Gujarat High Court
Ravi @ Kalariyo S/O. Mansingbhai ... vs State Of Gujarat on 14 February, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 912 of 2016
With
R/CRIMINAL APPEAL NO. 846 of 2016
With
R/CRIMINAL APPEAL NO. 202 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==========================================================
Approved for Reporting Yes No
==========================================================
RAVI @ KALARIYO S/O. MANSINGBHAI VAGHELA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MRS REKHA H KAPADIA(2246) for the Appellant
MR BM MANGUKIYA for the appellant in CR.A 846 of 2016
MR NASIR SAIYED for the appellalnt in CR.A 202 of 2017
MR JAY MEHTA APP for the Respondent
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 14/02/2025
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Since the facts of the case and issue involved in all the appeals are identical and arise out of the same Page 1 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined judgment and therefore, all these appeals are taken up together and are being disposed of by this common judgment.
2. Vide judgment and order dated 23.05.2016 passed in Sessions Case No. 94 of 2014, the learned Additional Sessions Judge, Ahmedabad convicted and sentenced the appellants accused for the offences punishable under Sections 452, 397, 302 read with Section 120B of the Indian Penal Code and Section 135 of the Gujarat Police Act, 1951. The sentence awarded is tabulated hereunder:
Conviction Sentence of Fine
under imprisonment
Section
S.452 of IPC 3 years rigorous Rs.500/-, in default to
imprisonment undergo 3 months
rigorous imprisonment
S.397 read 7 years rigorous Rs.2000/-, in default to
with S.120-B of imprisonment undergo 1 year
IPC rigorous imprisonment
S.302 read Rigorous Rs.4000/-
with S.120-B of imprisonment for
IPC life
S.135 of G.P. 3 months -
Act imprisonment
3. The case of the prosecution leading to file these conviction appeals is as follows:
Page 2 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined 3.1 The appellants accused namely - Rajesh Kachchhi, Ravi Vaghela, Dinesh Marwadi along with deceased accused Dinesh Makwana came to be tried for the offences punishable under Sections 452, 397, 302 read with Section 120B of the Indian Penal Code.
3.2 According to case of the prosecution, on 13.09.2013, at about 12-30 noon, the accused had alleged to have killed deceased Satnam Kaur aged about 65 by entering illegally in the flat where the deceased was lived with intention to robbed her valuables. The deceased was killed by strangulation as well as hitting her head with the weapon hammer.
3.3 The details of the prosecution case as follows:
Deceased Satnam Kaur aged about 65, found in blood of pool in her flat namely 'Abhivrudhi flat' , near Income Tax, Ahmedabad and she was virtually dead. The daughter of the deceased PW-1 Tarunaben came to know that her mother despite of repeated calls, made by her, was not responding. The daughter, through neighbour inquired about her mother and she came to know that, her mother lying in pool of blood and having Page 3 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined sustained fatal injuries over her head. She rushed to the place of incident. She informed the Naranpura Police and after preliminary inquiry, she disclosed the FIR Exh. 16 before PW-20, PI - Mr. H.K. Rana, inter-alia, stating that, any time before 12-30 noon dated 13.09.2013, the unknown persons entered the house with an intention of robbing her mother and she was fatally injured on her head with hammer and strangulated her to death. The PW-1 had further disclosed in her FIR that the unknown persons robbed the golden chain of her mother and silver rings with some cash amount allegedly kept by her in the cupboard. The offence was registered with Naranpura Police Station against the unknown persons for the act of robbery and murder.
3.4 The Investigation proceeded further by the PW-20.
He prepared inquest panchnama and sent the dead body for postmortem and in the presence of Forensic Officer as well as independent witnesses, drew a panchnama of place of occurrence and seized the material articles like the blood stained hammer, the handwritten chit, whereupon, the measurement of window was mentioned, the blood samples for chemical analysis and also recorded the statement of the material witnesses.
Page 4 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined 3.5 On 16.09.2013, PW-18 Babubhai Desai, Police Inspector, Crime Branch, Ahmedabad, received authentic information that the accused appellant Raju Kachchhi, and accused Dinesh Makwana @ Koko, were involved in the alleged offence of robbery and murder and presently they are standing near the temple nearby area of Nava Vadaj, Ahmedabad. The PW-18, with his team went to the place, where the accused were standing and upon primary inquiry and search of the accused Raju Kachchhi, one receipt of Gold Smith - Shah Jwellers dated 12.09.2013 was found in the pocket of his shirt, whereas, upon the search of Dinesh @ Koko, two metal rings found in the pocket of his pant. The PI - PW-18, arrested both the accused under Section 41 of the Cr.P.C and seized the receipt and two metal rings in presence of two witnesses by drawing panchnama Exh. 34.
