Gujarat High Court
The State Of Gujarat vs Maheshbhai Naranbhai ... on 16 July, 2015
Author: Anant S.Dave
Bench: Anant S. Dave, S.H.Vora
R/CR.A/1076/1990 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1076 of 1990
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE S.H.VORA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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THE STATE OF GUJARAT....Appellant(s)
Versus
MAHESHBHAI NARANBHAI PATEL....Opponent(s)/Respondent(s)
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Appearance:
MR HARDIK SONI APP for the Appellant(s) No. 1
MR MANRAJ A BAROT, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE S.H.VORA
Date : 16/07/2015
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.H.VORA) Page 1 of 27 R/CR.A/1076/1990 CAV JUDGMENT
1. The present appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short, the 'Code') preferred by the appellant-State of Gujarat proceeded against respondent- accused, namely, Mr.Maheshbhai Naranbhai Patel in Sessions Case No.77 of 1987 in the Court of the learned Additional Sessions Judge, Valsad at Navsari, who charged and acquitted for the offence punishable under Section 302 of the Indian Penal Code (for short, 'I.P.C.') vide judgment and order dated 30.07.1990.
2. The case of the prosecution, as projected before the Court below, was that on 12.05.1987 at about 20:50 hrs. at 'Kachi Nal' (temporary ditch), Village: Dandi, the respondent- accused had committed murder of Bai Jashuben by inflicting knife blows on throat, chest and back of Bai Jashuben as she refused to continue her illicit relations with the respondent- accused. It is the case of the prosecution that on the said date, P.W.7-Ms.Kamlaben Jerambhai, who happens to be the sister of deceased-Ms.Jashuben came at Dandi and stayed at her home situated in Deva Faliya, Dandi. On the date of incident, deceased-Ms.Jashuben had gone to Bodali to deliver rice and as deceased-Ms.Jashuben did not return upto 18:30 hrs., P.W.7-Ms.Kamlaben Jerambhai visited bus stand twice or thrice and according to her, her sister-Ms.Jashuben returned at about 20:00 hrs. and she heard sound of deceased-Ms.Jashuben like "Bachavo Bachavo, Mari Nakhi". According to her, she heard such sound at the distance of 50 feet from her house and upon hearing such screaming, she rushed to the spot and found that her sister suffered knife blows. Upon inquiry from her sister, she informed that one Maheshbhai gave knife blows and thereafter, she shouted for help and some people gathered Page 2 of 27 R/CR.A/1076/1990 CAV JUDGMENT and taxi was called and therefrom, her sister - Ms.Jashuben was taken to the Civil Hospital for treatment but, while on the way, she succumbed to her injuries. The inquest panchnama Exh.6 was drawn between 7:00 to 7:45 hrs. on 13.05.1987 and postmortem of the dead body of deceased-Ms.Jashuben was carried out by P.W.1-Dr.Kokilaben J. Shah vide Exh.11. P.W.1- Dr.Kokilaben Shah performed postmortem on the dead body of deceased-Ms.Jashuben between 9:45 to 11:45 on 13.05.1987. According to her, the cause of death was asphyxis caused due to injuries in tracher. It is the case of the prosecution that after the incident in question, the respondent - accused inflicted knife blows on his chest and throat and he came at Matwad out police station with said injuries where, P.W.23-Mr.Nago Jagannath was sitting in the shop of P.W.17-Mr.Ratanjibhai Vithhalbhai Mistri and at that time, the respondent-accused was accompanied by P.W.16-Mr.Dipakbhai Maganbhai Mistri and Mr.Ashokbhai Ravjibhai Patel. It is the case of the prosecution that at that time, the respondent-accused produced knife, ball-pen and handkerchief before the P.S.I., who, in turn, seized the said muddamal. In addition to it, the respondent-accused produced one chit which was also seized as muddamal article No.2. Thereafter, the respondent-accused was taken to the hospital at about 00:30 on 13.05.1987 where, P.W.3-Dr.Parimala Jitendra Joshi examined him and issued certificate Exh.16. It is the case of the prosecution that at about 00:45 on 13.05.1987, dying declaration of the respondent-accused was recorded by P.W.2- Mr.Rameshchandra P. Tailor vide Exh.14. Deceased- Ms.Jashuben suffered six injuries due to knife blows and the respondent-accused inflicted two injuries on his body after the incident with the same knife which was produced by the him Page 3 of 27 R/CR.A/1076/1990 CAV JUDGMENT before the P.S.I. It is in the evidence of P.W.1-Dr.Kokilaben Shah Exh.10, who conducted the postmortem, that on the basis of the injuries noted on the body of the deceased, it could be stated that she died due to injury No.6 inflicted on the tracher and due to injury No.6, the injured would die immediately on the spot. P.W.24-Mr.Govindbhai Devshibhai Thakor conducted the investigation and during the course of investigation, he obtained specimen handwriting of the respondent-accused as per panchnama Exh.68 and obtained opinion of hand writing expert from F.S.L and thereafter, the chargesheet was filed against the respondent-accused for the offence punishable under Section 302 of I.P.C. and also separate chargesheet for the offence under Section 309 of I.P.C. which, later on, registered as Sessions Case No.52 of 1990. The prosecution examined 24 witnesses and also produced and proved documentary evidence in support of the charge. Based on the evidence before the trial Court, the respondent-accused was questioned under Section 313 of the Code and he denied his involvement and pleaded his innocence.
