IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL CONFIRMATION CASE No 1 of 2000 with CRIMINAL APPEALS No 446, 430 & 449 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE A.L.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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 Civil Judge? : NO @ STATE OF GUJARAT Versus SATISH HIMMATLAL RUPARELIYA -------------------------------------------------------------- Appearance: 1. Criminal Confirmation Case No. 1 of 2000 MR KT DAVE, APP, for Petitioner No. 1 MR PM THAKKAR, Sr. Counsel, for Respondent No. 1 MR BUDHBHATTI for respondent No.2 2. Criminal Appeal No. 446 of 2000 MR PM THAKKAR, Sr. Counsel for the appellant. MR KT DAVE, APP, for the Respondent. 3. Criminal Appeal No.430 of 2000 MR BUDHBHATTI for the appellant. MR KT DAVE, APP, for the respondent. 4. Criminal Appeal No.449 of 2000 MR ADIL MEHTA for the appellant. MR KT DAVE, APP, for the respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE A.L.DAVE Date of decision: 02/08/2001 ORAL JUDGEMENT (Per : MR.JUSTICE A.L.DAVE) 1. This Confirmation Case and the Criminal Appeals arise out of a judgment and order rendered by the learned Additional City Sessions Judge, Ahmedabad, in Sessions Case No.56 of 1995, on April 18, 2000, convicting the accused Nos. 1 and 2 for offences punishable under Sections 302 read with Sections 120-B and 398 of Indian Penal Code and Section 135 of the Bombay Police Act and, sentencing accused Nos. 1 and 2 with capital punishment. Accused No.3 was convicted for offence punishable with Section 201 of I.P.C. and was sentenced to undergo rigorous imprisonment for a period of three years and a fine of Rs.2000/- and, in event of default in payment of fine, to undergo rigorous imprisonment for a further period of six months. 2. A First information Report came to be lodged with Shahibaug Police Station on October 22, 1994, at about 18.00 hours by one Jagdishbhai Govindbhai Brahmbhatt, who happened to be the Manager of Neelam Hotel, situate near Baliya Limbdi, on Civil Hospital Road, Ahmedabad. 2.1 As per the F.I.R., on that day, while the first informant was on his duty as Manager of Neelam Hotel, two 'passengers' (guests) arrived at about 14.25 hours and asked for a room. Room No.208 was allotted to them. One of the passengers made an entry in the register at serial No.3817 in the name of Satish N. Ruparelia of Ghanshyamnagar, Division-I, Varachha Road, Surat. He signed the register in English and the room was, thereafter, given to him. At about 4.00 P.M., the hotel boy-Dipsinh informed the first informant that one well-built person had gone to Room No.208, which was occupied by the two 'passengers' (guests). At about 16.30 hours, the man, who had made the entry in the Hotel Register came to the first informant and requested for another room with an attached bathroom as Room No.208 did not have an attached bathroom. The first informant informed him that he shall arrange for another room with an attached bathroom and he may wait for some time. 2.2 At about 17.15 hours, Savitaben, Sweeper working in the Hotel, came and informed the first informant that she had been to the second floor and noticed some drops of blood and blood stained foot steps in front of Room No.208. He, therefore, immediately rushed to the room and himself saw the drops of blood and the blood stained foot steps. The door of the room was locked from outside. However, on an attempt made from outside, the window of the room opened up. Seeing through the window, he saw that the flooring in the room was fully blood stained and a dead body was lying under a cot. He, therefore, immediately informed the Shahibaug Police. 2.3 After the police was informed, police arrived and broke open the door and it was noticed that trunk of a dead body was lying in the room without the head. According to the first informant, the trunk was that of the person who had arrived subsequently, as informed by the Hotel Boy-Dipsinh, whereas the first informant was not aware as to when did the two 'passengers' (guests), who had arrived earlier, leave the hotel. The first informant then gave description of Satish Ruparelia as well as the other person, describing colour of skin, height, age group, colour of hair, hair style, etc. He also stated that he would be able to identify both the 'passengers', if they are shown to him. 3. On basis of this F.I.R., an offence was registered and investigation was made. 4. During the investigation, it was found that the two passengers, who had come to the Hotel, were Satish Himatlal Ruparelia and Raju alias Rajendra N. Panchal, who are appellants in Criminal Appeal No.446 