CR.A/83197/1997 1/56 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 831 of 1997 with CRIMINAL APPEAL No. 833 of 1997 with CRIMINAL MISC. APPLICATION NO.1121 OF 1998 in CRIMINAL APPEAL NO.833 OF 1997 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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? ========================================================= KISHORE SURYAKANT THAKKAR - Appellant(s) Versus STATE OF GUJART - Opponent(s) ========================================================= Appearance : CRIMINAL APPEAL NO.831 OF 1997 MR SA BAQUI for Appellant MR RC KODEKAR, APP for Opponent CR.A/83197/1997 2/56 JUDGMENT CRIMINAL APPEAL NO.833 OF 1997 MR AD SHAH for Appellant MR RC KODEKAR, APP for Opponent CRIMINAL MISCELLANEOUS APPLICATION NO.1121 OF 1998 IN CRIMINAL APPEAL NO.833 OF 1997 MR RC KODEKAR, APP for State MR AD SHAH for original accused No.2 ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 4-10-2006 COMMON CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1. Criminal Appeal No.831 of 1997 under Sec.374 of the Code of Criminal Procedure (`the Code' for short) has been filed by the appellant-original accused No.1-Kishore Suryakant Thakker, (hereinafter referred to as “the accused No.1” for short) who has been convicted to suffer R.I. for life and to pay a fine of Rs.5,000/-, in default, to suffer R.I. for 3 months for the offence punishable under Sec.302 of IPC and also to suffer R.I. for 2 years and to pay a fine of Rs.5,000/-, in default, to suffer R.I. for 3 months for the offence punishable under Sec.201 of IPC vide judgment and order dated 8th July, 1997 passed by the CR.A/83197/1997 3/56 JUDGMENT learned Addl. City Sessions Judge, Court No.11, Ahmedabad, in Sessions Case No.143 of 1995. 2. Criminal Appeal No.833 of 1997 under Sec.374 of the Code has been filed by the appellant-original accused No.2-Padmini Mahendrabhai Gadda (hereinafter referred to as “the accused No.2” for short), who has been acquitted for the offence under Sec.302 of IPC and has been convicted under Sec.301 of IPC to suffer R.I. for 2 years and to pay a fine of Rs.5,000/-, in default, to suffer R.I. for 3 months vide judgment and order dated 8th July, 1997 passed by the learned Addl. City Sessions Judge, Court No.11, Ahmedabad, in Sessions Case No.143 of 1995. 3. The case of the prosecution in short is that a complaint was filed by the complainant-Pradip Ratilal Kamdar on 12-12- 1994 before P.I. of Navrangpura Police Station alleging that his sister Padmini and one Mahendrabhai had a love marriage in 1981 and which was accepted by his family members. Initially they resided in the house of complainant. However, they started to reside in Shakuntal Apartment, Near C.N.Vidyalay, Ambawadi, with their two daughters, Ami and Puja aged about 8 and 4 years respectively, studying in Vandana CR.A/83197/1997 4/56 JUDGMENT School where Mahendrabhai had started a health club namely, P.M.Health Club before 4-5 years in addition to the one situated near St.Xavier School, near Chitranjan Society, Naranpura. A person named Kishore Thakkar residing in Naranpura area was employed in said P.M.Health Club prior to 10 months. Before last Diwali, Padmini told wife of the complainant to get separated from Mahendrabhai as she did not like to stay with him. However, when wife of the complainant told her not to do so as she had a love marriage and had two children out of it and also as their P.M.Health Club was nicely running, Padmini told that one Kishore working in the said Health Club was keeping her children nicely. Thereafter, complainant and his wife met Mahendrabhai and inquired about Kishore. Mahendrabhai told that Kishore was being treated as a family member. They told him not to give such facility to an outsider and he agreed to the same. Thereafter, when Mahendrabhai and Padmini came to the house of complainant, Padmini admitted about her illicit relation with Kishore. Kishore was therefore removed from service. During last Diwali, Padmini and Mahendrabhai along with their children went