IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 451 of 1989 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and MR.JUSTICE M.H.KADRI ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? -------------------------------------------------------------- PUNABHAI H PARMAR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR PM VYAS for appellant. MR MA BUKHARI,A.P.P. for Respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE M.H.KADRI Date of decision: 16/12/96 ORAL JUDGEMENT: (Panchal,J.):- By means of filing this appeal under section 374(2) of the Code of Criminal Procedure, 1973 the appellant has questioned validity of judgment and order dated June 30, 1989, rendered by the learned Sessions Judge, Sabarkantha at Himatnagar,in Sessions Case no. 2/89 convicting him under sections 302 & 201 of the Indian Penal Code and sentencing him to R.I. for life under section 302 I.P.C. as well as R.I.for 3 years and fine of Rs.200/- i/d. S.I. for six months under section 201 I.P.C. It may be mentioned that substantive sentences are ordered to run concurrently. 2. Chandrakant T.Tikotkar, who was then Station Master of Talod Railway Station, was on duty at Railway Station from 6.00 a.m. to 2.30 p.m. on November 11,1988. At about 8.00 a.m. one Point Man named Devpuri Shambhupuri approached Tikotkar and informed that a corpse was lying near the Home-Signal. On receiving the information, Station Master asked another Point Man named Mangalsingh to accompany Devpuri and verify the fact. After verification,Mangalsingh informed Mr.Tikotkar that in fact, a corpse was lying near the Home-Signal. Station Master, therefore, went to the place where corpse was lying. He found that corpose was of Dinesh Joshi and vultures were nibbling the dead body. The Station Master asked one gang-man named Ranabhai to keep watch over corpse and returned to the station, from-where he flashed a message to Talod Police Station. At Talod Police Station, Jujarsinh Hamirsinh Rathod received the message which was reduced into writing and entered into police station diary. November 10,1988 was a New Year day according to Hindu calendar and people were moving from place to place to greet relatives and friends. Deceased Dinesh Nanalal Joshi was 4th amongst six brothers. His native place was village Mahiyal, which is situated at a distance of 10 minutes walk from Talod Railway Station. Name of his elder brother is Krishnkant Nanalal Joshi. Son of Krishnakant i.e. Anil is working in Yewla Beedi Factory situated at Talod and was commuting daily between village Mahiyal and Talod. When Anil was going to the place of work, he found several persons gathered near Home-Signal of Talod Railway Station and went there out of curiosity. He immediately recognised that the deceased was his uncle. He, therefore, rushed back to village Mahiyal and informed his father i.e Krishnakant that his uncle was lying dead near Home-Signal. On receiving information from his son, Krishnakant went to the place where dead body was lying, but found that police had not reached the place. He, therefore, went to Talod Police Station to lodge a complaint. When he reached police station, the message received from Station Master Tikotkar was being noted in the station diary. The complaint given by Krishnakant Joshi was also recorded. P.S.I. Mr. Karanjiya of Talod Police Station went to the spot and held inquest on the dead body. Thereafter the dead body was sent to Civil Hospital. Himatnagar for autopsy. The investigating officer also prepared panchnama of place of occurrence and recorded statements of witnesses who were found to be conversant with the facts of the case. Initially,the case was registered as an accidental death. After preliminery investigation, papers of investigation were forwarded to Ahmedabad Railway Police Station, as offence had taken place within the limits of Talod Railway Station. P.S.I. Mr.Chaudhary of Western Railway Police Force was entrusted with the investigation. He recorded statements of witnesses and also received information that a eunuch named Kalli was having relations with the appellant. By the time, medical officer, Himatnagar Civil Hospital indicated the cause of death of the deceased to P.S.I. Mr. Chaudhary. On the basis of autopsy report,which indicated that deceased died a homicidal death, P.S.I. Mr. Chaudhary lodged complaint at Railway Police Station, Ahmedabad under section 302 I.P.C. The investigation was taken over by Police Inspector Bhimsinh Gulabsinh Khant of Railway Police Station, Ahmedabad and offence of murder was registered at Railway Police Station vide C.R.No.389/88. P.I.Mr.Khant came to Talod, visited the site of offence and recorded statements of other witnesses. On November 17,1988, the appellant was arrested and interrogated by the investigating officer. Pursuant to the information provided by the appellant, a rubble was discovered and panchnama under section 27 of the Indian Evidence Act was prepared. During the course of investigation it was revealed that the appellant was residing with eunuch Kalli. Therefore, house of eunuch Kalli was also searched, which resulted into recovery of mud stained godadi(a thin quilt), langot (a piece of cloth being worn around loins) etc. and those articles were attached under a panchnama. Incriminating articles were sent to Forensic Science Laboratory for analysis. 