REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1146 OF 2008
Rameshbhai Mohanbhai Koli & Ors. .... Appellant(s)
Versus
State of Gujarat .... Respondent(s)
WITH
CRIMINAL APPEAL NO. 1166 OF 2009
JUDGMENT
P. Sathasivam, J.
1) These appeals are directed against the impugned
judgment and final order dated 25.10.2007 passed by the
High Court of Gujarat at Ahmedabad in Criminal Appeal
No. 1422 of 2005 whereby the High Court dismissed the
appeal filed by the appellants confirming the order dated
23.08.2004 passed by the trial Court convicting them
under Section 302 of the India Penal Code (hereinafter
1
referred to as `IPC’) read with Section 34 IPC and also
under Section 135 of the Bombay Police Act awarding
each of them to undergo rigorous imprisonment (RI) for
life and fine of Rs.5,000/-, in default, to further undergo
RI for one year for the offences under Section 302 read
with Section 34 and also awarded RI for one year and fine
of Rs.1,000/-, in default, RI for one month for the offence
under Section 135 of the Bombay Police Act.
2) “The case of the prosecution” as unfolded during
the course of investigation was:
a) On 16.09.1999, at about 1715 hrs., Prakashbhai
Raveshia, (Chairman of Morbi Nagrik Bank, Morbi),
the deceased, accompanied with Ashokbhai Laljibhai
Kathrani PW 106, Director in the aforesaid Bank
came out of the Bank. It is the case of the
prosecution that immediately after coming out of the
Bank, Rameshbhai Mohanbhai Koli – appellant
herein approached the deceased and asked him
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about the loan facility and the manner in which the
loan application form was to be filled. During the
course of investigation, it was further revealed that
immediately thereafter, Ramesbhai Mohanbhai Koli
(A1), appellant No. 1 herein, exhorted the other
appellants (A2-A4) to attack the deceased. On such
exhortation, A2-A4 attacked the deceased with knives
and later on A1 joined them. During the
investigation, it was further stated by the witnesses
that, after the attack, two of the accused ran away on
a motorcycle from the place of occurrence. It is
important to mention here that in addition to PW-
106, the aforesaid incident was witnessed by as many
as 8 witnesses, some of whom were natural witnesses
being tea or pan vendor present at the place of
occurrence. It was further revealed that original
Accused Nos. 5-7 had conspired to eliminate
Prakashbhai Raveshia and in furtherance of that
conspiracy engaged the services of the appellants
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herein. During the panchnama (Exh.384) of the
place of occurrence amongst other articles, a blood
stained loan application form bearing the name and
address of the appellant Rameshbhai Mohanbhai Koli
(A1) was seized by the police. As regards the injuries
on the person of the deceased, the post-mortem
report (Exh. 206) revealed that the deceased suffered
18 injuries out of which 17 were incised wounds. It
may be mentioned here that large number of
injuries/incised wounds were found on the neck and
the chest of the deceased.
(b) During the course of further investigation, after
arrest of the appellants herein, all of them made
separate disclosure statements showing their
willingness to disclose the respective places where
they had hidden the knives used in the commission
of offence. Pursuant to such disclosures made by the
appellants, they led the police to the places where
they have concealed the knives used in the
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commission of offence. The knives recovered at the
instance of the appellants Rameshbhai Mohanbhai
Koli (A1), Narottam Prejji Koli (A2) and Pravin @ Dalo
Lashubhai Koli (A4) were stained with blood. Blood
stained clothes worn by Pravin @ Dalo Lashubhai
Koli (A4) at the time of incident were also got
recovered. The police also recovered the blood
stained seat of the motorcycle used by two of the
accused to run away from the place of occurrence.
c) The aforesaid articles, namely, the loan application
form, the knives, blood stained clothes of the
appellant Pravin @ Dalo Lashubhai Koli (A4) and the
blood stained seat of the motorcycle were sent for
forensic examination. The FSL and serological report
(Exh 250) opined that the blood stains on the
aforesaid articles were of group `O’. The blood group
of the deceased also belongs to group `O’.
d) On completion of the investigation, a charge sheet
was filed in the Court of J.M.F.C. Morbi who
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committed the case to the Court of Additional
Sessions Judge at Morbi where it was numbered as
Sessions Case No. 34 of 2000.
e) The Additional Sessions Judge II, Fast Track Court,
Gondol at District Rajkot recorded the evidence,
heard the parties, appreciated the evidence and vide
judgment dated 23.08.2004 convicted accused Nos.
