Decided on July 22,1983

STATE Respondents


A.S.QURESHI - (1.) This is an appeal filed by the original accused in Sessions Case No. 24 of 1979 against the Judgment and Order passed on 26/10/1979 by the learned Sessions Judge Junagadh sentencing the accused for an offence punishable under section 304 Part I of the Indian Penal Code and awarding simple imprisonment for a period of three years.
(2.) The Prosecution story was that the accused had committed murder of his wife on 20/08/1978 between 12-00 mid-night and 5 a. m. in his house. The landlord of the house in which the accused was residing is said to have informed Bhikhubhai Rambhai P. W. 2 (Exhibit 7) about the incident. This witness Bhikubhai is said to be the village Pasayata (errend boy). According to him there was no Police Patel appointed for the village and that on receiving the information regarding the alleged offence and that to Visavadar and reported the incident in the Police station. This witness has stated that when he asked the accused who was sitting in a corner of this room as to whether he had killed his wife the accused gave no answer. When the witness asked the second question as to what was the cause of committing murder the accused is alleged to have replied that she was quarreling. This statement of the accused is of confessional nature in the context and therefore it would amount to extra judicial confession which will require corroboration for the purpose of basing conviction on such a confession. Mr. M.A. Trivedi the learned additional Public Prosecutor has not been able to point out any evidence which could be regarded as corroboration to this extra Judicial confession. Mr. Trivedi has eventually suggested that the alleged discovery of axe by this accused having blood stains. Which the blood has been certified by the Serologist as human blood should be regarded as a circumstance which could serve as corroboratioa. This argument of the learned Additional Public Prosecutor is not sustainable because even the alleged discovery of the axe is also not free from doubt in view of the fact that there is nothing on record to show that the accused had shown his willigness to discover the said axe. In this state of evidence on the record of this case it is not possible to rely on the extra judicial confession for the purpose of basing conviction thereon. The learned Sessions Judge has not adverted his mind to this aspect of the matter at all. In fact the learned Judge has taken it as substantive evidence of its own which he considers sufficient to rely upon for the purpose of basing conviction thereon. In view of what is stated above the learned Sessions Judge was not justified in taking this extra judicial confession as an independent substantive evidence.
(3.) The prosecution has also examined Babubhai Bhurabhai P. W. 3 (Exhibit 9) who is the landlord of the premises in which the accused had come to reside only 3 or 4 days before the date of the incident. We has not supported the prosecution story and has been declared hostile. Therefore his evidence also does not help the prosecution. The next important witness examined by the prosecution is Ravji Nanjibhai P. W. 7 (Exhibit 15). He was called as a Panch. In his deposition he has stated that the accused was sitting there and when he was asked where are the weapons the accused is reported to have said that they are lying at home Thereafter according to this witness the accused led the Police and the Panchas to his residence and discovered the axe which is the Muddamal Article No. 6 certified by the Serologist as containing blood. This witness does not say that the accused stated that he had concealed the muddamal axe and that he was willing to discover the same In the absence of such a statement by the accused it is not sufficient for the prosecution to show that the accused discovered the axe. The accused may have knowledge of the weapons concealed by some one else at a particular place and he may discover it but unless there is reliable evidence that the accused had concealed the same weapon it would not be linked with the alleged offence. Hence the evidence of this witness also does not help the prosecution. Therefore it has to be discarded for the purpose of connecting the accused with the alleged offence.;

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