IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 471 of 1995 with CRIMINAL APPEAL No 245 of 1995 For Approval and Signature: Hon'ble MR.JUSTICE N.G.NANDI and Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MANJULABEN WD/O.KISHORGAR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 471 of 1995 MR DM THAKKAR for Petitioner No. 1 MR HARSHAD J SHAH for Petitioner No. 1 MR AJ DESAI Ld. APP for Respondent No. 1 2. Criminal Appeal No. 245 of 1995 MRS SHILPA J UNWALLA for Petitioner No. 1 MR AJ DESAI Ld. APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE N.G.NANDI and MR.JUSTICE D.P.BUCH Date of decision: 04/09/2002 ORAL JUDGEMENT (Per : MR.JUSTICE D.P.BUCH) 1. These are the two Criminal Appeals under Section 374(2) of the Criminal Procedure Code,1973 (for short "Code") challenging the judgement and order of conviction recorded on 15.3.1995 by the learned Additional Sessions Judge, Kutcch at Bhuj in Sessions Case No. 1 of 1992, under which the learned Additional Sessions Judge found the said two appellants convicts guilty for the offences punishable under Sections 302 and 201 read with Section 114 of the Indian Penal Code. The learned trial Judge also directed the appellants to undergo RI for life and also directed each of the two appellants to pay fine of Rs.1000/-. In default of payment of fine, the learned trial Judge directed each of the appellants to undergo further SI for one month for an offence punishable under Section 302 read with Section 114 of the Indian Penal Code. With respect to offence punishable under Section 201 of IPC, the learned Judge directed that each of the two appellants shall undergo RI for a period of 7 years and further directed each of the two appellants to pay fine of Rs.1000/-. In default of payment of fine, each of the appellants were directed to suffer further SI for one month. It was further directed that both substantive sentences be run concurrently. The learned trial Judge also directed to dispose of the muddamal articles. 2. The trial Court has tried these two appellants in Sessions Case No. 1 of 1992. The appellant in Criminal Appeal No. 471 of 1995 Manjulaben, widow of Kishorgar was accused no.1 in the said Sessions Case No.1 of 1992, whereas, Ramji Rava Koli, the appellant in Criminal Appeal No.245 of 1995 was accused no.2 in the said Sessions Case No.1 of 1992. Therefore, for the sake of convenience, Manjulaben - appellant in Criminal Appeal No. 471 of 1995 will hereinafter be referred to as "accused no.1", and Ramji Rava Koli, the appellant in Criminal Appeal No. 245 of 1995 will hereinafter be referred to as "accused no.2". 3. The facts of the case of the prosecution may briefly be stated as follows : 3.1 Accused no.1 was staying with her husband at Malara Mahadev Temple at village Meghpar, Taluka - Anjar of Kuttch district. The deceased was having agricultural land and he was cultivating the said land. So far as accused no.2 is concerned, he was working as watchman and it is a matter of record that he used to sleep on the ota of deceased or on the ota of Malara Mahadev Temple. From the sketch produced on record vide Exh.37, at page 259, it is clear that the Malara Mahadev Temple is at a distance of about 41 feet from the residence of the accused no.1 and the deceased. The said house, as shown in the said sketch, is surrounded with other agricultural lands belonging to different persons; the land of Kankuben is on the western side; the land of Pratapsinh is on the southern side, then on northern side there is an entrance. It appears from the said sketch that there is an entry through the said entrance on the northern side and there is a temple of the Malara Mahadev on the western side and then, the house of accused no.1 as well as of the deceased is on the southern side. The said position described in the said sketch, vide Exh.37, at page -259, is not very much in dispute, and it appears that it was also not disputed before the trial Court. The prosecution case before the trial Court was that accused no.1 had married with the deceased before about 14 years and they were staying together in the aforesaid house described hereinabove. Out of the said married life, they had four children and all of them were staying together in the said house with accused no.1 and deceased. The eldest son is Kirangar, who was 13 years of age at the relevant point of time. 3.2 It was also the case of the prosecution that accused no.2 used to work as a Watchman in the field of Gopalbhai which is adjacent to the aforesaid Malara Mahadev Temple and, therefore, he had occasion to come to the said temple. Since the said temple was very near to the house of the deceased and accused no.1, accused no.1 had close relations with accused no.2. That thereafter, the land of deceased was sold for a sum of Rs.7,70,000/-. Out of the said sale proceeds, some amount was placed in the Bank and from the remaining amount, a tractor and ambassador car were purchased, a house was constructed and ornaments were also purchased. It is also a matter of record that accused no.2, at times, used to sleep at the residence of accused no.1 and even in absence of deceased husband of accused no.1, accused no.2 used to come to sleep there and, therefore, accused no.1 had developed good relations and the said relations resulted into extra marital relations also. It was also the case of the prosecution that deceased used to harass accused no.1 and it created some illwill for the