CR.A/1185/1993 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1185 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= BALVANTSINH HAUBHA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR YOGESH S LAKHANI for Appellant(s) : 1, MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 01/04/2008 ORAL JUDGMENT 1. The appellant original accused, by impugned judgement and order dated 30.9.1993 passed by learned Additional Sessions Judge, Surendranagar in Sessions Case No.86/1992 was convicted for CR.A/1185/1993 2/19 JUDGMENT offence punishable under Section 304 Part-II of the Indian Penal Code and sentenced to five years of rigorous imprisonment. 2. As per charge exh.3 framed against the appellant, it was alleged that on 29.7.1992 at about 4 O' clock in the afternoon, with intention to commit murder of his wife Jaishreeba, appellant gave Dhariya blows to her on the head and caused her death. He was therefore, charged with offence punishable under Section 302 of the Indian Penal Code. 3. It may be noted that in the present case, the FIR was lodged by the appellant himself. On 30.7.1992, the appellant himself approached the Muli police station at 4:00 am and disclosed that he is residing at Kukda village of Muli Taluka with his wife Jaishreeba separately from his father since about five years. He had married Jaishreeba about seven years back. They however, have no children. For about four months, he had worked as a cleaner in the Water Works Department of Surendranagar on a tanker where his distant uncle Jayendrasinh was employed as a driver. However, since about one month, he was relieved from his duties and he was doing miscellaneous labour work. He is residing with his wife in a house which is situated near to the house of Jayendrasinh. Jayendrasinh used to frequently visit his house CR.A/1185/1993 3/19 JUDGMENT and though he was his uncle, he was younger to him. Since few days, he had suspected that his wife was having illicit relations with Jayendrasinh. On 27.7.1992, he and his wife were sleeping at night. Late at night when he got up, he did not find his wife by his side. In the light of the lantern, he could see his wife and Jayendrasinh in compromising position near his cot. He had therefore, admonished both of them. Jayendrasinh had left the house. Next day, he had met Jayendrasinh in the market and objected to his relations with his wife. Once again on 28.7.1992 at night when he was sleeping on the cot and his wife was sleeping on the floor near the cot, he woke up from the sleep and again found his wife and Jayendrasinh in the compromising position. He could not sleep thereafter. Next day, he had gone out to the market and came back. He was brooding about the incident. His wife was sleeping on the cot. He suddenly lost control and at about 4 O' Clock, he took a Dhariya which was lying in the house and gave two blows to his wife on the head. She could not scream or shout. He thought that she had died. He left the house leaving the door ajar and afraid of Jayendrasinh, he had tried to reach Muli police station for reporting. However, since there was water filled on the road, he lost his way and reached the police station late. He stated that dead body of his wife and the Dhariya used for commission of the CR.A/1185/1993 4/19 JUDGMENT offence are both lying in his house. 4. To what extent the above statement made by the accused to the police can be used, was a matter of considerable debate. I would advert to this issue at a later stage. 5. Dr. Harshadkumar Tapubha Jhala-PW1 was examined at exh.5. He had carried out the postmortem of the body of the deceased Jaishreeba. He had found that on the right hand side of the head on parital bone, 3 inches over the ear, there was one contuse wound of 15cm x 1cm which was bone deep. Upon internal examination, he found that there was blood clotting in the brain in the cavity of right parital lobe which was of size of 3cm x 1cm x ½ cm. He connected this internal injury with external injury noted above. He opined that this injury was ante-mortem and was responsible for death of the deceased. He opined that injury was sufficient in ordinary course of nature to cause death. He stated that the same could have been caused with the help of a hard blunt substance. He estimated death to have taken place 12 to 20 hours before the postmortem which he had begun at 9 O' Clock in the morning on 30.7.1992. 5.1 In the cross examination, he stated that the injury could not have been caused by the use of sharp side of a weapon. CR.A/1185/1993 5/19 JUDGMENT 6. Jayendrasinh Jivubha-PW2 was examined at exh.8. In his deposition, he stated that he knew the accused as well as his wife Jaishreeba. The appellant accused was employed as a cleaner where Jayendrasinh was working as driver of the tanker of Water Work Department. His house is at a distance of about 500 ft. from that of the appellant. He used to freely talk to the wife of the appellant. About five days before the incident, Jaishreeba and the appellant had quarreled in his presence about purchasing a cupboard. He had pacified both of them. Jaishreeba had told his wife that she is afraid of being beaten up by the appellant. Thereupon at the request of Jaishreeba, his wife used to sleep outside the house of Jaishreeba. On 29.7.1992, he returned to Kukda village at about 8:30 after finishing his work. His wife thereupon told him that she ha gone to the house of Jaishreeba who was sleeping in the room but was not responding. He, his wife and mother therefore, went to the house of the appellant and upon putting light on in the room, they found that Jaishreeba was sleeping on the bed. She was bleeding from the head and near the cot one Dhariya was lying on which also there were bloodstains. Afraid of being involved in police case, three of them left the house and did not inform anyone. Ladies of the house had gone to inform his uncle in the village but found the CR.A/1185/1993 6/19 JUDGMENT house locked. He thereupon took a taxi and went to Bokrana village where Jaishreeba's sister and her husband lived. He reached Bokrana at 12 O' Clock at night and informed Raghubha, Jaishreeba's sister's husband. Raghubha and cousin brother of the appellant Nirubha came to Kukda village at 4 O' clock in the morning at which time police had already arrived. 