(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1 This appeal arises out of the judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge, Fast Track Court No.4, Baroda, on 22.7.2005 in Sessions Case No.176 and 254 of 2003. The appellants were tried and convicted for the offences punishable under Section 364 read with 120-B and Section 302 read with Sections 147, 148, 149 of the Indian Penal Code and were sentenced to undergo RI for 1 year for the offence under Section 147 of the Indian Penal Code; to undergo RI for 7 years and to pay fine of Rs.1,000/-; in default, to undergo SI for ten days for the offence under Section 364 read with Section 120(B)of the IPC; to undergo RI for 1 year for the offence under Section-148 of the Indian Penal Code and to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default, SI for 10 days for the offence under Section 302 read with Section 149 of the Indian Penal Code. All the sentences were ordered to run concurrently.
2 Brief facts of the prosecution case are that one Gulbaharkhan @ Gulvar Ahmad Sherkhan Pathan was kidnapped by six appellants at about 1.00 p.m. on 30.4.2003 while he was travelling on his motorcycle near Gayatri Steel Gate at Vadodara. As per the prosecution case, he was forcibly kidnapped into an Indica car by six appellants. The car was then seen entering in Graphite Mill Compound at Vadodara and the dead body was found from a room in a building in the Graphite Mill Compound. The hands and legs of the dead body were tied and throat was cut.
The occurrence of kidnapping was claimed to have been seen by witnesses Kadir and Zakir, who in turn informed Irfan and Irfan in turn informed Anisha, who lodged the FIR with the police. On the basis of the said FIR, the police registered an offence and investigated. The police having found sufficient material, filed charge sheet against six accused in the court of the Chief Judicial Magistrate, Vadodara, who in turn committed the case to the Court of Sessions. The charge sheets were filed on piecemeal and, therefore, two committal orders are passed and two Sessions Cases were registered. However, both the sessions cases were tried together and disposed of by a common judgment.
3 The charge was framed against the six accused persons at Exhibit-11 for the offences punishable under Sections 147, 148, 149, 120-B, 364 and 302 read with Section 149 of the Indian Penal Code. The accused persons pleaded not guilty to the charge and claimed to be tried. At the end of the trial, the Trial Court found that the prosecution was successful in establishing the charges and recorded conviction and awarded sentence as stated here-in-above. Hence this appeal.
4 We have heard learned Advocate Mr. Chetan K. Pandya for the appellants and learned APP Mr. L.B.Dabhi for the respondent–State. We have also examined the record and proceedings in the contest of their rival submissions.
5 Learned Advocate Mr. Pandya has raised following main contentions:
i) According to Mr. Pandya, Kadir and Zahir, who claimed to be the eye witnesses to the incident of kidnapping, could not have been witnessed the incident. According to Mr. Pandya, if they were real eye witnesses, in ordinary course, they would have taken some action immediately after seeing the incident, but, they conveniently did nothing, except, claiming to have informed Irfan, Shakil and Gulzar. These three persons, in turn, have informed Anisha, adoptive mother of the deceased, who in turn, went to the police and lodged the FIR. Mr. Pandya submitted that, if, the FIR is seen, it speaks about kidnapping having been done by Dilipbhai, Ashokbhai and one other person. The station diary made based on the observations in the FIR also speaks about only three persons having been involved i.e. Dilip, Ashok and one more person. There is no reference or mention of remaining accused persons having been involved in the act of abduction.
ii) Mr. Pandya submitted further that, if, the evidence as a whole is seen, though, initially, it is indicated that the motorcycle on which the deceased was travelling was left at the place of incident and he was kidnapped in the car, but subsequently it is found that the motorcycle has been discovered from the ravines of river Bukhi near Shastri Bridge after about 17 days. This would again falsify the witnesses Kadir and Zakir who claimed to be the eye witnesses to the incident.
