IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 779 of 2007 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== GITABEN MAGANBHAI RATHWA Versus STATE OF GUJARAT ========================================== =============== Appearance :
MR GAJENDRA P BAGHEL for Appellant.
MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for respondent.
========================================== =============== Date : 13/07/2012
CAV JUDGMENT
(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of a convict under section 302 of the Indian Penal Code and is directed against an order dated 23rd April 2007 passed by the learned Additional Sessions Judge, 5th Fast Track Court, Godhra, District Panchmahal, in Sessions Case No. 260 of 2005 by which the learned trial Judge convicted the appellant herein for offences punishable under section 302 of the Indian Penal Code and sentenced her to imprisonment of life and imposed fine of Rs.10,000/-; in default of payment of fine, the court passed an order for further imprisonment for one more year. The days passed by the appellant as under-trail prisoner were directed to be given set off.
2. Being dissatisfied, the accused has come up with the present appeal.
3. The following charge was framed against the accused by the learned trial Judge.
“Last year before the festival of Holi, the marriage of you, the accused Mrs. Gitaben, had been taken place with the deceased Mr. Maganbhai Mansukhbhai and he was your husband. Thereafter, you both were residing together as husband and wife but your deceased husband was not keeping marital relations with you and was frequently arguing with you and beating you by telling that why you eloped with Ghanchi of Godhra. During the festival of Divasa, both you and your husband went to your father's house at village Vankanar as a guest and stayed there. At that time, father of the accused brought poisonous drug for using in corn crop. You, the accused, took some poisonous substance there from and on 11.08.05 at about 18.00 hours or during that time, had mixed the said poisonous drug in flour of corn while making Rotla and gave the same to the deceased Maganbhai to eat and after consuming the same the problem of vomiting developed to him and he died on 12.8.2005 at Civil Hospital, Godhra during the treatment.
Thus, you the accused, in spite of knowing that by giving the poisonous drug your husband would die, with intention to kill your husband Maganbhai Manubhai, on 11.08.05 at about 18.00 hours at village Galibili, you mixed the said poisonous drug in flour of corn while making Rotla and gave the same to the deceased Maganbhai to eat and he died during treatment and thereby you, the accused, has committed an offence punishable under section 302 of I.P.C. ”
4. The accused denied the charge and claimed to be tried.
5. At the time of hearing, the prosecution produced the following 10 prosecution witnesses in support of the prosecution case:
6. The following pieces of documentary evidence were also adduced by the prosecution.
7. The summary of the evidence adduced against the accused was put to the accused under section 313 of the Criminal Procedure Code and additional statement of the accused was also recorded under the said provision. The accused denied all the evidence adduced by the prosecution and clarified in her additional statement that she was innocent and a false case was filed against her by her in-laws.
8. Ultimately, the learned trial Judge, on consideration of the evidence on record, came to the conclusion that the prosecution had proved that the unnatural death of Maganbhai was a result of deliberate murder and the accused brought poisonous drug which is used in corn crops from her father's house and knowing well that on giving the said drug in meal her husband would die, with intention to kill her husband, she mixed the said drug in the flour of the corn while making 'Rotla' for her husband on 11th August 2005 at 18.00 hours and she killed her husband by giving the said Rotla to her husband to eat.
9. It appears from the order of conviction that the learned trial Judge, in arriving at the conclusion that the accused was guilty, solely relied upon the confessional statement of the accused under section 164 of the Criminal Procedure Code and the fact that poison was discovered by the accused in the presence of witnesses and such fact, has been recorded by panchanama, which has been proved.
10. In the present case, apart from the aforesaid two pieces of evidence, there is no other evidence indicating that the accused had brought the poison from her father's house and mixed the same in the Rotla.
11. The learned counsel appearing on behalf of the appellant strenuously contended before us that the learned trial Judge erred in law in convicting the appellant solely on the basis of statement under section 164 of the Criminal Procedure Code. He submitted that within 24 hours of the arrest, the accused was produced before the learned Magistrate for recording statement under section 164 of the Criminal Procedure Code. Learned advocate for the appellant contended that solely on the basis of such confessional statement, a conviction cannot be upheld. The learned advocate for the appellant further contends that in this case, discovery of poison has not been proved by the witness of the panchanama and thus, the learned trial Judge erred in law in holding that there was actual discovery of the poison at the instance of the accused person. It is further contended that in the Post Mortem report, there is no indication of any piece of Rotla in the stomach of the deceased although the case of the prosecution was that poison was mixed in the flour for preparing the Rotla and the said Rotla was given to the deceased. It is further contended that the members of the in-laws of the accused could not sufficiently explain why, by giving undertaking, they brought back the dead-body of the deceased from the hospital without undergoing Post Mortem examination. It is also pointed out that in the first complaint lodged before the police in the morning of the next day of the incident, there was no allegation of murder against the accused, and only in the second complaint lodged by the father-in-law in the evening of that day, for the first time, the allegation was made that it was the accused who committed murder and that such fact had been disclosed by her before other persons by way of extra-judicial confession. The learned advocate for the appellant further submits that those witnesses, in whose presence the extra-judicial confession was allegedly made, have not been examined by the prosecution, and in such circumstances, it is unfair on the part of the learned trial Judge to convict the accused simply on the basis of confessional statement.
