CR.A/1109/1999 1/33 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1109 OF 1999 With CRIMINAL APPEAL NO. 1225 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ====================================== 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 ? ====================================== RAJESH @ RAJU RAMRAJ PASI & ANR. - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ====================================== Appearance : Ms. Sadhana Sagar, Advocate appointed by the Legal Aid Committee for both the Appellants. Mr. R. C. Kodekar, Addtl. Public Prosecutor for Respondent(s). ====================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 12/12/2007 CR.A/1109/1999 2/33 JUDGMENT COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. Challenge in these two criminal appeals filed under Section 374 of the Code of Criminal Procedure ('the Code' for short) is to the correctness of the judgment and order dated 01.10.1999 rendered in Sessions Case No. 37 of 1999 by the learned Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur, by which the appellants of both these appeals i. e. original accused Nos.1 and 3 ('A1 and A3' for short) have been convicted for commission of the offences punishable under Sections 394, 302 read with Section 34, and Sections 449 and 452 of the Indian Penal Code ('IPC' for short) and both of them have been sentenced to suffer imprisonment for life and fine of Rs.100/-, in default rigorous imprisonment of one month for the offence punishable under Section 302 read with Section 34 IPC, rigorous imprisonment for five years and fine of Rs.100/-, in default rigorous imprisonment of one month for the offence punishable under Section 394 read with Section 34 IPC, rigorous imprisonment for two years and fine of Rs.100/-, in default rigorous imprisonment of one month for the offence punishable under Section 449 IPC and rigorous imprisonment for one year and fine of Rs.100/-, in default rigorous imprisonment of one month for the offence punishable under Section 452 IPC. It is also ordered that all the substantial sentences shall run concurrently. CR.A/1109/1999 3/33 JUDGMENT 2. The prosecution case, as disclosed from the FIR and unfolded during the trial, is as under: 2.1 In the complaint lodged by Shrikant Chandulal Shah – PW20, who is son in law of the deceased Bhadraben, it is, inter alia, alleged that on 24th January, 1998 at about 5:00 p.m., he received a telephone call from his wife - Smitaben regarding the fact that the servant of her mother came to the house and informed her that the house of Bhadraben is closed for last two days and is locked from outside. The servant also informed that he has come to inquire about the same. Smitaben asked the complainant to come to the house. Accordingly, the complainant came to his house at about 6:00 p.m. and thereafter, went to the house of her mother-in-law i.e. deceased Bhadraben, where he found that his brothers-in-law and his wife were standing outside there. The door of the bungalow of the deceased Bhadraben was closed and was locked. As the lights of the bungalow were off, the watchman of that society, Somabhai Ranabhai, was called and the bore operator - Vasantbhai also came there. The watchman switched on the light with the help of a stick through the window grill. One saree was found lying on the drawing room. The complainant and others broken open the lock and entered into the house. The room in the cellar was closed from outside by stopper and from inside, noise of fan was heard. On opening the door of the room in the cellar, the deceased CR.A/1109/1999 4/33 JUDGMENT Bhadraben was found lying dead, her mouth was gagged and diamond ear ring and two gold bangles, which she used to wear, were not seen. Therefore, PW20 informed the Satellite Police Station. On receipt of the information, M. G. Vaghela – Police Inspector came there. He recorded the complaint of PW-20 as per his narrations and sent it for registration. Thereafter, pursuant to registration of the FIR, the investigation was put in motion and the investigating officer called the dogs squad and other equipments. He also held inquest on the dead body of the deceased in presence of the panchas and thereafter, sent the dead body of the deceased to the hospital for autopsy report. The clothes of the deceased were seized from the hospital