(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. This appeal arises out of judgement and order rendered by Additional Sessions Judge, Fast Track Court No,1, Vadodara, on 21.10.2003 in Sessions Case No.197 of 1997. The appellant was accused no.1 along with accused no. 2, 3 and 4, namely, Govind Gendalal Somani, Ramesh Narayan Pawar and Jayantibhai Ramanbhai Patel before the trial court and faced charges of murder of Rambhai Harjivandas Patel and Ramjibhai Tribhovanbhai Patel. The trial court, however, acquitted accused no. 2, 3 and 4, namely, Govind Gendalal Somani, Ramesh Narayan Pawar and Jayantibhai Ramanbhai Patel Patel, while convicted the appellant for the murder of said two persons, and hence this appeal by original accused no.1. The appellant is sentenced to imprisonment of life with a fine of Rupees Fifty Thousand, in default, to undergo rigorous imprisonment for three months.
2. The prosecution case in brief is that deceased Rambhai Harjivandas Patel had lend Rs. 2 crores to the present accused-appellant, which accused- appellant did not want to repay, and therefore, on 12.05.1997, the accused- appellant called Rambhai Harjivandas Patel and Rambhai Tribhovanbhai Patel from Ahmedabad to Vadodara, and committed their murder in the premises of Advance Bio-coal India Limited, situated at Savli-Vadodara road at village Lasundra, and thereafter, with a view to escape from the liability, put the dead bodies in Peugeot car bearing No. GJ-1-HH-7610, and abandoned the said car at Parthampura-Gadiapara road, after attempting to set the vehicle on fire by pouring petrol over it, and thereby tried to cause disappearance of evidence.
3. In this context, it may be noted at the outset that there is no direct evidence to establish the guilt of the accused persons, and the prosecution tried to prove the case by leading circumstantial evidence. Broadly speaking, the circumstances which have weighed with the trial court in recording the conviction are that the accused-appellant owed Rs. 2 crores to deceased Rambhai Harjivandas Patel, that there are unauthorised and illegal transactions between them on account of shares of various companies, that accused no.1 telephonically called the deceased in the previous evening from Ahmedabad to Vadodara, that accused-appellant is son of owner of Advance Bio-coal India Limited situated at Lasundra and that belongings of one of the deceased persons were found from the said factory of Advance Bio-Coal India Limited, that in the previous evening witness Gemalsinh Fatesinh heard commotion and cries for help from the factory premises of said Advance Bio-Coal India Limited, and then the dead bodies were committed in Peugeot car, which was tried to be set on fire, and then it was abandoned along with dead bodies.
4. Learned advocate for the appellant Ms. Shah submitted that the prosecution has failed to establish the motive; there is nothing on record except bare words of wife of the deceased Rambhai Harjivandas Patel that the accused-appellant owed Rs. 2 crores to deceased Rambhai Harjivandas Patel. She submitted that Rambhai Harjivandas Patel as well as the other deceased Ramjibhai Tribhovanbhai Patel were partners in a firm running angadia business, and their annual turnover was about Rs.3 lakhs. There is no evidence to show that accused-appellant had transactions with them, and there is no material to indicate the source of Rs. 2 crores of Rambhai Harjivandas Patel, who was alleged to have lend Rs.,2 crores to accused- appellant. She submitted that, therefore, the motive of non-repayment of Rs. 2 crores attributed to accused-appellant is not proved, which snaps an important link in the circumstances of the prosecution case.
Ms. Shah then submitted that there is no evidence except oral say of Laxmiben, wife of Rambhai Harjivandas Patel, that it was accused-appellant no.1, who had telephonically called the deceased, and that was on the basis of voice recognised on telephone, which can hardly be given any authenticity.
5. Ms. Shah then submitted that as per say of Laxmiben, the deceased left Ahmedabad for Baroda at about 06.00-06.30 p.m., whereas according to Gemalsinh Fatesinh, he heard the commotion and shouts for help from the factory at about 05.30 in the evening, meaning thereby, that when the incident occurred in the factory, the deceased was very much alive, and was in Ahmedabad, and therefore, that cannot be considered as a circumstance against the accused.
6. It was then contended that there is no evidence to show that accused-appellant is in any way connected with Advance Bio-Coal India Ltd., in the premises in which the incident is alleged to have occurred, and wherefrom the belongings of the deceased have been found. Both these circumstances, therefore, failed to link the accused with the evidence. Lastly, it was submitted that Gemalsinh Fatesinh has been erroneously accepted as a truthful witness. He claims to have heard shouts for help from the factory premises, while he was at his tea stall. It was contended that the tea stall is located at Lasundra bus stand, and the factory of Advance Bio-coal India Limited is at a distance of about 1 km. towards Savli, and therefore, witness Gemalsinh Fatesinh could not have heard the shouts that he claims to have heard.
Ms. Shah, therefore, submitted that there is total lack of continuity of link between the crime and the accused. Proximity is also not established, and therefore, the trial court committed an error in recording conviction. The appeal may, therefore, be allowed.
