Dhawal Khairnar (Patil) Vs. State of Maharastra  Insc 649 (12
Shah , R.P.Sethi Shah, J.
APPEAL NO.489 OF 2001 State of Maharashtra
Appellant Versus Sandeep @ Babloo Prakash Khairnar (Patil) Respondent
Case No.152 of 1999, by judgment and order dated 19.5.2000, Additional Sessions
Judge, Nasik convicted Prakash Dhawal Khairnar Patil (A-1) and Sandeep @ Babloo
Prakash Khairnar Patil (A-2) for the offence punishable under Sections 302,
120-B, 201, 397 read with Section 34 of the Indian Penal Code and under Section
25(1)(b)(a) of the Arms Act read with Section 120-B of Indian Penal Code. Both
the accused were sentenced as under:-
For the offence punishable under Section 302 read with Section 120-B IPC
sentenced to death.
For the offence punishable under Section 397 read with section 34 IPC to RI for
two years and to pay a fine of Rs.1000/-, in default of payment of fine to
further undergo imprisonment for six months;
For the offence punishable under section 25(1)(b)(a) read with Section 3 of the
Arms Act, read with Section 120-B of IPC to RI for three years and to pay a
fine of Rs.1000/-, in default of payment of fine to further undergo
imprisonment for six months;
For the offence punishable under Section 201 IPC to undergo RI for seven years
and to pay a fine of Rs.1000/-, in default of payment of fine to further
undergo imprisonment for six months;
aggrieved by the said judgment and order accused preferred Criminal Appeal
No.400 of 2000 before the High Court of Bombay. For confirmation of death
sentence, the matter was referred to the High Court which was numbered as
Confirmation Case No.3 of 2000. After considering the evidence on record in its
entirety, the High Court dismissed the appeal filed by A-1 Prakash Patil and
confirmed his conviction under Section 302 IPC and maintained the death
sentence. The Court also convicted him under Section 25(1)(b)(a) of the Arms
Act and maintained the sentence. The Court set aside the conviction of the
accused under Section 397 read with Section 34 IPC. However, the High Court
partly allowed the appeal filed by A-2 Sandip Patil and acquitted him from all
the charges except the one punishable under Section 201 IPC and reduced the
sentence to the period already undergone. Against the said judgment and order
dated 7.12.2000, A-1 has preferred Criminal Appeal Nos.238-239 of 2001 and the
State of Maharashtra has filed Criminal Appeal No.489 of 2001 against the
acquittal of A-2.
this case, dispute of partition of lands led one brother to anhilate entire
family of his brother and also to commit murder of his own mother. AppellantPrakash
Patil is the father of Sandeep @ Babloo Prakash Khairnar (Patil), A-2. Sandeep
who was then aged 17 years was studying in First Year Engineering and was
staying in a hostel at MIT, Pune. Supadu Dhawal Patil was the real brother of
appellant Prakash Patil. Kesarbai was their mother and Pushpatai was wife of Supadu
Patil and they were having one son Rakesh @ Pappu and two daughters, Poonam and
Rupali alias Buntitai.
Supadu Patil, his wife Pushpatai, mother Kesarbai, daughters Rupali and Poonam
and son Rakesh died due to fire arm injuries on the fateful night of 24th October, 1996. Supadu Patil was working as an agricultural
officer at Malegaon and was staying in his own bungalow
which was constructed at village Soyagaon, which was at a distance of 2 km.
from Malegaon. He was running a nursery in the
field adjoining to his bungalow which was virtually a farm house.
@ Pintya used to sleep in the shed to the northern side which was at a distance
of 225 feets. As per the inspection note, bungalow was at a secluded place.
Sister of Supadu Patil Vijaya Zumbar Patil was also living alongwith her
husband at Soyagaon. A1 Prakash Patil was staying at Nasik with his family
members and was serving in Maharashtra Engineering Research Institute at Nasik
as a Water Analyser (Sr. Scientific Assistant) It is the prosecution version
that on 23rd October, 1996, A-2 Sandeep had gone to the bungalow of Supadu Patil,
his uncle, in Soyagaon, Malegaon, District Nasik to attend the birthday of Rakesh
son of Supadu Patil. There was enmity between Supadu Patil and Prakash Patil
because of dispute for partition of agricultural land. On occasions there were
quarrels and exchange of abuses between them.
