JUDGEMENT
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(1.)The appellant herein was a labourer. He is said to have committed a
series of offences involving heinous crimes. He is involved also in a case of
rape and murder of a minor girl Savita. She was sister of Shankar Bhursinh
(complainant). He lodged a First Information Report on 1.07.1998 inter alia
stating that he with a view to earn his livelihood came with his family to
Karamsad town. He was staying in a shed opposite to Tirupati Petrol Pump.
He was sleeping in that shed. He woke up at about 2 a.m. for answering the
call of nature. At that time her sister was sleeping along with other family
members. When he woke up again, he did not find Savita. It was raining on
that night. Searches were made for her. On the next day morning, her dead
body was found lying in the surrounding field belonging to Malabhai and
Kanbhai. Her neck was tied with a frock which was worn by her. She was
found to be dead. The blood was found to have been oozing out from her
private part. The knicker worn by her was also missing. He informed the
police. The appellant was arrested by the investigating officer Mr. R.G.
Patel on 12.08.2002. He purported to have made a confession about
committing rape and murdering Savita. He also allegedly showed the place
of incidence to the investigating officer. He prepared panchnama of the
scene of offence and recorded statement of the concerned witnesses. He
then sent the frock worn by the deceased to Forensic Science Laboratory.
The appellant purported to have made a confessional statement before PW-2
Ambalal.
(2.)Principally relying on or on the basis of said judicial confession made
by the appellant, he was found guilty of commission of offence. The learned
Sessions Judge took into consideration the fact that he has been found guilty
of commission of similar offences as also other offences and, thus, imposed
death penalty on him. The High Court affirmed the said judgment of
conviction and sentence by its judgment dated 2.03.2005.
(3.)The High Court while recording that the confession was found not
only to be true but having been voluntarily made, opined that the same could
be relied upon. At the same time, the High Court proceeded on the basis that
the accused was free to make retraction of his confession when his statement
under Section 313 of the Code of Criminal Procedure was recorded. The
High Court furthermore noticed that oath should not have been administered
to the accused but opined that the same is not of much significance but
proceeded on the basis that the decisions of the Apex Court have often said
that the court cannot solely rely on the retracted confession and make it a
foundation for convicting the accused. But, while purporting to keep the
confessional statement of the appellant aside, it examined the purported
circumstances used against him. We are afraid, nothing has been brought on
record to show existence of any circumstance which would lead to the
conclusion that the appellant alone is guilty of commission of the offence.
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