after drawing a panchnama and were sent to the Forensic Science Laboratory for analysis. A panchnama of the place of occurrence was drawn and blood stains were collected from the place of occurrence. Thereafter, the investigation was handed over to PW26 - Madarsingh Bhimaji Solanki, Police Inspector of City Crime Branch, Ahmedabad, who, on the basis of the evidence collected, has arrested all the three persons on 16th March, 1998 from Lambha Temple under panchnama. During the course of investigation, the muddamal articles, which were looted by the accused, were also recovered from A1 and A3 by drawing the discovery panchnama at the instance of A1 and A3 and thereafter, sent them to the FSL for analysis. 2.2 On completion of the investigation, as sufficient incriminating evidence was found against all the accused, the CR.A/1109/1999 5/33 JUDGMENT Investigating Officer filed charge-sheet in the Court of the learned Judicial Magistrate (First Class), Ahmedabad (Rural) for commission of the offences under Sections 394, 302, 449 and 452 IPC. As the offences punishable under Sections 302 and 394 IPC are exclusively triable by the Court of Sessions, the learned Judicial Magistrate (First Class) committed the case to the Sessions Court, Ahmedabad (Rural). 2.3 The learned Additional Sessions Judge, Ahmedabad (Rural), to whom the case was made over for trial, framed the charge against the accused for commission of offences punishable under Sections 302, 394, 449, 452 read with Section 120B of IPC. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, they were put to trial by the learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No.37 of 1999. 2.4 In order to bring home the charge levelled against the accused, the prosecution has examined as many as 26 witnesses and relied upon their oral testimonies. The details of which are detailed in paragraph-11 of the impugned judgment and order, they are as under: PW Name Status Exh. No. 1 Sunil Prafulchandra Trivedi Panch Witness 11 2 Amitkumar Dhanubhai Panch Witness 14 CR.A/1109/1999 6/33 JUDGMENT PW Name Status Exh. No. 3 Kiritbhai Navinchandra Panch Witness 19 4 Snehal Upendrabhai Thaker Panch Witness 21 5 Rajeshbhai Umeshbhai Shah Panch Witness 25 6 Ritaben w/o Shripal Gandhi Witness 26 7 Sanjaybhai Shantilal Shah Panch Witness 27 8 Kanubhai Govindbhai Rabari Panch Witness 31 9 Firozkhan Sharifkhan Panch Witness 36 10 Rajubhai Ishwarbhai Kahar Panch Witness 38 11 Rajeshbhai Ganeshbhai Kahar Panch Witness 41 12 Keshabhai Manabhai Parmar Panch Witness 44 13 Yakubbhai Ibrahimbhai Sheikh Panch Witness 50 14 Mahendrasinh Vanubha Jhala Police Constable – Witness 52 15 Govindbhai Motibhai Jamadar 53 16 Jayantilal Manilal Patel Circle-Inspector – Witness 57 17 Vinodkumar Dilipbhai Christian Head Constable – Witness 60 18 Atmaram Parsottam ASI – Witness 65 19 Maheshbhai Hariprasad Dave Finger Print Expert – Witness 68 20 Shrikantbhai Chandulal Shah Complainant 77 21 Bhavesh Prahladbhai Thakker 81 22 Dr. Mayuriben Shantilal Shah 85 23 Nathubha Mohansingh Gadhvi Head Constable – Witness 89 24 Manoharsinh Gulabsinh Vaghela Police Inspector – Witness 91 25 Dr. Ravindra Shrikrishna Bhinse Witness 94 26 Madarsingh Bhikhaji Solanki Police Inspector – Witness 96 CR.A/1109/1999 7/33 JUDGMENT 2.5 To prove the culpability of the accused, the prosecution has also produced 22 documents and relied upon the contents of the same, the details of which are mentioned in paragraph-12 of the impugned judgment and order. They are as under: Sr. No. Particulars Exh. No 1 Panchnama of the muddamal disclosed by Accused No.1. 12 2 Inquest Panchnama. 15 3 Slip of muddamal signed by the panchas. 16 4 Panchnama of the articles seized from the scene of occurrence. 17 5 Chits containing signatures of panchas. 18 6 Panchnama of muddamal disclosed by Accused No.3. 20 7 Panchnama of seizure of photograph of deceased Bhadraben. 22 8 Panchnama of breaking open the lock. 30 9 Panchnama of seizure of clothes of the deceased Bhadraben. 32 10 Panchnama of seizure of plastic button. 37 11 Panchnama of seizure of clothes of accused No.2. 40 12 Panchnama of seizure of clothes of accused No.3. 43 13 Panchnama of seizure of clothes of accused No.1. 46 14 Yadi of Investigating Branch. 90 15 Report of the Police Inspector for registering the offence. 92 16 Original complaint. 