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================================================================ vs State Of Gujarat..Opponent(S)/ on 31 July, 2014

Gujarat High Court ================================================================ vs State Of Gujarat..Opponent(S)/ on 31 July, 2014

R/CR.A/1502/2009 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL NO. 1502 of 2009

With

CRIMINAL APPEAL NO. 2206 of 2009

FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and

HONOURABLE MR.JUSTICE J.B.PARDIWALA

================================================================

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 ?

================================================================ GOPAL @ GOPI HARMANBHAI CHAUHAN..Appellant(s) Versus

STATE OF GUJARAT..Opponent(s)/Respondent(s)

================================================================ Appearance:

MR PB GOSWAMI, ADVOCATE for the Appellant(s) No. 1 MS. CHETNA SHAH, ADDITIONAL PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1 ================================================================

CORAM: HONOURABLE THE CHIEF JUSTICE MR.

BHASKAR BHATTACHARYA

and

HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date :31/07/2014

CAV JUDGMENT

(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)

Since in both the captioned appeals the challenge is to a

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selfsame order of conviction and sentence passed by the Trial Court those were heard analogously and are being disposed of by this common judgment and order.

2. These appeals are at the instance of two convicts of the offence punishable under Sections 302, 120(B) and 201 of the Indian Penal Code and is directed against an order of conviction and sentence dated 30th June, 2009 passed by the learned Sessions Judge, Anand in Sessions Case No.1 of 2009.

3. By the aforesaid order, the learned Sessions Judge found the appellants guilty of the offence punishable under Sections 302, 120(B) and 201 of the Indian Penal Code and consequently sentenced them to suffer life imprisonment and a fine of Rs.500/- each for the offence punishable under Sections 302 and 120(B) of the Indian Penal Code. In default of payment of fine, the appellants were directed to undergo further Rigorous Imprisonment for 3 months. However, so far as conviction of the offence under Section 201 of the Indian Penal Code is concerned, no separate sentence was imposed upon the appellants by the Sessions Judge.

4. Case of the Prosecution :

3.1) The deceased, namely Manibhai was the uncle of the accused no.2 Rushikumar Ranchhodbhai Patel. The deceased had no legal heirs and therefore, the accused no.2 had an evil eye on the immovable properties of the deceased. Since the accused no.2 intended to usurp the immovable properties of the deceased, he in collusion with the accused no.1 Gopal alias Gopi Harmanbhai Chauhan hatched a conspiracy to commit

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the murder of the deceased. Pursuant to the conspiracy hatched by the accused appellants the accused no.1 inflicted fatal injuries on the body of the deceased with a Gupti and wooden stick on the night intervening 17th and 18th of August, 2008 at the outskirts of the village Virol.

4.2) On 18th August, 2008 the P.W.4 Vimleshkumar alias Kanaiyo Kantibhai Patel lodged a first information report Exh.22 at the Petlad Police Station inter alia stating that on the date of filing of the complaint at around 10 o’clock in the morning one of the labourers, namely, Punambhai Mahijibhai Parmar working in his agricultural field of the first informant, informed the first informant that something was lying in the agricultural field. Accordingly the first informant went near the place and found that the deceased residing next to his field was lying dead in a pool of blood. It has been stated in the first information report that the deceased had sustained injuries on his head and other parts of the body. The body of the deceased was clothed with a petticoat, a saree and a bra. The first informant could immediately realize that the deceased had been murdered. It has been stated that the deceased used to reside all alone past couple of years in a house situated just besides the agricultural field of the first informant. It has been stated that the deceased had four brothers out of those, three were dead. The youngest was the deceased.

5. On the complaint being lodged by the P.W.4, the investigation had commenced. The inquest panchnama of the dead body Exh.33 was drawn in presence of the panch witnesses. The scene of offence panchnama Exh.34 was

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drawn in presence of the panch witnesses. The clothes worn by the deceased were collected by drawing a panchnama Exh.38. The dead body of the deceased was sent for postmortem and the postmortem report Exh.12 noted that the cause of death was shock and haemorrhage due to fatal injuries over head and other parts of the body. The accused no.1 was arrested and his arrest panchnama Exh.39 was drawn in presence of the panch witnesses. The panchnama of the place where the accused no.1 sustained injuries as pointed out by the accused no.1 was drawn in presence of the panch witnesses vide Exh.40. The discovery panchnama of the weapon of offence at the instance of the accused no.1 Exh.58 was drawn in presence of the panch witnesses. The statements of various witnesses were recorded. The serological test report Exhs. 73 to 79 was collected by the Investigating Officer.

6. On conclusion of the investigation, a charge-sheet was filed against the accused appellants in the Court of the J.M.F.C, Petlad.

7. As the case was exclusively triable by the Sessions Court, the J.M.F.C, Petlad committed the case to the Sessions Court under Section 209 of the Criminal Procedure Code. The Sessions Court framed charge against the accused-appellants Exh.6 and the statements of the accused-appellants were recorded. The accused appellants did not admit the charge and claimed to be tried.

8. The prosecution adduced the following oral evidence in support of its case.

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P.W.1 Dr.Rajesh Shambhulal Thakkar-M.O. Exh.10 P.W.2 Dr. Pande Svayanprakash Shri Pande Exh.13 Narmadeshwar – M.O.

P.W.3 Manibhai Bhailalbhai Makwana Exh.16

P.W.4 Vimleshkumar alias Kanaiyo Kantibhai Patel – Complainant. Exh.21

P.W.5 Punambhai Mahijibhai Parmar Exh.23 P.W.6 Minaben Budhabhai Exh.24 P.W.7 Jasodaben Rameshbhai Exh.25 P.W.8 Rameshbhai Chandubhai Exh.26 P.W.9 Munniben Girishbhai Exh.27 P.W.10 Birenkumar Kanubhai Patel Exh.28 P.W.11 Sangitaben Arvindbhai Exh.29 P.W.12 Maheshbhai Maganbhai Patel Exh.30 P.W.13 Vinubhai Chaturbhai Patel. Exh.31 P.W.14 Narendrakumar Ambalal Patel Exh.32 P.W.15 Ramanbhai Khodabhai Thakor Exh.43 P.W.16 Atulkumar Jashwantlal Shah Exh.50 P.W.17 Kiritbhai Chhotubhai Rathod Exh.53 P.W.18 Rameshbhai Sadhubhai Sindhi Exh.57 P.W.19 Kesarisinh Babubhai Zala -PSO Exh.60 P.W.20 Aakashbhai Manharbhai Patel-PSI (IO) Exh.62

The following pieces of documentary evidences were adduced by the prosecution.

1) Original complaint Exh.22 2) Inquest panchnama Exh.33 3) Panchnama of the place of offence. Exh.34

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4) Panchnama of the clothes on dead body. Exh.38

5) Panchnama of the physical condition of the accused no.1. Exh.39

6) Panchnama of the place where the

Accused no.1 sustained injuries. Exh.40

7) Panchnama of the clothes identified by the witness. Exh.44

8) Panchnama of the physical condition of the accused no.1. Exh.41

9) Panchnama of the muddamal shown by

the accused no.1. Exh.51

10) Panchnama of the weapon that the

Accused no.1 brought out. Exh.58

11) Seizure panchnama regarding the theft

Muddamal shown by both the accused.

Exh.52

12) Identification panchnama. Exh.42 13) Report of FSL Mobile Van Officer. Exh.63 & 64

14) Yadi to file an Offence.

