-Inspector Patil (P.W. 36) went to Pune on 5-3-1983 with that warrant of arrest. Accordingly, the respondent-accused Vinayak was arrested by drawing a panchanama (Exhibit 10) on 2-3-1983 from the military camp. The respondent-accused Vinayak then produced his clothes and articles from a bag (articles 8 to 14) and the same were attached under a panchanama (Exhibit 11). P.S.I. Patil along with the respondent-accused Vinayak went to Satara and thereafter he started further investigation. On 16-3-1983 the accused was produced before the Judicial Magistrate, Koregaon, and obtained remand of respondent-accused Vinayak. It further reveals that during the interrogation of the respondent-accused Vinayak, the name of respondent-accused Baban Shankar Suryavanshi was transpired. Thereafter, P.W. 36 Patil went to village Jakhangaon and apprehended respondent-accused Baban from his house and he was brought to Pusegaon Police Station after drawing a panchanama. it further reveals that respondent-accused Baban offered to make discovery and made a statement (Exhibit 24-A) in the presence of panchas and then took them to his house at Jakhangaon from where he produced the muddamal articles viz., Kukari (muddamal article 15) and a steel box like a military box (muddamal article 16). From the said steel box, a letter in postal envelope (muddamal) article 20), certain other documents and a woollen rug were found. There were some blood stains in that box. All these were attached under a panchanama (Exhibit 24-B) and were duly sealed. Then respondent-accused Baban produced his pant, manila and handkerchief (muddamal articles 23 to 25) from his house which were also attached underpanchanama Exhibit 25. After recording the statements of some witnesses, the police came back to Pusegaon at about 1.30 p.m. It further reveals that at about 2 p.m. on the same day respondent-accused Vinayak offered to make discovery of the missing head of his wife Vimal and made a statement in the presence of panchas at Exhibit 18-A and thereafter he led the police and the panchas to the land of P.W. 18 Madhukar Deshpande within the limits of village Pusegaon through Satara Pandhurpur Road. P.W. 18 Madhukar was present in his other land and he was called there. Respondent-accused Vinayak threw one stone in the well in the land of P.W. 18 Madhukar bearing block No. 1245 and pointed out the place where he had thrown the head of his wife Vimal. Thereupon, police constable Shahaji Patil P.W. 24 Jagdale and constable Mane and one other person jumped into that well and police constable Shahaji Patil found the head under the water which he took out. There was bunch of hair on the skull of that head. One eye was open and the other one was found eaten by the animals. Whitesh yellow liquid was oozing from the neck and the skin was wrinkled. There were tatooing marks on the forehead. Panchanama (Exhibit 18-B) was drawn. Medical Officer, Pusegaon, was called there for postmortem examination. P.W. 20 Dr. Mhamadapure came to the spot at 4.30 p.m and conducted the autopsy. He prepared his memorandum of his examination as per Exhibit 55. Further, it is alleged that respondent No. 2-accused pointed out one place where blood stains were seen on the ground and the dry leaves lying at that place. It is alleged by the prosecution that the head of Vimal was severed at that place and as such there were blood stains. The blood mixed with earth, sample earth and dry leaves (muddamal articles 26 and 27) were collected and attached under panchanama (Exhibit 19). Thereafter, it is alleged that respondent-accused Vinayak pointed out one more place where some ash was seen. According to the prosecution, respondent-accused Vinayak had burnt certain clothes and articles at that place. The ash (muddamal article 29) collected and attached under panchanama (Exhibit 20). Thereafter, supplementary statements of P.W. 8 Ramchandra Deshmukh, P.W. 24 Jagdale and others were recorded. It further reveals that on 8-3-1983 Head Constable Gadekar was instructed to go to the well of P.W. 18 Madhukar Deshpande and by pumping out the water, Gadekar found some stones and a piece of cloth which were attached by drawing a panchanama.
