CR.A/1079/2000 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1079 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE Z.K.SAIYED ============================================================================ 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================== MUSA @ JULA MAMAD SHAIKH - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : THROUGH JAIL for Appellant(s) : 1,MS SADHANA SAGAR for Appellant(s) : 1, MR MUKESH PATEL Ld. APP for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date 11/08/2008 CAV JUDGMENT CR.A/1079/2000 2/22 JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. The present appeal is preferred by the appellant – ori. Accused against the judgment and order of conviction and sentence dated 28.2.2000 passed by the learned Addl. Sessions Judge, Gandhidham, Kutchh in Sessions Case No. 321/1999 for the offence punishable under sec. 302 of Indian Penal Code (for short “IPC”). 2. Originally, the present appellant – accused of Sessions Case No. 321/1999 was charged and tried by the learned Addl. Sessions Judge, Gandhidham for the offence punishable under sec. 302 and 498-A of IPC. At the conclusion of trial, the appellant came to be convicted for the offence under sec. 302 of IPC and sentenced for life imprisonment and fine a of Rs. 5000/-, in default, further S/I for one year vide impugned judgment and order dated 28.2.2000. However, vide said judgment, the appellant-accused came to be acquitted for the offence punishable under sec. 498-A of IPC. 3. The facts of the prosecution case are that the accused – appellant who is cited as complainant was CR.A/1079/2000 3/22 JUDGMENT staying at Khari Rohar, Opp. Alana Pir Mosque, Tal. Gandhidham. That, on 6.7.1999, his marriage was performed with Rashidaben daughter of Jusab Pathan, resident of village Khari Rohar, Tal. Gandhidham. Thereafter, the appellant and his wife had been residing at village Khari Rohar. That in the night of marriage day of the appellant with deceased Rashida, he has called his wife Rashida, but she did not give proper response to him and expressed her displeasure. The appellant was sleeping on the cot in his house and when he told Rashida to sleep with him on the cot, she refused to sleep. Therefore, appellant asked her why she is refusing to sleep with him? His wife told him that he should not talk with her, yet he made her agree to sleep with him and though she was not willing to sleep with him, she had slept with him against her will and both of them had cohabited once as husband-wife. 4. Thereafter, his wife was not cooking meal for him and every time and she used to leave for her parents house and she did not talk with him and when he called her, she used to tell him that appellant should not talk with her. Except the first night of CR.A/1079/2000 4/22 JUDGMENT their marriage, Rashida did not allow him to sleep with her and when appellant used to go to sleep with her, she used to give him push and get him out of the room. His wife did not allow the appellant to sleep with her and did not talk with him. Therefore, the appellant had suspected on the character of his wife Rashida and for the said reason, he was annoyed with her company. 5. That on 29.7.1999, when the present appellant -accused was at his house, his wife Rashida had gone to her parents' house and since she had not cooked the meal for afternoon, his sister-in-law had come to his house to give lunch. The appellant had headache and was taking rest at his house. Since, his wife Rashida did not return to his house till 11.00 O'clock, he left for his father-in-law's house and when he told Rashida to come with him to his house, she refused to come. However, when his in-laws told her to go with him, she came with appellant at his house at about 12.00 O'clock. When they entered into the house, his wife had shut the door from inside for hours, and when appellant was sleeping on the cot, he told her to sleep with him on the cot. She CR.A/1079/2000 5/22 JUDGMENT refused to sleep with him and she also told him that “not to talk with her”. Till late night, the appellant had tried to convince her to sleep with him but she did not agree to sleep with him on the cot and she slept on the floor. So, the appellant tried to sleep with her on the floor, but she did not allow him to sleep with her and she had pushed him and made him to leave from there. The appellant again try to convince her to sleep with him, but she did not agree to sleep with him and told him “not to talk with her”. When his wife refused to sleep with her, therefore, the appellant told her that if she did not allow him to sleep with her, then, the appellant would commit suicide. On being told so, Rashida told the appellant to commit suicide and she do not want to talk with him. When she told so, the appellant became very angry with his wife Rashida. On the same night in the early morning at about 3.00 O'clock, the appellant wrapped the wire around the neck of his wife Rashida and forcefully pulled the wire and so she died. After the death of his wife Rashida, the appellant – accused went to the Police Inspector, Gandhidham and explained the whole CR.A/1079/2000 6/22 JUDGMENT incident before him. So, his complaint was recorded by P.I. Gandhidham and police has registered the offence at Gandhidham Police Station vide CR No. I- 246/1999 for the offence punishable under sec. 302 and 498-A of IPC. Then, the police has drawn the panchnama of dead-body of deceased Rashida and also prepared the panchnama of scene of offence and statements of witnesses were recorded and accused- appellant was arrested and charge-sheet was filed before the learned Judicial Magistrate First Class, Gandhidham. Since the alleged offence under sec. 302 and 498-A was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, Kutchh, on 3.11.1999. 