Gujarat High Court
Shailendrasinh @ Munnabhai ... vs State Of Gujarat on 28 June, 2021
Bench: A.J.Desai
R/CR.A/999/2014 CAV JUDGMENT DATED: 28/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO.999 of 2014
WITH
CRIMINAL MISC. APPLICATION (FOR SUSPENSION OF
SENTENCE) NO. 1 of 2020
In R/CRIMINAL APPEAL NO.999 of 2014
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE A.J.DESAI Sd/-
and
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
===========================================================
SHAILENDRASINH @ MUNNABHAI BACHUBHAI JADEJA
Versus
STATE OF GUJARAT
=========================================
Appearance :
MR JV JAPEE for the Appellant.
MR Y.S. LAKHANI, Senior Counsel assisted by MR TUSHAR M GOKANI WITH
MR PRATIK Y JASANI for the Respondent No.2 - Original Complainant.
MR MITESH AMIN, PUBLIC PROSECUTOR assisted by Ms. KRINA CALLA,
Additional Public Prosecutor for the Respondent No.1.
=========================================
R/CR.A/999/2014 CAV JUDGMENT DATED: 28/06/2021
CORAM :HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 28/06/2021
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE A. J. DESAI)
1. By way of the present appeal under Section 374 of the
Code of Criminal Procedure, 1973, the appellant - accused has
challenged the judgment and order of conviction dated 12.5.2014
passed by learned 9th (Adhoc) Additional Sessions Judge, Rajkot
(hereinafter referred to as 'the learned Trial Court') in Sessions
Case No.124 of 2009 by which the learned Trial Court has
convicted the appellant for the offence punishable under Section
302 of Indian Penal Code and ordered to undergo life imprisonment
and directed to pay fine of Rs.5000/- and in default of payment of
fine, further simple imprisonment of six months. The appellant was
also convicted for the offence punishable under Section 450 of the
Indian Penal Code and ordered to undergo simple imprisonment for
a period of five years and fine of Rs.2,000/- and in default of
payment of fine, further simple imprisonment for a period of two
months. The appellant was also convicted for the offence
punishable under Section 188 of the Indian Penal Code and
ordered to undergo simple imprisonment for a period of fifteen
days and fine of Rs.100/- and in default of payment of fine, further
simple imprisonment for a period of one day. The appellant was
also convicted for the offence punishable under Section 201 of the
Indian Penal Code and ordered to undergo simple imprisonment for
a period of three years and fine of Rs.1,000/- and in default of
payment of fine, further simple imprisonment for a period of one
month. All the sentences were ordered to run concurrently.
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2. The appeal came to be admitted by oral order dated
18.11.2014. The Records and Proceedings along with Paper-book
is sent by the learned Trial Court.
3. An application for suspension of sentence being
Criminal Misc. Application No.1 of 2021 came to be filed at the
instance of the appellant for suspending the sentence mainly on the
ground that the applicant is behind bar since more than 11 years.
The said application was disposed of by this Court vide order dated
29.1.2021 directing the Registry to list the appeal for final hearing.
Accordingly the present appeal is listed for hearing.
4. We have heard Mr. J. V. Japee, learned advocate
appearing for the appellant, Mr. Mitesh Amin, learned Public
Prosecutor appearing for the respondent - State, Mr. Y. S. Lakhani,
learned Senior Counsel assisted by Mr. Tushar M. Gokani and Mr.
Pratik Jasani for the original complainant.
5. The short facts arise from the record are as under :-
5.1 That one Dayabhai Kotecha, who is a Businessman in
construction having his office at First Floor, Star Plaza in
Phulchhab Chowk at Rajkot was attacked in the said office on
25.3.2009 at around 19.30 hours with a knife by the appellant in
presence of several staff members of Dayabhai including the
complainant. The said Dayabhai was initially shifted to Wockhardt
Hospital in 108 Ambulance. However, subsequently, he was shifted
to Rajkot Civil Hospital where he was declared dead.
5.2 One of the employees, namely, Dipak Chunibhai
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Bhayani who happened to be driver of deceased Dayabhai, lodged
an FIR on the same day i.e. 25.3.2009 at around 21.35 hours near
Post Mortem Room, Civil Hospital, Rajkot wherein he declared that
when he was sitting outside the chamber of deceased Dayabhai, the
other staff member, namely, Arunbhai, Bakulbhai and office boy
Sunny were sitting there. At that time, one broker, namely, Bakul
Udani went in the chamber of Dayabhai and was sitting inside.
Thereafter, at around 19.45 to 20.00 hours, the appellant, resident
of village Anandpar, Tal. Kalavad came in the office and inquired
with him about Dayabhai. The appellant was told that one person
is there and, therefore, he was asked to sit outside the chamber of
Dayabhai. He waited there for five to ten minutes and thereafter
on his own, he went inside the chamber of Dayabhai. Thereafter,
the said Bakulbhai Udani came out of the Chamber of Dayabhai and
when he was coming out, Dayabhai was screaming for help and
when he opened the door of chamber, he found Dayabhai having
been attacked and was lying in the blood and the appellant was
giving knife blows to him. The said Dipak Bhayani tried to save
Dayabhai, but the appellant showed him the knife and ran away
from the chamber after pushing him and thrown the knife in the
chamber itself. Dayabhai became unconscious and, therefore, one
of the employee, namely, Arunbhai called 108 Ambulance as well as
his sons, namely, Ashok and Devang @ Raja and accordingly, all of
them reached the office complex and simultaneously, when 108
Ambulance came, travelled in the Ambulance towards the Hospital.
Initially, Dayabhai was taken to Wockhardt Hospital and thereafter
he was shifted to Rajkot Civil Hospital. It is his say that he also
travelled to Civil Hospital where in emergency ward, Dayabhai was
examined by Medical Officer and was declared dead. The deceased
Dayabhai had received three injuries, on his chin, inside the
underarm of the left hand, on the back side below neck as well as
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lower part of his left leg. It was also declared by him that some
land disputes were going on between deceased Dayabhai Kotecha,
the appellant himself along with his father and other family
members. Said disputes were going on since last five to seven
years. He has also declared that number of applications /
complaints were given by deceased against the appellant and his
family members and some suit is also pending. He also declared
that he was aware about all these things since he used to travel
with Dayabhai to attend the proceedings on several occasions.
