Gujarat High Court
Dharmishthaben Jayantibhai Patel vs State Of Gujarat on 15 April, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 738 of 2013
With
R/CRIMINAL APPEAL NO. 984 of 2013
With
R/CRIMINAL APPEAL NO. 1145 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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DHARMISHTHABEN JAYANTIBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR RAMNANDAN SINGH(1126) for the Appellant(s) No. 1
MS CM SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 15/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Since, the facts of the case and issue involved in captioned appeals are identical and arise out of the same judgment, the appeals are taken up together and are being disposed of by this common judgment.
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2. The appellants have filed these appeals (Criminal Appeal No.984 of 2013 and Criminal Appeal No.738 of 2013 against the judgment and order of their conviction under Section 201 read with Section 114/34 of the IPC.).
3. The respondent-State has preferred enhancement appeal against the sentence on the ground of its inadequacy imposed upon the appellants for the offence punishable under Section 201 of the IPC.
4. By judgment of conviction and order of sentence dated 15.04.2013 passed by the Additional Sessions Judge, Vadodara, in Sessions Case No.206 of 2010, by which the appellants original accused nos.3 and 4 have been convicted and sentenced under Section 201 of the IPC read with Sections 114 and 34 of the IPC and sentenced in the manner stated hereinafter:
Accused Conviction Punishment Fine In default of under fine Section Jayantibhai S.201 read R.I. for 5 Rs.5,000/- Imprisonme Page 2 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined Devjibhai with S.114 years nt for 3 Patel of IPC months Dharmishta S.201 read R.I. for 5 Rs.5,000/- Imprisonme ben with S.114 years nt for 3 Jayantibhai of IPC months Patel Nimesh S.201 read R.I. for 5 Rs.5,000/- Imprisonme Jayantibhai with S.114 years nt for 3 Patel of IPC months The sentences were ordered to run concurrently.
Hence, these Appeals.
5. The case of the prosecution leading to conviction of the appellants accused is as follows:
5.1 The appellants herein are resident of Village Chapad, City Vadodara and at the time of incident i.e. on 05.07.2010, they were living in a joint family with accused Hiren Patel (A-1) at Village: Chapad. The PW.13 Jignesh Patel with his family was also residing in the same village and his house is situated adjacent to the house of appellant-accused. The relations of Page 3 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined the parties as neighbours were cordial and they had been living as a family.
5.2 PW.13 on 05.07.2010, was not in his village as he had gone to Amarnath Pilgrimage and his son aged about 8 years was at the house and did not accompany to him at Amarnath.
On 05.07.2010, at about 6:00 p.m., the child Shrey had gone to purchase sweets and pepsi at the shop of PW.9 Nagin Patel and accordingly, after purchasing the same, he was on way to his house. The appellant-accused before the child could reach at his house, kidnapped him for ransom of Rs.10 lakh and took the child at his room situated at the first floor of the house, here he was strangulated to death with a cotton rope by the accused-Hiren. The family members had made extensive search of the child as till late evening on that day he did not return to the house. The cousin brother PW.6 Harshad Patel lodged a missing complaint (Exh.63) with Makarpura Police Station. PW.13 Jignesh Patel was informed about missing of his child and he immediately returned to Vadodara on 06.07.2010. Meanwhile, the Makarpura police made extensive search in the nearby area, but the whereabouts of the child could not be found. PW.13 - father of the child requested the police to Page 4 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined deploy a dog squad for scientific search. On 07.07.2010, before dog squad could come, the appellant-accused at about 12:00 p.m., talked with the PW.13 Jignesh Patel on his landline no.221919 allegedly dialed by him from the STD/PCO booth owned by Pritesh Shah (PW.12). The appellant-accused demanded a ransom amount of Rs.10 lakh from PW.13 and further informed that, the child is with him and presently he is safe. The accused-appellant also informed that they are total 5 persons and they took the child from where he had bought pepsi. PW.13 was further informed by the caller i.e. appellant that his informer is standing near the transformer of the village and giving every update of every movement and therefore, he had been cautioned not to play any mischief. PW.13 after hearing the conversation from the caller -appellant, agreed and conveyed that he is ready to pay Rs.10 lakhs and further requested that he wants to talk to his child. The caller - appellant thereafter, said that he would call him at 7:00 p.m. and cut down the call. PW.13, did not disclose anyone except his brother about the call conversation and waited up to 9 o' clock evening because he was in waiting of call as assured by the caller. Thereafter, when there was no response of the caller, the PW.13 had suspicion in his mind that the voice of Page 5 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined the caller is of his neighbour appellant Hiren. In such circumstances, he lodged a complaint at about 10:00 p.m. on 07.07.2010, narrating the facts of the call conversations as referred above, alleging inter alia, that the appellant-accused and five others kidnapped his child for ransom. The Makarpura police registered an offence under Sections 363, 364A read with Section 114 of the IPC against the appellant and five unknown persons.
