REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1146 OF 2008

Rameshbhai Mohanbhai Koli & Ors.               .... Appellant(s)

Versus

State of Gujarat               .... Respondent(s)

WITH

CRIMINAL APPEAL NO. 1166 OF 2009

J U D G M E N T  

P. Sathasivam, J.

1)   These  appeals  are  directed  against  the  impugned  

judgment and final order dated 25.10.2007 passed by the  

High Court of Gujarat at Ahmedabad in Criminal Appeal  

No. 1422 of 2005 whereby the High Court dismissed the  

appeal filed by the appellants confirming the order dated  

23.08.2004  passed  by  the  trial  Court  convicting  them  

under  Section  302 of  the  India  Penal  Code  (hereinafter  

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referred  to  as  ‘IPC’)  read  with  Section  34 IPC and also  

under  Section  135  of  the  Bombay  Police  Act  awarding  

each of  them to undergo rigorous imprisonment (RI)  for  

life and fine of Rs.5,000/-, in default, to further undergo  

RI for one year for the offences under Section 302 read  

with Section 34 and also awarded RI for one year and fine  

of Rs.1,000/-, in default, RI for one month for the offence  

under Section 135 of the Bombay Police Act.  

2) “The case of the prosecution” as unfolded during  

the course of investigation was:

a) On  16.09.1999,  at  about  1715  hrs.,  Prakashbhai  

Raveshia, (Chairman of Morbi Nagrik Bank, Morbi),  

the deceased, accompanied with Ashokbhai Laljibhai  

Kathrani  PW  106,  Director  in  the  aforesaid  Bank  

came  out  of  the  Bank.   It  is  the  case  of  the  

prosecution that immediately after coming out of the  

Bank,  Rameshbhai  Mohanbhai  Koli  –  appellant  

herein  approached  the  deceased  and  asked  him  

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about the loan facility and the manner in which the  

loan application form was to  be filled.   During the  

course of investigation, it  was further revealed that  

immediately  thereafter,  Ramesbhai  Mohanbhai  Koli  

(A1),  appellant  No.  1  herein,  exhorted  the  other  

appellants (A2-A4) to attack the deceased.  On such  

exhortation, A2-A4 attacked the deceased with knives  

and  later  on  A1  joined  them.   During  the  

investigation, it was further stated by the witnesses  

that, after the attack, two of the accused ran away on  

a  motorcycle  from  the  place  of  occurrence.   It  is  

important  to  mention here  that  in  addition to  PW-

106, the aforesaid incident was witnessed by as many  

as 8 witnesses, some of whom were natural witnesses  

being  tea  or  pan  vendor  present  at  the  place  of  

occurrence.   It  was  further  revealed  that  original  

Accused  Nos.  5-7  had  conspired  to  eliminate  

Prakashbhai  Raveshia  and  in  furtherance  of  that  

conspiracy  engaged  the  services  of  the  appellants  

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herein.   During  the  panchnama  (Exh.384)  of  the  

place of occurrence amongst other articles, a blood  

stained loan application form bearing the name and  

address of the appellant Rameshbhai Mohanbhai Koli  

(A1) was seized by the police.  As regards the injuries  

on  the  person  of  the  deceased,  the  post-mortem  

report (Exh. 206) revealed that the deceased suffered  

18 injuries out of which 17 were incised wounds.  It  

may  be  mentioned  here  that  large  number  of  

injuries/incised wounds were found on the neck and  

the chest of the deceased.

(b) During  the  course  of  further  investigation,  after  

arrest  of  the  appellants  herein,  all  of  them  made  

separate  disclosure  statements  showing  their  

willingness  to  disclose  the  respective  places  where  

they had hidden the knives used in the commission  

of offence.  Pursuant to such disclosures made by the  

appellants,  they led the  police  to  the  places  where  

they  have  concealed  the  knives  used  in  the  

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commission of offence.  The knives recovered at the  

instance  of  the  appellants  Rameshbhai  Mohanbhai  

Koli (A1), Narottam Prejji Koli (A2) and Pravin @ Dalo  

Lashubhai Koli (A4) were stained with blood.  Blood  

stained  clothes  worn  by  Pravin  @  Dalo  Lashubhai  

Koli  (A4)  at  the  time  of  incident  were  also  got  

recovered.   The  police  also  recovered  the  blood  

stained  seat  of  the  motorcycle  used  by  two  of  the  

accused to run away from the place of occurrence.

