Gujarat High Court
State Of Gujarat vs Bhavan Bhikhubhai Sodha on 15 June, 2018
Bench: M.R. Shah, Mohinder Pal
R/CC/11/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL CONFIRMATION CASE NO. 11 of 2011
With
R/CRIMINAL APPEAL NO. 1281 of 2011
With
R/CRIMINAL APPEAL NO. 521 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE MOHINDER PAL Sd/
=============================================
1 Whether Reporters of Local Papers may be allowed to see No the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any order made thereunder ?
============================================= STATE OF GUJARAT Versus BHAVAN BHIKHUBHAI SODHA ============================================= Appearance:
CC 11/2011 MR MITESH AMIN, PUBLIC PROSECUTOR with MR RAKESH PATEL, APP for the Appellant(s) No.1 MR JAIVIK UDAY BHATT, ADVOCATE for the Respondent(s) No. 1 MR PM LAKHANI , ADVOCATE with MR JM PANCHAL, ADVOCATE for Respondent(s) No. 1 MRS R P LAKHANI, ADVOCATE for the Respondent(s) No. 1 CRIMINAL APPEAL NO.1281/2011 MR PM LAKHANI , ADVOCATE with MR JM PANCHAL, ADVOCATE for the Appellant(s) No. 1 MRS R P LAKHANI, ADVOCATE for the Appellant(s) No. 1 MR JAIVIK UDAY BHATT, ADVOCATE for the Appellant(s) No. 1 MR MILAN R MARUTI ADVOCATE for Appellant No.1 MR MITESH AMIN, PUBLIC PROSECUTOR with MR RAKESH PATEL, APP for the Respondent(s) No. 1 CRIMINAL APPEAL NO.521/2014 MR PM LAKHANI , ADVOCATE with MR JM PANCHAL, ADVOCATE for the Appellant(s) No. 1 MRS R P LAKHANI, ADVOCATE for the Appellant(s) No. 1 MR JAIVIK UDAY BHATT, ADVOCATE for the Appellant(s) No. 1 Page 1 of 75 R/CC/11/2011 CAV JUDGMENT MR MILAN R MARUTI ADVOCATE for Appellant No.1 MR MITESH AMIN, PUBLIC PROSECUTOR with MR RAKESH PATEL, APP for the Respondent(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 15/06/2018 COMMON CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] As present Criminal Confirmation Case No.11/2011 and Criminal Appeal Nos.521/2014 and 1281/2011 arise out of the impugned judgment and order of conviction and sentence dated 30.07.2011 passed in Sessions Case No.164/2000 passed by the learned Additional Sessions Judge, Jamnagar (hereinafter referred to as "trial Court"), they are disposed of by this common judgment and order.
[1.1] That by impugned judgment and order the learned trial Court has convicted the original accused No.1 - Bhavanbhai Sodha for the offences punishable under Sections 302, 201 and 34 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and has awarded death penalty with fine of Rs.500/. Therefore, the learned trial Court has referred the case to this Court under Section 366 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") for confirmation of the death sentence awarded to the original accused No.1 - Bhavanbhai Sodha, which has been numbered as Criminal Confirmation Case No.11/2011.
[1.2] Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned trial Court by which the learned trial Court has convicted the original accused No.1 for the offences punishable under Sections 302, 201 and 34 of the IPC, original accused No.1 has preferred Criminal Appeal No.521/2014.Page 2 of 75 R/CC/11/2011 CAV JUDGMENT
[1.3] That being aggrieved and dissatisfied with the impugned judgment and order by which the learned trial Court has also held the original accused No.2 guilty for the offence under Section 201 of the IPC and has sentenced him to undergo 7 years' Rigorous Imprisonment with a fine of Rs.5000/ and in default to undergo further 1 year Rigorous Imprisonment, the original accused No.2 has preferred Criminal Appeal No.1281/2011.
[2.0] The prosecution case in nutshell is as under: [2.1] It was the case on behalf of the prosecution that the original accused No.1 viz. Bhavanbhai Sodha used to reside at Shree Sadan along with the deceased Ranjanben widow of onw Shri K.P. Shukla, Advocate and her two minor children viz. Devdutt and Avani. As per the case of the prosecution, in order to usurp the properties of the said Ranjanben, the original accused No.1 won over her trust and both were residing together as husband and wife. That the original accused No.1 and original accused No.2 were father and son respectively. That the original accused Nos.1 and 2 had already transferred certain properties in their names as well as taken action and jewelry belonging to Ranjanben.
[2.2] It was the case of the prosecution that when the deceased suspected the behavior and conduct of the original accused and their ill intention, she started investing in the properties at Rajkot and Jamnagar. Having felt that their plan has been exposed, original accused in order to do away with the deceased and her minor children, on the night of 12th / 13th June, 2000, the original accused kept watch at Shree Sadan where original accused No.1 had killed the deceased Ranjanben with sword while she was sleeping at her residence and thereafter he went to the room of minor Devdutt and Avani and (children of the deceased) and had brutally killed them too with the sword. That thereafter original Page 3 of 75 R/CC/11/2011 CAV JUDGMENT accused No.1 with the aid of deadly weapons like sword, hacksaw blade cut the said dead bodies into pieces and had stored them in the water tank situated at address and had poured salt as well as acid in order to decompose the body parts. As per the case of the prosecution after a period of about one month, the original accused No.1 removed the body parts from the water tank and filled them in the fertilizer bags and used a car belonging to one Ratilal to transfer the same and had disposed of the said bags at Jamnagar - Kutch near Maliya and thereby tried to destroy the evidence of the crime. That having found the pieces of the bodies of the aforesaid three deceased persons, an FIR came to be registered as ICR No.460/2000 with Jamnagar 'B' Division Police Station for the offences punishable under Sections 302, 201 and 34 of the IPC. The aforesaid FIR was investigated by PI Shri Vaghela Dilipsinh (PW106) and one Babulal Jivandas Parmar (PW100, Exh.441) along with Shri Babansinh Jadeja (PW86) also assisted the Investigating Officer. The Investigating Officer during the course of the investigation recorded the statement of the concerned witnesses. He prepared the panchnama of the place of incident. He recovered the weapon used by the original accused No.1 in commission of the offence at the instance of the original accused No.1 and from the place which was shown by the original accused No.1. The Investigating Officer also collected the relevant material such as blood, hair etc. of the original accused No.1 - Bhavanbhai Sodha. He also collected the medical evidence etc. He also collected the necessary documentary evidences from the bank.
[2.3] At the conclusion of the investigation and having found prima facie case against both the accused, the Investigating Officer filed the chargesheet against original accused in the Court of learned Judicial Magistrate First Class, Jamnagar for the offences punishable under Sections 302, 201 and 34 of the IPC.Page 4 of 75 R/CC/11/2011 CAV JUDGMENT
[2.4] As the case was exclusively triable by the Court of Sessions, learned Judicial Magistrate First Class, Jamnagar committed the case to the Sessions Court, Jamnagar which was transferred to the Court of 3rd Additional Sessions Judge, Jamnagar which was numbered as Sessions Case No.164/2000.
[2.5] That the learned trial Court framed the charge against both the accused at Exh.53 for the offences punishable under Sections 302, 201 and 34 of the IPC. That both the accused pleaded not guilty and therefore, both of them came to be tried by the learned trial Court for the aforesaid offences.
[2.6] To prove the case against the accused, the prosecution examined as many as following 106 prosecution witnesses.
Sr. Witness Exh.
No. No.
1. Panch Satubha Narubha 75
2. Panch Rafiqsha Umarsha 77
3. Panch Devdan Khimabhai 78
4. Panch Becharbhai Ravjibhai 80
5. Panch Karim Ayubbhai 82
6. Panch Mahesh Natvarlal 84
7. Panch Naran Khodubhai 86
8. Panch Hanif Ismail 89
9. Panch Osman Kasamn 91
10. Panch Asraf Jusab 93
11. Panch Vipul Devabhai 94
12. Panch Sukhdevsinh Ranbirsinh 96
13. Panch Chhotubha Narubha 97
14. Panch Jivandas Keshavdas 99
15. Panch Manish Prafulbhai Ganatra 100
Page 5 of 75
R/CC/11/2011 CAV JUDGMENT
16. Panch Niranjan Bhikhubha 102
17. Panch Naresh Nemraj 103
18. Panch Eliyas Mamad 105
19. Panch Girish Dhanjibhai 106
20. Panch Hemubha Dilubha 108
21. Panch Ajitsinh Hemantsinh 109
22. Panch Jayesh Chandrakant 111
23. Panch Indujit Jethalal 112
24. Panch Jitendra Purushottam 113
25. Panch Jitendrasinh Gambhirsinh 120
26. Hussainkhan Azamkhan 129
27. Hussain Mamad Amad 130
28. Hitesh Chandrakant 133
29. Mohan Bhanubhai 135
30. Aapa Govind 138
31. Mulubhai Tapubhai 140
32. Ismailmiya Abbasmiya 141
33. Nathalal Raghavjibhai 142
34. Pareshkumar Shankerlal Trivedi 143
35. Hasmukhbhai Vitthaldas 144
36. Gulam Abbas Mahamadali 146
37. Laljibhai Sukhabhai 149
38. Dahyalal Jadavji 152
39. Virambhai Mafatbhai 158
40. Varshaben W/o. Sureshchandra 160
41. Shantaben Chakubhai 164
42. Pradipbhai Pritamlal 167
43. Lalji Ranchhod 168
44. Haribhai Javerbhai 177
45. Prashantkumar Karanbhai 186
46. Sushobanroy Dilipkumar 190
47. Prafulbhai Vrajlal 201
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R/CC/11/2011 CAV JUDGMENT
48. Vora Saifuddin Nazarali 209
49. Jagdish Prasad Ganpatlal 214
50. Hirabhai Govabhai 218
51. Harshadbhai Kalyanji 220
52. Madhuben W/o. Mathuradas 236
53. Manharlal Navnitbhai 237
54. Harigiri Guruomkargiri 238
55. Chhotalal Gopaldas 239
56. Chhaganbhai Karamshibhai 240
57. Parvatiben W/o. Shantilal 241
58. Sanjay Babulal 243
59. Ramesh Nagji 244
60. Nurmamad Jusab 245
61. Jorubha Bhupatsingh 248
62. Hirabhai Karshan 249
63. Ashaben Ratilal 250
64. Haribhai Vrujlal 252
65. Ashwinbhai Amrutlal 253
66. Lokbahadur Devbahadur 256
67. Chimanlal Sundarji 257
68. Hussain Amirmiya 258
69. Gordhan Pirumal 259
70. Champaben Gulabji 260
71. Manguben W/o. Govindbhai 261
72. Bachubhai Karshanbhai 262
73. Jigneshbhai Bhavanpuri 263
74. Jayendrabhai Kanjibhai 265
75. Madhuben Manubhai 266
76. Manubhai Naranbhai 267
77. Vinod Kishore 268
78. Prafullaben Naranji 270
79. Himanshu Kishorebhai 272
Page 7 of 75
R/CC/11/2011 CAV JUDGMENT
80. Lalji Chhagan 273
81. Asif Yunus 274
82. Babubhai Raghubhai 275
83. Amubhai Jesang 279
84. Mamad Ismail 281
85. Bhupendra Parsottam 283
86. Balvantsinh Bhojubha 287
87. Bipinkumar Manilal 289
88. Dharmendrasinh Surubha 291
89. Dr. Jagdishchandra Pranjivan 298
90. Valji Narshi 305
91. Hanumandas Gopaldas 314
92. Dr. Nirajbhai Badriprasad 327
93. Gopalgiri Hemshankergiri 330
94. Dr. Ganeshbhai Pyarelal 338
95. Hirabhai Muljibhai 394
96. Bhikhubha Balubha 412
97. Narendrasinh Bharatsinh 420
98. Shaktisinh Natvarsinh Zala 427
99. Babulal Jivandas 441
100. Bharatsinh Fulubha 442
101. Jashubhai Nanjibhai 449
102. Bhathuji Jujaji 458
103. Balubha Nagbha Rana 460
104. Rambhai Pethabhai 463
105. Vishnudan Jashubhai Gadhvi 467
106. Dilipsinh Gatorsinh Vaghel 470
[2.7] From the aforesaid witnesses the prosecution brought on record the following documentary evidences.Page 8 of 75 R/CC/11/2011 CAV JUDGMENT
Sr. Details Exh.
No. No.
