Gujarat High Court
Ramesh Rumsibhai Gamit vs State Of Gujarat on 7 April, 2014
Author: Bhaskar Bhattacharya
Bench: Chief Justice
R/CR.A/1645/2008 CAV JUDGMENT
CR.A16452008Rj2.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1645 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE Sd/-
MR. BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE Sd/-
J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment?
2 To be referred to the Reporter or not ?` Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the constitution of
India, 1950 or any order made there under?
5 Whether it is to be circulated to the civil judge? No
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RAMESH RUMSIBHAI GAMIT
Versus
STATE OF GUJARAT
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Appearance:
MR PB GOSWAMI, ADVOCATE for the Appellant.
MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for the Respondent.
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CORAM: HONOURABLE THE CHIEF JUSTICE
MR. BHASKAR BHATTACHARYA
and
Page 1 of 49
R/CR.A/1645/2008 CAV JUDGMENT
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 07/04/2014
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. This appeal is at the instance of a convict for the offence punishable under section 302 of the Indian Penal Code and is directed against order of conviction and consequent sentence dated 25 th April 2008 passed by the learned Additional Sessions Judge, Surat, at Vyara, in Sessions Case No. 29 of 2007, thereby convicting the appellant for the offence punishable under section 302 of the Indian Penal Code and awarding life imprisonment and also a fine of Rs.500/- with a stipulation that in default of payment of the same, the appellant would undergo further simple imprisonment for one month.
2. The translated version of the charge framed against the appellant is quoted below:
At about 19.00 hours on 22/01/2007, on the basis of a doubt that the deceased Sevantiben was keeping illicit relationship with another person, you gave a stroke on her forehead by a wooden log and caused serious injury and caused her death and thereby you, the accused, have committed the offence punishable under section 302 of the Indian Penal Code within the jurisdiction of this Court.
Therefore, I pass an order to conduct the trial against you.Page 2 of 49 R/CR.A/1645/2008 CAV JUDGMENT
3. The case made out by the prosecution may be summed up thus:
3.1 The complainant, one Bhikhabhai Mochdabhai Gamit, lodged a complaint on 22nd February 2007 that on 21/2/07, one Sevantiben came back to the house of his brother at 8 Hours in the morning and stated that she would be going to Vyara for work next day morning, but he did not know as to when she came. On 22nd February 2007, when he was present at his house at 7 hours in the evening, the daughter of this Sevantiben, namely, Pratiksha, came crying to his house and stated that her mother had sustained injury on her forehead and it was bleeding profusely and she was not speaking anything. As she stated this, the complainant immediately went to the house of his brother, Ziniabhai, and found Sevantiben lying in supine state on a cot in the inside part of house and she sustained a big wound on her forehead and blood was oozing out from therein.
Therefore, he immediately called her and asked as to who had assaulted her; but she did not give any reply and then, on checking her breath and pulse, he felt that she died. He, therefore, immediately called his son, namely, Bhagubhai, and his daughter, namely, Vijna, and informed them regarding this incident and sent them to call the leader of the village and a former Sarpanch, Shri Kesarbhai Laljibhai Gamit. As they came and they also checked this Sevantiben and stated that she was dead. Meanwhile, Chhagniben, Page 3 of 49 R/CR.A/1645/2008 CAV JUDGMENT the wife of Ziniabhai and other persons living in the neighbourhood gathered over there and this Chhagniben told them that her son-in- law, Rameshbhai, and her daughter Sevantiben were talking peacefully, but on checking in surrounding, this Rameshbhai was not found. Meanwhile, James - the son of his brother, Kalidasbhai, came and told them that a telephone call was received from Rameshbhai at his house and he asked as to whether Sevantiben had died or alive and this James told him that Sevantiben had died. As they were discussing regarding this, a telephone call was received by his brother Kalidasbhai from Kakrapar Police Station and informed that a person named Rameshbhai of village Bedkuva Dur came at Police Station and stated that he has murdered his wife named Sevantiben and inquired whether any such incident had taken place. Thus, on 22 nd February 2007, Rameshbhai Rumsibhai Gamit, residing at Bedkuva Dur came at village Bedi and caused the fatal injuries to his wife Sevantiben on her head with some weapon on the suspicion that she was having some illicit relationship and ran away.
32. Upon getting the complaint on 22nd February 2007, the complaint was registered before PSI, Songadh Police Station, and the investigating officer PSI started the investigation in this case, He recorded further statement of the complainant and the concerned witnesses and also drew the panchanama of the place of offence, inquest panchanama and the panchanama of the physical condition of the accused. Ultimately, a charge-sheet against the accused has Page 4 of 49 R/CR.A/1645/2008 CAV JUDGMENT been filed under section 173 (2) of the Code of Criminal Procedure in the Court of Judicial Magistrate First Class. However, as the offence was triable only by the court of Sessions, the case was committed to the Court of Sessions.
3.3 The Sessions Court framed charges against the accused. The accused pleaded "not guilty" and claimed to be tried. 3.4 The prosecution examined the following witnesses in support of the prosecution case.
Sl Name PW No. Exh. No
No.
1 Bhikhabhai Mochdabhai Gamit [Complainant] PW.1 Exh.10
2 Dr. Parimal Uttambhai Patel PW.2 Exh.14
3 Chhagniben Ziniabhai Gamit PW.3 Exh.17
4 Minor Pratikshaben Rameshbhai Gamit PW.4 Exh.18
5 Jamesbhai Kalidas Gamit PW.5 Exh.19
6 Yakub Vasanji Gamit [Panch witness] PW.6 Exh.20
7 Navalbhai Radubhai Gamit [Panch witness] PW.7 Exh.23
8 Krishnakumar Gulabbhai Chaudhari [Panch PW.8 Exh.26
witness]
9 Mahendra T. Chaudhari PW.9 Exh.27
[Police witness]
10 H.S.Ratnu [Police witness] PW.10 Exh.31
3.5 The prosecution also produced the following pieces of
documentary evidence.
Page 5 of 49
R/CR.A/1645/2008 CAV JUDGMENT
Sl. Description of documents Exh. No.
No.
1 Complaint Exh.11
2 Panchanama of the place of offence Exh.21
3 Inquest Panchanama Exh.12
4 Muddamal Recovery Panchanama Exh.25
5 Panchanama of physical condition of the accused Exh.24
6 Panchanama of the clothes of the deceased Exh.13
7 P.M. note of the deceased Exh.16
8 FSL Report and Serological Report Exh.34
and 35
3.6 The accused denied the allegations levelled against him by the evidence adduced by the prosecution under section 313 of the Code of Criminal Procedure and asserted that he was innocent. 3.7 The learned Sessions Judge found the appellant guilty, convicted him and consequently, awarded the sentence as stated above.