c) The aforesaid articles,  namely,  the loan application  

form,  the  knives,  blood  stained  clothes  of  the  

appellant Pravin @ Dalo Lashubhai Koli (A4) and the  

blood  stained  seat  of  the  motorcycle  were  sent  for  

forensic examination.  The FSL and serological report  

(Exh  250)  opined  that  the  blood  stains  on  the  

aforesaid articles were of group ‘O’.  The blood group  

of the deceased also belongs to group ‘O’.   

d) On completion  of  the  investigation,  a  charge  sheet  

was  filed  in  the  Court  of  J.M.F.C.  Morbi  who  

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committed  the  case  to  the  Court  of  Additional  

Sessions Judge at Morbi where it was numbered as  

Sessions Case No. 34 of 2000.

e) The Additional Sessions Judge II, Fast Track Court,  

Gondol  at  District  Rajkot  recorded  the  evidence,  

heard the parties, appreciated the evidence and vide  

judgment dated 23.08.2004 convicted accused Nos.  

1, 2 and 3 and original accused No.4 for the offences  

punishable, as afore-mentioned, and original accused  

Nos. 5, 6 and 7 were convicted for the offences under  

Section  302  read  with  Section  120-B  IPC  and  

sentenced them to suffer R.I for life and imposed a  

fine of Rs.5,000/-, in default, R.I. for one year, and  

also further directed accused Nos. 5 and 6 each to  

pay Rs.1,50,000/- as compensation to the widow of  

the  deceased Prakashbhai  Raveshia.   However,  the  

trial  Judge acquitted accused No.8 for the offences  

punishable under Section 312 IPC for harbouring the  

accused.   

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f) The  appellants  herein  with  original  accused  No.4  

preferred Criminal  Appeal  No.  1422 of  2005 in the  

High Court of Gujarat at Ahmedabad challenging the  

judgment  and  order  of  conviction  passed  by  the  

Additional Sessions Judge, Second Fast Track Court,  

Gondal.

g) The High Court, by the impugned judgment and final  

order dated 25.10.2007, confirmed the conviction of  

the  appellants  herein  and  dismissed  their  appeal.  

However, Criminal Appeal Nos. 1544, 1925 and 2234  

of  2004 which were also heard together along with  

the  present  appellant’s  appeal  and  by  the  same  

impugned judgment, confirmed the conviction of the  

appellant and accused No.4 and allowed the appeal  

filed  by  the  original  accused  Nos.  5,  6  and  7  and  

acquitted them of the alleged offences and set aside  

the sentence awarded to them holding that there was  

no conspiracy.        

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3)  Heard Mr. Vimal Chandra S. Dave, learned counsel for  

the appellants and Mr. Nitin Sangra, learned counsel for  

the respondent-State.         

Points for determination:

4)  (i)  Whether the High Court was justified in confirming  

the conviction and sentence imposed by the trial  Court  

when all the eye-witnesses did not support the case of the  

prosecution as against accused Nos. 1, 2 and 3 i.e., the  

appellants herein;  

(ii)  Whether the Courts below are justified in convicting  

and  awarding  life  sentence  based  on  circumstantial  

evidence;

(iii) Since  the  whole  prosecution  case  hinges  upon  

circumstantial  evidence  which  in  the  present  case  does  

not complete the chain as there are missing links, in such  

event conviction is sustainable.  

5) We have carefully perused the relevant materials and  

considered the rival submissions.  

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Discussion

6) It  was  highlighted  by  the  learned  counsel  for  the  

appellants  that  the  appellants  were  not  instrumental  in  

committing the crime as they had no motive or mens rea to  

commit murder of Prakashbhai Raveshia who had rivalry with  

accused  Nos.  6  and  7  and  who  had  so  many  enemies  in  

political  field.   It  was also  projected that  since  all  the  eye-

witnesses  examined  on  the  side  of  the  prosecution  turned  

hostile, their statements cannot be relied upon in the absence  

of other cogent, convincing and reliable evidence.  It was also  

their  case  that  the  test  identification  parade  also  failed  to  

bring home the complexity of the appellants and mere recovery  

of  knife  and  other  materials,  panchnama  of  the  scene  of  

occurrence and FSL Report  are not sufficient to convict the  

appellants.