1. Arrest Panchnama of accused No.1 76
2. Inquest Panchnama 79
3. Panchnama of local place 81
4. Inquest Panchnama 83
5. Panchnama of seizure after post mortem 85
6. Panchnama of local place 87
7. Panchnama of house of accused No.1 90
8. Panchnama of seizure of maruti 92
9. Panchnama of cloth produced by launderyman 95
10. Panchnama of identification of muddamal 98
11. Panchnama of seizure of photos of deceased 101 and accused
12. Panchnama of accused No.1's blood, saliva 104 samples collected 13. Panchnama of bank lock 107 14. Discovery panchnama of accused No.2 110 15. Panchnama of demonstration of accused 114 16. Panchnama of chitthi produced 115
17. Panchnama of identification of accused No.1 116 by witnesses
18. Panchnama of identification of accused No.1 117 by witness Jorubha 19. Panchnama of place of offence 121 20. Inquest panchnama of local place 122 21. Panchnama of local place of Shree Sadan 123 22. Bank account opening form of accused 178 23. CBI FDR 179 to 181 24. Application made by deceased to CBI 182 25. Death certificate of K.P. Shukla 183 26. Withdrawal Form (Guj.) 184 Page 9 of 75 R/CC/11/2011 CAV JUDGMENT
27. Signature card of deceased and K.P. Shukla 185 28. Extract of registered card of property 187 29. Copy of property card 188
30. Computerized and ledger account of R.K. 191 Shukla 31. Bank account of accused Pankaj 192
32. Ledger form of fixed deposit of R.K. Shukla 193 33. Banker Book Certificate 194 34. True copy from original 195
35. Bank account statement of deceased 196 Ranjanben 36. Yadi for preparing map 202 37. Map of local place 203 38. Bank account opening form of deceased 210
39. UBI Bank account opening form of the accused 211
40. Papers of bank 212, 213 41. Reply given by Manager of PNB 215
42. True copy of index2 of SubRegistrar's office 221 43. Information given by RTO 222 44. Document of index of Exh.221 223 45. Document of index of Exh.222 224 46. True copies of registered sale deed 225 to 231
47. Declaration about first information given to 280 Maliya Police Station 48. Certificate of post 284 49. Case papers 299
50. Yadi written to Rajkot Forensic Department 300
51. Yadi sent to F.D. for conducting post mortem 301
52. Yadi regarding handing over of investigation 308 53. Yadi made to Doordarshan 309 54. Note of publishing 310 Page 10 of 75 R/CC/11/2011 CAV JUDGMENT 55. Pamphlet printed by police 311
56. Yadi made to Maliya Po.Station for registering 315 offence 57. Maliya Miyana Police Station 316
58. Report of serious offence by Maliya Miyana 317 Police Station
59. Report made to Divisional Police Officer 318 60. P.M. Report 339 61. P.M. Report with regard to P.M. Report 340 62. P.M. Report No.779/00 341 63. P.M. Report 343
64. P.M. Report 344, 345 65. Yadi made to Rajkot Medical College 346 66. Opinion of above report 347 67. Yadi made by LCB to Medical College 348 68. Joint opinion of Doctor 349
69. Certificate regarding collection of blood 350, 351 70. Form regarding collection of blood 352
71. Special Form with regard to sending for P.M. 375, 376 72. Zerox copies of Exhs.339, 344 377 to 379 73. Letter written to Morbi P.I. 414 74. Extract of Station Diary 415
75. Yadi handed over by Sub Police Inspector, 416 Morbi to Jamnagar City B Police Station
76. Report of Jamnagar City B Police Station for 417 serious offence
77. Receipt given towards consideration by 421 Ranjanben
78. Entry made by PSI, Maliya Miyana Police 428 Station for conducting P.M. Page 11 of 75 R/CC/11/2011 CAV JUDGMENT
79. Yadi made by PSI, Maliya Miyana Police 429 Station for conducting P.M. 80. Yadi made for imposition 430
81. Complaint on behalf of complaint by PSI Zala 431
82. Letter regarding sending of samples of seal 432 83. Yadi regarding sending of Muddamal 433 84. Form for Post Mortem 434 to 436 85. Yadi made for analysis 437 86. Entry for dispatch of muddamal 438 87. Receipt of receiving of muddamal 439 88. Certificate of authority 440 89. Information given by RTO 450 90. Arrest Panchnama of accused No.1 464 91. Arrest memo of accused No.1 465
92. Report made by Kagdapith Police Station, 466 Ahmedabad for making entry in register with regard to arrest of accused No.1
93. Yadi made for handing over accused No.1 to 468 LCB 94. Yadi for collection of blood of accused 476 95. Certificate for collection of sample 477
96. Yadi for taking remains of human body parts 478
97. Receipt with regard to receiving of above body 479, parts 480
98. Certificate regarding collection of blood 481 samples 99. Short report of P.M. 482 100. Panchnama of earrings 484 101. Yadi made to Punjab National Bank 485 102. Yadi made for doing inquest 487
103. Receipt with regard to receiving of muddamal 488 from Maliya Miyana Police Station 104. Office order of C.I. 489 Page 12 of 75 R/CC/11/2011 CAV JUDGMENT
105. Yadi made to Executive Magistrate for 490, bringing Panchas 491
106. Letter regarding nondeclaration of missing of 492 deceased persons to 494
107. Extract of Crime Register of Jamnagar City B 495 Police Station
108. Yadi written to Professor of Medical College 496
109. Yadi of FSL with regard to collection of sample 497
110. Letter of giving of photos of finger print 498 111. Yadi made to photographer 499 112. Photos clicked by photographer 500
113. Letter written for giving opinion of finger 501 prints 114. Yadi made to do super imposition 502 115. Certificate of authority 503 116. AnnexureA 504
117. Receipt with regard to receiving of muddamal 505 by FSL 118. Opinion of Finger Print Bureau 506 119. Yadi made for analysis 507
120. Certificate of above yadi and authority 508 121. AnnexureA appended with above Yadi 509 122. AnnexureB appended with above Yadi 510
123. Receipt regarding receiving of above 511 muddamal
124. Yadi regarding receipt of analysis report 512 received by Traffic Department 125. Forwarding letter of FSL 513
126. Analysis Report of Poison Science Department 514 127. Forwarding Letter of FSL 515 128. Analysis Report of FSL 516 129. Analysis of Serological 517
130. Letter of returning muddamal post analysis 518
131. List regarding receipt of muddamal back 519 Page 13 of 75 R/CC/11/2011 CAV JUDGMENT 132. Forwarding letter of FSL 520 133. Report of FSL 521 134. Forwarding letter of FSL 522 135. Report of super imposition test 523 136. Photographs of super imposition test 524 [2.8] That the prosecution submitted the closing purshis at Exh.525 declaring to close the evidence.
[2.9] That on submitting the closing purshis by the prosecution, further statement of both the accused were recorded under Section 313 of the CrPC. Both the accused in their further statement stated that they are innocent and that a false case has been filed against them and that they have not committed any offence. In their defence the accused also examined one Varshaben Manishkumar Joshi as defence witness. However, considering the proceedings of Criminal Misc. Application No.11191/2007 and the reply filed by her in the aforesaid proceedings, the learned trial Court has specifically observed and held that she is not reliable and she is not telling the truth and therefore, no reliance can be placed upon her oral testimony before the Court.
[2.10] That at the conclusion of the trial and by impugned judgment and order the learned trial Court has held the original accused No.1 guilty for the offences punishable under Sections 302, 201 and 34 of the IPC and treating and considering the case as rarest of rare case, by impugned judgment and order the learned trial Court has imposed the death penalty for the offence punishable under Section 302 of the IPC and separate sentence has been imposed for the offence under Section 201 of the IPC. Therefore, the learned trial Court has made reference to this Court under Section 366 of the Code of Criminal Procedure for Page 14 of 75 R/CC/11/2011 CAV JUDGMENT confirmation of the death sentence awarded to the original accused No.1, which has been numbered as Criminal Confirmation Case No.11/2011.
[2.11] As observed hereinabove, feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence the original accused No.1 has also preferred Criminal Appeal No.521/2014.
[2.12] That by impugned judgment and order the learned trial Court has held the original accused No.2 - son of the original accused No.1 guilty for the offence under Section 201 of the IPC and has imposed sentence of 7 years' Rigorous Imprisonment with fine of Rs.5000/ and in default to undergo further one year's Rigorous Imprisonment.
[2.13] Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence the original accused No.2 has preferred Criminal Appeal No.1281/2011.
[3.0] We have heard Shri Jayant M. Panchal, learned advocate appearing with Shri P.M. Lakhani, learned advocate appearing on behalf of the original accused and Shri Mitesh Amin, learned Public Prosecutor appearing on behalf of the State.
Criminal Confirmation Case No.11/2011 with Criminal Appeal No.521/2014 [4.0] Shri Jayant Panchal, learned Counsel appearing on behalf of the original accused No.1 in support of his appeal being Criminal Appeal No.521/2014 and opposing the Criminal Confirmation Case No.11/2011 has vehemently submitted that in the facts and circumstances of the case Page 15 of 75 R/CC/11/2011 CAV JUDGMENT and the evidence on record, the learned trial Court has materially erred in holding original accused No.1 guilty for the offences punishable under Sections 302, 201 and 34 of the IPC.
[4.1] It is further submitted by Shri Panchal, learned advocate appearing on behalf of the original accused No.1 that the entire case is based on circumstantial evidence and there is no eye witness to the entire incident right from commission of the murder of the deceased persons till disposing of the dead bodies. It is submitted that therefore as per the settled proposition of law with regard to the cases based on circumstantial evidence, entire chain is to be formed and each link has to be connected pointing the guilt of the accused and the same needs to be proved by the prosecution beyond shadow of all reasonable doubt. It is submitted that even if one link is missing in the chain, chain collapses and the accused needs to be given benefit of the same.
[4.2] It is further submitted that as per the settled proposition of law prosecution has to prove its own case on its own evidence and the prosecution cannot rely on the defence of the accused. It is submitted that accused has an actual right to remain silent. It is further submitted by Shri Panchal, learned advocate that the evidences in such cases require higher degree of reliability and trustworthiness.
[4.3] It is submitted by Shri Panchal, learned Counsel appearing on behalf of the original accused No.1 that in the present case the charge framed against the accused No.1 - Bhavanbhai Sodha was required to be proved in accordance with law. It is submitted that prosecution was also required to prove the motive, attempt and commission of the crime against the accused persons, which the prosecution has failed, according to the Shri Panchal, learned Counsel appearing on behalf of the original Page 16 of 75 R/CC/11/2011 CAV JUDGMENT accused No.1.
[4.4] It is further submitted by Shri Panchal, learned Counsel appearing on behalf of the original accused No.1 that as per the charge framed against accused Bhavanbhai Sodha, following circumstances are required to be proved against the accused No.1 - Bhavanbhai Sodha beyond all reasonable doubt on the basis of the cogent, reliable, trustworthy and independent witnesses:
1. Deceased Ranjanben has a huge property and the said property was intended to be misappropriated by the accused persons.
2. Accused Bhavan Sodha has gained trust of deceased Ranjanben and developed relations with her and had started residing with her as husband and wife.
3. Accused persons had got a shop in Shree Sadan in name of accused No.2 Pankaj Sodha.
4. Accused had got Rs.20,000/ from the Union Bank of India and had purchased car from the said money, for accused No.2 Pankaj Sodha.
5. The deceased had got hint of the said bad intentions of the accused persons and the accused persons had realized that there game would turn down and thus, with a view to remove the hurdle i.e. Ranjanben and her two kids, started quarreling with them.
6. As a part of conspiracy, on 12/1362000 at around 1.30 at night accused No.2 had hidden himself in the ground floor of Shree Sadan so that in case of screaming / shouting, Pankaj Sodha can handle any one who might come up.
7. Accused No.1 Bhavan Sodha came with his Sword and went to the terrace of the building where deceased Ranjan was Page 17 of 75 R/CC/11/2011 CAV JUDGMENT sleeping, there Bhavan Sodha inflicted sword blow to the deceased Ranjan and killed her.
8. Thereafter, he killed the two kids who were sleeping in the rooms in Shree Sadan.
9. Thereafter, he cut the body of the deceased persons into pieces with Hexo blade, sword and other sharp objects and kept it into water tank by bringing salt from market.
10. Thereafter, accused No.1 Bhavan had asked accused No.2 Pankaj Sodha to bring acid and the same was been poured in the water tank.
11. Thereafter almost one month, the accused No.2 had got car of Ratilal Bharadiya and accused No.1 had put the pieces of the body in the PPCL fertilizer bag.
12. 7 bags of fertilizers were been filled with the body pieces were thrown on JamnagarKutch road, near Maliya Miyana.
[4.5] It is submitted that therefore to prove the case against the accused, the prosecution will have to prove with cogent, reliable, trustworthy and independent witnesses, making chain of following circumstances.
1. The prosecution has to prove the relation in nature of husband and wife between original accused No.1 - Bhavanbhai Sodha and the deceased Ranjanben;
2. The period of time will also have to be proved as to the fact that till the date of incident the deceased and the original accused No.1
- Bhavanbhai Sodha were in relation and staying together;
3. That there were property transaction between the accused person and the deceased;
4. The prosecution will also have to prove that Rs.20,000/ given by way of cheque was utilized by the accused persons for purchase of Page 18 of 75 R/CC/11/2011 CAV JUDGMENT the car;
5. That the prosecution will also have to lead evidence with regard to the dispute between the deceased and accused persons with regard to the property;
6. That there was misappropriation of any property by the accused persons;
7. That with a view to commit murder on 12th/13th June 2000, the accused Bhavanbhai Sodha had gone to Shree Sadan with accused Pankaj and there Bhavanbhai Sodha had committed the murder of the deceased persons;
8. That on a certain day the accused have disposed of the bodies by cutting them into pieces and throwing them on highway near Maliya Miyana;
It is submitted that the aforesaid entire chain of circumstances are required to be proved by the prosecution with cogent, reliable, trustworthy and independent witnesses. It is submitted that mere presumption of facts and incident cannot be said to be proved beyond shadows of reasonable doubt.
[4.6] It is submitted by Shri Panchal, learned advocate appearing on behalf of the original accused No.1 that many of the prosecution witnesses viz. Mulubhai Tapubhai (PW31, Exh.140); Ismailmiya Abbasmiya (PW32, Exh.141); Nathalal Raghavjibhai (PW33, Exh.142); Jorubha Bhupatsingh (PW61, Exh.248) have not supported the case of the prosecution.
