CC/6/2005 1/48 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL CONFIRMATION CASE No. 6 of 2005 With CRIMINAL APPEAL No. 2121 of 2005 With CRIMINAL APPEAL No. 1988 of 2005 With CRIMINAL APPEAL No. 140 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 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 ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus PRAHLAD GYANESHWAR BHOIRE - Respondent(s) ========================================================= Appearance : 1. CRIMINAL CONFIRMATION CASE No.6 of 2005 MR SUNIT S SHAH, PUBLIC PROSECUTOR for Appellant(s) : 1, MR BS SUPEHIA for Respondent(s) : 1, 2. CRIMINAL APPEAL No. 2121 of 2005 MR DP KINARIWALA for Appellant(s) : 1 MR SUNIT S SHAH, PUBLIC PROSECUTOR for Respondent(s) : 1 CC/6/2005 2/48 JUDGMENT 3. CRIMINAL APPEAL No. 1988 of 2005 MR BS SUPEHIA for Appellant(s) : 1 MR SUNIT S SHAH, PUBLIC PROSECUTOR for Respondent(s) : 1 4. CRIMINAL APPEAL No. 140 of 2006 MR BS SUPEHIA for Appellant(s) : 1 MR SUNIT S SHAH, PUBLIC PROSECUTOR for Respondent(s) : 1 ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 12/03/2007 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) On 19th January, 2004, at about 1515 hours, four persons entered Bungalow No.21/B of Amrakunj Society, located in Ghoddod area of Surat under the pretext of checking/repairing the gas pipeline. At that time, there were two ladies in the house, i.e. Kanvita Dilipbhai Desai and Shobhana Dilipbhai Desai, who were daughter and mother, respectively. After some show of checking the pipeline, the four persons entered the house and caught hold of the two ladies and asked them to give key of the almirah and also robbed them of ornaments. When the process was on, Gunjan, son of Shobhanaben and brother of Kanvita, arrived at the house. As the main door was closed, he took a circuitous route and came to kitchen door opening in the compound. He was pulled into the CC/6/2005 3/48 JUDGMENT house by one of the four intruders and then he was assaulted upon. He was caused 12 serious injuries on vital parts of the body. Because of the injuries caused to him, he fell down. Two of the persons pushed the ladies into the bathroom, gagged their mouth and told them not to raise any alarm. They intimidated them by putting knife on their necks. Around the timewhen Gunjan arrived, the mobile phone, which was hung around the neck of one of the intruders, had rung. 1.1 In the meantime, Dilipbhai Desai, husband of Shobhana and father of Kanvita and Gunjan came home in his car along with his elder son, Swapnil. They also knocked the front door and then came towards the kitchen door opening in the compound. The intruders, initially dipped below the sill, then suddenly opened the door and pulled the duo into the house. Resistance was offered by both of them and more by Swapnil. He raised alarm. Both of them were assaulted upon by the intruders and three injuries were caused to Dilipbhai, one of which proved to be fatal. Several injuries were also caused to Swapnil, but because of the alarm raised by him, people rushed to the place and the intruders started escaping. They were chased by the neighbours and one of them, namely, Mahesh Gadhwali, came to be apprehended after a little chase. Police was informed and a First Information Report was lodged by Kanvita. On the basis of her F. I. R., offence CC/6/2005 4/48 JUDGMENT was registered and investigation made. In the midnight hours, on that very day, at about 0030 hours of 20th January, 2004, one Mahesh Babubhai Bhosle came to be arrested from a Guest House and, thereafter, accused- Prahlad Bhoire was arrested on 20th January, 2004 at 2200 hours. They were interrogated and, on information received by the police, accused No.3 - Jayesh Ambalal Patel was arrested on 22nd January, 2004, at 0305 hours. In the meantime, Mahesh Gadhwali tried to escape from the custody by snatching service revolver of Police Officer and, in that attempt, he got encountered. 