IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1028 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO 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 -------------------------------------------------------------- ASHVINKUMAR GUNVANTLAL JOSHI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 1028 of 1992 MRS MADHUBEN SHARMA for the appellant MR KG SHETH, APP for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 17/10/2001 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) In this appeal, which is filed under section 374(2) of the Code of Criminal Procedure, 1973, the appellant has assailed the judgment dated August 5,1992 rendered by the learned Additional Sessions Judge, Sabarkantha at Himatnagar, in Sessions Case No.39/91, by which he is convicted of the offences punishable under section 302 as well as section 498-A of the Indian Penal Code and punished with rigorous imprisonment for life for the offence punishable under section 302 I.P.C. and rigorous imprisonment for one year for the offence punishable under section 498-A I.P.C. We may state that both the sentences are ordered to run concurrently. 2. The name of the complainant in this case is Harshaben Pushpavadan Jani. The incident in question took place on January 10, 1991 between 8.30 A.M. and 16.00 hours at the residence of the appellant. The parents of Harshaben were residing at Khedbrahma where her marriage had taken place with the appellant 14 years before the date of the incident. The appellant is a resident of village Radhivad, Taluka : Khedbrahma, District : Sabarkantha. After the marriage, complainant Harshaben was residing with the appellant at village Radhivad. At the time of her marriage, the complainant had passed S.S.C. Examination and after marriage, she had undergone nursing course. On completion of nursing course, she was appointed as Health Visitor at village Paroya of Khedbrahma Taluka and was commutting between village Radhivad and village Paroya for the purpose of service. During the subsistence of the marriage, Harshaben had given birth to three children. The eldest was a baby boy, who had expired on the next day of his birth. After a period of two years, she had given birth to a girl child named Soniya and thereafter in the third year,she had given birth to another girl child who was named Roopa. The appellant had suspicion that his wife Harshaben was having illicit relations with one muslim of village Paroya and on the suspicion that he was not the father of any of the children, he was subjecting complainant Harshaben to physical and mental cruelty. The appellant was not only beating his wife cruelly, but also his minor daughter. The extent of cruelty meted out by the appellant to his wife was such that she was compelled to leave her daughter Soniya in the custoy and care of her mother who was residing at Khedbrahma town. However, the appellant had continued to entertain suspicion that he was not the father of minor daughter Roopa who was then aged only 9 months. When the complainant had gone to her maternal home, the appellant had addressed several letters to her and described her as a whore and a prostitute. The appellant was ostensibly not doing any work for the purpose of maintaining his family and was depending upon the salary of his wife who was serving as a Health Visitor at village Paroya. The appellant had gone wayward and taken to consuming liquor. In order to get money from the complainant, the appellant was beating and ill-treating her. Earlier he had also picked-up quarrel with his wife regarding ornaments which were given to her by her parents at the time of her marriage. Complainant Harshaben was suffering all the tortures meted out to her in the fond hope that one day the appellant would improve and that her marriage life with the appellant would not be ruined. On January 10, 1991, complainant Harshaben had gone to village Paroya for the purpose of performing duties. It may be stated that the distance between village Radhivad and village Paroya is approximately 10 KMs. and the complainant was commutting between village Radhivad and village Paroya in a bus. Before going to village Paroya for the purpose of performing duties, complainant Harshaben had left minor daughter Roopa in the care of one neighbour named Sajanba. The cousin of the complainant is residing at village Radhivad and he had come to village Paroya and informed the complainant that her daughter had taken ill and, therefore, she should immediately come to village Radhivd. On receiving information from her cousin, complainant Harshaben had hired a rickshaw and reached village Radhivad. When she reached her house, she found that her daughter Roopa was made to lie on a wooden seat and had expired. She also found that the dead body of her minor daughter was covered with a cloth and that at that time her mother-in-law, the appellant, her brother-in-law and neighbour Bhikhabhai as well as others were there. After learning that her daughter had expired, she had made inquires with the appellant as to how the daughter had died and thereupon the appellant had replied that the deceased was daughter of another person and, therefore, he had killed her. The complainant had further made inquiry with Sajanba in whose care and custody she had left minor daughter Roopa while going to village Paroya for the purpose of performing her duties, as to what had happened and Sajanba informed her that the appellant had taken away minor Roopa from her and that Roopa was screaming, but the appellant had closed the doors from inside and thereafter the minor was found dead. The complainant had also noticed that neck of deceased Roopa had bent sidewardly and that there were abrasions on her neck. The complainant had asked