Rafik Ibrahimbhai Notiya (Muslim), appellant of Criminal Appeal No.1742 of 2006 and Nilay @ Nilesh Navinchandra Mehta, appellant of Criminal Appeal No.1461 of 2006, came to be tried by Sessions Court, Surendranagar in Sessions Case No.5 of 2006, for offences punishable under Sections 302, 397, 201 r/w Section 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. They came to be convicted and sentenced as under: The decision was rendered by the Sessions Court on 21/06/2006, which is the subject matter of challenge in these appeals.
2. The prosecution case, in brief, is that two appellants along with one Raju Bhaiya, committed robbery on RajkotLimbdi Highway on 06/04/2005, between 9.00 p.m. and 11.00 p.m. In the robbery, they robbed one Mansurbhai Khumanbhai Kagda, driver of the truck No.GJ1AU1800, a mobile phone of NOKIA Company, his wristwatch and Rs.2,500/ in cash, and in that transaction, they committed murder of Mansurbhai Khumanbhai Kagda by inflicting knife blows on chest and throat. In this context, FIR was lodged by Virdasbhai Naranbhai, owner of the truck with Chotila Police Station and offence came to be registered. The Investigating Agency having found sufficient evidence against the present appellants and absconding accused – Raju Bhaiya, filed chargesheet against the appellants in the Court of learned JMFC, Chotila, who in turn, committed the case to the Sessions Court, Surendranagar and Sessions Case No.5 of 2006 came to be registered.
2.1 Charge was framed against the present two appellants by the Sessions Court at Exh.6 for offences punishable under Sections 302, 397, 201 read with Section 114 of the IPC and Section 135 of the Bombay Police Act. The accused persons pleaded not guilty to the charge and claimed to be tried.
2.2 After considering the evidence led by the prosecution, the trial Court found that the prosecution was successful in establishing the charges levelled against the appellants and, therefore, recorded conviction. Hence these appeals.
3. Rafik Ibrahimbhai Notiya (Muslim) appellant of Criminal Appeal No.1742 of 2006 was the accused No.1 and Nilay @ Nilesh Navinchandra Mehta, appellant of Criminal Appeal No.1461 of 2006 was the accused No.2 before the trial Court. Since these two appeals arise out of the same judgment and order, they are heard together and are disposed of by this common judgment and for sake of convenience, the appellants are referred to by their original status as accused Nos.1 and 2 respectively.
3.1 Incidentally, it may be recorded that appellant Rafik Ibrahimbhai Notiya (Muslim) also preferred Criminal Appeal No.1228 of 2007 which came to be withdrawn on 12/09/2012, without entering into merits.
4. We have heard learned Advocate Mr.Shirish Tolia appearing with Mr.K I Kazi, for the appellants and learned APP, Mr.Pandya, for the State.
5. Learned Advocate, Mr.Tolia submitted that the prosecution case depended on circumstantial evidence only. There is no direct evidence to connect the accused with the offence and the trial Court has believed the circumstantial evidence led by the prosecution to be sufficient to connect the accused with the crime. According to Mr.Tolia, the evidence led by the prosecution does not complete a chain of circumstances connecting the accused with the offence for several reasons.
6. Narrating those reasons, Mr.Tolia submitted that there is no evidence worth a name to show that either of the accused were in proximity of time and place of incident. He submitted that there is no eye witness to the incident; there is no evidence indicating that the accused were seen last in company of the deceased; nor is there any confession made by the accused. Mr.Tolia submitted that the prosecution has led evidence about recovery of mobile phone from one Lalji, who claims that he purchased the phone from one witness – Kalpesh, who, in turn, says that said mobile phone was sold to him by A1 Rafik. The prosecution has tried to prove that the said mobile phone was in possession of the deceased at the time of the incident, as the same was given to him by his employer – Ranjitbhai Virchandbhai, and to prove that, bills of the mobile phone and SIM card have been produced by the prosecution through said witness – Ranjitbhai. In addition, there is evidence in the nature of discovery of clothes and knife by A1. The clothes do contain blood marks, but not of the group of the deceased or accused. Mr.Tolia submitted that so far as discovery of knife is concerned, it is sought to be proved through Panch Witnesses and it is sought to be proved that the said knife was used in commission of crime, as the same was stained with blood of the group of the deceased by producing the FSL Report. Mr.Tolia submitted that the evidence in this context is inconsistent and raises doubt about the nature of investigation.