3.6 Both the accused were handed over to I.O. - PW-
20 and during the investigation, he learnt that, the gold chain and metal rings were robbed by the accused in connivance with other two accused namely Ravi Vaghela and Dinesh Marwadi and after killing the deceased Satnam Kaur, the accused Rajesh Kachchhi and Dinesh Makwana tried to sold of the golden chain and two rings but Page 5 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined they could not succeed in their plan and in alternate, by mortgaging the gold chain with Shah Jewelers, they got Rs.20,000/- from the goldsmith - PW-4 - Naresh Shah. The IO called the goldsmith PW-4for further investigation. The PW-4 upon seeing the receipt allegedly issued by him and signed by Dinesh Makwana, confirmed that, the gold chain mortgaged by the accused before him. The IO seized and recovered the said gold chain produced by PW-4 goldsmith.
3.7 During the investigation, it came to notice of the IO that, the accused along with two other accused namely Ravi Waghela and Dinesh Marwadi have alleged to have killed the deceased Satnam Kaur and robbed her valuables. The accused Rajesh Kachchhi before the incident, was called by the deceased for electrical works and when he went to the home of the deceased, he noticed that deceased was residing alone and was having a cash as well as valuable ornaments. The deceased thereafter, entrusted the work of preparing and installing window grill at the flat, where she was living. In these background facts, on 13.09.2013 at about 12-00 o'clock the appellant accused along with deceased accused Dinesh Makwana entered the house of the deceased under the guise of Page 6 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined installation of grill and measurement thereof had been noted in one chit by the accused Dinesh. The accused in order to robbed the deceased, wrapped a scarf around the neck of the deceased and strangulated her and thereafter, caused fatal injuries over the head with hammer, as a result of which, she succumbed to the injuries. The accused after the killing of the deceased robbed the golden chain and silver rings and some cash amount allegedly kept by the deceased in cupboard and thereafter, fled away from the spot. The said facts of the incident being pointed out and narrated by the accused Rajesh Kuchhi and Dinesh Makwana, while they were in the custody of the police and said confession being noted down in the panchnama Exh. 38 by the IO - PW-20.
3.8 The other accused namely - Ravi Vaghela, arrested on 21.09.2023 and discloser statement was made before the IO and at his instance, 4 metal rings were recovered from the place mentioned in the discovery panchnama Exh. 39. The IO collected the blood samples of Ravi @ Kalariyo and others. The striking force of the Ahmedabad Police had arrested the accused Dinesh Dana Marwadi and his blood samples were obtained for analysis.
Page 7 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined 3.9 The recovered gold chain from the goldsmith and the metal rings were shown to the daughter of deceased PW-1 Arunaben, which she identified in presence of two witnesses.
3.10 The IO sent the bloodstained cloths of the accused as well as deceased with other articles namely specimen signatures of the accused were being sent to the handwriting expert for its examination along with blood stained hammer and other articles for chemical analysis.
3.11 At the end of investigation, the IO found sufficient evidence, for the charge of robbery with murder and finally the chargesheet came to be filed against the four accused as referred above before the jurisdictional magistrate, who committed the case to the City Sessions Court, Ahmedabad.
4. After due framing of the charge and upon accused pleading not guilty, trial commenced before the Sessions Court.
5. The prosecution adduced the following oral evidence in support of its case:
Oral evidence Page 8 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined PW 1-Exh. 15 Tarunaben Jitendrabhai Ajwani, complainant PW 2-Exh. 18 Prakash Narandas Tilani, panch witness PW 3-Exh. 20 Dr. Kalpesh Somchandbhai Kothariya, medical officer PW 4-Exh. 23 Nareshbhai Ramniklal Shah PW 5-Exh. 25 Harjitkaur Jarnalsingh Khalsa, panch witness PW 6-Exh. 27 Vikramsingh Arjunsingh Vaghela, panch witness PW 7-Exh. 30 Raeeshbhai Hasambhai Sama, panch witness PW 8-Exh. 33 Mahammed Jafar Kamalbhai Shaikh, panch witness PW 9-Exh. 35 Munafbhai Imrambhai Shaikh, panch witness PW10-Exh.37 Manubhai Chunaji Thakor, panch witness PW 11-Exh41 Chamanji Galabji Thakor, panch witness PW 12-Exh43 Jayeshbhai Manubhai Pandya, panch witness PW 13 - Exh. 45 Babubhai Arjanbhai Thakor, panch witness PW 14 - Exh. 47 Kamlesh Sawaldas Khiyani, panch witness PW 15 - Exh. 57 Mukeshbhai Dalsukhbhai Parmar, panch witness PW 16 - Exh. 58 Mukeshbhai Kalubhai Panchal, panch witness PW 17 - Exh. 61 Bharatbhai Kalidas Gohil PW 18 - Exh. 63 Babubhai Mahadevbhai Desai, Police Inspector PW 19 - Exh. 64 Jethabhai Chaturbhai Jadav, panch witness PW 20 - Exh. 69 Harendrasingh Kiritsingh Rana, investigation officer PW 21 - Exh. 88 Jigneshkumar Bharatram Agrawat, panch witness PW 22 - Exh. 93 Rakeshbhai Kishorbhai Khalasi, nodal officer PW 23 - Exh. 97 Pranavbhai Mahendrakumar Amlani, nodal officer
6. The prosecution also adduced following documentary evidence :
Documentary evidence Exh. 16 Complaint Exh. 70 Report under Section 157 Cr.P.C.