her cousin Abhaybhai to call her mother. Thereafter she had gone to Khedbrahma Police Station and lodged complaint against the appellant for the murder of her minor daughter, which was registerd by Mr. R.D.Marathe, who was then Police Sub Inspector of Khedbrahma Police Station. The Investigating Officer had visited the place of incident and prepared panchnama of place of occurrence in presence of independent witnesses. He had held inquest on the dead body of deceased Roopa and had made arrangements for the purpose of sending the dead body of deceased Roopa for postmortem examination. The investigating officer had recorded the statements of those persons who were found conversant with the facts of the case and taken into custody the letters produced by complainant Harshaben which were addressed to her by the appellant. Further the letter bearing writings of the appellant produced by Harishanker Revashanker, who was then Sarpanch of village Radhivad was also obtained by the investigating officer. The admitted writings and the letters produced by complainant Harshaben were sent to hand-writing expert for the purpose of obtaining expert opinion as to whether the letters produced by complainant Harshaben were written by the appellant or not. During the course of investigation, it also transpired that Nitinkumar Gunvantlal Joshi, who is younger brother of the appellant,had abetted the commission of offence by the appellant. After obtaining report from the hand-writing expert and ascertaining the cause of death of the deceased, the appellant and his younger brother were chargesheeted of the offences punishable under sections 302, 498-A read with section 34 of I.P.C. in the Court of learned J.M.F.C. Khedbrahma. As the offence punishable under section 302 I.P.C. is exclusively triable by a Court of Sessions, the case was committed to Sessions Court,Sabarkantha at Himatnagar for trial, where it was numbered as Sessions Case No.39/91. 3. The charge at Exh.3 was framed against the appellant and his younger brother of the offences punishable under sections 302, 498-A read with section 34 I.P.C. The charge was read over and explained to the appellant as well as his younger brother, who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined (1) Harshaben Pushpvadan Jani, PW.1 Exh.14, (2) Jayamalbhai Bhikhabhai,PW.2 Exh.68 (3) Harisinh Tejsinh Vaghela, PW.3 Exh.69, (4) Bhikhabhai Mohanlal Valand,PW.4 Exh.70, (5) Babubhai Jamiyatram Trivedi, PW.5 Exh.73, (6) Dr. Ravikant Chunilal Jethva, PW.6 Exh.74, (7) Abhaybhai Bhogilal Upadyaya, PW.7 Exh.80, (8) Sajanba Kishorsinh, PW.8 Exh.81, (9) Kesharba Mankamsinh,PW.9 Exh.82, (10) Harishanker Revashanker Upadyaya, PW.10 Exh.83, (11) Amarsinh Navalsinh Chauhan, PW.11 Exh.85, (12) Sushilaben Ambalal, PW.12 Exh.87, (13) Mohmadbhai Usmanbhai,Pw.13 Exh.88, (14) Lavjibhai Punjabhai Patel, PW.14 Exh.91, (15) Hand writing expert Umakant Vallabhram,PW.15 Exh.93, (16) Kartikbhai Pushpvadan Jani, PW.16 Exh.101, (17) Rajghar Dolatrao Marathe, PW.17 Exh.103, and (18) Ranjitsinh Pratapsinh, PW.18 Exh.104, to prove its case against the appellant and his brother. The prosecution also produced documentary evidence, such as arrest panchnama of the appellant at exh.11, the complaint lodged by Harshaben at exh.15, reply given by Harshaben to the notice of the appellant at exh.62, letters addressed by the appellant to his wife at exhs. 16, 17, 18 & 19, inquest panchnama at exh.71,panchnama of place of occurrence at exh.72, postmortem notes of the deceased at exh.76, letter containing hand writings of the appellant and produced by witness Harishanker at exh.84, panchnama regarding specimen signature of the appellant at exh.90, report of hand writing expert at exh.98 etc. in support of its case against the appellant and his younger brother. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the appellant and his brother the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by section 313 of the Code of Criminal Procedure,1973. In their further statements, the appellant and his brother denied the case of the prosecution, but did not examine any witness in support of their defence. 4. The learned Sessions Judge noticed that no direct evidence was tendered by the prosecution to prove case against the appellant and his brother and that the whole case of the prosecution was based on circumstantial evidence. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that minor Roopa had died a homicidal death and that her death was not accidential as was suggested by the defence. The learned Judge considered the evidence of complainant Harshaben Jani, witness Jaymalbhai Bhikhabhai, PW.2 Exh.68, witness Harisinh Tejsinh Vaghela, PW.3 Exh.69, witness Babubhai Jamiyatram Trivedi, PW.5 Exh.73, witness Abhaybhai Upadyaya PW.7 Exh.80, witness Harishanker Upadyaya PW.10 Exh.83 and witness Amarsinh Navalsinh Chauhan,PW.11 Exh.85, and found that their evidence was cogent, consistent as well as reliable. After placing reliance on the sworn testimonies of the above-referred to witnesses,the learned Judge held that it was proved by the prosecution that right from the beginning the appellant had entertained a doubt that he was not the father of any of the three children and that complainant Harshaben was a woman of easy virtue. The learned Judge deduced that it was proved by the prosecution that because of suspicion regarding character of his wife, the appellant had subjected his wife Harshaben to physical and mental cruelty. What was held by the learned Judge was that as the appellant had firm conviction that he was not the father of minor daughter Roopa, he had strong motive to commit her murder. The learned Judge noticed that at the time when witness Abhaybhai, who is cousin of complainant