Patil who came at the residence of Supadu Patil on 23rd October, 1996, stayed there till morning of 25th October, 1996 and left the house after the incident. Vyankat Pagare PW33
who was Supadu Patil's servant and was residing in a shed stated that he heard
that Buntitai (Rupali) was crying 'aai ga' (Oh mother) and thereafter Kesarbai
saying 'shant ho'. He also heard some fire shots. It is his say that as Supadu Patil
used to kill pigs by his gun, he went off to sleep. At about 6 a.m. when he was
folding his bed, one Suresh who was living in the farm house of Supadu Patil,
came there and told that he went to Supadu Patil's bungalow to bring a bucket
for milking the she-buffaloes and found the door of bungalow to be locked and a
chit kept thereon, on which it was written - "we are all going out of
station. The reason was not to be assigned by us. We are returning on Sunday or
Monday. All work should be stopped". Suresh handed over the said chit to
him. By that time, Subhash who was working with Supadu Patil came there. PW33 Vyankat
Pagare told Suresh and Subhash about what he had heard at night. He took the
chit and asked Subhash to go to Viju Atya, sister of Supadu Patil. On receipt
of the information, Viju Atya came along with her husband, Zumbar Patil.
asked Subhash to call Ashok Anna PW1. On receiving the information, Ashok Anna
and the driver of Supadu Patil came there.
their arrival, Vyankat Pagare informed them about what he had seen. They found
that the doors and windows of the bungalow were closed and the kitchen door was
closed from inside. By pushing the kitchen door, it opened out. They found the
keys of Supadu Patil's van lying on the dining table. One Arun took those keys
by inserting a bamboo through the grill and thereafter went to Lonkhadi, the
house of the parents of Pushpatai. Thereafter, Ashok Anna and others took a
round of the bungalow of Supadu Patil. They pushed the rear door of the window
of the bedroom and entered the house and saw that Supadu Patil and Pushpatai
were lying in a pool of blood. At that juncture, Vyankat Pagare started crying.
Ashok Anna left for informing the police on scooter and telephoned Chavani
police station. Within a short time police came there. They found that six
corpses were lying inside the bungalow. PI More recorded the FIR, prepared
inquest reports and sent the dead bodies for the post mortem.
reddish round shaped leather cartridge belt having 16 empty sockets, 9 live 12
bore cartridges and a 12 bore shot gun were seized.
said articles were sent to the Chemical analyst. Dr. Bharat Wagh PW36 who
performed autopsy on the dead bodies found that the injuries on the deceased
were caused by the fire arms.
26.10.96, while PI More was taking search of the bungalow of Supadu Patil, he
found black coloured pants belonging to Supadu Patil inside which a chit
addressed to Supadu Patil's daughter Poonam was found. He attached it under a panchnama
Ex.48. The said chit was written by Sandeep Patil and bore his address as Room
No. 120, Maharashtra Institute of Technical Boys' Hostel, Paud Road, Kothrud, Mahaganesh Colony, Pune-29.
Consequently, he deputed PSI Ugale to go to Pune and obtained the handwriting
of Sandeep Patil. On 27.10.96, PSI Ugale in the presence of panch Shailendra
Joshi PW4 seized the chit under a panchnama Ex.61 which was taken out by Sandeep
Patil from the wooden cupboard of his room at MIT Hostel, Pune. On 28.10.96,
appellant Prakash Patil and Sandeep Patil were arrested.