1.2 The investigation was carried out, Panchnamas were drawn, postmortem was got performed, test identification parade was conducted and, ultimately, the police found that apart from accused - Mahesh Bhosle, Prahlad Bhoire, Jayesh Patel and Mahesh Gadhwali, one Vikram alias Vicky was also involved in the incident, who was absconding and, therefore, charge sheet came to be filed in the Court of learned Chief Judicial Magistrate, Surat, for the offences of dacoity, murder, conspiracy, etc. Since the offences were triable exclusively by a Court of Sessions, the case was committed to the Sessions Court, Surat and came to be registered as Sessions Case No.49 of 2004. The case was transferred to Fast Track Court No.12. CC/6/2005 5/48 JUDGMENT 1.3 In the charge sheet, Vikram alias Vicky was shown as absconding accused and Mahesh Gadhwali was shown as expired accused and, thus, Mahesh Babulal Bhosle, Prahlad Bhoire and Jayesh Ambalal Patel were the three accused arraigned before the Court to face the trial. Charge was framed against the accused persons at Exhibit 4. All the three accused persons pleaded not guilty to the charge and came to be tried. Considering the evidence led by the prosecution, the Sessions Court came to a conclusion that the charges were proved against all the accused persons, i.e. Mahesh Babulal Bhosle, Prahlad Bhoire and Jayesh Ambalal Patel, and recorded conviction against them and passed the sentence as under:- Mahesh Babulal Bhosle 1. R.I. for 5 years and fine of Rs.1,000/-, in default, S.I. for 2 months for the offence punishable under Section 395 of I.P.C. 2. Life Imprisonment and fine of Rs.500/-, in default, S.I. for 1 month for the offence punishable under Section 396 of I.P.C. 3. Imprisonment for 7 years for the offence punishable under Section 397 of I.P.C. 4. R.I. for 5 years and fine of Rs.500/-, in default, S.I. for 1 month for the offence punishable under Section 450 of I.P.C. 5. R.I. for 6 months for the offence punishable under Section 120(B) of I.P.C. Prahlad Bhoire CC/6/2005 6/48 JUDGMENT 1. R.I. for 5 years and fine of Rs.1,000/-, in default, S.I. for 2 months for the offence punishable under Section 395 of I.P.C. 2. Death Sentence subject to confirmation from High Court of Gujarat for the offence punishable under Section 396 of I.P.C. 3. R.I. for 5 years and fine of Rs.500/-, in default, S.I. for 1 month for the offence punishable under Section 450 of I.P.C. 4. Sentence for 6 months for the offence punishable under Section 120(B) of I.P.C. Jayesh Ambalal Patel 1. R.I. for 5 years and fine of Rs.1,000/-, in default, S.I. for 2 months for the offence punishable under Section 395 of I.P.C. 2. R.I. for 5 years and fine of Rs.500/-, in default, S.I. for 1 month for the offence punishable under Section 396 of I.P.C. 3. R.I. for 6 months for the offence punishable under Section 120(B) of I.P.C. 1.4 Since accused No.2 - Prahlad Bhoire is awarded capital punishment, the question of confirmation of the said order has to be considered by this Court and was, therefore, accordingly, referred to this Court and Criminal Confirmation Case No.6 of 2005 came to be registered. 1.5 Against the conviction, all the three accused CC/6/2005 7/48 JUDGMENT preferred appeals. Accused No.1 - Mahesh Babulal Bhosle preferred Criminal Appeal No.140 of 2006, accused No.2 - Prahlad Bhoire preferred Criminal Appeal No.1988 of 2005 and Accused No.3 - Jayesh Ambalal Patel preferred Criminal Appeal No.2121 of 2005. Since all the three appeals and the Confirmation Case arise out of the same judgment and order, they are all heard together and are disposed of by this common judgment. For sake of convenience, the appellants are referred to in this judgment by their original status of accused. 2. Since the Confirmation Case would be dependent on the decision in appeal by accused No.2 - Prahlad Bhoire, we propose to deal with the appeals first. 3. Accused No.1 - Mahesh Babulal Bhosle and accused No.2 - Prahlad Bhoire are represented by learned Advocate, Mr. Supehia, in their respective appeals, whereas accused No.3 - Jayesh Ambalal Patel is represented by learned Advocate, Mr. Kinariwala. The State is represented by learned Public Prosecutor, Mr. Sunit S. Shah. 4. Learned Advocate, Mr. Supehia, submitted that even if the prosecution case is taken at face value, only four persons had entered into the house. Accused No.3 - Jayesh Ambalal was not even in the vicinity of the CC/6/2005 8/48 JUDGMENT bungalow, but was, allegedly, standing on the corner of the society to keep a watch and, therefore, his active participation in the incident at the place is not even alleged. Mr. Supehia submitted that the evidence indicates that no physical role is played by accused No.3 - Jayesh. That would leave behind only four persons who, even as per the prosecution case, who had trespassed into the house. This would take the case out of the sweep of definition of dacoity. 4.1 Mr. Supehia submitted that even as per the prosecution case, the conspiracy and/or common intention was that of committing robbery/dacoity and not murder. Therefore, the act of murder cannot be considered as an act in pursuance of either conspiracy or common intention. 