Exh.65

15) Copy of Marnottar Form Exh.66 16) Original P.M.Note. Exh.12 17) Yadi to obtain P.M.Note. Exh.11 18) Yadi to M.O., Petlad. Exh.14 19) Injury Certificate of Accd.no.1. Exh.15 20) Report to edit sections 120(b), 201 IPC Exh.67

21) Yadi to Circle Inspector, Taluka Panchayat Exh.17 Petlad. & 18 22) Yadi to Circle Inspector, — do — Exh.20

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23) Map of the place of occurrence. Exh.19 24) Dispatch note of Muddamal. Exh.68 & 75.

25) Receipt of FSL Exh.69, 70,76.

26) Forwarding Letter of FSL. Exh.71, 77 &

80

27) F. S. L. Rport. Exh.72, 78 & 81

28) Serological Analysis Report.

Exh.73

& 79

29) Report of Physics Department. Exh.74

30) Copy of Station Diary. Exh.61

31) Slips taken out from the seized muddamal. Exhs.35 To 37,

45 to 49,

54,56,59

9. After completion of the oral as well as the documentary evidence of the prosecution, the statements of the accused persons under Section 313 of the Criminal Procedure Code. were recorded, in which the accused persons stated that the complaint was a false one and they were innocent.

10. At the conclusion of the trial, the learned Trial Judge convicted the accused persons of the offence punishable under Sections 302, 120(B) and 201 of the Indian Penal Code and sentenced them as stated herein before.

11. Being dissatisfied, the accused-appellants have come-up with their respective Appeals.

12. Submissions on behalf of the accused no.1:

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A) Mr. P.B.Goswami, the learned advocate appearing on behalf of the accused no.1, vehemently submitted that the trial court committed a serious error in finding his client guilty of the offence of murder and criminal conspiracy. Mr. Goswami submits that none of the circumstances relied upon by the Trial Court could be termed as incriminating circumstances pointing only towards the guilt of the accused. Mr.Goswami submits that the Trial Court committed a serious error in placing strong reliance on the circumstance of the injuries sustained by his client, by drawing an inference without any foundation for the same that those were sustained at the hands of the deceased while the deceased might have tried to save himself from the accused no.1. Mr.Goswami submitted that the accused no.1 in his further statement recorded under Section 313 of the Criminal Procedure Code has made it very clear that the police had adopted third degree methods as the police wanted the accused no.1 to confess regarding his complicity in the crime. According to Mr. Goswami the injuries which were found on the body of his client were inflicted by the police.

B) Mr. Goswami further submitted that there is no evidence worth the name so far as the charge of hatching a criminal conspiracy with the accused no.2 is concerned. Mr.Goswami submits that suspicion, however strong may be, cannot take the place of proof.

In such circumstances referred to above Mr.Goswami prays that there being merit in the appeal the same may be allowed and the order of conviction and sentence be set aside.

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13. Submissions on behalf of the accused No.2.

A) Mr. Ashish Dagli, the learned advocate appearing on behalf of the accused no.2 has vehemently submitted that the Trial Court committed a serious error in finding the accused no.2 guilty of the offence of murder and criminal conspiracy. Mr.Dagli submits that the motive which has been put forward by the prosecution in the present case is not only illogical but without any basis. Mr.Dagli submits that it is preposterous on the part of the prosecution to suggest that the accused no.2 could have inherited all the properties of the deceased on his death. Therefore, according to Mr.Dagli, the accused no.2 would not have gained anything by killing his uncle i.e. the deceased. Mr.Dagli submits that his client has been convicted of the offence of murder because of the charge of criminal conspiracy. According to Mr.Dagli, there is no evidence worth the name even for the purpose of drawing any inference regarding criminal conspiracy between the accused no.1 and accused no.2.

In such circumstances referred to above Mr.Dagli prays that there being merit in the appeal the same may be allowed and the order of conviction and sentence be set aside.

14. Submissions on behalf of the State :

A) Ms. Chetna Shah, the learned A.P.P. appearing for the State, has vehemently opposed both the appeals and submitted that the trial court committed no error in finding both the accused guilty of the offence of murder and criminal conspiracy. Miss. Shah submits that the circumstances relied

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upon by the Trial Court points only towards the guilt of the accused.

B) Ms. Shah has placed reliance on the following incriminating circumstances emerging from the evidence on record.

a) The injuries sustained by the accused no.1 as reflected from the Medical Certificate Exh.15 issued by the Medical Officer, S.S. Hospital, Petlad. Ms. Shah submits that in the medical certificate Exh.15, sixteen injuries have been noted which were found on the body of the accused no.1 while he was subjected to medical examination on 19 th August,2008.

b) The P.W.6 Meenaben i.e. the estranged wife of the accused no.1 identified the saree with which the body of the deceased was covered as that of her own including the second saree found on the body of the deceased as that of the P.W.7 Jashodaben i.e. the mistress of the accused no.1.

c) The P.W.7 Jashodaben has deposed about the injuries noticed on the forehead and eye-brows of the accused no.1.

d) The P.W.8 Rameshbhai Chandubhai, the husband of the P.W.7 Jashodaben has also deposed regarding the injuries noticed on the body of the accused no.1.

e) The P.W.9 Munniben in her evidence has deposed that

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she had gone along with the accused nos.1 and 2 to watch a movie and at that time the accused no.1 had worn a shirt with check and a black pants. According to Ms. Shah it tallies with the clothes discovered at the instance of the accused no.1.

f) The P.W.10 Birenkumar Patel has deposed that on the date of the incident he had met the accused no.2 and at that time the accused no.2 had told him that he wanted to go to Delhi and for that wanted to buy a ticket. According to Ms. Shah it is a circumstance indicating that the accused no.2 wanted to make good his escape after the murder of the deceased.

g) The P.W.11 Sangitaben i.e. the sister of the accused no.2 has deposed that there was a long standing dispute between the deceased and her brother, i.e. the accused no.2.

h) The P.W.12 Maheshbhai Patel has also deposed regarding the land dispute between the deceased and the accused no.2.

i) False explanation on the part of the accused no.1 regarding the injuries sustained by him at the time of the incident.

C) By placing reliance on the aforenoted circumstances, Ms. Shah prays that the prosecution has been able to establish beyond reasonable doubt the involvement of both the accused persons in the crime. Ms. Shah prays that in such

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circumstances there being no merit in both the Appeals, the same may be dismissed.

15. Oral Evidence on record :

A) The P.W.1 Dr. Rajesh Thakkar in his evidence Exh.10 has deposed that he was serving as a Medical Officer at Petlad past 11 years. On 18th August, 2008 while he was on duty, he received a dead body of one Manibhai Kashibhai Patel at around 4.50 hours in the evening with a Yadi issued by the P.S.I of the Petlad Rural Police Station for the purpose of postmortem examination. The P.W.1 has deposed that the postmortem revealed the following injuries on the body of the deceased as noted in column Nos.17, 18 and 19 of the P.M. Report, Exh.11.

