-#- .FO 1 Date of Decision: 20th/21st December 1995 CRIMINAL APPEAL NO. 415 OF 1988 with CRIMINAL APPEAL NO. 416 OF 1988 with CRIMINAL APPEAL NO. 716 OF 1988 with CRIMINAL APPEAL NO. 717 OF 1988 FOR APPROVAL AND SIGNATURE THE HONOURABLE MR. JUSTICE A.N. DIVECHA and HONOURABLE MR. JUSTICE H.R. SHELAT 1. Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? No 3. Whether their Lordships wish to see the fair copy of judgment? No 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? No 5. Whether it is to ... Civil Judge? No ---------------------------------------------------------------- Shri P.M. Thakkar, Advocate, with Smt. V.P. Thakkar, Advocate, for the Appellant in Criminal Appeal No. 415 of 1988 and for the Respondents in Criminal Appeals Nos. 716 and 717 of 1988 Shri K.J. Shethna, Advocate, for the Appellants in Criminal Appeal No. 416 of 1988 Shri S.R. Divetia, Addl. Public Prosecutor, for the Respondent in Criminal Appeals Nos. 415 of 1988 and 416 of 1988 and for the Appellant in Criminal Appeals Nos. 716 and 717 of 1988 ---------------------------------------------------------------- CORAM: A.N. DIVECHA & H.R. SHELAT, JJ (Date: 20th/21st December 1995) ORAL JUDGMENT (per Divecha, J.) All these appeals arise from the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge of Kheda at Nadiad on 13th April 1988 in Sessions Case No. 148 of 1987 convicting original accused No. 1 of the offences punishable under sec. 302 and under sec. 201 read with sec. 34 of the Indian Penal Code, 1860 (the IPC for brief) and under sec. 25(1)(a) of the Arms Act, 1959 (the Act for brief) and original accused No. 2 of the offences punishable under sec. 201 read with sec. 34 of the IPC and under sec. 29(b) of the Act and original accused No. 3 of the offences punishable under sections 217 and 218 of the IPC and sentencing original accused No. 1 to rigorous imprisonment for life for the offence punishable under sec. 302 of the IPC and rigorous imprisonment for 6 months and fine of Rs. 300 in default rigorous imprisonment for 15 days for the offence punishable under sec. 201 read with sec. 34 of the IPC and rigorous imprisonment for three months for the offence punishable under the Act, original accused No.2 to rigorous imprisonment for 6 months and fine of Rs. 300 in default rigorous imprisonment for 15 days for the offence punishable under under sec. 201 read with sec. 34 of the IPC and rigorous imprisonment for 3 months for the offence punishable under the Act, and original accused No.3 to rigorous imprisonment for one month for the offences punishable under sections 217 and 218 of the IPC. Original accused No. 3 has challenged his conviction and sentence by means of Criminal Appeal No. 415 of 1988 and original accused Nos. 1 and 2 have done so by means of Criminal Appeal No. 416 of 1988. The prosecution agency was not happy with the judgment and order of conviction passed by the lower court resulting in acquittal of accused No. 2 of the offence punishable under sec. 302 read with sec. 34 of the IPC. Similarly, the prosecution agency was unhappy over the lenient sentence imposed on original accused No.3 by the lower court. It has therefore preferred Criminal Appeals Nos. 716 and 717 of 1988 for questioning the correctness of the order of acquittal of accused No.2 qua the charge of the offence punishable under sec. 302 read with sec. 34 of the IPC and for enhancement of the sentence imposed on original accused No. 3. Since all the four appeals are directed against the very same judgment and order of conviction and sentence and since common questions of law and fact are found arising in all these four appeals, we have thought it fit to dispose of all these four appeals by this common judgment of ours. 2. The facts giving rise to all these appeals move in a narrow compass. One person, named, Ramabhai Somabhai (the deceased for convenience), was working as a Watchman in the company by the name of Jyoti Switchgears Ltd. (the company for convenience) having its plant situated at village Mogar taluka Anand district Kheda. Accused No.1 was working as an Assistant Security Officer and accused No. 2 as the Security Officer in the company at the relevant time. The incident in question is stated to have occurred on 25th August 1981 at about 12.45 p.m. Accused No. 3 was working as a Senior Police Sub-Inspector at the relevant time attached to the Rural Police Station at Anand. It is the case of the prosecution that on that day, that is, on 25th August 1981, some cash was required to be withdrawn from the company's account in UCO bank at Anand. The cashier was deputed to Anand for the purpose and accused No.2 as the Security Officer accompanied him for the purpose. The amount to be withdrawn from the bank was in the sum of about Rs. 2,75,000. It is the prosecution case that both the cashier and accused No. 2 reached the bank at about 10.55 a.m. and they left the bank at about 12.20 p.m. after the cash was received from the bank cashier. They are stated to be back in the factory compound of the company at about 12.45 p.m. According to the prosecution version, both the cashier and accused No.2 travelled in a jeep driven by a driver. After the jeep entered the factory compound of the company, accused No.2 made the jeep stop near the Security Officer's office near the main gate. The deceased was standing thereat. Accused No. 2 had a loaded fire arm (the pistol for convenience) with a holster containing 17 live cartridges. He wanted his fire arm together with the holster to be placed in the cupboard in his office. He thereupon handed