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CR.A/2102/2004 21/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2102 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
NAIMESHKUMAR
@ LALO SHANTILAL SHELANI
Versus
STATE
OF GUJARAT
=========================================================
Appearance
:
MR
TEJAS M BAROT for Appellant.
MR MAULIK G.NANAVATI, ADDL.APUBLIC
PROSECUTOR for the
State.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 24/02/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appellant was charged with the offence of murder
of Nirmalaben Jayshanker Dave of Mumbai origin staying in Vada Bazar
area of Dakor in Kheda District, allegedly committed on 14.10.2002 at
about 12.45 P.M, in Bungalow No.8 of Ganganagar Society. The murder
was committed by throttling the deceased. The other charge against
the appellant was that after committing the murder, he wrapped the
dead body in a bed sheet and put it in a gunny bag and after
stitching the said gunny bag, put the dead body in the store-room and
tried to cause disappearance of the evidence. He was tried by the
Sessions Court, Kheda camping at Anand, in Sessions Case No.8/2003.
The Sessions Court came to the conclusion that the charges levelled
against him were proved by the prosecution and sentenced him to
imprisonment for life for the offence of murder and imposed a fine of
Rs.4 Lakhs, in default to undergo further imprisonment for three
years. The Sessions Court then imposed no separate sentence for the
offence punishable under Section 201 of the Indian Penal Code [ IPC
for short]. The Sessions Court directed that if the appellant paid
the fine, an amount of Rs.2 Lakhs would be paid to the heirs/legal
representatives of victim
Nirmalaben by way of compensation. The said judgment was delivered on
27.08.2004. Hence, this appeal.
2. The
facts of the prosecution case, in brief, are that victim Nirmalaben
was formerly residing at Mumbai and was working as a teacher. After
her retirement, she liquidated her properties and came down to Dakor
to lead a religious life. She was staying in a room in Vada-Bazar
area and used to have her meals outside. It is the case of the
prosecution that the appellant developed good relationship with the
victim and acquired her faith and trust. The appellant, misusing his
position, borrowed money from the victim. Lastly the deceased had
withdrawn an amount of Rs. 4,20,000/- from her account and an amount
of Rs. 4,00,000/- was allegedly handed over to the appellant. The
said amount of Rs.4,00,000/- appears to have been then deposited by
the appellant in his account.
2.1 It
appears that for some reason, the money was demanded back by the
victim and, therefore, a cheque for RS. 4,20,000/- was issued on
9.10.2002 by the appellant in favour of the victim. The said cheque
was returned by the Bank with an endorsement that the signature of
the drawer differed. It then appears that the appellant executed an
undertaking on 11.10.2002 to pay the said amount of Rs. 4,20,000/-
with interest at the rate of 11% by 14.10.2002. It also appears that
on the same day, the appellant executed another document on a revenue
stamp, whereby he undertook to repay the amount of Rs.4,20,000/- on
14.10.2002 with no specific rate of interest.
2.2 As
per the prosecution case, it appears that on 14.10.2002, the victim
was lastly seen while going for taking lunch. Thereafter she was not
seen. Soon thereafter, the appellant was seen in the vicinity of
Bungalow No.8 of Ganganagar Society where-from the dead body of the
victim was later detected. Thereafter, on 17.10.2002, noticing foul
smell spreading from the said Bungalow No.8 of Ganganagar Society,
information was given to the owner of the house, staying in
Ahmedabad, and the police by a neighbour. The house was opened with
the key produced by the appellant’s mother and the dead body of the
victim was found from the store-room tied in a gunny bag. The dead
body was in a degenerated condition. Inquest panchnama was prepared
and the dead body was sent for post-mortem. The cause of death was
opined to be asphyxia due to ligature strangulation and smothering.
The dead body was then handed over to the known persons. Later on,
husband of niece of the victim, upon learning about the death of a
relative from Mumbai came to Dakor and identified the clothes
recovered from the dead body to be that of the victim. The appellant
was absconding and appeared before the police on 24.10.2002 and the
investigation indicated that the appellant moved from place to place
ranging from Surat in south Gujarat to Abu, a place located towards
north Gujarat. Ultimately, the police found that there was sufficient
material to connect the appellant with the crime and, therefore,
filed charge sheet against him in the Court of learned J.M.F.C.
Dakor, who, in turn, committed the case to the Court of Sessions and
Sessions Case No. 8/2003 came to be registered.
3. Charge
was framed against the appellant-accused at Exh.3, to which he
pleaded not guilty and came to be tried and convicted, as stated in
the earlier part of this judgment.
4. We
have heard learned advocate Mr.Tejas Barot appearing for the
appellant, and learned A.P.P. Mr. Maulik Nanavati for the State.
