Allowed

Kailas Shankar Navekar v. the State of Maharashtra

Bombay HC20 Feb 2019APEAL/273/2016

Case brief

AI extract

What is this about?

This judgment sets aside the convicton and judgments of a Sessions Judge who had convicted the appellant for rape and murder based primarily on a handwriting expert's opinion linking him to an extra-judicial confession found in a notebook, which the court deemed insufficient absent other corroborative evidence.

What did the court decide?

The Criminal Appeal was allowed. The conviction and sentence under Sections 302 and 376 IPC were set aside. The appellant was acquitted and set at liberty.

Kailas Shankar Navekar Vs the State of Maharashtra — Cheque Dishonour | Bombay HC (2019)

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Cri. Appeal.273-16.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO.273 OF 2016

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Kailash s/o. Shankar Navekar,
Age : 35 years, Occ. Labour,
r/o. Shahenshah Nagar, Beed

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..Appellant

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Vs.

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The State of Maharashtra,

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..Respondents

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Mr.R.A.Jaiswal, Advocate for appellant

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Mr.R.V.Dasalkar, APP for respondent

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CORAM : S.S. SHINDE AND

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 R.G. AVACHAT, JJ.
 RESERVED ON : FEBRUARY 05, 2019
 PRONOUNCED ON : FEBRUARY 20, 2019

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JUDGMENT (PER – R.G. AVACHAT,J.):

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The challenge in this appeal is to the

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judgment and order dated 07.12.2012 passed by learned
Additional Sessions Judge, Udgir in Sessions Case,
being Case No. 6 of 2016. By the impugned judgment and

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order, the appellant herein has been convicted for the
offences punishable under Sections 302 and 376 of the
Indian Penal Code (“I.P.C.”, for short). He has been

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2 Cri. Appeal.273-16

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sentenced to suffer rigorous imprisonment for life

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with direction to pay fine of Rs.3,000/- each, in
default of payment of fine, has been directed to
undergo rigorous imprisonment for one year. The
appellant has been acquitted of the offence
punishable under Section 201 of the I.P.C.

¶20

One more accused was charged and tried
together with the appellant. He has been acquitted of
all the charges. The State has not preferred any
appeal against acquittal.

¶21

2.This is a jail appeal. Learned Counsel

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Mr.R.A.Jaiswal was, therefore, appointed to represent
the cause of the appellant herein.

¶23

3.We have heard learned Counsel appearing on
behalf of the appellant and learned APP representing
the State. The only issue canvassed before us is,
whether conviction can be based on extra-judicial
confession. In the present case, the alleged extra-
judicial confession is in the nature of writings made

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3 Cri. Appeal.273-16

¶25

by the appellant in a note-book that was found at the
scene of the offence. On arrest of the appellant, his
specimen hand-writings were obtained. It also appears
that there was one piece of paper containing the name
of the appellant. It was said to be a natural hand-
writing of the appellant. The Investigating Officer
submitted the questioned hand-writings (extra-
judicial confession Exh.128) and the natural hand-
writings to the hand-writing expert for his
examination and report. The hand-writing expert did
his job and gave opinion to the effect that all the
hand-writings are of one and the same person i.e. the
appellant herein.

¶26

4.Mr.Jaiswal, learned Counsel for the

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appellant, would submit that the case was based on
circumstantial evidence. The Trial Court has
convicted the appellant on the basis of extra-
judicial confession. According to learned Counsel,
the opinion of the hand-writing expert alone cannot
be made basis for convicting the appellant. It can

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4 Cri. Appeal.273-16

¶29

only be relied upon when supported by other items of
internal and external evidence. Learned Counsel made
submissions on the basis of the judgment of the
Hon'ble Supreme Court in the case of Alamgir Vs.
State (NCT, Delhi), AIR 2003 SC 282. Learned Counsel,
therefore, urged for allowing the appeal.

¶30

5.Learned APP would, on the other hand, submit

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that the Trial Court has passed a well-reasoned judgment. It has also relied upon the modus-operendi in committing similar offences by the appellant. According to learned APP, interference with the impugned judgment and order, is unwarranted.