7. The prosecution story continued further that on 8-3-1983 at about 2 p.m. respondent-accused Vinayak again offered to make discovery as per Exhibit 27-A in the presence of panchas and then he led the police and the panchas to Pune near one bridge known as 'Morewada Bridge' on Ghorpadi Road and from the bushes he took out one lungi (muddamal article 30) which had blood stains and the same was attached by drawing a panchanama (Exhibit 27-B). On 9-3-1983 the skull and the hair of deceased Vimal were sent to B.J. Medical College, Pune, with constable Mali but the same were returned with instructions to send to Miraj Medical College and accordingly they were sent to Miraj Medical College. On 17-3-1983 the Medical Officer, Kavathe-Mahankal, collected the sample blood of each of the respondents-accused in separate phials. On 19-3-1983 the statements of conductor Bhagwan Khashaba Patil (P.W. 16) and driver Yakub Meerasaheb Gavandi (P.W. 17) were recorded. On that day in the presence of two panchas, the specimen handwriting of respondent-accused Vinayak was obtained as per muddamal article 20 and panchanama of this event was drawn as per Exhibit 34. On 29-4-1983 the muddamal articles were sent to the Chemical Analyser, Pune, with constable Mali with letter as per copy Exhibit 83. Yadi was writtento the military authorities to send the original confessional statements to the police station but the same was sent to the Public Prosecutor, Sangli. On 16-5-1983 the specimen hand writing as per Exhibit 83 and the letter (muddamal article 20) were sent to the hand writing expert at Pune for comparison and opinion. Further, it is stated that Sub-Inspector Patil (P.W. 36) went to the military camp, Aundh, Pune, and there the Quarter Master, Ghadage, produced from the box ot respondent-accused Vinayak one diary (muddamal article 33) which was attached by drawing a panchanama (Exhibit 49). It was found that pages of diary bearing the dates from 13th September to 16th September were missing. The photograph of respondent-accused Vinayak was found affixed on the first page of the diary. One card size photograph of actress Hema Malini was also found in the diary and there were some contents written on the reverse of the photograph. Some contents were written in the green diary (muddamal article 33). The diary and the photograph of Hema Malini were sent to the finger print and handwriting expert, Pune, with a letter as per Exhibit 66. Sub-Inspector Patil (P.W. 36) received report of the Chemical Analyser regarding the blood group of respondent-accused Vinayak and respondent-accused Baban as per Exhibit 85 and in respect of the muddamal articles as per Exhibit 86 respectively on 10-7-1983 and 25-9-1983 respectively. He received the report of the hand writing expert on 28-8-1983 as per Exhibit 75. Thereafter, on 21-10-1983 Sub-Inspector Patil (P.W. 36) filed charge-sheet in the Court of the learned Judicial Magistrate, First Class, Kavathe-Mahankal, against the respondents-accused who committed the case to the Court of Sessions, Sangli.
8. After recording the evidence, the learned Additional Sessions Judge, Sangli, (as he then was) framed the following points for his considerations and decided the same with his findings :-
1. Whether it is proved by the prosecution that Vimal, the wife of accused No. 1, met homicidal death on 10-2-1983? In the affirmative.
2. Whether it is proved by the prosecution that accused Nos. 1 and 2 committed murder of Vimal in furtherance of their common intention by causing her death? Not proved.
3. Whether it is proved that accused Nos. 1 and 2 knowingly or having reason to believe that offence of murder of Vimal punishable with death was committed, did cause the evidence of the said offence to disappear by carrying the dead body in a trunk within limits of village Pusegaon and by cutting it from the head and throwing it into the well? Not proved.
4. Whether accused Nos. 1 and 2 did so with intent to screen the real offender from legal punishment? Not proved.
5. Whether this act was committed by the accused in furtherance of their common intention Does not arise.
6. What offences are committed by accused Nos. 1 and 2? No offence proved against any of the accused.
9. After considering prosecution evidence, the learned Judge has finally held that the prosecution has failed to prove the charges against the respondents-accused and, therefore, acquitted them for the offences with which they have been charged by his judgment and order dated 31st March 1984. Hence this appeal by the State against the impugned order of acquittal.
10. Heard Mr. V.T.Tulpule, learned Public Prosecutor for the appellant-State, and Mr. R.S. Mohite, learned Counsel for the respondents-accused.
11. It appears that this is a very gross and gruesome case of murder, in the rarest in rare cases in its kind. However, we cannot be oblivious of the fact that we are dealing with an appeal against the order of acquittal. Unless we come to a conclusion that the impugned judgment and order is perverse and that appreciation of evidence is faulty and that there is a patent illegality attached to the impugned judgment and order, we cannot upset the judgment and order of acquittal. : 1976CriLJ638 and : 1976CriLJ685 .
12. In this case, the prosecution story is in two fold based on two sets of evidence.
Firstly :
Extra judicial confession (Exhibit 73) of respondent-accused Vinayak before theArmy Officers
Secondly :
Circumstantial evidence emerged from the discoveries of the dead body in two parts viz.,
(a) trunk and head found from two different wells; Accidental discovery of trunk from one well by P.W. 9 Suresh and discovery of missing head of Vimal from another well at the instance of respondent-accused Vinayak and some incriminating muddamal articles like letter (muddamal Article 20) and diary (muddamal Article 33).
(b) The motive behind committing the murder of Vimal, wife of respondent-accused Vinayak.