the investigation, A-2 Sandeep moved an application dated 8.11.1996 (Ex.113)
before Judicial Magistrate First Class, Malegaon (PW19) for revealing the true
account of the incident. The Magistrate took up the application for consideration
on 9.11.1996 and gave time of 24 hours for reflection. On 10.11.1996, A-2 was
again produced before the Magistrate and as he was willing to give statement,
his statement was recorded after necessary formalities. In his confessional
statement, he has stated as under:- On.19.10.1996, after the studies of his
Engineering Semester were over, he had gone to Nasik. On 21.10.1996 i.e. on Dussehra day, he and his father went
to a shop by name 'Kumar Shirts' for purchasing shirt. He told his father that
he wanted to go to his uncle's house at Soyagaon. His father told him that
there was hearing of the case on 24.10.1996 in Malegaon Court and for that reason and to look for purchaser for sale of
the plot situated in Soyagaon, he would also go to Soyagaon. On 23.10.1996 he
had gone at his uncle Supadu Patil's house. On that day, he told his uncle that
his father would come for the case on 24.10.1996. After having meals etc. and
after watching TV and chatting, he had gone to sleep. On 24.10.1996, as there
was a hockey match, the deceased Rakesh left in the morning at 8.00 a.m. He and Poonam (deceased) studied in the bedroom upto
12.00 noon. Thereafter, his uncle left for
attending the court case. In the afternoon at about 2.15 p.m., Poonam left as she wanted to attend college. Immediately
thereafter, Pappu (Rakesh) came and thereafter between 2.45 and 3.00 p.m., Rupali
and Supadu Patil both had left for agricultural field at Dubhadi by a vehicle
and they returned between 6.30-7.00 p.m. As it was Rakesh's birthday on that
day, Supadu Patil had brought 'pedhas' from outside. Owalani (to move a lamp
bin in a circular motion before God and man) was done before him between 9.00-9.30 p.m. Thereafter, they all had their
meals and had been watching TV. As his uncle and aunt were observing fast on
that day, they did not have their meals. In the night at 10.30 p.m., his uncle, aunt and Poonam went to sleep in the
bedroom. He along with Rakesh and Rupali was watching TV up to 11.30 p.m. At that time, they both went to sleep in the same
room where the TV was kept. As per his habit in the hostel, he spread mattress
next to Rakesh and sat for doing his studies. In the night between 2.00 to 2.15
a.m., he kept the book
on the table and went to sleep on the mattress. However, he could not sleep. At
about 2.30 a.m., he heard his father's voice
calling him. He opened the door. After entering into the bungalow, his father
asked him whether everybody had gone to sleep?' He replied in the affirmative
and asked whether he should wake them up. Thereupon, his father refused him by
saying that he himself would wake them up.
A-1 asked him for his sweater. He shown him a sweater lying in front of the
cupboard in the devghar (the room of the household goods). A-1 put on his
sweater and went to the bedroom and TV room and returned. Thereafter, he
removed sweater and shirt and put on T-shirt which was hanging on the wooden
peg in front of the basin. A-1 again went to the bedroom and he himself (A-2)
went to W.C. When he came out from the W.C. and washed and cleaned his hands
and went to the kitchen room for drinking water, he heard the noise of firing
of bullet from TV room. Immediately, he heard a loud cry of Rakesh shouting
"Aai Ga (Oh mother)", then he heard another round of fire and heard a cry
"Aai", probably of Rupali.
he came near the curtain of TV room, he saw his father wrapping a scarf on his
face, putting on spectacles and holding a gun.
towards the bath room. He saw Pappu was lying on the mattress and Rupali was
lying on the sofa. Both had sustained bullet shots. As he was standing near the
curtain, Poonam came there running and as she could not identify him, she had a
sharp clash with him in which he sustained scratches on his nose because of her
then shook her and apprised of his identity. He thought that his uncle and aunt
would wake up and they might think that he himself had killed them and out of
this fear he tried to go outside through the kitchen door but he could not go
as the door was locked. When he was in kitchen room, he heard his aunt,
grandmother and Poonam saying 'bring vehicle and make a telephone'. He peeped
into the kitchen and saw his uncle going to the bedroom. He also heard the
sound of opening the cupboard. At that time, his father was standing in the
passage in front of the bathroom and W.C. from where he fired a shot.
