Gujarat High Court
Kedar Vijaykumar Bhavsar vs State Of on 14 October, 2013
Author: Akil Kureshi
Bench: Akil Kureshi
KEDAR VIJAYKUMAR BHAVSAR....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/1654/2010 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1654 of 2010 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA ============================================= 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 ? ============================================= KEDAR VIJAYKUMAR BHAVSAR....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ============================================= Appearance: HL PATEL ADVOCATES, ADVOCATE for the Appellant(s) No. 1 MS PUNANI, APP for the Opponent(s)/Respondent(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 14/10/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This appeal is directed against the judgment of conviction and sentence dated 13.09.2010 rendered by the learned Sessions Judge, Ahmedabad (Rural) in Sessions Case No.76 of 2007. Appellant was original accused. He was charged with the offences punishable under Section 302 of Indian Penal Code and Section 135(1) of the Bombay Police Act. He was convicted for the offence punishable under Section 302 but acquitted for the offence punishable under Section 135(1) of the Bombay Police Act. He was sentenced to imprisonment for life. He has challenged his conviction and sentence in present appeal.
2. Briefly stated the prosecution version was that one boy Henil Patel aged about 10 years was residing in flat no. C-6 of Madhurmilan flats in Vadaj area of city of Ahmedabad with his parents. In the same complex, in flat no. C-12, Kedar Vijaykumar Bhavsar, aged about 23 years, also lived with his family. Henil used to tease Kedar calling him impotent and eunuch. Even when warned not to do so, Henil continued his pranks.
Due to this, on 12.02.2007 between 5:15 and 6:30 p.m., Kedar called Henil inside his house. After tying up his hands with a rope and blindfolding Henil, Kedar slit his throat with a knife causing his death. He thereafter removed the dead body from his house by placing it in a plastic sack and left it on the terrace of the complex. He also cleaned the floor of his house.
3. Charge was framed at Exh.3 in which it was alleged that deceased Henil used to tease accused Kedar calling him impotent. Therefore, keeping a grudge, on 12.02.2007, accused secured presence of Henil inside his house under the pretext of teaching him magic tricks. He tied the hands of Henil, blind folded him, strangulated him and also slit his throat and caused his death. He had thus committed offences punishable under Section 302 of the Indian Penal Code and 135(1) of the Bombay Police Act.
4. Sangitaben Kamleshbhai Patel, P.W.1, the mother of deceased Henil and first informant was examined at Exh.8. She deposed that she resided in flat no. C-6 of Madhurmilan flats along with her husband and son Henil who was aged nine and half years. He was studying in 4th standard. At about five thirty to quarter to six in the evening, Henil was missing. She started searching for him. Henil told her that he was going with Ujjaval for playing and learning magic tricks on the terrace. She did not find the children on the terrace. She found Henil s sandals on the stairs of the block opposite Ujjaval s house. She inquired with the friends of Henil but he was not found. When she and others were looking for the boy, one Kokilaben Kalidasbhai who had gone on the terrace of C block shouted and called her there. When she went there, she found a white sack lying in a corner. Her neighbour Geetaben also arrived. When they tried to lift the sack they found a pool of blood underneath. When she saw inside, she found Henil there. His throat was slit. They all started screaming. People gathered there. Her husband also arrived. People from the block carried Henil to the hospital of Dr. Alpesh Bhatt who declared him dead. Her complaint was registered by the police which was produced at Exh.9.
4.1. In her cross-examination, she stated that the bag from which the boy was found was a fertilizer bag of Maize Product about 3 feet long. She had no animosity with the family of the accused.
5. Kamlesh Patel, P.W.16, Exh.56, father of the deceased deposed that he was working as a primary school teacher. On the date of the incident, he had gone for work. When he was taking private tuition, he was informed by his wife that Henil was missing. When he reached home, he saw a crowd and therefore went straight to the terrace where he saw his son placed in a bag, bleeding.
6. Geetaben Yogeshkumar, P.W.12, Exh.49 was also a resident of Madhurmilan flats. She deposed that on 12.02.2007, she returned home from service at about 6:30. Sangitaben came to her house crying. Kokilaben told her that Sangitaben s son was missing. She also therefore joined Sangitaben in search of the boy at which time Kokilaben shouted from the terrace. She sounded scared. They rushed to the terrace of C block and found a bag in a corner with a pool of blood under it. They could see a part of head of Henil.