5.3 PW.22, I.O. Raghuveersingh Bhadoriya during the course of investigation, went to Village: Chapad and called the appellant-accused and upon his preliminary inquiry, it was revealed that, on 05.07.2010, when minor Shrey after eating the sweet and pepsi from the shop of PW.9 Naginbhai, was on the way to his house, had been kidnapped for ransom of Rs.10 lakh by the appellant-accused and under the guise of learning computer, the minor Shrey was taken to the house of accused Hiren and taking him at the room situated at first floor, he had been strangulated to death with cotton rope. It was further revealed that, in order to dispose of the dead body, it was put in the plastic bag and then in the tin barrel. Thereafter, the tin barrel was brought down from first floor to ground floor by Page 6 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined using a ladder made of iron and then taken to the farming yard situated near the house by the appellant. The accused purchased a 15 kg bag of salt from the provision store of the village. The accused -appellant then after digging the mud, put the tin barrel filled with the dead body of the child in water tank of the yard and after sprinkling the salt on it, buried the dead body.
5.4 The investigating officer PW.22 during the course of investigation, arrested the appellant and at the instance of the accused, seized and recovered the slippers of the child and discovered his body from the yard. The body was sent for postmortem and according to opinion of the doctor PW.17, the cause of death was asphyxia due to strangulation. The PW.22 as a part of investigation, called a Scientific Officer, FSL, Vadodara for investigation. PW.19 - R.L. Gondaliya, Scientific Officer inspected both the places i.e. where murder took place and the dead body buried at the yard. According to opinion of the PW.19, the lowering down of the tin barrel filled with the dead body from first floor to ground floor and then at the yard, it could not be possible for a single person to execute the entire act and according to his opinion, considering the Page 7 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined position of the staircase, the involvement of other persons cannot be ruled out. The PW.19 also found stains on the computer gadgets as well as on the floor in his opinion, which it might be a fluid of decomposed body. The PW.19, found clothes filled in the bag allegedly lying on the chair situated in the kitchen of the house. The clothes found with foul smell and having human blood. In such circumstances, the I.O. PW.22 had arrested the father, mother and brother of the accused and according to prosecution case, the accused with their common intention, killed the deceased for ransom and in order to save the appellant - their son, have caused the offence of disappearance of evidence. The I.O. during the course of investigation, recorded the statements of witnesses, obtained the postmortem report, sent the seized articles to FSL for chemical analysis and thereafter, filed the chargesheet against the appellant and 3 others who are father, mother and brother of the accused Hiren for the offence punishable under Sections 363, 364A, 302, 201, read with Sections 34 and 114 of the IPC. Thereafter, the case was committed to the Sessions Court, Vadodara.
