{"id":144760,"date":"2002-12-11T00:00:00","date_gmt":"2002-12-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kantilal-k-l-gordhandas-soni-vs-state-of-gujarat-on-11-december-2002"},"modified":"2015-05-26T13:05:18","modified_gmt":"2015-05-26T07:35:18","slug":"kantilal-k-l-gordhandas-soni-vs-state-of-gujarat-on-11-december-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kantilal-k-l-gordhandas-soni-vs-state-of-gujarat-on-11-december-2002","title":{"rendered":"Kantilal @ K.L. Gordhandas Soni vs State Of Gujarat on 11 December, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kantilal @ K.L. Gordhandas Soni vs State Of Gujarat on 11 December, 2002<\/div>\n
Author: Santosh Hegde<\/div>\n
Bench: N.Santosh Hegde, J., B.P. Singh, J.<\/div>\n
           CASE NO.:\nAppeal (crl.)  323 of 2002\n\nPETITIONER:\nKantilal @ K.L. Gordhandas Soni\n\nRESPONDENT:\nState of Gujarat\n\nDATE OF JUDGMENT: 11\/12\/2002\n\nBENCH:\nN.SANTOSH HEGDE, J. & B.P. SINGH, J.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
SANTOSH HEGDE, J<\/p>\n
The Additional Sessions Judge, Sabarkantha District
\nfound the appellant guilty in Sessions Case No. 99 of 1994  for
\noffences punishable under Sections 302, 201, 394 and 449 of
\nthe Indian Penal Code and  sentenced  him to undergo
\nimprisonment for life and  imposed a fine of Rs.500 in default
\nof  which a further sentence of one year rigorous imprisonment
\nfor the offence under Section 302. The Sessions Court further
\nimposed a sentence of two years rigorous imprisonment and a
\nfine of Rs.300 in default of which the appellant was directed to
\nundergo imprisonment for six months for an offence under
\nSection 201. The Court also awarded a sentence of five years
\nrigorous imprisonment and a fine of Rs.300 in default a further
\nsentence of one year rigorous imprisonment for offence under
\nSection 394. For the offence under Section 449 I.P.C. the
\nappellant was awarded a sentence of three years rigorous
\nimprisonment and a fine of Rs.300 in default a further sentence
\nof six months rigorous imprisonment was awarded.
\nThe appellant’s appeal before the High Court of Gujarat
\nat Ahmedabad  in Criminal Appeal No. 125 of 1997 came to be
\ndismissed by the Division Bench of the said High Court. Hence
\nthe appellant is before us in this appeal.\n<\/p>\n
Briefly stated the prosecution case is on 9th of April, 1994
\nwhen the milkman who used to supply  milk to the deceased
\nKantaben, went to her house for supplying milk in the morning,
\nhe did not get any response when he called for her. Hence,
\nwhen he peeped inside the kitchen door which was open, he
\nfound the deceased lying injured. He immediately informed the
\nrelatives and in turn the police were informed who came to the
\nplace of incident and removed the body for postmortem which
\nwas conducted on 9th of April, 1994, during which procedure
\nPW-1, Dr. Jhinabhai found among other injuries a reddish
\ninjury\tin the\tfront of the  throat where a swelling was also
\nnoticed.  On the examination of the internal injuries
\ncorresponding to the injury noticed on the throat, the Doctor
\nfound the larynx congested and there was reddish foam inside
\nbronchia. He opined the cause of death of Kanta Ben  was due
\nto strangulation. On 10th  April, 1994 by which time the son of
\nthe deceased had come to Modasa, the son gave a further report
\nto the police that on search of the house of his mother certain
\ngold jewelleries worn by her were found missing and he
\nsuspected that the cause of death of his mother was not due to
\naccident as was originally thought of before the postmortem but
\nwas murder. PW 28, who conducted the investigation having
\nsuspected the appellant on the basis of two cheques of his found
\nin the house of the deceased, on investigation found that the
\nappellant had financial transactions with the deceased,
\ntherefore, he could have been responsible for her death. When
\nhe searched for the appellant he could not find him at his usual
\nplace of residence or at work, and was able to arrest him only
\non 11th of May, 1994 about 33 days after the incident on 8th of