7. Durgaben Sanjaykumar Patel, P.W.13, Exh.51 was a resident of flat no. C-7 of Madhurmilan flats. She deposed that on 12.02.2007 when she was cleaning the rice grain with other women, at about 5:00 O clock, complainant Sangitaben met her and informed her that she was going to attend a Besna. She left for Besna with Henil at 5:30 and returned after 10 to 15 minutes later after which the women disbursed except Kshmaben, mother of Ujjaval. At that time, Ujjaval had come to his mother to take the keys of the house. He looked scared. His mother asked him why he was scared, he informed her that he was going out with accused Kedar. This witness further stated that when Henil returned with Sangitaben after Besna, Ujjaval had come and called him for playing the magic tricks.
8. Sonalben Kalpeshkumar Patel, P.W.15, Exh.55 was another resident of the same flats. According to prosecution she was also at the house of Durgaben, P.W.13 when Ujjaval had come to collect the keys from his mother. This witness, however, turned hostile.
9. Kshmaben, mother of Ujjaval, P.W.18 was examined at Exh. 59. She deposed that she lived in flat no. C-6 of Madhurmilan flats. Vijaybhai Bhavsar lived in flat no. C-12 with his wife and son. His son Kedar studied in Bhuj but would go there only for giving examination, otherwise would spend rest of the time at Ahmedabad. Ujjaval used to take maths tuition from Kedar. On the date of the incident, she was at the house of Durgaben along with other women including Sonalben, Kokilaben etc. At about 5:15 in the evening when she was there, her son came to take the keys and informed her that he was going with Kedar for getting bandage. He had taken the keys for wearing his sandals and after wearing the sandals came back and returned the keys. When she later on returned from the market she found that Henil was missing. She also tried to look for him. Kokilaben shouted from the terrace and called them. When they went there, they found a bag containing body of Henil.
10. Ujjaval Vijaykumar Soni, P.W.19, Exh.69 was aged about 14 years at the time of deposition and some two years younger when the incident took place. He deposed that he lived in flat No.C-9 of Madhurmilan apartment. Henil also lived in C block and was his friend. They often played together in the ground as well as on the terrace. Henil used to tease Kedar calling him impotent and Kedar used to get angry and would stop Henil from saying such things.
On the date of the incident he returned from his tuition. Kedar called him to his house which was situated opposite to his own flat. Kedar instructed him to call Henil to teach him magic. Henil was not at his house at that time but had gone to a Besna. After Henil returned, he took him into the house of Kedar under whose instruction he sat outside and started watching television. He saw that accused Kedar was pressing neck of Henil. Soon he became quite. Kedar then told him to come with him for getting a bandage. At the time of strangulating, Kedar had worn white gloves. When they left the house Kedar was carrying a plastic bag which he threw from a bridge into the river. They had gone to a place near Dandi bridge for getting bandage. When he asked Kedar as to what happened to Henil, he told him that Henil had died and he had killed him. When they returned to the society, everybody were looking for Henil. Finally they found Henil from the terrace.
When he and Henil had gone to the house of accused Kedar, Henil had taken out the sandals on the staircase. At the time of the incident accused was wearing banyan and a pajama. Henil was wearing shorts and a jersey. He identified the clothes of the accused and the deceased respectively before the Court.
10.1. In the cross-examination, he agreed that he had gone couple of times to the chamber of public prosecutor before his deposition. He had spoken to the public prosecutor as well as the private advocate with prosecution. He admitted that when the accused was assaulting the deceased he had not shouted for help. He stated that the police had taken him where the accused had thrown the bag on the previous day.
11. Doctor Kalpeshbhai Somchandbhai Kothariya, P.W.20, Exh.70 had carried out the postmortem of deceased Henil on 13.02.2007. in his deposition before the Court as well as in the postmortem report Exh.71 he pointed out following injuries:
(1) Incise wound present in front of the neck at C4 leave. It goes transverse starting 2 cm left to the midline then goes right side upto 5 cm below the right mastoid process total length 13 cm long 0.5 cm width. It is between hyoid bone and thyroid cartilage with inverted margin and sharp cut with tailing at right side.
(2) incise wound present 0.5 cm below injury No. (1) at midline. Size 3.5 cm x 0.5 cm in same direction.
11.1. Such injuries were ante mortem. In his opinion, the cause of death was cut throat injury. He had collected the clothes of the deceased and the blood samples for forensic analysis.
12. The inquest panchnama Exh.11 proved through panch-witness Maheshbhai D. Trivedi, P.W.2, Exh.10 recorded wounds on the neck.
13. Panchnama of scene of offence Exh.14 was produced by panch-witness Mahendrakumar D. Soni, P.W.3, Exh.13. It showed blood spots on the terrace of C block of Madhurmilan flat. Flat no. C-12 is situated on the 3rd and top floor of the complex. In front of the main door of the flat, on the stairs, a pair of sandals was lying.