6. After due framing of charge, and upon accused not Page 8 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined pleading not guilty, the trial commenced before the Additional Sessions Judge, Vadodara. The prosecution examined 23 witnesses and exhibited 31 documents:
Oral evidence PW 1 - Exh.27 Ramanbhai Bavabhai Patel, panch witness PW 2 - Exh.29 Maheshbhai Sajanbhai rabari, panch witness PW 3 - Exh.33 Gopalbhai Narottambhai Patel, panch witness PW 4 - Exh.39 Chandrakantbhai Kashibhai Patel, panch witness PW 5 - Exh.54 Rajendrabhai Shankarbhai Patel, panch witness PW 6 - Exh.62 Harshadbhai Taljabhai Patel PW 7 - Exh.66 Ajitsinh Motisinh Makwana PW 8 - Exh.67 Maheshbhai Dilipbhai Padhiyar PW 9 - Exh.68 Naginbhai Kashibhai Patel PW 10 - Exh.69 Umakantbhai Tanajirao Sonavane PW 11 - Exh.70 Sharmilaben Mohanbhai Tadvi PW 12 - Exh.71 Pritesh Suryakant Shah PW 13 - Exh.72 Jigneshbhai Hasmukhbhai Patel PW 14 - Exh.76 Naranbhai Varsing Rathva, complainant (father of deceased) PW 15 - Exh.77 Shabdadasiben Pramodbhai Patel, sarpanch PW 16 - Exh.80 Narendrabhai Shravanbhai Bhavsar PW 17 - Exh.84 Dr. Ashok K. Mahajan, medical officer PW 18 - Exh.88 Shyamsunder K. Prajapati, nodal officer PW 19 - Exh.93 Ramniklal L. Gondaliya, FSL officer PW 20 - Exh.96 Punjabhai Arjunbhai, Police Station officer PW 21 - Amitbhai Bhailalbhai Patel Exh.102 PW 22 - Raghuvarsinh M. Bhadoriya, Investigation Exh.104 officer PW 23 - Nisarg Vasantbhai Patel, Investigation officer Exh.112 Documentary evidence Exh.28 Panchnama of physical examination of body Exh.30 Panchnama of physical examination of body Exh.34-37 Muddamal notes Exh.38 Panchnama for collecting clothes of body Page 9 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined Exh.40-48 Muddamal receipts Exh.49 Handwritten note Exh.50 Panchnama of scene of offence Exh.55 Panchnama of collection of slippers of deceased Exh.56 Discovery panchnama as per Section 27of Evidence Act Exh.57 Inquest panchnama Exh.63 Application about missing child Exh.64 Statement recorded upon application about missing child Exh.73 Complaint Exh.74 Telephone bill Exh.78 Certificate by Chapad Gram Panchayat Exh.81 Photographs Exh.85 Yadi for post mortem Exh.86 Post mortem note Exh.89 Application for phone connection Exh.90 Certificate under Section 65-B of Evidence Act Exh.91 Forwarding letter for demanding call details Exh.92 Call details Exh.94 Investigation report by FSL van Exh.95 FSL report Exh.97-99 Copy of extracts of station diary Exh.100 Order of handing over investigation Exh.106 Sketch of scene of offence Exh.107 Yadi for registering offence Exh.108- FSL forwarding note 109 Exh.110 FSL yadi Exh.111 FSL report
7. After closure of the prosecution evidence, the appellants were questioned under Section 313 of Cr.P.C., to which they stated that they have been falsely implicated and prosecuted in the serious offence of murder. The witnesses are interested and related persons and deposed against them at the behest Page 10 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined of PW.13. In nutshell, they have denied the entire case of the prosecution and evidence adduced before the Trial Court.
8. The accused appellants have not adduced any evidence in their defence.
9. The learned Additional Sessions Judge, after hearing the parties and upon appreciation of the evidence, found the accused Hiren Patel guilty of the charges, consequently, he has been convicted under Sections 363, 364A and 302 of the IPC. The co-accused who are father, mother and brother have been acquitted from the charge of murder, however, they have been convicted under Section 201 read with Section 114 of the IPC.
10. Being dissatisfied with the judgment and order of conviction, the appellants have come up with the present appeals.
11. The accused no.2 Jayanti Patel after his conviction and pending this appeal (Criminal Appeal No.984 of 2013) passed away and therefore, the appeal qua him stands abated.
