BALAJI GUNTHU DHULEversusSTATE OF MAHARASHTRA

                    [2012] 7 S.C.R. 577


                  BALAJI GUNTHU DHULE                              A
                               V.
                STATE OF MAHARASHTRA
             (Criminal Appeal No. 784 of 2008)
                   SEPTEMBER 19, 2012
                                                                   B
[H.L. DATTU AND CHANDRAMAULI KR. PRASAD, JJ.]

       Penal Code, 1860 - s. 302 - Conviction under - Challenge
to - Death of one person in course of a quarrel - Trial court
convicted accused-appellant and two other accused u/s. 302         C
rlw s. 34 based on the evidence of PWs 4, 5, 7, 8 and 10 - High
Court acquitted the other two accused but convicted the
appellant u/s. 302 - High Court rejected the evidence of PWs
4, 5, 7 and 8, but confirmed the order of trial court primarily
based on the evidence of PW10 - High Court came to the             o
conclusion that since PW10 had taken the deceased to the
hospital, he could have been present at least after the incident
- To come to a conclusion that PW10 was present at the time
of the incident, the High Court relied upon the statement
made by appellant u/s. 313 CrPC - Held: The statement of the       E
accused recorded u/s.313 CrPC cannot be put against the
accused person -The statement made under this Section
should not be considered in isolation but in conjunction with
evidence adduced by the prosecution - In the instant case,
the appellant in his statement uls.313 CrPC admitted that          F
there was a quarrel between accused 'S' and PW10 and while
rushing to the spot of quarrel the deceased involuntarily fell
on a cement concrete platform and thereby suffered the fatal
injury - The prosecution story, however, was that a quarrel
between the deceased and accused 'S' in fact took place,
however, the fatal injury was caused by a deliberate blow by       G
the appellant on the deceased - There is absolute
contradiction in the statement made by the appellant in his
statement u/s.313 CrPC and that statement could not have
                              577                                  H
    578      SUPREME COURT REPORTS                [2012] 7 S.C.R.


A been put against the accused in concluding that PW10 was
  present at the place of incident at or immediately after the
  occurrence of the incident - Therefore, the said witness cannot
  be considered as eye-witness to the incident as such - The
  High Court also relied upon the postmortem report of the
B Doctor - Since the entire evidence of the eye-witnesses was
  not accepted by the High Court, it could not have merely
  relied upon the postmortem report to convict the appellant for
  an offence uls.302 /PC - Further, the postmortem report
  should be in corroboration with the evidence of eye-witnesses
c and cannot be an evidence sufficient to reach the conclusion
  for convicting the appellant - Appellant-accused accordingly
  acquitted - Code of Criminal Procedure, 1973 - s.313.

         Manu Sao v. State of Bihar (2010) 12 SCC 310: 2010
    (8) SCR 811 - referred to.
D
                           Case Law Reference:
          2010 (8) SCR 811          referred to           Para 7

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
E No. 784 of 2008.

        From the Judgment & Order dated 19.10.2005 of the High
    Court of Judicature at Bombay Bench at Aurangabad in
    Criminal Appeal No. 108 of 2004.

F         Minakshi Vij for the Appellant.

          Asha Gopalan Nair for the Respondent.
          The Order of the Court was delivered
G                                ORDER

      1. This appeal by special leave is directed against the
  judgment and order passed by the High Court of Judicature at
  Bombay, Bench at Aurangabad in Criminal Appeal No.108 of
H 2004 dated 19.10.2005.
          BALAJI GUNTHU DHULE v. STATE OF                     579
                   MAHARASHTRA

       2. The appellant, before us is convicted under Section 302     A
read with Section 34 of the Indian Penal Code, 1860 ("IPC"
for short) and sentenced to imprisonment for life, by the Trial
Court, on the allegation that he has caused the death of one
Ranga Rao in a quarrel which ensued between Ranga Rao and
one Smt. Shantabai (other accused who expired during the              B
trial). The Prosecution, in support of its case, had examined
several witnesses, including six eye-witnesses- P.Ws. 4, 5, 6,
7, 8 and 10. The Trial Court, taking into consideration the
evidence of P.Ws. 4, 5, 7, 8 and 10, has convicted and
sentenced the appellant and two others, as mentioned earlier.         c
Aggrieved by the said judgment and order passed by the Trial
Court, the appellant and two others were before the High Court
in an appeal filed under Section 374(2) of the Code of Criminal
Procedure, 1973 ("the Code" for short).