14. The clothes of the accused were collected under a panchnama Exh.19. Kalidas K. Patel, P.W.4, Exh.18, one of the panchas turned hostile but second panch-witness Sanjaykumar A. Patel, P.W.5, Exh.23 supported the prosecution. Such clothes included a T-shirt, a banyan and a pajama of the accused. The banyan and pajama showed blood spots.
15. Panchnama of the house of the accused was produced at Exh.25. Panch-witness Rohitbhai K. Dave, P.W.6, Exh.24 deposed that such place was shown to the panch-witness by the accused himself. He had taken the panch party in a room inside flat no. C-12. From such place samples were taken with cotton gauze from the floor.
16. Various articles used for cleaning the room in block no.C-12 and thrown away in a plastic bag were recovered under discovery panchnama Exh.29. Dalsukhbhai Shantilal, P.W.7, Exh.28, a panch-witness of discovery panchnama, supported the prosecution and deposed before the Court the manner in which such articles were discovered at the instance of the accused. His deposition and the panchnama would show that after drawing a preliminary panchnama, the accused, the police party and the panch-witnesses travelled in a police vehicle as directed by the accused. The vehicle was stopped near Prabodh Raval Bridge where they all got down. From under the bridge, from a stream of dirty water, a plastic bag was taken out. It contained two white hand gloves, one bed sheet, one handkerchief, one pillow cover, two printed pieces of cloth and some thread.
17. The murder weapon knife was discovered at the instance of the accused under a discovery panchnama Exh.42. Panch-witness Madhubhai Punmaji, PW.10, Exh.40 gave a detailed account how the accused led the police party and the panch-witnesses to unearth such article. After drawing a preliminary panchnama, the accused the police personnel and the panch-witnesses traveled in a police vehicle on the route shown by the accused. When they reached Chandrabhaga Bridge near Vadaj circle, they all got down from the vehicle and went on foot at another bridge. From a small cavity of a pillar of the bridge, the accused took out a knife.
18. The prosecution examined Rameshbhai Kalidas Shah, P.W.14, Exh.54, the shop owner from where the accused had allegedly purchased the hand gloves. Testimony of this witness, however, would not be of any use for the prosecution because he could not identify the accused. He in fact only stated that the police had brought the accused to his shop and informed that he had purchased the gloves. It was therefore that he identified the accused before the Court.
19. Dharmendrakumar Ishwarlal Modi, P.W.17, Exh.57 had a small dispensary in the Vadaj area. He was a Hadvaidh (repairing dislocated and broken bones). On 12.02.2007, accused Kedar had gone to him at about 6:00 O clock with a complaint of knee pain. He had bandaged his knee. He found that his knee was paining. He had produced the extract of his register recording the treatment he gave at about 6:30 on 12.02.2007.
20. Chandrakant Chhaganlal Raval, P.W.22, Exh.77, the investigating officer gave the details of the steps taken during investigation. In the cross-examination, he denied that the panchnamas of discovery and recovery were prepared in the police station without taking out the accused from the lockup. He admitted that though ordered, neither the logbook nor the lockup register could be produced before the Court. He, however, denied that such documents were not produced because they would establish that the accused was never taken out of the lockup after his arrest.
21. Various articles recovered during the course of investigation were sent for forensic analysis. The FSL report was produced at Exh.84. The serological report was produced at Exh.85. Combined reading of the FSL report and the serological report would establish that human blood was found from the plastic bag from which the dead body was found, the clothes of the accused which included the banyan and pajama, various articles found from the plastic bag discovered at the instance of the accused which included the hand gloves, bed sheet, handkerchief, piece of clothes, pillow cover and the thread and also the knife. Blood was also found on the cotton gauze collected from the room of flat No.C-12. The blood group of deceased was A . The blood group of the human blood detected from all these articles barring the cotton gauze and the thread was proved to be A . The blood group of these two articles could not be analyzed.