3. In the above stated background, the learned trial Judge, after hearing submissions and after appreciation of evidence, both oral as well as documentary, acquitted the respondent- accused from the charge of offence punishable under Section 302 of I.P.C.
4. Assailing the impugned judgment, learned A.P.P. Mr.Hardik Soni appearing for the appellant-State of Gujarat, after taking us through the relevant evidence on record as well as the impugned judgment, submitted that presence of P.W.7- Page 4 of 27 R/CR.A/1076/1990 CAV JUDGMENT Ms.Kamlaben Jerambhai at the scene of offence is natural as the place of incident is situated at distance of 50 feet from the house of deceased where, she was staying. According to learned A.P.P. Mr.Soni, the respondent-accused, after inflicting injuries on deceased-Ms.Jashuben, left the scene of offence and he gave two knife blows on his body and he himself approached Matwad out police station in injured condition and produced knife and one chit, inter alia, admitting the factum of offence of committing murder of said Ms.Jashuben. In his submissions, learned A.P.P. Mr.Soni contended that the muddamal article No.2 i.e. chit and specimen writing obtained as per panchnama Exh.68 were examined by the handwriting expert and according to handwriting expert, writing contained in a chit were in the handwriting of the respondent-accused. It is submitted by him that P.W.2-Mr.Rameshchandra Tailor recorded dying declaration of the respondent-accused vide Exh.14 wherein, he stated as to how and why, he inflicted injuries on deceased-Ms.Jashuben and also upon himself. Learned A.P.P. Mr.Soni would further contend that looking to the evidence of P.W.7, who is an eye witness and also extra judicial confession made by the respondent-accused vide Exh.14 before the independent witness i.e. P.W.2, there was no reason on the part of the learned trial Judge not to act upon such evidence and, therefore, the learned trial Judge has committed serious error both on law and facts in acquitting the respondent-accused from the offence with which, he was charged. In support of his submissions, learned A.P.P. Mr.Soni placed reliance on the decision of this Court in the case of Koli Bhopa Premji V/s. State of Gujarat reported in 2004(1) G.L.R. 592 and in the case of Trikambhai @ Tiko Ravajibhai Thakor V/s. State of Gujarat reported in 2000(3) G.L.R. 1925.
Page 5 of 27 R/CR.A/1076/1990 CAV JUDGMENT5. As against the above submissions, learned advocate Mr.M.A. Barot for the respondent-accused would contend that after detailed consideration of the oral as well as documentary evidence, the learned trial Judge has rightly acquitted the respondent-accused from the offence for which, he was charged and tried. According to him, deceased-Ms.Jashuben was not in a position to speak at all. Learned advocate Mr.Barot would contend that in view of the evidence of P.W.1- Dr.Kokilaben Shah and further, looking to the evidence of P.W.7-Ms.Kamlaben, who happens to be the sister of deceased- Ms.Jashuben, there are serious infirmities in her evidence which disproves her presence immediately after the incident as tried to be projected. Learned advocate Mr.Barot would contend that there was no motive because the respondent-accused and deceased were in good terms and such fact is admitted by the various witnesses including the brother and sister of the deceased. Learned advocate Mr.Barot would contend that the statement recorded by P.W.2- Mr.Rameshchandra Tailor is inconsistent with the medical evidence and further, the said statement was recorded in the presence of police and, therefore, the learned trial Judge has rightly disbelieved the prosecution case. Learned advocate Mr.Barot would further contend that the prosecution has failed to prove its case beyond reasonable doubt before the trial Court and, therefore, after appreciation of evidence, the learned trial Judge has rightly acquitted the respondent accused which requires no interference in the present appeal as no compelling reasons pointed out by learned A.P.P. Mr.Soni so as to take a different view in the present case. In support of his submissions, learned advocate Mr.Barot placed reliance on Page 6 of 27 R/CR.A/1076/1990 CAV JUDGMENT the decision of the Hon'ble Apex Court in the case of Sahadevan and another V/s. State of Tamil Nadu reported in A.I.R. 2012 SC 2435 wherein, principles for deciding whether extra-judicial confession is admissible and capable of forming basis of conviction are stated.
6. Having heard the learned advocates appearing for the respective parties and after having consideration to the various submissions made before us, we find that the submissions of learned advocate for the appellant raise the following questions for our consideration:-
(i) Whether the learned trial Judge has committed any error in disbelieving the evidence of P.W.7-Ms.Kamlaben, who happens to be the sister of deceased-Ms.Jashuben, an eye-
witness.
