IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 913 of 1999 And CONFIRMATION CASE NO.1 OF 1999 For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA and Hon'ble MR.JUSTICE R.R.TRIPATHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- TRIKAMBHAI @ TIKO RAVAJIBHAI THAKOR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR DEEPAK M SHAH for appellant Mr.P.G.Desai, learned PUBLIC PROSECUTOR for State of Gujarat -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA and MR.JUSTICE R.R.TRIPATHI Date of decision: 10/05/2000 CAV JUDGEMENT(Per: M.R.Calla,J) 1. The judgment and order of conviction and sentence passed by the learned Addl.Sessions Judge at Nadiad in Sessions Case No.95 of 1999 dated 25.8.99 is the subject matter of challenge in the Criminal Appeal No.913 of 1999 (through jail) at the instance of appellant Trikambhai alias Tiko Ravjibhai Thakor and in confirmation Case No.1 of 1999 the confirmation of death sentence under sub-section (1) of S.366 of Cr.P.P. awarded to the accused appellant, namely, Trikambhai alias Tiko Ravjibhai Thakor is to be considered. 2. The appellant was tried for the offences punishable under Sections 363, 376(2)(F), 451, 302 and 201 of I.P.C. in Sessions Case No.95 of 1999 before the learned Addl. Sessions Judge at Nadiad. The appellant was found to be guilty for the offences punishable under Sections 302, 376(2)(f), 363 and 451 of I.P.C. and was convicted accordingly but was acquitted of the offence punishable under S.201 of I.P.C. After giving the judgment under S.235(1) of Cr.P.C. and after hearing the appellant on the question of sentence under S.235(2) of Cr.P.C. the trial Court passed the following order:- "ORDER Under the provision of Sec.235(2) of Code of Criminal Procedure, and subject to confirmation of Hon'ble Gujarat High Court under Sec.28(2) of the Cri.P.Code, for the offence punishable under S.302 of I.P.C., the accused is hereby awarded the sentence of death, and also ordered to pay fine of Rs.5000/- (Rupees five Thousand Only) in default, two years rigorous imprisonment. For the offence punishable under Sec.376(2)(F) of IPC., the accused is ordered to suffer life imprisonment and also to pay fine of Rs.5000/- (Rupees Five Thousand Only) in default, two years rigorous imprisonment. For the offence punishable under Sec.363 of IPC., the accused is awarded rigorous imprisonment of 7 years and to pay fine of Rs.5000/- (Rupees Five Thousand Only) in default, one year rigorous imprisonment. For the offence punishable under Sec.451 of IPC., the accused is awarded rigorous imprisonment of 2 years, and to pay fine of Rs.2000/- (Rupees Two Thousand Only) in default, six months rigorous imprisonment. Set off against the sentence of imprisonment be given to the accused for the period of detention undergone by him under Sec.428 of Cr.P.Code. All the sentences of imprisonment shall run concurrently. The matter alongwith R & P be immediately referred to the Hon'ble Gujarat High Court for confirmation of sentence of death under Sec.28(2) of Cr.P.Code. The muddamal is ordered to be destroyed after appeal period. Copy of the judgment and the order be given to the accused under Sec.363 of Cr.P.Code." 3. Briefly stated, the case of the prosecution is that on 5.1.99 one Shri Mahijibhai Ambalal Thakor, resident of Indira colony, village Lakkadpura, District Kheda went to the house of one Shri Kalidas Vitthalbhai Thakor with his wife at about 9.30 P.M. to watch T.V.Serial 'Om Namaha Shivaya", leaving their daughters namely, Ramila and Jagruti sleeping at their residence. The house of Shri Kalidas Vitthalbhai Thakor is situated just opposite to the house of said Shri Mahijibhai. At about 10.00 P.M. the youngest daughter, namely, Jagruti cried and, therefore, wife of Mahijibhai returned to her house and came back to the house of Kalidas Vitthalbhai Thakor alongwith Jagruti leaving Ramila alone in the house. When the T.V.Serial was over said Shri Mahijibhai alongwith his wife returned to their house and to their dismay they found that their daughter Ramila, aged 5 years, was not there. A search was made in the nearby area,in other villages Simarda, Rupiyapura, Dantali but Ramila could not be found. On 6.1.99 said Shri Mahijibhai lodged a complaint before Petlad Town Police Station about his missing daughter Ramila. The dead body of Ramila with injuries was then found in the sim of Vaniyavali Nali on 6.1.99 itself. Petlad Town Police Station therefore undertook an inquiry under accidental death