6.1 So far as the prosecution case in respect of A2 is concerned, it is about recovery of wristwatch, allegedly possessed by the deceased at the time of the incident. The said watch was recovered from witness Ghanshyam, who says that the said watch was exchanged by A2, Nilesh. The prosecution case is that the knife, which was discovered by A1, was in fact used by A2, but for that purpose there is no evidence.
6.2 Mr.Tolia submitted that human hair have been found from the grip of the fist of the dead body, but they are not identified to be that of either of the accused. Necessarily, therefore, the possibility of involvement of persons other than the accused is not ruled out. Mr.Tolia submitted that these defects in the prosecution case; the prosecution story about discovery of mobile phone, wristwatch, clothes and hair, cannot be considered to be sufficient to connect the accused with the offence. The conviction, may therefore, be set aside and the appellant may be set at liberty forthwith.
7. On the other hand, learned APP, has tried to establish that there is no discrepancy in the evidence led by the prosecution, either as to arrest of accused No.1, or as to recovery or discovery of mobile phone, it's identity, recovery of knife, etc. It is clearly established that witness – Kalpesh knew A1 prior to the incident, as A1 used to go to his shop often. A1 sold the telephone to him is also established through evidence of Kalpesh and that upon telephoning by Kalpesh, police came and arrested A1 is also established. The discovery of mobile phone from A1 is established through this evidence and the fact that the said mobile phone was with the deceased is established through evidence of Ranjitbhai. The defence has not explained as to how A1 came into possession of that mobile phone and, therefore, necessary inference is that lastly A1 robbed the deceased of the said mobile phone. Mr.Pandya submitted that similarly so far as wristwatch is concerned, it's identity is properly established and there is evidence on record to show that the said watch was exchanged by A2 with Ghanshyambhai and, therefore, his involvement in the offence is also established. The trial Court has properly appreciated the evidence and has recorded conviction and, therefore, this Court may not exercise its appellate jurisdiction and upset the judgment and order impugned in these appeals. He submitted that the appeals may, therefore, be dismissed.
8. We have examined the record and proceedings in context of rival submissions and we find that there is no direct or indirect evidence led by the prosecution to show presence of either A1 or A2 in proximity of time and place of the incident. The only evidence that is led by the prosecution is A1 being in possession of the mobile phone alleged to be in possessions of the deceased at the time of incident and A2 being in possession of the wristwatch, muddamal article No.6, which was also in possession of the deceased around the time of the incident.
8.1 Apart from above, there is evidence in form of discovery of knife allegedly used by A2 and discovery of clothes allegedly worn by A1 at the time of incident. Both these discoveries are effected jointly by both the accused under a Panchnama drawn under Section 27 of the Evidence Act.
8.2 A TI parade was also conducted to establish the identity of A1. Necessarily, meaning thereby that when Kalpesh informed about A1 having sold the mobile phone, Kalpesh did not know A1 by name. The TI parade is conducted by Executive Magistrate, but the evidence led by the prosecution in this context also requires to be scrutinized and commented upon, which we propose to do in the paragraphs to follow.
9. The first and foremost factor which we are unable to reconcile from the evidence led by the prosecution is as to how A1 came to be arrested.
9.1 In this context, evidence of Kalpesh examined at Exh.40 is relevant. He says that A1 used to come to his shop often and he had sold this mobile phone to him for Rs.1,700/ which he (Kalpesh) sold to witness – Lalji (Exh.45) for Rs.2,400/. Lalji had disclosed this fact before the Investigating Officer and, therefore, the Investigating Officer interrogated Kalpesh and from his disclosure, it was found that phone was sold to him by an unknown person. This aspect is clear from the evidence of Investigating Officer, Shri Amrutya, examined at Exh.90.