5.3 Subsequent to lodgment of the FIR, the appellant was
found within few hours and came to be arrested on the next
morning i.e. 26.3.2009 from village Ishwariya, Dist. Bhavnagar
from the field of relative of the appellant. On completion of
investigation, charge-sheet came to be filed against all the accused
persons before the Court of concerned Judicial Magistrate First
Class, Surat.
5.4 On the basis of material recovered during the course of
investigation, it was noticed by the learned Magistrate that the
incident in question, for which, the offence is registered, is triable
by the Court of Sessions in exercise of jurisdiction under Section
209 of Cr.P.C. and therefore, the case was committed to Sessions
Court, Surat and the same was registered as Sessions Case No.124
of 2009.
5.5 A charge against the appellant - accused came to be
framed by the learned Sessions Judge on 16.2.2010 at Exh.29. The
charges levelled against the accused were denied by him. The
prosecution in all examined 36 witnesses and produced several
documentary evidence in support of the case.
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5.6 The learned 9th Additional Sessions Judge (Adhoc),
Rajkot after considering the deposition of all the witnesses and
documentary evidence, found the appellant - accused guilty of
having committed the offence and accordingly convicted him and
recorded sentence as stated herein above.
5.7 Hence the present appeal.
6. Mr. J. V. Japee, learned advocate appearing for the
appellant would submit that the learned Trial Court has erred in
convicting the appellant in absence of any eye-witnesses and by
relying solely upon the circumstantial evidence since the so-called
eye-witnesses, including the complainant has not supported the
case of the prosecution put forward against the appellant from the
beginning. He would further submit that it is not in dispute that
one Nalinkant Ramniklal P.W. 1 - Exh.33 who was working as an
Accountant in Hotel Royal Inn which belongs to son of deceased,
namely, Ashokbhai visited the office premises following his
employer, namely, Ashokbhai and subsequently, also visited Civil
Hospital and disclosed before the In-charge Police Officer of Rajkot
Civil Hospital, namely, Jayendrasinh who has been examined as
P.W. 15 - Exh.95 that some unknown person had attacked the
deceased. The said information was put into writing by P.W. 15
and entry was made at Exh.96. By taking us through Exh.96, Mr.
Japee would submit that no name has been disclosed in the said
entry. However, with ulterior motive and to settle the score with
the appellant, the FIR has been recorded in the name of Dipakbhai
Chunibhai Bhayani, the driver of Dayabhai. He would submit that
the said Dipak who has been examined as P.W.17 - Exh.102 has not
supported the case of the prosecution. By taking us through the
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deposition of P.W.1 - Nalinkant Ramniklal - Exh.33, he would
submit that it is an undisputed fact that he had travelled initially to
Wockhardt Hospital and subsequently to Civil Hospital, Rajkot.
However, it is not believable story put forward by him that he was
not knowing the assailant. It is also not believable that though all
the family members of the deceased had reached the Civil Hospital,
Rajkot, they were not discussing about the assailant. It cannot be
believed that Dipak Bhayani, driver of deceased Dayabhai had
informed him in the Hospital about the name of assailant since
statement of Nalinkant has been recorded by the Investigating
Officer after two days. Apart from the so-called eye-witness,
namely, Dipakbhai, other employees, namely, Arunkumar Trivedi
Court Witness No.1 Exh.260 and Bakulbhai Udani Court Witness
No.2 Exh.272 and Suresh Raydhanbhai Chhaiya Court Witness
No.3 Exh.312 who were referred as the eye-witness and have also
not supported the case of the prosecution. Therefore, in absence of
any witnesses to the crime, the prosecution is supposed to establish
entire chain of circumstances without any break about commission
of crime and involvement of the appellant. The prosecution is
bound to establish that only and only the appellant is the culprit in
the crime which the prosecution has miserably failed.
6.1 Mr. Japee would further submit that the prosecution
has tried to establish the motive behind the crime about the
disputes amongst the deceased on one side and the appellant and
his family on the other side. But it is an undisputed fact that after
2005-06, no complaint has been lodged at the instance of deceased
Dayabhai. He would further submit that on the contrary, the
appellant has been arraigned as accused so that there would be
decision in the Civil suit accordingly. By taking us through the
deposition of Kishor Dayabhai Kotecha - P.W.14 Exh.87 and Ashok
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Dayabhai Kotecha - P.W.24 Exh.165, he would submit that there
were some disputes amongst the family members of deceased
himself. It was further argued that Ambalal Laljibhai Hirpara -
P.W. 13 Exh.83 has categorically stated that at Kalavad Police
Station, last offence was registered against the appellant in the
year 2005 and thereafter, no offence is registered and, therefore,
the alleged motive about the commission of crime of offence in the
year 2009 ought not to have been accepted by the learned Trial
Court.
6.2 Mr. Japee would further submit that the learned Trial
Court has heavily relied upon the deposition of Sunnybhai
Bharatbhai Parmar - P.W. 21 Exh.141 who was working as an office
boy with deceased Dayabhai. By taking us through his deposition,
he would submit that it is an admitted fact that he does not know
the appellant and had never seen the appellant before commission
of the crime. Therefore, in such circumstances, the Investigating
Officer was duty bound to arrange a Test Identification Parade. In
the present case, in absence of any T.I. Parade as well as though
the news item published in the daily newspaper, which revealed
about the identity of the appellant, identifying the appellant in the
Court premises becomes useless. Even statement of the said
witness Sunnybhai was recorded after 2 days and neither he
disclosed anything to Police nor Investigating Officer recorded his
statement for 2 days and, therefore, no reliance can be placed on
the deposition of the said witness. Therefore, the say before the
Court that he was sitting along with the driver on the first floor
outside the chamber of Dayabhai is required to be discarded. By
taking us through the deposition of several Police witnesses
including the Investigating Officer, it was argued that the manner
and method of finding the accused at a distant place from his
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relative's field and not arresting immediately or preparing any
arrest Panchnama creates doubt.