Exh. 26 Inquest Panchanama
Exh. 28 Panchanama of scene of offence
Exh. 71 Yadi to FSL officer and his report
Exh. 32 Panchanama of collection of viscera samples of deceased
Exh. 34 Panchanama of frisking of accused Raju Kachchi and
Dinesh @ Coco
Exh. 31 Testing report by Nareshkumar Shah
Exh. 19 Panchanama of physical examination of accused Raju
Kachchi and Dinesh @ Coco
Exh. 40 Panchanama of collection of blood samples of accused Raju
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NEUTRAL CITATION
R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025
undefined
Kachchi and Dinesh @ Coco
Exh. 38 Disclosure panchanama by accused Raju Kachchi and
Dinesh @ Coco
Exh. 42 Panchanama of arrest of accused Ravi alias Kalariyo
Exh. 46 Panchanama of collection of clothes of accused Ravi alias
Kalariyo
Exh. 44 Panchanama of collection of blood samples of accused Ravi
alias Kalariyo
Exh. 72 Letter for taking statement under Section 164 Cr.P.C of
accused Ravi alias Kalariyo Vaghela Exh. 39 Panchanama of evidence under Section 25 Evidence Act given by accused Ravi alias Kalariyo Vaghela Exh. 65 Panchanama of identification of gold ornaments by complainant Exh. 48 Panchanama of collection of signatures of accused Rajesh Kachchi, Dinesh alias Coco and Ravi alias Kalariyo Exh. 21 Post-mortem note Exh. 73 Letter for examination of documents Exh. 74 Letter for obtaining report of document Exh. 75 Check list Exh. 60 Panchanama of collection of blood samples of accused Dinesh Marwadi Exh. 76 Panchanama of physical examination of accused Dinesh alias Dodh Footiya Exh. 59 Panchanama of collection of clothes of accused Dinesh alias Dodh Footiya Exh. 77 Forwarding note Exh. 78 Receipt by FSL against receiving articles Exh. 79 FSL report alongwith forwarding note Exh. 80 Serological report Exh. 81 Forwarding note Exh. 82 Receipt by FSL against receiving articles Exh. 83 Letter by District FSL Exh. 84, District FSL report alongwith forwarding note 85 and 86 Exh. 87 Notification Exh. 24 List showing details of debt Shah Jewellers Exh. 22 Letter for obtaining certificate showing exact cause of death of deceased Exh. 94 Call details of mobile number 9374607264 Exh. 95 Application form showing mobile number issued to Bharatbhai Exh. 96 Certificate of reliance company regarding mobile number Page 10 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined Exh. 98 Call details of sim card for mobile number 8511782779 (airtel) Exh. 99 Certificate of airtel company regarding mobile number
7. After closer of the prosecution evidence, the appellants accused along with deceased accused Ravi Vaghela were questioned under Section 313 of the Cr.P.C to which, they stated that, they were innocent of all charges leveled and denied the incriminating material adduced in the form of evidence.
8. Though opportunity was extended, no evidence was tendered from the side of the appellant accused.
9. The learned Sessions Judge after trial, relying principally on the circumstances like discovery and recovery of ornaments, the confession and admission of the accused in terms of Section 27 of the Evidence Act and non-explanation of the incriminating material found from their possession, came to conclusion that, the chain of the circumstances have been fully established by reliable and clinching evidence and accused found guilty for the act of robbery and murder of the deceased.
10. Being dissatisfied with the judgment of conviction and sentence, the appellants accused have come up with the present Criminal Appeals. It is relevant to Page 11 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined note that the conviction appeal filed by accused no. 2
- Dinesh Makwana died during his appeal proceedings, as a result of which, the conviction appeal being Criminal Appeal No. 768 of 2017 filed by him is disposed of as abated.
11. The counsel appearing for the appellants accused namely Mr. B.M. Mangukiya, Ms. Rekha Kapadia and Mr. Nasir Saiyed, have made the following submissions :
(i) That the judgment of conviction and order of sentence is erroneous and being rendered in utter disregard of the settled principles of the appreciation of evidence. The prosecution case is based on circumstantial evidence, as at relevant time the deceased was alone in her the house. It is the case of the prosecution case, prior to the incident, the accused no. 1 Rajesh Kachchhi had an occasion to meet the deceased for electric wok and further he had been entrusted to install the iron grill to the windows of the flat. The accused taking disadvantage of the situation have had hatched the criminal conspiracy with the common intention to robbed the deceased. The accused entered into the house and as per their modus, the accused Ravi Kalariyo, strangulated by wrapping Page 12 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined the scarf over the neck of the deceased and the accused Dinesh Makwana, caught the deceased and dragged her, meanwhile the accused Ravi and Dinesh Marwadi had caused injuries over the head of the deceased by weapon hammer and thereafter, looted the valuables from the cupboard. The valuables were one golden chain, two silver rings and some of cash amount, as disclosed in the FIR. In these background facts, it was submitted that there is no evidence to prove the factum of criminal conspiracy allegedly hatched by the accused. The accused nos. 1 and 2 were arrested by the Crime Branch, Ahmedabad, however, the PI Mr. Desai PW-18 of the Crime Branch, has not produced the source of information which he had received from his junior officers. The PW-18 has admitted in his testimony that he had not received the description and identification mark of the accused and has no personal knowledge about the information. Thus, the important link is missing in this case, as the involvement of the accused in the present crime is not established and on the basis of suspicion, without any proof the accused were arrested.