13. Before we discuss the prosecution evidence in the tight of settled principle of law, we must first consider the findings of the learned trial Judge held to be proved in favour of the prosecution but not relied. They are -
(a) The motive behind committing the murder has been established by the prosecution (Page 297 fine No. 20); by relying on the handwritings on muddamal article 20 letters and muddamal article 33 diary, which were held to be proved as that of respondent-accused Vinayak.
(b) The statement of extra judicial confession (Exhibit 73) held to be voluntary (page 300 line No. 20).
(c) Recovery of head at the instance of respondent-accused Vinayak (pages 310 and 311 line No 25).
14. However, Mr. Mohite, learned Counsel for the respondents, has submitted that he does not agree with the findings of the learned Judge. He has further submitted that the extra-judicial confession is a weak piece of evidence and if at all it is to be relied, it must be relied as a whole and the prosecution evidence must be read and appreciated as it is and no new prosecution story can be advanced in an appeal against acquittal. In support of his aforesaid submissions, he has relied on the following authorities :-
(1) : 1976CriLJ706 ;
(2) Shambhoo Missra v. State of Bihar, : 1991CriLJ395a ;
(3) Dorab Cawasji Warden v. Coomi Sorab Warden, : [1990]1SCR332 ;
(4) : AIR1988SC1705 ;
(5) : 1994CriLJ245 ;
(6) Ratan Gond v. State of Bihar : 1959CriLJ108 ;
(7) Hanumant v. State of M.P., : 1953CriLJ129 ; and
(8) 1974 S.C.C. 745.
15. It has been held by the learned trial Judge that though the extra judicial confession (Exhibit 73) was voluntary, it is not acceptable as it is not consistent with the medical evidence. Secondly, there is no reference of the name of respondent-accused Baban Shankar Suryavanshi. Thirdly, probability of carrying the dead body in a trunk is doubted. On all these three counts, the learned trial Judge has not believed the said statements in the extra judicial confession (Exhibit 73) made by respondent -accused Vinayak as true.
16. In the instant case, the source of prosecution evidence is based firstly on the extra judicial confession (Exhibit 73). Therefore, it would be necessary for us to go back to the contents of the extra judicial confession which is in the hand writing of respondent-accused Vinayak and signed by himself and it is also attested by the four officers. It is an admitted fact that respondent-accused Vinayak was serving as a sepoy in the military at Pune. He was allotted duty on 9th and 10th February 1983 along with 14 other sepoys for 24 hours in rotation. It appears that respondent-accused Vinayak was absent on 9th and 10th February 1983 and he reported for duty on 11th February 1983. It appears from the record that the explanation for his absence from duty was given to the effect that he had gone to his sister's house at Akurdi, Pune, but the same was not found satisfactory and he was punished for it under the Army Act. A trunk of a female body was found from the well on 13th February 1983. However, it was not identified by anybody as that of Vimal, the wife of respondent -accused Vinayak and nobody suspected that her murder was committed by her husband, the respondent-accused Vinayak. The respondent-accused Vinayak was admittedly on his duties on 13th February 1983 from 1.00 p.m. The investigating agency was in search of the head which was separated from the body and was not found from the same well. On 17th February 1983, as per the evidence of Captain Deshpande (P.W. 32), the respondent-accused Vinayak himself had come to him and disclosed the fact and made a oral confession of commission of the murder of his wife Vimal before him and other three officers viz; Mr. A.S. Gill, the Major; Subhedar Raghuvir Savant and Havaldar Dhond but the said Officers insisted him to put the same in writing. According to P.W. 32, the respondent-accused Vinayak then reduced the same (Exhibit 73) into writing in his own hand writing and gave it to the military officers. Till that time, nobody was suspecting him of committing any such serious crime. On 17th February 1983, on receiving this extra judicial confession (Exhibit 73), the military officials reported the same to the Superintendent of Police, Satara. It is also in evidence of P.W. 32 that the army authorities sought legal opinion from the legal officer. On coming to know about the said extra judicial confession, the Police Sub-Inspector Mohite (P.W. 34) went to the military camp and requested to hand over custody of respondent-accused Vinayak but custody was refused. Therefore, the Investigating Officer Patil (P.W. 36) obtained a warrant from the Court of Judicial Magistrate and went with that warrant to the military camp on 5th March 1983 and thereafter the respondent-accused Vinayak was arrested on the very same day. Till respondent-accused Vinayak was arrested., he was kept under watch in the guard room. It appears, from the record that the extra judicial confession (Exhibit 73) came in possession firstly of the military authorities 17-2-1983 and then of the InvestigatingPolice Officer on 27-2-1983. This leads us to believe that whatever confession respondent-accused Vinayak had made before the military authorities was voluntary before his arrest and without any threats or coercion That apart, it is not the defence case of respondent-accused Vinayak that it has been obtained under any threat or coercion. However, in the statement recorded under section 313 of the Criminal Procedure Code, respondent -accused Vinayak has stated that the military officers have brought this document to him and obtained his signature. There is no allegation