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PETITIONER: RAMESH BABULAL DOSHI

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT:       02/05/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) KURDUKAR S.P. (J)

CITATION:  1996 AIR 2035            JT 1996 (6)    79  1996 SCALE  (4)185

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.M. MUKHERJEE, J.      This appeal  under  Section  379  Cr.P.C.  is  directed against the  judgment dated  October 15/16, 1987 rendered by the Gujarat  High Court  in Criminal  Appeal No. 746 of 1981 whereby it  reversed the  acquittal of  the appellant of the charges under  Sections 302,  201, 212, 364, 365 and 397 IPC recorded in  his favour  by the  Sessions Judge,  Surat  and convicted and  sentenced him  under Section 302 and 201 IPC, while upholding  the acquittal  of  three  others  who  were arraigned with him. 2.   The prosecution  case, so  far as  it is  relevant  for disposal of this appeal, is as under: (a)  Khodabhai Amarshi  Patel (the  deceased) used to reside in the  city of  Surat along with his wife Raiben (PW 2) and two children and carry on business in diamonds. On September 2, 1980 (which was the Janmastami day) he left his residence in the  morning with  a packet containing diamonds worth Rs. 60,000/- after informing  his wife that a person was waiting for him  in the  market. As  he had not returned home till 3 P.M. his  wife requested  Shamjibhai  Manjibhai  (P.W.8)  to enquire of  his whereabouts.  Shamjibhai first  went to  the office of  Gordhanbbhai  Patel  (P.W.1),  a  cousin  of  the deceased,  where   he  found  Manjibhai  Devjibhai  (PW  10) sitting. He  (PW 10) disclosed that at noon time he had seen the deceased  near the  market, sitting  on the pillion of a scooter which  was being  driven by  Ramesh (the appellant). They then  went in  search of the deceased in the market and other  places  but  could  not  trace  him  out.  Ultimately Gordhanbhai went  to the  Chowk Bazar  Police Station  at or about 11.45 P.M. and lodged a missing information (Ext. 63). (b)  In the  meantime, some  people of  Patel community,  to which the  deceased belonged,  having  learnt  that  he  was missing also  started searching  for him.  In course  of the search some of them went to the flat of the appellant, which

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was on  the fourth  floor of a building named ‘Yagnapurush’, at Rampura.  On their query the appellant informed them that along with  the deceased  he  had  gone  to  the  office  of Jayantibhai Master  to show  him some  diamonds but  as  his office was closed they came back and on the way the deceased got down at Rampura.      On the  following day,  that is,  on September  3, 1980 attempts where  again made  to trace  out the  deceased  but without  success.   However,  in   course  of   the   search Gordhanbhai learnt  from Mukesh  Chandra Maganlal Parekh (PW 9) that  on the  previous day at or about 1 P.M. he had also seen the  deceased going towards Athwa with the appellant on a scooter. Gordhanbhai then went to the police station at or about 11.30  P.M. and  lodged a  formal complaint  (Ext. 14) alleging that  the appellant  had kidnapped  the deceased to grab the  diamonds he  was having with him. Police Inspector Chandravadan  Himatlal   Jaiswal  (P.W.31)   recorded   that information and registered a case thereupon. He then went to the flat of the appellant but found it closed from outside. (d)  As the  appellant was  not traceable  on the  next  day (September  4,   1980)  also   Sri  Jaiswal  started  making enquiries about  his relatives  including his brother-in-law R.  R.   Seth  who   was  residing  at  Shrinath  Apartment, Timeliswad, Nanpura.  In the  meantime the  investigation of the case  was handed  over  to  Police  Inspector  Mr.  A.N. Vaghela (P.W.43). (e)  After  taking  over  investigation  Inspector  Vaghela, alongwith R.R.  Seth and  panchas went  to his (appellant’s) flat in the early hours of September 5, 1981 only to find it still locked.  After breaking  open the lock he searched the flat but found nothing incriminating except a pair of blood- stained trousers  (Art. No.1)  hanging from  a peg  which he seized under a panchnama (Ex.53). After completion of search he locked the apartment and handed over the key to Sri Seth. (f)  On the  same day,  at or  about 2.00  P.M. he (P.W.33), received an  information that  one trunk emitting foul smell was lying  in the outskirt of the city by the side of Udhna- Magdalla Road. He therefore left for that place and reaching there found  a trunk  (Art.2) lying in a bush, at a distance of 10 feet from the road. He broke open the lock in presence of panchas  and   therein saw  a decomposed  body tied  with string. He  held inquest  upon the  dead body  and  got  its photographs taken.  He then  sent the dead body to the Civil Hospital for  post-mortem examination. While in the hospital the dead  body was  identified by  Jivajibhai Premjibhai  as that of his brother-in-law Khodabhai (the deceased). (g)  In that  night Bhupendrabhai Chunilal (since acquitted) was arrested  but as  the appellant  could not be  traced in Surat, Sub-Inspector Devkar  (P.W.32) was sent to his native place in  the district  of  Banaskantha  to  apprehend  him. Ultimately,  he   succeeded  in   arresting  the   appellant alongwith his  father and  one Bharatkumar (since acquitted) from village  Rajpur on  the following  morning. On search a packet containing  diamonds was  found in  the pocket of the trousers the appellant was wearing. (g)  On September  9, 1980 Mr. Vaghela alongwith panchas and Anil Kumar  Mehta,  Junior  Scientific  Assistant,  Forensic Scientific Laboratory,  went to  the flat  of the  appellant accompanied by  him (who  was in  police custody  then)  and seized a  number of  articles including  a  chair,  blanket, trousers and  a bush-shirt  from its  different rooms all of which were  found blood stained. Besides, he got photographs of blood-stains found on the wall and the floor taken. (h)  On  completion   of   investigation   chargesheet   was submitted  against   the  four   persons   arrested   during

