CR.A/457/2007 1/40 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 457 of 2007 With CRIMINAL MISC.APPLICATION No. 2627 of 2007 In CRIMINAL APPEAL No. 457 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 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? ========================================================= BHAVESH MULJI BATHWAR - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS REKHA H KAPADIA for Appellant(s) : 1 in both matters MRS HB PUNANI, APP for Opponent(s) : 1 in both matters ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MS.JUSTICE H.N.DEVANI CR.A/457/2007 2/40 JUDGMENT Date : 14/09/2007 CAV COMMON JUDGMENT (Per : HONOURABLE MS.JUSTICE H.N.DEVANI) 1.This appeal is directed against the judgment and order dated 29th March, 2005 passed by the learned Addl. Sessions Judge, Fast Track Court No.7, Jamnagar, in Sessions Case No.139 of 2002 whereby the appellant has been convicted for the offences punishable under Secs.448, 380, 363, 364-A, 387, 376(2)(f), 377, 302 and 201 of Indian Penal Code and sentenced to undergo rigorous imprisonment of three months and to pay fine of Rs.250/-, in default, to undergo simple imprisonment for 10 days for the offence under Sec.448 of IPC; six months rigorous imprisonment and to pay fine of Rs.500/-, in default, to undergo simple imprisonment for fifteen days for the offence under Sec.380 of IPC; rigorous imprisonment of three years and to pay fine of Rs.2000/-, in default, to undergo simple imprisonment for one month for the offence under Sec.363 of IPC; imprisonment for life and to pay fine of Rs.5000/-, in default, to undergo simple imprisonment for six months for the offence under Sec.364-A of IPC; rigorous imprisonment of two years and to pay fine of Rs.1000/-, in default, to undergo CR.A/457/2007 3/40 JUDGMENT simple imprisonment for one month for the offence under Sec.387 of IPC; rigorous imprisonment of ten years and to pay fine of Rs.15,000/-, in default, to undergo simple imprisonment for six months for the offence under Sec.376(2)(f) of IPC; rigorous imprisonment of five years and to pay fine of Rs.3000/-, in default, to undergo simple imprisonment for two months for the offence under Sec.377 of IPC; rigorous imprisonment of life imprisonment and to pay fine of Rs.25,000/-, in default, to undergo simple imprisonment for one year for the offence under Sec.302 of IPC and rigorous imprisonment of one year and to pay fine of Rs.1000/-, in default, to undergo simple imprisonment for 15 days for the offence under Sec.201 of IPC. 2.The case of the prosecution is that the complainant Ramangiri @ Rameshgiri Babugiri Goswami had lodged a complaint at the Kalawad Police Station stating that he was residing at Bawana Math, outside Nagarwada at Kalawad along with his wife, son and daughter and had a factory by the name of Saurashtra Emery Pvt. Ltd at Ranuja Road at Kalawad. On 25th March, 2002, they were sleeping on the second floor of their residence and as it was summer season, they had kept the door of the room open. Early in the morning at about 4.45 O' CR.A/457/2007 4/40 JUDGMENT clock, there was a thumping noise on the wooden staircase in the room due to which, the complainant woke up and saw that his daughter (hereinafter referred to as 'the victim”) was not in the bed. He, therefore, came down the stairs to inquire and found someone carrying his daughter and running away and hence, he went after him. When he came on the road, he met Gafarsha Babusha, who told him that a man carrying a girl had gone near Santoshi Mata temple. On going a little further, he met Muljibhai Rathod who also told him that a man carrying a girl had gone towards Santoshi Mata temple. Thereafter, he looked here and there but could not find anyone carrying his daughter. He, therefore returned home. Upon returning home, he found that his Samsung mobile phone bearing No.9825053048 was missing and he also saw a pair of slippers lying under the staircase, which did not belong to any of his family members. 