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2018 DIGILAW 779 (GUJ)

Imran Sattarbhai Ghadiyala v. State of Gujarat

2018-06-23

BELA M.TRIVEDI, SONIA GOKANI

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JUDGMENT : Bela M. Trivedi, J. 1. The present appeal is directed against the impugned judgment and order dated January 19, 2012 passed by the learned Additional Sessions Judge, Gandhidham-Kachchh (hereinafter referred to as ‘the Sessions Court’) in Sessions Case No.76 of 2009, whereby the appellant-accused has been convicted for the offences punishable under sections 302 and 201 of the Indian Penal Code, as also under section 135 of the Bombay Police Act and has been sentenced to rigorous imprisonment for life and pay fine of Rs.20,000/-, in default thereof, to undergo simple imprisonment for one year for the offence punishable under section 302 of the Indian Penal Code, and rigorous imprisonment for one year and to pay fine Rs.500/-, in default thereof, to undergo simple imprisonment for one month for the offence punishable under section 201 of the Indian Penal Code, and to undergo rigorous imprisonment for one month and to pay fine of Rs.100/-, in default thereof, to undergo simple imprisonment for one month for the offence punishable under section 135 of the Bombay Police Act. 2. The case of the prosecution as unfolded before the Sessions Court was that the complainant-Shankar Hargovind Advani (Sindhi) had lodged a complaint before the Police Sub Inspector, Adipur Police Station on September 19, 2009 against the present appellant-accused alleging inter alia that the accused was working at his office, and was staying in a room permitted by the complainant. It was further alleged that at about 0830 a.m., when the complainant was at the office, the accused had informed him that one Taraben, who was staying in a room opposite to the house of the accused, was killed and set ablaze by somebody. The complainant on having further asked the accused, he had confided before the complainant that he (accused) was unmarried and he had sexual relationship with the said Taraben. He (accused) had asked the said Taraben to get one 'Sindhi' girl with whom the accused wanted to have sexual relationship. The said Taraben told the accused that it would cost Rs.1000/-and, therefore, the accused had paid her Rs.1000/-, however, the said Taraben had not called the said girl for several days. He (accused), therefore, on the previous day, had gone to the house of Taraben with three bottles of cologne water and also a nunchaku. The said Taraben told the accused that it would cost Rs.1000/-and, therefore, the accused had paid her Rs.1000/-, however, the said Taraben had not called the said girl for several days. He (accused), therefore, on the previous day, had gone to the house of Taraben with three bottles of cologne water and also a nunchaku. He asked Taraben to return his money or to get the said Sindhi girl, however, Taraben said that she did not have any money. The accused had got angry and started beating Taraben with nunchaku. The accused thereafter brought a can of kerosene from the house of Taraben, poured the kerosene on her and thereafter, she was set ablaze. The complainant had stated in the complaint that the said confession was made by the accused before him and, therefore, he had come to lodge the complaint against him. 3. The said complaint was registered vide IC. R. No.142 of 2009 with Adipur Police Station for the offences punishable under sections 302 and 201 of the Indian Penal Code and section 135 of the Bombay Police Act. The Investigating Officer after carrying out the investigation and collecting sufficient evidence against the accused had submitted the chargesheet in the Court of Judicial Magistrate, First Class, Gandhidham. The said case was registered as the Criminal Case No.5489 of 2009. The said Court having committed the case to the Sessions Court, the same was registered as the Sessions Case No.76 of 2009. The charge against the accused was framed for the alleged offences, however, he denied the charges levelled against him and claimed to be tried. 4. The prosecution to prove the charges levelled against the accused had examined 29 witnesses and adduced a number of documentary evidence. After the closure of evidence, the further statement of the accused was recorded under section 313 of the Code of Criminal Procedure, wherein he denied the allegations levelled against him and further stated that he had no concern with the deceased, and that he was falsely implicated in the case he being a poor person. The trial Court after appreciating the evidence on record convicted and sentenced the accused as stated hereinabove. 5. Heard learned advocate Shri P.V. Patadiya appearing for the appellant-accused and ld. APP Ms.Maithili Mehta appearing for the respondent-State. The trial Court after appreciating the evidence on record convicted and sentenced the accused as stated hereinabove. 