IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL CONFIRMATION CASE No 1 of 1997 with CRIMINAL APPEAL No. 938 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE S.M.SONI and MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? -------------------------------------------------------------- STATE OF GUJARAT Versus KANTILAL GHELABHAI PATEL -------------------------------------------------------------- Appearance: 1. Criminal Confirmation Case No. 1 of 1997 Mr. S.R. Divetia, A.P.P P.P. for Petitioner M/S. THAKKAR ASSOC. for Respondent. 2. Criminal Appeal NO.938 of 1998 M/S.THAKKAR ASSOC. for Petitioner Mr. S.R. Divetia, A.P.P.for Respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE S.M.SONI and MR.JUSTICE J.R.VORA Date of decision: 15/09/98 ORAL JUDGEMENT The Registry having received the R & P of judgment and order dated 12th September, 1997 in Sessions Case no.150 of 1995 have registered this confirmation case under subsection 1 of Sec.366 of the Code of Criminal Procedure, 1973 ( " Code" for short) for confirmation of sentence of death having found the accused appellant in Criminal Appeal no.938 of 1997 guilty of offence punishable under S. 302 of the Indian Penal Code. By the said order, the learned Sessions Judge has ordered sentence of death and to be hanged by neck till his death. The accused being aggrieved has filed the above referred appeal against the said judgment and order of conviction. As both i.e. Confirmation Case no.1/97 and Criminal Appeal no.938/97 arise from the same judgment and order they are heard together and disposed of by this common judgment. The facts of the prosecution case are as under: The accused had married with one Manjulaben daughter of Hirabhai Pirjabhai PW 5. The accused belonged to village Chhatar and his wife Manjulaben belonged to village Vavdi which is at a distance of about 7 Kms. from Chhatar. Both of them had a child aged about three years at the relevant time and they were staying at Surat and the accused was doing the work of cutting diamonds. It is the case of the prosecution that in the evening of 12th September, 1995 the accused and his wife Manjulaben left Surat informing his cousin and neighbour that they are going to attend some Katha at the place of some acquaintance. They locked their house and handed over the keys to the neighbour. Their child named Divyesh had gone with his uncle Tulsibhai and was likely to return on that night. Till the next day morning, it appears that the accused and his wife Manjulaben did not return and therefore cousin Ketan inquired near about and informed the relatives at Chhatar also. On 14th September, 1995 Mr. Mahesh PW 3 an employee of Sunil Guest House near ST Bus Stand informed his master PW 2 Chisandas that on opening room no.18 he found the articles of that room in a scattered condition and on searching in the bathroom dead body of Manjulaben who had stayed in that room is lying. On receiving this information Chisandas went to room no.18, verified the fact, accordingly informed the police at 11.20 a.m. and registered the offence against Rameshbhai Virjibhai of Mota Ankadia, Tal: Kukavav, Dist: Amreli being CR I 414/95 . Investigation was commenced by Ravaliya PW 17 which was then handed over to Bhagwanbhai Tababhai Vaja, Police Inspector, Junagadh. On completion of the investigation, he submitted chargesheet before Judicial Magistrate,First Class, Junagadh, who in his turn committed the case to the court of Sessions at Junagadh where it is numbered as Sessions case no.150/95. The said chargesheet is submitted against the present accused Kantilal as in the course of investigation it was found that this Kantilal is an imposter and has stayed in the guest house with the false name of Rameshbhai. The learned Sessions Judge framed charge against the accused under S.302 of the Indian Penal Code to which the accused pleaded not guilty and claimed to be tried. The prosecution led necessary evidence to prove the charge against the accused. The defence has not examined any witness and the learned Sessions Judge after hearing the parties held accused guilty of an offence punishable u/S.302 of the Indian Penal Code and awarded capital punishment and sent the matter to this court for confirmation u/S.366(1) of the Code. Before we proceed in the matter, we may make it clear that in the course of hearing, learned P.P. has filed Criminal Miscellaneous Application no.1400/98 under subsection 1 of Section 367 for permitting the prosecution to lead additional evidence. This Court by its order of 24th April, 1998 did permit the prosecution to lead additional evidence and accordingly the R & P was sent back to the Sessions Court, Junagadh which in its turn recorded the evidence and sent the matter back to this Court. After receipt of the said additional evidence we have heard the learned Advocates for the accused as well as prosecution afresh. Learned Advocate for the appellant accused has very seriously and strenuously contended before us that though the learned Sessions Judge has held that there is no direct evidence to hold the