IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1298 of 2010 With CRIMINAL APPEAL NO. 1667 of 2010 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA ===========================================================
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 ?
================================================================ RANCHHODBHAI SONDABHAI DABHI Appellant(s) Versus STATE OF GUJARAT Opponent(s)/Respondent(s) ================================================================ Appearance:
MR SAIYED, ADVOCATE for the Appellant(s) No. 1 MS HANSA PUNANI, APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 26/09/2013 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. These appeals arise out of the same judgement of the learned Additional Sessions Judge, Surendranagar dated 05.07.2010 in Sessions Case No. 37 of 2009. Criminal Appeal No. 1298 of 2010 has been filed by original accused No.1, who has been convicted for offence under Sections 302 and 201 of Indian Penal Code. He has been sentenced to life imprisonment and rigorous imprisonment for three years respectively for such offences. He has, therefore, filed the said appeal challenging his conviction and sentence. Original accused No.2, Vijuben Babubhai was acquitted by the Sessions Court by the said judgement. The State has, therefore, preferred Criminal Appeal No. 1667 of 2010 challenging such acquittal.
2. Briefly stated the prosecution version was that:
Accused No.2, Vijuben was married to deceased Hemubhai Dineshbhai Makwana. She, however, had an affair with accused No.1, Ranchhod Dabhi, who also happened to be her distant uncle. Since they found Hemubhai an obstacle in their relations, they conspired to eliminate him by committing his murder. Accused No.1 Ranchhod called up the deceased in the night of 27.02.2009 on his mobile and called him to meet his wife. When Hemubhai came on his motor cycle to meet his wife, accused No.1 assaulted him in the sim of Village Vadadhra in Muli Taluka and gave knife blows on his stomach and the side causing his death. With the help of two juvenile accused, the dead body was, thereafter, carried on a motor cycle across a small rivulet and hidden inside the cavity of a well situated in the village known by the name of Limdi Mahajan ni Vadi. The Hero Honda motor cycle of the deceased was, thereafter, thrown in another well which had water. The shirt of the deceased which had come off was hidden. The accused had, thus, committed offences punishable under Sections 302 and 201 read with Section 34 of IPC. It is further the case of the prosecution that the mobile phone of the deceased was given to juvenile accused Ashok Virambhai, after removing the sim card which Ashok sold away in the market.
3. Charge was framed at Exh. 6 which was a fairly detailed charge against both the accused. It runs parallel to the prosecution version, we have noticed above. It would, therefore, not be necessary to reproduce the entire charge. In short, for the above mentioned acts, both the accused were charged with offence punishable under Sections 302 and 201 read with Section 34 of IPC.
4. The entire prosecution case rested on circumstances. The incident happened in the night of 27.02.2009 with no eyewitnesses around. The prosecution has, however, relied on several circumstances as would unfold as we record the evidence produced before the Court.
5. We may, at first instance, refer to the witnesses, who were the family members.
6. Dineshbhai Virjibhai, P.W. 14, Exh 47, was the father of the deceased. He deposed that his son Hemu had married accused No.2 on 12.02.2009. Six or seven days after the marriage, the daughter-in-law had gone to her parents' house. His son had left home few days thereafter, about which, he came to know the next day when he was told that Hemu had gone out the previous night. From next day they started looking for him. He gave a mobile number which his son used to carry. At the time of the incident, the family had one Hero Honda Splender Motor Cycle with registration No. GJ 13 K 4520. After looking for the son for couple of the days, they informed the police. He was shown the mobile, clothes, motor cycle and the ring of his son and he identified all of them before the Court. He knew about the relations between accused No.1 and 2 but never suspected that they would kill his son. He produced FIR Exh. 48 which he had lodged before the police. He had received a call from his uncle Savjibhai informing him that dead body of his son was found from the well in Limdi Mahajan Ni Wadi in village Sangadhra.