4.2 Mr. Supehia submitted further that the evidence of eye-witnesses, Kanvita, Shobhana and Swapnil is inconsistent with each other and does not inspire confidence. The manner and sequence in which the incident occurred, as alleged by them, is inconsistent. 4.3 Mr. Supehia submitted that though four knives are brought before the Court, only two knives are alleged to contain blood marks. The other two were not even sent to F.S.L. for examination. CC/6/2005 9/48 JUDGMENT 4.4 It is also contended that evidence of Swapnil, Shobhanaben and Kanvita does not corroborate each other nor do the circumstances corroborate the case of the prosecution. 4.5 The evidence in respect of presence of accused No.3 is sought to be established through oral evidence of two Limbachiya brothers, who run a Hair Dressing Saloon near the society. Through evidence of Anand Sovni, an Officer from Reliance Info. Limited, it is sought to be proved that accused No.3 contacted absconding accused Vicky through mobile phone while accused no.3 was present in the shop or near the shop around the time when the incident occurred, though it was not his usual practice. Accused No.3 was formerly staying in the society, but had left the society about three years back and was not used to coming to the Saloon or even in the area and the statements of telephone service provider, namely, Reliance, proved through witness - Anand Sovni, only establishes that a telephone subscribed in the name of accused No.3 was used for contacting absconding accused - Vicky on the date of the incident in the proximity of time of incident. It is the case of the prosecution that accused no.3 rang up absconding accused - Vicky when first he saw Gunjan going to the house and then Dilip and his son Swapnil, going to the house. Correspondingly, CC/6/2005 10/48 JUDGMENT the ringing of telephone was heard by Shobhanaben at the time of occurrence. Mr. Supehia submitted that the Limbachiya brothers do not speak of accused No.3 having used any telephone while he was with them and the statement of telephone user details tendered by the service provider does not indicate that two calls were made from the telephone subscribed in the name of accused No.3 to the telephone subscribed in the name of absconding accused - Vicky. There is nothing on record to show that these two phones were respectively with accused No.3 and absconding accused - Vicky. The prosecution has failed to establish these relevant circumstances. 4.6 Likewise, as per the prosecution case, the accused persons had stayed at Rupali Guest House, but there is no material to show that, on the day of the incident or on the day previous thereto, any of the accused had stayed there. The evidence produced from Rupali Guest House was that the accused had come to the Guest House on 6th January, 2004. 4.7 Mr. Supehia submitted that if the evidence is seen, possibility of deceased accused - Mahesh and absconding accused - Vicky having committed murder of deceased - Dilip and Gunjan cannot be ruled out. He submitted that there were four intruders. Only two of CC/6/2005 11/48 JUDGMENT them had knives and who was the person who had the knife or who used the knife is not properly established. There is lack of evidence to show as to who caused the fatal injury. Mr. Supehia submitted that, as there was no intention of committing murder, even as per the prosecution case, there is no question of fixing any vicarious or constructive liability on the other accused persons. 4.8 Mr. Supehia submitted that the discovery of knives is also doubtful and not properly established. The Panch witnesses have not supported the discovery. Panchnama has not been drawn, as envisaged under Section 27 of the Evidence Act. 4.9 The evidence on discovery of two knives (Muddamal Article 50) is conflicting. As per the Panchnama, the knives were discovered from beneath a steel almirah in the parking lot of the apartment by accused No.3 whereas, as per prosecution witness No.7 - Ramubhai Bachubhai Katara, it was he who discovered the knives from beneath a steel almirah and handed over to the police. 4.10 It was contended that the investigation is not properly carried out in an independent and unbiased manner. There is no material to show how Mahesh Gadhwali CC/6/2005 12/48 JUDGMENT came to be encountered. The blood samples of Swapnil and Shobhana were not taken although both of them claimed to have sustained injury. Muddamal Article 50 (two knives) have not been sent to F. S. L. for inspection and investigation. Accused No.1 had sustained injury on his hand during the incident, but he has not been sent for medical check-up and/or treatment. 