@ K.L. Gordhandas Soni Vs. State of Gujarat  Insc 535 (11
Hegde, J. & B.P. Singh, J. Santosh Hegde, J
Additional Sessions Judge, Sabarkantha District found the appellant guilty in
Sessions Case No. 99 of 1994 for offences punishable under Sections 302, 201,
394 and 449 of the Indian Penal Code and sentenced him to undergo imprisonment
for life and imposed a fine of Rs.500 in default of which a further sentence of
one year rigorous imprisonment for the offence under Section 302. The Sessions
Court further imposed a sentence of two years rigorous imprisonment and a fine
of Rs.300 in default of which the appellant was directed to undergo
imprisonment for six months for an offence under Section 201. The Court also awarded
a sentence of five years rigorous imprisonment and a fine of Rs.300 in default
a further sentence of one year rigorous imprisonment for offence under Section
394. For the offence under Section 449 I.P.C. the appellant was awarded a
sentence of three years rigorous imprisonment and a fine of Rs.300 in default a
further sentence of six months rigorous imprisonment was awarded.
appellant's appeal before the High Court of Gujarat at Ahmedabad in Criminal
Appeal No. 125 of 1997 came to be dismissed by the Division Bench of the said
High Court. Hence the appellant is before us in this appeal.
stated the prosecution case is on 9th of April, 1994 when the milkman who used
to supply milk to the deceased Kantaben, went to her house for supplying milk
in the morning, he did not get any response when he called for her. Hence, when
he peeped inside the kitchen door which was open, he found the deceased lying
injured. He immediately informed the relatives and in turn the police were
informed who came to the place of incident and removed the body for postmortem
which was conducted on 9th of April, 1994, during which procedure PW-1, Dr. Jhinabhai
found among other injuries a reddish injury in the front of the throat where a
swelling was also noticed. On the examination of the internal injuries
corresponding to the injury noticed on the throat, the Doctor found the larynx
congested and there was reddish foam inside bronchia. He opined the cause of
death of Kanta Ben was due to strangulation. On 10th April, 1994 by which time
the son of the deceased had come to Modasa, the son gave a further report to
the police that on search of the house of his mother certain gold jewelleries
worn by her were found missing and he suspected that the cause of death of his
mother was not due to accident as was originally thought of before the
postmortem but was murder. PW 28, who conducted the investigation having
suspected the appellant on the basis of two cheques of his found in the house
of the deceased, on investigation found that the appellant had financial
transactions with the deceased, therefore, he could have been responsible for
her death. When he searched for the appellant he could not find him at his
usual place of residence or at work, and was able to arrest him only on 11th of
May, 1994 about 33 days after the incident on 8th of April, 1994. During the
course of his interrogation, based on a statement made by the appellant the
investigating agency went to the place of PW 10, a Goldsmith and found out that
he, at the instance of the appellant, melted certain gold ornaments into ingots
of 60 grams and 35 grams on 9th of April, 1994. On further investigation, it
was found that the said ingots were purchased by PW 11, a Jeweller, for Rs.35,000
from the appellant. The investigation also revealed that the appellant had
taken a loan of Rs.20,000/- on pledging Kisan Vikas Patras belonging to himself
and his wife from Nagrik Bank which amount according to the prosecution was
repaid and the Kisan Vikas Patras were redeemed by the appellant at about the
same time as he received the money from PW 11. During the course of
investigation, it was also revealed that one Natwarlal Shankerlal, PW 21 had
seen the appellant in the house of the deceased at about 8 or 8.30 p.m. on 8th April, 1994.
The investigating officer, while arresting the appellant on 11th of May, 1994
also noticed that he had certain injuries on him which, on medical examination
were found as injuries which could have been caused by the deceased with her
nails. It is based on these materials, the prosecution charged the appellant
for having caused the death of Kantaben, as stated above.
on the basis of the above evidence, the Courts below came to the conclusion
that the prosecution has established its case against the appellant and found
him guilty of the charges levelled against him and setenced him as stated
could be noticed from the facts narrated hereinabove the case of the
prosecution rests on circumstantial evidence.
prosecution has relied upon the following circumstances to prove its case:
That the accused was known to the appellant and had financial dealings with the
accused was in need of money.
accused was last seen in the house of the deceased on 8.4.1994 at about 8 or 8.30 p.m. by PW 21.
accused, even though a person known to the deceased, did not attend either the
funeral or called upon the family of the deceased to condole the death and was
absconding for nearly 33 days.
accused had got melted certain jewellery with the help of PW 10 into gold
ingots on 9.4.1994.
accused had sold two ingots of 60 grams and 35 grams obtained by him from the
melting of jewelleries to PW 11 for a sum of Rs.35,000 on 9.4.1994.
accused had taken a loan on hypothecation of Kisan Vikas Patras which were
redeemed by repayment of loan on 11.4.1994.
accused had injuries which could have been inflicted on him by the deceased at
the time of attack on her.
on the basis of the above circumstances that the appellant was found guilty of
having murdered the deceased Kantaben. We have heard learned counsel for the
parties and have given our anxious consideration to the facts of the case. If
actually the circumstances narrated hereinabove have been established beyond
any reasonable doubt, there could be no difficulty in concurring with the
finding of the Courts below.
we find that some of the links in the chain of circumstances have not been
established by the prosecution either in accordance with law or beyond
reasonable doubt, because of which, in our opinion, serious doubts arise as to
the correctness of the prosecution case which will be discussed by us hereinbelow.
regard to the circumstance that the appellant was known to the deceased and had
financial transactions, we have no doubt the prosecution has established this
fact, therefore, we proceed on the basis that this circumstance stands proved.
