CR.A/155/2001 1/21 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 155 of 2001 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 ? ===================================================== MADEVA NARSHA HARIJAN - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : THROUGH JAIL for Appellant(s) : 1,MS SADHANA SAGAR for Appellant(s) : 1, MR KC SHAH Ld. APP for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 13/08/2008 CAV JUDGMENT CR.A/155/2001 2/21 JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. The present appeal is arising out of the impugned judgment and order dated 22.1.2001 rendered by the learned Addl. Sessions Judge, Banaskantha at Deesa in Sessions Case No. 134 of 1999. The appellant herein came to be convicted for the offence punishable under sec. 302 of Indian Penal Code (for short “IPC”) and sentenced to suffer life imprisonment and fine of Rs. 1000/-, in default, further S/I of six months. 2. The facts of the prosecution case are as under: 3. Complainant Hansabhai Galabhai, Harijan, aged 30, residing at Samarvada, taluka Dhanera and doing agricultural work. He has constructed one room at concessional rate in a plot under Sardar Patel Residential Scheme at the out skirt of village Samarvada. His brother has also constructed one room at his costs adjoining to his room. Out of these two rooms, the room of his brother Popat was empty. The brother of complainant is residing with his father in CR.A/155/2001 3/21 JUDGMENT the village. The present appellant – accused of village Ashia was residing in the room of complainant and was doing masonry work in their village. So, the complainant has given his room for residing to the present appellant since last two months. The appellant and his wife both were staying in the room of complainant. The complainant along with his wife were residing in the front of the room (Osari). The present appellant has no issue. The maternal place of present appellant is the village of complainant and the appellant is the nephew of the family of complainant. 4. That on 28.2.1999, complainant and his wife Ambaben were sleeping in the Osari of their room after dinner at about 8.00 O'clock in the night, whereas, appellant and his wife were sleeping inside the room and have closed the door. At 6.00 O'clock in the morning, the complainant and his wife got up and a shout was made by them for getting up the present appellant who was sleeping in the room. The appellant replied the complainant from the room that he has killed his wife Meera by giving an Axe blow, and if CR.A/155/2001 4/21 JUDGMENT you desire, you may make complaint. So, the complainant became hesitated and looked inside the room from a hole and saw Meera wife of present appellant lying smeared with blood on the cot. The complainant rushed in the village and gathered Darbar Bhavji Vanji, Makji Virji, Majirana Amthutalsh, Chamna Kheta, Harijan Ishaprema,Joitapumna and Patel Ishwar Jiva of his village and complainant has also informed them about the incident. Thereafter, they got the room opened and caught hold of the present appellant and they saw Meera lying dead in bleeding condition. The present appellant was in a habit of taking liquor and so he used to come by consuming liquor daily, and his wife was telling him not to consume liquor. There was some altercation between both of them and due to this altercation, present appellant got excited and killed his wife Meera by giving an Axe blow. Thereafter, the complainant went to the Dhanera Police Station for lodging the complaint on 1.3.1999 at 11.30am in the morning. So, the complaint was recorded by Head Constable, Dhanera Police Station vide CR No. I-21/1999 for the offence punishable under Sec. 302 of IPC and under sec. 135 CR.A/155/2001 5/21 JUDGMENT of Bombay Police Act. Then, the police has went to village Samarvada and drawn the inquest panchnama of the dead-body of Meera in the presence of panchas and sent the dead-body of Meera for post mortem to the Community Health Centre, Dhanera. Thereafter, the police has also drawn the panchnama of scene of offence and statements of witnesses were recorded and accused – appellant was arrested. After completion of investigation, the charge-sheet was filed before the learned Judicial Magistrate First Class, Dhanera. Since the alleged offence under sec. 302 of IPC was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, Sabarkantha at Palanpur under sec. 209 of Code of Criminal Procedure. 5. At the end of the trial, as the appellant- accused was found guilty for the offence of murder of his wife Meera, he was convicted vide impugned judgment and order dated 22.1.2001 and sentenced to undergo life imprisonment for the offence punishable under sec. 302 of IPC and a fine of Rs. 1000/-, in default, to undergo further S/I of six months. CR.A/155/2001 6/21 JUDGMENT 6. Before the trial court, the learned Judge has framed the charge against the appellant-accused and as he has not pleaded guilty and claimed to be tried, therefore, trial was proceeded in Sessions Case No. 134/1999. 