case registered at No.2 of 1999. Inquest Panchanama was drawn and the dead body of Ramila, as was recovered, was sent to the Medical Officer, SSG Hospital, Petlad for post mortem. The Panchanama of the scene of the offence was prepared and the statements of certain witnesses were recorded. After the receipt of the post mortem note, it was revealed that the death of Ramila was homicidal death and, therefore, the complaint was lodged by the Police Inspector Shri Madhavsinh Pahadsinh Vasava and the case was accordingly registered for the offences.The statements of some more witnesses were recorded and on 8.1.99 the dog squad was called and dog tracking was made. The dog jumped at the accused appellant standing in a crowd and, therefore, the accused appellant was arrested on 8.1.99. The Panchanama with regard to the places shown by the accused was made, the muddamal pant, shirt, etc. shown by the accused were seized and the muddamal shown by the accused and seized at the time of drawing the panchanama of the scene of offence were sent to the Forensic Science Laboratory at Ahmedabad for examination.The accused was medically examined and the F.S.L. reports were collected alongwith the Map and kept with investigation papers. As it was revealed that the girl was also raped, the charge-sheet was filed accordingly against the accused in the Court of Judicial Magistrate, First Class, Petlad. The learned Judicial Magistrate, First Class, Petlad committed the case to the Court of Sessions where from it was transferred to the Court of Addl. Sessions Judge at Nadiad for trial and disposal according to law. The charges were framed as per Exh.4 dt.12.7.99 for offences punishable under Sections 302,376(2)(F), 363, 451 and 201 I.P.C., the accused pleaded not guilty and demanded trial. 4. The prosecution examined 13 witnesses in all. There is no eye witness but the prosecution sought its case to be proved on the basis of the circumstantial evidence in the form of the accused being last seen with the victim i.e. deceased Ramila, aged 5 years, other witnesses, stating the circumstances against the accused showing his involvement in the commission of the offence including the witnesses, who had associated in the search of Ramila, panch witnesses of scene of offence, panch witness of the panchanama of dog tracking, the police investigation officer, who has referred to inquest report, panchanama of scene of offence, arrest panchanama, dog tracking panchanama, discovery panchanama, report of Radiologist with regard to the age of the accused, F.S.L. reports, map of the scene of the offence, photographs of the dead body of the deceased, the complaint as lodged by Police Inspector Madhavsinh Pahadsinh Vasava, etc. and the two Doctors, who performed the post mortem examination of the dead body of deceased Ramila and also medically examined the accused and gave the certificate. The answers of the accused were recorded under S.313 of Cr.P.C. at Exh.5. Defence of the accused is total denial coupled with the say that he had been falsely involved at the instance of ex Sarpanch Muljibhai. For the purpose of pointed and proper appreciation of the evidence, we may classify the same in the following heads:- (i) Evidence that the accused was last seen with the deceased. (ii) Oral evidence of victim deceased Ramila's father and other witnesses, who were associated in the search of deceased Ramila and those who have disclosed circumstances against the accused appellant. (iii) Evidence of dog tracking. (iv) Expert evidence of two Doctors including the answer given by the accused-appellant to P.W.2 admitting his acts in his own words with regard to the offences. (v) Evidence of investigation officers, discoveries, panchanamas and the F.S.L. reports about the muddamal recovered from the accused and the scene of offence so as to provide corroboration to the circumstances appearing against the appellant. A. First of all we may refer to the evidence of P.W.3 Mahijibhai at Exh.16 (page 105 to 114 of the paper book). This witness, aged 33, is the father of deceased Ramila, engaged in the agricultural labour. He says that he has three children, eldest is son Jayesh aged 7 years, who was at village Rupiyapura on the date of incident, his daughter Ramila was about three and half years at the time of incident and the youngest daughter Jagruti was about 1 year at the time of incident. Deceased Ramila was studying in Balmandir. He states that the incident took place on Fifth January 