CR.A/1396/1986 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1396 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= STATE OF GUJARAT - Appellant(s) Versus HARIJAN PAMA RANA - Opponent(s) ========================================================= Appearance : PUBLIC PROSECUTOR for Appellant(s) : 1, MR RR TRIVEDI for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 09/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/1396/1986 2/5 JUDGMENT This is an appeal filed against acquittal award passed by the learned Additional Sessions Judge, Rajkot at Gondal, on 23.5.1986 in Sessions Case No. 50 of 1985. 2. The facts of the case are that on 31.7.1985 the accused Harjan Pama Rana of Pipalvav who happens to be husband of Jayaben, visited the house of brother of said Jayaben at Arab Timbdi. Thereafter, after having dinner at 8 O'clock he went to the field with Bodha. It is further stated in the complaint that in the morning at about 2.30 hours his sister came home and inquired about her husband when it is said that yesterday her husband had quarreled with Bodha and thereafter her husband gave knife blow and killed Bodha. In the said scuffle he also received some injuries on his hands. On this and other facts, complaint was filed which was investigated by the police. After investigation, chargesheet was filed against the respondent for the offence punishable under Section 302 of the Indian Penal Code and under Section 135 of the Bombay Police Act read with Section 37. After committing the case to the Court of Sessions, the respondent did not plead guilty. Consequently, charge was framed. After considering the entire evidence, vide judgement and order dated 23.5.1986, the accused was given benefit of doubt and acquitted of the charges punishable under Section 302 of the I.P.C. 3. Being aggrieved by the said judgement, the State preferred the appeal on various grounds. It is contended before us that perusing the version of witnesses and extra judicial CR.A/1396/1986 3/5 JUDGMENT confession which is corroborated by other evidence namely the evidence of complainant Dahya Mapa, Lakhuben and Hansaben, the learned Sessions Judge ought not to have given benefit of doubt. It was further contended that perusing the medical certificate of the injuries it is clear from evidence of Medical Officer that the injuries are possible by muddammal knife which was recovered during the discovery. It is further contended blood-stained clothes were discovered at the instance of the accused and serological report corroborate the blood of the deceased. 4. The said judgement is supported by learned advocate Shri Trivedi who appeared on behalf of the original accused and contended that extra judicial confession of the accused before PW-2 Jayaben is not believable because there are material contradiction and improvement into the complaint as well as the said extra judicial confession, as sought to be relied upon by the prosecution. The circumstances, which are obtaining on records, do not corroborate the evidence which are laid before the Court. Jayaben PW-2 in her statement deposed that accused came at the residence at about 11 O'clock and said that he killed Bodha and thereafter he said to her to prepare dinner which he ate hurriedly and thereafter in the morning at about 4 O'clock Jayaben was made to wake up and she prepared tea. Thereafter, she came to Arab Timdi and reported about the incident. However, the complainant says in his complaint that at 2.30 hours in the morning Jayaben came and reported the incident to her Mother Lakhuben. There are material improvements in her deposition before the Court. The learned Sessions Judge has clearly pointed out the same in his CR.A/1396/1986 4/5 JUDGMENT judgement and also found that recovery of the blood stained clothes and knife is doubtful because recovery of the knife from the heap of the fodder is not supported by evidence of panchas and other evidence of investigating officer Shri Ratho. Perusing the entire judgement, the learned Sessions Judge has point out contradiction, improvement in the evidence of witnesses also. 5. Heard the learned counsel appearing for the parties. In our considered opinion the case rests squarely on the piece of evidence which is extra judicial confession. According to lady PW-2 Jayaben before whom the accused is said to have made the confession in her statement she states that accused came to home in the night and asked her to prepare food. He hurriedly had dinner and then slept. Thereafter, he woke up at about 4.00 O'clock and asked her to prepare tea. The accused said that he had killed her brother. There it is said that extra judicial confession is made. The manner in which the extra judicial confession is said to have been made to the lady is of a nature which has a ring of artificial in it. According to the statement of the lady, the man is said to have informed that he had gone to Pipalvav. He killed his brother. Then the lady is said to have gone to her mother's place. There she said to have the mother that “her husband has killed Bodha”. Now if two statements are reconciled it does not inhere in itself that she informed her mother that the accused had informed her that he has killed Bodha. Instead the statement to the mother is to the effect that Bodha has been killed by her husband. This is mere a statement therein a confession. In examining the truthfulness of extra judicial confession, one has to bear in CR.A/1396/1986 5/5 JUDGMENT mind that exact words that were given are reproduced and if after extra judicial confession being made by the accused, she narrates the story to mother which is not indirect speech but is a mere information, then it cannot be said that extra judicial confession was made to her as stated by her. If the nature of extra judicial confession, as discussed above, is considered then in its very nature the extra judicial confession is a very weak piece of evidence. It alone would not be sufficient to be made the basis of conviction. The nature of confession which is given and the language used has been deposed by PW-2 Jayaben then there is difference in expression. This difference in expression knocks the bottom of extra judicial confession and makes it unbelievable and if the extra judicial confession is taken out from the prosecution evidence then the recovery of blood stained clothes and knife is hardly sufficient to sustain any charge more particularly when the blood group of the accused is not investigated by the Investigating Agency. 6. In view of the aforesaid reasons, it would not be prudent to convert the acquittal as recorded by the trial Court into conviction. Thus, we in all fairness approve the findings recorded by the learned trial Judge. Consequently, the appeal being meritless is dismissed. Bail bond of the accused stands cancelled. (BHAGWATI PRASAD, J) (S.R. BRAHMBHATT, J) (pkn)