By taking us through the deposition of Mahavirsinh
Hitendrasinh Vaghela - P.W. 18 Exh.107 who was Police-Sub-
Inspector in DCB Crime, Rajkot, it was argued that he having
received some information about the murder of Dayabhai, he along
with his staff members reached the place of crime wherein in his
primary investigation, he came to know that assailant is present
appellant and one Muniya, Assistant Commissioner of Police, Crime
Branch of Rajkot asked him to inquire about the appellant.
Accordingly, he started getting information and came to know
about mobile number belonged to the appellant and after tracing
him through his mobile location, he was found in another District,
namely, Bhavnagar from where the appellant was found by him.
He would submit that though he was found at 3 O'clock in the
morning on 26.3.2009, he was not arrested from the place itself.
Neither his arrest Panchnama was prepared nor any formal arrest
memo was made. Even the clothes of the appellant were not
collected on the spot. However, the appellant was brought to
Rajkot and subsequently, ACP Mr. Naresh Ambalal Muniya
arrested the appellant around 12.15 to 13.00 hours on 26.3.2009.
There was no reason for the Police Officer not to arrest the accused
by following the procedure prescribed under the Code of Criminal
Procedure, 1973 as well as under Police Manual. The appellant
was illegally detained for 9 hours and after his arrest, his clothes
were collected and Panchnama was prepared at Rajkot and that too
subsequent to completion of initial investigation as well as
completion of P.M. Note. He would further submit that though the
said witness has stated that Mr. Muniya has asked him to inquire
about the appellant, Mr. Naresh Ambalal Muniya who has been
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examined as P.W.37 - Exh.238 in his cross-examination has
admitted that he does not recollect about the presence of
Mahavirsinh Hitendrasinh Vaghela who went to Bhavnagar and
named the appellant.
6.3 Assailing the conduct of another Police witness,
namely, Mukeshkumar Bachubhai Vyas P.W. 30 - Exh.203 who had
recorded the FIR and made some initial investigation, Mr. Japee
argued that as per say of this witness, when he received vardhi
from the control room about the crime, he went at the place and
having come to know, he visited Wockhardt and thereafter Civil
Hospital, Rajkot and recorded the FIR and prepared Inquest
Panchnama Exh.34. However, it is not believable that he would not
record the statement of sons of deceased who were present in the
Hospital and tried to get the details about the incident and
involvement of the criminals. He would further submit that though
he has visited the office, he did not prepare any Panchnama of
scene of offence. He has waited for long time to record the FIR and
to find out the complainant which indicates that the family
members had conspired to see that either appellant or his family
members is made accused in the crime and, therefore, in the name
of the driver, FIR was recorded.
6.4 By taking us through the deposition of Mr. Naresh
Ambalal Muniya - P.W.37 Exh.238, who, as ACP of Crime Branch
was asked to take over the investigation by the order of the Deputy
Commissioner of Police, Rajkot, it was argued that his conduct of
not preparing Panchnama of scene of offence immediately after
reaching at the time and preparing the same on the next day
morning and having found the knife alleged to have been used by
the appellant creates doubt. It was argued that he has admitted
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that he was not aware about the assailant till he received a written
communication Exh.108 from the PSI of DCB, Rajkot city.
6.5 By taking us through the said communication Exh.108,
Mr. Japee would submit that his admission about not knowing
about assailant case put forward by the prosecution in the name of
Mahavirsinh Vaghela who had stated that he was informed by Mr.
Naresh Muniya and accordingly, he went to village Ishwariya,
becomes vulnerable and creates doubt. In such circumstances,
there are all possibilities that to settle the score of civil disputes or
other criminal disputes, the appellant has been arraigned as
accused in the crime. He would further submit that even he has
admitted in his cross-examination that after visiting the place of
incident, he has not gone to Hospital and tried to record the
statement of the relatives of the deceased. Therefore, the Police
witnesses have one by one investigated the case on one's own
method and have tried to complete the chain which they have
miserably failed and, therefore, in such circumstances, the
appellant would be entitled for acquittal.
6.6 By taking us through the deposition of the Medical
Officer, namely, Dr. Altaf Osmanbhai Dal - P.W. 8 Exh.58, who has
performed the Post-Mortem Note, would submit that the injury
sustained by the deceased is of spindal shape. The Medical Officer
has explained the spindal shape and as per his opinion, spindal
shape would be a shape having pointed at the top, middle it is a
broad one and at the end again it is a pointed one. The injury
sustained by the deceased is not of such nature. Even when the
knife, which was allegedly recovered from the place of incident was
shown to him, he has admitted that the knife is only having one
pointed edge and there is no pointed edge on the bottom and,
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therefore, the recovery of weapon which alleged to have been used
in the crime itself creates suspicion where the same was used in
the crime or not. On this count also, the prosecution has failed to
connect the injuries with the weapon allegedly used in the crime.
Therefore, there is missing circumstance in the crime. As far as
heavy reliance placed by the prosecution and accepted by the
learned Trial Court about the presence of appellant with his mobile
at different places is concerned, the location of the mobile itself at
village Ishwariya of Dist. Bhavnagar itself would not establish the
involvement of the appellant. He, therefore, would submit that
when the prosecution has miserably failed to establish the entire
chain of circumstances, the learned Trial Court ought to have
acquitted the appellant from the charges.
6.7 In support of his submissions, Mr. Japee has relied
upon the decision of the Hon'ble Supreme Court in the case of
Mohd. Younus Ali Tarafdar v. State of West Bengal, (2020) 3
SCC 747 and would submit that when the circumstances relied
upon by the prosecution to prove the guilt of appellant were not
complete, circumstances not leading to conclusion that in all
human probability, murder must have been committed by accused,
the conviction of the accused, reversed.
6.8 Similarly, Mr. Japee has also relied upon the decision of
the Hon'ble Supreme Court in the case of Basheera Begam v.
Mohammed Ibrahim and others, (2020) 11 SCC 174.
6.9 By relying upon the decision of the Hon'ble Supreme
Court in the case of Chunthuram v. State of Chhattisgarh,
(2020) 10 SCC 733, Mr. Japee would submit that if two views are
possible, on evidence adduced in a case, in such cases, view
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favourable to accused should be adopted and accordingly,
appellant may be acquitted.
6.10 Mr. Japee has also relied upon the decision of the
Hon'ble Supreme Court in the case of Hari Om alias Hero v.