3.8 Being dissatisfied, the convict has come up with the present appeal.
4. Mr. Goswami, the learned advocate appearing on behalf of the appellant has taken us through the entire evidence on record and contended that in the case before us, there was no evidence to implicate the appellant for the murder of his wife and the learned Sessions Judge virtually solely relied upon the alleged extra-judicial Page 6 of 49 R/CR.A/1645/2008 CAV JUDGMENT confession made by the accused person before an officer of another police station. Mr. Goswami contends that such confession made before a police officer is not admissible in evidence, and thus, his client has been convicted on the basis of evidence which is inadmissible in evidence. Mr. Goswami further contends that in the case before us, there is no eyewitness, and at the same time, there is no evidence to show that the relationship between the appellant and his wife was strained and that he used to suspect his wife of some illicit relationship. Mr. Goswami contends that in the case before us, the learned Sessions Judge should not have relied upon the evidence given by the 11 year old daughter of the appellant regarding illicit relationship of her mother with somebody else. Mr. Goswami further submits that what was the nature of the alleged illicit relationship has not been proved before the Court. Mr. Goswami, therefore, prays for setting aside the order of conviction and sentence which are based on inadmissible evidence.
5. Mr. Raval, the learned Additional Public Prosecutor appearing on behalf of the State, has, on the other hand, opposed the aforesaid submission of Mr. Goswami and has contended that in the case before us, there was sufficient evidence to establish that the accused had no good relationship with the victim and on that basis a suspicion about her illicit relationship has been proved to be correct by the evidence of the 11-years-old daughter of the deceased. Mr. Raval, therefore, prays for dismissal of the appeal.
Page 7 of 49 R/CR.A/1645/2008 CAV JUDGMENT
6. Therefore, the only question that falls for determination in this appeal is whether in the facts of the present case, the learned Sessions Judge was right in convicting the appellant by relying upon the extra-judicial confession of the appellant before a police officer of another police station before the start of investigation when the appellant was not even arrayed as an accused in the present proceedings.
7. Before we proceed to take into consideration the aforesaid question in the light of the arguments advanced by the learned counsel for the respective parties, it will be appropriate to refer to the deposition of the prosecution witnesses.
8. PW No.1, Bhikabhai Mochadabhai Patel, the complainant, in his examination-in-chief has stated that he was a resident of Sadak Faliya of village Bedi and was a farmer. He had two other brothers; he was the eldest, Kalidas is younger to him and Ziniabhai is the youngest. They, the three brothers, were residing in the neighborhood and in the same Faliya. Chhagniben was name of wife of his brother Ziniabhai and they had two daughters. Ranjanben was the elder and Sevantiben was younger to her. Elder daughter Ranjan was married in the village whereas Sevantiben was married to Ramesh Rumsi of village Bedkuvandur of Vyara Taluka before twelve years of the incident. Sevanti had one elder daughter Pratiksha and one son Page 8 of 49 R/CR.A/1645/2008 CAV JUDGMENT Vishal. Pratiksha, the elder daughter of Sevantiben was living with his brother Ziniabhai at village Bedi. She was studying in Standard- 6 of the school of village at the time of incident.
8.1 This witness has stated that Sevanti, the daughter of his brother, had a love affair with one Kalubhai of Panch Pipla before one and half year of the incident. Therefore, Sevanti had gone to live with Kalu and thereafter, Sevanti was living at village Bedi. After Kalubhai had left Sevanti, she used to live at village Bedi and came to Vyara for work whereas Ramesh was residing at village Bedkuva. At the time of incident, out of the parents of Sevanti, Chhagniben was at village Bedi, whereas, Ziniabhai had gone to Surat for work. 8.2 This witness has further stated that the incident occurred before eleven months. He did not remember the date of incident but it had occurred before Holi. On the day of incident, he had gone to wander near trees and when he returned from there, Pratiksha - the daughter of Sevantiben came crying and told that her mother Sevantiben was lying in a bleeding condition at house. Therefore, he went to the house of Sevanti and after going there, he saw that Sevanti was lying in a bleeding condition on the bed in her house. She had sustained an injury on forehead. He shook her but she did not respond to him. On examining her, Sevantiben was found dead. Thereafter, he called his son Bhagubhai and Vijay- the son of his elder brother and they were informed about this matter. Thereafter, Vijay and Bhagu had called Page 9 of 49 R/CR.A/1645/2008 CAV JUDGMENT Kesarjibhai Laljibhai Gamit, a former Sarpanch of their village. He also examined Sevantiben and it was found that Sevantiben was dead. Thereafter, the people from surroundings gathered there and one lady whose name was Chhagniben was also there, who happened to be his sister-in-law and the mother of Sevantiben. Chhagniben had told them that she had gone to sit at the house of neighbour and before that Ramesh, the accused, and Sevantiben were present in the house and they were talking cordially. When this witness had gone to house, Ramesh was not present in the house and he had fled. Thereafter, James - the son of his brother also came and he told that he had received a phone call from Ramesh from Kakrapar and Ramesh had asked him on the phone whether Sevanti was alive or not and this James had replied him on the phone that Sevantiben had died. This fact was told by James to them. Thereafter, a telephone call from Kakrapar Police Station came at the house of his brother Kalidasbhai. He did not know what the purpose of the phone call was and who had made the call. The Kakrapar police had informed that Ramesh had come to Police Station and confessed that he had committed murder of his wife, Sevanti.
8.3 This witness has stated that thereafter, he went to Songadh Police station to lodge complaint with regard to the incident. Police had written the complaint as it was dictated by him and thereafter, his signature was obtained upon the complaint. He has proved the complaint and his signature thereon and has stated that the details Page 10 of 49 R/CR.A/1645/2008 CAV JUDGMENT written on it are true.
8.4 This witness has stated that as the accused happened to be his nephew-in-law, he knew him.
8.5 In the cross examination of this witness by the learned advocate for the accused, this witness has stated that as the deceased Sevantiben had a love affair with one Ratanbhai alias Kalubhai of village Panch Pipla before one and half year of the incident, she used to run away with him frequently and thereafter, they all used to persuade her and bring her back to home. She had lived for a week or ten days and returned home. As they had persuaded Sevanti, she realized her mistake and her husband Rameshbhai had taken her to his house. Deceased Sevanti used to come at Vyara for labour work. This witness has admitted that as deceased had love affair with said Ratanbhai alias Kalubhai, there was a quarrel between the deceased and the accused. The accused and the deceased they were living separately before one and half month of the incident. The accused Ramesh was residing at village Bedkuvan of Taluka Vyara and Sevantiben was residing at village of her mother, Bedi. This witness admitted that if one wants to travel between Bedi and Bedkuva, there was no facility of any vehicle, bus or auto rickshaw and there was a distance of about six to seven kms between Bedi and Bedkuvan. He has admitted that such fact was dictated in his complaint that the deceased had come for labour work at Vyara before eight to ten days Page 11 of 49 R/CR.A/1645/2008 CAV JUDGMENT of the incident and she had not returned to house of her mother at village Bedi. This witness has also admitted that he had not eye- witnessed the incident. He has further admitted that he did not have any personal information as to who had killed Sevantiben but Pratiksha had told him. He has admitted that it was not dictated in his complaint that Chhagniben had told him such fact that Sevanti and Ramesh were talking cordially before she went to sit at house of neighbour. This witness has denied that he was falsely stating that on the day of the incident, Ramesh had come to house of Chhagniben at village Bedi and he was present there. He has admitted that as the house of his brother was next to his house, he could know if any person came there or if any sound came from there. He has admitted that sound of a phone ring could also be heard if a call phone call came. He had not heard the sound of any phone ring on the day of incident. He had not seen any person coming or going in the surrounding of his house. He has denied that when they were standing, James had told them that a phone call of Ramesh had come from Kakrapar and he asked on the phone as to whether Sevanti was alive or not and the said fact was not told by James to them. Similarly, he has also denied that James had not informed them that a phone call from Kakrapar Police Station came to his house and told him that a person named Ramesh had come to Police Station stating that he had killed his wife and they had inquired whether such incident had occurred or not. He has denied that he had lodged a false complaint against the accused.