6.1 In the cross examination, he denied the suggestion of the defence and stated that he had never gone to Jaishreeba's house to sleep alone. He denied that he had lived in the house of Jaishreeba and slept there from 24.7.1992 to 29.7.1992. He admitted that in the police statement he had not narrated about the quarrel between the appellant and Jaishreeba about purchasing of a cupboard in his presence. He denied the suggestion that there was a quarrel between himself and his wife because of his frequent visits to the house of Jaishreeba. He also denied that quarrel had taken place between his wife and Jaishreeba or that because of such quarrel, he had enmity with Jaishreeba. 7. Mother of Jayendrasinh, Sajjanbhai Amthubha -PW3 was examined at exh.9. She stated that right adjacent to the house where she lived with her son Jayendrasinh and his wife, house of the appellant was situated where he was staying with his wife. On the date of incident, her daughter- CR.A/1185/1993 7/19 JUDGMENT in-law had gone to get Khichdi from the house of Jaishreeba at 8 O' Clock in the evening. After returning, she stated that no one was opening the door. She had therefore, gone to the house of Jaishreeba with Jayendrasinh and his wife. Upon entering the house, they saw that Jaishreeba was lying on the cot and was bleeding from head. Finding that Jaishreeba had died, they returned home. 7.1 In the cross examination, she stated that one TV belonging to her was lying at Jaishreeba's house since four days. But they had brought TV back on finding that Jaishreeba had died. She denied the suggestion that TV was installed in the house of Jaishreeba so that Jayendrasinh can on the pretext of watching TV, visit her house. She denied that Jayendrasinh used to spend nights in house of Jaishreeba due to which between Jayendrasinh and his wife, there was discord. 8. Raghuvirsinh Arjunsinh-PW7(exh.25) was the husband of Jaishreeba's sister. He stated that on the date of incident at 11:30 at night, Jayendrasinh had come to his house at Bokrana in a taxi and informed him about finding Jaishreeba bleeding in her house. They therefore, came to Kukda village and reached there at about 4 O' clock in the morning. By that time police had already arrived. He stated CR.A/1185/1993 8/19 JUDGMENT that even after seven years of married life, appellant and his wife had no children, on account of which there was tension and quarrels between them. 9. The police had collected the dead body by drawing panchnama. The Dhariya allegedly used for commission of the offence was also seized under panchnama. Though witness Pravinchandra Sarjudas-PW5(exh.17) who was panch in the discovery panchnama turned hostile, panchnama was proved through evidence of the IO. 10.Through the evidence of Bhikbahadur Budhesinh Bhedi-PW9(exh.27), PSI Muli police station at the relevant time, the complaint lodged by the appellant was produced. This witness narrated the manner in which the investigation was carried out. 11.On the basis of above evidence, prosecution sought to prove the charge against the appellant. 12.Before assessing the evidence, it may be recalled that the complaint was lodged by the appellant original accused himself. As noted earlier, in the complaint he disclosed the reasons for his actions and the manner in which the incident took place. He also stated that the dead body of his wife as well as Dhariya, the CR.A/1185/1993 9/19 JUDGMENT weapon used for commission of the offence were lying in the house. 13.Under Section 25 of the Indian Evidence Act, no confession made to a police officer can be proved as against a person accused of any offfence. Thus confession made to a police officer is not admissible in evidence against the accused who is maker of such a confession. Under Section 26 of the Indian Evidence Act, no confession made by any person while in the custody of a police officer can be proved against him, unless such confession is made in the immediate presence of a Magistrate. Thus under Section 26 of the Indian Evidence Act, confession made to any person even other than a police officer is not admissible in evidence if such a confession is made while the accused is in custody of a police officer, unless it is made in the immediate presence of a Magistrate. Section 27 of the Indian Evidence Act is in nature of an exception to the rules contained in Sections 25 and 26. Section 27 reads as follows : “27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 14.In case of State of Uttar Pradesh v.Deoman CR.A/1185/1993 10/19 JUDGMENT Upadhyaya reported in AIR 1960 Supreme Court 1125, while upholding the Constitutional validity of Section 27 of the Evidence Act, five Judges Bench of the Apex Court held that by combined operation of Section 27 of the Evidence Act and Section 162 of the Code of Criminal procedure, admissibility in evidence against a person in a criminal proceeding of a statement made to a police officer leading to the discovery of a fact depends for its determination on the question whether he was in custody at the time of making the statement. It was further held that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police and may be deemed to be in the custody of police officer within the meaning of Section 27 of the Evidence Act. 14.1 In case of Aghnoo Nagesia v. State of Bihar reported in AIR 1966 Supreme Court 119, the Apex Court held that Section 25 of the Evidence Act is imperative and confession made to a police officer under no circumstances is admissible in evidence against the accused. The Section covers a confession made when he was free and not in police custody as also the one CR.A/1185/1993 11/19 JUDGMENT made before any investigation has begun. The expression “accused of any offence” covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. Section 27 is in the form of proviso. It partially lifts the ban imposed by Sections 24, 25 and 26. 