3. After receipt of report from Forensic Science Laboratory and on completion of investigation,the appellant was chargesheeted under sections 302, 201 of I.P.C. in the court of leaned Judicial Magistrate, First Class,Prantij. As the offences are exclusively triable by Court of Sessions, the case was committed to Sessions Court for trial and it was numbered as Sessions Case no.2/89. The learned Sessions Judge framed charge at exh.3 against the appellant under sections 302 & 201 of I.P.C. The charge was read over and explained to the appellant,who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined (1) Chandrakant T.Tikotkar, PW.1, exh.18, (2) Devpuri Shambhupuri, PW.2, exh.9, (3) Krishnakant Nanalal Joshi, PW.3, exh.10, (4) Rampalsinh Kamalsinh Chaudhary, PW.4,exh.11, (5) Shankerji Kodarji, PW.5,exh.12, (6) Kanti @ Kalavati Mathurbhai, PW.6, exh.13, (7) Dali Keshavlal, PW.7, exh.14, (8) Pratapsinh Gumansinh Jhala,PW.8, exh.15, (9) Mafaji Nemaji, PW.9, exh.18, (10) Dr. Manish Amaraji Suvera, PW.10, exh.20, (11) Shravandasji Parmeshwardasji, PW.11, exh.24, (12) Mohanmal Parshottamdas PW.12, exh.25, (13) Laxmanbhai Mathurbhai, PW.13, exh.26, (14) Jujarsinh Hamirsinh Rathod, PW.14, exh.27, (15) Vakhatsinh Dahyabhai, PW.15,exh.30, (16) Maganbhai Nanabhai,PW.16, exh.32, and (17) Bhimsinh Gulabsinh Khant, PW.17, exh.33, to prove its case against the appellant. 4. The prosecution also relied on documentary evidence, such as,panchnama of place of occurrence exh.7,discovery panchnama of stone prepared under section 27 of the Indian Evidence Act exh.16, postmortem notes of the deceased exh.23, report of the Forensic Science Laboratory etc. to prove its case against the appellant. 5. The learned Sessions Judge questioned the appellant generally on the case and recorded his statement under section 313 of the Code of Criminal Procedure,1973 after recording of evidence of prosecution witnesses was over. In his further statement, the appellant claimed that deceased Dinesh Joshi was his friend. The appellant admitted that on the date of incident, he in the company of deceased had gone to the house of Shankerji Kodarji,who had procured liquor for them which was consumed by him and the deceased. The appellant stated in his further statement that as he was under influence of intoxication, Laxmanbhai Mathurbhai had left him at the house of Kalli with whom he was residing. He claimed that he was not aware of the fact as to who had opened the lock applied on the door of the house of Kalli, as he was intoxicated. He offered an explanation that his clothes were stained with blood and mud, as he had a fall in the mud. He claimed that he had not asked Kalli to wash off his clothes. He admitted that after incident he had gone to Ahmedabad for the purpose of sale of liquor.He denied the case of prosecution that he had made any extra-judicial confession before Kalli. He also claimed that in fact he was arrested on November 14,1988 and not on November 17,1988 as claimed by the prosecution. The appellant further stated that he had separated from deceased Dinesh Joshi at about 7.00 p.m. on November 11,1988 and did not know as to where Dinesh Joshi had gone. He also filed written statement at exh.40. In his written statement, the appellant claimed that several males were visiting house of Kalavati and were taking liquor. He admitted that he was procuring liquor from Shankerji and was dealing in the same. He claimed that he was left at the house of Kalavati by brother of Kalavati and had instructed him to lock the door from outside and hand over keys to him through window,as he had entertained a reasonable apprehension that police would raid the place if information was given by Laxman i.e. brother of Kalavati. He claimed that on the date of incident, deceased Dinesh Joshi was with him tll 7.00 p.m. and he did not know as to where the deceased had gone thereafter. 6. The learned Judge noted that no evidence of any eye witness was relied on by the prosecution to bring home guilt to the appellant and the case solely rested on circumstantial evidence. On appreciation of evidence, learned Judge held that following circumstances were proved by the prosecution beyond reasonable doubt.