Gujarat High Court
Dharmishthaben Jayantibhai Patel vs State Of Gujarat on 15 April, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 738 of 2013
With
R/CRIMINAL APPEAL NO. 984 of 2013
With
R/CRIMINAL APPEAL NO. 1145 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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DHARMISHTHABEN JAYANTIBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR RAMNANDAN SINGH(1126) for the Appellant(s) No. 1
MS CM SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 15/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Since, the facts of the case and issue involved in
captioned appeals are identical and arise out of the same
judgment, the appeals are taken up together and are being
disposed of by this common judgment.
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2. The appellants have filed these appeals (Criminal Appeal
No.984 of 2013 and Criminal Appeal No.738 of 2013 against
the judgment and order of their conviction under Section 201
read with Section 114/34 of the IPC.).
3. The respondent-State has preferred enhancement appeal
against the sentence on the ground of its inadequacy imposed
upon the appellants for the offence punishable under Section
201 of the IPC.
4. By judgment of conviction and order of sentence dated
15.04.2013 passed by the Additional Sessions Judge,
Vadodara, in Sessions Case No.206 of 2010, by which the
appellants original accused nos.3 and 4 have been convicted
and sentenced under Section 201 of the IPC read with Sections
114 and 34 of the IPC and sentenced in the manner stated
hereinafter:
Accused Conviction Punishment Fine In default of
under fine
Section
Jayantibhai S.201 read R.I. for 5 Rs.5,000/- Imprisonme
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Devjibhai with S.114 years nt for 3
Patel of IPC months
Dharmishta S.201 read R.I. for 5 Rs.5,000/- Imprisonme
ben with S.114 years nt for 3
Jayantibhai of IPC months
Patel
Nimesh S.201 read R.I. for 5 Rs.5,000/- Imprisonme
Jayantibhai with S.114 years nt for 3
Patel of IPC months
The sentences were ordered to run concurrently.
Hence, these Appeals.
5. The case of the prosecution leading to conviction of the
appellants accused is as follows:
5.1 The appellants herein are resident of Village Chapad, City
Vadodara and at the time of incident i.e. on 05.07.2010, they
were living in a joint family with accused Hiren Patel (A-1) at
Village: Chapad. The PW.13 Jignesh Patel with his family was
also residing in the same village and his house is situated
adjacent to the house of appellant-accused. The relations of
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the parties as neighbours were cordial and they had been
living as a family.
5.2 PW.13 on 05.07.2010, was not in his village as he had
gone to Amarnath Pilgrimage and his son aged about 8 years
was at the house and did not accompany to him at Amarnath.
On 05.07.2010, at about 6:00 p.m., the child Shrey had gone
to purchase sweets and pepsi at the shop of PW.9 Nagin Patel
and accordingly, after purchasing the same, he was on way to
his house. The appellant-accused before the child could reach
at his house, kidnapped him for ransom of Rs.10 lakh and took
the child at his room situated at the first floor of the house,
here he was strangulated to death with a cotton rope by the
accused-Hiren. The family members had made extensive
search of the child as till late evening on that day he did not
return to the house. The cousin brother PW.6 Harshad Patel
lodged a missing complaint (Exh.63) with Makarpura Police
Station. PW.13 Jignesh Patel was informed about missing of his
child and he immediately returned to Vadodara on 06.07.2010.
Meanwhile, the Makarpura police made extensive search in the
nearby area, but the whereabouts of the child could not be
found. PW.13 - father of the child requested the police to
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deploy a dog squad for scientific search. On 07.07.2010,
before dog squad could come, the appellant-accused at about
12:00 p.m., talked with the PW.13 Jignesh Patel on his landline
no.221919 allegedly dialed by him from the STD/PCO booth
owned by Pritesh Shah (PW.12). The appellant-accused
demanded a ransom amount of Rs.10 lakh from PW.13 and
further informed that, the child is with him and presently he is
safe. The accused-appellant also informed that they are total 5
persons and they took the child from where he had bought
pepsi. PW.13 was further informed by the caller i.e. appellant
that his informer is standing near the transformer of the village
and giving every update of every movement and therefore, he
had been cautioned not to play any mischief. PW.13 after
hearing the conversation from the caller -appellant, agreed
and conveyed that he is ready to pay Rs.10 lakhs and further
requested that he wants to talk to his child. The caller -
appellant thereafter, said that he would call him at 7:00 p.m.
