IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 841 of 1997 with CRIMINAL APPEAL No 918 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MITESH KISHORCHAND RAVAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 841 of 1997 MR KV SHELAT for Petitioner No. 1 MR SS PATEL A.P.P. for Respondent No. 1 2. Criminal Appeal No. 918 of 1997 MR KB ANANDJIWALA for Petitioner No. 1 MR SS PATEL A.P.P. for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 05/02/2003 COMMON ORAL JUDGEMENT (Per : MR.JUSTICE AKSHAY H.MEHTA) 1. Both these appeals arise from the judgment and order of conviction and sentence delivered by the learned Additional Sessions Judge Kheda at Nadiad in Sessions Case no.109 of 1995 dated 22nd July, 1997. Criminal Appeal no.841 of 1997 has been filed by original accused no.3 Mitesh Kishorchand Raval and Criminal Appeal no.918 of 1997 has been filed by Bharatsinh Kalyansinh Mahida for challenging the said judgment and order of conviction and sentence. Both these appeals are, therefore, heard together and disposed of by a common judgment. For the sake of convenience the appellants of both these appeals are referred to by their original position in the Sessions case i.e. accused no.3 and accused no.6 respectively. By the aforesaid judgment they have been convicted for offence made punishable under Section 302 read with Section 120-B of the Indian Penal Code and they have been sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/-, in default of payment of fine R.I. for two months. Accused no.3 has been convicted for committing offence made punishable under Section 364 of the Indian Penal Code and he has been sentenced to suffer imprisonment for seven years and to pay fine of Rs.5,000/-, in default of payment of fine R.I. for one month. Accused no.6 has been convicted for committing offence made punishable under Section 302 of the Indian Penal Code and he has been sentenced to suffer imprisonment for life and to pay fine of Rs.10,000/-, in default of payment of fine further R.I. for two years. He has also been convicted for offence under Section 364 of the Indian Penal Code and he has been sentenced to suffer R.I. for ten years and to pay fine of Rs.10,000/-. Both accused no.3 and accused no.6 are also convicted for committing offence under Section 135 of the Bombay Arms Act, but no separate sentence has been awarded for the same. The sentences are ordered to run concurrently. 2. The case of the prosecution in brief can be stated as under :- 2.1. Original accused nos.1 and 2 namely Rajubhai Karsanbhai Vaghela and Shaileshbhai Karsanbhai Vaghela are brothers. They have sister named Ushaben. The deceased Rameshbhai Chhababhai Thakore resided in the vicinity of the house of original accused nos.1 and 2. He developed intimacy with Ushaben and both of them decided to get married. However, this decision was strongly resisted by the brothers of Ushaben namely accused nos.1 and 2. In view thereof, Ushaben secretly got married to deceased and started living with him. As a result of this, ultimately, members of the family of accused nos.1 and 2 severed all the relation with Ushaben to such an extent that even on the day of "Rakshabandhan" a Rakhi sent by Ushaben to her brothers had not been accepted by them. It is on record that accused nos.1 and 2 have other four brothers and five sisters over and above Ushaben. However, they are not, in any way, connected with this case. 2.2. It is the case of the prosecution that accused nos.1 and 2 were friendly with accused no.6 and they ultimately, hatched out conspiracy to do away the deceased. It is further the case of the prosecution that original accused nos.3, 4 and 5 actively helped accused nos.1, 2 and 6 in accomplishing the object of the conspiracy namely to commit murder of Rameshbhai Chhababhai Thakore. Accused no.3 is alleged to have abducted the deceased from Khokhra area in Maninagar, in Maruti van bearing registration no.GJI R 2230 on 14th November, 1994 when he had gone to the goldsmith to collect the ring which was pledged with him. It is the case of the prosecution that prior to this, accused no.6 who was friendly with accused nos.1 and 2 had taken the deceased on his motorbike and had even beaten him. This had happened during the "Diwali" festival days. Since, her husband did not return home, Ushaben started making inquiry regarding the whereabouts of her husband. While she was inquiring about her husband she came near a pan-bidi shop of her brother accused no.2 and she found that even accused no.6 was standing there. When she inquired from her brother about her husband, accused no.6 took off the cap which he was wearing and showed his clean shaven head to Ushaben, to sarcastically indicate that her husband was no more. It is the case of the prosecution that on 15th November, 1994 at about 9:00 p.m. the Police of Amraiwadi Police Station came to the residence of Ushaben alongwith one constable from Sojitra Police Station and informed her that her husband had met with an accident and that he was lying in the hospital in serious condition. From her house Ushaben was taken to Amraiwadi Police Station where she was informed that her husband had been murdered by three persons at a place under Sojitra Police Station jurisdiction on 14th November, 1994. She, therefore, approached accused no.2 i.e. her brother Shaileshbhai Karsanbhai Vaghela with a request to help her, however, he decline to do so. She, therefore, went alongwith her mother-in-law to Sojitra Police Station alongwith head constable Lallubhai and there she identified the blood stained clothes which were worn by the deceased at the time when he left the home last. She also identified the photograph of her husband which was shown to her by Police of Sojitra Police Station. Later on, she was even taken to the hospital at Sojitra where she identified the dead body of her husband. 