(ii) Whether the learned trial Judge has committed any error in not signing the judgment of conviction on the basis of extra judicial confession of the respondent-accused vide Exh.14 recorded by P.W.2-Mr.Rameshchandra P. Tailor read with muddamal article No.2 i.e. chit alleged to have been written by the respondent - accused admitting the guilt in question.
7. During the course of hearing, learned A.P.P. Mr.Soni appearing for the appellant-State and learned advocate Mr.M.A. Barot appearing for the respondent - accused fairly conceded that there is no serious dispute with regard to the fact that deceased-Ms.Jashuben died homicidal death. Upon our reappreciation of evidence and reasons assigned by the learned trial Judge, it appears that while holding that deceased
- Ms.Jashuben died due to homicidal death, the learned trial Judge rightly answered issue No.1 in affirmative.
Page 7 of 27 R/CR.A/1076/1990 CAV JUDGMENT8. In view of this, we have examined the evidence on record in the form of inquest panchnama Exh.6. After drawing inquest panchnama Exh.6, police constable - Mr.Bhagwanbhai Bhailu brought dead body of deceased-Ms.Jashuben at Jalalpor Government Dispensary for autopsy.
9. The prosecution has examined P.W.1-Dr.Kokilaben J. Shah, who performed postmortem on the dead body of deceased-Ms.Jashuben. She deposed that on 13.05.1987, she was performing her duty as Medical Officer at Jalalpor Government Dispensary and at about 9:30 a.m., said police constable-Mr.Bhagwanbhai Bhailu brought dead body of deceased-Ms.Jashuben. The said witness P.W.1-Dr.Kokilaben Shah started performing postmortem at 9:45 a.m. and completed it at 11:45 a.m. As per her evidence, she found the following external injuries which she noted down in Column No.17 of the postmortem note Exh.11:-
"1. An inscised wound of about 1½ CM X 3/4 CM. X M.D. upper part of right side of chest oblique to mid- line of body.
2. Small superficial inscised wound in front of chest- upper part.
3. Inscised wound of about 1½ CM X 3/4 CM. X M.D. on it. Shoulder region front side.
4. Inscised wound of about 2 Cm. X 1 Cm. X skeen deep on dorsal aspect of left hand.
5. Inscised wound about 1½ cm. X 1/2 cm. X Skeen deep on back of chest left side.
6. Inscised wound of about 2 cm. X 2 cm. opening the anti border/surfced of trachal near vocal cord of tarynx. Opening was -c clear cut margin oval shaped
-c big clot inside border of above injes was clear cut, Page 8 of 27 R/CR.A/1076/1990 CAV JUDGMENT wedge shaped clot in the wound."
10. P.W.1-Dr.Kokilaben Shah further deposed that the aforesaid injuries were ante-mortem and injury No.6 was on trekia. Out of the above six injuries, injury No.6 was fatal and consequent upon injury No.6, the person would die immediately on the spot. It is deposed by her that the cause of death of deceased Ms.Jashuben is injury No.6. This witness was shown muddamal article No.1-knife, she seen the same and she had opined that the aforesaid injuries could be possible by the said knife. Upon considering the evidence of P.W.1- Dr.Kokilaben Shah and documentary evidence in the form of inquest panchnama Exh.6 and P.M. Note Exh.11, it is crystal clear that deceased - Ms.Jashuben died homicidal death.
11. Now, this takes us to decide as to who was the author of the injuries sustained by deceased-Ms.Jashuben which were noticed by P.W.1-Dr.Kokilaben Shah. It is the case of the prosecution that the respondent-accused inflicted knife blows on the body of deceased-Ms.Jashuben as a result of which, she sustained aforesaid injuries and out of the aforesaid six injuries, injury No.6 found to be fatal and also the cause of her death.
12. In order to bring home the charge, the prosecution placed reliance on the following evidence:-
(i) On the point of motive, the prosecution placed reliance upon extra judicial confession Exh.14 made before P.W.2-
Mr.Rameshchandra P. Tailor;
Page 9 of 27 R/CR.A/1076/1990 CAV JUDGMENT(ii) Eye witness to the incident, namely, P.W.7-Mr.Kamlaben Jerambhai, who happens to be the sister of deceased- Ms.Jashuben;
(iii) Muddamal article No.2-chit, alleged to be in the handwriting of the respondent-accused admitting guilt in question.
(iv) Report of F.S.L. Exh.51.