and cut down the call. PW.13, did not disclose anyone except
his brother about the call conversation and waited up to 9 o'
clock evening because he was in waiting of call as assured by
the caller. Thereafter, when there was no response of the
caller, the PW.13 had suspicion in his mind that the voice of
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the caller is of his neighbour appellant Hiren. In such
circumstances, he lodged a complaint at about 10:00 p.m. on
07.07.2010, narrating the facts of the call conversations as
referred above, alleging inter alia, that the appellant-accused
and five others kidnapped his child for ransom. The Makarpura
police registered an offence under Sections 363, 364A read
with Section 114 of the IPC against the appellant and five
unknown persons.
5.3 PW.22, I.O. Raghuveersingh Bhadoriya during the course
of investigation, went to Village: Chapad and called the
appellant-accused and upon his preliminary inquiry, it was
revealed that, on 05.07.2010, when minor Shrey after eating
the sweet and pepsi from the shop of PW.9 Naginbhai, was on
the way to his house, had been kidnapped for ransom of Rs.10
lakh by the appellant-accused and under the guise of learning
computer, the minor Shrey was taken to the house of accused
Hiren and taking him at the room situated at first floor, he had
been strangulated to death with cotton rope. It was further
revealed that, in order to dispose of the dead body, it was put
in the plastic bag and then in the tin barrel. Thereafter, the tin
barrel was brought down from first floor to ground floor by
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using a ladder made of iron and then taken to the farming yard
situated near the house by the appellant. The accused
purchased a 15 kg bag of salt from the provision store of the
village. The accused -appellant then after digging the mud, put
the tin barrel filled with the dead body of the child in water
tank of the yard and after sprinkling the salt on it, buried the
dead body.
5.4 The investigating officer PW.22 during the course of
investigation, arrested the appellant and at the instance of the
accused, seized and recovered the slippers of the child and
discovered his body from the yard. The body was sent for
postmortem and according to opinion of the doctor PW.17, the
cause of death was asphyxia due to strangulation. The PW.22
as a part of investigation, called a Scientific Officer, FSL,
Vadodara for investigation. PW.19 - R.L. Gondaliya, Scientific
Officer inspected both the places i.e. where murder took place
and the dead body buried at the yard. According to opinion of
the PW.19, the lowering down of the tin barrel filled with the
dead body from first floor to ground floor and then at the yard,
it could not be possible for a single person to execute the
entire act and according to his opinion, considering the
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position of the staircase, the involvement of other persons
cannot be ruled out. The PW.19 also found stains on the
computer gadgets as well as on the floor in his opinion, which
it might be a fluid of decomposed body. The PW.19, found
clothes filled in the bag allegedly lying on the chair situated in
the kitchen of the house. The clothes found with foul smell and
having human blood. In such circumstances, the I.O. PW.22
had arrested the father, mother and brother of the accused
and according to prosecution case, the accused with their
common intention, killed the deceased for ransom and in order
to save the appellant - their son, have caused the offence of
disappearance of evidence. The I.O. during the course of
investigation, recorded the statements of witnesses, obtained
the postmortem report, sent the seized articles to FSL for
chemical analysis and thereafter, filed the chargesheet against
the appellant and 3 others who are father, mother and brother
of the accused Hiren for the offence punishable under Sections
363, 364A, 302, 201, read with Sections 34 and 114 of the IPC.
Thereafter, the case was committed to the Sessions Court,
Vadodara.