7. Against the said judgment and order of conviction and sentence, the appellant – accused has preferred this appeal under sec. 374 of Code of Criminal Procedure, through jail. 8. During the course of trial, the prosecution has examined, in all 15 witnesses, which are as under: 1. PW-1 Dr. Shital Sudhirbhai Shah Ex. 11 2. PW-2 Ganeshabhai Tejabhai Ex. 15 3. PW-3 Chamnabhai Khetabhai Ex. 16 4. PW-4 Sattarbhai Hakimbhai Musla Ex. 17 5. PW-5 Hansabhai Galabhai Ex. 19 6. PW-6 Ambaben Raimalbhai Ex. 20 7. PW-7 Karanpuri Raghnathpuri Ex. 21 8. PW-8 Narsibhai Navabhai Ex. 23 CR.A/155/2001 7/21 JUDGMENT 9. PW-9 Mafji Virji Devda Ex. 24 10.PW-10 Bhavji Manji Ex. 26 11.PW-11 Babubhai Dhanabhai Ex. 27 12.PW-12 Alambhai Abhubhai Ex. 31 13.PW-13 Ratanji Hirjibhai Chaudhary, PSI, Ex. 32 14.PW-14Nadubhai Dolabhai Parmar Ex. 33 15.PW-15 Umedsing Ravaji Thakor, PSI, Ex. 36 9. To prove the case, the prosecution has also produced and relied upon the following documentary evidence. They are as under: 1. Order for investigation Ex. 29 2. Complaint Ex. 28 3. Yadi for Post Mortem of deceased Meera by Medical Officer, Dhanera. 4. Inquest Panchnama Ex. 8 5. Report Ex. 30 6. Panchnama of scene of offence Ex. 37 7. Arrest panchnama Ex. 9 8. Panchnama of muddamal weapon Ex. 22 9. panchnama of clothes of deceased Ex. 10 10.Receipt Ex. 38 CR.A/155/2001 8/21 JUDGMENT 11.Certificate of cause of death Ex. 14 12.Dispatch Note Ex. 43 13.Receipt of FSL regarding muddamal Ex. 44 14.PM Note Ex. 13 15.Letter written by FSL Ex. 41 16.FSL Report Ex. 42 17.Yadi for preparing map of scene of offence Ex. 34 18.Map of scene of offence Ex. 35. 10. 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 CR.A/155/2001 9/21 JUDGMENT murder punishable under sec. 302 of IPC, therefore, he was convicted and sentenced to undergo life imprisonment for the offence under sec. 302 of IPC and a fine of Rs. 1000/-, in default, further S/I of six months. 11. Ms. Sadhana Sagar learned advocate appointed by the Legal Aid Committee for the appellant has contended that from the oral evidence of the witnesses who have stated before the trial Court that from the hole of the wall they saw the present appellant present with the dead-body of his wife with an Axe. She has contended that they are not an eye witnesses. Ms. Sagar has also contended that the statement of the accused which was produced on record by this witness in a form of extra judicial confession but it is a concocted evidence and extra judicial confession cannot be considered as an evidence to convict the accused. It is a weak piece of evidence. She has also argued that evidence of PW- 10 Bhavji Manji Ex. 26 is not trustworthy and reliable. The prosecution has tried to prove the panchnama of recovery of muddamal from the oral CR.A/155/2001 10/21 JUDGMENT evidence of this witness and it is deliberately stated by this witness just to book the present appellant and establish him as an accused that muddamal Axe was taken away by him from the appellant and it was produced before the police. She has vehemently argued that all the witnesses are interested witnesses and they are not an eye witnesses. From the evidence of the prosecution, it is established that they rushed to the place after the information received from the complainant. She has also contended that the oral evidence of the complainant and his wife is not reliable. She has prayed that from the evidence of the prosecution it was not established before the trial court that the present appellant has committed heinous crime of murder. She has also argued that the judgment and order of the trial court is required to be quashed and set aside. 12. Learned APP Mr. KC Shah for the respondent-State has read the oral evidence of the complainant as well as his wife and respected persons of that village who were examined by the prosecution and argued that at CR.A/155/2001 11/21 JUDGMENT the scene of occurance doors of the room were closed and from the hole of wall they saw that the appellant was present with an Axe and dead-body of his wife was lying and from the inside of the room, the present appellant told the witnesses that I have killed my wife. Mr. Shah has argued that at the time of incident, the present accused was present with dead- body of his deceased wife and doors were closed from the inside. He was seen by the witnesses at the scene of offence. Mr. Shah also contended that the present appellant has made an extra judicial confession before all the witnesses as well as the principle of last seen together is also proved. Mr. Shah has argued that at the call of the witnesses, the appellant has opened the doors and came out with muddamal Axe and which was snatched away from the hands of the appellant by independent witness. He has also contended that the muddamal Axe was produced before the police which was recovered under panchnama. Mr. Shah has also argued that the trial court has discussed each and every points and also gave sound reasons. He has contended that when the prosecution has proved its versions before the trial CR.A/155/2001 12/21 JUDGMENT Court, then, there is no scope for entertaining this appeal and the present appeal requires to be dismissed. 