accused guilty and rightly so but has held the accused guilty only on circumstantial evidence having erred to that a complete chain is formed by the circumstances which are consistent only with the hypothesis of guilt of the accused. Learned Advocate Mr. Thakkar contended that mainly there are two circumstances relied on by the prosecution, namely, (1) last seen together by the owner of guest house i.e. PW 2 and his employee PW 3 and (2) extra judicial confession made by the accused before his father-in-law Hirabhai PW 5 and Arjan Shamji, Sarpanch of the village who accompanied Hirabahi. Mr. Thakkar further contended that the circumstances relied on by the learned Judge as narrated in paragraph 41 of the judgment are mainly based on these two circumstances. Mr. Thakkar therefore contended that when it is alleged by PWs 2 and 3 that accused was seen last in Company of deceased Manjulaben their evidence as to identity of accused cannot be relied upon in the facts and circumstances of the case brought on record. If the evidence of PWs 2 and 3 is not accepted then that circumstance of seen last together loses its significance and is of no avail to the prosecution. So far as extra judicial confession is concerned that also is not acceptable in the facts and circumstances of the case. The learned Judge has therefore erred in relying on these two circumstances. Mr. Thakkar further contended that there is no motive established and or suggested by the prosecution. Mr. Thakkar contended that no doubt absence of motive need not damage the case of the prosecution , however in the facts and circumstances of the case it has and would play importance in the present case. Mr. Thakkar therefore contended that the learned Judge has erred in convicting the accused and there is no question of imposing capital sentence. Mr. Thakkar therefore contended that this appeal be allowed and confirmation case be dismissed. Mr. Divetia, learned A.P.P. equally seriously relied on the very circumstances which are tried to be struck down by the learned Advocate for the defence. Mr. Divetia contended that there is a cogent and convincing evidence about the identity of the accused by PWs 2 and 3 and they are corroborated by the evidence of identification parade. Mr. Divetia contended that once the identity of the accused is established, then the circumstances of last seen together by itself is sufficient to hold the accused guilty of the offence charged and learned Sessions Judge has rightly done so. Mr. Divetia contended that another circumstance about extra judicial confession is also cogent and convincing and has been rightly relied on by the learned Sessions Judge. Mr. Divetia contended that extra judicial confession before Arjan PW 6 who is an independent person and has no bias in his mind against the accused to wrongly involve him in such a heinous crime. Mr. Divetia therefore contended that conviction is required to be confirmed. Mr. Divetia relying on the judgment in the case of Machhi Singh and Bachan Singh contended that the case would fall within the rarest of rare cases and the conviction of death sentence should be confirmed. In view of the evidence of Dr. Bhagwatiprasad PW 1 and more particularly when it is not disputed before us deceased has died a homicidal death. Cause of death which was kept pending at the time when the Doctor submitted the postmortem report is subsequently certified after receipt of the report of viscera that the cause is due to asphyxia due to strangulation. It is not even suggested by the defence that this is a case of suicide. Therefore, we do not refer detailed evidence to hold that deceased died a homicidal death. If the deceased died a homicidal death, the question is who caused the death. The facts, as stated earlier, the deceased in company of one Rameshbhai checked in a Guest House named Sunil Guest House in Junagadh in the evening at 6.05 of 13th September, 1995. Next day morning when PW 3 Mahesh employee of PW 2 Chasandas went to clean room no.18 wherein the said Rameshbhai and Manjulaben had stayed found dead body of Manjulaben and he accordingly informed his employer PW .2 Undisputedly, Manjulaben has died a homicidal death and no one has seen the commission of the act by which she has died. Thus, undisputedly, there is no eye witness in the present case. The question is when Manjulaben has died a homicidal death, who caused it? It is the case of the prosecution that it is the accused who brought her from Surat to Junagadh, stayed in Sunil Guest House in the night of 13th & 14th September, 1995 and having killed Manjulaben either in the late night or early morning by about 8 O'clock, went away to Chhatar. He stayed in the guest house with a fictitious name of Ramesh Veljibhai resident of Mota Ankadia Taluka Kukavav, District Amreli from Surat and going to Mota Ankadia. The question, therefore, is whether the prosecution proves by the circumstances that it is accused and the accused alone who stayed in Sunil Guest House as an impostor with the name of Ramesh and after killing his wife left for Chhatar. Undisputedly