7. Learned A.P.P. on the other hand has opposed this appeal. According to him, there is no reason to disbelieve Laxmiben, wife of the deceased, about monetary transaction. He submitted that there may not be documentary proof of every transaction. He submitted further that the deceased was specially summoned by the accused-appellant to Baroda, and belongings of the deceased have been found from the factory of accused- appellant, and therefore, the link is established. Learned A.P.P. tried to indicate the nexus between the appellant and the factory named Advance Bio-coal India Ltd. with the help of evidence of P.W. 2 Gemalsinh Fatesinh. This witness has identified accused no.1 and 2 as the sons of the owner of the said factory. Under the circumstances, that link is established. Apart from the shouts claimed to have heard by Gemalsinh Fatesinh, there is concurrent finding in the form of belongings having been found from the factory, and therefore, the trial court was justified in recording conviction, and the appeal, therefore, may be dismissed.
8. We have examined the record and proceedings in the context of the rival submissions.
9. We find that the prosecution case depends on circumstantial evidence, and there is no direct evidence. The dead bodies were found in the Peugeot car, which was lying near Parthampura. But, how that vehicle and the dead bodies came to that place is not brought on record by the prosecution. There is no evidence to know who is the owner of that vehicle. There is no material on record which would establish any nexus between the accused-appellant and the said vehicle.
10. The prosecution has then examined Laxmiben, wife of the deceased Rambhai Harjivandas Patel. She does not know the accused-appellant, but she had received his telephone calls on some occasions in absence of her husband, and said phone calls were being made from Vadodara. They had some monetary transactions with the firm of the deceased, of which Rambhai Harjivandas Patel was also a partner. She says that accused- appellant had called her husband from Ahmedabad to Vadodara by making a phone call. Her husband was unwell, but he was asked to go to Vadodara to settle the transactions. Accused had offered her husband to send car to fetch him. However, the car did not go from Vadodara, and therefore, her husband Rambhai and his partner Ramjibhai Tribhovanbhai Patel went by car from Ahmedabad to Vadodara. They started at 6.00 p.m. on the day for Vadodara, and she received a telephonic message that both of them have been murdered. She says that her husband was called to Vadodara as he had to recover money from the accused-appellant. She does not know if her husband had any other business than angadia firm. She admits that she does not know anything about the business transactions of her husband. Next relevant witness, according to us, would be P.W.2 - Gemalsinh Fatesinh. He says that he heard shouts at about 05.30 in the evening of 12th of May 1997, the day on which the incident has occurred. The shouts were heard from the factory premises and they were for help. From his deposition it is clear that he heard the shouts while he was at his tea stall near Lasundra bus stand.
This witness's deposition has to be viewed along with the panchnama of place of incident (exh.36), wherein it is recorded that the distance between the bus stand and the factory is about one kilometer. Question is could he have heard any shouts of a human being, however loud they may have been. The answer obviously would be in the negative. The second aspect which hits the prosecution case is that this witness claims to have heard the shouts at about 5.30 p.m in the evening, whereas, according to Laxmiben, the deceased left at 6.00 `O' clock from Ahmedabad. This inconsistency in the evidence of prosecution witnesses has remained unexplained.
11. It is also required to be recorded that the nexus, relation or link between accused-appellant and the Advance Bio-coal India Limited is not established. The investigating officer in his deposition (Exh.50) has admitted during cross-examination that he has not collected any evidence to ascertain if there is any link between the accused and the said factory. He has not even inquired whether that company is registered under the Companies Act. He did not make any inquiry about the names of owners of that company. Assuming for a minute that the incident has occurred in the said factory, as is alleged, in that event, it was expected of the investigating officer to have investigated as to who is the owner, who is the person in control of the factory, how many persons were there, and who could have been present when the incident occurred, and whether that included the accused persons. But, in that regard the evidence is nil. Therefore, the investigation cannot be said to have been carried out properly. There is lack of evidence to link up the appellant with the crime.
12. It is also required to be noted that the trial court had before it accused no.2 also, who is brother of the accused-appellant, and evidence against both accused no.1 and 2 is identical. Still, however, accused no.2 is acquitted on same set of evidence, benefit of which ought to have gone to accused no.1, the present appellant, which has not been given.
13. We may also observe here that only on the basis of evidence of Laxmiben to the effect that on phone call from appellant, the deceased left for Vadodara, and on the basis of P.W.2 Ghemasinh Fatesinh having heard the shouts, the link is believed to have been established. But, a closer look at the evidence of Laxmiben would reveal that in the telephone call which was received by the deceased it was suggested by the appellant that he would send his car to fetch the deceased to Vadodara, but no such car was sent, and therefore, the deceased left on his own in company of his partner in the Peugeot car. Whether it can be said that the deceased left for Vadodara at the instance of appellant?
14. The foregoing discussion would show that there is virtually no link, which can sustain the load of connecting the accused with the crime. When the case depends upon circumstantial evidence, the prosecution is expected to complete a chain of circumstances, which would leave no scope for hypothesis of innocence of the accused. In the instant case, the prosecution has failed to do so. The trial court has erred in convicting the appellant. The appeal, therefore, deserves to be allowed and the same is allowed. The judgment and order dated 21.10.2003 of Additional Sessions Judge, Fast Track Court No,1, Vadodara in Sessions Case No.197 of 1997 is hereby set aside. Accused-appellant is acquitted of charges levelled against him. The bail bond stands cancelled. Fine paid, if any, be refunded.
(A.L. DAVE, J.) (N.V. ANJARIA, J.) [SNDEVU]