CR.A/379/1995 of SHANTUBEN W/O DINESH HARIBHAI DAMOR Vs STATE OF GUJARAT on 11 September 1995

1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES

2. To be referred to the Reporter or not ?

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3. Whether their Lordships wish to see the fair copy of the judgment ? NO

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any other order made thereunder ? NO 5. Whether it is to be circulated to the Civil Judge ? NO

Miss Shilpa Shah, learned Advocate for the AppellantMr. D.N Patel, Addl. PP for the Respondent-State.

— CORAM : K.J VAIDYA & K.R VYAS, JJ.

������11-09-1995

ORAL JUDGEMENT (Per : Vaidya, J.)

When this appeal was placed before us for admissionearlier, on hearing the learned advocate Ms. Shilpa Shah, wewere prima facie satisfied that it warranted immediate finalhearing and disposal as the impugned order of conviction andsentence had no substance worth the name to be sustained foreven a minute more to keep female accused unnecessarily in jailany more !! In that view of the matter, we directed the officeto prepare xerox copy of the record and proceedings andthereafter to furnish the same to the respective partiesappearing before us. After this was done, this appeal has beenaccordingly placed for hearing before us.

1.1 Today, after hearing the learned Advocates for theparties, we have admitted this appeal and taken up the same forfinal hearing, with the consent of the learned advocates.

2. This appeal by Bai Shantu, widow of Dinesh HaribhaiDamor from jail is directed against the impugned judgment andorder of conviction and sentence dated 24-12-1995 rendered inSessions Case No. 100 of 1994 passed by the learned AdditionalSessions Judge, Panchmahals at Godhara, wherein on she comingto be tried for the alleged offence punishable under Section302 of the Indian Penal Code, was at the end of trial,convicted for the same and sentenced to undergo imprisonmentfor life and to pay a fine of Rs. 1,000/= and in default toundergo further RI for three months.

3. To briefly narrate the prosecution case, as summed upand reflected in the Charge, Exh-3, Dinesh Haribhai (sincedeceased) was the husband of the present appellant. Theincident in question wherein Dinesh Haribhai was done to deathby Bai Shantuben by Dharia, took place on 30-4-1994 at 14-00hours on a way towards Dudhmal Street at Village Chilakot.According to the prosecution, Dinesh and Bai Shantu on30-4-1994, were going to village Matva. On way, Bai Shantuasked Dinesh why he was not speaking to her. In reply, Dineshsaid "I was talking to you" to which Bai Shantu said, "You arespeaking with mouth but not behaving yourself like a person whois expected to behave with his wife." So saying Bai Shantu gavea Dharia blow on the head, neck and various parts of the bodyof Dinesh. Thereafter, it is the prosecution case that BaiShantu went to Limkheda Police Station and gave a complaintExh-28, which came to be recorded by PW-7 Police Head ConstableChhatrasinh Kalubhai at 9.00 p.m. On the basis of these facts,after the investigation was over, the appellant came to be

chargesheet to stand trial for the alleged offence punishableunder Section 302 of the IPC before the Sessions Court,Panchmahals at Godhara. At the trial, the appellant pleadednot guilty and claimed to be tried. The trial Court, afterduly appreciating the prosecution evidence brought on therecord, convicted Bai Shantu on the basis of two extra judicialconfessions made before Charansinh Deepsinh (PW-2, Exh-20) andHaribhai Kidiyabhai (PW-3, Exh-21) father of the deceasedgiving rise to the present appeal.

4. Miss Shilpa Shah, learned advocate (Appointed) whilechallenging the impugned order of conviction and sentence, hastaken us through the evidence of the prosecution witnesses aswell as the reasons for conviction and sentence. According toMiss Shal, there is no reliable, dependable evidence on thebasis of which even remotely an order of conviction can berecorded. As against this, Mr. D.N Patel, learned APPadopting the very same reasons given by the learned SessionsJudge has supported the impugned order of conviction andsentence.

5. On going through the entire record, it is very clearthat there is no eye-witness to the alleged incident and theentire prosecution case hinges upon the two extra-judicialconfessions given by the accused before Charansinh Deepsinh,who is the Ex-Police Patel and Haribhai Kidiyabhai, who happensto be the father in law of the accused. It is too well-knownto be emphasised that extra-judicial confession standing byitself is the weakest type of evidence and accordingly, inabsence of some independent corroboration forthcoming on recordby way of substantial evidence, to record an order ofconviction thereupon would be simply risky and hazardous.Taking into consideration the overall facts and circumstancesof the case except the aforesaid two extra-judicialconfessions, there is indeed nothing on the record to connectthe accused with the crime alleged against her. At the cost ofrepetition, we may say that since the extra-judicial confessionis the weakest evidence, we refuse to take into considerationthe same, and accordingly, once the same is done, there isnothing on the record on the basis of which the impugned orderof conviction and sentence can be sustained. Further, it isinherently improbable that Bai Shantu, who had only marriedthree days back with the deceased, after committing the murder,would make extra-judicial confessions and that too before thePolice Patel, who was stranger and Haribhai with whom there wasno personal relations as such developed, so as to be ultimatelyarrested, stand trial and get convicted and sentenced to thelife imprisonment !! It is the say of Charansinh that he tookthe accused to Limkheda for the purpose of lodging a complaintbut the Head Constable Chhatrasinh Kalubhai, who recorded thecomplaint, in his evidence has clearly stated that he did not see those two persons (the ex-Police Patel and thefather-in-law) alongwith the deceased. This also raisesserious doubt regarding Bai Shantu making extra-judicialconfessions before the said two persons. Not only that buteven the self-incriminating complaint filed by the accusedbefore the Police would also be hit by the provisions ofSection 25 of the Evidence Act renderint it inadmissible.

6. In this view of the aforesaid discussion, there isindeed no doubt in our mind that the trial Court has committeda serious error in reaching the conclusion that the Bai Shantuhas committed an offence punishable under Section 302 of theIndian Penal Code, and accordingly, the impugned judgment andorder of conviction deserves to be quashed and set aside. Itis simply unfortunate that the learned Sessions Judge wasunaware of the basic principle that the extra-judicialconfession is a weakest type of evidence and in absence of anyindependent corroboration forthcoming on the record no order ofconviction and sentence can be recorded !!

7. In the result, this appeal is allowed. The impugnedjudgment and order of conviction and sentence passed by thetrial Court is hereby quashed and set-aside and the Appellantis ordered to be set at liberty forthwith unless her presenceis so required in connection with any other criminalprosecution.