CR.A/1087/2007 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1087 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 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 ? ========================================================= THAKOR SOMAJI AMRAJI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR AY PATHAN for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 23/01/2008 CR.A/1087/2007 2/16 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This Appeal is directed against the judgment and order dated 8th May, 2007 passed by the learned Addl. Sessions Judge, Patan in Sessions Case No. 94 of 2006 whereby, the appellant was convicted for the offences punishable u/s. 376 & 302 of the Indian Penal Code, 1860 [for short, “the I.P.C.”]. For conviction under both the offences, the appellant was sentenced to undergo Imprisonment for Life. A fine of Rs.1000/- was imposed for conviction u/s. 302 of the I.P.C. and in default of payment of fine, the appellant was sentenced to undergo Simple Imprisonment for a further period of fifteen days. No fine was imposed for conviction u/s. 376 of the I.P.C. The appellant was given the benefit of set-off. 2.0 The facts in brief, as brought out by the prosecution, are as under; 2.1 On 12.09.2006, in the evening hours, a dead body CR.A/1087/2007 3/16 JUDGMENT was found in an agricultural field situated in the outskirts of Village Ganglasan of Taluka Siddhpur. On investigation, the dead body was realized to be of Bhagiben, who is the minor daughter, aged about eight years, of one Pratapji Diwanji, a resident of the said village. The dead body was lying in a naked condition and it appeared that the minor was done to death by strangulation after committing rape on her, as there were injury marks on her private portion also. Therefore, a complaint to that effect was filed by Jaswantji Diwanji, uncle of the deceased, before Siddhpur Police Station vide I. - C. R. No. 159 of 2006 for offences punishable u/s. 376 & 302 of the I.P.C.. 2.2 On the said complaint, necessary preliminary investigation was carried out by the police officials. 'Panchnama' of the scene of offence was done and 'muddamal' articles were collected. 'Marnottar' form was filled up and arrangements were made for sending the dead body for performing post-mortem. The 'muddamal' articles so collected were sent to F.S.L. for examination. On receipt of the F.S.L. Report, PM Report and other Reports, they were CR.A/1087/2007 4/16 JUDGMENT kept in the investigation file. 2.3 Further investigation was carried out and statements of several witnesses were recorded. As cogent material was found against the appellant, the appellant came to be arrested on 17.09.2006. During the course of interrogation, as the appellant showed his willingness to produce the clothes worn by him at the time of the alleged incident in question, the same were recovered by way of a separate 'panchnama' in the presence of 'panchas'. 2.4 On completion of the investigation, charge-sheet was filed against the appellant before the Court of learned Chief Judicial Magistrate, Patan and as the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court, Patan and it was numbered as Sessions Case No. 94 of 2006. The matter was then transferred to the Court of learned Addl. Sessions Judge for disposal on merits. The learned Addl. Sessions Judge framed the charge and as the appellant pleaded not guilty to the charge leveled against him, trial was initiated. CR.A/1087/2007 5/16 JUDGMENT 3.0 The prosecution has examined in all twenty one witnesses in order to prove the guilt against the appellant. PW – 1 Babuji Joraji Thakor at Exhibit – 7, PW – 2 Thakor Jawanji Bharsanghji at Exhibit – 9, PW – 3 Kaushikbhai Mulchandbhai Rathod at Exhibit – 10, PW – 4 Prakashbhai Hirabhai at Exhibit – 12, PW – 5 Rajendrakumar Ranchhodbhai at Exhibit – 13, PW – 6 Rakeshbhai Prahladbhai Patel at Exhibit – 15, PW – 7 Rameshbhai Tejabhai Desai at Exhibit – 17, PW – 8 Jaswantji Jiwaji at Exhibit – 20, PW – 9 Dr. Rahimbhai Ibrahimbhai Memon at Exhbit – 22, PW – 10 Prabhatji Varsanghji at Exhibit – 33, PW – 11 Ambaben Pratapji at Exhibit – 34, PW – 12 Tejaji Karnaji at Exhibit – 35, PW – 13 Jhujharji Kanaji at Exhibit – 36, PW – 14 Kadarkhan Fatehkhan at Exhibit – 37, PW – 15 Dineshbhai Tejabhai at Exhibit – 38, PW – 16 Sujataben Naginbhai Brahmbhatt at Exhibit – 40, PW – 17 Kadvaji Kursiji at Exhibit – 42, PW – 18 Kantiji Amraji at Exhibit – 45, PW – 19 Thakor Bhemaji Karnaji at Exhibit – 46, PW – 20 Rupaji Ditaji at Exhibit – 47 and PW – 21 Nanjibhai Surjibhai Ninmani at Exhibit – 51. CR.A/1087/2007 6/16 JUDGMENT 3.1 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in the form of Inquest 'panchnama' at Exhibit – 8, the 'panchnama' of the clothes seized from the dead body of the deceased at Exhibit – 11, the 'panchnama' of the scene of offence at Exhibit – 14, the discovery 'panchnama' of the clothes of the appellant at Exhibit – 18, the Arrest 'panchnama' at Exhibit – 19, the complaint at Exhibit – 21, the PM Note at Exhibit – 23 and the F.S.L. Reports at Exhibits – 64 & 65. 3.2 On submission of the closing ‘purshis’, the further statement of the appellant was recorded u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for the respective parties, the learned Addl. Sessions Judge passed the impugned judgment and order and convicted the appellant for the offences, as narrated in the earlier part of this judgment. Hence, the present Appeal. 