aunt and Poonam rushed from the TV room and they pushed his father into the
prayer room up to the fridge. There was a sharp clash, during which he heard
the sound of the bullet shot. Immediately, Poonam collapsed on the floor of the
prayer room. He further saw his grandmother going to the bedroom and crying
there. Thereafter, his father went to the bedroom and he heard sound of two
heard the cries of his aunt and grandmother at the same time. His father came
to the kitchen and asked him to prepare for leaving the bungalow. A-1 put off
his spectacle. He (A-2) found tears in the eyes of his father and that he was
frightened. He put on his own clothes and brought his sweater lying in the
kitchen. When he was keeping his white shirt, hanging on the string, in his
bag, his father had gone to WC. His father came out from WC wearing slippers
and went to the bedroom. He followed him to see as to what his father was doing.
father wiped the gun with a handkerchief and hung the same on the nail. He put
the cartridge belt in the Godrej cupboard. Thereafter, he collected keys lying
on the floor near the cupboard and came out from the bedroom. At that time, he
started putting on his shoes kept beneath the basin opposite the bathroom. At
that time, his father partially shut the door to open the cupboard kept behind
the door of the devghar. For that purpose, he pushed aside his suit case which
was kept nearby. He could not see as to what he took out from the cupboard.
When he was putting on his socks, he thought of going to W.C. Hence, he removed
his socks. Thereafter, he went to W.C. and came out within five to ten minutes
and washed his feet and put his shoes. Then, his father handed over to him his
suit case and school bag. His father went to TV room and brought one pen (Reynold)
and paper and asked him to write as per his dictation. When he asked him the
reason, his father got annoyed and threatened him saying that he should obey
his order. Then he wrote the matter in a panic stricken condition. Thereafter,
his father put that pen into his bag. His father further brought a torch from devghar.
Then, they came out of the bungalow. His father closed the door of the
bungalow, locked it and affixed a chit on that lock. On the road, his father
took out bundle of notes of rupees hundred from his pocket in the illumination
of battery and handed over to him. After the boundary of Mala (agricultural
field) was over, his father threw away keys by the side of that road.
went up to Ekatamata chowk on foot. From there, they reached to Malegaon S.T.
Stand by an auto rickshaw. His father was waiting on one side and he went to
enquire as to when the bus would go to Nasik.
that time, it was 5 a.m. Thereafter, they boarded one jeep which was going to Nasik.
His father alighted at Nimani bus stop and he got down at C.B.S. Nasik and
boarded the bus leaving for Pune from Nasik. Thereafter, he reached his MIT
hostel on auto rickshaw.
was some quarrel regarding fare between him and the auto rickshaw driver and he
sustained injury at the hands of auto rickshaw driver. On the same day i.e. on
25.10.1996, in the night between 8 to 8.30 p.m. when he removed the articles
from his bag, he found one blood smeared T-shirt, handkerchief, gloves, a pair
of white slippers and six empty cartridges. He thought that his father might
have kept the said articles in his bag when he had gone to W.C., because his
father had given him the said bag when he came out from the W.C.
dropped the above articles from Mhatre bridge situated on the Karve Road. In
the night between 2.00 am to 2.30 am, police of Kothrud police station took him
to the said police station for making enquiry and PSI Ugale came to Kothrud police
station from Malegaon in the morning to take him away. Thereafter, in the night
of 27.10.1996, he was produced before the Addl. S.P., Malegaon. He told the
incident to him. On 28.10.1996, he was arrested by PW42 Ramesh D. More,
appeal, the High Court has relied upon the following circumstantial evidence to
connect Prakash Patil A-1 with the crime:-
Recovery of blood stained shoes.
Recovery of blood stained shirt and pants on 31st October.
Presence of injury over the right surface of his shoulder.
was seen at Malegaon on 25th October at 5.00 a.m. when he left by taxi of one Uttam
Thethe, PW 15.
considering the aforesaid circumstantial evidence, the Court referred to the
confessional statement of A-2 Sandip Patil as one circumstance connecting A-1 Prakash
Patil with the crime.
learned counsel Mr. Gupte also submitted that assuming that the circumstances
as alleged by the prosecution are proved, they are not sufficient to connect
the accused with the crime. It is his contention that the investigation in the
present case is totally faulty and the investigating officer has only relied
upon the confessional statement without verifying finger-prints at the scene of
true that there is some force in the contention of the learned counsel for the
accused that the investigation in this case is to some extent faulty and the
investigating officer has not tried to collect other evidence after recording
the confessional statement. In our view, both the courts have rightly relied
upon the circumstantial evidence for connecting A-1 with the crime, which is
sufficient to connect the accused with the crime. The circumstances, except the
confessional statement of A-2 Sandeep, even though the learned counsel for the
appellant has taken us through the relevant evidence, we do not think that the
appreciation of evidence by courts below is in any way erroneous. Still
however, in short, we would refer the relevant part of the evidence.
