IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1034 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES 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 Civil Judge? : NO -------------------------------------------------------------- RAJESH J PANCHAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR VH DESAI for Petitioner MR BD DESAI, APP for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE SHARAD D.DAVE Date of decision: 19/04/2001 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) In this appeal, which is filed under section 374 of the Code of Criminal Procedure, 1973, the appellant has challenged legality of judgment dated August 20, 1993 rendered by the learned City Sessions Judge, Ahmedabad in Sessions Case No. 75/93 by which he is convicted of the offence punishable under section 302 of the Indian Penal Code and sentenced to suffer R.I. for life. 2. The appellant was staying in Block No.D/15/117 of Nandanvan Apartments situated in Nava Vadaj, Ahmedabad with his father Jayendrakumar @ Maheshbhai K.Panchal, his mother Jashodaben and his brother Jignesh. The prosecution has claimed that the father of the appellant had extra-marital relations with one Nayanaben residing at Maninagar and because of these illicit relations, a daughter named Riddhi was born to Nayanaben on February 23, 1990. According to the prosecution, Nayanaben often used to come to Block No.D/15/117 and assert that she was lawfully wedded wife of Jayendrakumar. As per the case of the prosecution, the family members of Jayendrakumar including the appellant did not approve relations of Jayendrakumar with Nayanaben, which led to frequent quarrels and according to the prosecution, Jayendrakumar used to beat his wife and two sons. The prosecution has alleged that about two months before December 1, 1992, Nayanaben had left her daughter Riddhi at Block No.D/15/117 of Nandanvan Apartments, as she was attending a typing class and there was none to attend minor Riddhi. The prosecution has averred that on November 30, 1992 at about 9.45 P.M. the appellant and his mother asked the father of the appellant to take Riddhi to Maninagar where Nayanaben was residing, but father of the appellant firmly told the appellant and his mother that Riddhi would stay at Nandanvan Apartments only and beat them. It may be stated that the appellant was serving while prosecuting his studies in the college. According to the prosecution, on the date of incident i.e. December 1, 1992, again the appellant pleaded with his father to remove Riddhi from Nandanvan apartments, but the father did not budge and quarrelled with him. As per prosecution, because of quarrel, the appellant went out, but did not attend either service or college and came back to his house at about 12.00 noon and went to bed after taking meals. What is alleged by the prosecution is that in the evening at about 5.00 P.M., Jashodaben i.e. mother of the appellant had gone out to purchase vegetables; whereas Jignesh, who was younger brother of the appellant, was playing in the compound of apartment and father of the appellant was not at the house and thus, the appellant was all alone with Riddhi at the house. The prosecution has claimed that the appellant was very much agitated because his father had kept a concubine, who had given birth to Riddhi and Nayanaben i.e. concubine was asking the appellant and his mother to find out their own way and therefore, at about 5.45 P.M. the appellant strangulated Riddhi to death and left the house. As per the case of the prosecution, when he came near Octroi Post of Nava Vadaj, he thought that he would be arrested by the police because arms of law are long and therefore, he went to Naranpura Police Station, Ahmedabad city and lodged First Information Report which was reduced into writing by Police Inspector Mr. Govindbhai Hirabhai Patel. After registration of F.I.R., investigation into the case was made by the Police Inspector and inquest on the dead body of the deceased was held. The dead body of the deceased was thereafter sent to Civil Hospital, Ahmedabad for autopsy where autopsy on the dead body was performed by Dr. Nayankumar Natvarlal Parikh. The investigating officer thereafter recorded statements of witnesses supposed to be acquainted with the facts and circumstances of the case. At the conclusion of the investigation, the respondent was chargesheeted of the offence punishable under section 302 of I.P.C. As the offence punishable under section 302 of I.P.C. is exclusively triable by Court of Sessions, the case was committed to the Court of learned City Sessions Judge, Ahmedabad for trial, where it was numbered as Sessions Case No. 75/93. 3. Charge for the offence punishable under section 302 I.P.C. was framed by the learned City Sessions Judge at Exh.4, which was read over and explained to the appellant. The appellant did not plead guilty to the charge and claimed to be tried. Therefore, in all six witnesses were examined by the prosecution to prove its case against the appellant. They were (i) Nayanaben J. Panchal as P.W.1 at Exh.8, (ii) Jashodaben J. Panchal as P.W.2 at Exh.9, (iii) Jignesh J. Panchal as P.W.3 at Exh.10, (iv) Lalitkumar Bhikhubhai Vora as P.W.4 at Exh.13, (v) Dr. Nayankumar N. Parikh as P.W.5 at Exh.14, and (vi) Police Inspector Mr. Govindbhai H. Patel as P.W.6 at Exh.16. Documentary evidence in the form of panchnama of place of occurrence, inquest report, postmortem notes prepared by Dr. Parikh, complaint filed by the appellant etc. was also produced by the prosecution to prove its case against the appellant. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the appellant the circumstances appearing in the evidence against him and recorded his statement under section 313 of the Code of Criminal Procedure. In his further statement which was recorded under section 313 of the code, the appellant denied the case of the prosecution. Though the appellant did not examine any witness in his defence, he submitted his written statement and claimed that at the time of incident, he was not present at his house and that he was innocent. 4. On appreciation of evidence adduced by the prosecution, learned City Sessions Judge held that it was proved by the prosecution that child Riddhi died a homicidal death on December 1, 1992 around 5.45 P.M. to 6.00 P.M. in Flat no.15 of Nandanvan Apartments situated near Nava Vadaj, Ahmedabad, which is residential house of the appellant. The learned Judge extensively referred to the evidence of prosecution witnesses and concluded that it was proved by the prosecution that the appellant and deceased Riddhi were the only persons present in Flat no.15 at 5.45 P.M. on December 1, 1992. The learned Judge further deduced that the prosecution was successful in proving that the appellant had at about 5.45 P.M. on December 1, 1992 committed murder of Riddhi by strangulating her. In view of the above-referred to conclusions, the learned Judge has convicted the appellant under section 302 I.P.C. and sentenced him to R.I. for life by judgment dated August 20, 1993, giving rise to present appeal. 5. Ms. Madhuben Sharma, learned counsel for the appellant after taking us through the entire evidence on record, submitted that as the prosecution has failed to establish the motive for commission of crime, the learned Judge was not justified in convicting the appellant of the offence punishable under section 302 I.P.C. According to the learned counsel, evidence on record does not establish beyond reasonable doubt that the appellant and deceased Riddhi were the only persons present in Flat no.15 at 5.45 P.M. on December 1, 1992 and as possibility of stranger having committed crime is not ruled out, atleast benefit of doubt ought to have been given to the appellant. What was stressed was that except the F.I.R. which was lodged by the appellant and which is hit in its entirety by section 25 of the Evidence Act, the prosecution has not lead cogent and reliable evidence to establish that the appellant had committed murder of deceased Riddhi and, therefore, the appeal should be accepted. The learned counsel referred to law on circumstantial evidence and claimed that as the circumstances sought to be relied upon by the prosecution are not established and the chain of evidence furnished by the circumstances which are proved, is not complete, the appellant could not have been convicted under section 302 I.P.C. In the alternative, the learned counsel urged that at the time of commission of crime, the appellant was deprived of power of self-control because of nasty behaviour of his father as well as Nayanaben and as the murder was committed under grave and sudden provocation, Exception-I to Section 300 I.P.C. would be applicable and the offence committed by the appellant should be held to be one punishable under section 304 Part-I of I.P.C. In support of her submissions, learned counsel placed reliance on the decisions rendered in (1) Rajendrabahadur Singh v. State of M.P., 1990(2) Crimes, 288, (2) Jodha Khoda Rabari v. State of Gujarat, 1992 Criminal Law Reporter (Gujarat) 282, and (3) State of Gujarat v. Ishwarlal K. Shah, 1993(1) GCD 761 (Gujarat). 6. Mr. B.D.Desai, learned A.P.P. after referring to the evidence of prosecution witnesses and more particularly, evidence of witness Jignesh Jayendrakumar, asserted that it was proved by the prosecution beyond reasonable doubt that the appellant and deceased Riddhi were the only persons present in Flat No.15 at 5.45 P.M. on December 1, 1992. The learned counsel for the State submitted that confessional part of the F.I.R. lodged by the appellant is not admissible in evidence, but non-confessional part of the F.I.R. can be used against the appellant as evidence of conduct under section 8 of the Evidence Act, 1872, which indicates that the appellant had strong motive to commit the crime and that he was with deceased Riddhi in the Flat at about 5.45 P.M. on December 1, 1992. What was stressed was that the appellant had committed murder of deceased Riddhi, a child aged 3 years because he was nurturing a grudge against his father and Nayanaben and the circumstantial evidence on which the prosecution proposed to rely having been established and the chain of evidence being complete, the learned Judge did not commit any error in convicting the appellant under section 302 I.P.C. In answer to the alternative plea raised by the learned counsel for the appellant that the case would fall under Part-I of Section 304 I.P.C., the learned counsel for the State contended that no provocation worth the name was offered by the deceased to the appellant at all and, therefore, the