12. Mr. Raval, the learned Additional Public Prosecutor appearing on behalf of the prosecution, however, supported the reasons assigned by the learned trial Judge.
13. We, therefore, propose to consider whether on the basis of the evidence on record, the learned trial Judge was justified in holding that the prosecution has proved beyond reasonable doubt that the appellant was guilty of committing murder by mixing poison in the flour of corn for making Rotla and gave the Rotla so prepared by her to the deceased.
14. The law relating to reliance upon confession is now well settled. In the case of Shankaria vs State of Rajasthan reported in AIR 1978 SC 1248, a three-judge-bench of the Supreme Court laid down the tests which are required to be applied by a court before convicting a person on the basis of confession. We may profitably rely upon the following observations:
“It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded under S. 164. Cr.
P. C. the Court must apply a double test :-
(1) Whether the confession was perfectly voluntary?
(2) If so, whether it is true and trust-worthy?
Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in S. 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test it satisfied, the Court must before acting upon the confession, reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. Even, so, one broad method which may be useful in most cases for evaluating a confession may be indicated. The court should carefully examine the confession and compare it with the rest of evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test.”
14.1 Bearing in mind, the aforesaid principles, we now propose to consider whether in the facts of the present case, the learned Sessions court was justified in convicting the appellant on the basis of confession.
15. Let us, therefore, first consider whether the procedure provided in section 164 of the Code of Criminal Procedure has been complied with before recording the confession of the accused person.
15.1 PW.9, Ambrish Laljibhai Vyas, is the Judicial Magistrate, First Class, who recorded the confession of the accused. The said witness has stated that on 13th August 2005 on the basis of a written application of Mr. Panchal, PSI, Rajgadh Police Station requesting him to obtain statement of the accused, he called Gitaben and explained to her whether she wanted to state something in connection with the case, and whether she knew that the witness was a Judicial Officer. At that time, the accused told him that she knew that the said witness is a Judicial Officer. She also told him that she wanted to tell the fact about mixing of poison in the Rotla. After hearing that, the PW.9 told her that before making any statement, she should think about the same because the same could be used as evidence against her. Thereafter, PW.9 sent back the accused to Godhra jail to think over the same with a direction to appear before him on 16th August 2005.
15.2 It appears that on 16th August 2005, the accused was again produced before the concerned Magistrate and after complying with the required formalities under section 164 of the Code of Criminal Procedure, her confession was recorded.
15.3 In the cross-examination, PW.9 has stated that as per production report being Exh. 31, the accused had been detained on 12th August 2005 at 2230 hours and she was in police custody. In the application, there was no endorsement of the production of the accused at 3.30 PM. He has further admitted that along with the application, Exh.26, no case diary, statement of the accused or any other statements were enclosed, when he had passed order on the application below Exh. 26. He has further admitted that on 13th August 2005, after production of the accused before him, she had been kept in judicial custody to think over the statement of confession.
15.4 After going through the evidence of PW.9 and after going through the records of the case, we do not find any substantial non- compliance with the provisions contained in section 164 of the Code of Criminal Procedure.
16. The next question is, even if the formalities required under section 164 of the Code of Criminal Procedure have been complied with, whether the statement recorded is found to be true and trustworthy.
