CR.A/1046/2000 1/45 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.1046 of 2000 With CRIMINAL APPEAL No.1067 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL AND HONOURABLE MR.JUSTICE J.R.VORA =============================================================== 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? =============================================================== SHANKUTALA W/O RAGHUKAMPA SHETTI - Appellant Versus STATE OF GUJARAT - RESPONDENT =============================================================== Appearance : MS SEJAL VYAS WITH MR PM VYS for Appellant in Criminal Appeal No.1046 of 2000 MS SADHANA SAGAR for Appellant in Criminal Appeal No.1067 of 2000 MR HM PRACHCHHAK, Additional Public Prosecutor for Respondent State in both Appeals. =============================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE J.R.VORA Date : 27-28/03/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) Criminal Appeal No.1046 of 2000 filed under CR.A/1046/2000 2/45 JUDGMENT Section 374(2) of the Code of Criminal Procedure, 1973 (“the Code” for short) is directed against judgment dated September 30, 2000 rendered by the learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad, in Sessions Case No.110 of 1996 by which the appellant, i.e. Ms.Shankutala, who was original accused No.1, is convicted for commission of offences punishable under Sections 302, 120B and 201 of the Indian Penal Code (“IPC” for short), and sentenced to suffer R.I. for life and fine of Rs.1,000/-, in default S.I. for three months, for commission of offence punishable under Section 302 IPC as well as R.I. for one year and fine of Rs.500/-, in default S.I. for one month, for commission of offence punishable under Section 120B IPC and R.I. for one year and fine of Rs.500/-, in default S.I. for three months, for commission of offence punishable under Section 201 IPC. Criminal Appeal No.1067 of 2000 filed under Section 374(2) of the Code is also directed against judgment dated September 30, 2000 delivered by the same learned Judge in Sessions Case No.110 of 1996 by which the appellant therein, who was original accused No.2, has been convicted for commission of offences punishable under Sections 302, 120B and 201 IPC, and visited with the punishments imposed on the original CR.A/1046/2000 3/45 JUDGMENT accused No.1. As both the appeals raise common question of facts as well as law and arise out of common judgment delivered in Sessions Case No.110 of 1996, this Court proposes to dispose them of by this common judgment. 2. The facts emerging from the record of the case are as under: Ms.Nirmalaben Natwarlal, the mother of deceased Ashok, was residing in Building No.400/1 situated in Sector No.5, Chankyapuri, Ahmedabad, with her elder son Mahendrabhai Vyas and his wife and children. Mr.Mahendrabhai Vyas is a Sales-Tax & Income-Tax Practitioner. Ms.Nirmalaben had three sons. Younger to Mahendrabhai was deceased Ashok. Deceased Ashok was unmarried and was serving in a club known as 'Dream World Gymkhana' wherein gambling activities were going on. The youngest son of Ms.Nirmalaben named Mukesh was serving in Police Department and was residing in Police Lines. On November 1, 1995, deceased Ashok came to his residence at about 9.00 p.m. or 10.00 p.m., and informed his mother, i.e. Ms.Nirmalaben, that after taking a stroll for half-an- hour, he would take dinner. So saying, the deceased left his house and went to the house of his friend CR.A/1046/2000 4/45 JUDGMENT Ratansinh. After sometime, Manish, son of Ratansinh, came to the house of Ms.Nirmalaben and asked Nirmalaben to pack food prepared by her for deceased Ashok to be taken to his house. Ms.Nirmalaben had cooked hotchpotch. Therefore, she gave hotchpotch to Manish in a utensil to be carried to his house. During the night, Ashok did not return home. Therefore, in the early morning of November 2, 1995, Ms.Nirmalaben sent her grandson Mehul to the house of Ratansinh to inquire about Ashok. Mehul accordingly went to the house of Ratansinh. Mehul was informed by Ratansinh that Ashok had left his house with the appellant in Criminal Appeal No.1046 of 2000 and that Ashok had not stayed in his house during the night between November 1, 1995 and November 2, 1995. Mehul, in turn, conveyed the information received by him from Ratansinh to Ms.Nirmalaben. Thereupon, search of Ashok was made at the houses of relatives of Ms.Nirmalaben, but whereabouts of Ashok could not be known. Meanwhile, on November 3, 1995 at about 10.30 a.m., one Mr.Jamubhai