This appeal challenges judgment and order rendered by Sessions Court, Gandhinagar in Sessions Case No.51 of 2005 on 31/03/2006 whereunder both the appellants, who were original accused before the trial Court, came to be convicted for the offence of murder punishable under Section 302 r/w Section 34 of the Indian Penal Code and were sentenced to undergo RI for life with a fine of Rs.20,000/-, in default, to undergo further SI for two years. The appellants were also convicted for offence punishable under Section 201 r/w Section 34 of the Indian Penal Code and were sentenced to undergo RI for two years with a fine of Rs.2,000/-, in default, to undergo SI for three months. The convicts were given benefit of set off and the sentences were ordered to run concurrently. Hence, this appeal. 2. Brief facts of the prosecution case are that A-1 – Pankajbhai and A-2 Kanabhai Dahyabhai Parmar were staying in adjoining rooms. The room occupied by A-2 was also shared by witnesses – Raman and Girvat. One Kadvo @ Rajesh Soni was also staying in adjoining room. The rooms were located at first floor of a house owned by one Nareshbhai and the aforesaid persons were staying on rental basis. It is the case of the prosecution that victim – Rajesh was done to death by the accused persons suspecting that Rajesh had determined to administer poison to them by mixing it in the food which Rajesh - the deceased was to prepare. The case of the prosecution further is that the incident was not seen by any one, but both the accused persons after causing death of Rajesh went to the room occupied by A-2 and when witnesses – Raman and Girvat came there, they made an extra judicial confession before them giving minute details of the occurrence. Thereafter, they all went to their respective rooms. The accused persons in fact went to the room of the victim where they had concealed the dead body in a cupboard after wrapping it in a mattress. They, then, put the dead body in a gunny bag and put that gunny bag at the bus-stand of Kalol Town and cleaned the blood spots in the room as per evidence of these witnesses. Thereafter, witnesses – Raman and Girvat, so also, the accused persons, are alleged to have left Kalol and gone to the respective places. On the other hand, the dead body was found at Kalol bus-stand by the Police.
2.1 A Panchnama was drawn and an FIR for murder was lodged by the Police Officer, Mr.Joshi. The investigation was made. During the course of investigation, it was found that one person was reported missing and, therefore, they made inquiry at the company where Rajesh was working and some employee of the company identified the dead body as to be that of Rajesh. Panchnama of room of Rajesh was made (Exh.40). In that Panchnama, blood stained mattress and gunny bags were found. A dried puddle blood was also found in that room. Spots were found on walls as well. Upon inquiring being made, the Police found that two persons staying in a neighbouring room, were not available and, therefore, after obtaining details, they were summoned by Police. They were witnesses- Raman and Girvat, who on being interrogated by Police, disclosed about the accused persons having made extra judicial confession before them and on that basis, accused persons were summoned from their home town and were arrested.
2.2 It is the case of the prosecution that the shirt discovered from A-1 was found to carry bloodstains; a spade is also recovered from him, which was also found to carry blood, the group of which was that of the deceased. Ultimately, Police found sufficient evidence against the accused and, therefore, filed charge-sheet in the Court of learned JMFC, Kalol, who in turn, committed the case to the Court of Sessions and Sessions Case No.51 of 2005 came to be registered.
2.3 Charge was framed against the accused persons at Exh.4 for offences punishable under Sections 302, 201 both r/w Section 34 of the IPC and Section 135 of the Bombay Police Act against accused. The accused persons pleaded not guilty to the charge and claimed to be tried.
3. The trial Court after examining the witnesses led by the prosecution came to a conclusion that the prosecution was successful in proving the charges punishable under Sections 302 and 201 both r/w Section 34 of the IPC against both the accused and convicted them for the said offences and sentenced as stated herein above; whereas, acquitted them of the charge of offence punishable under Section 135 of the Bombay Police Act. The convicts, therefore, preferred this appeal.
4. We have heard learned Advocate Mr.Brahmbhatt for the appellants and learned APP, Mr.Pandya, for the respondent – State of Gujarat.
4.1 Mr.Brahmbhatt, submitted that here the prosecution case depends on circumstantial evidence including extra judicial confession. Mr.Brahmbhatt, submitted that in such cases, motive is of great importance and in the instant case, no motive is attributed to any of the accused for murdering victim – Rajesh, except a loose allegation of the deceased having intention to administer poison to the accused persons. Mr.Brahmbhatt submitted that the Investigating Agency has not made any investigation in that direction at all and as such, barring stray allegation in an extra judicial confession, there is no material to support that allegation.