case would fall within the ambit of section 302 I.P.C. and not within the ambit of Part-I of Section 304 I.P.C. 7. We have taken into consideration the submissions advanced at the Bar and reappreciated the evidence on record. The fact that deceased Riddhi, a child aged 3 years, died a homicidal death is not in dispute and is proved beyond reasonable doubt by the evidence of Dr. Nayankumar N. Parikh, who had performed autopsy on dead body of Riddhi as well as by the contents of postmortem notes. The evidence of Dr. Parikh indicates that death of deceased Riddhi took place due to asphyxia resulting from strangulation. His evidence would further indicate that ligature mark was present on the neck. The injuries on the deceased are also noticed in the inquest report which was admitted in evidence by the learned City Sessions Judge with the consent of the parties. Thus, the finding that deceased Riddhi died a homicidal death being just and having been borne out from the evidence on record, is hereby upheld. 8. It is relevant to notice that the prosecution has not claimed that the incident in question was witnessed by any one and no direct evidence regarding the incident is tendered before the Court. Admittedly, the whole case against the appellant rests on circumstantial evidence. The law relating to circumstantial evidence is well settled. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis, but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, Court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is, or, are, not decisive. Where a case rests squarely on circumstantial evidence, the various sets of circumstantial evidence should be taken into consideration and their total effect should be such that they must lead unerringly to the guilt of the accused. Each fact must be proved individually and only thereafter the sum total of the proved facts has to be taken into consideration, but this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must prove each and every hypothesis suggested by the accused, however, extravagant and fanciful it might be. In Sharad v. State of Maharashtra, AIR 1984 SC 1622, after referring to earlier case-laws, the Supreme Court has summarised the conditions to be fulfilled in a case based on circumstantial evidence as under :- (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused; and (vi) where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. If the aforesaid various conditions are fulfilled,only then a Court can use a false explanation or a false defence as an additional link and not otherwise. As observed earlier, if the circumstances proved are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. However, in applying this principle, distinction must be made between facts, called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way. It has to consider the evidence and decide whether that evidence proves a particular fact or not and if that fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not and in dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should be no missing links in the case, yet it is not essential that every one of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences or presumptions, the Court must have regard to the common course of natural events, to human conduct and their relations to the facts of the particular case. 9. In the light of the above-referred to principles, we will now consider the question whether the case against the appellant is proved or not. Mr. B.D.Desai, learned counsel for the State Government submitted that portion of statement relating to previous history made by the appellant in the First Information Report lodged by him should be taken into consideration while deciding the present appeal. What was emphasized by the learned counsel for the prosecution was that the relationship of the appellant with the deceased or motive for commission of crime etc. stated by the appellant in his F.I.R. do not amount to the confession of committing any crime and as those statements are non-confessional in nature, they can be used against the appellant under section 8 of the Evidence Act. Ms. Madhuben Sharma, learned counsel for the appellant on the other hand contended that the First Information Report lodged by the appellant is confessional in nature and as proof of confession is prohibited by section 25 of the Evidence Act, no part of confessional statement should be received in evidence, except to the extent it is permitted by section 27 of the Evidence Act. We have considered this aspect of the matter and we are of the opinion that the First Information Report lodged by the appellant being confessional in nature, cannot be used against the appellant. It frequently happens that persons after committing an offence proceed to the Police Station and report there the matter to the officers concerned, who take down such statements as the first information under section 154 of the Code of Criminal Procedure, 1973. By reason of the provisions contained in section 25 of the Evidence Act, such statements are inadmissible in evidence, if they are in the nature of confessions. The test of severability, namely, that if the part of report by the accused is properly severable from the strict confessional part, then the severable part could be tendered in evidence, in our