4.11 Mr. Supehia submitted that there is no evidence to show that any of the accused had stayed in Rupali Guest House on the relevant date. He submitted further that Panch witnesses have not supported some of the Panchnamas and, therefore, they may not be believed although the Investigating officer has deposed before the Court in respect of those Panchnamas. According to Mr. Supehia, reliance can be placed on Investigating Officer's deposition provided he is found to be of high integrity and efficiency, which is not the case here, as can be seen from the lapses made by the Investigating Officer, as narrated above. Mr. Supehia, therefore, submitted that the conviction is not well founded and may be set aside. 4.12 Alternatively, Mr. Supehia submitted that, even if the Court finds that conviction of accused No.2 is well founded, the sentence awarded by the Trial Court is disproportionate to the offence. The case cannot be CC/6/2005 13/48 JUDGMENT considered as a rarest of rare cases calling for capital punishment. Mr. Supehia submitted that the Trial Court erred in ordering the sentences awarded to accused No.1 and accused No.2 for different offences to run consecutively and not concurrently and, therefore also, the Court may entertain the appeals and dismiss the Confirmation Case. 5. Learned Advocate, Mr. Kinariwala, represents accused No.3 in Criminal Appeal No.2121 of 2005. He submitted that the case against original accused no.3, at the best, is that he supplied information to rest of the accused and at the time of the incident, kept watch while remaining outside the society. Mr. Kinariwala submitted that if evidence of p.w.3 – Dineshsinh Manglusinh Thakor, who happens to be a watchman, is seen, he does not claim to have noticed or seen accused no.3 standing near the corner or junction of the society. 5.1 Mr. Kinariwala submitted that there is no direct evidence or even indirect evidence to show that accused no.3 gave any information to any of the other accused persons. So far as keeping of watch at the time of the incident is concerned, the watchman has not seen the accused no.3. The prosecution has tried to prove presence of accused no.3 near the society by examining two witnesses namely, Sanjay Limbachiya and Rakesh CC/6/2005 14/48 JUDGMENT Limbachiya who run their hair-cutting Saloon near the society. According to them, they knew accused no.3 because accused no.3 was formerly staying in this very society but had shifted to some other place about 4-5 years back. He came to their shop after a long lapse of time and had a shave and thereafter, waited either near the shop or in the shop and had a cup of tea and a cigarette and on hearing the hubbub, had left. Mr. Kinariwala submitted that a man who is keeping a watch would not go to a shop and have a shave because in such an eventuality, his attention would be diverted. That apart, Mr. Kinariwala submitted that the evidence of these two witnesses is inconsistent with each other. Whether accused no.3 was coming there off and on or he went to their shop after a long time is a matter of controversy between the two. Likewise, whether he took tea and cigarette while sitting in the shop or outside the shop is also not consistently disclosed by these witnesses. The two witnesses, if at all they are consistent, are consistent on one aspect that neither of them noticed accused no.3 using his mobile phone. Mr. Kinariwala submitted that the prosecution's attempt is to prove that accused no.3, with the help of his mobile phone, rang up Vikram @ Vicky - the absconding accused on two occasions, (1) when he noticed Gunjan going home and (2) when he noticed Swapnil's father Dilip going home and this aspect is reflected from deposition of Shobhanaben CC/6/2005 15/48 JUDGMENT who speaks about ringing of telephone of Vicky on two occasions. Mr. Kinariwala submitted that if accused no.3 was under the surveillance of Limbachiya brothers and if neither of them speak about accused no.3 having used his mobile phone during the time of the incident, then merely because Shobhanaben heard telephone of Vicky ring, would not establish a link between accused no.3 and Vicky or any of the accused. It could be anybody else calling Vicky. 