Page 12 of 49 R/CR.A/1645/2008 CAV JUDGMENT
9. P.W. No.2 is Dr. Parimal Uttambhai Patel. In his examination-in- chief, he has stated that at the time of giving deposition, he was discharging duty at Aahwa General Hospital as Medical Officer and before that, in February 2007, he was discharging duty as Medical Officer in Agasvan Primary Health Centre of Songadh Taluka. On 23rd February 2007, at about 10.30 hours, he was present on his duty when P.S.I. Songadh had sent dead-body of Sevantiben Rameshbhai Gamit with a yadi for the purpose of examination of the dead-body. He has proved the yadi and his signature thereon.
9.1 This witness has stated that as per the said yadi, post-mortem of the dead-body was conducted by a panel of doctors, on the same day, i.e. 23rd February 2007 at 10.40 hours in the morning after receiving the yadi and dead-body, he and Doctor Shankar Z Gamit had started post-mortem of the dead-body and completed at 11.15 hours. During that time, the following observations were noted. [1]. The dead-body was of a Hindu lady of about 27 years old. A maroon coloured nighty, white coloured bra, and light maroon coloured panty were there on it. There was one red colored bangle in right hand. One golden colored ear-ring was worn in both ears and silver anklets were worn in both legs and blood stains were found on clothes.
[2]. The structure of body was average. It was cold. The process of Page 13 of 49 R/CR.A/1645/2008 CAV JUDGMENT rigor mortis was seen on all parts of the body the P.M. lividity was not found.
[3]. Following injuries were found during the external examination of the dead-body.
[i]. Lacerated wound about 4.5 cm x 2 cm in diameter deep to the brain, with zigzag and irregular margin right to left in direction, red brown coloured on the frontal part of head. Skull bone of injured side was compressed and fractures was found in many places and forced in brain matter.
[ii]. Lacerated scalp injury about 6 cm x ½ cm long anterior to posterior in direction with irregular margin on the left temporal part of head under lying skull is compressed. [4]. On making external examination, fracture was seen as mentioned in column No. 17 and aforesaid injuries were ante-mortem. [5]. During the internal examination the following injuries were found:-
[1]. On examining the part of head, the injuries mentioned in column no. 17 were found below the skin, whereas internal injuries mentioned in column No. 17 were found in upper and lower part of skull. On examining the brain, it was found that brain matter over the frontal part was grossly injured. The pieces of bones of head had entered into the brain and the brain layer was broken down and massive blood clotting had taken place. Massive blood clot about 7.5 cm x 4.5 cm was Page 14 of 49 R/CR.A/1645/2008 CAV JUDGMENT seen in the left temporal side of head.
[2]. There were no bruises, abrasions or swelling on chest wall and ribs. Pleura of both lungs were congested. Vocal cord, windpipe, and both lungs were pale and congested. Heart was in normal condition.
[3]. On examining the part of stomach, it was found normal. No food substance was found in Oesophagus whereas on examining both intestines, food in semi-digested condition was found, and smell was coming from it and the intestine was empty. Liver, stomach, spleen, kidney were pale and congested. Urinary bladder was empty. There was no injury found in private part.
[6]. This lady might have taken food before about one and half hour to three and half hours of her death.
9.2 As per their opinion, the cause of death was massive brain haemorrhage due to gross head injury caused by impact of a blunt hard object and due to shock and asphyxia. They had given P.M. note in this regard, and he has proved the same and the signature of both the Doctors thereon.
9.3 This witness has stated that as per their opinion, the injury sustained to deceased can be caused by a heavy and solid blunt substance. After looking at the muddamal article no.4, this witness has stated that the injuries noted by them could be sustained by the said article.Page 15 of 49 R/CR.A/1645/2008 CAV JUDGMENT
9.4 This witness has further stated that according to their opinion, the injuries noted by them were such that could cause death of a person in the ordinary course of nature.
9.5 In the cross-examination of this witness by the learned advocate for the accused, this witness has stated that he had made his signature on P.M. note and the entries in the post-mortem note were written in his handwriting. He has denied that if a person dashes with the wall, then the injuries noted by them could be sustained. This witness has denied that if a person is given a push or his leg slips, then such kind of injuries can be sustained. He has also denied that if a person falls on a pointed, solid substance then such kind of injuries might be sustained.
10. PW. No.3, Chhagniben Ziniyabhai Gamit, is the mother of the victim. In her examination-in-chief, she has stated that she and her husband were residents of Sadak Faliya at village Bedi and she did household work. She had two daughters. The elder daughter, Ranjan, was married to Chhotubhai of their village. Sevantiben,the younger daughter was married to Rameshbhai Rumsibhai of village Bedkuvan and her daughter has one daughter, namely Pratiksha, and a son, namely Vishal. Her daughter, Sevanti, had died before one year but she did not remember the date and month. Her daughter Sevanti was killed by her son-in-law. She had gone to call children at the time of Page 16 of 49 R/CR.A/1645/2008 CAV JUDGMENT incident. Pratiksha was studying in seventh standard in Bedkuvan primary school and she was living with her at the time of incident.
She did not know as to why her son-in-law killed her daughter Sevanti. Her daughter Sevanti was alone in the house at the time of incident. Her son-in-law Ramesh came at that time and went after killing her. Her daughter Sevanti used to go Vyara for labour work and she had returned in the evening of the previous day. Her son-in-law Ramesh had come at that time. Her daughter Sevanti and son-in-law Ramesh were talking when she was at home. Thereafter, she had gone to call children. Pratiksha had gone to watch television in the village. This witness has stated that she was sitting at the house of Ukadiyabhai in their street. Thereafter, she took her daughter Pratiksha and went to the house. Sevanti was lying on the bed at that time. She went there and saw that she had sustained injury on forehead and there was bleeding. She called Sevanti but she did not speak anything. There was no one there. This witness has stated that it was not true that Pratiksha had come crying and told her the fact. Thereafter, Bhagubhai, Vijay- son of her brother, Bhikabhai, etc had come, therefore she told all these people about the incident. Thereafter, Kesarjibhai, the ex-sarpanch of their village was informed about the incident. She has stated that she knew James, son of Kalidas, who came there. James came but did not have a talk with them. Thereafter, Ramesh ran and came to colony. He went to Kakrapar police Station. From there he had made a phone call as to whether Sevanti was alive or not. Ramesh had enquired this fact from Page 17 of 49 R/CR.A/1645/2008 CAV JUDGMENT James by making a phone call. Thereafter, James had talked such fact to them. They did not come to know anything from Kakrapar Police Station.