Chandansinh Dholetar of Village Godhavi informed Mr.J.K.Chavda, who was then Police Inspector of Sanand Police Station, that a dead body was lying in the pond of Village Godhavi. On receipt of the information, PI Mr.Chavda registered Accidental Death Case No.43 of 1995 and sought permission to hold inquest. He went to the pond of Village Godhavi with Dog Squad, CR.A/1046/2000 5/45 JUDGMENT photographer, fingerprint operator, etc. On reaching the pond, Mr.Chavda found that there were two plastic bags in which cut-pieces of human body were placed. In presence of panch-witnesses, Mr.Chavda searched the bags. From one transparent polyethylene bag, two chopped legs were found whereas from another bag, trunk of human body was found. Mr.Chavda made further search in the pond itself to find out whether there was/were bag/bags containing other parts of the human body. The search resulted into find of third transparent polyethylene bag containing the human head. The photographer, who was summoned, took photographs of the parts of the human body recovered from the plastic bags. Mr.Chavda held inquest on parts of the human body found in presence of panch- witnesses. From the transparent polyethylene bag containing human head, a black coloured twine and blade of Supermax Company, were found. They were seized under a panchnama. From the transparent polyethylene bags containing parts of human body, two bricks and stones were also found, which were seized under a panchnama. The parts of the human body found were sent to Sanand Hospital for postmortem examination. After the parts of the human body were sent to Civil Hospital, Sanand, for postmortem examination, Mr.Chavda held discussion with Medical Officer of Sanand Hospital. The Medical Officer of CR.A/1046/2000 6/45 JUDGMENT Sanand Hospital opined that postmortem of the parts of the human body should be conducted at Civil Hospital, Ahmedabad. Therefore, after filling in necessary particulars in Inquest Form, parts of the human body were sent to Civil Hospital, Ahmedabad, for postmortem examination. On receipt of the parts of the human body, Dr.Ganesh Pyarelal Gotelkar of Civil Hospital informed PI Mr.Chavda that Dr.J.N.Amin, who was Medical Officer of Sanand Hospital, should also participate in the examination of parts of the human body. Accordingly, Dr.J.N.Amin was informed, who went to Civil Hospital, Ahmedabad, and assisted Dr.Gotelkar in conducting postmortem examination of the parts of the human body. Again, on November 4, 1995, three other plastic bags containing parts of human body were found from the pond of village Godhavi. In one bag, upper part of the trunk of human body having clean cut margin anteriorly passing through lower part of neck was found whereas from the second bag, thigh and lower part of trunk of right side were found and from third bag, left thigh and lower part of the trunk of left side along genitals were found. The parts of the human body found on November 4, 1995 were also sent for postmortem examination to Civil Hospital, Ahmedabad. The postmortem examination of parts of the human body found on November 4, 1995 was conducted by a panel of CR.A/1046/2000 7/45 JUDGMENT doctors comprising Dr.Ganesh Gotelkar and Dr.Dharmesh Patel. Thereafter, necessary news were flashed in newspapers that parts of human body were found from the pond of Village Godhavi. As Ashok was missing since the night of November 1, 1995, Ms.Nirmalaben asked her son Mahendrabhai to contact Police Inspector Mr.Chavda of Sanand Police Station and to ascertain whether the parts of human body found were those of Ashok. Accordingly, Mahendrabhai contacted PI Mr.Chavda of Sanand Police Station, who informed Mahendrabhai that the parts of human body found on November 3, 1995 and November 4, 1995 were sent to Civil Hospital, Ahmedabad. Mahendrabhai, therefore, went to Civil Hospital, Ahmedabad, and after looking at the human head and other parts of the human body, identified that the parts of the human body were those of his brother Ashok. Before the dead body of deceased Ashok was identified by his brother Mahendrabhai, PI Mr.J.K.Chavda had lodged complaint of murder of an unknown person against unknown persons on behalf of the Government and forwarded his report under Section 157 of the Code to the competent authority. He, thereafter, had taken over investigation of the complaint lodged by him. However, the identification of the dead body as that of deceased Ashok revealed that the offences had taken place in Chankyapuri area, which