CR.A/74/1999 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 74 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ========================================================= KANJIBHAI MAVJIBHAI KALSARIA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : NOTICE SERVED for Appellant(s) : 1,MR UTPAL M PANCHAL for Appellant(s) : 1,MR KC PANWALA for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 13th - 16th /08/2007 ORAL JUDGMENT CR.A/74/1999 2/38 JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This appeal is directed against the judgment and order dated 5th December, 1998 passed by the learned Addl. Sessions Judge, Valsad at Navsari in Sessions Case No. 28 of 1994 whereby, the appellant was convicted for the offences punishable u/s. 201, 392 & 302 of the Indian Penal Code, 1860 [for short, “the I.P.C.”]. For conviction u/s. 201 of I.P.C., the appellant was sentenced to undergo Rigorous Imprisonment for a period of Five Years with fine of Rs.2000/- and in default of payment of fine, Rigorous Imprisonment for a further period of Nine Months; while for conviction u/s. 392 of I.P.C., the appellant was sentenced to undergo Rigorous Imprisonment for a period of Five Years with fine of Rs.2000/- and in default of payment of fine, Rigorous Imprisonment for a further period of Nine Months. For conviction u/s. 302 of I.P.C., the appellant was sentenced to undergo imprisonment for Life with fine of Rs.5000/- and in default of payment of fine, Rigorous Imprisonment for a further period of One Year. All the sentences were ordered to run concurrently. The appellant was also given the benefit of set- CR.A/74/1999 3/38 JUDGMENT off. 2.0 The brief facts of the prosecution case are as under; 2.1 The appellant – accused was engaged in the manufacture of wooden boxes and also in the business of trading in diamonds in Valsad. As the appellant suffered huge losses in his business of manufacture of wooden boxes, he started collecting funds from different sources at high rates of interests. Since the family of the co-brother of the appellant was also engaged in the business of trading in diamonds at Navsari, the appellant thought that he would get some financial help from them. Accordingly, some where in the month of October 1993, the appellant requested his co-brother, Himmatbhai Laxmanbhai Kalsaria, to provide him financial assistance to the tune of Rs.50,000/- by way of loan. However, said Himmatbhai declined to provide any such help to the appellant. 2.2 On 18.10.1993, in the evening hours, the appellant CR.A/74/1999 4/38 JUDGMENT visited the house of his co-brother – Himmatbhai, and requested him to lent diamonds on credit from any other trader by paying the necessary amount on condition that he would return the said amount on expiry of a period of three months from the date he lents the said amount. Himmatbhai agreed to the request made by the appellant and informed him to come on the next day morning, i.e. on 19.10.1993. 2.3 Accordingly, on 19.10.1993, at around 0530 hrs., the appellant reached the house of Himmatbhai and, thereafter, both of them proceeded towards Valsad in the Fiat Car bearing Registration No. GTN – 5771 and driven by the appellant. When they reached near Navsari slums Road, Himmatbhai informed the appellant that he could not arrange for the said money and, therefore, he would not be able to lent him diamonds on credit. On hearing the same, the appellant got enraged and he started hurling him abuses. Subsequently, a quarrel took place between them and, in the process, the appellant gave fist blows on different parts of the body of Himmatbhai and also gave a hammer CR.A/74/1999 5/38 JUDGMENT blow on the head of Himmatbhai. As a result of that Himmatbhai became unconscious. Thereafter, he placed Himmatbhai in the rear-seat of the Car and, some time later, when they reached Amalsad, the appellant realized that Himmatbhai has expired. Therefore, he drove the Car towards Sachin, GIDC and threw the dead body of deceased Himmatbhai in a nearby area. 2.4 After cleaning the seats of the Car, the appellant returned to Navsari at around 1130 hrs. and then went to 'Sattapir' market, after parking the Car near 'Gohil' Hospital. In the said market, he made enquiries from some traders as to the whereabouts of Jivanbhai Laxmanbhai Kalsaria, younger brother of deceased Himmatbhai. On enquiry, as the appellant came to know that Jivanbhai had gone to some other place, he went to the house of deceased Himmatbhai by taking lift in a motor-cycle driven by one Arvindbhai Mathurbhai Pandav wherein one Babubhai @ Arvindbhai Manibhai was the pillion rider since both these persons knew the family