(1) Deceased Dinesh Joshi met with a homicidle death because of strangulation,(2) Deceased Dinesh Joshi and the appellant were friends, (3) Evidence of Shankerji Kodarji PW.5, exh.12 shows that the appellant was last seen in the company of the deceased going towards the place from-where dead body was found, (4) Kalavati,PW.6, exh.13 was room companion of the appellant and the appellant had confessed before Kalavati that he had strangulated the deceased with langot, (5) After the incident, the appellant had stayed during night at the house of Kalavati and washed off mud stained clothes, (6) the evidence regarding extra-judicial confession led by the prosecution is trustworthy, (7) the report of Forensic Science Laboratory proves that blood found on godadi and langot of the appellant was of 'B' group which was also the blood group of the deceased, (8) the report of Forensic Science Laboratory further showes that mud found on the godadi and langot of the appellant was of the same variety as that of control sample collected from the place of occurrence,(9) discovery of blood of same group and mud of the same variety on the langot of the appellant indicates that the appellant was in close proximity of the deceased when he was throttled to death and this circumstance is not explained by the appellant either in his further statement or in the written statement. After recording above-referred to conclusions, the learned Judge further held that the facts established are of conclusive nature as well as tendency and are consistent only with the hypothesis of guilt of the appellant. The learned Judge found that chain of circumstantial evidence was so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellant. The learned Judge, therefore, concluded that in all human-probability the offence was committed by the appellant alone. In view of these findings,the learned Judge convicted the appellant under sections 302, 201 I.P.C. and imposed sentences on him which have been referred to earlier, giving rise to the present appeal. 7. Mr. P.M.Vyas, learned Counsel for the appellant has taken us through the entire evidence on record. It was claimed that the circumstances from which the conclusion of guilt is drawn are not fully established and, therefore, benefit of doubt should be given to the appellant. It was contended that facts established by the prosecution are not consistent with the hypothesis of guilt of the appellant and, therefore, the impugned judgment should be reversed. It was emphasised that chain of circumstantial evidence is not complete so as not to leave any reasonable ground for conclusion consistent with the innocence of the appellant and, therefore, the appeal should be allowed. In the alternative, it was pleaded that the appellant was under the influence of drink and was incapable of forming intention to cause death of the deceased, which would bring his case under section 304 Part-II I.P.C. and, therefore, appeal should be partly allowed and the sentence imposed should accordingly be modified. 8. Mr. M.A.Bukhari, learned A.P.P. stressed that the circumstances from which conclusion of guilt is drawn are fully established and the facts so established are consistent only with the hypothesis of guilt of the appellant, as a result of which the appeal should be dismissed. It was claimed that the facts established are not explainable on any other hypothesis except that the appellant is guilty and as chain of circumstances established is complete, findings recorded by the learned Judge should be upheld and conviction as well as sentence imposed on the appellant should be affirmed. The learned Counsel for the State Government argued that there is no evidence to show that the appellant was suffering from any incapacity to form requisite intention mentioned in section 302 I.P.C. and, therefore, the appeal should not be accepted in part as claimed by the learned Counsel for the appellant. 9. The fact that deceased Dinesh Joshi met with a homicidle death due to throttling is not disputed before us on behalf of the appellant. The inquest panchnama exh.6, death report exh.22, statement of witnesses, contents of postmortem notes produced by Dr.Suvera are sufficient to establish the fact beyond reasonable doubt that deceased Dinesh died due to injuries which were not self-inflicted. The evidence of Dr. Suvera shows that he had received dead body at about 11.45 a.m. and performed postmortem on the dead body. The clothes were found to have been stained with blood and mud; whereas the upper two incisors had been uprooted due to injuries on the left side of the face. The medical officer has enumerated external as well as internal injuries in detail found on the dead body not only in his evidence, but also in the postmortem notes prepared by him. The medical officer has categorically stated that there was fracture of thyroid cartilage and the deceased died because of asphyxia resulting from throttling. Having regard to the nature of evidence led by the prosecution, we are of the view that finding rcorded by the learned Judge that the deceased died a homicidle death, is eminently just and is hereby upheld. 