iii) It is also submitted that the story of witness Kadirbhai having seen the car entering in Graphite compound is a concoction. This comes to fore only after the dead body is recovered from Graphite Mill Compound building because it is only thereafter the statement of Kadirbhai is recorded where he claims to have seen the car going to Graphite Mill Compound. On earlier occasion, when he informs Irfan, Shakil or Gulzar about the occurrence, he does not speak anything about the car entering in Graphite Mill compound. Mr. Pandya submitted that had he seen the car entering in Graphite Mill compound and informed about the same to the police, the police would not have been required to search for the dead body at various places and would have searched in Graphite Mill Compound at the first instance and detected the dead body immediately or may be rescued the deceased. Therefore, the story of eye witness Kadir about having seen the car entering in Graphite Mill compound is not trustworthy and it has been wrongly accepted by the Trial Court.
iv) Mr. Pandya then submitted that it has come in evidence of the Police Officer, who recorded the FIR that he had specifically put a question to Anisha that if there was any witness to the incident and she in turn replied in the negative. Therefore, projection of Kadir and Zakir as eye witnesses, is also doubtful.
v) Mr. Pandya submitted that the whole prosecution case is dependent on the question whether Kadir and Zakhir were the eye witnesses to the incident of abduction, and then, any inference is to be drawn about the accused persons having been responsible for the death of the deceased only on the basis that the deceased was last seen in the company of the appellants. Mr. Pandya submitted that, if, the language in the FIR is seen, it is not revealed that, the kidnapping was done with the help of a car. It is also worthy to note that the conduct of Kadir and Zakir is not natural and what they have conveyed to Irfan, Shakil and Gulzar is found to be doubtful about being the correct version and, therefore, it is a matter of doubt whether they could have seen the occurrence.
vi) Mr. Pandya submitted that there is no evidence shown by the prosecution that the murder was seen by any person, but the accused persons are sought to be linked up with the murder only by evidence of Kadir, who claims that he saw the car going in the Graphite Mill compound whereas that part is proved to be an improvement about the version which he has spoken before the Court. Therefore, according to Mr. Pandya that part cannot be accepted as a reliable piece of evidence.
vii) Lastly, Mr. Pandya submitted that there is a statement of enmity between two groups on account of allegation that the accused was taking lead in the post Godhra incident. This provides a motive for the prosecution witnesses to falsely implicate the accused. According to Mr. Pandya, the prosecution story does not prove the involvement of any of the accused in the murder of the deceased and does not establish or prove the involvement of even accused Ashok and Dilip in the act of abduction beyond reasonable doubt, benefit, therefore, may be given to the appellants and the appeal may be allowed.
6 On the other hand, learned APP Mr. Dabhi submitted that the incident occurred around the time when the State was charged with post Godhra incident fever. The incident occurred all of a sudden and, therefore, the witnesses would be taken by surprise. They would act differently to the given situation depending upon their personality and merely because the witnesses did not intervene or did not inform the police immediately, would not falsify their version of being eye witnesses to the incident because on the basis of the information passed over by them, the FIR is lodged immediately after the incident about the involvement of the accused persons. Mr. Dabhi submitted that in the FIR it is shown that Ashok and Dilip and others had attacked the deceased. The witness has deposed to involve the rest of the accused persons in the incident and the point canvassed by the learned Advocate for the appellants on this count cannot be accepted.
6.1 Mr. Dabhi submitted that the first informant is an aged lady and not very educated who had lodged the FIR immediately upon learning about the incident of abduction and may have been under psychological shock or pressure and, therefore, the evidence may be appreciated liberally. Mr. Dabhi submitted further that the vehicle in which the incident took place is sought to be brought on the cloud of doubt and it is sought to be argued that the Indica car may not be the vehicle in which the kidnapping took place, but it could be a motorcycle or any other vehicle, which can be used in the abduction. That possibility cannot be ruled out by the evidence of eye witnesses and an attempt is made to interpret the evidence in a technical manner relying on a couple of sentences in the FIR and in the evidence of witnesses. Mr. Dabhi submitted that the occurrence is not denied. As such, in the given set of circumstances, the investigating agency could not have collected better evidence. The Trial Court has examined all these aspects and has recorded the conviction and sentence of the appellants and no interference in the judgment and order of conviction and sentence passed by the Trial Court is warranted.
Mr. Dabhi therefore urged to dismiss the appeal and confirm the judgment and order of conviction and sentence recorded by the Trial Court against the accused.