(ii) That, the court below mainly relied on the confession of the accused allegedly made by them Page 13 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined while they were in police custody. According to prosecution case, in the presence of independent witnesses and before the police, the accused confessed that they killed the deceased with intention to robbed her valuables. Referring to Section 27 of the Evidence Act, it was submitted that, disclosure statement of the accused recorded by the police whilst they were in police custody is not admissible in evidence. At the time of disclosure, there is no discovery of incriminating facts or relevant facts in consequences of the information from the accused. In such circumstances, the panchnama Exh. 38 cannot be relied upon, as the confession of the accused is hit by Section 26 of the Evidence Act and could not be admissible.
(iii) That, the circumstances with respect to the recovery of the ornaments like golden chain and two silver rings are insufficient to base the conviction. According to prosecution case, the gold chain was found from the possession of the goldsmith PW-4 and according to his testimony, the accused Rajesh Kachchi and Dinesh Makwana came to his shop and asked him to give Rs.20,000/- by pledging the said chain. The receipt found from the pocket of the accused Rajesh Page 14 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined seems to be issued at the instance of the police, as the gold chain pledged was with pendant and in the complaint no reference is made of the pendant. The panch witnesses of the recovery of the chain does not support the case of the prosecution. The complainant has not produced the bills of the looted ornaments and she did not have given any identification mark of the chain and other articles. The said chain was not recovered from the possession of the accused. The two silver rings as referred in the complaint found at the instance of Ravi @ Kalariyo and same was recovered at the open place nearby his house and there were four rings found from the place. In such circumstances, it was submitted that, when the contents of the panchnama of the discovery and recovery of the ornaments are not established, either by Investigation Officer or the witnesses of the panchnama, the court below was not justified in relying upon the discovery and recovery of ornaments to connect the accused in the alleged crime.
(iv) The evidence of handwriting expert without examining the author of the certificate, the trial Court committed an error while relying on the certificate of handwriting expert, observing that, Page 15 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined the handwriting mentioned in the chit recovered at the place of incident, is of the accused Dinesh Marwadi.
12. In view of the aforesaid submissions, learned counsels appearing for and on behalf of the accused submitted that, the prosecution has failed to establish the chain of events, which can be exclusively lead to the one and only conclusion i.e. guilt of the accused and therefore, the court below without any legal, admissible and satisfactory evidence, merely on the basis of conjunctures, surmises and suspicion recorded a finding of conviction which is not maintainable in eye of law. Thus, it was submitted that, there being merits in the appeals and same may be allowed and further prayed that, the order of conviction be set aside and appellants may be acquitted of the charges of murder and robbery.
13. On the other hand, Mr. Jay Mehta, learned State Counsel vehemently opposed the appeals. He would submit that, the court below has not committed any error while holding the appellants accused guilty of the offence of murder and robbery. He further submitted that, there is no reason for the police to implicate the accused in a serious charge of murder Page 16 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined and therefore, when there is no explanation on the part of the accused about the recovery of ornaments, which has been proved by the witnesses as well as the investigation officer and there is no good reason to disbelieve the recovery of the ornaments. Lastly, it was submitted that, the court below has rightly appreciated the oral as well as documentary evidence and each one of the circumstances, as referred has been established and all circumstances put together lead to the inference that the accused have committed the murder of the deceased and the motive behind the murder was also on record. In such circumstances, learned Additional Public Prosecutor prays that there being no merits in the appeals and same may be dismissed.
14. Before adverting to the submissions, it is necessary to examine the evidence adduce by the prosecution.
15. The postmortem on the body of the deceased was conducted by the Dr. Kalpesh Somchand Kothariya, Medical Officer, V.S. Hospital (PW-3). He noticed the following external injuries on the body of the deceased.
(1) Ligature mark, pale white, complete, continuous, transverse, present encircling the neck. On front in midline, ligature mark is 7 cm Page 17 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined below chin. On right side it goes transverse and laterally, 4.5 cm below right angle of mandible and 5.5 cm below right mastoid process. Further it goes backwards where it is 9 cm below occipital protuberance, then going transversely and forwards on left lateral side of neck where it is 5.5 cm below left mastoid process and 4.5 cm below left angle of mandible and continuous with that of right side over front of neck. Total length of ligature mark is 46 cm and width varies from measuring 2.5 to 4 cm along its course. Base of ligature mark found depressed with red ecchymoses at places.