Thereafter, Kalpesh was asked that if that man comes to his shop, he should inform Police. Kalpesh then goes to depose that after about one month from the date of incident, A1 came to his shop to sell another phone and he purchased a third phone. He somehow dodged him. Upon his informing Police, Police Officers Mr.Rana and Mr.Anupariya came and arrested A 1. Halting here for a while, if we go to the deposition of ASI, Mr.Rana (Exh.44), he has deposed that under the instructions of SP, they had arranged a watch at about 9:00 a.m., on 13/07/2005 near Hutch Tele shop in Bhaktinagar Circle Area of Rajkot, there a person was found making suspicious movement and was, therefore, interrogated and he disclosed his name to be Farook Ibrahim. The said Farook was apprehended, taken to Surendranagar and interrogated. The said person was A1, according to witness – Rana. Apart from the fact that the name of A1 as is emerging from this evidence, defers from what the name of the accused emerges is that according to this witness, A1 was arrested upon a watch being arranged under the instructions of SP that a man is likely to come at Hutch Tele shop for selling a mobile phone and on finding a person moving in suspicious circumstances, he came to be interrogated and apprehended. There is no reference to any telephonic call being made by witness – Kalpesh or any reference even to presence of Kalpesh at the time of arrest of A1.
10. Apart from this, if the evidence of Investigating Officer Mr.Vala, examined at Exh.74, is seen, he has stated that when he learnt about ASI Ranjitsinh Rana having arrested accused – Rafik, he went to Surendranagar and recorded statement of Ranjitsinh and Police Constable Karamsinhbhai and then he informed witness Kalpesh that TI parade of A1 is to be held. Now, therefore, if the arrest of the accused is effected at the instance of Kalpesh in his presence at his shop, as he claims to have happened, there was no question of the Investigating Officer conducting the TI parade. Similarly, if the Kalpesh had known A1 by name, as he claims in his examination in chief, there was no question of holding a TI parade.
11. Now, if the evidence as to TI parade is seen, which is sought to be used for fixing the identity of the person who sold a mobile phone, it is clear from evidence of Kalpesh (Exh.40) where he admits during his crossexamination that before TI parade was held, he was called at the Police Station where A1 was present. He, therefore, had a chance to see A1 before identifying A1 in the TI parade. Identification of A1 by witness – Kalpesh in the TI parade, therefore, gets vitiated.
12. The next piece of evidence that is sought to be used against A1 is the mobile phone. Just as the evidence about identity of A1,having sold the mobile phone to Kalpesh, is shaky, the evidence as to identity of mobile phone is also shaky. The evidence led by the prosecution is in form of deposition of Ranjitbhai Vanjara (Exh.81). According to him, he is the employer of the deceased, owner of the truck. He had given the mobile phone to the deceased along with SIM card. He said that he had purchased such mobile phones for giving it to his employees and he purchased about 10 mobile phones at a time. He has produced bills to show the purchase. Further, during cross examination, he admits that there are no corresponding entries in the books of account about the purchase of the mobile phones or the SIM cards. His say, therefore, is not supported by his own contemporaneous record though he has produced bills.
13. It is further required to be noted that so far as identity of mobile phone is concerned, none of the persons, who had handled the phone viz., Kalpesh or Lalji (Exh.40 and 45 respectively) is able to assert that muddamal article No.5 is the mobile phone which was sold by Rafik to Kalpesh and, in turn, Kalpesh to Lalji. All that they have deposed is that, it was the same type of phone, but then they have admitted in crossexamination that they are not sure that this is the phone. The only piece of evidence therefore that is sought to be pressed in service by prosecution is the IMEI number of the mobile phone which is found to be the same as recorded in the Panchnama and evidence of Ranjit Vanjara, but that piece of evidence in isolation will not connect the accused with the offence. All that can be said to have been established is that this is the phone, which was given by Ranjit Vanjara to the deceased and which has been recovered by Police from Lalji. The factum of Lalji having come into possession of the phone from Kalpesh and Kalpesh having come into possession of it from A1, still remains doubtful and, therefore, the link is not established.