State of Uttar Pradesh, AIR 2021 SC 402 and would submit that
when the incident has taken place inside the chamber of the
deceased and there are no eye-witness to the same and there is no
other evidence, the appeal may be allowed and the appellant may
be acquitted.
7. On the other hand, Mr. Mitesh Amin, learned Public
Prosecutor appearing for the respondent - State has vehemently
submitted that the learned Trial Court has not committed any error
in convicting the appellant. He would further submit that if the
evidence is perused as a whole, the prosecution was able to
establish the case against the appellant and the learned Trial Court
has rightly come to the conclusion that only accused is the culprit
in committing murder of deceased Dayabhai. He would further
submit that as far as entry Exh.96, the same was recorded at
Rajkot Civil Hospital by Police Officer on duty at Civil Hospital
itself wherein no name has been disclosed or recorded at the
instance of one of the witness, namely, Nalinkant. However, if
Nalinkant's deposition is carefully gone through, it appears that he
had followed his employer, namely, Ashokbhai, son of deceased
Dayabhai and had never travelled with any of his sons or the
complainant Dipak upto Civil Hospital, Rajkot. In such
circumstances, he had no knowledge that who had assaulted the
deceased in his chamber and, therefore, such entry was recorded
at 21.20 hours on 25.3.2009. It appears from the deposition of all
the witnesses who were present in the Civil Hospital initially, the
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deceased was declared dead in Emergency Ward and subsequently,
dead body was sent for Post Mortem and in the P.M. Room where
such procedure is required to be carried out in the Hospital. He
would further submit that when he reached near P.M. room, the
FIR was already lodged at the instance of Dipak and at that time,
Inquest Panchnama was prepared in his presence and same thing
has been admitted by him that Panchnama was prepared in his
presence and accordingly, he has put his signature. He would
further submit that Inquest Panchnama Exh.34 does disclose about
the Crime Register Number for which the complaint was lodged.
He would further submit that Entry Exh.96 is recorded at 21.20
hours whereas recording of the FIR began at 21.35 hours at a
different place i.e. near P.M. Room and the same is disclosed from
the FIR Exh.103. Therefore, the submission made by Mr. Japee that
the family members of the deceased had decided to involve the
present appellant in the crime is required to be discarded. He
would further submit that the complainant Dipak Bhayani who was
working with deceased since last 10 years from the date of
incident, has refused to accept his own statement that he has seen
the incident. However, as per his own say before the Court, he was
present at the ground floor of the office of the deceased and has
travelled initially to Wockhardt Hospital and then Civil Hospital,
Rajkot. He would further submit that the investigation revealed
that he was shown witness to number of applications submitted at
the instance of deceased Dayabhai at Police Station wherein the
appellant was one of the accused. However, he has bluntly refused
to identify the appellant who was present in the Court room which
suggests otherwise. He would further submit that his presence in
the chamber of deceased is established by other circumstances like
blood stains found on his Chappals which were discovered
immediately after the lodgment of the FIR at his instance.
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7.1 By taking us through the deposition of Bharatkumar
Chhaganlal Gangdev - P.W. 2 Exh.35, Mr. Amin would further
submit that through this Panch witness, the Chappals and clothes
of appellant were recovered and collected at the instance of Dipak
and he has identified all the clothes during his deposition before
the learned Trial Court. By taking us through the Serological
Report (Exh.117) received from the FSL, he would submit that
blood stains of deceased have been found on his shirt as well as
both Chappals which established his presence in the chamber of
deceased where the incident has taken place since as per his own
say, the deceased was lying in a pool of blood and his clothes were
having blood stains. He would further submit that Dipak Chunibhai
Bhayani, P.W.17 - Exh.102 was examined on 29.12.2010 whereas
other 16 witnesses including one of the sons of deceased, namely,
Kishor Dayabhai P.W.14 was examined on 7.9.2010. In this
background, if the deposition of these witnesses are perused, the
learned Trial Court has rightly found them telling the truth in their
deposition including the motive behind the crime. He would
further submit that the articles which were produced by him before
the concerned Panch witness and Chappals were shown to him
before the Court proceeding which were accepted by him that the
same belongs to him. He would further submit that he has
deliberately lied before the Court that he is not aware about any
disputes going on between the appellant and deceased since the
prosecution was able to establish that the said Dipak Bhayani was
witness in certain proceedings as the person working as driver
visiting along with his employer on various occasions to different
offices had never heard the name of the appellant.
7.2 Mr. Amin would further submit that Sunnybhai
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Bharatbhai Parmar - P.W. 21 Exh.141 who was working as office
boy with deceased Dayabhai has categorically stated that on the
date and time of the incident, he along with the other staff as well
as the complainant Dipak were sitting outside the chamber. He
stated that one broker, namely, Bakulbhai was sitting in the
chamber of deceased and at that time, one person entered the
chamber of Dayabhai and at that time, broker Bakulbhai was sitting
in the chamber and when he was coming out, he heard scream of
Dayabhai from his chamber and he saw the person running away
from the place. He would submit that this witness is not cross-
examined about his say that the complainant - Dipak was also
sitting outside the chamber, though Dipak, who has not supported
the case, has stated that he was standing on the ground floor. He
is a neutral witness and has rightly stated that he has never seen
the appellant before the incident. He has also admitted that he has
not actually seen the attack on the deceased at the instance of the
person who ran away from the place which establishes his presence
along with other staff members outside the chamber of deceased
Dayabhai.