12. We have heard Mr.Ramnandan Singh, learned counsel Page 11 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined appearing for the appellants and Ms.C.M. Shah, learned APP for the State.
13. Mr.Ramnandan Singh, while assailing the impugned judgment, vehemently contended that the Court below has committed a serious error in appreciating the evidence against the appellants and wrongly convicted them under Section 201 of the IPC. The appellants had never been part of the crime committed by the accused Hiren. According to the case of prosecution, the accused Hiren killed the child and removed his dead body from first floor to open yard near the house. The dead body was taken by the accused Hiren in tin barrel and taking the barrel at the place of open yard where digging a mud, the dead body buried in the water tank. In this entire exercise of murder, allegedly done by accused Hiren, the accused were unaware about the intention of the accused and the dead body allegedly kept for about 55 hours in the room of first floor of the house. That none of the witnesses have stated that the accused had concealed the dead body and had caused any evidence of the commission of the offence to disappear. That there is no evidence to prove that there was an intention on the part of the appellants to screen the accused Hiren. That Page 12 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined the Court below while convicting the appellants under Section 201 of the IPC, mainly relied on the testimony of PW:19 Ramniklal Gondaliya, forensic science expert, who had visited the place of offence. Referring to the testimony of the Ramniklal Gondaliya, it was submitted that the Court below cannot reach at a conclusion solely on the evidence of the PW:19 who visited the place of occurrence as it is settled position of law that the expert evidence is not conclusive and it is the duty of the Court to come to a conclusion on a question of fact, after considering the entire evidence. The testimony of PW:19 is only an opinion evidence and it is an advisory nature. That it is none of the business of PW:19 to opine on the merits of the case i.e. complicity of the accused in the alleged act of murder and disappearance of the evidence. The Investigating Officer PW:22 had never sought any specific opinion from the expert PW:19 to the effect that whether one person carrying in tin barrel filled with dead body of child, could up or going down stairs without any assistance of another or not. Therefore, the possibility opined by PW:19 about the involvement of the other persons in assisting the accused for destroying the evidence cannot be accepted and relied upon as conclusive proof unless and until either direct evidence or from the proved Page 13 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined circumstances their involvement being established and proved. That the PW:19 in his cross examination had also admitted that, if anyone go-up or going down stairs, the persons who inside the house may not notice of the activities undertaken by the persons by using the staircase.
14. In such circumstances, as referred above, learned counsel Mr.Ramnandan Singh submitted that the findings of conviction are not based on the evidence and conviction rendered on the basis of suspicion, conjectures and surmises and the prosecution miserably failed to prove the charge of causing disappearance of the evidence by adducing cogent, truthful, reliable evidence. Lastly, it was submitted that on the one hand, the Court below while acquitting the appellants for the charge of murder observed that there is no evidence involving the accused in commission of the crimes and on other hand, while convicting the appellants under Section 201, the Trial Court observed that the accused remained silent and considering the situation of the staircase, it cannot believe that the accused were not knowing the act of accused Hiren Patel and further, removal of the body from first floor of the house to the open yard. Thus, it was submitted that the conviction Page 14 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined alone under Section 201 is not maintainable in eye of law.
15. In the submissions made hereinabove, Mr.Ramnandan Singh has submitted that the prosecution has failed to prove his case beyond reasonable doubt and as such, the judgment and order of conviction are liable to be set aside as the findings of the Trial Court are perverse and against the settled principle of law and thus, the conviction of the accused cannot be allowed to sustain and he further prayed that there being merits in this appeal, the same may be allowed and accused may be acquitted from the charges.
16. On the other hand, learned APP Ms.C.M. Shah supported the view taken by the Court below and further contended that the Trial Court has not committed any error either on facts or on law and has rightly appreciated the testimony of PW:19 Mr.Gondaliya, who is expert in the field, and during his visit at the house, two things he had noted, viz. the bloodstain found on the electronic gadget and the clothes with foul smell. The witenss PW:19 after examining the practicality of the aspect of iron staircase, opined that it could not be possible for any single person to bringing down the tin barrel filled with the Page 15 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined dead body of the child from first floor to ground floor. Thus, it can be legitimately presumed that the appellants had knolwedge of commission of the crime and knowing everything, they did not disclose the act of accused no.1-Hiren before the police or anybody and helped out the accused Hiren in removing the dead body by which they caused disappearance of evidence.