to Mahabaleshwar. On their coming back, as it was told by CR.A/83197/1997 5/56 JUDGMENT Mahendrabhai to the complainant about the contact being still continued by Padmini with Kishore, the complainant and his wife told Padmini to leave everything. On previous day at 12 noon, Padmini and Mahendrabai with their children came to the house of complainant for lunch and returned at about 2.30 p.m. Then Mahendrabhai had a talk over phone with wife of the complainant at about 5.30 p.m. and next with the complainant at about 8.30 to 9.00 p.m. as a regular talk. When wife of the complainant tried to inquire about the health of younger daughter of Padmini, phone was found engaged and when she got the connection at 10.30 a.m., wife of the complainant asked Padmini about Mahendrabhai. At that time, Padmini informed that he had gone to Naranpura Health Club. On being asked about the telephone getting engaged, she told that it was because of the telephone wire having come out from the socket while cleaning. This fact was informed to the complainant by her when he came for lunch at about 2.00 p.m. on the same day. Since the complainant became suspicious, he asked Padmini about Mahendrabhai at about 3.00 p.m. when she informed that Mahendrabhai had gone to Bombay. Hearing this, he became more CR.A/83197/1997 6/56 JUDGMENT suspicious as Mahendrabhai did never use to go out of Ahmedabad for the last 14 years without keeping him informed. They however presumed that Mahendrabhai might have left home after quarrelling with Padmini about Kishore and, therefore, they came to Ambavadi Health Club at about 4.00 p.m. When they rang the bell, Padmini opened the door and they went inside. Inside the room, they saw younger daughter Puja lying near the dining table having fever while Padmini went to the bed room. The complainant asked Padmini as to why Mahendrabhai went to Bombay. However, the reply was that Mahendrabhai went to Bombay in Karnavati at about 4.00 a.m. and would be returned on the next day evening. At that time when wife of the complainant told Padmini about her telling in the morning that Mahendrabhai went to Naranpura Health Club, it was told by her that Mahendrabhai did not want anybody to be informed about his visit to Bombay. Since the time was 4.00 p.m., the complainant asked Padmini to bring daughter Ami from school. She instead told that Minaben would bring her. However, due to persuasion, she reluctantly went to bring her daughter. He thereafter had a round in the bedroom. He saw the bathroom locked from outside and though the handle CR.A/83197/1997 7/56 JUDGMENT was there, upper side of stopper was also put. He opened the said stopper and tried to open the door but could not be opened as he felt it to be locked from inside. Suddenly, the door was opened from inside and Kishore, who had a relation with Padmini and who put up black bush shirt with pen button and having a bandage in his hand, pushed the complainant and came out of the bathroom. When they tried to catch him, he pushed them away and ran out and in the process, his bush shirt came out on the floor. They saw his license in the pocket of said bush shirt. Though he went after him upto the gate of said flat, he saw Kishore running with only pants on his body and catching a rickshaw. He thereafter came back and went inside the bathroom and saw dead body of Mahendrabhai in a pool of blood. Since Padmini did not return, he went to call her leaving his wife and Puja there, but he could not see her at School. He therefore brought Ami from School and informed his father about the incident. Thereafter, he went to Ellisbridge Police Station and informed P.I., Shri Gohil about the incident. Shri Gohil then informed P.I., Navrangpura Police Station. On his reaching the Health Club, P.I., Navrangpura Police had already reached there and CR.A/83197/1997 8/56 JUDGMENT complaint was given to the P.I. there itself. Thereafter, same has been sent to Navrangpura Police Station for registering the offence and offence was registered as Navrangpura