Rameshbhai Mohanbhai
Koli & Ors Vs State of Gujarat
WITH CRIMINAL APPEAL
NO. 1166 OF 2009
JUDGMENT
P. Sathasivam, J.
1)
These
appeals are directed against the impugned judgment and final order dated
25.10.2007 passed by the High Court of Gujarat at Ahmadabad in Criminal Appeal
No. 1422 of 2005 whereby the High Court dismissed the appeal filed by the
appellants confirming the order dated23.08.2004 passed by the trial Court
convicting them under Section 302 of the India Penal Code (hereinafter referred
to as `IPC') read with Section 34 IPC and also under Section 135 of the Bombay
Police Act awarding each of them to undergo rigorous imprisonment (RI) for life
and fine of Rs.5,000/-, in default, to further undergo RI for one year for the
offences under Section 302 read with Section 34 and also awarded RI for one
year and fine of Rs.1,000/-, in default, RI for one month for the offence under
Section 135 of the Bombay Police Act.
2)
"The
case of the prosecution" as unfolded during the course of investigation was:
a) On 16.09.1999, at about 1715 hrs., Prakashbhai Raveshia, (Chairman of Morbi
Nagrik Bank, Morbi), the deceased, accompanied with Ashokbhai Laljibhai Kathrani
PW 106, Director in the aforesaid Bank came out of the Bank. It is the case of
the prosecution that immediately after coming out of the Bank, Rameshbhai
Mohanbhai Koli - appellant herein approached the deceased and asked him about
the loan facility and the manner in which the loan application form was to be
filled. During the course of investigation, it was further revealed that
immediately thereafter, Ramesbhai Mohanbhai Koli(A1), appellant No. 1 herein,
exhorted the other appellants (A2-A4) to attack the deceased. On such
exhortation, A2-A4 attacked the deceased with knives and later on A1 joined them.
During the investigation, it was further stated by the witnesses that, after
the attack, two of the accused ran away on a motorcycle from the place of
occurrence. It is important to mention here that in addition to PW-106, the
aforesaid incident was witnessed by as many as 8 witnesses, some of whom were
natural witnesses being tea or pan vendor present at the place of occurrence. It
was further revealed that original Accused Nos. 5-7 had conspired to eliminate Prakashbhai
Raveshia and in furtherance of that conspiracy engaged the services of the appellants
herein. During the panchnama (Exh.384) of the place of occurrence amongst
other articles, a blood stained loan application form bearing the name and address
of the appellant Rameshbhai Mohanbhai Koli (A1) was seized by the police. As
regards the injuries on the person of the deceased, the post-mortem report
(Exh. 206) revealed that the deceased suffered 18 injuries out of which 17
were incised wounds. It may be mentioned here that large number of injuries/incised
wounds were found on the neck and the chest of the deceased.(b) During the
course of further investigation, after arrest of the appellants herein, all of
them made separate disclosure statements showing their willingness to
disclose the respective places where they had hidden the knives used in the
commission of offence. Pursuant to such disclosures made by the appellants,
they led the police to the places where they have concealed the knives used in
the commission of offence. The knives recovered at the instance of the
appellants Rameshbhai Mohanbhai Koli (A1), Narottam Prejji Koli (A2) and Pravin
@ Dalo Lashubhai Koli (A4) were stained with blood. Blood stained clothes worn
by Pravin @ Dalo Lashubhai Koli (A4) at the time of incident were also got recovered.
