[2010] 14 (ADDL.) S.C.R. 1

RAMESHBHAI MOHANBHAI KOLi & ORS.

A v.

STATE OF GUJARAT (Criminal Appeal No. 1146 of 2008 et::.)

OCTOBER 20, 2010

[P. SATHASIVAM AND ANIL R. DAVE, JJ.]

Penal Code, 1860 - ss. 302134 - Murder - Conviction based on circumstantial evidence - Prosecution of 8 accused

- Allegation that 3 of the accused conspiring to eliminate the C deceased and engaging the 4 appellant-accused through another accused - Recovery of blood-stained articles and recovery of blood-stained weapons of offence at the instance of the accused - Serological report stating that blood-stains on the articles belonged to the blood-group of the deceased o

- Panchnama supported by evidence of 10 - Eye-witnesses and Panch witnesses turning hostile - Conviction of the 7 accused except the accused who was responsible for engaging the 4 appellant-accused - High Court convicting the appellant-accused and acquitting the 3 accused who E conspired - On appeal, held: Conviction justified - The case .against the appellants-accused established on the basis of the chain of circumstances - The witnesses' turning hostile does not create a dent in the case of the prosecution - Circumstantial evidence.

Evidence:

Circumstantial evidenct; J - Held: A false plea taken.by an accused in a case of circumstantial evidence, is an additional

link in the chain of circumstances.

Witness:

Hostile witness - Evidentiary value of - Held: The

1 H

A evidence of prosecution witness cannot be rejected in toto merely because the witness turned hostile.

Police witness - Evidentiary value of - Held: Prima facie public servants must be presumed to act honestly and

8 conscientiously - Their evidence cannot be discarded merely on the ground that being public servants they are interested' in the success of their case.

The appellants (accused Nos. 1 to 4) alongwith coaccused (accused Nos. 5 to 8) were prosecuted for C causing death of one 'PR', who was the chairman of a Bank. The prosecution case was that accused Nos. 5 to 7 had conspired to eliminate the said 'PR' and in furtherance of that conspiracy engaged the services of appellants-accused Nos. 1 to 4. According to the D prosecution, when 'PR' came out of the Bank with PW-

106 (an eye-witness), appellant-accused No. 1 approached him with an application form and asked him about theloan facility and the manner in which the form was to be filled. Immediately thereafter at his exhortation, E other appellants (accused Nos. 2 to 4) attacked 'PR' with knives and appellant-accused No. 1 also joined them.

After the attack, two of the accused ran away on a motorcycle. In addition to PW. 106, the incident was also witnessed by 8 other eye-witnesses. The application form F was recovered from the scene of occurrence. The weapons of offence and clothes of the accused were recovered at their instance. In the serological report, blood stains of group '0' were found on the application form, the weapons of offence, the clothes of the accused G and the seat of the motorcycle on which the accused had run away. The blood group of the deceased also belonged to group '0'. The trial court convicted accused Nos. 1 to 4 of the offences punishable u/ss. 302/34 IPC and u/s. 135 of Bombay Police Act. Accused Nos. 5 to 7 were convicted of the offences punishable u/s. 302 r/w H

RAMESHBHAI MOHANBHAI KOLi & ORS. v. STATE 3

OF GUJARAT

s. 120-B IPC. Accused No. 8 was acquitted of the offence A punishable u/s. 312 IPC. The High Court confirmed the conviction of appellants-accused Nos. 1 to 4. Accused Nos. 5 to 7 were acquitted.

In the instant appeals, the questions for B consideration were: whether the conviction on the basis of circumstantial evidence was correct; and whether the conviction was justified since all the eye-witnesses did not support the case of the prosecution as against accused Nos. 1, 2 and 3.