To prove motive, the prosecution examined two witnesses, namely, PW33 Vyankat Pagare
and PW34 Raosaheb Patil. PW33 Vyankat Pagare, who was a servant of Supadu Patil
stated that he knew Supadu Patil's brother Prakash Patil because Prakash Patil
used to visit Supadu Patil. His evidence shows that A-1 Prakash Patil used to
tell Supadu Patil that the land should be partitioned and he should be given
his share and Supadu Patil used to tell him that he would think on it later. On
this score, there used to be quarrels and exchange of abuses between them. It
is the say of Vyankat that whenever Prakash Patil was going to Soyagaon he was
staying at his sister Viju Atya's house and not at Supadu Patil's house. PW34 Raosaheb
Patil, brother-in-law of Supadu Patil has also stated there was illwill between
Supadu Patil and Prakash Patil. His evidence shows that Pushpatai had told him
that the dispute between Prakash Patil and Supadu Patil was on account of
partition of agricultural land. He also stated that about 4 months prior to the
incident, when he had gone to Supadu Patil's house, he found Supadu Patil, Prakash
Patil and son of their paternal aunt talking in the drawing room. When he asked
his sister Pushpatai as to what was going on, she replied that they were
talking about carving of plots and it was the usual dispute.
Pagare, PW33 and Raosaheb Patil PW34 stated that Prakash Patil had threatened
to kill Supadu Patil. The High Court considered that had their relations been
good, then appellant Prakash Patil's wife and daughters would also have visited
Supadu Patil, but the evidence of Vyankat shows to the contrary. The dispute
between two brothers was with regard to partition of agricultural land and
deceased Supadu Patil, it appears, was evading in giving share of the land to
A-1 Prakash Patil.
of blood stained shoes, shirt and pants.
time of his arrest on 28.10.1996, appellant Prakash Patil was putting on blood
stained shoes which were seized under a panchnama. From the evidence of Prabhakar
Shewale, PW7 and PI Ramesh More PW42 and the recovery panchnama of the shoes
Ex.58, it is established beyond doubt that the shoes put on by A-1 were having
blood-stains. The defence version that when Prakash Patil, on learning about
the multiple murders, entered the house, his shoes might have been stained with
blood is rightly not believed by the High Court. The High Court rightly pointed
out that the evidence of PW33 Vyankat Pagare and PW1 Ashok Bachav shows that on
25.10.96 at 1.30 to 2.00 p.m., A-1 Prakash Patil came at the place of the
a perusal of the inquest report shows that it was conducted between 10.45 a.m. to 12.10 p.m.. on 25.10.96. By the time accused Prakash
Patil reached the place of the incident, the six corpses had already been sent for
autopsy and, therefore, there was no reason of his entering inside the house
and seeing them. Further, the shoes were sent to the Chemical Analyst and the
blood of 'A' group, which matched with the blood group of the deceased Kesarbai,
was found on them. The nail clippings of the feet of the appellant-Prakash Patil
were also sent to the Chemical Analyst and blood of 'O' group was found on them
which is that of the appellant-Prakash Patil.
of the blood stained shirt and pants on 31.10.96 from the house of his
brother-in-law Zumbar Patil in Soyagaon.
this connection, evidence of PI More PW42 shows that on 31.10.96 he
interrogated Prakash Patil and during the course of his interrogation, he shown
his willingness to produce the clothes which he had worn at the time of the
incident and stated that he had kept the same in the house of Zumbar Patil.
Consequently, in presence of Panchas Prakash Chitalkar PW2 and Nagesh More PW3
the willingness of Prakash Patil was recorded vide panchnama Ex.55 and at the
house of Zumbar Patil, the appellant produced pants and shirt which were
hanging on the western side of the wall and which were stained with blood.