Harshaben, had gone to the house of the appellant, the appellant was found all alone in the room with the dead body of the deceased and that the appellant had all opportunity to commit murder of the deceased. According to the learned Judge, it was proved by the prosecution through the evidence of hand-writing expert that the appellant had addressed 5 letters produced at Exhs. 16 to 20 to the complainant, wherein he had described the complainant as a whore and a prostitute and that sworn testimony of complainant Harshaben was corroborated in material particulars by the other evidence on record. The learned Judge thereafter considered the cumulative effect of the circumstances proved against the appellant and held that in all probability, the act of murder of deceased Roopa was committed by the appellant and the appellant alone. The learned Judge found that no reliable evidence was led by the prosecution to establish that younger brother of the appellant had either instigated the appellant to commit the crime in question or abetted him in committing murder of the deceased and, therefore, he was entitled to a reasonable benefit of doubt. In view of the above referred to conclusions, the learned Judge has acquitted the younger brother of the appellant, but convicted the appellant of the offences punishable under section 302 as well as section 498-A of the Indian Penal Code and imposed sentence which is referred to earlier, by judgment dated August 5, 1992, which has given rise to the present appeal. 5. Ms. Madhuben Sharma, learned counsel for the appellant after taking use through the entire evidence on record, pleaded that the circumstances sought to be relied upon by the prosecution are not fully established and, therefore, a reasonable benefit of doubt deserves to be granted to the appellant. According to the learned counsel for the appellant,the prosecution has failed to establish the motive for commission of crime which is one of the most important ingredients in a case based on circumstantial evidence and, therefore, the judgment impugned should be reversed. The learned counsel for the appellant extensively referred to the sworn testimony of the complainant Harshaben and submitted that the appellant was a man of means and as he had extensive agricultural lands wherein wheat and other crops were being grown, the prosecution case that the appellant was depending upon the income of his wife and was ill-treating her for getting money from her, should have been disbelieved by the learned Judge. The learned counsel referred to the evidence of witness Sajanba Kishorsinh as well as that of Kesharba Mankamsinh and pleaded that it was not proved by the prosecution that on the date of the incident, complainant Harshaben had left her minor daughter Roopa to the care and custody of Sajanba, nor it was proved by the prosecution that the appellant had taken custody of minor Roopa from Sajanba and as vital circumstance is not proved by the prosecution, the case of the prosecution against the appellant should not have been accepted by the learned Judge. What was emphasised was that the circumstances proved by the prosecution are consistent with the innocence of the appellant and even if cummulative effect of the circumstances proved is taken into consideration, the charge of murder of deceased Roopa does not stand established against the appellant and, therefore, the appeal should be allowed. Lastly, it was contended that no independent charge under section 302 I.P.C. has been framed by the learned Judge against the appellant and therefore, conviction of the appellant is liable to be set aside. 6. Mr. K.G.Sheth, learned A.P.P. submitted that the evidence of prosecution witnesses proves beyond reasonable doubt that right from the beginning, the appellant had strong suspicion that he was not the father of any of the children begotten by Harshaben and had in fact suggested her to go for abortion when she had conceived the deceased, which in turn proves that the appellant had strong motive to commit murder of minor Roopa. The learned counsel for the respondent further pleaded that the appellant had not only gone wayward, but had developed bad habit of consuming liquor and for the purpose of getting money from his wife, he was subjecting her to mental as well as physical cruelty, which stands amply proved by the evidence of prosecution witnesses. The learned counsel for the State extensively read out the letters addressed by the appellant to his wife i.e. complainant Harshaben and urged that as the substantive evidence of Harshaben stands corroborated in material particulars by other evidence on record, no error was committed by the learned Judge of the Trial Court in placing reliance on her sworn testimony. According to the learned A.P.P., the suggestion made on behalf ofthe appellant that the deceased had died an accidental death, was false because it is satisfactorily established that the deceased had died a homicidal death and such a false defence should be taken by the Court as an additional link established against the appellant while considering the circumstantial evidence against the appellant. The learned counsel emphasised that the appellant was found all alone in the house with the dead body of minor Roopa and as the appellant had failed to give satisfactory explanation as to the circumstances in which the deceased had died, the learned Judge did not commit any error in convicting the appellant of the offence punishable under section 302 I.P.C. According to the learned counsel for the State Government, the cummulative effect of the circumstances proved on the record of the case establishes beyond reasonable doubt that in all human probability,the act of commission of murder of deceased Roopa was committed by the appellant and the appellant alone and, therefore, the appeal should be dismissed. 