7.3 By taking us through the deposition of Ashok Dayabhai
Kotecha, P.W. 21, Exh.165, Mr. Amin would submit that this
witness happens to be the son of deceased Dayabhai and upon
receiving telephonic information from the office of his father, he
immediately reached there from his office which is in the same area
where he found his father in seriously injured condition and several
staff members i.e. Arunbhai, Bakulbhai and complainant - Dipak
Chunibhai Bhayani (driver), Suresh and office boy Sunny were also
present. Thereafter, in short time, his accountant Nalinkant also
reached at the place of incident. On inquiry with Dipak, he
informed Ashok that the appellant had given knife blows to the
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deceased and had ran away. Ashok went to Wockhardt Hospital and
asked Nalinkant to visit the said hospital. Therefore, all of them
reached the said Wockhardt Hospital and the Doctor asked them to
get the injured admitted in the Government Civil Hospital and,
therefore, he asked Nalinkant to reach Civil Hospital and get the
procedure done. The deceased was transferred to Civil Hospital in
the same 108 ambulance and was taken to emergency ward where
he was declared dead. Mr. Amin would further submit that the said
Ashok and Nalinkant had travelled in different vehicles, initially to
Wockhardt Hospital and thereafter to Civil Hospital and as stated
by them, there was no occasion to inform Mr. Nalinkant that the
present appellant had attacked his father. Therefore, when his
father was in emergency ward, Nalinkant had no knowledge of
assailant and hence, he had informed the concerned Police
Constable at the duty of Civil Hospital that some unknown person
had attacked Dayabhai. However, the only eye-witness, namely,
Dipak who was present near the Post Mortem room subsequent to
declaration made by the Medical Officer about the death of
Dayabhai and when post death procedure was going on, he
declared the entire incident in detail which has been rightly treated
as FIR by the Trial Court.
7.4 He would further submit that the FIR was recorded at
21.35 hours and Station Diary entry was recorded at 21.50 hours.
A copy of the FIR was sent to 4th Additional Civil Judge & JMFC,
Rajkot who has mentioned receiving the same on 26.3.2009 at 1.30
hours which can be seen from the FIR Exh.239. He, therefore,
would submit that the arguments canvassed by learned advocate
Mr. Jappi that the appellant is deliberately made accused to settle
disputes pending before the parties is ruled out. In his cross-
examination, he has denied that when Dipakbhai informed him
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about the assailant, Nalinkant was standing near him so that he
can hear the information exchanged between Dipakbhai and his
witness Ashokbhai. He would, therefore, submit that the case put
forward by the prosecution at the instance of complainant side that
none of the sons of deceased had witnessed the incident and the
incident has taken place as initially described.
7.5 Mr. Amin would further submit that apart from the
above facts, there are other circumstances which establishes that
only and only the appellant is the assailant in the crime who had
given knife blows to the deceased and heed away from the place.
He would further submit that after committing the crime, the
appellant had travelled at different places, he had stopped and
instructed certain hostile witness from Rajkot to village Ishwariya,
Amreli District and ultimately was arrested from village Ishwariya,
Amreli District and during the said period, the mobile belonged to
the present appellant was used during the interregnum period and
subsequently, was used by another witness, namely, Jambha
Kalubha Sapra P.W. 27 Exh.172, who has not supported the case of
the prosecution being the cousin of the appellant. However, at the
end of complete investigation with regard to mobile instrument,
sim card was used initially by the appellant and subsequently by
said Jambha Kalubha and discovery of mobile which belonged to
the appellant, establishes that the appellant after committing the
crime, ran away from the place of incident, however, came to be
arrested immediately within few hours tracking the mobile
instrument location. He would further submit that this aspect has
been proved from the deposition of witness, namely, Tejas
Maheshbhai Patel P.W. 36 Exh.228 who is a Nodal Officer from
Vodafone Company. He would further submit that the appellant
was arrested at Rajkot after bringing him from Amreli District. His
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clothes were discovered and sent for Serelogical report having
found bloodstains on pant of the appellant.
The Serological Report Exh.117 establishes the fact
that the pant wore by the appellant at the time of commission of
offence as well as at the time of arrest, bloodstains of deceased
having blood group 'B' is found on the same which is also one of the
circumstances which establishes the case put forward by the
prosecution about the crime committed by the appellant. He,
therefore, would submit that the learned Trial Court has committed
no error in convicting the appellant and hence, the present appeal
may be dismissed.
8. Mr. Y.S. Lakhani, learned Senior Counsel assisted by
Mr. Tushar M. Gokani and Mr. Pratik Y. Jasani, learned advocates
appearing for the original complainant has adopted the arguments
advanced by learned Public Prosecutor. However, in support of the
said contentions, Mr. Lakhani has relied upon several decisions. In
response to the arguments canvassed on behalf of the appellant
that when the complainant - sole witness has not supported the
case of the prosecution, Mr. Lakhani would submit that in this
situation, Section 6 of the Evidence Act which is an exception to
the general rule where under the hearsay evidence becomes
admissible, is applicable in the present case. He would further
submit that Dipakbhai - complainant who was in service of the
deceased since last 10 years had seen the appellant on number of
occasions since he used to visit several Police Stations and Court
proceedings along with deceased Dayabhai which were pending
before the Courts upon filing applications against the appellant
and/or his relatives. Therefore, Dipakbhai was in complete
knowledge about the disputes going on between the parties and
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had seen the appellant on number of occasions.
8.1 He would further submit that therefore, when
Ashokbhai - son of deceased reached at the place of incident,
Dipakbhai had narrated everything and name of the appellant was
disclosed to him and since Dipakbhai had seen the commission of
crime, the FIR has been lodged at his instance and particularly in
view of the fact that the incident has taken place in a chamber of
deceased Dayabhai. He would further submit that considering the
oral evidences of other witnesses, namely, Kishor, Nalinkant,
Sunny etc., it appears that Dipakbhai can be treated as a lier and
has deliberately disclosed half truth since he has admitted that he
was in the building itself and had gone in the Chamber. He has
also admitted that he had visited Wockhardt Hospital as well as
Civil Hospital subsequent to attack on Dayabhai. Even FSL Report
dose prove that the bloodstains were found on the clothes and
chappals which belonged to the appellant which establishes his
presence at the scene of crime and as disclosed initially before the
concerned Police Officer. In support of his submission, Mr.
Lakhani has relied upon decision of the Hon'ble Supreme Court in
the case of Ramratan and others v. The State of Rajasthan,
AIR 1962 SC 424, decision of this Court in the case of
Dashrathbhai Mohanbhai Rathod v. State of Gujarat (2014) 3
GLR 2391, unreported decision passed by the Division Bench
of this Court in the case of Becharsinh Gulabsinh Makwana
v. State of Gujarat delivered on 28.6.2018 in Criminal Appeal
No.296 of 2012, and would submit that when the corroborative
evidence on the line of statement made by the appellant before the
Police Authority under Section 157 of the Evidence Act, the learned
Trial Court has rightly convicted the appellant.
