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PETITIONER:

RAMESH BABULAL DOSHI

Vs.

RESPONDENT:

THE STATE OF GUJARAT

DATE OF JUDGMENT: 02/05/1996

BENCH:

MUKHERJEE M.K. (J)

BENCH:

MUKHERJEE M.K. (J)

KURDUKAR S.P. (J)

CITATION:

1996 AIR 2035 JT 1996 (6) 79

1996 SCALE (4)185

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

M.M. MUKHERJEE, J.

This appeal under Section 379 Cr.P.C. is directed

against the judgment dated October 15/16, 1987 rendered by

the Gujarat High Court in Criminal Appeal No. 746 of 1981

whereby it reversed the acquittal of the appellant of the

charges under Sections 302, 201, 212, 364, 365 and 397 IPC

recorded in his favour by the Sessions Judge, Surat and

convicted and sentenced him under Section 302 and 201 IPC,

while upholding the acquittal of three others who were

arraigned with him.

2. The prosecution case, so far as it is relevant for

disposal of this appeal, is as under:

(a) Khodabhai Amarshi Patel (the deceased) used to reside

in the city of Surat along with his wife Raiben (PW 2) and

two children and carry on business in diamonds. On September

2, 1980 (which was the Janmastami day) he left his residence

in the morning with a packet containing diamonds worth Rs.

60,000/- after informing his wife that a person was waiting

for him in the market. As he had not returned home till 3

P.M. his wife requested Shamjibhai Manjibhai (P.W.8) to

enquire of his whereabouts. Shamjibhai first went to the

office of Gordhanbbhai Patel (P.W.1), a cousin of the

deceased, where he found Manjibhai Devjibhai (PW 10)

sitting. He (PW 10) disclosed that at noon time he had seen

the deceased near the market, sitting on the pillion of a

scooter which was being driven by Ramesh (the appellant).

They then went in search of the deceased in the market and

other places but could not trace him out. Ultimately

Gordhanbhai went to the Chowk Bazar Police Station at or

about 11.45 P.M. and lodged a missing information (Ext. 63).

(b) In the meantime, some people of Patel community, to

which the deceased belonged, having learnt that he was

missing also started searching for him. In course of the

search some of them went to the flat of the appellant, which

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was on the fourth floor of a building named `Yagnapurush',

at Rampura. On their query the appellant informed them that

along with the deceased he had gone to the office of

Jayantibhai Master to show him some diamonds but as his

office was closed they came back and on the way the deceased

got down at Rampura.

On the following day, that is, on September 3, 1980

attempts where again made to trace out the deceased but

without success. However, in course of the search

Gordhanbhai learnt from Mukesh Chandra Maganlal Parekh (PW

9) that on the previous day at or about 1 P.M. he had also

seen the deceased going towards Athwa with the appellant on

a scooter. Gordhanbhai then went to the police station at or

about 11.30 P.M. and lodged a formal complaint (Ext. 14)

alleging that the appellant had kidnapped the deceased to

grab the diamonds he was having with him. Police Inspector

Chandravadan Himatlal Jaiswal (P.W.31) recorded that

information and registered a case thereupon. He then went to

the flat of the appellant but found it closed from outside.

(d) As the appellant was not traceable on the next day

(September 4, 1980) also Sri Jaiswal started making

enquiries about his relatives including his brother-in-law

R. R. Seth who was residing at Shrinath Apartment,

Timeliswad, Nanpura. In the meantime the investigation of

the case was handed over to Police Inspector Mr. A.N.

Vaghela (P.W.43).

(e) After taking over investigation Inspector Vaghela,

alongwith R.R. Seth and panchas went to his (appellant's)

flat in the early hours of September 5, 1981 only to find it

still locked. After breaking open the lock he searched the

flat but found nothing incriminating except a pair of blood-

stained trousers (Art. No.1) hanging from a peg which he

seized under a panchnama (Ex.53). After completion of search

he locked the apartment and handed over the key to Sri Seth.