16.1 In her statement under section 164 of the Code of Criminal Procedure, the accused has made the following statement [correct English translation is quoted below]:
“I have studied upto 5th standard and I can understand everything. On last Diwasa I had gone to Santrod for doing labour work. Earlier, I eloped with Mobin Gora of Godhra and stayed with him for three days. My brother Mukesh brought me back from Santrod. My grandfather Dedhiya Bhura had arranged my re-marriage with Mansukh Rathwa before last festival of Holi. Since my re-marriage, I was staying with Magan along with my in-laws. But I and Magan maintained a separate kitchen and were preparing food separately from my in-laws. Magan used to beat me sometimes and used to quarrel with me by telling that I had eloped with a Muslim person. He did not maintain physical relation with me. There was quarrel between me and Magan. Therefore on the day of Divasa, my father came to take me back home and I and Magan went to Vanakbori. On Wednesday we came back to Galibili. From my father's house, I brought poisonous drug which is used in Corn Crops without knowledge of my father or anyone else. I brought the poisonous substance without anybody's knowledge. I kept the said drug in my bag at Galibili. Magan gave me kick blows, and after two days, I had prepared 'Rotla' from corn flour. When I was making the Rotla, Magan was not present. At the time of preparing 'Rotla', I took out the poisonous drug from the bag and had mixed half of the poisonous drug in corn flour. I retained half of the poisonous drug. I had prepared two 'Rotla' and the poison was mixed in both the Rotla. At the time of evening meal, Magan had taken one 'Rotla' to eat. I sat on bed, when Magan was eating Rotla. I was watching Magan, when he was eating Rotla. I ate rice which was prepared in morning and I ate the rice earlier. Magan started vomiting at about 12 O'Clock in the night. All the persons of house woke up. Thereafter all of them had taken Magan to the Civil Hospital at Godhra. Thereafter Magan died in the hospital at at 6 O'clock. Thereafter, my in-laws and I brought the dead body of Magan to Galibili. My father-in-law also lodged a compliaint before the police. My husband Magan used to beat me and was not keeping any relations with me. Therefore, I had taken the step to use the poisonous drug. I do not want to say anything further. I want to say only these facts and nothing further.”
16.2 From the aforesaid confessional statement made by the accused, it appears that she brought the poisonous drug from her father's house, which was used for corn crops. On the date of the incident, she had prepared Rotla of corn flour for meal. Her husband was not present at the time of preparation of the Rotla. While preparing Rotla, she had mixed some portion of the poisonous drug in the flour and kept back some drug. She had prepared two Rotlas and mixed the drug in both the Rotlas. At the time of evening meal, Magan had taken one Rotla to eat. She sat on the bed and watched Magan eating the Rotla. Magan started vomiting at about 12 O'clock in the night. He was taken to hospital and died in the hospital at 6 O'clock in the next morning.
16.3 It appears from the post mortem report of the deceased that the stomach of the deceased was empty and gastric juice in low quantity was present.
16.4 PW.1, Dr. Harshadkumar Khemabhai Rathod, who performed the post mortem admitted in his cross-examination that if a person who consumed poison dies, the remains of semi-digested food and undigested food may be found in small intestine due to collapse of body system. He has further admitted that no food remains or digested or undigested remains of corn Rotla was found in the stomach of the deceased.
16.5 From the above evidence of the Doctor, it is clear that no food article was found in the stomach of the deceased.
16.6 On 12th August 2005 at about 4.45 to 5.40 in the afternoon, panchnama was recorded of the recovery of poisonous Rotla and the poison separately kept. PW.5 is one of the witnesses to such panchnama. In the cross-examination, the said witness has admitted that he had put his signature in an already prepared statement and that he did not read the panchnama. He has further admitted in cross-examination that the things which were seized before him were not sealed before him. He has further stated that he did not put any signature on the sealed materials. He has further stated that the father-in-law of the accused is also a farmer and he is farming paddy, corn etc. This witness has further admitted that he did not know what was written in the panchnama and he did not know when the writing of the panchnama started and when it was completed. In the last line of his cross-examination he has further stated that he put his signature on asking by the police and except that he did not know anything.
16.7 After such cross-examination, the prosecution did not re- examine this witness PW.5 any further.
17. PW.6, Fatabhai Vajabhai Baria is one of the witnesses of the other panchnama by which the recovery of poison was made from the father's house of the accused at the dictation of the accused. It appears that in the cross-examination, the said witness stated that at the time of sealing the drug, his signature was obtained in one slip. However, on looking at muddamal article No.7, he has stated that the slip affixed on the same did not contain his signature. He has further admitted that on the slip, his and other panch witness's signature were obtained and the same was affixed but the muddamal article shown to him did not contain signature of Jayantibhai. He has further stated that the police made the panchnama as per their wish and the police had asked him to make signature in the panchnama of the drug and therefore he signed. He has further stated that the panchnama was not written as stated by him and he put his signature in the panchnama on being asked to do so.
17.1 Therefore, it is apparent that the sealed article, containing poison recovered from the father's house of the accused, was not the one which was seized as muddamal article No.7.