[4.7] It is further submitted that Jitendra Purshottam Pandya (PW24, Exh.113) is a government employee and an independent witness. However, looking to his deposition, it appears that he is a panch witness, author of four panchnamas, but all are demonstration Page 19 of 75 R/CC/11/2011 CAV JUDGMENT panchnamas and the same are not admissible as good piece of evidence. It is submitted that as same is extrajudicial confession made during police custody and therefore, hit by sections 26 and 27 of the Evidence Act. Therefore, it is submitted that in view of the said provisions, the same are not admissible. It is submitted that even otherwise the same were required to be proved by the prosecution. It is submitted that relying on the deposition of the said witness it only come to a conclusion that accused had made a confession while he was in police custody. It is submitted that other related witnesses who are important to prove the said facts as narrated are hostile witnesses. Thus, nothing is coming up on record to show that the same has been proved except finding of the body pieces on the road side, the place is alleged to be shown by the accused persons, but the same cannot be considered as discovery of fact as the same was already discussed to the general public at large as well as to the police prior to the arrest of the accused Bhavanbhai Sodha. It is submitted that thus the same is absolutely irrelevant. It is submitted that rest of the facts need to be proved by the prosecution in order to support its versions.
[4.8] It is submitted that if we read the panchnamas, there are few independent witnesses to the said panchnama, but they have not supported the story of the prosecution. It is submitted that Mulubhai Tapubhai (PW31, Exh.140) is a hostile witness who is alleged to have chakdo rickshaw through which he pulled the car. It is submitted that the said witness categorically denies the story of the prosecution.
[4.9] It is submitted that Ismailbhai (PW32, Exh.141) is also a hostile witness from whose petrolpump it was alleged that Bhavanbhai Sodha filled petrol. It is submitted that he has not supported the story of the prosecution. It is further submitted that Nathalal Raghavjibhai (PW Page 20 of 75 R/CC/11/2011 CAV JUDGMENT 33, Exh.142) is the person who alleged to had repaired the car but not supported the prosecution case. It is submitted that he has not supported the version of the prosecution for repair of the car. That spending of Rs.100/ for repair of the car has also not been proved, fact that it was returned and kept with Mulubhai itself has not been proved. It is submitted that handwriting have not been identified by Mulubhai. It is submitted that moreover the vehicle alleged to be used in commission of the said crime is also not proved.
[4.10] It is further submitted that Jorubha Jadeja (PW61, Exh.248) is the witness who has alleged to have filled petrol in the car of Bhavanbhai Sodha. It is submitted that the said witness has also turned hostile and has also not supported the story of the prosecution.
[4.11] It is submitted that therefore the panchnamas which are relied upon by the prosecution are not cogent, reliable, trustworthy evidence and as such they are hit by the provisions of the Evidence Act. Moreover, they are not proved. It is submitted that therefore the learned trial Court has committed grave error in relying upon the said demonstration panchnama for convicting and punishing the accused persons that too by awarding death penalty.
[4.12] It is further submitted by Shri Panchal, learned advocate appearing on behalf of the original accused No.1 that morever the learned trial Court has not considered the evidence of PW31, PW32 and PW61 as incriminating evidence and has rightly done so. It is submitted that the aforesaid fact is evident from the fact that no questions were asked in the further statement of the accused persons under Section 313 of the CrPC.
Page 21 of 75 R/CC/11/2011 CAV JUDGMENT[4.13] It is further submitted that only relying upon the deposition of Jitendra Pandya (PW24), it cannot be said that the prosecution has proved the case against the accused as the same is only a confessional statement by the accused during his police custody. It is submitted that the evidence of Dahyalal Jadavji (PW38) also has not been considered by the prosecution / learned trial Court as incriminating against the accused persons. It is submitted that in section 313 statement the only incriminating fact asked is with regard to Will related to foul smell coming from the car as narrated by Dahyalal Jadavji (PW36) - police officer. It is submitted that there is no legally admissible pieces of evidence in the hands of the prosecution to show that there was any foul smell coming from the said maruti car. It is submitted that there was no any incriminating substance found from the said maruti car which might help the prosecution. It is submitted that there is no charge of destroying evidence from the maruti car. It is submitted that therefore if the conclusion of the learned trial Court is seen, it is based only on the basis of the said confessional statement made during the police custody, which is inadmissible.
[4.14] It is further by Shri Panchal, learned advocate appearing on behalf of the original accused No.1 that deposition of Varshaben (PW
14) - wife of Sureshchandra at Exh.160 also cannot be relied upon. It is submitted that she is real sister of the deceased Ranjanben, who had identified the body. It is submitted that she made various allegations against accused persons. It is submitted that however from her cross examination, it clearly transpires that the motive as attributed to the accused persons, similar motive or issue was with the present witness and the deceased Ranjanben. It is submitted that there were many properties which she got transferred in her name from deceased Ranjanben but she is not sure as to the fact that whether consideration Page 22 of 75 R/CC/11/2011 CAV JUDGMENT was paid by her or not. It is submitted that as such she is not reliable witness, as she had made all sorts of allegations against the accused persons without substantiating the same. It is submitted that the allegations as mentioned by her in her deposition are not substantiated and/or proved. It is submitted that even otherwise there are material contradictions in her deposition and her original statement. It is submitted that her deposition before the Court is an improved version. It is submitted that even her character and conduct is highly suspicious, apart from the said fact that her story is not supported by any other witness or even her own interested witnesses nor they have been examined by the prosecution. It is submitted that therefore when the said witness has similar motive or circumstance against her with regard to the properties with the deceased, she was having a fair chance to implicate the accused person falsely. It is submitted that even the learned trial Court has as such not placed heavy reliance on the said witness while convicting the accused persons.
[4.15] Now, so far as the deposition of Shantabai Chakubhai (PW
41) is concerned, it is submitted that she is the witness who used to work as maid at the place of incident. It is submitted that as such she cannot be said to be eye witness. It is submitted that according to the said witness, she was informed by Varshaben, who happens to be the sister of the deceased, having property issue with the deceased Ranjanben. It is submitted that even she was recommended by Varshaben (PW40) for testimony. It is submitted that therefore probable chances of tutoring cannot be ruled out. It is submitted that even the allegations made by her in her deposition are not substantiated by any evidence. It is submitted that even in her deposition there are material contradictions and therefore, she is not a reliable witness. It is submitted that therefore except the aforesaid two witnesses PW40 and PW41, Page 23 of 75 R/CC/11/2011 CAV JUDGMENT there is not a single witness to support the case of the prosecution to show that original accused No.1 Bhavanbhai Sodha had any illicit relationship with the deceased Ranjanben. It is submitted that on the contrary Laljibhai Chauhan (PW43) has categorically stated in his deposition that he has never seen Bhavanbhai Sodha (accused No.1) residing at Shree Sadan. It is submitted that he is an independent witness having his shop in front of Shree Sadan and that he has seen many people visiting Shree Sadan where the deceased Ranjanben was residing.
It is submitted that except the story of Rs.20,000/ (that too by way of cheque), none of the allegations are proved. It is submitted that they have not given any evidence against the accused persons with regard to any kind of financial transaction except the amount of Rs.20,000/ (in the account of Pankajbhai - original accused No.2).
[4.16] It is submitted that even the allegation with regard to taking rent of the properties is concerned, is also baseless and concocted. It is submitted that Madhuben wife of Mathurdas (PW52), who is an independent witness and was residing next to the house of Ranjanben at Khambalia, in her crossexamination has categorically stated that the rent of the house was being taken by Ranjanben and prior to Ranjanben, her husband Keshubhai used to collect the rent.
[4.17] It is further submitted that even the fact with regard to the purchase of the car is concerned, one car was purchased by Pankaj Sodha. It is submitted that it was the case of the prosecution that Rs.3 lacs were taken from Ranjanben to get a car so that the same may be given in Reliance Company on rent for the purpose of transportation. It is submitted that the said incident occurred after the incident of deposit of Rs.20,000/ in the account of Pankaj Sodha. It is submitted that an Page 24 of 75 R/CC/11/2011 CAV JUDGMENT amount of Rs.20,000/ was deposited in the bank account of Pankajbhai Sodha by cheque on 30.10.1999 and thus, this incident occurred after 30.10.1999. It is submitted that even all the bank witnesses say and even other documents show that there was enough balance of Rs.3 lacs in the bank account. It is submitted that therefore the aforesaid allegation is not proved by the prosecution by leading cogent evidence.
[4.18] It is submitted that even from the deposition of Manharlal (PW53), it cannot be said that prosecution has been successful in proving the relationship between original accused No.1 and the deceased. It is submitted that even if his deposition is believed,in that case also, it only suggest that same day Bhavanbhai Sodha and deceased Ranjanben had gone to his shop to sell the scrap. It is submitted that neither he has identified the accused in the Court room nor any TI Parade was conducted.
[4.19] It is submitted by Shri Panchal, learned advocate appearing on behalf of the original accused No.1 that even Harigiri (PW54) who was an independent witness serving as a Principal has not supported the case of the prosecution and has turned hostile.
[4.20] It is further submitted by Shri Panchal, learned advocate appearing on behalf of the original accused No.1 that even Chhotalal (PW55) is also an independent witness, to whom it has been alleged that Bhavanbhai Sodha and the deceased Ranjanben had gone to sell the house situated at Khambaliya, has not supported the case of the prosecution and has turned hostile.
[4.21] It is further submitted by Shri Panchal, learned advocate appearing on behalf of the original accused No.1 that even it cannot be Page 25 of 75 R/CC/11/2011 CAV JUDGMENT said that prosecution has been successful in proving against the accused by examining Sanjay (PW58); Ramesh (PW59); Noor Md. Qureshi (PW60); Chimanlal Sanghvi (PW67); Hussain Saiyed (PW68); Gopalgiri (PW94) and Hira Parmar (PW96).
[4.22] It is further submitted that even relying upon the deposition / evidence of Babulal Jivandas Parmar (PW99, Exh.441); Bharatsinh Fulubha (PW100, Exh.442); it cannot be said that the prosecution has been successful in proving the case against the accused beyond doubt.
[4.23] It is submitted that therefore neither the prosecution has proved by leading cogent evidence any illicit relationship between the accused and the deceased; any financial transaction between the deceased and the accused; any motive of the accused to commit the murder of the deceased.
[4.24] It is further submitted by Shri Panchal, learned advocate appearing on behalf of the original accused No.1 that even the prosecution has miserably failed to prove the fact that there was any use of acid or salt in destroying the evidence. It is submitted that even the prosecution has failed to prove the use of the car of one Shri Ratilal Bhadariya in disposing of the dead bodies / cut pieces of the bodies of the deceased.
[4.25] It is submitted that therefore when the prosecution has failed to lead any cogent and reliable evidence and the case rests on circumstantial evidence, the prosecution has miserably failed to prove the complete chain of events which will lead to the only conclusion that the accused alone and alone had committed the offence. It is vehemently submitted that the learned trial Court has materially erred in convicting Page 26 of 75 R/CC/11/2011 CAV JUDGMENT the original accused and imposing the sentence of death penalty.
[4.26] Shri Panchal, learned advocate appearing on behalf of the original accused No.1 has heavily relied upon the following decisions of the Hon'ble Supreme Court in support of his prayer to quash and set aside the impugned judgment and order of conviction and also in support of his submissions that the case on hand cannot be said to be rarest of the rare case and therefore, the learned trial Court has committed grave error in imposing the death penalty.
[4.27] Shri Panchal, learned advocate appearing on behalf of the original accused No.1 has vehemently submitted in the alternative that the case on hand cannot be said to be rarest of the rare case which warrants the death penalty.
[4.28] It is submitted that the original accused No.1 is in jail since last 16 years and has neither enjoyed any temporary bail nor any furlough or parole leave. It is submitted that he is suffering from number of diseases and the serious ailments of cancer and therefore, looking to his age and the ailments he is suffering from, Shri Panchal, learned advocate appearing on behalf of original accused No.1 has requested to set aside the impugned judgment and order passed by the learned trial Court imposing the death penalty and has in the alternative requested to impose lesser punishment of life imprisonment for 20 to 30 years instead of death penalty.
Making above submissions it is requested to allow Criminal Appeal No.521/2014 preferred by the original accused No.1 and either to acquit the original accused No.1 or in the alternative to quash and set aside the impugned judgment and order of death penalty and instead impose the life imprisonment either for 20 to 30 years (in case this Page 27 of 75 R/CC/11/2011 CAV JUDGMENT Hon'ble Court confirms the impugned judgment and order of conviction passed by the learned trial Court).
Criminal Appeal No.521/2014 [5.0] Criminal Appeal No.521/2014 preferred by the original accused No.1 is vehemently opposed by Shri Mitesh Amin, learned Public Prosecutor appearing on behalf of the State. Shri Amin, learned Public Prosecutor appearing on behalf of the State has also made submissions in support of the Confirmation Case No.11/2011 and supporting the impugned judgment and order and the conviction based by the learned trial Court convicting the original accused No.1 for the offence punishable under Sections 302, 201 and 34 of the IPC and imposing the death sentence. As Criminal Appeal No.521/2014 preferred by the original accused No.1 and Confirmation Case No.11/2011 are interconnected, learned Public Prosecutor has made common submissions in Criminal Appeal No.521/2014 and Confirmation Case No.11/2011.
[5.1] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State the judgment and order passed by the learned trial Court is just and proper and based on the oral as well as documentary evidence on record and the same has been passed by taking into consideration the catena of decisions of this Court as well as the Hon'ble Apex Court. It is therefore submitted that the impugned judgment and order of conviction and sentence passed by the learned trial Court be confirmed considering the evidence on record as well as the nature of ghastly and barbaric manner in which the offence is committed.