1999. In the evening, after returning from the work, after taking dinner, he alongwith his wife had gone to his relative Kalidasbhai's house to watch the T.V.Serial 'Om Namaha Shivaya'.The house of Kalidas is only about 15 feet away from his house.When they went to the house of Kalidas to watch the T.V.Serial, daughters Ramila and Jagruti had gone to sleep. After the start of the T.V.Serial, daughter Jagruti cried and thereupon his wife brought her and came back to the house of Kalidas while Ramila was still asleep in the house. At about 10 to 10.15 P.M. the Serial was over and when he went back to his house, Ramila was not found. Even after searching her in the nearby and in the whole colony, Ramila was not found, she was also not found at her Mausal i.e. her mother's place. Ramila was not found for the whole night and,therefore, he gave a photo of Ramila to the Police and stated that Ramila was missing. This information was given at Petlad Police Station. It was also stated by him before the police that in the photograph his daughter was wearing a sweater of blue colour (in Gujarati the word "Bhoora " is used for blue colour). After informing the police he came back to the village and on his return (6.1.99) Muljibhai, a resident of village told him that Ramila had been found. He told him that Ramila's body was lying in Vaniyavali Nali and we have to go there after calling the police. They went to the place where Ramila was lying after the Police came. He was made to stand away. Police made some writings there and the dead body was sent to the Hospital. The Police then recorded his statement and, thereafter, on the next day (7.1.99) after the Hospital procedure was over, the dead body was given to him and the finale of the dead body was done. Thereafter, on the next day (8.1.99) Police recorded his further statement and the Police also came to his village for investigation alongwith the dog. The dog was made to smell place where the dead body was lying and thereafter the dog started moving at different places and at last Trikambhai Ravjibhai (the accused) was caught. Said Trikambhai Ravjibhai was known to him and that he was living about 4 to 5 houses away from his house, that he and Trikambhai had no relations of visiting each other's house,that he had no enmity with the appellant or anyone else. In cross-examination he has stated that he had studied upto IInd standard. There were about 60 houses in Indira colony and all persons belonging to Thakor community are living there. Only two Mohammedans are living there. The house of Kalidas is opposite to his house but his house and the appellant's house are in the same line. Kalidas was his Bhua's son and Ashokbhai Ambalal Thakor was also his Bhua's son, Ambubhai Punjabhai and Champakbhai Gordhanbhai were also his relatives. He says that he had gone to the house of Kalidas on many occasions to watch the T.V. On the date of the incident the Serial had started at 9.30 P.M. and was over at about 10.30 P.M., that at the house of Kalidas he had gone with his wife and, thereafter,his neighbour Ichchaben had also came there. Jagruti had cried after about half an hour of the starting of the Serial and his wife had gone to bring Jagruti. He says that through-out the Serial he was sitting in front and his brother was sitting behind and, therefore, during the period of Serial if any person had gone out or not is not known to him. Since he was watching the T.V. he could not see Kalidas, who was sitting on the bed in the side room. After the T.V.Serial was over he, his wife and brother went to his house and Kalidas remained in his own house. He then states that when he was searching for Ramila, Kalidas had also come and Kalidas had also started searching for Ramila. According to him Kalidas was working as a driver and used to take liquor occasionally. He says that he does not know as to whether there was any police case against Kalidas. That during the period he was watching the T.V. Serial and till the T.V.Serial was over nothing was talked about Ramila in the house of Kalidas. There were no street lights in Indira colony. There was no street light on the way leading to Nali and on the date of incident, it was winter and chill cold. On the next day he and his brother-in-law had gone to the Police station and no one else was there.They had reached the police Station at about 9.30 A.M. He says that they took about half an hour to inform the police. The dog was brought on 8.1.99. He has denied the