10.1 This witness has stated that she did not know as to whether Sevanti had any relationship with another person or not because Sevanti used to go for work everyday. She has stated that it did not happen that Sevanti had gone with some other person and returned after spending few days. She has stated that she did not know Ratanbhai alias Kalubhai of Panch Pipla. She did not know that Sevnati had gone to live with Ratanbhai. She has also stated that she did not know that Sevantiben frequently used to run away with Ratanbhai and therefore quarrel between two of them used to take place and hence, her son-in-law Ramesh had killed her. She did not know as to why her son-in-law had killed her daughter. Ramesh had not come after the death of her daughter because he had made himself present at Kakrapar Police Station. After death rites of her daughter were performed after conducting post-mortem of her daughter Sevanti, her Jeth (elder brother of her husband) Bhikhabhai Mochadabhai had lodged complaint with Songadh Police Station about the incident. Police had taken her statement. She has identified the accused who was present in the Court.
10.2 In the cross-examination, this witness has stated that the Police had not made any inquiry from her. The Police had not taken her Page 18 of 49 R/CR.A/1645/2008 CAV JUDGMENT statement. She had not eye-witnessed the incident. She had not heard the sound of phone's ring. She did not know as to whether phone came at house of James or not. According to this witness, accused Ramesh was not living with them at the time of incident but he was living alone at village Bedkuvan of Vyara. Sevantiben and Pratiksha were living with her and they live at village Bedi. Bedi and Bedkuvan village are situated at a distance from each other. She had not seen Ramesh in her house on the day of incident. 10.3 This witness has stated that her daughter Sevanti was alone on the day of incident and she was cooking. This witness has denied that she was deposing the fact falsely that Ramesh had given a blow with a wood on the head of Sevanti on the day of incident. She has also denied that James had come to her house after the incident and stated that a phone call of Ramesh had come from Kakrapar Police Station and inquired whether Sevanti was alive or dead. There is no facility of bus if one wanted to come from Bedkuvan to Bedi during the night time. She has denied that though the accused had not killed her daughter, she was falsely deposing.
11. Pratikshaben Rameshbhai Gamit, the minor daughter of the victim as well as the accused, was examined as PW. No. 4. As she was a minor, the learned Sessions Judge asked few questions to her and after ascertaining that she was able to depose on oath, her deposition was taken. In her examination-in-chief, she has stated that Page 19 of 49 R/CR.A/1645/2008 CAV JUDGMENT at the time of giving deposition, she was a resident of village Bedkuva and lived with her grandmother (father's mother) Ushmaben. She has stated that at the relevant time, she, her mother and her brother were all staying with her grand mother {mother's mother). At that time, she was residing with her mother Sevantiben and her younger sister Chhagniben and her brother. At the time of the incident, her father Rameshbhai was residing at the village Bedkuva. She was at her home at the time of the incident. She did not remember as to before how much time the incident had occurred but one year might have passed since her mother expired and she did not remember the date or the month. Her mother had relation with another person called Ratan, and her father did not like it, and hence, he had killed her mother. She had not seen the weapon by which he had beaten. At the time of the incident, only her mother and father were there in the house. She was at another house at that time. On the day of the incident, she had gone to her school in the morning at half past nine and had come back home at half past four in the evening. Her mother and father were present there at that time. Her mother and father were not quarreling when she came home and her father had not given a blow with a piece of wood to her mother in forehead. Thereafter, Bhikhadada was informed about it. Looking to her mother, she was breathing but was not speaking. When she was at home, mother and father were talking quietly but she did not know how they were talking afterwards. However, her mother had illicit relation with Ratanbhai. She did not know where her father had gone thereafter. Page 20 of 49 R/CR.A/1645/2008 CAV JUDGMENT Thereafter, police came at their place and had enquired from her. Thereafter, she had talked to Bhikhadada of their village regarding the incident. After her mother had expired, she had been taken to hospital and funeral rites were performed. Her father had not come at that time also. She did not know why he did not come. She did not know where her father was. She has identified the accused who was her father.
11.1 In the cross-examination, this witness has stated that on the day of the incident, she came home at four o'clock in the evening and at that time, only her mother was present at the house, and her father was not present, therefore, she has not seen that her father might have given a blow of wooden-piece to her mother. Thereafter, her mother was cooking in home. Thereafter, she had gone out to play. Therefore, she had not eye-witnessed the incident. She did not know who had beaten her mother. On that day, she had not seen her father. She has admitted her father was residing at the village Bedkuva. She has also admitted that at present, she was residing with a relative of her father. She has admitted that the relative of her father keeps her well. Her father was not present at home at the time when she came home from school at four o'clock and when she went out of the home to play afterwards.
12. PW No. 5, Jamesbhai Kalidas Gamit, in his examination-in-chief has stated that he was a resident of Sadak Faliya at village Bedi and Page 21 of 49 R/CR.A/1645/2008 CAV JUDGMENT was doing job. He knew the deceased Sevanti. She was residing besides their house with her mother Chhagniben and daughter Pratiksha. Sevanti also had a son and his name was Vishal. Sevantiben has died. The incident had occurred on 22 nd February 2007. This witness was at his house at the time of the incident when his phone rang and he had picked it up and Rameshbhai Rumsibhai was speaking from the other end. He had called from Anumala, that is, from Kakrapar Police Station. He had enquired of him on phone as to whether Sevantiben was dead or alive and therefore, he told Ramesh that Sevanti had died. People in the street were talking that Sevanti had died, therefore, he had come to know. Thereafter, Ramesh had put down the receiver. Thereafter, there was a phone- call of some policeman from Kakrapar Police Station at about half past seven or eight in the evening, and he had been informed by phone- call that Rameshbhai Rumsibhai had appeared in Kakrapar Police Station and stated that he had murdered his wife, and the caller inquired whether the said fact was true or false, and he replied that the fact was true. Sevanti was residing in their street with her mother and children. Ramesh was residing at the village Bedkuva at his house and came occasionally at the place of Sevanti. Sevanti came for labour work near Kherwada near Vyara. This witness has sated that he had not gone to the house of Sevanti but had seen from a distance only that Sarpanch and other persons had gathered at the house of Sevanti. Thereafter, he had told the fact to Chhagniben and other persons gathered there that there was a phone-call of the Page 22 of 49 R/CR.A/1645/2008 CAV JUDGMENT accused Ramesh from Kakrapar Police Station. Thereafter, Bhikhabhai had given complaint regarding the incident. This witness has stated that the Police had inquired from him.