The police also recovered the blood stained seat of the motorcycle used by two
of the accused to run away from the place of occurrence’s) The aforesaid
articles, namely, the loan application form, the knives, blood stained clothes
of the appellant Pravin @ Dalo Lashubhai Koli (A4) and the blood stained seat
of the motorcycle were sent for forensic examination. The FSL and serological
report (Exh 250) opined that the blood stains on the aforesaid articles were of
group `O'. The blood group of the deceased also belongs to group `O'.d) On
completion of the investigation, a charge sheet was filed in the Court of
J.M.F.C. Morbi who committed the case to the Court of Additional Sessions
Judge at Morbi where it was numbered as Sessions Case No. 34 of 2000.e) The
Additional Sessions Judge II, Fast Track Court, Gondol at District Rajkot
recorded the evidence, heard the parties, appreciated the evidence and vide judgment
dated 23.08.2004 convicted accused Nos. 1, 2 and 3 and original accused No.4
for the offences punishable, as afore-mentioned, and original accused Nos. 5, 6
and 7 were convicted for the offences under Section 302 read with Section 120-B
IPC and sentenced them to suffer R.I for life and imposed a fine of Rs.5,000/-,
in default, R.I. for one year, and also further directed accused Nos. 5 and 6
each to pay Rs.1,50,000/- as compensation to the widow of the deceased
Prakashbhai Raveshia. However, the trial Judge acquitted accused No.8 for the
offences punishable under Section 312 IPC for harboring the accused f) The
appellants herein with original accused No.4 preferred Criminal Appeal No. 1422
of 2005 in the High Court of Gujarat at Ahmadabad challenging the judgment and
order of conviction passed by the Additional Sessions Judge, Second Fast Track
Court, Gondal.g) The High Court, by the impugned judgment and final order dated
25.10.2007, confirmed the conviction of the appellants herein and dismissed their
appeal. However, Criminal Appeal Nos. 1544, 1925 and 2234 of 2004 which were
also heard together along with the present appellant's appeal and by the same impugned
judgment, confirmed the conviction of the appellant and accused No.4 and
allowed the appeal filed by the original accused Nos. 5, 6 and 7 and acquitted
them of the alleged offences and set aside the sentence awarded to them holding
that there was no conspiracy.
3)
Heard
Mr. Vimal Chandra S. Dave, learned counsel for the appellants and Mr. Nitin
Sangra, learned counsel forthe respondent-State. Points for determination:
4)
(i)
Whether
the High Court was justified in confirming the conviction and sentence imposed
by the trial Court when all the eye-witnesses did not support the case of the
prosecution as against accused Nos. 1, 2 and 3 i.e., the appellants herein;
(ii)
Whether
the Courts below are justified in convicting and awarding life sentence based
on circumstantial evidence;
(iii)
Since
the whole prosecution case hinges upon circumstantial evidence which in the
present case does not complete the chain as there are missing links, in such
event conviction is sustainable.
4)
5)
We
have carefully perused the relevant materials and considered the rival
submissions. Discussion
6)
It
was highlighted by the learned counsel for the appellants that the appellants
were not instrumental in committing the crime as they had no motive or mens rea
to commit murder of Prakashbhai Raveshia who had rivalry with accused Nos. 6
and 7 and who had so many enemies in political field. It was also projected
that since all the eye-witnesses examined on the side of the prosecution turned
hostile, their statements cannot be relied upon in the absence of other cogent,
convincing and reliable evidence. It was also their case that the test identification
parade also failed to bring home the complexity of the appellants and mere recovery
of knife and other materials, panchnama of the scene of occurrence and FSL
Report are not sufficient to convict theappellants.
7)
In
the instant case, all the eye-witnesses examined on the prosecution side have
en bloc turned hostile due to influence and pressure of the accused persons
which included a sitting MLA of the ruling party. This aspect has been analyzed
by the trial Court while convicting and awarding sentence on the
accused/appellants. This Court has noted and observed in a large number of
cases that witnesses may lie but circumstances do not. On going through the entire
materials, particularly, the chain of circumstances, we are satisfied that the
prosecution has been successful in bringing home the guilt of the appellants
herein for the commission of murder of Prakashbhai Raveshia and the eye-witnesses
turning hostile, do not, in any manner, crate a dent in the case of the prosecution.
Hostile witness
8)
It
is settled legal proposition that the evidence of a prosecution witness cannot
be rejected in too merely because the prosecution chose to treat him as hostile
and cross-examine him. The evidence of such witnesses cannot be treated as
effaced or washed off the record altogether but the same can be accepted to the
extent that their version is found to be dependable on a careful scrutiny thereof.
(vide Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; RabindraKumar Dey
v. State of Orissa, AIR 1977 SC 170; Syad Akbar v. State of Karnataka, AIR 1979
SC 1848 and Khujji@ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991SC
1853).
9)
In
State of U.P. v. Ramesh Prasad Misra and Anr., AIR1996 SC 2766, this Court held
that evidence of a hostilewitness would not be totally rejected if spoken in
favour of the prosecution or the accused but required to be subjected toclose
scrutiny and that portion of the evidence which is consistent with the case of
the prosecution or defence can berelied upon. A similar view has been
reiterated by this Court inBalu Sonba Shinde v. State of Maharashtra, (2002) 7
SCC543; Gagan Kanojia and Anr. v. State of Punjab, (2006) 13SCC 516; Radha
Mohan Singh @ Lal Saheb and Ors. v.State of U.P., AIR 2006 SC 951; Sarvesh
Naraian Shukla v.Daroga Singh and Ors., AIR 2008 SC 320 and Subbu Singhv.
State, (2009) 6 SCC 462.
10)
In
C. Muniappan & Ors. vs. State of Tamil Nadu, JT2010 (9) SC 95, this Court,
after considering all the earlier decisions on this point, summarized the law
applicable to the case of hostile witnesses as under:
"70.1
The evidence of a hostile witness cannot be discarded as a whole, and relevant
parts thereof which are admissible in law, can be used by the prosecution or
the defence. 70.2 In the instant case, some of the material witnesses i.e. B.
Kamal (PW.86); and R. Maruthu (PW.51) turned hostile. Their evidence has been
taken into consideration by the courts below strictly in accordance with law. 70.3
Some omissions, improvements in the evidence of the PWs have been pointed out
by the learned Counsel for the appellants, but we find them to be very trivial
in nature. 71. It is settled proposition of law that even if there are some omissions,
contradictions and discrepancies, the entire evidence cannot be disregarded.
After exercising care and caution and sifting through the evidence to separate
truth from untruth, exaggeration and improvements, the court comes to a
conclusion as to whether the residuary evidence is sufficient to convict the
accused. Thus, an undue importance should not be attached to omissions, contradictions
and discrepancies which do not go to the heart of the matter and shake the
basic version of the prosecution's witness. As the mental abilities of a human being
cannot be expected to be attuned to absorb all the details of the incident,
minor discrepancies are bound to occur in the statements of witnesses. (vide
Sohrab and Anr. v. The State of M.P., AIR 1972 SC 2020; State of U.P. v. M.K.
Anthony, AIR 1985 SC 48; Bharwada Bhogini Bhai Hirji Bhai v. State of Gujarat,
AIR 1983 SC 753; State of Rajasthan v. Om Prakash, AIR 2007 SC 2257; Prithu @ Prithi
Chand and Anr. v. State of Himachal Pradesh, (2009) 11 SCC 588; State of U.P.
v. Santosh Kumar and Ors., (2009) 9 SCC 626 and State v. Saravanan and Anr, AIR
2009 SC 151)"
11)
From
the analysis of the statements, answers in the cross-examination, earlier
statement under Section 164 ofCr.P.C. before the Magistrate and in the light of
the above principles, we agree with the conclusion arrived at by the trial
Court and approved by the High Court.
12)
The
piece of evidence which the prosecution sought to rely upon against the
appellants is the various panchnam as including discovery panchnama of the
weapons i.e., knives used in the commission of the offence, recovery of
motorcycle, NC register, recovery of seat of motorcycle. The prosecution
highlighted that A1 to A4 have shown their willingness to show the muddamal
knives which have been used for murdering Prakashbhai Raveshia and, therefore,
panchas were called and preliminary panchnamas were drawn and thereafter, at the
instance of A1 to A4 knives were recovered which were stained with blood group
of `O' which is similar to the blood group of the deceased Prakashbhai
Raveshia. The prosecution has examined and relied upon Rameshbhai Arjan PW-14,(Exh.292),
who is panch witness of the discovery panchnama of the recovery of knife
(muddamal article No. 25) at the instance of A3. The prosecution has also
examined and reliedupon the evidence of Navinchandra Parshottam Shah PW-15,(Exh.302),
who is panch witness of the panchnama of recovery of knife (muddamal Article
No. 37) recovered at the instance ofA2. The other witness examined and relied
on by theprosecution is Bhavanbhai Jagabhai Malkiya, PW-18(Exh.311), who is the
panch witness of the panchnama under which the muddamal knife (Article No. 33)
was recovered atthe instance of A4 which was used for commission of the offence.