Column No.17:

1. CLW size 3cm x ½ cm x fat deep over left eyebrow laterally.

2. CLW size 1cm x ¼ cm x fat deep near 1st wound.

3. CLW (Crush type) size about 10 cm x 5 cm x Bone deep with compound fracture above and over left ear.

4. CLW size 6cm x ½ cm x fat deep (Two) over middle of occipital region.

5. CLW size 5 cm x 1cm x fat deep over Right front- parietal region.

6. CLW size 5cm x ½ cm x fat deep over middle of fore head.

7. CLW size 2cm x 1cm (oval) x fat deep over left side neck(Two)

8. Abrasion size 5cm x ½ cm over left scapular region.

9. Abrasion size 5cm x ½ over left elbow post.

10. CLW size 2cm x ½ cm x fat deep over left side lateral to umbilicus.

11. CLW size 1cm x 1cm over Right leg below knee.

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Column no.18:

1. Fracture of left hand Radius-vind bone lower pant.

2. Compound fracture of left side parietal bone with CLW (Crush – type over that area near left ear. Injuries of column No.17 & 18 are antemortem type.

Column no.19:

Fracture of left side parietal bone with CLW (crush type) over that area near left ear.

Brain substance Pale.

The P.W.1 has further deposed that all the injuries were antemortem in nature and were sufficient in the ordinary course of nature to cause death. He has deposed that the approximate time of death could be any time between 12 and 24 hours from the time of commencement of the postmortem. He has further deposed that the crushed injuries which were found on the head of the deceased can be caused by a hard and blunt substance like a wooden stick whereas the incised wounds which were found can be caused by a sharp cutting weapon like a Gupti.

B) The P.W.2 Dr. Swayam Prakash Pande in his evidence Exh.13 has deposed that he was serving as a Medical Officer at the Civil Hospital, Nadiad. On 19 th August, 2008 he was on deputation at the S.S. Hospital, Petlad. On 19 th August, 2008 a person by name Gopal alias Gopi Chauhan was brought for medical examination by the P.S.I. of Petlad Rural Police

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Station with a written Yadi. He has deposed that on examination of Gopal alias Gopi he had found the following injuries on his body.

(1) One incised lacerated wound 2cm x ½ cm x bone deep on left side of forehead with irregular margins surrounded by contused area of bluish red colour with blood dot present in margins of injury.

(2) Abrasion 1cm diameter on left side of forehead just below injury no.1 whitish base with reddish brown spots.

(3) Irregular abrasion 1.5cm x ½ cm present 3cm lateral to outer can thus of eye reddish brown scab.

(4) Abrasion 4cm x 2.5 cm Over left shoulder 5cm away from lateral most part of left clauide reddish brown scup.

(5) Abrasion 4 cm x 2cm Over left shoulder 8cm away from lateral most scab.

(6) Abrasion 3cm x 2cm over extensor surface of left elbow 3cm laterally away from olecranon process e reddish brown scab.

(7) Abrasion 3cm x ¼ cm Over extensor surface of left forearm 13 cm away from olecranon process e reddish brown scab.

(8) Abrasion 1cm x ¼ cm over dorsal of left big toe 1.5 cm away from Nail base of left big toe e reddish brown scab.

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(9) Abrasion Pin head size 3 abrasions over medical surface of left leg 12 cm below left knee joint e reddish brown scab.

(10) Abrasion 5cm x 7cm exterior surface of left knee joint e reddish brown scab.

(11) Abrasion 1cm x ¼ cm exterior surface of left leg 20 cm. below left knee joint e reddish brown scab.

(12) Abrasion ¼ cm x ¼ cm Over left leg situated 4 cm above medical inalleous reddish brown scab.

(13) Abrasion1/4 cm x ¼ cm over dorsal of rt. Hand e reddish brown scab.

(14) Abrasion ½ cm linear over dorsal of middle finger of left hand e reddish brown scab.

(15) Bruise 4cm x 2cm Over lateral surface of left thigh e Bluish brownish colour.

(16) Bruise 7cm x 3.5 cm Over right shoulder e bluish brownish colour.

He has deposed that the injury nos.5 to 16 were simple in nature and could have been caused between 48 and 72 hours from the time of examination. He has also deposed that the injuries Nos.15 and 16 noted in the medical certificate Exh.15 can be caused by a wooden stick. He has deposed that if a

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person who is being assaulted retaliates for his self-protection, then the injuries which were found on the body of Gopal can be caused. In his cross-examination the P.W.2 has deposed that the injury No.1 can be caused if a person falls down. He has also deposed that he had inquired with the patient regarding the history. He has deposed that he has not stated anything regarding the history of assault in his medical certificate Exh.15.

C) The P.W.3 Manibhai Makwana, in his evidence Exh.16 has deposed that he was serving as In-charge Circle Inspector in the Office of the Taluka Panchayat, Petlad, past 1 ½ years. On 23rd August, 2008 while he was on his duty he had received a written Yadi from the P.S.I of Petlad Rural Police Station to prepare a map of the scene of occurrence in connection with the C.R.No.I-70/2008. He has deposed that accordingly he had prepared a map Exh.19.

D) The P.W.4 Vimleshkumar alias Kanaiyo Kantibhai Patel is the original first informant. In his evidence Exh.21 he has deposed that he resided at Virol (Simarda) next to the bus stand and owned a field of tobacco. He has deposed that 5 to 6 labourers worked in his tobacco field. On 18 th August, 2008 at 10 O’clock in the morning one of his labourers, namely, Punambhai Mahijibhai Parmar brought to his notice that something was lying in the field of chillies and therefore, the P.W.4 went at the place to verify. On reaching, the P.W.4 found that the deceased who was residing in a house adjoining his field was lying dead in a pool of blood having sustained injuries on his body. He has further deposed that the deceased was wearing a saree, petticoat and a bra. He has deposed that

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it appeared that the deceased had been murdered. The P.W.4 accordingly informed the Petlad Rural Police Station regarding the same and lodged a first information report Exh.22 in that regard. In his cross-examination the P.W.4 has deposed that he had no idea as to who had committed the murder of the deceased and what was the motive for the same.

E) The P.W.5 Punambhai Mahijibhai Parmar is the person who was working as a labourer in the field of the P.W.4 and he was the first person to have spotted something in the field of his employer. Accordingly it was found that the deceased was lying dead in a pool of blood with various injuries on his body. The P.W.5 has deposed that the deceased had worn clothes of a lady.

F) The P.W.6 Meenaben is the wife of the accused no.1. In her evidence Exh.24 she has deposed that she resided at Rasnol with her parents. Her marriage had solemnized with the accused no.1 before 8 years at the village Rasnol. After marriage, the P.W.6 was residing with her husband i.e. the accused no.1 at the village Virol. Her husband was doing agricultural work and was also running a Cycle Store. In the wedlock a son was born who was named Govind. She has further deposed that after marriage she was residing along with her in-laws and two brothers-in-law. One of her brothers- in-law, namely, Kanubhai was married with Jyotsnaben. She used to frequently fight with Jyotsnaben regarding house-hold work and therefore, she along with her husband Gopal started residing separately somewhere near the Virol bus stand. She has deposed that later on her husband developed illicit relations with one Jashodaben Rameshbhai. As she had

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opposed the relations of her husband with Jashodaben, she was threatened to be killed by her husband. Therefore, she left her husband and started residing with her parents at the village Rasnol. She has also deposed that a maintenance case has also been filed by her against Gopal in the Court at Anand and those proceedings are still pending. She has deposed that none had come to rasnol to take her back to her matrimonial home. She learnt that her husband had committed a murder of an elderly person and in connection with the same police had come to record her statement. When the police had come to record her statement she was shown one saree, a blouse and a petticoat to her. She has deposed that half of the saree was of her own and the other part of the saree stitched with her saree was that of Jashodaben. The green coloured saree was her own saree whereas she was unable to identify the blouse and the petticoat. In her cross-examination she has deposed that after marriage she resided at the village Virol for a period of 6 years and thereafter past 3 years she was residing at her parent’s house. She has deposed that the saree which she identified as her own would be available with other people too.

