Back
2019 Supreme(Guj) 966
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, A.C. RAO, JJ.
Manishaben – Appellant
Versus
State of Gujarat – Respondent
R/Criminal Appeal No. 537 of 2015
Decided On : 25-04-2019
Advocate Appeared:
For the Appellant : Ruturaj Nanavati
For the Respondents: K.P. Raval, APP Public Prosecutor
Headnote:
Penal Code 1860 – Section- 179, 498A, 449306, 201, 114 – Criminal Procedure Code, 1973 – Section- 161, 209, 313 – Evidence Act, 1872 – Sections -17 25,26 & 27 – Appeal against Conviction – Appellant committed murder of Jiviben and burnt her body to extent that it was reduced to ashes – While burning body of Jiviben, appellant threw her clothes in fire to create an impression as if she herself had committed suicide – Husband and his family members were arrested as if appellant had committed suicide on account of harassment caused to her – While investigation of FIR lodged by father of appellant herein was in progress, police got some clue that appellant was very much alive – In such circumstances police intercepted appellant herein and upon interception, recorded her statement – Appellant convicted by trail court – Held, Confession made to Police Officer is clearly inadmissible – Principle of law discernible from afore-noted decision of Supreme Court is that an admission of incriminating fact is admissible under Evidence Act, provided that it meets requirements of admission as defined in Section-17 of Act, 1872 – Admission made in course of investigation under Cr.P.C. to a Police Officer, then same will not be admissible under Section-162 of Cr.P.C. as it clearly prohibits use of statement made to police officer under Section-161 of Cr.P.C – Accused is sent for medical examination In course of his medical examination, he gives history to doctor as regards incident – History may be in form of an incriminating admission, if not confession – Such incriminating admission relevant fact and can be used against accused – But if same incriminating admission made before police, at point of time, when police is recording statement under Section-161 of Cr.P.C same will not be admissible in view of the Section-162 of Cr.P.C – This fine distinction should be kept in mind while appreciating evidence on record – Trial Court committed serious error in holding appellant guilty of offence of murder by placing reliance on her confessional statement – Appeal allowed (Paras: 47,54, 55 & 56)
Facts of the case:
Appeal against Conviction – Appellant committed murder of Jiviben and burnt her body to extent that it was reduced to ashes – While burning body of Jiviben, appellant threw her clothes in fire to create an impression as if she herself had committed suicide – DNA test also not undertaken from remains of body of Jiviben reduced to ashes father of appellant herein being misled by burnt clothes of his daughter lodged FIR at police station for offences punishable under Sections-306, 498A r/w. 114 of IPC – Husband and his family members were arrested as if appellant had committed suicide on account of harassment caused to her – While investigation of FIR lodged by father of appellant herein was in progress, police got some clue that appellant was very much alive – In such circumstances police intercepted appellant herein and upon interception, recorded her statement – Appellant convicted by trail court
Findings of the court:
Confession made to Police Officer is clearly inadmissible – Principle of law discernible from afore-noted decision of Supreme Court is that an admission of incriminating fact is admissible under Evidence Act, provided that it meets requirements of admission as defined in Section-17 of Act, 1872 – Admission made in course of investigation under Cr.P.C. to a Police Officer, then same will not be admissible under Section-162 of Cr.P.C. as it clearly prohibits use of statement made to police officer under Section-161 of Cr.P.C – Accused is sent for medical examination In course of his medical examination, he gives history to doctor as regards incident – History may be in form of an incriminating admission, if not confession – Such incriminating admission relevant fact and can be used against accused – But if same incriminating admission made before police, at point of time, when police is recording statement under Section-161 of Cr.P.C same will not be admissible in view of the Section-162 of Cr.P.C – This fine distinction should be kept in mind while appreciating evidence on record – Trial Court committed serious error in holding appellant guilty of offence of murder by placing reliance on her confessional statement.
Result: Appeal allowed
JUDGMENT :
J.B. Pardiwala, J.
1. The present appeal is at the instance of a convict - original accused no. 1 of the offences punishable under Sections-302, 449 and 201 of the Indian Penal Code and is directed against the judgment and order of conviction and sentence dated 31st March, 2015 passed by the Additional Sessions Judge, Jetpur in the Sessions Case No. 10 of 2013.
2. By the aforesaid order, the Additional Sessions Judge, Jetpur found the appellant herein guilty of the offences punishable under Sections-302, 449 and 201 of the Indian Penal Code and consequently, sentenced her to suffer life imprisonment with fine of Rs. 5,000/- and in default of the payment of the amount of fine, to undergo further one year of simple imprisonment. The appellant also came to be convicted for the offence punishable under Section-449 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for a period of ten years with fine of Rs. 2,000/- and in default of the payment of the amount of fine, to undergo simple imprisonment for a period of one year. The appellant has also been convicted for the offence punishable under Section-201 of the Indian Penal Code and has been sentenced to undergo two years of rigorous imprisonment with fine of Rs. 1,000/- and in default of the payment of the amount of fine, to undergo three months of further simple imprisonment.
3. CASE OF THE PROSECUTION:-
One Shri N.K. Vyas serving at the relevant point of time as a Police Sub Inspector of the Jetpur Taluka Police Station lodged an FIR dated 11/11/2011 inter alia stating as under:-
The accused lady wanted to elope with her paramour and therefore, she killed Jiviben Lakhmanbhai Mandani, an old lady aged about 90-95 years of the village, by strangulating her. The accused, thereafter, brought the dead-body of the lady to her house, poured kerosene on the dead-body and set it ablaze to destroy the evidence and to show that she has died. She burnt her own clothes on the dead-body and thus she committed an offence.
Date: 11/11/2011
I, N.K. Vyas, Police Sub-Inspector, Jetpur Taluka Police Station, hereby state that,
I am serving as PSI in the Jetpur Taluka Police Station. My duty is to maintain law and order in the Jetpur Taluka Police Station area and to make investigation into the offences taking place within the limit of Jetpur Taluka Police Station.
The primary investigation of the offence under Section-498A, 306, 201, 114 of the IPC registered vide C.R. No. 68/11 at Jetpur Taluka Police Station was held by PSI Mr. M.L. Dave and subsequent to his transfer, the said investigation was handed over to me, which is going on. The complainant Mr. Jilubhai Nanabhai Basiya, residing at Galath Barwala, Taluka Bhesan, stated that his daughter namely Manishaben @ Meenaben, aged 25 years, was residing at her matrimonial home at Rupavati Village of Jetpur Taluka with her husband Harsukhbhai Lakhubhai Khuman.
On being physically and mentally tortured by her husband, father-in-law's brother Valkubhai and cousin brother-in-law Jayraj, she was compelled to die and therefore, she set ablaze herself in the early morning on 26/06/2011 and succumbed and they completed her final rituals after the death. During the investigation, the Investigating Officer PSI Mr. R.L. Dave drew panchnama on 04/07/2011 between 18 O'clock and 19 O'clock and collected the soil, control sample soil and human relics for the purpose of the investigation in presence of the panchas: (1) Lavjasbhai Pachabhai Palera, residing at: Rupavati and (2) Parbatbhai Keshubhai Dhaduk, residing at: Rupavati and the same were sent to the FSL for medical examination. Moreover, the scene of offence was got examined by the Scientific Officer and under his supervision, white plastic cane smelling with kerosene was also seized.
During the investigation in the said case, today on 11/11/2011 at 16:05 hours, Mr. K.H. Goh