13. We have heard learned advocates for both the sides. We have read the oral as well as documentary evidences. The prosecution has examined PW-1 Dr. Shital Sudhirbhai Shah Ex. 11. The autopsy was carried out by this witness. This witness has examined the following injuries: 1) Neck – incised wound of 10cm x 6 cm x 8 cm all big vessel, cervical vascular cut on Rt Side. 2) Rt. Shoulder – incised wound on Rt deltoid region 5cm x 3cm x 3cm. 3) Rt. forearm – incised wound at Rt. Forearm near elbow 5cm x 3cm x 3cm. 14. PW-1 Dr. Shital Ex. 11 has explained before the trial court that injuries were ante mortem and it was sufficient in the ordinary course of nature to cause death. This witness has also explained that all CR.A/155/2001 13/21 JUDGMENT the injuries were possible by muddamal Axe. We have considered the oral evidence of PW-1 and the post mortem note at Ex. 13. From the evidence of PW-5 complainant Hansabhai Galabhai Ex. 19 and his wife PW-6 Ambaben Raimal Ex. 20, it is clear that accused – present appellant and his wife were staying in their room and prior to the day of incident, both were in that room and witnesses were slept outside of that room (Osari). In the morning when deceased and appellant has not opened the door, so both have verified and then they saw that appellant – accused was inside the room and from the inside, in the presence of PW-5 Hansabhai Galabhai Ex. 19 and PW-6 Ambaben Raimalbhai Ex. 20, he replied that I have killed my wife, if you want to file a complaint, file. So, these witnesses rushed to the respectable persons of the village and explained to them about the whole incident. So all the witnesses came to the scene of offence and they have also saw inside the room and at that time the accused-appellant was found present inside the room and dead-body of his wife was lying there and the appellant replied to all these witnesses that I have killed my wife. So, it appears CR.A/155/2001 14/21 JUDGMENT that the prosecution is relying upon the extra judicial confession made by the present appellant before the witnesses. 15. We have considered the oral evidence of complainant with complaint Ex. 28. This witness has stated that muddamal Axe was recovered and it was identified by this witness. We have also considered the oral evidence of PW-6 Ambaben Raimalbhai Ex. 20. She has also made a specific statement regarding extra judicial confession which was made by the present appellant before them. It is true that panch witnesses of the panchnama of scene of offence turned hostile before the trial Court, but from the oral evidence of PW-5 Hansabhai Galabhai, complainant Ex. 19, it is established that scene of offence was cited by him in the presence of other witnesses also. So, simply because the panch witness of the scene of the offence did not support the case of prosecution, it cannot be said to be fatal to the prosecution case. 16. From the oral evidence of the witnesses, it was also established before the trial Court that muddamal CR.A/155/2001 15/21 JUDGMENT Axe was taken away from the appellant by PW-10 Bhavji Manji Ex. 26 and produced before the police. So, it was seized under the panchnama of recovery Ex. 22. We have considered the oral evidence of PW-7 Karanpuri Raghnathpuri Ex. 21. This witness has proved the contents of panchnama. We have considered the oral evidence of PW-9 Mafji Virji Devda. This witness was also present at the time of incident at the place of offence at which the extra judicial confession was made by the present appellant. We have perused the oral evidence as well as documentary evidence and it is established that the present appellant was found present with the dead-body of his wife in the room and from the muddamal Axe blood of deceased was found and it is proved at Ex. 42. We have no doubt to say anything about the opinion of FSL. We have considered the oral as well as documentary evidence and circumstantial evidences. Now, the question which arise before us is as to whether the extra judicial confession made by the appellant before the witnesses is reliable, trustworthy in evidence or not ? CR.A/155/2001 16/21 JUDGMENT 17. There is neither any rule of law nor any prudence that evidence furnished by way of extra judicial confession cannot be relied upon unless it is corroborated by some other credible evidence. If the evidence for the extra judicial confession comes from the mouth of witness/witnesses who appear to be unbiased not even remotely enimical to the accused, the extra judicial confession can be accepted and can be made the basis of conviction. We have considered the oral evidence of the witnesses and gone through the statement of the appellant made by him by way of extra judicial confession that “I have killed my wife, if you want to file complaint, file” was wholly trustworthy and reliable. It is on record that in connection of the confessional statement of the accused, sufficient corroborative evidence of the witnesses also produced on record. We have not found any illegality regarding the statements made by the witnesses in their oral version. 