that the military officers were biased against him. If it were a retracted statement and the military officers were biased, they might have arrested him and prosecuted him under the Army Act on the basis of the said extra judicial confession. However, they did not act upon that but waited for a pretty long time till the Investigating Officer obtained arrest warrant against the respondent-accused Vinayak and arrested him on 5th March 1983. Till then, he was kept under watch in a guard room and thereafter the said statement (Exhibit 73) was sent to Public Prosecutor, Sangli, on 22-3-1983 by the Army Commander. It is submitted by Mr. Tufpule, learned Public Prosecutor, that the learned Judge has committed a serious error of law and fact in not accepting the statement (Exhibit 73) as true statement of respondent- accused Vinayak and that the reasoning of the learned Judge is absolutely perverse. Therefore, question raised before us is as to 'whether the statement of extra judicial confession (Exhibit 73) is a valid document under section 24 of the Evidence Act and it could be used against the accused a maker of the document'? It is a settled law that the requirement of legal evidence must be complete before coming to a definite conclusion in a criminal prosecution. The legal position in the matter of a case like this, which rests on the sole prosecution evidence mainly based on extra judicial confession made under section 24 of the Evidence Act, has been considered by the Apex Court in various cases.
17. The Supreme Court in the case of State of U. P. v. Deoman Upadhyaya, reported in : 1960CriLJ1504 , has observed thus:-
'.....The extra-judicial confession made by an accused before he is arrested orafter he is released on bail is certainly relevant evidence to the case.'
In the case of Subramania Goundan v. The State of Madras, reported in 1958 Supreme Court Reports 428, the Supreme Court has observed thus :-'
'.....A confession of a crime by a person, who has perpetrated it, is usuallythe outcome of penitence and remorse and in normal circumstances is the best evidence against the maker.'
In the case of State of U.P. v. M.K. Anthony, reported in 1985 Supreme Court Reports 48, it has been observed by the Supreme Court thus: -
'There is neither any rule of law nor of prudence that evidence furnished by extra -judicial confession cannot be relied upon unless corroborated by some other credible evidence. The courts have considered the evidence of extra-judicial confession a weak piece of evidence. If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militateagainst it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra judicial confession can be accepted and can be the basis of a conviction. In such a situation, to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. It the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach, the same can be relied upon and a conviction can be founded thereon.'
18. In the light and spirit of this settled principle of law, while appreciating the statement of extra -judicial confession in question (Exhibit 73), it is necessary to peruse the said extra-judicial confession which is reduced in writing by the respondent-accused Vinayak himself in Marathi language and its translated version reads as under:-
'I, Shipai No. 277/892, am giving in writing as to how I killed my wife as her behaviour 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 straightaway came to bus stand and went to Satara by bus. While going I was carrying one steel box, one Kukari and one rug. With these luggage I reached home at 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. At that time my mother also woke up. I did not allow anybody to talk. 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 tin box which I had taken with me and covered with rug. Then at 2.30 a.m. I came to bus stop at the plateau of Ghat Nagare which is 21/2 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 truck and came to Miraj. I came to Miraj Railway Station at 10.00 a.m. on 10th. Again at 10.25 a.m. I boarded a train and got down at Koregaon. After getting 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 8 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 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 threw it in the well. Then again I came back near the box. I wrapped the head in a cloth and with that head went near other well. Then I tied two stones with that head and threw it in the well. Then I tied the thumbs in a cloth and put them in pocket. I washed the box and kukri in the well. At that time one truck came from Puregaon. I came to Satara S.T station at 10.30 p.m. at night in thattruck. 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 threw the thums and Kukari and flushed It. At Aundha Phata t 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 Shirvaji Pol
No. 277/892
Sd-
17/2/1983'
19. This is a document coming from the custody of the military authority against whom no allegation of bias or coercion is made and it is the prosecution case that after obtaining copy of Exhibit 73, the investigation commenced further in the direction as stated therein. The very important missing link has been completed by discovery of head of deceased Vimal at the instance of the respondent -accused Vinayak. On his arrest, the respondent-accused Vinayak made a statement before the panch (P.W.18) that he will show the place where the head of deceased Vimal was thrown by him in the following words:-
' I will produce the head of my wife Vimal.'
P.W. 18 Madhukar has stated in this evidence.
'The accused in our presence stated that he will show the well in which he hasthrown the head.'