13. Firstly, we would like to consider the evidence with regard to the mens rea of the respondent-accused. From the very beginning, it is the case of the prosecution that deceased- Ms.Jashuben and respondent-accused had illicit relations and as deceased-Ms.Jashuben was not inclined to continue such illicit relationship, the respondent-accused developed grudge against her and, therefore, rift in their relations was developed. Due to this, the respondent-accused got panic and committed offence in question at about 8:00 p.m. on 12.05.1987 at Kachi Nal (temporary ditch) situated in village: Dandi. In this regard, we have examined the oral deposition of P.W.7-Ms.Kamlaben Jerambhai, who happens to be the sister of deceased- Ms.Jashuben, P.W.9-Mr.Keshavbhai Ukabhai, who happens to be the naighbour of deceased-Ms.Jashuben, P.W.10 - Mr.Thakorbhai Jerambhai, who happens to be the brother of deceased-Ms.Jashuben and other neighbours of deceased- Ms.Jashuben. None of the witnesses deposed about existence of illicit relationship between deceased-Ms.Jashuben and the respondent-accused. But, on the contrary, it is deposed by all the above prosecution witnesses and, more particularly, brother and sister of deceased-Ms.Jashuben that the family of the respondent-accused and their family had good relations Page 10 of 27 R/CR.A/1076/1990 CAV JUDGMENT including husband of deceased-Ms.Jashuben, who was examined as P.W.No.18. Upon our re-appreciation of evidence placed before the trial Court, we do not find that there was illicit relationship between deceased-Ms.Jashuben and the respondent-accused and, therefore, occurrence of any rift between them due to denial on the part of the deceased- Ms.Jashuben to continue such relationship is far from truth. So, on the point of motive, the prosecution has failed to establish its case as tried to be projected and, therefore, we do not find that the incident in question has occurred due to the aforesaid motive, as charged against the respondent-accused.
14. Here, in this case, according to the prosecution case, there is a direct evidence of P.W.7-Ms.Kamlaben Jerambhai, who happens to be the sister of deceased-Ms.Jashuben and also an eye witness to the incident. P.W.7-Ms.Kamlaben, below Exh.21, deposed that the respondent-accused is known to her and he resides after leaving three houses from her house i.e. the house of her sister. She deposed that the husband of deceased-Ms.Jashuben and the respondent-accused have good relations. On the date of incident, said witness returned at 2:30 p.m. at Dandi from village: Dantej Chhapra whereas, deceased- Ms.Jashuben had gone to Bodali to deliver rice. As deceased- Ms.Jashuben did not return till 6:30 p.m., P.W.7-Ms.Kamlaben visited bus stand twice or thrice and at around 8:00 p.m., she heard sound of her sister i.e. deceased-Ms.Jashuben 'Bachavo Bachao Mari Nakhi'. Upon hearing such sound, she rushed to the place wherefrom, such sound was coming and she found that in the said temporary ditch situated at the distance of 50 feet from their house, her sister was inflicted knife blows. The said witness took the head of her sister - Ms.Jashuben on her Page 11 of 27 R/CR.A/1076/1990 CAV JUDGMENT lap and upon inquiry from her as to what has happened, deceased-Ms.Jashuben informed her that Mahesh gave knife blows to her. Thereafter, the said witness shouted for help, people gathered there and immediately taxi was called and deceased-Ms.Jashuben was shifted to the civil hospital but she died while they were on the way to hospital. It is deposed by her that on the date of incident, there was dark night and also no electricity was there. According to her version, when she reached at the place of incident, she did not see anybody. In the cross-examination, she admitted that the house of Sarpanch is situated adjacent to the ditch and she also admitted that in order to reach at the said ditch, in the middle of the way, house of Sarpanch would come. She has admitted in her cross-examination that her sister spoke word 'Mahesh' and thereafter, through signal by folding her fingers, making fist and bent the hand towards her chest, she conveyed fact of having been given knife blows. She has further deposed that after 10 minutes, the other neighbours residing in the faliya came and gathered at the scene of offence. It is admitted by her that though deceased-Ms.Jashuben was profusely bleeding and she took her head on her lap, her clothes were not blooded. She has also admitted that there was no light in the ditch where, the incident occurred. Though she has disclosed in her cross- examination that before 20 days of the incident, the respondent-accused threatened her sister to kill her but in the next version, the said witness disclosed that she has not informed this fact either to P.W.18-Mr.Ramanbhai Naranbhai i.e. the husband of deceased-Ms.Jashuben or any other person.
