Gujarat High Court
Shah Nirav @ Ravi Maheshbhai vs State Of Gujarat on 30 September, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1808 of 2019
With
R/CRIMINAL APPEAL NO. 1691 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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SHAH NIRAV @ RAVI MAHESHBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR.MRUDUL M BAROT(3750) for the Appellant(s) No. 1
MR ADITYA JADEJA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 30/09/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
Factual matrix of the case :
1. The prosecution's case in a nutshell is that on
August 18, 2015, Hiteshkumar Chandulal Thakar - PW 1 -
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the complainant, along with his wife Sonam and son
Devang, were at their residence. As per their daily routine,
Devang left for his college at 7:55 in the morning. The
complainant left for his job at the bank at about 10:30. At
that time, he received a call on his mobile from his son's
number, 9638786669. An unknown person, speaking in
Hindi, stated that his son had been kidnapped and
instructed him to bring Rs. 40 lakhs to Unjha before
disconnecting the phone. Thereafter, after 15 to 20 minutes,
he again received a phone call from his son's mobile. An
unknown person asked, "Have you informed the police?" He
then threatened that if anyone was informed, his son would
be murdered. The person further stated that he would call
again at 2:00 P.M. and inform him where he had to deliver
the money, and then disconnected the phone. Hearing this,
the complainant left the bank and informed his wife, his
relative Deviprasad Govindlal Thakar, and Avinashbhai K.
Thakar and others. Fearing that the person who had
kidnapped his son might murder him, he waited until 2:00
P.M. and did not inform anyone about the incident.
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However, when he did not receive the phone call at 2:00
P.M., he started inquiring about his son at the college and
through his friends. He was assured that his son was
kidnapped from the pickup stand at Bindu Sarovar. They
waited for a phone call, but the kidnapper did not contact
them, and on calling back his son's mobile, it was found to
be switched off. Thereafter, Hiteshkumar Chandulal Thakar
(PW-1), the informant, lodged a written complaint with the
Siddhpur Police Station. Based on this report, an FIR
bearing CR No. I No. 137 of 2015 was filed under the
provisions of Sections 363, 364A, and 502 of the IPC
against unknown persons. The complaint was registered by
Jayantiji Varvaji Thakor (PW-18). PW-19 Dr. Jigar
Bharatkumar Pandit, Police Inspector at the Siddhpur
Police Station, commenced an investigation after recording
statements of various witnesses. Based on the statements of
witnesses Kartikkumar Lakhirambhai Joshi (PW-9) and
Mahipatsinh Bupatsinh Rajput (PW-10), he arrested the
present accused persons. Based on their statements made
to the police during remand, he recovered various articles,
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blood-stained clothes, etc. Upon completion of the
investigation, a chargesheet was submitted against the
present appellants for the aforementioned offenses.
2. Since the case was exclusively sessions triable,
learned Magistrate committed it before the concerned
jurisdictional Sessions Court which came to be registered as
Sessions Case No.99 of 2015, framed charges vide Exh.6,
recorded plea of accused vide Exhs.7 and 8 respectively and
having denied the charges prayed for trial, pursuant to
which 21 witnesses came to be examined and the
prosecution relied upon 65 documentary evidences to bring
home to the charges. After recording the evidence and on
closure of the prosecution evidence, statements of present
appellants were recorded under section 313 of the Criminal
Procedure Code, 1973. However, on being confronted with
the allegations as appearing in the prosecution evidence,
the accused denied and claimed innocence. After hearing
the arguments advanced by the Public Prosecutor and the
defence counsel and after appreciating both oral as well as
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documentary evidences, the learned trial Court vide
judgment and order dated 10.5.2019 held that the
prosecution was able to prove the case against the accused
beyond reasonable doubt and were convicted for offences as
follows.
Sections Punishment Fine Rs. Default
363 5 years 2000 4 months
364-A Life 10000 6 months SI
Imprisonment
302 Life 10000 6 months SI
Imprisonment
201 3 years 2000 4 months SI
506(2) 3 years 2000 4 months SI
3. The learned trial Judge handed down the
aforesaid sentences to be run concurrently and also gave
benefit of set off under the provisions of Section 428 of
CrPC. It is against the aforestated judgment and order dated
10.5.2019 passed by the learned 2 nd Additional Sessions
Judge, Patan in Sessions Case No.99 of 2015, that the
appellants are before this Court by way of aforesaid two
Appeals.
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Submissions of learned advocates Mr.Maulin Pandya and
Mr.Mrudul Barot for the appellants - accused :
4. Learned counsel appearing for the appellants
would submit that :
(a) That the prosecution has failed to prove its case
beyond reasonable doubt, more particularly, when the
entire case is based on circumstantial evidences.
(b) That version of last seen together is false and
fabricated as the prosecution has tried to establish the case
based on an FIR registered at around 11:30 hours and
thereafter during the course of investigation, statements of
two witnesses alleged to have seen the deceased at Bindu
Sarovar pick up stand, i.e. Kartikkumar Lakhirambhai
Joshi and Mahipatsinh Bhupatsinh Rajput came to be
recorded. Upon recording of the statements of these two
witnesses, the Investigation Officer came to know about the
theory of last seen together and based upon such
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information, accused Nirav @ Ravi Maheshbhai Shah was
arrested at around 1:45 hours on 19.8.2015 and on his
statement made voluntarily, the place of occurrence where
the dead body was exhumed was found. However, the
statements of both these two witnesses were recorded on
19.8.2015 at about 10:30 in the morning. Therefore, there
was no question of arrest of Nirav @ Ravi Maheshbhai Shah
based upon the statement of the alleged two witnesses
Kartikkumar Joshi and Mahipatsinh Bhupatsinh Rajput
and thus the story of prosecution is falsified right from the
inception.
(c) That there are material discrepancies in the
depositions of said two witnesses, more particularly, when
both the witnesses had informed the complainant, i.e. the
father of the deceased, i.e. Hiteshkumar Thakar at 10.00
O'clock in the night with regard to the theory of last seen
together, in such circumstances names of the present
accused would certainly have reflected in the FIR. However,
the complaint is filed against unknown persons. This again,
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falsifies the theory of the prosecution which goes to the root
of the case.
(d) That Kartikkumar Lakhirambhai Joshi - PW-9 in
his examination-in-chief claims to be neighbour and friend
of the deceased and were regularly meeting at the pick-up
stand and thus they knew each other. However, in his
cross-examination, this witness has admitted that in his
statement before the police, he has not stated that this
witness and the deceased used to go Bindu Sarovar pick-up
stand at the same time in the morning on the daily basis.
He further admits that he does not know the names of other
students who also came to the pick-up stand along with
them and who were travelling with deceased Devang. He
further admits that despite coming to his knowledge about
Devang being kidnapped, he did not inform his mother.
However, he has clarified that he wanted to inform only to
the complainant and thus went to the residence of the
complainant at 7.00 am on 18.8.2015 but could not find the
complainant. Thus, it is argued that he has not disclosed
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the fact of last seen together to any of the relatives who were
present and just left from the house of the complainant.
This witness also admits that his statement was recorded on
19.8.2015 in presence of the complainant. The Investigation
Officer also admits that on 19.8.2015, the involvement of
the present accused surfaced on record and it is upon the
basis of the statement of the present witness, arrested the
accused. Thus, it is argued that the version of the
prosecution arresting the accused based upon the
information received from the witness Kartikkumar
Lakhirambhai Joshi is incorrect and is got up.
(e) It is further argued that as per the prosecution
case, the deceased was last seen with the accused at about
8.00 am on 18.8.2015 and dead body was recovered at 2:30
hours on 19.8.2015. Thus, there was a gap of about 18 ½
hours which is substantial enough to indicate that there
was strong possibilities of someone else committing the
offence. The Investigating Agency nor the prosecution has
led any evidence to prove that the deceased on the day of
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incident had not attended his college since very basis of the
prosecution case is that the deceased left for his college at
about 7:55 in morning from his residence. Thus, it is argued
that the death of the deceased cannot be linked with the
theory of last seen together.
(f) It is further submitted that the another so called
last seen together witness - PW 10 Mahipatsinh Bhupatsinh
Rajput who is a taxi driver has deposed that he regularly
goes to Bindu Sarovar Park pick-up stand for getting
passengers and on the day of alleged incident, he initially
saw the deceased standing near the car of the accused
persons after which the deceased boarded their car and
went away. On the same day at about 21.00 hours at night,
he came to know about kidnapping of Devang.
(g) It is further submitted that as per the deposition
of the investigation officer, the statement of Mahipatsinh
Bhupatsinh Rajput was recorded on 19.8.2015 during the
investigation carried out at Bindu Sarovar pick-up point.
