CR.A/39798/1998 1/41 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 397 of 1998 With CRIMINAL APPEAL No. 621 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 ? ========================================================= ILABEN DEEPAK DHANRAJ SHAH - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : CRIMINAL APPEAL NO.397 OF 1998 MR KJ SHETHNA for appellant(s) : 1, MR RC KODEKAR, APP for opponent(s) : 1, CRIMINAL APPEAL NO.621 OF 1998 MR SA QURESHI for appellant(s) : 1, MR RC KODEKAR, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and CR.A/39798/1998 2/41 JUDGMENT HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 10/10/2006 COMMON CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.Criminal Appeal No.397 of 1998 has been filed by the appellant-original accused No.1 Ilaben, widow of Dipakbhai Dhanrajbhai Shah, whereas Criminal Appeal No.621 of 1998 has been filed by the appellant-original accused Nos.3 and 4 i.e. Kanu @ Motilal Ukarlalji Somavat and Kallu @ Kaushalendra Pratapsinh Shivpalsinh Thakur respectively being aggrieved and dissatisfied by the judgment and order of conviction dated 1-5-1998 passed by the learned Sessions Judge, Surat, in Sessions Case No.211 of 1992 sentencing them to suffer RI for life and fine of Rs.500/-, in default, to suffer one month RI for the offence punishable under Sec.302 read with Sec.201 of IPC. They were also sentenced under certain other sections of IPC and all the sentences were ordered to run CR.A/39798/1998 3/41 JUDGMENT concurrently. However, original accused No.2- Bhagvanlal @ Bhagwati Jetaji Ravat was acquitted of the charges levelled against him. 2.Both these appeals were listed in our board for final hearing in view of the present roster. 3.Facts in nutshell are that in pursuance of marriage of Ilaben(accused No.1) with Dipakbhai Dhanrajbhai Shah (deceased), they were staying together in 302, Sukhsagar Apartment, Athwalines, Surat. Out of the said wedlock, they got three children. Initially, Dipakbhai, his wife, complainant and brother of Dipakbhai were doing the business of custom notified goods in a shopping complex known as Kanaknidhi Complex in the name and style of Desh Pardesh. Later on, they separated themselves and business of Desh Pardesh remained with Dipakbhai and Ilaben and they were doing the same. Other brothers were in good terms with Dipakbhai and Ilaben. CR.A/39798/1998 4/41 JUDGMENT On 1-7-1992, the complainant went to the shop of Dipakbhai and they were there upto 8.00 p.m. Thereafter, they were separated and on the next day, he again went to see Dipakbhai but he was not in the shop. When he again went there in the evening, Ilaben and employee of the shop were there. He inquired about Dipakbai from Ilaben and she informed that Dipakbhai had left the house at 6.00 a.m. without informing her. Therefore, the complainant felt that he might have gone to Bombay for some business purpose. However, since he did not return, family members started searching on their own by contacting relatives and businessmen of Bombay from where they were purchasing goods. However, he could not be found out. Ultimately on 4-7- 1992 Ilaben and brother of Dipakbhai i.e. the complainant went to Umra Police Station and made Janvajog entry about missing of Dipakbhai which was registered by PSO, Mahmadkhan Mahmodkhan as station diary entry CR.A/39798/1998 5/41 JUDGMENT No.15 of 1992 at Ex.83. Meanwhile, complainant came to know through liftman Lalsing that on 1-7-1992 at night, Cook Kanu @ Motilal Ukarlalji Somavat (accused No.3) along with one person came in rickshaw and went to the flat of Dipakbhai and early in the morning both came out with wooden box covered with jute. Same was taken out from the lift and placed in a Maruti Van bearing registration No.GJ-5A-1666. After some time, Kanu came back in the flat of Dipakbhai. On 5-7-1992, they came to know that near Anthrali Village, one half burnt dead body was lying and it was sent to New Civil Hospital, Surat and, therefore, the complainant along with his brothers went to New Civil Hospital. They could not identify whether it was the said body of Dipakbhai or not. Thereafter, they again inquired from Ilaben. Ultimately, Ilaben confessed in presence of the complainant, his brothers and other family members that on 2-7-1992 at CR.A/39798/1998 6/41 JUDGMENT night, she, Cook Kanu and a friend of Kanu killed Dipakbhai and his dead body was put into wooden box and has been taken away by Kanu's friend. Therefore, the complainant went to Umra Police Station, Surat, and lodged the complaint to that effect on 7-7- 1992 which has been registered as Umra