7. Khimjibhai Narsibhai, P.W. 15, Exh. 49, was a resident of the same village. He knew the complainant and his son, deceased. He deposed that he had gone to get sand in tractor to village Sangadhra. When he heard that foul smell was coming from a well, he went to see there. He saw a dead body with clothes, of which the description was given by the father of the deceased. He met the uncle of Dineshbhai, who informed the complainant. He stated that about two days before the incident, he had seen accused No.1 and the 2 juvenile accused near the said well.
8. Janakbhai Virjibhai, brother of the complainant, P.W. 16 Exh. 50, deposed that the day before the incident, when he returned home at about 9.30 p.m, he did not see the motor cycle, where it was being usually parked. He saw that Hemubhai was not at home. He, therefore, tried to call him on his phone. He, however, did not answer the phone. They tried to look for him but did not find him. Khimjibhai had told him that near the well of Limdi Mahajan ni Wadi, he had seen accused No.1 and the two juvenile accused.
9. Sajuben Virjibhai, P.W. 18, Exh. 54, was the grand mother of the deceased. She deposed that Hemu had received a phone call at 9 O'clock. He, therefore, left home on the motor cycle. When her son Janak came, he inquired about the motor cycle and on being told that Hemu had taken it, he had tried to call him on the phone.
10. Khimjibhai Ratnabhai, P.W. 10, Exh 33, was the friend of deceased Hemu. He deposed that after the marriage, Hemu's wife stayed with him for about 4-5 days. She had, thereafter, gone to her parents' place. Hemu met him 4-5 days after that and requested him to accompany him to meet his wife, who had given a phone call and called him to meet her. He had accompanied the deceased. He had stayed at the field of accused No.1, when accused No.1 and Hemu had gone to meet the wife. After returning, Hemu had requested the witness not to mention about the incident since Ranchhod was uncle of his wife.
11. Above witnesses were examined primarily to show that on the night of 27.02.2009, the deceased had left home on a Hero Honda Motor Cycle after receiving a phone call. When the family members tried to reach him out later at night, he did not respond to the phone calls. Later on, the dead body of Hemu was found from a dry well in the Limbdi Mahajan ni Wadi Village Sangadhra on 05.03.2009. Khimjibhai had seen the movement of accused No. 1 and two juvenile accused around the same time in the said area.
12. One Harishchandrasinh Jitendrasinh Rahtod, P.W 13, Exh. 44, an employee of Idea Mobile Company, was examined to bring on record call details of the telephone numbers of accused No.1 as well as the deceased. He deposed that mobile No. 9714555243 was registered in the name of father of accused No.1. He produced call details of such phone during the period in question. He also produced call details of the telephone number of the deceased which was 919909489710. Such call details, produced at Exh. 45 and 46, establish that between 26.02.2009 and 27.02.2009, there were, as many as 8 phone calls exchanged between the said two numbers. Call details of both numbers confirmed and correspond to such fact. Last of the calls was made at 9.33 p.m. on 27.02.2009. It was the call made from the phone of accused No.1 to the deceased. Shortly before that, a call was made from the number of the deceased to that of accused No.1 at 8.12 p.m.
13. One Fezan Yunusbhai Kargatra, P.W. 17, Exh. 53 was the owner of a mobile shop in village Sangadhra. He was dealing in buying and selling mobile phones. He had purchased one mobile phone from Ashok (the juvenile accused) and given another phone in exchange. Such mobile phone purchased by him was sold to one Vinubhai Ranabhai for Rs. 1100/-. According to the prosecution, this was the phone of the deceased which was given to the juvenile accused after death of the deceased.
14. Dr. Hetalkumar Chhaganbhai Kachad, P.W. 12, Exh 39 was the one, who had carried out postmortem of the dead body. He was working in the Forensic Medicine Division of Rajkot Medical College. He had carried out postmortem on 06.03.2009. He had found the body decomposed. Upon the internal examination, he found that all the body parts had rotted to such an extent that they could not be recognized. In his opinion, the death would have occurred 5-10 days before the date of the postmortem. He was unable to give any definite information on the cause of the death. He had not noticed any external injuries. These details he had also mentioned in his postmortem report, Exh. 40.