G) The P.W.7 Jashodaben in her evidence Exh.25 has deposed that she resided at the village Virol with her husband and children. She has deposed that one of her daughters had got married at the village Adas and two of her sons were unmarried. Her husband is a mason. She has deposed that she knows Gopal. She has also deposed that Meenaben is the wife of Gopal. During the period of incident Meenaben was residing along with her parents past 3 to 4 years and Gopal used to stay at her house. She has deposed that since the

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time Gopal’s wife had left him and Gopal met with an accident, he was residing at her house. She has deposed that she also knows Gopal’s friend Rushi (A.2) and one Biren Patel. She has deposed that at the time when the deceased was murdered, Gopal was at her house. On the next day people started talking that Manibhai had been murdered. She has deposed that they all went at the place where the dead body of the deceased was lying in a field. She has deposed that she was unable to see whether any clothes were there on the dead body or not. She has further deposed that Gopal was at her house only and before 2 or 3 days while trying to fix an electric bulb he had fallen down and had sustained injuries on his forehead and eye-brows. She has further deposed that the police had recorded her statement and had interrogated her for 2 to 3 times. On being inquired by the police regarding the injuries sustained by Gopi she had stated before the police that while fixing an electric bulb by climbing on a barrel he had fallen down. She has deposed that the police had shown her a saree, petticoat, blouse and a bra. Saree was in two colours and both were stitched. She has deposed that it was not true to suggest that on the date of the incident in the night hours Gopi was not on his bed and when she woke-up at 5 o’clock in the morning, Gopi came at her house and she had found injuries on his face and other parts of the body and when she inquired with Gopi, Gopi replied that it was none of her concern. She has deposed that it was not true to suggest that later on after inquiring with him very quietly, Gopi confessed before her that in the night intervening between 17 th and 18th August, he had committed the murder of the deceased and at that time in the scuffle he sustained those injuries. It appears that the P.W.7 has been declared as a hostile witness as she

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failed to support the case of the prosecution. However, in her cross-examination on behalf of the accused she has deposed that she had no idea as to who had committed the murder of the deceased. She has also deposed that on the night of the murder Gopi was along with her all through-out.

H) The P.W.8 Rameshbhai Chandubhai is the husband of the P.W.7 Jashodaben. This witness has also been declared as a hostile witness. However, in his cross-examination on behalf of the accused, he has deposed that he had no idea as to who had committed the murder of the deceased. He has further deposed that the night on which the deceased was murdered, Gopi was all throughout at his house.

I) The P.W.9 Munniben Girishbhai in her evidence Exh.27 has deposed that in the year 2008 she was residing at the Saibaba Chemical Works situated at Piplag Cross-roads along with her husband and children. Her husband was working at the Saibaba Chemicals Factory owned by Niranjanbhai Patel of Nadiad whereas she was working at the Om Cold Storage. She has deposed that on the date of her deposition she was residing at her parents’ house. She has deposed that she had not come to the village Virol, but on the day of Rakshabandhan she had come to the village Palaj. On that day her sister Saroj had also come to Palaj. They had stayed one night at the village Palaj. Nothing had happened on the second day after Rakshabandhan. She knows Gopal as he belongs to the same village. She has deposed that she had met Gopal on the next day after Rakshabandhan at Petlad and along with Gopal and Rushi had gone to watch a movie by riding on their motorcycle. She has deposed that the day on

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which she had met Gopal he had worn a shirt with check and a black pants, and Rushi (A.2) had worn a blue coloured full sleeve shirt. She has deposed that at that time she had not found any injuries on the body of Gopal.

J) The P.W.10 Birenkumar Kanubhai Patel in his evidence Exh.28 has deposed that he was residing at the village Virol along with his parents and was running a motorcycle repairing garage near the Virol bus stand. He has a brother by name Indravadan. He has deposed that he knows Rushikumar Ranchhodbhai A.2 as he was his friend. Before the incident occurred Rushi was working at Delhi. Rushi had left Delhi before around 1 ½ years and was thereafter staying at the village Virol. He has deposed that Rushi’s wife happens to be the sister-in-law of the P.W.10. He has further deposed that the date on which the deceased was murdered, he was at his in-law’s house situated at Ramdevnagar, Gotri, Vadodara. He learnt about the murder of the deceased in the morning. He had no idea as to who had committed the murder of the deceased. He has further deposed that on the date of the murder of the deceased, he had met Rushi in the morning at Vadodara and at that time he was informed by Rushi that he wanted to go to Delhi and for that he wanted to buy a ticket. He has deposed that at time he had told Rushi that if he wanted to go to Delhi, then he may leave. He has deposed that he returned to his village Virol on the third day from the date of the murder of the deceased. It appears that the P.W.10 has also been declared as a hostile witness as he failed to support the case of the prosecution.

K) The P.W.11 Sangitaben is the sister of the accused

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no.2. In her evidence Exh.29 she has deposed that she resided along with her husband and children at Vachla Faliya situate at the village Kavitha. She has deposed that her mother Madhuben was residing with her brother Rushi. Her father had passed away before 3 years. She has further deposed that her father Ranchhodbhai had three brothers and one of those was the deceased. The deceased had divorced his wife and in the wedlock no children were born. She has deposed that the ancestral properties were partitioned during the life time of her father. The house where her mother resided was divided in three parts. One of the parts had gone in favour of her father and the other two in favour of her uncle Manibhai i.e. the deceased and her other uncle Babubhai. She has deposed that her father thereafter bought over the share of her uncle Babubhai and therefore, in the entire property only two persons remained as co-owners i.e. her father and her uncle. She has deposed that a field by name Vorawala was being jointly cultivated by her father and her uncle Manikaka and after the demise of her father her uncle Manikaka used to frequently visit her house at the village Kavitha and also used to stay at her house. Her uncle used to have food at the house of her mother at the village Virol and used to sleep in a hut which was constructed in the field itself. She has deposed that two years before the date of the incident her uncle Manikaka had told her that Rushi wants to sell of Vorawala field and since her uncle was refusing for the same, frequent quarrel used to ensue between them. She has further deposed that once her brother Rushi and his friend Biren had come at her house at village Kavitha and her brother had told her that he wanted to sell the Vorawala field, but Manikaka was refusing to sell the same. At that time it was also told to her by Rushi that

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as she was his elder sister she should put her signature. She has deposed that at that time she had explained to her brother that they had no other agricultural field and if he would sell off the field then how would he live. She has deposed that in spite of explaining, Rushi was not persuaded and ultimately he being the only brother of the P.W.11, agreed to give her consent and accordingly the said field was sold to one of her family uncles by name Maheshbhai Maganbhai Patel. She has deposed that Rs.10,000/- was paid to her by Maheshbhai and Rs.10,000/- was also paid to her younger sister Kailash. She has deposed that the sale proceeds of the share of her uncle Manikaka i.e. the deceased was accepted by him and he had come at her house at village Kavitha along with the money and had handed-over the same to her. Her uncle Manikaka left for the village Virol on the next day in the morning with the money. She has deposed that she had no idea as to what her uncle did with the money despite inquiring with him number of times. She has further deposed that after the Voravala field was sold, no discussions regarding Manikaka’s share had taken place. It was also not discussed that in the said field Rushi had no share. Even thereafter Manikaka used to frequently visit her house. She has deposed that after 5 days she received a phone-call from Kanaiyalal informing her that Manikaka was sick and she should come. She has deposed that accordingly she had gone to the village Virol. The P.W.11 has also been declared as a hostile witness as she failed to support the case of the prosecution. However, in her cross- examination on behalf of the accused person, she has deposed that the ancestral properties were already partitioned and none had any dispute regarding the same.