Accordingly, the head was discovered from the well. This discovery was at the instance of respondent-accused Vinayak and it was in the exclusive knowledge of Vinayak as to where the head was tying. This evidence is held by the learned trial Judge to be proved by the prosecution and we are concurring with the said finding.
20. It is pertinent to note that the confessional statement came to be submitted to the military officers on 17th February 1983 after the trunk of the female was found from the well. This confessional statement has been challenged by the defence Counsel on the ground that it is contrary to the medical evidence and respondent-accused Vinayak has not mentioned the name of respondent-accused Suryavanshi in this confessional statement. The medical evidence shows that the injuries found on the body of deceased Vimal were anti-mortem. Before the trial Court, as per the prosecution, the body was carried in a tin box and according to the defence Counsel, it was not possible to accommodate a body in a trunk like Article 16 and after 18 hours of travelling, no living body could survive in the trunk. In our opinion, the learned trial Judge has lost sight of the other side of the medical evidence. It is the medical evidence that the body was found in complete decomposed condition. In the postmortem note (Exhibit 54) in column 18(a) it has been mentioned thus:-
'18(a): Can you say definitely that the injuries shown against Serial Nos. 17 and 18 are ante-mortem injuries:
Ante-mortem injuries.
In Exhibit 55, postmortem notes, in column 18(a), it has been mentioned thus:
'18(a): Can you say definitely that the injuries shown against Serial Nos. 17and 18 are ante-mortem injuries? No, due to severe decomposition with mutilation of margin and inner surface by matter creatores.'
21. This is the report of the postmortem notes. In his evidence also, P.W. 20 has stated that the head was severely decomposed. Despite this postmortem report, the doctor (P.W 20) has opined that the injuries were anti-mortem injuries.
22. Mr. Mohite, learned Counsel for the respondents, has emphatically submitted that in view of the medical opinion, that the injuries found on the body were anti-mortem, and further that the murder has been committed at Koregaon, which is also corroborated by Exhibit 73, the area of commission of the offence will be Sangli and not Satara and, therefore, the prosecution is vitiated and deserves to be quashed. In support of his arguments, the learned Counsel has relied on the following authorities.:-
1. : 1976CriLJ706 .
2. : 1991CriLJ395a .
3. : [1990]1SCR332 .
22A. In the instant case, the prosecution has not introduced any new theory of committing murder. The learned Public Prosecutor has argued on the basis of medical evidence which shows that the injuries were ante-mortem. It is found that the food consumed by deceased Vimal was digestive food which the deceased might have taken 7-8 hours before she died. We cannot take the opinion of the doctor as a definite opinion. The postmortem notes speak that the body was in decomposed position and hence, in our opinion, it was not possible to give any definite opinion regarding the cause of death and the injuries, whether it was ante-mortem or post-mortem. This conclusion of ours is strengthened by the fact that in the post mortem notes regarding head, it is observed that due to severe decomposition, no definite opinion can be given as to whether injuries are ante-mortem or post-mortem. Normally, when the head is severed and separated from the body, it would be a presumption that because of head injury, the person might have died and that would be the cause of death. As the trunk of the body was in highly decomposed position, the mark of throttling might have not been noted by Dr. Suresh (P.W. 20). Unfortunately, the prosecution has not examined the doctor on this point. Mr. Mohite, learned Counsel for the respondents-accused, has argued that in view of the argument of the learned Public Prosecutor regarding the time and place of committing the murder of deceased Vimal, it would create doubt regarding the contents of the extra judicial confession (Exhibit 73). Learned Counsel has also submitted that the extra judicial confession must be accepted as a whole and cannot be accepted in part. We are unable to agree with the submission of Mr. Mohite in view of the settled law. In the case of Nishi Kant Jha v. State of Bihar, reported in : 1969CriLJ671 , it has been observed thus :-
'It is permissible to believe one part of a confessional statement, and to disbelieve another, and it is enough that the whole of the confession is tendered in evidence so that it may be open to the Court to reject the exculpatory part and to take inculpatory part into consideration if there is other evidence to prove its correctness.'
Further, in the case of Piara Singh v. State of Punjab, reported in : 1977CriLJ1941 , it has been observed thus :-
'Law does not require that the evidence of an extra judicial confession should in all cases be corroborated. Thus, where the extra judicial confessionwas proved by an independent witness who was a responsible officer and who bore no animus against the appellants, it was held that there was hardly any justification for the Sessions Judge to disbelieve the evidence of such a witness particularly when the extra judicial confession was corroborated by the recovery of an empty cartridge from the place of occurrence.'