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investigation, including  the appellant,  and in  due course the case was committed to the Court of Session. 3.   The  appellant   pleaded  not  guilty  to  the  charges levelled  against   him  and  contended  that  he  had  been implicated in the case on mere suspicion. 4.   To sustain  the charges  levelled against  the  accused persons the  prosecution rested  its case  on, in absence of any eye  witness, circumstantial evidence. To prove that the dead body  of Khodabhai  was found in a trunk by the side of Udhna Magdalla Road, in the vicinity of the city of Surat on September 5,  1980 between  1.30 and  2 P.M.  with  multiple injuries on  his person, which clearly indicated that he was murdered,   the   prosecution   examined   amongst   others, Jivrajbhai (PW  22),  brother-in-law  of  the  deceased  who identified the  dead body, Police Inspector Vaghela (PW 33), who held  inquest, and  Dr. Singal  (PW 17)  who  held  post mortem examination  thereupon. We  need not, however, detail or discuss  their evidence as the concurrent findings of the learned Courts  below in  this regard  is  based  on  proper appreciation of  the evidence.  Indeed,  this  part  of  the prosecution case was not challenged by the defence. 5.   That brings  us to  the crucial  question  whether  the prosecution has  succeeded in  conclusively proving that the appellant committed  the murder  and then  removed the  dead body at  the place where it was found to screen himself from legal punishment.  To bring  home the  above accusations the prosecution relied upon the following circumstances: (i)  The appellant,  who also  dealt in  diamonds,  and  the deceased were  seen moving  on a scooter between 12 noon and 1.30 P.M. on September 2, 1980; (ii) Thereafter, on  the same day, between 1.30 P.M. to 1.45 P.M. the deceased was seen talking with the appellant in his (appellant’s) flat,  on the  fourth floor  of  the  building ‘Yaganapurush’; (iii)     On following  morning, (at  or about  7.30 A.M. on September 3,  1980) the  appellant was  seen  going  out  of ‘Yagnapurush’ along with others with a trunk (Article No.2), in  which  the  dead  body  of  Khadabhai  was  subsequently recovered on September 5, 1980; (iv) In the  night between  September 4/5,  1980 a  pair  of blood-stained trousers  (Article No.  1) was seized from the flat of the appellant; (v)  Diamonds  (Article   No.8)   worth   Rs.63,000/-   were recovered from  the pocket of the trousers the appellant was wearing at the time of his arrest on September 7, 1980; (vi) Some of  the articles that were seized from the flat of the appellant in the morning of September 9, 1980 were found to contain human blood of Group A, which was the blood group of the deceased also; and (vii)     A piece  of string  which was also seized from the flat of  the appellant  on September  9, 1980 was similar to the string  with which  the deadbody  of Khodabhai was found tied. 6.   The trial  Court discussed  the evidence adduced by the prosecution in support of each of the above circumstances at great length  (the judgment runs through 178 pages) and held that the  prosecution could not satisfactorily prove any one of them.  In setting aside the above judgment and convicting the  appellant   the  High   Court  recorded  the  following findings:      "In  our   view,   therefore,   the      prosecution   has   proved   beyond      reasonable doubt  that the  accused      and deceased  were seen together on      a  scooter  on  2.9.80.  Thereafter