4.0 When the matter came up for admission hearing, CR.A/1087/2007 7/16 JUDGMENT Mr. A. Y. Pathan learned Advocate for the appellant requested that he would like to go through the Records & Proceedings available with the Court. Therefore, with a view to protect the interest of the appellant, the matter was adjourned. Ultimately, the matter was finally heard today. 5.0 Mr. Pathan learned Advocate for the appellant has submitted that there is no eye-witness to the alleged incident in question and that the entire case of the prosecution rests upon circumstantial evidence. He has submitted that the prosecution has not been able to prove the chain of circumstances so as to connect the appellant with the crime in question. He has, therefore, submitted that the appellant is required to be acquitted from the alleged offence by granting him the benefit of doubt. 5.1 Learned Advocate has contented that the prosecution has not been able to prove the aspect of “last seen together” and that the evidence to that effect as relied upon by the prosecution is also not trustworthy and reliable. He has further submitted that the evidence led by CR.A/1087/2007 8/16 JUDGMENT the prosecution witnesses could not be fully relied upon inasmuch as there are several contradictions in it on material points. Hence, the impugned judgment and order passed by the Court below deserves to be quashed and set aside and the appellant is required to be acquitted from the alleged offence in question. 6.0 Mr. H. L. Jani learned APP has submitted that looking to the documentary evidence in the form of 'panchnama' of the clothes seized from the dead body of the deceased at Exhibit – 11, the discovery 'panchnama' of the clothes of the appellant at Exhibit – 18, the Arrest 'panchnama' at Exhibit – 19, the Post-mortem Note at Exhibit – 23 and the F.S.L. Reports at Exhibits – 64 & 65 and oral evidence in the form of depositions PW – 7 Rameshbhai Tejabhai Desai at Exhibit – 17, PW – 9 Dr. Rahimbhai Ibrahimbhai Memon at Exhibit – 22, PW – 13 Jhujharji Kanaji Thakor at Exhibit – 36, PW – 14 Kadarkhan Fatehkhan at Exhibit – 37 and PW – 15 Dineshbhai Tejabhai at Exhibit – 38 on record, the guilt of the appellant is established beyond doubt. Thus, no interference is required CR.A/1087/2007 9/16 JUDGMENT from this Court in this Appeal. 7.0 We have heard learned counsel for the respective parties and have perused the documents on record. Evidently, the entire case of the prosecution rests upon circumstantial evidence. It is a settled principle of law that circumstantial evidence can be made the basis of an accused person's conviction if it of such a nature that it is consistent with his guilt. Therefore, in the instant case also, if the appellant is to be convicted for the offence alleged against him, then all the circumstances brought out by the prosecution, must inevitably and exclusively point to his guilt and there should not be any circumstance which may reasonably be considered consistent with his innocence. 8.0 In order to prove the guilt of the appellant, the prosecution has placed heavy reliance upon the medical evidence on record in the form of deposition of the Medical Officer, who has performed the Post-mortem of the deceased, Dr. Rahimbhai Ibrahimbhai Memon [PW – 9 at Exhibit – 22] and the Post-mortem Report at Exhibit – 23. In CR.A/1087/2007 10/16 JUDGMENT his deposition, the Medical Officer has categorically stated that the cause of death was due to strangulation. This witness, after verifying the F.S.L. Report, has further categorically deposed that prior to killing the deceased by strangulation, the deceased was raped. The said fact is evident from the remarks mentioned in Column No. 17 of the Post-mortem Report at Exhibit – 23. From the medical evidence on record, as discussed herein above, it is established beyond doubt that the deceased was firstly raped and, thereafter, strangulated to death. Thus, we have no hesitation in coming to the conclusion that the deceased died a homicidal death. 9.0 The question, therefore, which is now required to be considered by this Court is as to whether the appellant herein is the author of the grisly act of firstly raping a minor and thereafter, strangulating her to death in order to hide his guilt. To establish the same, as stated herein above, the prosecution has to prove beyond doubt that all the circumstances brought out by it must inevitably and exclusively point towards the guilt of the appellant and there CR.A/1087/2007 11/16 JUDGMENT should not be any circumstance which might be consistent with his innocence. 10.0 The clothes wore by the appellant at the time of the alleged incident in question were seized by way of discovery 'panchnama' at Exhibit – 18 in the presence of 'panchas'. The same has been proved by the prosecution by way of the evidence of the two 'panch' witnesses, viz. PW – 7 Rameshbhai Tejabhai Desai at Exhibit – 17 and PW – 15 Dineshbhai Tejabhai at Exhibit – 38. Nothing incriminating has come out from the evidence led by these two witnesses which may lead us to believe their evidence to be untrue or unreliable. 