Blood of 'O' group was found on the said pants.
learned counsel for the appellant, however, contended that the aforesaid
evidence is not reliable because there was no necessity of keeping the said
clothes hanging in the house of Zumbar Patil, his brother-in-law. He contends
that the evidence of panchas and the panchnama become doubtful and could be at
the instance of investigating officer. In our view, there is no reason to
discard the evidence of independent panch witnesses and the courts below have
rightly relied upon the same. In any case, it does not call for any
interference in this appeal.
on surface of shoulder.
Patil was medically examined on 29.10.96 at 6.25 a.m.
Wagh PW36 and he found superficial abrasion with formation of scab with dark colouration
over right superior surface of shoulder 1 inch medial to acromion prominance
one inch in length and the direction was obliquely downward on right side.
According to the prosecution, the said injury was suffered by the accused Prakash
Patil when he was repeatedly firing from the gun during the course of the
incident. The High Court pointed out that neither in his statement under
Section 313 Cr.P.C. nor in the written statement accused Prakash Patil
furnished any explanation as to how he sustained the said injury. The Court
held that the injury is located near that part of right shoulder where the gun
is held at the time of firing and as there was no explanation by the appellant
as to how he suffered it. It was probable that he sustained as a result of the
impact of the gun by repeated firing. The learned senior counsel Mr. Gupte submitted
that courts below have erroneously relied upon the aforesaid circumstance to
connect A-1 with the crime. It is his say that as the accused had lost his
mother, brother and other relatives, he was required to go for cremation and
naturally carry the dead body on his shoulders and, therefore, he must have
sustained that injury at that time. In our view, this so-called explanation
comes for the first time before this Court.
has not given such explanation under section 313 Cr.P.C. or in his written
statement nor such submission was made before the High Court. In this view of
the matter, it is difficult for us to accept it as a reasonable explanation for
the injury sustained by the appellant.
were seen leaving Malegaon after the incident.
the accused left Malegaon on 25.10.96 at about 5 a.m. in the taxi of Uttam Thethe PW15, who has identified them
in the test identification parade conducted on 22.11.96. He stated before the
Court that he is a driver and that he used to carry the bundles of newspapers
from Nasik to Malegaon by a jeep. For this, he was leaving Nasik at about 2.30 a.m. and reaching at Malegaon at 4.45 - 5.00
a.m. After handing
over the bundles of newspapers at Malegaon S.T. stand, he used to take some
passengers for the purpose of his miscellaneous expenses to go to Nasik. On 25.10.1996, A-1 and A-2 had travelled
by his jeep. In our view, there is no reason to disbelieve the evidence of this
witness and the High Court has rightly not given any importance to the
contention raised by the learned counsel for the appellant that the evidence of
PI More reveals that he interrogated witness on 18.11.1996, yet in his
application dated 13.11.1996, Ex.191 for holding the TI Parade, name of the
witness is mentioned by observing that there was some confusion on the part of
witness PI More with regard to the date as the name of the witness is
specifically mentioned in the application dated 13.11.1996. In any case, this
mistake of date would have no bearing on the identification of the accused in
Statement of A-2.
light of the above stated evidence, we may consider the confessional statement
of Sandeep Patil (A-2) which is Ex.116 recorded by the Judicial Magistrate on
10.11.1996. The High Court arrived at the conclusion that the confessional
statement of Sandeep Patil was voluntary and not the result of any duress or
coercion by the police and was recorded by JMFC after due warning and after
giving him sufficient time to reflect whether he wanted to make it.
senior counsel Mr. Gupte submitted that the High Court has given benefit of
doubt to A-2 with regard to conspiracy for commission of murders and,
therefore, as he is acquitted for the main offence, his confessional statement
is not admissible in evidence.