23. It has been submitted by Mr. Mohite, learned Counsel for the respondents-accused, that if there are two contrary prosecution stories advanced by the prosecution, then both must be discarded and the accused is entitled for the benefit. He has relied on a ruling in Harchand Singh and another v. State of Haryana, reported in : 1974CriLJ366 , wherein it has been held thus :-
'Two accused were arraigned in the assault on the deceased as a result of which the latter died. The prosecution in support of its case examined two sets of eye-witnesses. The evidence of one set consisted of the testimony of three eye-witnesses who were not present at the time of the occurrence according to the fourth eye-witness who according to the prosecution case was with the deceased at the time of the assault. This fourth eye-witness was also shown to be an unreliable witness by the other evidence produced by the prosecution. Held, it was a case wherein one set of evidence condemned the other set leaving the Court with no reliable and trustworthy evidence upon which the conviction of the accused might be based.
24. So far as evidence of extra judicial confession is concerned, in our opinion, taking into account the overall prosecution story and the evidence found to be satisfactory, it can be relied and conviction can be based on it: infirmities in the prosecution oral evidence cannot affect the material part of the extra judicial confession. In a case like this, viz., discovery of two parts of body (trunk and head) separately in decomposed condition, medical evidence as regards ante-mortem or postmortem injuries becomes immaterial and conviction can be safely based on this evidence alone. This view of ours is supported by the Supreme Court in the case of Manguli Devi v. State of Orissa, reported in : AIR1989SC483 , wherein it has been observed thus :-
'.....The confessional statement recorded by the 1st Class Magistrate hasbeen rightly held to be correct inasmuch as in accordance with the statement, the dead body was recovered from a room of the deceased's house after removing the earth on the pointing out of place by the appellant where the corpse was buried by the appellant herself. This dead body was recovered in the presence of P.W. 6, who is the Tahsildar. Secondly, the dead body was in a highly decomposed state as it was recovered after 10 days from the date of dumping the dead body under earth and as such the injuries on the dead body were not clearly visible and it is not possible for the doctor, P.W. 5, who held the post-mortem examination, to see all the injuries on the person of the deceased. The evidence of the doctor was not very relevant in this connection as has been held by the High Court Moreover, the confession made by the appellant herself clearly proved that the crime was committed by her. In such circumstances, the finding of the High Court convicting the appellant under section 302 I.P.C. is unexceptionable and the sentence of imprisonment for life was properly imposed on her.'
25. However, the prudent view under the Criminal Jurisprudence is that the prosecution evidence must be impinging and not a slightest doubt not to be left out in the mind of the Court. Therefore, we have seriously considered the above circumstantial evidence which also fully corroborates the extra judicial confession if any corroboration is required. In particular, the discovery of the missing head of Vimal at the instance of respondent-accused Vinayak is a very material and strong circumstantial evidence, which fully corroborates the material part of the extra judicial confessional statement, to prove the guilt of murder. Moreover, the panchanama of the trunk of Vimal (Exhibit 14) also fully corroborates the extra judicial confession on material part that head was severed and thumbs were cut. Under the facts and circumstances, we are unable to agree with the above submission made by Mr. Mohite, learned Counsel for the respondents-accused.
26. If we appreciate the circumstantial evidence, the motive of respondent-accused Vinayak behind committing the murder of his wife Vimal, in our opinion, is established from the letter (muddamal article 20). The original letter is in Marathi language written by respondent-accused Vinayak himself to respondent-accused Baban and the translation thereof is as under :-
'Dear Friend Baban Suryawanshi,
Greeting from your unfortunate friend.
The reason for sending your letter is because I have received your letter about 8 to 10 days back but I was not able to reply, Dear Baban as I was helpless.
I am at present working as a flag guard in brigade. I came here on the nextday of your departure.
Friend, tell me truly are you my dear friend Do you love me
Friend, will you not forgive your friend I am sure, you will forgive me.
Baban, just read what I have written above.
Dear Baban, I have definitely deceived you. You understand or not that I have deceived you I have deceived not you but I myself does not matter. I did not come down not because that work is cancelled, there is a fire burning in my body.
Buban, I am writing truly that I will come to your home between 7th and 12thFebruary in these six days anytime. I will definitely come, do not take itas joke. If I do not come then take it that Vinayak has left this world.O.K. Baban, I have no money. You help me and carry with you box, plastic bag,kukari keep ready.
Also see that canal and come also the place where pieces are to broken. Dear Baban, the child in her womb is not mine.