     3. The High Court, after re-appreciation of the evidence         D
on record, has acquitted the two other accused, but has
convicted the appellant only for an offence under Section 302
of the 1.P .C. It is the correctness or otherwise of the said order
which is called in question by the appellant before us.
                                                                      E
       4. We have heard learned counsel for the parties to the
lis.

      5. Learned counsel appearing for the appellant has taken
 us through the judgment and order passed by the High Court.
We gather on perusal of the judgment that the High Court after        F
detailed consideration of the evidence of P.Ws. 4, 5, 7 and 8
has rejected the same for the reasons assigned in the
judgment. However, it has confirmed the order of the Trial Court
primarily based on the evidence of PW-10, that too by drawing
a distinction based on the analysis of the question: "whether         G
P.W.10 was present at the time of the incident or at least after
 the incident." The High Court comes to the conclusion and
 records that since P.W.10 had taken the deceased to the
 hospital, he could have been present at least after the incident.
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    580       SUPREME COURT REPORTS                     [2012] 7 S.C.R.


A        6. To come to a conclusion that P.W.10 was present at the
    time of the incident, strangely, in our opinion, the High Court
    has relied upon the statement made by the accused-appellant
    under Section 313 of the Code. In our opinion, first and
    foremost, as the law stands today, the statement of the accused
B   recorded under Section 313 of the Code cannot be put against
    the accused person. The courts may rely on a portion of the
    statement of the accused and find him guilty in consideration
    of the other evidence against him led by the prosecution. The
    statement made under this Section should not be considered
c   in isolation but in conjunction with evidence adduced by the
    prosecution.

         7. This Court in Manu Sao v. State of Bihar, (2010) 12
    sec   310, has examined the vital features of Section 313 of
    the Code and the principles of law as enunciated by judgments,
D   analysing the guiding factors for proper application and
    consequences that shall flow from the said provision and has
    observed:

          "14. The statement of the accused can be used to test the
E         veracity of the exculpatory nature of the admission, if any,
          made by the accused. It can be taken into consideration
          in any enquiry or trial but still it is not strictly evidence in
          the case. The provisions of Section 313( 4) explicitly
          provides that the answers given by the accused may be
F         taken into consideration in such enquiry or trial and put in
          evidence against the accused in any other enquiry or trial
          for any other offence for which such answers may tend to
          show he has committed. In other words, the use is
          permissible as per the provisions of the Code but has its
          own limitations. The courts may rely on a portion of the
G
          statement of the accused and find him guilty in
          consideration of the other evidence against him led by the
          prosecution, however, such statements made under this
          section should not be considered in isolation but in
          conjunction with evidence adduced by the prosecution.
H
  BALAJI GUNTHU DHULE v. STATE OF                         581
           MAHARASHTRA
15. Another important caution that courts have declared           A
in the pronouncements is that conviction of the accused
cannot be based merely on the statement made under
Section 313 of the Code as it cannot be regarded as a
substantive piece of evidence. In Vijendrajit Ayodhya
Prasad Goel v. State of Bombay (AIR) 1953 SC 247, the             B
Court held as under: (AIR p. 248, para 3)
      "3 .... As the appellant admitted that he was in
      charge of the godown, further evidence was not led
      on the point. The Magistrate was in this situation
      fully justified in referring to the statement of the        C
      accused under Section 342 as supporting the
      prosecution case concerning the possession of the
      godown. The contention that the Magistrate made
      use of the inculpatory part of the accused's
      statement and excluded the exculpatory part does            D
      not seem to be correct. The statement under
      Section 342 did not consist of two portions, part
      inculpatory and part exculpatory. It concerned itself
      with two facts. The accused admitted that he was
      in charge of the godown, he denied that the                 E
      rectified spirit was found in that godown. He alleged
      that the rectified spirit was found outside it. This part
      of his statement was proved untrue by the
      prosecution evidence and had no intimate
      connection with the statement concerning the                F
      possession of the godown."
16. On similar lines reference can be made to a quite
recent judgment of this Court in Ajay Singh v. State of
Maharashtra, (2007) 12 SCC 341, where the Court held
as under: (SCC p. 347, paras 11-13)                     G
      "11. So far as the prosecution case that kerosene
      was found on the accused's dress is concerned, it
      is to be noted that no question in this regard was
      put to the accused while he was examined under
      Section 313 of the Code.                                    H
    582       SUPREME COURT REPORTS                   [2012) 7 S.C.R.