3.The complainant's father was running a school called Vandana Vidyalaya, which had a telephone bearing No.22239 and had a caller ID. At about 8.00 a.m., the complainant received a phone call from his stolen mobile phone on the phone at Vandana School and was told that his daughter was in the custody of the caller. Thereafter, two three phone calls CR.A/457/2007 5/40 JUDGMENT were received from the same number. At about 8.30 a.m., a phone call was received which was picked up by the complainant's son Chintan, who recognized the voice of the caller to be that of Bhavesh, a resident of Nani Vavdi. The said Bhavesh used to work in their factory and on and off used to come to their residence in connection with his work. As the said Bhavesh was not working properly, he had been fired about three months ago. Bhavesh told that he was speaking from Rajkot and from the sound of traffic coming from the background, it appeared that he was calling up from somewhere on the highway. Thereafter, Bhavesh again called up at 8.40 a.m. and demanded Rs.10.00 lakhs for returning the complainant's daughter and said that he would inform him later as to where the money was to be delivered. This conversation was recorded in the tape recorder. At the relevant time, his daughter was wearing a cream coloured shirt and a midi with brown checks. She was also wearing gold earrings and a nose stud. The complainant suspected that Bhavesh, a resident of Nani Vavdi (hereinafter referred to as 'the accused') had entered his open house, stolen his mobile phone, kidnapped his daughter and demanded Rs.10.00 lakhs by way of ransom. The aforesaid complaint (Ex.107) was recorded by Shri J.K.Vank, Police Sub- CR.A/457/2007 6/40 JUDGMENT Inspector, Kalavad Police Station. Thereafter, the same was noted down in the station diary and was registered as Kalavad Police Station I.C.R.No.48 of 2002 for the offences punishable under Sections 363, 448, 380 and 387 of the Indian Penal Code. 4.Shri J.K.Vank took charge of the investigation of the case and drew a panchnama (Ex.40) of the audio cassette produced by the complainant in the presence of panchas. Thereafter, as the complainant had informed the investigating officer that the accused had talked with the complainant on the mobile phone from Rajkot, the investigating officer, by means of wireless message, informed all the Police Stations at Jamnagar and L.C.B.Division, Rajkot City as well as all Police Stations of Rajkot(Rural) to search for the accused. The investigating officer thereafter drew a panchnama (Ex.43) of the scene of offence, and recorded statements of witnesses. The complainant had received a call on the Caller I.D. Telephone at his father's school, which was made from the complainant's mobile and the complainant's mobile had a card of Cellforce Company, therefore, the investigating officer called the Investigation Branch at Rajkot and acquainted PSI, Shri R.R.Gohil in detail, regarding the facts of the offence, gave him CR.A/457/2007 7/40 JUDGMENT the number of the mobile phone and asked him to obtain information from the Cellforce Company regarding the calls made and received from the said number. Accordingly, the Officer Shri R.R.Gohil immediately proceeded to the office of the Cellforce Company and obtained information regarding the calls that were received from the said phone on the day of the incident. Upon obtaining such information, it was found that a call had been made to a local phone at Rajkot bearing No.602634. Upon making inquiry regarding the said telephone number, it was found to be that of Royal Enterprises, situated at Navagam, Rajkot. Thereafter, the said officer went to the said place and upon inquiring as to who had received the said call, a person named Sukhabhai informed that, at about 11 O'clock, he had received the phone call from Bhavesh. Therefore, the said officer interrogated Sukhabhai, who informed him that Bhavesh called him up and told him that the work of kidnapping is accomplished and the money has to be collected. As Sukhabhai knew Bhavesh, the said officer took him along to the Restaurant opposite Rajkot Galaxy Cinema where Bhavesh was going to come and kept watch along with his staff and the panchas. Thereafter, the accused was coming from the opposite side and Sukhabhai informed them CR.A/457/2007 8/40 JUDGMENT that it was Bhavesh. The concerned officer thereafter, apprehended the accused and carried out a physical search and drew a detailed panchnama (Ex.60). He seized the muddamal and arrested the accused for the offences registered under the aforesaid Kalavad Police Station I.C.R.No.48 of 2002 at 21:55 hours. The concerned officer also recorded statements of witnesses and submitted a report to the Pradyuman Nagar Police Station, issued the muddamal receipt, made noting in the Pradyuman Nagar Police Station Diary and keeping the report along with him, came to the Kalavad Police Station and handed over the custody of the accused, muddamal, panchnama drawn by him, statement of Sukhabhai, report etc. to the PSO, Kalavad Police Station. 