CR.A/2976/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2976 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 ? ========================================================= DILIPSINGH GURUDAYALSINGH SIKLIGAR & 3 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR RAJESH K KANANI for Appellant(s) : 1 - 4. MR UR BHATT, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 23/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) Appeal admitted. Ld. APP Mr. Bhatt waives service of notice CR.A/2976/2008 2/10 JUDGMENT of admission. 2. The appeal was listed for admission hearing on 12/12/2008 and it was brought to our notice by learned advocate for the appellants that the appellants are convicted solely on basis of an extra judicial confession of a co-accused, who is not an appellant before us and that there is no other evidence to establish nexus between the occurrence and the appellants. We have, therefore, directed the Registry to call for the record and proceedings from the trial Court so as to reach this Court on or before 18/12/2008 and examined the record and proceedings. Having found substance in the submissions made by learned advocate Mr. Kanani on the earlier occasion, we deemed it proper to take up this matter for final hearing and with consent of both the sides, the matter has been heard by us finally. 3. The facts leading to the present appeal can be narrated thus:- The appellants along with co-accused Tufansing Gurubachchansing Shikh came to be tried by Sessions Court, Bharuch for offences punishable under sections 395, 457, 380, 511 and 114 of the Indian Penal Code [IPC] in Sessions Case No. 88 of 2007. The prosecution case against the appellants and co-accused Tufansing CR.A/2976/2008 3/10 JUDGMENT Gurubachchansing Shikh was that on 9/5/2006 around 4.00 a.m., complainant Bhadrasinh Harisinh Rajna realised that somebody was breaking open the front door of his residence located in the Paradise Park, Near Water Tank, Bholav, Bharuch. When they inquired about who was outside the door, there was no reply. But some persons broke open the main door to the house and tried to break open the door to their bed room with the help of an iron pestle like instrument. The complainant and his wife, therefore, raised alarm and shouts for help from the windows, but there was no response from neighbourhood. The complainant had a licence revolver with him. The assailants tried to enter the room by breaking open the door and made a gap between the door and frame. The complainant was, therefore, constrained to open fire in right of exercise of his private defence, as a result the miscreants ran away. One of the persons sustained bullet injury in his chest. By then, the neighbours had woken up and had gathered near the house. The assailants were noticed to be six. The complainant, first informant, therefore, contacted the police on telephone and police came immediately in the official vehicle. One Tufansing Gurubachchansing Shikh was found and apprehended by police from near Jyotigram Jupadpatti. He was interrogated by police and he is alleged to have disclosed names of the present appellants as accomplish. The police recorded the FIR, registered the offence, CR.A/2976/2008 4/10 JUDGMENT investigated it and ultimately filed charge-sheet in the Court of the Ld. Chief Judicial Magistrate, Bharuch against said Tufansing Gurubachchansing Shikh and present appellants. During the course of investigation, dying declaration of accused no. 1 - Tufansing Gurubachchansing Shikh was recorded which came to be produced before the trial Court at exh. 42. The trial Court on basis of evidence led before it, convicted all five accused persons by judgment and order dated 21/11/2008 and hence this appeal. 4. Learned advocate Mr. Kanani has reiterated his initial argument that there is no evidence against the present appellants except the said dying declaration of Tufansing Gurubachchansing Shikh, the injured assailant, who is not an appellant before this Court. It is not the case of the complainant that he had seen the appellants nor it is the case of any of the witnesses that the appellants were seen by them. There has been no test identification parade. The appellants are convicted only on basis of so called dying declaration of Tufansing Gurubachchansing Shikh treating that dying declaration as an extra judicial confession, involving the appellants because the said dying declaration could not have been read in evidence as a dying declaration under section 32 of the CR.A/2976/2008 5/10 JUDGMENT Evidence Act. 5. Ld. APP Mr. Bhatt has represented the State and opposed the appeal. He submitted that the statement made by co-accused Tufansing Gurubachchansing Shikh was in contemplation of death. He had no reason to tell a falsehood and involvement of the appellants therefore can be said to have been appropriately proved by the prosecution and the trial Court, therefore, justified in convicting the appellants also. The appeal may, therefore, be dismissed. 6. We have given a close scrutiny to the record and proceedings. Ld. APP has also examined record and proceedings and on scrutiny of record and proceedings, we find that except evidence in form of dying declaration exh. 42, there is not an iota of evidence to connect the appellants with the incident. Exh. 42 though recorded as a dying declaration of Tufansing Gurubachchansing Shikh, has to be treated as an extra judicial confession by Tufansing. 