17. Ms.C.M. Shah, learned APP has submitted that considering the conduct of the accused and evidence of the I.O. as well as the expert PW:19, the prosecution has successfully discharged its liability to prove that the appellants despite their requisite knowledge and intention, they caused the disappearance of the evidence of commission of the offence. In such circumstances, referred to above, Ms.C.M. Shah, prays that there being no merits in the appeal filed by the accused and the same may be dismissed.
18. We have perused the case records and observations made by the Court below while convicting the accused herein.
19. The appellants herein are the mother and brother of the Page 16 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined accused no.1 Hiren Patel. There is no dispute that there is a joint family and at the relevant time, four persons were residing in the house referred in the case papers. The relations prior to the incident of the parties were cordial. So far as appellants are concerned, they have been acquitted for the offence of murder, and convicted and sentenced by the Court below under Section 201 read with Section 34 of the IPC.
20. At this juncture, we deem it appropriate to extract Section 201 of the IPC for better appreciation:
"201. Causing disappearance of evidence of offence, or giving false information to screen offender.-- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life.--and if the offence is punishable with 1 [imprisonment for life], or with Page 17 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
if punishable with less than ten years' imprisonment.
--and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both."
21. A bare reading of Section 201 of IPC, it appears that in order to convict a person under Section 201 of IPC, the prosecution has to establish the following ingredients:
(A) That an offence has been committed;
(B) That the accused knew or had reason to believe the
commission of such offence;
(C) That with such knowledge or belief, he/she;
(i) caused any evidence of the commission of that offence to
disappear; or (ii) gave any information in respect thereof that offence which he or she knew or believed to be false; (D) That he or she did so as aforesaid with the intention of screening the offender for legal punishment; Page 18 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025
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22. We may profitably refer the judgment of Palvinder Kaur Vs. State of Punjab (AIR 1952 Supreme Court 354), wherein the Supreme Court had said that in order to establish the charge under Section 201 of IPC, it is essentially to prove that an offence has been committed; that the accused knew or had a reason to believe that such offence had been committed; with requisite knowledge and with intent to screen the offender from legal punishment, caused the evidence thereof to disappear or gave a false information respecting such offence that the Court should safeguard itself again the danger of basing its conclusion on suspicion, however, strong they may be. In another case, Padmini Mahendrabhai Gadda Vs. State of Gujarat (2017 (14) SCC 587), the Supreme Court held that while considering the charge under Section 201 of IPC, it is mandatory for the prosecution to prove that the accused actually participated in the offence of disappearance of evidence, with an intention to screen the offender and it is necessary that all ingredients of Section 201 are satisfied pointing out at the guilt of the accused and mere a suspicion is not a sufficient and the accused can never be convicted on the basis of probabilities or on assumptions and presumptions. Page 19 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025
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23. In light of the aforesaid statutory provisions, and the law laid down by the Supreme Court, the issue required to be examined whether the appellants have committed the offence under Section 201 of the IPC.
24. In the facts of the present case, the entire case rest on the circumstantial evidence. In order to prove the charge under Section 201 of the IPC, the Court below mainly relied on the testimony of PW:19 Mr.R.L. Gondaliya and testimony of I.O. PW:22 Raghuvirsingh Badhoriya. In order to appreciate the rival contentions of the parties, and for better appreciation of the findings of the Court below, the testimonies of both the witnesses are necessary to refer.