6. After due framing of charge, and upon accused not
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pleading not guilty, the trial commenced before the Additional
Sessions Judge, Vadodara. The prosecution examined 23
witnesses and exhibited 31 documents:
Oral evidence
PW 1 - Exh.27 Ramanbhai Bavabhai Patel, panch witness
PW 2 - Exh.29 Maheshbhai Sajanbhai rabari, panch witness
PW 3 - Exh.33 Gopalbhai Narottambhai Patel, panch witness
PW 4 - Exh.39 Chandrakantbhai Kashibhai Patel, panch
witness
PW 5 - Exh.54 Rajendrabhai Shankarbhai Patel, panch witness
PW 6 - Exh.62 Harshadbhai Taljabhai Patel
PW 7 - Exh.66 Ajitsinh Motisinh Makwana
PW 8 - Exh.67 Maheshbhai Dilipbhai Padhiyar
PW 9 - Exh.68 Naginbhai Kashibhai Patel
PW 10 - Exh.69 Umakantbhai Tanajirao Sonavane
PW 11 - Exh.70 Sharmilaben Mohanbhai Tadvi
PW 12 - Exh.71 Pritesh Suryakant Shah
PW 13 - Exh.72 Jigneshbhai Hasmukhbhai Patel
PW 14 - Exh.76 Naranbhai Varsing Rathva, complainant (father
of deceased)
PW 15 - Exh.77 Shabdadasiben Pramodbhai Patel, sarpanch
PW 16 - Exh.80 Narendrabhai Shravanbhai Bhavsar
PW 17 - Exh.84 Dr. Ashok K. Mahajan, medical officer
PW 18 - Exh.88 Shyamsunder K. Prajapati, nodal officer
PW 19 - Exh.93 Ramniklal L. Gondaliya, FSL officer
PW 20 - Exh.96 Punjabhai Arjunbhai, Police Station officer
PW 21 - Amitbhai Bhailalbhai Patel
Exh.102
PW 22 - Raghuvarsinh M. Bhadoriya, Investigation
Exh.104 officer
PW 23 - Nisarg Vasantbhai Patel, Investigation officer
Exh.112
Documentary evidence
Exh.28 Panchnama of physical examination of body
Exh.30 Panchnama of physical examination of body
Exh.34-37 Muddamal notes
Exh.38 Panchnama for collecting clothes of body
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Exh.40-48 Muddamal receipts
Exh.49 Handwritten note
Exh.50 Panchnama of scene of offence
Exh.55 Panchnama of collection of slippers of deceased
Exh.56 Discovery panchnama as per Section 27of Evidence
Act
Exh.57 Inquest panchnama
Exh.63 Application about missing child
Exh.64 Statement recorded upon application about missing
child
Exh.73 Complaint
Exh.74 Telephone bill
Exh.78 Certificate by Chapad Gram Panchayat
Exh.81 Photographs
Exh.85 Yadi for post mortem
Exh.86 Post mortem note
Exh.89 Application for phone connection
Exh.90 Certificate under Section 65-B of Evidence Act
Exh.91 Forwarding letter for demanding call details
Exh.92 Call details
Exh.94 Investigation report by FSL van
Exh.95 FSL report
Exh.97-99 Copy of extracts of station diary
Exh.100 Order of handing over investigation
Exh.106 Sketch of scene of offence
Exh.107 Yadi for registering offence
Exh.108- FSL forwarding note
Exh.110 FSL yadi
Exh.111 FSL report
7. After closure of the prosecution evidence, the appellants
were questioned under Section 313 of Cr.P.C., to which they
stated that they have been falsely implicated and prosecuted
in the serious offence of murder. The witnesses are interested
and related persons and deposed against them at the behest
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of PW.13. In nutshell, they have denied the entire case of the
prosecution and evidence adduced before the Trial Court.
8. The accused appellants have not adduced any evidence
in their defence.
9. The learned Additional Sessions Judge, after hearing the
parties and upon appreciation of the evidence, found the
accused Hiren Patel guilty of the charges, consequently, he has
been convicted under Sections 363, 364A and 302 of the IPC.
The co-accused who are father, mother and brother have been
acquitted from the charge of murder, however, they have been
convicted under Section 201 read with Section 114 of the IPC.
10. Being dissatisfied with the judgment and order of
conviction, the appellants have come up with the present
appeals.
11. The accused no.2 Jayanti Patel after his conviction and
pending this appeal (Criminal Appeal No.984 of 2013) passed
away and therefore, the appeal qua him stands abated.
12. We have heard Mr.Ramnandan Singh, learned counsel
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appearing for the appellants and Ms.C.M. Shah, learned APP for
the State.