[5.2] It is further submitted that the offence was committed in Page 28 of 75 R/CC/11/2011 CAV JUDGMENT the night of 12th/13th June 2000, wherein, three persons being Ranjanben widow of Shri K.P. Shukla and her minor children viz. Devdutt and Avni were mercilessly and brutally murdered by the accused persons. It is submitted that after killing the said persons, their body parts were chopped into pieces with the aid of deadly weapons like sword, hacksaw blade. It is submitted that the body parts were thereafter stored in water tank situated at the terrace and salt and acid was poured in order to destroy and decompose the body parts with a view to destroy the evidence of crime. It is further submitted that after a period of about a month the original accused No.1 had filled 7 fertilizer bags with body parts and had thrown away the same at Jamnagar Kutch road near Maliya.
[5.3] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that the prosecution has examined Amubhai @ Babubhjai Jesangbhai (PW83) below Exh. 279, who was Deputy Sarpanch of Moti Barar village. It is submitted that the said witness has stated that a dead body was discovered by the villagers at the outskirts of village Moti Barar on 15.07.2000 and the same was conveyed to him and therefore, he had informed the same to the police control room and that is how officers of Maliya Miyana Police station had reached at Moti Barar. It is submitted that the information given by this witness was produced on record vide Exh.280.
[5.4] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that the information given by the aforesaid witness was noted by Valjibhai Narshibhai Ukediya (PW90), who was examined below Exh.305. It is further submitted that the said witness was serving as PSO at Maliya Miyana Police Station. The aforesaid information pertaining to dead body being found at outskirts Page 29 of 75 R/CC/11/2011 CAV JUDGMENT of Moti Barar village was recorded vide Janvajog Entry No.51 of 2000. It is submitted that the said entry was produced on record vide Exh. 306.
[5.5] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that the prosecution has examined one Shaktisinh Natvarsinh Jhala (PW99) and his deposition has been recorded below Exh.427. It is submitted that the said witness was serving as PSI at Maliya Miyana Police Station and upon receipt of the information this witness had reached the spot and had drawn the inquest panchnama in the presence of two panchas and thereafter had sent the body for post mortem. That, this witness had carried out relevant panchnama and recorded statements of relevant witnesses and thereafter on 17.07.2000 another six bags containing body parts were found at National High way No. 8 near Mala Khada. It is submitted that the inquest panchnama for the said body parts was drawn in presence of two panchas and the said body parts were also sent for post mortem. It is submitted that this witness has registered an offence at Maliya Miyana Police Station vide ICR No. 74/2000 for the offence punishable under Section 302, 201 of IPC. It is submitted that the said FIR is produced on record below Exh.431.
[5.6] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that prosecution has examined Dr. Ganeshbhai Pyarelal Govekar (PW95) below Exh.338. It is submitted that the said witness has conducted post mortem (Exh.339) on 16.07.2000 of the body found on 15.07.2000. The said witness has further stated that he had opined that the said body parts were belonging to a lady. The said witness has further opined that the body parts more particularly the ribs were cut with the aid of weapon like hacksaw blade. It is further submitted that on 18.7.2000 the said witness Page 30 of 75 R/CC/11/2011 CAV JUDGMENT had conducted another post mortem (Exh.340) of the body parts discovered on 17.07.2000. It is further submitted that this witness has opined that the body parts examined vide post mortem reports Exh.339 and 340 belong to the same person. It is submitted that this witness upon conducting the post mortem (Exh.340) has opined that apart from the body parts of the lady aged around 35 years, rest of the body parts belong to male aged around 14 to 15 years as well as female aged around 14 to 15 years. It is submitted that this witness has further opined that the death would have occurred 4 to 8 weeks prior to the post mortem.
[5.7] It is submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that while investigating agency was trying to link pieces of evidence of the aforesaid crime, one person viz., Varshaben resident of Rajkot was worried about sudden disappearance of her sister namely Ranjanben and her two kids and despite her efforts she was not able to trace her sister and two kids and therefore, on 25.07.2000, Varshaben had gone to Jamnagar to inquire about the whereabouts of her sister, wherein, she found out that the house had been closed for the past many days. It is submitted that therefore, on 26.07.2000 she had gone to the school where Ranjanben used to teach, wherein, she was told that Ranjanben had not come to the school for many days and had not collected her salary for last two months and therefore, Varshaben was compelled to approach District Superintendent of Police.
[5.8] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that Hirabhai Muljibhai Parmar (PW96) was examined by the prosecution below Exh.394. The said witness was serving as Morbi Circle Police Inspector, Rajkot Rural Page 31 of 75 R/CC/11/2011 CAV JUDGMENT and was investigating the offence registered vide ICR No.74/2000 registered with Maliya Miyana Police Station. It is submitted that the said witness had tried to inquire about disappearance of two female and male in the State of Gujarat and had also given notice in newspaper about the same. It is submitted that thereafter, on 26.07.2000, information was received pertaining to a lady namely Ranjanban and her two children viz., Devdutt and Avni being missing for the past one month and their house being closed in suspicious circumstances at Jamnagar. It is submitted that therefore, the said witness along with the officers concerned had gone to the house of Ranjanben situated at Jamnagar.
[5.9] It is submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that when PW96 reached the house of Ranjanben, Varshaben along with the officers of Jamnagar Police were also present at the house and when all the aforesaid persons along with panchas had entered the house of Ranjanben at Shree Sadan, they had encountered foul smell in the house and had also seen cleaned up blood stains and body parts kept in plastic bags and also lying on floor. It is further submitted that upon searching further they had found body parts kept in water tank at the terrace however, considering the nature of crime committed, the proceedings of the panchnama were stayed and decided to be continued on the next day in the presence of forensic officers and doctors. It is submitted that thereafter, on 27.07.2000, further panchnama was carried out and the remaining body parts were also taken for examination along with the various articles found during the said panchnama (Exh.122). It is submitted that two swords and two knives were also discovered from the scene of the offence and from the belongings on the body parts, Varshaben was able to identify that the same belongs to the resident of Shree Sadan.
Page 32 of 75 R/CC/11/2011 CAV JUDGMENT[5.10] It is submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that when the aforesaid crime was detected the involvement of accused came into light and it was found that the accused No.1 used to reside at the house of Ranjanben as husband however, when the investigating officers had gone to the house of accused No.1 he was not found and therefore, the Investigating Officer carried out a panchnama (Exh.90) of the house of the original accused No.1 on 28.07.2000. It is submitted that however, upon searching the house of accused No.1, weapons viz. a sword and dagger and certain documents were seized.
[5.11] It is submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that the prosecution has examined Bhikhubha Balubhai Jadeja (PW97) below Exh.412. It is submitted that this witness was serving as PI, Jamnagar City 'B' Division Police Station and this witness has stated that since the offence had occurred within the jurisdiction of Jamnagar, the FIR registered vide ICR No.74/2000 with Maliya Miyana Police Station was transferred to City 'B' Division Police Station and subsequently an FIR being ICR No.460/2000 was registered for the offence punishable under Sections 302, 201, 34 of the IPC. It is submitted that the said FIR has been produced on record with an objection from the accused below Mark A - Exh. 431.
[5.12] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that eventually the investigation for the said offence was handed over to LCB, Jamnagar and the investigation was entrusted to Dilipsinh Gatorsinh Waghela (PW
107), Incharge PI, LCB, Jamnagar below Exh. 470. It is submitted that the officers of LCB had tried to search for the accused persons, but they were nowhere to be found and the same transpires from evidence of Page 33 of 75 R/CC/11/2011 CAV JUDGMENT Bharatsinh (PW101) below Exh.442. It is submitted that eventually, the Investigating Officer caught a break through and information received by Balubhai (PW104) below Exh.460 led to the arrest of original accused No.1 on 05.08.2000. It is submitted that the panchnama of arrest of accused No.1 is produced below Exh.76. It is submitted that after the arrest of original accused No.1, reconstruction/ Pointingout of panchnama under the provisions of Section 8 of the Evidence Act was carried out in the presence of panchas and the same is produced by the prosecution below Exh.114. It is submitted that thereafter, the original accused No.2 was arrested by the officers of Kagdapith Police Station, Ahmedabad on 22.09.2000 and the same transpires from the evidence of Bathuji Rathod (PW103) below Exh.458 and Ramabha Aahir (PW105) below Exh.463.
[5.13] It is submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that this is a case based on circumstantial evidence and as held by catena of decisions of this Hon'ble Court as well as the Hon'ble Apex Court, the circumstance from which the conclusion of guilt be drawn ought to be fully proved and the same must be conclusive in nature to connect the accused with the crime. In the present case the prosecution has been able to establish all the links in the chain of events and the same are proved beyond reasonable doubt and the circumstances established are consistent only with the hypothesis of the guilt of the accused. It is submitted that the motive for the commission of offence assumes utmost importance and the motive for the commission of the offence has also been proved and established beyond reasonable doubt with oral as well as documentary evidence.
[5.14] It is further submitted by Shri Amin, learned Public Page 34 of 75 R/CC/11/2011 CAV JUDGMENT Prosecutor appearing on behalf of the State that the prosecution has examined the sister of the deceased viz., Varshaben wife of Sureshchandra as PW40 below Exh.160. It is submitted that this witness, in categorical terms, has deposed that she was not able to contact her sister and therefore made all possible attempts to know her whereabouts, but when she was not able to do so she had contacted Jamnagar police. It is submitted that this witness along with the officers of Jamanagar police had entered the house of Ranjanben wherein they found body parts, blood stains, weapons and other articles and from the articles she was able to identify the same belonging to deceased persons. It is further submitted that this witness has further stated in her deposition that the deceased Ranjanben and accused No.1 were residing together at Shree Sadan as husband and wife and the two children used to address him as father and that the original accused No.1 used to physically abuse Ranjanben for money. It is submitted that even their maid Shantaben had tried to reason with Ranjanben about the ill intention of accused No.1 and therefore, accused No.1 had fired Shantaben. It is submitted that the deceased Ranjanben had inherited various properties and jewelries as well as cash after the death of her husband and only with a view to usurp the same, accused No.1 had developed relationship with Ranjanben. It is further submitted that many a time, the deceased had confined with witness about the torture and abuse meted on her by accused No.1 for the want of money. It is submitted that this witness has also stated that even the original accused No.2 had been benefited from sale of the properties belonging to deceased Ranjanben. It is submitted that this witness has also stated that as the deceased Ranjanben had got the wind of the ill intention of the accused No.1, she had procured properties at Rajkot and Junagadh. It is further submitted that this witness has further stated that the accused persons were head strong persons and despite the fact that the accused Page 35 of 75 R/CC/11/2011 CAV JUDGMENT No.1 and the deceased persons were residing together in the same house, yet he has not bothered to inform the police about such an offence being committed in their house and accused not being found anywhere further strengthened her suspicion. It is submitted that therefore, from evidence of this witness it is evident that the accused persons had established relationship with the deceased only with a view to usurp the properties inherited by her and not being able to completely succeed in their plan, the accused persons committed murder of Ranjanben and her two minor children in most ghastly and barbaric manner.
[5.15] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that the prosecution has examined Shantaben Chandubhai (PW41) below Exh.164. It is further submitted that she has stated that she used to work as maid at the house of Ranjanben and after the death of the husband of deceased Ranjanben, Ranjanben was residing with the original accused No.1 at her house and they had been living like husbandwife. It is submitted that she has further deposed that original accused No.1 used to physically assault Ranjanben for money and has also narrated the way in which the accused persons pocketed and/or benefited from the properties of Ranjanben. It is submitted that since she used to reason with Ranjanben for not giving money to accused persons she was fired by the original accused No.1 and thereafter, she had started working at the house of Varshaben sister of deceased Ranjanben and from evidence of this witness the prosecution is able to establish on record the relation between deceased Rajanban and the accused No.1 as well as the turmoil in their relationship due to money.
[5.16] It is submitted by Shri Amin, learned Public Prosecutor Page 36 of 75 R/CC/11/2011 CAV JUDGMENT appearing on behalf of the State that yet another circumstance that the prosecution has been able to establish against the accused No.1 from the evidence of Dahyalal Jadavji (PW38) below Exh.152. It is submitted that this witness has stated that on 15.07.2000, at about 11.00 morning he had taken lift in Maruti car bearing registration No.HR266777 and the same was driven by accused No.1. It is submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that he was acquainted with original accused No.1 as he was a former Corporator. It is submitted that this witness has stated that when he sat in the car, the car was stinking of foul smell and he had inquired about the same from accused No.1 who in turn had given an excuse that it is the smell of fish, because the car belongs to his friend, who is in the business of fish. It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that thereafter, when the entire incident of Maliya Miyana and Shree Sadan was published in newspaper he could connect the dots and he went to the Investigating Officer and narrated the event of 15.07.2000.
[5.17] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that the prosecution has also been able to establish on record the financial as well as property dealing of the accused persons and deceased Ranjanben to show how the accused persons had usurped her properties and the same is established from the evidence of Haribhai Jhaverbhai Jabukiya (PW44, Exh.177); Parshantkumar Karshanbhai Solanki (PW45, Exh.186); Susobhan Roy Dilipkumar Roy (PW46, Exh.190); Praffulbhai Varjlal Vora (PW47, Exh.201); Jagdishprasad Ganpatlal Agarwal (PW49, Exh.214); Hirabhai Govabhai Parmar (PW50, Exh.218); Madhuben Mathurdas (PW52, Exh.236) as well as Narendrasinh Bharatsinh Jadeja (PW98, Exh.420); Babulal Jivandas Parmar (PW100, Exh.441).