The prosecution has also examined and relied upon the evidence of Govindlal
Shantilal Joshi, PW-26 (Exh.338),who is the panch witness of the discovery
panchnama of the muddamal knife (Article No. 28) recovered at the instance ofA1
and Ex.340 is the panchnama of the mud. The sepanchnamas are Exhs.293, 303,
312, 339 and 340. The above panch witnesses have confirmed the contents of panchnamas
in their oral testimony before the Court. They have also asserted that A1 to A4
had shown their willingness and on this basis, the preliminary panchnama was
drawn and thereafter, the accused have taken the panchas and the police personnel
at the place where they have concealed the knives and recovered the knives from
those places. It is true that in muddamal article No. 25 which was recovered at
the instance of A3 was not having a blood stain. This aspect had been
considered by the trial Court and rightly concluded that the said muddamal
article cannot be ignored.
13)
As
rightly believed by the trial Court as well as the High Court as to the oral testimony
of those panch witnesses as well as the panchnamas, we also feel that there is
no mannerof doubt in the statements made by the accused, their willingness and
the preparation of preliminary panchnamasand finally recovery of concealed
knives from the places shown by the accused. This material evidence of
discovery of knivesthrough proper panchnamas is sufficient to connect the
accused with the crime.
14)
Another
important piece of evidence in the form of panchnama of the scene of offence is
Exh.384. The prosecution has relied upon the oral testimony of Vijaybhai Bhagvanjibhai
Zariya, PW-35 Exh.383 and BabubhaiChakubhai Vania, PW-68 Exh.519. It is true
that both the panchas have turned hostile and not supported the case of the prosecution,
however, panchnama has been exhibited in the cross-examination of PW-35. As
requested by the State counsel, we verified the said panchnama which is
available in the paper-book (vide page No. 2081) which is an application form
bearing No. 001351 of A1 Rameshbhai Mohanbhai Vaghani with his residential
address was found wherein he applied for a loan of Rs.60,000/- for the purpose of
purchasing rickshaw and on the said form also blood stains were found. In view
of the same, the said form was recovered while preparing panchnama of scene of
offence. This document is one of the circumstances against A1 about his
presence at the time of occurrence at the place of incident. This evidence can
be relied upon to show that A1 was present at the place of offence at the
relevant time.
15)
In
the same manner, though panchas of several other panchnamas in respect of recovery
of handkerchief, seat of motor cycle and other articles with blood stains have turned
hostile and not supported the prosecution case, those panchnamas were exhibited
during the examination of investigating officer and for a limited purpose,
therefore, they can be relied upon.
16)
Yet
another piece of evidence is FSL report (Exh.250),forwarding letters of
muddamal weapons, clothes, etc. which are at Exhs. 244, 245, 246, 247, 248, 249
and 250respectively. The perusal of the FSL report clearly shows that the
muddamal articles were found to be stained with blood of `O' group which is the
same as blood group of the deceasedPrakashbhai Raveshia. This is also one of
the important circumstances which connect the accused with the crime. Allthese
materials and the evidence of panchas, as discussed, and circumstances, unmistakably
lead to the conclusion thatA1 to A4 are the culprits and the complicity for
commission of murder of the deceased is proved. These aspects have been fully
discussed by the trial Court and rightly affirmed by the High Court. We also
agree with these aspects in toto.
17)
In
Mehbub Samsuddin Malek and Others vs. State of Gujarat, (1996) 10 SCC 480, this
Court held that recovery of gupti at the instance of the accused from a dilapidated
building concealed below a heap of earth which found stained with human blood
group of `B'. Clothes of the deceased also stained with the same blood group,
to lead evidence regarding discovery of blood cannot be disbelieved merely
because the house is in a dilapidated condition and it cannot be said that the
gupti was found from an open place accessible to all.
18)
The
recovery of respective weapons of offence at the instance of the appellants in
the instant case speaks volume. The evidence in the present case convincingly
establishes that the respective places from where the recoveries were effected
were exclusively within the knowledge of the appellants and the same could not
have been effected by the investigating agency in the absence of the disclosure
statements made by the appellants.
19)
Another
factor which strengthens the case of the prosecution against the appellants is
the serological report which opines that the knives recovered at the instance
of A1,A2, & A4 contained blood of group `O' which is that of the deceased. This
circumstance is highly incriminating and conclusively establishes the case
against the appellants. All the recovery panchnamas in the instant case were fully
supported by the panch witnesses i.e. PW-14, PW-15, PW-18and PW-26.
20)
The
recovery of the blood-stained seat of the motorcycle used by the accused to
flee from the scene of offence which as per the FSL report contained blood of
group `O' is another vital circumstance against the appellants herein.
21)
The
appellants herein have denied the factum of recoveries at their instance is a
false plea inasmuch as the recoveries have been duly proved by the prosecution by
leading cogent and reliable evidence which has not been shaken by the defence.
A false plea taken by an accused in case of circumstantial evidence is an
additional link in the chain of circumstances. [Vide Sharad Birdhichand Sardavs.
State of Maharashtra, (1984) 4 SCC 116 and MehbubSamsuddin Malek & Ors. vs.
State of Gujarat (1996) 10SCC 480].
22)
We
have already observed that the prosecution has established that FSL report has
clearly certified that the blood found on the knife was of human origin. This
question fell for consideration in State of Rajasthan vs. Teja Ram & Ors.,(1999)
3 SCC 507 and this Court held that it would be an incriminating circumstance if
the blood on the weapon was found to be of human origin. The same view has been
reiterated in Molai and Another vs. State of M.P., (1999) 9SCC 581.Evidence of
Investigating Officer
23)
An
argument was advanced about reliance based on the evidence of investigating
officer. This Court in State of U.P. vs. Krishna Gopal and Another, (1988) 4
SCC 302 has held that courts of law have to judge the evidence before them by applying
the well recognized test of basic human probabilities. Prima facie, public
servants must be presumed to act honestly and conscientiously and their
evidence has to be assessed on its intrinsic worth and cannot be discarded
merely on the ground that being public servants they are interested in the
success of their case. [vide State of Keralavs. M. M. Mathew & Anr., (1978)
4 SCC 65)]
24)
In
Modan Singh vs. State of Rajasthan, (1978) 4 SCC435, it was observed that where
the evidence of the investigating officer who recovered the material objects is
convincing, the evidence as to recovery need not be rejected onthe ground that
seizure witnesses did not support the prosecution version. Similar view was
expressed in Mohd.Aslam vs. State of Maharashtra, (2001) 9 SCC 362. In Anter
Singh vs. State of Rajasthan, (2004) 10 SCC 657, it was further held that even
if panch witnesses turn hostile, which happens very often in criminal cases,
the evidence of the person who effected the recovery would not stand vitiated.
25)
This
Court has held in large number of cases that merely because the panch-witnesses
have turned hostile is no ground to reject the evidence if the same is based on
the testimony of the Investigating Officer alone. In the instant case, it is not
the case of defence that the testimony of Investigating Officer suffer from any
infirmity or doubt. [Vide Modan Singh's case(supra) Krishna Gopal's case
(supra) and Anter Singh'scase (supra)].
26)
In
view of the above principles and in the light of the discussion about the
recovery as stated and concluded earlier, those materials produced by the
prosecution are relevant, acceptable and rightly connected these circumstances
with theappellants.
27)
Finally,
appellants relied on the acquittal of co-accursedness. 5 to 7. The acquittal of
accused Nos. 5 to 7 does not in any manner wash away the case against the
appellants which has been convincingly established on the basis of
circumstances. It is relevant to note that the recovery of bloodstained loan
form application bearing name and address of appellant Rameshbhai Mohanbhai
Koli (A1) from the scene of offence and the serological report which opines the
blood to be of group `O' which is the blood group of the deceased conclusively
establishes the presence of A-1 at the scene of offence. Even though the
panch-witness PW-35, Vijaybhai has turned hostile to the prosecution but the
spot panchnama has-been cogently and convincingly proved through the testimony
of the Investigating Officer PW-160.
28)
In
the light of the above discussion, we are unable to accept the case of the
appellants, on the other hand, we are satisfied that the prosecution has
established its case insofar as the appellants and rightly convicted and
sentenced by the trial Court and affirmed by the High Court. The appeals are
devoid of any merits, consequently, they are dismissed.
..........................................J.
(P. SATHASIVAM)
..........................................J
(ANIL R. DAVE)
NEW
DELHI;
OCTOBER
20, 2010.
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