BABUBHAI HAJIBHAI v. STATE — 1984 DIGILAW 145 (GUJ)

J. P. DESAI, M. B. SHAH, J. ( 1 ) THE accused as stated earlier went to the Police Station and gave some information which was reduced to writing. This writing consisting of two parts one in respect of the incident alleged to have taken place between the accused and the deceased on the previous day i. e. 8-4-1981 supplying the motive for the present incident which took place on 9-4-1981 and the other with regard to the present incident of 9th involving the accused as an assailant was tendered in evidence when the evidence of the P. S. I. P. W. 8 Arjunsing Rathod Ex. 19 was recorded. The learned trial Judge rightly excluded the portion relating to the incident of 8th and also relating to the present incident. He only admitted a part of the statement in evidence. The learned trial Judge has rightly relying upon the decision of the Supreme Court in A. NAGESIA V. STATE OF BIHAR A. I. R. 1966 S. C. 119 not admitted in evidence the confessional part as well as the incriminating part. The Supreme Court in the above case held that confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement and that no part of the confessional statement is receivable in evidence except to the extent that the ban of sec. 25 is lifted by sec. ( 2 ) THE Supreme Court further observed that the test of severability namely that if a part of the report is properly severable from the strict confessional part then the severable part could be tendered in evidence is misleading and entire confessional statement is hit by sc. 25 and save and except as provided by sec. 27 and save and except the formal part identifying the accused as the maker of the report. no part of it could be tendered in evidence. This Ex. 20 which contains some recitals about the incident which is alleged to have taken place on 8 i. e. on the previous day would furnish motive and therefore it would form part of the confession and therefore. not admissible in evidence as per the above decision of the Supreme Court. The learned trial Judge rightly took this view as observed in his judgment at para. 20. not admissible in evidence as per the above decision of the Supreme Court. The learned trial Judge rightly took this view as observed in his judgment at para. 20. The learned trial Judge held that it was for the prosecution to establish the motive by independent evidence without the aid of any part of Ex. 20. He of course rightly observed that want of proof of motive is not a reason for doubting the evidence of the prosecution witnesses. But the learned trial Judge with respect to him however fell in an error while referring to this statement contained in Ex. 20 about the incident which had allegedly taken place on the previous day. While considering the evidence of P. W. Munasing at para. 32 of his judgment he has referred to the statement contained in Ex. 20 that the deceased had given time of about 2-30 P. M. to the accused to meet him near Bhagwati restaurant. The learned trial Judge again fell into an error while referring to the contents of Ex. 20 at para 36 of his judgment so far as the incident which is alleged to have taken place on the previous day is concerned. He has as stated in the beginning clearly observed that no part of the statement made by the accused except the formal opening portion is admissible in evidence and he rightly admitted only that much portion in evidence by excluding the remaining portion by bracketting the same. But anyway it is clear that only the portion which is admitted in evidence by the learned trial Judge at Ex. 20 can be taken into consideration so far as the information given by the accused in the Police Station is concerned. that information leads us nowhere. That only establishes that the accused went to the Police Station soon after the incident and gave some in formation to the Police Officer. We cannot draw any adverse inference from the fact that the accused soon after the incident went to the Police Station and gave some information. In fact the say of the accused is. that as he saw a dead body lying in the compound he immediately rushed to the Police Station to give information about the same. Just as we cannot take into consideration the contents of Ex. In fact the say of the accused is. that as he saw a dead body lying in the compound he immediately rushed to the Police Station to give information about the same. Just as we cannot take into consideration the contents of Ex. 20 which are inadmissible in evidence we cannot also draw any inference as to what he stated or did not state to the P. S. I. at that time. . . . . . . . . . . . . . . . ( 3 ) BEFORE going to the circumstance viz. presence of human blood on the clothes of the accused I would like to mention here that I am conscious of the fact that the trial Court had an opportunity to observe the witness giving evidence before him and hence the appreciation of the evidence of this witness by the learned trial Judge should be given its due weight. In the present case we find that even though the learned trial Judge held that the statement of the accused contained