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However, the Investigation Officer admits that 19.8.2015,
the involvement of the present accused came on record
upon the statement of the present witness. Thus, the
version of prosecution arresting the accused based upon the
information received from the present witness as well as
Kartikkumar Joshi gets falsified.
(h) Drawing attention towards the deposition of Suraj
Bharatbhai Rami - PW-11 before whom the extra judicial
confession alleged to have been made by one of the accused
i.e. Dhaval @ Jato Darji it is argued that the same is
unbelievable as the said witness has never informed the
police till 23.8.2015 when he was called by the investigation
agency. This witness has also neither stated on 17.8.2015
after having knowledge that the accused were searching for
the spray/medicine to make someone unconscious nor on
18.8.2015 when Dhaval @ Jato Darji confessed the crime
nor on 19.8.2015 after reading the newspaper where the
news of murder of Devang came to be printed. It is further
argued that he even did not bother to approach the police to
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offer himself for recording of statement nor has he informed
the family members of the deceased coupled with the fact
that this witness has admitted that Dhaval was not
discussing his personal affairs with him. He also admits
that he does not meet Dhaval on daily basis. He also admits
that he often visited Dhaval shop nor he knew Nirav Shah.
He also does not know in which medical shop the accused
went to inquire about medicine on 17.8.2015. However,
this entire extra judicial confession does not repose
confidence, more particularly, when it is apparent from the
evidence of this witness that he was not a close friend of
accused Dhaval @ Jato Darji and thus confession by an
accused before unknown person is highly imporbable.
(i) It is also argued that it is absolutely unbelievable
that when two accused persons were travelling on bike
would talk regarding preparation of crime to be committed
after allowing PW 11 - Suraj Bharatbhai Rami to accompany
him on bike and thus would never give a lift to the
passenger on route to create evidence against themselves.
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(j) Thirdly, it is argued that this witness has
remained silent on three occasions till 15.8.2015 until he is
called by the investigation agency for recording the
statement and thus veracity of this witness creates serious
doubts.
(k) It is argued that as per the prosecution case, the
motive of the crime to obtain ransom from the complainant
by kidnapping his son (deceased) and following which, the
offence of the murder was committed. However, the charge
is totally contrary since it would indicate that after
committing the crime the phone calls for ransom were made
to the complainant. It is also the case of the prosecution
that the charge indicates that one of the accused was in
debt and other accused wanted money for his luxuries and
hence the crime was committed. From the entire case of the
prosecution, there is no iota of evidence to suggest that one
of the accused was in debt or that the other wanted money
for his luxuries.
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(l) It is further argued that the prosecution has
failed to prove prior meeting of mind or execution of the
crime by preparing to commit the crime in furtherance of
the said motive. Even, the mobile phone has not been
recovered from which calls were made to the complainant
threatening for ransom. Thus, the prosecution has failed to
establish chain of circumstances and in absence of such
completion of chain, the accused cannot be held guilty.
(m) The arrest panchnama of Nirav Shah was drawn
on 19.8.2015 at about 1:30 to 2.00 hours which is at
Exh.30. Thus, Nirav Shah was arrested first, who discloses
where the dead body was exhumed for which discovery
panchnama at Exh.34 was also relied upon by the
prosecution. The arrest panchnama of Dhaval is dated
19.8.2015 and was arrested between 9:30 and 10.00 am.
Thereafter, based on his statement, discovery panchnama
on 23.8.2015 at about 11:45 to 12.00 am at Exh.54 was
placed on record. However, as per the deposition of the
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Investigation Officer Dr.Jigar Pandit - PW-19 accused Nirav
Shah was arrested first in point of time at around 1:30 to
2.00 am and on the same day i.e. on 19.8.2015 accused
Dhaval was arrested at about 9:30 to 10.00 am. But,
contrary to this, PW-3 Ashokkumar Bhalchandra Raval has
deposed to the effect that Dhaval was arrested first and
subsequently in the afternoon hours, Nirav was arrested.
Thus, the prosecution has failed to prove beyond reasonable
doubt the aspect of arrest of two accused persons and
hence subsequent discovery panchnama of dead body and
recovery of article etc. does not repose confidence and
reflects implanting by the investigating agency so as to rope
the present appellants.
(n) That panchnama of discovery of weapon from
Dhaval was drawn on 23.8.2015 between 11:45 and 12.00
hours which is at Exh.54. As per the said panchnama,
knife, memory card and clothes of the accused worn on the
day of incident came to be discovered and were sent to the
FSI. The FSI report at Exh.126 indicates that the blood
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found on the knife was undecided and the blood on the
clothes worn by Dhaval was of Group 'B'. As far as memory
card is concerned, it is the case of the prosecution that
photograph of the deceased Devang were found from the
said memory card. However, panch of the said discovery
PW-8 i.e. Pareshkumar Thakar has categorically admitted in
his cross-examination that the police has not gone to the
residence of the accused Dhaval for discovery in his
presence. He has also denied that discovery and seizure
were made as mentioned in the panchnama. The
prosecution has failed to prove discovery since at the time of
carrying out the panchnama, the house of the accused was
found locked. However, the keys were obtained from the
third person whose statement is not recorded. Even, as per
the deposition of panchas, the person from whom the keys
were obtained was not examined or interrogated and thus
the prosecution has failed to establish that the house was
locked and the keys were provided by some third party and
in absence of such evidence, the panchnama cannot be
relied nor can it be believed.
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(o) It is further argued that version of the
prosecution that the accused had kept the clothes in his
house which were worn by him while committing crime is
also not believable since the house of Dhaval is situated in
middle of the town and no prudent person would approach
his residence wearing blood stained clothes and keep them
in his house. Even otherwise, there is no evidence to the
effect that no one has seen Dhaval coming to his residence.
(p) That the prosecution has tried to establish that
the memory card was discovered at the instance of the
accused Dhaval from which the photographs of deceased
were taken out but none of the photographs form part of the
chargesheet and thus relying on them at the time of trial
has caused serious prejudice to the defence of the accused.
(q) It is further argued that as far as discovery of
memory card is concerned, again it is not believable that the
accused has thrown away his mobile, however, kept
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memory card with him coupled with the fact that the
prosecution has failed to prove that the said memory card
belonged to the accused.
(r) That discovery panchnama at the instance of
Nirav Shah was drawn on 20.8.2015 between 9.50 and
14.30 hours which is at Exh.39. During the said discovery,
two night clothes worn by the accused while committing
crime as well as the car used in commission of the crime
were discovered from rented house where the accused Nirav
used to live situated at Odhav, Ahmedabad. However, the
prosecution has failed to establish the complete chain as to
how and when the same articles came to be placed at the
premises which is 120 kilometers away from the Siddhpur
where the alleged crime was committed, more particularly,
when the accused was arrested within 15.00 hours of the
alleged incident.
(s) It is further argued that the owner of the
premises i.e. Indiraben has not been examined and thus the
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contents of the rent agreement at the Exh.71 are not proved
in accordance with law. No independent witness to prove
that the accused was residing at the rented premises and
thus it cannot be believed that recovery of articles from the
said premises were at the instance of Nirav Shah.
(t) It is further argued that ownership of the car also
not proved since the registration is not in the name of
accused or his family members nor it is proved that he was
occupier of the vehicle. Even otherwise, agreement to sell on
which the prosecution has relied at Exh.116 is executed by
Hardikkumar Soni which is unregistered document and
none of the executors of the said document have been
examined to prove the same.
(u) That the prosecution has also not examined
Deviprasad and Avinash Thakar who were acquaintance
with the complainant and relevant witnesses to prove the
version of the complainant regarding ransom call. Having
not examined the said witnesses, the prosecution has failed
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to prove the factum of ransom as alleged. Thus, it is argued
that prosecution has failed to complete the chain of
circumstances, the conviction recorded by learned trial
Court convicting the appellants requires to be set aside.
Submissions of learned APP :
5. Per contra, learned APP Mr,Aditya Jadeja
appearing for the State has vehemently opposed the
submissions advanced by learned advocates for the
appellants and has argued that
(a) That the prosecution has been able to prove the
charges against the accused beyond reasonable doubt.
(b) That from the deposition of Kartikkumar Joshi -
PW-9 and Mahipatsinh Bhupatsinh Rajput PW-10, it is
proved that the accused was last seen together with the
deceased and that there is no contradiction which shakes
reliability of these witnesses.
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(c) That the call details record (CDR) is also placed
on record.