of deceased Himmatbhai. The appellant got CR.A/74/1999 6/38 JUDGMENT down near the house of deceased Himmatbhai. At around 1345 hrs., the appellant met Jivanbhai and informed him that deceased Himmatbhai has directly proceeded towards Vadodara District from Valsad District by Train and that he is being called their by deceased Himmatbhai. Accordingly, both appellant and Jivanbhai proceeded towards Vadodara District. But, as the Car of the appellant was lying near ' Gohil ' Hospital, both of them reached the said place, by taking lift in a motor-cycle driven by one Rakeshbhai Arvindbhai as the said person was known to Jivanbhai. Thereafter, the appellant and Jivanbhai proceeded towards Vadodara District in the said Car. 2.5 During the course of journey, the appellant, by using fraudulent means, made Jivanbhai consume sleeping pills. Thereafter, he drove his Car in a lonely place near a Village named 'Gandhara' near Shinor and informed Jivanbhai that he had killed Himmatbhai. On hearing this, Jivanbhai got enraged and a scuffle took place between them. In the process, the appellant also killed said Jivanbhai CR.A/74/1999 7/38 JUDGMENT by strangulating him and then threw his dead body in a bush in the said Village. 2.6 Thereafter, on 20.10.1993, at around 1600 hrs., the appellant came to the house of deceased Himmatbhai and informed Bhadraben, wife of deceased Himmatbhai, that as deceased Himmatbhai is required to be operated for the treatment of Kidney stones, both deceased Himmatbhai as well as Jivanbhai have dropped at Vadodara District and that she is also required to go to the Hospital in Nadiad along with whatever diamonds / cash she could collect. Therefore, in the evening hours of 20.10.1993, Bhadraben informed one Dineshbhai Manibhai Patel, PW – 2, business partner of deceased Jivanbhai, to come to her home on the next day morning for taking care of her children as she had to leave for Vadodara at around 1000 hrs. and that deceased Jivanbhai would come back in the evening on that day. She also informed said Dineshbhai Manibhai Patel that since deceased Himmatbhai was to be operated at Nadiad Hospital, she is required to stay along with deceased CR.A/74/1999 8/38 JUDGMENT Himmatbhai. 2.7 On 21.10.1993, some time before 1100 hrs., the appellant and Bhadraben proceeded towards Vadodara in his Car. During the course of journey, the appellant, by employing fraudulent means, made Bhadraben consume sleeping pills and then drove his Car towards Bardoli – Jetpur Road. After parking his Car in a lonely area, the appellant strangulated Bhadraben to death and stole all the valuable that were in the possession of deceased Bhadraben. The appellant then drove his Car to Bardoli – Jetpur Road and threw the dead body of deceased Bhadraben in a lonely place near a sugar-cane field and also threw the X-ray Reports and all other medical case papers of deceased Himmatbhai at the said place. Thereafter, he drove back to his home. 2.8 In the evening hours of 21.10.1993, as none of the deceased persons had returned, said Dineshbhai Manibhai Patel made necessary enquiries from friends and relatives CR.A/74/1999 9/38 JUDGMENT and also made enquiry at the Vadodara residence of the elder brother of both deceased Himmatbhai and Jivanbhai. He also made necessary enquiry at the Urology Hospital at Nadiad. However, no information was received as regards the whereabouts of all the three deceased persons. Therefore, said Dineshbhai Manibhai Patel lodged a complaint before Navsari Town Police Station which was registered as 'Janwajog' Entry No.38 of 1993. Investigation was carried out in the above said 'Janwajog' entry. 2.9 In the meanwhile, on 22.10.1993, a cousin brother of both deceased Himmatbhai and Jivanbhai, one Nandlal Madhabhai Kalsaria, who was also searching for the whereabouts of the deceased persons, came to know that an unclaimed dead body was found in the vicinity of Sachin GIDC and that the same has been kept in New Civil Hospital, Surat. An entry to that effect was made by Sachin Police Station in the Station Register vide Entry No. 36 of 1993. Inquest 'Panchnama' was performed and a 'Panchnama' of the articles found from the dead body was also prepared. CR.A/74/1999 10/38 JUDGMENT 2.10 Later, said Nandlal Madhabhai Kalsaria, along with some other persons, went to New Civil Hospital, Surat for the purpose of identifying the said dead body. On viewing the dead body, they could not identify the same as the body had started decomposing. Therefore, they went to Sachin Police Station, where they were shown the items / articles that were found with the said unclaimed dead body. When they were shown the clothes and the telephone diary etc. found along with the dead body, said Nandlal Madhabhai Kalsaria could identify the same to be that of deceased Himmatbhai. The dead body of deceased Himmatbhai was then sent for post-mortem. After performing post-mortem, the dead body was handed over to his relatives after issuing receipt to that effect. Then, the dead body was brought to Navsari and funeral ceremony was performed on the very same day, i.e. on 22.10.1993, wherein the appellant also remained present. 