Gujarat High Court
State Of Gujarat vs Vasantpari Shivpari Goswami on 21 May, 2025
NEUTRAL CITATION
R/CR.A/484/1998 JUDGMENT DATED: 21/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 484 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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Approved for Reporting Yes No
No
==========================================================
STATE OF GUJARAT
Versus
VASANTPARI SHIVPARI GOSWAMI
==========================================================
Appearance:
MR. JIRGA JHAVERI, APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MR. YOGENDRA THAKORE(3975) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
Date : 21/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
[1.] The present appeal is filed at the instance of the State
under Section 378 of the Code of Criminal Procedure, 1973, against
the judgment and order dated 02.04.1998 passed by the learned
Sessions Judge, Jamnagar, in Sessions Case No.74 of 1997. By the said
impugned judgment and order, the learned Sessions Judge has
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recorded acquittal of present respondent-original accused for the
offence alleged under Section 302 of the Indian Penal Code (for short,
“I.P.C.”).
[2.] In a nutshell, the case of the prosecution may be
summarized as under:
[2.1] On 24.02.1997 at around 6:00 hours in the morning, while
the accused was in his house situated in the field of witness Bhagwanji
Mulji Rathod in village-Beraji, Taluka-Jodia, District -Jamnagar and was
milking his cow and his wife was breeding buttock, the accused had
asked his wife to release the calf. The wife responded by saying that
he may do on his own, which resulted into a scuffle between them.
The accused in the moment assaulted with bricks and stones on her
head and because of the stone inflicted on her head, as a result of
which, she fell down and the blood had started oozing out of her head
as being hit by the stone. Thereafter, the accused went inside his
house and came out with three cell battery and bashed his wife
multiple times on her chest and her buttock, thereby causing grievous
injuries, gradually leading to her death.
[2.2] The aforesaid incident was reported by the accused
himself on 25.02.1997 at around 6 o’clock before the Police Sub-
Inspector of Jodia Police Station, Jamnagar. Based on the said
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information given by the respondent-accused, the FIR was registered,
which was signed across with the thumb impression of respondent-
accused. The FIR (Exh.30) came to be registered against the present
respondent- original accused vide I-C.R. No.12 of 1997 for the offence
punishable under Section 302 of the I.P.C. The Investigating Officer
had, thereafter, visited the place of panchnama, whereby the stones,
parts of the bricks, Vasni Khapad, battery, slippers and other things
were recovered. The sample of blood stain as well as controlled
sample of sand was collected from the scene of offence. The arrest
panchnama of the respondent-accused was drawn in presence of two
independent panch witnesses. The shirt of the accused with blood
stain marks was recovered. The statements of the witnesses were
recorded. The respondent-accused was sent for medical examination
as having sustained injuries. The blood sample of the respondent-
accused was also collected. The muddamal recovered during the
course of the investigation was forwarded to the Forensic Science
Laboratory (FSL), Junagdh. The FSL report was received along with
serological report. The respective entries with regard to the course of
investigation being undertaken were maintained by the Investigating
Officer in his station diary. At the end of the investigation, the charge-
sheet was filed against the respondent-accused for the offence
punishable under Section 302 of the I.P.C.
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[3.] Looking to the nature of the offence, the case was
committed to the Court of learned Sessions Judge under Section 209
of the Code. The respondent-accused was produced before the
learned Sessions Judge who had pleaded not guilty.
[3.1] The learned Judge, upon considering the charge-sheet
papers proceeded to frame the charge against the respondent-
accused vide Exh.4 for the offence alleged under Section 302 of the
I.P.C. The charge framed by learned Sessions Judge at Exh.4 reads as
under:
“- : CHARGE :-
I – Mr. C. D. Patel, Sessions Judge, Jamnagar
District, Jamnagar, hereby frame the following charge
against you – the above named accused.
On 24-2-97 at 6.00 hours in the morning, you –
accused Vasantpari were milking the cow and your wife
was giving fodder to the bullock in the field of Bhavanji
Mulji located in the outskirts of Beraja village of Jodiya
taluka of Jamnagar District. At that time, as you – the
accused told your wife to untie the calf for suckling milk,
she told you whether your hands were broken and stated
that you yourself untie the calf and get the calf suckle
the milk. Due to this, scuffle took place between husband
and wife and you inflicted blows of bricks and stones onPage 4 of 17
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the head of your wife. Therefore, she collapsed.