15. We may now refer to various recoveries and discoveries made by the Investigating Agency.
15.1 The place of the incident was recorded in panchnama Exh. 14. The panch witness, P.W. 1, Exh. 13 narrated the manner, in which, various articles were recovered. The panchnama records that the dead body was pulled out from the well. It was lying in a cavity inside the dry well. The blood stained soil, the control sample of the soil etc were sealed.
15.2 The inquest panchnama, Exh 16, was produced by panch witness Mahadevbhai Prabhubhai, P.W. 2, Exh 15. It recorded that the body was highly decomposed and the skin was eaten away by insects at various places.
15.3 The shirt of the deceased worn at the time of the incident was discovered at the instance of accused No.1 under panchnama Exh. 24. The panchwitness Hamirbhai Babubhai, P.W. 5, Exh 23 supported the prosecution. The panchnama records that the accused volunteered to show the place where the actual murder had taken place. After drawing preliminary panchnama, the accused, the police officials and the panch-witness traveled in the police vehicle, as was directed by the accused. He stopped the vehicle on the hedge of a field near bunch of babool trees, where the deceased was brought on the motor cycle after which two knife blows were given. The dead body was, thereafter, carried on a motor cycle with the help of the juvenile accused. He, thereafter, showed a place where the motor cycle was stopped because it could not go any further, where the shirt of the deceased had come off which was hidden by the accused under stones, which was taken out. It was found covered with blood and showed cut marks at two places. The body was, thereafter, carried and later, dragged from where one metal ring was found. In the last portion before the well where body was eventually found, marks of dragging of the body could be seen. The body was lowered in the well with the ropes and hidden by accused No.1 in the cavity of the well.
16. It is true that many portions of this panchnama would not be covered under Section 27 of the Evidence Act and therefore, not admissible in evidence. However, for the limited purpose of accused No.1 showing shirt of the deceased which had hidden under the stones, it can be treated as discovery panchnama and would, therefore, be relevant.
17. The motor cycle of the deceased was discovered at the instance of accused No.1 under discovery panchnama Exh. 26. The panchwitness, Chamanbhai Chhaganbhai, P.W. 6, Exh 25 supported the prosecution. The panchnama records that the accused volunteered to show the place where the motor cycle was thrown in the well and drawing such a preliminary panchnama, the panch-witness, the accused and the police party set out in a police vehicle. As was directed by the accused, the jeep was taken on a kutcha road going towards village Sangadhra near a river next to a crematorium. The jeep was stopped in a field. There they walked towards an open well, where, according to the accused, the motor cycle was brought and thrown in the well with the help of juvenile accused. The police thereupon summoned the help of people knowing swimming. They searched out a black coloured Hero Honda Splender which had a registration No. GJ 13 K 4520. The seat cover was sent for forensic analysis. The panchnama records that the well had depth of about 25 ft and had a water column of 21 ft. Sample of water from the well was also collected.
18. Under panchnama Exh 28, the murder weapon, knife, ropes used for lowering the dead body in the well and the clothes worn by the accused at the time of the incident were discovered. The panch witness Nathubhai Mangubhai Zala, P.W. 7, Exh 27 supported the prosecution. The panchnama records that after the said accused volunteered to show the places where such articles were hidden and a preliminary panchnama was drawn, the police, panch and the accused set out in the police car. It was directed by the accused. The vehicle was taken towards village Dadhoria on a kutcha road. They travelled for about 3 kms. After stopping the vehicle there, they had walked for about 50 meter and came to a hut made of straw, which was in the field of the father of accused No.1. From the roof of the hut under the straw, the accused took out a knife which was hidden there. From near the hut, two ropes of 30 ft and 14 ½ ft used for lowering the dead body and used by accused No.1 for going in the well and coming out, were recovered. From inside the hut blue coloured shirt worn by the accused at the time of the incident was recovered. From behind the hut under a grass his Nokia mobile phone was recovered. At a little distance away from the hut, from the rip plantation his motor cycle, which was hidden there, was recovered.