11.0 The prosecution has also placed heavy reliance upon the F.S.L. Reports at Exhibits – 64 & 65. From the said Reports, it transpires that the Blood Group of the appellant is 'A' while that of the deceased is 'B'. It may be noted that the clothes wore by the deceased at the relevant point of time and seized by way of 'panchnama' at Exhibit – 11 contained human blood stains belonging to Blood Group CR.A/1087/2007 12/16 JUDGMENT 'A', which is similar to that of the appellant. At the same time, human blood stains belonging to Blood Group 'B' were also found on the clothes of the appellant, seized by way of discovery 'panchnama' at Exhibit – 18. However, a defence was raised that the said blood stains found on the clothes of the appellant were of the wife of the appellant since she also possessed blood belonging to Blood Group 'B'. 11.1 Considering the fact that blood stains belonging to Blood Group 'A', which is similar to that of the appellant, were found on the clothes of the deceased, it could safely be concluded that the same was that of the appellant. The said aspect also gets support from the arrest 'panchnama' at Exhibit – 19 which shows the existence of human blood stains in the nails of the appellant. However, its Blood Group could not be identified on account of the insufficiency / bad quality of the blood found on it or on account of the fact that the appellant was arrested in connection with the alleged offence after a period of five days by which time it would have become improbable to identify the Blood Group. The Post-mortem Report of the deceased at Exhibit – 18, CR.A/1087/2007 13/16 JUDGMENT more particularly, the remarks in Column No. 17, clearly indicate that the said injury marks could have been sustained on account of the struggle put on by the deceased while trying to protect her virginity. Thus, the F.S.L. Report read along with the Post-mortem Report at Exhibit – 18 clearly point towards the guilt of the appellant. 12.0 So as to prove the aspect of “last seen together”, the prosecution has relied upon the oral evidence of PW – 13 Jhujharji Kanaji Thakor at Exhibit – 36. In his deposition, he has stated that on the date of the incident, at around 1330 hrs., while he was going towards his agricultural field situated at Itvada, he noticed that the deceased was grazing cattle and that during that time, the appellant and the deceased were talking. This witness has further deposed that while he had returned in the evening, he came to know that the deceased has expired. 12.1 Here, it is required to be noted that this witness has categorically deposed about the clothes wore by both the appellant and the deceased on the date of the alleged CR.A/1087/2007 14/16 JUDGMENT incident in question and has also identified the same before the Court below. The said fact also gets support from the discovery 'panchnama' of the clothes wore by the appellant at the relevant point of time at Exhibit – 18 and the 'muddamal' clothes seized from the body of the deceased vide Exhibit – 11. This witness has been cross-examined at length before the Court below. However, nothing incriminating has come out which may lead us to believe his evidence to be untrue or unreliable. 13.0 The prosecution has also examined PW – 14 Kadarkhan Fatehkhan at Exhibit – 37. This witness has also deposed the same facts, as has been narrated by PW – 13 at Exhibit – 36, so far as the aspect of noticing the appellant and the deceased together on the date of the alleged incident in question is concerned. This witness has also been cross- examined at length before the Court below. However, nothing incriminating has come out which may lead us to believe his evidence to be untrue or unreliable. 14.0 Thus, from the evidence led by the aforesaid two CR.A/1087/2007 15/16 JUDGMENT witnesses, viz. PW – 13 Jhujharji Kanaji Thakor at Exhibit – 36 and PW – 14 Kadarkhan Fatehkhan at Exhibit – 37, it is established beyond doubt that the deceased was last seen together with the appellant at around 1330 hrs. on the date of the alleged incident in question. It is pertinent to note that the Medical Officer [PW – 9 at Exhibit – 22] has specifically deposed that the dead body of the deceased had started to decompose, meaning thereby, that by the time the dead body was taken up for conducting post-mortem, several hours had already passed after the death had taken place. The said fact supports the say of these two witnesses that the appellant and deceased were last seen together at around 1330 hrs. in the outskirts of the Village. The F.S.L. Reports at Exhibits – 64 & 65 and the medical evidence on record in the form of deposition of the Medical Officer as PW – 9 at Exhibit – 22 and the Post-mortem Report at Exhibit – 23 clearly prove the guilt of the appellant beyond doubt. 14.0 In view of the above discussion, we are of the considered opinion that the prosecution has succeeded in proving beyond doubt the guilt against the appellant and the CR.A/1087/2007 16/16 JUDGMENT entire chain of circumstances pointing towards his guilt. We are in complete agreement with the reasonings given by and the resultant order of conviction recorded by the Court below and hence, find no reasons to interfere in this Appeal. 15.0 In the result, the Appeal is summarily dismissed. Office is directed to send the records & proceedings to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*