Dismissing the appeals, the Court c

HELD: 1. The materials produced by the prosecution are relevant, acceptable and rightly connected the circumstances with the appellants. The prosecution has 0 established its case insofar as the appellants are concerned. They have been rightly convicted and sentenced by the trial court and their conviction and sentence has been rightly affirmed by the High Court. [Paras 26 and 28] [20-G-H; 21-D] E

~ 2.1 In the instant case, all the eye-witnesses examined on the prosecution side have en bloc turned hostile due to influence and pressure of the accused persons

including a sitting MLA of the ruling party. This aspect has been analyzed by the trial court while convicting and F awarding sentence on the accused/appellants. Witnesses may lie but circumstances do not. In view of the entire materials, particularly, the chain of circumstances, the prosecution has been successful in bringing home the guilt of the appellants herein for the commission of G murder of the deceased; and the eye-witnesses turning hostile, does not, in any manner, crate a dent in the case of the prosecution. All the materials and the evidence of panchas, and circumstances, unmistakenly lead to the conclusion that A1 to A4 are the culprits and the H

A complicity for commission of murdr of the deceased is proved. These aspects have been fully discussed by the trial court and rightly affirmed by the High Court. [Paras 7 and 16] [13-E-G; 18-C-D]

8 2.2 The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be C dependable on a careful scrutiny thereof. [Para 8] [14-B]

Bhagwan Singh v. The State of Haryana AIR 1976 SC 202; RabindraKumar Dey v. State of Orissa AIR 1977 SC 170; Syad Akbar v. State of Karnataka AIR 1979 SC 1848; D Khujji @ Surendra Tiwari v. State of Madhya Pradesh AIR

1991 SC 1853; State of UP. v. Ramesh Prasad Misra and Anr. AIR 1996 SC 2766; Batu Sonba Shinde v. State of Maharashtra (2002) 7 SCC 543; Gagan Kanojia and Anr. v.

State of Punjab (2006) 13 SCC 516; Radha Mohan Singh E @ Lal Saheb and Ors. v. State of UP. AIR 2006 SC 951;

Sarvesh Naraian Shukla v. Daroga Singh and Ors. AIR 2008 SC 320; Subbu Singh v. State (2009) 6 SCC 462; C.

Muniappan and Ors. vs. State of Tamil Nadu JT 2010 (9) SC 95 - relied on.

F 3.1 The material evidence of discovery of knives through proper panchnamas is sufficient to connect the accused with the crime. As rightly believed by the trial court as well as the High Court as to the oral testimony of those panch witnesses as well as the panchnamas, G there is no manner of doubt in the statements made by the accused, their willingness and the preparation of preliminary panchnamas and finally recovery of concealed knives from the places shown by the accused. [Para 13] [17-B-C] H

RAMESHBHAI MOHANBHAI KOU & ORS. v. STATE 5

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3.2 It is true that both the panchas (PWs 35 and 68) A ;1ave turned hostile and did not support the case of the prosecution, however, the panchnama (Ext. 384) was exhibited in the cross-examination of PW-35. On verification of the panchnama which is an application forr_n of A1, it was found that he applied for a loan of B Rs.60,000/- for the purpose of purchasing rickshaw and on the said form also, blood stains were found. In view of the same, the said form was recovered while preparing panchnama of the scene of offence. This document is one of the circumstances against A1 and this evidence C can be relied upon to show that A1 was present at the place of offence at the relevant time. [Para 14] [17-D-G]

3.3 Though panchas of several other panchnamas in respect of recovery of handkerchief, seat of motor cycle and other articles with blood stains have turned hostile D and not supported the prosecution case, those panchnamas were exhibited during the examination of Investigating Officer and for a limited purpose and, therefore, they can be relied upon. [Para 15] [17-H; 18-A]

3.4 The perusal of the FSL report clearly shows that the muddamal articles were found to be stained with blood of 'O' group which is the same as blood group of the deceased. This is also one of the important circumstances which connect the accused with the crime. [Para 16] [18-B-D]

Mehbub Samsuddin Malek and Ors. vs. State of Gujarat

(1996) 10 sec 480 - referred to.