15. While appreciating the evidence of P.W.7-Ms.Kamlaben, it is important and relevant to consider the map of the scene of Page 12 of 27 R/CR.A/1076/1990 CAV JUDGMENT offence vide Exh.18 and also oral evidence of P.W.9- Mr.Keshavbhai Ukabhai, who reached at the scene of offence and found that one person, through battery light, was examining the injuries of deceased-Ms.Jashuben. No doubt, the said P.W.9 was declared hostile but his evidence is relevant as to the fact that at the time of incident, there was dark night and no electricity was there. P.W.7-Ms.Kamlaben did depose in her examination-in-chief that it was dark night and there was no electricity in the village but, through leading question, the learned A.P.P. in-charge of the case, brought out on record that there was moon light and, therefore, she could have seen Mr.Mahesh running towards lake. We cannot rely upon such answer elicited from the mouth of the said witness by way of confronting her with the police statement. This is the unusual practice permitted by the learned trial Judge and we do not find any legal permissibility of such recourse to confront the witness with police statement while recording examination-in- chief. This is nothing but a sort of leading evidence but, in any case, one fact becomes evident that when the incident has occurred, there was a dark night and no electricity was available at the scene of offence and, therefore, one person was looking at the injuries on the body of deceased Ms.Jashuben by battery light as deposed by P.W.9- Mr.Keshavbhai Ukabhai. Further, it is surprising that though deceased-Ms.Jashuben received injury on her throat and she was bleeding, yet, clothes of P.W.7-Ms.Kamlaben did not receive any blood. It is deposed by her that her clothes have not received any blood though she took the head of deceased
- Ms.Jashuben on her lap. This is unbelievable. Furthermore, in her examination-in-chief, she has specifically deposed that when she reached at the scene of offence and upon her inquiry Page 13 of 27 R/CR.A/1076/1990 CAV JUDGMENT from deceased-Ms.Jashuben, her sister-Ms.Jashuben spoke twice 'Mahesh-Mahesh' and thereafter, she informed that Mahesh gave knife blows to her. But, in her cross-examination, she has specifically admitted that her sister spoke only 'Mahesh' and rest part was informed by signal by deceased- Ms.Jashuben. We fail to understand as to how she could see any such signal when there was dark night and no light was available and she alone reached at the scene of offence, apart from the material variance in disclosing occurrence of incident before the trial Court in examination-in-chief and cross- examination. So, overall consideration of her evidence does not inspire any confidence as to deceased-Ms.Jashuben informed her about commission of offence by Mr.Mahesh through knife blows. One additional reason to draw such inference is that as per the medical evidence of P.W.1- Dr.Kokilaben Shah, she, in terms, deposed in her cross- examination that due to injury No.6, the person would die immediately on the spot. Even if we consider the map Exh.18, we have noticed distance between the house of decease- Ms.Jashuben and the scene of offence at about 300 feet and not 50 feet as deposed by P.W.7. It is surprising as to how P.W.7 could hear the sound coming at the distance of 300 feet when many other neighbours were residing and staying nearby the house of deceased-Ms.Jashuben and it is only P.W.7 could hear voice from such distance which also creates doubt in our mind. Therefore, we cannot rely upon the oral testimony of the said witness P.W.7 though she is branded as an eye-witness to the incident in question. But, on appreciation of her testimony, we do not find that P.W.7 has seen occurrence of incident or she came to know about the same through her deceased sister-Ms.Jashuben by words spoken and signal as projected by Page 14 of 27 R/CR.A/1076/1990 CAV JUDGMENT her in her testimony in view of the medical evidence of P.W.1- Dr.Kokilaben and the nature of injury No.6 inflicted on trekia.
16. The prosecution has placed heavy reliance on the statement of respondent-accused Exh.14 recorded by P.W.2- Mr.Rameshchandra P. Tailor. As discussed earlier, it is the case of the prosecution that the respondent-accused himself admitted that after giving knife blows to deceased Ms.Jashuben, he proceeded towards Matwad out police station and when he was on midway at Dandi Samapur, he gave two knife blows on his throat and chest. It was one of the submissions made by learned A.P.P. Mr.Soni that the respondent-accused not only admitted as to how and in what manner, he committed the offence but he also admitted the factum of commission of crime in one chit i.e. muddamal article No.2 which was written by himself after commission of offence and the same was produced before Matwad out police station where, he reached at about 10:00 p.m. by foot. Learned A.P.P. Mr.Soni placed reliance upon muddamal article No.2-chit wherein, the respondent-accused admitted the offence of committing murder of deceased-Ms.Jashuben. We have considered this evidence alongwith F.S.L. report Exh.51 but, we fail to understand as to why only the handwriting of respondent-accused in the form of chit addressed to one Mr.Ganeshbhai was not sent for analysis and its opinion. The panchnama Exh.68 indicates that while seizing knife, ball-pen and handkerchief from the respondent-accused, he also produced muddamal chit addressed to his friend Mr.Ganeshbhai and it was also seized as natural document vide Mark-B. When the natural handwriting is seized by the Investigating Agency, we fail to understand as to why the Page 15 of 27 R/CR.A/1076/1990 CAV JUDGMENT concerned police undertook the exercise of obtaining specimen handwriting of the respondent-accused through panchnama Exh.68 and not sent to the F.S.L. We do not find any justifiable reason nor any explanation was furnished by learned A.P.P. in this regard. Therefore, we are not inclined to rely upon such chit. Apart from it, knife which was alleged to have been used by the respondent-accused for inflicting injuries to deceased- Ms.Jashiben and also to himself, analyzed by F.S.L., does not carry any blood having BRH+ which is of the respondent- accused. On the said muddamal i.e. knife, only blood of deceased-Ms.Jashuben was found and no blood of respondent- accused was available nor found in the analysis though the same knife has been used for both the alleged incidents.