over its custody to the deceased for the purpose. Thereafter the jeep proceeded to the administrative office. The cashier got down and placed the cash withdrawn from the bank in safe custody. Thereafter accused No.2 appears to have set out for going back to his office. It may be mentioned at this stage that the company's factory is housed in a parcel of land having three gates. One abuts on National Highway No.8. It is always kept closed. The other is in the lane leading to village Rupale. That is the main gate. The other gate is about 1500 ft. away on the other side of the compound wall abutting certain fields. The prosecution version is to the effect that the deceased reported for work around 10.00 a.m. on 25th August 1981. At that time another watchman by the name of Hassan Ali Saiyed Ali Saiyed (Prosecution Witness No. 2 at Ex. 10) was posted at the main gate. It appears that the deceased was the main watchman and he was therefore posted at the main gate in the place of Prosecution Witness No. 2 and the latter was posted on Gate No. 2 about 1500 ft. away on the other side of the compound wall as aforesaid. It appears that a short while from leaving the cashier in the administrative office of the company by accused No. 2, the deceased was reported to have received a bullet injury. The deceased was immediately carried to Municipal Hospital at Anand. He appears to have died thereat about an hour later at about 2.30 p.m. on that day. It appears that accused No.2 went to the Rural Police station at Anand to give information of the incident. It was taken down by the police official in charge of the Police Station (Prosecution Witness No. 11 at Ex. 35) in absence of accused No. 3. It was taken down in the Register of Miscellaneous Information, popularly known in the police parlance as 'Janva Jog Yadi'. It appears that thereupon Prosecution Witness No.11 went to the Municipal Police Hospital for investigation and he found thereat that the injured victim was unable to speak. Prosecution Witness No.11 thereupon appears to have come back to his police station and he appears to have handed over the investigation to accused No.3. According to the prosecution story, in the meantime, a message was received at the Rural Police Station at Anand about the death of the deceased at about 2.30 p.m. on that day. It was reported that it was a case of accident. The necessary noting was made in the accident case register. It appears that some four years later the wife of the deceased made one complaint suspecting the homicidal death of her deceased husband at the relevant time. It appears that the case was then taken up for re-investigation. On conclusion of such re-investigation, a charge-sheet came to be submitted to the Court of the Judicial Magistrate (First Class) at Anand charging accused Nos. 1 and 2 with the offences punishable under sec. 302 read with sec. 34 of the IPC and under sec. 201 read with sec. 34 thereof and under sec. 25(1)(a) of the Act qua accused No. 1 and sec. 25(1)(c) thereof qua accused No.2 and accused No.3 with the offences punishable under sections 217 and 218 of the IPC. Since the trial of the case was beyond the competence of the learned Judicial Magistrate at Anand, it was committed to the Sessions Court of Kheda at Nadiad for trial and disposal. It came to be registered as Sessions Case No. 148 of 1987. It appears to have been assigned to the learned Additional Sessions Judge of Kheda at Nadiad for trial and disposal. The charge against the accused was framed on 16th October 1987. No accused pleaded guilty to the charge. They were thereupon tried. After recording the prosecution evidence and recording the further statement of each accused under section 313 of the Criminal Procedure Code, 1973 and after hearing rival submissions, by his judgment and order of conviction and sentence passed on 13th April 1988 in Sessions Case No. 148 of 1987, the learned Additional Sessions Judge convicted and sentenced the accused as aforesaid. That aggrieved all the three accused and they have preferred their respective appeals for challenging their respective conviction and sentence. The State is also aggrieved by the judgment and order in question to the extent that it did not result in conviction of accused No.2 of the offence punishable under sec. 302 of the IPC and to the extent of imposition of a lenient sentence on accused No. 3. It has also therefore preferred the respective appeals to the extent of its dissatisfaction with the judgment and order in question. 3. The entire case is based on circumstantial evidence. There is no eye witness to the incident. It is a settled principle of law that circumstantial evidence can be the sole basis of conviction if all incriminating circumstances in the chain of events are fully established. The learned trial Judge has found such incriminating circumstances to have been established at the trial. That finding is challenged by learned Advocate Shri Shethna appearing for accused Nos. 1 and 2 and learned Counsel Shri Thakkar for accused No. 3 but is supported by learned Additional Public Prosecutor Shri Divetia for the State. The learned lawyers appearing for the parties have taken us through the entire evidence on record. Muddamal articles Nos. 1 and 2 in the list at Ex. 1 in the record of the sessions case were also summoned at the instance of the learned Additional Public Prosecutor. Since they were no longer required to be retained in this Court after hearing of rival submissions, we have passed a separate order for their return to the custody from which they were summoned. 