and 430 of 2000, respectively. It was also found that they had, on that day, approached one Arvindbhai Shah, resident of Alok Apartment, Narayani Road, Near Shantivan, Paldi, Ahmedabad, at his shop. Accused No.1 had informed Arvindbhai Shah that some China Silk cloth was available and if he is interested, he may go with them and may carry approximately Rs.10000/ with him for the purpose of purchase. It has also emerged during investigation that Satish H. Ruparelia was engaged in garment business and Arvindbhai was also dealing in textile and garments. It transpired that Arvindbhai went along with these two persons on the same scooter which was borrowed by Satish Himatlal Ruparelia from one of his friends-Jignesh. Thereafter, they reached the said Neelam Hotel and the incident occurred. After the incident was over, Satish Himatlal and Raju alias Rajendra Panchal fled away from the hotel. It is the case of the prosecution that, while they were in the hotel room, Arvindbhai Shah was done to death by Satish Himatlal and Raju alias Rajendra Panchal. His head was severed and taken away from the room. The trunk, which was found from the hotel, was that of Arvindbhai Shah. As per the prosecution case, after fleeing from the hotel, accused Satish Himatlal and Raju alias Rajendra Panchal went to the house of Satish Himatlal. Wife of Satish Himatlal noticed that both of them had sustained some injuries. She was informed that they had met with an accident. They had a maroon coloured bag with them and, after some time, they went away. After leaving the house of Satish Himatlal, both the persons went to a doctor and took treatment. Thereafter, Satish Himatlal went to Radhika Guest House, Ahmedabad and occupied a room under an assumed name. From there, he went to Surat on 24.10.1994 and stayed at Rupali Guest House under a different assumed name. At Surat also, he took treatment from two different doctors and, thereafter, he returned to Ahmedabad and stayed in Kapadia Guest House under another assumed name. In the meanwhile, because of the information given by the first informant, there were news items about a murder having been committed in the Neelam Hotel involving Satish Himatlal Ruparelia. Son of the deceased-Arvindbhai, therefore, immediately approached the police. He was taken to the morgue where he identified the trunk of the dead body which was found from the hotel as the trunk of his father-Arvindbhai on the basis of the clothes, the rings and the surgical scar. Raju alias Rajendra Panchal was arrested on the 23rd October, 1994 and was interrogated. On basis of information received from him, further investigation was made and the severed head of Arvindbhai was discovered along with the weapons used in commission of crime. Subsequently, Satish Himatlal Ruparelia also came to be arrested. 5. It was revealed during the investigation that ornaments worn by the deceased were robbed by Satish Himatlal and Raju alias Rajendra Panchal and were given to Himatlal Babulal Ruparelia, father of Satish Himatlal, who, in turn, got the ornaments melted into ingots. 6. The police, having found sufficient evidence against these persons, filed charge sheet in the Court. The case was committed to the City Sessions Court and registered as Sessions Case No.56 of 1995. The Trial Court framed charge against the accused persons at Ex.9 for offences punishable under Sections 120-B, 364 read with 120-B, 302 read with 120-B, 394 read with 120-B and 201 of Indian Penal Code and Section 135 of the Bombay Police Act. All the three accused persons pleaded not guilty to the charge and claimed to be tried. The trial was, therefore, proceeded with. The Trial Court examined as many as 44 witnesses. Considering the evidence led by the prosecution, the Trial Court came to a conclusion that, although there is no direct evidence to implicate the accused persons, there is a strong chain of circumstances leading to the guilt of the accused and connecting the accused with the crime. The learned Trial Judge, therefore, convicted all the three accused persons for the offences with which they were charged and sentenced them, as stated above. 7. Since accused Nos. 1 and 2, namely, Satish Himatlal Ruparelia and Raju alias Rajendra Panchal, have been sentenced with capital punishment, case has been referred to this Court by the Trial Court for confirmation of the sentence. Simultaneously, the three convicts have preferred the appeals against their conviction. Accused No.1 has preferred Criminal Appeal No.446 of 2000, accused No.2 has preferred Criminal Appeal No.430 of 2000 and accused No.3 has preferred Criminal Appeal No.449 of 2000. 