By your dear friend
Vinayak'
27. This letter was written by respondent-accused Vinayak himself disclosing the plan of killing his wife Vimal as he was suspecting her character. The pages of this letter undoubtedly are the same which were found missing from the diary (article 33) produced by the Quarter Master of the Military. This leads us to believe that there was plan with definite intention to kill his wife Vimal, and he sought help of his friend, respondent-accused Baban. It is true that we do not find any reference or mention of respondent-accused Baban in exhibit 73. But it reveals from the record and theevidence of P.S.I. Patil that the name of respondent-accused Baban Suryavanshi transpired during the interrogation of respondent-accused Vinayak after his arrest. We do not find any reason for not believing this evidence. Once it is held proved that the contents of this letter are written by respondent-accused VinayaK disclosing his mind and motive behind planning to commit murder of his wife, this leads us to believe without any slightest doubt that respondent-accused Vinayak has a very strong motive which is held to be proved by the prosecution. We are unable to agree with the findings of the learned trial Judge which are not only perverse but appears to be total ignorance of law and/or wrong notion of law, which results into gross miscarriage of justice in this case. The order of acquittal is liable to be quashed and set aside and respondent-accused Vinayak is held to be guilty for offences punishable under sections 302 and 201 I.P.C. However, there is no sufficient legal evidence against respondent No. 2 accused No. 2 to directly connect him with the offence.
28. In the result, the appeal against respondent-accused Suryavanshi is dismissed. The appeal against respondent-accused Vinayak is allowed and the order of acquittal is quashed and set aside and respondent-accused Vinayak is convicted for the offence punishable under section 302 I.P.C.
29. Having found respondent-accused Vinayak guilty for killing his wife Vimal punishable under section 302 I.P.C., he was directed to remain in Court. He appeared in the Court and we heard him on the question of sentence. He has submitted a written statement praying for mercy. He has been heard in person also. It has been submitted that he had committed the crime in the year 1983 and he has been acquitted in the year 1984. Till then he remained in jail. After his acquittal, he remarried with one Vijaya and out of that wedlock he has got two minor sons. He is serving in military and during the period from 1984 to 1997 he has not committed any crime. Not only that, he has also been given higher position in his service and has reached upto the post of Hawaldar. He has old aged parents and he is looking after them. He is the only earning member in his family.
30. Further, Mr. Mohite, learned Counsel for the respondent-accused Vinayak, has submitted that sentence of death is not required in this case in view of the fact that respondent-accused Vinayak was acquitted by the trial Court in 1984 and since then he has remarried and has settled in his life. In support of his submission, learned Counsel has cited the following authorities :-
1. State of M.P. v. Dhirendra Kumar, : AIR1997SC318 .
2. State of Maharashtra v. Manguli Dhavu Kangil, : 1972CriLJ570 .
3. State of U.P. v. Lalloo : 1986CriLJ546 .
4. Neelakantan and Bros. Construction v. Superintending Engineer National Highway : AIR1988SC2045 .
5. State of Haryana v. Sher Singh : 1981CriLJ714 .
6. Rajendra Prasad v. State of U.P 1979(3) S.C.C. 683.
The submission of the learned Counsel, in short, is that in view of the decision taken by the Apex Court in the aforesaid cases in awarding the extreme penalty of death after a lapse of time, the gap between the commission of offence and the time of awarding punishment requires to be considered at the time of awarding the extreme penalty. The learned Counsel has also submitted that in the case of acquittal by the trial Court and conviction by the High Court on two contrary views, normally lessersentence is imposed. We have gone through the above cited authorities and we are in full agreement with the views expressed by the Apex Court therein. However, it all depends on the individual case based on the peculiar facts of each case.
31. We are conscious that in the case of conviction under section 302 I.P.C., the punishment for life is a rule and sentence to death is an exception and in the gravest of grave case and/or rarest of rare case, the judicial discretion compels the Court to execute the extreme penalty. In the case of Bachan Singh v. State of Punjab, reported in : 1980CriLJ636 , the Supreme Court has observed thus :-
'The provision of death penalty as an alternative punishment for murder in section 302 Penal Code is not unreasonable and it is in the public interest. Therefore, it can be held that the impugned provision in section 302 violates neither the letter or the ethos of Article 19 of the Constitution.'
32. Simultaneously, we are also conscious that we should not be swayed by our own convictions. We must never allow our individuality to overshadow or supersede the philosophy of our Constitution ensured under Article 21 of the Constitution. However, if is held by the Supreme Court in number of cases that death sentence does not violate Articles 19 and 21 of the Constitution of India. We are equally concerned with the view expressed by the Apex Court in the case of Allaudin Miya v. Slate of Bihar, reported in 1989(3) S.C.C. 16, wherein it has been observed thus :-
'It must, at once be conceded that offenders of some particularly grossly brutal crime which send tremors in the community have to be firmly dealt with to protect the community from the perpetrators of such crimes where the incidents of a certain crime is rapidly growing and is assuming managing proportions, for example, acid pouring or bride burning, it may be necessary for the courts to award exemplary punishment to protect the community and deter others from committing such crimes. Since the legislature in its wisdom thought in some rare cases, it may still be imposed penalty to deter others and to protect the society and in a given case to the society.'