Thereafter, you – the accused took three cell battery
from the house and inflicted indiscriminate blows on her
chest and buttocks causing grievous injuries and thereby
caused death of your wife Prema. Thus, by causing
grievous injuries using bricks, stones and battery, you
committed murder of Prema by causing her death. Thus,
you – the accused committed this act with motive of
causing death or with intention to cause physical injuries
which may possibly lead to death or with the knowledge
that death may possibly be caused due to such kind of
your act. In this way, you have murdered your wife Prema
by causing her death and thereby, you have committed
punishable offense u/s 302 of the Indian Penal Code
within the jurisdiction of this Court.
Hence, it is hereby ordered to hold trial and
adjudicate the case against you for the above mentioned
offenses.
Jamnagar Sd/-
Date:- 6-3-1998 (C. D. Patel)
Sessions Judge
Jamnagar District,
Jamnagar.
[3.2] The trial was, therefore, proceeded to, whereby the
prosecution had produced on record the list giving details about the
number of the witnesses to be examined and various documentary
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evidence to be led by the prosecution. During the course of the trial,
the prosecution has examined in all ten witnesses. The details of
evidences led by prosecution are as under:
ORAL EVIDENCE:
Sr. No. Particulars Exh.
1. Dr. Gulabsingh S. Shekhawat 8
2. Vinodkumar Harjivandas Agrawat 15
3. Bhagwanji Mulji Rathod 16
4. Ramsang Kathadji Parmar 17
5. Bavanji Mulji Rathod 18
6. Shivubha Mulubha Sodha 19
7. Juma Amad Notiyar 20
8. Gandhubhai Raibai 21
9. Bhikhubha Balubha 23
10. V.K. Gadhvi 29DOCUMENTARY EVIDENCE:
Sr. No. Particulars Exh.
1. Yadi sent to the Medical Officer 9
2. Post Mortem Note 11
3. Yadi sent to the Medical Officer, 12
Referral Hospital, Jodia for medical
examination of the respondent-
accused and to issue medical
certificate
4. Medical Certificate issued by the 13
Community Health Centre, Jodia
about medical examination of the
respondent-accused
5. The letter addressed by the 14
Medical Officer Community HealthPage 6 of 17
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Centre, Jodia to the Investigating
Officer along with sealed sample of
the blood collected of respondent-
accused
6. Station Diary entry reporting about 22
the information of the occurrence
of incident
7. Vardhi reported to the Jamnagar 24
Police Control
8. Yadi sent to the Circle Inspector, 25
Jodia to record the panchnama of
scene of offence along with the
map
9. Letter addressed by the Circle 26
Officer, Jodia to the Mamlatdar,
Jodia, submitting the map of the
place of offence drawn on
25.02.1997
10. Copy of map of place of offence 27
11. The panchnama of place of offence 28
12. Copy of the FIR 30
13. Yadi sent to the FSL office along 31
with the Muddamal
14. Yadi sent to the FSL office seeking 32
FSL report
15. Letter sent to the FSL office 33
acknowledging the muddamal sent
for examination
16. FSL report 36
17. Serological Report 37
18. Yadi sent by Police Inspector, Jodia 40
to Jodia Police Station reflected
vide entry no.2 of 1997
(25.02.1997) about the dead body
being traced inside the closed
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[3.3] The prosecution having examined the aforesaid witnesses
and having led the aforesaid documentary evidence, vide Exh.41, had
submitted pursis, whereby few of the witnesses mentioned in the
charge-sheet were dropped by the prosecution and had declared
closure of their evidence stage. Further statement of the respondent-
accused was recorded under Section 313 of the Code. The respondent-
accused had mainly denied the incriminating circumstances pointed
out by the prosecution through the aforesaid evidence. No further
evidences or any witnesses were examined by the respondent-
accused. Upon closure of their evidence stage, the Trial Court had
heard the counsels appearing for the respective parties at length and
after considering their submissions in light of the evidence brought on
record, the Trial Court, by impugned judgment and order, had
acquitted the present respondent-original accused for the offence
alleged under Section 302 of the I.P.C. Hence, the present appeal at
the instance of the State.
[4.] This Court, upon considering the grounds raised in the
appeal and the submissions made by learned APP appearing for the
appellant-State, vide order dated 23.09.1998, had granted leave to
appeal, and had admitted the appeal. The record and proceedings
were called for. The bailable warrant issued upon the respondent-
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accused, is reported to have been duly executed. The respondent is
represented through learned advocate Mr. Yogendra Thakore.
[5.] The matter was notified before the special sitting during
the vacation. We have learned APP Ms. Jirga Jhaveri appearing for the
appellant-State. Noticing the brief findings and reasons assigned by
the learned Sessions Judge, while recording the impugned order of
acquittal, we have proceeded to hear the matter in absence of learned
advocate for the respondent-accused.