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L) The P.W.12 Maheshbhai Patel is the person who had bought the Vorawala field. He has deposed that Manibhai happened to be his cousin brother. A year or two before the date of the incident, one of the joint properties of Manibhai and Ranchhodbhai situated near the Virol Canal admeasuring around 2 vighas was to be sold and one of his relatives Vitthalbhai Zaverbhai was interested to buy. He has deposed that Vitthalbhai had executed a Power of Attorney in his favour and the field was bought over for a total sale consideration of Rs.4.00 lacs. This witness has also been declared as a hostile witness.

M) The P.W.13 Vinubhai Chaturbhai Patel is also one of the nephews of the deceased. He has also been declared as a hostile witness.

N) The P.W.14 Narendrakumar Ambalal Patel has been examined as one of the panch witnesses. In his evidence Exh.32 he has deposed that he had been called by the police to act as a panch witness in connection with the investigation of the murder of Manibhai Patel. He has deposed that along with him one other panch Nimeshbhai Ravjibhai was also present. The dead body of Manibhai was lying in a field of chillies. He has deposed that he had not seen anything on the dead body and the same was identified by the family members of Manibhai. He has deposed that a panchnama Exh.33 was accordingly drawn. He has further deposed that adjoining the field of chillies there was one small field of tobacco. Travelling a little ahead from the field there is a Virol bus stand. He has deposed that the police had collected a bundi and nothing else. Thereafter his signature was obtained by the Police.

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O) The P.W.15 Ramanbhai Thakor has also been examined as one of the panch witnesses. In his evidence Exh.43 he has deposed that he was called at the Petlad Rural Police Station. Along with him there was one other person, namely, Babubhai Manibhai as a second panch witness. None else was present at that time except the police personnel. He has deposed that the police had shown them one green or black colour blouse, petticoat and one other blouse and a saree but was not able to recollect the colour of the same. The panchnama Exh.44 was drawn in that regard.

P) The P.W.16 Atulkumar Shah is also one of the panch witnesses examined by the prosecution. However, he has been declared as a hostile witness. The P.W.16 was examined to prove the discovery panchnama of the clothes and the slippers alleged to have been pointed out by the accused.

Q) The P.W.17 Kiritbhai Rathod is also one of the panch witnesses examined by the prosecution. In his evidence Exh.53 he has deposed that on 24 th August, 2008 he was called at the Police Station to act as a panch witness. Along with him there was one other person by name Rameshbhai as a second panch witness. He has deposed that they all had travelled in a jeep as led by Gopal and had reached to one agricultural field. He has deposed that from the agricultural field one plastic bag was taken-out containing clothes. There was a pant, one shirt with check and rubber slippers. The said bag was taken-out by Gopal. A panchnama to that effect was drawn Exh.54.

R) The P.W.18 Rameshbhai Sindhi has also been

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examined as one of the panch witnesses. In his evidence Exh.57 he has deposed that on 25 th August, 2008 he was called at the police station to act as a panch witness. The accused Gopal was present at the police station. He has deposed that at the instance of the P.S.I they had gone at Virol to draw a panchnama and the place was pointed-out by Gopal. First they had gone to the house of Savitaben situated in the village. He has deposed that on entering the house one stove was pointed-out by the accused and from the rear portion of the house, the accused led them to a field and pointed-out the place of occurrence. From there they again went to a field and from the said field, the accused took-out a plastic bottle which contained a Gupti. The Gupti was without any handle and was rusted. He deposed that the panchnama Exh.58 was accordingly drawn. In his cross-examination he has deposed that the place from where the Gupti was discovered was an open field.

S) The P.W.19 Kesarisinh Zala in his evidence Exh.60 has deposed that he was serving as a PSO past one year at the Petlad Rural Police Station. On 18 th August, 2008 while he was on duty, at that time P.S.I Shri A.M.Patel asked him to register an offence which was registered as C.R.No.I-70/2008 of the offence under Sections 302 and 120-B of the Indian Penal Code.

T) The P.W.20 Akasbhai Patel is the Investigating Officer. In his evidence Exh.62 he has deposed regarding the various steps taken in the course of the investigation. This witness has deposed that on 18th August, 2008, he was serving as a P.S.I at the Petlad Rural Police Station. While on duty, he received a

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phone call from one Vimleshbhai, a resident of the village Virol, informing that his uncle Manibhai had been killed by someone. On receipt of such information, this witness reached the village Virol and found a dead body of a male with clothes of a woman lying in the field. This witness recorded the complaint of Vimleshbhai at the spot. This witness made necessary arrangements to inform his superiors including the F.S.L and also called for the dogs squad. Thereafter, the inquest panchnama was drawn including the scene of offence panchnama. He has deposed that thereafter, he recorded the statements of the labourers working in the field of Vimleshbhai and also of other people residing in the vicinity of the place of occurrence. On the next day, i.e. on 19th August, 2008, the P.W 20 recorded the statements of few persons of the village Virol, including the persons residing within the vicinity of the village Virol. In the course of the investigation, the P.W 20 also interrogated both the accused appellants. At the time of their interrogation, the P.W 20 noticed some injuries on the body of the appellant No.1 and accordingly, a panchnama of the person of the accused No.1 was drawn and the appellant No.1 was sent for medical treatment. On 20th August, 2008, he recorded the statements of other persons residing at the village Virol and at the same time, he had gone at the place of residence of the appellant No.1 and had recorded the statement. He has deposed that he carried out the panchnama of the room in which, according to the appellant No.1 he had fallen down, as a result of which he had sustained those injuries referred to above. Thereafter, the P.W 20 went to Nadiad and recorded the statement of one Munniben, the P.W 9. On 24th August, 2008, he recorded the statement of Meenaben, the P.W 6 i.e. the wife of the accused No.1, and on

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inquiring with her regarding the clothes, she had identified those clothes and a panchnama in that regard was drawn. He has deposed that thereafter, he had further interrogated the accused-appellants and at 16.15 hours, both the accused persons were arrested. He has deposed that the accused- appellant No.1 pointed out the place where he had concealed the clothes worn by him and the slippers and, and in that regard a panchnama under Section 27 of the Evidence Act was drawn in presence of the panch witnesses. On 25th August, 2008 in the morning, the accused-appellant No.1 expressed his desire to point out the place where the deceased was killed, including the place where the weapon with which the deceased was killed. In that regard, a panchnama was drawn in presence of the panch witnesses. He has deposed that both the accused persons were produced before the learned Magistrate and Police remand was obtained. On 27th August, 2008, both the accused persons pointed out the place where the stolen articles were concealed i.e. the articles collected by committing theft at different places and also pointed out the exact places from where theft was committed. In that regard also a panchnama was drawn. He has deposed that as there was sufficient materials collected in the course of the investigation connected the accused persons with the crime, a charge-sheet was filed against both the accused persons. In his cross-examination, the P.W 20 has deposed that the accused No.1 Gopal was arrested on 24th August, 2008. Even before 24th August, 2008, the P.W 20 had an occasion to meet the accused No.1 He has deposed that on 19th August, 2008, the panchnama of the person of the accused No.1 was drawn. The P.W 20 denied the suggestion given to him that on 19th August, 2008, at 12′ O Clock, the accused No.1 was arrested,

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and with a view to get a confession from him regarding the complexity in the crime, the Police had adopted third degree methods and thereafter, the accused No.1 was sent for medical examination to the doctor. The P.W 20 also denied the suggestion given to him that between 19th and 24th August, 2008, the accused No.1 remained in his custody.

16. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in these appeals is whether the trial Court committed any error in finding both the accused-appellants guilty of the offence of murder and criminal conspiracy.

17. The picture that emerges on the cumulative assessment of the oral evidence on record is that the entire case of the prosecution hinges on the circumstantial evidence. It appears that out of twenty witnesses examined by the prosecution, six of those failed to support the case of the prosecution and were declared as hostile witnesses. The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ established.

(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

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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.

18. In order to bring a charge of criminal conspiracy the prosecution has to prove –

i) that the accused agreed to do or cause to be done an act;

ii) that such act was illegal or was to be done by illegal means; and

iii) that some overt act was done by one of the accused in pursuant of the agreement.

It is true that the direct evidence to prove the criminal conspiracy is rarely available and the same can be inferred from the proved circumstances. Before such an inference is drawn the facts established must rule-out any likelihood of innocence of the accused. If there are circumstances compatible with the innocence of the accused persons, the

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prosecution will fail. A clear link has to be established and the chain has to be completed from the circumstances relied upon by the prosecution otherwise it is too risky to accept a part of the link as a complete one and to base conviction on the basis of such incomplete evidence. The mere suspicion of motive cannot serve as a sufficient ground for holding an accused guilty of the offence of murder. In the absence of any cogent and convincing material to indicate on the basis of which a legitimate inference can be drawn that the particular motive has passed into action and that the accused is connected with that action in question, the circumstantial evidence even if accepted in its entirety creates only a suspicion of motive. Needless to point-out that the motive which induces a man to do any particular act, is known to him and to him alone. At the highest, the prosecution can only suggest from the circumstances what is or may be the motive for any particular act. However, motive is not a sine-qua non for bringing the offence of murder or of any crime home to the accused. At the same time the absence of ascertainable motive comes to nothing, if the crime is proved to have been committed by a sane person, but to eke out a case by proof of a motive alone, that too suspicion of motive, apparently tending towards any possible crime is not only a very unsatisfactory but also a dangerous process, because the circumstances do not always lead to particular and definite inferences, and the inferences themselves may sometimes be erroneous. [See State of U.P. Vs. Dr.Sanjay Singh & another – 1994 Supplementary (2) Supreme Court Cases -707].

19. A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted

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on pure suspicion or moral conviction. In the case at hand, the charge proved by the prosecution against the accused persons is that of criminal conspiracy punishable under Section 120-B of the Indian Penal Code. For proving a criminal conspiracy, prosecution is seldom in a position to place before a Court any direct evidence. Conspiracies are hatched in secrecy and as such are usually proved by circumstantial evidence alone. However, the law is well settled that for establishing a criminal conspiracy the prosecution must place on record some connecting link or connecting evidence of meeting of the minds of the conspirators for achieving a particular object. Motive may not be important for proving a criminal offence where ocular evidence is available, but in the case of a conspiracy, motive provides the basis for joining of hands by the conspirators.

20. In the instant case, the hatching of conspiracy between the appellant No.2 and the appellant No.1, allegedly hired killer, has been sought to be proved on the ground that as the appellant No.2 wanted to usurp or grab the immovable properties of the deceased, as the deceased had no legal heirs, the appellant No.2 wanted to eliminate the deceased, suggesting the existence of circumstance of motive. Therefore, we would first like to see whether there is any cogent and reliable evidence as regards the motive on the part of the accused persons to commit the crime.

21. It appears from the oral evidence on record, more particularly from the evidence of the P.W 11 Sangitaben, sister of the accused No.2, that the deceased happened to be her uncle i.e. one of the brothers of her father. The deceased had

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divorced his wife long time back and in the wedlock, no children were born. The P.W 11 has deposed that the ancestral properties were partitioned during the life time of her father. This is suggestive of the fact that each of the brothers i.e. the father of the accused No.2 and the two brothers of the father of the accused No.2 had already obtained their respective share in the ancestral properties. It also appears that the house in which the mother of the accused No.2 resided was divided in three parts. One of the parts went in favour of the father of the accused No.2 and the other two parts in favour of the two brothers of the father of the accused No.2, which included the deceased. It also appears that the father of the accused No.2 purchased the 1/3rd share of his brother Babubhai, and therefore, in the entire property, only two persons remained as co-owners i.e. the father of the accused No.2 and the deceased. It also appears from the evidence on record that one agricultural field known as the “Vorawala field” was being jointly cultivated by the father of the accused No.2 and the deceased, and after the death of the father of the accused No.2, the accused No.2 decided to sell the Vorawala field. Initially, there was some objection at the end of the deceased, but it appears that thereafter, the Vorawala field was sold for a total sale consideration of Rs. 4 lac and the deceased had also collected his share out of the sale proceeds. It appears that after the Vorawala field was disposed of, nothing was left to be partitioned. Although it appears that the deceased had some land of his own and was residing in a hut situated in the field itself, yet there is no other evidence as regards any immovable property owned by the deceased on which the accused No.2 could have kept an eye with a view to grab the same. We are unable to accept the

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case of the prosecution as regards the motive on the part of the accused No.2 to get his uncle murdered, because even after the demise of his uncle i.e. the deceased, the accused No.2 could not have inherited all the properties of the deceased on his own, even if we go by the principles of the Hindu Succession Act. Apart from that, one other important aspect which deserves consideration is, the transaction of the Vorawala field which had taken place almost two years before the date of the incident and thereafter, there was no dispute between the accused No.2 and the deceased. Almost all the witnesses have deposed that the accused No.2 had no enmity with the deceased.

22. In such circumstances, we find it a bit difficult to agree with the findings recorded by the trial Court that the accused No.2 had such motive and therefore, hatched a conspiracy to commit the murder of the deceased by hiring the services of the accused No.1, who happens to be his friend.

23. We shall now consider the circumstance of identification of the saree with which the body of the deceased was covered at the instance of the P.W.6 Meenaben i.e. the estranged wife of the accused no.1. This circumstance has really left us puzzled. According to the case of the prosecution the deceased was killed at a particular place and thereafter with the intention of destroying the evidence the body was brought in an agricultural field. To the aforesaid extent, we can understand but we are unable to understand what could be the idea in covering the body of the deceased with a saree, blouse, petticoat and a bra. The saree with which the body of the deceased was covered was in two parts. There were two

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sarees of different colour but stitched together and thereafter the same was put on the dead body of the deceased. According to the case of the prosecution, one part of the saree was of the P.W.6 Meenaben and the other part of the saree was that of the P.W.7 Jashodaben i.e. the lady with whom the accused no.1 had illicit relations. The trial court seems to have placed reliance on this circumstance observing that it could only be the accused who could have been in possession of a saree which belonged to his estranged wife i.e. the P.W.6. We are afraid, we are unable to agree with the line of reasoning adopted by the Trial Court so far as this circumstance is concerned. It deserves to be noted that according to the P.W.6 Meenaben she had left her matrimonial home almost 4 years before the date of the incident. The P.W.6 was residing at the house of her parents. If the P.W.6 Meenaben had left the matrimonial home almost 4 years back, it is very difficult to accept the version that she had left behind her clothes which included one of the sarees in question. The moot question is how did the accused no.1 come in possession of a sari which the P.W.6 Meenaben identified the same to be her own saree. Let us assume for the time being that half of the saree was of the P.W.6 Meenaben then what could be the reason for the accused no.1 to stitch the other half of the saree of the P.W.7 Jashodaben with whom he had illicit relations. The P.W.7 Jashodaben has not supported the case of the prosecution and has been declared as a hostile witness. The P.W.6 Meenaben to a certain extent has supported the case of the prosecution but her version that a part of the saree was her own saree appears to be highly unpalatable. At the same time the P.W.6 Meenaben has also deposed that the saree which she identified to be her own saree was easily available in a market

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and many women may be in possession of such a saree.