3.5 The recovery of respective weapons of offence G at the instance of the appellants speaks volume. The evidence convincingly establishes that the respective places from where the recoveries were effected were exciusively within the knowledge of the appellants and

A the same could not have been effected by the investigating agency in the absence of the disclosure statements made by the appellants. [Para 18] [18-G-H]

3.6 Further, the serological report opines that the

8 knives recovered at the instance of A1, A2, and A4 contained blood of group '0' which is that of the deceased. This circumstance is highly incriminating and conclusively establishes the case against the appellants.

The recovery of the blood-stained seat of the motorcycle used by the accused to flee from the scene of offence C which, as per the FSL report, contained blood of group 'O' is another vital circumstance against the appellants herein. All the recovery panchnamas in the instant case were fully supported by the panch witnesses i.e. PW-14,

D PW-15, PW-18 and PW-26. [Paras 19 and 20] [19-A-C]

State of Rajasthan vs. Teja Ram and Ors. (1999) 3 SCC 507; Molai and Anr. vs. State of M.P. (1999) 9 SCC 581 - relied on.

3.7 The plea taken by the appellants denying the E factum of recoveries at their instance, is a false plea

inasmuch as the recoveries have been duly proved by the prosecution by leading cogent and reliable evidence which has not been shaken by the defence. A false plea taken by an accused in a case of circumstantial evidence F is an additional link in the chain of circumstances. [Para

21] [19-D-E]

Sharad Birdhichand Sarda vs. State of Maharashtra

(1984) 4 SCC 116; Mehbub Samsuddin Malek and Ors. vs.

G State of Gujarat (1996) 10 sec 480 - relied on.

4. So far as reliance on the evidence of Investigating Officer is concerned. prima facie, public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth

RAMESHBHAI MOHANBHAI KOU &ORS. v. STATE 7

OF GUJARAT

and cannot be discarded merely on the ground that being A public servants they are interested in the success of their case. Merely because the panch-witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the Investigating Officer alone.

In the instant case, it is not the case of defence that the B testimony of Investigating Officer suffers from any infirmity or doubt. [Paras 23 and 25] [20-A-B-F]

State of UP. vs. Krishna Gopal and Anr. (1988) 4 SCC 302; State of Kera/a vs. M. M. Mathew and Anr. (1978) 4 SCC 65; Modan Singh vs. State of Rajasthan (1978) 4 SCC 435; C Mohd. Aslam vs. State of Maharashtra (2001) 9 SCC 362; Anter Singh vs. State of Rajasthan (2004) 10 SCC 1657 - relied on.

5. The acquittal of accused Nos. 5 to 7 does not in D any manner wash away the case against the appellants which has been convincingly established on the basis of circumstances. The recovery of blood-stained loan form applica'tlon bearing name and address of appellant (A1) from the scene of offence and the serological report E which opines the blood to be of group '0' which is the blood group of the deceased, conclusively establishes the presence of A-1 at the scene of offence. Even though the panch-witness PW-35 has turned hostile to the prosecution but the spot panchnama has been cogently and convincingly proved through the testimony of the Investigating Officer PW-160. [Para 27] [21-A-C]

Case Law Reference:

AIR 1976 SC 202

AIR 1977 SC 170

AIR 1979 SC 1848

Relied on

Relied on

Relied on

Para 8

Para 8

Para 8

AIR 1991 SC 1853 Relied on Para 8

AIR 1996 SC 2766 Relied on Para 9

c2002) 1 sec 543 Relied on Para 9

B c2006) 13 sec 516 Relied on Para 9

AIR 2006 SC 951 Relied on Para 9

AIR 2008 SC 320 Relied on Para 9

c2009) 6 sec 462 Relied on Para 9 c

JT 2010 (9) SC 95 Para 10 Relied on

(1996) 10 sec 480 Relied on Paras 17 and 21

(1984) 4 sec 116 Relied on Para 21

(1999) 3 sec 507 Relied on Para 22

(1999) 9 sec 581 Relied on Para 22

(1988) 4 sec 302 Relied on Para 23

(1978) 4 sec 65 Relied on Para 23

(1978) 4 sec 435 Relied on Para 24

c2001) 9 sec 362 Relied on Para 24

(2004) 10 sec 657 Relied on Para 24

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1146 of 2008.