4.2 Mr.Brahmbhatt submitted further that the two witnesses – Raman and Girvat before whom the accused persons are alleged to have made extra judicial confession, happened to be co-tenant of A-2 and neighbour of A-1. Barring this, there is no material to show that they enjoyed the relationship and position of confidence with any of the accused. The accused persons had no reason to make such extra judicial confession. Mr.Brahmbhatt submitted further that if the evidence of these two witnesses are seen, they do not inspire any confidence for the reason that they sound to be unnatural, apart from being inconsistent. Mr.Brahmbhatt submitted further that these two witnesses have also left the place of incident simultaneously with the accused and why did they do so, is not explained by them. They have kept silent about the alleged extra judicial confession made by the accused persons. Not only they have not disclosed this aspect before the Police came, but they have kept back this information with them even from family members or relatives. Mr.Brahmbhatt submitted further that no sooner the Police called them, they gave statement before Police in a parrot like manner and as such, no reliance could have been placed on their evidence.
4.3 Mr. Brahmbhatt submitted further that extra judicial confession is a weak piece of evidence and before placing reliance on it, the Court must give such a confession, a closer look and look for some corroboration. In the instant case, there is no corroboration available to the said extra judicial confession. The whole prosecution case hangs on this extra judicial confession which are oral in nature and are without any corroboration and, therefore, the trial Court erred in recording conviction.
4.4 Mr.Brahmbhatt submitted further that witnesses – Raman and Girvat have concocted story and in doing so, have woven certain facts which stand disproved by the evidence of the prosecution itself.
Mr.Brahmbhatt submitted further that as per these witnesses, after making extra judicial confession, the accused persons during the night went to the room of the victim with bucket full of water and on being asked by the witnesses, they said that they washed out the room as the same was full with blood, but if the Panchnama of place of incident is seen, it is clear that there was dried paddle of blood on the ground and there were blood marks on the wall of the said room.
4.5 It, was therefore, urged that the appeal may be allowed and the accused persons may be released from prison recording an acquittal.
5. Learned APP Mr.Pandya has opposed this appeal. He submitted that witnesses – Raman and Girvat got scarred and, therefore, left Kalol and it was only on their appearing before the Police that the actual occurrence was disclosed. They had no reason to falsely implicate the appellants and disclosing the saying of two neighbours or relatives would not have made any difference and, therefore, this fact by itself would not weaken the evidentiary value of the depositions of these witnesses. Mr.Pandya submitted that what is revealed from extra judicial confession is corroborated by medical evidence. The injuries found on the person of the deceased meet with the description of the occurrence as emerging from extra judicial confession. Mr.Pandya submitted further that the conduct of the accused persons is also not worthy. They left Kalol immediately after the incident and appeared before Police only on being summoned and at that point of time, clothes of A-1 were stained with blood. As such, the prosecution case has rightly been accepted by the trial Court and, therefore, the appeal may be dismissed.
6. We have examined the record and proceedings in context of rival submissions.
7. At the outset, it would be appropriate to record that there is no eye-witness to the incident and the prosecution case mainly depends on circumstantial evidence, one of them is extra judicial confession claimed to have been made before witnesses – Raman and Girvat. Oral extra judicial confession, by itself, is a weak piece of evidence and calls for a closer scrutiny, particularly, when that is one of the main circumstances pressed into service by the prosecution.
8. Similarly, in case of circumstantial evidence, motive attains vital importance and has to be established by the prosecution substantially.
9. With this proposition of law, if the evidence led by the prosecution is examined, what emerges is that the prosecution has tried to attribute a motive to the accused of suspecting deceased of administering poison to them or any of them. This suspect emerges from the oral extra judicial confession, claimed to have been made before witnesses – Raman (Exh.115) and Girvat (Exh.114), where they say that the deceased had intended to administer poison and, therefore, they attacked him and caused his death. In this context, it is to be recorded that reason for the deceased to administer poison to the accused, is not coming on record. There is not even a remote hint that the deceased and the accused persons had any dispute or quarrel or had any grievance against each other, then why the deceased would like to administer poison to any of the accused.
9.1 Further, there is no material on record to show as to on what basis the accused suspected that the deceased wanted to administer poison to them and above all, the Investigating Agency has not probed in that direction. Whether the food prepared by the deceased contained poison or not, is not examined at all. Therefore, in absence of deceased having any motive to administer poison to the accused, the accused persons had no reason to suspect him of having such intention and in absence of any further material to show that the accused had some material to suspect this, they had no motive to cause death of the deceased. The attribution of the motive is, therefore, merely an attempted eye-wash by the prosecution. In our view, the prosecution has measurably failed to prove a sustainable motive for the accused to cause death of the deceased.
10. Now, coming to the extra judicial confession made before witnesses – Raman (Exh.115) and Girvat (Exh.114), we find that they have given a detailed description as to who gave blow with which weapon and in what sequence; what happened before the attack on the deceased by the accused is also described and there, there is inconsistency between the two.
11. An extra judicial confession would be made by a culprit not before any one whom he knows. Such confession would be made before a person who enjoys a relationship of confidence and trust and to an extent respect which would prompt a person to make an extra judicial confession. In the instant case, there is no evidence on record to show what was so special about relationship between the accused and the two witnesses, except that they were staying in proximity of each other. If that is a cause, even Rajesh was staying in that proximity and, therefore, in absence of any material to show that the witnesses enjoyed a status of confidence and trust with the accused, this Court will have to be careful before accepting the evidence of witnesses – Raman and Girvat at their face value.
12. Conduct of witnesses – Raman and Girvat also calls for a special remark. These are two witnesses before whom the extra judicial confession is claimed to have been made immediately after the incident and disposal of the dead body. They do not react to the information received by them like an ordinary or common person and they do not disclose any special reason for not reacting like an ordinary person. The natural reaction would be to inform the Police and ask the culprit to surrender to the Police. If that is not done, there has to be some special reason which would show that they enjoyed status of confidence with the accused, but that is lacking and strangely on the next day, the two witnesses left Chhatral without informing anybody and without assigning any reason till they deposed before the Court.
12.1 After coming to the respective places, the witnesses do not disclose to any one about the extra judicial confession made by the accused persons before them. Again, no reasons are shown and when they were called by Police, they approached the Police and disclosed about the extra judicial confession wholeheartedly. This conduct is sought to be explained by learned APP by saying that they were scarred. We are unable to fathom as to they scarred of whom. If they were scarred by Police, they would not have disclosed this to the Police immediately. If they were scarred of accused, the accused had already fled away and if they were scarred by Police, what was the development that emboldened them to make disclosure of that fact before Police immediately on being summoned. In our view, this conduct is so unnatural on part of the witnesses that it weakens their versions and affects its veracity.
13. There is one more aspect which falsifies the versions given by these witnesses. They say that after the confession made by the accused persons, they all slept in one room, where during night the accused persons went out with bucket full of water and when they inquired from the accused about that, the accused persons indicated to them that they had gone to wash of the blood in the room of the victim. This piece of evidence, if viewed, in context of the Panchnama of the room of the accused, which is at Exh.40, it is found that there were blood marks on the wall and there was a puddle of dried blood, apart from bloodstains on mattress and gunny bags. If the accused persons had gone with bucket of water for cleaning the room and had cleaned the room, there would not have been presence of blood in the room. Therefore, that story appears to us to be a concoction.
14. The quality of investigation also needs to be commented upon. Admittedly, two chits were found from the pocket of the dead body, which was found at the bus-stand, containing names and telephone numbers of persons. Who were those persons, why their names and numbers had been written in the chit, which was found from the dead body, is all left to imagination. No probe is made in that direction.
14.1 As recorded earlier, no probe is made in direction of poisoning suspected by the accused persons at the hands of the deceased and lastly, the statement of the landlord in whose house these persons were staying is not even recorded, leaving aside examining him as a witness. He is the person who could have thrown some light on inter se relationship between the accused and the deceased, between the accused and the witnesses and between the deceased and the witnesses.
14.2 Witness – Raman says that he had informed Lalabhai, uncle of A-1 about the incident; whereas, witness – Girvat says that he had informed village people after going to his home town. This aspect does not inspire confidence for the reason that according to Raman, Lalabhai did not believe him and, therefore, no further action is taken and in case of Girvat that he informed village people, nobody has taken any action and none of them is examined as a witness, so also, Lalabhai and, therefore, in our view, this aspect emerging from their depositions is also nothing but concoction.
15. With above fact-situation on record, we are of the view that conviction based on oral extra judicial confession claimed to have been made before witnesses – Raman and Girvat does not inspire any confidence and cannot be accepted. Extra judicial confession, oral in nature, itself is a weak piece of evidence and this extra judicial confession also suffers from various defects which further weakens it. Investigation is not upto the mark and, therefore, also the conviction ought not to have been recorded by the trial Court.
16. In our view, therefore, appeal merits acceptance and is allowed. The judgment and order of conviction and sentence rendered in Sessions Case No.51 of 2005 on 31/03/2006 by the learned Sessions Judge, Gandhinagar is hereby set aside. The appellants are acquitted of all the charges levelled against them and they be discharged from the prison, if not required in any other case. Fine, if paid by the appellants, be refunded to them.
(A L DAVE, J.) (PARESH UPADHYAY, J.) sompura