12.1 In the cross-examination, this witness has stated that he used to come to Vyara for doing service. He had gone to Vyara on the day of the incident also and his duty-hours are from quarter past ten in the morning to five o'clock in the evening. On the day of the incident, he had a work at Vyara, therefore, he had reached home late. He was tired due to work. He has denied a suggestion that as he had work on that day, he had reached his house at about eight or half past eight at night. This witness has stated that he reached his home in the village between half past six and seven in the evening. His parents and his brother and sister also lived in his home. They were also present at his home. This witness has admitted that the phone-calls of his relatives were also received at home. He might not know as to whose phone-calls were received at his house in his absence. This witness has stated that he has a mobile and he uses his mobile. This witness had admitted that the facility of phone with caller ID was not available at his house at that time but now it has been arranged for. He has denied that on that day, the accused Ramesh Rumsi had not made any phone-call at his house in the evening and had not told that he was calling from Kakrapar Police Station and had not inquired as to whether Sevanti was dead or alive. This witness has also denied that Ramesh Rumsi had not made this phone-call. This witness has Page 23 of 49 R/CR.A/1645/2008 CAV JUDGMENT stated that he has no personal information about the incident. This witness has also stated that he had not gone to the house of Chhagniben after the incident. After the post-mortem of the dead- body had been performed, he had gone in the funeral ceremony. 12.2 This witness has stated further that in the phone-call received from Kakrapar Police Station, the police-person had not given his name or buckle number but had only said that he was speaking from Kakrapar Police Station. This witness has admitted that had it not been told that he was speaking from Kakrapar Police Station, he could not say as to from where this phone-call was received. This witness has also stated that he was on speaking terms with the accused Ramesh Rumsi. This witness has denied that if any other person spoke making copy of the voice of Ramesh and said that he was Ramesh, it could be believed that he was Ramesh. He has admitted that the police had not taken his statement. This witness has also stated that he talked to Bhikhabhai. He has denied that he was stating false facts though no phone-call had been received from Ramesh Rumsi or from Kakrapar Police Station.
13. PW. No.6, Yakub Vasajji Gamit, in his examination-in-chief has stated that on 23rd February 2007, police of Songadh had called him to remain as a pancha near the house of Ziniyabhai. Maganbhai Viriyabhai was as the second pancha. The panchas had been called for drawing of the panchnama of the place where Sevanti had died. Page 24 of 49 R/CR.A/1645/2008 CAV JUDGMENT They had got the panchnama of the place of the offence drawn. Police had seized soil from the place. The said panchnama had been drawn in their presence. Thereafter, they had put signature in panchnama as a pancha. Police had put signature in terms of having signed before the police. This witness has proved the panchnama. 13.1 In the cross-examination of this witness by the learned advocate for the accused, this witness has stated that he was doing farming. He has denied that he happened to go to the village Songadh and the Police had obtained his signature in Songadh. This witness has admitted that the police had kept everything ready and had obtained his signature. He has admitted that first he was called and then his signature was taken and then the signature of Maganbhai was obtained. This witness has stated that the panchas have not dictated the fact written in the panchnama. This witness has also stated that when they put signature, the panchnama was ready. This witness has admitted that they had not been called as pancha at the house of Sevanti but at the police-station, hence, he did not know what the condition of the place of the incident was. Soil has also not been seized from the place of the incident.
14. PW No. 7 Navalbhai Radubhai Gamit is a panch witness to the arrest of the accused and recovery of the muddamal weapon. In his examination-in-chief he has stated that on 23rd February 2007, he was called as a pancha by the police of Songadh. Krishnakumar Gulabbhai Page 25 of 49 R/CR.A/1645/2008 CAV JUDGMENT was there with him as the second pancha. They were called by the Songadh Police as panchas in the case of the offence of murder. Police had prepared two panchnamas there. On being asked to put signature thereupon, he put signature. He did not know anything else except this. The accused who is present in the Court on the date of deposition was in police-custody but they had put signatures only. He has identified his signature on the panchnama and the police had put their signature in 'before me'.
14.1 This witness has stated that it was not true that the accused present in the Court shown willingness to take out and show something before them, the panchas, and that after its primary panchnama was drawn, the accused had taken them to some place and from there he had taken out the muddamal wooden log which was produced in the Court. This witness also stated that it was not true that the police arrested the accused in their presence and that the accused took out and gave some muddamal before the panchas. He has stated that he did not know anything else.
14.2 This witness was declared hostile, and upon the Court granting permission, this witness was cross-examined by the learned Additional Public Prosecutor.
14.3 In the cross-examination by the APP, this witness has denied that on 23rd February 2007, the police of Songadh had called him as Page 26 of 49 R/CR.A/1645/2008 CAV JUDGMENT pancha at first as the accused who is present in the Court was to be arrested. This witness has denied that the accused Ramesh Rumsi was present before the police. He has also denied that after drawing the panchnama of his physical condition before the panchas, the police had arrested him in the case of the offence. He has also denied that the panchnama of Exh. - 24 had been written by police as dictated by the panchas.
14.4 This witness has also denied that police had again called them the panchas to draw the panchnama of Exh. - 25. This witness has denied that the accused Ramesh Rumsi was present before the police and that he had stated to take out and show something willingly. This witness has further denied that police had drawn the primary panchnama. He has also denied that thereafter, the accused had taken the police and the panchas at the village Bedi via village Mandal and Agasvan in a government vehicle and took them to the house of his in-laws, where the accused had taken out and produced a wooden log from behind a bundle of rice. He has also denied that as the officers of F.S.L. was present, they had seized the wooden log for the purpose of investigation. He has also denied that there were stains of blood below an iron-bed inside the house, or that the officers of F.S.L. had seized the same with soil for the purpose of investigation. He has also denied that the accused was wearing a shirt of parrot-colour and a pant of coffee colour which were seized in presence of the panchas. He has also denied that thereafter, the Page 27 of 49 R/CR.A/1645/2008 CAV JUDGMENT police had written the panchnama as dictated by the panchas or that thereafter, the panchas and police had put signatures. He has denied that despite the fact that the muddamal-wooden log produced in the Court had been taken out and shown by the accused before the panchas and despite the fact that police had arrested the accused in presence of the panchas and had seized the wooden log, he was giving a false deposition to save the accused.
14.5 This witness was not cross-examined by the learned advocate for the accused.
15. PW. No. 8, Krishnakumar Gulabbhai Chaudhari is another panch witness for arrest of the accused and recovery of muddamal. In his examination-in-chief this witness has stated that on 23rd February 2007, he had been called as a pancha by the police of Songadh in the police-station. Police had prepared two panchnamas there. On being asked to put signature thereupon, he had put signature. He did not know anything else except this. He has identified his signature on the panchnama. The accused who was present in the Court was in police- custody but he had put signatures it.
15.1 This witness has stated that it was not true that the accused showed willingness to take out and show something before the panchas and that after its primary panchnama was drawn, the accused took them to some place and from there he took the Page 28 of 49 R/CR.A/1645/2008 CAV JUDGMENT muddamal wood which is produced in the Court on that date. This witness has also stated that it did not happen that the police arrested the accused in their presence or that the accused took out and gave some muddamal before the panchas. This witness has stated that he did not know anything else.
15.2 This witness was also declared hostile, and was granted permission to be cross-examined by the learned APP. 15.3 In the cross-examination by the learned APP, this witness has denied that on 23rd February 2007, the police of Songadh had called in pancha at first as the accused who is present in the Court was to be arrested. This witness has denied that the accused Ramesh Rumsi was present before the police. This witness has denied that after drawing the panchnama of his physical condition before the panchas, the police had arrested him in the case of the offence. This witness has also denied that the panchnama, Exh. - 24 had been written by police as dictated by the panchas.