8. We have heard learned Senior Counsel Mr. Thakkar for original accused No.1-Satish H. Ruparelia (appellant in Criminal Appeal No.446 of 2000), learned advocate Mr. Budhbhatti for original accused No.2-Raju alias Rajendra Panchal (appellant in Criminal Appeal No.430 of 2000) and learned advocate Mr. Adil Mehta for original accused No.3-Himatlal Ruparelia (appellant in Criminal Appeal No.449 of 2000). We have also heard learned Additional Public Prosecutor, Mr. K.T. Dave, for the State. The record and proceedings of the Trial Court is before us. Since all these three appeals and the Confirmation Case arise out of the same judgment and order, all the three appeals and the Confirmation Case are heard together and are disposed of by this common judgment. For sake of convenience, appellant in Criminal Appeal No.446 of 2000 is addressed to as 'accused No.1', appellant in Criminal Appeal No.430 of 2000 is addressed to as 'accused No.2' and appellant in Criminal Appeal No.449 of 2000 is addressed to as 'accused No.3'. 9. We have been taken through the entire evidence threadbare. We have, ourselves, given a close scrutiny to the evidence. 10. Learned Senior Counsel, Mr. Thakkar, has raised contentions in support of the appeal of accused No.1 against conviction and tried to assail the conviction on certain grounds. However, it was apparent that the conviction was not questioned seriously and the main thrust of the contentions and arguments advanced by the learned Senior Counsel was on quantum of punishment. He submitted that the incident is of 1994; the charge was framed on January 16, 1996; the trial began on July 10, 1998 and the judgment in question was rendered on April 18, 2000. He submitted that when this matter is heard, it is 31st July, 2001 and almost seven years have lapsed since the date of incident. He, therefore, submitted that the Court below was not justified in inflicting the severe most punishment, namely, capital punishment. He submitted that there is total absence of any direct evidence to connect the accused with the offence. The genesis of the incident is not brought on record. The accused themselves had injuries on their person which have not been explained by the prosecution and the evidence would indicate that there was no preplanning on part of the accused persons, even if it is accepted that the prosecution has proved the charges against the accused. Mr. Thakkar submitted that the nature of weapons which are alleged to have been used in commission of crime, the manner in which the accused has disclosed his correct identity while booking room, the fact that nothing unusual was noticed by the Hotel Boy when he went to serve tea in the room a few minutes before the incident and the fact that accused No.1 himself went to the counter with a request for change of room exposing himself to the possibility of being identified by the Manager at a later point of time would all lead to indicate that there was no preplanning on part of the accused. It is, therefore, not a case of premeditated murder, which may be considered as a mitigating circumstance. Mr. Thakkar submitted that none of the accused persons have any criminal antecedents. He, therefore, submitted that there is nothing either to show that, if not inflicted with capital punishment, they would be a menace to the society. Mr. Thakkar submitted that the capital punishment can be inflicted only in rarest of rare cases where it is found that the murder is committed in a gruesome manner with preplanning and the victim was helpless or innocent or defenceless. Mr. Thakkar submitted that, in the instant case, there is no such evidence. There is nothing to indicate that there is no scope for reformation of the accused persons and that the society at large would be at risk, if the accused persons are not hanged to death. He, therefore, urged that the appeal may be allowed and the sentence of death punishment may not be confirmed. 11. Learned advocate Mr. Budhbhatti has also raised the same contentions. According to him, accused No.2 comes from a strata of society engaged in manual and physical work. He is involved in this episode as he happens to be friend of accused No.1 when they stayed in the same street years back. Learned advocate Mr. Budhbhatti also tried to indicate that there are number of infirmities in the case of the prosecution which have not been considered by the Trial Court. He submitted that accused No.2 himself had injuries on his person. These injuries have not been explained by the prosecution. Mr. Budhbhatti submitted that accused No.2 had injuries on palmar aspect of both the sides which would indicate that they were defence wounds. 