view, is misleading and that the entire confessional statement is hit by section 25 of the Evidence Act and save and except as provided by section 27 of that Act and save and except the formal part identifying the accused as the maker of the report, no part of it can be tendered in evidence. The learned City Sessions Judge has dealt with this point in para-16 of the impugned judgment and save and except formal part identifying the accused as the maker of the report, has not admitted in evidence other part of the F.I.R. In our view, this is quite consistent with the law propounded on the subject by the Supreme Court and agreeing with the view taken by the learned City Sessions Judge, we hold that the First Information Report lodged by the appellant being confessional in nature, cannot be used against him. 10. The first circumstance which is sought to be proved by the prosecution against the appellant is that at the time of incident, the family of the appellant consisted of himself, his father Jayendrakumar, mother Jashodaben and younger brother Jignesh. Witness Nayanaben J. Panchal, P.W.1, Exh.8 in her evidence before the Court has stated that Jayendrabhai Panchal, who is father of the appellant, was residing with his wife Jashodaben and two sons named Rajesh i.e. the appellant and Jignesh on 3rd floor of Nandanvan Apartments situated near Bhavsar Hostel. This statement made by Nayanaben is not challenged by the appellant in her cross-examination. Again, witness Jashodaben, P.W.2 Exh.9 has claimed in her evidence that she was staying at 3rd Floor of Nandanvan Apartments with her husband Jayendrabhai and two sons. She has also claimed that witness Nayanaben was also staying with her, but, Nayanaben has stated in her evidence that she was staying in Adhyashakti Flats situated at Maninagar with Jayendrabhai Panchal and, therefore, the claim made by Jashodaben that Nayanaben was also staying with her at Nandanvan Apartments, does not inspire confidence of the Court. Again, witness Jignesh J. Panchal, P.W.3 Exh.10 in his testimony before Court has stated that he was staying at Nandanvan Apartments with his mother Jashodaben, father Jayendrabhai and brother Rajesh i.e. the appellant. This assertion made by witness Jignesh is not challenged on behalf of the appellant during his cross-examination. In his statement under section 313 of the Code of Criminal Procedure, the appellant has admitted that he was staying in Flat no.15 of Nandanvan Apartments with his father Jayendrabhai, mother Jashodaben and younger brother Jignesh at the time of incident. On appreciation of evidence of prosecution witnesses, we are satisfied that the fact that at the time of incident, the family of the appellant consisted of himself, his parents as well as his brother Jignesh and all were staying in Flat No.15 of Nandanvan Apartments situated near Bhavsar Hostel, is proved beyond reasonable doubt. 11. The second circumstance, which is sought to be proved by the prosecution against the appellant, is that his father Jayendrabhai had illicit relations with Nayanaben and Nayanaben had given birth to an illegitimate child named Riddhi. Witness Nayanaben J. Panchal, P.W.1, Exh.8 has claimed in her evidence that she was staying with Jayendrabhai K. Panchal as his wife since 1987 in Adhyashakti Flats situated at Maninagar and during the subsistence of her marriage with Jayendrabhai, she had given birth to a child girl named Riddhi in the year 1991. However, in para-2 of her deposition, witness Nayanaben has clearly stated that name of first wife of Jayendrabhai Panchal was Jashodaben and Jayendrabhai panchal had two sons through Jashodaben. The witness has also informed the Court that the first wife of Jayendrabhai i.e. Jashodaben was staying on the 3rd Floor of Nandanvan Apartments situated near Bhavsar Hostel with her two sons. The evidence of this witness would indicate that Jashodaben was lawfully wedded wife of Jayendrabhai. The record of the case does not indicate that Jayendrabhai Panchal had divorced Jashodaben and married witness Nayanaben. Witness Jashodaben P.W.2 Exh.9 has stated in her evidence that Nayanaben was staying with her in Flat No.15 of Nandanvan Apartments as her sister and she had no child at all. However, as she had not supported the prosecution case, the learned Additional Public Prosecutor had sought permission from the Court to treat her hostile to the prosecution and after obtaining permission, she was cross-examined by the learned A.P.P. In her cross-examination by learned A.P.P. witness Jashodaben has admitted that her husband Jayendrabhai had kept Nayanaben with him as his second wife and that Nayanaben had given birth to a daughter named Riddhi. She has also admitted that Nayanaben was residing in Maninagar area, but was visiting Nandanvan Apartments off and on. Further the appellant in his statement recorded under section 313 of the Code of Criminal Procedure has admitted that his father Jayendrabhai had extra-marital relations with Nayanaben and because of those illicit relations, baby girl named Riddhi was born. On overall appreciation of evidence on record,we are of the opinion that the prosecution is successful in establishing the fact that Jayendrabhai, who is father of the appellant, had illicit relations with Nayanaben and Nayanaben had given birth to