13. Mr.Ramnandan Singh, while assailing the impugned
judgment, vehemently contended that the Court below has
committed a serious error in appreciating the evidence against
the appellants and wrongly convicted them under Section 201
of the IPC. The appellants had never been part of the crime
committed by the accused Hiren. According to the case of
prosecution, the accused Hiren killed the child and removed
his dead body from first floor to open yard near the house. The
dead body was taken by the accused Hiren in tin barrel and
taking the barrel at the place of open yard where digging a
mud, the dead body buried in the water tank. In this entire
exercise of murder, allegedly done by accused Hiren, the
accused were unaware about the intention of the accused and
the dead body allegedly kept for about 55 hours in the room of
first floor of the house. That none of the witnesses have stated
that the accused had concealed the dead body and had caused
any evidence of the commission of the offence to disappear.
That there is no evidence to prove that there was an intention
on the part of the appellants to screen the accused Hiren. That
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the Court below while convicting the appellants under Section
201 of the IPC, mainly relied on the testimony of PW:19
Ramniklal Gondaliya, forensic science expert, who had visited
the place of offence. Referring to the testimony of the
Ramniklal Gondaliya, it was submitted that the Court below
cannot reach at a conclusion solely on the evidence of the
PW:19 who visited the place of occurrence as it is settled
position of law that the expert evidence is not conclusive and it
is the duty of the Court to come to a conclusion on a question
of fact, after considering the entire evidence. The testimony of
PW:19 is only an opinion evidence and it is an advisory nature.
That it is none of the business of PW:19 to opine on the merits
of the case i.e. complicity of the accused in the alleged act of
murder and disappearance of the evidence. The Investigating
Officer PW:22 had never sought any specific opinion from the
expert PW:19 to the effect that whether one person carrying in
tin barrel filled with dead body of child, could up or going down
stairs without any assistance of another or not. Therefore, the
possibility opined by PW:19 about the involvement of the other
persons in assisting the accused for destroying the evidence
cannot be accepted and relied upon as conclusive proof unless
and until either direct evidence or from the proved
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circumstances their involvement being established and proved.
That the PW:19 in his cross examination had also admitted
that, if anyone go-up or going down stairs, the persons who
inside the house may not notice of the activities undertaken by
the persons by using the staircase.
14. In such circumstances, as referred above, learned
counsel Mr.Ramnandan Singh submitted that the findings of
conviction are not based on the evidence and conviction
rendered on the basis of suspicion, conjectures and surmises
and the prosecution miserably failed to prove the charge of
causing disappearance of the evidence by adducing cogent,
truthful, reliable evidence. Lastly, it was submitted that on the
one hand, the Court below while acquitting the appellants for
the charge of murder observed that there is no evidence
involving the accused in commission of the crimes and on
other hand, while convicting the appellants under Section 201,
the Trial Court observed that the accused remained silent and
considering the situation of the staircase, it cannot believe that
the accused were not knowing the act of accused Hiren Patel
and further, removal of the body from first floor of the house
to the open yard. Thus, it was submitted that the conviction
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alone under Section 201 is not maintainable in eye of law.
15. In the submissions made hereinabove, Mr.Ramnandan
Singh has submitted that the prosecution has failed to prove
his case beyond reasonable doubt and as such, the judgment
and order of conviction are liable to be set aside as the
findings of the Trial Court are perverse and against the settled
principle of law and thus, the conviction of the accused cannot
be allowed to sustain and he further prayed that there being
merits in this appeal, the same may be allowed and accused
may be acquitted from the charges.
16. On the other hand, learned APP Ms.C.M. Shah supported
the view taken by the Court below and further contended that
the Trial Court has not committed any error either on facts or
on law and has rightly appreciated the testimony of PW:19
Mr.Gondaliya, who is expert in the field, and during his visit at
the house, two things he had noted, viz. the bloodstain found
on the electronic gadget and the clothes with foul smell. The
witenss PW:19 after examining the practicality of the aspect of
iron staircase, opined that it could not be possible for any
single person to bringing down the tin barrel filled with the
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dead body of the child from first floor to ground floor. Thus, it
can be legitimately presumed that the appellants had
knolwedge of commission of the crime and knowing
everything, they did not disclose the act of accused no.1-Hiren
before the police or anybody and helped out the accused Hiren
in removing the dead body by which they caused
disappearance of evidence.