[6.] Learned APP Ms. Jirga Jhaveri appearing for the
appellant-State, at the outset, has invited our attention to the findings
and the reasons assigned by the Trial Court while recording the
impugned order of acquittal. She has fairly pointed out that
admittedly the respondent-accused is the original informant, who on
his own has surrendered before the concerned police station by
reporting about the murder of his own wife. She has further pointed
out that pursuant to the aforesaid information being disclosed, the
Investigating Officer visited the place of offence, whereby the dead
body has been discovered, which is identified as the dead body of his
wife. She has further pointed out that the post mortem report of the
deceased was performed, whereby external injuries’ marks were
noticed on the forehead followed by depressed fracture of the frontal
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bone and multiple marks of blunt injuries were also noticed on the
legs from thigh up to marble joint. The internal injuries in the nature
of depressed fracture of frontal bone about the left eye were noticed.
Multiple injuries were also noticed on both buttock as well as breast.
She has further pointed out that in all total six external injuries have
been noticed all throughout her body. By referring to the evidence of
the Doctor, who had conducted post mortem of the deceased and has
been examined by the prosecution as P.W. No.1, learned APP has
submitted that the prosecution has successfully proved that it was a
case of homicidal death. Apart from the aforesaid evidence, learned
APP has fairly pointed out that though the panch witnesses have been
turned hostile, however, the inquest panchnama, the place of the
offence, the arrest panchnama and the recovery of the weapons have
been duly proved through the evidence of the Investigating Officer
(P.W. No.10). She has therefore submitted that the prosecution has
brought on record the corroborative materials to establish the
offence alleged against the respondent-accused.
[6.1] Having referred to the aforesaid evidences, learned APP
has lastly taken us through the findings and the reasons assigned by
the learned Sessions Judge while recording acquittal of the
respondent-accused. She has urged this Court to reverse the order of
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the acquittal and to convict the respondent-accused for the offence
punishable under Section 302 of the I.P.C. and to pass appropriate
order of sentence.
[7.] We have considered the submissions made by learned
APP for the appellant-State and have also closely examined the
evidence brought on record. This is a peculiar case whereby the
accused is the informant of the alleged offence of murder of his wife.
The whole genesis of the case lies in the information received by the
Investigating Officer at the instance of accused himself. The learned
Sessions Judge was, therefore, met with dilemma with regard to the
position of law as regards the admissibility of such FIR which is in the
nature of extra judicial confession to be read as a piece of evidence in
terms of Section 25 of the Evidence Act. The learned Judge has been
apprised about the legal position, more particularly, the law laid down
by the Hon’ble Supreme Court way back in the year -1966 in the case
of Aghnoo Nagesia vs State Of Bihar reported in AIR 1966 SC 119.
It was a case where the appellant was tried for murder. The principle
evidence against him consisted of the First Information Report
contending his full confession of commission of crime. Initially, the
appellant was convicted for the offence punishable under Section 302
of the I.P.C. by the Trial Court. The High Court in appeal upheld the
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order of conviction, and therefore, a Special Leave to Appeal was
preferred before the Hon’ble Supreme Court, thereby questioning as
to whether the whole confessional statement in the First Information
Report was banned by Section 25 of the Evidence Act or only those
portions of it were barred which related to the actual commission of
the crime. The Hon’ble Supreme Court in the facts of the case and in
light of the provisions of the Indian Evidence Act, held that a
confessional statement may consist of several parts, wherein some
part may not actually reveal the commission of the crime, but may also
highlight the motive, the preparation, the provocation, etc. The Court
held that if a statement contains an admission of an offence, not only
that admission that also every other admission of incriminating fact
contain in the statement, is to be treated as part of confession. The
Court was, therefore, of the view that the appellant’s First
Information Report was in the nature of a confessional statement
made before a Police Officer and no part of it could have been
admitted into evidence, in view of the ban provided under Section 25
of the Act, except insofar as the ban lifted by Section 27 and except
insofar as it identified the appellant as a maker of the report.
[8.] Applying the aforesaid principles of law in the facts of the
case, the learned Sessions Judge had formed the opinion that looking
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to the FIR at Exh.30 only a part of the fact that the complaint was
given by the present respondent-accused, can be read as an evidence
and no other part of the complaint can be looked into. The learned
Sessions Judge, keeping in mind the aforesaid principles and the
conclusion drawn, had further considered the case of the prosecution
in light of other evidence brought on record. In the aforesaid exercise
of seeking corroboration, the learned Sessions Judge arrived at a
conclusion that most of the panchas have turned hostile. Though, the
different panchnamas including the panchnama of recovery of clothes
of deceased, the inquest panchnama, Medical Certificate and FSL
Report have been brought on record. However, the prosecution has
failed to establish vital links to arrive at a conclusion that the offence
was committed at the instance of the present respondent-accused. In
absence of any corroborative material being brought on record linking
the involvement of the respondent-accused in commission of the
offence, the learned Sessions Judge had arrived at a conclusion that
the prosecution has failed to prove their case beyond the doubt. The
Trial Court has, therefore, acquitted the present respondent-accused
by giving benefit of doubt.