93 17 Post Mortem Note of the deceased Bhadraben. 95 18 Forwarding Note of the FSL. 97 19 Receipt of the FSL. 98 20 List of muddamal of the FSL. 99 CR.A/1109/1999 8/33 JUDGMENT Sr. No. Particulars Exh. No 21 FSL Report. 100 22 Report of Serological Department of FSL. 101 2.6 After recording of the evidence of the witnesses was over, the trial court explained to the accused the circumstances appearing against them and recorded their further statement under Section 313 of the Code. In their further statements, they denied the case of the prosecution in its entirety and stated that false case has been filed against them. However, they neither produced any evidence nor did they examine any witness in support of their defence. 2.7 On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court has held that A1 and A3 have committed trespass in the house of the deceased Bhadraben with an intention to loot articles and during the course, they have also committed murder of Bhadraben and therefore, the complicity of A1 and A3 in commission of the offences has been duly proved. It, therefore, recorded the order of conviction and sentence against A1 and A3 and passed the order imposing various sentences to which reference has been made in the earlier paragraph of this judgement, which has given rise to both these appeals at the instance of A1 and A3. It may be noted that the trial Court has acquitted accused No.2. CR.A/1109/1999 9/33 JUDGMENT 3. Ms. Sadhana Sagar, learned Advocate appointed by the Legal Aid Committee appearing on behalf of the accused, has vehemently assailed the impugned judgment and order by raising the following contentions: (i) The prosecution has failed to establish the motive of the crime. The prosecution has failed to prove the enmity between the accused and the deceased Bhadraben. There is no direct evidence in the case as nobody has seen the incident of the accused having committed the robbery and murder, with the result the prosecution has relied upon the circumstances to prove its case. Even the circumstances relied upon by the prosecution are not sufficient to establish the guilt of the accused beyond any reasonable doubt. The case mainly hinges upon the so- called circumstances of discovery of the weapon at the instance of the accused themselves, which creates a reasonable doubt. (ii) Accused No.3 is the servant working in the house of the deceased, therefore, there was no reason for him to commit murder of the deceased Bhadraben for the purpose of looting the articles as he had easy access to the house of the deceased. The evidence in the nature of discovery panchnama suffers from serious defects which are fatal to the prosecution and the said panchnama cannot be made the sole basis of CR.A/1109/1999 10/33 JUDGMENT conviction. (iii) The trial Court, without appreciating the evidence on record, has convicted the accused merely on the basis of the discovery panchnama and that too, in the offence of murder. The trial Court has not appreciated the principles enunciated by the Supreme Court in the catena of decisions with regard to appreciation of evidence in a case based on the circumstantial evidence. According to her, the circumstances should be of conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In the instant case, there is no chain of evidence that leads to the conclusion that the accused alone has committed the crime. (iv) It is also asserted by her that the trial Court has misdirected itself in considering the only piece of evidence, that is, discovery panchnama and has reached to the erroneous conclusion of recording the conviction and sentence against accused Nos.1 and 3. (v) On the aforesaid premises, according to her, the impugned CR.A/1109/1999 11/33 JUDGMENT judgement and order of conviction deserves to be quashed and set aside by allowing both these appeals and thereby acquitting the accused of the offences with which they were charged. He, therefore, urges to allow both these appeals . 