5.2 Mr. Kinariwala submitted further that the two statements produced by the prosecution which are obtained from the Mobile Phone Service Provider relating to the telephone of accused no.3 and absconding accused - Vikram @ Vicky show that these two persons were subscribers to the mobile phone. Mr. Kinariwala submitted that there is not an iota of evidence to show that, in fact, accused no.3 was the subscriber to the telephone and the possibility of somebody else having subscribed to this telephone under the name of accused no.3 can be ruled out. Mr. Kinariwala also submitted that there is no evidence to show that accused no.3 was in possession of the telephone at the relevant time. He submitted that there is no evidence whatsoever in respect of absconding accused - Vikram @ Vicky being subscriber to the telephone. Even his identity is also not properly fixed or established. CC/6/2005 16/48 JUDGMENT 5.3 Mr. Kinariwala submitted that even if the two statements (Exhs.91 and 92) are taken at face value, they indicate that a number of calls have been made from the telephone subscribed in the name of accused no.3 to the telephone number subscribed by Vikram. A close look at the statements would also indicate that none of the calls made from the telephone of accused no.3 was during the period during which the incident is alleged to have occurred. He also submitted that assuming that there may be some difference in timings of the watches, then also there are no two phone calls made from the telephone subscribed in the name of accused no.3 to the telephone subscribed in the name of Vikram within a span of 20-25 minutes which outer limit of time span between two calls can be reasonably fixed while accepting the prosecution evidence at face value. Therefore also, the evidence in form of the two statements cannot be considered as sufficient or reliable to establish nexus between accused no.3 and rest of the accused or to show involvement of accused no.3 in the incident, even remotely. Mr. Kinariwala, therefore, submitted that the Trial Curt erred in holding accused no.3 guilty for the offences and convicting and sentencing him. Therefore, the appeal may be allowed. 6. Learned Public Prosecutor Mr. Sunit Shah has CC/6/2005 17/48 JUDGMENT opposed the appeals. He submitted that taking the case of accused no.3 first, his conduct is indicative of his involvement. Mr. Shah submitted that it has come in evidence of Limbachiya brothers that the appellant was formerly staying in the society. He, therefore, had friends, acquaintances and associates in the society and he, therefore, had opportunity of knowing and ascertaining the daily routine of the victim family. As regards the conduct of accused no.3 at the time of incident, Mr. Shah submitted that although he was not visiting the place for quite some time, oddly; he came to the hair-cutting shop at an odd hour for a shave and remained there under the pretext of having tea and cigarette till there was a hubbub. Mr. Shah submitted that if accused no.3 had stayed in the society for a long time and had friends and acquaintances in the society, his normal conduct on hearing such a hubbub would be to enquire as to what has happened by going to the society. Instead, he goes away. This conduct is unnatural on his part. 6.1 Learned Public Prosecutor Mr. Shah submitted that so far as rest of the accused are concerned, it is true that one of the accused (Mahesh Gadhwali) died in an encounter. It is equally true that Vikram @ Vicky is absconding but according to Mr. Shah, this would not affect the prosecution case in any manner because the CC/6/2005 18/48 JUDGMENT prosecution case has consistently been that five persons were involved and presence of all five at the time of incident is established by the prosecution through evidence of eye-witnesses and Limbachiya brothers. According to Mr. Shah, it would be a case of dacoity and, therefore, the liability of all of them would be joint and several. 6.2 Mr. Shah submitted that it may be that the group may not have hatched a conspiracy for murder and/or they may not have a common intention of causing murder when they went to the house for commission of the crime but common intention may creep in at any moment and that can be seen from the conduct of the accused at the time of the incident. Mr. Shah submitted that it has come in evidence that all four intruders jointly attacked Gunjan. The injuries found on the person of Gunjan is a self- speaking evidence. There are as many as 12 injuries found on his person. Mr. Shah submitted that Muddamal articles no.33 and 13 both contained bloodstains. Muddamal article no.33 which was discovered by Mahesh Bhosle (accused no.1) contained blood of 'A' and 'B' group. These blood groups are of Dilip and the accused no.1 himself. Muddamal article no.13 which is found from the place contained blood of the group of 'A' and 'O' which is of both the deceased. It is indicated by learned Public Prosecutor that clothes of accused no.2 CC/6/2005 19/48 JUDGMENT contained blood of the groups of both the deceased. If an overall picture is taken,