Paragraph numbers below are the court’s original numbering, recovered from the source text.
32. It appears that the High Court while reversing the acquittal relied upon the above-referred Full Bench Decision for the purpose of taking the view that the extra-judicial confession made by the appellant – herein before PW 2 could be said to be admissible in evidence.
33. One interesting question that arises for our consideration at this stage is that at the relevant point of time i.e., in 1993 when the Trial Court acquitted the appellant – herein the position of law was that an extra-judicial confession said to have been made by an accused before a village Police Patil could be said to be inadmissible in evidence being hit by Section 25 of the Evidence Act.
34. In the year 2009, the Full Bench of the Bombay High Court while answering a reference held that a Village Police Patil is not a Police Officer. Therefore, if the accused herein had stood acquitted having regard to the position of law prevailing at the relevant point of time then relying on a subsequent decision taking a contrary view whether the accused could have been held guilty?
35. It could be argued that the Full Bench decision of the Bombay High Court came to be delivered in the year 2009 whereas the appellant was acquitted by the Trial Court sometime in the year 1993. The position of law till 2009 was that a Village Police is a Police Officer and therefore, any confession made to him would be inadmissible in evidence in view of Section 25 of the Evidence Act, more particularly in view of the Division Bench decision of the Bombay High Court rendered in Ram Singh (supra). We do not propose to consider the question whether the High Court could have relied upon the Full Bench decision after the appellant came to be acquitted by the Trial Court in 1993 thereby giving retrospective effect as regards its applicability.
36. We proceed on the footing that PW 2 – Vasant Dattu Bhosale, Police Patil of the Village cannot be termed as a Police Officer for the purpose of Section 25 of the Evidence Act. We also proceed on the footing that the extra-judicial confession alleged to have been made by the accused before PW 2 is admissible in evidence and is not hit by Section 25 of the Evidence Act. However, such extra- judicial confession should be found to be true & trustworthy before it is relied upon by the Court to hold the accused guilty.
37. Besides, the above such extra-judicial confession should also be found to be free of any inducement, coercion etc. and it should be shown to have been made by the accused on his own free will and volition. [2025] 1 S.C.R. Sadashiv Dhondiram Patil v. The State of Maharashtra
38. We requested the learned counsel appearing for the State to show us from the oral evidence on record, more particularly, the deposition of PW 2 as well as the deposition of PW 5, the exact words alleged to have been uttered by the appellant – herein in the form of an extra-judicial confession.
39. We on our own also looked into and are convinced that what is alleged to have been conveyed cannot be said to be an extra-judicial confession. A very omnibus & vague statement seems to have been made as deposed by both the witnesses in their oral evidence.
40. This Court in “C.K. Ravindra vs. the State of Kerala” AIR 2000 SC 369 had held that before placing reliance upon the extra-judicial confession, the Court must be convinced as regards the exact words or even the words as nearly as possible. This Court took the view that it would be difficult to rely upon the extra-judicial confession if the exact words or even the words as nearly as possible have not been reproduced, the said statement cannot be said to be voluntary. In such circumstances, the same may have to be excluded from the purview of consideration.
41. This Court in “Balwinder Singh vs. State of Punjab” (1995) Supplementary 4 SCC 259 had held that an extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where extra- judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and would lose its importance.
42. In such circumstances, referred to above, we are of the view that the High Court fell in error in relying upon the extra-judicial confession even while rightly holding that the same was admissible in evidence as Village Police Patil cannot be said to be a Police Officer.
43. We now come to the second piece of the circumstance relied upon.
44. It is the case of the prosecution that after the arrest of the appellant – herein, he is said to have on his own free will and volition made a statement before the Investigating Officer and he was ready and willing to point out the place where he had concealed the weapon, i.e., the iron rod.
45. Accordingly, the Investigating Officer along with two independent witnesses in the form of panchas went to the place as led by the appellant – herein. 608
46. The place was the house itself where the incident had occurred. According to the Investigating Officer, the appellant pointed out the iron rod which was lying in one corner of the house. The same was seized in the presence of the panch witnsses and was sent to the Forensic Science Laboratory for chemical analysis.
47. In this regard, we may only say that panch witnesses have not supported the case of the prosecution. They failed to prove the contents of the discovery panchnama.
48. If the panch witnesses are declared hostile then the prosecution is obliged to prove the contents of the said discovery panchnama through the evidence of the Investigating Officer. The question is how is the I.O. expected to prove the contents of the panchnama.
49. The position of law in this regard is very clear. Just because the panch witnesses have turned hostile does not mean that such discovery should be disbelieved. From the plain reading of the oral evidence of the Investigating Officer if the discovery is believable and inspires confidence, the same can definitely be looked into as one of the incriminating pieces of evidence against the accused.
50. However, unfortunately in the case on hand, all that the I.O. did was to depose that he had drawn the panchnama and in the end identified his signature on the same and that of the panch witnesses. This cannot be said to be proving the contents of the panchnama in accordance with law. In such circumstances, the circumstance of discovery also cannot be relied upon.
51. We are now left with motive. Motive is a double-edged weapon. Motive cannot be the sole basis for convicting the accused and that too for a serious offence like murder. Motive may be considered along with other pieces of reliable evidence in the form of incriminating circumstances.
52. We now come to the last part of the matter.
53. The learned counsel appearing for the State submitted that the dead body of the deceased was recovered from the house itself, i.e., the place where the family was residing. He would submit that in normal circumstances, the husband could be said to be the best person to explain as to what had happened to his wife on the date of the incident. [2025] 1 S.C.R. Sadashiv Dhondiram Patil v. The State of Maharashtra
54. According to the learned counsel, when an offence is committed within the four walls of the house and that too in secrecy, it is difficult for the prosecution to establish its case beyond reasonable doubt and, therefore, under Section 106 of the Evidence Act, it is for the accused to explain what had actually happened and in the absence of any such explanation, it could be said that the accused committed the crime as alleged.
55. The law in the aforesaid regard is well-settled. Prosecution has to prove its case beyond reasonable doubt & that too on its own legs. The initial burden of proof is always on the prosecution. However, in cases where husband is alleged to have killed his wife in the night hours & that too within the residential house, then undoubtedly the husband has to offer some explanation as to what had actually happened and if he fails to offer any plausible explanation, this can go against him. However, Section 106 of the Evidence Act is subject to one well-settled principle of law. The prosecution has to first lay the foundational facts before it seeks to invoke Section 106 of the Evidence Act. If the prosecution has not been able to lay the foundational facts for the purpose of invoking Section 106 of the Evidence Act, it cannot starightaway invoke the said Section and throw the entire burden on the accused to establish his innocence.
56. In the overall view of the matter, we are convinced that the High Court committed error in holding the appellant guilty of the offence of murder.
57. In the result, this appeal succeeds and is hereby allowed.
58. The impugned Judgment and Order passed by the High Court is hereby set aside.
59. We are informed that the appellant has been enlarged on bail by this Court. His bail bonds stand discharged. Result of the case: Appeal allowed. †Headnotes prepared by: Nidhi Jain