(2) Contused lacerated wound, red, present on right side of head, oblique, 2.8x0.8 cm size, scalp tissue deep. Anterior end is 10 cm above glabella and 4 cm right to midline, and is slightly lateral than posterior end. Margins of wound found irregular and contused. Bridging of tissues evident in its base.
(3) Contused lacerated wound, red, present on mid of head, slightly curvilinear with convexity facing medially and backwards, 3.5x1.2 cm size scalp tissue deep. Anterior end is 10 cm above glabella, and is left than posterior end. Margins of wound found irregular and contused. Bridging of tissues evident in its base.
(4) Contused lacerated wound, red, present on left side of head, oblique, 1.5x0.3 cm size, scalp tissue deep. Anterior end is 15 cm above glabella and 0.5 cm left to midline, and is left than posterior end. Margins of wound found irregular and contused. Bridging of tissues evident in its base.
(5) Contused lacerated wound, red, present on left side of head, oblique, 2x0.9 cm size, scalp Page 18 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined tissue deep. Anterior end is 10 cm above glabella and 8 cm left to midline and is left than posterior end. Margins of wound found irregular and contused. Bridging of tissues evident in its base.
(6) Contused lacerated wound, red, present on left side of head, oblique, 2.2x0.8 cm size, underneath skull bone visible over its base.
Anterior end is 14 cm above glabella and 6 cm left to midline, and is left than posterior end. Margins of wound found irregular and contused.
(7) Contused lacerated wound, red, present on left side of head, oblique, 1x0.8 cm size, scalp tissue deep. Anterior end is 10 cm above glabella and 9 cm left to midline, and is right than posterior end. Margins of wound found irregular and contused. Bridging of tissues evident in its base.
The internal injuries mentioned in column no. 19 of the PM report reads thus:
Head :
(i) injuries under the scalp and their nature.
Scalp tissue ecchymoses present over left parieto-temporal and right parietal regions with left temporalis muscle ecchymosed.
(ii) Skull Vault and base, describe fractures, their sites, dimensions directions etc. Depressed comminuted fracture present over left temporo-parietal bone, 2.5 cm anterior to left parietal eminence with multiple bone pieces present in 7x5.5 cm size depressed area.
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(iii) Brain: The appearance of its coverings, size, weight and general condition of the organ itself and any abnormality found in its examination to be carefully noted.
Brain liquefied and chocolate brown coloured. Underneath the depressed fracture, dura found tom Neck:
Underneath the ligature mark, sub cutaneous tissue and muscles found ecchymosed at places.
The cause of death as was opined is asphyxia due to strangulation and head injury and according to opinion of the doctor, the head injury could be possible by hammer and the strangulation can be possible by wrapping of the scarf around neck of the deceased and in ordinary course of nature, the injuries were sufficient to cause death.
16. Mrs. Tarunaben Jitendrabhai (PW-1), who is the daughter of the deceased, has stated in her testimony that, her mother was not responding to her call and upon inquiry, she learnt that, deceased was lying in an unconscious state of mind in the flat. The witness has further stated that, she noticed the head Page 20 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined injury on head of the deceased and one scarf was wrapped on the neck of her mother and on search of the cupboard, it was noticed by her that the golden chain and rings with cash amount had been stolen by someone. She also identified the golden chain and two rings allegedly seized and recovered by the police. In the cross-examination, she admitted that she did not have disclosed the identification marks of the ornaments and also denied that, the ornaments which were recovered are not belonged to her mother.
17. Mr. Naresh Ramniklal Shah (PW-4), has been examined to prove the receipt of golden chain allegedly given by him to the accused Rajesh. He has stated that he is doing his business in the name of 'Shah Jewelers'. He has further stated that at about 4-30 PM, the accused Rajubhai and Dineshbhai came to his shop and asked him to give Rs.20,000/- against the golden chain and after weighing it, he agreed to advance Rs.20,000/- against the golden chain and had paid the same and while accepting the golden chain, he issued a receipt thereof, which he produced at Exh. 24 and said chain he has produced before the police.
18. Mr. Raees Shama, PW-7 has stated on oath that, the Page 21 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined goldsmith Naresh Shah had produced one golden chain in his presence and signed the panchnama Exh. 31.
19. Mr. Mohd Zafar Shaikh (PW-08), was the witness of panchnama Exh. 34. He has not supported the case of the prosecution. According to prosecution case, in the presence of independent witnesses, the crime branch police on the specific input arrested the accused Raju Kachchhi and Dinesh Makwana and at relevant time, accused Raju was having a receipt of goldsmith allegedly signed by accused Dinesh Makwana and the accused Dinesh Makwana was having two metal rings in his possession. However the panch witness of Exh. 34, has not supported the case of the prosecution. On the same line another panch witness Munaf Shaikh PW-9, has not supported the case of the prosecution and he has been declared hostile.