G From the Judgment & Order dated 25.10.2008 of the High Court of Gujarat at Ahmadabad in Criminal Appeal No. 1422 of 2005.

WITH

H Criminal Appeal No. 1166 of 2009.

RAMESHBHAI MOHANBHAI KOU & ORS. v. STATE 9

OF GUJARAT

Vimal Chandra S. Dave for the Appellants.

Nitin Sangra, Jesal, Hemantika Wahi for the Respondent.

The Judgment of the Court was delivered by

P. SATHASIVAM, J. 1. These appeals are directed B against the impugned judgment and final order dated 25.10.2007 passed by the High Court of Gujarat at Ahmadabad in Criminal Appeal No. 1422 of 2005 whereby the High Court dismissed the appeal filed by the appellants confirming the order dated 23.08.2004 passed by the trial Court convicting c them under Section 302 of the India Penal Code (hereinafter referred to as 'IPC') read with Section 34 IPC and also under Section 135 of the Bombay Police Act awarding each of them to undergo rigorous imprisonment (RI) for life and fine of Rs.5,000/-, in default, to further undergo RI for one year for the D offences under Section 302 read with Section 34 and also awarded RI for one year and fine of Rs.1,000/-, in default, RI for one month for the offence under Section 135 of the Bombay

Police Act.

2. "The case of the prosecution" as unfolded during the E course of investigation was:

(a) On 16.09.1999, at about 1715 hrs., Prakashbhai Raveshia, (Chairman of Morbi Nagrik Bank, Morbi), the deceased, accompanied with Ashokbhai F Laljibhai Kathrani PW 106, Director in the aforesaid Bank came out of .the Bank. It is the case of the prosecution that immediately after coming out of the Bank, Rameshbhai Mohanbhai Koli - appellaht herein approached the deceased and asked him G about the loan facility and the manner in which the loan application form was to be filled. During the course of investigation, it was further revealed that immediately thereafter, Ramesbhai Mohanbhai Koli (A 1 ), appellant No. 1 herein, exhorted the other H ' •.

appellants (A2-A4) to attack the deceased. On such exhortation, A2-A4 attacked the deceased with knives and later on A1 joined them. During the investigation, it was further stated by the witnesses that, after the attack, two of the accused ran away on a motorcycle from the place of occurrence. It is important to mention here that in addition to PW- 106, the aforesaid incident was witnessed by as many as 8 witnesses, some of whom were natural witnesses being tea or pan vendor present at the place of occurrence. It was further revealed that original Accused Nos. 5-7 had conspired to eliminate Prakashbhai Raveshia and in furtherance of that conspiracy engaged the services of the appellants herein. During the panchnama (Exh.384) of the place of occurrence amongst other articles, a blood stained loan application form bearing the name and address of the appellant Rameshbhai Mohanbhai Koli (A1) was seized by the police. As regards the injuries on the person of the deceased, the post-mortem report (Exh. 206) revealed that the deceased suffered 18 injuries out of which 17 were incised wounds. It may be mentioned here that large number of injuries/incised wounds were found on the neck and the chest of the deceased.

F (b) During the course of further investigation, after arrest of the appellants herein, all of them made separate disclosure statements showing their willingness to disclose the respective places where they had hidden the knives used in the commission G of offence. Pursuant to such disclosures made by the appellants, they led the police to the places where they have concealed the knives used in the commission of offence. The knives recovered at the instance of the appellants Rameshbhai Mohanbhai H Koli (A1), Narottam Prejji Koli (A2) and Pravin @

Dalo Lashubhai Koli (A4) were stained with blood.