25. PW:19, Mr.R.L. Gondaliya being a scientific officer associated with the forensic science laboratory was called upon by the PW:22, for examination of the place of occurrence. He took visit both the places i.e. house where the child was killed and the place i.e. open yard where the child buried in a water tank. PW:19 in his testimony stated that while reaching at the house of the accused, he noticed foul smell and some of the abnormal stains on the floor and according to his opinion, Page 20 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined the stains and foul smell might be of the decomposed body of the child. The witness PW:19 after survey of kitchen of the house, he noticed the clothes with human blood having foul smell lying in the plastic bag. PW:19 after survey of entire house, noticed that the ladder (staircase) was installed at the veranda of the house. In his opinion, it was difficult to descend the stairs carrying a heavy object from the ladder without the help of others. In view of the clothes found in the kitchen, PW:19 opined that removal of the dead body could not be possible without the assistance of others and for that, he recommended for lie detector test. In the cross examination, PW:19 admitted that at the relevant time, nobody was present in the house and before expressing opinion on the issue of ladder, he did not do measurement of the length, height as well as seize of the ladder. The witness in the cross examination has stated that, the I.O. had never sought such kind of opinion from him. He admitted that a ladder is accessible from the road side. He admitted that the opinion of feasibility of the use of ladder cannot be termed a scientific opinion.
26. PW:22 Raghuvirsingh Bhadoriya, Investigating Officer, in Page 21 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined his testimony, has stated that he was present with the scientific officer and during the inspection of the house, the clothes with human bloods having foul smell being found from the kitchen and at the instance of accused no.1 Hiren Patel, the dead body of the child was being discovered from the open yard. In the cross examination, the I.O. has admitted that he did not find any evidence to show that the clothes found from the kitchen have been washed out accused Dharmishthaben.
27. In addition to the relevant oral evidence, as referred above, it is necessary to refer the observations of the Court below. We would like to extract the relevant portion of the findings of the Trial Court, which reads as under:
"82. .......As per the case presented by the prosecution, clothes have been found inside the house of accused no.1... in the kitchen area and those clothes are wet with human bloodstained Group-A having bad smell and as per the opinion of FSL report, the clothes were washed out by the accused no.3 Dharmishthaben..... It is not possible for accused no.1 to have brought down heavy barrel from the upper floor of the house alone in the morning and also not possible that the members of the house would have no knowledge about the act of accused no.1 and despite of this, the accused have maintained a silence about the criminal act committed in the house.Page 22 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025
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88. Thus, there is a reason to believe that since all the accused are members of the same family, they may have come to know about the crime after its commission. It is on record that the accused no.1 kidnapped the minor child, caused his death and after about one and half days, took the child body from the house to the yard and buried it in a water tank. The prosecution has examined witnesses, who saw carrying a barrel, purchasing salt and burying the body. However, there is no evidence on record indicating that the other accused played any role in these acts. Furthermore, even when the panchnama under Section 27 of the Evidence Act, carrying out, there is no indication that the other accused were present at the scene of incident. Nevertheless, considering that all the accused are members of the same family, it is difficult to assume that they were unaware of the minor child's body in the upper room of the house for one and half days. According to ingredients of 201 of IPC, it is sufficient that the accused knew or had reason to believe that the crime had been committed. If direct evidence is not available, the knowledge can be inferred from the conduct of the accused. In the present case, since all the accused resided in the same house, it cannot be conclusively said that they were unaware of the incident. Furthermore, the body of the minor child was lying on the first floor of the house and it is on record that the body was placed in the barrel. It would not have been possible to bringing down the barrel without assistance of accused nos.2 to 4. Therefore, they are liable to be convicted under Section 201 of the IPC."Page 23 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025
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28. A bare perusal of the above observations of the learned Trial Court, the Trial Court has given a clean chit to the appellants saying that their involvement in the murder of the child is not proved, as the Court did not find evidence of their participation in the offence as well as at the time of laying the body in the water tank and on the other hand, the Trial Court observed that due to bloodstained clothes found from the kitchen of the house and the position of the ladder, it could be presumed that the accused was having knowledge about the commission of the offence and assisted and/or abated the accused no.1 in lowering down the body from first floor to ground floor, with an intention to screen the accused no.1.