18. From the extra judicial confession of the accused made before the eye witnesses, we found that the said statement was voluntary one and does not CR.A/155/2001 17/21 JUDGMENT appear to be result of inducement, threat or promise or not in a police custody, as envisaged under sec. 24 of the Evidence Act. So, when the trial court has relied upon oral version of the witnesses and we have also perused whole evidence of the witnesses as evidence of medical expert and report of FSL, we have found that extra judicial confession came through independent witness having no reason to falsely implicate the appellant and it was corroborated by circumstantial evidence, then, it is required to be considered that extra judicial confession of the appellant is of voluntary character. We have also found that all the witnesses were respectable persons of the village and was made before them, so it is acceptable in the eye of law. 19. It is true that while appreciating the extra judicial confession, the court has to consider the relevant factors, like; (1) to whom it is made, (2) the time and place making it and (3) the circumstances in which it was made. The court has to look into the circumstances. We have examined this issue from the oral evidence of the witnesses as well CR.A/155/2001 18/21 JUDGMENT as from circumstantial evidence produced on record and we are of the opinion that the statement made by the present appellant before independent witnesses at the scene of offence, it was spoken by him and all the witnesses have seen that present appellant was present inside the room with the dead-body of the deceased with muddamal Axe and blood was also found present on the Axe. So, we have considered all the three issues with the evidence of the witnesses and we are of the opinion that in such circumstances the extra judicial confession of the appellant cannot be brushed aside. 20. We have found that only the present appellant was present with his wife inside the room. In the case of Raghunandan vs. State of M.P., reported in (2007)9 SCC 347, the Apex Court observed that it was necessary to the appellant to explain how the dead- body of the deceased came inside the house or how it was happened. We have perused the evidence of the prosecution. The present-appellant has made a statement before all the witnesses that he has killed his wife, but he has not explained anything in his CR.A/155/2001 19/21 JUDGMENT defence. We have perused the oral evidence of the witnesses. It is found that the present appellant was in habit of consuming liquor. The Apex Court has also laid down in the case of Swamy Shraddananda alia Murali Manohar Mishra vs. State of Karnataka, reported in 2007 AIR SCW 4513, that unnatural death of wife in bedroom which shared by deceased and her husband. Husband has to offer explanation and in absence of any explanation would lead to a circumstance against the accused. We have perused the decision of the Apex Court. We have not found any explanation which was made by the present appellant during the trial or during the investigation. We have found that the issue of last seen together with the deceased to appellant-accused is also proved by the prosecution before the trial Court. We have also found that the extra judicial confession made by the present appellant is trustworthy, reliable and acceptable. We have also found that muddamal Axe was used by the appellant and blood of the deceased was also found on the blade of muddamal Axe. From the above circumstances, we have nothing to say that some suspect can be arose in favour of the present CR.A/155/2001 20/21 JUDGMENT appellant. 21. From the oral as well as documentary evidence adduced by the prosecution, in our opinion, the learned trial Judge has rightly convicted and sentenced the appellant-accused. Therefore, the conviction and sentence awarded by the trial Court against the appellant-accused does not call for any interference of this Court in exercise of appellate powers. 22. We find ourselves in complete agreement with the said findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court and we are of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence. 23. For the foregoing reasons, the appeal fails and is hereby dismissed. The judgment and order of CR.A/155/2001 21/21 JUDGMENT conviction and sentence dated 22.1.2001 recorded by the trial court against the appellant-accused in Sessions Case No. 134/1999 is hereby confirmed and maintained. Muddamal be disposed of in terms of directions contained in the impugned judgment and order passed by the trial Court. The appeal is accordingly dismissed. (A.M. KAPADIA, J.) (Z.K. SAIYED, J.) mandora/