5. Learned
advocate Mr.Barot submitted that the prosecution case depends on
circumstantial evidence and there are many missing links, which are
overlooked by the trial Court while recording conviction and,
therefore, the appeal deserves to be allowed.
5.1 Mr.Barot
submitted that there is no evidence to show that the deceased was in
the company of the appellant lastly, nor is there any evidence to
show that the deceased ever came to Bungalow No.8 in the proximity of
time of the alleged incident. He submitted that there is no evidence
to show that the appellant entered the said Bungalow No.8 of
Ganganagar Society around the time when the incident occurred. He
submitted further that simply because the appellant borrowed some
money from the deceased, motive cannot be attributed to the appellant
for causing murder of the victim. According to Mr.Barot, there is no
evidence on record to show that the dead body, which was found, was
that of victim Nirmalaben Jayshanker Dave. Mr.Barot submitted that
the evidence about the clothes of the deceased is also inconsistent.
Further, there is no evidence to show that the key of the said
Bungalow No.8 of Ganganagar Society was in exclusive possession or
under exclusive control of the appellant. He submitted that in face
of these missing links, the prosecution cannot be said to have proved
its case beyond reasonable doubt.
5.2 Mr.Barot
also submitted that the investigation is also not properly carried
out. He submitted that no bleeding injury was found on the person of
the deceased, more particularly when the dead body was found in a
puddle of blood, as stated in the panchnama. He submitted that in the
inquest panchnama, there is no reference to any string being tied
around the neck of the deceased which was noticed by the doctor
performing post-mortem. Similarly, the dead body was found in a green
coloured bed-sheet and what had happened to that bed-sheet is not
coming on record. The fact remains that such bed-sheet was not sent
to FSL for chemical examination. The investigation is, therefore,
faulty and the benefit thereof may be given to the appellant. Mr.
Barot, therefore, submitted that the appeal may be allowed and the
conviction of the appellant may be set aside.
6. Learned
A.P.P. Mr.Nanavati has opposed this appeal. According to him, in a
case of circumstantial evidence, there may not be any direct or
cogent evidence, but, the circumstances must lead to hypothesis of
guilt of the accused. In the instant case, the appellant had strong
motive. He had borrowed money from the deceased, which he could not
repay to her and probably pressure started building upon him, as a
result of which he had to issue initially a cheque followed by two
promissory-notes. From the day on which the appellant is alleged to
have promised to make final repayment, the deceased goes missing and
is later found dead in a house to which the appellant had an access.
Mr. Nanavati submitted that it is true that the appellant was not the
sole person who had access, but, the appellant was seen in the
proximity of time and place of the incident and thereafter the
appellant himself also was not traceable and surrendered only on
24.10.2002. His subsequent conduct of fleeing from the place of the
incident for almost ten days would be a strong circumstance against
him, more so when the appellant has not even tried to explain his
absence from the place of the incident and his whereabouts during
that period. Mr.Nanavati submitted that the clothes of the deceased
were found from the same gunny bag from which the dead body was found
and the same had been identified by the husband of the niece of the
victim, which would fix the identity of the victim. The deceased
appears to have been dressing in a peculiar way i.e. wearing a
petticoat under shirt, which would make identity easier. He further
submitted that at the instance of the appellant, there has been
discovery of blood stained clothes allegedly worn by the accused at
the time of the offence. Mr.Nanavati, therefore, submitted that the
appeal may be dismissed.
7. We
have examined the record and proceedings of the case in the context
of rival side submissions.
8. From
the evidence, we find that the appellant had developed close
proximity with the deceased and had taken money from the victim. On
the last occasion i.e. on 14.8.2002, an amount of Rs.4,20,000/- was
withdrawn by the deceased by drawing a cheque in her own favour, and
an amount of Rs. 4,00,000/- was deposited in the account of the
appellant on 16.8.2002. It appears that the amount was called back by
the victim and the appellant, therefore, wrote a cheque in favour of
the victim drawn on Bank of India, Manekchowk, Ahmedabad Branch on
9.10.2002 for an amount of Rs. 4,20,000. The said cheque was returned
with an endorsement that the signature of the drawer differed.
8.1 Then
it appears that the appellant executed two writings on 11.10.2002
whereby he agreed to pay Rs.4,20,000/- to the victim with interest on
14.10.2002. It also appears that such payment has not been made by
the appellant nor it is his case that the amount is paid.
8.2 It
emerges from the record that the deceased was not noticed after
14.10.2002. Therefore, witness Dwarkadas Mahant, examined as PW.3, at
Exh.21, made inquiry at the place where the deceased used to go for
taking lunch and was informed that lastly she had come there for
taking lunch on 14.10.2002.