(d) That recovery of blood stained clothes and
weapons used to commit crime by the accused have been
discovered at the instance of the accused. The panchas have
also proved the contents of panchnama beyond reasonable
doubt. The accused travelling in the car on 18.8.2015
towards Abu Road from Palanpur is proved from the
deposition of PW-12 - Gopalbhai Baldevbhai Sharma who
has placed on record CCTV footage of toll plaza. The factum
of recovery of articles of the deceased from the residence of
the accused i.e. Nirav Shah from Ahmedabad and Dhaval is
also proved beyond reasonable doubt. Thus, it is argued
that the entire chain of circumstances is proved by cogent
and reliable oral as well as documentary evidences and
merely because the motive is not proved, it cannot be said
that the prosecution has failed to prove its case beyond
reasonable doubt and has thus argued to dismiss the
present appeals.
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Principles in a case based on circumstantial evidence :
6. The prosecution has projected four circumstances
for proving the guilt of the appellants i.e. (i) last seen
together, (ii) extra-judicial confession, (iii) recovery made at
the instance of the appellants and (iv) motive. It is settled
law that in a case based on circumstantial evidence the
prosecution is obliged to prove each circumstances taken
cumulatively to form a chain so complete that there is no
escape from the conclusion that within all human
probabilities, crime was committed by the accused and none
else. Thus, the facts so proved should unerringly point
towards the guilt of the accused. In this regard, a celebrated
judgment in the case of Sharad Birdhi Chand Sarda vs
State of Maharashtra, reported in (1984) 4 SCC 116 has
set down five golden rules where a case based on
circumstantial evidence is to be proved by the prosecution.
They are :
(i) Chain of evidence is complete.
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(ii) Circumstances relied upon by the
prosecution should be conclusive in nature.
(iii) Facts established should be consistent only
with the hypothesis of the guilt of accused.
(iv) Circumstances relied upon should only be
consistent with the guilt of the accused.
(v) Circumstances relied upon should exclude
every possible hypothesis except the one to be
proved.
7. There is no dispute regarding the cause of death
of deceased Devang Hiteshkumar Thakar. His dead body
was subjected to autopsy by the Medical Officer
Dr.Gangaram Sukhram - PW-2 who has been examined vide
Exh.23 who has proved the nature of injuries and contents
of the post mortem report in detail. During his testimony,
nothing inconsistent destroying the case of the prosecution
is brought on record by the defence counsel and thus we
have no reason to doubt the opinion expressed by the said
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Doctor that the death was homicidal and the injuries
reflecting in column No.17 at serial Nos.1 to 3 are possible if
a person is hit by stone on his head. He has further deposed
that the injuries reflecting at serial Nos. 4 to 7 and 9 to 15
in column No.17 of postmortem report are possible with
knife which was shown to him as Article No.23. He has also
stated to the effect that injuries reflecting at serial No.8 in
column No.17 of the PM note are possible if a person is
strangulated with hands or with hard substance and
fracture of hyoid bone is possible and all the injuries stated
with column No.17 of the PM note were sufficient in the
ordinary course to cause the death. Though, the doctor has
not opined on the time of death in his examination in chief
but on the other hand no questions raising doubt with
regards to the time of death is put to this witness by defence
counsel in cross examination also.
Theory of last seen together :
8. The prosecution's theory of "last seen together" is
substantiated by the testimony of PW-9, Kartikkumar
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Lakhirambhai Joshi, and PW-10, Mahipatsinh Bhupatsinh
Rajput. In his examination-in-chief at Exhibit 62, PW-9,
Kartikkumar Lakhirambhai Joshi, stated that the deceased,
Devang, was a friend who regularly came to the Bindu
Sarovar pick-up stand at the same time as him to attend
college. The witness further testified that on the day of the
incident, August 18, 2015, at approximately 8:00 AM, he
arrived at the pick-up stand and saw Devang talking with
two individuals seated in a white Chevrolet Beat. This car
was parked near the pick-up stand. The driver was
identified as Nirav Shah from his society, and the passenger
was his neighbor, Dhaval @ Jato Dharji, who was also from
his society. Subsequently, Devang entered the vehicle. At
that point, the witness's bus arrived, and he departed for
his college. Upon returning in the evening, he learned of
Devang's kidnapping. He then informed Hiteshbhai about
what he had observed that morning. The following day, the
police questioned him and recorded his statement.
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8.1 While a few minor omissions in the cross-
examination of the witness do not affect the core of the
prosecution's case, the appellants have emphasized certain
points. Specifically, they highlight that despite Kartikkumar
Joshi having informed Hiteshbhai, the deceased's father and
complainant in this case, about the last-seen details when
he visited second time at 10:00 PM, Hiteshkumar Thakar
did not disclose this information regarding the appellants
when he lodged the complaint at 11:30 PM. The learned
advocate for the appellants also stressed that Kartikkumar
Joshi's statement was recorded on August 19, 2015,
whereas Dhaval @ Jato Darji was arrested on August 19,
2015, between 9:30 AM and 10:00 AM, and Nirav @ Ravi
Maheshbhai Shah was arrested on the same day between
1:30 AM and 2:00 AM. The argument, therefore, is that the
Investigating officer could not have known about the
involvement of Dhaval and Nirav before Kartikkumar Joshi's
statement was recorded which is further supported by the
fact that the First Information Report (FIR) did not name
any accused persons, despite the father having been
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informed on the night of August 18, 2015, prior to filing the
complaint. This aspect at the best can be considered as
lapse on the part of the investigating agency, the benefit of
which will not enure to the accused.
8.2 It would be relevant to note that in the cross-
examination of PW-1 Thakar Hiteshkumar Chandulal i.e.
father of the deceased a specific defence has been put forth
by the defence that after meeting Mahipatsinh Bhupatsinh
Rajkpt and Kartikkumar Joshi, the complainant had
suspicion towards the present accused. However, on his
volition, this witness has stated that since both the accused
persons were resident of his society, he did not give much
importance to the said aspect.
9. In the case of Rahul Mishra Vs. State of
Uttarakhand reported in AIR 2015 SC 3043 Hon'ble
Supreme Court has held that the investigating officer is not
obliged to anticipate all possible defences and investigate in
that angle. In any event, any omission on the part of the
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investigating officer cannot go against the prosecution.
Interest of justice demands that such acts or omission of
the investigating officer should not be taken in favour of the
accused or otherwise it would amount to placing a premium
upon such omissions. Thus, applying the said principles in
the facts of the present case, the argument of the appellant
does not hold good.
10. It is also profitable to refer to the judgment in the
case of State of Uttar Pradesh Vs Satish, reported in (2005)
3 SCC 114 wherein it is held that :
"18. As regards delayed examination of
certain witnesses, this Court in several
decisions has held that unless the
investigating officer is categorically
asked as to why there was delay in
examination of the witnesses the
defence cannot gain any advantage
therefrom. It cannot be laid down as a
rule of universal application that if there
is any delay in examination of a
particular witness the prosecution
version becomes suspect. It would
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depend upon several factors. If the
explanation offered for the delayed
examination is plausible and acceptable
and the court accepts the same as
plausible, there is no reason to interfere
with the conclusion. (See Ranbir v. State
of Punjab [(1973) 2 SCC 444: 1973 SCC
(Cri) 858: AIR 1973 SC 1409), Bodhraj v.
State of J&K [(2002) 8 SCC 45: 2003
SCC (Cri) 201] and Banti v. State of M.P.
((2004) 1 SCC 414: 2004 SCC (Cri) 294])
19. xxx xxx xxx
20. It is to be noted that the explanation
when offered by the IO on being
questioned on the aspect of delayed
examination by the accused has to be
tested by the court on the touchstone of
credibility. If the explanation is plausible
then no adverse inference can be drawn.
On the other hand, if the explanation is
found to be implausible, certainly the
court can consider it to be one of the
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factors to affect credibility of the
witnesses who were examined belatedly.
It may not have any effect on the
credibility of the prosecution's evidence
tendered by the other witnesses."
In view of the aforestated settled principles of law with
regard to delay in examination of certain witnesses, the
defence cannot gain any advantage therefrom. It is also
required to be noted that the Investigation Officer is not
being questioned on the aspect of delay examined by the
defence counsel of the accused. Under the circumstances,
the argument of the defence counsel requires to be rejected.
11. It is also required to be noted that in cross-
examination of the Investigation Officer PW-19 at Exh.86 i.e.