6.1. The question, therefore, that arises for our consideration is whether a confessional statement of an accused can bind other co-accused and whether it can be the foundation of conviction. CR.A/2976/2008 6/10 JUDGMENT 7. When the facts are undisputed that the victim or any of his neighbours or even his wife do not claim to have identified the assailants and there is no other evidence to show involvement of the appellants, except exh. 42, the above question would arise. 7.1. By virtue of various judicial pronouncements narrated hereinbelow, the legal proposition that emerges is that extra judicial confession itself even against the maker is a weak piece of evidence. Such extra judicial confession has to be proved to be of a free volition. Further an extra judicial confession by an accused cannot be used against co- accused persons for the reason that when extra judicial confession itself is a weak piece of evidence against the maker, it would still be a weaker piece of evidence against co-accused. Further extra judicial confession cannot be the foundation of conviction as it cannot be treated as substantive piece of evidence. The settled proposition of law as emerging from the judicial pronouncements referred to hereinbelow, is that the Court should try to examine the prosecution case independent of such extra judicial confession and if other evidence is found to be reliable, the Court may not even examine such extra judicial confession. But if the CR.A/2976/2008 7/10 JUDGMENT Court finds that the other evidence cannot be accepted as it stands, the Court should look for some corroboration or support, the Court may take into consideration such extra judicial confession. In the instant case, there is no other evidence to which extra judicial confession exh. 42 may be able to land credence or support or corroboration. Therefore, exh. 42 the extra judicial confession cannot be treated as substantive piece of evidence and to base conviction only on that basis. 8. We may refer to section 30 of the Indian Evidence Act, which provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. Explanation to said section 30 makes it clear that the offence as used in the section includes abetment of, or attempt to commit the offence. In the instant case, we are faced with a similar situation and while deciding the question, we may refer to decision in the case of Kashmira Singh v. State of Madhya Pradesh reported in AIR 1952 S.C. p. 159. The Hon'ble Supreme Court took into consideration the said provision and ultimately CR.A/2976/2008 8/10 JUDGMENT held that confessional statement by a co-accused would not be relevant. The Court held that such evidence is not evidence in the ordinary sense of the term in light of decision in the case of Bhuboni Sahu v. The King, 76 Ind. App. 147, where it is quoted from the said judgment thus : “It does not indeed come within the definition of 'evidence' contained in S. 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused and it cannot be tested by cross-examination.” It was then observed by the Privy Council that the evidence was of a very weak type. 9. Learned advocate Mr. Kanani relied on following decisions : i. AIR 1952 S.C. 159 ii. AIR 2005 S.C. 733. 10. The trial Court was, therefore, not justified in recording conviction of the appellants only on basis of exh. 42 though a dying declaration, by virtue of survival of the maker of it, assumed shape of extra judicial confession. CR.A/2976/2008 9/10 JUDGMENT 11. It is true that it is recorded by the Executive Magistrate and there is no reason to doubt what is recorded by the Executive Magistrate and it has been appropriately proved, but fact remains that that would only prove the execution or making of the statement by the maker of the statement - Tufansing Gurubachchansing Shikh, who is a co-accused and, therefore, there may not be any lapse in procedural aspect, but that cannot be considered as conclusive evidence to show involvement of the appellants, who are co-accused of the maker of the statement. 12. From evidence, it is found that first informant Bhadrasinh Harisinh and witness Yashvantsinh exhs. 43 and 46 respectively are the only witnesses to the incident and they do not ever say that they were able to identify the assailants or that the appellants were the assailants, who were seen and identified by them at the time of incident. 13. There is, of-course, an evidence in form of panchnama drawn showing discovery of weapon by the accused persons at exh. 33, but discovery itself cannot be considered as sufficient evidence to convict the appellants, firstly because it is a case of joint discovery by all appellants CR.A/2976/2008 10/10 JUDGMENT and secondly because such discovery even if accepted, would only reveal the authorship of concealment, but not nexus between the crime and the criminal. 14. The ultimate conclusion is that the trial Court was not justified in recording conviction of the appellants on the basis of exh. 42 and, therefore, that order cannot be sustained. Appeal, therefore, stands allowed. Conviction and sentence of the appellants, original accused nos. 2 to 5, as recorded by the Sessions Court, Bharuch, by judgment and order dared 21/11/2008 in Sessions Case No. 88 of 2007, is hereby set aside. The appellants be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to the appellants. ( A. L. DAVE, J.) ( J .C. UPADHYAYA, J. ) *Pansala.