18. Apart from the aforesaid fact, we find that the father-in- law of the accused was also a farmer and he has lands where paddy, corn, cotton etc. were grown. It has come in the evidence of the father-in-law of the accused that on the day of the incident, he and the deceased were working in the field and the deceased worked in the field with empty stomach. We are unable to accept the contention of the learned advocate for the prosecution that as it appears from the evidence of PW.5, no drug was used as pesticide in the farm of an agriculturist. Thus, the fact that on the day of the incident, the accused worked in the agricultural farm with empty stomach, and spraying of pesticides in the farm of the father-in-law of the accused also cannot be ruled out. We have already pointed out that in the post mortem note, no food has been found in the stomach of the deceased.
19. It further appears from the above evidence that it is an admitted case of the father-in-law of the accused that he and the deceased had dinner together in the night of the incident. If that be so, there was no reason why only one Rotla was recovered and that too was the poisonous one. If only two Rotlas were prepared mixed with poison, a question would arise, how those two Rotlas were identified and not taken by any other person than the deceased. We have already pointed out that the seal on the seized article was not made in the presence of the panch witness and that very Rotla was the one seized has not been proved.
20. We also cannot lose sight of the fact that when the deceased had fallen sick, the accused also accompanied him in the hospital along with the other members of her in-law's family. It was the members of her in-law's family who insisted that the dead-body should be released without post mortem and they gave consent whereas the accused did not give such consent as would appear from the consent-letter marked Exh. 35.
21. Moreover, in the first complaint that was lodged before the police, there was no allegation against anybody. Only in the second complaint lodged by the father-in-law of the accused, it was stated that the accused made an extra-judicial confession before some person that she killed the deceased by mixing poison with the Rotla but curiously enough, those persons before whom such extra-judicial confession was made have not been examined by the prosecution.
22. From the above materials on record, we are of the view that although the formalities required under section 164 of the the Code of Criminal Procedure were complied with, the fact that the accused was making correct statement in the confession has not been proved. We cannot lose sight of the fact that the accused later on retracted the confession. It is well-settled law that in order to convict a person simply on the basis of confession, the Court must be satisfied that what was stated in the confession is borne out by other evidence on record; otherwise, a person can take the guilt upon himself to save his nearest or dearest one, who is the real culprit.
23. In the judicial confession it was stated that the accused had dispute with her husband as she had earlier eloped with a boy of a different religion and stayed with him for three days and for this reason, her husband used to beat her and did not maintain physical relations with her. According to the accused, on the last Divasa festival on being invited by her father, she and her husband went to her father's house and thereafter came back, and at the time of coming back, she had brought the poisonous drug from her father's house which was used in corn crops without the knowledge of her father. She further stated that she mixed a part of such poison in the Rotla prepared by her and gave one of such Rotlas to her husband.
23.1 Curiously enough, the prosecution has failed to substantiate such a case of eloping with a Muslim boy of Ghanchi community. On the contrary, PW.4, the father-in-law of the accused, in his evidence stated that the accused and his son never quarreled with each other and their conjugal life was normal and happy. He further stated that the first wife of his son used to harass his son as there was no formal divorce and for this reason, his son was totally frustrated. The cousin brother of the deceased, viz. PW.2, has stated that the deceased did not take any food prepared by anybody as he was a follower of a religious sect and a lot of harassment was caused in view of the fact that his first wife was residing near their house, and there was no formal divorce.
23.2 It appears from FIR, Exh. 12, that a totally different case was made out therein that as there was some additional expenditure incurred on the accused by the deceased in the last Divasa festival, there was altercation between the husband and wife and for that reason, poison was given by the wife.
23.3 In our opinion, it is very difficult to accept the contention that a newly wedded wife, whose marriage has been solemnized only about four months ago, would kill her husband on the ground that the husband quarreled with her for spending some amount on Divasa festival.
23.4 We, therefore, find that the prosecution failed to prove the motive of murder stated by the accused in her statement under section 164 of the Code of Criminal Procedure which has not been substantiated and at the same time, no allegation of expenditure on Divisa ceremony has been stated in the said confessional statement.
24. On consideration of the entire materials on record, we, thus, find that learned trial Judge committed substantial error of law in solely relying upon the confession of the accused with regard to mixing of poison in the Rotla when recovery of the Rotla or the poison has not been proved by the panch witnesses. The medical evidence also does not indicate presence of any digested or undigested food articles in the stomach of the deceased. On the other hand, as per the medical evidence, the stomach of the deceased was empty.
25. We, therefore, set aside the order of conviction and sentence recorded by the learned trial Judge against the appellant vide order dated 23rd April 2007 passed by the learned Additional Sessions Judge, 5th Fast Track Court, Godhra, District Panchmahal, in Sessions Case No. 260 of 2005. The appellant is acquitted of the charges levelled against her. The appellant is ordered to be set at liberty forthwith, if not required in any other criminal case. Fine, if paid, be refunded to the accused.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.]