(f) On the same day, at or about 2.00 P.M. he (P.W.33),

received an information that one trunk emitting foul smell

was lying in the outskirt of the city by the side of Udhna-

Magdalla Road. He therefore left for that place and reaching

there found a trunk (Art.2) lying in a bush, at a distance

of 10 feet from the road. He broke open the lock in presence

of panchas and therein saw a decomposed body tied with

string. He held inquest upon the dead body and got its

photographs taken. He then sent the dead body to the Civil

Hospital for post-mortem examination. While in the hospital

the dead body was identified by Jivajibhai Premjibhai as

that of his brother-in-law Khodabhai (the deceased).

(g) In that night Bhupendrabhai Chunilal (since acquitted)

was arrested but as the appellant could not be traced in

Surat, Sub-Inspector Devkar (P.W.32) was sent to his native

place in the district of Banaskantha to apprehend him.

Ultimately, he succeeded in arresting the appellant

alongwith his father and one Bharatkumar (since acquitted)

from village Rajpur on the following morning. On search a

packet containing diamonds was found in the pocket of the

trousers the appellant was wearing.

(g) On September 9, 1980 Mr. Vaghela alongwith panchas and

Anil Kumar Mehta, Junior Scientific Assistant, Forensic

Scientific Laboratory, went to the flat of the appellant

accompanied by him (who was in police custody then) and

seized a number of articles including a chair, blanket,

trousers and a bush-shirt from its different rooms all of

which were found blood stained. Besides, he got photographs

of blood-stains found on the wall and the floor taken.

(h) On completion of investigation chargesheet was

submitted against the four persons arrested during

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investigation, including the appellant, and in due course

the case was committed to the Court of Session.

3. The appellant pleaded not guilty to the charges

levelled against him and contended that he had been

implicated in the case on mere suspicion.

4. To sustain the charges levelled against the accused

persons the prosecution rested its case on, in absence of

any eye witness, circumstantial evidence. To prove that the

dead body of Khodabhai was found in a trunk by the side of

Udhna Magdalla Road, in the vicinity of the city of Surat on

September 5, 1980 between 1.30 and 2 P.M. with multiple

injuries on his person, which clearly indicated that he was

murdered, the prosecution examined amongst others,

Jivrajbhai (PW 22), brother-in-law of the deceased who

identified the dead body, Police Inspector Vaghela (PW 33),

who held inquest, and Dr. Singal (PW 17) who held post

mortem examination thereupon. We need not, however, detail

or discuss their evidence as the concurrent findings of the

learned Courts below in this regard is based on proper

appreciation of the evidence. Indeed, this part of the

prosecution case was not challenged by the defence.

5. That brings us to the crucial question whether the

prosecution has succeeded in conclusively proving that the

appellant committed the murder and then removed the dead

body at the place where it was found to screen himself from

legal punishment. To bring home the above accusations the

prosecution relied upon the following circumstances:

(i) The appellant, who also dealt in diamonds, and the

deceased were seen moving on a scooter between 12 noon and

1.30 P.M. on September 2, 1980;

(ii) Thereafter, on the same day, between 1.30 P.M. to 1.45

P.M. the deceased was seen talking with the appellant in his

(appellant's) flat, on the fourth floor of the building

`Yaganapurush';

(iii) On following morning, (at or about 7.30 A.M. on

September 3, 1980) the appellant was seen going out of

`Yagnapurush' along with others with a trunk (Article No.2),

in which the dead body of Khadabhai was subsequently

recovered on September 5, 1980;

(iv) In the night between September 4/5, 1980 a pair of

blood-stained trousers (Article No. 1) was seized from the

flat of the appellant;

(v) Diamonds (Article No.8) worth Rs.63,000/- were

recovered from the pocket of the trousers the appellant was

wearing at the time of his arrest on September 7, 1980;

(vi) Some of the articles that were seized from the flat of

the appellant in the morning of September 9, 1980 were found

to contain human blood of Group A, which was the blood group

of the deceased also; and

(vii) A piece of string which was also seized from the

flat of the appellant on September 9, 1980 was similar to

the string with which the deadbody of Khodabhai was found

tied.