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6.This case is based on circumstantial

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evidence. In the case of Alamgir (Supra), the Hon'ble
Supreme Court observed thus :

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“21. The word of caution introduced in
the judgment of this Court about five
decades ago in that direction however
still stands as an acceptable guide.
ThisCourtinHanumantGovind

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Cri. Appeal.273-16

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Nargundkar & Anr. v. State of Madhya
Pradesh (AIR 1952 SC 343) stated:

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It is well to remember that in
cases where the evidence is of a
circumstantialnature,the
circumstances from which the conclusion
of guilt is to be drawn should in the
first instance be fully established,
and all the facts so established should
be consistent only with the hypothesis
of the guilt of the accused. Again, the
circumstances should be of a conclusive
nature and tendency and they should be
such as to exclude every hypothesis but
the one proposed to be proved. In other
words, there must be a chain of
evidence so far complete as not to
leave any reasonable ground for a
conclusionconsistentwiththe
innocence of the accused and it must be
such as to show that within all human
probability the act must have been done
by the accused."

¶39

6 Cri. Appeal.273-16

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7.To substantiate Charge, the prosecution

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examined fifteen witnesses and tendered in evidence

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number of documents. In this case, the victim was ten
years old. On 09.05.2006, by 06.00 in the morning,
the dead body of the victim Seema (name changed) was
found in agricultural field situate in Malkapur
Shivar of village Udgir. PW 1 – Bhimrao, Police
Patil of village Malkapur, therefore, filed his
report (Exh.84) in that regard, with Udgir Police
Station. Based on the report, inquest panchnama
(Exh.86) was drawn in the presence of PW 2 – Champat
besides spot panchnama (Exh.87). The dead body of
Seema was subjected to post-mortem (p.m.). The p.m.
report (Exh.101) indicates that the victim died of
neurological shock due to forcible and violent sexual
assault. The defence admitted the p.m. report.

¶43

8.PW 4 – Ambadas, maternal uncle of the

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deceased, therefore, lodged the F.I.R. (Exh.94),
alleging therein that some unknown person deflowered
his niece and then committed her murder. PW 4 –

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7 Cri. Appeal.273-16

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Ambadas gave his evidence on the lines of the

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allegations in the F.I.R. His evidence does not lead
us anywhere.PW 5 – Ramu and PW 8 – Govindrao were
examined so as to prove the deceased to have last
seen in the company of the appellant. Both these
witnesses did not stand by the prosecution.

¶48

9.It is the case of the prosecution that

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similar type of offences namely, rape and murder of
minor girls took place at Ahmednagar, Beed, Nashik,
Udgir and Parbhani. The appellant had been arrested
in one of such cases by Police Officer, Beed Police
Station. There was similar crime registered with
Kotwali Police Station, Parbhani. It was C.R.
No.82/2006. PW 9 – Shrirang (P.I., L.C.B.) was
entrusted with the investigation of the said crime.
It is in his evidence that during enquiry of
accidental death (A.D.), A.P.I. Yashwant Jadhav
prepared panchnama of the scene of offence on
16.07.2006. It was a case of rape and murder of a

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six years old girl. From the scene of offence of the

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8 Cri. Appeal.273-16

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said crime, a school bag, school books, umbrella, one

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diary and note books, etc. were seized. On one of
the pages of the note-book, the following matter was
appearing :-

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Fkjey mMkmaxk & eS; vkxk [kku

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^^ vatyh dks geus ekjk cacbZ es tks yksdy Vsªu es cae /kekds gqos oks geus djok ;s vkSj vc ejkBokM dh ckjh gS

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10.It appears from the Record and Proceedings

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that involvement of two persons, including the

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appellant, in the offence in question, surfaced. The
sample hand-writings of the appellant were obtained.

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9 Cri. Appeal.273-16

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There was one more paper allegedly containing natural
hand-writing of the appellant. It was tendered before
the Investigating Officer by PW 13 – Shivaji. It is
further not known as to how the said paper came into
being. Be that as it may, the written extra-judicial
confession, the sample hand-writings, and the natural
hand-writing of the appellant were examined by PW 15
– Sanjay, hand-writing expert. It is in his evidence
that he was serving with Crime Investigation
Department (C.I.D.) as Assistant State Examiner of
Documents. On 04.09.2006, his office had received
four sealed packets from the Superintendent of
Police, Parbhani, with a request to examine the hand-
writing and give opinion. It is further in his
evidence that on 25.09.2006, he examined all these
documents (Exhs.114 to 119 and 128) by use of
magnifying devices and came to the conclusion that
thequestionedhand-writing(extra-judicial

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confession) was that of one, of which the sample
hand-writing and natural hand-writing were. In short,

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10 Cri. Appeal.273-16

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the hand-writing examined by PW 15 – Sanjay were

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found to be that of one and the same person.
According to the prosecution, it was of none other
than that of the appellant. PW 15 – Sanjay has also

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given his reasons for opinion (Exh.152). There is
evidence to indicate that the note-book, which was
containing extra-judicial confession, was bought by
PW 13 – Shivaji at the instance of his employer
(father of the victim). He was examined in this case.
It is in his evidence that he had bought the note-
book for Rs.5/-. The note-book had pink color border.

