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CR.A/1396/1986 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1396 of 1986
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2
To be
referred to the Reporter or not ? NO
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
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 ? NO
5
Whether
it is to be circulated to the civil judge ? NO
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
HARIJAN
PAMA RANA - Opponent(s)
=========================================================
Appearance
:
PUBLIC
PROSECUTOR for
Appellant(s) : 1,
MR RR TRIVEDI for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 09/07/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
This
is an appeal filed against acquittal award passed by the learned
Additional Sessions Judge, Rajkot at Gondal, on 23.5.1986 in Sessions
Case No. 50 of 1985.
2. The
facts of the case are that on 31.7.1985 the accused Harjan Pama Rana
of Pipalvav who happens to be husband of Jayaben, visited the house
of brother of said Jayaben at Arab Timbdi. Thereafter, after having
dinner at 8 O’clock he went to the field with Bodha. It is further
stated in the complaint that in the morning at about 2.30 hours his
sister came home and inquired about her husband when it is said that
yesterday her husband had quarreled with Bodha and thereafter her
husband gave knife blow and killed Bodha. In the said scuffle he also
received some injuries on his hands. On this and other facts,
complaint was filed which was investigated by the police. After
investigation, chargesheet was filed against the respondent for the
offence punishable under Section 302 of the Indian Penal Code and
under Section 135 of the Bombay Police Act read with Section 37.
After committing the case to the Court of Sessions, the respondent
did not plead guilty. Consequently, charge was framed. After
considering the entire evidence, vide judgement and order dated
23.5.1986, the accused was given benefit of doubt and acquitted of
the charges punishable under Section 302 of the I.P.C.
3. Being
aggrieved by the said judgement, the State preferred the appeal on
various grounds. It is contended before us that perusing the version
of witnesses and extra judicial confession which is corroborated by
other evidence namely the evidence of complainant Dahya Mapa,
Lakhuben and Hansaben, the learned Sessions Judge ought not to have
given benefit of doubt. It was further contended that perusing the
medical certificate of the injuries it is clear from evidence of
Medical Officer that the injuries are possible by muddammal knife
which was recovered during the discovery. It is further contended
blood-stained clothes were discovered at the instance of the accused
and serological report corroborate the blood of the deceased.
4. The
said judgement is supported by learned advocate Shri Trivedi who
appeared on behalf of the original accused and contended that extra
judicial confession of the accused before PW-2 Jayaben is not
believable because there are material contradiction and improvement
into the complaint as well as the said extra judicial confession, as
sought to be relied upon by the prosecution. The circumstances, which
are obtaining on records, do not corroborate the evidence which are
laid before the Court. Jayaben PW-2 in her statement deposed that
accused came at the residence at about 11 O’clock and said that he
killed Bodha and thereafter he said to her to prepare dinner which he
ate hurriedly and thereafter in the morning at about 4 O’clock
Jayaben was made to wake up and she prepared tea. Thereafter, she
came to Arab Timdi and reported about the incident. However, the
complainant says in his complaint that at 2.30 hours in the morning
Jayaben came and reported the incident to her Mother Lakhuben. There
are material improvements in her deposition before the Court. The
learned Sessions Judge has clearly pointed out the same in his
judgement and also found that recovery of the blood stained clothes
and knife is doubtful because recovery of the knife from the heap of
the fodder is not supported by evidence of panchas and other evidence
of investigating officer Shri Ratho. Perusing the entire judgement,
the learned Sessions Judge has point out contradiction, improvement
in the evidence of witnesses also.
5. Heard
the learned counsel appearing for the parties. In our considered
opinion the case rests squarely on the piece of evidence which is
extra judicial confession. According to lady PW-2 Jayaben before whom
the accused is said to have made the confession in her statement she
states that accused came to home in the night and asked her to
prepare food. He hurriedly had dinner and then slept. Thereafter, he
woke up at about 4.00 O’clock and asked her to prepare tea. The
accused said that he had killed her brother. There it is said that
extra judicial confession is made. The manner in which the extra
judicial confession is said to have been made to the lady is of a
nature which has a ring of artificial in it. According to the
statement of the lady, the man is said to have informed that he had
gone to Pipalvav. He killed his brother. Then the lady is said to
have gone to her mother’s place. There she said to have the mother
that ?Sher husband has killed Bodha??. Now if two statements are
reconciled it does not inhere in itself that she informed her mother
that the accused had informed her that he has killed Bodha. Instead
the statement to the mother is to the effect that Bodha has been
killed by her husband. This is mere a statement therein a confession.
In examining the truthfulness of extra judicial confession, one has
to bear in mind that exact words that were given are reproduced and
if after extra judicial confession being made by the accused, she
narrates the story to mother which is not indirect speech but is a
mere information, then it cannot be said that extra judicial
confession was made to her as stated by her. If the nature of extra
judicial confession, as discussed above, is considered then in its
very nature the extra judicial confession is a very weak piece of
evidence. It alone would not be sufficient to be made the basis of
conviction. The nature of confession which is given and the language
used has been deposed by PW-2 Jayaben then there is difference in
expression. This difference in expression knocks the bottom of extra
judicial confession and makes it unbelievable and if the extra
judicial confession is taken out from the prosecution evidence then
the recovery of blood stained clothes and knife is hardly sufficient
to sustain any charge more particularly when the blood group of the
accused is not investigated by the Investigating Agency.
6. In
view of the aforesaid reasons, it would not be prudent to convert the
acquittal as recorded by the trial Court into conviction. Thus, we in
all fairness approve the findings recorded by the learned trial
Judge. Consequently, the appeal being meritless is dismissed. Bail
bond of the accused stands cancelled.
(BHAGWATI PRASAD, J)
(S.R. BRAHMBHATT, J)
(pkn)
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