Police Station C.R.No.302 of 1992 for the offence punishable under Secs.302, 201, 120-B and 34 of IPC and further investigation was handed over to P.I., Devendrasing Bhagwati Prasad Bhatt, Umra Police Station, and he started investigation. He visited the scene of offence, prepared panchnama of scene of offence in presence of panchas as well as FSL expert and seized muddamal as suggested by FSL expert from the scene of offence i.e. No.302, Sukhsagar Apartment. He also kept the papers of station diary entry No.15 of 1992 with the investigation papers. He arrested Ilaben on the same day. Thereafter, he recorded the statements of liftman and CR.A/39798/1998 7/41 JUDGMENT watchman of Sukhsagar Apartment together with the statement of Salim Solanki in whose shop Ilaben had gone to repair the mattresses of the bed situated at the scene of offence where Dipakbhai was killed. He continued further investigation and recorded statements of various witness and also directed the Police Officer to prepare the map of scene of offence. He obtained police custody of accused No.1 and also seized muddamal Maruti Van bearing registration No.GJ-5A-1666 alleged to have been used for transporting the dead body from Sukhsagar Flat and same has been sent to FSL. He also recorded statement of Canteen owner, Badriprasad, Security Officer of Batliboi Company Limited. Meanwhile, Bhagvanlal @ Bhagwati Jetaji Ravat (accused No.2) was also arrested. During the course of investigation, accused Bhagvati Jetaji Ravat showed willingness to show the place from where dead body of deceased Dipakbhai was burnt. Therefore, he called the CR.A/39798/1998 8/41 JUDGMENT panchas and primary panchnama was prepared and thereafter all proceeded as instructed by Bhagvati Jetaji along with panchas to the place where dead body was burnt i.e. near Antrali Village. He took the investigation papers of A/D No.12 of 1992 of Palasana Police Station which was registered in view of telephone message received by Palasana Police Station regarding the burnt body lying on the road of Antrali Village. Concerned Police Officer went to the scene of offence and prepared panchnama of scene of offence and also carried out inquest panchnama and seized muddamal i.e. half burnt dead body including head, ash and clay. Three packets were prepared after completing formalities and same were sent to New Civil Hospital, Surat. Ilaben showed willingness to produce the pants of Kanu washed and kept in cupboard by her. Kanu @ Motival on his arrest also showed willingness to show the place of incident. Panchnamas to that effect were CR.A/39798/1998 9/41 JUDGMENT prepared in presence of panchas in Police Station. All concerned were taken to No.302, Sukhsagar Flat as per the direction shown by them. They showed the place of incident. Ilaben showed the pants of Kanu from the cupboard. Panchnamas to that effect were prepared there itself. Kanu @ Motilal also expressed willingness to show the place where dead body of Dipakbhai was burnt. Panchnama to that effect was also prepared after following due legal procedure. Thereafter, he recorded further statement of complainant and during the course of investigation, he came to know that deceased had taken dental treatment with Dr.Shailesh Parikh and therefore, he contacted Dr.Parikh and gave yadi requesting him to visit New Civil Hospital where half burnt dead body was kept and to give opinion regarding the same. Thereafter, he recorded the further statements of various witnesses in A.D. Note No.12 of 1992. On receiving post mortem note CR.A/39798/1998 10/41 JUDGMENT and FSL report, same were kept in investigation file. He also kept the written opinion given by Dr.Parikh dated 14-9-1992 also in the said file. At the end of investigation, charge sheet was submitted into the Magistrate Court against the accused. 4.As the offence alleged against the accused was exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate committed the case to the Court of Sessions at Surat where it was numbered as Sessions Case No.211 of 1992 and transferred to the Court of learned Addl. Sessions Judge, Surat, for trial. The learned Judge framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 5.To prove the case against the accused, the prosecution examined in all 31 witnesses witnesses and also relied on various documentary evidence numbering 19. On submission of closing purshis by the CR.A/39798/1998 11/41 JUDGMENT prosecution, learned Addl. Sessions Judge recorded the further statement of the accused under Sec.313 of the Code. Thereafter, on hearing the learned advocates appearing for the respective parties, learned Addl. Sessions Judge, Surat, delivered the impugned judgment whereby the accused No.2 was acquitted while original accused Nos.1,3 and 4 were convicted for life. 6.As both the appeals arose out of the same judgment and order dated 1-5-1998 passed in Sessions Case No.211 of 1992 by the learned Addl. Sessions Judge, Surat, they were heard together and are being decided by this common judgment. 