2.11 On the same day, i.e. on 22.10.1993 an information CR.A/74/1999 11/38 JUDGMENT was received by the police authority of Karjan Police Station that an unclaimed dead body was lying in a locality of 'Gandhara' Village near Shinor. Entry to that effect was made in the Station Register vide Entry No. 33 of 1993. Thereafter, on 23.10.1993, the said dead body was recovered and after performing Inquest 'Panchnama', the same was sent to S.S.G. Hospital, Vadodara for the purpose of carrying out post-mortem. On 25.10.1993, the said dead body was identified to be of deceased Jivanbhai. 2.12 Further investigation was carried out and statements of several witnesses were recorded. During the course of investigation, the police officials received cogent information against the appellant and, therefore, the appellant was arrested on 24.10.1993 at around 1230 hrs.. 2.13 At the time of interrogation, the appellant admitted his guilt and showed his willingness to disclose the places where he had thrown the dead bodies of all the three deceased persons. The P.S.I. of Navsari Town Police Station, in CR.A/74/1999 12/38 JUDGMENT the presence of 'Panchas', prepared primary 'Panchnamas' to that effect. Thereafter, the appellant, Investigating Officer and the 'Panchas' went to the three different places in question in a police vehicle, as per the route / direction shown by the appellant. On visit of all the three places, only the dead body of deceased Bhadraben was found at the said place since the dead bodies of the other two deceased persons, viz. Himmatbhai and Jivanbhai, had already been recovered, initially, as unidentified dead bodies and, were later, handed over to their relatives after they were identified, as stated hereinabove. 2.14 Thereafter, the appellant, Investigating Officer and 'Panchas' went to the place where the appellant had thrown the dead body of deceased Bhadraben in a police vehicle as per the route / direction shown by the appellant. The dead body was identified by Nandlal Madhabhai Kalsaria to be of deceased Bhadraben viz. wife of his cousin brother – deceased Himmatbhai. 'Panchnama' was drawn and 'muddammal' items found from the dead body of the CR.A/74/1999 13/38 JUDGMENT deceased were seized. The appellant also disclosed the place where he had hidden the diamonds and other valuables stolen by him after killing deceased Bhadraben. A 'Panchnama' to that effect was also done. 'Marnottar' form was filled up and 'yaadi' was sent to New Civil Hospital, Surat for the purpose of performing post-mortem. After performing the post-mortem, the dead body was handed over to the relatives of the deceased. 2.15 On the basis of information received from Karjan Police Station, the Investigating Officer of Navsari Town Police Station visited S.S.G., Vadodara where the dead body of deceased Jivanbhai was kept. On that basis, a complaint was filed against the appellant by the P.S.I. of Navsari Town Police Station, which was registered as I – C. R. No. 103 of 1993 for offences punishable u/s. 302, 364, 397 & 204 of the I.P.C.. 2.16 The investigating agency also recorded statements of several witnesses and came to know about the CR.A/74/1999 14/38 JUDGMENT fact that the appellant had suffered huge losses in his business and that he was heavily indebted. In connection with the said fact, statements of several witnesses were also recorded. The 'muddammal' vehicle – Fiat Car was seized and 'muddammal' articles from the said vehicle were also seized. On receipt of the F.S.L. report, PM Note and the medical reports, they were kept in the investigation file. 2.17 On completion of investigation, charge-sheet was filed against the appellant in the Court of learned Judicial Magistrate, First Class, Navsari. As the case was exclusively triable by the Court of Sessions, the learned J.M.F.C., Navsari committed the case to the Sessions Court, Valsad at Navsari which was numbered as Sessions Case No.28 of 1994. The case was then transferred to the Court of learned Addl. Sessions Judge for disposal on merits. On production of the appellant, the learned Addl. Sessions Judge framed the charge and as the appellant pleaded