¶66

The note-book was bought for the daughter of his
employer (victim in C.R.82 of 2006). Two days after
the death of Anita (name changed), police had come to

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him with the note-book (Exh.128). He identified the
note-book as one he had bought. This piece of
evidence undoubtedly indicates that the Investigating
Officer had not sealed the note-book soon after it
was seized.

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11 Cri. Appeal.273-16

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11.It is reiterated that the question is,

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whether the conviction is sustainable on the extra-
judicial confession.

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CONFESSION :

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The word 'confession' is not defined in the

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Indian Evidence Act. Whether statements amount to
confession depends upon facts related to them and not
upon opinion of men making statements. It includes
both oral and written statement. Communication to
another is not an essential component to constitute a
statement. Confession is statement made by accused
admitting in terms an offence or almost all the facts
that constitute an offence. A confession must either

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admit in terms the offence, or at any rate
substantially all the facts which constitute the
offence.

¶75

Let us analyze the statement to ascertain,
whether it constitutes confession. On the cover page
of the note-book containing the alleged extra-

¶76

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Cri. Appeal.273-16

¶78

judicial confession, it has been mentioned as

¶79

under :-

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Hkkjr	786
eqjnk
ckn	vkxk [kku

¶81

12.The alleged confessional statements suggest

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that the person making the statements confessed to
have murdered Anita (victim in C.R. No.82 of 2016).
He also owns responsibility of the bomb-blasts that
took place in local trains in Mumbai. The further
statements suggest that Marathwada would be their
next target after Bombay blasts. The author of the
statements appears to have made the statements in
representative capacity of some group. The relevant

¶83

matter for us is “........... मैने उदगीर मे सीमा का खून िकया है” .

¶84

The author claimed to have murdered Seema,
at Udgir. He also claimed to have murdered one girl
at Ahmedpur and one in Beed.

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13 Cri. Appeal.273-16

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13.If we peruse the entire confessional

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statement, the same is silent as to commission of the
offence of rape. It, therefore, cannot be said that
the confessor confessed to commission of offence of
rape. As already stated above, Seema died of forcible
and violent sexual assault. This rules out
intentional act of homicide. The Trial Court
attributed the aspect of knowledge to the appellant.
In view of the Trial Court, the act was committed in
such a way that the appellant had knowledge that by
doing so, the victim would no longer survive. In our
view, it would be a far fetched inference. Be that as
it may, the question is whether the impugned order of
conviction is sustainable based on this piece of
evidence.

¶88

14.True, in the case of Kavita Vs. State of
Tamil Nadu, AIR 1998 SC 2473, the Hon'ble Supreme
Court has observed that conviction can be based on
extra-judicial confession but it is well settled that

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14 Cri. Appeal.273-16

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in the very nature of things, it is a weak piece of
evidence. It is to be proved just like any other
fact and the value thereof depends upon the veracity
of the witness to whom it is made. It may not be
necessary that the actual words used by the accused
must be given by the witness but it is for the Court
to decide on the acceptability of the evidence having
regard to the credibility of the witnesses.

¶91

15.The appellant/person making statement did
not disclose his identity in the aforesaid
confessional statement. He made statements in the
capacity as representative of some organisation. The
statements do not contain confession as to commission

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of rape and even murder as well. On arrest of the

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appellant and co-accused, their blood samples were
obtained. Undergarments and Midi (skirt) of the
victim were also seized. These two articles borne
some stains. Blood samples of the appellant, co-

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accused and those two articles had been examined by

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15 Cri. Appeal.273-16

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the expert for obtaining DNA profile. The Examiner

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did not get DNA profiling. The report (Exh.153) in
that regards reads thus :-

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“ No DNA profile is obtained from stains on Exhibits 3 and 4.

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Exhibits 1 and 2 are control blood samples.”

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16.Admittedly, the appellant has not made

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extra-judicial confession orally. He has also not
disclosed his identity in writing in the nature of
extra-judicial confession. The prosecution and the
Trial Court has connected the appellant with the
authorship of the said confessional statements only
on the basis of hand-writing expert's opinion.