[9.] We have given our thoughtful consideration to the
aforesaid findings and the reasons assigned by the learned Sessions
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Judge while recording the acquittal of the present respondent-
accused. Admittedly, the information given by the respondent-
accused himself before the Police Officer of the concerned police
station is in the nature of confession of commission of the crime. In
such circumstances, Section 25 of the Evidence Act which deals with
the confession made by an accused, comes into play. Section 25 of the
Evidence Act provides that no confession made to a police officer,
shall be proved against a person accused of an offence. Thus, as held
by the Hon’ble Supreme Court, the terms of Section 25 itself are
imperative and clearly bars such statement to be admissible in
evidence against the accused.
[10.] It is an undisputed fact that the respondent-accused has
given such statement while he had approached to the concerned
Police Station. Appropriate would be to refer Section 26 which
prohibits proof against any person of a confession made by him in the
custody of Police Officer unless it is made in the immediate presence
of a Magistrate. Thus, reading of Section 26, it impose partial ban as
regards the confession made by through a person other than a Police
Officer. Section 27 of the Act is in the form of a proviso which
provides that when any fact is deposed to as discovered in
consequence of information received from a person accused of any
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offence, in the custody of a police-officer, then such information,
whether it amounts to a confession or not, as it relates distinctly to
the fact thereby discovered, is required to be proved. Even otherwise
Section 162 of the Code of Criminal Procedure, forbids the use of any
statement made by any person to a Police Officer in the course of the
investigation for any purpose at inquiry or trial in respect of the
offence under investigation.
[11.] Applying the aforesaid provisions in the facts of the case,
though the present respondent- original accused was not in the police
custody as the arrest panchnama was not drawn at the relevant time,
the respondent-accused had very much appeared before the Police
Officer. The Court was, therefore, barred from taking into
consideration the admissions contained in the confessional statement
of all incriminating facts related to the offence.
[12.] In the peculiar facts of the case, therefore, the burden of
proof to establish every link in the commission of offence lied upon
the prosecution. We have gone through the various panchnamas
produced on record and the respective panchas examined by the
prosecution. As rightly pointed out by learned APP, the panchas of the
respective panchnamas placed on record for consideration have
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turned hostile.
[13.] In such circumstances, we are left to evaluate the
panchnama in light of the evidence of the Investigating Officer. On
close appreciation of the evidence of the Investigating Officer
examined as P.W. No.10, the Investigating Officer had submitted that
he had reached the place of the offence upon information transmitted
by the Control Room. He has also admitted in his cross-examination
that generally the name of the accused would be reflected in the
register of the offence maintained as well as in the inquest
panchnama. No evidence worth has been brought on record by the
prosecution to establish that due process of transmit arrest was
followed with Jamnagar Panchkoshi “A” Division Police Station at the
time of taking over the custody of the respondent-accused. He has
also denied that he has recovered cloths of accused by drawing
panchnama. With such evidence being brought on record, we have
further looked into medical evidence, more particularly, the injuries
mentioned in the post mortem report as against the evidence of the
Doctor. It is true that to some extent, the prosecution has brought on
record the corroborative material in the nature of post mortem
report, which co-relates the nature of injury sustained by the deceased
as alleged to have been inflicted by the respondent-accused in the
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First Information Report. However, on appreciation of the evidence of
the Medical Officer, who is examined as P.W. No.1, the Doctor has
opined that injury nos.1 to 3 were possible in case, if the person falls
down from the stair case and is hit by hard and blunt object. He has
also opined that injury nos.1 to 3 are also possible, in case if the
person falls on pit of stones.
[14.] Having noted the aforesaid evidence of the Medical
Officer, the learned Sessions Judge has recorded the acquittal of the
respondent-original accused. We see no good reason to interfere with
impugned judgment and order of the acquittal. For the foregoing
reasons, the present appeal fails, and is hereby dismissed.
[15.] Bail bond, if any, issued upon the respondent- original
accused, stands cancelled. Record and proceedings, if any, called for,
be sent back to the concerned Court forthwith.
(NISHA M. THAKORE,J)
(UTKARSH THAKORBHAI DESAI, J)
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