2.3. It is the case of the prosecution that the incident came into light on the information lodged by one Narsinhbhai Chhotabhai Patel resident of village Malataj, who approached the Sojitra Police Station and informed the police that while he was sitting on the outskirts of the village round about at 5:00 p.m. one Rameshbhai Kuberbhai Patel and one Vinubhai Mohanbhai Bariya came to him and informed him that three unknown persons had committed murder of one person near the canal adjoining the agricultural land of Arvindbhai Mukhibhai, whose identity was also not known to them. It was further informed by Narsinhbhai Chhotabhai Patel that Rameshbhai Kuberbhai Patel and Vinubhai Mohanbhai Bariya brought the victim, and they found him to be alive and on inquiry he informed them that he was the resident of Khokhra and the persons who had assaulted him were the residents of Maninagar area. 2.4. On receipt of this information, the Police went to the place of incident and removed the dead body to the hospital for postmortem examination. The Police also commenced the usual investigation and in the course of the same they detected that accused nos.1, 2 and 6 were responsible for committing the present crime. It is also the case of the prosecution that accused no.6 was already undergoing sentence of imprisonment for life in connection with some other offence and it was while on parol he had committed the present offence. Accused no.3 was arrested by the Police on 24th November 1994 whereas accused no.6 who kept on absconding was arrested by Detection of Crime Branch, Ahmedabad City, for possession of unauthorised revolver on 7th January, 1995. The Investigating Officer of this case having received information to this effect from Ahmedabad City Control, immediately approached the Court of Petlad and obtain transfer warrant to take the custody of accused no.6 in connection with the present offence. 2.5. It is the case of the prosecution that in the course of investigation accused no.3 pointed out the route on which they had travelled from Maninagar area to the canal near the field of Arvindbhai Mukhibhai while abducting the deceased in Maruti Van and panchnama to that effect was drawn by the Investigating Officer. Similarly, according to the prosecution, accused no.6 on 15th November, 1995 showed his willingness to point out the place at which he had concealed the weapon which was used for committing the offence and pursuant to that he took the Investigating Party to a place in Maninagar which was a deserted house and from beneath a mattress lying on the cot he took out two knives, out of which one knife was blood stained. The Investigating Officer also in the course of the investigation drew various panchnamas such as the panchnama of the clothes of the deceased; arrest panchnama of the accused; and also recorded statements of various persons who were acquainted with the facts of this case and ultimately, upon the completion of the investigation submitted chargesheet against all the original accused i.e. nos.1 to 6 for committing the aforesaid offences in the Court of concerned Magistrate who committed the case to the Court of Sessions as the offence under Section 302 alleged against the accused is exclusively triable by the Court of Sessions. At the trial, the learned Sessions Judge, Kheda at Nadiad framed the charge against all the accused on 26th November, 1996. The accused denied the charge and claimed to be tried. 3. In the course of the Trial, the prosecution examined in all twelve witnesses namely; (1) Vinubhai Mohanbhai P.W.1 at Exh.13; (2) Manubhai Bhikabhai P.W.2 at Exh.14; (3) Rameshbhai Kuberbhai P.W.3 a Exh.15; (4) Ushaben Rameshbhai P.W.4 at Exh.16; (5) Bhikabhai Himatbhai P.W.5 at Exh.18; (6) Narharibhai Chhotabhai P.W.6 at Exh.19; (7) Arvindbhai Zaverbhai P.W.7 at Exh.51; (8) Mahendrasinh Manibhai Mahida P.W.8 at Exh.53; (9) Subhashbhai Laxmibhai P.W.9 at Exh.55; (10) Punambhai Desaibhai P.W.10 at Exh.57; (11) Narendrabhai Lakhabhai P.W.11 at Exh.59 and (12) Vinodbhai Dhanjibhai Kharadi P.W.12 at Exh.61. Over and above oral evidence, the prosecution also placed reliance on the documentary evidence in the form of the First Information Report; the postmortem notes; inquest panchnama; panchnama of the scene of the offence and various other panchnamas. At the end of the recording of the evidence, the learned Judge under Section 313 of the Code of Criminal Procedure recorded statements of the accused putting to them the circumstances appearing against them in the evidence with a view to enable them to render the explanation if they so desired. However, from these statements it appears that the defence of the case was that of the general denial and no specific plea has been pleaded by them. At the end of the Trial, the learned Judge came to the conclusion that the prosecution had failed to prove its case against the original accused nos.1, 2, 4 and 5 and he, therefore, acquitted them of all the charges levelled against them. However, the learned Judge found that accused nos.3 and 6 had committed offences made punishable under Sections 302 and 364 and also under Section 120-B of the Indian Penal Code and ultimately, convicted them for those offences as stated above. It is against these orders of conviction and sentence, accused nos.3 and 6 have approached this Court by filing the aforesaid appeals. 4. We have heard Mr.K.V. Shelat and Mr.K.B. Anandijiwala appearing for accused no.3 and 6 respectively in their appeals and Mr.S.S. Patel learned A.P.P. appearing for the respondent - State in both the appeals. 