14. The next piece of evidence is of joint discovery of clothes by A1 and A2. The clothes were found bearing bloodstains, but the blood group is not that of the deceased, or A1 or A2. This discovery therefore, does not advance the prosecution case any further, apart from the joint discovery by two accused being not legal.
15. Similarly, the accused persons are alleged to have discovered a knife, allegedly used by A2 in commission of the crime. The discovery Panchnama (Exh.32) would go to show that the size of the knife, which was discovered, was 15" in all and the blade size was 10" and there were stains similar to blood stains on the blade. As per the prosecution case, the said knife was sent to FSL for examination and the FSL Report (Exh.77) would go to show that the knife carried bloodstains of the group of the deceased, but a close scrutiny of these two documents would also indicate that the knife, which was examined by the FSL and found to carry blood of the group of the deceased, is not the knife which is allegedly discovered by the accused persons, because the size of the blade of that knife was 13 CM, whereas, size of the blade of the knife discovered was 10", which would be about 25 CM.
The attempt on the part of the prosecution, therefore, to prove that the offence was committed by A2 with the help of muddamal knife, stands disproved by its own evidence. We have no report from the FSL that the knife, which was discovered allegedly by the accused, carried any blood marks and the knife which is certified to be carrying blood marks is not the knife which is allegedly discovered by the accused persons. Apart from the fact that this aspect disproves the prosecution case, to an extent it reflects seriously on the quality of investigation.
16. The prosecution has then proceeded to canvass that involvement of A2 is proved by the fact that he was in possession of wristwatch which was worn by the deceased around the time of the incident. In this context, the prosecution has examined Ghanshyambhai (Exh.46). According to this witness, A2 had exchanged his wristwatch with this witness about two to two and half months prior to the day on which A2 was brought before him i.e. on 20/07/2005 and he identified the said watch to be muddamal article No.6. During cross examination, he admits that many such watches are available in the open market, there is no specific identification mark and he cannot say with certainty that this was a very watch which was given to him by A2.
16.1 It may also be recorded at this stage that the first informant never pleaded a case that the watch was missing. It was contended by learned APP that the FIR was for the case of murder and not for theft. It can certainly be appreciated if the FIR was only for murder, but here the FIR was for robbery with murder and, therefore, what property was lost was expected to be noticed and informed to the Investigating Agency. In absence of such material, we have no reason to believe that the deceased was in fact having this watch at the time of occurrence and with scanty evidence of Ghanshyam, who is not able to identify with certainty that the muddamal article is the watch which was given to him by A2, A2 could not have been roped into the incident.
17. The next aspect is that if the Inquest Panchnama is seen, human hair were found to have been gripped in the palm of the dead body. The same had been sent to FSL for examination, along with hair of A1 and A2, and it emerges that hair which were found from the palm of the dead body were not either of A1 or A2. This evidence therefore fails to establish involvement of either A1 or A2. We do not have any admissible evidence on record as to what led to arrest of A2.
18. The foregoing discussion would show that the trial Court has overlooked the fact that the evidence led by the prosecution is incomplete and scanty. It does not complete the chain to connect the accused with the offence leaving no scope for hypothesis of innocence of accused. The circumstances do not establish with certainty that the accused and the accused alone could have committed this crime. The conviction, therefore, cannot be permitted to stand.
19. In the result, both the appeals are allowed. The judgment and order of conviction and sentence rendered in Sessions Case No.5 of 2006 on 21/06/2006 by the learned Additional Sessions Judge, Fast Track Court No.3, Surendranagar is set aside. The appellants are acquitted of all the charges levelled against them.
20. The org. accused No.1Rafik Ibrahimbhai Notiya (Muslim) (Appellant of Criminal Appeal No.1742 of 2006) is on bail, his bail bond shall stand cancelled. Since the org. accused No.2 – Nilay @ Nilesh Navinchandra Mehta (Appellant of Criminal Appeal No.1461 of 2006) is in jail, he be set at liberty forthwith, if not required in any other case. Fine, if paid by the appellants, is ordered to be refunded to them.
(A L DAVE, J.) (PARESH UPADHYAY, J.) sompura