20. Mr. Manubhai Thakor (PW-10) and Chamanji Galbhaji Thakor (PW-11) were the witness of Exh. 38 and 39. Exh. 38 are the panchnama prepared by the investigating officer, wherein, the accused Rajesh Kachchi and Dinesh Makwana whilst in the custody, confessed that, they killed the deceased by strangulating and causing the fatal injuries by Page 22 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined hammer and robbed her valuables. So far as Exh. 39 is concerned, it is the discovery and recovery panchnama in terms of section 27 of the Evidence Act, whereby, the accused no. 4 Ravi @ Kalariyo Vaghela, discovered the four rings which were found nearby his house. However, the panch witnesses of the said discovery panchnama have not deposed as per the contents of the panchnama and admitted their signature only and identified the accused along with ornaments.
21. Mr. Bharat Kalidas Gohil, PW-17, has been examined by the prosecution to prove that on 08.09.2013, the accused Raju Kachchhi was came before him and requested him to advance money against the two gold bangles and golden chain with pendant. He identified the accused and further stated when the accused came before him, he refused to advance money and recommended the other goldsmith of the nearby area and he also identified the ornaments - golden chain.
22. Mr. Babubhai Desai PW-18, has been examined to prove the involvement of accused nos. 1 and 2. The witness was serving as PSI in the Crime Branch, Ahmedabad and as per his testimony, he received authentic information about the involvement of the Page 23 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined accused in the alleged crime and based on said input, he has arrested the accused and handed over their custody to investigating officer Mr. Rana. He has further stated that, at the time of arrest, accused Raju was having a receipt of goldsmith and accused Dinesh was having two rings in his pocket and he has seized the receipts and rings by drawing the panchnama. In cross-examination, he did not have received any information about the description and identification of the accused and how they found involved in the offence. he also admitted that at relevant time he did not have called the complainant for identification of the ornaments.
23. Mr. Harendrasinh Kiritsinh Rana, PW-20, has been examined by the prosecution. He was investigation officer of the case. The PW-1 had disclosed his complaint before him. The IO in his testimony has stated that after registration of the offence he had been entrusted with the investigation and during investigation, he prepared the panchnama of place of incident and collected necessary samples of blood, one handwritten chit and bloodstained hammer from the place. He has also deposed that, he sent the dead body for PM and recorded the statement of the witnesses. So far as arrest of the accused is concerned, he has deposed that the crime branch Page 24 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined Ahmedabad had arrested the accused nos. 1 and 2 and thereafter he obtained the custody of the accused along with muddamal seized by crime branch. He further deposed that the accused while in the custody voluntarily confessed that they killed the deceased with an intention to robbed her and in the presence of independent witnesses, the accused had pointed out the place of incident and how they killed the deceased, and same had been mentioned in the panchama Exh. 38. The witness has further deposed that the striking force arrested the accused no. 3 Ravi @ Kalariyo and after getting his custody, he obtained the blood sample of the accused. He also deposed that the accused no. 4 Dinesh Marwadi was arrested by Adipur Police and by transfer warrant, he was arrested in the alleged crime. The IO has further deposed that he had obtained the specimen signatures of all accused so as to prove the contents of the measurement chit allegedly prepared at the place by the accused. The IO has further stated that he sent specimen signature of accused along with other seized articles to the FSL at Ahmedabad and obtained the certificate thereof including the blood reports. He has further deposed that after completion of the investigation, he found sufficient material against the accused for the charge and finally filed the chargesheet before the jurisdictional magistrate.
Page 25 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined In the cross-examination, it is denied by the witness IO that he had falsely implicated the accused and no any disclosure being made by them with regard to the confession of the alleged crime. It is also denied by the witness that there was no actual recovery of the ornaments and the procedure of seizure and recovery being made by him in the police station and taken the signatures of the witnesses on the prepared and ready case papers.
24. We have heard at length learned counsels appearing for the respective parties and perused the records and proceedings.
25. The case of the prosecution is entirely based on circumstantial evidence. When the case is based on circumstantial evidence, the prosecution must establish the chain of unbroken events, unerringly pointing to the guilt of the accused and none other. The circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and thereafter, the circumstances taken cumulatively should form 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 probabilities the act must have been done by the Page 26 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined accused. (Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116).
26. Thus, we have to evaluate and appreciate the evidence in light of the aforesaid settled legal proposition. In case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences and thereafter, the Court has to draw an inference with respect to whether the chain of circumstances is complete, or not.
27. In the case on hand, the circumstances which weighed with the Court below were that:
(a) Discovery of ornaments like golden chain and silver rings at the instance of the accused;
(b) Disclosure statement in terms of Section 27 of the Indian Evidence Act, which led to certain discoveries such as the place where the incident occurred, the place where the four silver rings were kept hidden by the accused Ravi Vaghela at his home.
(c) The report of handwriting expert indicative of the facts that the handwriting of the chit would Page 27 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined tallied with the natural handwriting of Ravi Vaghela.
28. The Court below relying on the circumstances as proved raised the inference that on the day of incident, the accused had hatched the conspiracy to rob the deceased and when the act was resisted, she had been killed by strangulation and causing head injury over her head with the hammer.