Page 37 of 75 R/CC/11/2011 CAV JUDGMENT[5.18] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that the discovery of weapons and other articles from the house of the original accused No.1 below Exh.98 is established by the prosecution from the deposition Indrajit Jethalal (PW23, Exh.112). It is submitted that this witness has in categorical terms supported the prosecution case and the discovery of weapons and articles from the house of original accused No.1. It is further submitted that the prosecution has also proved the reconstruction/ pointingout panchnama below Exh.114 from the deposition Jitendra Purshottambhai (PW24) who has in categorical terms supported the case of prosecution.
[5.19] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that the conduct of the accused persons and certain relevant witnesses is worthwhile to be noted. It is submitted that Hanif Ismail (PW8) is examined by the prosecution below Exh.89 and during the course of examination in chief he has supported the case of prosecution however, an adjournment purshis is given by the defence and the matter is kept for further hearing after a period of two days and then the witness makes a somersault from his earlier version and support the defence. It is submitted that similar is the case for witness Ashaben (PW63) who is examined by the prosecution below Exh.250. It is further submitted that this witness has initially supported the prosecution case and has admitted the averments made by her in police statement, but when this witness was examined after court recess she had deserted the prosecution case and in unequivocal terms supported the defence. It is submitted that from these facts it is evident that the accused persons even though in custody through their accomplice/associates have won over certain prosecution witnesses however, from catena of decisions of this Court as well as Page 38 of 75 R/CC/11/2011 CAV JUDGMENT Hon'ble Apex Court, it has been held that when the testimony of hostile witness is not shaken on material parts and is in line with the case of prosecution on material parts and when the same inspires confidence, it can be relied and cannot be rejected in toto.
[5.20] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that the prosecution has established its case beyond reasonable doubt by leading cogent and reliable oral as well as documentary evidence on record. It is submitted that other than that the case of prosecution is further strengthened by the medical evidence on record. It is submitted that the prosecution has examined Dr. Ganeshbhai Pyarelal Govekar (PW95) below Exh.338, who has performed the post mortems being postmortem reports below Exh.339, 340, 341, 344 and has opined about the body parts found on 15.07.2000, 17.07.2000 as well as from the house of Ranjanben belongs to female aged around 35 to 40, a male child aged about 14 to 16, a female child aged around 14 to 16. It is submitted that this witness has also opined that the injuries and the body parts cut off from the deceased persons can be caused by the weapons of crime discovered from the house of the original accused No.1 as well as the house of Ranjanben.
[5.21] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State in the present case the prosecution has even been able to establish the case beyond reasonable doubt by leading cogent evidence in the form of FSL reports. It is submitted that from the perusal of Exh.516, more particularly, item Nos.103, 106 and 108 taken for examining the blood groups of the unidentified females and male body. It is submitted that the item Nos.103 and 108 belonging to unidentified females is found to have Page 39 of 75 R/CC/11/2011 CAV JUDGMENT blood group of 'AB' and item No.106 belong to unidentified male is having blood group 'A'. It is further submitted that the weapons of crime are item No.21 i.e. sword, item No.22 i.e. sword, item No.23 i.e. knife, item No.24 i.e. knife, item No.58 i.e. hacksaw. It is submitted that from the perusal of Exh.517 i.e. report of FSL, the aforesaid weapons viz. item Nos.21, 22, 23, 58 are having blood stains belonging to group 'AB' and item No.24 is having blood stains belonging to group 'A'. It is submitted that from the said scientific evidence coupled with the discovery of weapons from the house of the deceased Ranjanben as well as from the house of accused No.1, further strengthens the case of prosecution and proves the involvement of accused persons.
[5.22] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that the prosecution vide Exh.523 has also used photo super imposition method and has produced on record the opinion obtained from FSL, wherein, it is held that anatomical landmarks of the skull at item No.I and the land mark of the photograph of deceased Ranjanben at item - H are similar and therefore, it is opined that the skull at Item No.I seem to be of Ranjanben. It is submitted that similarly it is held that anatomical landmarks of the skull at item No.J and the land mark of the photograph of deceased Avni at item -F are similar and therefore, it is opined that the skull at Item No.J seems to be of Avni. It is submitted that therefore, by way of scientific evidence also, prosecution has been able to establish its case against the accused persons. It is further submitted that thus the prosecution has proved its case beyond reasonable doubt by way of circumstantial, scientific, medical and other evidence on record, which is reliable, cogent and trustworthy, and hence, it is requested to confirm the sentence awarded by the learned Sessions Judge.
Page 40 of 75 R/CC/11/2011 CAV JUDGMENT[5.23] It is further submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that this is a case wherein the accused No.1 who was residing with the deceased persons in the same home and was having relationship as husbandwife with deceased Ranjanben and whom the minor children of Ranjanben used to address as Father, with the aid of original accused No.2 has mercilessly and with a premeditated plan, has killed all the three persons to fulfill his ulterior motive of usurping the properties inherited by the deceased Ranjanben. It is further submitted that the accused No.1 had in a calm, composed, calculative and in an absolute barbaric manner had chopped off the bodies of the deceased persons and had stored them in water tank and thereafter, has poured salt and acid so as to destroy the evidence of crime. It is submitted that even after a month of the commission of the aforesaid offence, the accused No.1 had taken out the body parts and filled them in fertilizer bags and had disposed off the bags at Jamnagar - Kutcch Highway near Maliya so as to destroy the evidence of crime. It is submitted that it is worthwhile to note that the offence was committed within the four walls of Shree Sadan and the conduct of the accused No.1 as per Section 8 of the Evidence Act would go to suggest his involvement in commission of the offence. It is submitted that the accused persons were absconding and it is only on 05.08.2000 that original accused No.1 was arrested and on 22.09.2000 the original accused No.2 was arrested. It is submitted that this act on behalf of the accused No.1 along with the fact of him not reporting anything to anyone about the commission of such barbaric and ghastly incident having occurred within the four walls of his home is a strong and vital circumstance against him. It is submitted that no explanation whatsoever has been provided by the accused No.1 pertaining to his conduct before and after the commission of the offence.
Page 41 of 75 R/CC/11/2011 CAV JUDGMENT[5.24] It is submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that it is rightly held by the learned trial Court that the present case falls in the category of 'rarest of rare case' and that the manner in which the offence is committed is not only brutal but also barbaric. It is submitted that the nature of the crime and the manner in which it has been committed speaks about depravity, degradation, and uncommon act on the part of the accused No.1. It is submitted that it is diabolical and barbaric and committed in the most inhuman manner. In support of his above submission, Shri Amin, learned Public Prosecutor appearing on behalf of the State has relied upon the decision of the Larger Bench of the Hon'ble Supreme Court in the case of Vasanta Sampath Dupare Vs. State of Maharastra reported in (2015)1 SCC 253 wherein the Hon'ble Apex Court has settled the legal proposition after considering the prior decisions of the Hon'ble Supreme Court in the case of Bachan Singh Vs. State of Punjab reported in (1980)2 SCC 684, Machhi Singh and others Vs. State of Punjab reported in (1983)3 SCC 470 and other prior decisions.
[5.25] It is vehemently submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that the materials on record go to reveal that the accused No.1 was well acquainted with the deceased persons and as proved by the prosecution was residing together in the house as family member. It is submitted that the accused No.1 by way of a premeditated plan, had gained the trust of deceased Ranjanben in order to usurp her properties and eventually had taken advantage of her situation. It is submitted that the accused No.1 had killed the deceased and after such act having been committed, the calmness and coolness of the accused No.1 after commission of the offence is evident from the fact that he had made all arrangement to destroy the evidence of his crime in a most heinous and barbaric Page 42 of 75 R/CC/11/2011 CAV JUDGMENT manner. It is submitted that the barbaric act of the accused No.1 does not remotely show any concern for human life including two minor children who used to address him as Father.
[5.26] It is submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that the mitigating circumstances as pointed out by the original accused No.1 are of no help to the cause of original accused No.1. It is submitted that it has been pointed out that the original accused No.1 is aged about 65 years and is suffering from various ailments. It is submitted that however, it is worthwhile to note that the original accused No.1 time and again sought for temporary bail on medical grounds, but time and again this Court taking into consideration the certificate issued by Medical Officer of Jail Dispensary and Civil Hospital, Ahmedabad about the health of the accused, has rejected the prayers sought for by the accused.
[5.27] It is submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that there has been no remote on part of the accused persons and from the factual matrix when unfolded step by step would show the premeditation, the proclivity and barbaric instincts. It is submitted that it is no where emerging from the record that the crime was committed under any mental stress and/or emotional disturbance and it is difficult to comprehend that the accused would not commit any act in future and as the circumstance as established by the prosecution would graphically depict, that the accused would be a menace to the society. It is submitted that prior to the commission of the offence in question, the accused persons have been named in as many as 15 offences including offences punishable under Sections 302, 307, 396, of the IPC etc. and therefore, the mitigating circumstances as pointed by the original accused are of no help to them.
Page 43 of 75 R/CC/11/2011 CAV JUDGMENTMaking above submissions and submitting that in view of the aforesaid and considering the evidence on record, it is requested to confirm the judgment and order dated 30.07.2011 rendered by the learned trial Court in Session Case No.164/2000.
Criminal Appeal No.1281/2011 [6.0] Present criminal appeal has been preferred by the original accused No.2 challenging the impugned judgment and order of conviction passed by the learned trial Court by which the learned trial Court has convicted the original accused No.2 for the offence under Section 201 read with Section 34 of the IPC and by which the learned trial Court has awarded the Rigorous Imprisonment for 7 years with fine of Rs.5000/ and in default of payment of fine to undergo further imprisonment of 1 year. That by impugned judgment and order the learned trial Court has as such acquitted the original accused No.2 from the charges of Section 302 read with Section 34 of the IPC. At this stage it is required to be noted that against the impugned judgment and order of acquittal passed by the learned trial Court acquitting the original accused No.2 for the offence punishable under Section 302 read with Section 34 of the IPC, the State has preferred appeal being Criminal Appeal (Acquittal Appeal) No.968/2012 with Criminal Misc. Application (Leave to Appeal) No.9602/2012 and by order dated 23.10.2012, the Division Bench of this Court had rejected the application for Leave to Appeal and consequently acquittal appeal has been dismissed. At this stage it is required to be noted that the said order of the Division Bench of this Court has not been challenged before the Hon'ble Supreme Court till this date and thus the same has attained finality. At this stage it is also required to be noted that even the State also preferred the appeal for enhancement being Criminal Appeal No.1225/2011 which came to be disposed of as the State of Gujarat had already preferred the appeal Page 44 of 75 R/CC/11/2011 CAV JUDGMENT against the acquittal. Therefore, as such this Court is required to consider the impugned judgment and order passed by the learned trial Court by which the learned trial Court has convicted the original accused No.2 for the offence under Section 201 read with Section 34 of the IPC.
[6.1] It is vehemently submitted by Shri Lakhani, learned Advocate appearing on behalf of the original accused No.2 that to bring home the charge against the original accused No.2 under Section 201 read with Section 34 of the IPC, the prosecution is required to prove beyond shadows of all reasonable doubt that (1) the original accused No.2 had provided acid with an intention and knowledge to help original accused No.1 so as to dispose of the dead bodies; and (2) that the original accused No.2 had provided maruti car of one Ratilal to original accused No.1 with an intention and knowledge that the original accused No.1 would use the said car to throw away the pieces of the dead bodies.
It is submitted that it is a settled proposition of law that for the aforesaid circumstances the prosecution should have established beyond all reasonable doubt intention, knowledge and motive of the accused. It is further submitted that as per the settled proposition of law, the more grave the crime is, more cogent and reliable evidence is required so as to prove the guilt of the accused.
[6.2] It is further submitted by Shri Lakhani, learned Advocate appearing on behalf of the original accused No.2 that in the present case the learned trial Court has come to the conclusion that the original accused No.2 had provided acid and salt and thus, it helped original accused No.1 in committing the offence under Section 201 of the IPC. It is submitted that thus two circumstances are required to be proved against the original accused No.2 i.e. (1) providing of salt and acid and Page 45 of 75 R/CC/11/2011 CAV JUDGMENT (2) the said circumstance should be at the instance of original accused No.1 Bhavanbhai Sodha.
[7.0] It is further submitted by Shri Lakhani, learned Advocate appearing on behalf of the accused No.2 that so far as the finding with regard to providing acid is concerned, the same is factually incorrect finding on the part of the learned trial Court. It is submitted that Gulamabbas Md. Ali (PW36) has as such not supported the case of the prosecution. It is submitted that the said witness is a hostile witness. It is submitted that in the chief examination the said witness has not supported the case of the prosecution. It is submitted that he has categorically stated that police had recorded his statement before 2 to 2½ years. It is submitted that he has further stated in his chief examination that there was no person along with the police in civil dress. It is submitted that thereafter he has been declared hostile and has been asked question by the learned APP in which his say is that police had not come to him along with one more person named as Shri Pankaj Sodha. It is submitted that thereafter he has denied that he has stated anything recorded in his police statement. It is submitted that thus it is evident from the said deposition that the said witness has not even supported the case of the prosecution nor there is any incriminating material as would be required to prove the guilt of the accused person coming up in his deposition. It is submitted that even the learned Judge has never considered this evidence as incriminating against the original accused No.2 - Pankaj Sodha and thus, no question has been asked in the further statement recorded under Section 313 of the CrPC. It is further submitted that when the learned trial Court has not considered the said fact to be against the accused person, then there is no reason for the learned Judge to come to a conclusion that the original accused No.2 had provided acid to original accused No.1. It is submitted that Page 46 of 75 R/CC/11/2011 CAV JUDGMENT moreover, in the entire evidence there is no cogent, trustworthy and reliable witness or evidence even only for the sake of supporting this version of the prosecution. It is submitted that in fact to support the case of the prosecution, no TI Parade has been conducted.
It is further submitted that even the fact of using acid has not been proved by any of the police officer.
[7.1] It is submitted that in deposition of Investigating Officer Shri Dilipsinh Vaghela (PW107), it is coming on record that PW36 has given his statement before him, but the contents of the statement of the said witness are not proved. It is submitted that even if the said version of the prosecution is believed as it is, it would only prove that on same date the accused had purchased the acid. It is submitted that no date, time or specification are proved as to such purchase of acid. It is submitted that infact the Investigating Officer has also not proved the contents of the statement of PW36 and therefore, the same is not reliable.
[7.2] It is further submitted that even if the said aspect of the purchase of the acid has been believed, it would only prove the fact that the accused Pankaj Sodha has purchased the acid but there is no evidence even to whisper that the said acid was given to the original accused No.1. It is submitted that infact in the deposition of doctor who conducted the post mortem it is coming on record that there was no chemical portion or foreign body or liquid found on the body during the post mortem. It is submitted that the said fact is also supported by Dr. Niraj (PW92). It is submitted that the aforesaid witness has also stated that he did not find any salt or acid on the parts of the body which were sent to him, nor he had found any elements of salt or acid on the body pieces.
Page 47 of 75 R/CC/11/2011 CAV JUDGMENT[7.3] It is further submitted that if the reconstruction / demonstration panchnama which was prepared at the instance of original accused is seen, there is a specific say of the original accused No.1 that the original accused No.1 himself had got 20 kg salt and 5 liter of acid. It is submitted that the aforesaid panchnama has been proved by examining Shri Jitendra Pandya (PW24). It is submitted that the said panchnama has been made prior to the statement of original accused No.2 i.e. on 08.08.2000 whereas the accused Shri Pankaj Sodha was arrested on 22.09.2000. It is submitted that therefore the learned trial Court has materially erred in holding that the original accused No.2 purchased / procured the acid and gave it to the original accused No.1 in disposing of the dead bodies.
Now, so far as the providing of salt is concerned, it is submitted that the relevant witness is Pareshkumar Shankerlal Trivedi (PW34), who has been examined at Exh.143. It is submitted that the said witness is alleged to have sold the salt to Shri Pankaj Sodha - original accused No.2. It is submitted that the said witness is a hostile witness and has as such not supported the version of the prosecution with regard to sell of salt to the original accused No.2. In the chief examination, in para 2, he has stated that there was no person other than the police with the police when the police had come to inquire to his shop. It is submitted that he has stated in his deposition that police was talking about one Shri Bhavanbhai Sodha as accused, but he was not present. It is submitted that he had informed the police that he does not know whether Shri Bhavanbhai Sodha had purchased salt from him or not. Thereafter, he has been declared hostile. It is submitted that the said witness denies the fact as to the details of the police statement. It is submitted that infact the finding of the learned trial Court in regard to providing salt by Shri Pankaj Sodha is absolutely perverse and contrary to the case of the prosecution.
Page 48 of 75 R/CC/11/2011 CAV JUDGMENT[7.4] Now, so far as the finding recorded by the learned trial Court providing maruti car of Ratilal by original accused No.2 to original accused No.1 is concerned, it is submitted that as such the learned trial Court has not believed the same to prove against the accused persons. It is submitted that Ashaben (PW63) is not a reliable witness. It is submitted that even otherwise she is hostile witness and therefore, her testimony cannot be relied upon at all so as to convict the original accused No.2. It is submitted that therefore the learned trial Court has rightly not believed the deposition / evidence of the said witness as incriminating against the accused No.2. It is submitted that even otherwise the said circumstances are not put to the accused in further statement recorded under Section 313 of the CrPC. It is submitted that thus the said fact has not been rightly relied upon by the learned trial Court against the accused Pankaj Sodha.
[7.5] It is submitted that the above facts and relevant evidence and deposition of the witnesses clearly shows that accused Pankaj was never involved in the alleged crime nor he had supplied acid or salt to accused No.1 as alleged by the prosecution, nor there is any direct or indirect evidence to support the case of the prosecution as to aiding the accused No.1. It is submitted that the prosecution itself is riding on two horses. It is submitted that on one hand entire blame has been given to accused No.1 for murder and destroying the evidence by disposing the dead bodies. It is submitted that the prosecution itself is not clear with its own investigation, evidence and trial. It is therefore submitted that the conviction of the accused No.2 is not at all maintainable and on the contrary conviction of the original accused No.2 is grave miscarriage of justice as the prosecution itself is not clear with its own facts and story. It is submitted that thus there was no reason for the learned trial Court to believe the case of the prosecution against the accused No.2 as, the Page 49 of 75 R/CC/11/2011 CAV JUDGMENT moment the case against the accused No.2 on the present evidence is believed, the witness who has supported the case of the prosecution in convicting the accused No.1 are concerned, would be no more reliable as the same witnesses have stated and supported the demonstration panchnama. It is submitted that if the case of the prosecution with regard to accused No.2 is believed, the Investigating Officer would also nor be a reliable witness.
[7.6] It is submitted by Shri Lakhani, learned advocate appearing on behalf of the accused No.2 that the Investigating Officer himself in his deposition had stated that no information was obtained from the accused No.2 nor any recovery or discovery was made. It is submitted that thus the only circumstance as believed by the learned trial Court against the accused No.2 is only for providing salt and acid to his father i.e. accused No.1 and no other circumstance is believed by the learned trial Court against the accused No.2. It is submitted that this Court has also affirmed the findings of the learned trial Court vide order dated 23.10.2012 passed in Criminal Misc. Application No.9602/2012 in Criminal Appeal No.968/2012. It is submitted that when no information was obtained from the accused No.2, then who, how and what made the Investigating Officer find the persons / witnesses to the fact as to purchase of salt, acid, sword and other relevant fact related to running away from the police.
Making above submissions, it is requested to allow Criminal Appeal No.1281/2011 preferred by the original accused No.2 and acquit him atleast if not clear acquittal then by giving benefit of doubt.
[8.0] Criminal Appeal No.1281/2011 preferred by the original accused No.2 is vehemently opposed by Shri Amin, learned Public Prosecutor.
Page 50 of 75 R/CC/11/2011 CAV JUDGMENT[8.1] It is vehemently submitted by Shri Amin, learned Public Prosecutor that on appreciation of evidence the learned trial Court has found the original accused No.2 guilty for the offence under Section 201 read with Section 34 of the IPC and therefore, the learned trial Court has rightly convicted the original accused No.2. It is vehemently submitted by Shri Amin, learned Public Prosecutor that on appreciation of evidence the learned trial Court has specifically observed and held that original accused No.2 provided acid and salt to the original accused No.1 and as the said acid and salt was used by the original accused No.1 in disposing of the dead bodies / pieces of the bodies, the learned trial Court has rightly convicted the original accused No.2 for the offence under Section 201 read with Section 34 of the IPC.
Making above submissions, it is requested to dismiss the appeal preferred by the original accused No.2.
[9.0] Heard learned Advocates appearing for respective parties at length. We have perused the impugned judgment and order passed by the learned trial Court in detail and at length. We have reappreciated the entire evidence on record.
[9.1] So far as the Criminal Appeal No.521/2014 is concerned, the same has been preferred by the original Accused No.1 challenging the impugned judgment and order passed by the learned trial Court in Sessions Case No.164/2000 by which the appellant herein - original accused No.1 has been convicted for the offences punishable under Section 302 of the IPC and has been awarded the death sentence.
At the outset it is required to be noted that in the present case the original accused No.1 has been convicted for the offence punishable under Section 302 of the IPC for having killed / committed the murder of 3 persons viz. Ranjanben widow of K.P. Shukla and her minor Page 51 of 75 R/CC/11/2011 CAV JUDGMENT daughter viz. Devdutt and Avni who were mercilessly and brutally murdered by the accused. From the material on record it appears that after killing the said persons, their body parts were chopped into pieces with the aid of deadly weapons like sword, hacksaw blade. That thereafter the body parts were stored in the water tank situated at the terrace and salt and acid were poured in order to destroy and decompose the body parts, with a view to destroy the evidence of crime. After a period of about a month, the accused No.1 had filled 7 fertilizers bags with body parts and thrown away the same at Jamnagar - Kutch road near Maliya. That the motive for the accused No.1 to commit the offence as per the case of the prosecution was that the original accused No.1 viz. Bhavanbhai Sodha used to reside at Shree Sadan alongwith deceased Ranjanben widow of K.P. Shukla and her two minor children viz. Devdutt and Avni in order to usurp the properties of the deceased Ranjanben, the original accused No.1 had won over her trust and both were residing together as husband and wife. That the original accused Nos.1 and 2 who happened to be father and son, had already transferred certain properties in their names as well as taken cash and jewelry belonging to deceased Ranjanben. As per the case of the prosecution when the deceased got wind of the scheme of the accused persons and their malafide intentions, she had started investing in properties at Rajkot and Junagadh. As per the case of the prosecution the accused persons felt that their plan was exposed and therefore in order to do away with the deceased and her minor children, on the night of 12/13.06.2000, the original accused No.2 kept a watch at Shree Sadan whereas accused No.1 had killed the deceased Ranjanben with sword while she was sleeping at the terrace and thereafter, he went to the room of minor Devdutt and Avni and had brutally killed them too with a sword. As per the case of the prosecution the original accused No.1 with the aid of deadly weapons like sword, hacksaw blade had cut the said Page 52 of 75 R/CC/11/2011 CAV JUDGMENT dead bodies into pieces and had stored them in the water tank situated at terrace and had poured salt as well as acid in order to decompose the body parts. As per the case of the prosecution after a period of about one month, the original accused No.1 had removed the body parts from the water tank and had filled them in fertilizer bags and used the car belonging to one Ratilal to transfer the same and had disposed the said bags at Jamnagar - Kutch road near Maliya and thereafter had tried to destroy the evidence of crime.
[9.2] On appreciation of entire evidence on record it appears that the relationship between the deceased Ranjanben and the original accused No.1 and that both of them were residing as husband and wife in the house in which both of them were residing has been established and proved by the prosecution by leading cogent evidence. The same has been established and proved by the prosecution by examining PW40 - Varshaben wife of Sureshchand - sister of the deceased, who has been examined at Exh.160. The same is also established and proved by the prosecution by examining PW41 - Shantaben Chandubhai who has been examined at Exh.164. She was serving as a maid at the house of deceased Ranjanben. She has categorically stated that after the death of the husband of the deceased Ranjanben, deceased Ranjanben was residing with the original accused No.1 at her house and they had been living as husband and wife. She has also deposed that original accused No.1 used to physically assault the deceased Ranjanben for money and has also narrated the way in which the accused persons pocketed and/or benefitted from the properties of deceased Ranjanben. Thus, considering the deposition of the aforesaid two witnesses, the prosecution has been able to prove the close relation between the original accused No.1 and the deceased Ranjanben and that original accused No.1 and the deceased Ranjanben were residing / staying in the house of the deceased Page 53 of 75 R/CC/11/2011 CAV JUDGMENT Ranjanben as husband and wife.
[9.3] That the financial dealings and the properties of the deceased Ranjanben and the transfer in the name of the original accused Nos.1 and 2 including the transfer of jewelery etc. has been established and proved by the prosecution by leading cogent evidence. The prosecution has also established on record the financial as well as property dealings of the accused persons and the deceased Ranjanben to show how the accused persons have usurped her properties. The same has been established by the prosecution by examining Haribhai Jhaverbhai Jabukiya (PW44) who has been examined at Exh.177 as well as examining Parshantkumar Karshanbhai Solanki (PW45) who has been examined at Exh.186, Sushoban Roy Dilipkumar Roy (PW46) who has been examined at Exh.190, Praffulbhai Varjlal Vora (PW47) who has been examined at Exh.201, Jagdishprasad Ganpatlal Agarwal (PW49) who has been examined at Exh.214, Hirabhai Govabhai Parmar (PW50) who has been examined at Exh.218, Madhuben Mathurdas (PW52) who has been examined at Exh.236 as well as Narendrasinh Bharatsinh Jadeja (PW98) who has been examined at Exh.420 and Babulal Jivandas Parmar (PW100) who has been examined at Exh.441. Thus, the motive behind the murder and/or killing the deceased has been established and proved by the prosecution beyond doubt.
[9.4] It is required to be noted that it has been established and proved by the prosecution beyond doubt that the original accused No.1 was residing with the deceased Ranjanben at her house as husband and wife. The incident had occurred on the night of 12/13.06.2000. The pieces of the body of the deceased and the dead body was recovered at the outskirts of village Moti Barar on 15.07.2000 i.e. after a period of approximately one month. As the deceased Ranjanben and her two kids Page 54 of 75 R/CC/11/2011 CAV JUDGMENT were not found / seen for approximately one month, sister of the deceased Ranjanben viz. Varshaben lodged the complaint and she was compelled to approach the DSP and she gave a missing complaint. However, prior to that an FIR was already registered with the Maliya Miyana Police Station on being found the dead bodies on 15.07.2000 and 17.07.2000. No efforts were made by the original accused No.1 to trace out and/or find out the deceased Ranjanben and no complaint was given by him about missing of the deceased Ranjanben and her children, though the original accused No.1 was residing and staying with the deceased in her house where she was killed and for about a month the house in which the original accused No.1 and the deceased were residing was found closed. On the contrary, it has been established and proved that the original accused No.1 was missing from his house also and despite the above efforts by the Investigating Officer, he was not traceable and thereafter he was caught from the Ahmedabad S.T. Stand by the police. Hirabhai Muljibhai (PW96) who has been examined at Exh.394, who was serving as Morbi Circle Police Station, Rajkot (Rural) and was investigating the offence registered with Maliya Miyana Police Station had categorically stated / deposed that when the aforesaid crime was deducted the involvement of the original accused No.1 came into light and it was found that the original accused No.1 used to reside at the house of deceased Ranjanben as her husband and therefore, he had tried to locate the original accused No.1 but the same was of no avail. They had gone to the house of the original accused No.1 but he was not found there too. Upon searching the house of original accused No.1, weapons viz. sword and a dagger and certain documents were seized. It has come on record and from the deposition of Dilipsinh G. Vaghela, In charge P.I., LCB, Jamnagar that even the office of LCB had tried to search for the accused persons, but they were nowhere to be found. The same is established and proved by examining Bharatsinh (PW111) who Page 55 of 75 R/CC/11/2011 CAV JUDGMENT has been examined at Exh.442.