5.Thereafter, the accused expressed his willingness to show the place where the dead body of the victim had been buried. Hence, the investigating officer called two panchas and a videographer. He also sent reports for calling the Executive Magistrate of the Taluka as well as the Medical Officer, Community Health Centre, Kalavad. Thereafter, in the presence of panchas, the accused had walked ahead and as stated by him earlier, he stood near a pit near the river and informed them that the dead body of the victim was CR.A/457/2007 9/40 JUDGMENT buried in the said pit. Thereafter, the accused removed some of the earth and the dead body of the victim became visible. The dead body was taken out from the pit in the presence of the doctor, the Taluka Executive Magistrate and the panchas and a discovery panchnama (Ex.46) was drawn and photography was also taken and the same were kept in the investigation file. Thereafter, the Taluka Executive Magistrate drew the inquest panchnama (Ex.51), filled up the Marnotar Form (Ex.86) and sent the dead body of the victim to the Medical Officer, Kalavad, for conducting autopsy thereof. The Medical Officer recommended that the autopsy be carried out at the M.P.Shah Medical College at Jamnagar. Accordingly, the dead body was sent to M.P.Shah Medical College, Jamnagar. After conducting the autopsy, the doctor, who performed the same, had submitted a short post mortem note (Ex.88) wherein it was stated that the cause of death was “due to strangulation”. It was also stated that the deceased had been raped and had also been the victim of an unnatural offence. Thereafter, on the basis of the said short post mortem note, a report was sent to the learned Judicial Magistrate (First Class), Kalavad, for addition of Sections 302, 201, 376, 377, 364(A) of the Indian Penal Code. Thereafter, CR.A/457/2007 10/40 JUDGMENT the accused was sent for medical examination along with a report to obtain samples of the blood, saliva, hair and sperm (Ex.78). For the purpose of verifying as to whether the slippers which were found at the scene of offence fit the accused or not, the slippers were put on the feet of the accused in the presence of panchas and they were found to fit him properly and a panchnama of the same (Ex.64) was drawn accordingly. Thereafter, remand was obtained and as the accused went ahead and showed the shop at Rajkot where he had sold the stolen mobile phone, the mobile phone was seized by drawing a discovery panchnama (Ex.57) and the same was kept in the investigation file. The investigating officer thereafter recorded statements of other witnesses. Thereafter, upon receipt of the post mortem note (Ex.87) along with samples taken by the doctor who had conducted the post mortem on the body of the deceased as well as the samples taken by the Medical Officer from the person of the accused and other muddamal were sent to the Forensic Science Laboratory at Junagadh for analysis thereof. The investigating officer submitted a report for preparing the map of the scene of offence, recorded statement of the videographer who had recorded the cassette of the proceedings of the discovery panchnama of CR.A/457/2007 11/40 JUDGMENT the dead body of the accused. Thereafter, further investigation was taken over by Hareshbhai B.Vora, who issued yadis for obtaining the FSL Report as well as the map of the scene of offence. Upon completion of investigation, a charge sheet was submitted in the Court of learned Judicial Magistrate (First Class), Kalavad on 9th July, 2002 and the same was registered as Criminal Case No.275 of 2002. 6.The case being exclusively triable by the Court of Sessions, the learned Judicial Magistrate (First Class), Kalavad, by his order dated 16th July, 2002 committed the case to the Court of Sessions at Jamnagar where it was numbered as Sessions Case No.139 of 2002 and was transferred to the Court of the learned Addl. Sessions Judge, Fast Track Court No.7, Jamnagar, for disposing the same on merits. The learned Judge framed charge at Ex.25 against the accused for the offences punishable under Sections 448, 380, 363, 364- A, 387, 376(2)(f), 377, 302 and 201 of the Indian Penal Code. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and prayed for trial. 