Dr.Jigar Bharatkumar Pandit, the defence has brought on
record that the Investigation Officer had recorded the
statement of Kartikkumar Lakhirambhai Joshi on
19.08.2015, after 00.00 hour. Thus, it is clear that
statement of Kartikkumar Lakhirambhai Joshi was recorded
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by the Investigation Officer on 19.08.2015 after 00.00 hours
and as per the deposition of Kartikkumar Joshi in cross-
examination, he has admitted that his statement was
recorded on 19.08.2015 at 10:00 O'clock in the morning.
However, specific question with regards to recording the
statement of Kartikkumar belatedly has not been put to the
Investigation Officer. Under the circumstances, merely
because Kartikkumar has deposed that to the effect that his
statement was recorded at 10:00 O'clock in the morning on
next day, whereas, the Investigating Officer also agreed to
the suggestion that he has recorded the statement of
Kartikkumar on 19.08.2015, after 00.00 hours does not
create any inconsistency with the arrest of Dhaval @ Jato
Darji at 9:30 on 19.08.2015 because the Investigation
Officer had also inquired with regard to the presence of the
deceased at Bindu Sarovar pick-up stand and had
proceeded to arrest the accused persons and had recorded
the statement of Kartikkumar Joshi accordingly. Thus, the
aspect of recording of statements of two so called witness of
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last seen to gather theory at a later stage does not prove to
be fatal to the case of prosecution.
12. The second witness of last seen together theory is
Mahipatsinh Bhupatsinh Rajput - PW-10 who has been
examined vide Exh.63. In nutshell, this witness, in
examination-in-chief has stated that the incident had taken
place on 18.8.2015 and on that day, he was plying his Ecco
car on rental basis and as per his daily routine had reached
at 8.00 O'clock in the morning at Bindu Sarovar pick-up
stand and was to travel to Mehsana with passengers and
while he was calling passengers to sit inside his car, at the
time, he saw Devang coming and also saw white colour
chevrolet beat car. Devang walked towards that car and
inside the car Ravi Shah and on the next seat, Dhaval @
Jato Darji was sitting inside since Jato Darji was also plying
Ecco car therefore, he knew him and he also knows Ravi
Shah since he also residing in the same vicinity and Devang
sat on the back seat and the car proceeded towards
Santnagar. Thereafter, he went along with the passengers
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for Mehsana and came back to Siddhpur at 9:00 O'clock in
the night and while he was having his dinner, he came to
know that Devang who is residing next to his society has
been kidnapped.
12.1 In the cross-examination of this witnesse, no
material inconsistency has been brought on record. This
witness has also admitted that at 10:00 O'clock in the night,
he had talked with the father of Devang. Thus, for the
reasons stated with regard to the deposition of Kartikkumar
Joshi, for the same reasons, there is no discrepancy in the
depositions of these two witnesses and they corroborated
with each other and thus, the theory of last seen together is
proved by the prosecution beyond reasonable doubt.
Factum of kidnapping and ransom :
13. Before we proceed to appreciate evidence in this
regards it would be profitable to refer to the provisions of
Section 364A. Section 364-A of IPC has three distinct
components viz. (i) the person concerned kidnaps or
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abducts or keeps the victim in detention after kidnapping or
abduction; (ii) threatens to cause death or hurt or causes
apprehension of death or hurt or actually hurts or causes
death; and (iii) the kidnapping, abduction or detention and
the threats of death or hurt, apprehension for such death or
hurt or actual death or hurt is caused to coerce the person
concerned or someone else to do something or to forbear
from doing something or to pay ransom. Thus, after
establishing first condition, one more condition has to be
fulfilled since after first condition, word used is "and". Thus,
in addition to first condition either Condition (ii) or (iii) has
to be proved, failing which conviction Section 364-A cannot
be sustained. On perusal of the deposition of the
complainant namely Thaker Hiteshkumar Chandulal i.e. the
father of the deceased PW-1 at Exh. 20, he has stated that:
"I am the complainant of the present case.
The incident had taken place on
18.08.2015. The deceased Devang in the
present case is my son. I have given the
complaint on 18.08.2015. Devang's date of
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birth is 04.01.1998. Apart from Devang, I
have one daughter named Radhika. At the
time of incident and even as of today she is
at Australia and since last 4 months she is
at Surat at her in-laws' residence. On the
date of incident, I along with my wife Sonal
and deceased Devang are residing at
Krishnanagar Society, Radhanpur. As on
date, I am working at Siddhpur in Bank of
Baroda and on the date of incident my son
Devang was studying Computer
Engineering in the Ganpat University at
Kherva. My son used to leave at 07:55 in
the morning for going to college and used
to travel in the bus from Bindu Sarovar
pick up stand. On the date of incident, as
per daily routine, my son Devang left for
college at 07:55 in the morning and I as
per daily routine, left for bank. After
reaching bank at about 10:30 in the
morning. I received a phone call on my
mobile from Devang's mobile and one
unknown person speaking in Hindi
language stated that his son had been
kidnapped and asked to arrange for Rs.40
lakh and deliver at Unjha and
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disconnected the phone. Thereafter, 15 to
20 minutes, I received a call on my mobile
phone and call from my son's mobile and
threatened me not to inform to police or
anyone, else his son would be murdered
and also informed that he will again call at
2:00 O'clock in the noon as to where Rs.40
lakh are to be delivered. On receiving such
phone, I left from the bank and on
reaching my residence, talked with my wife
and my relative Deviprasad Govindlal
Thakar and the President of the Caste i.e.
Avinashbhai Thakar. We all started
searching Devang in the village, college and
in his friend circle, we waited till 2:00
O'clock so that my son is not murdered,
however I did not receive the phone call
and therefore, contacted on the mobile
phone at my son which was found to be
switched off. Even after that, we were
searching for Devang. During the search,
friend of Devang i.e. Kartikbhai Joshi and
Mahesh, who were residing just near the
society where we reside had informed that
they had seen Devang in the morning at
Bindu Sarovar pick-up stand. We
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continued search of Devang and gave
complaint to the police which is exhibited
at Exh.21."
The signature is also identified by this witness.
"After lodging the complaint and after reaching at
my residence late in the night, police informed
that one unknown dead body is found one
kilometer away from village Hathidhara near
Aadu at Banaskantha District. Therefore, on the
next day in the morning at about 5:00 O'clock
reached at the place, where the dead body was
lying. The Police was present there and on seeing
the dead body, it was of deceased Devang,
injuries were found on the back and stomach and
the face was smashed bleeding. I identified the
dead body from the clothes, panchnama was also
carried out, thereafter the dead body was taken
for performing post mortem after which the last
rites were performed."
"Before calling me by the police on 20.08.2015, at
Siddhpur Police Station, the police had informed
me that they have arrested Nirav @ Ravi
Maheshbhai Shah and Dhaval @ Jato Darji for
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murdering my son Devang. On 20.08.2015, the
police after calling me at the police station
informed that they have seized muddamal from
Nirav @ Ravi Maheshbhai Shah from his
Ahmedabad residence and broke opened the seal
in the presence and noted in the panchnama to
that effect and on opening the seal, one black
colour notebook, pen, calculator, silver chain, all
these things which belong to Devang and used to
keep with him while travelling to college were
identified in presence of the panchas and police
also identified the clothes of the deceased. At the
time of incident, my son was minor and therefore
on my identity a sim card was purchased which
was utilized by Devang bearing mobile
No.9638786669. Over and above the complaint,
the police had also taken my statements on
19.08.2015 and 20.08.2015".
13.1 This witness also identified the clothes worn by
the deceased before the Court being Article No.4, 5 and 6
i.e. T-shirt, pant, underwear and banyan, respectively. This
witness also identified Article 18 and 19 i.e. silver chain, 3
ball pen, 1 calculator, 1 black colour bag before the Court
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and also identified both the accused persons before the
Court.
13.2 This witness has been cross-examined in detail
by the defence counsel. However, nothing inconsistent
destroying the veracity of this witness has come on record.
However, this witness has admitted that in the complaint,
he has stated that Devang had left the resident from 7:55 in
the morning. However, in the statement before the police on
19.08.2015 he stated that as per daily routine Devang left
for his college from residence at 7:30 in the morning.
13.3 This witness has also admitted that Kartikbhai
Joshi and Mahesh Vaghela met him at 10:00 O'clock and
also had a talk with them and that the complaint was
lodged at 11:30 PM. He has also admitted that he has not
given name of any accused persons in his complaint. He has
also stated the he had no suspicion towards anyone with
regard to the kidnapping of his son.