6. At the end of the trial, as the appellant- accused was found guilty for the offence of murder of his wife Rashida, he was convicted vide impugned judgment and order dated 28.2.2000 and sentenced to undergo life imprisonment for the offence punishable under sec. 302 of IPC and a fine of Rs. 5000/- in default, further S/I for one year. However, the appellant-accused came to be acquitted for the offence punishable under sec. 498-A of IPC. CR.A/1079/2000 7/22 JUDGMENT 7. Against the said judgment and order of conviction and sentence, the appellant – accused has preferred this appeal under sec. 374 of CrPC, through jail. 8. Before the trial court, the learned Judge has framed the charge against the appellant – accused and he has not pleaded guilty and claimed to be tried, therefore, trial was proceeded in Sessions Case No. 321 of 1999. 9. During the course of trial, the prosecution has examined, in all, 18 witnesses, to prove the guilt of the accused, which are as under: 1. PW-1 Farida d/o Jusab Abdulla Ex. 6 2. PW-2 Jusab Abdulla Bhatti Ex. 7 3. PW-3 Bhachibai w/o Jusab Abdulla Ex. 8 4. PW-4 Sherubai d/o Jusab Abdulla Ex. 9 5. PW-5 Siddiq Jusab Pathan Ex. 10 6. PW-6 Noormamad Haji Ibrahim Ex. 11 7. PW-7 Ibrahim Hasam Chhadecha Ex. 12 8. PW-8 Mamad Ibrahim Ex. 13 9. PW-9 Harshvadan Chandrakant Mehta ex. 14 10.PW-10 Khatabai @ Bababai Haji Ibrahim Jangiya Ex. 16 11.PW-11 Mahmad Husen Katiyar Ex. 17 12.PW-12 Jalabai wd/o Alibhai Lakhabhai Ex. 18 13.PW-13 Amichha Latifchha Saiyed Ex. 19 14.PW-14 Kasam Isha Sapesha Ex. 20 15.PW-15 Valji Vagha Barot Ex. 21 16.PW-16 Kanaksinh Mansinh Parmar Ex. 22 17.PW-17 K.K. Desai, P.I. Ex. 23 CR.A/1079/2000 8/22 JUDGMENT 18.PW-18 C.M. Acharya,M.O., Ex. 29 10. To prove the case, the prosecution has also produced and relied upon the following documentary evidence. They are as under: 1. Complaint – Mark-A 2. Entry made on the basis of complaint of accused Ex.24 3. Inquest panchnama Ex. 25 4. Panchnama of scene of offence Ex. 26 5. Arrest panchnama of accused Ex. 27. 11. After recording of the evidence of the witnesses, the learned trial Judge explained the accused the circumstances which were appearing against him and the statement of the present appellant was recorded under sec. 313 of CrPC. In his statement, the appellant – accused has denied the case in toto and he made a statement before the Ld. Judge that he is falsely involved in this case. He has not committed any offence. The present appellant has not led any evidence nor examined any witness in support of his defence. On appreciation and scrutiny of the evidence produced on record, the learned Trial Judge held that the appellant has committed the offence of murder punishable under sec. 302 of IPC, CR.A/1079/2000 9/22 JUDGMENT therefore, he was convicted and sentenced to undergo life imprisonment for the offence under sec. 302 of IPC and a fine of Rs. 5000/-, in default, further S/I of one year. 12. Ms. Sadhana Sagar learned Advocate appointed by the Legal Aid Committee for the appellant has contended that in this case, the appellant is shown complainant and police has concocted the said complaint against the poor appellant – accused. She has also contended that the prosecution has not produced any eye witness or any direct evidence to prove the involvement of the present appellant – accused. She has also contended that cause of death of Rashidaben is not due to strangulation but it is due to hanging and she has also contended that this is not a case of murder but it is a case of suicide. She has further argued that the present appellant – accused is a poor man. On the day of occurance, TV or any other electronic articles were not found present. The appellant has never utilised such type of electronic articles in his house. She has contended that the police has concocted the false story and one piece of wire of dish antena was recovered from the CR.A/1079/2000 10/22 JUDGMENT scene of offence under panchnama of scene of offence at Ex. 26. She has also read the evidence of autopsy and evidence of Doctor who has performed the Post Mortem and argued that injury which is found on the neck of the body of deceased can only be possible due to hanging. She has also contended that the complaint which is recorded by the police cannot be used against the present appellant. It is one kind of confession and provisions of Evidence Act is not permitting to read it in evidence. She has also contended that accused is totally innocent person and prosecution has failed to produce proper and trustworthy evidence to connect the appellant in the case. Therefore, she has argued that the learned trial Judge has failed to consider the evidences which were produced before him and order of trial court is not proper in eye of law and therefore, the same is required to be quashed and set aside. 