So also, the second circumstance noted above that the accused was in need of
the money and he had given two cheques which obviously were not encashed by the
deceased, therefore, to that extent that the appellant had a motive, also could
third circumstance noted hereinabove, in our opinion, has not been established
by the prosecution. This is based on the evidence of PW 21, the neighbour Natwarlal
Shankarlal. There is no doubt that this witness resides very close to the house
of the deceased and it is also possible that on 8.4.1994 around 8 or 8.30 p.m.
he might have been present in his house but we have serious doubt whether this
witness had actually seen the appellant in the house of the deceased. It is an
admitted fact that at that point of time there was no light in the house of the
deceased. In such circumstances, this witness has not given any reason how he
could identify the appellant in spite of the fact that there was no light. That
apart, the most doubtful part of PW 21's evidence is that he did not speak
about this factum of his having seen the appellant in the house of the deceased
on 8.4.1994 night to anybody for nearly 39 days till after he decided to speak
to the investigating agency. No explanation whatsoever has been brought on
record to explain this extraordinary conduct of this witness. This witness was
known to the deceased and he was staying in the close proximity of the house of
the deceased; after the incident on 8th of April, 1994 police were regularly
visiting the house of the deceased; all the relatives of the deceased had come
to Modasa including her son and definitely if this witness is speaking the
truth he would have known the importance of the fact noticed by him on 8th of
April, 1994. Still he did not speak about this to anybody till 17th of May,
1994 by which time the appellant was arrested. To us, the evidence of this
witness seems to be artificial. Of course, merely because the evidence of a
witness is recorded by the police under Section 161 Cr.P.C. belatedly, by
itself, does not make the evidence unacceptable provided there is some logical
or acceptable explanation for the same. In the instant case, there is no such
explanation. Therefore, contrary to the findings of the Courts below, we are
unable to accept the evidence of this witness. Hence this circumstance cannot
be relied upon.
next circumstance, as to the default of the accused, in not attending the
funeral or of his abscondance, even if held to be proved by the evidence of
prosecution; by itself, will not implicate the appellant, however the
cumulative effect of this circumstance along with the motive will be discussed
by us hereinafter.
next circumstance pertains to the accused having taken certain jewellery and
having melted the same with the help of PW 10. This circumstance, in our
opinion, is a very important link in the prosecution case. If established, it
would go a long way in strengthening the links in the chain of circumstances
relied upon by the prosecution. In support of this circumstance, the
prosecution had produced PW 10, Bipinchandra Ambalal Soni. But, this witness
has not supported the prosecution case in regard to the fact of the accused
having taken some gold ornaments to him and having melted the same into gold
ingots. Therefore, this important link in the chain of circumstances is not
established by the prosecution The next circumstance relied upon by the
prosecution is again an important circumstance which pertains to the accused
having sold two ingots of 60 grams and 35 grams each to PW 11, Parasmal Himamal
Soni, for which, according to the prosecution, the accused received a sum of
Rs.35,000 from PW 11. This witness, PW 11, has also not supported the
prosecution case; nor have the Panch witnesses Vijaykumar Navnitlal Shah and Purankumar
Chamanlal Purani, who were examined to establish the fact that the appellant
had voluntarily shown the shop of PW 11, supported the prosecution case. But
the Courts below relied upon certain documents seized from the premises of PW
11 to establish the fact that there were entries in those documents to show
that PW 11 had made those entries which pertain to the purchase of two ingots
of gold from the appellant and PW 11 having paid him Rs.35,000 for the same. It
is true, this witness PW 11, Parasmal Himamal Soni, though did not support the
prosecution on the sale and purchase of ingots from the appellant, did speak
about the entries in the documents seized by the police. The Courts below have
chosen to rely upon this evidence to come to the conclusion that this part of
the prosecution case is acceptable and held that the appellant had in fact sold
certain gold ingots to PW 11 and received Rs.35,000. We think it is not safe to
rely upon this part of the prosecution evidence. While considering the evidence
of the prosecution in this regard, we must first notice the fact that the
prosecution has failed to prove that the appellant took the gold ornaments
belonging to the deceased to PW 10 and got them melted into two ingots of 60
grams and 35 grams. In the absence of that part of the prosecution case being
proved what is left is the documentary evidence of certain ingots having been
purchased by PW 11 and the said witness paying Rs.35,000 to the appellant.
Here, apart from the fact, PW 11 has denied having made this purchase, the Panch
witnesses who are the witnesses to the statement of the appellant for having
shown them the shop of PW 11 have not supported the prosecution case. The sole
reliance, hence, has to be placed on the documents seized from the shop of PW
11 and the contents of the said documents. From the evidence produced by the
investigating agency in the form of evidence of PW-11, it is seen that there is
entry to show that on 9th of April, 1994 one Kantibhai G.K. Lal sold two gold
ingots to PW 11 and received Rs.35,000 for the same. But then we must notice
this is not an entry made by PW-11 himself. It is an entry made by one Soni Kanti
Bai, who has not been examined by the prosecution.
this part of PW-11's evidence will have to be evaluated in the background of
the fact that this witness had earlier denied that the appellant had sold the gold
to him, if so, there is no explanation as to how this entry came to be made.
The most damaging part of this part of the prosecution case is that this fact
of the appellant having sold the gold ingots and receiving Rs.35,000 from PW 11
is not put to the accused in his Section 313 Cr.P.C. examination. The questions
put to this witness in this regard are as follows;
witness Parasmal Himatlal at Exhibit 33 has stated that he had made bill in the
name of Kantibhai G.K. Lal for making gold ingot vide bill No.7 of his bill
book of 1994, what do you have to say? A: I do not know.
This witness has further stated that he has produced the gold ingot, muddamal
article No.1 before police, what do you have to say? A: I do not know.
of the questions put to this witness as to the facts incriminating him and as
extracted hereinabove, according to us does not reflect any incriminating
evidence as to the appellant having sold any gold ingots to PW-11. The first
question extracted hereinabove in this regard shows that parasmal Himatlal at
Exhibit 33 had made a bill in the name of Kantibhai G.K. Lal for making gold
ingot and the appellant was called upon to answer that question which he
rightly says that he does not know. The factum of PW 11 had made an entry in
his book in the name of one Kantibhai G.K. Lal cannot be a circumstance
incriminating the appellant unless there was a connecting evidence to show that
this appellant had sold the gold ingots to PW 11 which part of the prosecution
case has not been proved. Therefore, it is futile, in our opinion, for the
prosecution to rely upon some entry made by one Soni Kanti Bai who has not been
examined and in the background of the fact that PW 11 himself had denied the
fact of the appellant selling gold to him. Therefore, in our opinion, the fact
of there being an entry in Exhibit 33 in regard to some gold ingot cannot be a
circumstance incriminating the appellant.
next question put to the witness is that PW 11 has stated that he has produced
the gold ingot before the police.
you have to say? We do not think this circumstance is also an incriminating
circumstance against the appellant in the absence of there being acceptable
evidence that the ingots given by PW 11 to the police are the ingots given to
PW 11 by the appellant. In the absence of this link evidence, this circumstance
also cannot be construed as circumstance incriminating the appellant.
the above questions put to the appellant in his examination under Section 313 Cr.P.C.,
it is seen that the prosecution has not established the fact that the appellant
had sold the gold to PW 11.
next circumstance relied upon by the prosecution is in regard to the loan taken
by the appellant by hypothecating the Kisan Vikas Patra and that repaid that
loan on 14th of April, 1994, assuming that the same has been established, that
would not in any manner implicate the accused with the murder of the deceased Kantaben
in the absence of any material to show that repayment was made from out of the
proceeds of the articles robbed by the appellant from the deceased Kantaben.
Appellant had his own printing business and it is for the prosecution to
establish that the one and only source to repay the money was from out of the
stolen property of deceased Kantaben, which not having been done, even this
circumstance cannot be of any assistance to the prosecution.
that the accused had certain minor injuries and that he was not available to
the investigating agency from 10th of April, 1994 to 11th May, 1994 would not also be a circumstance
which would implicate the accused with the murder of Kantaben.
the discussion of the circumstances relied upon by the courts below, we have
noticed the prosecution has failed to establish :
PW 21 had seen the appellant in the house of the deceased on 8.4.1994;
that the appellant had got certain gold ornaments melted with the help of PW 10
on 9th April, 1994; and
that the appellant had sold two ingots of 60 grams and 35 grams each to PW 11
for a consideration of Rs.35,000.
view of the fact that the prosecution has failed to prove these links in the
chain of circumstances, in our opinion, the rest of the circumstances do not
form a complete chain as to draw an irresistible inference that the
circumstances established by the prosecution establish that it is the accused
and the accused alone who could have committed the murder of deceased Kantaben.
In our opinion, those circumstances proved by the prosecution can only throw a
doubt as to the involvement of the appellant in the murder of Kantaben which is
not sufficient to base a conviction.
above basis, we are of the opinion, that the Courts below were in error in
coming to the conclusion that the prosecution has established its charges
against the appellant by the circumstantial evidence relied upon by it. Hence,
the appellant is entitled to succeed in this appeal.
the judgment and conviction of the courts below are set aside. The appeal is
allowed. The appellant, who is in custody, shall be released forthwith, if not
required in any other case.