RADHESHYAM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard. Admit. Taken up for final disposal forthwith by consent of parties. There is no need to call for Record and Proceedings as copy of charge- sheet has been filed along with memo of revision.

(2.) Although it is stated in the First Information Report that this applicant Radheshyam conspired with other co-accused viz. Amol Borkar, Rekhabai Borkar and Pandurang Borkar and subjected deceassed Sonali to cruelty of unbearable nature and forced her to consume poison, there is absolutely no material collected during the course of investigation to support this allegation. The presence of the applicant at the time of commission of crime is not stated by any witness; no witness has stated that this applicant had at any point of time ill-treated the deceased and there is also no statement of any witness indicating that this applicant himself indulged in subjecting the deceased to the beating or at least instigated the husband of the deceased to treat her with cruelty of unbearable nature or for that matter, on any count. Learned Additional Public Prosecutor also could not show to me presence of any such material or circumstance or statement of any witness on record of the case so as to point out any accusatory finger towards the applicant. So, merely using the word "conspiracy" as has been mentioned in the First Information Report, is not enough and the prosecution must show that the fact of conspiracy can be prima facie seen to be arising in this case from the statements of witnesses or the circumstances of the case, which is not the case here.

(3.) Learned Additional Public Prosecutor has pointed out to me that there is a confessional statement recorded under Section 27 of the Indian Evidence Act. The alleged confessional statement is recorded by the police while the applicant was in police custody and he admitted that at the time when the poisonous substance or liquid was forcibly administered to the deceased, he had caught hold of both hands of the deceased. This statement was never recorded in the immediate presence of the Magistrate. Apparently, this statement has been shown to be recorded by taking recourse to the provisions of Section 27 of the Evidence Act. But, no discovery of facts is discernible from this statement. Admittedly, no fact has indeed been disclosed by this applicant. So, such a statement not only for its confessional part, but also for the discovery part cannot be proved in evidence by the prosecution in view of the bar under Sections 25 to 27 of the Evidence Act.