19. We may now refer to the forensic evidence. Various articles, recovered during the course of the investigation, sent for forensic analysis. The FSL report, Exh 86 and serological report, Exh 91 confirmd presence of human blood on various items. The combined reading of these two reports would establish that, from the soil of the well, from where the dead body was found, human blood was detected. From the pant of the accused, which was recovered at the time of his arrest, also human blood was found. From the shirt of the accused, which was recovered from the hut under the discovery panchnama, also human blood was found. From the shirt of the deceased, which had come off while the dead body was being shifted which was discovered at the instance of the accused, also human blood was found. From the seat of the motor cycle of the deceased, which was thrown in the well, human blood was found. From the knife, discovered at the instance of the accused, human blood was found. From the ropes, discovered at the instance of the accused, one of them showed the presence of human blood. The blood samples of all these articles contained blood of Group A, that of the deceased.
20. For the purpose of identification of the deceased, the investigating agency had extracted a tooth from the dead body. Such tooth was sent for DNA testing. The report of the FSL laboratory, Gandhinagar was produced at Exh. 74. The conclusion was that result of DNA profiling pattern of the death was preserved in the laboratory for future comparison with reference blood samples on availability.
21. From the evidence on record, one thing clearly emerges is that deceased Hemu was killed around the night of 27.02.2009 and his dead body thrown in a dry well. To prevent easy detection, it was hidden in a cavity inside such well. Such body was found on 05.03.2009 when foul smell started coming from the well. Learned counsel, Mr. Saiyed vehemently contended that the dead body was not identifiable. One therefore cannot be certain that the body found from the well was that of the deceased Hemu. From the evidence on record, however, we have no difficulty in discarding such contention. The dead body was identified by uncle of the deceased in the inquest panchnama, Exh 16, from the pant, shawl and the body. Uncle Savjibhai Popatbhai, P.W. 19, Exh 55 also deposed before the Court that he had identified the body. When he had seen the body, the dead person was wearing black pant. This deposition was not challenged by the prosecution. Even the father of the deceased, Dinesbhai Virjibhai, P.W. 14, Exh 47 had identified ring and clothes of the deceased before the Court. Thus, even though, by the time, the body was found, it was highly decomposed, identification could be made from the clothes worn by the deceased. Such identification was never seriously questioned.
22. Before coming to the other aspects of the matter, we may recall that the tooth was extracted and sent for DNA profiling. The FSL, Gandhinagar, obviously could do nothing beyond maintaining the DNA profile of the deceased on the basis of such tooth. It had no sample to match and opine whether the DNA profiles of both the samples match or not. We wonder whether the blood found from various articles such as the murder weapon and the clothes of the accused, could not have been used for matching the DNA profiling of the deceased. This would immediately establish that the blood found from such articles was that of the deceased and no one else. Further, we also wonder whether from the DNA profile of the father, the paternity could have been established. We do not know whether the mother was alive or not but surely the father's DNA could have been used to ascertain with scientific certainty that the deceased was the son of the complainant. We wonder why having first extracted the tooth and sent for DNA profiling the prosecution did not think for further possibilities. Even if, such idea did not occur to the police authorities, surely the forensic scientist could have suggested such measures.
23. We may now come to the question of the involvement of the two accused. This question would ofcourse be interconnected since the conviction appeal of accused No.1 and the acquittal appeal of State against accused No.2 are both being decided simultaneously. Nevertheless much focus shall have to be on the role of accused No.1, who has been found guilty.