in Ex. 30 as regards the incident which is alleged to have taken place on the previous day is not admissible in evidence he has fallen into an error in referring to the same and in observing that if that portion could be used in evidence as a piece of evidence supplying motive it does supply motive. He has also while appreciating the evidence of Munasing referred to this part of Ex. 20 while observing that the deceased had also given the same time to the accused on the previous day and therefore the evidence of Munasing was dependable. (See para. 32 ). The learned trial Judge has also at para. 18 of his judgment in fact referred to the contents of Ex. 20 which pertain to the previous incident and which are inadmissible in evidence even as held by the learned trial Judge and expressed his opinion that he had no reason to disbelieve the said part of the statement which furnished motive for the crime. ( 4 ) THE accused was found to have some injury on his person. He was sent to the doctor and the doctor also examined the accused and found a small injury which was more than 24 hours old. ( 4 ) THE accused was found to have some injury on his person. He was sent to the doctor and the doctor also examined the accused and found a small injury which was more than 24 hours old. While referring to the presence of the injury on the person of the accused the learned trial Judge has again fallen into an error in referring to the first part of Ex. 20 which pertains to the incident of the previous day. He has discussed this aspect of the matter at para. 34 of his judgment. The learned trial Judge has also referred to the conduct of the accused in going to the Police Chowki at about 2-45 P. M. The said discussion is at para. 35 of his judgment. He has observed that if the accused was really not connected with the crime then there was no earthly reason for him to go to Saraspur Police Chowki soon after the incident and give information pertaining to it nor there would be any reason for the P. S. I. Rathod to detain him at that said Chowki. The learned trial Judge with respect to him committed a grave error in taking this conduct of the accused into consideration and by making the observation as he did because he fell into an error in drawing the inference that because the accused went to the Police Station and gave some information the accused must be guilty. What information the accused gave at the Police Station is not admissible in evidence even as per the Eluding arrived at by the learned trial Judge. Inspite of this the learned trial Judge has with respect fallen into an error in observing that the information given by the accused was with regard to the incident in question. He thus took into consideration a piece of evidence which was even according to him. inadmissible in evidence. He has also discarded the say of the accused as to why he went to the Police Station by making an observation that his say was palpably false. He has discussed this aspect at para. 36 of his judgment. He thus took into consideration a piece of evidence which was even according to him. inadmissible in evidence. He has also discarded the say of the accused as to why he went to the Police Station by making an observation that his say was palpably false. He has discussed this aspect at para. 36 of his judgment. He has observed that it does not stand to reason that he on seeing a big crowd of persons collected opposite his house would go there and after seeing the dead body of the deceased he would go to Saraspur Police Chowki to give information that someone had expired. He has also observed that it does not stand to reason that on the accused giving such information he would be made to sit at the Police Chowki. Here again the learned trial Judge has fallen into an error in indirectly using the contents of Ex. 20 which are not admissible because from this he had drawn an inference that the accused must have given information involving him. He has also then referred to the fact that Karmaji immediately gave information on phone to police and therefore it was unnatural that the accused would go to the Police Chowki. The learned trial Judge has observed that the accused would certainly come to know that a telephonic message was given by Karmaji. I fail to understand on what material the learned trial Judge drew this inference. The learned trial Judge has again. with respect fallen into an error in observing even at para. 36 that the accused came out with such a version to get over the difficulty created by him viz. going to the Police Chowki and giving information to police pertaining to this incident as well as in respect of the previous days incident. The learned trial Judge has again fallen into a grave error in indirectly referring to the inadmissible portion of Ex. 20 by observing that it would not be possible for P. S. I. Rathod to write the particulars of that days incident as well as of previous days incident unless he was told about the same by the accused. The learned trial Judge has again fallen into a grave error in indirectly referring to the inadmissible portion of Ex. 20 