1, 2 and 3 and original accused No.4 for the offences
punishable, as afore-mentioned, and original accused
Nos. 5, 6 and 7 were convicted for the offences under
Section 302 read with Section 120-B IPC and
sentenced them to suffer R.I for life and imposed a
fine of Rs.5,000/-, in default, R.I. for one year, and
also further directed accused Nos. 5 and 6 each to
pay Rs.1,50,000/- as compensation to the widow of
the deceased Prakashbhai Raveshia. However, the
trial Judge acquitted accused No.8 for the offences
punishable under Section 312 IPC for harbouring the
accused.
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f) The appellants herein with original accused No.4
preferred Criminal Appeal No. 1422 of 2005 in the
High Court of Gujarat at Ahmedabad challenging the
judgment and order of conviction passed by the
Additional Sessions Judge, Second Fast Track Court,
Gondal.
g) The High Court, by the impugned judgment and final
order dated 25.10.2007, confirmed the conviction of
the appellants herein and dismissed their appeal.
However, Criminal Appeal Nos. 1544, 1925 and 2234
of 2004 which were also heard together along with
the present appellant’s appeal and by the same
impugned judgment, confirmed the conviction of the
appellant and accused No.4 and allowed the appeal
filed by the original accused Nos. 5, 6 and 7 and
acquitted them of the alleged offences and set aside
the sentence awarded to them holding that there was
no conspiracy.
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3) Heard Mr. Vimal Chandra S. Dave, learned counsel for
the appellants and Mr. Nitin Sangra, learned counsel for
the respondent-State.
Points for determination:
4) (i) Whether the High Court was justified in confirming
the conviction and sentence imposed by the trial Court
when all the eye-witnesses did not support the case of the
prosecution as against accused Nos. 1, 2 and 3 i.e., the
appellants herein;
(ii) Whether the Courts below are justified in convicting
and awarding life sentence based on circumstantial
evidence;
(iii) Since the whole prosecution case hinges upon
circumstantial evidence which in the present case does
not complete the chain as there are missing links, in such
event conviction is sustainable.
5) We have carefully perused the relevant materials and
considered the rival submissions.
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Discussion
6) It was highlighted by the learned counsel for the
appellants that the appellants were not instrumental in
committing the crime as they had no motive or mens rea to
commit murder of Prakashbhai Raveshia who had rivalry with
accused Nos. 6 and 7 and who had so many enemies in
political field. It was also projected that since all the eye-
witnesses examined on the side of the prosecution turned
hostile, their statements cannot be relied upon in the absence
of other cogent, convincing and reliable evidence. It was also
their case that the test identification parade also failed to
bring home the complexity of the appellants and mere recovery
of knife and other materials, panchnama of the scene of
occurrence and FSL Report are not sufficient to convict the
appellants.
7) In the instant case, all the eye-witnesses examined on
the prosecution side have en bloc turned hostile due to
influence and pressure of the accused persons which included
a sitting MLA of the ruling party. This aspect has been
analyzed by the trial Court while convicting and awarding
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sentence on the accused/appellants. This Court has noted
and observed in a large number of cases that witnesses may
lie but circumstances do not. On going through the entire
materials, particularly, the chain of circumstances, we are
satisfied that the prosecution has been successful in bringing
home the guilt of the appellants herein for the commission of
murder of Prakashbhai Raveshia and the eye-witnesses
turning hostile, do not, in any manner, crate a dent in the
case of the prosecution.
Hostile witness
8) It is settled legal proposition that the evidence of a
prosecution witness cannot be rejected in toto merely because
the prosecution chose to treat him as hostile and cross
examine him. The evidence of such witnesses cannot be
treated as effaced or washed off the record altogether but the
same can be accepted to the extent that their version is found
to be dependable on a careful scrutiny thereof. (vide Bhagwan
Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra
Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad
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Akbar v. State of Karnataka, AIR 1979 SC 1848 and Khujji
@ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991
SC 1853).