22. This in the nutshell is the evidence on record.
23. Learned counsel Shri Asim Pandya for the appellant submitted that there was no evidence to establish the guilt of the accused. Testimony of the so-called eyewitness Ujjaval was totally unbelievable because; (a) his assertion that the accused strangulated the deceased was in conflict with the medical opinion which showed that the death was due to the knife injury received on the neck, (b) the place of incident narrated by this witness did not match with the prosecution version of finding the blood spots which was from another room, (c) the witness was tutored as it was admitted by the witness himself that he had meetings with the public prosecutor as well as the advocate engaged by the complainant, (d) the conduct of the witness was unnatural. Even while the deceased was being assaulted he raised no alarm, nor did he mention about it to anybody later on. In absence of the evidence of Ujjaval, the entire case rests on circumstantial evidence. The circumstances in present case are not sufficient because; (a) the dead body was found from the open terrace where anybody could have left it there, (b) as per doctor Kalpesh, P.W.20 this was the handy work of an expert whereas the accused was a student aged about 22 years, (c) there was no witness establishing the accused and the deceased being seen together. The last seen together theory is, therefore, not applicable, (d) the motive was not established and (e) except Ujjaval no other witness had made any mention about teasing of the accused by the deceased. Counsel submitted that the discoveries of the murder weapon and various articles allegedly found from two different places were not at the instance of the accused. Accused was never taken out of the police lockup. It was because of this that the prosecution did not produce the logbook and the lockup register though ordered by the Court.
24. On the other hand, learned Additional Public Prosecutor Ms. Punani opposed the appeal contending that there was strong evidence in the form of eyewitness as well as circumstantial evidence to establish the guilt of the accused. The trial Court had given cogent reasons. There is no reason to reverse the decision of the Court below.
25. Having heard the learned counsel for the parties, if we summarize the evidence on record, the first portion of the evidence pertains to the events shortly before and after deceased Henil went missing. On 12.02.2007, Henil, aged about 10 years, residing in Madhurmilan Flats in Vadaj area of city of Ahmedabad could not be found in the evening hours. His mother Sangitaben, P.W.1 therefore started looking for the boy at five thirty to quarter six of evening hours. Before leaving, he had told his mother that he was going out to play with Ujjaval. The complainant Sangitaben and other ladies of the flats tried to search for the boy. The first person who noticed the sack on the terrace of C-block was Kokilaben. She called Sangitaben who went there along with other women. When she found her son in a bleeding condition in a sack, she obviously started screaming. Others arrived at the site. Soon the father of the boy also came. The boy was rushed to a nearby hospital where he was declared dead.
26. The evidence of Sangitaben, P.W.1 was duly corroborated by Geetaben, P.W.12, Exh.49, Durgaben, P.W.13, Exh.51, Kshmaben, P.W.18, Exh.59. They are also supported by Kamleshbhai, P.W.16, Exh.56, the father of the deceased Henil.
27. In fact Kshmaben, P.W.18, Exh.59 was, in that evening, at the house of Durgaben while her son Ujjaval had come to her to take the keys of the flat for wearing his sandals because he wanted to accompany the accused Kedar to the hospital. Durgaben also supported the testimony of Kshmaben.
28. One thing which is clearly established through the evidence of these witnesses is that in the evening of 12.02.2007, boy Henil was found missing at about 5:30 to 5:45 hours, whose mother started searching for him. Other ladies also joined. Shortly he was found in a sack on the terrace of C-block of the flats. Around the same time his friend Ujjaval had come looking for him for playing. Henil had gone with Ujjaval shortly before he went missing.
29. In this background, we may examine the evidence of Ujjaval, P.W.19, Exh.69. He was a young boy aged about 12 years at the time of incident. According to him, Henil used to tease the accused Kedar calling him impotent and eunuch.
Kedar was extremely unhappy about this. On 12.02.2007, Kedar instructed Ujjaval to bring Henil to his house under the guise that he would teach them magic. Once Ujjaval went to the house of Henil, he had gone with his mother to a Besna. After returning he took Henil to the house of Kedar where, according to this witness, the accused strangulated Henil. He, thereafter, took Ujjaval with him to a doctor for his knee s sprain. He took along a plastic bag.
30. It is true that the testimony of Ujjaval regarding the manner in which Henil was killed has not been supported by the medical evidence. The postmortem report revealed knife injuries on the neck. There was no ligature marks or any other sign of strangulation. In that context we would agree with the counsel for the appellant that to this extent the so-called eyewitness Ujjaval s testimony cannot be relied upon. He was of course a young boy of 12 years age. He was however studying in a school and would certainly know the difference between strangulation and being assaulted with a knife.
31. Nevertheless, the entire deposition of this witness need not be discarded. There are several other elements of his evidence which are crucial and many of them are duly corroborated by other witnesses. According to this witness, Henil had accompanied him in the evening of 12.02.2007. This was also supported by Sangitaben, P.W.1. After this incident, according to Ujjaval, he had accompanied accused Kedar for the treatment of Kedar s knee sprain for which purpose for wearing sandals he had to take the keys of his house from Kshmaben, mother of Ujjaval. This was corroborated by Kshmaben, mother of Ujjaval as well as Durgaben Sanjaykumar Patel, P.W.13 at whose flat Kshmaben was sitting when Ujjaval came to collect the keys of his house. The person to whom the accused and Ujjaval had gone also supported the prosecution case.