11.1 Regarding test identification parade, Mr. Budhbhatti submitted that test identification parade was not properly conducted. There was opportunity for the witnesses to have seen the accused before he was brought for the parade. The other persons made to stand in the row did not carry the similar stature as that of accused No.2. Accused No.2 wears very high powered lenses for which he is known as "Battery" and there is nothing to indicate that other participants who had participated in the parade were also made to wear such high powered spectacles. Mr. Budhbhatti submitted that accused No.2 had an injury on the head, which was bandaged which would naturally distinguish him from other persons standing and, therefore, no emphasis could have been laid on the evidence of test identification parade. Mr. Budhbhatti submitted that considering the fact that age of accused No.2, at the time of the occurrence, was 20 years; considering that he has already spent seven years in jail; considering that no incriminating article was found from him; and considering total lack of motive, he deserves acquittal. However, if the Court is not inclined to accept this contention, alternatively, he submitted that these circumstances may be considered as mitigating circumstances and the punishment of hanging may not be confirmed and be reduced to life imprisonment. 12. Mr. Adil Mehta, learned advocate for accused No.3, has contended that there is no active participation of accused No.3 in the commission of the crime even as per the prosecution case. He submitted that there is no evidence to indicate that accused No.3 had knowledge about the fact that the golden ornaments which were converted into ingots were of the principal offence committed allegedly by accused Nos.1 and 2. Considering the fact that accused No.3 is father of accused No.1, he could not have been convicted for such an offence as, a father, in ordinary course, would try to help the son in getting the ornaments converted into ingots. He, therefore, urged that accused No.3 may be accquitted by allowing his appeal. 13. Mr. K.T. Dave, learned Additional Public Prosecutor, has opposed these appeals on the ground that the chain of circumstances indicated by the prosecution is strong enough to convict the accused persons. He submitted that, although there is no direct evidence, the circumstantial evidence is cogent and coming from independent sources. He submitted that the evidence conclusively implicate the accused persons. According to Mr. Dave, the crime is committed in a brutal manner. An innocent man is done to death by inflicting as many as 33 stab wounds and, as if this was not enough, his head has been chopped off mercilessly. Such a ghastly murder for a petty amount of Rs.10,000/-, according to Mr. Dave, calls for a severe punishment which has rightly been inflicted upon by the Trial Court. He, therefore, urged that the sentence of death to accused Nos.1 and 2 may be confirmed and the punishment inflicted upon accused No.3 may also be confirmed. As regards accused accused No.3, Mr. Dave submitted that accused No.3 is the father of accused No.1 and he can be presumed to have knowledge about the ornaments being not that of accused No.1 and, therefore, when he took these ornaments to market and got them converted them into ingots, his innocence cannot be accepted. Mr. Dave submitted that the Trial Court has, in detail, dealt with each of the circumstances proved by the prosecution by examining 44 witnesses. The chain is properly established and the appeals deserve to be dismissed. As regards quantum, Mr. Dave submitted that the manner in which the crime is committed indicates that it was a cold blooded and gruesome murder committed by accused Nos. 1 and 2 in a preplanned manner and, therefore, the case can be considered as one of the rarest of rare cases and death punishment inflicted by the Trial Court may be confirmed and appeals may be dismissed. 