While expecting the advocates to keep themselves abreast with the latest up-to-date knowledge of law, the Aurangabad Bench of the Bombay High Court in a most learned, laudable, logical, landmark and latest judgment titled Vishwas vs The State of Maharashtra in Criminal Appeal No. 844 of 2018 and cited in Neutral Citation No. : 2023:BHC-AUG:24948-DB that was finally pronounced on November 7, 2023 has minced just no words to held in no uncertain terms that the advocate should possess up-to-date knowledge of law and should not cite any decision which is no longer a good law.

It must be mentioned here that the Division Bench comprising of Hon’ble Smt Justice Vibha Kankanwadi and Hon’ble Mr Justice Abhay S Waghwase was dealing with the appeal that had challenged the order which had been passed by the Additional Sessions Judge where the appellant was convicted for the offence under Section 302 of the Indian Penal Code. We must note that in this leading case the accused had committed the murder of his own death by strangulation.

The Division Bench opined that the prosecution has proved that the accused has killed his own daughter by strangulation and therefore his conviction for the offence punishable under Section 302 of the IPC by the learned Trial Judge is perfectly legal. We thus see that after perusing the facts and the evidence before it, the Division Bench then finally dismissed the appeal.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Smt Justice Vibha Kankanwadi for a Division Bench of the Aurangabad Bench of the Bombay High Court comprising of herself and Hon’ble Mr Justice Abhay S Waghwase sets the ball in motion by first and foremost putting forth in para 1 that:
Original accused takes exception to challenge his conviction by the learned Additional Sessions Judge, Jalgaon, District-Jalgaon in Sessions Case No. 105 of 2017 on 30th October 2018 after holding him guilty of committing offence under Section 302 of the Indian Penal Code. The accused was charged for committing murder of his own daughter Deepali by strangulation.

To put things in perspective, the Division Bench envisages in para 2 that:
It is the prosecution story that the present appellant is resident of Dongaon Budruk, Taluka-Dharangaon, DistrictJalgaon. He was residing with his wife Bhikubai, son Deepak and daughter Deepali. He is an agriculture labour. Deepali was married to one Parmeshwar Patil about a year prior to the First Information Report (for short FIR) i.e. 27th July 2017, however, since her age was less she used to reside with parents. Deepali had developed love relations with one Manohar @ Bala residing in the same lane where the accused is residing.

Said Manohar had kidnapped Deepali on 8th May 2017 and therefore, Bhikubai had lodged report against Manohar. Police had searched Deepali and after about fifteen days when she was brought to Paldhi Police Station, she was saying that since she has love for Manohar she would perform marriage with him only. After persuading her the informant – appellant had brought her home but since thereafter Deepali had become adamant.

She used to pick up quarrels. Informant felt that he has been defamed in the village and therefore was planning to leave Dongaon with his family and shift to Vadgaon, Taluka-Pachora. When Deepali got knowledge about the same, she picked up quarrel with the father and told that she would behave in the same way even at the said place. It is the further prosecution story that the accused-informant had then decided to eliminate Deepali and he strangulated her in the intervening night of 26th and 27th July 2017 and went along with his wife to Police Patil’s residence to inform the said fact, however Police Patil was not there. His son was there in the house who called Police Patil and thereafter along with Police Patil the accused went to the Police Station and lodged the confessional FIR.

As it turned out, the Division Bench enunciates in para 3 that:
After the said FIR was lodged, offence was registered against the accused-informant and investigation was started. Panchnama of the spot was carried out. The dead body was sent for postmortem after executing the inquest panchnama. Statements of witnesses were recorded. The seized muddemal was sent for chemical analysis. After completion of the investigation, charge-sheet was filed.

As we see, the Division Bench then discloses in para 4 that:
After committal of the case, charge was framed. Accused pleaded not guilty. Trial has been conducted. Prosecution has examined in all seventeen witnesses to bring home the guilt of the accused. After considering the evidence on record and hearing both sides, the learned trial Judge has held that the prosecution has proved that accused has committed murder of his daughter and therefore, sentenced him to suffer imprisonment for life and to pay fine of Rs.500/-, in default to suffer simple imprisonment for one month for the offence punishable under Section 302 of the Indian Penal Code. Set off under Section 428 of the Code of Criminal Procedure has been granted.