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13.4 Thus, from the entire deposition of the witness,
the factum of the deceased using the mobile phone of his
father and the factum of receiving call from his son's mobile
is proved beyond reasonable doubt. Not a single question is
put to this witness challenging the said factum. It is also
required to be noted that PW-20 i.e Devendra Jayantilal
Lariya, is examined vide Exh.137 and as per the customer
application form the mobile No.9638786669, was of
Hiteshkumar Chandulal Thakar bearing address near Bindu
Sarovar Park, Siddhpur, which is placed on record vide
Exh.138. The said customer agreement form and the
documents submitted by the customer along with certificate
under Section 65B (4) (C) is also placed on record vide
Exh.145. Thus, the factum of deceased utilizing the mobile
phone purchased in the name of complainant is proved. The
factum of customer agreement is also proved in accordance
with law by the deposition of Devendra Jayantilal Lariya,
more particularly, by placing on record by submitting 65B
certificate as per the Indian Evidence Act coupled with a
fact that in the cross-examination of the complainant
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Hiteshkumar Chandulal Thakar, the factum of his receiving
call from the mobile utilized for kidnapping and threatening
of his son is not challenged at all. Under the circumstances,
the factum of threatening that they will murder Devang if
complainant informed to police or anyone else is proved
beyond reasonable doubt. This aspect is not challenged in
cross-examination coupled with the fact that the bag of the
deceased is also found from the rented premises where the
accused Nirav is residing and at the instance of Nirav, the
dead body was also found accordingly at instance of Nirav.
Accused Dhaval also pointed out the place where the dead
body was buried. Thus, it is proved beyond reasonable
doubt that the deceased was kidnapped, ransom was
demanded and the kidnapped person was murdered. Thus,
the triple tests condition as required under Section 364A of
the IPC is proved beyond reasonable doubt.
14. It is also required to be noted at this juncture
that the complainant had no axe to grind against the
present accused persons. Under the circumstances, when
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the conduct of the complainant and his deposition is
natural and in absence of any infirmity in the entire
deposition, the testimony of this witness reposes confidence.
Extra Judicial Confession :
15. Adverting to the facts of extra judicial confession,
at the outset, the principles laid down in the case of
Kashmira Singh Vs. State of M.P. reported in (1952) 1
SCC 275 are required to be considered wherein the
Honourable Supreme Court observed as under :
"The confession of an accused person is
not evidence in the ordinary sense of the
term as defined in Section 3. It cannot
be made the foundation of a conviction
and can only be used in support of other
evidence. The proper way is, first, to
marshal the evidence against the
accused excluding the confession
altogether from consideration and see
whether, if it is believed a conviction
could safely be based on it. If it is
capable of belief independently of the
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confession, then of course it is not
necessary to call the confession in aid.
But cases may arise where the Judge is
not prepared to act on the other
evidence as it stands even though, if
believed, it would be sufficient to sustain
a conviction. In such an event the Judge
may call in aid the confession and use it
to lend assurance to the other evidence
and thus fortify himself in believing
what without the aid of the confession
he would not be prepared to accept."
Based on the aforestated principles and on reappreciation of
evidence with regard to extra judicial confession, it would be
relevant to advert to the deposition of PW-11 - Suraj
Bharatbhai Rami who is examined vide Exh.65 before the
learned trial Court. On going through his examination-in-
chief, in nutshell, he has stated that he received a phone
call on 24.8.2015 from Siddhpur Police Station and was
asked with regard to the case of Dhaval Darji and at that
time he was utilizing mobile bearing No.8866418195 and till
today he is utilizing the same phone number. The police
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informed that from the call details of Dhaval @ Jato Darji
phone number of the present witness was found and
therefore he was called for investigation. He stated that
Dhaval was his friend and often used to meet him. On
17.8.2015 since this witness wanted to recharge his mobile
connection of Docoma Company and was to go at Siddhpur,
near Afin gate and as soon as he came out of his street, he
found that Dhaval and Nirav were passing on a bike and
therefore he also accompanied them, at that time Dhaval
was riding motorcycle, Nirav was sitting in between and
lastly he was sitting on the bike, at that time Dhaval and
Nirav were talking of some medicine and spray with which
they can make someone unconscious and on reaching Afin
gate, he got down from the bike and Dhaval and Nirav went
towards medical store. After getting the mobile recharge, he
went towards the bike where it was parked, at that time,
Dhaval and Nirav were also came there but empty handed
since the medical store was closed, at that time, they asked
where they will find a spray or medicine to make someone
unconscious and since I knew nothing I denied of having
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any knowledge after which Nirav Shah left from the Afin
gate and Dhaval dropped this witness near the street on the
bike. Thereafter, on 18.8.2015 he received a phone call on
his mobile from Dhaval Darji at about 2:30 to 3:00 in the
afternoon and asked where was this witness, to which, he
replied that he was at his residence after which the mobile
was disconnected. After having lunch, he went to the shop
of Dhaval which is located at Vahervada, at that time
Dhaval was sitting outside of his shop and was frightened,
to which, this witness asked why was Dhaval so frightened,
to which Dhaval replied that his friend Nirav and he
himself has committed one wrong. On answering, this
witness again asked what was that wrong. This question
was put 2 to 3 times to which Dhaval replied that I and my
friend Nirav Shah have committed one murder to which
again witness asked of whom, to which he said you need not
know or else you will disclose to everyone. On hearing this,
he was frightened and he went to his house and on
19.8.2015 from the newspaper he came to know that police
has arrested Dhaval @ Jato Darji and Nirav Shah in the
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murder of Devang. All this information was given to the
police on 24.8.2015 when he was called by the police at the
police station.
15.1. This witness has been cross examined at length.
He has admitted that before this he has no occasion to
accompany Dhaval on his bike. However, after sometime on
his own volition, he states that he has accompanied number
of times on the motorcycle of Dhaval. He has stated in his
cross examination that it is not true that Dhaval used to
inform all his secrets to him. However, in the cross-
examination by the defence counsel what has been brought
on record is to the effect that "it is true that in the
statement before the police on 24.08.2015 I have stated that
these two persons were searching for some medicine or
spray to kidnap some person and make him unconscious
which came to my knowledge." The factum of Dhaval stating
that we have committed wrong is also confirmed in the
cross-examination by the defence. He has also admitted that
on 17.05.2015, 18.08.2015, 19.08.2015 and up to
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24.08.2015, this fact is not stated to anyone else except the
police. In sum and substance, while cross-examining this
witness, nothing inconsistent or material irregularity
shaking the veracity of this witness is not brought on record
by the defence counsel. Further, in view of the principles
laid down in the case of Kashmira Singh (supra) it is settled
proposition that extra judicial confession cannot be made
foundation of conviction and can only be used in support of
other evidence. Thus, the question which requires to be
tested is after marshaling the evidence against the accused
by excluding the confessional statement together from
consideration, this Court has to first arrive at the finding
that a conviction can safely be based on it. Therefore, for the
time being keeping aside the factum of extra judicial
confession aside, we will now venture into the other links
which the prosecution has relied on.
CCTV Footage and toll paid at Toll Plaza :
16. On perusing the deposition of PW-12 - Gopalbhai
Baldevbhai Sharma at Exh-67, he is the CCTV camera
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operator serving at Kimana Toll Plaza office. Though, CCTV
footage backup provided to the police is not accompanied by
any certificate under the provisions of Section 65-B of the
Indian Evidence Act. Despite this, what has been stated by
this witness would be material since on 18.8.2015, this
witness at the instance of the Investigation officer had run
the CCTV footage recording and on 18.08.2015 at about
8:25 hours in lane No. 3, the vehicle number which was
sought to be inquired and colour of the vehicle as stated by
the Investigation Officer was seen going towards Abu Road
Palanpur, at that time, clock of the system was 20 minutes
behind and therefore the correct time of passing of the
vehicle was 8:45 hours, the toll charges paid towards the
said vehicle are also exhibited vide Exh.68 by which the
said vehicle had paid Rs.50/- as toll tax.
16.1 In cross-examination this witness has stated that
he has not submitted to the police any proof that on
18.8.2015 from 8:00 O'clock in the morning to 4:00 O'clock
in the noon, he was present in the office. There is also
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admission to the effect that as per the CCTV camera system,
chevrolet car in lane No.3 was seen at 8:25. Thus, from the
deposition of this witness, the vehicle chevrolet car was
found to have passed said toll plaza towards Abu Road from
Palanpur is proved beyond reasonable doubt even in
absence of CCTV footage. The discrepancy with regards to
time is also proved.
Presence of Accused persons on 18.08.2015 at Hotel
Shahkar at Siddhpur with car :
17. PW-13 Shabbir Ali Rasulbhai Chaudhary has
deposed vide Exh.69 to the effect that the police came on
28.8.2015 for investigation that during the period on
17.8.2015 this witness was serving at Hotel Shahkar
situated at Siddhpur Khadi Cross Road since last 2 years.