the case of the prosecution rests solely on the circumstantial evidence to prove the guilt of the accused. Law as to circumstantial evidence on which the conviction can be based is very clear and that is that all the circumstances relied upon by the prosecution must forge such a chain as to support the sole hypothesis that the accused committed the murder( Vidya Sagar v. State of U.P. 1977 SC 1116). According to the said judgment as held in para 11 the circumstances must answer the well established test that circumstances must be consistent with the sole hypothesis that the accused is guilty of the crime for which he is charged. The Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra ( AIR 1984 SC 1622) in paragraph 152 has held that in cases of circumstantial evidence if the following conditions are fulfilled then a case against the accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned `must or should' and not ` may be' established. There is not only a grammatical but a legal distinction between ` may be proved' and ` must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793: (AIR 1973 SC 2622) where the following observations were made: "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ` may be' and ` must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In the case of S.D. Soni v. State of Gujarat (AIR 1991 SC 917) it is held in paragraph 8 that: "Needless to say that in a case in which the evidence is of a circumstantial nature the facts and circumstances from which the conclusion of guilt is said to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with the guilt of the appellant but also they must entirely be incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence." Similar is the view taken by the Supreme Court in the case of Tanviben Pankajkumar Divetia v. State of Gujarat (1997(2) G.L.R. 1346) where in paragraph 45 of that judgment the principle for basing a conviction on the basis of circumstantial evidences has been indicated which reads as under: " The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some times, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between `may be true' and ` must be true' and the same divides conjectures from sure conclusions (Jaharlal Das v. State of Orissa, 1991(3) SCC 27). Thus, it is clear from the above judgments of the Supreme Court that to rest conviction on circumstantial evidence each circumstance must be fully established and must forge a chain to support the sole hypothesis of the guilt of the accused. So far as the present case is concerned, the learned Judge has mainly relied on two circumstances as held by the learned Judge to have been duly proved and established. They are last seen together in Sunil Guest House at Junagadh by Chisandas Lahoremal owner of Sunil Guest House, PW 2 and his employee Mahesh Kumar Vallabhbhai, PW 3 and extra judicial confession made by the accused before his father-in-law Hira Puja, PW 5 and his companion Sarpanch Harjanbhai, PW 6. The prosecution has also relied on other circumstances,namely, motive and entry in Sunil Guest House as an impostor. We will first consider whether the accused and the deceased left Surat in the evening of 12th September, 1995. No doubt the prosecution is not able to prove as all have remained to be an hearsay evidence that the accused left Surat in company of his wife the deceased in the evening of 12th September, 1995. An attempt is made to prove the said fact by evidence of Raghavbhai PW 4 read with evidence of Ketan PW 11. Ketan PW 11 has turned hostile and has not supported the case of the prosecution that the accused left in the evening of 12th September, 1995 in company of his wife for Chhatar. On the contrary he has come out with the case that his uncle the accused had left Surat some 26 days before the date of incident for Chhatar and his father Tulsidas had gone to leave him at Chhatar. We make it clear that Tulsidas is not examined in this case. Therefore, evidence of Ketan PW 11 is of no avail for the prosecution. So far as Raghavji PW 4 is concerned, he has stated that on 13th September, 1995 his nephew Kanti came to inform him that Manjulaben and Kantilal have left home since yesterday without saying anything under the pretext of going to attend some Katha. On inquiry by him from Kantilal he was so informed by Ketan son of Tulsibhai. Ketan PW 11 does not admit these facts, and therefore, say of Raghavji is simpliciter an hearsay evidence not admissible in evidence. Therefore, the prosecution has failed to establish by any evidence much less cogent and convincing that accused left in company of his wife in the evening of 12th September, 1995 from Surat under the pretext of attending some religious story and have not returned back. Therefore, this part of evidence does not lead us even to infer a fact that deceased in company of his wife have left Surat in particular for Chhatar. Now as per the prosecution case, accused had come to Junagadh in company of his wife now deceased Manjulaben, stayed in Sunil Guest House as an imposter of Rameshchandra Velji and