by observing that it would not be possible for P. S. I. Rathod to write the particulars of that days incident as well as of previous days incident unless he was told about the same by the accused. He has also fallen into a grave error in again observing in the same para that it does not stand to reason that P. S. I. Rathod would make the accused to sit there if he was in no way connected with the crime and really if he had gone there to give information pertaining to this incident as a third person. By making these observations the learned trial Judge has indirectly used those portions of the statement of the accused which were on the face of it inadmissible in evidence. ( 5 ) THE discussion made above will go to show that the appreciation of the evidence of this sole witness by the learned trial Judge is very much tainted. It appears that the learned trial Judge has been very much carried away by the fact that the accused himself went to the Police Station and gave some information thereafter the Police Officer detained him. It also appears that he is very much carried away by those contents of Ex. 20 which are on the face of it inadmissible in evidence even according to the learned trial Judge which contents cannot be looked into for any purpose whatsoever. The appreciation of the evidence of this sole witness who poses to be an eye witness to the incident is thus very much tainted on account of the circumstances stated above. If the learned trial Judge had not taken the above circumstances into consideration it is very likely that he might have come to a different conclusion. . . . . . . . . . . . . . . . ( 6 ) THERE is one more circumstance on which the prosecution relies to connect the accused with this incident. The learned trial Judge has also taken this circumstance into consideration as a circumstance corroborating the say of Munasing. . . . . . . . . . . . . . . . ( 6 ) THERE is one more circumstance on which the prosecution relies to connect the accused with this incident. The learned trial Judge has also taken this circumstance into consideration as a circumstance corroborating the say of Munasing. The accused went to the Police Station at about 2-45 p. m. He was with the police till the Panchnama of his clothes was made at about 10-20 p. m. The accused was admittedly taken to the scene of the incident before the clothes which he had put on were seized at night. Even though the police might be justified in formally arresting the accused later on the Police Officer could have and should have attached the blood stained clothes of the accused immediately. The blood stains must be visible when the accused went to the Police Station. The Police Officer will naturally examine the clothes of the accused to find out whether there were any visible blood stains on the same. The fact that the clothes were not seized immediately but were seized only at about 10-20 p. m. i. e. about 7 to 8 hourts after the accused went to the Police Chowki is a circumstance which heavily weighs against the prosecution. The extent of blood was again not much as disclosed by the Panchnama Ex. 33. The report of the Forensic Science Laboratory Ex. 44 shows that there was human blood on the shirt and pants of the accused (described as Exs. 7 and 8 in the said report) but it also shows that it was not possible to ascertain the group of the said blood. In view of this it cannot be said with any reasonable certainty that the human blood which was found on the shirt and pants of the accused was of the deceased. There is no evidence on record to show what was the group of the blood of the accused. The accused himself had one minor injury which was detected by the Medical Officer when he examined him. It of course does not prima facie appear to be a bleeding injury but it is not impossible that the accused might have sustained some minor injury earlier and on account of the same stains of human blood might have been found on his shirt and pants. It of course does not prima facie appear to be a bleeding injury but it is not impossible that the accused might have sustained some minor injury earlier and on account of the same stains of human blood might have been found on his shirt and pants. But anyway in absence of the positive evidence that the human blood found on the shirt and pants of the accused was of O group it cannot be said to be a circumstance connecting the accused with this incident. We cannot say that because Munasing deposed against the accused and because human blood is found on the shirt and pants of the accused the said blood must be of the deceased and none else. The circumstance about the presence of blood has to be independently examined and any inference which can be drawn is to be drawn independently of any other evidence. If we take the report Ex. 44 into consideration it only shows that human blood was found on the pants and shirt of the accused but no conclusion can be reached that it must be of the deceased. It is not necessary for the accused to; explain a circumstance unless it positively shows that he must have been involved in a particular incident. I