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8.2 By relying upon a decision of the Hon'ble Supreme
Court in the case of Paramjeet Singh v. State of Uttarakhand,
AIR 2011 SC 200, Mr. Lakhani would submit that even the
witness who has been declared hostile and was allowed to be cross-
examined, can be relied upon after examining carefully that who is
speaking truth and who is not. He would further submit that
subsequent to transfer of investigation to Mr. Muniya, it has been
rightly recorded by the learned Trial Court that initially he had not
properly and expeditiously made investigation in the crime. He
would further submit that after passing several orders and when
the Sessions Court was likely to pass strictures against Mr. Muniya,
he was able to discover the mobile instrument used by the
appellant at the instance of some witness i.e. close relative of the
appellant.
8.3 In support of his submissions, Mr. Lakhani has also
relied upon decision of the Hon'ble Supreme Court in the case of
Gajraj v. State (NCT) of Delhi, 2011 (10) SCALE 695 wherein
the Hon'ble Supreme Court has held that the scientific evidence
which have precedence over discrepancies in oral evidence as
particularly the relative of accused is not expected to depose the
correct fact and like the present case, where mobile location and
IEMI number tallies with the owner of the mobile which belonged
to the appellant. He would further submit that when other
circumstantial evidence like mobile location from the sim of crime
to the place where the appellant was arrested, bloodstains of the
deceased found on the pant of the appellant etc. are found, the
same have been rightly relied upon by the learned Trial Court and
can be relied though the eye-witness has not fully supported the
case of the prosecution.
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8.4 Mr. Lakhani has also relied upon the decision of the
Hon'ble Supreme Court in the case of Rameshbhai Mohanbhai
Koli and others v. State of Gujarat, (2011) 11 SCC 111, the
Hon'ble Supreme Court has held that even Panch witnesses might
not have supported the case of the prosecution, but when the
prosecution has proved the Panchnama, it cannot be a ground to
reject such evidence like discovery of pant of the appellant,
bloodstains of the deceased found on the pant of the appellant,
mobile discovery and discovery of sim card etc. He, therefore,
would submit that the appeal may be dismissed.
9. We have heard learned advocates appearing for the
respective parties, perused the original record and proceedings
and the reasons assigned by the learned Sessions Judge for
convicting the appellant. On 25.3.2009 at around 19.30 hours, the
alleged incident happened in which deceased Dayabhai Kotecha, a
businessman dealing in building construction was attacked in his
chamber of his office located at First Floor, Star Plaza in Phulchhab
Chowk at Rajkot, with a knife by the appellant. In the office
premises, number of employees were present but the case put
forward by the prosecution is that the incident has taken place in
the chamber of deceased Dayabhai and had been witnessed by one
Dipakbhai alone and the case put forward by the prosecution is
that the said Dipakbhai had seen the appellant - accused running
away from the place after attacking the deceased and
subsequently, the deceased was initially taken at Wockhardt
Hospital and subsequently, Civil Hospital at Rajkot by his sons and
other employees, the investigation had proceeded accordingly.
10. It also appears from the depositions of several
witnesses who have not supported the case of the prosecution, that
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immediately after the incident, one of the son of deceased, namely,
Ashokbhai and his accountant Nalinkant had reached the place of
incident from their own office which is located in the same area
and nearby to the office of the deceased. It is also proved by the
prosecution by producing relevant documents that initially, the
deceased was taken to private hospital, namely, Wockhardt
Hospital. However, as per the advise given by the Medical Officers
of Wockhardt Hospital, the deceased was shifted to Civil Hospital
in emergency ward where Dayabhai was declared dead.
11. As far as the submission made by learned advocate Mr.
Japee appearing for the appellant that no name of the assailant was
disclosed before the Constable Jayendrasinh Umedsinh Zala who
was on duty at Civil Hospital and such information was recorded by
him vide entry at Exh.96 and subsequently the name of the present
appellant was involved to settle the score is concerned, we have
carefully perused the deposition of Nalinkant Ramniklal P.W. 1
Exh.33, Ashokbhai Dayabhai Kotecha P.W. 24 Exh.165,
Jayendrasinh Umedsinh Zala P.W. 15 Exh.95 who was on duty at
Civil Hospital, Rajkot who had made Entry Exh.96 wherein
Nalinkant had disclosed that some unknown person had attacked
Dayabhai. We have also perused deposition of Mukeshkumar
Bachubhai Vyas, Police Inspector of Pradyuman Nagar Police
Station P.W. 30 Exh.203, who recorded the FIR near P.M. room at
Civil Hospital, Rajkot. As per the say of Nalinkant who was
accountant working in the office of Ashokbhai Dayabhai, on the
date of incident, was present at his work place. He stated that
Ashokbhai received a phone call and informed him that some
scuffle has taken place at his father's office and, therefore, he is
going there and asked Nalinkant to come to office of his father and
accordingly, he went in the office of deceased Dayabhai where he
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found Dayabhai in his chamber lying on the floor in seriously
injured condition and in pool of blood. At that time, office
members working in the office of Dayabhai i.e. Arunbhai, Dipak
(driver), Bakulbhai Udani (Broker), office boy Suresh and Sunny
were also present along with other persons. Thereafter, 108
ambulance had reached the place and in the said ambulance,
Ashokbhai and Rajabhai travelled along with the injured Dayabhai
wherein Nalinkant travelled in another car with the driver and
went to Wockhardt Hospital wherein Ashokbhai informed him to go
to Civil Hospital and follow the procedure of hospital for the
treatment of Dayabhai and accordingly, he went to Civil Hospital,
Rajkot. Thereafter, Dayabhai was taken in emergency ward at Civil
Hospital, Rajkot where he was declared dead. Similar is the say of
Ashokbhai Dayabhai Kotecha P.W. 24 Exh.165 about travelling of
all the persons to two Hospitals in different vehicles which is not
contradicted by the defence.