5. Heard learned advocate Shri P.V. Patadiya appearing for the appellant-accused and ld. APP Ms.Maithili Mehta appearing for the respondent-State. At the outset, it is stated that the entire case of the prosecution hinges on the alleged extrajudicial confession made by the appellant-accused before the complainant-Shankarbhai Advani. Hence, before adverting to the submissions made by the learned advocates for the parties, it would be appropriate to discuss the law on the extrajudicial confession. 6. It is well-settled law that extrajudicial confession is a confession made out of the court, and such a confession has to be corroborated by the other corpus delicti. The Supreme Court in the case of Sahadevan and another v. State of Tamil Nadu1, after discussing many earlier judgments has deduced 1 (2012) 6 SCC 403 the principles which would make an extrajudicial confession admissible piece of evidence capable of forming the basis of conviction of an accused. Paragraph 16 thereof reads as under : “16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extrajudicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extrajudicial confession alleged to have been made by the accused. The Principles (i) The extrajudicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extrajudicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extrajudicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 7. The Supreme Court in a catena of decisions has held that the extrajudicial confession is a weak piece of evidence. (v) For an extrajudicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 7. The Supreme Court in a catena of decisions has held that the extrajudicial confession is a weak piece of evidence. Whenever the Court upon appreciation of the entire prosecution evidence intends to base conviction on extrajudicial confession, it must ensure that the same inspires confidence and is corroborated by the other prosecution evidence. To cite a few decisions of the Supreme Court are (i) in the case of Balwinder Singh v. State of Punjab, 1995 (Supp) 4 SCC 259; (ii) in the case of Pakkirisamy v. State of Tamil Nadu, (1997) 8 SCC 158 ; (iii) in the case of Kavita v. State of Tamil Nadu, (1998) 6 SCC 108 ; and (iv) Aloke Nath Dutta and others v. State of West Bengal, (2007) 12 SCC 230 . It is true that there is no absolute rule that an extrajudicial confession can never be the basis of a conviction, however, ordinarily the same should be corroborated by some other material too. 8. If the evidence of the present case is appreciated in the light of aforestated legal position, it appears that there were four sets of witnesses examined by the prosecution, viz. (i) panch witnesses, (ii) medical witnesses, (iii) police witnesses and (iv) neighbours. Out of the said witnesses examined by the prosecution, almost all the panch witnesses, viz. PW2 Rajubhai Kakubhai Mulchandani, panch witness of panchnama at Exhibit 12 pertaining to the scene of offence; PW3 Vinod Pritamdas Mulchandani and PW4 Uttam Hemantdas Krishnani, panch witnesses of the panchnama at Exhibit 14 pertaining to the arrest of the accused, have turned hostile. Similarly, the panch witness Ramesh Hotchand Jethani of panchnama at Exhibit 17 pertaining to the collection of blood stains found from the wall at the scene of the offence; the panch witnesses Nathamal Naran Gadhvi and Durgesh Purohit of the panchnama at Exhibit 22 pertaining to the collection of sample of blood of the deceased and panch witnesses Dhanji Devaji Vaniya and Ashok Maheshwari of panchnama at Exhibit 27 pertaining to the collection of blood sample of the accused, have turned hostile. It is also pertinent to note that both the panch witnesses, i.e. Ashok alias Soki Khemchand Asnani and Naresh Tolaram Hemnani, of discovery panchnama at Exhibit 29, had also turned hostile. 9. The Doctor who had carried out the Post-Mortem of the deceased Taraben was examined as PW16 at Exhibit 42. He had stated about the external and internal injuries found on the body of Taraben, as stated in the P.M. report at Exhibit 42. The cause of death was stated to be due to shock on account of head injury. He also stated that the burn injuries found on the body were Post-Mortem. 10. The complainant-Shankar Hargovind Adwani was examined as PW15 at Exhibit 38. Though the alleged extrajudicial confession was made by the appellant-accused before him and on the basis of which the complainant had lodged the complaint Exhibit 39, he had turned hostile when examined before the Court, and had not supported the case of the prosecution. He had stated in his evidence before the Court that the accused Imran was serving at his office and he had given one room to the accused Imran to stay. He further stated that the incident had taken place at Navawadi, Adipur, where one lady was either burnt by somebody or she had committed suicide, and that he had told the police that he was informed about the incident by Imran. While admitting his signature on the complaint at Exhibit 39, he had denied the contents thereof. He also denied that the said complaint was given at the instance of and as per the confession made by the accused. In the cross-examination by the defence, he had admitted that he had not read the complaint and he had believed that whatever he had stated before the police must have been recorded by the police. He had also admitted that he did not have any personal knowledge about the killing of or about the deceased Taraben having been set ablaze. He stated that the accused had also not told him anything about the incident in question. 