\nApril, 1994. During the course of his interrogation, based on a
\nstatement made by the appellant the investigating agency went
\nto the place of PW 10, a Goldsmith and found out that he, at the
\ninstance of the appellant, melted certain gold ornaments into
\ningots of 60 grams and 35 grams on 9th of April, 1994. On
\nfurther investigation, it was found that the said ingots were
\npurchased by PW 11, a Jeweller, for Rs.35,000 from the
\nappellant. The investigation also revealed that the appellant had
\ntaken a loan of Rs.20,000\/- on pledging Kisan Vikas Patras
\nbelonging to himself and his wife from Nagrik Bank which
\namount according to the prosecution was repaid and the Kisan
\nVikas Patras were redeemed by the appellant at about the same
\ntime as he received the money from PW 11. During the course
\nof investigation, it was also revealed that one Natwarlal
\nShankerlal, PW 21 had seen the appellant in the house of the
\ndeceased at about 8 or 8.30 p.m. on 8th April, 1994.  The
\ninvestigating officer, while arresting the appellant on 11th of
\nMay, 1994 also noticed that he had certain injuries on him
\nwhich, on medical examination were found as injuries which
\ncould have been caused by the deceased with her nails. It is
\nbased on these materials, the prosecution charged the appellant
\nfor having caused the death of Kantaben, as stated above.
\nIt is on the basis of the above evidence, the Courts below
\ncame to the conclusion that the prosecution has established its
\ncase against the appellant and found him guilty of the charges
\nlevelled against him and setenced him as stated above.
\nAs could be noticed from the facts narrated hereinabove
\nthe case of the prosecution rests on circumstantial evidence.
\nThe prosecution has relied upon the following circumstances to
\nprove its case:\n<\/p>\n
a)\tThat the accused was known to the appellant
\nand had financial dealings with the appellant.\n<\/p>\n
b)\tThe accused was in need of money.\n<\/p>\n
c)\tThe accused was last seen in the house of the
\ndeceased on 8.4.1994 at about 8 or 8.30 p.m. by
\nPW 21.\n<\/p>\n
d)\tThe accused, even though a person known to
\nthe deceased, did not\tattend either the funeral
\nor called upon the family of the deceased to
\ncondole the death and was absconding for
\nnearly 33 days.\n<\/p>\n
e)\tThe accused had got melted certain jewellery
\nwith the help of PW 10 into gold ingots on
\n9.4.1994.\n<\/p>\n
f)\tThe accused had sold two ingots of 60 grams
\nand 35 grams obtained by him from the melting
\nof jewelleries to PW 11 for a sum of Rs.35,000
\non 9.4.1994.\n<\/p>\n
g)\tThe accused had taken a loan on hypothecation
\nof Kisan Vikas Patras which were redeemed by
\nrepayment of loan on 11.4.1994.\n<\/p>\n
h)\tThe accused had injuries which could have
\nbeen inflicted on him by the deceased at the
\ntime of attack on her.\n<\/p>\n
It is on the basis of the above circumstances that the
\nappellant was found guilty of having murdered the deceased
\nKantaben. We have heard learned counsel for the parties and
\nhave given our anxious consideration to the facts of the case. If
\nactually the circumstances narrated hereinabove have been
\nestablished beyond any reasonable doubt, there could be no
\ndifficulty in concurring with the finding of the Courts below.
\nHowever, we find that some of the links in the chain of
\ncircumstances have not been established by the prosecution
\neither in accordance with law or beyond reasonable doubt,
\nbecause of which, in our opinion, serious doubts arise as to the
\ncorrectness of the prosecution case which will be discussed by
\nus hereinbelow.\n<\/p>\n
In regard to the circumstance that the appellant was
\nknown to the deceased and had financial transactions, we have
\nno doubt the prosecution has established this fact, therefore, we
\nproceed on the basis that this circumstance stands proved. So
\nalso, the second circumstance noted above that the accused was
\nin need of the money and he had given two cheques  which
\nobviously were not encashed by the deceased, therefore, to that
\nextent that the appellant had a motive, also could be accepted.