12. As far as entry Exh.96 recorded by Constable
Jayendrasinh Umedsinh Zala, if perused, the same is recorded at
about 21.20 hours on 25.3.2009 wherein Nalinkant had declared
that the deceased Dayabhai was attacked by some unknown person
with a knife. The said Jayendrasinh was in charge of Government
Civil Hospital, Rajkot Police Chowki. However, the deceased
having found serious injuries was immediately taken to emergency
ward wherein he was declared dead and at that place, Ashokbhai,
Dipakbhai and other family members were present. As per the say
of Nalinkant, thereafter, Police called him near P.M. Room and in
his presence, Inquest Panchnama was prepared and dead body was
identified by the son of the deceased. Nalinkant was panch witness
of Inquest Panchnama and he has supported the case of the
prosecution about Inquest Panchnama Exh.34 drawn in his
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presence and identifying his own signature. He has further stated
that at the time of preparation of Inquest Panchnama, Dipakbhai
(driver) had informed him that the deceased was attacked by
Shailendrasinh Jadeja i.e. appellant herein who happens to be son
of Bachubhai. This say of Nalinkant is also supported by another
witness, namely, Ashokbhai. In his cross-examination, Nalinkant
has categorically stated that till the Panchnama was prepared in
his presence, he was not aware about the assailant and there was
no discussion amongst the family members about the name of the
assailant. Therefore, the submission made by learned advocate Mr.
Japee that Exh.96 should have been treated as an FIR and the FIR
Exh.103 is an intention on the part of the family members of the
deceased to involve the present appellant in view of some disputes,
cannot be accepted and hence, the same is rejected.
13. Now, if we look at the deposition of the sole eye-
witness, namely, Dipak Chunibhai Bhayani P.W.17 - Exh.102 who is
the author of the FIR, has not supported the case and has totally
denied the contents of FIR which was lodged in the Hospital itself.
However, it is proved on record that the FIR is lodged outside P.M.
room and was immediately sent to the concerned Magistrate which
is proved by Exh.239 i.e. copy of FIR sent to concerned Magistrate
having put his signature at 1.30 hours on 26.3.2009. It is an
undisputed fact that the said Dipakbhai was working as a driver
with deceased Dayabhai since last 10 years from the date of
incident. It has also come on record that the applications were
given by the deceased Dayabhai at various Police Stations about
giving threats either by the appellant or his family members with
regard to the business and Dipak Bhayani (driver) has been
mentioned as the witness about the incident referred in those
applications. Certain circumstances which are referred to herein
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below suggest that the said Dipak Bhayani is a lier and has not
sticked to true facts which were disclosed immediately by him in
the Hospital. He has admitted that he has travelled initially to
Wockhardt Hospital and Government Civil Hospital, Rajkot and was
throughout present till his FIR is recorded. His say that he was not
present in the office premises and was on the ground floor and has
not seen the assailant is false in view of the fact that the
bloodstains are found from his clothes and Chappals also.
14. Another witness Sunny Bharatbhai Parmar P.W. 21
Exh.141 who was working as office boy in the office of deceased
Dayabhai has categorically stated by supporting the case of the
prosecution that at the time of incident, he was present in the
office where Dipak Bhayani and other employees were also present.
He has seen the present appellant going into the chamber of
Dayabhai and thereafter heard screams of Dayabhai and also seen
running away the appellant from the office. This witness has
identified the appellant in the Court room itself. This witness has
not at all exaggerated anything by accepting that he has not seen
the actual incident since the same has taken place in the chamber
and in past, he had never seen the assailant since he was working
as an office boy from last one month only. His statement was
immediately recorded by the Investigating Agency i.e. on
27.3.2009. What has been stated by Dipak Bhayani in the FIR
about the assailant is corroborated by say of Ashokbhai Dayabhai
P.W.24 Exh.165. The said Ashokbhai has described the entire
incident as narrated by Dipakbhai. Though this witness is
exhaustively cross-examined, except about the information of the
assailant only at Civil Hospital, there is nothing on record which
would create doubts about his conduct in view of the fact that the
person would be more interested in getting his close relative like
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father to get immediate treatment. Even otherwise, after reaching
the Civil Hospital and subsequent to declaration by the Medical
Officer about death of his father, he started gathering the
information about the assailant. In view of this evidence of
corroborative nature, the ratio laid down by the Hon'ble Supreme
Court in the decision of Ramratan and others (supra), decision of
this Court in the case of Dashrathbhai Mohanbhai Rathod (supra)
and unreported decision passed by the Division Bench of this Court
in the case of Becharsinh Gulabsinh Makwana (supra) would come
into play. By dealing with the provisions of Section 6 of the
Evidence Act, the Hon'ble Supreme Court in the case of Ramratan
has held that former statement can be approved by the person to
whom it was made and can be used to corroboration of evidence.
In the present case, what Dipakbhai Bhayani has stated to
Ashokbhai and Nalinkant, which is corroborative evidence and can
be used to decide the issue.
15. As far as the argument advanced by learned advocate
Mr. J. V. Japee about the weapon alleged to have been found from
the place and injury sustained by the deceased did not match with
each other is concerned, we ahve gone through the deposition of
Medical Officer Dr. Altaf Osman Dal P.W.8 Exh.58. He has
categorically stated that the injuries which are recorded in P.M.
Note Exh.61 and referred in column No.17 are possible with the
knife Article 5 which was recovered from the place of incident. He
has described spindle shape as far as injury is concerned, however,
in all injuries, similar shape might not be there. Therefore, we do
not accept such arguments that the weapon which was recovered is
not used in the crime.
16. Relying upon the decision of the Hon'ble Supreme
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Court and while discussing the provisions of Section 6 of the
Evidence Act, the Division Bench of this Court in the case of
Dashrathbhai Mohanlal Rathod v. State of Gujarat (Supra),
has observed in paragraphs 54 to 57 as under :-
"54. In our opinion, both these witnesses could be
termed as a res gestae witnesses. This principle of res
gestae is embodied in Section 6 of the Evidence Act.
"6. Relevancy of facts forming part of same
transaction.- Facts which, though not in issue, are
so connected with a fact in issue as to form part of
the same transaction, are relevant, whether they
occurred at the same time and place or at
different times and place."