4. Per contra Mr. R. C. Kodekar, learned Additional Public Prosecutor of the respondent-State, has supported the impugned judgement and order of conviction and sentence. According to him, no interference is called for in the impugned judgement and order of conviction and sentence as the trial Court, after considering the entire evidence on record, has come to just and proper conclusions. He, therefore, contended that no case is made out to take a view contrary to the view taken by the trial Court. According to him, it is true that in this case, there is no eye witness to the incident of committing robbery in the house of the deceased and causing her murder. However, the panchas of the discovery panchnama have categorically deposed that both the accused have shown their willingness to give the clue of the articles looted by them and accordingly, at their instance, a preliminary panchnama was drawn and at the time of drawing the preliminary panchnama, both the accused have admitted before the panchas that they had looted the articles which they had concealed at the place disclosed by them and A3 has also admitted that he had also committed murder of the deceased, and on the basis of the information given by the accused, CR.A/1109/1999 12/33 JUDGMENT the articles were recovered from the place, which was shown by the accused. Therefore, this fact is conclusive proof of the accused having committed the offence of robbery as well as murder. Lastly, according to him, in the case of circumstantial evidence, the articles looted by the accused, which were recovered at their instance, also leads to the conclusion that they have committed murder of the deceased. On the aforesaid premises, according to him, the impugned judgement and order of conviction and sentence does not call for any interference of this Court. Therefore, both the appeals lack merit and deserve to be dismissed. He, therefore, urges to dismiss both the appeals. 5. This Court has considered the submissions advanced by Ms. Sadhana Sagar, learned Advocate appointed by the Legal Aid Committee on behalf of the appellants, and Mr. R. C. Kodekar, learned Additional Public Prosecutor for the State of Gujarat, in both the appeals. This Court has also perused the impugned judgment and order and undertaken 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. 6. At the outset, be it stated that so far as the homicidal death of the deceased is concerned, no dispute is raised by the learned Advocate of the accused before this Court. She has admitted that the CR.A/1109/1999 13/33 JUDGMENT deceased has died a homicidal death. However, we have perused the evidence of PW25 – Dr. Ravindra Shrikrishna (Exh.94), who has performed the autopsy on the dead body of the deceased and issued post mortem report at Exh.95. On a conjoint reading of the oral evidence of PW25 – Dr. Ravindra Shrikrishna and autopsy report – Exh.95, it is seen that the deceased has received as many as 15 external injuries and 4 internal injuries and cause of death was due to shock as a result of asphyxia and post mortem findings are suggestive of strangulation and gagging. Therefore, there is no manner of doubt that the deceased Bhadraben died a homicidal death. The trial Court has, therefore, rightly recorded the finding that the deceased has died a homicidal death and we affirm the said finding. 7. It may be noted that the prosecution case against the accused is rested on the circumstantial evidence as there is no eye witness to the incident of killing the deceased Bhadraben as well as robbery committed by the accused in the house of the deceased. 8. It is settled principle of law that in order to sustain conviction on the basis of circumstantial evidence, prosecution must fulfill three conditions: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; CR.A/1109/1999 14/33 JUDGMENT (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) 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 it should also be incapable of explanation of any other hypothesis than that of the guilt of the Accused. Further, in cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the Accused. The above principles are laid down by the Supreme Court in the case of Jaharlal Das v. State of Orissa, reported in AIR 1991 SC 1388. 9. It is also one of the settled principles of law that witnesses may tell lies but not circumstances. The Court must adopt cautious approach for basing conviction on circumstantial evidence. The Supreme Court has reiterated it in the case of State of Haryana v. Ved Prakash, CR.A/1109/1999 15/33 JUDGMENT reported in AIR 1994 SC 468. 10. The Supreme Court, in the case of Ramkumar Madhusudan Pathak v. State of Gujarat, reported in (1998) 7 SCC 702, has aptly and elaborately laid down the principles as to which are the circumstances establishing guilt of the accused. 