32. In view of analysis of depositions of these witnesses, few things clearly emerge. Firstly, Henil was in habit of teasing the accused Kedar by using derogatory expressions. Kedar was unhappy about it and asked Henil not to do so. On 12.02.2007, Ujjaval brought Henil to the house of Kedar upon being told by Kedar. Sometime later, Kedar left with Ujjaval on his motorcycle with a plastic bag. He first threw the plastic bag from Prabodhraval Bridge and later on contacted the Hadvaid.
33. The later version of Ujjaval was also supported by the doctor (Hadvaid) Dharmendrakumar Ishwarlal Modi, P.W.17, Exh.57. He had briefly treated Kedar for his knee sprain between 6:00 to 6:30 in the evening of 12.02.2007.
34. In addition to such eyewitness account on record, there are several other circumstances, which unerringly point to the guilt of the accused. Such circumstances are as follows:
The dead body was found on the terrace of block C. Flat No.C-12 in which the accused lived was on the top floor of the said block. The time of murder is crucial here. It happened between 5:15 to 6:30 in the evening. It was a busy residential locality. Children were playing and women were busy with household work. Dead body of a ten years old boy could not have been carried from a far away place and left on the terrace without attracting attention of any one. It would have happened at a place very close to the terrace.
(2) The sandals of deceased Henil were found just outside the door of flat No.C-12.
(3) The murder weapon knife was discovered at the instance of the accused. As per the panch-witness P.W.10 - Madhubhai Punmaji, Exh.40 and the panchnama Exh.42, the accused led the police party to Chandrabhaga Bridge where from a cavity of a pillar under the bridge, the knife was taken out.
(4) Various articles alleged used for cleaning up the floor after committing the murder were discovered at the instance of the accused. The panch-witness Dalsukhbhai Shantilal, P.W.7 and panchnama Exh.29 would demonstrate that the accused led the police party and near Prabodhraval Bridge from where, under the bridge, from a stream of dirty water a plastic bag containing various articles such as hand gloves, bed sheet, pillow cover, pieces of clothes and handkerchief and some thread was discovered. We may recall, Ujjaval also had mentioned about the accused having thrown away a plastic bag from top of the bridge.
(5) The FSL report and serological report suggest presence of human blood on banyan and pajama of the accused, on murder weapon knife discovered at his instance, on various articles discovered under panchnama Exh.29 such as the hand gloves, bed sheets, pieces of clothes, handkerchief, etc. (6) The floor of flat No.C-12 detected presence of human blood. From all articles except the cotton gauze and the thread the blood which was found was analyzed as group A as that of the deceased.
35. To our opinion, thus, there was overwhelming evidence through which the involvement of the accused in the commission of the crime is established. The last seen together theory was more than established in the form of different witnesses and also through the evidence of Ujjaval. According to the witness Ujjaval, Henil was taken by himself to the house of accused. Shortly thereafter the dead body of Henil was found from the terrace of block C. The house of accused was on top floor of the said block.
36. In addition to such chain of events, the strong circumstance of blood of the deceased being found from the clothes of the accused, from the murder weapon knife discovered at his instance and the various articles discovered from a plastic bag at the instance of the accused would unerringly point to his involvement. The motive for commission of the crime was also established. The accused perhaps developed a great detest for the boy for his insulting behaviour.
37. It is true that the prosecution did not produce the lockup register. Such lockup register was produced by the defence and it was duly exhibited as Exh.100. This lockup register does not indicate anything which can be useful to the defence. It is also true that witness Ujjaval mentioned that police had taken him when the plastic bag was discovered. This was contrary to what the investigating officer had stated. However, this isolated factor would not convince us that the discovery was not genuine or it was not made at the instance of the accused. The panchas were examined before the Court and they supported the prosecution. We have no reason to discard the evidence of independent panchas. Additionally, the reference of Ujjaval was only with respect to the discovery of the plastic bag and had nothing to do with the discovery of the murder weapon knife.
In our opinion, the learned trial Court committed no error in convicting the accused. His sentence and conviction is, therefore, confirmed. Criminal appeal is dismissed.
The R & P be transmitted back to the learned trial Court.
(AKIL KURESHI, J.) (R.P.DHOLARIA,J.) Jani Page 18 of 18