15.4 This witness has denied that police had again called the panchas to draw the panchnama Exh. - 25. This witness has denied that the accused Ramesh Rumsi was present before the police or that he had stated to take out and show something willingly. He has also denied that the police had drawn the primary panchnama. He also denied that thereafter, the accused had taken the police and the Page 29 of 49 R/CR.A/1645/2008 CAV JUDGMENT panchas at the village Bedi via the village Mandal and Agasvan in a government vehicle and took them at the house of his in-laws, where the accused took out and produced a wooden log from behind a bundle of rice. He has also denied that as the officers of Forensic Science Laboratory were present, they had seized the wooden log for the purpose of investigation. He has further denied that there were stains of blood below an iron-bed inside the house, the officers of F.S.L. had seized the same with soil for the purpose of investigation. He has further denied that the accused was wearing a shirt of parrot- colour and a pant of coffee colour which were seized in presence of the panchas. This witness has denied that thereafter, the police had written the panchnama as dictated by the panchas or that thereafter, the panchas and the police had put signatures. He has also denied that despite the fact that the muddamal - wooden log produced in the Court had been taken out and shown by the accused before the panchas and despite the fact that police had arrested the accused in presence of the panchas and had seized the wooden log, he was giving a false deposition to save the accused.
15.5 This witness was not cross-examined by the learned advocate for the accused.
16. PW. No. 9, Mahendrabhai Thakorbhai Chaudhari, in his examination-in-chief has stated that on 22nd February 2007, he was performing duty as an A.S.I. in Songadh Police Station and was having Page 30 of 49 R/CR.A/1645/2008 CAV JUDGMENT the charge of the P.S.O., and at that time, the then P.S.I. Shri Ratnu had taken the complaint of the present offence before him and as we had been asked to register an offence on the basis of the said complaint, after registering an offence on the basis of the said complaint, the further investigation had been handed over to the P.S.I. Shri Ratnu. The said complaint was produced vide Exh. - 11. He did not know anything else.
16.1 In the cross-examination by the learned advocate for the accused, this witness has admitted that he did not have any personal information regarding the complaint. He has also admitted that he had not taken the said complaint and it was been taken by another officer - Ratnu and he had only registered the offence. He has admitted that he did not know anything else.
17. PW. No. 10, Hingoldan Sursangbhai Ratnu, is the investigating officer. In his examination-in-chief he has stated that on 22nd February 2007, he was present on duty as P.S.I. in Songadh Police Station, and at eleven o'clock at night, Shri Bhikhabhai Mochdabhai Gamit, Residing at - Bedi informed that when his niece Sevantiben was present at the house of her mother, her husband Ramesh Rumsibhai Gamit murdered her and had run away. Hence, the complaint was written before him and after getting the offence registered, he had himself taken charge of the further investigation. Thereafter, as the complainant had clarified in the complaint that a phone-call had been Page 31 of 49 R/CR.A/1645/2008 CAV JUDGMENT received at the house of their brother Kalidas from Kakrapar Police Station that the accused of this case, after committing the offence had appeared in Kakrapar Police Station, the same had been verified by making a phone-call to the P.S.O. They had left for the place of the incident along with the members of the staff. After reaching the place, on examining, the dead-body of Sevantiben was lying on a bed in a blood-stained condition at her house. As it was not possible to draw the panchnama in detail due to want of light at night, drawing of the panchnama was postponed to the next morning. After keeping two persons of police staff at the place, and after making further enquiry, he had come back to the police-station. Thereafter, on the next day, that is, on 23rd February 2007, inquest-panchnama of the dead-body was drawn going at the village Bedi. The panchnama of the place had also been drawn from the place. Thereafter, the dead-body had been sent to the government hospital of Songadh Police Station for post- mortem , and after post-mortem, the dead-body was handed over to her relatives. The statements of the mother of the deceased present at the place of the incident, her paternal uncle and the cousin of the deceased - James and the neighbours had been taken wherein they had all stated that the marriage of this Sevantiben had been solemnized with Rameshbhai Rumsibhai Gamit residing at Bedkuvadur Ta. Vyara and the couple had one son and one daughter. This Sevantiben went for labour-work at Vyara and had some love- relation with one Ratanbhai alias Kalubhai of the village Panchpipala and had run away twice with him. She had been sent back to her Page 32 of 49 R/CR.A/1645/2008 CAV JUDGMENT matrimonial house by the persuasion of the relatives and leaders and both the husband and the wife were living well. Approximately since last one and a half month, Sevantben was residing at her parental house, that is, at the village Bedi. Since a week prior to the incident, she had gone somewhere with her lover Ratanbhai again and on 21st February 2007, she had come back to her parental house, at the village Bedi. On 22nd, she had gone in the morning saying that he was going to Vyara for labour-work and had come back in the evening. Her husband had come to the village Bedi in the evening to take her back after persuasion. It had come out during the investigation that since his wife Sevantiben frequently ran away with her lover, holding its displeasure, her husband had caused her death by inflicting a blow with a wooden log at the forehead part of the deceased. As evidences were recorded in this regard and as the accused had himself appeared before the P.S.O. in Kakrapar Police Station, on 22nd February 2007, the A.S.I. of the staff of Songadh, Lalji Ganiya and Kishor Sarvasing, were sent from Kakrapar Police Station and this accused had been brought for the purpose of enquiry of this incident. He confessed the offence himself and as there were sufficient evidences against him, he had been arrested on 23rd February 2007 in the case of this offence. As sufficient evidences were found against the accused in the investigation to file a charge- sheet against him, a charge-sheet had been filed in the Court against him.
Page 33 of 49 R/CR.A/1645/2008 CAV JUDGMENT 17.1 This witness has proved the complaint given by the complainant Bhikhabhai and he has identified his signature as also the signature of the complainant on it. This witness has stated that in this case, the panchnama of the place of the offence was drawn in presence of two panchas, the arrest-panchnama of the accused was also drawn, and he has proved the same. This witness has further stated that during the investigation, the accused had voluntarily taken out and shown the wooden log used in the offence and panchnama in this respect thereof had been drawn in presence of two panchas and he has proved the panchnama and the signatures of the panchas in its first part and his signature at the end where it is written, "before me". The muddamal seized during investigation had been sent to F.S.L. along with despatch-note and he has proved the despatch note which was in the handwriting of his writer and has his signatures and of the Deputy Superintendent of Police in it. The FSL had sent the report as regards muddamal and also serology report, which have been proved by this witness. Officers of the Forensic Science Laboratory were called for site-inspection during investigation and he has proved the report in this regard. He has also identified the muddamal and the accused who was present in the court on that date.
17.2 In the cross-examination of this witness by the learned advocate for the accused, this witness has denied that he had not written the complaint of the complainant as dictated by him. He has Page 34 of 49 R/CR.A/1645/2008 CAV JUDGMENT denied that he had written the complaint as per his will and desire and had obtained the signature of the complainant on it. He has also denied that he had written the statements of the witnesses on his own so as to suit his investigation. He has denied that signatures of the panchas had been obtained on ready-made panchnamas after he had prepared all the panchnamas in his own way. He has also denied that the accused had not shown and given the alleged muddamal himself. He has also denied that he was stating falsely that the officers of F.S.L. had come for inspection of the site. He has denied that a false charge-sheet has been filed against the accused despite the fact that there was no evidence of any type on record involving the accused with the offence. This witness has further denied that the accused had not confessed the offence before him. This witness has further denied that he was falsely stating that after the incident, the accused had appeared at Kakrapar Police Station and had confessed the offence before Kakrapar Police Station. He has further denied that he was falsely stating the fact that the accused had made a phone-call from Kakrapar.