A                 12. The purpose of Section 313 of the Code is set
                 out in its opening words - 'for the purpose of
                 enabling the accused personally to explain any
                 circumstances appearing in the evidence against
                 him'. In Hate Singh Bhagat Singh v. State of
B                Madhya Bharat it has been laid down by Bose, J.
                 (AIR p. 469, para 8) that the statements of the
                 accused persons recorded under Section 313 of
                 the Code 'are among the most important matters
                 to be considered at the trial'. It was pointed out that:
c                (AIR p. 470, para 8)
                 '8 .... The statements of the accused recorded by
                 the committing Magistrate and the Sessions Judge
                 are intended in India to take the place of what in
                 England and in America he would be free to state
D                in his own way in the witness box [and that they]
                 have to be received in evidence and treated as
                 evidence and be duly considered at the trial."'
                 This position remains unaltered even after the
                 insertion of Section 315 in the Code and any
E                statement under Section 313 has to be considered
                 in the same way as if Section 315 is not there.
                 13. The object of examination under this section is
                 to give the accused an opportunity to explain the
                 case made against him. This statement can be
F                taken into consideration in judging his innocence or
                 guilt. Where there is an onus on the accused to
                 discharge, it depends on the facts and
                 circumstances of the case if such statement
                 discharges the onus."
G
          17. The statement made by the accused is capable of
          being used in the trial though to a limited extent. But the
          law also places an obligation upon the court to take into
          consideration the stand of the accused in his statement and
          consider the same objectively and in its entirety. This
H         principle of law has been stated by this Court in Hate
         BALAJI GUNTHU DHULE v. STATE OF                    583
                  MAHARASHTRA

    Singh Bhagat Singh v. State of Madhya Bharat. (AIR) A
    1953 SC 468."
     8. Herein, the appellant in his statement under Section 313
of the Code admits that there was a quarrel between Shantabai
(deceased accused) and P.W.10 and while rushing to the spot
                                                                    8
of quarrel the deceased involuntarily fell on a cement concrete
platform - Otta and thereby suffered the fatal injury. The
prosecution story was that a quarrel between the deceased and
Shantabai in fact took place, however, the fatal injury was
caused by a deliberate blow by the appellant on the deceased.
In our opinion, there is absolute contradiction in the statement C
made by the appellant in his statement under Section 313 of
the Code and that statement could not have been put against
the accused in concluding that P .W.10 was present at the place
of incident at or immediately after the occurrence of the incident.
Therefore, the said witness, in our opinion, cannot be considered D
as eye-witness to the incident as such.
     9. The High Court has also relied upon the postmortem
report of the Doctor. In our opinion, since the entire evidence of
the eye-witnesses has not been accepted by the High Court, it E
could not have merely relied upon the postmortem report to
convict the appellant for an offence under Section 302 of the
l.P.C. Further, in our view, the postmortem report should be in
corroboration with the evidence of eye-witnesses and cannot be
an evidence sufficient to reach the conclusion for convicting the
appellant. In view of the above, we have no other alternative but F
to allow this appeal and set aside the judgment and order
passed by the High Court convicting the appellant for an offence
punishable under Section 302 of the l.P.C.
     10. In the result, the appeal is allowed with a direction that G
the appellant-accused be released forthwith, if he is not required
in any other offence/case.
     Ordered accordingly.

B.B.B.                                        Appeal allowed.
                                                                   H