not guilty to the said charge, trial was conducted against the appellant. CR.A/74/1999 15/38 JUDGMENT 3.0 The prosecution has examined in all forty six witnesses viz. PW – 1 Dr. Harshadbhai Balwantrai at Exhibit 23, PW – 2 Dineshbhai Manilal at Exhibit – 24, PW – 3 Hemantbhai Hiralal Maisuriya at Exhibit – 25, PW – 4 Nandlal Madhabhai at Exhibit – 27, PW – 5 Kamlaben Harishbhai at Exhibit – 28, PW – 6 Babubhai @ Arvindbhai Mannilal at Exhibit – 31, PW – 7 Arvindbhai Mathurbhai Pandav at Exhibit – 32, PW – 8 Jayantilal Ramanlal Gandhi at Exhibit – 37, PW – 9 Rakeshbhai Arvindbhai at Exhibit – 38, PW – 10 Vijaybhai Nathalal Kalsaria at Exhibit – 39, PW – 11 Dr. Meghrekha Hasmukhbhai Mehta at Exhibit – 41, PW – 12 Chetanbhai Amrutlal at Exhibit – 49, PW – 13 Shaileshbhai Ranjitsinh Vasiya at Exhibit – 53, PW – 14 Jaswantbhai Motilal Mehta at Exhibit – 56, PW – 15 Rameshbhai Mohandas Patel at Exhibit – 59, PW – 16 Mukeshbhai Manilal Gandhi at Exhibit – 62, PW – 17 Kantibhai Jethabhai Solanki at Exhibit – 69, PW – 18 Dhirajbhai Ranchhodbhai at Exhibit – 72, PW – 19 Dr. Iliaz Isar Mohd. Sheikh at Exhibit – 78, PW – 20 Om Prakash Gautamprasad Tripathi at Exhibit – 79, PW – 21 Nathalal Madhabhai Kalsaria at Exhibit – 91, PW – 22 Dhanjibhai Shamjibhai at Exhibit – 92, CR.A/74/1999 16/38 JUDGMENT PW – 23 Dr. Rakeshbhai Narendranath Tandon at Exhibit – 95, PW – 24 Kaushikbhai Jayantilal Amin at Exhibit – 98, PW – 25 Rohitbhai Fulchand Shah at Exhibit – 99, PW – 26 Dineshbhai Nagindas Kapadia at Exhibit 101, PW – 27 Rameshbhai Chotubhai Bharucha at Exhibit – 102, PW – 28 Thakorbhai Kalidas at Exhbit – 103, PW – 29 Somabhai Shivram Prajapati at Exhibit – 104, PW – 30 Girishbhai Thakorbhai Parmar at Exhibit – 109, PW – 31 Manibhai Atmarram Patel at Exhibit – 111, PW – 32 Jayantibhai Joitaram at Exhibit – 112, PW – 33 Dharamsinh Rudabhai at Exhibit – 113, PW – 34 Jayeshbhai Mohanlal Bhavsar at Exhibit – 115, PW – 35 Shanabhai Dahyabhai at Exhibit – 122, PW – 36 Vasantbhai Ranchhodbhai Patel at Exhibit – 124, PW – 37 Arvindbhai Mangaldas Shah at Exhibit 125, PW – 38 Pravinbhai Mohanlal Shah at Exhibit – 128, PW – 39 Hasumatiben Haribhai Saler at Exhibit – 141, PW – 40 Vinaybhai Harishbhai Shukla at Exhibit – 145, PW – 41 Raijibhai Manabhai at Exhibit – 148, PW – 42 Jasuben Desaibhai Chaudhary at Exhibit – 153, PW – 43 Jaswantbhai Budhabhai Patel at Exhibit – 155, PW – 44 Henry Julius Kin at Exhibit – 158, PW – 45 Dipakbhai Raghunath CR.A/74/1999 17/38 JUDGMENT Chauhan at Exhibit – 168 and PW – 46 Bharatsinh Prabhatsinh Sarvaiya at Exhibit – 181. 3.1 The prosecution has also placed reliance upon several documentary evidences and, more particularly, the evidence in the form of PM Notes, Report of the F.S.L., the 'Panchnamas' of the places from where the dead bodies of deceased were found, the 'muddamal' articles seized from the scene of offences, etc.. 3.2 On submission of the closing ‘purshis’, the further statement of the appellant was recorded u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for the respective parties, the learned Addl. Sessions Judge passed the impugned judgment and order and convicted the appellant for the offences, as narrated in the earlier part of this judgment. Hence, the present appeal. 4.0 Mr. U. M. Panchal learned counsel for the appellant has submitted that the entire case of the CR.A/74/1999 18/38 JUDGMENT prosecution rests upon circumstantial evidence and that the prosecution has not been able to prove the chain of circumstances so as to connect the appellant with the crime in question. He has, therefore, submitted that the appellant is required to be acquitted from the alleged offence by granting him the benefit of doubt. 4.1 Learned Advocate has further submitted that the prosecution has not been able to prove the aspect of “last seen together” and that the evidence to that effect, which is on record of this Court, is not trustworthy and reliable. He has contented that the discovery 'Panchnamas' of the places from where the dead bodies of all the deceased persons were found, have not been properly done and that, in the eyes of law, it cannot be said to be discovery 'Panchnama'. 4.2 Learned Advocate has submitted that so far as the aspect of alleged heavy debts of the appellant is concerned, there is no evidence on record which could lead us to believe that the said fact was the reason behind the CR.A/74/1999 19/38 JUDGMENT commission of the alleged offence in question by the appellant. He has, therefore, submitted that there was no motive behind the commission of the alleged offence. 