CR.A/37220/2004 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 372 of 2004 With CRIMINAL APPEAL No. 522 of 2004 With CRIMINAL APPEAL No. 416 of 2004 With CRIMINAL APPEAL No. 1600 of 2004 With CRIMINAL APPEAL No. 475 of 2004 With CRIMINAL APPEAL No. 503 of 2004 with CRIMINAL MISC. APPLICATION NO.15512 OF 2008 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD 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 ? ====================================== DHARMENDRASINGH @ BABLU RAMSWAROOPSINGH YADAV & ORS Versus STATE OF GUJARAT ====================================== CR.A/37220/2004 2/7 JUDGMENT Appearance : Criminal Appeal No.372 of 2004: Mr B.A.Shigroha for the appellant Mr Maulik Nanavati, Additional Public Prosecutor for the State Criminal Appeal Nos.416 & 522 of 2004: Mr Yogesh Lakhani, Senior Advocate with Mr Chetan Raval for the appellants Mr Maulik Nanavati, Additional Public Prosecutor for the State Criminal Appeal No.475 of 2004: Mr J.M. Panchal for the appellant Mr Maulik Nanavati, Additional Public Prosecutor for the State Criminal Appeal Nos.503 & 1600 of 2004: Mr Rajesh M Agrawal for the appellants Mr Maulik Nanavati, Additional Public Prosecutor for the State ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 10/12/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeals have been preferred by the appellants – original accused against the judgment and order dated 12th February 2004 passed by the learned Additional Sessions Judge, Ahmedabad City in Sessions Case No.36 of 1999. By the said judgment, the learned trial Judge has convicted all the accused persons for the offence punishable under Section 302, 120B of the IPC and sentenced them to life imprisonment. CR.A/37220/2004 3/7 JUDGMENT Briefly stated, the case of the prosecution is that all the accused persons entered into a conspiracy to kill Dr Sonia Modi, wife of the complainant. As part of the said conspiracy, accused Nos.4 and 5 attacked the deceased – Dr Sonia Modi at about 8.45 PM while she was returning from her hospital. It is the case of the prosecution that accused No.1 and the husband of the deceased had some property related disputes and that the deceased was proving to be an obstruction. Therefore, a conspiracy was hatched by accused No.1 with the help of other accused persons to eliminate the deceased and as per the said plan the deceased was shot dead, as stated herein above. Heard learned counsel for the parties. By permission of the court, Mr C.L. Soni, learned advocate for the complainant was allowed to appear with the prosecution. It is a case where facts, as narrated before us, show how competent and efficient Gujarat Police is. We are told that the investigation was with one police officer on 13th May 1998. On 16th May 1998 it was handed over to another police officer. Then again, it was again handed over to another police officer on 16th May 1998. It was then handed over to another officer on 6th October 1998. It is this officer, Mr Chudasama, who has created the entire story for the prosecution. On the very day when the investigation was handed over to him, he recorded the statements of two witnesses stating inter-alia that the accused persons have contacted them for contract killing. However, it is pertinent to note that at the trial both these witnesses did not support the prosecution case. At the investigation level, no direct evidence was available. Only circumstantial piece of evidence has been collected and sought to be pressed in service against accused persons. The circumstances relied upon by the prosecution to prove the guilt of the accused are narrated herein-below. CR.A/37220/2004 4/7 JUDGMENT The first circumstance is motive. On perusal of the evidence, we find that motive is not only alleged against these accused persons, who have been convicted, but it is also alleged against other persons in terms of statement of a lawyer, whose statement was recorded by the police. That lawyer, in his police statement, has, inter-alia, stated about a murderous assault on the deceased 3-4 days prior to the incident by some other person. Strangely, as canvassed by the defence, no investigation proceeded on those lines. Even the investigating officer has admitted in his testimony at the trial that he became aware durign the course of investigation about such incident having occurred, but did not pursue investigation in that direction. It is well settled that motive by itself does not prove the guilt of the accused and in a case where the motive is multi dimensional, it has to be treated as a very weak piece of evidence. Without there being strong connecting incriminating circumstances, the motive would thus fall to ground. The only presumption can be that if there is property, the disputes with regard to the property would be there. No big property has been seen to be without any dispute - may it be