9. It is an admitted fact that the prosecution has not led direct evidence i.e. the evidence of any eye witness to bring home guilt to the appellant and the case is solely based on circumstantial evidence. The essential ingredients to prove guilt of an accused by circumstantial evidence are; (i) the circumstances from which the conclusion is drawn should be fully proved, (ii) the circumstances should be conclusive in nature, (iii) all the facts so established should be consistent only with the hypothesis of guilt of accused and inconsistent with his innocence, (iv) the circumstances should, to moral certainty exclude the possibility of guilt of any other person than the accused. In the light of these principles, we would now proceed to examine the question whether the prosecution has proved its case against the appellant beyond reasonable doubt. 10. The first circumstance which is relied on by the prosecution is that the deceased and the appellant were friends. Devpuri Shambhupuri, PW.2, exh.9, who is linesman at Talod Railway Station,has stated in his evidence that the appellant and deceased Dinesh Joshi were known to each other. Similarly, Shankerji Kodarji, PW.5, exh.12 has also stated in his evidence that the appellant and the deceased were friends. The evidence of Kanti @ Kalavati Mathurbhai PW.6, exh.13 unerringly points out that the appellant and the deceased were friends. The appellant in his further statement has also admitted that the deceased was his friend. Though the witnesses have been cross-examined at length, nothing has been brought on record to discredit their version that the appellant and the deceasaed were friends. On the facts and in the circumstances of the case, we are of the opinion that the prosecution has proved it beyond reasonable doubt that the appellant and the deceased were known to each other since long and had befriended each other. 11. The next circumstance which is relied on by the prosecution against the appellant is that he was last seen in the company of the deceased. In order to prove this circumstance, the prosecution has relied on the evidence of (1) Devpuri Shambhupuri, PW.2, exh.9, (2) Shankerji Kodarji, PW.5, exh.12, and (3) Mohanmal Parshottamdas, PW.12, exh.25. Witness Mohanmal Parshottamdas stated that he runs Jayvijay Hotel and Lodge near Talod Railway Station. In his evidence, he stated that on the New Year Day of 1988 which was on November 10,1988, he had opened his Hotel at about 5.00 p.m. and the deceased had visited his hotel at about 6.00 pm. The witness claimed that after a while deceased Dinesh was joined by the appellant and had demaned food, but as food was not prepared on the New Year Day, both of them had left his hotel. In his cross-examination,the witness deposed that over and above the appellant and deceased Dinesh, 4 to 5 other persons had also visited his hotel in the evening. He deposed before the Court that deceased Dinesh appeared to be drunk when he had visited the hotel, but he was not able to say whether the appellant was under the influence of drink or not. This witness was contradicted with his police statement wherein he had stated that the appellant was also drunk. The evidence of Shankerji Kodarji PW.5, exh.12 indicates that his house is situated near Talod Railway Station and at the relevant time was running a Tea Stall. This witness testified that on New Year Day the deceased and the appellant had visited his house and consumed liquor. The witness, in no uncertain terms, claimed that after consuming liquor, both of them had proceeded on railway track towards Amarapura. In his cross-examination,the witness was sought to be contradicted. However, the contradiction which is brought on record is not material at all. In cross-examination,the witness maintained that deceased Dinesh was used to drink liquor. There is no cross-examination so far as his material evidence is concerned,which indicates that after 7.00 p.m. on the New Year Day deceased Dinesh and the appellant had visited his house,consumed liquor and had gone towards Amarapur. The evidence of Devpuri Shambhupuri, PW.2, exh.9 indicates that at the relevant time he was serving as Linesman at Talod Railway Station and was on duty from 8.00 a.m. to 8.00 p.m. The witness claimed that when he was going to his house after duty hours, the deceasedand the appellant had met him and both of them were under the influence of drink. The