8.3 Incidentally,
witness Dwarkadas Mahant (Exh.21) also deposes about the monetary
transaction between the appellant and the deceased, and the appellant
issuing cheque, the cheque bouncing and then the appellant again
executing two writings in favour of the victim. His deposition on
this aspect has remained unshaken.
9. From
the evidence of PW.1, Pradeepkumar Keshavlal Bhavsar, examined at
Exh.8, it appears that he is staying in Bungalow No.5 of Ganganagar
Society. Opposite to his house, there is Bungalow No.8. He knows
Bhikhubhai Mangubhai Shah, owner of Bungalow No.8, who is
brother-in-law of the appellant. According to him, Bhikhubhai used to
visit Dakor occasionally. One key to the house remained with
Bhikhubhai, whereas one key remained with the appellant. Bhikhubhai
had come to Dakor about a month prior to the incident. On 17.10.2002,
the witness noticed foul smell spreading from said Bungalow No.8.
Therefore, he telephoned the son of Bhikhubhai at Ahmedabad informing
him about the same and in response thereto, Bhikhubhai’s two sons
came to Dakor at about 5.00 to 6.00 P.M and then went to the police
station and informed the police about the foul smell. The key was
called for and the house was opened and dead body was detected.
9.1 However,
about three days prior to this episode, the witness says that he had
noticed the appellant coming on a motorcycle and parking the same
behind the said bungalow of Bhikhubhai. The appellant was followed by
an auto-rickshaw. The witness says that he could not identify whether
the person sitting in the rickshaw was male or female. The witness
says that he delivered an envelope to the appellant and went into his
house. He does not know, whether the person alighted from the
rickshaw or not. This witness did not support the prosecution case
and, therefore, he might have been treated as hostile to the
prosecution with the permission of the Court. However, the fact
remains that even according to this witness, in proximity of time,
the appellant was seen in the vicinity of Bungalow No.8, Ganganagar
Society, where from the dead body was later on detected. It also
transpires from his evidence that the key of the said house remained
with the appellant and the owner of the house was occasionally
visiting the house.
9.2 It
is thus clear that the appellant had an easy access to the said
Bungalow No.8 being in possession of the key. There is no material on
record to show or to infer that the deceased had any access to the
said Bungalow No.8 or that she had any reason to go there. The
panchnama of the place of incident (Exh.11) shows that the front door
of the house was locked from outside, whereas rest of the doors and
the windows were bolted from inside, which would rule out the
possibility of anybody’s entering or having entered the premises in
an unauthorised manner and having got out of the premises in an
unauthorised manner. This would also rule out the possibility of the
deceased having entered the house and having been left behind by the
accompanying person, otherwise she would have raised alarm. This
possibility gets ruled out with another fact that the house was
broken open and dead body was found wrapped in a bed-sheet and then
put in a gunny bag and again stitched with a jute-thread.
10. A
strong objection is raised on the question of identity of the victim.
In this context, it may be noted that initially the dead body was not
identified, but later on the identity of the dead body was fixed with
the evidence of husband of the niece of the victim, namely,
Vishwakant Rambhai, examined at Exh.87. He upon receiving
information, came to Dakor and learnt about the details from the
police. However, on being shown, he identified the clothes and
chapal recovered from the dead body as that of the deceased.
He also stated that he had made inquires with the cook of
Bharat-Bhuvan where the deceased used to dine and was informed that
lastly the deceased had gone there for taking meal on 14.10.2002 at
about 12.00 noon. This would, therefore, establish that the dead
body, which was found from Bungalow No.8 of Ganganagar Society was
that of victim Nirmalaben Jayshanker Dave.
11. Now
comes an important aspect about the conduct of the appellant. The
appellant was lastly seen on 14.10.2002 near Bungalow No.8 of
Ganganagar Society, where he went on a motorcycle and received an
envelope from PW.1. Thereafter he was noticed for the first time on
24.10.2002 when he surrendered before the police. In between, the
evidence on record reveals that an amount of Rs. 50,000/- was
withdrawn by him from his Bank on 16.10.2002 by drawing a cheque in
his own favour. It also comes on record that thereafter the appellant
left Dakor and continued to move from place to place i.e. Baroda,
Surat, Pune and Abu. The prosecution has examined witnesses, who
depose about the appellant having purchased a ticket from Shreenath
Travels for going to Pune on 16.10.2002 and on 19.10.2002, he
purchased ticket from Surat for going to Abu. At Surat, he stayed in
hotel Shital Plaza. However, the evidence regarding his stay at the
hotel and travelling to Surat and Abu etc., is not satisfactorily
brought on record by the prosecution. We may not go into that
question, but, the fact remains that the appellant kept away from
his ordinary place of residence soon after the incident and has
failed to explain the reason for his going away and keeping away from
his ordinary place of residence. This act, therefore, can be treated
as abscondance on the part of the appellant after the incident.