between the brothers, between the neighbours or by-standers. The property inheres in itself the connotation of being disputed, sometimes, even by the Government. From the evidence it appears that the only incriminating circumstance against accused No.1 is motive. No other circumstance is pressed against him by the prosecution. The allegation against accused No.2 is that he is friend of accused No.1. Except that, no other circumstance is pointed out. If this circumstance by itself is treated as incriminating, then, hazardous situation would occur. The case against accused Nos.3 and 6 is that they were sent to CR.A/37220/2004 5/7 JUDGMENT Indore to purchase a weapon. Merely sending somebody to purchase something cannot be said to be incriminating circumstance more so when there is no evidence brought on record to show whether the said weapon was purchased and used in the commission of crime in question. Except a statement of co-accused, no independent evidence has been led by the prosecution to prove conclusively that accused Nos.3 and 6 had gone to Indore and that they had gone to purchase a weapon, which subsequently was used in the present crime. Then comes the circumstances against accused Nos.4 and 5 who are said to be riders on a scooter. Accused No.4 was driving and accused No.5 was a pillion rider and it is stated that accused No.5 fired and killed the deceased. That accused No.5 fired from his fire-arm at the deceased comes out in the police statement of accused. This aspect has not been supported or corroborated by any independent evidence. We are afraid, the statements of the accused cannot be used as evidence to convict a person at the trial, more so when that is the only piece of evidence against the said person. The statements in the interrogation of the accused, as far as criminal jurisprudence of this country goes, are of next to no value. The Evidence Act clearly makes it clear that any statement made by the accused in presence of or to the police is of no evidentiary value. Though it has been argued on behalf of the State that the said statement would be relevant in terms of Seciton 10 of the Indian Evidence Act, being the statement of co-conspirator, we are of the considered opinion that this circumstance by itself does not lead the prosecution anywhere, much less in the direction of establishing the guilt of the accused. As far as accused No.4 is concered, two incriminating circumstances have been pressed into service by the prosecution – (i) CR.A/37220/2004 6/7 JUDGMENT recovery of tamancha used in the commission of crime at the instance of accused, and (ii) recovery of personal dairy from acucsed No.4. The evidence of ballistic expert on the point whether the bullet that caused death of the deceased was fired from recovered tamancha is not conclusive. Though strenuous efforts have been made on behalf of the prosecution to connect the weapon with the crime, we are not convinced. As far as diary is concerned, it is stated to contain the name and number of accused No.2 and also some writing, which according to the prosecution is the detail of the transaction and exchange of money for commission of the present crime. The prosecution has relied upon the opinion of the handwriting expert to establish that the writing is of the accused person. However, mere recovery of a diary containing certain details about accused persons by itself does not point unerringly towards the guilt of the accused person. No other circumstances were relied upon by the prosecution at the time of trial to entail conviction of the accused persons. If there is no other circumstance, we are at a loss as to how a conviction can be recorded when there is no incriminating evidence. The trial Court has taken pains to elaborately discuss the aforesaid circumstances, which do not take us anywhere and we are constrained to observe that the trial Court has committed error in convicting the accused persons. Under these circumstances, the conviction of all the accused – appellants cannot be upheld. The appeals are accordingly allowed. The conviction recorded by the learned Sessions Judge by his judgment and order dated 12th February 2004 rendered in Sessions Case No.36 of 1999 is set aside. Accused No.1 – Ashokkumar Prabhudas Modi and Accused CR.A/37220/2004 7/7 JUDGMENT No.4 – Dharmendrasinh @ Babloo Ramswarupsinh Yadav are stated to be in jail. They are directed to be released forthwith if not required in any other case. Fine paid, if any, by either of the accused is ordered to be refunded back to them. The other accused are on bail. Their bail bonds stand cancelled. Appeals are accordingly allowed. In view of the disposal of the main appeal itself, Criminal Misc. Application No.15572 of 2008 filed for bail does not survive and the same is disposed of accordingly. (Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd