CR.A/1194/2004 1/89 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1194 of 2004 With CRIMINAL APPEAL No. 1222 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA 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 ? ================================================= ATULKUMAR VIKASCHANDRA VAJPAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ================================================= CR.A/1194/2004 2/89 JUDGMENT Appearance : MS SADHANA SAGAR for Appellant in both the appeals MR AJ DESAI ADDL. PUBLIC PROSECUTOR for respondents in both the appeals ================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 17/25-09-2007 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. By these two Criminal Appeals filed under Section 374 (2) of the Code of Criminal Procedure ('the Code' for short), the appellant of both these appeals ('the accused' for short) have challenged the judgment and order dated 25.5.2004 rendered in Sessions Case No.57 of 1999 by the learned Additional Sessions Judge (2nd Fast Track Court), Surat, by which both the accused have been convicted for the offences under Sections 302, 364, 394, 397, 398 and 201 read with Section 34 of the Indian Penal Code ('IPC' for short) and each of them has been sentenced to the following CR.A/1194/2004 3/89 JUDGMENT terms: S.No Term of sentence Section 1. Imprisonment for life and fine of Rs.5,000/- i.d., RI for one year 302/34 2. R.I. for five years and fine of RS.2,000/- i.d., RI for three months 364/34 3. R.I. for ten years and fine of Rs.2,000/- i.d., RI for three months 394,397 ,398/34 4. RI for three years and fine of RS.1,000/- i.d. RI for one year 201/34 It is also ordered that all the above sentences shall run concurrently. 2. The prosecution version, as unfolded during the trial, is as follows: 2.1. On 3.6.1998, Noormohamad Pir Mohamad Shaikh has lodged one missing entry being “Janva Jog” Missing Register No.19/1998 with Mahidharpura Police Station that his son viz., Mohmed Riyaz who was running taxi bearing registration No.GJ-5-U-9969 had gone to the Taxi Stand, Opposite Surat Railway Station on 1.6.1998 at about 8.00 A.M., and at about 11.00 A.M., said CR.A/1194/2004 4/89 JUDGMENT Mohmed Riyaz had gone to Vadodara with passengers and was supposed to return on 2.6.1998 at about 9.00 A.M. but somehow said Mohmed Riyaz had not returned till 3.6.1998. 2.2. It is further case of the prosecution that one R.B. Patil, P.S.I. State Highway Branch from Fajalpur to Karjan, Highway Mobile No.1 was on his duty on 4.6.1998 and while patrolling when he was passing through the sim of Baman village, he found some street dogs barking near the Modern Petrofils Company and smelt some foul smell and, therefore, he stopped the jeep and went to the said place where he found a decayed dead body of a male person lying in the bushes. It is further case of the prosecution that the said PSI RB Patil has informed at the nearest Police Station i.e., Karjan Police Station about the incident and thereafter the police officers from Karjan Police Station arrived at the said place and carried out the required proceedings and thereafter one A.R. Choudhary, Sr. PSI Karjan Police Station, lodged an FIR being CR No.I- CR.A/1194/2004 5/89 JUDGMENT 159/1998 for the offences punishable under Sections 302 and 201 IPC. During the course of investigation it was found that the said dead body was of Mohmed Riyaz and, therefore, the muddamal articles and papers have been transferred to Mahidharpura Police Station, Surat. 2.3. It is further case of the prosecution that prior thereto another FIR has been lodged by one Mohmed Firoz Noormohamad Shaikh with the Mahidharpura Police Station, Surat City being CR No.I-234 of 1998 on 3.6.1998 for the offences punishable under Sections 364, 394, 34 IPC and 25 (1) (a) of the Arms Act. It is alleged in the said FIR that the younger brother of the complainant viz., Mohmed Riyaz i.e, the deceased was running taxi bearing registration No.GJ-5-U- 9969 and used to go to Taxi Stand, near Surat Railway Station at 8.00 A.M., and return at 9.00 P.M. It is alleged that, as usual, on 1.6.1998 he went to the said taxi stand, near Surat Railway Station and on the next day i.e., 2.6.1998, the CR.A/1194/2004 6/89 JUDGMENT complainant had inquired about the deceased to one Ghulam Mohamad Shaikh who is also a taxi driver, residing in the same vicinity and the complainant was informed that the deceased went to Kribhco and then to Vadodara with passengers but till 12.00 noon of 3.6.1998 he did not return to his home and, therefore, father of the deceased has lodged a missing entry. It is also alleged that on 3.6.1998 the complainant has received an information at 3.30 P.M. from the Police Station that on Baroda Highway the accused persons viz., (1) Raju Babulal Yadav and (2) Atulkumar Vikaschandra Vajpai had committed murder of Mohmed Riyaz by using fire arms and stones and thereafter ran away with the said taxi - Maruti Van. It is further alleged that the said accused persons have been arrested with the said Maruti Van by B.N. P. Devas Police Station. Under these circumstances, the aforesaid FIR came to be lodged. 2.4. Pursuant to the registration of the complaint at Mahidharpura Police Station, Surat CR.A/1194/2004 7/89 JUDGMENT City, investigation was put into motion. During the course of investigation, the complainant Mohmed Firoz Noormohamad Shaikh was informed by the Police Constable from Mahidharpura Police Station that ahead of Miyagam Karjan there was a village called Baman where opposite Modern Petrofils towards the west at a distance of approximately 20 ft, a corpse has been found. Therefore, he, his elder brother Mohmed Rafiq, his other relatives, namely, Mohmed Salim Ghulam Mohamad Shaikh, etc., had gone to Baman village. After going there, his elder brother Mohmed Rafiq Noormohamad Shaikh had identified the dead body, which was his brother Mohmed Riyaz's dead body. Two to three fingers of his brother Mohmed Riyaz's right hand were cut. He had seen his brother's dead body. The wrist of his brother's left hand had been amputated. A large metal rock was lying at a distance of two feet from his brother's body, on which there were dried bloodstains. His brother's dead body had decayed. A knife was lying at a distance of two to four feet from his brother's dead body. The police had CR.A/1194/2004 8/89 JUDGMENT seized the knife and metal rock. Thereafter post mortem examination was conducted on 4.6.1998 and thereafter they had taken his brother's dead body and buried it at 12 O'clock at night at Surat. His brother's Maruti van had been seized by the Devas Police Station. 2.5. During the course of further investigation, statement of Babulal Siddhanath Malvi, a Home Guard, who was discharging duties at the Thana Bank Note Press at Devas was recorded. He has stated that on 3.6.1998 a general checking of vehicles was being carried out along with the police at National Highway. At that time he was standing near the Police Station and S.C.M. Vikramsinh Rathod had told him to come with him for checking of vehicles. Along with them Surajpalsinh who was the Station Officer had also proceeded for checking of vehicles. Thereafter they had reached near the Bhopal Crossroads at a distance of two furlongs from the Police Station. At that time as they suspected one Maruti van, it was stopped. The said car had CR.A/1194/2004 9/89 JUDGMENT a number plate in front but there was no number plate at the back. The number plate on the front side had the number D.L.2.9426. They had checked the said van. Raju alias Rajpal was driving the van. As the van has come near their Thana and stood there, they had asked their names and addresses and on suspicion being raised they had checked the van. A 315 bore Tamancha was found from Raju and upon asking about the licence he had informed that he did not have a licence and hence the same was seized. There were two persons in the van. There was a suitcase which was with Raju and upon opening it, addresses of Surat were found. The said papers were pertaining to Hotel Hariyali of Surat. From the other bag which was with the other person, bloodstained clothes were found which consisted of a lungi, towel, shirt, pant, etc. Upon searching the other person, a knife was found which was about 13 to 14 inches long. He has, therefore, seized the muddamal as well as the vehicle. During the course of further investigation, upon the number plate being found from underneath the seat of the vehicle CR.A/1194/2004 10/89 JUDGMENT afterwards, it was learnt that the real number of the Maruti Van is GJ-5-U-9969. As the papers of the vehicle were of Gujarat, upon finding them from the van the same were seized. The second person who was in the van was Atulkumar and, therefore, he had arrested both the persons. During the course of further investigation, both the accused were brought from Devas to Surat under transfer warrant along with the muddamal seized, i.e., weapons and the Maruti Van. Thereafter panchnamas of the person of the accused persons were prepared, panchnama of the Maruti Van was also prepared and statements of witnesses were recorded and TI Parade was arranged through Executive Magistrate in presence of panchas and in TI parade the persons who were running taxi at Surat Railway Station Tax Stand and whose statements were recorded earlier, identified both the accused persons in presence of Executive Magistrate. Thereafter muddamal which were recovered from the scene of offence were sent to FSL, obtained post mortem as well as FSL reports and as sufficient incriminating CR.A/1194/2004 11/89 JUDGMENT evidence was found against both the accused persons, they were charge-sheeted in the Court of learned JMFC, Surat where it is numbered as Criminal Case No.678 of 1998. 2.6. As the offence under Section 302, etc., IPC are exclusively triable by a Court of Sessions, the learned JMFC, Surat committed the case to the Court of Sessions, Surat where it was numbered as Sessions Case No.57 of 1999. 2.7. The learned Additional Sessions Judge, Surat to whom the case was made over for trial, framed the charges against both the accused persons for commission of the offences under Sections 364, 394, 397, 302, 34 IPC, Section 25 (1) (1B) (a) of the Arms Act and Section 135 of the Bombay Police Act. The charges were read over and explained to the accused persons. They pleaded their innocence and claimed to be tried and, therefore, they were put to trial. 2.8. To prove the culpability of the accused CR.A/1194/2004 12/89 JUDGMENT persons, the prosecution has examined as many as 30 witnesses and relied upon their oral testimonies, the details of which have been given in paragraph 3 of the impugned judgment and order, as under: P.W.No Name and status Ex.No. 1 Mohmed Firoz Noormohamad Shaikh, brother of the deceased- complainant 26 2 Mohamad Mustaq Mohamad Ismail Shaikh, Panch witness in respect of the panchnama of identification of the dead body 28 3 Dineshchandra Chhotalal Modi, the witness who has identified the accused 30 4 Dr. Jai Arvindbhai Shah, who performed the post mortem examination 32 5 Rameshchandra Jerambhai Patel, witness who has prepared the map of the place of offence 35 6 Mohmed Salim Ghulam Mohamad Shaikh, witness who was running the taxi on rent 37 7 Majidkhan Ahmedkhan, witness 38 8 Zamir Ahmed Ghulam Rasul Shaikh, panchnama of the panchnama by which the clothes of the deceased was seized. 39 9 Rambahadur Mataprasad Mishra, panch witness of the panchnama of the physical condition of the accused persons 41 CR.A/1194/2004 13/89 JUDGMENT P.W.No Name and status Ex.No. 10 Mohamad Shahi Ghulam Mohamad, witness who identified the accused 45 11 Bhanubhai Ratanbhai Patel, Executive Magistrate, who conducted the TI Parade of the accused 46 12 Dilip Parameshwar Pawar, panch witness of the panchnama of the place of offence 50 13 Bilal Mohamad Miya Mohamad, witness who identified the accused 52 14 Bhikhusingh Gambhirsingh Chauhan, panch witness in respect of the panchnama in respect of the place where the dead body was lying 54 15 Manohar Kishanchand Naniani, witness who prepared the number plate of the vehicle 55 16 Satish Sahajarilal Chopra, witness who prepared the number plate of the vehicle 56 17 Amrutlal Ramjibhai Choudhari, PSI 58 18 Rameshchandra Baliram Patil, PI 63 19 Anil Narendra Bhatt, PSI 64 20 Gnandev Sahadhu Sarode, Head Constable 66 21 Lotan Nimba, ASI 68 22 Mohmed Rafiq Noormohamad, brother of the deceased, witness 70 23 Babulal Siddhanath Malvi, witness 73 24 Kishorbhai Umedsinghbhai, ASI 79 25 Arjun Tulsiram Borse, PSI 80 CR.A/1194/2004 14/89 JUDGMENT P.W.No Name and status Ex.No. 26 Raisingh Devisingh, Panch witness 86 27 Bhupendra Jayantilal Kansara, PI 88 28 Vishnubhai Ishwarbhai Patel, PSI 89 29 Jayantilal Mafatlal Patel, PSI 90 30 Somabhai Babarbhai Ravat, I.O. 91 2.9. In order to bring home the charges levelled against the accused persons, the prosecution has produced a number of documents and relied upon the contents of the same, the details of which have been given in paragraph 4 of the impugned judgment and order, which will be discussed hereafter in this judgment as and when required. 2.10. After recording of the evidence of the prosecution witnesses was over, the trial court explained to the accused persons the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statement as required under Section 313 of the Code. In their further CR.A/1194/2004 15/89 JUDGMENT statement, the accused have denied the prosecution case in its entirety. They have stated that a false case has been filed against them. In addition to the above, they have also stated that on 3.6.1998 both of them in company of a third person Rajeshkumar Shah were going from Indore to Kanpur in bus No. MP 09 2201. A-2, Raju Rajpal was standing for passing urine near BNP Police Station. A police constable arrested him because he was under intoxication. A-1, Atulkumar Vajpai had gone to rescue him and he was also arrested. Rajeshkumar Shah had given the luggages of both the accused persons to their family members and informed them about their arrest. It is stated that no muddamal has been seized from them, they have been falsely entrapped in the case, they are innocent and they have been acquitted by the learned JMFC, Devas in the case filed against them for the offences under Sections 25 and 27 of the Arms Act by judgment and order dated 10.2.2000. However, they have neither produced any evidence nor did they examine any witness in support of their defence. CR.A/1194/2004 16/89 JUDGMENT 2.11. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court has come to the conclusion that the prosecution has successfully established the complicity of the accused for commission of the offences with which they were charged. On the basis of the circumstantial evidence it is also held that both the accused persons have shared common intention for the purpose of looting the taxi and, therefore, they have prepared false number plate and they have allured the deceased by giving taxi fare charges and misrepresented before him and kidnapped him and committed murder near village Baman and thereafter they threw away his dead body in the road side bushes and with a view to screening offences they tried to destroy the identity of the deceased by beating stones on his face. Thus, according to the trial court, the accused has committed brutal murder. On the aforesaid finding, the trial court has convicted the accused for the offences of kidnapping as well as murder punishable under Section 302 IPC CR.A/1194/2004 17/89 JUDGMENT read with Section 34 IPC and sentenced to suffer imprisonment for various terms to which reference is made in earlier paragraphs of this judgment which has given rise to these two appeals at the instance of original accused Nos.1 and 2. 3. Original accused No.1, Atulkumar Vikaschandra Vajpai, filed Criminal Appeal No. 1194 of 2004 through Mr. SV Raju, learned advocate whereas original accused No.2 Raju alias Rajpal Babulal Yadav, has filed Criminal Appeal No. 1222 of 2004 through jail and requested for rendering him free legal aid. Upon the request made by A-2, Raju alias Rajpal, he has been rendered legal assistance by this Court and Ms. Sadhna Sagar has been appointed to assist him. Mr. SV Raju, learned advocate has withdrawn his appearance from Criminal Appeal No.1194 of 2004 filed by A- 1, Atulkumar Vikaschandra Vajpai. Since Mr. Raju has withdrawn his appearance, upon request of A- 1, Atulkumar he has also been given the legal assistance through Ms. Sadhna Sagar and thus for both the accused persons, Ms. Sadhna Sagar has CR.A/1194/2004 18/89 JUDGMENT appeared and argued the matters. 4. Ms. Sadhna Sagar, learned advocate for the accused, in support of the appeals, has raised the following contentions: (i) The trial court has convicted the accused for commission of the offences with which they were charged absolutely without any evidence on record. There is no eye witness to the incident. (ii) She has even challenged the homicidal death of deceased Mohmed Riyaz, as according to her, the dead body of the deceased Mohmed Riyaz was wrongly identified as it was in a very bad shape and, therefore, impossible to identify the same. She has contended that the post mortem examination has been carried out after two days of the death and the dead body was in such a decayed condition that most of the part of the body was liquefied which was borne out from the deposition of P.W.4, Dr. Jai Shah, the doctor who performed the autopsy. CR.A/1194/2004 19/89 JUDGMENT (iii) She has also pointed out that the whole case is based on circumstantial evidence and to prove the case on the basis of the circumstantial evidence each and every circumstance has to be proved against the accused beyond reasonable doubt which would unerringly lead to the conclusion that the accused and the accused alone were the culprit. (iv) According to her, there is no reliable, cogent and trustworthy evidence to establish that both the accused had hired the taxi of the deceased. The prosecution has tried to establish this fact by way of the evidence of P.W.3, Dineshchandra Chhotalal Modi, P.W.6, Mohmed Salim Ghulam Mohamad Shaikh, P.W.7, Majidkhan Ahmedkhan and P.W.10, Mohamad Shahi Ghulam Mohamad, who, according to the prosecution case, at the relevant time, were present at the taxi stand of Surat Railway Station and one of them was contacted by the accused. According to her, it was impossible for the above-named witnesses to CR.A/1194/2004 20/89 JUDGMENT identify the accused. However, the trial court has wrongly believed the evidence of the above four witnesses to come to the conclusion that the accused had hired the taxi of the deceased and the deceased had taken both the accused in his taxi and thereafter the deceased was not seen alive and his dead body was found. (v) It is also emphasized by her that evidence of P.W.1, Mohmed Firoz Noormohamad Shaikh, is a hear-say evidence as he has got the information from the police control room that the van of the deceased was seized at Devas and two persons have been arrested. (vi) So far as the evidence of T.I. Parade is concerned, it is a fabricated one. As per prosecution case, four persons who were standing at the relevant time at the taxi stand outside Surat Railway Railway Station, have identified both the accused in presence of the panchas in T.I. Parade and the above named witnesses had an opportunity to see the accused persons prior to CR.A/1194/2004 21/89 JUDGMENT T.I. Parade which was held by P.W.11, Bhanubhai Ratanbhai Patel, Executive Magistrate. Besides this, panch witness of TI parade P.W.13, Bilal Mohamad Miya Mohamad, is also residing in the same locality where deceased was residing and, therefore, he is interested witness and hence no reliance can be placed upon the testimony of P.W.13, Bilal Mohamad, who is a panch witness of TI Parade. According to her, all the witnesses of TI Parade were dummy persons. (vi) Lastly it is submitted that so far as the evidence of P.W.23, Babulal Siddhanath Malvi, is concerned, it is also not free from doubt. According to her, merely finding both the accused in the Maruti Van that itself is not sufficient to hold that the accused are guilty of the offences with which they are charged. The pith and substance of her submission centers around that the case is based on circumstantial evidence and the prosecution has failed to establish all the chains in sequence which would CR.A/1194/2004 22/89 JUDGMENT lead to unerring conclusion that the accused is guilty of the offences with which they are charged. On the aforesaid premises, it is submitted by her that the impugned judgment and order of conviction and sentence deserves to be set aside by allowing the appeals and thereby acquitting both the accused of the offences with which they are charged. She, therefore, urged to allow the appeals. 5. In counter submission, Mr. AJ Desai, learned APP for the respondent – State of Gujarat, has submitted that the impugned judgment and order is just and proper and does not require interference of this Court. The prosecution has successfully established that Mohmed Riyaz has died a homicidal death by examining P.W.4, Dr. Jai Shah, who performed the post mortem examination on the dead body of Mohmed Riyaz and there was no question of wrong identification of the dead body. On the basis of the clinching evidence on record, the prosecution has established the guilt of the accused and all the links of the CR.A/1194/2004 23/89 JUDGMENT circumstantial evidence that the two accused persons had hired the taxi of the deceased from taxi stand of Surat Railway Station and thereafter the dead body of Mohmed Riyaz was found on the side of the National Highway near Karjan and the Maruti Van was found with the accused which was having a fictitious number plate and the original number plate was found hidden underneath the seat of the van and also found bloodstained clothes and knife. The prosecution has also proved that both the accused had hired taxi of the deceased and the four witnesses named above were also standing at the relevant time at the taxi stand and they were also searching for customers. All the four witnesses have also identified the accused in TI Parade and Maruti Van of the accused has also been identified by the brother of the deceased and, therefore, the prosecution has established all the links of the circumstantial evidence which would lead to the conclusion of the guilt of the accused and the chain is so complete that there is no escape from the conclusion that CR.A/1194/2004 24/89 JUDGMENT within all human probability the crime was committed by the accused and none else and the prosecution has also established that the circumstances pointed out by the prosecution are incapable of explanation of any other hypothesis than that of the guilt of the accused and there is no proper explanation coming forth from the accused as to how, why and under what circumstance the Maruti Van of the deceased has come in their possession. In the above premises, it is submitted by him that the impugned judgment and order of conviction and sentence passed by the trial court is based on circumstantial evidence which are cogent, reliable and trustworthy, and they rule out the reasonable