deceased and, therefore, on 1.7.1991, at about 11.00 p.m., the deceased had come to the house in drunken state and started beating accused no.1. Therefore, accused no.1 was frightened and she had hidden herself in a room of the said house. The deceased followed her and as accused no.1 could not be traced out, the deceased had slept on the ota outside the said house and at that time, he had put on a knicker and vest. Thereafter, accused no.2 arrived there, and accused no.1 informed him that her husband had beaten her and that it was likely that her husband would further beat her. Therefore, she told accused no.2 to kill him. That therefore accused no.2, who had an axe with him, had dealt four to five blows of axe on the neck and head of the deceased and due to the said injuries, the deceased died on the spot. Thereafter, both the accused discussed as to how the dead body of the deceased be disposed of. That, ultimately they decided to dig a pit by the side of the said temple and to burry the dead-body of the deceased in the said pit. That thereafter, they inquired from the surroundings if some one was present there and thereafter, they dug a pit by the side of the said temple and dragged the deceased on a jute bag and thereafter, the dead body of the deceased was wrapped in the said jute bag and buried in the said pit. That thereafter dust was laid thereon and even the stones and wooden pieces were laid on the said pit. That blood stains lying around the otta, were also cleaned. That the Axe, which was used in the said offence, was thrown away by accused no.2 in the well which was situated near the temple. That thereafter also, both the accused persons continued to stay together in the said house. That after sometime, the elder brother of the deceased, Parshottamgar and other persons used to make inquiry about the deceased and ultimately, an information was also given to the police indicating that the deceased was missing, and there was some doubt about the illicit relationship between the two accused. On receiving the said information, accused no.2 ran way from the said place and accused no.1 continued to stay at Malara Mahadev Temple. 3.3 It was also the case of the prosecution that thereafter, the mother of accused no.1 arrived there at the temple and children of accused no.1 had gone away with the mother of accused no.1 to Anjar. That thereafter, accused no.1 also walked down to the main road and by rickshaw she had gone to Anjar Railway Station where she met accused no.2 and both of them had gone to village Rapar and Anjar and thereafter, they went to village Dhrag on foot where they stayed for two to three days. That when the police arrived there, they again left the said village and went to village Kuk. Thereafter, they again returned to Anjar. Thereafter, accused no.1 filed FIR against two accused persons and disclosed as to how the incident took place and as to how the dead-body of the deceased was buried. Thereafter, at her willingness the dead-body of the deceased was brought out from the said pit by removing the wooden pieces and other things lying on the said pit. The Postmortem was undertaken in respect of the dead-body. It was found that the dead-body was wrapped in the jute bag and a knicker and vest were there on the dead-body. The dead-body was seized in presence of panchas and thereafter, Postmortem was undertaken. That thereafter, the said dead-body was referred for further experts' opinion and on receiving the opinion, it was kept with police investigation papers. Further investigation was undertaken and thereafter, both the accused were arrested and after completion of investigation, recording of the statements of witnesses and obtaining further material on record, the Investigating Police Officer submitted charge sheet against the two accused persons before the Court of learned Judicial Magistrate First Class at Anjar. 4. The learned Judicial Magistrate First Class, Anjar registered the said case and supplied the copies of police investigation papers to both the accused persons. This being a case involving an offence punishable under Section 302 of IPC and being a case exclusively triable by the Court of Sessions, the learned JMFC committed the case to the Sessions Court and also sent the investigations papers to the Sessions Court where it was registered as Sessions Case No. 1 of 1992. There also the learned Judge inquired if the two accused persons had been supplied with the copies of police papers and when the Judge was satisfied that the papers were supplied, he framed the charge at Exh.1, to which the two accused pleaded not guilty and claimed to be tried. Therefore, the learned Judge proceeded to record evidence in the case. During the course of trial, the prosecution has examined as many as 23 witnesses, a list of which is reproduced for ready reference as under : (i) Witness No.1 Rajubhai Bhagwandas (Panch) Exh.11 (ii) Witness No.2 Motigar Ramgar (Panch) Exh.13 (iii) Witness No.3 Jaymal Rajabhai (Panch) Exh.7 (iv) Witness No.4 Jadavji Vaghji (Panch) Exh.19 (v) Witness No.5 Mukesh Ghanshyambhai (Panch) Exh.21 (vi) Witness No.6 Jayantilal Hansaraj Thakkar Exh.26 (vii) Witness No.7 Jaluben Damjibhai Exh.28 (viii) Witness No.8 Valbhai Nayu Exh.29 (ix) Witness No.9 Pruthvirajsing Jasubha Exh.30 (x) Witness No.10 Amad Khamisha Chavda(Panch) Exh.31 (xi) Witness No.11 Madhavsinh Ratansinh Jadeja, (Medical Officer R.M.C.) Exh.36. (xii) Witness No.12 