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    they were  seen  in  the  block  of      accused No.1  at 1.30  p.m. Accused      No. 1  was seen  panicky  at  about      4.00 to  4.30 p.m.  On the next day      i.e. on  3rd  September,  1980  the      accused along  with  other  persons      was seen  going with  metallic  box      similar to  article No.2  in  which      the  dead  body  of  Khodabhai  was      found. The  box was  lifted by  two      persons i.e. one handle was held by      accused No.1  and other was held by      an other person. From the apartment      of accused  No.1 number of articles      as stated  above  containing  human      blood group A were found. The blood      of the  deceased Khodabhai  is also      A.  These   circumstances,  in  our      view, prove beyond reasonable doubt      that   the    accused   No.1   (the      appellant)  is   guilty   for   the      offence punishable  under  Sections      302 and  201 of  the  Indian  Penal      Code." 7.   Before proceeding  further  it  will  be  pertinent  to mention that  the entire  approach  of  the  High  Court  in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed  with the  trial Court for recording the order of acquittal  were proper  or not.  Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive  at the  above quoted  conclusions. This Court has repeatedly laid  down that  the mere  fact that a view other than the  one taken  by the  trial Court can be legitimately arrived at  by the  appellate Court  on reappraisal  of  the evidence cannot  constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to  the conclusion that  the entire  approach of  the trial Court in dealing with  the  evidence  was  patently  illegal  or  the conclusions arrived  at by it were wholly   untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of  the trial  Court are palpably wrong, manifestly erroneous or  demonstrably unsustainable.  If the  appellant Court answers  the above  question in the negative the order of acquittal  is not  to be  disturbed. Conversely,  if  the appellant Court  holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the  above infirmities  it can  then -  and then  only  - reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether  the  findings  of  the  trial  Court  are sustainable or not. 8.   Of  the  various  incriminating  circumstances  alleged against the  appellant (detailed  earlier) the  two which in our opinion,  are clinching  are circumstances No. (iii) and (vi). To  prove the  former the  prosecution relied upon the evidence of  Dahyabhai  Ratanji  (P.W.3),  the  watchman  of ‘Yagnapurush’,  and   Dhirubhai  Babulal  Shah  (P.W.4)  and Smitaben (P.W.6),  residents of that building. P.W.3 deposed that on  September 3, 1980 at or about 7.30 A.M. he had seen the appellant  going upstairs  alongwith another  man and  a little later  saw them  coming down the staircase with a big trunk wherefrom  blood coloured drops were trickling and the younger brother  of the  appellant (since  acquitted) wiping

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out the  steps of the staircase to remove those drops. After going out  of the  building they talked to a person standing by the side of rickshaw stationed nearby. One or two minutes thereafter that  person left the place with the rickshaw and then the  appellant and  others proceeded  ahead. PW  3 next stated that  a little  later he  had asked Dhirubhai Babulal Shah (P.W.4),  as to why those persons had come at that time to which  Dhirubhai’s answer  was that as he was sleeping he did not know anything. In cross-examination he admitted that till his  statement was  recorded by the police on September 7, 1980  he had not disclosed to anybody what he had seen in the morning  of September  3, 1980. He further admitted that though in  the evening  of ‘third’  (obviously referring  to September 3,  1980) and  also in  the night  of September 3, 1980 police officers and other persons had come in search of the appellant and had remained in his flat for some time and that though  at that  time he  know that  the appellant  was involved in  the offence  he did not speak to them about the appellant’s movement that morning. According to PW 3 he went to the police station on September 6, 1980 on being summoned by them and was detained there from 12 noon of that day till 1.00 A.M.  on the  following day, when he was released after his statement  was recorded.  He  also  admitted  that  even though Nathubhai had earlier asked him of the whereabouts of the appellant  he did  not tell him anything. In view of the answers so given by him in cross-examination the trial Court observed that  it was difficult to believe that if really he had seen  Ramesh going  down the  building with the trunk on September 3,  1980 he  would not  disclose the  same to  the police and  other people  who had been coming to the flat of the appellant since the night of September 2, 1980 in search of the  appellant, more  so when he was the watchman of that building. It further observed that the fact that he made his disclosure as  late as  on September  7, 1980,  after he was detained for  13 hours  by the  police, made  his  testimony suspect. For the above reasons the trial Court expressed its inability to rely upon his testimony. 9.   The  trial   Court  next   discussed  the  evidence  of Dhirubhai Babulal  Shah (P.W.4),  resident of  flat No.  28, which is  on the  same floor  as that  of the  appellant. He stated that when he was brushing his teeth while standing in the  gallery   he  saw   the     appellant  talking  with  a rickshawpullar on  the   road in front of the building and a galvanized steel  trunk lying  nearby. Besides the appellant he saw  his younger  brother and some other persons standing there. He  next stated  that a  few minutes later he saw the appellant and  one person  holding the trunk and going away. The trial  Court discussed his evidence at length keeping in view the  various material  contradictions brought on record with reference  to his  statement recorded under Section 161 Cr.P.C. and  concluded that  though right  from September 3, 1980 till  the morning  of September  5, 1980 he had several opportunities to  divulge  what  he  had  seen  he  did  not disclose the same either to the police or the members of the Patel  Community  who  had  come  to    meet  the  appellant suspecting  his   involvement  in   the   disappearance   of Khodabhai.  The  trial  Court  further  noticed  that  PW  4 admitted that  the police  had called  him and several other persons at  the police station on 6th September and detained them in  one room  till the afternoon of 7th September, 1980 when they  were allowed to go after interrogation. The trial Court next observed that PW 4 had also tried to improve upon his police  version, in  view of  the various  contradiction appearing in  the evidence  of this  witness which  had been brought on record. For all these reasons the trial Court did