9) In State of U.P. v. Ramesh Prasad Misra and Anr., AIR
1996 SC 2766, this Court held that evidence of a hostile
witness would not be totally rejected if spoken in favour of the
prosecution or the accused but required to be subjected to
close scrutiny and that portion of the evidence which is
consistent with the case of the prosecution or defence can be
relied upon. A similar view has been reiterated by this Court in
Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC
543; Gagan Kanojia and Anr. v. State of Punjab, (2006) 13
SCC 516; Radha Mohan Singh @ Lal Saheb and Ors. v.
State of U.P., AIR 2006 SC 951; Sarvesh Naraian Shukla v.
Daroga Singh and Ors., AIR 2008 SC 320 and Subbu Singh
v. State, (2009) 6 SCC 462.
10) In C. Muniappan & Ors. vs. State of Tamil Nadu, JT
2010 (9) SC 95, this Court, after considering all the earlier
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decisions on this point, summarized the law applicable to the
case of hostile witnesses as under:
“70.1 The evidence of a hostile witness cannot be discarded
as a whole, and relevant parts thereof which are admissible
in law, can be used by the prosecution or the defence.
70.2 In the instant case, some of the material witnesses i.e.
B. Kamal (PW.86); and R. Maruthu (PW.51) turned hostile.
Their evidence has been taken into consideration by the
courts below strictly in accordance with law.
70.3 Some omissions, improvements in the evidence of the
PWs have been pointed out by the learned Counsel for the
appellants, but we find them to be very trivial in nature.
71. It is settled proposition of law that even if there are some
omissions, contradictions and discrepancies, the entire
evidence cannot be disregarded. After exercising care and
caution and sifting through the evidence to separate truth
from untruth, exaggeration and improvements, the court
comes to a conclusion as to whether the residuary evidence
is sufficient to convict the accused. Thus, an undue
importance should not be attached to omissions,
contradictions and discrepancies which do not go to the
heart of the matter and shake the basic version of the
prosecution’s witness. As the mental abilities of a human
being cannot be expected to be attuned to absorb all the
details of the incident, minor discrepancies are bound to
occur in the statements of witnesses. (vide Sohrab and Anr.
v. The State of M.P., AIR 1972 SC 2020; State of U.P. v.
M.K. Anthony, AIR 1985 SC 48; Bharwada Bhogini Bhai
Hirji Bhai v. State of Gujarat, AIR 1983 SC 753; State of
Rajasthan v. Om Prakash, AIR 2007 SC 2257; Prithu @
Prithi Chand and Anr. v. State of Himachal Pradesh,
(2009) 11 SCC 588; State of U.P. v. Santosh Kumar and
Ors., (2009) 9 SCC 626 and State v. Saravanan and Anr,
AIR 2009 SC 151)”
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11) From the analysis of the statements, answers in the
cross-examination, earlier statement under Section 164 of
Cr.P.C. before the Magistrate and in the light of the above
principles, we agree with the conclusion arrived at by the trial
Court and approved by the High Court.
12) The piece of evidence which the prosecution sought to
rely upon against the appellants is the various panchnamas
including discovery panchnama of the weapons i.e., knives
used in the commission of the offence, recovery of motorcycle,
NC register, recovery of seat of motorcycle. The prosecution
highlighted that A1 to A4 have shown their willingness to show
the muddamal knives which have been used for murdering
Prakashbhai Raveshia and, therefore, panchas were called and
preliminary panchnamas were drawn and thereafter, at the
instance of A1 to A4 knives were recovered which were stained
with blood group of `O’ which is similar to the blood group of
the deceased Prakashbhai Raveshia. The prosecution has
examined and relied upon Rameshbhai Arjan PW-14,
(Exh.292), who is panch witness of the discovery panchnama
of the recovery of knife (muddamal article No. 25) at the
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instance of A3. The prosecution has also examined and relied
upon the evidence of Navinchandra Parshottam Shah PW-15,
(Exh.302), who is panch witness of the panchnama of recovery
of knife (muddamal Article No. 37) recovered at the instance of
A2. The other witness examined and relied on by the
prosecution is Bhavanbhai Jagabhai Malkiya, PW-18
(Exh.311), who is the panch witness of the panchnama under
which the muddamal knife (Article No. 33) was recovered at
the instance of A4 which was used for commission of the
offence. The prosecution has also examined and relied upon
the evidence of Govindlal Shantilal Joshi, PW-26 (Exh.338),
who is the panch witness of the discovery panchnama of the
muddamal knife (Article No. 28) recovered at the instance of
A1 and Ex.340 is the panchnama of the mud. These
panchnamas are Exhs.293, 303, 312, 339 and 340. The
above panch witnesses have confirmed the contents of
panchnamas in their oral testimony before the Court. They
have also asserted that A1 to A4 had shown their willingness
and on this basis, the preliminary panchnama was drawn and
thereafter, the accused have taken the panchas and the police
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personnel at the place where they have concealed the knives
and recovered the knives from those places. It is true that in
muddamal article No. 25 which was recovered at the instance
of A3 was not having a blood stain. This aspect had been
considered by the trial Court and rightly concluded that the
said muddamal article cannot be ignored.