Parshottamgar Arjangar Gusai Exh.39 (xiii) Witness No.13 Dahya Kana Exh.43 (xiv) Witness No.14 Rajendra Bahadursinh Chauhan Exh.44 (xv) Witness No.15 Bhajansinh K. Khasla Exh.45 (xvi) Witness No.16 Dr. Harimangal Mangal Exh.48 (xvii) Witness No.17 Navinbhai Amrutlal Vyas Eh..51 (xviii) Witness No.18 Krishnaben Khimji Exh.54 (xix) Witness No.19 Kirangar Kishorgar Exh.51 (xx) Witness No.20 Premji Dharamshi Kulani Exh.60 (xxi) Witness No.21 Dilipkumar Kapilray Vaishnav Exh.61 (xxii) Witness No.22 Vijay Pragji Rathod Exh.70 (xxiii) Witness No.23 Naranbhai Narrotamdas Patel Exh.72 5. After concluding the evidence produced by the prosecution, the learned trial Judge recorded further statement of both the accused persons under Section 313 of the Code. Thereafter, the learned Judge heard oral arguments submitted by the learned advocates for the parties and thereafter, leaned trial Judge found that the prosecution had proved the case against both the accused persons beyond the reasonable doubt. Therefore, the learned trial Judge recorded the judgment and order of conviction and after hearing both the accused persons on the quantum of punishment, inflicted the aforesaid punishment on both the accused persons. 6. Being aggrieved by the said judgement and order of conviction of the learned trial Judge, two accused persons have preferred these two appeals under Section 374(2) of the Code. 7. Accused no.1 has taken up a contention in her appeal being Criminal Appeal No. 471 of 1995 that the trial Court has not properly read the evidence and there was no direct evidence to connect accused no.1 with the offence in question. That she has been falsely implicated in the case and that there was no motive proved against her. That the trial Court has erred in relying on the FIR, and the said FIR was technically not admissible in evidence and yet, the trial Court had read the same as a piece of evidence against accused no.1. That this being a case of circumstantial evidence, the trial Court ought to have insisted on evidence of motive which was absent in the case and, therefore, the trial Court ought to have acquitted accused no.1. That the trial Court has erred in relying upon the evidence of the son and the brother of the deceased. Therefore, the judgement and order of conviction recorded by the trial Court are illegal, erroneous and deserve to be set aside. Accused no.1, therefore, prayed that the present appeal be allowed and conviction and sentence against accused no.1 be quashed and set aside, and accused no.1 be ordered to be acquitted out right. Almost similar contentions have been raised by accused no.2 in his appeal being Criminal Appeal No. 245 of 1995. 8. On receipt of the two appeals, they were ordered to be admitted. Accused no.1 was on bail during the course of the trial and after the admission of the appeal, accused no.1 was granted bail in her appeal. So far accused no.2 is concerned, he was in jail right from the beginning and thereafter, he was granted furlough for a period of 14 days from 21.4.1997 and he was required to surrender on 6.5.1997. However, accused no.2 did not surrender in time and till today, he has not surrendered and was not apprehended by the police. 9. In response to the notice of admission of the two appeals, Mr. A.J.Deai, learned APP appears on behalf of the State. We have heard the arguments advanced at length by the learned advocates for the parties and perused the records. In fact, learned advocates have taken us through the judgement as well as through oral and documentary evidence on record. So far accused no.1 is concerned, it has been argued at length by Mr. D.M.Thakkar, that there is no evidence on record to show that accused no.1 was involved in the offence and that she has been falsely implicated and convicted on evidence which was not there. It has also been argued that in fact, there was no evidence against accused no.1 before the trial Court for recording conviction against accused no.1. It is, therefore, prayed that so far accused no.1 is concerned she deserves acquittal. 10. Now, it is a fact that the offence has been registered at Adipur Police Station on 23.8.1991, the FIR of which is produced at Exh.73. The said FIR has been filed by accused no.1 herself. Therefore, an attempt has been made to argue that this FIR has been registered at the instance of accused no.1 and, therefore, the FIR is inadmissible as a whole and, therefore, it should be overlooked totally. It has also been argued that the trial Court has taken into account this FIR, Exh.73. That since the FIR was not admissible in evidence and since the trial Court has taken into the account the FIR, Exh.73 the entire approach of the trial Court was improper and not according to law. Therefore, the entire observations of the trial Court touching the FIR and around it should be overlooked. It is, therefore, contended that if once the FIR is overlooked and not considered then there is no further evidence on record to connect accused no.1 with the offence in question. 