11. Under the circumstances, though the prosecution heavily relied upon the complaint lodged by the complainant, the prosecution had miserably failed to prove the contents of the complaint, the complainant having turned hostile and not supported the case of the prosecution. He stated that the accused had also not told him anything about the incident in question. 11. Under the circumstances, though the prosecution heavily relied upon the complaint lodged by the complainant, the prosecution had miserably failed to prove the contents of the complaint, the complainant having turned hostile and not supported the case of the prosecution. Hence, the extrajudicial confession allegedly made by the accused before the complainant as stated in the complaint also was not proved by the prosecution. The other witnesses examined by the prosecution were Hareshgiri Rameshgiri Goswami, who happened to be the son-in-law of deceased Taraben, Hinaben Goswami who was the daughter of deceased Taraben, Lilaben Muljibhai Bhil, neighbour of Taraben and Dipak Pratapbhai Chandlani, also a neighbour of Taraben. None of these witnesses had any personal knowledge about the alleged incident and they all had stated that they had come to know about the incident only on the basis of talks going on that the accused had murdered the deceased Taraben. 12. Although, the police witnesses have supported the case of the prosecution to the extent of carrying out their duties during the course of investigation. Head Constables Pradipsinh Manoharsinh Vaghela and Hareshkumar Ganpatray Bhatt, who were the carriers of the muddamal articles, had stated that they had deposited the muddamal articles to the Forensic Science Laboratory. It is very pertinent to note that though PW27 Mahipatsinh Jadeja, ASI and PW28 Dashrathsinh Zala, ASI, both had stated that the complainant had given complaint before the PSI Kirankumar K. Desai, the said PSI in his evidence before the Court had not stated about such a vital fact. Though he had stated about the investigation carried out by him, he did not state about the very important piece of evidence i.e. the complaint. The Public Prosecutor also did not bother to prove the contents of the complaint. When the complainant had turned hostile, it was the duty of the Public Prosecutor to ask the relevant questions about the contents of the complaint, more particularly, when it was lodged before the said PSI. This was a major lacuna in the case of the prosecution, which Ms.Mehta, ld. APP also was not in a position to explain. 13. When the complainant had turned hostile, it was the duty of the Public Prosecutor to ask the relevant questions about the contents of the complaint, more particularly, when it was lodged before the said PSI. This was a major lacuna in the case of the prosecution, which Ms.Mehta, ld. APP also was not in a position to explain. 13. In view of the above, it clearly emerges that though the manner in which the deceased Taraben was beaten and burnt was very ghastly and though the entire criminal machinery was set into motion on the basis of the extrajudicial confession allegedly made by the accused before the complainant, the prosecution had miserably failed to prove the contents of the complaint, much less the alleged extrajudicial confession made by the accused before the complainant. As stated hereinabove, the extrajudicial confession even if proved, is a weak piece of evidence and requires corroboration to convict an accused, however, in the instant case, even the alleged extrajudicial confession of the accused has not been proved, the complainant having turned hostile and not supported the case of the prosecution, and the Investigating Officer who had recorded the complaint having not bothered to state before the Court about the said complaint. It is needless to say that the suspicion howsoever strong cannot take place of proof. We are, therefore, of the opinion that the Sessions Court has committed serious error in convicting the accused without any cogent evidence against the accused on record. The prosecution having failed to connect the accused with the alleged crime, and to bring home the charges levelled against him, the appellant-accused is required to be acquitted giving him the benefit of doubt. 14. For the foregoing reasons, the present appeal is allowed. The impugned judgment and order of conviction and sentence dated January 19, 2012 rendered by the learned Additional Sessions Judge, Gandhidham-Kachchh in Sessions Case No.76 of 2009, qua the offence punishable under sections 302 and 201 of the Indian Penal Code and section 135 of the Bombay Police Act, is quashed and set aside. The appellant-accused is in jail and, therefore, if the appellant-accused is not required in connection with any other case, he shall be set at liberty forthwith. R & P be sent back to the concerned trial Court. Direct Service is permitted.