witness stated that on seeing him, deceased Dinesh invited him to consume liquor and celebrate the New Year Day. The witness claimed that he told the deceased and the appellant that he was not consuming liquor and went to his house. In his cross-examination the witness maintained that the deceased and the appellant were friends. Though these three witnesses have been searchingly cross-examined, nothing has been brought on record of the case to discredit their version before the Court that the appellant was last seen in the company of the deceased. It is not demonstrated that any of the witnesses is on inimical terms with the appellant. They have no reason to give false and fabricated evidence against the appellant, as none of them is either related to the deceased or to the complainant, who is brother of the deceased. The evidence of these three witnesses establishes beyond reasonable doubt that not only the accused and the deceased were absolutely known to each other, but were last seen in the company of each other and had proceeded towards Amarapur, which is near the place from-where dead body of deceased Dinesh Joshi was recovered. There is no manner of doubt that the deceased and the appellant were companion of each other and both had consumed liquor on the New Year Day. Their behaviour and movement after consumption of liquor were observed and they were found to be moving from place to place. The evidence led by the prosecution unerringly and clinchingly establishes that the appellant and the deceased were the only two persons going towards the place from-where dead body of the deceased was recovered and no third person was in their company. Ordinarily, when a person is accused of committing murder of another, the fact that the accused and the deceased were last seen alive in company of each other and the failure of the accused to satisfactorily account for the disappearance of the deceased is considered a circumstance of an incriminating nature. In the facts of the case, the incriminating circumstance that the appellant and the deceased were seen alive in company of each other, is not explained by the appellant at all. It means that the appellant and the deceased were together upto the time of incident and appellant had all opportunity of committing murder of the deceased. 12. Yet another circumstance which is relied on by the prosecution is in the nature of extra-judicial confession made by the appellant before eunuch Kalavati. Witness Devpuri Shambhupuri in his evidence has stated that the appellant was residing with a eunuch. The evidence of eunuch i.e. Kanti @ Kalavati Mathurbhai is recorded at exh.13. Village Mahiyal is just adjoining Talod Railway Station. The evidence of witness Kanti shows that he is eunuch and known as Kalavati. The witness claimed before the Court that he had come in contact with the appellant before five months of the incident and very often both of them used to go to Ahmedabad together for the purpose of consuming liquor. The evidence of Kanti establishes that the appellant was residing with him and one of the keys of the house used to be with the appellant; whereas second key used to be retained by him. The witness claimed that on Diwali day the appellant did not return Home and on New Year Day he had gone to Dehgam for collecting alms. The witness stated that at about 11.00 p.m. when he returned to his house, he found the appellant lying on a cot on which a godadi was spread. His evidence shows that he was in the company of another eunuch named Dali and when he tried to interrogate the appellant, the appellant refused to speak out, as Dali was present. The witness has clearly stated that when Dali left his house, he questioned the appellant and the appellant confessed that he had a quarrel with deceased Dinesh Joshi. The witness has claimed that the appellant asked him to wash off his blood and mud stained clothes,but he refused to do so, as it was late in the night. The witness has testified that when he got-up in the early morning next day, he found that clothes were washed by the appellant. The witness deposed that next day the appellant left his house for Ahmedabad and he himself went to Ahmedabad on the second day where he had contacted the appellant at the Platform. The witness has claimed that on seeing him, the appellant made inquiry as to whether his name was disclosed with reference to the incident of quarrel that had taken place between him and deceased Dinesh Joshi or not.The witness further claimed that he asked the appellant to swear and state as to what had actually happened. The witness has clearly informed the Court that thereupon the appellant confessed before him that he was over drunk and had caused injuries to the deceased by means of rubble and thereafter