17. Now, when the statement is recorded as dying declaration by P.W.2 and the respondent-accused survived, such statement need not stand direct scrutiny of dying declaration but may be treated as statement under Section 164 of the Code. Learned A.P.P. Mr.Soni, during the course of hearing, fairly conceded that the said statement also cannot be treated under Section 164 of the Code and so, the learned trial Judge has also not believed the same because the required guidelines/procedure prescribed under Section 164 of the Code has not been followed and, therefore, it cannot be treated as confession. Therefore, learned A.P.P. Mr.Soni urged that the said statement Exh.14 be treated as an extra judicial confession made before P.W.2, who was an independent witness and has no grudge or prejudice against the respondent-accused to implicate him in the offence in question.
Page 16 of 27 R/CR.A/1076/1990 CAV JUDGMENT18. We must, now, have to consider whether the statement made by the respondent-accused and recorded by P.W.2- Mr.Rameshchandra P. Tailor may be used to implicate the respondent-accused in the crime. It is true that when the said statement Exh.14 was recorded, the respondent-accused was not arrested. Nevertheless, it is also the fact that the respondent-accused was in the company of police all throughout and thus, he was under surveillance. This statement was recorded as dying declaration of the respondent-accused. Therefore, the legal basis to admit the said statement as extra judicial confession needs to be examined. Before that, we must note that the respondent- accused had suffered simple injuries and also P.W.3- Dr.Parimala Joshi deposed in the same line. Thus, it is evident that the respondent-accused was not at all serious nor suffered any serious or grievous injuries necessitating recording of such dying declaration through P.W.2.
19. We have examined the evidence as to occurrence of the incident at the said ditch at around 8:00 p.m. on 12.05.1987. It revealed from the record of the trial Court and also from the evidence of the police witnesses that the respondent-accused reached at Matwad out police station accompanied by P.W.16- Mr.Dipakbhai Maganbhai Mistri and one Mr.Ashokbhai Ravjibhai Patel at about 10:00 p.m. and at that time, P.W.23-Mr.Nago Jagannath-police constable was sitting with one Mr.Ratanjibhai and he found that the respondent-accused was bleeding. At that time, the said two persons, who came alongwith the respondent-accused, informed P.W.23 that the respondent- accused gave knife blows to one Ms.Jashuben and P.S.I. - P.W.24 - Mr.Govindbhai Devshibhai Thakore came and the Page 17 of 27 R/CR.A/1076/1990 CAV JUDGMENT respondent-accused produced knife, ball-pen and handkerchief which were seized as per panchnama Exh.68. The respondent- accused also produced one chit i.e. muddamal article No.2 and as he was injured, he was brought to the police station and therefrom, taken to the hospital. It appears that P.W.3- Dr.Parimalaben J. Joshi received one police yadi at about 0:30 hrs on 13.05.1987 alongwith the respondent-accused and she found two injuries on his chest and throat. She further found and deposed that blood group of the respondent-accused was BRH+. The said witness disclosed in her evidence that the injuries sustained by the respondent- accused were simple in nature. Within 15 minutes, P.W.2 received Yadi from police for recording dying declaration of the respondent-accused. Since the prosecution placed reliance upon the said evidence and, more particularly, dying declaration, being extra judicial confession, the relevant questions-answers reproduced hereinbelow:-
"Question No. 9:- Why have you been admitted to the hospital? Describe the incident in detail along with time from the beginning of the incident till you were admitted to the hospital.
Answer:- I had a love affair with Jashuben Ramanbhai residing in my village. I got angry due to rift in our relations. I myself inflicted three knife blows on the back, abdomen and hip of Jashuben at 7.30 p.m. today. Thereafter, I immediately went on foot to Matwad Police Station for confession of my offence. Meanwhile, I myself inflicted knife blow on my neck and chest on the way between Dandi and Samapur because I got panicked. Matwad Police brought me here immediately in their vehicle from Matwad Police Station.
Question No. 11:- Who were around you when incident took place?
Answer:- When the lady was going home alighting from the bus today, I inflicted knife blow to her on the Page 18 of 27 R/CR.A/1076/1990 CAV JUDGMENT way. At that time, the lady was alone, and no other person was around her. No person was around me also when I inflicted knife blow on my body.
Question No.12 :- Whether someone has intentionally caused injury or accident to you due to animosity or not? If caused, state their names and if not caused, state accordingly.
Answer:- I intentionally inflicted blow to the lady out of provocation due to animosity. I got panicked. Therefore, I inflicted knife blow on my body also.
Question No. 16:-Whether the lady was married or not? For how many years were you having the affair?
Answer:- The lady was married. Her husband was residing in Bombay. I was having the affair with the lady for eight years."