13. On the other hand, learned APP Mr. Mukesh Patel for the respondent- State has argued that under the provisions of Sec. 8 of the Evidence Act, the conduct of the appellant is required to be considered and it is admissible in the evidence. Mr. Patel has also CR.A/1079/2000 11/22 JUDGMENT argued that looking to the time of incident, at that time, only appellant was present with the deceased. He has explained the place of offence from the panchnama Ex. 26 and argued that at the time of death of deceased, the present appellant was only present with her. Therefore, the conduct of the accused which is narrated in Mark-A complaint of the appellant – accused, is required to be considered and the judgment and order of the trial court is proper and legal, and therefore, the present appeal deserves to be dismissed. 14. We have considered the submissions made by learned advocate Ms. Sagar for the appellant and Mr. Mukesh Patel learned APP for the respondent- State. We have perused the judgment and order and the set of evidence supplied by them. During the course of the submissions, we have also undertaken a complete and comprehensive appreciation of vital features of this case and the entire evidence on record which is read by learned advocates for the parties with reference to reasonable probability of the case. 15. It is the case of the present appellant that CR.A/1079/2000 12/22 JUDGMENT this is a case of suicide and not murder. We have perused the oral evidence of PW-18 Dr. Chandrakant Acharya Ex. 29 , who was serving at Rambag Hospital as Medical Officer before whom a dead-body of Rashidaben was sent for Post Mortem. He has examined the injuries on the dead-body and external injuries were also recorded in the PM Note at Ex.30, are as under: Ligature mark: Faint ligature mark ½ cm in breadth, surrounding neck anteriorly just below thyroid cartilage lechymosis + swelling of the neck. 16. PW-18 Dr. Acharya has also expressed his opinion that said injuries were antemortem and were sufficient in ordinary course of nature to cause death and as per the opinion of this witness, the death was due to strangulation. This witness has also expressed his opinion that by such type of wire if pressure is applied, then, such type of injuries can be possible and due to such injuries, the deceased has died. No doubt, Mark-A complaint was lodged by CR.A/1079/2000 13/22 JUDGMENT accused -appellant himself before the police and in view of the information given by the present appellant – accused, Police has investigated the case and dead-body was sent for post mortem under inquest panchanama. Panchnama of scene of offence was also drawn on the information given by the present appellant at Mark-A. During the preparation of the panchnama of scene of offence, a piece of wire was recovered and it was tagged as a muddamal in this case. We have considered the oral evidence of the witnesses, but they are not eye witnesses and from the evidence of the witnesses, who are related to the deceased, they have not explained any thing in connection with the offence but they have explained that present appellant accused was always demanding food and other essential articles to maintain his house from the deceased wife and on refusal by deceased to the said demand, she was always being beaten by the appellant. We have also read the oral evidence of the Investigating Officer and considered the complaint given by the present appellant. We have not found any illegality in the investigation carried out by the I.O. CR.A/1079/2000 14/22 JUDGMENT 17. It is settled principle that when deceased and accused were living separately, there may not be any eye witness who can say that he was present at the scene of occurance. We have perused the complaint Mark-A and considered the evidence of Medical Officer. It is established that incident took place at mid-night early in the morning round about 3.00 O'clock and it appears from the evidence that at the time of incident, deceased and appellant were only present at the scene of offence. Therefore, in such type of cases, direct evidence may not be available by way of oral version of witness. In the present case, from the declaration of the appellant – accused police has detected and collected the evidence and filed the charge-sheet against the appellant. 18. Before us, a simple question which has arisen for determination is as to whether the First Information Report given by the accused – appellant is admissible in evidence or not and conduct of the accused/complainant by whom the First Information Report is given, can be admissible in evidence. 19. We have perused the provision of Sections 8 and CR.A/1079/2000 15/22 JUDGMENT 21 of the Evidence Act. It is established by law that First Information Report is the statement of the maker of the report at the Police Station before the Police Officer, recorded in the manner provided by the Code of Criminal Procedure. The First Information Report is admissible under this section as evidence. When the accused himself makes the First Information Report, even if it is in the nature of confession, it is admissible, but if it is not confession, but admission made by the accused, the First Information Report is admissible as evidence under Sec. 21 of the Evidence Act. Subsequent conduct may also be exculpatory conduct of the accused person which is equally admissible because an admission may be proved by or on behalf of the person making it if it is relevant otherwise then as an admission. “Evidence or contemporaneous conduct is always admissible as a surrounding circumstances.” 