7) In the instant case,  all  the eye-witnesses examined on  

the  prosecution  side  have  en  bloc  turned  hostile  due  to  

influence and pressure of the accused persons which included  

a  sitting  MLA  of  the  ruling  party.   This  aspect  has  been  

analyzed  by  the  trial  Court  while  convicting  and  awarding  

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sentence on the accused/appellants.   This Court  has noted  

and observed in a large number of cases that witnesses may  

lie  but circumstances do not.   On going through the entire  

materials,  particularly,  the  chain  of  circumstances,  we  are  

satisfied that the prosecution has been successful in bringing  

home the guilt of the appellants herein for the commission of  

murder  of  Prakashbhai  Raveshia  and  the  eye-witnesses  

turning hostile,  do not,  in any manner,  crate a dent in the  

case of the prosecution.   

Hostile witness

8) It  is  settled  legal  proposition  that  the  evidence  of  a  

prosecution witness cannot be rejected in toto merely because  

the  prosecution  chose  to  treat  him  as  hostile  and  cross  

examine  him.  The  evidence  of  such  witnesses  cannot  be  

treated as effaced or washed off the record altogether but the  

same can be accepted to the extent that their version is found  

to be dependable on a careful scrutiny thereof. (vide Bhagwan  

Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra  

Kumar  Dey v.  State  of  Orissa,  AIR  1977  SC  170;  Syad  

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Akbar v. State of Karnataka, AIR 1979 SC 1848 and Khujji  

@ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991  

SC 1853).

9) In State of U.P. v. Ramesh Prasad Misra and Anr., AIR  

1996  SC  2766,  this  Court  held  that  evidence  of  a  hostile  

witness would not be totally rejected if spoken in favour of the  

prosecution or  the  accused but required  to be subjected to  

close  scrutiny  and  that  portion  of  the  evidence  which  is  

consistent with the case of the prosecution or defence can be  

relied upon. A similar view has been reiterated by this Court in  

Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC  

543; Gagan Kanojia and Anr. v. State of Punjab, (2006) 13  

SCC 516;  Radha Mohan Singh @ Lal Saheb and Ors. v.  

State of U.P., AIR 2006 SC 951; Sarvesh Naraian Shukla v.  

Daroga Singh and Ors., AIR 2008 SC 320 and Subbu Singh  

v. State, (2009) 6 SCC 462.

10) In C. Muniappan & Ors. vs.  State of Tamil Nadu, JT  

2010 (9)  SC 95,  this Court,  after  considering  all  the earlier  

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decisions on this point, summarized the law applicable to the  

case of hostile witnesses as under:   

“70.1 The evidence of a hostile witness cannot be discarded  as a whole, and relevant parts thereof which are admissible  in law, can be used by the prosecution or the defence.

70.2 In the instant case, some of the material witnesses i.e.  B. Kamal (PW.86); and R. Maruthu (PW.51) turned hostile.  Their  evidence  has  been  taken  into  consideration  by  the  courts below strictly in accordance with law.

70.3 Some omissions, improvements in the evidence of the  PWs have been pointed out by the learned Counsel for the  appellants, but we find them to be very trivial in nature.

71. It is settled proposition of law that even if there are some  omissions,  contradictions  and  discrepancies,  the  entire  evidence  cannot  be  disregarded.  After  exercising  care  and  caution and sifting through the evidence to separate truth  from  untruth,  exaggeration  and  improvements,  the  court  comes to a conclusion as to whether the residuary evidence  is  sufficient  to  convict  the  accused.  Thus,  an  undue  importance  should  not  be  attached  to  omissions,  contradictions  and  discrepancies  which  do  not  go  to  the  heart  of  the  matter  and  shake  the  basic  version  of  the  prosecution's  witness.  As the  mental  abilities  of  a  human  being cannot  be  expected  to be attuned to absorb all  the  details  of  the  incident,  minor  discrepancies  are  bound  to  occur in the statements of witnesses. (vide Sohrab and Anr.  v.  The State of M.P., AIR 1972 SC 2020;  State of U.P. v.  M.K. Anthony, AIR 1985 SC 48;  Bharwada Bhogini Bhai  Hirji Bhai v. State of Gujarat, AIR 1983 SC 753; State of  Rajasthan v.  Om Prakash, AIR 2007 SC 2257;  Prithu @  Prithi  Chand and Anr. v.  State of  Himachal  Pradesh,  (2009) 11 SCC 588;  State of U.P. v.  Santosh Kumar and  Ors., (2009) 9 SCC 626 and State v. Saravanan and Anr,  AIR 2009 SC 151)”