12. Thus,
the prosecution has proved the motive, presence of the appellant in
proximity to the time and place of the incident, his subsequent
conduct and identity of the victim, which would complete a chain of
circumstances against him.
13. The
defence has raised several other questions regarding non-noticing of
string around the neck of the dead body at the time of drawing
inquest panchnama, which then came to be noticed by the doctor while
performing post-mortem. In our view, this is of no consequence for
the reason that the inquest panchnama is prepared by a layman and the
post-mortem is done by an expert. Further, it is nobody’s case that
the string was planted round the dead body of the victim after
drawing of the inquest panchnama and the fact remains that the
deceased died of asphyxia. In this case, a moot question is, whether
the prosecution connects the appellant with the offence rather than
the offence was committed or not, and this in our opinion, the
prosecution is able to do successfully.
14. The
next question that was raised was regarding the puddle of blood which
was found beneath the dead body when it was detected after opening
the house and lack of injury, which would have bled so profusely. In
this context, it has to be recorded that bleeding from nostril, mouth
and ears was noticed by the doctor while performing post-mortem. We
may also notice that the dead body was in a highly degenerated
condition with maggots in it, which would obviously result into
oozing of fluid, which would normally appear like blood. The dead
body was so decomposed that the doctor performing the post-mortem
noticed hissing sound coming from the dead body and, therefore, again
recording of puddle of blood near the place where the dead body was
found lying and want of injury, which would bleed profusely, does not
raise any doubt regarding occurrence and involvement of the appellant
in the incident. This contention, therefore, cannot be accepted.
15. The
next point that was raised was about the colour of the bed-sheet. It
was indicated that the dead body was wrapped in a green coloured
bed-sheet, whereas the bed-sheet which is received by the FSL is
white with maroon design in it. We notice from the record that from
the place of incident, nothing was recovered initially. Thereafter
the dead body was sent to doctor for post-mortem and a half sleeved
shirt, a petticoat and a jute-thread 6ft & 8 inch in length were
recovered by drawing a panchnama (exh.19) on 18.10.2002 between 15.30
and 16.00 hours. Thereafter, by drawing a panchnama (exh.20), a
bed-sheet from the cot was recovered along with tiles, both stained
with blood, at the behest of the officers from the FSL. Going back to
the panchnama of the place of the incident, we find that the
bed-sheet on the cot was stained with blood which was then not
recovered, but subsequently recovered by drawing panchnama exh.20.
16. It
may be noted that the appellant had discovered clothes, worn by him
at the time of commission of the incident, by drawing a panchnama
exh.29. He discovered a pant and T-shirt. The T-shirt contained
stains of human blood having blood Group O . That blood group is
that of the accused himself as well. But, we notice from the arrest
panchnama that there were no marks of injury on his person. We also
notice that the blood group of the deceased, though not examined by
the FSL by extracting blood from the body, can be inferred to be of
O Group, for the reason that the shirt worn by the deceased,
the bed-sheet recovered from the place of the incident and the string
and the pieces of tiles recovered from the place of the incident, all
contained human blood of Group O . The end result is that the
T-shirt worn by the accused and discovered by him carried bloodstains
of group O , which is of the deceased. The possibility of that
blood being that of the appellant himself gets ruled out by the fact
that there were no marks of injury on his person. This would be an
additional link to connect the appellant with the offence.
16.1 The
fact that emerges from the discussion is that green coloured
bed-sheet, in which the dead body was wrapped and the gunny bag in
which the dead body was put, nowhere seem to have been recovered by
the police during the investigation. No question is put to the I.O in
this context, but, it can be inferred that the dead body was in a
highly decomposed condition and, therefore, the bed-sheet, in which
the dead body was wrapped and the gunny bag, in which it was put,
also must have been stained with blood and affected with maggots and
non-recovery or non-sending of these articles would not change the
merits of the case in any manner because involvement of the appellant
is not proved through ocular evidence, but circumstantial evidence,
and in absence of ocular evidence, a legitimate inference leading to
the hypothesis of guilt of the accused has to be drawn from the facts
proved. Minute details which may not affect such inference are not
relevant.
17. In
the light of the foregoing discussion, the prosecution is rightly
held to have proved a complete chain of circumstances to link up the
appellant with the offence and the trial Court was, therefore,
justified in convicting the appellant for murder of victim Nirmalaben
Jayshanker Dave. The appeal is, therefore, liable to be dismissed.
18. In
the result, the appeal is dismissed. The judgment and order of
conviction and sentence rendered by the learned Additional Sessions
Judge, Kheda camp at Anand, in Sessions Case No. 8/2003, on
27.08.2004 is hereby confirmed.
[A.L.Dave,J.]
[Harsha
Devani,J.]
(patel)
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