29. We have careful examined the evidence adduced by the prosecution. So far as discovery of ornaments and confessional statement admitting the guilt of the accused while they were in custody of the police is concerned, we are of the considered opinion that the Court below has misdirected in accepting the factum of recovery and confessional statement as admissible in evidence.
Reasons :
(1) It is the case of the prosecution that on 16.09.2013, the crime branch, Ahmedabad had received input that the accused had committed a murder of the deceased and out of four accused, two persons viz. Rajesh Kachchhi and Dinesh Makwana resident of Navavadaj were standing nearby the temple at Ahmedabad. The accused were nabbed by the crime branch and during Page 28 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined their search, the police found one receipt allegedly given by Shah Jewelers from the pocket of accused Raju and two metal rings found in the pocket of accuse Dinesh. Thereafter, the I.O. called the PW:4 Naresh Shah, Goldsmith and seized the gold chain with him which allegedly pledged before him by the accused while advancing Rs.20,000/- to them. The PW:4 Naresh Shah in his testimony stated that the golden chain was pledged by accused Dinesh and the signature on the receipt Exh.24 was put by him. In such circumstances, the recovery of receipt from the pocket of accused Rajesh is highly doubtful and not convincing because when Dinesh had pledged the golden chain, the receipt thereof must be found from him only. The second reason for not believing the recovery of receipt and two golden rings is that the panch witnesses who are common in other two panchnamas have not stated in clear terms about the facts of disclosure and recovery nor the I.O. PW:18 and PW:20 have stated the contents of panchnama Exh.34. It is relevant to note that the complainant PW:1 has not given any identification mark of the golden chain and two silver rings which allegedly robbed by the accused herein. The initial version of the PW:1 was that the only golden chain and two rings were robbed and there was no any reference of pendant which was referred by goldsmith and the Page 29 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined police. The gold chain was not found from the conscious possession of the accused Rajesh Kachchhi or any accused. In such circumstances, we are of the considered view that when the investigation officer has not proved the contents of the panchnama in accordance with law, then in that case, the Trial Court is not justified in relying upon such evidence.
(2) The prosecution has relied on the circumstances that at the instance of Ravi Vaghela, there was a recovery of four silver rings and the same were identified by PW-1 and as well as the witnesses of panchnama Exh.38. On perusal of the evidence, it appears that the panch witnesses Manu Thakore and Chamanji Thakore PWs-10 and 11 respectively have not in clear terms deposed about the said discovery and recovery. The Investigating Officer PW-20 Mr.Rana, failed to depose the contents of the first part as well as second part of the panchnama Exh.38. PW-1 failed to point out the special identification mark of the four silver rings. The said rings were discovered from the open place nearby the house of the accused where there was a common access. The PW-1 failed to produce the bills with regard to four rings. On perusal of the panchnama Exh.38, it shows that there was a joint discovery. Thus, when the I.O. as well as panch witnesses have not deposed the exact words, Page 30 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined attributed to Ravi Vaghela, the contents of the panchnama cannot be read in evidence and the Court below was not justified in placing reliance upon the said discovery of ornaments. In this context, we may also refer to a decision of the Apex Court in the case of Bodhraj @ Bodha and others Vs. State of Jammu and Kashmir, 2002(8) SCC 45. In Para-18 of the said judgment, while interpreting Section 27 of the Indian Evidence Act, it was observed and held that what is admissible being the information, the same has to be proved and not the opinion formed on it by the police official. In other words, the exact information given by the accused while in custody which led to recovery of the article has to be proved.
It is therefore necessary for the benefit of both the accused and the prosecution that the information 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 of subsequent event. The doctrine is founded on the principle that if any fact is discovered, as a search made on the strength of any information obtained from the prisoner, such discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculptory in nature, but if it results in discovery of fact, it becomes Page 31 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined reliable information. It is now settled that recovery of an objection is not a discovery of fact envisaged in the section.