4.1. Mr.Shelat has submitted that the prosecution has hopelessly failed to prove the case against accused nos.3 and 6 and the Trial Court has committed grave error in convicting them for the offences made punishable under Section 302 reach with Section 120-B of the Indian Penal Code and for offence under Section 364 of the Indian Penal Code. He has further submitted that there is no evidence on record which would connect the accused no.3 with the present crime. He has further submitted that even the circumstances on record do not point to the guilt of this accused inasmuch as not a single circumstance on the record of the case is sufficient enough to indicate that accused no.3 in any way is connected with the present crime. He has further submitted that merely because some blood stains have been detected by the officers of the Forensic Science Laboratory from the Maruti van which is alleged to have been used in abducting the deceased, it cannot be said that accused no.3 is responsible for either abducting the deceased or in any way aided or abetted accused no.6 in committing offence under Section 302 of the Indian Penal Code. He has also submitted that the reliance placed by the Trial Court on the evidence of the Investigating Officer namely Mr.Tadvi and the panchnama which is supposed to have been dictated by accused no.3 himself while pointing out the route on which he had travelled with the deceased in the said Maruti Van are not at all sufficient to base the conviction of accused no.3. He has further submitted that even legally the statements made by accused no.3 in the said panchnama cannot be looked into as the same are not admissible in evidence since they are in the nature of confessions and they have been made by accused no.3 before the police while he was already made an accused for this case. He has lastly submitted that since the orders of conviction and sentence are against law and evidence on record, the appeal may be allowed and accused no.3 may be acquitted. 4.2. Similarly Mr.Anandjiwala has submitted that there is no evidence against his client i.e. accused no.6 and his conviction has been passed on the material which is not at all admissible in the evidence. He has further submitted that the learned Trial Court has merely relied on the panchnamas which do not form the substantive evidence but they are merely corroborative pieces of evidence and on the basis of such panchnamas alone, no conviction for offence under Section 302 or for any other offence can be based. He has also submitted that the material witnesses examined by the prosecution have not supported its case and there is no other evidence of any nature which involves accused no.6 in the crime and, therefore, his conviction for the aforesaid offences by the learned Trial Judge is absolutely erroneous. He has lastly submitted that his appeal deserves to be allowed and accused no.6 is required to be acquitted. 4.3. As against that, Mr.S.S. Patel learned A.P.P. has supported the judgment and order of conviction and sentence passed by the Trial Court and has submitted that considering the entire evidence on record including the documentary evidence the guilt of accused nos.3 and 6 is adequately established by the prosecution and the orders of conviction and sentence passed by the learned Trial Court are proper, just and legal and no interference is required by this Court. He has further submitted that even when the material witness have not supported the case of the prosecution and in absence of any direct evidence, the circumstantial evidence on record plays a great role and considering the circumstances which have been brought on record of this case they form a complete chain leading to the only hypothesis i.e. the guilt of the accused and nothing else. He has, therefore, submitted that both these appeals have no merit and they are required to be dismissed. 5. With a view to reappreciate the evidence adduced before the Trial Court the oral as well as the documentary evidence, we have carefully seen the record and have given our careful consideration to the submissions made by both the sides. 6. From the record of the case, it clearly appears that the original accused nos.1, 2 and 6 have been charged with hatching a conspiracy to commit murder of deceased - Rameshbhai Chhababhai Thakore, as accused nos.1 and 2 who happened to be brothers of Ushaben i.e. wife of the deceased, did not like her marriage with the deceased. In pursuance of that conspiracy other accused namely accused nos.3, 4 and 5 were taken into confidence by accused nos.1, 2 and 6 to seek their help and active participation in the crime was sought. To establish these allegations, the prosecution has examined P.W.1 Vinubhai Mohanbhai at Exh.13. He has stated in the examination-in-chief that on 14th November, 1994 he was working in the field of one Arvindbhai Zaverbhai Patel. Over and above him there were four other labourers in that field. He has further stated that on that day he did not hear any shouts nor did he see anything. He has further stated that he had not seen any Maruti van parked in the field of Arvindbhai. He has stated that he knew Rameshbhai Kuberbhai of village Malataj. He did not inform him that there was any dead body lying near the canal. However, Rameshbhai had been there when he received information from somebody. This witness has been declared hostile by the learned Public Prosecutor and he has been permitted to cross-examine this witness by the Court. In the cross-examination the witness has been confronted with certain statements which