[9.5] The involvement of the original accused No.1 has been further established and proved by the prosecution by examining Dahyalal Jadhav (PW38) who has been examined at Exh.152. The said witness has stated that on 15.07.2000 at about 11 a.m. in the morning he had taken the lift in Maruti car bearing registration No.HR266777 (car which was used for transporting the dead bodies / cut pieces of the dead bodies) and the same was driven by the original accused No.1. He has categorically stated that he was knowing the original accused No.1 as he was a former Corporator. He stated that when he sat in the car, the car was stinking and when he had inquired about the same from the original accused No.1, the original accused No.1 had given an excuse that it is smell of fish because the car belongs to his friend who is in the business of fish. According to him, he further stated that thereafter when entire incident of Maliya Miyana and Shree Sadan was published in the newspaper, he could connect the dots and he went to the Investigating Officer and narrated the event of 15.07.2000. The aforesaid is required to be connected with the recovery of the weapon used in commission of the weapons from the house of the original accused No.1. The recovery of the weapons - sword, hacksaw blade from the house of the original accused No.1 has been established and proved by the panchnama / recovery panchnama and by examining the Panch Witnesses as well as the IO in whose presence the weapons were recovered from the house of the original accused No.1. The discovery of the weapons and articles from the house of the original accused No.1 has been further established and proved by the prosecution from the deposition of Indrajit Jethalal (PW23, Exh.112). The said witness has in categoric terms supported the prosecution case and the discovery of weapons and articles from the house of original accused No.1. The injury on the dead bodies and the Page 56 of 75 R/CC/11/2011 CAV JUDGMENT body parts cut off from the deceased persons can be caused by the weapons of the crime discovered from the house of original accused No.1 as well as house of deceased Ranjanben has been established and proved by the prosecution by leading medical evidence and by examining Dr. Ganeshbhai Pyarelal Govekar (PW95) below Exh.338. The prosecution has even been able to establish the case beyond reasonable doubt by leading cogent evidence in the form of FSL reports. On perusal of Exh.516 - FSL Report, more particularly item No.103, 106 and 108 taken for examining the blood groups of the unidentified families and male body item Nos.103 and 108 belonging to unidentified females is found to have blood group 'AB' and item No.106 belong to unidentified male is having blood group 'A'. The weapon of crime at item No.21 i.e. sword, item No.22 i.e. sword, item No.23 i.e. knife, item No.24 i.e. knife, item No.58 i.e. hacksaw are found to have blood stains belonging to group 'AB' and item No.24 is found to have blood stains belonging to group 'A'.
[9.6] That the bodies / cut off pieces of the dead bodies found were that of deceased Ranjanben and her two children are established and proved by the prosecution by leading cogent evidence and even examining the expert. Thus, the prosecution has proved its case beyond reasonable doubt by way of circumstantial, scientific and medical and other evidence on record that the dead bodies were of deceased Ranjanben and her two children and that they were killed / murdered brutally and mercilessly in the house of deceased Ranjanben where the deceased Ranjanben and the original accused No.1 used to stay as husband and wife.
[9.7] Thus, the involvement of the original accused No.1 in commission of the offence of killing the deceased Ranjanben and her two minor Page 57 of 75 R/CC/11/2011 CAV JUDGMENT children has been established and proved by the prosecution by leading cogent evidence as discussed herein above. In the present case the prosecution has been able to establish all the links in the chain of events and the same are proved beyond reasonable doubt and the circumstances established are consistent only with hypothesis of the guilt of the accused. That the motive for the commission of offence by the original accused No.1 has been established and proved by the prosecution beyond reasonable doubt. The involvement of the original accused No.1 in commission of the offence of killing the deceased Ranjanben and her children has been established and proved beyond doubt. Under the circumstances and in the aforesaid facts and circumstances and considering the evidence on record and the reasoning given by the learned trial Court and the findings recorded by the learned trial Court which are on appreciation of evidence, we are of the opinion that the learned trial Court has not committed any error in convicting the original accused No.1 for the offence punishable under Section 302 of the IPC. We are in complete agreement with the view taken by the learned trial Court while holding the original accused No.1 guilty for the offence punishable under Section 302 of the IPC for having killing mercilessly and brutally the deceased Ranjanben and her two children. No interference of this Court is called for. Under the circumstances, the impugned judgment and order passed by the learned trial Court convicting the original accused No.1 for the offence punishable under Section 302 of the IPC is hereby upheld and confirmed.
[10.0] Now, the next question which is posed for consideration of this Court is whether the learned trial Court is justified in awarding the death sentence on the original accused No.1?
[11.0] Heard learned Advocate appearing on behalf of the original Page 58 of 75 R/CC/11/2011 CAV JUDGMENT accused No.1 and the learned Public Prosecutor on the sentence awarded / imposed by the learned trial Court of death sentence. It is true that the original accused No.1 had killed deceased Ranjanben and her two minor children brutally and mercilessly. After having killed the deceased Ranjanben and her two minor children, their dead bodies were chopped and thereafter, even the original accused No.1 tried to destroy the evidence and the dead bodies and thereafter, after a period of one month, he tried to dispose of the same by throwing the cut off pieces in the fertilizer bags on Maliya Miyana road. Thus, as such the original accused No.1 had killed three innocent persons brutally and mercilessly and the manner in which the offence has been committed by the original accused No.1, as rightly observed by the learned trial Court, will fall in the category of rarest of rare case. However, at the same time, while considering the question whether in the facts and circumstances of the case, death sentence is warranted or not, few decisions of the Hon'ble Supreme Court on awarding death sentence are required to be considered which are as under:
In the case of Amar Singh Yadav v. State of U.P. reported in AIR 2014 SC 2486, the Hon'ble Supreme Court had an occasion to consider warranting of death sentence in a case where the accused police personnel killed his wife and children by setting them ablaze and the crime committed was found to be in a most cruel and inhuman manner. While discussing the law on the aforesaid, in paras 19 to 26 and 28, the Hon'ble Supreme Court has observed and held as under:
"19. The next question is whether the death sentence awarded to the appellant is excessive, disproportionate on the facts and circumstances of the case, i.e. whether the present case can be termed to be a "rarest of the rare case".
20. The Guidelines emerged from Bachan Singh vs. State of Punjab, 1980 (2) SCC 684 : (AIR 1980 SC 898) were followed in Machhi Singh and others vs. State of Punjab, 1983 (3) SCC 470 :
(AIR 1983 SC 957). In the said case the Court observed:Page 59 of 75 R/CC/11/2011 CAV JUDGMENT
"38. In this background the guidelines indicated in Bachan Singh case, 1980 (2) SCC 684 : (AIR 1980 SC 898) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case(supra):
"(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
39. In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."Page 60 of 75 R/CC/11/2011 CAV JUDGMENT
21. In Ronny alias Ronald James Alwaris and others vs. State of Maharashtra, 1998 (3) SCC 625 : (AIR 1998 SC 1251), this Court noted the law laiddown in Allauddin Mian & Ors. Vs. State of Bihar, (1989) 3 SCC 5 : (AIR 1989 SC 1456), that unless the nature of the crime and circumstances of the offender reveal that criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily pass a lesser punishment and not punishment of death which should be reserved for exceptional cases only. Considering the cumulative effect of all the factors, like the offences committed under the influence of extreme mental or emotional disturbance, the young age of the accused, the possibility of reform and rehabilitation, etc. the Court may convert the sentence into life imprisonment.
22. This Court noticed the aggravating and mitigating circumstances in Ramnaresh and others vs. State of Chattisgarh, 2012 (4) SCC 257 : (AIR 2012 SC 1357), and held as follows:
"76. The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in Bachan Singh,(1980) 2 SCC 684 : (AIR 1980 SC 898), and thereafter, in Machhi Singh, (1983) 3 SCC 470 : (AIR 1983 SC 957). The aforesaid judgments, primarily dissect these principles into two different compartments--one being the "aggravating circumstances" while the other being the "mitigating circumstances". The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon [pic]balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated under Section 354(3), CrPC.
Aggravating circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the commission of another serious offence.Page 61 of 75 R/CC/11/2011 CAV JUDGMENT
(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC.
(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity and meanness.
(12) When there is a coldblooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in Page 62 of 75 R/CC/11/2011 CAV JUDGMENT contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.
While determining the questions relating to sentencing policy, the Court laid down the Principles at paragraph 77 which reads as follows:
"77. While determining the questions relatable to sentencing policy, the court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence.
Principles (1) The court has to apply the test to determine, if it was the "rarest of rare" case for imposition of a death sentence.
(2) In the opinion of the court, imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice.Page 63 of 75 R/CC/11/2011 CAV JUDGMENT
(3) Life imprisonment is the rule and death sentence is an exception.
(4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations.
(5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime."
23. In Shankar Kisanrao Khade vs. State of Maharashtra, 2013 (5) SCC 546 : (AIR 2013 SC 1230), dealing with a case of death sentence, this Court observed:
"52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding death sentence are "crime test", "criminal test" and the "RR test" and not the "balancing test".
To award death sentence, the "crime test" has to be fully satisfied, that is, 100% and "criminal test" 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the "criminal test" may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (RR test). RR test depends upon the perception of the society that is "society centric" and not "Judgecentric", that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges."
24. On the question of sentence of death the principle in nutshell has been stated in Haresh Mohandas Rajput vs. State Of Page 64 of 75 R/CC/11/2011 CAV JUDGMENT Maharashtra, 2011 (12) SCC 56 : (AIR 2011 SC 3681), which reads as under:
"The rarest of the rare case" comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of "the rarest of the rare case". There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spurofthemoment provocation and indulges himself in a deliberately planned crime and [pic]meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society e.g. crime committed for power or political ambition or indulging in organised criminal activities, death sentence should be awarded. (See C. Muniappan v. State of T.N.(2010) 9 SCC 567 : (AIR 2010 SC 3718), Dara Singh v. Republic of India. (2011) 2 SCC 490 :
(AIR 2011 SC 1436); Surendra Koli v. State of U.P, (2011) 4 SCC 80 : (AIR 2011 SC 970); Mohd. Mannan, (2011) 5 SCC 317 : (AIR 2011 SC (Cri) 1210) and Sudam v. State of Maharashtra, (2011) 7 SCC 125 : (AIR 2011 SC (Cri 1670)
25. In Sandeep vs. State of Uttar Pradesh, (2012) 6 SCC 107, this Court observed:
"72. It is, therefore, well settled that awarding of life sentence is the rule, death is an exception. The application of "the rarest of the rare case" principle is dependent upon and differs from case to case. However, the principles laid down earlier and restated in the various decisions of this Court referred to above can be broadly stated that a deliberately planned crime, executed meticulously in a diabolic manner, exhibiting inhuman conduct in a ghastly manner, touching the conscience of everyone and thereby disturbing the moral fibre of society would call for imposition of capital punishment in order to ensure that it acts as a deterrent."Page 65 of 75 R/CC/11/2011 CAV JUDGMENT
26. Though we are convinced that the prosecution has proved the guilt of the accused beyond all reasonable doubt, the accused committed the crime in a most cruel and inhuman manner. The helpless wife and young children, who fell victims to the avaricious conduct and lust of the appellant still the case does not fall within the four corners of the principle of "the rarest of the rare case", though no leniency can be shown to the appellant.
28. In Swamy Shraddananda vs. State of Karnataka, (2008) 13 SCC 767 : (AIR 2008 SC 3040), even while setting aside the sentence of death penalty and awarding life imprisonment in order to serve the ends of justice, the Court ordered that the appellant should not be released from the prison till the end of his life. Likewise, in Ramraj v. State of Chhattisgarh, (2010) 1 SCC 573 :
(AIR 2010 SC 420), this Court, while setting aside the death sentence, directed that the appellant therein should serve a minimum period of 20 years including the remissions and would not be released on completion of 14 years of imprisonment.
29. In Sandeep's (supra) taking into note the aforesaid decisions and facts and circumstances of the case, this Court while holding that the imposition of death sentence to the accused Sandeep was not warranted and while awarding life imprisonment, the Court held that the accused Sandeep must serve a minimum of 30 years in jail without remissions before consideration of his case for premature release."