6. The trial Court discussed the evidence adduced by the

prosecution in support of each of the above circumstances at

great length (the judgment runs through 178 pages) and held

that the prosecution could not satisfactorily prove any one

of them. In setting aside the above judgment and convicting

the appellant the High Court recorded the following

findings:

"In our view, therefore, the

prosecution has proved beyond

reasonable doubt that the accused

and deceased were seen together on

a scooter on 2.9.80. Thereafter

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they were seen in the block of

accused No.1 at 1.30 p.m. Accused

No. 1 was seen panicky at about

4.00 to 4.30 p.m. On the next day

i.e. on 3rd September, 1980 the

accused along with other persons

was seen going with metallic box

similar to article No.2 in which

the dead body of Khodabhai was

found. The box was lifted by two

persons i.e. one handle was held by

accused No.1 and other was held by

an other person. From the apartment

of accused No.1 number of articles

as stated above containing human

blood group A were found. The blood

of the deceased Khodabhai is also

A. These circumstances, in our

view, prove beyond reasonable doubt

that the accused No.1 (the

appellant) is guilty for the

offence punishable under Sections

302 and 201 of the Indian Penal

Code."

7. Before proceeding further it will be pertinent to

mention that the entire approach of the High Court in

dealing with the appeal was patently wrong for it did not at

all address itself to the question as to whether the reasons

which weighed with the trial Court for recording the order

of acquittal were proper or not. Instead thereof the High

Court made an independent reappraisal of the entire evidence

to arrive at the above quoted conclusions. This Court has

repeatedly laid down that the mere fact that a view other

than the one taken by the trial Court can be legitimately

arrived at by the appellate Court on reappraisal of the

evidence cannot constitute a valid and sufficient ground to

interfere with an order of acquittal unless it comes to the

conclusion that the entire approach of the trial Court in

dealing with the evidence was patently illegal or the

conclusions arrived at by it were wholly untenable. While

sitting in judgment over an acquittal the appellant Court is

first required to seek an answer to the question whether the

findings of the trial Court are palpably wrong, manifestly

erroneous or demonstrably unsustainable. If the appellant

Court answers the above question in the negative the order

of acquittal is not to be disturbed. Conversely, if the

appellant Court holds, for reasons to be recorded, that the

order of acquittal cannot at all be sustained in view of any

of the above infirmities it can then - and then only -

reappraise the evidence to arrive at its own conclusions. In

keeping with the above principles we have therefore to first

ascertain whether the findings of the trial Court are

sustainable or not.

8. Of the various incriminating circumstances alleged

against the appellant (detailed earlier) the two which in

our opinion, are clinching are circumstances No. (iii) and

(vi). To prove the former the prosecution relied upon the

evidence of Dahyabhai Ratanji (P.W.3), the watchman of

`Yagnapurush', and Dhirubhai Babulal Shah (P.W.4) and

Smitaben (P.W.6), residents of that building. P.W.3 deposed

that on September 3, 1980 at or about 7.30 A.M. he had seen

the appellant going upstairs alongwith another man and a

little later saw them coming down the staircase with a big

trunk wherefrom blood coloured drops were trickling and the

younger brother of the appellant (since acquitted) wiping

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out the steps of the staircase to remove those drops. After

going out of the building they talked to a person standing

by the side of rickshaw stationed nearby. One or two minutes

thereafter that person left the place with the rickshaw and

then the appellant and others proceeded ahead. PW 3 next

stated that a little later he had asked Dhirubhai Babulal

Shah (P.W.4), as to why those persons had come at that time

to which Dhirubhai's answer was that as he was sleeping he

did not know anything. In cross-examination he admitted that

till his statement was recorded by the police on September

7, 1980 he had not disclosed to anybody what he had seen in

the morning of September 3, 1980. He further admitted that

though in the evening of `third' (obviously referring to

September 3, 1980) and also in the night of September 3,

1980 police officers and other persons had come in search of

the appellant and had remained in his flat for some time and

that though at that time he know that the appellant was

involved in the offence he did not speak to them about the

appellant's movement that morning. According to PW 3 he went

to the police station on September 6, 1980 on being summoned

by them and was detained there from 12 noon of that day till

1.00 A.M. on the following day, when he was released after

his statement was recorded. He also admitted that even

though Nathubhai had earlier asked him of the whereabouts of

the appellant he did not tell him anything. In view of the

answers so given by him in cross-examination the trial Court

observed that it was difficult to believe that if really he

had seen Ramesh going down the building with the trunk on

September 3, 1980 he would not disclose the same to the

police and other people who had been coming to the flat of

the appellant since the night of September 2, 1980 in search

of the appellant, more so when he was the watchman of that

building. It further observed that the fact that he made his

disclosure as late as on September 7, 1980, after he was

detained for 13 hours by the police, made his testimony

suspect. For the above reasons the trial Court expressed its

inability to rely upon his testimony.