have been made by him before the Police. The defence has not chosen to cross-examine him. Similarly, the evidence of P.W.2 Manubhai Bhikabhai at Exh.14 does not help the case of the prosecution and he has been declared hostile by the learned Public Prosecutor. P.W.3 Rameshbhai Kuberbhai at Exh.15 states that his land is situated on the outskirts of village Malataj and while he was sitting in his room situated in the field he saw a crowd. He, therefore, went there and saw that one person was lying on the ground and he had received injury on his stomach and he was bleeding. According to this witness, the injured person did not utter a word. Except this, this witness has not stated anything else in his evidence. There is no cross-examination by the defence. P.W.4 Ushaben Rameshbhai at Exh.16 is the widow of deceased Rameshbhai Chhababhai Thakore. In her examination-in-chief, she has stated that she had contracted a civil marriage with deceased Rameshbhai who was not liked by her brothers as her husband did not do any work. She has further stated that after her marriage her brothers did not kept any relation with her and even a Rakhi sent by her was not accepted by them. She has also stated that her husband was not beaten by accused Shailesh. She has further stated that she did not know Bharatsinh Darbar and he had never taken her husband on his motor bike. She has further stated that she did not know who Bharat and Pravin were. It is her say that on 14th November, 1994 her husband had gone out telling her that he was going to the shop of goldsmith to get released his ring which was pledged with the goldsmith and thereafter he never returned. In the evening she was contacted by the Police with the photograph of her husband and they informed her that her husband had met with an accident at Sojitra and he was admitted in a private hospital. She has further stated that before the Police approached her she had never met Bharatsinh or Shailesh. According to her, the Police first took her to Amraiwadi Police Station and thereafter she was taken to Sojitra Police Station by the Police of Sojitra. At the said Police Station she was shown the clothes of her husband which were blood stained and she identified them to be that of her husband. In the Court room while giving evidence, she identified accused nos.1 and 2 i.e. Rajubhai and Shaileshbhai. However, she did not identified any other accused. This witness was cross-examined by the learned Public Prosecutor with the permission of the Court without declaring her hostile. In the cross-examination by the learned Prosecutor she has been confronted with her previous statements with the Police and she had denied to have not made such statements. In the cross-examination by the defence she has stated that her husband did not have cordial relation with one Mahendrabhai Kosti a Police man and on several occasions they had quarrels. As a result of that, they had filed cases against each other. She has also stated that Mahendrabhai used to consume liquor and he used to do money dealings with her husband. She has further stated that on account of these money dealings there were often quarrels between the two. She has also admitted that her husband did not do any work and he was indulging into illegal activities. She has also admitted that her husband had many enemies and many a times he used to return home after being beaten by his enemies. 7. P.W.5 Bhikabhai Himatbhai at Exh.18 in his examination-in-chief has stated that he was a friend of accused no.3 and he was known to him for the last five to six years. He has stated that accused no.3 owned one Maruti van bearing no.2230 as well as one scooter. He has further stated that on 14th November, 1994 accused no.3 had not met him. He has further stated that in the month of December, either in the first or second week, he had inquired from accused no.3 that police had been there to interrogate him and at that time accused no.3 had told him that his van had met with an accident when somebody had taken it away while it was kept at his maternal uncle's place and because of that his name is being involved. This witness is also declared hostile by the prosecution. In the cross-examination by the learned P.P. he has been confronted with certain parts of his Police Statements and he has denied to have made such statements before the Police. P.W.6 Narharibhai Chhotabhai at Exh.10 is the person who informed the Police about the dead body of a person lying on the bank of the canal near the field of Rameshbhai Kuberbhai. The Police reduced the information given by this witness and it is in writing which is treated as First Information Report at Exh.20. His evidence does not help the prosecution at all. P.W.7 Arvindbhai Zaverbhai Patel at Exh.51 is a panch witness who was summoned by the Police when the panchnama of the Maruti van seized by the Police was being drawn. He has stated in his evidence that he did not know the registration number of the Maruti van. He has also stated that he had not seen any blood stains in the Maruti van. Further he has stated that the colour of the Maruti van was blue and he did not know to whom it belonged. In the cross-examination of this witness he has stated that the colour of the Maruti van was blue i.e. it was like sky-blue colour. He has denied the suggestion made by the defence that he had never gone to Ahmedabad to act as a panch. P.W.8 Mahendrasinh Manibhai Mahida at Exh.53 has acted as a panch witness of the inquest panchnama of the dead body of Rameshbhai Thakore. He has also not supported the prosecution and he was treated as hostile witness. P.W.9 Subhashbhai Laxmibhai at Exh.55 was summoned