4. It cannot be gainsaid that in a case based on circumstantial evidence the motive behind the crime plays a very important and significant role. No ruling is needed in support of this principle of law. A reference may however be made to the one handed down by the Apex Court in the case of State (Delhi Administration) v. Gulzarilal Tandon reported in AIR 1979 SC 1382. As rightly submitted by learned Additional Public Prosecutor Shri Divetia, absence of proof of motive does not result in negation of the prosecution case altogether. He has rightly relied on the binding rulings of the Supreme Court in the case of The State of Madhya Pradesh v. Digvijay Singh reported in AIR 1981 SC 1740 and in the case of Rajinder Kumar and another v. State of Punjab reported in AIR 1966 SC 1322 For the purpose. The learned Additional Public Prosecutor has also relied on the Division Bench ruling of the Calcutta High Court in the case of Parimal Banerjee v. The State reported in 1986 Criminal Law Journal at page 220 in that regard. 5. The motive of the alleged crime in this case has not at all been established. Except a vague reference by the widow of the deceased in her communication nearly four years after the incident giving rise to the re-investigation, no witness examined by or on behalf of the prosecution has stated anything about the deceased in the context of his relations with other members of the staff, more particularly with accused Nos. 1 and 2. The letter from the widow of the deceased about 4 years after the incident is at Ex. 34 on the record of the case. Its contents show that it was written about 4 years after the incident. It has been stated therein that the deceased was very honest and he used to detect theft in the company, and as such incurred displeasure of security officers involved in those theft cases. It may be noted that the widow has not been examined as a witness by or on behalf of the prosecution at trial. Prosecution Witness No. 7 at Ex. 17 was serving as a Plant Manager in the company at the relevant time. He had put in about 14 years' service on the date of the incident. He has stated in no uncertain terms in his cross-examination that during the period of his service he knew that no watchman was ever awarded any prize for detecting theft or doing good work. He has further deposed that no certificate was issued to any one for rendering good service or for detecting theft because it was not the company's system or policy. That apart, all witnesses working in the company examined by the prosecution at trial have unequivocally asserted that the deceased had no inimical relations with any one including the accused, more particularly, accused Nos. 1 and 2. In fact, the son of the deceased has been examined as Prosecution Witness No. 10 at Ex. 33. He has not stated anything about his father's honesty and integrity and uprightness in detection of theft cases or earning of laurels by his father for the purpose. He has also stated in no uncertain terms that his father had no enmity with any one in the company's factory. Taking into consideration the aforesaid evidence on record, the learned trial Judge has recorded a clear-cut finding to the effect that the prosecution has not been able to establish any motive behind the alleged crime. In view of the aforesaid overwhelming evidence on record, we are left with no alternative but to concur with the learned trial Judge on this score. 6. Learned Additional Public Prosecutor Shri Divetia is right in his submission to the effect that absence of the proof of motive behind the crime does not result in negation of the prosecution case altogether in view of the aforesaid binding rulings of the Supreme Court. It may however be necessary for the prosecution to bring on record the incriminating circumstances to lead to the one and only conclusion that the accused and none else is or are guilty of the alleged crime. It is needless to say that all the incriminating circumstances have to be brought on record beyond reasonable doubt. Keeping this well-known principle in mind, we should now revert to the incriminating circumstances stated to have been brought on record by and on behalf of the prosecution at trial. 7. The following circumstances are pressed into service by and on behalf of the prosecution for the purpose of fastening the criminal liability on the accused, more particularly accused Nos. 1 and 2 qua the offence punishable under sec. 302 read with sec. 34 of the IPC. (i) The deceased received a bullet injury from the pistol of accused No. 2. (ii) The used cartridge of the bullet was found from near the scene of the incident. (iii) The medical evidence clearly shows that it was a homicidal death and not a suicidal or accidental death. (iv) The evidence and the report of the ballistic expert are eloquent enough not only to connect the bullet found in the body of the deceased with the muddamal pistol of accused No. 2 but also to suggest the case of homicidal death. (v) The presence of both accused Nos. 1 and 2 at the scene of offence at the time of the incident. (vi) There was no reason for accused No. 2 to give his pistol with the holster to the deceased when accused No.1 himself was present and accused No. 1 was the Assistant Security Officer working in the company at the relevant time. (vii) The conduct of both accused Nos. 1 and 2 in misreporting to the police the incident as an accident. (viii) The conduct of both accused Nos. 1 and 2, more particularly of accused No. 2, in removing the muddamal pistol from the scene of offence after occurrence of the incident. (ix) The conduct of accused No.3 in screening the offenders by making perfunctory make-believe investigation into the incident. 