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not feel  inclined   to rely  upon the same. Similar was the comment by  the trial  Court regarding  the  other  witness, namely, Smitaben  (P.W.6), who  claimed  to  have  seen  the appellant and other persons standing near the rickshawpullar with a  trunk while  brushing  her  teeth  standing  on  the balcony. This  witness also stated that the police had taken her for  recording her  statement between  3.00 P.M. to 4.00 P.M. on  September 6,  1980 and  before that day she did not disclose those facts to the Patels who had come in search of the appellant.  The trial Court also referred to the various material contradictions  brought on record with reference to her statement  recorded  under  Under  Section  161  Cr.P.C. Having carefully  gone through  the evidence  of these three witnesses we  find that  each of  the reasons  given by  the trial Court  for disbelieving  them are  clear,  cogent  and convincing. 10.  While on  this point  we may  refer to another decisive finding recorded by the trial Court which takes the wind out of the  sail of  the prosecution  case. As  already noticed, prosecution sought  to establish  that as  the deceased  was seen alive  and talking  to the  appellant in his flat at or about 1.30  P.M. on September 2, 1980 and the trunk carrying his deadbody was seen being taken out of the building on the following morning  the appellant  must  have  committed  the murder in  his flat  in between  this period. In laying bare the utter  absurdity of  this claim  of the  prosecution the trial Court  first referred  to the  evidence  of  Manjibhai Devjibhai (P.W.10), Savjibhai (P.W.20) and Dahyabhai Ratanji (PW 3),  the watchman, wherein they had claimed to have gone to the  flat of  the appellant to inquire about the deceased and met  him (the appellant) at different hours of the night between September  2 and  3, 1980  and  drew  the  following conclusions:      "Now when the prosecution witnesses      Manjibhai Devjibhai  and  Savjibhai      Naranbhai   were    searching   for      Khodabhai  and  were  Knowing  that      accused No.1  knew about  Khodabhai      and they  had gone  thrice  to  the      flat  of  accused  No.1  and  stood      outside as  they knew  that if they      were to admit that they had entered      the flat  then they  would have  to      further admit  that  they  did  not      find  Art.   No.2   -   the   trunk      containing   the   dead   body   of      Khodabhai in the flat at that time.      But I  do not  think that when they      have gone  thrice to  the  flat  of      accused No.1 Ramesh then they would      not have  entered the flat and that      they would  not have  noticed  Art.      No.2, the  trunk if  it were in the      flat.  Now   the  medical  evidence      shows that the head injury found on      the dead  body of deceased Khodabhi      could be  caused by  hard and blunt      substance and  the  incised  wounds      found on the dead body of Khodabhai      could be  caused  by  sharp-cutting      instrument, and  therefore in order      to cause  head injuries and incised      wounds, hard  blunt  substance  and      sharp-cutting   instruments    were      used. Now  flat No.  29 is situated