29. We have careful examined the PW:19 scientific officer Mr.R.L. Gondaliya. It is evident that he was called by the I.O. only for inspection of the place and at that time, he was not asked to opine a scientific opinion on the issue of feasibility of use of ladder put in the house for access of first floor. The I.O. also admitted that his opinion with regard to use of ladder cannot be said to be a scientific opinion. In such circumstances, except the evidence of PW:19, there is no any Page 24 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined incriminating material evidence against the accused to prove that they have actively participated in the shifting of the body of the child and thereby, causing disappearance of the evidence. The Investigating Officer PW:22 in his cross examination admitted that there is no evidence found against the accused Dharmishthaben that she had washed out the clothes. From these circumstances, it is not clear that the accused having full knowledge of the act done by accused no.1 Hiren. The entire investigation and collection of incriminating material pointing out against the accused no.1. Not a single witness has pointed out that the appellants accused had knowledge about the commission of the crime allegedly orchestrated by the accused Hiren. The Trial Court based on the foul smell has raised the presumption that the accused might have knowledge about the murder of the child. Thus, what transpires is that the method and manner in which the child was killed and his dead body was tried to dispose of might raise some suspicious circumstances, but these facts would not be enough to draw a positive conclusion that the accused being the family members were aware about the killing of the child and intentionally with such knowledge, abated the principal accused in shifting the dead body of the Page 25 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined child with intention to screen him from the punishment. In identical situation, the Supreme Court in the case of Sukhram Vs. State of Maharashtra (2007 (7) Supreme Court Case
502), held and observed that in order to bring home an offence under Section 201 of the IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and the accused has caused the evidence to disappear in order to screen the offender, known or unknown. In the case before the Supreme Court, the wife of the accused no.1 was throttled to death and then, thrown in the well. On the day of incident, deceased was sleeping in the room along with her husband accused no.1 and father-in-law accused no.2 was present in the house and he was acquitted by the Trial Court for the charge under Section 201 of the IPC, whereas, the husband accused no.1 convicted under Sections 304B and 498A of the IPC. The State has challenged the judgment of the Trial Court before the High Court. The High Court convicted the husband under Section 302 of IPC and also convicted the father in law accused no.2 under Section 201 of the IPC. The Supreme Court while setting aside the conviction of accused no.2 under Page 26 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined Section 201, held that merely because the accused no.2 was present in the house and he happened to be a father of accused no.1, it cannot be presumed as a matter of legal proof that he must be deemed to have the knowledge of the offence committed by his son. Even if the evidence of PW:12 is taken at his face value, in our opinion is not sufficient to draw the presumption that he had knowledge the commission of the offence by his son and there are no other established circumstances to complete the chain to bring home under Section 201 of the IPC.
30. Reverting back to the present case, nothing on record against the accused that they had knowledge of the commission of the crime allegedly committed by their son. The opinion referred herein of the scientific officer, in our opinion, merely inspection of the house for taking samples of the crimes, and hypothetical opinion on the aspect of usages of ladder and possibility of involvement of other family members, cannot be a said to be a scientific opinion. and thus, therefore, in our opinion, the presumption drawn against the appellants about their knowledge of the commission of the crime having been drawn on the basis of suspicion and nothing more. The Page 27 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined court below failed to appreciate the settled position of law that the FSL Report is a weak piece of evidence and not conclusive. In the facts of the present case, the opinion of PW.19, Scientific Officer is general in nature and it is only an opinionative evidence and same does not help the court in coming to the conclusion about the guilt of the accused. In such cases, the court cannot reach to a conclusion solely on the evidence of expert who visited the place of occurrence.