¶102

17.In Magan Bihari Lal Vs. The State of

¶103

Punjab, 1977 AIR 1091, the Apex Court observed – it

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would be extremely hazardous to condemn the

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appellant/accused merely on the strength of
opinion evidence of a handwriting expert. It is

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16 Cri. Appeal.273-16

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unsafe to base a conviction solely on expert's

¶108

opinion without substantial corroboration. This rule
has been universally accepted and also became the
rule of law. It may be relied upon when supported by
other items of internal and external evidence. In the
case of Alamgir (Supra), the Hon'ble Supreme Court
observed thus :-

¶109

“This Court again pointed out in Ishwari
Prasad Mishra v. Mohammad Isa, (AIR 1963 SC
1728), that expert evidence of handwriting
can never be conclusive because it is, after
all, opinion evidence, and this view was
reiterated in Shashi Kumar Banerjee and
others v. Subodh Kumar Banerjee (AIR 1964 SC
529), where it was pointed out by this court
that expert evidence as to handwriting being
opinion evidence can rarely, if ever, take
the place of substantive evidence and before
acting on such evidence, it would be
desirable to consider whether it is
corroborated either by clear direct evidence
or by circumstantial evidence. This Court
had again occasion to consider the
evidentiary value of expert opinion in

¶110

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Cri. Appeal.273-16

¶112

regard to handwriting in Fakhruddin v. State
of M.P. (AIR 1967 SC 1326) and it uttered a
note of caution pointing out that it would
be risky to found a conviction solely on the
evidence of a handwriting expert and before
acting upon such evidence, the court must
always try to see whether it is corroborated
by other evidence, direct or circumstantial.
It is interesting to note that the same view
is also echoed in the judgments of English
and American courts. Vide Gurney v.
Langlands (1822, 5 B and Ald 330) and Matter
of Alfred Foster's Will (34 Mich 21). The
Supreme Court of Michigan pointed out in the
last mentioned case :

¶113

Every one knows how very unsafe it is
to rely upon any one's opinion considering
the niceties of penmanship opinions are
necessarily received, and may be valuable,
but at best this kind of evidence is a
necessary evil.

¶114

We need not subscribe to the extreme
view expressed by the Supreme Court of
Michigan, but there can be no doubt that
this type of evidence, being opinion
evidence is by its very nature, weak and

¶115

18 Cri. Appeal.273-16

¶116

infirm and cannot of itself form the basis
for a conviction. We must, therefore, try to
see whether, in the present case, there is,
apart from the evidence of the handwriting
expert B. Lal, any other evidence connecting
the appellant with the offence.

¶117

18.In paragraph 16 of the judgment in the case
of Alamgir (supra), it is further observed that :-

¶118

16.Significantly, this Court in 1980 CriLJ
396 (SC) in no uncertain terms observed that
the hazard in acceptance of opinion of an
expert is not because it is unreliable
evidence, but because human judgment is
fallible. Needless to record that the signs
of identification of handwriting have
attained more or less a state of perfection
and the risk of an incorrect opinion is
practically non-existent. This Court went on
further to record that doubting the opinion
of a handwriting expert ought to be a far
cryandinsistenceuponfurther

¶119

corroboration as an invariable rule does not
seem to be a justifiable conclusion. In
continuation of the above noted principle,

¶120

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Cri. Appeal.273-16

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this Court went on to further examine as
regards judicial precedence and in that vein
stated in paragraph 7 of the Report as
below:

¶123

"7. Apart from principle, let us
examine if precedent justify invariable
insistence on corroboration. We have
referred to Phipson on Evidence, Cross
on Evidence, Roscoe on Criminal
Evidence,ArchibaldonCriminal
Pleadings, Evidence and Practice and
Halsbury's Laws of England but we were
unable to find a single sentence
hinting at such a rule. We may now
refer to some of the decisions of this
Court. In Ram Chandra and another v.
State ofUtterPradesh,
Jagannadhadas,J. observed : "It may be
that normally it is not safe to treat
expert evidence as to handwriting as
sufficientbasisfor conviction"
(emphasis ours). "May" and "normally"
make our point about the absence of an
inflexible rule. In Ishwari Prasad
Misra v. Mohammad Isa (AIR 1963 SC
1728) Gajendragadkar, J. observed :

¶124

20 Cri. Appeal.273-16

¶125

"Evidence given by experts can never be
conclusive, because after all it is
opinion-evidence", a statement which
carries us nowhere on the question now
under consideration.