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    by the  side of  flat No.  28,  and      flat No. 30 is also situated by the      side of  flat No. 29 and that flats      Nos.  31   and  32   are   situated      opposite to  flats No.  28, 29, and      30 and  that there is a common wall      between flats  Nos, 29  and 30  and      the entrance  door of  flats No. 29      and 30  is falling  on  1-1/2  feet      balcony where  there is  staircase,      and that  opposite  to  Yagnapurush      apartment and  leaving the    road,      there is  industrial apartment. Now      deceased   Khodabhai   would   have      raised    shouts     and    offered      resistance in order to save himself      from  receiving  the  injuries  and      that could  have been  heard by the      prosecution  witnesses,   Dhirubhai      Babulal     Shah,     Pravinchandra      Babaldas   Parikh    and   Smitaben      Pravinchandra as  their  flats  are      situated by  the side  of flats are      situated by the side of flat No. 29      of   accused   No.1.   Now   P.W.4-      Dhirubhai Babulal  Shah  in  cross-      examination has  stated that on the      Janmashtami day, between 12.00 noon      to 4.30   P.M. he had not heard any      sound coming    from  the  flat  of      accused     No.1-Ramesh,      P.Ws.      Pravinchandra Babaldas  Parikh  and      Smitaben pravinchandra  Parikh have      stated that  at about  4.00 P.M. on      the Janamashtami day, accused No.1-      Ramesh had  come to their flat. Now      this   cannot be  the conduct  of a      murderer    and    therefore    the      prosecution  story  that  Khodabhai      was murdered in flat No. 29 between      1.30 to  4.00 or  4.30 P.M. is most      unnatural and improbable." 11.  The above  conclusions  of  the  trial  Court  and  the reasons  for   arriving  at   the  same   in  our  view  are unexceptionable; and,  at the  cost of  repetition, we would like to  mention that  the High  Court did not even consider these findings  of the  trial Court,  mush less, demonstrate that they were not sustainable at all. 12.  Coming now to the circumstance No. vi, namely, recovery of blood-stained clothes and other articles from the flat of the appellant  in the  morning of  September 9. 1980 some of which were  found to  contain group ‘A’ blood-which was also the group  of the blood of the deceased - we are constrained to say  that the evidence adduced by the prosecution in this regard was contrived to sustain the charges levelled against the appellant.  Admittedly the  flat of  the  appellant  was searched in the night between September 4 and 5, 1980 by the police after  breaking open  its lock. At that time except a pair of  trousers, nothing   incriminating  was found by the police, much  less seized.  It is  also the admitted case of the prosecution  that after  the flat  was searched  it  was locked again and the keys were kept with none other than the brother-in-law of the appellant the reasons for which we are unable to  fathom. Be that as it may, it is also an admitted fact that since then the appellant had no access to his flat

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till it  was searched  on September  9, 1980.  If inspite of these tell tale circumstances a lot of articles - containing ‘Group A’ blood - was found inside that flat on September 9, 1980 -  it only  shows that  the entire  story of search and recovery of the articles is a myth. 130  The matter  can be  viewed from  another angle also. If really the  appellant had  committed the  murder inside  his flat, as is the prosecution case, he would see that evidence which  may   implicate  him   w  as  not  available  to  the prosecution. In  this case  it was  not at all difficult for him to  remove the articles allegedly found for he had about 6 days  time at  his disposal  to get the same done with the keys  which  were  with  his  brother-in-law.  However,  the reasons given  by the trial Court to disbelieve this part of the prosecution  case are  altogether different.  Though the reasons of  the trial Court in this regard cannot be said to be improper  we need  not pursue  the matter further, having regard to  the conclusions  we have  drawn from the admitted facts of the case. 14.  Apart  from   the  above   two  circumstances,  namely, circumstance No.  iii and  vi, the  only other  circumstance which the  High Court found on discussion of the evidence to have been  conclusively proved  was the  appellant was  last seen with  the deceased  at 1.30  P.M. in  his (appellant’s) flat (circumstance No. ii). Even if we proceed on the basis, notwithstanding the  finding of  the  trial  Court  in  this regard, that  the above  circumstance stands  proved it does not further  the prosecution  case for by itself it does not lead to the only conclusion that the appellant was guilty of the offences alleged against him. 15.  For the  foregoing discussion  we  unhesitatingly  hold that the  reasons given by the trial Court for recording the order of acquittal in favour of the appellant are cogent and convincing and  the High  Court was  not at all justified in disturbing the same by reappraising the evidence. The appeal is, therefore,  allowed. The  appellant, who  is no bail, is discharged from his ball bonds.