Police Station I.C.R.No.759 of 1994. He started further investigation and recorded statements of various persons. He also prepared inquest panchnama in presence of panchas and also made arrangements to send dead body of the deceased for post mortem. He also prepared panchnama of scene of offence, etc. During the course of investigation, muddamal was seized by drawing panchnama to that effect, sent the same to FSL, collected admitted handwriting of accused Kishore and tried to catch accused Kishore and Padmini at various places. After a considerable period, the accused were arrested and thereafter they were taken to the places of their visit after the incident and several documents and oral evidence of various persons including specimen handwriting of the accused were collected and sent to the handwriting expert. On receiving the post mortem note and other reports, same were kept in investigation file. Upon completion of investigation, he submitted the charge sheet against the accused in the Metropolitan Magistrate Court No.9, CR.A/83197/1997 9/56 JUDGMENT Ahmedabad. 4. As the offence alleged against the accused was exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate committed the case to the Court of Sessions at Ahmedabad City where it was numbered as Sessions Case No.143 of 1995 and transferred to learned Addl. City Sessions Judge, Court No.10 for trial. The learned Addl. City Sessions Judge framed charge against the accused at Ex.4. The accused pleaded not guilty to the charge and claimed to be tried. 5. To prove the case against the accused, the prosecution examined 48 witnesses in all namely, P.W.1 Dr.Dilip Manubhai Desai Ex.17; P.W.2 Ramalakshman Girdavan Yadav Ex.21; P.W.3 Pradip Ratilal Kamdar Ex.22; P.W.4 Rajendra Hiralal Shah Ex.23; P.W.5 Surendrasinh Gambhirsinh Gohil Ex.30; P.W.6 Navabahmad Rafiyuddin Shaikh Ex.31; P.W.7 Yogesh Pannalal Shah Ex.32; P.W.8 Vinodkumar Lajjaram Gupta Ex.33; P.W.9 Manoj Ishwarbhai Ex.36; P.W.10 Jaswantbhai Babalal Vohra Ex.37; P.W.11 Rajendra Keshavlal Ex.38; P.W.12 Nayamesh Liladhar Joshi Ex.39; P.W.13 Devendrabhai Kanjibhai Jhaveri Ex.46; P.W.13A Kantilal Mafatlal Thakor Ex.51; P.W.14 Balvirsinh Umedansinh Rajput Ex.53; P.W.15 Dilipsinh CR.A/83197/1997 10/56 JUDGMENT Taprabhatsinh Darbar Ex.56; P.W.16 Rannaben Shaileshkumar Gandhi Ex.63; P.W.17 Anand Pankajbhai Sheth Ex.68; P.W.18 Dharmendra Pravinchandra Shah Ex.71; P.W.19 Kanubhai Somabhai Valand Ex.72; P.W.20 Dr.Devan Govindbhai Desai Ex.76; P.W.21 Dashrathkumar Vadilal Thakkar Ex.78; P.W.22 Maganbhai Madubhai Limbachia Ex.79; P.W.23 Minaben Dipakbhai Desai Ex.83; P.W.24 Hardik Harivadanbhai Raval Ex.84; P.W.25 Banaji Kanaji Thakore Ex.85; P.W.26 Chaudhary Kuljibhai Natahubhai Ex.87; P.W.27 Jay Ashwinbhai Choksi Ex.88; P.W.28 Ibrahimbhai Nasirbhai Ex.93; P.W.29 Kuljibhai Jethabhai Patel Ex.95; P.W.30 Nayanaben Harnishbhai Shah Ex.97; P.W.31 Somaji Panaji Ex.101; P.W.32 Suryakant Chimanlal Vora Ex.103; P.W.33 Dansinh Kulaji Rajput Ex.105; P.W.34 Ami Mahendrabhai Gadda Ex.112; P.W.35 Vaghumal Jawaharlal Bhojvani Ex.118; P.W.36 Yogeshkumar Kantilal Shah Ex.120; P.W.37 Parsottamdas Jagjivanram Rami Ex. Ex.122; P.W.38 Ranaji Ramaji Thakor Ex.123; P.W.39 Ramji Rupsing Ex.124; P.W.40 Jagdishkumar Amratlal Soni Ex.127; P.W.41 Jagdish Sundarlal Parmar Ex.130; P.W.42 Mukesh Nandshankar Ex.135; P.W.43 Amarsinh Ramsaransinh Chandravanshi Ex.140; P.W.44 Dipak Prabhudas Shah, Ex.146; P.W.45 CR.A/83197/1997 11/56 JUDGMENT Jagdishbhai Jethabhai Patel Ex.147; P.W.46 Jayantilal Hiralal Ex.156; P.W.47 Vishnubhai Parmanand Ganjani Ex.160 and P.W.48 Police Inspector, Narayansinh Bhavansinh Parmar Ex.164. Prosecution also relied upon various documentary evidence such as complaint, inquest panchnama, panchnama of place of offence, clothes attached from the dead body of deceased, panchnama of house of Gita-sister of accused No.1, panchnama of place of offence in presence of FSL expert, the things attached from that place, other things recovered during panchnama, handwriting of accused No.1 taken in presence of panchas, panchnama of various places where accused stayed, record of Dharmashala and hotels attached under the panchnama, panchnama of weapons were recovered at the instance of accused No.1, opinion of FSL expert of various items, report of handwriting experts, etc. The accused however did not examine any witness. On submission of closing purshis by the prosecution, learned Addl. City Sessions Judge, recorded the further statement of the accused under Sec.313 of Cr.P.C. Thereafter, upon hearing the learned counsel appearing for the respective parties, learned Addl. City Sessions Judge, Ahmedabad, delivered the CR.A/83197/1997 12/56 JUDGMENT impugned judgment. 6. Being aggrieved and dissatisfied with the conviction for the offence under Sec.302 IPC, the accused No.1 preferred Criminal Appeal No.831 of 1997 through learned counsel, Mr.S.A.Baqui, whereas accused No.2 preferred Criminal Appeal No.833 of 1997 against her conviction for the offence under Sec.201 IPC to undergo sentence of 2 years RI with a fine of Rs.5,000/- in default to undergo 3 months RI through learned counsel, Mr.A.D.Shah. It is required to be noted that State did not prefer any appeal against the acquittal of accused No.2 for the offence under Sec.302 IPC. 7. When both the aforesaid appeals came up for admission hearing, this Court vide order 30-3-1998 admitted the appeals and issued notice for enhancement of sentence awarded to the original accused No.2 by the learned Addl. Sessions Judge under Sec.201 of IPC in Criminal Appeal No.833 of 1997 and it has been numbered as Criminal Miscellaneous Application No.1121 of 1998 in Criminal Appeal No.833 of 1997. 8. As both the appeals and the Criminal Misc. Application arose out of the same judgment and order dated 8-7-1997 passed in Sessions Case No.143 of 1995 by the learned Addl. CR.A/83197/1997 13/56 JUDGMENT City Sessions Judge, Ahmedabad, they were heard together and are being decided by this common judgment. 9. Heard learned counsel, Mr.S.A.Baqui, for the original accused No.1 in Criminal Appeal No.831 of 1997, Mr.A.D.Shah, for the original accused No.2 in Criminal Appeal No.833 of 1997 as well as in Cri.Misc.Appln.No.1121 of 1998 in Criminal Appeal No.833 of 1997 and learned APP, Mr.R.C.Kodekar, for the respondent-State in all the three matters. We have been taken to various oral as well as documentary evidence. 10. Before proceeding further with the matter, we would deal with the oral as well as documentary evidence led by the prosecution. In this case, prosecution examined in all 48 witnesses and also placed reliance upon various documentary evidence, detailed description of which has been given by the court below in the impugned judgment. 11. To prove the aspect of homicidal death of the deceased, the prosecution examined Dr.Dilip Madhubhai Desai at Ex.17, who performed post mortem on the dead body of the deceased on 13-12-1994. He deposed that he found the dead body with various bloodstained clothes on it having 17 cut CR.A/83197/1997 14/56 JUDGMENT marks. He noticed 50 external injuries and 10 internal injuries on various parts of the body of the deceased and all those injuries were anti-mortem. According to him, external injuries Nos. 13, 14, 16, 18, 20, 21, 28 and 30 were sufficient to cause death in the ordinary course of nature. He deposed that those injuries were possible by Rampuri knife. He gave cause of death as as a result of shock and hemorrhage followed stab injuries sustained by the deceased. Through this witness, prosecution proved post mortem report Ex.18 as well as inquest panchnama. 12. From the above referred evidence, prosecution was able to establish that death of the deceased was homicidal. Both the accused did not dispute this point in the court below as well as this Court. 13. Out of the witnesses examined by the prosecution, first set of witnesses is the witnesses through whom medical evidence has been proved by the prosecution namely, the doctor who performed the post mortem and panchas in whose presence inquest panchnama was carried out. The second set of witnesses is for proving the injuries sustained by the accused No.1 and the treatment taken by him. The third set of witnesses is for proving the circumstantial CR.A/83197/1997 15/56 JUDGMENT evidence as the case is based on circumstantial evidence. There is a child witness i.e. daughter of the deceased and the accused No.2 named Ami Gaddha aged about 6 years at the time of incident, who, according to the prosecution, was in the bed room and was the eye witness of incident. She was examined in the Court after a period of three years. Except her, there is no other eye witness. There are other evidence, oral as well as documentary, starting after accused No.1 ran away from the bath room of bed room of the deceased in which the dead body of the deceased Mahendrabhai was found till the accused were arrested after a period of one and half months. Last set of witnesses is for proving the accused No.1's willingness to show the weapon alleged to have been used by him in the commission of offence, discovery panchnama of the weapon recovered from a small pit dug in the Sabarmati river, report of FSL people regarding the cloth, evidence of Executive Magistrate and other officials like police Officers who were discharging their job as part of their official duty. We will discuss the relevant evidence step by step. 14. The evidence led by the prosecution clearly established that the complainant is the CR.A/83197/1997 16/56 JUDGMENT brother of accused No.2 and brother-in-law of Mahendrabhai. He has been examined by the prosecution at Ex.22 wherein he narrated the family background of Mahendrabhai and his sister i.e. accused No.2 by deposing that the marriage between Mahendrabhai and Padmini was a love marriage which was solemnized in the year 1981. They resided at the house of complainant for five years. Two daughters were born out of said wedlock named Ami and Puja. He deposed that Mahendrabhai was having a Health Club at Chitarajan Society, Near St.Xavier School, Naranpura. Thereafter, he started another Health Club namely P.M.Health Club in Shakuntal Apartment at Ambawadi and he and his family were residing there in the said apartment. He further deposed that he, Padmini and Mahendrabhai know Kishore-accused No.1 as he was serving in the P.M.Health Club, Ambawadi, run by Mahendrabhai. The evidence of the complainant further established that before one month of the preceding Diwali, when Padmini came to his house, she told the complainant's wife that she was not finding comfortable to stay with Mahendrabhai and wanted to separate from him. Complainant's wife advised her that she had children and their business of CR.A/83197/1997 17/56 JUDGMENT Health Club was also running well and hence, she should not talk in this manner. At that time, accused No.2 told that a person named Kishore serving in the Health Club (accused No.1) was keeping her children well than Mahendrabhai. The complainant was also present at that time. The evidence further established that the complainant thereafter inquired about Kishore from Mahendrabhai when he replied that he was just like a family member and, therefore, the complainant advised him not to give more relaxation to an outsider. On the next day, when the deceased and the accused No.2 came to the house of the complainant, they had a talk in respect of Kishore. At that time, Padmini told in presence of Mahendrabhai that she would not keep any relation with Kishore and would leave everything. Thereafter, Kishore (accused No.1) was removed from service of P.M.Health Club. His evidence further established that during Diwali days, Mahendrabhai and Padmini went to Mahabaleshwar and after 8-10 days of their coming back, Mahendrabhai informed the complainant that Kishore and Padmini were still maintaining relations and were meeting. Hence, wife of the complainant told Padmini that it was not good and she CR.A/83197/1997 18/56 JUDGMENT should leave that relation. 