33. We have anxiously considered the gravity of the offence held to be proved against the culprit Vinayak who is serving in the Army as Sepoy, has killed his wife Vimal in a very brutal and barbarous manner. Deceased Vimal was an educated and cultured young woman of age 20-22 years and a mother of a child. She has taken training of Montessory Course and was ambitious to go for Montessory service. However, respondent-accused Vinayak was suspecting her character and fidelity without any basis of suspicion. He premeditated to kill her and a plan for killing her was designed and implemented in a very brutal and barbarous manner that after throttling, her body was put in a trunk, taken to some remote place, head was severed, rather slaughtered, and separated from the body, even thumbs were cut and her body (trunk) was thrown in one well and the head in another well. It is a gruesome murder of a young innocent and helpless woman who was suffering from tuberculosis. We feel, this is a gross and gruesome murder case, the gravest of grave cases and rarest of rare cases in its kind; knocking our judicial conscience, which should be condemned and the perpetrator of the crime should be awarded the extreme penalty of death provided under section 302 of the Indian Penal Code. We cannot keep our eyes shut over the cases of atrocities on the women rapidly growing shamelessly and fearlessly.It is our misfortune that helpless society is watching it as a silent spectator. The history speaks of human mind attitude towards women since its inception which remained unchanged. We are not against the arguments promulgated by philosophers and the champions of human rights against the capital punishment, death, but so long as it is on the statute book of the penal law, culprits cannot lake it for granted that law is blind and helpless. Culprits must be aware that the vision of the law is powerful and the blade of a weapon in the hands of the Court is sharper than the culprits. It protects the innocents and punishes the culprits. No culprit can escape from the blow of the jaw.
34. In the instant case, murder was committed in 1983, culprit was acquitted in 1984 and since then he enjoyed all liberties as a free man of the society and we have been told that he has remarried and settled in life. Unfortunately, under the system of our judiciary, this appeal of 1983 came to be heard in 1997, after 13 years. It does not matter, after the commission of the offence, whatever greatness he might have achieved. However, we will not allow ourselves in our judicial discretion to be party to 'delay defeats justice'. In the case of Sher Singh and others v. State of Punjab, reported in : [1983]2SCR582 , it has been observed thus :-
'......The death sentence should not, as far as possible, be imposed. But, inthat rare and exceptional class of cases wherein that sentence is upheld by the Supreme Court, the judgment or order of Supreme Court ought not to be allowed to be defeated by applying any rule of thumb.'
Further, in the case of Munawsar Harun Shah v. State of Maharashtra, reported in : 1983CriLJ971 , it has been observed thus :-
'.....having regard to the magnitude, the gruesome nature of the offences andthe manner of perpetrating them, this case, in all the facts and circumstances, must be regarded as falling within the rare of the rarest category and the extreme penalty of death is clearly called for. Any leniency shown in the matter of sentence would not only be misplaced but will certainly give rise to and foster a feeling of private revenge among the people leading to destabilization of the society. In the circumstances, no leniency is called for in this case.'
35. It may be noted here that Mr. Tulpule, learned Public Prosecutor, at the time of his arguments from the very beginning has urged that as this is a gross case of murder, the respondent-accused Vinayak be sentenced to death. However, the learned Public Prosecutor has urged today for the reasons best known to him that a lesser penalty be imposed on the respondent-accused Vinayak. We are not agreeable with the learned Public Prosecutor for the reasons noted above. We must compliment Mr. Mohite, learned Counsel for the respondents-accused for maintaining the dignity of the Court while arguing such a sensitive and serious case with calmness and patience.
36. After giving a serious thought and consideration to the gross and hard facts and circumstances of this case as observed above, this case falls in the category of the gravest of grave and rarest in rare cases. It does not allow our judicial conscience to show any mercy towards the culprit Vinayak for awarding lesser sentence than death. Therefore, the culprit, respondent-accused Vinayak is sentenced to death. He should be hanged till death,
37. On oral request made by Mr. Mohite, learned Counsel for the respondent-accused Vinayak, the execution of the sentence of death is stayed for a period of 120days from today for enabling the respondent-accused Vinayak to move the Supreme Court. The respondent-accused Vinayak, who is present in Court, be taken into custody from the Court and he be kept in jail during this period. Issuance of certified copy be expedited.
38. State appeal allowed.