A Blood stained clothes worn by Pravin @ Dalo Lashubhai Koli (A4) at the time of incident were also got recovered. The police also recovered the blood stained seat of the motorcycle used by two of the accused to run away from the place of B occurrence.

(c) The aforesaid articles, namely, the loan application form, the knives, blood stained clothes of the appellant Pravin @ Dalo Lashubhai Koli (A4) and c the blood stained seat of the motorcycle were sent for forensic examination. The FSL and serological report (Exh 250) opined that the blood stains on the aforesaid articles were of group 'O'. The blood group of the deceased also belongs to group 'O'.

D (d) On completion of the investigation, a charge sheet was filed in the Court of J.M.F.C. Morbi who committed the case to the Court of Additional Sessions Judge at Morbi where it was numbered as Sessions Case No. 34 of 2000.

(e) The Additional Sessions Judge II, Fast Track Court, Gondol at District Rajkot recorded the evidence, heard the parties, appreciated the evidence and vide judgment dated 23.08.2004 convicted accused F Nos. 1, 2 and 3 and original accused No.4 for the offences punishable, as afore-mentioned, and original accused Nos. 5, 6 and 7 were convicted for the offences under Section 302 read with Section 120-8 IPC and sentenced them to suffer R.1 for life and imposed a fine of Rs.5,000/-, in G

default, R.I. for one year, and also further directed accused Nos. 5 and 6 each to pay Rs.1,50,000/- as compensation to the widow of the deceased Prakashbhai Raveshia. However, the trial Judge acquitted accused No.8 for the offences punishable H

A under Section 312 IPC for harbouring the accused.

(f) The appellants herein with original accused No.4 preferred Criminal Appeal No. 1422 of 2005 in the High Court of Gujarat at Ahmadabad challenging the judgment and order of conviction passed by the Additional Sessions Judge, Second Fast Track Court, Gondal.

(g) The High Court, by the impugned judgment and final order dated 25.10.2007, confirmed the conviction of the appellants herein and dismissed their appeal.

However, Criminal Appeal Nos. 1544, 1925 and 2234 of 2004 which were also heard together along with the present appellant's appeal and by the same impugned judgment, confirmed the conviction of the appellant and accused No.4 and allowed the appeal filed by the original accused Nos. 5, 6 and 7 and acquitted them of the alleged offences and set aside the sentence awarded to them holding that there was no conspiracy.

3. Heard Mr. Vimal Chandra S. Dave, learned counsel for the appellants and Mr. Nitin Sangra, learned counsel for the respondent-State.

Points for determination:

4. (i) Whether the High Court was justified in confirming the conviction and sentence imposed by the trial Court when all the eye-witnesses did not support the case of the prosecution as against accused Nos. 1, 2 and 3 i.e., the G appellants herein;

(ii) Whether the Courts below are justified in convicting and awarding life sentence based on circumstantial evidence;

(iii) Since the whole prosecution case hinges upon H circumstantial evidence which in the present case does not

~--- --

complete the chain as there are missing links, in such A event conviction is sustainable.

5. We have carefully perused the relevant materials and considered the rival submissions.

Discussion B

6. It was highlighted by the learned counsel for the appellants that the appellants were not instrumental in committing the crime as they had no motive or mens rea to commit murder. of Prakashbhai Raveshia who had rivalry with c accused Nos. 6 and 7 and who had so many enemies in political field. It was also projected that since all the eyewitnesses examined on the side of the prosecution turned hostile, their statements cannot be relied upon in the absence of other cogent, convincing and reliable evidence. It was also 0 their case that the test identification parade also failed to bring home the complexity of the appellants and mere recovery of knife and other materials, panchnama of the scene of occurrence and FSL Report are not sufficient to convict the appellants.