submission, in our view, is without any substance. Firstly, the confessional
statement of A-2 recorded under Section 164 Cr.P.C. by the Magistrate would be
admissible in evidence as accused Nos. 1 and 2 were jointly tried. The said
statement is proved by examining the Magistrate who recorded the same. (Re. Ghulam
Hussain vs. The King [(1950) 52 BLR 508] Only question would beto what extent
it can be used against A-1. In the present case, conviction of A-1 for the
offence for which he is charged is based on circumstantial evidence. Conviction
of A-2 for the offence punishable under Section 201 is also based on
circumstantial evidence and after taking into consideration confessional
statement. The circumstantial evidence which gets corroboration from the
confessional statement of A-2 for connecting A-1 with the crime could be relied
upon. This Court in Aghnoo Nagesia vs. State of Bihar [(1966) 1 SCR 134], held
that confessional statement includes not only admission of the offence but also
other admissions of incriminating facts relevant to the offence such as motive,
preparation, absence of provocation, concealment of weapon, and subsequent
conduct which throw light upon the gravity of the offence and the intention and
knowledge of the accused. The Court also observed that each and every admission
of incriminating fact contained in the confessional statement is part of the
explanation to Section 30 of the Evidence Act clarifies that
"offence" as used in the Section includes the abetment of, or attempt
to commit, the offence. Dealing with the scope of Section 30, this Court in
State vs. Nalini [(1999) 5 SCC 253] has held that a plain reading thereof
discloses that when the following conditions exist, namely,
persons than one are being tried jointly;
joint trial of the persons is for the same offence;
confession is made by one of such persons (who are being tried jointly for the
a confession affects the maker as well as such persons (who are being tried
jointly for the same offence); and
a confession is proved in court, the court may take into consideration such
confession against the maker thereof as well as against such persons (who are
being jointly tried for the same offence).
Court further observed thus:- "In Kashmira Singh vs.State of MP [1952 SCR
526] this Court approved the principles laid down by the Privy Council in Bhuboni
Sahu vs. R. [AIR 1949 PC 257] and observed:
cases may arise where the Judge is not prepared to act on the other evidence as
it stands even though, if believed, it would be sufficient to sustain a
conviction. In such an event the Judge may call in aid the confession and use
it to lend assurance to the other evidence and thus fortify himself in
believing what without the aid of the confession he would not be prepared to
accept." In this case, the High Court has not relied upon the confessional
statement as a substantive piece of evidence to convict accused no.1.
been used for lending assurance to the proved circumstances.
High Court held that the proved circumstances would not involve accused no.2
for the offence punishable under Section 302 IPC and the circumstantial
evidence does not establish that there was any common intention or conspiracy
between the father and the son to commit the offence. However, the Court held
that Sandeep had seen his father committing multiple murders and when he
destroyed the evidence relating to those murders by throwing the articles from Mhatre
bridge on two separate occasions, it was absolutely clear that he did this with
primary object of saving his father and, therefore, he would be liable to be
convicted for the offence under Section 201 IPC.
it cannot be said that confessional statement is wholly exculpatory.
this view of the matter, we would briefly refer to the confessional statement
of A-2 which lends assurance to the circumstantial evidence. Firstly, the
important circumstance that after the incident accused nos.1 and 2 left Malegaon at about 5.00 a.m. in the taxi of PW15 Uttam Thethe. Secondly, A-2 threw
plastic bag containing blood stained T-shirt, handkerchief, gloves, pair of
white sleepers, six empty cartridges in Mhatre Bridge, Pune and on the basis of
information given by him the said bag was recovered near Mhatre Bridge, Pune.
From the bag, the articles mentioned above were found. In the confessional
statement, it is stated that at the time of incident his father has put on
T-shirt which was hanging on the wooden peg in the bungalow. On the T-shirt
blood stains were found of group 'A' and 'O'. Thirdly, A2 also produced a torch
and a blood stained school bag and currency to the tune of Rs.7100/-, which is
proved and gets corroboration from the confessional statement.