(3) The other circumstances relied by the prosecution and accepted by the trial Court is the facts stated by the accused with regard to place of incident and the manner in which the murder took place. It is not in dispute that, on 13.09.2013, the offence was disclosed by PW-1 and according to opinion of the court below, prior to the registration of the FIR, the period of death was estimated to be between 2 to 3 days prior to the recovery of the dead body and the court below opined that the death in question took place on 12.09.2013. The accused nos. 1 and 2 were arrested on 16.09.2013. The disclosure panchnama Exh. 13 was drawn on 18.09.2013. Admittedly, the witnesses of the said panchnama have not deposed in clear terms about the discovery of facts mentioned in the panchnama. The IO PW-20 Mr. Rana, in a casual manner merely referring the facts of the panchnama deposed that, the accused Rajesh Kachchhi and Dinesh Makwana confessed before him that after robbing the valuables of the deceased, they killed her by using scarf and weapon hammer. On perusal of the said panchnama, we are of the considered opinion that, the pointing out by the accused above the place Page 32 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined of incident has already discovered prior to the arrest of the accused. Therefore, the discoveries which were made on the pointing out of the accused cannot be read against the appellants. So far as confession part is concerned, it is settled legal position of law that, the confession includes any statement made by any person while in custody of police, and appears to apply such statement to whomsoever made i.e. to fellow prisoner, a doctor or visitor, such statement are not covered under Section 162 and the confession of guilt always hit by Section 26 of the Evidence Act and it cannot be relied upon. In other words, if the confessions contains an admission of an offence, not only that admission, but also every other admission of the incriminating statement is a part of confession, if it is an admission of an incriminating circumstances, it cannot be used as an evidence. In the facts of the present case, the admission of the accused did not directly lead to the discovery of facts and therefore, it cannot be used as an evidence against the accused. The court below while relying on said circumstances as referred in Exh. 38, misdirected himself as the case is not covered by Section 27 of the Evidence Act as it is hit by Sections 25 and 26 of the Evidence Act. In such circumstances, the confessional statement without any discovery of facts, as referred above is not admissible under Section 27 of the Evidence Act.
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30. In light of the factors of discovery and confessional statements as discussed above, we are of the opinion that, if the said discovery and recovery of the ornaments and the confessional statements excluded from the evidence, then, the circumstances relied upon have not been fully established. It is relevant to note that, in order to prove the handwriting of seized chit of measurement allegedly written by accused Dinesh at the instance of accused Rajesh, the prosecution had obtained a specimen signatures of all the accused and sent it to the handwriting expert for its examination. But somehow record shows that the examiner of the specimen signature, who had issued the certificate, has not been examined to prove the author of the chit. In such circumstances, the important links goes and chain of circumstances has not been fully established pointing the guild of the accused. The learned court below while convicting the appellants accused with the aid of Section 120B, has not discussed how the ingredients of criminal conspiracy are being established and what is the evidence available on record to prove the factum of criminal conspiracy. On perusal of the oral as well as documentary evidence, nothing on record to prove and establish that there was a meeting of mind amongst the accused. Thus, in absence of Page 34 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined cogent and acceptable evidence with respect to criminal conspiracy, the accused cannot be vicariously liable for the alleged offence of murder and robbery. We are conscious of the fact that the manner in which the deceased was killed, is shocking but moral consideration cannot be substituted for the legal evidence and the accused cannot be convicted on moral consideration.
31. Recently, the Supreme Court in the case of Abdul Nassar Vs. State of Kerala and another, AIR 2025 SC 691, expressed its deep concern about the appreciation of evidence and its evaluation undertaken by the court below in a case based on circumstantial evidence. The Supreme Court observed that the manner in which the evidence has been scrutinized lacks the depth and rigor expected while arriving at just decision of the case. The Supreme Court further enunciated the principles that the trial Court as well as High Court must adhere while appreciating and evaluating the evidence in cases based on the circumstantial evidence, which reads that :
"(i) The testimony of each prosecution and defence witness must be meticulously discussed and analysed. Each witness's evidence should be assessed in its entirety to ensure no material aspect is overlooked.Page 35 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025
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(ii). Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact. Thus, the reasonable inferences that can be drawn from the testimony of each witness must be explicitly delineated.
(iii). Each of the links of incriminating circumstantial evidence should be meticulously examined so as to find out if each one of the circumstances is proved individually and whether collectively taken, they forge an unbroken chain consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
(iv). The judgment must comprehensively elucidate the rationale for accepting or rejecting specific pieces of evidence, demonstrating how the conclusion was logically derived from the evidence. It should explicitly articulate how each piece of evidence contributes to the overall narrative of guilt.
(v). The judgment must reflect that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis."
32. So far as the case on hand is concerned, the incriminating material as referred by the court below has not been meticulously discussed and analyzed so as to find out whether each one of the circumstance is proved individually or collectively to complete the chain of events. Therefore, in our opinion, the prosecution failed to adduce sufficient, cogent and Page 36 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025 NEUTRAL CITATION R/CR.A/912/2016 JUDGMENT DATED: 14/02/2025 undefined acceptable evidence to prove the charges beyond reasonable doubt against the appellants accused. The judgment of conviction and order of sentence passed against the appellant accused is not sustainable in law and accordingly, deserves to be set aside and are hereby set aside.
33. In the result, the appeals stand allowed. The judgment of conviction and order of sentence dated 23.05.2016 passed in Sessions Case No. 94 of 2014 is hereby set aside. The appellants accused stand acquitted of the offence under Sections 452, 397 read with Section 120B, Section 302 read with Section 120B of the IPC and Section 135 of the Gujarat Police Act. The accused be set liberty , if not required in any other case. Fine amount deposited, if any, be refunded to them. R&P be sent back forthwith to the trial Court.
(ILESH J. VORA,J) (HEMANT M. PRACHCHHAK,J) P.S. JOSHI Page 37 of 37 Uploaded by P.S. JOSHI(HC00177) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 03:18:43 IST 2025