7. In the instant case, all the eye-witnesses examined on the prosecution side have en bloc turned hostile due to influence and pressure of the accused persons which included a sitting MLA of the ruling party. This aspect has been analyzed by the trial Court while convicting and awarding sentence on the F accused/appellants. This Court has noted and observed in a large number of cases that witnesses may lie but circumstances do not. On going through the entire materials, particularly, the chain of circumstances, we are satisfied that the prosecution has been successful in bringing home the guilt of the appellants G herein for the commission of murder of Prakashbhai Raveshia and the eye-witnesses turning hostile, do not, in any manner, crate a dent in the case of the prosecution.

A Hostile witness

8. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine

8 him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (vide Bhagwan Singh

v. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar C Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v. State

of Karnataka, AIR 1979 SC 1848 and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853).

9. In State of UP. v. Ramesh Prasad Misra and Anr., AIR 1996 SC 2766, this Court held that evidence of a hostile witness D would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in E Batu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC

543; Gagan Kanojia and Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh@ Lal Saheb and Ors. v. State of UP., AIR 2006 SC 951; Sarvesh Naraian Shukla v. Daroga Singh and Ors., AIR 2008 SC 320 and Subbu Singh v. State, F c2009) 6 sec 462.

10. In C. Muniappan & Ors. vs. State of Tamil Nadu, JT 2010 (9) SC 95, this Court, after considering all the earlier decisions on this point, summarized the law applicable to the case of hostile witnesses as under:

"70.1. The evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.

70.2. In the instant case, some of the material witnesses A i.e. B. Kamal (PW.86); and R. Maruthu (PW.51) turned

hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law.

70.3. Some omissions, improvements in the evidence of 8 the PWs have been pointed out by the learned Counsel for the appellants, but we find them to be very trivial in nature.

71. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the C entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the D accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. (vide Sohrab and Anr: v. The State of M.P.,

AIR 1972 SC 2020; State of U.P. v. M.K. Anthony, AIR

1985 SC 48; Bharwada Bhogini Bhai Hirji Bhai v. State of Gujarat, AIR 1983 SC 753; State of Rajasthan v. Om Prakash, AIR 2007 SC 2257; Prithu@ Prithi Chand and Anr. v. State of Himachal Pradesh, (2009) 11 SCC 588;

State of U.P. v. Santosh Kumar and Ors., (2009) 9 SCC

626 and State v. Saravanan and Anr, AIR 2009 SC 151)" G

11. From the analysis of the statements, answers in the cross-examination, earlier statement under Section 164 of Cr.P.C. before the Magistrate and in the light of tre above principles, we agree with the conclusion arrived at by the trial Court and approved by the High Court.

12. The piece of evidence which the prosecution sought to rely upon against the appellants is the various panchnamas including discovery panchnama of the weapons i.e., knives used in the commission ofthe offence, recovery of motorcycle, NC register, recovery of seat of motorcycle. The prosecution B highlighted that A 1 to A4 have shown their willingness to show the muddamal knives which have been used for murdering Prakashbhai Raveshia and, therefore, panchas were called and preliminary panchnamas were drawn and thereafter, at the instance of A 1 to A4 knives were recovered which were stained C with blood group of 'O' which is similar to the blood group of the deceased Prakashbhai Raveshia. The prosecution has examined and relied upon Rameshbhai Arjan PW-14, (Exh.292), who is panch witness of the discovery panchhama of the recovery of knife (muddamal article No. 25) at the

0 instance of A3. The prosecution has also examined and relied

upon the evidence of Navinchandra Parshottam Shah PW-15, (Exh.302), who is panch witness of the panchnama of recovery of knife (muddamal Article No. 37) recovered at the instance of A2. The other witness examined and relied on by the prosecution is Bhavanbhai Jagabhai Malkiya, PW-18 E (Exh.311), who is the panch witness of the panchnama under which the muddamal knife (Article No. 33) was recovered at the instance of A4 which was used for commission of the offence. The prosecution has also examined and relied upon the evidence of Govindlal Shantilal Joshi, PW-26 (Exh.338), F who is the panch witness of the discovery panchnama of the

muddamal knife (Article No. 28) recovered at the instance of A 1 and Ex.340 is the panchnama of the mud. These panchnamas are Exhs.293, 303, 312, 339 and 340. The above panch witnesses have confirmed the contents of panchnamas G in their oral testimony before the Court. They have also asserted that A 1 to A4 had shown their willingness and on this basis, the preliminary panchnama was drawn and thereafter, the accused have taken the panchas and the police'personnel at the place )Nhere they have concealed the knives anq recovered H the knive~'from those places. It is true that in muddamal article