suggestion that the dog had caught Punambhai Vaghabhai and Chhaganbhai Mangalbhai. He has denied the suggestion that prior to the date of incident appellant used to come to his house. He has agreed to the suggestion that he had come to know about the offence being committed by the appellant because dog had caught the appellant, but he had no personal knowledge. (a). From the statements of this witness it is clear that:- (i) the incident had taken place on the night of 5.1.99 and after the T.V.Serial was over i.e. 10.30 P.M. when he returned to his house Ramila was not found in the house. (ii) While the Serial was going on and till it was over at 10.30 P.M. there was no talk about Ramila and he also does not know as to whether any person had gone out of the house during the period of the Serial or not. (iii) Kalidas had also come for the search of Ramila and had started searching her. (iv) He does not say anything about Kalidas going out after the Serial was over. On the contrary he says that after the Serial was over he came back to his house and that while he came back to his house after the Serial was over Kalidas remained in his own house. (v) He reported to the police at 9.30 A.M. on 6.1.99. (vi) After his return from Police Station, through Muljibhai, a resident of his village, he came to know that dead body of Ramila was lying in the Vaniyavali Nali i.e. on 6.1.99. (vii) That the appellant did not use to come to his house and that the appellant was living about 4 to 5 houses away from his house in the same line. (viii) That Kalidas and Ashokbhai were his Bhua's sons and Ambubhai Punjabhai and Champakbhai Gordhanbhai were his relatives. (ix) That his neighbour Ichchaben had also come to watch the T.V.Serial at the house of Kalidas after he had reached there alongwith his wife. There is nothing to disbelieve this witness and it appears that he has given the correct version of whatever was in his knowledge and there is nothing to disbelieve the version of this witness as given by him right from the time when he went to watch the T.V.Serial on 5.1.99 till 8.1.99 when the dog tracking was conducted by the Police. B. We may now refer to the evidence of P.W.4 Kalidas Vitthalbhai Thakor Exh.19 (Page 117 to 124 of the paper book). He is the person who lives in the same colony i.e. Indira colony of village Lakkadpura opposite to the house of Mahijibhai i.e. father of the deceased and at whose house Mahijibhai and his wife had gone to watch the T.V.Serial 'Om Namaha Shivaya". His age is 40 years and occupation is driving. He has deposed in the examination-in-chief that he was at his house in the evening of 5.1.99 i.e. the date on which the incident took place. On that night Mahijibhai alongwith his wife had come to his house to watch the T.V.Serial 'Om Namaha Shivaya', which started at 9.3.0 P.M. After the T.V.Serial started the younger daughter of Mahijibhai had cried and, therefore, wife of Mahijibhai brought the younger daughter with her and sat in the front . After some time he went to urinate. He says that at that time appellant Trikambhai was standing ahead of Mahijibhai's house with the elder daughter of Mahijibhai, namely, Tapu (Ramila - the deceased). He says that he asked the appellant as to what was he doing and thereupon the appellant replied that since she was crying he was bringing her to her mother. Thereupon he came into his house, but the appellant did not bring Ramila. He also says that thereafter he watched the Serial, Shri Mahijibhai was sitting before the T.V. and he kept sitting behind Mahijibhai. He also says that after the Serial was over he had to go to Ambaji with his taxi and, therefore, he left for Ambaji. On the next day i.e. 6.1.99 he came back from Ambaji at about 8.00 to 8.30 P.M. and by that time Trikambhai i.e. appellant had been arrested with regard to this incident of committing rape by him on the daughter of Mahijibhai. In cross-examination he has stated that he had driving licence since 1982, the Serial had started at 9.30 P.M. and was over at 10.30 P.M., after about 10 minutes of the starting of the Serial, daughter of Mahijibhai had cried and, therefore, his wife went out, came back with her daughter and about 5 to 10 minutes thereafter he had gone to urinate. On his return after urination, he did not inform Mahijibhai that he had seen the appellant outside and Mahijibhai did not know that he had gone to urinate because Shri Mahijibhai was sitting in the front and he was siting at the back. After