55. In the case of Sukhar v/s. State of U.P., (1999)9 SCC
507, the Supreme Court noticed position of law with
regard to Section 6 of the Evidence Act thus :
"6. Section 6 of the Evidence Act is an exception to
the general rule whereunder the hearsay evidence
becomes admissible. But for bringing such hearsay
evidence within the provisions of Section 6, what is
required to be established is that it must be almost
contemporaneous with the acts and there should not
be an interval which would allow fabrication. The
statements sought to be admitted, therefore, as
forming part of res gestae, must have been made
contemporaneously with the acts or immediately
thereafter. The aforesaid rule as it is stated in
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Wigmore's Evidence Act reads thus :
"Under the present exception [to hearsay] an
utterance is by hypothesis, offered as an assertion to
evidence the fact asserted (for example that a car-
brake was set or not set), and the only condition is
that it shall have been made spontaneously, i.e. as
the natural effusion of a state of excitement. Now
this state of excitement may well continue to exist
after the exciting fact has ended. The declaration,
therefore, may be admissible even though
subsequent to the occurrence, provided, it is near
enough in time to allow the assumption that the
exciting influence continued."
56. Sarkar on Evidence (Fifteenth Edition) summarises
the law relating to applicability of Section 6 of the
Evidence Act thus :
"1. The declarations (oral or written) must relate to
the act which is in issue or relevant thereto; they are
not admissible merely because they accompany an
act. Moreover the declarations must relate to and
explain the fact they accompany, and not
independent facts previous or subsequent thereto
unless such facts are part of a transaction which is
continuous.
2. The declarations must be substantially
contemporaneous with the fact and not merely the
narrative of a past.
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3. The declaration and the act may be by the same
person, or they may be by different persons, e.g., the
declarations of the victim, assailant and bystanders.
In conspiracy, riot, the declarations of all concerned
in the common object are admissible.
4. Though admissible to explain or corroborate, or to
understand the significance of the act, declarations
are not evidence of the truth of the matters stated."
57. The rule embodied in Section 6 is usually known as
the rule of res gestae. What it means is that a fact which,
though not in issue, is so connected with the fact in issue
"as to form part of the same transaction" becomes
relevant by itself. To form particular statement as part of
the same transaction utterances must be simultaneous
with the incident or substantial contemporaneous that is
made either during or immediately before or after its
occurrence."
17. Apart from the above facts, there is ample evidence to
connect the appellant with the crime as far as the involvement of
the appellant in the crime is concerned. The prosecution has
examined one witness Mahavirsinh Hitendrasinh Vaghela P.W. 18
Exh.107 who was working as Police Sub-Inspector in DCB Branch,
Rajkot. As per his deposition, when he came to know about the
murder of Dayabhai on 25.3.2009, he went to the scene of offence
where he came to know about the name of assailant and his mobile
number and, therefore, he immediately started to trace him and
having some information received, he had his own doubt that he
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might have gone to his village Ishwariya of Amreli District where
his close relatives are residing and accordingly, he immediately on
the same night started for village Ishwariya and found the
appellant from the said place and he came along with the appellant
and handed over his custody to the Investigating Officer i.e.
Assistant Commissioner of Police Shri Naresh Ambalal Muniya P.W.
37 Exh.238. It is true that neither arrest panchnama was prepared
nor clothes of the appellant - accused were collected at village
Ishwaria. However, in our opinion, as Mahavirsinh Hitendrasinh
Vaghela who was not in charge of investigation and was instructed
by his superior to trace the assailant, he handed over the accused
to Mr. Muniya who arrested the appellant on the next day i.e.
26.3.2009 at Rajkot at around 12.15 hours and accordingly, both
the Panchnamas were prepared on 26.3.2009 itself. In our opinion,
not arresting the appellant or not collecting the clothes of the
appellant itself would not vitiate the entire prosecution keeping
particularly other evidence available on record like mobile location
at different places between Rajkot to village Ishwariya of Amreli
District. It is pertinent to note that as per FSL Report Exh.117,
bloodstains of the deceased are found on the pant of the appellant -
accused. There is no explanation whatsoever coming on record by
the appellant - accused as to how the bloodstains of deceased are
found on his pant when he was at a distant place in a small village
and that too in night hours.
18. Though the mobile belonged to the appellant is
discovered at belated stage and that too subsequent to passing
strictures by the concerned Sessions Judge against the
Investigating Officer i.e. Assistant Commissioner of Police Shri
Naresh Ambalal Muniya, the mobile IEMI number of the appellant
tallied with the location at various places between Rajkot and
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village Ishwariya and, therefore, the principles laid down by the
Hon'ble Supreme Court in the case of Gajraj v. State (NCT) of
Delhi (supra) would come into play. It has been held by the
Hon'ble Supreme Court in the said decision that scientific evidence
would have precedence over discrepancies in oral evidence and it
is expected that the relatives of the accused would not depose the
correct facts. There is no dispute about the correctness of IEMI of
mobile instrument belonged to the present appellant and it was
subsequently used by another hostile witness, who used the said
mobile instrument by different sim card, who has not supported the
case of the prosecution. It is true that the prosecution has dropped
those employees who have stated before the Investigating Officer
about their presence in the office at the time of occurrence of the
crime. However, the Court had examined them as Court witnesses.
However, they have not supported the case of the prosecution.
Therefore, even in absence of eye-witness, in our opinion, the
prosecution has proved the case beyond reasonable doubt by other
cogent evidence as discussed herein above.
19. Therefore, after having carefully scrutinized the case in
detail, we are of the opinion that only the appellant is the person
who had attacked the deceased Dayabhai with knife and ran away
from the place of incident and thereafter, came to be arrested at a
distant place within no time after tracing the mobile location and
having bloodstains of deceased on his pant. Hence, we are of the
opinion that the learned Trial Court has not committed any error in
convicting the appellant. We are in complete agreement with the
findings recorded and conclusion reached by the learned Trial
Court. The present appeal fails and is accordingly dismissed.
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Registry is directed to send back the Records and
Proceedings to the concerned learned Sessions Court forthwith.
In view of dismissal of main Criminal Appeal No.999 of
2014, Criminal Misc. Application (for suspension of sentence) No.1
of 2020 does not survive and accordingly, is disposed of as not
survived.
(A. J. DESAI, J)
(A. S. SUPEHIA, J)
SAVARIYA