Be it noted, the Division Bench notes in para 10 that:
If we consider the line of evidence which the prosecution intended to lay, was that the confession was given first in time by the accused to his wife, PW-8 Bhikubai, but she has turned hostile. After the permission to put questions in the nature of cross-examination, she would agree to the fact that on 26th July 2017 after dinner all of them slept and before that all the doors of the house were closed. She denied the suggestion that accused woke her up around 1.00 a.m. and told that he has killed Deepali by strangulating with a cord. But she then admits that she herself and accused had gone to the house of the Police Patil at night time and met PW-5 Mukesh, son of the Police Patil. She also admits that they narrated the incident to Mukesh and Mukesh gave phone call to another Police Patil and then Police came to the village. Thus, to a next stage PW-8 Bhikubai is supporting the prosecution that she was accompanying the accused when he went to the house of PW-5 Mukesh after the incident. Thus, it can be seen that with ulterior motive she was trying to save her husband and therefore, had not supported the prosecution story.

Most significantly and most forthrightly, the Division Bench propounds in para 14 holding that:
The testimony of PW-4 Bharat has been attacked by the learned Advocate for the appellant taking help of the decision in Ram Singh vs. State of Maharashtra and another, (supra), wherein it was held that the Police Patil is a Police Officer and therefore, confession made before him is not admissible in evidence. In fact it was expected from an Advocate that he should possess up-to-date knowledge of law and should not cite any decision which is no longer a good law. The Full Bench of this Court in Rajeshwar s/o Hiraman Mohurle (in jail) vs. State of Maharashtra, 2009 (4) Mh.L.J. 483 has held that Police Patil appointed under the Maharashtra Village Police Act, 1967 is not a Police Officer for the purpose of Section 25 of the Evidence Act. It was specifically observed that officer other than a police officer, invested with powers of an officer-in-charge of a police station is not entitled to exercise all the powers under Chapter XII of the Code including the power to submit a report or charge-sheet/challan under Section 173 of the Code.

The Police Patil under the Village Police Act is also not a Police Officer on the deeming fiction of law as there is no provision in the Statute which specifically or even otherwise requires the Police Patil to be treated as a Police Officer for all intent and purpose and therefore confession made before him would not attract the bar of Section 25 of the Evidence Act. Under the said circumstance, the confession made before PW-4 Bharat was admissible and not at all hit by any of the provisions of law. The confession was made by the accused before PW-5 Mukesh also and that was prior in time. PW-5 Mukesh was not the Police Patil and therefore, his testimony is trustworthy and acceptable.

It cannot be lost on us that the Division Bench points out in para 15 that:
The position therefore, stands that the dead body was found inside the house of the accused and the incident has admittedly taken place at night time. The accused has failed to prove even by preponderance of probabilities that Deepali was found dead at a different place. Therefore, on this count also Section 106 of the Evidence Act would come into play.

Though everything was tried to be extracted in the cross-examination of PW-8 Bhikubai by the accused to take the case out of the purview of Section 106 of the Evidence Act, but in his statement under Section 313 of the Code of Criminal Procedure the accused is totally silent as to why he allegedly believed or obeyed the direction of the Police Patil. Answer to Question No.5 would show that his daughter was lying behind a school and Police Patil and his son asked him to bring her in the house. He is thus indicating that Machindra Patil and his son, PW-5 Mukesh had asked him to bring the dead body of his daughter inside the house. PW-3 Machindra Patil has been examined and he has clearly stated that on the day of incident he had gone to Saver. His son had then given a phone call around 2.00 a.m. on 27th July 2017 and told about the incident. There is nothing in his cross-examination which will cast doubt over his veracity or would indicate that he had any reason to implicate the accused.

As a corollary, we thus see that the Division Bench holds in para 17 that:
Thus on revisiting and re-appreciating the evidence, we found that the prosecution has proved that the accused has killed his daughter by strangulation and therefore, his conviction for the offence punishable under Section 302 of the Indian Penal Code by the learned trial Judge is perfectly legal. It requires no interference and therefore the Appeal deserves to be dismissed.

Resultantly, the Division Bench then concludes by holding in para 18 that, Accordingly, the Appeal stands dismissed.

In sum, we thus see that the Aurangabad Bench of Bombay High Court has made it indubitably clear that advocates should possess up-to-date knowledge of law and should not cite any decision that is no longer a good law. It was rightly held by the Division Bench that the accused had killed his daughter by strangulation and therefore his conviction for the offence that is punishable under Section 302 of the Indian Penal Code by the learned trial Judge is perfectly legal. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh