R/CR.A/1596/2018 JUDGMENT DATED: 20/12/2024

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1596 of 2018

With

R/CRIMINAL APPEAL NO. 1397 of 2018

With

R/CRIMINAL APPEAL NO. 1442 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MS. JUSTICE S.V. PINTO

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Approved for Reporting Yes

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DEEPAKBHAI BACHUBHAI PRAJAPATI & ANR.

Versus

STATE OF GUJARAT

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Appearance:

MR MA BUKHARI(211) for the Appellant(s) No. 1,2 (CRA 1596/2018)

MR. P P MAJMUDAR for the Appellant(s) No. 1 (CRA 1397/2018)

MR LAXMANSINH M ZALA & Mr. S B THAKKAR for the Appellant(s) No. 1

(CRA 1442/2018)

MR. CHINTAN DAVE, APP for the Opponent(s)/Respondent(s) No. 1

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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MS. JUSTICE S.V. PINTO

Date : 20/12/2024

ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE S.V. PINTO)

1.These appeals have been filed by the appellants -

original accused under Section 374 of the Code of Criminal

Procedure against the judgement and order dated

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07.08.2018 passed by the learned 10

th

Additional Sessions

Judge, Vadodara (here in after referred to as the”learned

Trial Court”) in Sessions Case No. 07 of 2015. The

appellants - original accused no. 1 - Dipakbhai Bachubhai

Prajapati and accused no. 3 - Ganesh @ Ganu @ Ganio

Nilkanth have filed Criminal Appeal No. 1596 of 2018,

appellant- original accused no. 4 - Subhas Rajendra @

Umajirav Barokar has filed Criminal Appeal No. 1397 of

2018 and appellant- original accused no. 2 – Abdul @

Munno @ Thumsup Rahemanbhai Shaikh has filed Criminal

Appeal no. 1442 of 2018 and all the appeals have arisen

out of the same impugned judgement and order and

hence, are disposed of by this common judgement.

The appellants are referred to as the accused in the

rank and file as they stood in the original case for the sake

of convenience, clarity and brevity.

2.The brief facts necessary to decide the appeal are in

a nutshell as under:

2.1As per the case of the prosecution, the deceased

Prahladbhai had loaned some money to the accused no. 1

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Deepakbhai to do business of scrap and as the accused

no. 1 did not want to return the amount and he had a

doubt that the deceased Prahladbhai had illicit relations

with his wife, he entered into a criminal conspiracy with

the other co-accused and on 30.03.2014, called the

deceased on his mobile phone, to settle the accounts to

his factory Ambika Stamping situated in Sayajipura Fruit

Market, Plot No. 185/268. As per the conspiracy, the

accused no. 1 and the deceased were sitting in the office

on the first floor and as the deceased left the office, the

accused no. 1 gave the signal by starting the side light of

Innova car no. GJ-06-ES-1717 with a remote and the

accused nos. 2 and 3 went into the office and the accused

no. 4 stood outside to keep a watch and as the deceased

was getting down the stairs at around 20:30 hours, the

accused nos. 3 assaulted him with a baseball stick and the

accused no. 1 gave a blow with an iron scissor and as the

deceased fell down the accused nos. 1, 2 and 3 took a

cotton and plastic thread and strangulated him. That they

put his dead body in a white plastic bag in the dickey of

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Hyundai Verna car no. GJ-16-AA-8722 and the accused

nos. 1 and 3 wiped the blood in the factory and the

accused nos. 3 and 4 took Activa No. GJ-06-CS-2781 and

Samsung mobile phone of the deceased and placed the

Activa below Amitnagar Bridge and the mobile phone a

little away from the Activa opposite Purushottamnagar

Society and placed a brick over the mobile to hide it. That

they disposed of the dead body near village Taraswa,

Taluka Waghodia, District Vadodara and also threw the

pant and purse of the deceased on Waghodia Road. The

complaint was filed by Shalin Prahladbhai Shah - the son

of the deceased which was registered at Karelibaug Police

Station I-C. R. No. 59 of 2014 under Sections 302, 201,

120(b), 34 of the IPC and Section 135 of the G. P. Act.

2.2The Investigating Officer drew the necessary

panchanamas, recorded the statements of the connected

witnesses, collected the muddamaal, sent the dead body

of the deceased for postmortem, sent the Muddamal to

the Forensic Science Laboratory, Ahmedabad for analysis,

arrested all the accused and after the FSL analysis reports

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were received, a chargesheet came to be filed before the

Court of the learned Judicial Magistrate First Class,

Vadodara and as the case was exclusively triable by the

Sessions Court, Vadodara, a committal order was passed

by the learned Chief Judicial Magistrate under Section 209

of the Code of Criminal Procedure and the case was

registered as Sessions Case No. 07 of 2015.

2.3The accused appeared before the learned Trial Court

and it was verified whether the provisions of Section 207

of the Code of Criminal Procedure was complied with and

a charge was framed against the accused at Exh. 16 and

the statements of the accused were recorded at Exhs. 17

to 20 respectively. The accused denied all the contents of

the charge and the evidence of the prosecution was taken

on record. The prosecution examined 48 witnesses and

produced 49 documentary evidences in support of their

case and after the learned APP filed the closing pursis at

Exh. 167, the statements of the accused under Section

313 of the Code of C riminal Procedure were recorded

wherein the accused denied all the evidence of the

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prosecution produced on record. The accused refused to

step into the witness box or lead evidence and examine

witnesses, and after the arguments of the learned APP as

well as the learned Advocates for the accused were heard,

the learned Trial Court was pleased to find all the accused

guilty for the offence under Sections 302, 201 and 34 of

the IPC and was pleased to acquit the accused under

Section 235(1) of the Code of Criminal Procedure for the

offence under Sections 120(b) of the IPC and Section 135

of the G. P. Act. The learned Trial Court was pleased to

sentence all the accused to imprisonment for life and fine

of ₹10,000/- (Rupees Ten Thousand) each and in default,

simple imprisonment for six months for the offence under

Section 302 read with Section 34 of the IPC and to simple

imprisonment for three years and fine of ₹2000/- ( Rupees

Two Thousand) each and in default, simple imprisonment

for two months for the offence under Section 201 of the

IPC.

3.Being aggrieved and dissatisfied with the judgement

and order of conviction, the appellants - original accused

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no. 1 - Dipakbhai Bachubhai Prajapati and accused no. 3 -

Ganesh @ Ganu @ Ganio Nilkanth have filed Criminal

Appeal No. 1596 of 2018, appellant- original accused no. 4

- Subhas Rajendra @ Umajirav Barokar has filed Criminal

Appeal No. 1397 of 2018 and appellant- original accused

no. 2 – Abdul @ Munno @ Thumsup Rahemanbhai Shaikh

has filed Criminal Appeal no. 1442 of 2018.

3.1The appellants of Criminal Appeal No. 1596 of 2018

have mainly contended that the learned Trial Court has

not appreciated the oral and documentary evidence and

the evidence is not sufficient to connect the chain of

circumstances to show that within all probability, the

offence has been committed by the appellants. The

learned Trial Court has failed to consider that on

31.03.2014, a missing person information was registered

at Karelibaug Police Station and on the same day, at about

12.20 pm, a FIR of murder under section 302 of the IPC

was registered in Waghodia Police Station. No FIR of

murder was registered in Karelibaug Police Station but the

investigation was carried out by PSI R. N. Valand and

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hence, the investigation is bad in law. The dead body of

the deceased was found from village Tarasva at 9.00 am

and during investigation, it has also come on record that

the deceased had financed an amount of ₹40,00,000/- to

one Virendra Pandit, who had administered a threat of

murder to the deceased but the statement of the said

Virendra Pandit has not been recorded and he is not

shown as an accused. The motive for murder of deceased

Prahladbhai is not proved by the prosecution, and the

Medical Officer has admitted that the signs on the body

mentioned in the postmortem note are possible due to

failure of cardio respiratory system. No ligature marks

were found on the neck of the deceased and the offence is

not culpable homicide as per Section 300 of the IPC. There

is no evidence that there was any monetary transaction

between the deceased and the appellant no. 1 and the

motive is not established. Moreover, the blood of the

deceased was not taken and the signs of blood found at

the factory, in the Verna car, dicky of the car and on the

hand brake, marks of blood found on the clothes are not

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proved to be the blood group of the deceased. The

applicants have been wrongly implicated in the offence

and hence, the impugned judgement and order of

conviction must be quashed and set aside and the

appellants must be acquitted for the offence.

3.2The appellant of Criminal Appeal No. 1397 of 2018

has mainly contended that the motive of the original

accused no. 1 was not to return the money which was lent

by the deceased for business purpose and with a suspicion

that the deceased was having il legitimate relationship

with the wife of the original accused no. 1, the criminal

conspiracy was hatched and the offence was committed

but in the entire evidence, there is no evidence that there

was any monetary transaction between the deceased and

the original accused no. 1 and the testimony of the

witnesses has not been appreciated in proper perspective.

The prosecution has miserably failed to prove the case

beyond reasonable doubts and the findings of the learned

Trial Court are absolutely perverse and unjustified and the

applicant is falsely implicated in the present case. That

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even though the FIR registered at Waghodia Police Station

was more severe, the investigation was carried out by the

Karelibaug Police Station. The postmortem report at Exh.

132 does not show any injury in the interior part of the

neck and no specific reason of the death is mentioned in

the postmortem report and the Medical Officer during the

cross-examination has admitted that there were no signs

of choking. There are no independent witnesses examined

before the learned Trial Court and the relatives of the

deceased do not know anything about the business

transaction of the deceased with the original accused no.

1. The blood group of the deceased or the accused have

not been examined and hence, the blood stains in the

Innova car could not have been said to be of the

deceased. The evidence has not been properly

appreciated by the learned Trial Court and the impugned

judgement and order is required to be quashed and set

aside.

3.3The appellant of Criminal Appeal No. 1442 of 2018

has mainly contended that the case of the prosecution

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rests on circumstantial evidence and the chain of

circumstances produced by the prosecution before the

learned Trial Court is not complete and hence, the case of

the prosecution is not proved beyond reasonable doubts.

As per the case of the prosecution, no motive for the

appellant to commit the murder of the deceased is proved

and the panch witnesses of the recovery panchnama have

not identified the appellant as an accused who was the

author of the entire discovery process and hence, the

discovery panchnama could not have been said to have

been proved by the prosecution as per law. There is no

eye witness to the incident and there is no evidence of

“last seen together” qua the present appellant. The

impugned judgement and order of sentence is against the

weight of evidence and is required to be interfered with

and quashed and set aside.

4.We have heard learned Advocate Mr. M. A. Bukhari

for the appellants of Criminal Appeal No. 1596 of 2018,

learned Advocate Mr. P. P. Majmudar for the appellant of

Criminal Appeal No. 1397 of 2018, learned Advocate Mr.

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Laxmansinh M. Zala for the appellant of Criminal Appeal

No. 1442 of 2018 and learned APP Mr. Chintan Dave for

the respondent S tate. We have also perused the

impugned judgement and order and the evidence

produced by the prosecution before the learned Trial

Court.

5.Learned Advocate Mr. M. A. Bukhari for the

appellants of Criminal Appeal No. 1596 of 2018 has

submitted that there are no eye witnesses to the incident

and the medical evidence does not support the case of the

prosecution. There are no internal injuries or ligature

marks found on the neck of the deceased and the injuries

found in the postmortem note are due to cardio

respiratory failure. The witnesses of the prosecution are

relatives of the deceased and all the panch witnesses

have turned hostile and the motive that the deceased

Prahladbhai had advanced money to the appellant no. 1 is

not proved. The investigation has not been properly

concluded and even though the first FIR was filed at

Waghodia Police Station, the case has been investigated

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by the PSI of Karelibaug Police Station where only the

information of missing persons was filed. Learned

Advocate submits that there is no evidence that the

appellant is involved in the offence and the appeal may be

allowed.

5.1Learned Advocate Mr. P. P. Majmudar for the

appellant of Criminal Appeal No. 1397 of 2018 has

submitted that as per the case of the prosecution when

the other accused were committing the murder, the

appellant was keeping a watch outside and thereafter, the

appellant only helped in taking the Activa of the deceased

and kept it at Amitnagar Crossroads and hid the mobile

phone of the deceased. In fact, the appellant has been

implicated on the basis of the statement of the co-accused

and the findings with regards to the same have been

observed by the learned Trial Court in the impugned

judgment. The learned Trial Court has observed that after

the name of the accused no. 2 was disclosed and he was

arrested, the names of the other co-accused were

declared and hence, they were arrested and the charge

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sheet has been filed against them. That in fact, there is no

evidence to implicate the appellant in the alleged offence

and the motive qua the present applicant is not proved as

there is no evidence with regard to the same. The

witnesses examined by the prosecution are interested

witnesses and relatives of the deceased; and there are no

eye witnesses and the case is based upon circumstantial

evidence, but the chain of events is not proved in the

present case. Moreover, the criminal conspiracy under

Section 34 of the Indian Penal Code is not at all made out

as the prosecution has not been able to prove the meeting

of minds or any agreement between the accused prior to

commission of the alleged offence. The basic ingredient of

prior meeting of minds to commit the offence has not

been proved and the discovery panchnama is also not

proved by the Investigating Officer as per the law settled

by the Apex Court in the case of Ramanand @ Nandlal

Bharti Vs. State of Uttar Pradesh. Learned Advocate urges

this Court to allow the appeal and the impugned

judgement and order be quashed and set aside.

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5.2Learned Advocate Mr. Laxmansinh M. Zala for the

appellant of Criminal Appeal No. 1442 of 2018 has

submitted that the entire case of the prosecution is based

on circumstantial evidence and the learned Trial Court has

convicted the appellant on the basis of the discovery

panchnamas which are not trustworthy and not in

accordance with law. The independent p anch witnesses

have not supported the panchnamas and the prosecution

has examined PW9 - Shabbirbhai Saifuddin Master at Exh.

53 as the case of the prosecution was that the string

which was used to commit the murder was purchased by

the present appellant from the shop of the said witness

Shabbirbhai, but the witness has turned hostile and has

not supported the case of the prosecution. That even the

discovery of the baseball bat is not proved and the panch

witness has stated that the police officer had discovered a

baseball bat. The panch witness has not deposed anything

about the drawing of the part I of the panchnama or that

the appellant had made any voluntary statement in his

presence and the witness has not identified the appellant

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as the person at whose instance the entire panchnama at

Exh. 80 was drawn. Hence, there is no legal validity of the

said panchnama and the same cannot be used against the

present appellant to convict him. PW25 - Satish Natubhai

Patel is the panch witness of the discovery panchnama

whereby the Verna car no. GJ-16-AA-8722 was discovered

at the instance of the present appellant but it is on record

that no procedure was followed by the police at the place

where the car was found. The witness has not deposed

that the appellant had made any voluntary statement in

his presence and he has not stated anything about the

drawing of the panchnama part I in his presence.

Moreover, the witness has not identified the appellant as

the person in whose presence the recovery panchnama at

Exh. 85 was drawn and hence, the panchnama cannot be

used to convict the present appellant. The mobile phones

of the co-accused are recovered by the Investigating

Officer but there are no incriminating circumstances

brought on record by the recovery of the mobile phones of

the co-accused. The prosecution has failed to prove the

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case against the appellant beyond reasonable doubts and

the chain of circumstances is not complete and the basic

requirements of Section 27 of the Indian Evidence Act is

not fulfilled. Learned Advocate urges this court to consider

the facts and circumstances and acquit the appellant from

all the charges levelled against him.

5.3Learned APP Mr. Chintan Dave for the respondent

State has taken this Court through the entire record and

evidence of the prosecution on record and has submitted

that the learned Trial Court has appreciated each and

every piece of evidence on record. The case of the

prosecution is based on circumstantial evidence and the

chain of evidence is proved by the prosecution and the

learned Trial Court has appreciated the entire evidence in

correct perspective and there are no merits in the appeals

of the appellants and the same must be rejected.

6.Before we proceed to decide the appeal, it would be

appropriate to refer to the observations of the Apex Court

in Para 5 in the case of Lal Mandi V. State of West

Bengal reported in 1995 Cri LJ 2659 regarding the duty

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of the appellate Courts in hearing of appeals in conviction

matters.

5.To say the least, the approach of the High Court

is totally fallacious. In an appeal against conviction,

the Appellate Court has the duty to itself appreciate

the evidence on the record and if two views are

possible on the appraisal of the evidence, the benefit

of reasonable doubt has to be given to an accused. It

is not correct to suggest that the "Appellate Court

cannot legally interfere with" the order of conviction

where the trial court has found the evidence as

reliable and that it cannot substitute the findings of

the Sessions Judge by its own, if it arrives at a

different conclusion on reassessment of the

evidence. The observation made in Tota Singh's case,

which was an appeal against acquittal, have been

misunderstood and mechanically applied. Though,

the powers of an appellate court, while dealing with

an appeal against acquittal and an appeal against

conviction are equally wide but the considerations

which weigh with it while dealing with an appeal

against an order of acquittal and in an appeal against

conviction are distinct and separate. The

presumption of innocence of accused which gets

strengthened on his acquittal is not available on his

conviction. An appellate court may give every

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reasonable weight to the conclusions arrived at by

the trial court but it must be remembered that an

appellate court is duty bound, in the same way as the

trial court, to test the evidence extrinsically as well

as intrinsically and to consider as thoroughly as the

trial court, all the circumstances available on the

record so as to arrive at an independent finding

regarding guilt or innocence of the convict. An

Appellate Court fails in the discharge of one of its

essential duties, if it fails to itself appreciate the

evidence on the record and arrive at an independent

finding based on the appraisal of such evidence.

7.In light of the above we have perused and analyzed

the evidence led by the prosecution on record of the case.

7.1PW1 - Shalin Prahladbhai Shah examined at Exh. 29

is the son of the deceased Prahladbhai Shantilal Shah, and

the complainant and he has stated that on 30.03.2014, he

had gone to Ahmedabad with his friends and at around

10:45 pm, while they were returning from Ahmedabad, his

mother called him and told him that his father had not

returned home. That his father had gone to meet the

accused no. 1 earlier and she had called his father on his

mobile phone but the phone was not answered. That he

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called his father’s mobile phone which was unanswered

and he called the accused no. 1 who told him that his

father had come and he had dinner and left by 10.00 pm

on his black Activa. His mother once again called him and

told him that his father’s mobile phone was found near

Purushottam Nagar Society near Amit Nagar by a driver of

luxury bus and he went to Amit Nagar and at that time, his

mother and the accused no. 1 and his wife were also

present. A police van was passing by and he stopped the

police van and informed them about the mobile phone of

his father which was recovered from the driver of a luxury

bus belonging to Gandhi Travels. The driver of the luxury

bus, accused no. 1 and he were taken to Karelibaug Police

Station and he had filed the complaint which is produced

at Exh. 33. That he had gone home and brought a

photograph of his father and filed a missing persons

application which is produced at Exh. 34. On the next

morning, he got a phone call from Karelibaug Police

Station and when went to the police station, in the news

scroll on the television, there was a flash that an

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unidentified dead body was found in Waghodia and his

uncles and other relatives went to see the body at

Waghodia and the body was identified as the dead body of

his father. That his father had loaned an amount of

₹1,77,00,000/- to the accused no. 1 for partnership and

his father had demanded the amount from the accused

no. 1. During the cross-examination by the learned

advocate for the accused, the witness has stated that his

father was into financial transactions but he had not given

the details to the police. That he had informed the police

that his father had given money to the accused no. 1 and

his father had also given an amount of ₹40,00,000/- to

Virendra @ Pandit Tripathi and the amount was not

returned in spite of demanding for the same.

7.2PW2 - Maharshi Chandravadan Dasadia examined

Exh. 39 is the friend of the complainant who was with the

complainant on the day of the incident and he has fully

supported the case of the prosecution and has narrated in

detail all the incidents that had occurred while they were

returning from Ahmedabad including the phone call

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received from the mother of the complainant and the

finding of the mobile phone by the luxury bus driver. The

witness was with the complainant throughout on

30.03.2014 and 01.04.2014 and has narrated in detail all

the events that had unfolded while he was in the company

of the complainant.

7.3PW3 - Shantilal Ratanlal Shah examined at Exh. 43 is

the father of the deceased who has stated that on

30.03.2014, he was informed by his daughter-in-law that

the deceased has not returned home and he and his wife

went to Akota and on the next day, they came to know

that the unidentified body found in Waghodia was that of

his son. That he used to give money on interest to the

accused no. 1 and he has identified the accused no. 1 and

stated that they had good relations. During the cross-

examination, the witness has admitted that he and the

accused no. 1 had financial transactions for ten to twelve

years.

7.4PW4 - Krishnaben Prahladbhai Shah examined at Exh.

45 is the wife of the deceased and she has stated that on

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30.03.2014, her husband had called her between 7.00 pm

to 7:30 pm and told her that he was going to the factory of

the accused no. 1 to settle the accounts as the accused

no. 1 had telephoned him and called him. Thereafter, as

he did not return till 11.00 pm, she called the mobile

phone of her husband but it was unanswered and she

called her elder son Shalin and informed him that his

father had not returned. She called the accused no. 1 who

told her that her husband had left sometime ago and

when she called her husband’s cell phone, a bus driver

picked up the phone and told her that he was at Amit

Nagar Circle. She informed her son Shalin and went to

Amit Nagar Circle where she met the accused no. 1 with

his wife and her son Shalin and his friend had also reached

Amit Nagar Circle. The mobile phone of her husband was

recovered from the bus driver who told them that he

found it under a brick on the footpath and blood stains

were found on the mobile phone. Her son Shalin went to

the Karelibaug Police Station and on the next day, the

dead body of her husband was found near Waghodia.

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During the cross-examination, the witness has stated that

a few days before the death of her husband, she had gone

along with her husband to the house of one Virendra

Pandit, and her husband had loaned a huge amount to

Virendra Pandit and she had not given any evidence of the

financial transactions between her husband and the

accused no. 1.

7.5PW5 - Madanlal Purshottam lal Kabra, examined at

Exh. 46 and PW6 Rajesh bhai Shantilal Shah examined at

Exh. 47 are the relatives of the deceased who were

informed about the deceased not returning home and they

had gone to Amit Nagar Circle where the mobile phone

and Activa of the deceased were found.

7.6PW7 - Jayant Narendrakumar Vyas examined at Exh.

49 is the employee of the deceased and he has stated that

on 30.03.2014, he was at the shop along with the

deceased and at between 7:30 pm and 8.00 pm, the

deceased received a phone call from the accused no. 1.

The deceased told him that he had to go to settle the

accounts with the accused no. 1 and took the diaries,

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cheque books and cash, and left. At around 11:30 pm, the

wife of the deceased telephoned him and told him that the

deceased had not returned. He informed her that the

deceased had gone to settle the accounts with the

accused no. 1. That he had gone to Amit Nagar and was at

the police station till 04:56 am. That on the next day, the

dead body of the deceased was found and there were

financial transactions between the accused no. 1 and the

deceased. During the cross-examination by the learned

Advocate for the accused, the witness has stated that he

knew some of the financial transactions of the deceased

and on 30.03.2014, he and the deceased had shut the

shop around 8:30 pm. That he had received the phone call

from the wife of the deceased between 11:30 pm – 11:45

pm, and he did not call the accused no. 1 and did not go

to the house or factory of the accused no. 1.

7.7PW8 - Prakash Madan Lal Shah examined at Exh. 52

is the witness who had gone to the postmortem room in

the Primary Health Centre, Wagodia and had identified the

dead body of the deceased.

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7.8PW9 - Shabbirbhai Saifuddin Master examined at Exh.

53 is the owner of My Hardware situated in Sharada Park

Apartment No. 1, Opposite Surya Nagar Bus Stand,

Waghodia Road and as per the case of the prosecution,

the accused no. 2 - Abdul @ Munna purchased the thread

by which the deceased was strangulated from his shop but

the witness has not supported the case of the prosecution

and has been declared hostile and during the cross-

examination has admitted that he has no sight since many

years.

7.9PW10 - Ravindra Jayantilal Tadvi examined Exh. 57 is

the driver of the luxury bus who found the mobile of the

deceased on the footpath below a brick and as the mobile

phone was ringing, he picked it up and spoke to the

person and one person came and went to the Karelibaug

Police Station along with that person. During the cross-

examination, the witness has admitted that he does not

know whom the phone belonged to and he did not know

the person who had come to take the phone.

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7.10 PW11 - Hari Singh Bhaiti Singh Bhai Ratha examined

Exh. 58 is the Sarpanch of Village Taras wa, Taluka

Waghodia, District Vadodara and he has stated that the

police had called him to the outskirts of the village where

a dead body was lying in a sack. He could not identify the

dead body and the police had recorded his statement.

7.11 PW12 - Satishbhai Valabhai Parmar examined at

Exh. 59 and PW13 - Thakurbhai Paragbhai Patel examined

at Exh. 16 are the witnesses who have seen the dead body

of the deceased on the outskirts of village Taraswa.

7.12 PW14 - Surajmal Motilal Khichi examined at Exh. 61

is the registered owner of Innova car No. GJ-06-1717 and

he has stated that he had sold the car to the accused no.

1 about one and a half years ago but the car was not

transferred as the bank loan was not paid up.

7.13 PW15 - Krunalbhai Vithalbhai Tadvi examined at

Exh. 62 is the registered owner of Bajaj Discover

motorcycle No. GJ-06-FR-3215 and he has stated that the

accused no. 4 had taken a loan on his name and had given

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the down payment and was also paying the installments

and using the vehicle.

7.14 PW-16 - Hardik Vinodbhai Patel, examined at Exh.

65 is the witness who had gone to the factory of the

accused no. 1 and had taken the hard disk of the CCTV

camera system which was seized by the police.

7.15 PW17 - Nathubhai Gagjibhai Bharwad examined at

Exh. 66 is the registered owner of motorcycle number GJ-

06-4784 and he has stated that he had sold the

motorcycle to the accused no. 1.

7.16 PW-18 - Prasannjitsinh Harjendrasinh Kang

examined at Exh. 67 is the Manager of Ajanta Hotel and

he has produced the register of Ajanta G uest House at

Exh. 68 wherein Entry No. 1337 made on 01.04.2014

shows that the accused no. 1 had checked into the hotel

at 9:00 am and left at 12:30 pm. The identity proof given

by the accused no. 1 in the Guest House is produced at

Exh. 69.

7.17 PW40 - Pravinbhai Bhagubhai Gadhvi examined at

Exh. 115 is the Police Inspector, Waghodia Police Station,

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who had gone to the spot where the dead body was found

after he had received a phone call and he had called

Harisingbhai Tersingbhai Rathva, the Sarpanch of Taraswa

Village and had taken his application which is produced at

Exh. 116. The inquest panchnama was drawn and the

dead body was sent for postmortem and thereafter,

witness Satyanarayan Sunderlal Shah identified the dead

body and as the offence was registered with Karelibaug

Police Station, the papers and the muddamal were sent

towards Karelibaug Police Station.

7.18 PW42 - Naveenbhai Motibhai, examined at Exh. 124

is the police constable who had brought the blood sample

in four sealed covers and handed them over to PSI

Karelibaug Police Station.

7.19 PW-43 - Kanhaiyalal Khatrabhai examined at Exh.

125 is the police constable who had handed over the

sealed muddamal to FSL Gandhinagar.

7.20 PW44 - Ramniklal Laljibhai Gondaliya examined at

Exh. 127 is the Scientific Officer, FSL Mobile Investigation

Van and he has stated that he was called to Amit Nagar

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Circle on 30.03.2014 and he had checked the Samsung

mobile of the deceased and the Activa of the deceased

and found blood stains on the Samsung mobile and has

submitted the report at Exh. 128. The witness was also

called to the factory of the accused no. 1 situated in Sayaji

Fruit Market and he had checked the place and found

blood stains in the entrance, on pieces of metal scrap, on

a piece of sack, on the staircase on the wall at a height of

six feet, on the pant and baseball bat found on the road

ahead of Waghodia and on the Waghodia Gola Gamdi

Road, the place where the dead body was found and he

has submitted the report at Exh. 129. The witness has also

examined the Hyundai car no. GJ-16-AA-8722 and the

Innova car No. GJ-06-ES-1717 and found blood stains in

both the cars and has submitted the reports at Exhs. 130

and 131 respectively. Samples of all the blood stains were

collected on cotton threads and sealed and control

samples were also taken and sealed and handed over to

the Investigating Officer.

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7.21 PW45 - Dr Birendra Shrinoga Chaudhary examined

at Exh. 132 is the Medical Officer, Primary Health Centre,

Rustampura who has conducted the postmortem on the

dead body of the deceased on 31.03.2014 between 12:35

pm and 14:40 pm and has submitted the postmortem note

at Exh. 133. As per column No. 17, the following injuries

were found on the dead body.

1.CLW on scalp above forehead size 7 X 7 X bone

deep.

2.CLW on scalp metal 8 X 5 X bone deep.

3.CLW on scalp in back in occipital 7 X 4 X bone

deep.

4.CLW on scalp in back in occipital 7 X 5 X bone

deep.

5.Yellowish parchment ligature mark at the level

of thyroid cartilage, encircling the neck, breadth 1.5

cm with knot on back.

Fracture of skull – frontal bone, parietal bone and

both occipital bone were found and the cause of death

was shocked following head (brain) injury associated with

strangulation of neck. The witness has stated that injuries

found on the dead body could be caused by the iron

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scissor and the baseball bat. During the cross

examination, the witness has stated that he has not

mentioned the time before which the death had occurred

in the postmortem note and there were no injuries to the

larynx, esophagus and trachea.

7.22 PW47 - Devshibhai Ramjibhai Makwana examine d at

Exh. 140 is the Investigating Officer who has deposed in

detail about the entire investigation, recording of

statements of connected witnesses, arresting the accused,

seizure of muddamal, drawing of the panchnamas,

collecting the call detail records of all the accused and

sending the muddamal to the FSL for analysis.

7.23 PW48 - Rameshbhai Nathabhai Valand examined at

Exh. 159 had initially investigated the offence, recorded

the statements of witnesses, seized the muddamal, drew

the necessary panchnamas and collected the documents

from Waghodia Police Station.

8.The prosecution has produced the panchnama of the

place where the dead body of the deceased was found at

Exh. 71, inquest panchnama at Exh. 73, panchnama by

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which the clothes of the deceased were seized at Exh. 76,

panchnama by which the dead body of the deceased was

identified by Satyanarayan Sunderlal Shah in the

postmortem room of the Primary Health Centre, Waghodia

at Exh. 78, panchnama by which the accused no. 2

showed the place of offence, which was on the staircase of

Ambika Stamping Factory from where blood stains were

found on pieces of metal scrap near the door, inside the

factory on the wall at a height of six feet on step number

eight on the staircase, the place where the blood stained

black pant of the deceased and the blood stained baseball

bat were thrown and the place where the dead body was

thrown and at that place blood stains were found at Exh.

80, panchnama by which the Innova car no. GJ-06-ES-1717

was recovered from near the house of the accused no. 1

and the keys of the car was given by the wife of the

accused no. 1 and blood stains were found near the

handbrake and near the driver seat and a Samsung mobile

phone was recovered at Exh. 83, panchnama by which

Verna car No. GJ-16-AA-8722 was recovered from the

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house of the accused no. 2 and blood stains were found in

the behind dicky and on the floor of the car in the behind

seat at Exh. 85, panchama by which the mobile phones of

the accused no. 2 and accused no. 3 were recovered at

Exh. 90, panchnama by which the iron scissor used to cut

metal was recovered at the instance of the accused no. 1

from his Ambika Stamping Factory at Exh. 93, panchama

by which Bajaj Discover motorcycle no. GJ-06-FR-3215 was

seized from Satishbhai Rajendrabhai Bakorkar at Exh. 95,

panchnama by which motorcycle No. GJ-06-HB-4784 was

seized from Padmaben Nilkanthbhai Kadam, the mother of

the accused no. 3 at Exh. 97, panchnama by which the

blood of the accused was taken during investigation and

was produced by Police Constable Naginbhai Mohanbhai

Buckle No. 2582, Karelibaug Police Station and he had

collected the same from the Medical Officer at SSC

Hospital, Vadodara at Exh. 100, panchnama by which the

hard disk was seized from Ambika Stamping Factory at

Exh. 103, panchnama by which the clothes worn by the

accused no. 1 on the day of the incident which had blood

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stains were seized from his house at the instance of the

accused no. 1 at Exh. 106, panchnama by which the

clothes of the accused no. 3 were seized from his house at

his instance at Exh. 109, panchnama by which the mobile

phone of the deceased was seized at Exh. 112,

panchnama by which the Activa No. GJ-06-CS-2781 of the

deceased was seized at Exh. 114, panchnama by which

the clothes of the accused no. 4 worn at the time of the

incident were seized from his house at his instance at Exh.

136 and the panchnama by which the clothes of the

accused no. 2 worn at the time of the incident were seized

from his house at his instance at Exh. 144.

9.It is not in doubt that the case against the accused is

based on circumstantial evidence and there are no eye

witnesses to the incident. As per the case of the

prosecution, the deceased had left his house in the

morning on 30.03.2014 and at around 7:30 pm he

telephoned his wife PW4 - Krishnaben Prahladbhai Shah

that he was to go to meet the accused no. 1. The

deceased was in his shop along with his employee PW7 -

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Jayantbhai Narendrakumar Vyas and they both left the

shop together at around 8:30 pm. While the deceased was

at the shop, the accused no. 1 had telephoned and called

him between 7:30 pm to 8.00 pm and told him to come to

settle the accounts and he left to meet the accused no. 1.

As he did not return home till 11:00 pm, his wife called

him on his mobile but the call remained unanswered and

she called her son PW1 - Shalin Prahladbhai Shah and

informed him that his father had not returned and that he

had gone to meet the accused no. 1. The wife of the

deceased PW4 - Krishnaben Prahladbhai Shah also called

the accused no. 1 who told her that her husband had left

after having dinner and he was leaving his house to look

for her husband. PW1 - Shalin Prahladbhai Shah called the

accused no. 1 who told him that his father had left after

dinner sometime ago. The mobile phone of the deceased

was found by PW10 - Ravindra Jayantilal Tadvi the driver

of a luxury bus who found the mobile phone on the

footpath below a brick and the Activa number GJ-06-CS-

2781 was found in the parking place below the bridge of

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Amit Nagar Circle, Opposite Kismat Kathiyawadi Hotel. The

dead body of the deceased was found on the next day in

the outskirts of Village Taraswa, Taluka Waghodia and the

dead body was identified by PW8 - Prakash Madanlal Shah.

The dead body had injuries on the skull and as per the

opinion of the Medical Officer, the injuries could be caused

by an iron scissor and a baseball bat. During investigation,

blood stains of the blood group of the deceased were

found from the Ambika Stamping Factory from where the

scissor with blood was recovered at the instance of the

accused no. 1, blood stains were found on the clothes of

the accused no. 1 and blood stains were also found in the

Innova car no. GJ-06-ES-1717 belonging to the accused no.

1. The accused no. 2 showed the place of offence which

was Ambika Stamping Factory from where blood stains

were found, the place where the black pant of the

deceased with blood stains and the baseball bat with

blood stains were thrown and the place where the dead

body of the deceased was thrown and there were blood

stains found on the ground, blood stains were also found

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in the Verna car no. GJ-16-ES-1717 belonging to the

accused no. 2 and also on the clothes of the accused no.

2.

10.The law with regard to circumstantial evidence is well

settled and as far as circumstantial evidence is concerned

the Apex Court in Sharad Birdhi Chand V. State of

Maharashtra reported in 1984 SCC (4) 116 has

observed as under :

……….It is well settled that the prosecution must

stand or fall on its own legs and it cannot derive any

strength from the weakness of the defence. This is

trite law and no decision has taken a contrary view.

What some cases have held is only this: where

various links in a chain are in themselves complete

than a false plea or a false defence may be called

into aid only to lend assurance to the Court. In other

words, before using the additional link it must be

proved that all the links in the chain are complete

and do not suffer from any infirmity. It is not the law

that where is any infirmity or lacuna in the

prosecution case, the same could be cured or

supplied by a false defence or a plea which is not

accepted by a Court.

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Before discussing the cases relied upon by the

High Court we would like to cite a few decisions on

the nature, character and essential proof required in

a criminal case which rests on circumstantial

evidence alone. The most fundamental and basic

decision of this Court is Hanumant v. The State of

Madhya Pradesh. This case has been uniformly

followed and applied by this Court in a large number

of later decisions up to date, for instance, the cases

of Tufail (Alias) Simmi v. State of Uttar Pradesh and

Ramgopal v. State of Maharashtra. It may be useful

to extract what Mahajan, J. has laid down in

Hanumant's case (supra):

"It is well to remember that in cases where the

evidence is of a circumstantial nature, the

circumstances from which the conclusion of guilt is to

be drawn should in the first instance be fully

established and all the facts so established should be

consistent only with the hypothesis of the guilt of the

accused. Again, the circumstances should be of a

conclusive nature and tendency and they should be

such as to exclude every hypothesis but the one

proposed to be proved. In other words, there must be

a chain of evidence so far complete as not to leave

any reasonable ground far a conclusion consistent

with the innocence of the accused and it must be

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such as to show that within all human probability the

act must have been done by the accused."

A close analysis of this decision would show that the

following conditions must be fulfilled before a case

against an accused can be said to be fully

established:

(1)the circumstances from which the conclusion of

guilt is to be drawn should be fully established. It

may be noted here that this Court indicated that the

circumstances concerned 'must or should' and not

'may be' established. There is not only a grammatical

but a legal distinction between 'may be proved' and

'must be or should be proved' as was held by this

Court in Shivaji Sahabrao Bobade & Anr. v. State of

Maharashtra where the following observations were

made:

"Certainly, it is a primary principle that the accused

must be and not merely may be guilty before a court

can convict and the mental distance between 'may

be' and 'must be' is long and divides vague

conjectures from sure conclusions."

(2) The facts so established should be consistent only

with the hypothesis of the guilt of the accused, that is

to say. they should not be explainable on any other

hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive

nature and tendency.

(4) they should exclude every possible hypothesis

except the one to be proved, and

(5) there must be a chain of evidence so complete as

not to leave any reasonable ground for the

conclusion consistent with the innocence of the

accused and must show that in all human probability

the act must have been done by the accused.

These five golden principles, if we may say so,

constitute the panchsheel of the proof of a case

based on circumstantial evidence.

11.The question that arises before us is whether the

learned Trial Court has appreciated all the circumstances

in the evidence in light of the observations of the Apex

Court in the case of Sharad Birdhi Chand (supra) or

whether there are any breaks in the chain of evidence to

connect the accused with the crime?

12.We have minutely perused and analyzed the

evidence in this case and find that the case of the

prosecution rests on the circumstances, whereby, during

investigation the Investigating Officer has recovered the

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weapons that were used in the offence, namely the iron

scissor and baseball bat, the pant of the deceased stained

with blood and blood stains found from Ambika Stamping

Factory, Innova car and Verna car which were recovered

at the instance of the accused no. 1 and the accused no. 2

in the presence of the panch witnesses vide the

panchnamas under Section 27 of the Indian Evidence Act.

13.With regard to Section 27 of the Indian Evidence Act,

the Apex Court in Bodh Raj @ Bodha and others V.

State of Jammu and Kashmir reported in 2002 (7) SCC

334 in para 18 has observed as under :

18.Emphasis was laid as a circumstance on

recovery of weapon of assault, on the basis of

informations given by the accused while in custody.

The question is whether the evidence relating to

recovery is sufficient to fasten guilt on the accused.

Section 27 of the Indian Evidence Act, 1872 (in short

the Evidence Act') is by way of proviso to Sections 25

to 26 and a statement even by way of confession

made in police custody which distinctlv relates to the

fact discovered is admissible in evidence against the

accused, This position was succinctly dealt with by

the this Court in Delhi Admn vs Balakrishan. AIR

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(1972) SC 3 and Md. Inayatullah v. State of

Maharashtra. AIR (1976) SC 483. The words "so much

of such information" as relates distinctlv to the fact

thereby discovered. are very important and the

whole force of the section concentrates on them.

Clearly the extent of the information admissible must

depend on the exact nature of the fact discovered to

which such information is required to relate, The ban

as imposed by the preceding sections was

presumably inspired by the fear of the Legislature

that a person under police influence might be

induced to confess by the exercise of undue

pressure. If al! that is required to lift the ban be the

inclusion in the confession of information relating to

an object subsequently produced, it seems

reasonable to suppose that the persuasive powers of

the police will prove equal to the occasion: and that

in practice the ban will lose its effect. The object of

the provision i.e. Section 27 was to provide for the

admission of evidence which but for the existence of

the section could not in consequences of the

preceding sections, be admitted in evidence. It would

appear that under Section 27 as it stands in order to

render the evidence leading to discovery of any fact

admissible, the information must come from any

accused in custody of the police. The requirement of

police custody is productive of extremely anomalous

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results and may lead to the exclusion of much

valuable evidence in cases where a person, who is

subsequently taken in to custody and becomes an

accused. after committing a crime meets a police

officer or voluntarily goes to him or to the police

station and states the circumstances of the crime

which lead to the discovery of the dead body,

weapon or any other material fact. in consequence of

the information thus received from him. This

information which is otherwise admissible becomes

inadmissible under Section 27 if the information did

come from a person not in the custody of a police

officer or did come from a person not in the custody

of a police officer. The statement which is admissible

underSection 27 is the one which is the information

leading to discovery Thus, what is admissible being

the information, the same has to be proved and not

the opinion formed on it by the police officer. in other

words, the exact information given by the accused

while in custody which led to recovery of the articles

has to be proved. !t is, therefore, necessary for the

benefit of both the accused and prosecution that

information given should be recorded and proved and

if not so recorded, the exact information must be

adduced through evidence. The basic idea embedded

in Section 27 of the Evidence Act is the doctrine of

confirmation by subsequent events. The doctrine is

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founded on the principle that if any fact is discovered

as a search made on the strength of any Information

obtained from a prisoner. such a discovery is a

guarantee that the Information supplied by the

prisoner is true. The information might be

confessional or non- inculpatory in nature but if it

results in discovery of a fact. it becomes a reliable

information. it is now well settled that recovery of an

object is not discovery of fact envisaged in the

section. Decision of Privy Council in Palukuri Kotayya

v. Emperor AIR (1947) PC 67, is the most quoted

authority of supporting the interpretation that the

"fact discovered" envisaged in the section embraces

the place from which the object was produced, the

knowledge of the accused as to it, but the

information given must relate distinctly to that effect.

[see Stale of Maharashtra v. Dam Gopinath Shirde

and Ors, (2000) Crl.L.J 2301. No doubt, the

information permitted to be admitted in evidence is

confined to that portion of the information which

"distinctly relates to the fact thereby discovered.''

But the information to get admissibility need not be

so truncated as to make it insensible or

incomprehensible. The extent of information

admitted should be consistent with understandability.

Mere statement that the accused led the police and

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the witnesses to the place where he had concealed

the articles is not indicative of the information given.

14.On examination of the evidence of the prosecution in

light of the above principles of law we find that PW23 -

Dipakbhai Bachubhai Jingar is the panch witness of the

panchama produced at Exh. 80 by which the accused no.

2 had shown the place of offence which was in Ambika

Stamping Factory, where blood stains were found, the

place from where one black pant with blood stains and

three pieces of the baseball bat were recovered and the

place where the dead body was thrown. PW24 - Yakubbhai

Hasanbhai Shaikh is the panch witness of the panchnama

produced at Exh. 83, wherein the Investigating Officer had

seized Toyota Innova car No. GJ-06-ES-1717 but the

witness has not supported the case of the prosecution and

has stated that no car was seized in his presence. PW25 -

Satish Natubhai Patel is the p anch witness of the

panchnama produced that Exh. 85, wherein the accused

no. 2 voluntarily showed the Verna car No. GJ-16-AA-8722,

which was parked in front of his house and blood stains

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were found in the dicky of the Verna car but witness has

not deposed as to whether in his presence the accused no.

2 had voluntarily made a statement that he was ready to

show the car that was used in the offence. PW28 -

Gautambhai Hashmukhbhai Shah is the panch witness of

the Panchama produced at Exh. 93 whereby the accused

no. 1 had voluntarily showed the place of offence and from

that place the iron scissor was recovered, but the witness

has not stated that the accused no. 1 had volunteered to

show the place and as per the say of the accused no. 1,

they had gone and the iron scissor was recovered. PW47 -

the Investigating Officer - Devshibhai Ramjibhai Makwana

has not deposed the exact words uttered by the accused

at the Police Station in the presence of the p anch

witnesses before going for the recovery of the weapons or

the car and the details of the contents of the panchnama

have not come on record. There is no iota of evidence in

the deposition of the Investigating Officer that the accused

no. 1 or the accused no. 2 had voluntarily agreed to show

the weapons or the car and that the part-I of the

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panchnama was drawn and thereafter, they all left as per

the say of the accused and went to the place where the

weapons and cars were found. The Investigating Officer

has merely stated that he had recorded the statements of

the accused and the weapons were seized as per the

panchnama.

15.The Apex Court in Ramanand @ Nandlal Bharti V.

the State of Uttar Pradesh passed in Criminal Appeal

No. 64 - 65 of 2022 in para 56 has observed as under :

56. The requirement of law that needs to be fulfilled

before accepting the evidence of discovery is that by

proving the contents of the panchnama. The

Investigating Officer in his deposition is obliged in law

to prove the contents of the panchnama and it is only

if the Investigating Officer has successfully proved

the contents of the discovery panchnama in

accordance with law, then in that case the

prosecution may be justified in relying upon such

evidence and the trial court may also accept the

evidence. In the present case, what we have noticed

from the oral evidence of the Investigating Officer,

PW-7, Yogendra Singh is that he has not proved the

contents of the discovery panchnama and all that he

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has deposed is that as the accused expressed his

willingness to point out the weapon of offence the

same was discovered under a panchnama. We have

minutely gone through this part of the evidence of

the Investigating Officer and are convinced that by

no stretch of imagination it could be said that the

Investigating Officer has proved the contents of the

discovery panchnama (Exh.5). There is a reason why

we are laying emphasis on proving the contents of

the panchnama at the end of the Investigating

Officer, more particularly when the independent

panch witnesses though examined yet have not said

a word about such discovery or turned hostile and

have not supported the prosecution. In order to

enable the Court to safely rely upon the evidence of

the Investigating Officer, it is necessary that the

exact words attributed to an accused, as statement

made by him, be brought on record and for this

purpose the Investigating Officer is obliged to depose

in his evidence the exact statement and not by

merely saying that a discovery panchnama of

weapon of offence was drawn as the accused was

willing to take it out from a particular place.

16.In light of the above settled principles of law with

regard to acceptance of the evidence of discovery of

weapons or incriminating blood stains from the vehicles,

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we find that the panch witnesses have not fully supported

the case of the prosecution and have not stated the exact

words uttered by the accused in the preliminary

panchnama and the panch witnesses have not deposed

about the entire fact as to how they had left the police

station and gone to the place and recovered the

incriminating articles as per the say of the accused and

also the evidence of the Investigating Officer which does

not prove the contents of the panchama, the evidence of

recovery of the iron scissor and pieces of the baseball bat,

black pant with blood stains, blood stains at the Ambika

Stamping Factory, blood stains in Innova car No. GJ-06-ES-

1717 and Verna car No. GJ-16-AA-8722 cannot be treated

as legal evidence as there are various legal infirmities in

the same and the contents of the panchnamas are not

proved by the panch witnesses or the Investigating

Officer.

17.Even otherwise, the prosecution has not produced

any documentary evidence to prove that the accused no.

1 was the owner and in possession of Ambika Stamping

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Factory and was the registered owner of Innova car No. GJ-

06-ES-1717 and that the accused no. 2 was the registered

owner of Verna car no. GJ-16-AA-8722. In the further

statement of the accused no. 1, he has denied that he was

the owner of Ambika Stamping Factory and one Hemant

Bhalchandra Vedana was the owner and occupier of

Ambika Stamping Factory. The prosecution has examined

PW14 - Surajmal Motilal Khichi who, as per the case of the

prosecution, is the registered owner of Innova car No. GJ-

06-ES-1717 and he has stated that he had sold the car to

the accused no. 1 but no documentary evidence is

produced to prove that the car was sold to the accused no.

1. The Investigating Officer has seized in all four vehicles

during investigation namely one Innova car, one Verna car

and two motorcycles during investigation but the RC

books of none of the vehicles have been produced on

record and there are no documentary evidences to prove

that the accused were the registered owners of the

vehicles.

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18.One of the arguments advanced by the learned

advocate for the accused is that there are no documentary

evidences produced by the prosecution on record to prove

the motive which was that the deceased had loaned a

huge amount of money to the accused no. 1 and the

deceased was demanding the amount and the accused no.

1 did not want to pay the amount, hence he, along with

the other co-accused committed the murder of the

deceased. In the evidence of the prosecution, the

complainant who is the son of the deceased, the wife of

the deceased, the father of the deceased and the

employee of the deceased have all stated that the

deceased had loaned some amount to the accused no. 1.

The son of the deceased has stated that an amount of

₹1,77,00,000/- was loaned to the accused no. 1 but there

is no evidence as to when, where and how the huge

amount of ₹1,77,00,000/- was given by the deceased to

the accused no. 1. If as per the case of the prosecution, a

huge amount of ₹1,77,00,000/- was in fact loaned by the

deceased, there would be documentary evidence to show

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this huge amount of financial transaction which would be

reflected even in the books of accounts of the deceased.

The complainant or any witness has not produced any

documentary evidences on record and from the oral

evidence of the witnesses who are the family members

and employee of the deceased, whether it can be said that

the motive is proved? Admittedly, the case of the

prosecution rests on circumstantial evidence and there

are no eye witnesses to the incident and hence, as per the

settled principles of criminal jurisprudence, the motive

assumes greater importance. In the instance case, there is

no iota of evidence to prove the motive and if the murder

of the deceased has been committed due to financial

transactions, the same would be in black and while and in

the possession of the complainant and family members of

the deceased as admittedly he was a business man but no

such evidence is produced on record and hence, we are of

the considered opinion that the motive is not proved by

the prosecution beyond reasonable doubts.

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19.The appellants have been convicted and sentenced

for the offence under Section 302 read with Section 34 of

the IPC which reads as under:

Section 34 : Acts done by several persons in

furtherance of common intention:

When a criminal act is done by several persons in

furtherance of the common intention of all, each such

person is liable for that act in the same manner as if

it were done by him alone.

20.To prove the offence under Section 34 of the Indian

Penal Code, the prosecution has to prove that there was a

common intention in the sense of a prearranged plan

between the persons and the persons who are held to be

liable have participated in some manner in the act,

constituting the offence. The condition precedent which is

required to be satisfied to attract Section 34 of the Indian

Penal Code is that the act must have been done by more

than one person and the said persons must have shared a

common intention either by omission or commission in

effectuating the crime. Moreover, the common intention

must be anterior in point of time to the commission of the

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crime, which means a prearranged plan. When there is

neither pre-concert nor meeting of minds, Section 34 of

the Indian Penal Code is not attracted.

21.The Apex Court in Krishnamurthy @ Gunodu and

Others V. State of Karnataka in Criminal Appeal No.

288 OF 2022 (Arising out of Special Leave Petition (Crl.)

No. 6893 of 2021) in paras 18 and 19 has observed as

under

18. Section 34 IPC makes a co-perpetrator, who had

participated in the offence, equally liable on the

principle of joint liability. For Section 34 to apply there

should be common intention between the co-

perpetrators, which means that there should be

community of purpose and common design or pre-

arranged plan. However, this does not mean that co-

perpetrators should have engaged in any discussion,

agreement or valuation. For Section 34 to apply, it is

not necessary that the plan should be pre-arranged or

hatched for a considerable time before the criminal

act is performed. Common intention can be formed

just a minute before the actual act happens. Common

intention is necessarily a psychological fact as it

requires prior meeting of minds. In such cases, direct

evidence normally will not be available and in most

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cases, whether or not there exists a common intention

has to be determined by drawing inference from the

facts proved. This requires an inquiry into the

antecedents, conduct of the co-participants or

perpetrators at the time and after the occurrence. The

manner in which the accused arrived, mounted the

attack, nature and type of injuries inflicted, the

weapon used, conduct or acts of the

co-assailants/perpetrators, object and purpose behind

the occurrence or the attack etc. are all relevant facts

from which inference has to be drawn to arrive at a

conclusion whether or not the ingredients of Section

34 IPC are satisfied. We must remember that Section

34 IPC comes into operation against the co-

perpetrators because they have not committed the

principal or main act, which is undertaken/performed

or is attributed to the main culprit or perpetrator.

Where an accused is the main or final perpetrator,

resort to Section 34 IPC is not necessary as the said

perpetrator is himself individually liable for having

caused the injury/offence. A person is liable for his

own acts. Section 34 or the principle of common

intention is invoked to implicate and fasten joint

liability on other co-participants. Further, the

expression/term “criminal act” in Section 34 IPC refers

to the physical act, which has been done by the co-

perpetrators/participants as distinct from the effect,

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result or consequence. In other words, expression

“criminal act” referred to in Section 34 IPC is different

from “offence”. For example, if A and B strike Lathi at

X, the criminal act is of striking lathis, whereas the

offence committed may be of murder, culpable

homicide or simple or grievous injuries. The

expression “common intention” should also not be

confused with “intention” or “mens rea” as an

essential ingredient of several offences under the IPC.

Intention may be an ingredient of an offence and this

is a personal matter. For some offences, mental

intention is not a requirement but knowledge is

sufficient and constitutes necessary mens rea. Section

34 IPC can be invoked for the said offence also [refer

Afrahim Sheikh and Ors. (supra)]. Common intention is

common design or common intent, which is akin to

motive or object. It is the reason or purpose behind

doing of all acts by the individual participant forming

the criminal act. In some cases, intention, which is

ingredient of the offence, may be identical with the

common intention of the co-perpetrators, but this is

not mandatory.

19. Section 34 IPC also uses the expression “act in

furtherance of common intention”. Therefore, in each

case when Section 34 is invoked, it is necessary to

examine whether the criminal offence charged was

done in furtherance of the common intention of the

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participator. If the criminal offence is distinctly remote

and unconnected with the common intention, Section

34 would not be applicable. However, if the criminal

offence done or performed was attributable or was

primarily connected or was a known or reasonably

possible outcome of the preconcert/contemporaneous

engagement or a manifestation of the mutual consent

for carrying out common purpose, it will fall within the

scope and ambit of the act done in furtherance of

common intention. Thus, the word “furtherance”

propounds a wide scope but should not be expanded

beyond the intent and purpose of the statute. Russell

on Crime, (10th edition page 557), while examining

the word “furtherance” had stated that it refers to

“the action of helping forward” and “it indicates some

kind of aid or assistance producing an effect in the

future” and that “any act may be regarded as done in

furtherance of the ultimate felony if it is a step

intentionally taken for the purpose of effecting that

felony.” An act which is extraneous to the common

intention or is done in opposition to it and is not

required to be done at all for carrying out the common

intention, cannot be said to be in furtherance of

common intention [refer judgment of R.P. Sethi J. in

Suresh (supra)].

22.With regard to the applicability of Section 34 of the

IPC, we have perused the evidence in light of the above

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referred case of the Apex Court and find that there is no

evidence on record to show any prior meeting of minds of

the accused. It is settled law that direct proof of common

intention is seldom available and the intention can only be

inferred from the circumstances appearing from the

proved facts of the case and the proved circumstances. In

this matter, there is no direct or circumstantial evidence

to conclude that there was a plan or meeting of mind of all

the accused persons to commit the offence for which they

are convicted with the aid of Section 34 of the IPC. From

the record, it does not appear that the learned Trial Court,

to fasten the vicarious liability, has satisfied itself that

there was a prior meeting of mind of the accused no. 1

and the other accused. From the evidence on record, the

presence of the accused nos. 3 and 4 at the place of

offence and their participation in the commission of the

offence is not clearly made out and there is no evidence to

conclude that they have done any act in furtherance of

the common intention. As there are no incriminating

material or other corroborative evidence pointing to the

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participation of the accused in the offence, the conviction

of the accused under Section 34 cannot be sustained.

23.In view of the above discussions, we of the

considered opinion that the prosecution has not fully

established the circumstances to come to a conclusion

about the guilt and the involvement of the appellants in

the offence. The circumstances that are placed on record

are not consistent with the hypothesis of the guilt of the

appellant and they do not exclude every possible

hypothesis except the one to be proved which is the

involvement of the appellants in the offence. The chain of

evidence on record is not complete and it cannot be said

that in all human probability, only the appellants have

committed the offence. We are also of the considered

opinion that the prosecution has not proved the motive

and considering the various legal infirmities in the

evidence of the panch witnesses and Investigating Officer,

there is no legal evidence on record to sustain the

conviction of the accused and consequently, the Criminal

Appeal No. 1596 of 2018 filed by the appellants - original

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accused no. 1 - Dipakbhai Bachubhai Prajapati and

accused no. 3 - Ganesh @ Ganu @ Ganio Nilkanth, the

Criminal Appeal No. 1397 of 2018 filed by the accused no.

4 - Subhas Rajendra @ Umajirav Barokar and Criminal

Appeal no. 1442 of 2018 filed by appellant- original

accused no. 2 – Abdul @ Munno @ Thumsup Rahemanbhai

Shaikh are allowed. The conviction of the appellants in

Criminal Appeal No. 1596/2018, Criminal Appeal No.

1397/2018 and Criminal Appeal No. 1442/2018 under

Section 302 read with Section 34 of the IPC is set aside.

The appellants shall be set at liberty, forthwith if not

required to be detained in connection with any other

offences.

24.Bail bonds stand cancelled and fine if any paid by the

appellants be refunded. Registry is directed to send the R

& P to the learned Trial Court and to maintain a copy of

this judgement in each matter.

(ILESH J. VORA,J)

(S. V. PINTO,J)

VASIM S. SAIYED

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