[11.1] In the present case the aggravating and mitigating circumstances against the accused and in his favour can be as under on the basis of the facts of the case as under:
Sr. Aggravated Circumstances Mitigating Circumstances No. 1 It is the case of triple murder. 1. That at the time of The accused murdered/killed commission of the offence, the three innocent persons viz. original accused No.1 was aged deceased Ranjanben and her about 65 years.
two minor children mercilessly and brutally. Not only that but 2. That more than 18 years have after having killed them by passed after the incident deadly weapons the accused Page 66 of 75 R/CC/11/2011 CAV JUDGMENT Sr. Aggravated Circumstances Mitigating Circumstances No. No.1 chopped the dead bodies 3. That in between the original into pieces, kept the same in accused No.1 is suffering from water tank and thereafter took cancer.
the pieces in the fertilizer bags and thrown at on Maliya 4. Even more than 7 years have Miyana road. The original passed after impugned judgment accused No.1 was residing and order passed by the learned with the deceased Ranjanben trial Court awarding the death as husband and wife, after the sentence.
death of the husband of the deceased Ranjanben and even the minor children were also treating and/or considering the original accused No.1 as their father.
2 That the accused killed the deceased Ranjanben for the properties.
[11.2] This Court therefore finds that the mitigating circumstances in the facts of the present case as established on record are outgoing the aggravating circumstances and therefore, if the death sentence is converted into imprisonment for life (till the last breath of life), it will meet the ends of justice.
[11.3] We are supported by the judgment of the Apex Court in the case of State of Maharashtra Vs. Nisar Ramzan Sayyed, reported in (2017) 5 SCC, 673, where in almost identical situation, i.e. to say in a crime of triple murder arising out of matrimonial dispute and the Page 67 of 75 R/CC/11/2011 CAV JUDGMENT husband was held guilty of murder of his pregnant wife and minor boy, in such facts, the Apex Court held as under: "16. The various circumstances pointing out to the guilt of the respondent and the respondent alone have been enumerated by us hereinbefore. From our discussions, it is evident that each of the circumstances had been established, the cumulative effect whereof would show that all the links in the chain are complete and the conclusion of the guilt is fully established. Therefore, in our considered opinion the respondent herein is guilty of the offence causing death of his pregnant wife and minor child.
17. The next question, however, is as to whether in a case of this nature death sentence should be awarded. A life is at stake subject to human error and discrepancies and therefore the doctrine of "rarest of rate cases"m which is not res integra in awarding the death penalty, shall be applied while considering quantum of sentence in the present case. Not so far but too recently, the Law Commission of India has submitted its Report No.262 titled "The Death Penalty" after the reference was made from this Court to study the issue of death penalty in India to "allow for an uptodate and informed discussion and debate on this subject". We have noticed that the Law Commission of India has recommended the abolition of death penalty for all the crimes other than terrorism related offences and waging war (offences affecting National Security). Today when capital punishment has become a distinctive feature of death penalty apparatus in India which somehow breaches the reformative theory of punishment under criminal law, we are not inclined to award the same in peculiar facts and circumstances of the present case. Therefore, confinement till natural life of the respondentaccused shall fulfill the requisite criteria of punishment in peculiar facts and circumstances of the present case."
[11.4] In view of the above and for the reasons stated above, Criminal Appeal No.521/2014 preferred by the original accused No.1 against the impugned judgment and order passed by the learned trial Court convicting the original accused No.1 for the offence punishable under Section 302 of the IPC is hereby dismissed and the impugned judgment and order passed by the learned trial Court insofar as convicting the original accused No.1 for the offence punishable under Section 302 of the IPC having killed / murdered the deceased Ranjanben and her two minor children viz. Devdutt and Avni is hereby confirmed.
Page 68 of 75 R/CC/11/2011 CAV JUDGMENTHowever, the impugned judgment and order passed by the learned trial Court awarding the death sentence is hereby modified and instead the original accused No.1 is ordered to undergo rigorous imprisonment for life (till last breath of life) for having committed the offence punishable under Section 302 of the IPC for having killed / murdered the deceased Ranjanben and her two minor children viz. Devdutt and Avni. Criminal Appeal No.521/2014 is partly allowed to the aforesaid extent only. Confirmation Case No.11/2011 stands disposed of accordingly.
Criminal Appeal No.1281/2011 preferred by Original Accused No.2 [12.0] Now, so far as Criminal Appeal No. 1281 of 2011 preferred by the original accused No.2 Pankaj Sodha is concerned, at the outset, it is required to be noted that he has been convicted for the offences punishable under Sections 201 r/w Section 34 of the IPC and has been awarded rigorous imprisonment for 7 years with fine of Rs.5000/ and in default of payment of fine further imprisonment of one year. It is required to be noted that original accused No.2 Pankaj Sodha was also charged and tried for the offences punishable under Section 302 r/w Section 34 of the IPC along with charge for the offence punishable under Section 201 r/w Section 34 of the IPC. However, by impugned judgment and order the learned trial Court has acquitted the original accused No.2 Pankaj Sodha for the offences punishable under Section 302 r/w Section 34 of the IPC and the learned trial Court has convicted the original accused No.2 for the offences punishable under Section 201 r/w Section 34 of the IPC only. At this stage, it is required to be noted that against the acquittal of original accused No.2 Pankaj Sodha for the offences punishable under Section 302 r/w Section 201 of the IPC, the State preferred Criminal Appeal No. 968 of 2012 with Criminal Miscellaneous Application (Leave to Appeal) No. 9602 of 2012 and by order dated 23.10.2012 the Division Bench refused to grant leave to Page 69 of 75 R/CC/11/2011 CAV JUDGMENT appeal against the order acquitting original accused No.2 for the offences punishable under Section 302 r/w Section 34 of the IPC. Therefore, as such it can be said that impugned judgment and order passed by the learned trial Court acquitting the original accused No.2 for the offences punishable under Section 302 r/w Section 34 of the IPC is not upset by the High Court and the same stood confirmed. At this stage, it is required to be noted that the order passed by the Division Bench of this Court dated 23.10.2012 refusing to grant leave to appeal against the judgment and order passed by the learned trial Court acquitting the original accused No.2 for the offences punishable under Section 302 r/w Section 34 of the IPC has not been challenged before the Hon'ble Supreme Court and thus, the same has attained the finality. At this stage, it is required to be noted that even the State of Gujarat also preferred an appeal against the original accused no. 2 for enhancement being Criminal Appeal No.1225 of 2011 and the same came to be disposed of by the Division Bench on the ground that the State of Gujarat has already preferred appeal against the acquittal.
Therefore, now this Court is required to consider whether in the facts and circumstances of the case the learned trial Court is justified in convicting the original accused No.2 for the offences punishable under Section 201 r/w Section 34 of the IPC?
[13.0] Heard Shri P.M. Lakhani, learned counsel appearing on behalf of the original accused No.2 and Shri Mitesh Amin, learned Public Prosecutor appearing on behalf of the respondent State. We have perused the impugned judgment and order passed by the learned trial Court convicting the original accused No.2 for the offences punishable under Section 201 r/w Section 34 of the IPC. We have reappreciating the entire evidence on record so far as original accused No.2 is concerned.
Page 70 of 75 R/CC/11/2011 CAV JUDGMENT[13.1] The charge is framed against the original accused No.2 Pankaj Sodha was that he helped original accused No.1 in committing the murder of deceased persons by standing near the stair of Shree Sadan (Place of incident) and thereafter helping the original accused No.1 to dispose of the body of the body by providing him Acid, Salt and a Maruti Car for the purpose of throwing away the body. From the impugned findings recorded by the learned trial Court, it appears that learned trial Court has come to the conclusion that the original accused No.2 had provided Acid and Salt and thus had helped the original accused No.1 in committing the offences under Section 201 of the IPC.
[13.2] To prove the charge against the original accused No.2, the prosecution was required to prove beyond shadows of all reasonable doubt that said accused had provided Acid and Salt with intention and knowledge to help the original accused No.1 so as to dispose of the dead bodies and that the said accused has provided Maruti Car of one Ratilal Barad to original accused No.1 with an intention and knowledge that the accused No.1 would use the said Car to throw away the pieces of dead bodies.
[13.3] The learned trial Court has come to the conclusion that original accused No.2 had provided Acid and Salt and thus, had helped the original accused No.1 in committing the offences under Section 201 of the IPC.
[14.0] Now, so far as finding recorded by the learned trial Court with regard to providing Acid is concerned, from the impugned judgment and order, it appears that the learned trial Court has relied upon and / or considered deposition of PW No. 36 Gulamadas Mohammadali who has been examined at Exh.146. However, it is Page 71 of 75 R/CC/11/2011 CAV JUDGMENT required to be noted that said witness is hostile witness and has not supported the case of the prosecution. At this stage, it is required to be noted that even the learned Single Judge ought to have considered the said evidence / deposition of PW No. 36 as incriminating against the original accused No.2 and therefore, as such no question was asked in further statement recorded under Section 313 of the Code of Criminal Procedure. Therefore, when the trial Court has not considered the said fact to be against the person, there was no reason for the learned trial Court to come to a conclusion that accused No.2 Pankaj Sodha as provided Acid to the original accused No.1. No other evidence has been led by the prosecution to prove purchase of Acid by the accused No.2 and that the accused No.2 provided the Acid to the original accused No.1 and that too with a knowledge and intention that original accused No.1 shall use the same in disposing of the dead bodies.
[14.1] Even assuming for the sake that it is proved that accused No.2 purchased the Acid and story put forward by the prosecution that accused No.2 purchased the Acid is believed, in that case also, thereafter there is no further evidence even to whisper that said Acid has been given to accused No.1.
[15.0] Now, so far as charge against the accused No.2 providing salt and finding recorded by the learned trial Court that the original accused No.2 provided salt to the original accused No.1 is concerned, it appears that the relevant witness is PW No.34 Pareshkumar Shakarlal Trivedi who has been examined at Exh.143. According to the prosecution, the said witness sold the Salt to Pankaj Sodha original accused No.2. It is required to be noted that as such said witness is hostile witness and has not supported the version of the prosecution with regard to sale of salt to Pankaj Sodha original accused No.2. At this Page 72 of 75 R/CC/11/2011 CAV JUDGMENT stage, it is required to be noted that even the case of the prosecution was that Bhavan Sodha i.e. original accused No.1 purchased the salt. Therefore, as such prosecution has failed to prove beyond the doubt that the original accused No.2 purchased the salt and thereafter provided salt to the original accused No.1 and that too with an intention and knowledge that original accused No.1 shall use it in disposing of the dead bodies. At this stage, it is required to be noted that even the learned Judge has not believed the evidence of the PW No.34 and PW No.63 as incriminating and therefore, the circumstances arising from the deposition of the aforesaid two witnesses are not being put to the accused in further statement recorded by the learned trial Court under Section 313 of the Code of Criminal Procedure.
[15.1] Thus, the prosecution has failed to prove beyond doubt that the original accused No.2 purchased the Acid and Salt and thereafter provided the same to the original accused No.1 and that too with an intention and knowledge that the accused No.1 shall use the same in disposing of the dead bodies. At this stage, it is required to be noted that the case is placed on circumstantial evidence only. The prosecution is required to prove beyond doubt, more particularly, when original accused No.1 is charged for the offences punishable under Section 201 r/w Section 34 of the IPC. As observed and held by the Hon'ble Supreme Court in the case of Sujit Biswas vs. State of Assam reported in (2013) 12 SCC 406 (para 18) in a case of circumstantial evidence, graver the crime, the greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. It is further observed by the Hon'ble Supreme Court in the case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The Court must draw an Page 73 of 75 R/CC/11/2011 CAV JUDGMENT inference with respect to whether the chain of circumstances is complete and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused.
[15.2] Applying law laid down by the Hon'ble Supreme Court in the aforesaid decision to the facts of the case on hand, we are of the opinion that the learned trial Court has materially erred in convicting the original accused for the offences punishable under Section 202 r/w Section 34 of the IPC as the prosecution has failed to prove beyond doubt the guilt of the accused. Under the circumstances even by giving benefit of doubt as it is the case of circumstantial evidence and the prosecution has failed to complete the chain of circumstances. Under the circumstances, appeal preferred by the original accused No.2 being Criminal Appeal No. 1281 of 2011 deserves to be allowed and the impugned judgment and order passed by the learned trial Court in so far as convicting the original accused No.2 for the offences punishable under Section 201 r/w Section 34 of the IPC deserves to be quashed and set aside and the accused No.2 Pankaj Sodha is to be acquitted for the charges, for which, he has been convicted.
[16.0] In view of the above and for the reasons stated above, Criminal Appeal No. 521 of 2014 preferred by the original accused No.1 Bhavanbhai Sodha is dismissed insofar as convicting the original accused No.1 Bhavanbhai Sodha for the offences punishable under Sections 302, and 201 of the IPC is concerned. The impugned judgment and order passed by the learned trial Court convicting the original accused No.1 Bhavanbhai Sodha for the offences punishable under Sections 302 and Page 74 of 75 R/CC/11/2011 CAV JUDGMENT 201 of the IPC is hereby confirmed. However, the appeal is partly allowed to the extent modifying the impugned judgment and order passed by the learned trial Court from death sentence to rigorous imprisonment for life (till the last breath of life). Consequently, Criminal Confirmation Case No.11/2011 stands disposed of.
[17.0] In view of the above and for the reasons stated above, Criminal Appeal No.1281 of 2011 preferred by the original accused No.2 Pankaj Sodha is hereby allowed. The impugned judgment and order dated 30.07.2011 passed by the learned trial Court in Sessions Case No.164 of 2000 insofar as convicting the original accused No.2 for the offences punishable under Section 201 r/w Section 34 of the IPC is hereby quashed and set aside and the original accused No.2 is acquitted for the offences punishable under Section 201 r/w Section 34 of the IPC. It is reported that original accused No.2 is on bail and therefore, his bail bond stands cancelled.
Sd/ (M.R. SHAH, J.) Sd/ (MOHINDER PAL, J.) Ajay** Page 75 of 75