having killed his wife in the night of 13th and 14th September, 1995 the accused has left the Guest House at about 8 O'clock in the morning of 14th September, 1995. Thus, the accused and his wife according to the prosecution were seen last in Sunil Guest House at Junagadh in the evening of 13th September, 1995. The question is whether the persons alleged to have been seen by Chisandas PW 2 owner of Sunil Guest House and his employee Mahesh Kumar PW 3 were accused and his wife Manjulaben. We may make it clear at this stage that though investigated by Investigating Agency as to the identity of the woman found dead in Sunil Guest house being Manjulaben daughter of Hira Puja and wife of the present accused the prosecution has not led necessary evidence to prove the same. We, therefore, allowed the application of the learned A.P.P. to permit him to lead additional evidence by our order of 24th April, 1998 in Criminal Misc. Application no.1400/98. The dead body of a woman was found in Sunil Guest House in the morning of 14th September, 1995 at about 10.00 a.m. when PW 3 was cleaning that room. PW 2 then immediately complained to police. This also came to be a news item in the newspaper of 15th September, 1995. On reading the newspaper and having a tip from his informant that the person who has committed murder of his wife is coming to village Chhatar, Senior PSI Mr. P.M. Patel, PW 15 had gone to Chhatar with the personnels of his staff where he found this accused and was arrested under Section 41 of the Code of Criminal Procedure, 1973 vide Panchnama Exh.27 by 1400 to 1430 hrs.. Prior to this, according to PW 5 he was informed by Vajubhai elder brother of the accused in the morning of 15th September, 1995 that his son-in-law has killed his daughter. He, therefore, in company of PW 6 Sarpanch of his village went to village Chhatar and went to the house of the accused. According to PWs 5 and 6 accused stated before them that he has killed Manjulaben by strangulating her with the aid of rope in Sunil Guest House and her earring and wristwatch are given to his mother. He, therefore, went home i.e. at Vavdi, asked his son to telephone at Surat and sent Dhanjibhai and Naranbhai to collect the corpse of Manjulaben. Accordingly, by additional evidence Dhanjibhai and Naranbhai PWs 22 and 23 respectively were examined and they have deposed before the Court that they have gone to Junagadh and identified that the dead body was of Manjulaben. However, the dead body was handed over to her in-laws, namely, Dhirajlal. The police has obtained necessary receipt for the same. Unfortunately, the learned Judge did not allow the said receipt to be exhibited.However, we ordered to exhibit the same and read in evidence. According to these two witnesses Exhs.22 and 23 dead body of Manjulaben was taken by her elder brother-in-law Dhirajlal. However, there is no evidence of her cremation in village Chhatar. Simply because there is no evidence of cremation of Manjulaben at village Chhatar by itself does not lead to infer that deceased was not Manjulaben niece of PWs 22 and 23 and wife of the accused. It is not shown anywhere on record that if dead body was not of Manjulaben, then where the wife of the accused has gone? If the dead body found in Sunil Guest House was not of his wife, more particularly when identified by her uncle PW 22 and his cousin PW 23, it is a misfortune of our country that people go to an extent of even disputing the identity of the person who is dead, more particularly, when the dead person is the member of the family. If the woman found in Sunil Guest House was not wife of the accused, then, it was the duty of the accused and his relations to let know the Court as to where his wife is? Incident took place on the night between 13th/14th September, 1995. We have been hearing this confirmation case from 15th April, 1997 and as the additional evidence was recorded hearing was deferred, however, is concluded on 15th September, 1998. Till date in-laws of Manjulaben did not say about the absence of Manjulaben if she is not dead. This reflects on the falling human values and moral standards. Thus, it is clear that the dead body found from Sunil Guest House is proved to be that of Manjulaben wife of the accused. In view of the above discussion, the woman who entered Sunil Guest House in the evening of 13th September, 1995 as entered in the register of that Guest House was Manjulaben daughter of Hira Puja, PW 5 and wife of the accused. The question is person with whom she entered the Guest House was the accused or someone else. Manjulaben entered the Guest House with a person who has given his name as Ramesh Veljibhai of Mota Ankadia, Taluka Kukavav, District Amreli coming from Surat and going to Mota Ankadia. Whether the person named Ramesh in whose Company Manjulaben has stayed in the Guest House was really Ramesh, some third person other than her husband or was the accused himself with the fictitious name of Ramesh. In the morning of 14th September, 1995 when the fact of a dead body of a woman lying in room no.18 of that Guest House