the T.V.Serial was over all had gone to their respective houses and he had left for Ambaji with the vehicle in their presence. He says that at the time when he left for Ambaji he did not know that Ramila was missing. He has also denied the suggestion that at 10.30 P.M. he knew that Ramila was missing. He has also denied the suggestion that he had associated with Mahijibhai on that night in the search of Ramila. He then says that on the evening of next day when he came back from Ambajii his wife had informed about the incident, which took place with Ramila and on that very evening his wife had informed him that the appellant had committed rape upon Ramila, had bitten her and had killed her. He has denied the suggestion that he was in the habit of drinking alcohol, but had admitted that in past a complaint of committing rape had been filed against him. He has admitted that he knows one Rajubhai of his village who sells liquor. He has also denied the suggestion that on the date of the incident he did not go to Ambaji but had gone for drinks at Rajubhai place. He has also denied the suggestion that the appellant was with him for drinks at Rajubhai's place. He has also denied the suggestion that he had not gone to urinate during the Serial, he has also denied the suggestion that he was giving false evidence because he was related to Mahijibhai. He has pleaded no knowledge in answer to the question as to whether the dog, which was brought by the Police, had pointed towards Punambhai Vaghabhai and Chhaganbhai Mangalbhai or not. (a) If we examine the statements of this witness in the light of the deposition made by P.W.3, namely, Mahijibhai, we find that this witness Kalidas does not find support from P.W.3 on the question that he had left for Ambaji immediately after the T.V.Serial was over and in the presence of the persons,who had come to watch T.V.Serial at his house while the visitors were going back to their houses. This witness is contradicted by the statement of P.W.3 on the question that he did not know about the missing of Ramila and he is also contradicted on the question that he had not made any search on that night for missing Ramila. Besides this, his statement that on the next day i.e. 6.1.99 itself in the evening when he came back from Ambaji, Trikambhai had already been arrested, is factually incorrect, because it is a matter of record that Trikambhai had been arrested on 8.1.99 and till the evening of 6.1.99 it was not even known that the appellant was the person, who had committed the rape upon the daughter of Mahijibhai. Not only this, he has stated in the cross-examination that in the evening of 6.1.99 when he came back from Ambaji his wife had informed that the appellant had raped Ramila, had bitten her and killed her. This part of his statement is factually incorrect. His wife has not been examined and in the facts of this case, there is no material on record on the basis of which it can be said that the appellant had been apprehended by Police or anyone else on 6.1.99 itself and the fact is that the appellant was apprehended only on 8.1.99 after the dog tracking. Thus, his statement on this aspect of the matter does not inspire any confidence. What has come on record is that as per the information given to P.W.3 i.e. Mahijibhai by Muljibhai that the dead body of Ramila had been found lying at Vaniyavali Nali on 6.1.99 and, therefore, till that time i.e. the evening of 6.1.99 it could not be said by anyone that Ramila had been bitten, raped and killed by the appellant. The appellant was connected with the offence only on 8.1.99. (b) Apart from it, the conduct of this witness is wholly unnatural inasmuch as he did not inform the father or mother of Ramila on return after urinating that their daughter was with the appellant outside their house. The father of Ramila and this witness are relatives and if he had seen the appellant with Ramila in the cold night and when the appellant had also told him that he was bringing Ramila to her mother because she was crying, it would have been absolutely natural for him to immediately inform the father or mother of Ramila, who were watching T.V.Serial in his house that the appellant was standing with Ramila outside the house but he did not do so. Not only this, he did not even inform them after the T.V. Serial was over as to why the appellant did not come in his house to hand over Ramila to her mother, more particularly when he himself says that the appellant had told him that he