13) As rightly believed by the trial Court as well as the High
Court as to the oral testimony of those panch witnesses as
well as the panchnamas, we also feel that there is no manner
of doubt in the statements made by the accused, their
willingness and the preparation of preliminary panchnamas
and finally recovery of concealed knives from the places shown
by the accused. This material evidence of discovery of knives
through proper panchnamas is sufficient to connect the
accused with the crime.
14) Another important piece of evidence in the form of
panchnama of the scene of offence is Exh.384. The
prosecution has relied upon the oral testimony of Vijaybhai
Bhagvanjibhai Zariya, PW-35 Exh.383 and Babubhai
Chakubhai Vania, PW-68 Exh.519. It is true that both the
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panchas have turned hostile and not supported the case of the
prosecution, however, panchnama has been exhibited in the
cross-examination of PW-35. As requested by the State
counsel, we verified the said panchnama which is available in
the paper-book (vide page No. 2081) which is an application
form bearing No. 001351 of A1 Rameshbhai Mohanbhai
Vaghani with his residential address was found wherein he
applied for a loan of Rs.60,000/- for the purpose of
purchasing rickshaw and on the said form also blood stains
were found. In view of the same, the said form was recovered
while preparing panchnama of scene of offence. This
document is one of the circumstances against A1 about his
presence at the time of occurrence at the place of incident.
This evidence can be relied upon to show that A1 was present
at the place of offence at the relevant time.
15) In the same manner, though panchas of several other
panchnamas in respect of recovery of handkerchief, seat of
motor cycle and other articles with blood stains have turned
hostile and not supported the prosecution case, those
panchnamas were exhibited during the examination of
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investigating officer and for a limited purpose, therefore, they
can be relied upon.
16) Yet another piece of evidence is FSL report (Exh.250),
forwarding letters of muddamal weapons, clothes, etc. which
are at Exhs. 244, 245, 246, 247, 248, 249 and 250
respectively. The perusal of the FSL report clearly shows that
the muddamal articles were found to be stained with blood of
`O’ group which is the same as blood group of the deceased
Prakashbhai Raveshia. This is also one of the important
circumstances which connect the accused with the crime. All
these materials and the evidence of panchas, as discussed,
and circumstances, unmistakenly lead to the conclusion that
A1 to A4 are the culprits and the complicity for commission of
murder of the deceased is proved. These aspects have been
fully discussed by the trial Court and rightly affirmed by the
High Court. We also agree with these aspects in toto.
17) In Mehbub Samsuddin Malek and Others vs. State of
Gujarat, (1996) 10 SCC 480, this Court held that recovery of
gupti at the instance of the accused from a dilapidated
building concealed below a heap of earth which found stained
17
with human blood group of `B’. Clothes of the deceased also
stained with the same blood group, to lead evidence regarding
discovery of blood cannot be disbelieved merely because the
house is in a dilapidated condition and it cannot be said that
the gupti was found from an open place accessible to all.
18) The recovery of respective weapons of offence at the
instance of the appellants in the instant case speaks volume.
The evidence in the present case convincingly establishes that
the respective places from where the recoveries were effected
were exclusively within the knowledge of the appellants and
the same could not have been effected by the investigating
agency in the absence of the disclosure statements made by
the appellants.
19) Another factor which strengthens the case of the
prosecution against the appellants is the serological report
which opines that the knives recovered at the instance of A1,
A2, & A4 contained blood of group `O’ which is that of the
deceased. This circumstance is highly incriminating and
conclusively establishes the case against the appellants. All
the recovery panchnamas in the instant case were fully
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supported by the panch witnesses i.e. PW-14, PW-15, PW-18
and PW-26.