11. Now, it is a matter of record that the FIR, Exh.73, has been admitted in evidence during the course of the evidence recorded by the trial Court. There, it has been stated by accused no.1 that offence took place on 1.7.1991 at 23.00 hours (11.00 p.m.) and the FIR was lodged at 15.00 hours (3.00 p.m.) on 23.8.1991. The FIR has been lodged by accused no.1 against herself and against accused no.2. The main aspect of the FIR, may be briefly stated, is that accused no.1 was staying with her husband and children at village Meghpar near Malara Mahadev Temple. That her marriage took place before about 14 years with the deceased Kishorgar. That they had four children and Kirangar, who is eldest son was aged about 13 years at that point of time. It was disclosed in the FIR that her mother Kankuben used to come to stay with them in the said house, but she had not come there since last about four months. It was further disclosed in the FIR that accused no.2 had come in contact with the deceased since last three years as accused no.2 was working as a watchman in the field of Gopalbhai, which was adjacent to the said Malara Mahadev Temple. That therefore he frequently used to come to the said house and, therefore, he had developed extra martial relationship with her. That before about six months, the land of the deceased was sold in sum of Rs.7,70,000/- and out of the said amount, Rs.2,70,000/- were placed in a bank and a tractor and ambassador car, and ornaments were purchased from the remaining sale proceeds. That the deceased used to keep handsome cash on hand at the house and, therefore, accused no.2 also used to sleep at the said house very often. That even in the absence of deceased husband of accused no.1, accused no.2 used to come there to sleep at the said house. That the deceased husband used to harass her very often and, therefore, she had created illwill for the deceased. That on 1.7.1991, at about 11.00 p.m., the deceased had come in drunken state and started beating accused no.1 and accused no.1 was frightened and tried to hide herself so that the deceased husband could not trace her out. That as the deceased husband could not trace out her, he slept on the otta of the said house. At that time, he had put on a knicker and vest. That thereafter, accused no.2 arrived there and accused no.1 had told accused no.2 that the deceased had beaten her and it was likely that the deceased would further beat her. That therefore she told accused no.2 to kill the deceased and accused no.2 dealt four to five axe blows on the neck and head of the deceased and due to that, deceased died on the spot. That thereafter, they discussed as to how the dead body of the deceased should be disposed of and thereafter, the dead body of the deceased was buried in a pit, dug by the side of the temple and then, wooden pieces and stones were laid on the said pit. That thereafter, accused no.2 had thrown the said axe in a well nearby the said temple. That thereafter, accused no.1 continued to stay there and accused no.2 also continued to stay with her. But, thereafter the elder brother of the deceased Parshottamgar and other persons made inquiry about the deceased and informed the police and, therefore, accused no.2 ran away, but accused no.1 continued to stay at Malara Mahadev Temple and when her mother arrived there, the children had gone away with her mother and she stared to go on foot towards the road. That on the road, a rickshaw was found and she went to Anjar. It is further disclosed by her that at Anjar Railway Station she met accused no.2 and both of them had gone to village Rapar and from village Rapar they went to village Dhrag at the place of a relation of accused no.2. That thereafter they had also gone to village Kuk and from there, they returned to Anjar and thereafter, accused no.2 had gone to office of the DSP, but the DSP was not available and thereafter, both had gone to Adipur and there accused no.1 lodged the FIR. 12. At this juncture, Mr. D.M.Thakkar, learned advocate for accused no.1 has argued at length that this FIR is not admissible in evidence as it has been filed by accused no.1. It has also been argued that even if accused no.1 was actually not arrested and made accused in the said offence, she was thereafter arrested in the said offence and therefore also, the said FIR as filed by accused person is not admissible in evidence. Therefore, it must be discarded and overlooked out right. It is also his argument that this FIR has been lodged by accused no.1 at the instance of the police, and whatever stated in the FIR has actually been written down by the police and it was not actually conveyed by accused no.1 to the police. 13. At this juncture, it would be worthwhile to refer to a decision of the Hon'ble the Supreme Court in the case of Bheru Singh S/o Kalyan Singh Vs. State of Rajasthan, reported in 1994 (2) GLH 304. In paragraph nos.16 and 20, the Hon'ble the Supreme Court has made following observations: Para.16 A confession or an admission is evidence against the maker of it so long as its admissibility is not excluded by some provision of law. Provisions of Sections 24 and 30 of the Evidence Act and of Section 164 of the Code of Criminal Procedure deal with confessions. By virtue of the provisions of Section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the once made by such a person before any investigation had begun. The expression "accused of any offence" in Section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not. In admissibility of a confessional statement made to a police officer under Section 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars 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 the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial bail to the admissibility of confessions made to a person other than a police officer but we are not concerned with it