He had shown the footage to the police from the system of
17.8.2015. The footage was of 17.8.2015 from 4:25 to 4:31.
It was regarding two persons who had come to the hotel for
having cup of tea. The said footage was given in CD to the
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police. Apart from the footage, as per the footage of the
parking area of the said hotel, a car whose company name,
this witness does not remember but was bearing
registration No. GJ8 AE 9398 was parked. This witness also
identified two accused persons which he had seen in the
footage are the same persons which are present in the
Court. He further stated that the said CCTV was working 26
hours late and thus, the correct date should be 18.08.2015
and the correct time should be 6:25 hours. He also stated
that the statement was given by him to the police.
17.1 In the cross-examination, this witness has
admitted that CCTV footage was running late and therefore
correct time of accused persons arriving at the hotel was
6:15 on 18.08.2015. He has also admitted that as per the
system, the time and date which he had informed was
17.08.2015, 4:25 to 4:31 hours. It is true that it came to my
knowledge that the system is running 26 hours late came to
his knowledge when the police asked for the footage.
Though 65B certificate as required under the Indian
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Evidence Act is not placed on record however, from the
deposition of this witness also, it is proved beyond
reasonable doubt that on 8th of August 2015 at 6:25, the
two accused persons were present at Hotel Shahkar
situated at Siddhpur Khadi Cross Road.
Recovery and Discovery at the instance of the Accused
persons :
18. The next chain of circumstances would be the
discovery at the behest of the accused persons. In this
regard, deposition of PW 3 - Ashokkumar Bhalchandra
Raval at Exh.27 who is the panch of the physical
verification of accused Dhaval @ Jato Darji and Nirav Shah
would be relevant to the effect that from Dhaval, one tablet
of Penta Company with two sim cards, one of Vodafone and
other of the Reliance were recovered and one Micro-max
Company mobile having two Vodafone sim cards were also
recovered. On the same day, the panchnama of Nirav was
drawn and two mobile phones were recovered from him, one
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of Samsung which was having sim card of BSNL and other
mobile was also Samsung Company having 2 sim cards, one
of Airtel and other is of Idea.
18.1 From the entire cross-examination, nothing has
come on record shaking credibility of this witness. However,
merely recovery of mobile phones is neither here nor there
and thus it is not helpful to the prosecution.
19. PW-4 - Harkhabhai Laxmanbhai Chauhan who
has been examined vide Exh.33 is the panch witness of
panchnama at Exh.34 which was prepared at the behest of
Nirav Shah and this witness has stated in his examination-
in-chief as follows :
"That on 18.8.2015 in the early hours at 5:00
O'clock in the morning, he left for some business
work and came back on 19.8.2015 at 1:45 hours
in the morning and at that time, while getting
down from a private vehicle on Siddhpur Highway
whSection 8ile passing near Railway Station road
and on reaching Maruti complex at Siddhpur
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City, a police car came and stopped near him and
asked where had this witness gone to which he
informed the details and the police asked that
they have got one accused and a panchnama is
required to be prepared, whether he was ready to
come with them as a panch and also informed
that the accused wants to say something and also
wants to show something and whether this
witness is willing to accompany with the police at
Siddhpur Police Station, at that time, one
Manojbhai of his village was also sitting in police
station and was also a panch, at that time, one
accused was sitting in the police station and the
police stated that this is Nirav to which this
witness asked the name of the accused and the
accused stated his name as Nirav @ Ravi
Maheshbhai Shah, aged 28, resident of Bindu
Sarovar, Krishnanagar society Siddhpur, at that
time, the accused informed that he and his friend
Dhaval @ Jato Darji were standing at 8:00 O'clock
in the morning at Bindu Sarovar pick-up stand,
at that time Devang came there and by alluring,
they made him to sit into Chevrolet beat car
bearing No.GJ 8E 9388 under the pretext that
they may go for a ride and took him towards
Palanpur and from there to Abu Road highway
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and from there had exhumed under the mud in
the hill of Balaram deceased Devang and want to
point out the said place and to that effect, the
panchnama was prepared and signature of this
witness and Manojbhai were taken by Mr.Pandit.
Thereafter, they travelled in the police jeep along
with the panchas and the accused Nirav and
Pandit Sahab and the staff persons and as per his
directions which this witness has stated in details
as his deposition point out the place by stating
this is the place where Devang was murdered and
exhumed and on digging the said place, a dead
body lying upside down was found which was
blood stained and was taken out after digging pit
and on seeing the said dead body, injuries
inflicted with sharp weapon on face was found
smashed and on the clothes of the dead body
mud and blood was found. The blood stained
mud was also collected as sample and plain mud
was also collected from the said place. A stone
near the dead body weighing almost 3 kg with
sharp which was found with mud and blood stick
on it, all these things were collected and panch
slips were also signed and placed inside and the
plastic bags were sealed. The said panchnama is
exhibited at Exh.34 and the panch slips
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identifying the signature of both the panchnama
are exhibited at Exh.35."
After completion of the said panchnama, this witness and
Manojbhai left in a private vehicle from Balaram to
Chitrasani and were standing on the way to Abu Road
from Chitrasani village and were waiting for vehicle. At that
time, from Siddhpur a car came and stopped their vehicle
and asked why we were standing there and therefore, he
explained as to why he was standing there. Thereafter, this
witness and Manojbhai were taken to Amirgadh Civil
Hospital CHC where the dead body of Devang was brought
for performing PM and panchnama of the clothes collected
before performing the post mortem by the Doctor was
prepared and the description of the clothes was also
deposed by this witness in detail which is exhibited at
Exh.36 and the panch slips collectively at Exh.37 were also
proved in accordance with law.
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20. In this context, we may usefully refer to the case
of A.N. Venkatesh and another v. State of Karnataka
reported in (2005)7 SCC 714, wherein it has been ruled
that :
"By virtue of Section 8 of the Evidence
Act, the conduct of the accused person
is relevant, if such conduct influences or
is influenced by any fact in issue or
relevant fact. The evidence of the
circumstance, simpliciter, that the
accused pointed out to the police officer
the place where the dead body of the
kidnapped person was found would be
admissible as conduct under Section 8
irrespective of the fact whether the
statement made by the accused
contemporaneously with or antecedent
to such conduct falls within the purview
of Section 27 of the Evidence Act or not."
In the aforesaid decision, reliance was placed on the
principle laid down in the case of Prakash Chand V/s. State
(Delhi Admin.) reported in (1979) 3 SCC 90. It is worth
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noting that in the said case, there was material on record
that the accused had taken the Investigating Officer to the
spot and pointed out the place where the dead body was
buried and the Supreme Court treated the same as
admissible piece of evidence under Section 8 as the conduct
of the accused.
20.1 This witness is also cross-examined by the
defence advocate at length. However, nothing destroying the
deposition of this witness has come on record. Thus, the
place from where the deceased was exhumed was found at
the instance of accused Nirav.
21. Similarly, on 20.8.2015, the bag of the deceased,
weapons from the car, the car and the clothes of the
accused Nirav were recovered at the instance of Nirav @
Ravi Maheshbhai as deposed by PW-5 Sanjay Manuprasad
Bhatt recorded at Exh.38. This witness has also deposed in
detail with regard to asking of the name of the accused, his
address and what he wanted to point out more particularly,
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the car utilized in committing the crime for murdering
Devang, the clothes he had worn and had also washed his
clothes after committing crime and the bag which the
deceased was carrying were lying at the rented house
situated in at Ahmedabad in Odhav area. We are not
reproducing what has been deposed in examination-in-chief
but this witness has deposed in detail in the first part of the
panchnama and also in the second part of the panchnama
as to how at the instance of Nirav the car utilized in
committing crime, clothes worn by Nirav while committing
crime, washing of blood stained clothes after commision of
crime, bag of the deceased and the weapons utilized to
commit crime were recovered and the said fact is also
proved beyond reasonable doubt as the panch witness had
deposed in detail as to at whose instance and from where
such recovery/discovery were made. Though, the law with
regard to Section 27 of the Indian Evidence Act is clear and
we are not considering the confession of the accused of
having committed crime while preparing the said
panchnama and the manner in which they have committed
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the crime but certainly that part of the confession which
leads to recovery of bag of the deceased, clothes of the
accused, weapons utilized in committing the crime, car
utilized in committing the crime are found at the instance of
Accused can certainly be considered as per the provisions of
Section 27 of the Indian Evidence Act. In this regards it
would be profitable to refer to the judgment in the case of
Bodhraj Vs. State of J & K reported in (2002) 8 SCC 45
wherein the Honourable Supreme Court held as under.