31. We may profitably refer the judgment of 5 Judge Bench of the Apex Court in case of Raghav Prapanna Tripathi vs. State of U.P. AIR 1963 SC 74, wherein while interpreting Section 201 of the IPC, it was held that, "Thus, these two appellants have been rightly convicted and their appeals are dismissed. In regard of the case of Ramanujdas and Jaidevi, the findings of the High Court is that, the dead bodies of Kamla and her son Madhusudan were not found in the house of Ramanujdas and they must have therefore, been removed; that an attempt was made to wash out the blood stains from the inside the rooms and also outside on the roof; that the dead bodies could not have been removed without the knowledge and active cooperation of Ramanujdas and Jaidevi and further that, both Ramanujdas and Jaidevi absconded. On these basis, the conviction of these appellants was held by the High Court to Page 28 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined be justified. It is true that the murder was committed in the house of Ramanujdas and that there is the evidence to show that the blood inside and outside the living rooms was washed and attempt was made to obliterate any sign of it though it was unsuccessful. It also may be that, both Ramanujdas and Jaidevi had knowledge of the removal of the dead bodies, but what Section 201 requires is causing any evidence of the commission of the offence to disappear or for giving any information respecting the offence which a person knows or believes to be false. In this case, there is no evidence of either. It is not shown that these two appellants cause any evidence to disappear. There may be a very strong suspicion that if from the house dead bodies are removed, or blood was washed, person placed in the position of the appellants must have had a hand in it but still that remains a suspicion even a strong suspicion at that. It is true that they were absconding, but merely absconding will not fill the gap or supply the evidence which is necessary to prove the ingredients of Section 201 of the IPC. In our opinion, the case against Ramanujdas and Jaidevi has not been made out. Their appeals must therefore be allowed and they be set at liberty."
32. In the facts of the present case, the court below raise a presumption against the appellants on two grounds (i) the blood stained clothes with foul smell found from the kitchen of the house and (ii) the murder was committed in the room at the first floor of the house and having regard to the position of the ladder, it could not be possible for the one person bringing Page 29 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined down the tin barrel filled with the dead body of the child at the ground floor level and therefore, possibility of involvement of the family members cannot be ruled out. In our opinion, the presumption raised by the court below seems to be based on the suspicion without any legal evidence to this effect. It is not in dispute that, the appellants did not have actively participated in the offence, nor, they had been remained present at the place where the dead body was buried. Therefore, it is not proved against the appellants that they had caused any evidence to disappear. The strong suspicion as observed by the court below would not be sufficient to establish the guilt of the accused under Section 201 of the IPC. Thus, the trial court in our opinion went wrong in convicting the appellants without there being any sufficient evidence proving their complicity in the act of disappearance of the evidence. The Supreme Court in number of cases held that suspicion, however, grave it may be, cannot take the place of proof and there is a large difference between something that "may be" proved and "will be proved". In a criminal trial, suspicion no matter how strong cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between may be and must be a quite large Page 30 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined and divides vague conjunctures from sure conclusions because it is the duty of the court in a criminal trial to ensure that mere conjunctures or suspicion do not take the place of legal proof.
33. For the aforementioned reasons, after reanalysis of the oral and documentary evidence, we are satisfied that the prosecution has miserably failed to establish the charges levelled against the appellants beyond reasonable doubt. Thus, as a necessary corollary, the charge for commission of offence under Section 201 of the IPC against the appellants have not been proved and established.
34. As a result, the appeals being Criminal Appeal No.984 of 2013 and Criminal Appeal No.738 of 2013 are allowed. The judgment of conviction and order of sentence dated 15.04.2013 passed by the Additional Sessions Judge, Vadodara in Sessions Case No. 206 of 2010 qua the appellants convicting them under Section 201 read with Section 114 of the IPC is set aside. The appellants are on bail. Their bail bonds stand cancelled and surety ordered to be discharged. The fine amount, if any, paid be refunded to the appellants.
35. The appeal filed by the State for enhancement of Page 31 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025 NEUTRAL CITATION R/CR.A/738/2013 JUDGMENT DATED: 15/04/2025 undefined sentence under Section 377 of the Cr.P.C. being Criminal Appeal No.1145 of 2013 now does not survive in view of the acquittal of the appellants under Section 201 of the IPC. Thus, the State appeal is disposed of accordingly.
(ILESH J. VORA,J) (SANDEEP N. BHATT,J) Rakesh Page 32 of 32 Uploaded by RAKESH M KOSHTI(HC00950) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 22:13:27 IST 2025