am therefore not inclined to take this circumstance into consideration. ( 7 ) THE discussion made above goes to show that the prosecution has not been able to establish beyond reasonable doubt that it was the accused before the Court and none else who was responsible for causing these injuries to the deceased. ( 8 ) BEFORE parting with this case I would like to observe here that Dr. Rajendra Patel Ex. 7. stated in his evidence that the injuries which were found on the person of the deceased were possible by knife Muddamal Article 12 Muddamal Article 12 is the knife which was alleged to have been discovered by the accused on the fourth day after the incident. The list of Muddamal Articles on the record of this case shows that Muddamal Article 12 was not even brought to the Court before 11-9-1981 on which date the learned trial Judge delivered the judgment. The list of Muddamal Articles on the record of this case shows that Muddamal Article 12 was not even brought to the Court before 11-9-1981 on which date the learned trial Judge delivered the judgment. This is clear from the fact that earlier only Articles 1 3 and 6 were received in the Court and thereafter four sealed) packets were received on 29-8-1981 but there were no slips giving any description and therefore it was not possible to identify the articles. It shows that one big packet and one small packet were received in the Sessions Court at Ahmedabad on 11-9-1981. No slip was also affixed on any of these packets showing the respective numbers of the articles contained in the same. We therefore called for the original Muddamal Register from the trial Court and the Register clearly showed that this Muddamal Article 12 was received in the Sessions Court only on 11-9-1981. This shows that Muddamal Article 12 was not before the Court when Dr. Patel gave evidence on 31-8-1981. The injuries which were found on the person of the deceased are possible by a Rampuri knife. hut the fact remains that the doctor gave evidence without even seeing the knife. Article 12. It is pertinent to note that the deposition of the doctor does not show that he was deposing at para. 4 after seeing the Muddamal knife. Ordinarily. one would find the words. I am shown Muddamal Article 12 in the deposition of the Medical Officer. but such words do not appear in the deposition of the Medical Officer. It is of course not improbable that instead of Art. 12. Art. 1 which was recovered from the pants of the deceased might have been shown to the Medical Officer and on seeing the same he deposed taking it that it was Muddamal Article 12. This does not in any way adversely affect the prosecution case but the fact remains that the Muddamal knife was not before the Court when the evidence of the doctor was recorded and it was received only on the date of the judgment. I may mention here that this aspect of the matter came to light only when I was going through the evidence of the Investigating Officer Vijaysinh Barot. P. W. 13 Ex. 40. This witness at para. I may mention here that this aspect of the matter came to light only when I was going through the evidence of the Investigating Officer Vijaysinh Barot. P. W. 13 Ex. 40. This witness at para. 8 of his deposition recorded on 3 stated that Muddamal knife Article 12 was not received back from the Forensic Science Laboratory. He produced at Ex. 42 a letter dated 28-8-1981 written by the Forensic Science Laboratory to the P. S. I. stating therein that the Articles were not analysed and that the report will be sent in the month of September 1991. It appears that the Muddamal Articles were in fact analysed earlier and even report to that effect was received and the Investigating Officer in further examination-in-chief after recess produced those reports of June 1981. But inspite of this situation no effort was made by anyone to inquire whether the Muddamal Article 12 was in fact received in the Court or not. The report Ex. 43. of the Forensic Science Laboratory dated 10-6-1981 was produced before the Court Ex. 44 the report of the Serologist was also produced on that day. But the fact remains that no one bothered to inquire whether Muddamal Article 12 was received in the Court even though the P. S. I. specifically stated at para. 8 of his deposition that the Muddamal Article 12 was not received back from the Laboratory. In a given case absence of Muddamal Article before the Court may assume very much importance though of courses in the present case it does not assume any importance. The learned Additional Sessions Judge should have been careful enough to see that the Muddamal knife was before the Court when the evidence was being recorded. He should have at least made specific inquiry about Muddamal Article 12 when the P. S. I. stated that it was not received back. It is necessary that all the Muddamal articles are before the Court when the evidence is being recorded. This is more particularly so when a Muddamal article is required to be shown to a witness for identifying the same or to a doctor for his opinion whether particular injury can be caused by that article or not. Appeal allowed. .