Thus, we are not convinced by the circumstance of identification of the saree at the instance of the P.W.6 Meenaben as discussed above.

24. The above takes us to consider the third circumstance and that is the say of the P.W.7 Jashodaben as regards the injuries which were found on the forehead and eyebrows of the accused no.1. So far as this circumstance is concerned, it is sought to be linked with the circumstance of the injuries which were noticed by the Investigating Officer on 19th due to which the accused no.1 was sent for medical examination. This circumstance has been relied upon by the prosecution to substantiate its case that at the time of the assault probably the deceased with a view to defend himself might have inflicted injuries on the body of the accused no.1. So far as the P.W.7 Jashodaben is concerned she has not supported the case of the prosecution and has been declared as a hostile witness. However, so far as the injuries are concerned, she has deposed that 2 to 3 days before the date of the incident, the accused no.1, while trying to fix an electric bulb, had fallen down resulting in injuries on his forehead and eyebrows. This circumstance also could hardly be termed as an incriminating circumstance.

25. The prosecution has relied on the circumstance of the P.W.9 Munniben accompanying both the accused-appellants to a movie and at that time the accused no.1 had worn a shirt with check and a black pant. The evidence of the P.W.9 Munniben is sought to be relied upon because, according to

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the case of the prosecution the clothes which were discovered at the instance of the accused no.1 by drawing a panchnama under Sec. 27 of the Evidence Act tallies with the description of the clothes as deposed by the P.W.9 Munniben. This circumstance is co-related with the circumstance of the discovery under Sec.27 of the Evidence Act. So far as the circumstance of discovery under Sec. 27 of the Evidence Act is concerned we shall discuss it a little later, but the deposition of the P.W.9 Munniben by itself is not helpful to the prosecution in any manner.

26. The above takes us to the circumstance of the accused no.2 informing the P.W.10 Birenkumar Patel that he wanted to go to Delhi. This circumstance is sought to be relied upon so as to show the conduct of the accused no.2. According to the prosecution, after the incident there was an attempt on the part of the accused no.2 to leave the village and run away to Delhi. So far as the P.W.10 Birenkumar is concerned, he has also not supported the case of the prosecution and has been declared as a hostile witness. This circumstance could hardly be termed as an incriminating circumstance because even if it is believed that the accused no.2 intended to go to Delhi, the same was not something unnatural as in the past the accused no.2 was working at Delhi and probably for some work he might have decided to go to Delhi.

27. The prosecution has placed strong reliance on the evidence of the PW.11 Sangitaben i.e. the sister of the accused no.2. So far as the evidence of the sister of the accused no.2 is concerned, all that we find is, that there was some dispute between the accused no.2 and the deceased regarding an

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immovable property. However, even according to the P.W.11 Sangitaben all the properties were partitioned during the life time of her father and after the sale of the Vorawala field, nothing was left to be resolved amongst the family members. On the contrary the P.W.11 has deposed that the deceased had consented to sell the Voravala field and after selling the same had also collected his part of the sale proceeds. According to the P.W.11, the accused no.2 i.e. her brother was very anxious to sell the Vorawala field. After some initial resistance at the end of the deceased, ultimately the field was sold to one Vitthalbhai. The P.W.11 has also been declared as a hostile witness. In her cross-examination she has deposed that none had any dispute regarding the ancestral properties. The evidence of the P.W.11 has been relied upon by the prosecution more particularly to prove the motive behind the commission of the crime, but so far as the aspect of motive is concerned, we have discussed the same earlier at length.

28. We shall now consider the circumstance of discovery. In the present case there are two discovery panchnamas drawn under Section 27 of the Evidence Act. The first discovery panchnama, Exh.51, is that of the clothes of the accused no.1 i.e. one shirt with check, a black pants as well as a pair of slippers. One of the panch witnesses i.e. the P.W.17 in his evidence Exh.53 has deposed that on 24 th August, 2008 he was called at the Police Station to act as a panch witness. Along with him there was one other person by name Rameshbhai as a second panch witness. All that the P.W.17 has deposed is that as led by the accused they had gone to one agricultural field situated at the village Virol and from there one bag was taken-out by the accused no.1 and handed-over to the police.

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The bag contained a pants, one shirt with check and a pair of rubber slippers. The second panchnama is that of the weapon of offence i.e. the Gupti. So far as the discovery of Gupti is concerned, the PW.18 Rameshbhai has deposed that on 25 th August,2008 he was called at the police station to act as a panch witness. All that has been deposed by the P.W.18 is that they had gone to a place which was an agricultural field and from there one concealed plastic bottle was taken-out by the accused no.1 which contained a Gupti without its handle. It appears that the trial Court has placed strong reliance on both these panchnamas drawn under section 27 of the Evidence Act as one of the incriminating circumstances.

29. The substantive evidence of both the panch witnesses does not show that the appellant No.1 made a statement that he had kept the clothes and Gupti in a bottle at a particular place and he was inclined to point out that spot. The substantive evidence does not establish the authorship of concealment of the clothes as well as the Gupti and, therefore, the evidence of both the panch witnesses do not advance the case of the prosecution any further. The contents of the two panchnamas i.e. Exhibits 51 and 53 can be read only to corroborate the evidence of the panch witnesses The contents of the panchnama cannot be read as substantive piece of evidence. In view of this, all that can be said to have been established by the prosecution is that the accused No.1 took the Police and the panchas to a spot from where the clothes and the Gupti were recovered. This would only establish knowledge on the part of the appellant No.1 that the clothes and the Gupti were lying there and nothing more. This also will not advance the case of the prosecution any further.

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30. The Supreme Court in Modan Singh Vs. State of Rajasthan reported in AIR 1978 SC 1511 held that if 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 the seizure witnesses do not support the prosecution version. While there cannot be any quarrel with this proposition of law, but still the requirement of law needs to be fulfilled before accepting the evidence of discovery and that is by proving the contents of the panchnama. The Investigating Officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the Investigating Officer has successfully proved the contents of the discovery panchnama in accordance with law then in that case the prosecution may be justified in relying on such evidence and the trial Court may also accept the evidence.

31. In the present case, the Investigating Officer, the P.W 20, in his evidence Exh.62 has not proved the contents of both the discovery panchnamas and all that he has deposed is that as the accused was willing to point out the spot where the weapon of offence and the clothes were concealed, the same were recovered by drawing a panchnama.