17. Ms.C.M. Shah, learned APP has submitted that
considering the conduct of the accused and evidence of the
I.O. as well as the expert PW:19, the prosecution has
successfully discharged its liability to prove that the appellants
despite their requisite knowledge and intention, they caused
the disappearance of the evidence of commission of the
offence. In such circumstances, referred to above, Ms.C.M.
Shah, prays that there being no merits in the appeal filed by
the accused and the same may be dismissed.
18. We have perused the case records and observations
made by the Court below while convicting the accused herein.
19. The appellants herein are the mother and brother of the
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accused no.1 Hiren Patel. There is no dispute that there is a
joint family and at the relevant time, four persons were
residing in the house referred in the case papers. The relations
prior to the incident of the parties were cordial. So far as
appellants are concerned, they have been acquitted for the
offence of murder, and convicted and sentenced by the Court
below under Section 201 read with Section 34 of the IPC.
20. At this juncture, we deem it appropriate to extract
Section 201 of the IPC for better appreciation:
"201. Causing disappearance of evidence of offence,
or giving false information to screen offender.--
Whoever, knowing or having reason to believe that an
offence has been committed, causes any evidence of the
commission of that offence to disappear, with the intention
of screening the offender from legal punishment, or with
that intention gives any information respecting the offence
which he knows or believes to be false,
if a capital offence.--shall, if the offence which he knows
or believes to have been committed is punishable with
death be punished with imprisonment of either description
for a term which may extend to seven years, and shall also
be liable to fine;
if punishable with imprisonment for life.--and if the
offence is punishable with 1 [imprisonment for life], or with
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imprisonment which may extend to ten years, shall be
punished with imprisonment of either description for a term
which may extend to three years, and shall also be liable to
fine;
if punishable with less than ten years' imprisonment.
--and if the offence is punishable with imprisonment for any
term not extending to ten years, shall be punished with
imprisonment of the description provided for the offence,
for a term which may extend to one-fourth part of the
longest term of the imprisonment provided for the offence,
or with fine, or with both."
21. A bare reading of Section 201 of IPC, it appears that in
order to convict a person under Section 201 of IPC, the
prosecution has to establish the following ingredients:
(A) That an offence has been committed;
(B) That the accused knew or had reason to believe the
commission of such offence;
(C) That with such knowledge or belief, he/she;
(i) caused any evidence of the commission of that offence to
disappear; or (ii) gave any information in respect thereof that
offence which he or she knew or believed to be false;
(D) That he or she did so as aforesaid with the intention of
screening the offender for legal punishment;
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22. We may profitably refer the judgment of Palvinder Kaur
Vs. State of Punjab (AIR 1952 Supreme Court 354), wherein the
Supreme Court had said that in order to establish the charge
under Section 201 of IPC, it is essentially to prove that an
offence has been committed; that the accused knew or had a
reason to believe that such offence had been committed; with
requisite knowledge and with intent to screen the offender
from legal punishment, caused the evidence thereof to
disappear or gave a false information respecting such offence
that the Court should safeguard itself again the danger of
basing its conclusion on suspicion, however, strong they may
be. In another case, Padmini Mahendrabhai Gadda Vs.
State of Gujarat (2017 (14) SCC 587), the Supreme Court
held that while considering the charge under Section 201 of
IPC, it is mandatory for the prosecution to prove that the
accused actually participated in the offence of disappearance
of evidence, with an intention to screen the offender and it is
necessary that all ingredients of Section 201 are satisfied
pointing out at the guilt of the accused and mere a suspicion is
not a sufficient and the accused can never be convicted on the
basis of probabilities or on assumptions and presumptions.
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23. In light of the aforesaid statutory provisions, and the law
laid down by the Supreme Court, the issue required to be
examined whether the appellants have committed the offence
under Section 201 of the IPC.
24. In the facts of the present case, the entire case rest on
the circumstantial evidence. In order to prove the charge
under Section 201 of the IPC, the Court below mainly relied on
the testimony of PW:19 Mr.R.L. Gondaliya and testimony of I.O.
PW:22 Raghuvirsingh Badhoriya. In order to appreciate the
rival contentions of the parties, and for better appreciation of
the findings of the Court below, the testimonies of both the
witnesses are necessary to refer.
25. PW:19, Mr.R.L. Gondaliya being a scientific officer
associated with the forensic science laboratory was called
upon by the PW:22, for examination of the place of occurrence.