20. The evidentiary value of the extra judicial confession required to be judged in the facts and circumstances of each individual case. The extra judicial confession if voluntarily made and fully consistent with the prosecution evidence, can be relied upon by the Court alongwith other evidence in convicting the accused. In view of our above discussion, we did not find any motive or mens rea of the respondent-accused nor we find oral evidence of P.W.7 as reliable and trustworthy. Therefore, the only issue that remains before us to be decided is whether the statement made by the respondent-accused can be considered as an extra judicial confession so as to base conviction. The concept of an extra judicial confession is primarily a judicial creation and must be used with restraint. Such confession must be used only in limited circumstances and should also be corroborated by way of abundant caution. In the present case, when the statement Exh.14 was made before P.W.2-Mr.Rameshchandra Tailor, the respondent- accused was with the police though he was not arrested but, Page 19 of 27 R/CR.A/1076/1990 CAV JUDGMENT we can safely say that he was not a free man but his movements were controlled by the police. In the case of S.K. Yusuf V/s. State of W.B. reported in (2011)11 SCC 754 and in the case of Pancho V/s. State of Haryana reported in (2011)10 SCC 165, the Hon'ble Apex Court laid down following principles which would make an extra judicial confession an admissible piece of evidence capable of forming basis of conviction of accused:-
The Principles
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.
21. We have noticed that the confession made by the respondent-accused while answering question No.9 as per Exh.14, is not supported by the medical evidence. In other words, while answering question No.9, the respondent-accused stated that he inflicted three knife blows on back, abdomen and hip of deceased Ms.Jashuben. Meaning thereby, there is no confession as to knife blows given to deceased-Ms.Jashuben on Page 20 of 27 R/CR.A/1076/1990 CAV JUDGMENT her throat i.e. injury No.6 which proved fatal to the life of deceased- Ms.Jashuben. Thus, the respondent-accused has not admitted that he gave six knife blows as per the prosecution case and, more particularly, he did not admit or confess that he gave knife injury on the throat of deceased- Ms.Jashuben which was proved fatal. Thus, the statement made by the respondent accused as per Exh.14, more particularly, answer to question No.9, is not supported by any medical evidence. Secondly, it is the case of the prosecution that the respondent- accused and deceased-Ms.Jashuben had illicit relationship or love affair but as discussed hereinabove, none of the prosecution witness disclosed anything about illicit relationship/love affair between the respondent-accused and deceased-Ms.Jashuben but, on the contrary, all the prosecution witnesses and, more particularly, sister, brother and husband of deceased-Ms.Jashuben deposed that they were in good terms. Therefore, such admission alleged to have been made by the respondent-accused runs counter to the prosecution case and, therefore, it creates doubt as to being truthful. Thirdly, it is the case of the prosecution that after the incident in question, the respondent accused gave knife blows on his body and went to the Matwad out police station alongwith P.W.16-Mr.Dipakbhai Maganbhai Mistri and Mr.Ashokbhai Ravjibhai Patel. Had it been so, when there was no reason not to disclose this fact in the statement made below Exh.14. The entire extra judicial confession is silent on this material aspect and, therefore, also, it is unsafe to rely upon such declaration which is not in the line of the prosecution case as projected before the trial Court.
22. Under these circumstances, we are not satisfied that the Page 21 of 27 R/CR.A/1076/1990 CAV JUDGMENT said extra judicial confession is voluntarily obtain or given and if we consider the above facts and circumstances surrounding the making of a statement appear to cast a doubt on the veracity or voluntariness of the confession and, therefore, we are not inclined to rely upon it even if it is admissible in evidence. We have noticed that the respondent-accused was not a free man when the alleged extra judicial confession was made before P.W.2-Mr.Rameshchandra P. Tailor and moreover, the evidence of P.W.7-Ms.Kamlaben does not inspire any confidence as to believe her version as recorded hereinabove.
23. Now, it is right time to consider the decision cited at bar by learned A.P.P. Mr.Soni in the case of Koli Bhopa Premji (supra). In the said case, the Division Bench of this Court relied upon the extra judicial confession though it was made when the accused was in custody. We have gone through the facts of the case before the Division Bench of this Court and we have noticed that apart from extra judicial confession, there are other evidence in the form of eye witness which led the Division Bench of this Court confirming the judgment of conviction and sentence imposed by the learned trial Court. In the case on hand, there are lot of infirmities in the evidence of eye-witness and also in the so-called extra judicial confession Exh.14 and, therefore, the decision cited at bar would be of no help to the State in view of the peculiar facts and circumstances of the case on hand.
24. Learned A.P.P. Mr.Soni has also placed reliance upon the decision of the Division Bench of this Court in the case of Trikambhai @ Tiko Ravajibhai Thakor (supra) in order to believe extra judicial confession made by the respondent-
Page 22 of 27 R/CR.A/1076/1990 CAV JUDGMENTaccused before P.W.2-Mr.Rameshchandra P. Tailor, who was an independent witness having no prejudice or grudge against the respondent-accused. In the case of Trikambhai @ Tiko Ravajibhai Thakor (supra), the accused made extra judicial confession while in police custody before the doctor, who examined him. In the said case, the Division Bench of this Court found that the extra judicial confession made before the doctor was admissible even though, technically, the accused was in police custody. We do not find that the decision rendered in the case of Trikambhai @ Tiko Ravajibhai Thakor (supra) would be helpful to the case of the prosecution, in any manner, for the simple reason that the statement Exh.14 alleged to have been made by respondent-accused before P.W.2-Mr.Rameshchandra P. Tailor does not inspire any confidence so as to attach any credibility to the said statement for more than one reasons which we have recorded hereinabove and, therefore, the decision cited at bar is not helpful to the appellant-State.