it is proved that A-2 came to the house of deceased on 23.10.1996 and left in
the early morning without informing anyone by keeping a chit, which was placed
on the door. Coupled with the aforesaid circumstance, it is to be borne in mind
that at 2.30 a.m. (night-time) he facilitated A-1 Prakash
Patil to enter the house through the kitchen gate without informing anyone. It
appears that he was waiting for his father to come at night time. He did not
make any attempt to save the deceased, who were closely related to him nor
raised any hue and cry when he heard fire shots. From his confessional
statement it is clear that after committing the five murders, when his father
was removing all the evidence from the scene of offence, like wiping the gun
with a handkerchief, putting the cartridge belt in the Godrej cupboard, then
going to the devghar and going to WC, he (Sandip Patil) had ample opportunity
of running out of the house or making hue and cry or informing someone, but he
did not do so. On the contrary, he preferred to wait and watch his father
wiping all the clues from the scene and thereafter left the premises along with
his father. Hence, it would be totally wrong to say that his statement is
exculpatory and the High Court has rightly referred to inculpatory part and has
used the same for lending assurance to the circumstantial evidence brought on
record. In this view of the matter, we confirm the conviction of the accused Prakash
Patil for the offence punishable under Section 302 IPC and under Section 25(1)(b)(a)
of the Arms Act.
counsel for the appellant however submitted that this would not be a rarest of
rare case so as to impose the death penalty.
submitted that because of long standing dispute for partition of the
properties, the incident occurred wherein the act was committed under total desparation.
Further, he submitted that the circumstantial evidence relied upon by the
Court, even if are sufficient for convicting the accused, it is not safe enough
to act upon such circumstances for putting out a life.
the record, it is revealed that accused Prakash Patil did not have any criminal
tendency. He was working as Water Analyser (Sr. Scientific Assistant). The
facts and circumstances of the case reveal that he killed his brother, brother's
wife and children because of frustration, as he was not partitioning the
alleged joint property.
doubt, it is heinous and brutal crime but at the same time it will be difficult
to hold that it is rarest of rare case. It is also difficult to hold that
appellant is a menace to the Society and there is no reason to believe that he
cannot be reformed or rehabilitated and that he is likely to continue criminal
acts of violence as would constitute a continuing threat to the society. [Re: Om
Prakash vs. State of Haryana [(1999) 3 SCC 19]. Even A-2 in his confessional
statement has stated that after the commission of the offence, he found tears
in the eyes of his father, A-1. This may indicate that A-1 may repent for rest
of his life for commission of such ghastly act. However, at this stage, for
imposing appropriate punishment, we would refer to the decision rendered by
this Court in Shri Bhagwan vs. State of Rajasthan [(2001) 6 SCC 296] wherein
while reducing the death sentence to imprisonment for life, Court considered
Section 57 of IPC and referred to the following observations in Dalbir Singh
vs. State of Punjab [(1979) 3 SCC 745 para 14]:- "The sentences of death
in the present appeal are liable to be reduced to life imprisonment. We may add
a footnote to the ruling in Rajendra Prasad vs. State of U.P. [(1979) 3 SCC
646]. Taking the cue from the English legislation on abolition, we may suggest
that life imprisonment which strictly means imprisonment for the whole of the
man's life, but in practice amounts to incarceration for a period between 10
and 14 years may, at the option of the convicting court, be subject to the
condition that the sentence of imprisonment shall last as long as life lasts
where there are exceptional indications of murderous recidivism and the
community cannot run the risk of the convict being at large. This takes care of
judicial apprehensions that unless physically liquidated the culprit may at
some remote time repeat murder.
added)" The Court also observed that though under the relevant Rules a
sentence for imprisonment for life is equated with a definite period of 20
years, there is no indefeasible right of such prisoner to be unconditionally
released on the expiry of such particular term, including remissions and that is
only for the purpose of working out the remissions that the said sentence is
equated with definite period and not for any other purpose. The Court,
thereafter, directed that the accused shall not be released from prison unless
he had served out at least 20 years of imprisonment including the period
already undergone by the appellant. In this case also, considering the facts
and circumstances, we set aside the death sentence and direct that for murders
committed by him, he shall suffer imprisonment for life but he shall not be
released unless he had served out at least 20 years of imprisonment including
the period already undergone by him.
result, Criminal Appeal Nos.238-239 of 2001 filed by A1-Prakash Dhawal Khairnar
is allowed to the aforesaid extent.
Appeal No.489 of 2001 filed by State of Maharashtra against A-2 is dismissed.
SHAH) New Delhi ....J.