He took visit both the places i.e. house where the child was
killed and the place i.e. open yard where the child buried in a
water tank. PW:19 in his testimony stated that while reaching
at the house of the accused, he noticed foul smell and some of
the abnormal stains on the floor and according to his opinion,
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the stains and foul smell might be of the decomposed body of
the child. The witness PW:19 after survey of kitchen of the
house, he noticed the clothes with human blood having foul
smell lying in the plastic bag. PW:19 after survey of entire
house, noticed that the ladder (staircase) was installed at the
veranda of the house. In his opinion, it was difficult to descend
the stairs carrying a heavy object from the ladder without the
help of others. In view of the clothes found in the kitchen,
PW:19 opined that removal of the dead body could not be
possible without the assistance of others and for that, he
recommended for lie detector test. In the cross examination,
PW:19 admitted that at the relevant time, nobody was present
in the house and before expressing opinion on the issue of
ladder, he did not do measurement of the length, height as
well as seize of the ladder. The witness in the cross
examination has stated that, the I.O. had never sought such
kind of opinion from him. He admitted that a ladder is
accessible from the road side. He admitted that the opinion of
feasibility of the use of ladder cannot be termed a scientific
opinion.
26. PW:22 Raghuvirsingh Bhadoriya, Investigating Officer, in
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his testimony, has stated that he was present with the
scientific officer and during the inspection of the house, the
clothes with human bloods having foul smell being found from
the kitchen and at the instance of accused no.1 Hiren Patel,
the dead body of the child was being discovered from the open
yard. In the cross examination, the I.O. has admitted that he
did not find any evidence to show that the clothes found from
the kitchen have been washed out accused Dharmishthaben.
27. In addition to the relevant oral evidence, as referred
above, it is necessary to refer the observations of the Court
below. We would like to extract the relevant portion of the
findings of the Trial Court, which reads as under:
"82. .......As per the case presented by the prosecution,
clothes have been found inside the house of accused no.1...
in the kitchen area and those clothes are wet with human
bloodstained Group-A having bad smell and as per the
opinion of FSL report, the clothes were washed out by the
accused no.3 Dharmishthaben..... It is not possible for
accused no.1 to have brought down heavy barrel from the
upper floor of the house alone in the morning and also not
possible that the members of the house would have no
knowledge about the act of accused no.1 and despite of
this, the accused have maintained a silence about the
criminal act committed in the house.
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88. Thus, there is a reason to believe that since all the
accused are members of the same family, they may have
come to know about the crime after its commission. It is on
record that the accused no.1 kidnapped the minor child,
caused his death and after about one and half days, took
the child body from the house to the yard and buried it in a
water tank. The prosecution has examined witnesses, who
saw carrying a barrel, purchasing salt and burying the body.
However, there is no evidence on record indicating that the
other accused played any role in these acts. Furthermore,
even when the panchnama under Section 27 of the
Evidence Act, carrying out, there is no indication that the
other accused were present at the scene of incident.
Nevertheless, considering that all the accused are members
of the same family, it is difficult to assume that they were
unaware of the minor child's body in the upper room of the
house for one and half days. According to ingredients of 201
of IPC, it is sufficient that the accused knew or had reason to
believe that the crime had been committed. If direct
evidence is not available, the knowledge can be inferred
from the conduct of the accused. In the present case, since
all the accused resided in the same house, it cannot be
conclusively said that they were unaware of the incident.
Furthermore, the body of the minor child was lying on the
first floor of the house and it is on record that the body was
placed in the barrel. It would not have been possible to
bringing down the barrel without assistance of accused
nos.2 to 4. Therefore, they are liable to be convicted under
Section 201 of the IPC."
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28. A bare perusal of the above observations of the learned
Trial Court, the Trial Court has given a clean chit to the
appellants saying that their involvement in the murder of the
child is not proved, as the Court did not find evidence of their
participation in the offence as well as at the time of laying the
body in the water tank and on the other hand, the Trial Court
observed that due to bloodstained clothes found from the
kitchen of the house and the position of the ladder, it could be
presumed that the accused was having knowledge about the
commission of the offence and assisted and/or abated the
accused no.1 in lowering down the body from first floor to
ground floor, with an intention to screen the accused no.1.