"18.... It would appear that under
Section 27 as it stands in order to
render the evidence leading to discovery
of any fact admissible, the information
must come from any accused in custody
of the police. The requirement of police
custody is productive of extremely
anomalous results and may lead to the
exclusion of much valuable evidence in
cases where a person, who is
subsequently taken into custody and
becomes an accused, after committing a
crime meets a police officer or
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voluntarily goes to him or to the police
station and states the circumstances of
the crime which lead to the discovery of
the dead body, weapon or any other
material fact, in consequence of the
information thus received from him.
This information which is otherwise
admissible becomes inadmissible under
Section 27 if the information did not
come from a person erson in the custody
of a police officer or did come from a
person not in the custody of a police
officer. The statement which is
admissible under Section 27 is the one
which is the information leading to
discovery. Thus, what is admissible
being the information, the same has to
be proved and not the opinion formed on
it by the police officer. In other words,
the exact information given by the
accused while in custody which led to
recovery of the articles has to be proved.
It is, therefore, necessary for the benefit
of both the accused and the prosecution
that information given should be
recorded and proved and if not so
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recorded, the exact information must be
adduced through evidence. The basic
idea embedded in Section 27 of the
Evidence Act is the doctrine of
confirmation by subsequent events. The
doctrine is founded on the principle that
if any fact is discovered as a search
made on the strength of any information
obtained from a prisoner, such a
discovery is a guarantee that the
information supplied by the prisoner is
true. The information might be
confessional or non-inculpatory in
nature but if it results in discovery of a
fact, it becomes a reliable information. It
is now well settled that recovery of an
object is not discovery of fact envisaged
in the section. Decision of the Privy
Council in Pulukuri Kotayya v. King
Emperor [Pulukuri Kotayya v. King
Emperor, 1946 SCC OnLine PC 47:
(1946-47) 74 IA 65 : AIR 1947 PC 67] is
the most-quoted authority for
supporting the interpretation that the
"fact discovered" envisaged in the
section embraces the place from which
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the object was produced, the knowledge
of the accused as to it, but the
information given must relate distinctly
to that effect. (See State of Maharashtra
v. Damu [State of Maharashtra v. Damu,
(2000) 6 SCC 269: 2000 SCC (Cri)
1088].) No doubt, the information
permitted to be admitted in evidence is
confined to that portion of the
information which "distinctly relates to
the fact thereby discovered". But the
information to get admissibility need not
be so truncated as to make it insensible
or incomprehensible. The extent of
information admitted should be
consistent with understandability. Mere
statement that the accused led the
police and the witnesses to the place
where he had concealed the articles is
not indicative of the information given."
22. Thus, the condition necessary for applicability of
Section 27 of the Indian Evidence Act broadly stated are as
under :
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(1) Discovery of fact in consequence of an
information received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when
he gave information; and
(4) So much of information as relates distinctly to
the fact thereby discovered is admissible.
Considering the aforestated principles and testing the
deposition of PW-5 Sanjay Manuprasad Bhatt recorded at
Exh.38 on the anvil of the said principles, it is established
beyond reasonable doubt that discovery of a fact in
consequences of information received from the accused is
deposed by this witness while the accused was in police
custody when such information was given to the police and
such information distinctively relates to the fact of discovery
of the aforestated articles at the instance of the accused.
Under the circumstances, discovery by the prosecution has
been proved beyond reasonable doubt.
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23. Similarly, vide Exh.49 - Khatri Bhupendrakumar
Raghuram who is a panch of Exh.50 panchnama prepared
at the instance of Nirav @ Ravi Maheshbhai Shah at whose
instance the knife utilized in committing the crime, mobile
of Devang where it was disposed and the books of the
deceased where they were thrown were to be recovered but
could not since this accused stated that he could not
remember as to which place exactly he threw all these
things but had taken the police as well as the panchas to
the place from where he had allegedly thrown these articles
but no recovery/discovery could be affected. Thus, Nirav @
Ravi Maheshbhai Shah though wanted to point out the
place where he had thrown the knife, mobile of the
deceased, his books could not be recovered/discovered,
however, the factum of knife utilized in the commission of
crime, clothes worn by the accused Nirav at the time of
committing crime, the car utilized in committing the crime,
and the bag of the deceased were very much found at his
instance for his rented premises at Ahmedabad.
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24. Vide Exh.53 - Pareshkumar Mukundlal Thakar
has been examined as PW-8. This witness has also stated in
detail with regard to the factum of preparing of the
panchnama at the instance of Dhaval @ Jato Darji and that
he wanted to point out as to where he has kept the knife
with which they had murdered the deceased and the clothes
which were worn while committing the crime. Detailed
deposition has been recorded before the Trial Court as to
how and where the car was driven at the instance of this
accused the weapon came to be discovered/recovered and
also the clothes which were worn by this accused at the
time of committing the crime. The said panchnama is
proved vide Exh.54.
25. From the cross-examination of this witness also,
nothing inconsistent destroying the case of the prosecution
has come on record. However, in cross examination this
witness is put a suggestion that the keys were brought by
some unknown person at the instance of the accused to
which this witness agreed. It is argued by the learned
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advocate for the accused that the factum of non recording
the name of this witness or non recording the name of the
person who brought the keys in the panchnama and not
closing the house after completion of panchnama is fatal to
the prosecution. This argument needs to be rejected for the
reasons that at the instance of the accused this unknown
person had brought the keys. Under the circumstances non
recording his statement or name in the panchnama or non
closer of house after completion of panchnama does not
affect the factum of discovery at the instance of the
accused. Thus, discovery made in the instance of this
accused i.e. Dhaval @ Jato Darji is also proved in
accordance with law. Though, the factum of accused having
committed crime cannot be looked into from the said
panchnama or deposition of the panch still, what is required
to be seen is whether the discovery at the instance of the
accused is proved or not which in the case on hand is
proved beyond reasonable doubt.
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26. Similarly, vide Exh.51 Thakor Chiranjivi Kantiji is
the panch of panchnama which was prepared at the behest
of accused Dhaval @ Jato Darji where the body of the
deceased was exhumed. However, in view of the fact that at
the instance of Nirav when such panchnama is already
drawn and that body also recovered, such panchnama does
not pales into insignificance. However, as laid down in the
case of A.N. Venketash (Supra) when the accused pointed
out to the police officer the place where the dead body of the
kidnapped person was found would be admissible as
conduct under Section 8 irrespective of the fact whether the
statement made by the accused contemporaneously with or
antecedent to such conduct falls within the purview of
Section 27 of the Evidence Act or not. Thus, the conduct of
accused Dhaval speaks volume. It is also required to be
noted that the panchnama Exh.59 which is of the dead
body of the deceased Devang is admitted to be read into
evidence by the accused before the Trial Court and thus the
recovery of the body at the instance of the accused and that
the said dead body is of Devang is also proved.
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Motive :
27. As far as motive is concerned, no iota of evidence
has come on record from the deposition of the Investigating
Officer that one of the accused was in debt and the other
accused wanted money for luxuries. Under the
circumstances, the motive as alleged by the prosecution is
not proved. It is also required to be noted that merely
because motive is not proved, it cannot be said that the case
of the prosecution which rests on circumstantial evidence is
not proved beyond reasonable doubt. In this regard, in the
case of Atley Vs. State of U.P. reported in AIR 1955 SC
807, more particularly, at page 810, the Honourable
Supreme Court has held that :
"where there is clear evidence that the
person has committed the offence, it is
immaterial where no motive for
commission of the crime has been
shown. Therefore, even in the case of
circumstantial evidence, absence of
motive which may be one of the
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strongest links to connect the chain
would not necessarily become fatal
provided the other circumstances would
complete the chain and connect the
accused with the commission of the
offence, leaving no room for reasonable
doubt, even from the proved
circumstances."
Thus, in a case based on circumstantial evidence also when
the facts as alleged are proved beyond reasonable doubt, it
is immaterial that the prosecution has not been able to
prove the motive. A man does not act wholly without motive.
Failure to discover the motive of an offence does not signify
the non-acceptance of the crime. The failure to discover
motive by appropriate clinching evidence may be a
weakness in proving of prosecution case, but it is not
necessarily fatal as a matter of law. Under the
circumstances, non-proving of motive by the prosecution is
not fatal.