24. It is ofcourse true that the entire case rests on the circumstantial evidence. Whenever the prosecution relies only on circumstances conviction could be handed down only if all circumstances form a complete chain of events which unerringly point only to one fact namely that of the guilty of the accused to the exclusion of all other possibilities. Before referring to the salient circumstances, we may record that it has been duly established that the deceased left home in the night of 27.02.2009 at around 9.30 after receiving a phone call. He went on the Hero Honda Splender Motor Cycle owned by the family. He did not return at night and the family therefore, started searching for him the next day. His dead body was found on 05.03.2009 from a dry deserted well. The deceased had got married only about a fortnight before the incident. His wife had left for the parents house and was residing there when the incident took-place. In between, once as deposed by the friend of the deceased Khimjibhai, P.W. 10, he and the deceased had gone to meet the wife of the deceased. The meeting was arranged by accused No.1. The deceased requested the witness not to mention about it because accused No.1 and the wife of the deceased were related. Thus, the allegation of extra marital relation between accused No. 1 and the wife of the deceased get some credence from the testimony of this witness.
25. We may now refer to some salient circumstances. Murder weapon, knife, was discovered at the instance of the accused No.1 under panchnama Exh 28. This weapon was found hidden on the roof of a shed of the hut in the filed of the father of accused No.1. From nearby the same place, the shirt worn by the accused at the time of the offence was discovered. He had hidden his own motor cycle in the field which was also recovered. The ropes allegedly used for lowering the dead body and also used by the accused for entering the well and getting out of the well after hiding the body were also recovered from the said place hidden behind the hut.
26. The motor cycle of the deceased was discovered under panchnama Exh 26. It was found from another well which was filled with water. The panch witness and police party were led by accused No.1 to a field near a river by the side of a crematorium, where the well was situated. With help of swimmers the police could fish out the motor cycle. The seat cover of the motor cycle which was sent for FSL showed presence of human blood of Group A.
27. The shirt worn by the deceased when he was assaulted came off when the body was being shifted for being thrown in the empty well. Such shirt was hidden by accused no.1 under few stones. The shirt was discovered at the instance of the accused No.1 under panchnama Exh 24.
28. The drag marks of dragging of the body were noticed near the well from where the dead body was found.
29. All these factors unerringly point to the involvement of the accused No.1. To recapitulate the murder weapon, the shirt of the deceased, the motor cycle of the deceased and the ropes used by the accused were all discovered at his instance. His own shirt was also produced by him from the hut situated in the field of his father. All these articles carried human blood of Group A. Not only on the clothes of the deceased but that of the accused i.e. shirt and pant both detected such blood. The murder weapon knife, one of the ropes used and the seat of the motor cycle of the deceased on which motor cycle the body was shifted before being thrown in the well all showed presence of Group A blood. The witnesses had also seen the movement of accused No.1 and the juvenile accused near the same well from where the body was found around the same period.
30. This is thus not a case where on mere recoveries the entire prosecution case rests. This is a case where all important articles have been discovered at the instance of the accused No.1. Such articles showed the presence of human blood of Group A. The genesis of incident was also established. On the night of the incident and also a day prior, there were frequent calls between the accused and the deceased. We have no hesitation in confirming the conviction of the accused No.1.
31. Insofar as accused No.2 is concerned however there is absolutely no evidence to link her with the commission of the crime. Barring conjectures her role has not come on record. Howsoever strong suspicion, it cannot take shape of concrete evidence. In absence of any such evidence conviction of an accused of any offence merely on the basis of suspicion would be simply not permissible. Additionally this being an appeal against acquittal, the presumption of innocence of the accused gets further reinforce. We, therefore, see no scope of allowing the State appeal.
32. In the result, both the appeals are dismissed. R & P may be transmitted to the trial court.
(AKIL KURESHI, J.) Jyoti (R.P.DHOLARIA,J.)