11. The Supreme Court in the very well known case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in AIR 1984 SC 1622, has laid down the following five principles to base conviction on the circumstantial evidence: (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 facts 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 a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved, and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the CR.A/1109/1999 16/33 JUDGMENT innocence of the Accused and must show that in all human probability the act must have been done by the Accused. 12. In the latest decision of the Supreme Court in the case of Jaipal v. State of Haryana, reported in (2003) 1 SCC 169, it has been held that merely because the accused could have had a motive for causing death of the deceased, it would not by itself be enough to sustain the finding of guilt against him. 13. Keeping in forefront the aforesaid principles clearly elucidated by the Supreme Court, we may now advert to the evidence adduced by the prosecution to find out whether the prosecution has successfully established the chain of evidence to base the conviction on the circumstantial evidence adduced by it with regard to the complicity of accused Nos.1 and 3 in committing the offence of robbery as well as murder of deceased Bhadraben. 14. To prove the case against the accused on the basis of the circumstantial evidence, the prosecution has pitted the following fourteen circumstances against the accused: (i) The deceased Bhadraben, widow of Jesangbhai Hakamchand, aged 80 years, was staying alone at 20, Shyamal Row- House, Part-II. CR.A/1109/1999 17/33 JUDGMENT (ii) The daughter of the deceased Bhadraben, Smitaben, is staying with her husband – Shrikantbhai Chandulal Shah (complainant) at 96, Shyamal Row-House, Part-I. (iii) Another daughter of the deceased Bhadraben, Ritaben, is staying with her husband – Shripal Jashwantlal Shah at 137, Manek Baugh Society, near Shreyas Crossing. (iv) Accused No.3 – Gebji alias Kalu Amraji Mena was working as a servant in the house of the deceased Bhadraben since four years of the occurrence of the incident. (v) At about 1’o clock in the afternoon on 22nd January, 1998, the daughter of the sister of the mother of Smitaben - wife of the complainant, Guluben alias Rakshaben Jhaveri, who is staying at Bangalore, had come to the house of Bhadraben on 22nd January, 1998 in the afternoon and had stayed till 1’o clock in the afternoon. At that time, accused No.3 – Gebji alias Kalu Amraji Mena was working as a servant at the house of the deceased Bhadraben. (vi) In between 5:00 and 5:30 in the evening on 24th January, 1998, accused No.3 had come to the house of Smitaben and had CR.A/1109/1999 18/33 JUDGMENT informed that he has come to enquire about the mother as “the house of mother is closed since two days and the outside gate is locked, therefore, whether mother has come to the house or not?” Therefore, Smitaben – wife of the complainant had intimated on telephone about this aspect to her husband – Shrikantbhai Chandulal Shah (complainant) and sister – Ritaben. (vii) In the evening on 24th January, 1998, the complainant, his wife – Smitaben, Ritaben and her husband – Shripalbhai etc. had come at 20, Shyamal Row House, Part-2 and having broken open the lock, the house was opened, the dead body of Bhadraben was lying in the basement. At that time, there was a gag of shawl in the mouth of the deceased Bhadraben. (viii) As per the post mortem report at Exh.95, the death of Bhadraben was caused due to shock emerged out of strangulation and post mortem findings were suggesting the death to have been caused by throttling the neck and gagging the mouth. (ix) On the person of the deceased Bhadraben, there were external as well as internal injuries, as is stated in paragraph-15. (x) As per the evidence of Shri M. B. Solanki, Police Inspector CR.A/1109/1999 19/33 JUDGMENT of Crime Branch, all the three accused were arrested from the temple of Village: Lambha on 16th March, 1980. (xi) Accused No.1 had shown willingness to disclose the muddamal in the presence of the panchas on 16th March, 1998 and having taken the panchas and the police party in a Government vehicle near the bus stand