20) The recovery of the blood-stained seat of the motorcycle
used by the accused to flee from the scene of offence which as
per the FSL report contained blood of group `O’ is another vital
circumstance against the appellants herein.
21) The appellants herein have denied the factum of
recoveries at their instance is a false plea inasmuch as the
recoveries have been duly proved by the prosecution by
leading cogent and reliable evidence which has not been
shaken by the defence. A false plea taken by an accused in a
case of circumstantial evidence is an additional link in the
chain of circumstances. [Vide Sharad Birdhichand Sarda
vs. State of Maharashtra, (1984) 4 SCC 116 and Mehbub
Samsuddin Malek & Ors. vs. State of Gujarat (1996) 10
SCC 480].
22) We have already observed that the prosecution has
established that FSL report has clearly certified that the blood
found on the knife was of human origin. This question fell for
19
consideration in State of Rajasthan vs. Teja Ram & Ors.,
(1999) 3 SCC 507 and this Court held that it would be an
incriminating circumstance if the blood on the weapon was
found to be of human origin. The same view has been
reiterated in Molai and Another vs. State of M.P., (1999) 9
SCC 581.
Evidence of Investigating Officer
23) An argument was advanced about reliance based on the
evidence of investigating officer. This Court in State of
U.P. vs. Krishna Gopal and Another, (1988) 4 SCC 302 has
held that courts of law have to judge the evidence before them
by applying the well recognized test of basic human
probabilities. Prima facie, public servants must be presumed
to act honestly and conscientiously and their evidence has to
be assessed on its intrinsic worth and cannot be discarded
merely on the ground that being public servants they are
interested in the success of their case. [vide State of Kerala
vs. M. M. Mathew & Anr., (1978) 4 SCC 65)]
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24) In Modan Singh vs. State of Rajasthan, (1978) 4 SCC
435, it was observed that where the evidence of the
investigating officer who recovered the material objects is
convincing, the evidence as to recovery need not be rejected on
the ground that seizure witnesses did not support the
prosecution version. Similar view was expressed in Mohd.
Aslam vs. State of Maharashtra, (2001) 9 SCC 362. In
Anter Singh vs. State of Rajasthan, (2004) 10 SCC 657, it
was further held that even if panch witnesses turn hostile,
which happens very often in criminal cases, the evidence of
the person who effected the recovery would not stand vitiated.
25) This Court has held in large number of cases that merely
because the panch-witnesses have turned hostile is no ground
to reject the evidence if the same is based on the testimony of
the Investigating Officer alone. In the instant case, it is not
the case of defence that the testimony of Investigating Officer
suffer from any infirmity or doubt. [Vide Modan Singh’s case
(supra) Krishna Gopal’s case (supra) and Anter Singh’s
case (supra)].
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26) In view of the above principles and in the light of the
discussion about the recovery as stated and concluded earlier,
those materials produced by the prosecution are relevant,
acceptable and rightly connected these circumstances with the
appellants.
27) Finally, appellants relied on the acquittal of co-accused
Nos. 5 to 7. The acquittal of accused Nos. 5 to 7 does not in
any manner wash away the case against the appellants which
has been convincingly established on the basis of
circumstances. It is relevant to note that the recovery of blood
stained loan form application bearing name and address of
appellant Rameshbhai Mohanbhai Koli (A1) from the scene of
offence and the serological report which opines the blood to be
of group `O’ which is the blood group of the deceased
conclusively establishes the presence of A-1 at the scene of
offence. Even though the panch-witness PW-35, Vijaybhai has
turned hostile to the prosecution but the spot panchnama has
been cogently and convincingly proved through the testimony
of the Investigating Officer PW-160.
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28) In the light of the above discussion, we are unable to
accept the case of the appellants, on the other hand, we are
satisfied that the prosecution has established its case insofar
as the appellants and rightly convicted and sentenced by the
trial Court and affirmed by the High Court. The appeals are
devoid of any merits, consequently, they are dismissed.
……………………………………J.
(P. SATHASIVAM)
……………………………………J.
(ANIL R. DAVE)
NEW DELHI;
OCTOBER 20, 2010.
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