Serological Report :
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28. On perusal of serological report at Exh.126 it is
evident that the blood group of deceased Devang at sample
No. "E" is of "B" group. The sample at Nos. "B"- T-shirt, "B1"
- Pent and "B2" - Handkerchief are that of Nirav found with
blood stain of group "B" that of deceased where as sample at
Nos. "C" - Pent and "C2" - T-shirt are of Dhaval found with
blood stain of group "B" that of the deceased. Thus, having
found blood group of deceased from the clothes wore by
accused while committing crime also proves the complicity
of the accused and this incriminating circumstance also
goes against the accused.
29. As far as the argument of owner ship of the car
being not proved and non examination of the owner where
the accused was residing on rent is concerned these facts
pales in to insignificance since the factum of accused having
used the car is proved from the evidence of toll plaza
computer operator as well as recovery at the instance of the
accused and in similar fashion the recovery form the rented
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house at the instance of the accused is also proved. Thus,
this argument is required to be rejected.
30. As far as argument by the learned advocate for
the accused regarding recovery/discovery of car, bag of the
deceased, clothes of the accused and weapons at the
instance of Nirav at about 120 Kms. away from Sidhpur is
not possible since accused Nirav came to be arrested within
15 hours of lodging of the complaint is concerned, it is
required to be noted that it hardly takes two to two and a
half hours to travel from Sidhpur to Ahmedabad and thus in
all during 15 hours at least one can travel three times
between Sidhpur to Ahmedabad back and forth. This
argument is thus rejected at the threshold.
31. It is also argued that no person would proceed at
his residence with blood stained clothes more particularity
when the residence is in middle of the city in Ahmedabad
namely at Odhav and thus blood stained clothes recovered
at the instance of Nirav from his rented house cannot be
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believed. This argument is also required to be rejected since
the accused had travel from Sidhpur to Ahmedabd in car
and at his instance the car as well as the clothes and
weapons and the bag of the deceased was found from the
rented premises in Ahmedabad at Odhav.
32. It is also argued that the prosecution has also not
examined Deviprasad and Avinash Thakar who were
acquaintance with the complainant and relevant witnesses
to prove the version of the complainant regarding ransom
call. However, as per settled principle of law and as per
Section 134 of the Indian Evidence Act what is important is
not the number of witness to prove a case but the quality of
the witnesses who depose before the court. Thus, non
examination of these witness is not fatal to the prosecution
since from the deposition of the complainant it is proved
beyond reasonable doubt that his son was kidnapped and
ransom was also asked and that if the complainant
informed the police or any one his son will be murdered.
Thus, when the complainant's evidence is clinching on the
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aspect of kidnapping and rassom and threat of murdering
his son if the information is given to police or any one else,
the prosecution is not under obligation to examine other
witnesses.
33. Thus, Considering overall facts and
circumstances of the case, the manner in which the crime is
committed, the manner in which the prosecution has proved
its case based on last seen together theory, extra judicial
confession, presence of car utilized in committing crime at
the toll plaza, presence of accused persons at Hotel
Shahkar, discovery made at the instance of both the
accused persons and the factum of deceased having been
kidnapped from pick-up stand at Bindu Sarovar Park,
calling from the mobile of the deceased which was of the
father of the deceased Hiteshkumar Thakar and initially
informing the father of the deceased of his son having been
kidnapped and subsequently informing that his son would
be murdered if the complainant informed police or anyone
and ultimately murdering the deceased by the accused is
proved beyond reasonable doubt. Even, both the accused
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persons have merely denied the evidence against them in
the statements recorded under the provisions of Section 313
of the Cr.P.C. by stating that it is not true or stating that it
is not correct or that they are not aware or that they do not
have any knowledge and on asking them whether they want
to state anything to which both the accused have stated
that they have not committed any crime and wrong
complaint has been lodged against them, no explanation
worth the name for the evidence against them is coming on
record from the statements under Section 313 of CrPC.
34. Thus, even if the extra judicial confession is not
taken into consideration, the prosecution has proved its
case namely :
(i) Both the accused seen last together with the deceased
at around 8:00 A.M. on the date of incident Bindu Park
pick up stand.
(ii) Both the accused seen at Hotel Shahkar along with the
car utilized in committing crime.
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(iii) Car utilized by the accused in committing the crime
found traveling towards Abu road from Sidhpur at toll
plaza.
(iv) Accused having called from mobile of the complainant
which was used by the deceased at the time of
incidence and informing that his son is kidnapped and
asking for ransom and further threatening not to
inform police or any one, else his son will be murdered.
(v) Body of the deceased discovered at the instance of the
accused.
(vi) Bag of the deceased, car utilized in committing crime,
clothes wore by both the accused persons while
committing crime and weapons discovered at the
instance of the accused.
(vii) Non explanation of evidence put before both the
accused under Section 313 of C.R.P.C.
(viii) Conduct of both the accused being relevant by virtue
of Section 8 of the Indian Evidence Act.
(ix) Extra judicial confession comes to the aid of other
evidence which is proved beyond reasonable doubt since
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even if the extra judicial confession is not considered the
entire chain of circumstances is proved without break
independently and collectively beyond reasonable doubt
pointing finger of guilt only towards the accused.
35. Section 7 of the Indian Evidence Act recognizes
facts that are related to the cause, occasion, or effect of
relevant events. If the presence of the accused with the
victim is established, it becomes a relevant fact. In the
present case, the presence of both the accused with victim
before the murder is proved. Section 106 of the Indian
Evidence Act shifts the burden of proof to the accused when
certain facts are exclusively within their knowledge. If the
accused were last seen with the deceased, they must
provide an explanation for their whereabouts afterward. No
explanation in this regards is coming forth from the accused
persons. Explanation in 313 Cr.P.C. statement is also silent
on this aspect as well as for each and every circumstances
and the entire evidence against them. Section 114 of the
Indian Evidence Act permits courts to presume the
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existence of certain facts based on natural human conduct
and common occurrences. When the accused was last seen
with the victim, and no alternative explanation is provided
by the accused persons, we infer their involvement in the
crime for the reasons stated hereinabove. As per Section 8
of the Indian Evidence Act the conduct of the accused
person is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact. In the case
on hand the evidence of the circumstance, that the accused
pointed out to the police officer the place where the dead
body of the kidnapped person was found would be
admissible as conduct under Section 8. Thus, the
prosecution has proved that the chain of evidence is
complete, the proof is conclusive in nature which
establishes guilt of the accused only and we see no
hypothesis except the one that the accused have committed
the crime.
36. Learned advocates for the accused have relied on
following decisions :
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(1) Gambhir Singh Vs. State of Uttar Pradesh, reported in
2025 INSC 164;
(2) Padman Bibhar Vs. State of Section 8 Odisha, reported
in 2025 INSC 751;
(3) Shanti Devi Vs. State of Haryana, reported in 2025 (0)
AIJEL-SC 75738;
(4) Shail Kumari Vs. State of Chhattisgarh, reported in 2025
(0) AIJEL-SC 75681;
(5) Suresh Chandra and Another Vs. State of Uttar Pradesh,
reported in 2025 (0) AIJEL-SC 74693;
(6) Pintoo Somabhai Bariya Vs. State of Gujarat, reported in
2022 (0) AIJEL-SC 244378;
(7) Ashish Jain Vs. Makrand Singh, reported in 2019 (0)
AIJEL-SC 63366 and
(8) Jagdishbhai Mohanbhai Vasava Vs. State of Gujarat,
reported in 2013 (0) AIJEL-HC 203408.
36.1 We have perused all the judgments relied upon
by the learned advocates for the accused and have also kept
in mind the principles laid down in the said judgments.
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However, it is required to be noted that in the case of
Manager Vs. Pawan Kumar Dubey, reported in 1976 AIR
1766 wherein the Honourable Supreme Court has stated
that :
"It is the rule deducible from the
application of law to the facts and
circumstances of a case which
constitutes its ratio decidendi and not
some conclusion based upon facts
which may appear to be similar. One
additional or different fact can make a
world of difference between conclusions
in two cases even when the same
principles are applied in each case to
similar facts."
36.2 Thus, considering the aforestated principles, we
have not dealt with each and every cases relied upon by the
learned advocates for the appellants. However, as stated
hereinabove we have kept in mind the principles while
deciding the present case since all the cited cases are on
different facts.
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37. Thus, for the reasons stated herein above, both
the appeals stand rejected. The judgment and order of
conviction dated 10.5.2019 passed by the learned 2 nd
Additional Sessions Judge, Patan in Sessions Case No.99 of
2015 is upheld. The appellants - original accused, if on bail,
shall surrender before the jail authority within a period of
four weeks from today.
R & P be sent back forthwith.
(ILESH J. VORA,J)
(P. M. RAVAL, J)
H.M. PATHAN