18. After hearing the learned counsel for the parties and after going through the materials on record, we find that in this case the learned Sessions Judge has relied upon the confession of the accused person made before the police officer of a different police station. As pointed out earlier, according to the prosecution, the accused had first gone to Kakrapar Police Station and confessed orally before the officer in- Page 35 of 49 R/CR.A/1645/2008 CAV JUDGMENT charge of the said police station that he has killed his wife. Subsequently, from the telephone of the said Kakrapar Police Station, he allegedly made a telephone call to one James, the cousin of the deceased, his wife, inquiring whether the deceased was still alive. When James confirmed that the deceased has already died, the officer in-charge of the Kakrapar Police Station telephoned to the uncle of the deceased whether the incident of killing of the deceased is correct or not and such fact having been confirmed, according to the prosecution, the Investigating Officer went to the Kakrapar Police Station and arrested the accused.
19. As pointed out by the Supreme Court in the case of Aghnoo Nagesia vs. State of Bihar reported in AIR 1966 SC 119, such confession allegedly made by the accused person before the Police Officer of Kakrapar Police Station cannot be admissible in evidence, even though at the time of making confession he was not arrested nor was any investigation started against him. The following observations of the Supreme Court in the above case at paragraphs 9 to 20 are relevant and are quoted below:-
""9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Ss. 24 to 30 of the Evidence Act and Ss. 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is Page 36 of 49 R/CR.A/1645/2008 CAV JUDGMENT a species of admission, and is dealt with in Ss. 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confession caused by certain inducements, threats and promises. Section 25 provides: "No confession made to a police officer shall be proved as against a person accused of an offence". The terms of S. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by S. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Ss. 24, 25 and 26.It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-s. (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of Page 37 of 49 R/CR.A/1645/2008 CAV JUDGMENT the Evidence Act. The words of S. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under S. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by S. 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under S. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by S. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy and the fullest effect should be given to them.
10. Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under S. 157 of the Evidence Act or to contradict him under S. 145 of the Act, if the informant is called as a witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under S. 8 of the Evidence Act. If the information is a non-confessional statement, it is admissible against the accused as an admission under S. 21 of the Evidence Act and is relevant, see Faddi v. State of Madhya Pradesh, Cri. Appeal No. 210 of 1963, dated 24-1-1964: (AIR 1964 SC 1850), explaining Nisar Ali v. State of U. P., (S) AIR 1957 SC 366 and Dal Singh v. King Emperor, 44 Ind App 137: (AIR 1917 PC 25). But a confessional first Page 38 of 49 R/CR.A/1645/2008 CAV JUDGMENT information report to a police Officer cannot be used against the accused in view of S. 25 of the Evidence Act.
11. The Indian Evidence Act does not define "confession". For a long time, the Courts in India adopted the definition of "confession" given in Art. 22 of Stephen's Digest of the Law of Evidence. According to that definition a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. This definition was discarded by the Judicial Committee in Pakala Narayanaswami v. Emperor, 66 Ind App 66 at p. 81:
(AIR 1939 PC 47 at p. 52). Lord Atkin observed:
".......no statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession."
These observations received the approval of this Court in Palvinder Kaur v. State of Punjab (1), 1953 SCR 94 at p. 104; (AIR 1952 SC 354 at p. 357). In State of U. P. v. Deoman Upadhyaya, (1961) 1 SCR 14 at p. 21: (AIR 1960 SC 1125 at pp. 1128-1129). Shah, J., referred to a confession as a statement made by a person stating or suggesting the inference that he has committed a crime.
12. Shortly put, a confession may be defined as an admission Page 39 of 49 R/CR.A/1645/2008 CAV JUDGMENT of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. See Hanumant Govind v. State of M. P. 1952 SCR 1091 at p. 1111: (AIR 1952 SC 343 at p. 350) and 1953 SCR 94 : (AIR 1952 SC 354). The accused is entitled to insist that the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory; and the prosecution intends to use the whole of the statement against the accused.
13. Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession.
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14. If proof of the confession is excluded by any provision of law such as S.24, S. 25 and S. 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section under as S. 27 of the Evidence Act. Little substance and content would be left in Ss. 24, 25 and 26 if proof of admission of incriminating facts in a confessional statement is permitted.
15. Sometimes, a single sentence in a statement may not amount to a confession at all. Take a case of a person charged under S. 301-A of the Indian Penal Code and a statement made by him to a police officer that "I was drunk: I was driving a car at a speed of 80 miles per hour. I could see A on the road at a distance of 80 yards; I did not blow the horn: I made no attempt to stop the car; the car knocked down A". No single sentence in this statement amounts to a confession; but the statement read as a whole amounts to a confession of an offence under S. 304-A of the Indian Penal Code, and it would not be permissible to admit in evidence each sentence separately as a non- confessional statement. Again, take a case where a single sentence in a statement amounts to an admission of an offence. 'A' states "I struck 'B' with a tangi and hurt him". In consequence of the injury 'B' died. 'A' committed an offence and is chargeable under various sections of the Indian Penal Code. Unless he brings his case within one of the recognised exceptions, his statement amounts to an admission of an offence, but the other parts of the statement such as the motive, the preparation, the absence of provocation, concealment of the weapon and the subsequent conduct, all throw light upon the gravity of the offence and the intention and knowledge of the accused, and negatives the right of private defence, accident and other possible defences. Each and every admission of an incriminating fact contained in the Page 41 of 49 R/CR.A/1645/2008 CAV JUDGMENT confessional statement is part of the confession.
16. If the confession is caused by an inducement, threat or promise as contemplated by S. 24 of the Evidence Act, the whole of the confession is excluded by S. 24. Proof of not only the admission of the offence but also the admission of every other incriminating fact such as the motive, the preparation and the subsequent conduct is excluded by S. 24. To hold that the proof of the admission of other incriminating facts is not barred by S. 24 is to rob the section of its practical utility and content. It may be suggested that the bar of S. 24 does not apply to the other admissions, but though receivable in evidence, they are of no weight, as they were caused by inducement, threat or promise. According to this suggestion, the other admissions are relevant but are of no value. But we think that on a plain construction of S. 24, proof of all the admissions of incriminating facts contained in a confessional statement is excluded by the section. Similarly, Ss. 25 and 26 bar not only proof of admission of an offence by an accused to a police officer or made by him while in the custody of a police officer but also admissions contained in the confessional statement of all incriminating facts related to the offence.
17. A little reflection will show that the expression "confession" in Ss. 24 to 30 refers to the confessional statement as a whole including not only the admissions of the offence but also all other admissions of incriminating facts related to the offence. Section 27 partially lifts the ban imposed by Ss. 24, 25 and 26 in respect of so much of the information whether it amounts to a confession or not, as relates distinctly to the fact discovered in consequence of the information, if the other conditions of the section are satisfied. Section 27 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and Page 42 of 49 R/CR.A/1645/2008 CAV JUDGMENT thus fall within the purview of Ss. 24, 25 and 26. Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, S. 30 permits the Court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Section 30 thus shows that matters affecting other persons may form part of the confession.