7.Heard learned Senior Counsel, Mr.K.J.Shethna for the appellant-original accused No.2- Ilaben and learned counsel, Mr.S.A.Qureshi for the appellants-original accused Nos.3 and 4 and learned APP, Mr.R.C.Kodekar for the State, in both the appeals. They took us through the relevant evidence on record along with documentary evidence as well as the CR.A/39798/1998 12/41 JUDGMENT impugned judgment. We will deal with the arguments advanced by the learned counsel for the respective parties point by point. 8.It is required to be noted that the case of the prosecution is based on circumstantial evidence. Law on this point is settled by the Apex Court in 2003 Supreme Court Cases (Cri) 795 in the case of State of Karnataka Vs. M.V.Mahesh wherein it was held by Apex Court in para 4 as under: “In a case based on circumstantial evidence, it is now well settled that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conlcusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.” In the context of the above settled principle, we shall analysis the evidence led by the prosecution. CR.A/39798/1998 13/41 JUDGMENT 9.On 1-7-1992, the deceased and the complainant, who are real brothers, were together and departed at night. As per the evidence on record, deceased did not reach home i.e. 302, Sukhsagar Apartment, Surat on the next day i.e. on 2-7-1992. The complainant therefore went to the shop of the deceased but could not find the deceased there. He came to know through family members that the deceased was also not in the procession led by Maharaja Saheb, their religious head and, therefore, he inquired from the wife of the deceased i.e. Ilaben. She replied that deceased had come to the house the previous night at 10.30 p.m. When she got up, she did not find the deceased on the bed. She further replied that she does not know where he had gone and, therefore, the complainant inquired about his brother through his sources i.e. businessmen at Bombay and also through friends and relatives. As the deceased did not turn up till 4-7-1992, he and wife of the deceased CR.A/39798/1998 14/41 JUDGMENT went to the Police Station wherein complaint to that effect was lodged by Ilaben and it has been registered as Janvajog Entry and police started investigation. On 5-7-1992, when inquired through liftman Lalsing, he told that he saw the deceased Dipakbhai on the night of 1-7-1992 at about 10.30 p.m. when he was taken to the third floor on lift by him where his flat is situated. He further informed that thereafter he did not see Dilipbhai coming out from his flat. He also informed that on the same day late at night, Kanubhai and his friend came in a rickshaw in Sukhsagar Apartment and both went to the house of deceased Dipakbhai. After some time, they came out along with wooden box covered in jute material and same had been taken by them in a Maruti Van. Kanu came back after some time and went to the flat of deceased. It is also the say of the prosecution that during the missing period of Dipakbhai, they also came to know through newspaper and from people that an unclaimed CR.A/39798/1998 15/41 JUDGMENT dead body of a male person was lying near the road leading to Anthrali Village and, therefore, they went to Civil Hospital, Surat, along with his other family members wherein they found a half burnt dead body. As it was half burnt, they could not identify the same. Thereafter, they came back home and on 6-7-1992, Palasana Police came along with the photographs of head portion of the above dead body to show the complainant and others. Still, however, same could not be identified by them. As per the deposition of the complainant, on 7-9-1992, the accused No.1 ultimately made an extra-judicial confession before the complainant, his other brothers, father and other family members that on 1-7-1992 at night, Kanu, his friend and she killed Dipakbhai in the bedroom of their flat and his dead body was taken away in wooden box covered in jute material by Kanu and his friend for disposing the same on the Kadodara road and hence, according to the complainant, he came to Kadodara Police CR.A/39798/1998 16/41 JUDGMENT Station and lodged the complaint to that effect and it has been registered. It was alleged that the accused No.1 had illicit relations with the accused No.3 Kanu @ Motilal Ukarlalji Somavat, who was serving there as a Cook. When it came to the knowledge of the deceased, time and again, there used to be quarrel between the deceased and accused No.1-Ilaben and the accused No.3 was removed from the service by the deceased. However, since the accused No.1 Ilaben insisted for employing him again, he was again taken in service. Thereafter also, the said illicit relations continued. The complainant deposed the same into the Court. He was thoroughly cross examined by the learned counsel for the accused. However, nothing contrary came out shaking his evidence. 