25. It is the case of the prosecution that the respondent- accused along with P.W.16-Mr.Dipakbhai Maganbhai Mistri and Mr.Ashokbhai Ravjibhai Patel went to Matwad out police station where, he produced one chit i.e. muddamal article No.2 containing written admission as to commission of offence in question. In the said chit, the respondent-accused has admitted that he has committed murder of one Ms.Jashuben. P.W.16-Mr.Dipakbhai Maganbhai Mistri has not supported the prosecution case and the other person, who accompanied the respondent-accused, namely, Mr.Ashokbhai Ravjibhai Patel was not examined by the prosecution to prove the factum of production of muddamal article No.2-chit so as to provide Page 23 of 27 R/CR.A/1076/1990 CAV JUDGMENT greater credence to this document.
26. In the statement under Section 313 of the Code, the respondent-accused has denied very execution of statement Exh.14. In order to examine veracity of this document, we have to find out the correctness and corroboration of the facts stated in the Exh.14 by the other prosecution evidence. As noted hereinabove, in statement Exh.14, it is stated that the respondent-accused had love affair/illicit relationship with deceased-Ms.Jashuben and due to the rift between them, he has inflicted knife blows on the back, abdomen and hip of deceased-Ms.Jashuben and that was the motive and, in fact, essentially cause for the respondent-accused to murder deceased-Ms.Jashuben. The whole emphasis is upon the bitter relationship between the respondent- accused and deceased- Ms.Jashuben. The very basis of execution of document Exh.14 falls to the ground when one peruses the evidence of prosecution witnesses, more particularly, P.W.7-Ms.Kamlaben- sister of deceased-Ms.Jashuben, P.W.10-Mr.Thakorbhai Jerambhai - brother of deceased-Ms.Jashuben and P.W.18- Mr.Ramanbhai Naranbhai - husband of the deceased inasmuch as none of the witnesses attributed any such motive to the respondent-accused. There are other material infirmities in the evidence led by the prosecution, as noted hereinabove in great detail.
27. Under these circumstances, the extra judicial confession recorded below Exh.14 is neither supported by any cogent circumstances nor corroborated by the other prosecution witnesses and thus, the said statement possesses inherent Page 24 of 27 R/CR.A/1076/1990 CAV JUDGMENT improbabilities and, therefore, it does not appear to be voluntarily given or truthful.
28. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (See Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned A.P.P. has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
29. In the case of RAM KUMAR V. STATE OF HARYANA, reported in AIR 1995 SC 280, Supreme Court has held as under:
"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."Page 25 of 27 R/CR.A/1076/1990 CAV JUDGMENT
30. It is well settled principle of law that if two views are possible, the appellate court should not disturb the finding of acquittal recorded by the trial court unless there are compelling reasons to do so. In this regard, broad proposition of law laid down by the Honourable Apex Court in the case of Brahm Swaroop And Another v. State of U.P., (2011) 6 SCC 288 more particularly, paragraph 38 is relevant for the disposal of this appeal. Therefore, the same is reproduced hereinbelow:
"38. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference."
31. It may be noted that this is an acquittal appeal in which Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly, when the evidence has not inspired confidence of the learned trial Judge. As this Court is in general agreement with the view expressed by the learned trial Judge, it is not necessary for this Court either to reiterate the evidence of the prosecution witnesses or to restate reasons given by the learned trial Judge for acquittal and in our view, expression of general agreement with the view taken by the learned trial Judge would be sufficient in the facts of the present case for Page 26 of 27 R/CR.A/1076/1990 CAV JUDGMENT not interfering with the judgment of the learned trial Judge and this is so, in view of the decisions rendered by the Hon'ble Supreme Court in the case of GIRJA NANDINI DEVI AND OTHERS V. BIJENDRA NARAIN CHAUDHARI, AIR 1967 SC 1124 and STATE OF KARNATAKA V. HEMA REDDY AND ANOTHER, AIR 1981 SC 1417.
32. On overall reassessment and re-appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the learned trial Judge for acquitting respondent- accused . Suffice it to say that the learned trial Judge has given cogent and convincing reasons for acquitting the respondent- accused and the learned A.P.P. has failed to dislodge the reasons given by the learned trial Judge and convince this Court to take a view contrary to the one taken by the learned Judge.
33. Seen in the above context, we do not find any valid reason or justifiable ground to interfere with the impugned judgment and order acquitting the respondent-accused of the offences with which he was charged. Hence, the appeal deserves dismissal and is accordingly dismissed. Bail bond shall stand cancelled.
(ANANT S.DAVE, J.) (S.H.VORA, J.) Hitesh Page 27 of 27