falls within the jurisdiction of Ghatlodiya CR.A/1046/2000 8/45 JUDGMENT Police Station, Ahmedabad City. Therefore, the complaint lodged by PI Mr.Chavda was transferred to Ghatlodiya Police Station, Ahmedabad City, for further investigation. The complaint of Mr.Chavda was investigated by Senior Police Inspector Mr.Parmeshwar Prasad Sarveji Pande of Ghatlodiya Police Station. He recorded statements of Ms.Nirmalaben, Mahendrabhai, Ratansinh, etc. The investigation revealed that deceased Ashokbhai had illicit relations with the appellant in Criminal Appeal No.1046 of 2000 and, therefore, the said appellant had entered into conspiracy with her husband to kill the deceased and caused death of the deceased after which the body of the deceased was cut into pieces and the cut-pieces of the body of the deceased were placed in different polyethylene bags, which were carried by the appellant in Criminal Appeal No.1067 of 2000 on his cycle to the pond situated at Village Godhavi, and the bags containing parts of the dead body with bricks and stones were thrown in the pond of Village Godhavi. On the basis of material collected during the course of investigation, the Investigating Officer was satisfied that the appellants were involved in commission of murder of the deceased. Therefore, they were summoned at the Police Station of November 6, 1995 for interrogation after securing their residence. During the interrogation, the appellants could not give CR.A/1046/2000 9/45 JUDGMENT satisfactory replies or explanations regarding the death of deceased. Therefore, in their presence and in the presence of panch-witnesses, their residence was searched on November 6, 1995, which resulted into find of bloodstained frock, lungi, etc. As bloodstained cloths were found, the appellants were arrested on November 7, 1995. The incriminating articles seized during the course of investigation were sent to Forensic Science Laboratory (F.S.L.) for analysis. On completion of the investigation, the two appellants were charge-sheeted in the Court of learned Chief Judicial Magistrate, Ahmedabad (Rural), Mirzapur, Ahmedabad, for commission of offences punishable under Sections 302, 120B and 201 IPC. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Ahmedabad (Rural), Mirzapur, Ahmedabad, where it was numbered as Sessions Case No.110 of 1996. 3. The learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad, to whom the case was made over for trial, framed necessary charge against the two appellants at Exh.3. It was read over and explained to them. They pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined: (1) mother of deceased Ashok, CR.A/1046/2000 10/45 JUDGMENT i.e. Ms.Nirmalaben Natwarlal as P.W.-1 at Exh.8; (2) Ms.Pramilaben Ratansinh as P.W.-2 at Exh.9; (3) Mahendrakumar Natwarlal as P.W.-3 at Exh.15; (4) Mehul Mahendrakumar Vyas as P.W.-4 at Exh.16; (5) Ratansinh Ranvirsinh as P.W.-5 at Exh.19; (6) panch Kishorebhai Dahyabhai as P.W.-6 at Exh.20; (7) panch Pravinsinh Sursing Vaghela as P.W.-7 at Exh.26; (8) Navalsinh Kalubha Jadeja as P.W.-8 at Exh.32; (9) Dr.Jayesh Nathalal Amin, who was then Medical Officer of Sanand Government Hospital, as P.W.-9 at Exh.34; (10) photographer Sunil Nandlal Dubal as P.W.-10 at Exh.35; (11) Circle Officer Jayantilal Manilal Patel as P.W.- 11 at Exh.38; (12) Jalubhai Bijalbhai Desai as P.W.- 12 at Exh.41; (13) expert from F.S.L., i.e. Amrutlal Vashrambhai Hingrajiya as P.W.-13 at Exh.43; (14) panch Nigambhai Ranchhodbhai Nayak as P.W.14 at Exh.46; (15) Scientific Officer Ms.Minaben Rajnikant as P.W.-15 at Exh.48; (16) Scientific Expert Anilkumar Madhukant Mehta as P.W.-16 at Exh.51; (17) Dr.Ganesh Pyarelal Gotelkar as P.W.-17 at Exh.53; (18) Jamubhai Chandansinh as P.W.-18 at Exh.56; (19) panch Shambhulal Mulchand Sharma as P.W.-19 at Exh.62; (20) panch Mohansinh Sardarsinh as P.W.-20 at Exh.64; (21) Investigation Officer, Senior Police Inspector of Ghatlodiya Police Station Mr.Parmeshwar Prasad Sarveji Pande at P.W.-21 at Exh.70; and, (22) Police Inspector Mr.Jashwantsinh Kacharaji Chavda as P.W.