8. As aforesaid, principles of criminal jurisprudence as to conviction on the sole basis of circumstantial evidence would prompt us to examine whether or not all the aforesaid circumstances are fully established at trial. 9. The one circumstance heavily relied on by and on behalf of the prosecution is removal of the weapon of offence from the scene of offence immediately after occurrence of the incident. It is an admitted position on record that the weapon of offence was recovered from its position by accused No. 2. It was lying in the cupboard in his office. As pointed out hereinabove, the office of accused No.2 as the Company's Security Officer was near the main-gate. Adjacent to it was the office of the gate-keeper or the gate-supervisor. The administrative office of the company was admittedly inside the factory compound at a distance of more than 1500 ft. by the tar road leading thereto. Its plant was presumably still further inside. The scene of offence panchnama at Ex. 41 was drawn between 4.30 p.m. and 5.30 p.m. on the day of the incident itself. As aforesaid, the fire-arm was recovered from accused No. 2 under the panchnama at Ex. 43. That was drawn on 5th April 1987 between 1.15 p.m. and 2.50 p.m. It however transpires from the scene of offence panchnama at Ex. 41 that the fire-arm was found lying in the cupboard in the office of accused No. 2 as the Security Officer of the Company. It is not in dispute that a bullet from the very said fire-arm (pistol) wounded the deceased resulting in his death. Learned Additional Public Prosecutor Shri Divetia is right in his submission that ordinarily the fire-arm ought to have been allowed to remain where it was lying after occurrence of the incident; nobody ought to have even touched it, much less removed it therefrom. The very fact that it was found lying in the cupboard in the office of accused No.2 would go to show that it was removed from the place where it was lying after occurrence of the incident resulting in the death of the deceased. 10. The finding of the used bullet from the scene of offence is not disputed by or on behalf of the accused at any point of time. The panchnama at Ex. 41 bears ample testimony in that regard. 11. The evidence of the ballistic expert at Ex. 67 (Prosecution Witness No. 18) does unequivocally connect the used bullet with the pistol in question. He has clearly established the same through his deposition at Ex. 67 and through his report containing his written opinion at Ex. 29. 12. So far as the presence of accused Nos. 1 and 2 at the scene of offence at the relevant time is concerned, it is difficult to come to the conclusion that the prosecution has fully succeeded in proving it at trial. There is no exact time given by or on behalf of the prosecution as to at what time the incident in question occurred. The Rural Police Station at Anand has received its information at 1.45 p.m. through accused No. 2. That information was reduced to writing. It is at Ex. 36 on the record of the case. There the time of the incident is stated to be around 1 p.m. on that day. The prosecution has examined the cashier of the company at Ex. 9 on the record of the case. He had gone to the bank at Anand for withdrawal of cash in a jeep driver by a driver. He was accompanied by accused No. 2. The cashier at Ex. 9 has stated in no uncertain terms that they were back in the factory at about 12.45 p.m. on that day. According to him, accused No. 2 made the jeep to have a brief halt near his office for the purpose of handing over his pistol with the holster to the deceased for placing it in the cupboard inside the office. One cannot overlook the fact that sometime was consumed when the jeep proceeded to the administrative office of the company, the cashier got down therefrom, he put his cash in his hand in the safe custody, and thereafter accused No. 2 set out for his return journey to his office. The cashier at Ex. 9 has clearly deposed that his office is on the first floor. The distance between the office of accused No.2 near the main gate and the administrative office in the factory compound would be about 1500 ft., if not more. It would roughly be half a kilometer. One cannot overlook the fact that the jeep was inside the compound. It would not have travelled at a very excessive speed throughout. In that view of the matter, in absence of any clear-cut evidence in that regard, we think that the time lost before accused No. 2 set out for his return journey would be about 15 minutes. It would therefore be around 1 p.m. that accused No. 2 was about to set out for his return journey to his office. If the incident is stated to have occurred at 1 p.m., the presence of accused No. 2 at the scene of offence at the relevant time would certainly be a doubtful proposition. 13. In this connection it would be quite proper to look at the oral testimony of Prosecution Witness No. 3 at Ex. 11. According to him, at about 12.45 p.m. he had gone to the bus stand at Mogar on his motorcycle to drop his guest thereat. According to him, within five minutes therefrom practically immediately after dropping the guest at the bus stand, he returned to the factory. He has further deposed that, on his way back to the factory, accused No. 1 was standing in the verandah of his gate office, with information that the deceased had received a bullet injury. That should be around 12.50 p.m. If that be so, the presence of accused No. 2