9. The trial Court next discussed the evidence of

Dhirubhai Babulal Shah (P.W.4), resident of flat No. 28,

which is on the same floor as that of the appellant. He

stated that when he was brushing his teeth while standing in

the gallery he saw the appellant talking with a

rickshawpullar on the road in front of the building and a

galvanized steel trunk lying nearby. Besides the appellant

he saw his younger brother and some other persons standing

there. He next stated that a few minutes later he saw the

appellant and one person holding the trunk and going away.

The trial Court discussed his evidence at length keeping in

view the various material contradictions brought on record

with reference to his statement recorded under Section 161

Cr.P.C. and concluded that though right from September 3,

1980 till the morning of September 5, 1980 he had several

opportunities to divulge what he had seen he did not

disclose the same either to the police or the members of the

Patel Community who had come to meet the appellant

suspecting his involvement in the disappearance of

Khodabhai. The trial Court further noticed that PW 4

admitted that the police had called him and several other

persons at the police station on 6th September and detained

them in one room till the afternoon of 7th September, 1980

when they were allowed to go after interrogation. The trial

Court next observed that PW 4 had also tried to improve upon

his police version, in view of the various contradiction

appearing in the evidence of this witness which had been

brought on record. For all these reasons the trial Court did

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not feel inclined to rely upon the same. Similar was the

comment by the trial Court regarding the other witness,

namely, Smitaben (P.W.6), who claimed to have seen the

appellant and other persons standing near the rickshawpullar

with a trunk while brushing her teeth standing on the

balcony. This witness also stated that the police had taken

her for recording her statement between 3.00 P.M. to 4.00

P.M. on September 6, 1980 and before that day she did not

disclose those facts to the Patels who had come in search of

the appellant. The trial Court also referred to the various

material contradictions brought on record with reference to

her statement recorded under Under Section 161 Cr.P.C.

Having carefully gone through the evidence of these three

witnesses we find that each of the reasons given by the

trial Court for disbelieving them are clear, cogent and

convincing.

10. While on this point we may refer to another decisive

finding recorded by the trial Court which takes the wind out

of the sail of the prosecution case. As already noticed,

prosecution sought to establish that as the deceased was

seen alive and talking to the appellant in his flat at or

about 1.30 P.M. on September 2, 1980 and the trunk carrying

his deadbody was seen being taken out of the building on the

following morning the appellant must have committed the

murder in his flat in between this period. In laying bare

the utter absurdity of this claim of the prosecution the

trial Court first referred to the evidence of Manjibhai

Devjibhai (P.W.10), Savjibhai (P.W.20) and Dahyabhai Ratanji

(PW 3), the watchman, wherein they had claimed to have gone

to the flat of the appellant to inquire about the deceased

and met him (the appellant) at different hours of the night

between September 2 and 3, 1980 and drew the following

conclusions:

"Now when the prosecution witnesses

Manjibhai Devjibhai and Savjibhai

Naranbhai were searching for

Khodabhai and were Knowing that

accused No.1 knew about Khodabhai

and they had gone thrice to the

flat of accused No.1 and stood

outside as they knew that if they

were to admit that they had entered

the flat then they would have to

further admit that they did not

find Art. No.2 - the trunk

containing the dead body of

Khodabhai in the flat at that time.

But I do not think that when they

have gone thrice to the flat of

accused No.1 Ramesh then they would

not have entered the flat and that

they would not have noticed Art.

No.2, the trunk if it were in the

flat. Now the medical evidence

shows that the head injury found on

the dead body of deceased Khodabhi

could be caused by hard and blunt

substance and the incised wounds

found on the dead body of Khodabhai

could be caused by sharp-cutting

instrument, and therefore in order

to cause head injuries and incised

wounds, hard blunt substance and

sharp-cutting instruments were

used. Now flat No. 29 is situated

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by the side of flat No. 28, and

flat No. 30 is also situated by the

side of flat No. 29 and that flats

Nos. 31 and 32 are situated

opposite to flats No. 28, 29, and

30 and that there is a common wall

between flats Nos, 29 and 30 and

the entrance door of flats No. 29

and 30 is falling on 1-1/2 feet

balcony where there is staircase,

and that opposite to Yagnapurush

apartment and leaving the road,

there is industrial apartment. Now

deceased Khodabhai would have

raised shouts and offered

resistance in order to save himself

from receiving the injuries and

that could have been heard by the

prosecution witnesses, Dhirubhai

Babulal Shah, Pravinchandra

Babaldas Parikh and Smitaben

Pravinchandra as their flats are

situated by the side of flats are

situated by the side of flat No. 29

of accused No.1. Now P.W.4-

Dhirubhai Babulal Shah in cross-

examination has stated that on the

Janmashtami day, between 12.00 noon

to 4.30 P.M. he had not heard any

sound coming from the flat of

accused No.1-Ramesh, P.Ws.

Pravinchandra Babaldas Parikh and

Smitaben pravinchandra Parikh have

stated that at about 4.00 P.M. on

the Janamashtami day, accused No.1-

Ramesh had come to their flat. Now

this cannot be the conduct of a

murderer and therefore the

prosecution story that Khodabhai

was murdered in flat No. 29 between

1.30 to 4.00 or 4.30 P.M. is most

unnatural and improbable."

11. The above conclusions of the trial Court and the

reasons for arriving at the same in our view are

unexceptionable; and, at the cost of repetition, we would

like to mention that the High Court did not even consider

these findings of the trial Court, mush less, demonstrate

that they were not sustainable at all.

12. Coming now to the circumstance No. vi, namely, recovery

of blood-stained clothes and other articles from the flat of

the appellant in the morning of September 9. 1980 some of

which were found to contain group `A' blood-which was also

the group of the blood of the deceased - we are constrained

to say that the evidence adduced by the prosecution in this

regard was contrived to sustain the charges levelled against

the appellant. Admittedly the flat of the appellant was

searched in the night between September 4 and 5, 1980 by the

police after breaking open its lock. At that time except a

pair of trousers, nothing incriminating was found by the

police, much less seized. It is also the admitted case of

the prosecution that after the flat was searched it was

locked again and the keys were kept with none other than the

brother-in-law of the appellant the reasons for which we are

unable to fathom. Be that as it may, it is also an admitted

fact that since then the appellant had no access to his flat

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till it was searched on September 9, 1980. If inspite of

these tell tale circumstances a lot of articles - containing

`Group A' blood - was found inside that flat on September 9,

1980 - it only shows that the entire story of search and

recovery of the articles is a myth.

130 The matter can be viewed from another angle also. If

really the appellant had committed the murder inside his

flat, as is the prosecution case, he would see that evidence

which may implicate him w as not available to the

prosecution. In this case it was not at all difficult for

him to remove the articles allegedly found for he had about

6 days time at his disposal to get the same done with the

keys which were with his brother-in-law. However, the

reasons given by the trial Court to disbelieve this part of

the prosecution case are altogether different. Though the

reasons of the trial Court in this regard cannot be said to

be improper we need not pursue the matter further, having

regard to the conclusions we have drawn from the admitted

facts of the case.

14. Apart from the above two circumstances, namely,

circumstance No. iii and vi, the only other circumstance

which the High Court found on discussion of the evidence to

have been conclusively proved was the appellant was last

seen with the deceased at 1.30 P.M. in his (appellant's)

flat (circumstance No. ii). Even if we proceed on the basis,

notwithstanding the finding of the trial Court in this

regard, that the above circumstance stands proved it does

not further the prosecution case for by itself it does not

lead to the only conclusion that the appellant was guilty of

the offences alleged against him.

15. For the foregoing discussion we unhesitatingly hold

that the reasons given by the trial Court for recording the

order of acquittal in favour of the appellant are cogent and

convincing and the High Court was not at all justified in

disturbing the same by reappraising the evidence. The appeal

is, therefore, allowed. The appellant, who is no bail, is

discharged from his ball bonds.