10.The contention which has been raised by the learned counsel for the appellants is that previously, deceased and complainant were CR.A/39798/1998 17/41 JUDGMENT partners in a shop of custom notified goods named Des Pardesh. However, since there was a dispute between them, they separated and complainant started same business in a different name and, therefore, there existed enmity between the two and as the deceased was found missing, the complainant took disadvantage of the situation and for the purpose of grabbing the properties of deceased and accused No.1, falsely involved the accused No.1 into the crime in question. The complainant has been thoroughly cross examined by the learned counsel for the accused on the above point. Except the suggestion, there are no other materials comingforth during the course of cross examination turtling his evidence. 11.Learned APP, Mr.R.C.Kodekar, supported the findings recorded by the court below and submitted that since there is no illegality or irregularity in the impugned judgment and order of conviction, same are not required to CR.A/39798/1998 18/41 JUDGMENT be interfered with. 12.It is true that the complainant took active part during the course of investigation and he himself became the complainant. At this juncture, one should not forget the fact that the deceased was his brother and hence he being a brother if filed the complaint or tried to help the investigating agency, it does not mean that his motive was to grab the properties of the deceased and Ilaben by falsely involving Ilaben into the crime. This would also not be probable in view of the fact that Ilaben and deceased had children and, therefore, in any circumstances of the matter, movable and immovable properties would not go to the complainant. We therefore do not find any substance in the above referred arguments advanced by the learned counsel for the appellants and we are of the opinion that same has been rightly dealt with by the court below. 13.It is established that during the course of CR.A/39798/1998 19/41 JUDGMENT investigation, accused No.1 was arrested on 7-7-1992 and thereafter, panchnama of scene of offence has been drawn at 302-Sukhsagar Apartment, Surat, in presence of panchas and FSL experts whereby various muddamals were seized and they accepted the suggestion given by FSL expert to that effect. It is proved by the prosecution that during the course of interrogation, accused No.1 had shown willingness to produce the pants alleged to have been worn by the accused No.3 Kanu at the time of incident and which has been washed, dried and put by her in her cupboard and, therefore, panchas were called and drew panchnama to that effect. Thereafter, all were taken to the place as shown by accused No.1 wherein she produced the pants from the cupboard of her bedroom of 302-Sukhsagar Apartment. The said pants were found to have blood stains and when it was sent to FSL along with other muddamals, it was opined by the FSL Expert that bloodstain found on the CR.A/39798/1998 20/41 JUDGMENT pants was of human blood of the group of deceased. During the course of investigation, it has also been found that the mattresses of rubber form lying on the bedroom of deceased were taken by Ilaben for repairs to the shop of mattresses repairer, Salim Nurmahammad Solanki. Said Salim has been examined by the prosecution as P.W.11 at Ex.52. He deposed that he is having a matresses shop in the name of India Furnishing Centre in Nanpura Mohalla, Surat City. On 2-7-1992 at 2.00 p.m., accused No.1 Ilaben had come to his shop for repairing mattresses. He repaired the same and it was taken by her on the next day. He charged Rs.600/- and Ilaben herself paid the same. Though he was cross-examined by the prosecution, nothing contrary came out. Portion of the mattresses and portion of the backseat of the bed were sent to FSL and it was opined by FSL Expert that human blood of the group of deceased was found on them. CR.A/39798/1998 