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11) From  the  analysis  of  the  statements,  answers  in  the  

cross-examination,  earlier  statement  under  Section  164  of  

Cr.P.C.  before  the  Magistrate  and in  the  light  of  the  above  

principles, we agree with the conclusion arrived at by the trial  

Court and approved by the High Court.

12) The piece of  evidence which the prosecution sought to  

rely upon against the appellants is the various panchnamas  

including  discovery  panchnama  of  the  weapons  i.e.,  knives  

used in the commission of the offence, recovery of motorcycle,  

NC register, recovery of seat of motorcycle.  The prosecution  

highlighted that A1 to A4 have shown their willingness to show  

the muddamal  knives  which have  been used for  murdering  

Prakashbhai Raveshia and, therefore, panchas were called and  

preliminary  panchnamas were  drawn and thereafter,  at  the  

instance of A1 to A4 knives were recovered which were stained  

with blood group of ‘O’ which is similar to the blood group of  

the  deceased  Prakashbhai  Raveshia.   The  prosecution  has  

examined  and  relied  upon  Rameshbhai  Arjan  PW-14,  

(Exh.292), who is panch witness of the discovery panchnama  

of  the  recovery  of  knife  (muddamal  article  No.  25)  at  the  

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instance of A3.  The prosecution has also examined and relied  

upon the evidence of Navinchandra Parshottam Shah PW-15,  

(Exh.302), who is panch witness of the panchnama of recovery  

of knife (muddamal Article No. 37) recovered at the instance of  

A2.   The  other  witness  examined  and  relied  on  by  the  

prosecution  is  Bhavanbhai  Jagabhai  Malkiya,  PW-18  

(Exh.311), who is the panch witness of the panchnama under  

which the muddamal knife (Article No. 33) was recovered at  

the  instance  of  A4  which  was  used  for  commission  of  the  

offence.  The prosecution has also examined and relied upon  

the evidence  of  Govindlal  Shantilal  Joshi,  PW-26 (Exh.338),  

who is the panch witness of the discovery panchnama of the  

muddamal knife (Article No. 28) recovered at the instance of  

A1  and  Ex.340  is  the  panchnama  of  the  mud.   These  

panchnamas  are  Exhs.293,  303,  312,  339  and  340.   The  

above  panch  witnesses  have  confirmed  the  contents  of  

panchnamas in  their  oral  testimony before  the  Court.  They  

have also asserted that A1 to A4 had shown their willingness  

and on this basis, the preliminary panchnama was drawn and  

thereafter, the accused have taken the panchas and the police  

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personnel at the place where they have concealed the knives  

and recovered the knives from those places.  It is true that in  

muddamal article No. 25 which was recovered at the instance  

of  A3 was not having a blood stain.   This aspect  had been  

considered by the trial Court and rightly concluded that the  

said muddamal article cannot be ignored.     

13) As rightly believed by the trial Court as well as the High  

Court as to the oral  testimony of those panch witnesses as  

well as the panchnamas, we also feel that there is no manner  

of  doubt  in  the  statements  made  by  the  accused,  their  

willingness  and the  preparation of  preliminary  panchnamas  

and finally recovery of concealed knives from the places shown  

by the accused.  This material evidence of discovery of knives  

through  proper  panchnamas  is  sufficient  to  connect  the  

accused with the crime.

14) Another  important  piece  of  evidence  in  the  form  of  

panchnama  of  the  scene  of  offence  is  Exh.384.   The  

prosecution has relied upon the oral  testimony of  Vijaybhai  

Bhagvanjibhai  Zariya,  PW-35  Exh.383  and  Babubhai  

Chakubhai Vania, PW-68 Exh.519.  It  is true that both the  

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panchas have turned hostile and not supported the case of the  

prosecution, however, panchnama has been exhibited in the  

cross-examination  of  PW-35.   As  requested  by  the  State  

counsel, we verified the said panchnama which is available in  

the paper-book (vide page No. 2081) which is an application  

form  bearing  No.  001351  of  A1  Rameshbhai  Mohanbhai  

Vaghani  with his  residential  address was found wherein he  

applied  for  a  loan  of  Rs.60,000/-  for  the  purpose  of  

purchasing rickshaw and on the said form also blood stains  

were found.  In view of the same, the said form was recovered  

while  preparing  panchnama  of  scene  of  offence.   This  

document is one of the circumstances against A1 about his  

presence at the time of occurrence at the place of incident.  

This evidence can be relied upon to show that A1 was present  

at the place of offence at the relevant time.  

15) In  the  same manner,  though panchas of  several  other  

panchnamas in  respect  of  recovery  of  handkerchief,  seat  of  

motor cycle and other articles with blood stains have turned  

hostile  and  not  supported  the  prosecution  case,  those  

panchnamas  were  exhibited  during  the  examination  of  

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investigating officer and for a limited purpose, therefore, they  

can be relied upon.

16) Yet  another  piece  of  evidence  is  FSL report  (Exh.250),  

forwarding letters of muddamal weapons, clothes, etc. which  

are  at  Exhs.  244,  245,  246,  247,  248,  249  and  250  

respectively.  The perusal of the FSL report clearly shows that  

the muddamal articles were found to be stained with blood of  

‘O’ group which is the same as blood group of the deceased  

Prakashbhai  Raveshia.   This  is  also  one  of  the  important  

circumstances which connect the accused with the crime.  All  

these materials  and the  evidence of  panchas,  as discussed,  

and circumstances, unmistakenly lead to the conclusion that  

A1 to A4 are the culprits and the complicity for commission of  

murder of the deceased is proved.  These aspects have been  

fully discussed by the trial Court and rightly affirmed by the  

High Court.  We also agree with these aspects in toto.   

17) In Mehbub Samsuddin Malek and Others vs. State of  

Gujarat, (1996) 10 SCC 480, this Court held that recovery of  

gupti  at  the  instance  of  the  accused  from  a  dilapidated  

building concealed below a heap of earth which found stained  

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with human blood group of ‘B’.  Clothes of the deceased also  

stained with the same blood group, to lead evidence regarding  

discovery of blood cannot be disbelieved merely because the  

house is in a dilapidated condition and it cannot be said that  

the gupti was found from an open place accessible to all.  

18) The  recovery  of  respective  weapons  of  offence  at  the  

instance of the appellants in the instant case speaks volume.  

The evidence in the present case convincingly establishes that  

the respective places from where the recoveries were effected  

were exclusively within the knowledge of the appellants and  

the  same could not  have  been effected  by  the  investigating  

agency in the absence of the disclosure statements made by  

the appellants.   

19)   Another  factor  which  strengthens  the  case  of  the  

prosecution  against  the  appellants  is  the  serological  report  

which opines that the knives recovered at the instance of A1,  

A2,  & A4 contained blood of  group ‘O’  which is  that of the  

deceased.   This  circumstance  is  highly  incriminating  and  

conclusively establishes the case against the appellants.  All  

the  recovery  panchnamas  in  the  instant  case  were  fully  

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supported by the panch witnesses i.e. PW-14, PW-15, PW-18  

and PW-26.

20) The recovery of the blood-stained seat of the motorcycle  

used by the accused to flee from the scene of offence which as  

per the FSL report contained blood of group ‘O’ is another vital  

circumstance against the appellants herein.

21) The  appellants  herein  have  denied  the  factum  of  

recoveries at their  instance is a false plea inasmuch as the  

recoveries  have  been  duly  proved  by  the  prosecution  by  

leading  cogent  and  reliable  evidence  which  has  not  been  

shaken by the defence.  A false plea taken by an accused in a  

case  of  circumstantial  evidence  is  an additional  link in  the  

chain  of  circumstances.  [Vide  Sharad Birdhichand Sarda  

vs.  State of Maharashtra,  (1984) 4 SCC 116 and  Mehbub  

Samsuddin Malek & Ors. vs.  State of Gujarat (1996)  10  

SCC 480].

22) We  have  already  observed  that  the  prosecution  has  

established that FSL report has clearly certified that the blood  

found on the knife was of human origin.  This question fell for  

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consideration in  State of Rajasthan vs.  Teja Ram & Ors.,  

(1999) 3 SCC 507 and this Court held that it  would be an  

incriminating circumstance  if  the blood on the  weapon was  

found  to  be  of  human  origin.   The  same  view  has  been  

reiterated in  Molai and Another  vs.  State of M.P., (1999) 9  

SCC 581.        

Evidence of Investigating Officer

23) An argument was advanced about reliance based on the  

evidence of investigating officer. This  Court  in  State  of  

U.P. vs. Krishna Gopal and Another, (1988) 4 SCC 302 has  

held that courts of law have to judge the evidence before them  

by  applying  the  well  recognized  test  of  basic  human  

probabilities.  Prima facie, public servants must be presumed  

to act honestly and conscientiously and their evidence has to  

be assessed on its  intrinsic  worth and cannot be discarded  

merely  on  the  ground  that  being  public  servants  they  are  

interested in the success of their case. [vide State of Kerala  

vs. M. M. Mathew & Anr., (1978) 4 SCC 65)]

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24) In Modan Singh vs. State of Rajasthan, (1978) 4 SCC  

435,  it  was  observed  that  where  the  evidence  of  the  

investigating  officer  who  recovered  the  material  objects  is  

convincing, the evidence as to recovery need not be rejected on  

the  ground  that  seizure  witnesses  did  not  support  the  

prosecution  version.   Similar  view was  expressed in  Mohd.  

Aslam vs.  State  of  Maharashtra,  (2001)  9  SCC  362.  In  

Anter Singh vs.  State of Rajasthan, (2004) 10 SCC 657, it  

was further  held  that  even if  panch witnesses turn hostile,  

which happens very often in criminal cases, the evidence of  

the person who effected the recovery would not stand vitiated.  

25)  This Court has held in large number of cases that merely  

because the panch-witnesses have turned hostile is no ground  

to reject the evidence if the same is based on the testimony of  

the Investigating Officer alone.  In the instant case, it is not  

the case of defence that the testimony of Investigating Officer  

suffer from any infirmity or doubt.  [Vide Modan Singh’s case  

(supra)  Krishna  Gopal’s  case (supra)  and  Anter  Singh’s  

case (supra)].       

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26) In view of  the above principles and in the  light  of  the  

discussion about the recovery as stated and concluded earlier,  

those  materials  produced  by  the  prosecution  are  relevant,  

acceptable and rightly connected these circumstances with the  

appellants.   

27) Finally, appellants relied on the acquittal of co-accused  

Nos. 5 to 7.  The acquittal of accused Nos. 5 to 7 does not in  

any manner wash away the case against the appellants which  

has  been  convincingly  established  on  the  basis  of  

circumstances.  It is relevant to note that the recovery of blood  

stained loan form application  bearing name and address  of  

appellant Rameshbhai Mohanbhai Koli (A1) from the scene of  

offence and the serological report which opines the blood to be  

of  group  ‘O’  which  is  the  blood  group  of  the  deceased  

conclusively establishes the presence of  A-1 at the scene of  

offence.  Even though the panch-witness PW-35, Vijaybhai has  

turned hostile to the prosecution but the spot panchnama has  

been cogently and convincingly proved through the testimony  

of the Investigating Officer PW-160.   

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28) In the light  of  the above discussion,  we are  unable  to  

accept the case of the appellants, on the other hand, we are  

satisfied that the prosecution has established its case insofar  

as the appellants and rightly convicted and sentenced by the  

trial Court and affirmed by the High Court.  The appeals are  

devoid of any merits, consequently, they are dismissed.   

...…………………………………J.                   (P. SATHASIVAM)  

...…………………………………J.           (ANIL R. DAVE)  

NEW DELHI; OCTOBER 20, 2010.      

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