\nThe third circumstance noted hereinabove, in our
\nopinion, has not been established by the prosecution. This is
\nbased on the evidence of PW 21, the neighbour  Natwarlal
\nShankarlal. There is no doubt that this witness resides very
\nclose to the house of the deceased and it is also possible that on
\n8.4.1994 around 8 or 8.30 p.m. he might have been present in
\nhis house but we have serious doubt whether this witness had
\nactually seen the appellant in the house of the deceased. It is an
\nadmitted fact that at that point of time there was no light in the
\nhouse of the deceased. In such circumstances, this witness has
\nnot given any reason how he could identify the appellant in
\nspite of the fact that there was no light.  That apart, the most
\ndoubtful part of PW 21’s evidence is that he did not speak
\nabout this factum of his having seen the appellant in the house
\nof the deceased on 8.4.1994 night to anybody for nearly 39 days
\ntill after he decided to speak to the investigating agency. No
\nexplanation whatsoever has been brought on record to explain
\nthis extraordinary conduct of this witness. This witness was
\nknown to the deceased and he was staying in the close
\nproximity of the house of the deceased; after the incident on 8th
\nof April, 1994 police were regularly visiting the house of the
\ndeceased; all the relatives of the deceased had come to Modasa
\nincluding her son and definitely if this witness is speaking the
\ntruth he would have known the importance of the fact noticed
\nby him on 8th of April, 1994. Still he did not speak about this to
\nanybody till 17th of May, 1994 by which time the appellant was
\narrested. To us, the evidence of this witness seems to be
\nartificial. Of course, merely because the evidence of a witness is
\nrecorded by the police under Section 161 Cr.P.C. belatedly, by
\nitself, does not make the evidence unacceptable provided there
\nis some logical or acceptable explanation for the same. In the
\ninstant case, there is no such explanation. Therefore, contrary to
\nthe findings of the Courts below, we are unable to accept the
\nevidence of this witness. Hence this circumstance cannot be
\nrelied upon.\n<\/p>\n
The next circumstance, as to the default of the accused,
\nin not attending the funeral or of his abscondance, even if held
\nto  be proved by the evidence of prosecution; by itself, will not
\nimplicate the appellant, however the cumulative effect of this
\ncircumstance along with the motive will\t be discussed by us
\nhereinafter.\n<\/p>\n
The next circumstance pertains to the accused having
\ntaken certain jewellery and having melted the same with the
\nhelp of PW 10. This circumstance, in our opinion, is a very
\nimportant link in the prosecution case. If established, it would
\ngo a long way in strengthening the links in the chain of
\ncircumstances relied upon by the prosecution. In support of this
\ncircumstance, the prosecution had produced PW 10,
\nBipinchandra Ambalal Soni. But, this witness has not supported
\nthe prosecution case in regard to the fact of the accused having
\ntaken some gold ornaments to him and having melted the same
\ninto gold ingots. Therefore, this important link in the chain of
\ncircumstances is not established by the prosecution<\/p>\n
The next circumstance relied upon by the prosecution is
\nagain an important circumstance which pertains to the accused
\nhaving sold two ingots of 60 grams and 35 grams each to PW
\n11, Parasmal Himamal Soni, for which, according to the
\nprosecution,  the accused received a sum of Rs.35,000 from PW\n<\/p>\n
11. This witness, PW 11, has also not supported the prosecution
\ncase; nor have the Panch witnesses Vijaykumar Navnitlal Shah
\nand Purankumar Chamanlal Purani, who were examined to
\nestablish the fact that the appellant had voluntarily shown the
\nshop of\t PW 11,\t supported the prosecution case. But the Courts
\nbelow relied upon certain documents seized from the premises
\nof PW 11 to establish the fact that there were entries in those
\ndocuments to show that PW 11 had made those entries which
\npertain to the purchase of two ingots of gold from the appellant
\nand PW 11 having paid him Rs.35,000 for the same. It is true,