32. It is well settled that before relying on the evidence of discovery under Section 27 of the Evidence Act, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose, the panch witnesses and the Investigating Officer is obliged to depose in their evidence the exact statement and not by

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merely showing that a discovery panchnama of weapon of offence or any other object like clothes etc. was drawn as the accused was willing to point out the place of concealment.

33. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Phulukuri Kottaya Vs. Emperor – AIR 1947 PC 67, which have become locus classicus, in the following words:-

“It is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed ‘A” these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that “I will show you the weapon used in the commission of offence” . This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in

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this regard is that he disclosed that he would show the weapon used in the commission of offence. In the same manner we have also perused the panchnama Exh.32 wherein the statement said to have been made by the accused before the panchas in exact words is “the accused resident of Roghada village on his own free will informs to take out cash and other valuables”.

34. In the case of Narsinhbhai Dahyabhai Vaghela v. State of Gujarat, reported in 1984(1) GLR 118, this Court observed thus :-

‘…….When Panchnama was to be prepared accused was present and he stated that “he willingly shows a key”. This would only mean knowledge of the key and not the possession of the key. Possession and knowledge are two different aspects in law. For establishing possession the statement under Section 27 of the Indian Evidence Act would have “I have concealed a key or I have placed a key which I am willing to produce”. Unless it is an admitted fact that it is he who has placed it possession cannot be imputed to him. Production can impute knowledge. If a person has a knowledge that a particular thing is lying at a particular place, that will only establish that he knew that at a particular place a particular thing is lying. This would impute knowledge and not possession.”

35. In Dudh Nath Pandey v. State of U. P., AIR 1981 SC 911, the Apex Court took into consideration a very similar factsituation and observed in paragraph 15 that, if the case is dependent on circumstantial evidence, different considerations would have prevailed because the balance of evidence after excluding the testimony of the two eyewitnesses was not of the standard required in cases dependent wholly on circumstantial evidence (as is the case here). Their Lordships observed that evidence of recovery of pistol at the instance of the appellant cannot by itself prove that he who pointed out the weapon wielded it in offence. The statement accompanying the discovery was found to be vague to identify

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the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant’s knowledge as to where the weapon was kept.

36. There is one more reason why we are not inclined to accept the evidence of discovery. We are constrained to observe here that the evidence of both the panch witnesses was recorded in a very slipshod manner. Same is the case with regard to the recording of the evidence of the Investigating Officer, so far as the aspect of discovery is concerned. The learned Public Prosecutor, who conducted the prosecution before the trial Court, failed to bring on record in the substantive evidence of the two panch witnesses as well as the Investigating Officer the fact of the accused No.1 having made the statement that he had kept the weapon of offence and the clothes at a particular spot and that he was inclined to show the spot, even though it has been recorded in the two panchnamas Exhs. 51 and 53 respectively. The learned Public Prosecutor does not appear to have realized that there should be substantive evidence on record in this regard and that the panchnamas can be used only to corroborate the evidence of the panch and not as a substantive piece of evidence. A panchnama, which can be used only to corroborate the panch has to be read over to the panch and only thereafter it can be exhibited. If the panch witness has omitted to state something which is found in the panchnama, then, after reading over the panchnama the panch has to be asked whether that portion of the panchnama is correct or not and whatever reply he gives has to be recorded. If he replies in the affirmative, then only that portion of the panchnama can be read to corroborate the

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substantive evidence of the panch. If he replies in the negative, then that part of the panchnama cannot be read in evidence for want of substantive evidence on record. It is, therefore, imperative that the Public Prosecutor who conducts the trial should ensure that such a procedure is followed while examining the panch as a witness. At the same time, it is also necessary that the learned trial Judge also sees that panchnama is read over to the panch and thereafter the panchnama is exhibited after following the procedure as indicated above. If the Public Prosecutor and the learned trial Judge had followed this procedure in the present case, and if the panch witnesses had stated that the accused No.1 had made such a statement as recorded in the two panchnamas Exhs. 51 and 53, then it would have been legally permissible for us to have taken into consideration the circumstance of discovery. The discovery evidence, by itself, is subsidiary and cannot sustain a conviction, but where there is plenty of other evidence to sustain the prosecution case, discovery evidence may be treated as a valuable piece of corroborative evidence.

37. At this stage, we may deal with one submission of Ms. Shah, the learned Additional Public Prosecutor appearing for the State that even if the discovery as contemplated under Section 27 of the Act is not proved, yet the fact that the accused No.1 had led the Police party along with the panch witnesses to a particular place from where there was discovery of the clothes and the weapon of offence, should be considered as a conduct of the accused relevant under Section 8 of the Evidence Act. Ms. Shah, to the aforesaid extent is right in her submission, but at the same time in the absence of any other reliable evidence, an accused cannot be convicted merely on

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his conduct, in a serious offence entailing death penalty.

38. The above takes us to consider the last circumstance regarding the presence of injuries on the person of the accused No.1. It appears that on 19th August, 2008, the P.W 20 i.e. the Investigating Officer could notice few injuries on the person of the accused No.1 and, therefore, the accused No.1 was sent for medical examination. The medical certificate Exh.15 on record reveals that the accused No.1 had sustained few abrasions and a lacerated wound, which was bone deep, on the left side of his forehead. It also appears from the evidence of the P.W 20 that both the accused-appellants were interrogated on 29th August, 2008 regarding the incident. However, both the accused persons were arrested for the first time on 24th August, 2008. According to the accused No.1, it was the Police who had adopted third degree methods with a view to extract a confession from him regarding his complexity in the crime. We find it a bit doubtful to believe the P.W 20 that although the accused No.1 was sent for medical examination on 19th August, 2008, yet he was arrested only on 24th August, 2008. It appears that from 19th August, 2008 onwards the accused No.1 might be in custody of the Police and only on 24th August, 2008, his official arrest was shown. The presence of injuries on the person of the accused No.1, thus, create a suspicion regarding his complexity, but that suspicion by itself, in the absence of other incriminating evidence, would not warrant his conviction. Assuming that the explanation of the accused with regard to those injuries is not trustworthy, this circumstance is hardly sufficient to warrant the conviction of the accused in a serious offence entailing death penalty. It is well established that circumstantial

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evidence in order to warrant conviction should be consistent only with the hypothesis of the guilt of the accused. The same cannot be said to be true of the circumstantial evidence adduced in this case.

39. For the foregoing reasons, we hold that the trial Court committed an error in finding both the accused appellants guilty of the offence charged with. Since we have disbelieved the entire case of the prosecution, we have not dealt with the conviction of the accused-appellants of the offence punishable under Section 201 of the Indian Penal Code.

40. In the result, both the appeals succeed and are hereby allowed. The order of conviction and sentence passed by the trial Court against both the accused appellants are hereby set aside. The accused-appellant No.1, Gopal @ Gopi Harman Chauhan be released forthwith, if not required in any other case.

41. Our attention has been drawn by the learned Additional Public Prosecutor that so far as the accused No.2 Rushikumar Ranchhodbhai Patel is concerned, he was released on parole, but thereafter failed to surrender before the Jail authorities. According to Ms. Shah, the accused No.2 is absconding. Be that as it may, since we have allowed the appeal and acquitted the accused No.2, we do not say anything more except that it will be open for the jail authorities to proceed against the accused No.2 so far as commission of any jail offence is concerned.

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(BHASKAR BHATTACHARYA, C.J.)

(J.B.PARDIWALA, J.)

Mohandas

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