No. 25 which was recovered at the instance of A3 was not A having a blood stain. This aspect had been considered by the trial Court and rightly concluded that the said muddamal article cannot be ignored.

13. As rightly believed by the trial Court as well as the Higti 8 Court as to the oral testimony of those panch witnesses as well as the panchnamas, we also feel that there is no manner of doubt in the statements made by the accused, their willingness and the preparation of preliminary panchnamas and finally recovery of concealed knives from the places shown by the C accused. This material evidence of discovery of knives through proper panchnamas is sufficient to connect the accused with the crime.

14. Another important piece of evidence in the form of panchnama of the scene of offence is Exh,384. The prosecution D has relied upon the oral testimony of Vijaybhai Bhagvanjibhai Zariya, PW-35 Exh.383 and Babubhai Chakubhai Vania, PW- 68 Exh.519. It is true that both the panchas have turned hostile and not supported the case of the prosecution, however, panchnama has been exhibited in the cross-examination of PW- E

35. As requested by the State counsel, we verified the said panchnama which is available in the paper-book (vide page No.

2081) which is an applicatiori form bearing No. 001351 of A1 Rameshbhai Mohanbhai Vaghani with his residential address was found wherein he applied for a loan of Rs.60,000/- for the F purpose of purchasing rickshaw and on the said form also blood stains were found. In view of the same, the said form was recovered while preparing panchnama of scene of offence. This document is one of the circumstances against A 1 about his presence at the time of occurrence at the place of incident. This G evidence can be relied upon to show that A 1 was present at the place of offence at the relevant time.

15. In the same manner, though panchas of several other panchnamas in respect of recovery of handkerchief, seat of motor cycle and other articles with blood stains have turned H

A hostile and not supported the prosecution case, those panchnamas were exhibited during the examination of investigating officer and for a limited purpose, therefore, they can be relied upon.

16. Yet another piece of evidence is FSL report (Exh.250), forwarding letters of muddamal weapons, clothes, etc. which are at Exhs. 244, 245, 246, 247, 248, 249 and 250 respectively. The perusal of the FSL report clearly shows that the muddamal articles were found to be stained with blood of c 'O' group which is the same as blood group of the deceased Prakashbhai Raveshia. This is also one of the important circumstances which connect the accused with the crime. All these materials and the evidence of panchas, as discussed, and circumstances, unmistakenly lead to the conclusion that A 1 0 to A4 are the culprits and the complicity for commission of murder of the deceased is proved. These aspects have been fully discussed by the trial Court and rightly affirmed by the High Court. We also agree with these aspects in toto.

17. In Mehbub Samsuddin Malek and Others vs. State E of Gujarat, (1996) 1 O sec 480, this Court held that recovery of gupti at the instance of the accused from a dilapidated building concealed below a heap of earth which found stained with human blood group of 'B'. Clothes of the deceased also stained with the same blood group, to lead evidence regarding F discovery of blood cannot be disbelieved merely because the house is in a dilapidated condition and it cannot be said that the gupti was found from an open place accessible to all.

18. The recovery of respective weapons of offence at the G instance of the appellants in the instant case speaks volume.

The evidence in the present case convincingly establishes that the respective places from where the recoveries were effected were exclusively within the knowledge of the appellants and the same could not have been effected by the investigating agency H in the absence of the disclosure statements made by the appellants.