29. We have careful examined the PW:19 scientific officer
Mr.R.L. Gondaliya. It is evident that he was called by the I.O.
only for inspection of the place and at that time, he was not
asked to opine a scientific opinion on the issue of feasibility of
use of ladder put in the house for access of first floor. The I.O.
also admitted that his opinion with regard to use of ladder
cannot be said to be a scientific opinion. In such
circumstances, except the evidence of PW:19, there is no any
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incriminating material evidence against the accused to prove
that they have actively participated in the shifting of the body
of the child and thereby, causing disappearance of the
evidence. The Investigating Officer PW:22 in his cross
examination admitted that there is no evidence found against
the accused Dharmishthaben that she had washed out the
clothes. From these circumstances, it is not clear that the
accused having full knowledge of the act done by accused no.1
Hiren. The entire investigation and collection of incriminating
material pointing out against the accused no.1. Not a single
witness has pointed out that the appellants accused had
knowledge about the commission of the crime allegedly
orchestrated by the accused Hiren. The Trial Court based on
the foul smell has raised the presumption that the accused
might have knowledge about the murder of the child. Thus,
what transpires is that the method and manner in which the
child was killed and his dead body was tried to dispose of
might raise some suspicious circumstances, but these facts
would not be enough to draw a positive conclusion that the
accused being the family members were aware about the
killing of the child and intentionally with such knowledge,
abated the principal accused in shifting the dead body of the
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child with intention to screen him from the punishment. In
identical situation, the Supreme Court in the case of Sukhram
Vs. State of Maharashtra (2007 (7) Supreme Court Case
502), held and observed that in order to bring home an
offence under Section 201 of the IPC, a mere suspicion is not
sufficient. There must be on record cogent evidence to prove
that the accused knew or had information sufficient to lead him
to believe that the offence had been committed and the
accused has caused the evidence to disappear in order to
screen the offender, known or unknown. In the case before the
Supreme Court, the wife of the accused no.1 was throttled to
death and then, thrown in the well. On the day of incident,
deceased was sleeping in the room along with her husband
accused no.1 and father-in-law accused no.2 was present in
the house and he was acquitted by the Trial Court for the
charge under Section 201 of the IPC, whereas, the husband
accused no.1 convicted under Sections 304B and 498A of the
IPC. The State has challenged the judgment of the Trial Court
before the High Court. The High Court convicted the husband
under Section 302 of IPC and also convicted the father in law
accused no.2 under Section 201 of the IPC. The Supreme Court
while setting aside the conviction of accused no.2 under
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Section 201, held that merely because the accused no.2 was
present in the house and he happened to be a father of
accused no.1, it cannot be presumed as a matter of legal proof
that he must be deemed to have the knowledge of the offence
committed by his son. Even if the evidence of PW:12 is taken
at his face value, in our opinion is not sufficient to draw the
presumption that he had knowledge the commission of the
offence by his son and there are no other established
circumstances to complete the chain to bring home under
Section 201 of the IPC.
30. Reverting back to the present case, nothing on record
against the accused that they had knowledge of the
commission of the crime allegedly committed by their son. The
opinion referred herein of the scientific officer, in our opinion,
merely inspection of the house for taking samples of the
crimes, and hypothetical opinion on the aspect of usages of
ladder and possibility of involvement of other family members,
cannot be a said to be a scientific opinion. and thus, therefore,
in our opinion, the presumption drawn against the appellants
about their knowledge of the commission of the crime having
been drawn on the basis of suspicion and nothing more. The
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court below failed to appreciate the settled position of law that
the FSL Report is a weak piece of evidence and not conclusive.
In the facts of the present case, the opinion of PW.19, Scientific
Officer is general in nature and it is only an opinionative
evidence and same does not help the court in coming to the
conclusion about the guilt of the accused. In such cases, the
court cannot reach to a conclusion solely on the evidence of
expert who visited the place of occurrence.