7. We have taken into consideration the submissions advanced at the Bar and reappreciated the whole evidence on record. 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 commission of murder of the deceased by the appellant is tendered before the Court, except the extra-judicial confession made by the appellant before his wife, who is complainant in this case. Over and above the extra-judicial confession, the prosecution has also relied upon incriminating circumstantial evidence to prove its case against the appellant. 8. Before dealing with the circumstantial evidence on record, it would be worthwhile to notice the evidence adduced by the prosecution regarding extra-judicial confession made by the appellant with regard to commission of murder of the deceased Roopa by him, before his wife Harshaben. A confession being a species of admission, would be relevant and can be proved against the accused, unless it can be shown that there is some provision of law which excludes the proof of such a confession. Confession is a direct admission or acknowledgment of his guilt by a person who has committed a crime. It is not shown on behalf of the appellant that there is some provision of law which excludes the proof of confessional statement made by the appellant before his wife and therefore, we propose to scrutinise the evidence of Harshaben minutely to ascertain whether any confessional statement was made by the appellant as is referred to by her in her substantive evidence. Harshaben P. Jani,PW.1 Exh.14 in her substantive evidence before the Court has stated that on information being received from witness Abhaybhai Upadyaya to the effect that her daughter had taken ill, she had come to her house in a rickshaw and had found that the deceased had died. She has further claimed in her evidence that she had made inquiry with her husband i.e. the appellant as to how the deceased had died and thereupon the appellant had replied that the deceased was not his daughter and, therefore, he had killed her. The witness has also stated that on examining the dead body, it was found that neck of the dead body had bent sidewardly and that there were abraisons on stomach and neck of minor Roopa.It is true that witness Harshaben has not referred to the extra-judicial confession made by the appellant before her, in her complaint. However, we find that the assertion made by this witness in her substantive evidence before the Court that the appellant had made extra-judicial confession before her is not challenged on behalf of the appellant at all. Though the appellant had addressed witness Harshaben in several letters as prostitute, she was staying with the appellant in fond hope that the appellant would improve and that her married life would not be ruined. In fact, in order to avoid conflict, she had left her minor daughter Soniya aged about 2 to 3 years in the custody of her mother at Khedbrahma and at the time of incident she was residing with the appellant. Thus, there is no reason for her to make false assertion before the Court that the appellant had made extra-judicial confession before her. The evidence of complainant Harshaben read as a whole inspires confidence of the Court. On perusal of her evidence, it becomes at once evident that it has a ring of truth. Therefore, merely because the extra-judicial confession is not referred to by her in her complaint, that itself cannot be a ground to disbelieve her statement on oath before the Court that the confessional statement was made by the appellant as narrated by her in her evidence. It is well settled that complaint is not an encyclopaedia and all minute details need not be mentioned in the complaint. One cannot ignore the mental state of affairs of the complainant when she had gone to the police station for lodging the complaint. She had lost her child in a cruel murder which had taken place in her house. Further, she was being taunted constantly as prostitute by her husband i.e. the appellant and was being hated. Under the circumstances, to insist and expect that she should have stated all the details in her complaint is to ignore the realities of life. Therefore, omission to mention the said fact in the complaint cannot be given undue importance, nor can be blown out of propotion as is sought to be contended by the learned counsel for the appellant. Having regard to the facts and circumstances of the case, we are satisfied that the evidence led by the prosecution regarding extra-judicial confession narrated by witness Harshaben is trustworthy and can be acted upon. There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. Though the Court has considered the evidence of extra-judicial confession as a weak piece of evidence, the same can be acted upon if the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appears to be unbiased, not even remotely and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused. In State of U.P. v. M.K.Anthony, AIR 1985 SC 48, while explaining the law relating to extra-judicial confession, the Supreme Court has ruled that if the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction. According to the Supreme Court, in such a situation, to go in search of corroboration itself tends to cast a shadow of doubt over the evidence and if the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach, the same can be relied upon and a conviction can be founded thereon. Here in this case, it is proved by the prosecution that the complainant as such was not on inimical terms with the appellant at all and in spite of cruelty meted out to her and suspicion having been exhibited by the appellant regarding her