7.To prove the charge against the accused, the prosecution examined as many as 28 witnesses namely, Ramgiri @ Rameshgiri Babugiri CR.A/457/2007 12/40 JUDGMENT Goswami, P.W.1, Ex.35; Narvirsinh Harishchandrasinh, P.W.2, Ex.39; Yogeshgiri Hareshgiri, P.W.3, Ex.42; Dineshbhai Chandubhai, P.W.4, Ex.45; Haresh Danjibhai, P.W.5, Ex.50; Hemraj Liladhar, P.W.6, Ex.52; Hemraj Liladhar, P.W.7, Ex.55; Satyen Kalyanji Zala, P.W.8, Ex.56; Ismail Jusub, P.W.9, Ex.59; Munvar Yusufali, P.W.10, Ex.61; Gafar Salimbhai, P.W.11, Ex.63; Chintan Ramesh alias Rameshgiri Goswami, P.W.12, Ex.65; Gafarsha Ahmadsha, P.W.13, Ex.66; Jagdish Kanjibhai, P.W.14, Ex.67; Bhavansinh Padmadevsinh, P.W.15, Ex.68; Sukhabhai Bavabhai, P.W.16, Ex.69; Jivanlal Kanjibhai, Circle Officer, P.W.17,Ex.77; Dr.Miteshbhai Narsibhai, P.W.18, Ex.77; Dr.Chetanbhai Biharibhai, P.W.19, Ex.84; Sandipbhai Mahendrabhai Vora, P.W.20,Ex.89; Lakhabhai Bhikhubhai, Executive Magistrate, P.W.21, Ex.93; Keshubhai Mepabhai Jadav, Prohibition Sub-Inspector, Rajkot, P.W.22, Ex.95; Mamadbhai Noormamadbhai Baloch, ASI, Kalavad, P.W.23, Ex.96; Ketanbhai Jayantilal Lakhani, P.W.24, Ex.98; Hariharbhai Bhikhabhai, Police Constable, P.W.25, Ex.100; Rajendrasinh Ranjitsinh Gohil, PSI, DCB, Rajkot, P.W.26, Ex.103; Jivkubhai Kathadbhai Vank, PSI, Jamnagar, P.W.27, Ex.105 and Hareshbhai Bavanjibhai Vora, PSI, P.W.28, Ex.128. The prosecution also produced and proved as many CR.A/457/2007 13/40 JUDGMENT as 54 documents. However with a view to avoid prolixity, the same are not enumerated hereunder and shall be referred to in the body of the judgment as and when necessary. 8.On submission of closing pursis by the learned APP, the learned Addl. Sessions Judge recorded further statement of the accused under Section 313 of Code of Criminal Procedure qua incriminating evidence. The defence of the accused was in the nature of denial. The accused neither examined any witness nor stepped into the witness box. 9.Thereafter, after hearing the learned advocates appearing for the respective parties, the learned Addl. Sessions Judge delivered the judgment whereby the appellant was convicted as aforesaid which has given rise to the present appeal. 10.Heard learned counsel for the appellant, Ms.Rekha H.Kapadia and learned Additional Public Prosecutor, Ms.H.B.Punani for the State. 11.Learned Advocate Ms. Rekha H. Kapadia, after going through the record and proceedings and the papers available with her, argued that the appellant is innocent and has been falsely implicated in the crime in question. The whole story has been concocted to falsely involve the appellant with the crime in CR.A/457/2007 14/40 JUDGMENT question. It was submitted that the prosecution case is based only on circumstantial evidence, as there are no eyewitnesses. The witnesses examined by the prosecution are either interested witnesses or somehow or the other connected with the complainant or his family members. It was argued that though the other evidence such as FSL report, Post-Mortem Note, etc. available on record, prove the aspect of homicidal death, the prosecution has failed to connect the appellant with the commission of the crime in question. It was submitted that it is true that the offence in question was a heinous one, however, the prosecution has failed to establish its case against the appellant and as such the appellant is required to be acquitted and the judgement and order of conviction and sentence is required to be set aside. Lastly, the learned Advocate for the appellant has urged the appellant is a young boy and looking to the facts and circumstances of the case, the appeal requires consideration. 12. In order to bring home the charge against the accused the prosecution had examined several witnesses and has also proved and relied upon various documentary evidences. The facts of the case have already been narrated hereinabove; hence, we are not repeating the CR.A/457/2007 15/40 JUDGMENT same. We would however deal the evidence on record and more particularly the evidence of the important witnesses. 13. Before analyzing the factual aspects, we may briefly refer to the well-settled principles enunciated by the Apex Court, which must be kept in mind while dealing with a case based solely upon circumstantial evidence. It has been consistently laid down by the Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The well settled principles for construing circumstantial evidence have oft been reiterated by the Supreme Court. In a recent decision of the Supreme Court in the case of State of Goa v. Sanjay Thakran ((2007) 3 SCC 755) the Supreme Court after considering several earlier decisions in this regard has reiterated the tests that must be satisfied when the case rests upon circumstantial evidence as follows: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a CR.A/457/2007 16/40 JUDGMENT definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 14.Keeping the aforesaid legal principles in mind we may now examine the evidence led by the prosecution to establish the charge levelled against the appellant. 