7 Having scanned the evidence in context of rival submissions, we found that Kadir and Zakir, both claimed to be the eye witnesses to the abduction and according to them the act of abduction was undertaken with the help of an Indica car, in which all six persons along with the person abducted i.e. deceased were travelling, that would make about 7 persons travelling in the car. In this context, the first written version, which has come on record is the FIR, where there is no reference to the Indica car having been used in the act of abduction. On the contrary, simple reading of the averments made in the FIR in respect of the occurrence, makes it possible to interpret that the kidnapping was done with a motorcycle.
7.1 According to witness Kadir, the motorcycle was left at the place of incident i.e. opposite Sayaji Iron company where the said motorcycle has been recovered from the ravine of river Bhukhi after about 17 days. How the motorcycle came there is not established by the prosecution nor it is explained by the prosecution in any manner. Witness Zakir admits that he did not know what happened to the motorcycle.
7.2 It is worthy to note that except the names of Ashok and Dilip, names of none of the appellants was ever given to police or even to the police authority and further the FIR speaks about kidnapping with the motorcycle, it is possible that, the abduction had not occurred in the manner in which it is claimed to have been occurred.
8 The FIR is silent on the question as to which direction or where the abductors took away the victim and in which vehicle. We also found from the evidence that Kadir claims to have seen the Indica car going in the Graphite Mill compound, but he stated this after dead body was found by the police in the building of Graphite Mill compound at about 7.00 p.m on the date of the incident. He has not asserted this in his statement before the police and this aspect has been brought on record.
9 The police upon receiving the information looks for the dead body at various place and in the evening at about 7'O clock inspected the building in the Graphite compound, but what led the police to look for the dead body in the building of Graphite Mill Compound is not coming on record. The room, from which the dead body was found, was bolted from inside and not locked from outside. The police agency has to break open and enter in the room. According to the prosecution, the dead body was found in pool of blood with his throat cut and the hands and legs tied. Then, there is no evidence as to how the dead body was detected by the police and there is no material on record to know, if, there was any mark of violence in the car as it is claimed that the deceased was forcibly abducted by six persons in an Indica car.
10 We have also noticed that there is no evidence to know as to how the dead body came to the Graphite Mill compound building. Persons residing in the vicinity are admitted to have not supported the investigating agency and claimed not to be knowing anything about the dead body. It is left over imagination by the prosecution to know as to how the dead body came into the room which is locked from within when the injuries on the dead body indicate that it is the case of homicidal death as both the hands and legs were tied and the throat was cut.
10.1 The knife which was discovered does not bear any mark of blood. No marks of any injury are found on the person of the accused. No marks of blood are found on the clothes of any of the accused. These are the additional factors which render the prosecution story doubtful. So far as Anisha is concerned, Kadir says that Anisha had known that the deceased was taken to Graphite Mill compound, but Anisha does not say so in her FIR. Had she really known that the deceased was taken to Graphite Mill compound, she could have stated so in the FIR and the police could have looked for the dead body at that place at the first instance itself.
11 The foregoing discussion would clearly indicate that the whole prosecution story is concocted. It is a matter of doubt whether Kadir and Zakir could have seen the incident, as they claimed. There is discrepancy in their evidence about the motorcycle and the vehicle in which the deceased was abducted. Their evidence seems to be not natural, which rules out the involvement of the accused persons in the act of abduction.
12 The situation is still worst to connect the accused with the offence of murder as there is no eye witness to the incident or any material to connect the accused with the offence and the evidence as brought on record is not sufficient to connect the accused with the offence of murder. There are several other possibilities for incident having occurred in a different manner. The appeal, in our view, is thus well founded and deserves to be accepted and the same is accepted.
13 In the result, the appeal is allowed. The impugned judgment and order dated 22.7.2005, rendered in Sessions Case No.176 of 2003 and 254 of 2003, by the learned Addl. Sessions Judge, Fast Track Court No.4, Baroda, recording conviction of the appellants – original accused and sentence awarded to them is set aside and the appellants are acquitted of the charges levelled against them. Appellant No.4 – Dilipbhai Keribhai Thakor – original accused No.4 is in jail, he shall be set at liberty forthwith if not required to be detained in connection with any other offence. Rest of the appellants - accused are on bail, their bail bonds shall stand cancelled. Fine, if any, paid, shall be refunded to them.
(A.L. DAVE, J.) (A.J. DESAI, J.) pnnair