21/41 JUDGMENT 14.Simultaneously, Nareshchandra Gajanand Shukla, who was examined as P.W.1 at Ex.19, and who was discharging his duty as a Home Guard at Kadodara Village, deposed that on 2-7-1992 he received a telephone call at Kadodar Police Chowki from the Sarpanch of Antrali Village at 8.00 a.m. stating about a half burnt body lying by the side of a road leading to Antrali Village. Said information was given by him to Palasana Police Chowki by wireless message. Thereafter, Police Officer of Palasana Police Station went to the scene of offence along with the present witness wherein they saw a dead body which is burnt except the portion of its head and, therefore, inquest panchnama Ex.20 was drawn there itself in presence of panchas and seized burnt pieces of the body including head, ash and earth after drawing panchnama Ex.21 there itself. Same were sent to Civil Hospital, Surat, for post mortem. Said witness was cross examined by the learned CR.A/39798/1998 22/41 JUDGMENT counsel for the accused. It was asked in the cross examination that he was not telling the truth and had never visited the scene of offence and nothing had taken place in his presence. 15.It is required to be noted that above referred muddamal was seized by drawing panchnama in A.D.No.12/1992. In support of that, prosecution examined Ratilal Chibabhai Parmar, P.W.2 at Ex.23. 16.As stated earlier, when the complainant and other family members visited New Civil Hospital, Surat, they could not identify the half burnt dead body lying there. However, later on during the course of investigation it was known that Dipakbhai had taken dental treatment with Dr.Sailesh Danvantarai Parikh and hence, evidence of Dr.Parikh will have to be seen. 17.Dr.Sailesh Danvantarai Parikh, P.W.23 at Ex.89, deposed that he did BDS and has been rendering service as Dental Surgeon in the CR.A/39798/1998 23/41 JUDGMENT City of Surat since last 20 years. He used to keep regular record of his patients including date of appointment, treatment sheet, etc. on a permanent basis. He further deposed that on 16-12-1991 a person named Dipakbhai D.Shah aged about 37 years having his address at 302, Sukhsagar Apartment, Athwalines, Surat, had visited his dispensary. His case paper number was 2853. His official and residential telephone numbers were also noted down in the sheet. Along with Dipakbhai, another person namely, Sham M.Lulla aged about 30 years was also treated on the same day. His residential address was also given as 302, Sukhsagar Apartment, Athwalines, Surat, with residential and office telephone numbers. He further deposed regarding the complaints of the deceased and also the treatment provided to him. He deposed that again on 24-12-1991, deceased had visited his dispensary and was again treated. He produced and proved the appointment book by deposing CR.A/39798/1998 24/41 JUDGMENT that even though appointment was fixed at 10.30 a.m., he came at 10.45 a.m. On that day, along with Dipakbhai, Ilaben had also come. Her case number was 2953 and she was also treated by him. He further deposed that thereafter deceased had never his dispensary. He further deposed that in view of yadi sent by I.O. requesting him to visit the corpus seized from Antrali and kept in New Civil Hospital, he was taken to New Civil Hospital. He contacted Dr.Subramaniam, who was the senior doctor and who performed the post mortem of the above referred corpus with his colleague doctor. He saw various photographs of head portion and part of spinal cord, etc. and compared the same with the treatment sheet of Dipakbhai maintained at his dispensary. He deposed the same in detail and ultimately gave the definite opinion in writing that the head of the corpus shown to him in New Civil Hospital, Surat, was of deceased Dipakbhai. His opinion which formed CR.A/39798/1998 25/41 JUDGMENT part of the prosecution evidence has been proved by him. 18.It is to be noted that post mortem of the corpus found from Anthrali Village was performed by Dr.Battaram Vishweshwar Subramaniam along with his colleague, Dr.Pravin Bodke. Dr.Subramaniam was examined as P.W.24 at Ex.106. His evidence was discussed at length by the court below in its judgment in para 27. 19.It reflects from the evidence of Dr.Subramaniam discussed by the court below that he did M.D. in Forensic Science in 1967 and prepared various papers on the above subject. He has been performing post mortem since the year 1969. He categorically deposed that on 4-7-1992, he received certain parts of dead body of an unknown male in half burnt condition through Police Constable, Thakhatsing Dalsukh. He