-22 at Exh.79, CR.A/1046/2000 11/45 JUDGMENT to prove its case against the appellants. The prosecution also produced documentary evidence such as copy of ration card found during the search of residence of the appellants at Exh.25; inquest report at Exh.29; panchnama of place of incident at Exh.31; panchnama of different plastic bags containing pieces of the human body at Exh.33; map of place of incident at Exh.40; report of F.S.L. from Mr.Hingrajiya at Exh.44; discovery panchnama of pant of the appellant in Criminal Appeal No.1067 of 2000 at Exh.47; F.S.L. report prepared by Scientific Officer Ms.Minaben at Exh.50; report of biological and serological test carried by Scientific Expert Mr.Anilkumar Mehta at Exh.50; postmortem report prepared by Dr.Ganesh Gotelkar with the help of Dr.J.N.Amin, the then Medical Officer of Sanand Civil Hospital, of human organs found from four transparent polyethylene bags, which were recovered from the pond of Village Godhavi on November 3, 1995 at Exh.54; another postmortem report prepared by Dr.Gotelkar with the help of Dr.Dharmesh Patel of the parts of the human body, which were recovered from the polyethylene bags found from the pond of Village Godhavi on November 4, 1995 at Exh.55; panchnama indicating identification of shoe and pant of the deceased by his brother Mahendra at Exh.63, panchnama indicating recovery of different part of human body placed in polyethylene bags at CR.A/1046/2000 12/45 JUDGMENT Exh.67; panchnama of place from where plastic bags containing part of human body were recovered at Exh.68; panchnama indicating recovery of cycle at the instance of the appellant in Criminal Appeal No.1067 of 2000 at Exh.71; panchnama indicating that an attempt was made to recover sickle like weapon known as katti at the instance of the appellant in Criminal Appeal No.1046 of 2000 at Exh.72; panchnama indicating seizure of blue-coloured nicker of the deceased at Exh.76; complaint lodged by Mr.J.K.Chavda, who was then PI of Sanand Police Station at Exh.80; panchnama of house No.492 situated in Sector No.5 of Chankyapuri Society at Exh.82; report of Scientific Officer at Exh.83; etc. in support of its case against the appellants. 4. After recording of evidence of prosecution witnesses was over, the learned Judge of the trial Court explained to the appellants the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by Section 313 of the Code. In her further statement, the appellant in Criminal Appeal No.1046 of 2000 claimed that a false case was foisted upon her by the prosecution whereas the appellant in Criminal Appeal No.1067 of 2000 claimed in his further statement that on the day of incident, he was not CR.A/1046/2000 13/45 JUDGMENT present in Ahmedabad, but was present at Bombay, and a false case was lodged against him. However, no defence evidence was adduced by any of the appellants to support the claim advanced in their respective further statements. 5. On appreciation of evidence adduced by the prosecution, the learned Judge noticed that the whole case of the prosecution was based on circumstantial evidence and no direct evidence was tendered by the prosecution to bring home the guilt of the appellants. The learned Judge held that the dead body of deceased Ashok was recovered at the instance of Jamubhai, who was resident of Village Godhavi. After referring to the testimony of Dr.Jayesh Amin and that of Dr.Gotelkar, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that deceased Ashok died a homicidal death. The learned Judge on perusal of the testimony of Ms.Nirmalaben as well as that of Ms.Pramilaben and testimony of Mr.Mehul held that the motive for crime in question was illicit relations between the appellant in Criminal Appeal No.1046 of 2000 and the deceased. On consideration of the testimony of witness Pramilaben and witness Ratansinh, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the deceased was seen last alive in the company CR.A/1046/2000 14/45 JUDGMENT of the appellant in Criminal Appeal No.1046 of 2000. The learned Judge deduced that after committing murder of deceased Ashok, his dead body was cut into pieces and those pieces were placed in polyethylene bags with bricks and stones and thereafter, the bags were thrown in the pond of Village Godhavi, which were recovered on November 3, 1995 and November 4, 1995. The learned Judge referred to the testimony of panch Kishorebhai and held that it was proved satisfactorily by the prosecution that during the search of house of the appellants, bloodstained clothes were recovered. The learned Judge further held that the cloths belonging to the appellants were found to have been stained with the same group of blood as that of the deceased, which indicated that the appellants were in close proximity of the deceased when the deceased was fatally wounded. The learned Judge concluded that the combined effect of all the circumstances proved left no reasonable ground for conclusion consistent with the innocence of the appellants and that they were consistent only with hypothesis of the guilt of the appellants. The learned Judge noticed that the plea of alibi advanced by the appellants in Criminal Appeal No.1067 of 2000 could not be probabilized. In view of abovereferredto conclusions, the learned Judge has convicted both the appellants under Sections 302, 120B and 201 IPC and imposed sentences referred to earlier by judgment CR.A/1046/2000 15/45 JUDGMENT dated September 30, 2000 giving rise to abovenumbered two appeals. 