\nthis witness PW 11, Parasmal Himamal Soni, though did not
\nsupport the prosecution on the sale and purchase of ingots from
\nthe appellant, did speak about the entries in the documents
\nseized by the police. The Courts below have chosen to rely
\nupon this evidence to come to the conclusion that this part of
\nthe prosecution case is acceptable and held that the appellant
\nhad in fact sold certain gold ingots to PW 11 and received
\nRs.35,000. We  think it is not safe to rely upon this part of the
\nprosecution evidence. While considering the evidence of the
\nprosecution in this regard, we must first notice the fact that the
\nprosecution has failed to prove that the appellant took the gold
\nornaments belonging to the deceased to PW 10 and got them
\nmelted into two ingots of 60 grams and 35 grams. In the
\nabsence of that part of the prosecution case being proved what
\nis left is the documentary evidence of certain ingots having
\nbeen purchased by PW 11 and the said witness paying
\nRs.35,000 to the appellant. Here, apart from the fact, PW 11 has
\ndenied having made this purchase,  the Panch witnesses who
\nare the witnesses to the statement of the appellant for having
\nshown them the shop of PW 11 have not supported the
\nprosecution case. The sole reliance, hence, has to be placed on
\nthe documents seized from the shop of PW 11 and the contents
\nof the said documents. From the evidence produced by the
\ninvestigating agency in the form of evidence of PW-11, it is
\nseen that there is entry to show that on 9th of April, 1994 one
\nKantibhai G.K. Lal sold two gold ingots to PW 11 and received
\nRs.35,000 for the same. But then we must notice this is not an
\nentry made by PW-11 himself. It is an entry made by one\t Soni
\nKanti Bai, who has not been examined by the prosecution.
\nFurther, this part of PW-11’s evidence will have to be evaluated
\nin the background of the fact that this witness had earlier denied
\nthat the appellant had sold the gold to him, if so, there is no
\nexplanation as to how this entry came to be made. The most
\ndamaging part of this part of the prosecution case is that this
\nfact of the appellant having sold the gold ingots and receiving
\nRs.35,000 from PW 11 is not put to the accused in his Section
\n313 Cr.P.C. examination.  The questions put to this witness in
\nthis regard are as follows;\n<\/p>\n
Q:\tThe witness Parasmal Himatlal at Exhibit 33
\nhas stated that he had made bill in the name
\nof Kantibhai  G.K. Lal for making gold
\ningot vide bill No.7 of his bill book of 1994,
\nwhat do you have to say?\n<\/p>\n
A:\tI do not know.\n<\/p>\n
Q:\tThis witness has further stated that he has
\nproduced the gold ingot, muddamal article
\nNo.1 before police, what do you have to
\nsay?\n<\/p>\n
A:\tI do not know. (Emphasis supplied).\n<\/p>\n
A perusal of the questions put to this witness as to the
\nfacts incriminating him and as extracted hereinabove,
\naccording to us does not reflect any incriminating evidence as
\nto the appellant having sold any gold ingots to PW-11.\tThe
\nfirst question extracted hereinabove in this regard shows that
\nparasmal Himatlal at Exhibit 33 had made a bill in the name of
\nKantibhai G.K. Lal for making gold ingot and the appellant was
\ncalled upon to answer that question which he rightly says that
\nhe does not know. The factum of PW 11 had made an entry in
\nhis book in the name of one Kantibhai G.K. Lal cannot be a
\ncircumstance incriminating the appellant unless there was a
\nconnecting evidence to show that this appellant had sold the
\ngold ingots to PW 11 which part of the prosecution case has not
\nbeen proved. Therefore, it is futile, in our opinion, for the
\nprosecution to rely upon some entry made by one Soni Kanti
\nBai who has not been examined and in the background of the
\nfact that PW 11 himself had denied the fact of the appellant
\nselling gold to him. Therefore, in our opinion, the fact of there
\nbeing an entry in Exhibit 33 in regard to some gold ingot
\ncannot be a circumstance incriminating the appellant.\n<\/p>\n
The next question put to the witness is that PW 11 has
\nstated that he has produced the gold ingot before the police.
