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2009 Supreme(Guj) 245
2010 (1) GCD 825 (Guj) (DB)
Hon’ble Mr. Justice Jayant Patel &
Hon’ble Mr. Justice Rajesh H. Shukla
Yusufbhai alias Isubbhai Umarbhai Mallek
Versus
State of Gujarat & Anr.
Criminal Appeal No. 261 of 20011—Decided on 20-21/04/2009
Mr. R.J. Goswami, for the Appellant No. 1.
Mr. K.P. Raval, APP, for the Opponent No. 1, (In All the Matters).
Point in Issue :
Whether in the facts of the case prosecution has proved the offence of murder against the accused appellants beyond doubt.
Headnote:[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 302, 201, 120 read with Section 34 — Murder — Conviction — Appreciation of evidence — Finding as to — Sustainability — Conviction of accused appellants is based mainly on confessional statements of accused appellant A1 and his evidence recorded under Section 315 of Criminal Procedure Code — There four confessional statements of A1 and when all the four are read together they could not be said consistence and believable — Even his confessional statement given before Magistrate is not believable and trustworthy — This is further coupled with the fact that accused A1 had given an application for retracting from confession made by him — His evidence recorded under Section 315 of Criminal Procedure Code can not also be considered against accused because such evidence of accused must be in disproving of the charges made against him or any person charged together with him — Since it is not disproving of the charges same can not be considered being outside the scope of the provision — When confessional statements of A1 is found non-trustworthy and deposition of A1 is excluded the whole basis of prosecution case fall to ground and the very substratum of the case is last — There is no evidence on record to sustain the conviction of accused appellants Court as a result acquitted all the accused appellants.
Held :
There is neither consistency in the confessional statements on the aspect of conspiracy amongst all the accused, nor is there any consistency on the aspects of role played by each of the accused, including A-1 himself in the incident. Therefore, in view of the aforesaid four different confessional statements, Court find that such confessional statements made before the learned Magistrate is not true and trustworthy. The aforesaid is coupled with the circumstances that the accused A-1 had given an application for retracting from the confession made by him, over which the learned Sessions Judge did not give any express opportunity to him for retraction. [Para 16]
As confessional statements not being true and trustworthy, it cannot be made as a valid basis for tracing guilt of the accused concerned, including A-1. Therefore, the learned Sessions Judge has committed error in this regard. [Para 17]
If the evidence is given by accused after the examination under Section 313 of Cr.P.C., and under Section 315 of Cr.P.C., it is required to be considered in light of the aforesaid provisions of Section 315 of Cr.P.C. The pertinent aspect is that such evidence must be in disproving of the charges made against him or any person charged together with him at the same trial. Therefore, the nature of evidence cannot be for strengthening the case of the prosecution to prove guilt of any of the accused, but must be in disproving of the charges made against him. The evidence of A-1 as recorded by the learned Sessions Judge shows that the same is not in disproving of the charges made against him or in disproving of the charges made against any person together with him at the trial, but is to prove the guilt of A-1 himself and/or other co-accused namely; A-2 and/or A-3. Therefore, such evidence so far as it relates to not in disproving of the charges, could be said as beyond the scope of Section 315(1) of Cr.P.C., for the purpose of deciding the case.
[Para 19]
If the confessional statements of A-1 is found as, as observed earlier, non-trustworthy and if the deposition of A-1 under Section 315 is excluded, since the same is not in disproving of the charges made against him or other co-accused, the whole premise or the basis of the case of the prosecution would fall to ground and the very substratum of the case of the prosecution would be lost. The reason being that the whole case of the prosecution is based on circumstantial evidence and the basis of the prosecution is the confessional statements of A-1, which itself is found as non-trustworthy by this Court as referred to hereinabove. The second basis, if any, could be the deposition of A-1 under Section 315, but as observed hereinabove, since the same is not in disproving of the charges and, therefore, beyond scope of Section 315(1) of Cr.P.C., and, therefore, excluded, the effect would be that the second basis of the case of the prosecution would also not available. [Para 20]
Law Laid Down :
For determining the age of Juvenile the relevant date is the date of offence and not the date when is produced before Court.
Jayant Patel, J.—As all the appeals arise from the common judgement and order of the learned Additional Sessions Judge, they are being considered simultaneously.
2. All the appeals are directed against the judgement and order of the learned Additional Sessions Judge, whereby the accused - appellants have been convicted for the offence under Sections 302, 201, 120-B read with 34 of IPC and the sentence has been imposed upon all the accused - appellants for life-imprisonment for the offence under Section 302 of IPC with the fine of Rs. 500/- and for three years imprisonment with the fine of Rs. 500/- for the offence under Section 201 of IPC and the sentence is also imposed for six months imprisonment for the offence under Section 120-B of IPC.
3. As per the prosecution case, deceased Jitubhai @ Maheshbhai had some love affairs with one Alpa, daughter of Vallabhbhai Babubhai Patel and the threats were given to the mother of the deceased Kantaben to the effect that the deceased Jitubhai might not be permitted to meet Alpa. Since 28.7.1997, the deceased did not return to his home and, therefore, upon inquiry his mother found that he was with his friend Gatti @ Hemant and thereafter they had separated and since he was not found, the mother of the deceased had doubt that the brother of Alpa and the brother-in-law of Alpa might have arranged a conspiracy for killing the deceased and the deceased might have been murdered. Therefore, the complaint was filed by the mother of the deceased Kantaben with Aklav Police Station on 16.9.1997. The complaint was investigated and during the course of investigation one of the accused namely; Navinbhai @ Pako Dahyabhai Valand - appellant in Criminal Appeal No. 266 of 2001 (hereinafter referred to as “A-1” for the sake of convenience), surrendered to the police by making his declaration for the conspiracy of killing the deceased Jitubhai. It appears that thereafter in further investigation, it was found that in the said conspiracy, Accused No. 2 - appellant of Criminal Appeal No. 261 of 2001 and Accused No. 3 - appellant of Criminal Appeal No. 300 of 2001 (hereinafter referred to as “A-2” and “A-3” respectively for the sake of convenience) and the brother-in-law of A-3 Harishbhai (original accused No. 4 - A-4) was also involved. At various occasions the confessional statements were also recorded, including the one recorded before the learned Magistrate, which shall be referred to hereinafter. Thereafter, the charge-sheet was filed against all the accused - A-1, A-2 and A-3 as well as Harish @ Harish Nagjibhai Patel.
4. The prosecution, in support of its case, examined the witnesses as well as produced the documentary evidences. The learned Sessions Judge recorded the statements of all the accused under Section 313 of Cr.P.C.. However, the pertinent aspect is that pending the trial, as accused No. 4 Harish Nagjibhai Patel had expired, the case was abated against him. A-1 also examined himself as defence witness and he stood by the story as was stated before the learned Magistrate in his statement under Section 164 of Cr.P.C.
5. So far as A-2 and A-3 are concerned, they denied the evidence against them, but A-1 had led the evidence on oath under Section 315 of Cr.P.C. The learned Sessions Judge thereafter heard the matter and found that the prosecution has been able to prove the case beyond reasonable doubt against A-1, A-2 and A-3 and, therefore, convicted all the accused for the offence under Sections 302, 201 and 120-B read with Section 34 of IPC, and has imposed sentences as referred to hereinabove. It is under these circumstances, the present appeal before this Court.
6. We may record that the office has reported that A-2 is absconding and in normal circumstances, we could have considered the matter otherwise, but it appears that the appeal of A-2 is arising from the common judgement and order. Therefore, we have found it proper to consider the merits of appeal of A-2 also as his matter could n