18. If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of S. 25 is lifted by S. 27.
19. Our attention is not drawn to any decision of this Court or of the Privy Council on the question whether apart from S. 27, a confessional first information report given by an accused is receivable in evidence against him. Decisions of the High Court on this point are hopelessly conflicting. They contain all shades of opinion, ranging from total exclusion of the confession to total inclusion of all admissions of incriminating facts except the actual commission of the crime. In Harji v. Emperor, AIR 1918 Lah 69 and Nur Muhammad v. Emperor, 90 Ind Cas 148 (Lah), the Lahore High Court held that the entire confessional first information report was inadmissible in evidence. In Emperor v. Harman Kisha. ILR 59 Bom 120: (AIR 1935 Bom 26), the Bombay High Court held that the entire confessional report dealing with events on the night of the offence was hit by S. 25, and it could not be said that portions of it dealing with the motive and the opportunity were not parts of the confession. In Page 43 of 49 R/CR.A/1645/2008 CAV JUDGMENT Emperor v. Kommoju Brahman. ILR 1940-19 Pat 301 at pp. 308, 314: (AIR 1940 Pat 163 at pp. 165, 167), the Patna High Court held that no part of the confessional first information report was receivable in evidence, the entire report formed a single connected story and no part of it had any meaning or significance except in relation to the whole, and it would be wrong to extract parts of the statement and treat them as relevant. This case was followed in Adi Moola Padayachi v. State, 1960 Mad WN 528 and the Court admitted only the portion of the confessional first information report which showed it was given by the accused and investigation had started thereon. In State of Rajasthan v. Shiv Singh, AIR 1962 Raj 3, the Court admitted in evidence the last part of the report dealing with the movements of the accused after the commission of the offence, but excluded the other parts of the statement including those relating to motive and opportunity. In Legal Remembrancer v. Lalit Mohan Singh Roy, ILR 49 Cal 167 : (AIR 1922 Cal 342), the Calcutta High Court admitted in evidence the narrative of the events prior to the night of the occurrence disclosing the motive of the offence. This case was followed by the Nagpur Court in Bharova Ramdayal v. Emperor, AIR 1941 Nag 86. In Kartar Singh v. State, AIR 1952 Pepsu 98, the Court admitted in evidence the introductory part and the portion narrating the motive and the opportunity. In Ram Singh v. The State, ILR (1952) 2 Raj 93, the Rajasthan High Court held that where it is possible to separate parts of the first information report by an accused from that in which he had made a confession that part which can be so separated should be admitted in evidence, and on this view, admitted a part of the report relating to motive and subsequent conduct including the statement that the accused had left the deceased lying wounded and breathing in the tibari and there was no hope of her surviving and he had come having covered her with a cloth. Page 44 of 49 R/CR.A/1645/2008 CAV JUDGMENT
In Lachman Munda v. The State of Bihar, AIR 1964 Pat 210, the Patna High Court admitted in evidence portions of the first information report relating to the motive, the opportunity and the entire narrative of events before and after the crime. This case was followed in the judgment under appeal. Some of the decided cases took the view that if a part of the report is properly severable from the strict confessional part, then the severable part could be tendered in evidence. We think that the separability test is misleading and the entire confessional statement is hit by S. 25 and save and except as provided by S. 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence.
20. We think, therefore, that save and except parts 1, 15 and 18 identifying the appellant as the maker of the first information report and save and except the portions coming within the purview of S. 27, the entire first information report must be excluded from evidence."
20. There is no dispute that the accused and the deceased were not residing together for more than one year. According to the prosecution, subsequently, the deceased went to the house of the accused and about a month and a half prior to the date of incident, she came back with her children. The prosecution has tried to make out a case that the accused, on the date of the incident, came to the residence of the deceased and his mother-in-law had seen him talking cordially to the deceased but when she went out to the house of a neighbour, by that time, the accused had killed the deceased and ran away. Such case was also sought to be made through Pratiksha, 11 Page 45 of 49 R/CR.A/1645/2008 CAV JUDGMENT year-old-daughter of the deceased that she had also seen her father talking to her mother after coming back from school. In cross- examination, however, Pratiksha has admitted that when she came back from school, she did not see her father and on the date of incident she did not see her father. Therefore, the case made out by the mother-in-law of the deceased is totally in conflict with the evidence given by the daughter of the deceased. Moreover, as the accused was living in a different place at the distance of more than 7 kms. and there was no bus service available, it is also very difficult to believe that immediately thereafter, he went to Kakrapar Police Station and from there made a telephone call to the cousin of the deceased inquiring whether his wife has already died. It is worth noting that both the mother of the deceased and James have admitted that the police never took any statements from them although according to the prosecution they were very important witnesses.
21. We, thus, find that there is no cogent evidence on record to show that the accused had come to meet his wife on the day of incident. Thus, the theory of "last seen together" also falls. It appears that the wooden beam by which the deceased was struck on her head was lying at the open place near the place of incident and thus, there is no value of discovery under section 27 of the Evidence Act. Even the panchas also could not prove such fact of discovery. Page 46 of 49 R/CR.A/1645/2008 CAV JUDGMENT
22. It appears that the learned Sessions Judge has based the conviction on confession made before the police and thereafter, tried to find out corroboration by other evidence. That should not be the approach of the Sessions Court, as held by the Supreme Court in the case of Chandrakant Chimanlal Desai vs. State of Gujarat reported in 1992 Cri LJ 2757. The following observation of the Supreme Court in the said decision is relevant and is quoted below:-
"5. The confession of the first accused was retracted at the time when the accused was questioned under Sec. 313. In considering the reliability of this confessional statement the High Court had not kept in view the observations of this Court in Kashmira Singh vs. State of M.P., (AIR 1952 SC 159) : (1952 Cri.L.J. 839). In this decision the Supreme Court had observed:
"The confession of an accused person is not evidence in the ordinary sense of the term as defined in S. 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence Page 47 of 49 R/CR.A/1645/2008 CAV JUDGMENT and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.""
(Emphasis supplied)
23. On consideration of the entire materials on record, we, therefore, find that in the case before us, the prosecution based its case on the basis of alleged extra-judicial confession before the police. At that point of time, the accused was not arrested nor did the investigation of the offence commence, nevertheless, such confession before police is not admissible in evidence. We have already pointed out that even the "last seen together" theory tried to be advanced by the prosecution has failed. The prosecution, as it appears had indicted the appellant based on the fact that the victim had illicit relations with others and that is the motive of killing. Although Pratiksha, 11 year- old-daughter has stated that there was illicit relation of the victim, it appears that the mother of the victim even denied such fact. Even if there is any such illicit relation of the deceased with any other person and she stayed with such person for the last few days, such fact cannot lead to the conclusion that it was the husband, who is not staying in that area, had killed her. In a criminal trial, a person cannot be convicted solely based on suspicion. There may be various other reasons for killing the victim when prosecution itself has admitted that the deceased was of an immoral character and used to stay with a person other than her husband. Page 48 of 49 R/CR.A/1645/2008 CAV JUDGMENT
24. On consideration of the entire materials on record, we, thus, find that the order of conviction and consequential sentence imposed by the learned Sessions Judge cannot be upheld and is consequentially set aside.
25. The appeal is allowed. The appellant is acquitted of the offence charged in this case. The appellant be set at liberty at once, if not wanted in any other case.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew Page 49 of 49