6. This Court has heard Ms.Sejal Vyas, learned counsel appearing for the appellant in Criminal Appeal No.1046 of 2000 as well as Ms.Sadhna Sagar, learned counsel appearing for the appellant in Criminal Appeal No.1067 of 2000, and Mr.H.M.Prachchhak, learned Additional Public Prosecutor for the State, at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 7. The fact that deceased Ashok died a homicidal death is not disputed at all by the learned counsels for the appellants before this Court. The different panchnamas prepared at the time when transparent polyethylene bags containing parts of the human body were found, would indicate that dead body was cut into pieces. The testimony of Dr.Jayesh Nathalal Amin recorded at Exh.34 as well as that of Dr.Ganesh Gotelkar recorded at Exh.53 indicates that “ death of the deceased was due to carnio cerebral damage consequent upon blunt force impact to head”. It is nobody's case that the deceased had sustained injuries CR.A/1046/2000 16/45 JUDGMENT mentioned by the two doctors in an accident nor it is the case of anyone that those injuries were self- inflicted. Under the circumstances, the finding recorded by the learned Judge of the trial Court that it is satisfactorily proved by the prosecution beyond reasonable doubt that the deceased died a homicidal death, being eminently just is hereby upheld. 8. It is also satisfactorily proved that parts of the human body, which were recovered from the pond of Village Godhavi on November 3, 1995 and November 4, 1995, were those of body of deceased Ashok. The body of deceased Ashok was identified by his brother Mahendrabhai at Civil Hospital, Ahmedabad. The identification of deceased Ashok by his brother Mahendrabhai is also not in dispute before this Court. Thus, it is satisfactorily proved that deceased Ashok was murdered and thereafter his body was cut into pieces and those cut-pieces with bricks and stones were placed in different transparent polyethylene bags, which were thrown into the pond of Village Godhavi. 9. It is relevant to notice that the prosecution has not claimed that the incident of murder of deceased Ashok was witnessed by anyone and no direct evidence regarding commission of murder of deceased CR.A/1046/2000 17/45 JUDGMENT Ashok by the appellants is tendered before the Court. The prosecution case solely rests on the circumstantial evidence. Therefore, before dealing with the circumstantial evidence on record, it would be worthwhile to notice the law on the point. 10. The law relating to circumstantial evidence is well settled. In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is no derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances can not fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not". In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established, should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency and they should be such as CR.A/1046/2000 18/45 JUDGMENT to exclude every hypothesis except the one sought to be proved. There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, Court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is, or are not decisive. Where a case rests squarely on circumstantial evidence, the various sets of circumstantial evidence should be taken into consideration and their total effect should be such that they must lead unerringly to the guilt of the accused. Each fact must be proved individually and only thereafter the sum total of the proved facts has to be taken into consideration, but this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must prove each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might CR.A/1046/2000 19/45 JUDGMENT be. In Sharad v. State of Maharashtra, A.I.R. 1984 SC 1622, after referring to earlier case law, the Supreme Court has summarized the conditions to be fulfilled in a case based on circumstantial evidence as under: (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be established, (ii) the fact so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; (v) there must be a