15.To prove the complicity of the appellant in the commission of the crime in question, one of the important witnesses examined by the prosecution is PW-1, the complainant, Ramgiri @ Rameshgiri Babugiri Goswami who has been examined at Exh.35. This witness has adhered to the version given by him in the First Information Report lodged by him before the police. The prosecution has duly proved the First Information Report Exh.107 through the evidence of this witness. According to this witness on 25.4.2002 as it CR.A/457/2007 17/40 JUDGMENT was summer they had kept the door leading to the verandah open, and were sleeping. Early in the morning at about 4:45, as he had heard a thumping noise on the wooden staircase, he had woken up and found that his daughter was not on the bed. Therefore, he had come downstairs in search of this daughter and found someone carrying his daughter and running away. He, therefore, followed him, and on the road he had met one Gafarkhan Babusha who had told him that a man carrying a girl had gone towards the Santoshi Mata temple. Further down the road he had met one Muljibhai Rathod who had also told him the same thing. He had therefore, gone to the Santoshi Mata temple and searched for his daughter, but could not find her, hence he had returned home. When he returned home he found that his Samsung mobile phone bearing No.9825053048 was missing. He also found a pair of slippers lying under the staircase, which did not belong to any of his family members. This witness has further deposed that his father was running a school by the name of Vandana Vidyalaya and the school had a telephone with a caller ID and the phone number was 22239. On the same day a phone call was received at about 8:00 a.m. and subsequently two to three other phone calls were received CR.A/457/2007 18/40 JUDGMENT on the said phone from his stolen mobile phone telling him that his daughter was in the custody of the caller. This witness has further deposed that again at about 8:30 a.m. they had received a phone call and his son Chintan who had picked up the phone, recognized the voice of the caller as that of the accused, who used to work in their factory and used to visit their residence in connection with the factory work and had been fired about three months back. The accused had told him that he was calling from Rajkot, but from the sound of traffic in the background it appeared that he was somewhere on the highway. According to this witness when the accused called up again at 8:40 a.m. he had demanded a ransom of Rs.10 lakhs for returning his daughter and that the said conversation had been recorded in an audiocassette with a tape recorder. He has further deposed that at the relevant time his daughter was wearing a cream coloured shirt and a midi with brown checks. She was also wearing gold earrings and a nose stud. This witness had further deposed that he had suspected that it was the appellant who had kidnapped his daughter and was demanding a ransom of Rs.10 lakhs; he therefore, went to Kalawad Police Station and lodged a complaint (Exh.107). He has CR.A/457/2007 19/40 JUDGMENT further deposed that he had handed over the audiocassette to the investigating officer under panchnama Ex.40 in the presence of panchas and had also informed the investigating officer that the accused had talked to him from the mobile phone from Rajkot. This witness has also identified the slippers that were lying near the staircase, the audiocassette as well as the mobile phone in the court. He has also identified the voice recorded in the audiocassette, which was played in the court, to be his voice. He has also identified the accused in the court. This witness has further deposed that the accused had no reason to commit such an act, except that as the accused was not working properly, he had been fired; hence with a view to wreak vengeance he had committed the offence in question. The evidence of this witness is fully corroborated by the First Information Report Exh.107. This witness has been subjected to detailed and searching cross-examined by the learned Advocate for the appellant, but nothing worthwhile has been elicited to shake the credibility of this witness. 16.Through the testimony of this witness the prosecution has firmly established the presence of the complainant at his residential house along with the victim and CR.A/457/2007 20/40 JUDGMENT other family members at 4:45 a.m. The presence of the complainant and his family members at their residence in the wee hours of the morning is quite natural; hence there is no reason to doubt the same. It has also been established that the complainant had received several phone calls