15. To prove the above relation between accused No.1 and accused No.2 and to strengthen the evidence of the complainant, prosecution examined an employee of P.M.Health Club serving along with accused No.1 namely Hardik Harivadanbhai Raval as P.W.24 at Ex.84, who used to exchange chits between the accused No.1 and the accused No.2. He supported the say of the complainant in paragraphs 2 and 3 of his deposition. He categorically deposed that he has been used as a mediator in exchanging chits between the accused Nos.1 and 2. He was knowing about their love affairs and thick relation being maintained by them. 16. In the background of the complaint as well as the oral evidence of the complainant and witness Hardik Raval, the prosecution proved the motive and established that Kishore i.e. accused No.1 and Padmini i.e. accused No.2 had love affairs since long. They came in contact with each other as accused No.1 was serving in the Health Club of deceased, the husband of accused No.2. Inspite of intervention and persuasion from family members and husband of the accused No.2 to leave relations with accused No.1, the accused No.2 did not accede to and continued the relations with accused No.1. CR.A/83197/1997 19/56 JUDGMENT It was established that Mahendrabhai was a hindrance in their relations. At this stage, it should be well remembered that death of the deceased was homicidal and his dead body was found from the bathroom of his bed room. 17. To prove the guilt of the accused and to establish the link in the chain of circumstances, prosecution examined several witnesses of which, first important witnesses is the eye witness Ami, daughter of accused No.2 as well as the deceased. She categorically deposed that she saw accused No.1 inflicting blows with knife on her father. Her evidence further suggests that incident took place late after midnight of 11-12-1994. 18. Next important witness in this regard is the complainant Pradip Ratilal Kamdar, brother of the accused No.2-Padmini and brother-in-law of deceased. He categorically deposed that on the day of incident, he and his wife went to the house of deceased and accused No.2 to inquire about the health of their niece Puja. The door was opened by Padmini and younger daughter was sleeping near the dining table. They inquired about the deceased and as school time was about to be over, the complainant asked Padmini as to why she was CR.A/83197/1997 20/56 JUDGMENT not going to take her elder daughter from School. Then, the complainant moved in the bedroom and he found the bathroom closed by applying stopper. He tried to open the door by moving the door latch but it was not being opened. Meanwhile, he heard some voice suggesting that stopper is being opened from inside. Door of bathroom was then opened towards the bedroom side and he saw Kishore Thakkar i.e. the accused No.1, who put up black shirt with buttons open and who had a bandage on his right hand, coming out of the bathroom. He pushed the complainant and tried to go out of the bedroom. The complainant shouted and tried to catch Kishore but he tried to run. The complainant's wife came to his rescue and in scuffle, shirt of Kishore fell on the floor and he ran away on bare foot having no cloth on upper side through main door. He was having only black pants on his body. The complainant ran after him upto the main gate and he saw from a distance of his catching a rickshaw and proceeding towards Panjrapole side. The complainant again came back to the house in the main room where shirt of Kishore was fallen. From the said shirt, articles like driving license, diary, etc. were found. Then he went into the bathroom where he saw the deceased CR.A/83197/1997 21/56 JUDGMENT seriously injured in bleeding condition and he was dead. He immediately went to call Padmini back. However, when he reached Vandana School, he could not see her there and hence, he brought Ami back to the house of the deceased. He then phoned to his father and informed about the incident. Thereafter, he went to Ellisbridge Police Station and informed P.I., Shri Gohil, of the incident.