BABUBHAI HAJIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The accused as stated earlier went to the Police Station and gave some information which was reduced to writing. This writing consisting of two parts one in respect of the incident alleged to have taken place between the accused and the deceased on the previous day i.e. 8-4-1981 supplying the motive for the present incident which took place on 9-4-1981 and the other with regard to the present incident of 9th involving the accused as an assailant was tendered in evidence when the evidence of the P.S.I. P.W. 8 Arjunsing Rathod Ex. 19 was recorded. The learned trial Judge rightly excluded the portion relating to the incident of 8th and also relating to the present incident. He only admitted a part of the statement in evidence. The learned trial Judge has rightly relying upon the decision of the Supreme Court in A. NAGESIA V. STATE OF BIHAR A.I.R. 1966 S.C. 119 not admitted in evidence the confessional part as well as the incriminating part. The Supreme Court in the above case held that confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement and that no part of the confessional statement is receivable in evidence except to the extent that the ban of sec. 25 is lifted by sec.

(2.) The Supreme Court further observed that the test of severability namely that if a part of the report is properly severable from the strict confessional part then the severable part could be tendered in evidence is misleading and entire confessional statement is hit by sc. 25 and save and except as provided by sec. 27 and save and except the formal part identifying the accused as the maker of the report. no part of it could be tendered in evidence. This Ex. 20 which contains some recitals about the incident which is alleged to have taken place on 8 i.e. on the previous day would furnish motive and therefore it would form part of the confession and therefore. not admissible in evidence as per the above decision of the Supreme Court. The learned trial Judge rightly took this view as observed in his judgment at para. 20. The learned trial Judge held that it was for the prosecution to establish the motive by independent evidence without the aid of any part of Ex. 20. He of course rightly observed that want of proof of motive is not a reason for doubting the evidence of the prosecution witnesses. But the learned trial Judge with respect to him however fell in an error while referring to this statement contained in Ex. 20 about the incident which had allegedly taken place on the previous day. While considering the evidence of P. W. Munasing at para. 32 of his judgment he has referred to the statement contained in Ex. 20 that the deceased had given time of about 2-30 P.M. to the accused to meet him near Bhagwati restaurant. The learned trial Judge again fell into an error while referring to the contents of Ex. 20 at para 36 of his judgment so far as the incident which is alleged to have taken place on the previous day is concerned. He has as stated in the beginning clearly observed that no part of the statement made by the accused except the formal opening portion is admissible in evidence and he rightly admitted only that much portion in evidence by excluding the remaining portion by bracketting the same. But anyway it is clear that only the portion which is admitted in evidence by the learned trial Judge at Ex. 20 can be taken into consideration so far as the information given by the accused in the Police Station is concerned. that information leads us nowhere. That only establishes that the accused went to the Police Station soon after the incident and gave some in formation to the Police Officer. We cannot draw any adverse inference from the fact that the accused soon after the incident went to the Police Station and gave some information. In fact the say of the accused is .that as he saw a dead body lying in the compound he immediately rushed to the Police Station to give information about the same. Just as we cannot take into consideration the contents of Ex. 20 which are inadmissible in evidence we cannot also draw any inference as to what he stated or did not state to the P.S.I. at that time. ... ... ... ... ...

(3.) Before going to the circumstance viz. presence of human blood on the clothes of the accused I would like to mention here that I am conscious of the fact that the trial Court had an opportunity to observe the witness giving evidence before him and hence the appreciation of the evidence of this witness by the learned trial Judge should be given its due weight. In the present case we find that even though the learned trial Judge held that the statement of the accused contained in Ex. 30 as regards the incident which is alleged to have taken place on the previous day is not admissible in evidence he has fallen into an error in referring to the same and in observing that if that portion could be used in evidence as a piece of evidence supplying motive it does supply motive. He has also while appreciating the evidence of Munasing referred to this part of Ex. 20 while observing that the deceased had also given the same time to the accused on the previous day and therefore the evidence of Munasing was dependable. (See para. 32). The learned trial Judge has also at para. 18 of his judgment in fact referred to the contents of Ex. 20 which pertain to the previous incident and which are inadmissible in evidence even as held by the learned trial Judge and expressed his opinion that he had no reason to disbelieve the said part of the statement which furnished motive for the crime.