4.3 Learned Advocate has further contented that even if the Report of the F.S.L. is believed to be true, then also it could not be relied upon for recording conviction, as the same does not connect the appellant with the crime in question in any manner whatsoever. Hence, the impugned judgment and order passed by the Court below deserves to be quashed and set aside and the appellant is required to be acquitted of the alleged offence in question. 4.4 Learned Advocate has further submitted that the appellant is an old-aged person and that he is not keeping good-health. He has, therefore, submitted that if the Court comes to the conclusion that the guilt of the appellant has been proved, then the Court may take a sympathetic view of the matter by reducing the sentence of the appellant to the one already undergone by the appellant and release CR.A/74/1999 20/38 JUDGMENT him from the custody . 5.0 Mr. H. L. Jani learned APP has vehemently objected to the grant of this appeal. He has submitted that there is no dispute to the fact that the entire case of the prosecution rests upon circumstantial evidence. However, the chain of circumstances leading to the guilt of the appellant has been proved beyond doubt. 5.1 Learned APP has submitted that from the evidence on record, it is clearly established that the appellant was lastly seen together with the deceased persons at different places and at different point of time. He has contented that the discovery 'Panchnamas' of the places where the appellant had thrown the dead bodies of the deceased persons clearly connect the appellant with the crime in question. He has submitted that the diamonds and other valuables stolen by the appellant after killing deceased Bhadraben were hidden in a place which was known to the appellant alone and that the same were CR.A/74/1999 21/38 JUDGMENT discovered by way of discovery 'Panchnama' u/s. 27 of the Cr.P.C. at the instance of the appellant himself. These facts clearly go to show that the appellant had committed the crime in question. 5.2 Learned APP has further submitted that there is ample evidence on record which shows that the appellant was heavily indebted and that prior to the incidents in question, the appellant had visited the house of deceased – Himmatbhai requesting to provide him with necessary financial help. Moreover, the conduct of the appellant of stealing cash and other valuables after killing deceased Bhadraben, also shows as to how badly the appellant was in need of money. These facts clearly establish that there was motive behind the commission of the offence in question. 5.3 Learned APP has further submitted that this is a case of cruel murder of three persons belonging to the same family, who are also the nearest relatives of the appellant, which cannot be viewed lightly and, therefore, the request CR.A/74/1999 22/38 JUDGMENT of reducing the sentence awarded by the Court below on humanitarian grounds, should not be considered in view of the principle laid down by the Apex Court in several decisions. In above view of the matter, the appeal deserves to be dismissed. 6.0 We have gone through the oral as well as documentary evidence shown to us by learned counsel for the respective parties as also the impugned judgment and order passed by the Court below. Before proceeding with the matter on merits, it would be relevant to refer to certain facts which are undisputed. Deceased Himmatbhai was the co-brother of the appellant, meaning thereby that the appellant and all the three deceased persons were close relatives. The deceased persons – Himmatbhai, Bhadraben and Jivanbhai were residing together along with their families in “Tulsivan Society” of Navsari Taluka. Both deceased Himmatbhai as well as Jivanbhai were doing business of trading in diamonds and other works related to it. Deceased Himmatbhai was doing his business separately by running his CR.A/74/1999 23/38 JUDGMENT factory of diamonds while deceased Jivanbhai was doing business in partnership with one Dineshbhai Manibhai Patel, PW – 2, by dealing in rough diamonds and also of polishing the same. Dineshbhai Manibhai Patel, PW – 2, was residing along with his family in a Society near to that of the deceased persons. 7.0 From the record, it appears that the appellant was engaged in the business of manufacture of wooden boxes and was also dealing in diamonds at Valsad District. It also appears that the appellant was heavily indebted on account of the huge losses that he had suffered in his business of manufacture of wooden boxes. The said fact is proved from the evidence of PW–24 – Kaushikbhai Jayantilal Amin at Exhibit – 98, PW–27 – Rameshbhai Chotubhai Bharucha at Exhibit – 102, PW–28 – Thakorbhai Kalidas at Exhibit – 103,