¶126

referred in the case of Alamgir (supra), undoubtedly
indicate that there were other circumstances against

¶127

the appellant therein. The other important
circumstance against the appellant therein was
recovery of deceased's watch at the appellant's
instance.

¶128

20.In the present case, there is no any other
circumstance (corroborative in nature) to lend
assurance as to authorship of extra-judicial
confession and truthfulness thereof.

¶129

21.The Trial Court has also relied upon the
judgments in Sessions Cases wherein the appellant has
been convicted, which are as under :-

¶130

¶131

Cri. Appeal.273-16

¶132

`Sessions` `Case No.`	`Sections`	`Decided by`
`8 of 2007` `(old): 11` `of 2011`	`302, 376 and 201` `of I.P.C.`	`Addl. Sessions Judge,` `Ahmednagar`
`100 of` `2006`	`376, 363 and 506` `of I.P.C.`	`Addl. Sessions Judge,` `Beed`
`04 of 2007`	`302, 363, 364,` `376 and 201 of` `I.P.C.`	`Sessions Judge,` `Parbhani`

¶133

Admittedly, those judgments had not attained

¶134

finality when came to be relied upon. In one of the
similar cases, the appellant has been acquitted by
the Court of learned Additional Sessions Judge,
Nashik. In two such cases, there were two different
co-accused with the appellant. The Trial Court relied
upon the judgment in those cases on the strength of
Section 14 of the Indian Evidence Act. Section 14 of
the Indian Evidence Act, reads thus :-

¶135

“14. Facts showing existence of state of
mind, or of body or bodily feeling.—

¶136

Facts showing the existence of any state of
mind, such as intention, knowledge, good
faith, negligence, rashness, ill-will or

¶137

22 Cri. Appeal.273-16

¶138

good-will towards any particular person, or
showing the existence of any state of body
or bodily feeling, are relevant, when the
existence of any such state of mind or body
or bodily feeling, is in issue or relevant.

¶139

[Explanation 1.— A fact relevant as showing
the existence of a relevant state of mind
must show that the state of mind exists, not
generally, but in reference to the
particular matter in question.

¶140

Explanation 2.— But where, upon the trial of
a person accused of an offence, the previous
commission by the accused of an offence is
relevant within the meaning of this section,
the previous conviction of such person shall
also be a relevant fact.]”

¶141

22.Appeals against conviction of the appellant

¶142

in other cases are pending before this Court and the
Hon'ble Supreme Court.

¶143

23.The extra-judicial confession is a weak

¶144

piece of evidence. It is doubtful whether the alleged

¶145

statement is in fact confessional in nature.
Moreover, even if the same assumed to be
confessional, the same has been proved only on the

¶146

23 Cri. Appeal.273-16

¶147

basis of hand-writing expert's opinion. There is no

¶148

any other evidence pointing towards guilt of the
appellant. It would, therefore, not be in the fitness
of things to rely the same to hold the appellant
guilty of the offence of rape and murder. The record
indicates that one person had been arrested on
suspicion. He remained behind the bars for 90 days.

¶149

Since no charge-sheet was filed against him, he was

¶150

granted bail. That person was not an accused in this
case. In this factual background, we are of the view
that the Trial Court has erred in convicting the
appellant. Since we are not in agreement with the
findings recorded by the Trial Court, the appeal
deserves to be allowed.

¶151

24. Hence, the following order :-

¶152

(i) The Criminal Appeal is allowed.

¶153

by learned Addl. Sessions Judge, Udgir, in
Sessions Case No.6 of 2007, convicting the
appellant for the offences punishable under

¶154

¶155

Cri. Appeal.273-16

¶156

Sections 376(f) and 302 of the Indian Penal
Code, is set aside.

¶157

(iii)The appellant is acquitted of the offences
punishable under Sections 376(f) and 302 of
the Indian Penal Code.

¶158

(iv)Amount of fine, if paid, be refunded to the
appellant.

¶159

(v) The appellant be set at liberty, if not required in any other case.

¶160

(vi) Fees of Mr.R.A.Jaiswal, learned Counsel, who was appointed to represent the appellant in this appeal, is quantified at Rs.8,000/(Rs.Eight Thousand).

¶161

[R.G. AVACHAT, J.][S.S. SHINDE, J.]

¶162

kbp

Kailas Shankar Navekar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Kailas Shankar Navekar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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