31. We may profitably refer the judgment of 5 Judge Bench of
the Apex Court in case of Raghav Prapanna Tripathi vs. State
of U.P. AIR 1963 SC 74, wherein while interpreting Section 201
of the IPC, it was held that,
"Thus, these two appellants have been rightly convicted and
their appeals are dismissed. In regard of the case of
Ramanujdas and Jaidevi, the findings of the High Court is
that, the dead bodies of Kamla and her son Madhusudan
were not found in the house of Ramanujdas and they must
have therefore, been removed; that an attempt was made to
wash out the blood stains from the inside the rooms and also
outside on the roof; that the dead bodies could not have
been removed without the knowledge and active
cooperation of Ramanujdas and Jaidevi and further that, both
Ramanujdas and Jaidevi absconded. On these basis, the
conviction of these appellants was held by the High Court to
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be justified. It is true that the murder was committed in the
house of Ramanujdas and that there is the evidence to show
that the blood inside and outside the living rooms was
washed and attempt was made to obliterate any sign of it
though it was unsuccessful. It also may be that, both
Ramanujdas and Jaidevi had knowledge of the removal of
the dead bodies, but what Section 201 requires is causing
any evidence of the commission of the offence to disappear
or for giving any information respecting the offence which a
person knows or believes to be false. In this case, there is no
evidence of either. It is not shown that these two appellants
cause any evidence to disappear. There may be a very
strong suspicion that if from the house dead bodies are
removed, or blood was washed, person placed in the position
of the appellants must have had a hand in it but still that
remains a suspicion even a strong suspicion at that. It is true
that they were absconding, but merely absconding will not
fill the gap or supply the evidence which is necessary to
prove the ingredients of Section 201 of the IPC. In our
opinion, the case against Ramanujdas and Jaidevi has not
been made out. Their appeals must therefore be allowed and
they be set at liberty."
32. In the facts of the present case, the court below raise a
presumption against the appellants on two grounds (i) the
blood stained clothes with foul smell found from the kitchen of
the house and (ii) the murder was committed in the room at
the first floor of the house and having regard to the position of
the ladder, it could not be possible for the one person bringing
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down the tin barrel filled with the dead body of the child at the
ground floor level and therefore, possibility of involvement of
the family members cannot be ruled out. In our opinion, the
presumption raised by the court below seems to be based on
the suspicion without any legal evidence to this effect. It is not
in dispute that, the appellants did not have actively
participated in the offence, nor, they had been remained
present at the place where the dead body was buried.
Therefore, it is not proved against the appellants that they had
caused any evidence to disappear. The strong suspicion as
observed by the court below would not be sufficient to
establish the guilt of the accused under Section 201 of the IPC.
Thus, the trial court in our opinion went wrong in convicting
the appellants without there being any sufficient evidence
proving their complicity in the act of disappearance of the
evidence. The Supreme Court in number of cases held that
suspicion, however, grave it may be, cannot take the place of
proof and there is a large difference between something that
"may be" proved and "will be proved". In a criminal trial,
suspicion no matter how strong cannot and must not be
permitted to take place of proof. This is for the reason, that the
mental distance between may be and must be a quite large
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and divides vague conjunctures from sure conclusions because
it is the duty of the court in a criminal trial to ensure that mere
conjunctures or suspicion do not take the place of legal proof.
33. For the aforementioned reasons, after reanalysis of the
oral and documentary evidence, we are satisfied that the
prosecution has miserably failed to establish the charges
levelled against the appellants beyond reasonable doubt. Thus,
as a necessary corollary, the charge for commission of offence
under Section 201 of the IPC against the appellants have not
been proved and established.
34. As a result, the appeals being Criminal Appeal No.984 of
2013 and Criminal Appeal No.738 of 2013 are allowed. The
judgment of conviction and order of sentence dated
15.04.2013 passed by the Additional Sessions Judge, Vadodara
in Sessions Case No. 206 of 2010 qua the appellants convicting
them under Section 201 read with Section 114 of the IPC is set
aside. The appellants are on bail. Their bail bonds stand
cancelled and surety ordered to be discharged. The fine
amount, if any, paid be refunded to the appellants.
35. The appeal filed by the State for enhancement of
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sentence under Section 377 of the Cr.P.C. being Criminal
Appeal No.1145 of 2013 now does not survive in view of the
acquittal of the appellants under Section 201 of the IPC. Thus,
the State appeal is disposed of accordingly.
(ILESH J. VORA,J)
(SANDEEP N. BHATT,J)
Rakesh