\nWhat you have to say?  We do not think this circumstance is
\nalso an incriminating circumstance against the appellant in the
\nabsence of there being acceptable evidence that the ingots given
\nby PW 11 to the police are the ingots given to PW 11 by the
\nappellant. In the absence of this link evidence, this
\ncircumstance also cannot be construed as circumstance
\nincriminating the appellant.\n<\/p>\n
From the above questions put to the appellant in his
\nexamination under Section 313 Cr.P.C., it is seen that the
\nprosecution has not established the fact that the appellant had
\nsold the gold  to PW 11.\n<\/p>\n
The next circumstance relied upon by the prosecution is
\nin regard to the loan taken by the appellant by hypothecating
\nthe Kisan Vikas Patra and that repaid that loan on 14th of April,
\n1994, assuming that the same has been established, that would
\nnot in any manner implicate the accused with the murder of the
\ndeceased  Kantaben in the absence of any material to show that
\nrepayment was made from out of the proceeds of the articles
\nrobbed by the appellant from the deceased Kantaben. Appellant
\nhad his own printing business and it is for the prosecution to
\nestablish that the one and only source to repay the money was
\nfrom out of the stolen property of deceased Kantaben, which
\nnot having been done, even this circumstance cannot be of any
\nassistance to the prosecution.\n<\/p>\n
The factum that the accused had certain minor injuries
\nand that he was not available to the investigating agency from
\n10th of April, 1994 to 11th May, 1994 would not also be a
\ncircumstance which would implicate the accused with the
\nmurder of Kantaben.\n<\/p>\n
From the discussion of the circumstances relied upon by
\nthe courts below, we have noticed the prosecution has failed to
\nestablish : (a) that  PW 21 had seen the appellant in the house of
\nthe deceased on 8.4.1994; (b) that the appellant had got certain
\ngold ornaments melted with the help of PW 10 on 9th April,
\n1994; and (c) that the appellant had sold two ingots of 60 grams
\nand 35 grams each to PW 11 for a consideration of Rs.35,000.
\nIn view of the fact that the prosecution has failed to prove these
\nlinks in the chain of circumstances, in our opinion, the rest of
\nthe circumstances do not form a complete chain as to draw an
\nirresistible inference that the circumstances established by the
\nprosecution establish that it is the accused and the accused
\nalone who could have committed the murder of deceased
\nKantaben.  In our opinion, those circumstances proved by the
\nprosecution can only throw a doubt as to the involvement of the
\nappellant in the murder of Kantaben which is not sufficient to
\nbase a conviction.\n<\/p>\n
On the above basis, we are of the opinion, that the Courts
\nbelow were in error in coming to the conclusion that the
\nprosecution has established its charges against the appellant by
\nthe circumstantial evidence relied upon by it. Hence, the
\nappellant is entitled to succeed in this appeal.\n<\/p>\n
Accordingly, the judgment and conviction of the courts
\nbelow are set aside. The appeal is allowed. The appellant, who
\nis in custody, shall be released forthwith, if not required in any
\nother case.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kantilal @ K.L. Gordhandas Soni vs State Of Gujarat on 11 December, 2002 Author: Santosh Hegde Bench: N.Santosh Hegde, J., B.P. Singh, J. CASE NO.: Appeal (crl.) 323 of 2002 PETITIONER: Kantilal @ K.L. Gordhandas Soni RESPONDENT: State of Gujarat DATE OF JUDGMENT: 11\/12\/2002 BENCH: N.SANTOSH HEGDE, J. & B.P. SINGH, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-144760","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKantilal @ K.L. 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