1997 Supreme(Guj) 42

Gujarat High Court
Judgename :H.L.Gokhale, N.J.Pandya
RAJAN JOHNSONBHAI CHRISTY - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 1394 of 1993
Decided On : 01/17/1997

Headnote:(a) Penal Code, 1860 - Sec. 302 read with Sec. 120-B and/or Sec. 34 - Circumstantial evidence - Confession - Statement recorded by accused himself - Contention that recorded at the instance of Police & during indirect custody of Police not acceptable - No reason to hold that it is a device document to circumvent provision under Sec. 25 of Evidence Act - Trial Court has recorded 14 circumstances to base conviction of appellant - Court held though circumstances shall in nature but are relevant & Trial Court has made no mistake in convicting appellant.

       It was on the last occasion that the accused- appellant had broken down into tears and had insisted before the said Officer, Mr. Vasantbhai Patel, Exh. 40, that he wants to confess everything. Mr. Patel gave him a pen and a paper and asked him to write down whatever he wanted to and that is how, according to the prosecution, Exh. 71 came into existence.

       [Para 19]

       The first controversy with regard to this statement having been recorded by an unauthorised official of the State, would, therefore, immediately go away. Mr. Patel has not recorded the statement at all. He, on the contrary, on learning from the accused-appellant that the accused wants to confess, had merely facilitated the task by supplying him a pen and a paper. At the most, therefore, Mr. Patel is a witness of the fact of statement thus having been written down by the accused-appellant himself.

       [Para 20]

       if this statement was got prepared by the police as suggested by the defence, the least that could be expected is that the statement would contain clear-cut admission as to the part played by the accused in the incident. This is totally absent as one reads Exh. 71. Once it is found to be in the handwriting of the accused-appellant and witness said FSL Expert Mr. Patel has stated at Exh. 40 that it is the accused who had written it down in his office i.e., office of the witness, the efforts made on behalf of the defence to discredit the statement, in our opinion, fail.

       [Para 23]

       Again, looking to the contents of the Exh. 71, when it is totally silent about the main incident, it is not possible to believe that on account of socalled indirect custody, on account of constant pressure being brought on the accused appellant and on acount of mental and physical torture that Exh. 71 was brought about.

       [Para 24]

       In court opinion, therefore, Exh. 71 has to be accepted as a confession statement made by accused-appellant on his own, in presence of witness Mr. Patel, Exh. 40.

       [Para 25]

       The learned Sessions Judge, in his elaborate judgment, has discussed all the aspects of the matter and various submissions made before him and finally at page 333 of the paper book, in the course of his judgment, has summarised as many as 14 different circumstances against the accused-appellant.

       [Para 26]

       Each one of the circumstances recorded by the learned trial Court Judge, though small in nature, is quite relevant and if based on them, the learned Additional Sessions Judge has found the accused-guilty, the decision cannot be said to be wrong in any manner. We have, however, on our own, critically analysed the problem from the point of view of the time factor set out in the earlier part of the judgment and on the basis of the material that we found on record and for the reasons stated above, we come to the conclusion that the accused- appellant has been rightly convicted. The appeal, so far as the accused-appellant is concerned, is therefore, dismissed.

       [Para 29]

       (b) Criminal Trial - Sentence - Crime is not to be seen while recording sentence but Criminal is to be seen - Moreover where conviction is based on circumstantial evidence it is not safe to award death sentence.

       Crime is not to be seen, while awarding the sentence, but the criminal is to be seen. Moreover, in cases where conviction is based on circumstantial evidence, in our opinion, it would not be safe to award death sentence. There are no other extra ordinary circumstance brought about in the case when we heard the main appeal filed by the accused himself as to lead us to accede to the request of the State for enhancing the sentence for life to that of capital punishment.

       [Para 30]