20. It is held that the conduct of the accused showed that he intended to cause the death of deceased. The fact that the accused gave some information about the crime, such admission can be made admissible against him under Sec. 8 of the CR.A/1079/2000 16/22 JUDGMENT Evidence Act. To judge the state of mind of an accused, his behaviour immediately after the crime would be relevant. Where legal insanity is set up, it is most important to consider the circumstances which have preceded, attended and followed the crime. In the case of Attorney General vs. Drummond (Dru & War 368), Lord Chancellor Sugden said “tell me what you have done under such a deed and I will tell you what that deed means”. 21. If the First Information Report lodged by accused, does not amount to confession but is an admission by the accused of certain facts which have bearing on the question to be determined by the Court, viz. how and by whom the offence was committed or whether the statement of the accused denying the correctness of certain statements of the prosecution witness is correct or not. It may be admitted in evidence against the accused and can be proved under sec. 21 of the Evidence Act. We are of the opinion that where a husband, accused or murderer of his wife, stated to Police that his wife provoked him, shows an extenuating circumstances to mitigate the offence. CR.A/1079/2000 17/22 JUDGMENT 22. The First Information Report contains several other matters, which are relevant for the trial, besides the confession, the statement about the other relevant matter is admissible. Thus, where an accused tells for his preparation for the offence but disowns that he had committed the offence, his statement is exculpatory and is admissible in evidence though it also contains certain self harming statements. But if there is a confession, then the statement of confession is inadmissible, including that portion which relates to the preparation for commission of the offence. If the First Information Report is given by the accused himself, the fact of his giving information is admissible against him as an evidence of his conduct under sec. 8 of the Evidence Act. 23. We have perused the provisions of Section 8 of the Evidence Act. In light of the provisions of sec. 8 of the Evidence Act, in a land mark judgment of the Apex Court, the Apex Court while considering the provisions of sec. 8 of the Evidence Act, in the case of Bheru Singh S/o,m Kalyan Singh vs. State of CR.A/1079/2000 18/22 JUDGMENT Rajsthan, reported in 1994(2) GLH 304, has observed as under: “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 Ss. 24 to 30 of the Evidence Act and of S. 164 of the Code of Criminal Procedure deal with confessions. By virtue of the provisions of S. 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 one made by such a person before any investigation had begun. The expression 'accused of any offence' in S. 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. Inadmisibility of a confessional statement made to a police officer under S. 25 of the Evidence Act is based on the ground of public policy. S. 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. S. 26 of the Evidence Act deals with partial ban to the admissibility of confessions made to a person other than a police officer, but we are not concerned with it in this case. S. 27 of the Evidence Act is in the nature of proviso or an exception, which partially lifts the ban imposed by Ss. 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts CR.A/1079/2000 19/22 JUDGMENT to a confession or not, as relates to the fact there by discovered, when made by a person accused of an offence while in police custody. Under S. 164 Criminal Procedure Code, a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial. Where the first information report is given by an accused himself to a police office and amounts to a confessional statement, proof of the confession is prohibited by S. 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence except to the extent it is permitted by S. 27 of the Evidence Act. The first information report recorded under S. 154 of Criminal Procedure Code is not a substantive piece of 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 Evidence Act in case the information appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct under S. 8 of the Evidence Act and to the extent it is non- confessional in nature, it would also be relevant under S. 21 of the Evidence Act but the confessional part of the first information report by the accused to the police officer cannot be used at all against him in view the ban of S. 25 of the Evidence Act.” 24. In view of the above judgment of the Apex Court, we have carefully perused the First Information CR.A/1079/2000 20/22 JUDGMENT Report and we have found that it discloses the motive of murder of his wife and the manner in which the appellant has committed the murder. From the scene of offence, a piece of wire was recovered under the panchnama and it was tagged in this