19. Another factor which strengthens the case of the A prosecution against the appellants is the serological report which opines that the knives recovered at the instance of A 1, A2, & A4 contained blood of group 'O' which is that of the deceased. This circumstance is highly incriminating and conclusively establishes the case against the appellants. All the B recovery panchnamas in the instant case were fully supported by the panch witnesses i.e. PW-14, PW-15, PW-18 and PW- 26.

20. The recovery of the blood-stained seat of the motorcycle used by the accused to flee from the scene of C offence which as per the FSL report contained blood of group 'O' is another vital circumstance against the appellants herein.

21. The appellants herein have denied the factum of recoveries at their instance is a false plea inasmuch as the D recoveries have been duly proved by the prosecution by leading cogent and reliable evidence which has not been shaken by the defence. A false plea taken by an accused in a case of circumstantial evidence is an additional link in the chain of circumstances. [Vide Sharad Birdhichand Sarda vs. State of E Maharashtra, (1984) 4 SCC 116 and Mehbub Samsuddin Malek & Ors. vs. State of Gujarat (1996) 10 SCC 480].

22. We have already observed that the prosecution has established that FSL report has clearly certified that the b1ood found on the knife was of human origin. This question fell for F consideration in State of Rajasthan vs. Teja Ram & Ors.,

(1999) 3 SCC 507 and this Court held that it would be an incriminating circumstance if the blood on the weapon was found to be of human origin. The same view has been reiterated in Mo/ai and Another vs. State of M.P., (1999) 9 G sec 581.

Evidence of Investigating Officer

23. An argument was advanced about reliance based on H

A the evidence of investigating officer. This Court in State of UP.

vs. Krishna Gopa/ and Another, (1988) 4 SCC 302 has held that courts of law have to judge the evidence before them by applying the well recognized test of basic human probabilities.

Prima. facie, public servants must be presumed to act honestly B and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case. [vide State of Kera/a vs. M. M. Mathew & Anr.,

(1978) 4 sec 65)1 c

24. In Modan Singh vs. State of Rajasthan, (1978) 4 SCC 435, it was observed that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the D prosecution version. Similar view was expressed in Mohd.

As/am vs. State of Maharashtra, (2001) 9 SCC 362. In Anter

Singh vs. State of Rajasthan, (2004) 10 SCC 657, it was further held that even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the E person who effected the recovery would not stand vitiated.

25. This Court has held in large number of cases that merely because the panch-witnesses have turned hostile is no ground to reject the evidence if the same is based on the F testimony of the Investigating Officer alone. In the instant case, it is not the case of defence that the testimony of Investigating Officer suffer from any infirmity or doubt. [Vide Modan Singh's case (supra) Krishna Gopal's case (supra) and Anter Singh's case (supra)].

26. In view of the above principles and in the light of the discussion about the recovery as stated and concluded earlier, those materials produced by the prosecution are relevant, acceptable and rightly connected these circumstances with the appellants.

27. Finally, appellants relied on the acquittal of co-accused A Nos. 5 to 7. The acquittal of accused Nos. 5 to 7 does not in any manner wash away the case against the appellants which has been convincingly established on the basis of circumstances. It is relevant to note that the recovery of blood stained loan form application bearing name and address of B appellant Rameshbhai Mohanbhai Koli (A 1) from the scene of offence and the serological report which opines the blood to be of group 'O' which is the blood group of the deceased conclusively establishes the presence of A-1 at the scene of offence. Even though the panch-witness PW-35, Vijaybhai has C turned hostile to the prosecution but the spot panchnama has been cogently and convincingly proved through the testimony of the Investigating Officer PW-160.

28. In the light of the above discussion, we are unable to accept the case of the appellants, on the other hand, we are D satisfied that the prosecution has established its case insofar as the appellants and rightly convicted and sentenced by the trial Court and affirmed by the High Court. The appeals are devoid of any merits, consequently, they are dismissed.

K.K.T.

Appeals dismissed.