14.2 In case of Bheru Singh s/o Kalyan Singh v. State of Rajasthan reported in (1994) 2 Supreme Court Cases 467, the Apex Court made following observations : “19. From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which according to him he committed the murders. In our opinion the first information report, Ex. P-42, however is not a wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of his sister-in-law PW11 do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that CR.A/1185/1993 12/19 JUDGMENT the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only the other portion of the first information report Ex. P-42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence.” 15.In case of State (N.C.T. Of Delhi) v. Navjot Sandhu reported in AIR 2005 Supreme Court 3820, the Apex Court observed that the expression “discovery of fact” cannot be equated to the object produced or found. It is more than than. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It was further observed that : “The application of the Section is not contingent on the recovery of a physical object. Section 27 embodies the doctrine of Confirmation by subsequent events. The fact investigated and found by the police consequent to the information disclosed by the accused amounts to confirmation of that piece of information. Only that piece of information, which is distinctly supported by confirmation, is rendered relevant and admissible u/S 27. The physical object might have already been recovered, but the investigating agency may not have any clue as to the "state of things" that surrounded that physical object. In such an event, if upon the disclosure made such state of things or facts within his knowledge in relation to a physical object are discovered, then also, it can be said to be discovery of fact within the meaning of Section 27.” CR.A/1185/1993 13/19 JUDGMENT 16.It is pointed out by learned counsel for the appellant that in case of Ravi kumar v. State of Punjab reported in AIR 2005 Supreme Court 1929, the Apex Court reiterated that FIR is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 161 of the Indian Evidence Act or to contradict him under Section 145 of that Act. It can neither be used as evidence against the maker at the trial if he himself becomes an accused nor to corroborate or contradict other witnesses. 17.Bearing in mind above provisions contained in Sections 25, 26 and 27 of the Evidence Act, as interpreted by the Apex Court in the judgements noted above, it can be seen that to the extent that the statement made by the appellant before the police with respect to presence of dead body and Dhariya used in commission of the offence in the house of the appellant, such statement would be admissible and relevant. As noted, the information given by the appellant in this respect led to discovery of the dead body and the weapon used. In terms of provisions contained in Section 27 of the Evidence Act, therefore, to this limited extent, the statement of the appellant can be referred to. Remaining part of the disclosures being purely confessional in nature and having been made to police officer would be hit by bar of Section 25 CR.A/1185/1993 14/19 JUDGMENT of the Evidence Act. 18.With this background in mind, one may recall that this is a case of purely circumstantial evidence and there were no eyewitness to the incident in question. In case of Liyakat v. State of Uttaranchal reported in 2008 AIR SCW 1678, the Supreme Court observed as follows : “13. Before analysing the factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or facatum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. 19.Law on case depending on circumstantial evidence has been stated by the Apex Court in case of Padala Veera Reddy v. State of A.P. In following terms : “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no CR.A/1185/1993 15/19 JUDGMENT escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” In case of Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 Supreme Court Cases 681, the Apex Court observed that : “In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete....” It was further observed that : “Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime....” 20.If at this stage one were to revert to evidence led by the prosecution, it emerges that deceased Jaishreeba was found dead in her house in the CR.A/1185/1993 16/19 JUDGMENT night of 29th/30th of July 1992. The appellant and Jaishreeba were the only two occupants of the house. They were living separately from other family members and had no children. 21.By all accounts relations between the appellant and Jaishreeba were strained. Jayendrasinh-PW2 referred to the friction between the husband and wife in his deposition. He had referred to some recent quarrel about purchase of cupboard. However, defence version itself as suggested to this witness was that because of intimacy between Jayendrasinh and Jaishreeba, there was tension between Jayendrasinh and his wife. In- fact it was also suggested to this witness that Jayendrasinh used to frequently visit the house of Jaishreeba which was not liked by his wife and that therefore, there was a quarrel between Jayendrasinh and his wife. To witness Sajjanben- PW3 also the suggestion of the defence was that her TV was installed in the house of Jaishreeba so that Jayendrasinh under the pretext of watching TV can go to Jaishreeba's house. It was also suggested that Jayendrasinh used to sleep at Jaishreeba's house. 22.It thus remains established on record that the appellant had reason to doubt his wife's relations with Jayendrasinh and that the two had strained relations on this account. Appellant thus had strong motive to kill his wife. CR.A/1185/1993 17/19 JUDGMENT Witnesses have also stated that deceased feared for safety at the hands of her husband. Additionally, Raghuvirsinh-PW7 also stated that since even seven years after the marriage there were no children in the family, between the appellant and his wife there were quarrels. Additionally one also finds that dead body was found from the house of the appellant. Dhariya which was used for commission of the offence was also found lying right net to the dead body. Dead body and Dhariya were discovered at the instance of the appellant by the police pursuant to the statement that he made before the police. Movements of the appellant from