14. We have been taken through the evidence by the learned advocates for the appellants as well as the learned Additional Public Prosecutor. We have given a close scrutiny and thoughtful consideration to the evidence on record in light of the contentions raised before us. The present case is sought to be established by circumstantial evidence. Various circumstances are pointed out to indicate the involvement of the accused persons in the crime. There is no dispute about the death of Arvindbhai nor is there any dispute about the death being of a homicidal nature. In this regard, it would not be out of place to consider the evidence of Dr. Dipakbhai Mistry, P.W.33 (Ex.160), who had performed postmortem of the trunk as well as the head of the deceased. He has recorded as many as 33 stab wounds, 1 CLW, 7 incised wounds along with multiple incised wounds on hand of the deceased. The postmortem notes at Ex.161 also indicate that the neck of the deceased was cut and the head was totally severed. The neck was cut from 2 cm. above the supra sternal natch on the back at C7 and T1 level. There were multiple cuts of irregular nature. The structures were not cut at the same level. All these injuries were ante-mortem in nature. The internal injuries indicated that 4 stabs in liver in relation with external injury No.5 had passed through the peritonium and liver. There was internal injury in chest corresponding to the external injuries which had cut the sub cutaneous muscle pleura and entered the left lung in the lung track and there was 100 ml. blood in the left plueral cavity. 14.1 According to the medical evidence, the death occurred due to shock and haemorrhage, and due to injuries present on the body. It was also opined that the injuries were sufficient in ordinary course of nature to cause death and that the injuries were caused by sharp cutting instruments. 15. Postmortem of the head also indicated three incised wounds. 15.1 The doctor expressed a specific opinion after comparing the head and trunk and free end of the neck that the head part and the trunk part were of the same person and were about the same age group. It was opined that neck part attached to the head and neck part attached to the trunk and the nature and site of injury present on both the parts were in anatomical apposition. This would conclude that the dead body which was found in the hotel and the head which was subsequently discovered were of the same person. The head and the trunk have been identified by witness-Sanjay Arvindbhai Shah, son of the deceased, who has been examined at Ex.73 as P.W.6. He had identified the trunk with the help of clothes, ornaments and a surgical scar on the person of the deceased. He also identified the head of the deceased. 16. These pieces of evidence, therefore, leave no scope for any doubt that deceased-Arvindbhai Shah was murdered. 17. Now, the question that requires consideration is whether there is evidence to indicate that deceased Arvindbhai was done to death by accused Nos.1 and 2 in the manner alleged by the prosecution. For this purpose, there is no direct evidence and, therefore, the circumstances shown by the prosecution are required to be considered. 17.1 Witness-Sanjay Arvindbhai Shah, P.W.6 (Ex.73) has stated that, on the day of incident, accused Nos. 1 and 2 came to their shop on a scooter and took away his father-Arvindhai with them under a pretext of making available certain quantity of china silk cloth. His father was asked to take with him an amount of Rs.10,000/- and, accordingly, his father took with him Rs.9500/-. Thereafter, his father was not heard of. Next morning, on reading newspapers, Sanjay approached the police and on being shown the trunk part of the dead body which was found from Neelam Hotel, he identified the same as that of his father. During the night, he had made inquiry at the house of accused No.1 and was told that he had gone out. He made inquiries with Jigneshbhai Patel, P.W. 39, as the scooter on which the accused persons had come to call his father and the scooter on which his father was taken belonged to Jignesh (however, technically, the vehicle was registered in the name of Maheshbhai, father of Jignesh). 17.2 On the other hand, the F.I.R. came to be lodged with the police by Jagdishbhai Govindbhai, P.W.10 (Ex.82), the Manager of Neelam Hotel. His evidence indicates that two persons had come to his hotel on the day of incident at about 2.25 P.M. and booked a room. They were allotted room No.208. At a later point of time, they both came again and occupied the room. Still later, around 4.15 P.M., those two persons were found to be in company of another person by one Rameshbhai Vaghela, working as a Waiter in the hotel, who has been examined at Ex.67. At about 5.15 P.M., a lady Sweeper-Savita noticed drops of blood and blood stained foot marks ouside Room No.208 and she, therefore, reported the fact to the Manager, who after verifying, called the police. It was found that in Room No.208, the floor was spattered with blood and the dead body of the deceased was lying on the floor with the head chopped off. The head was nowhere to be found. Witnesses-Jagdishbhai Govindbhai and Ramesh Vaghelal have later on identified both the accused persons as the persons who had booked the room and