Gujarat High Court
Parmar Somabhai @ Ghanshyambahi @ ... vs State Of Gujarat on 16 March, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
R/CR.A/1722/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1722 of 2012
With
R/CRIMINAL APPEAL NO. 1241 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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KALPESHBHAI SOMABHAI VASAVA
Versus
STATE OF GUJARAT
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Appearance:
MR ARPIT A KAPADIA, ADVOCATE for the Appellant
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR for the
RESPONDENT
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 16/03/2018
Page 1 of 54
R/CR.A/1722/2012 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. By these appeals under section 374 of the Code of Criminal Procedure, 1973, the appellants (convicts) have challenged the judgment and order of conviction and sentence dated 20.9.2012 passed by the learned Additional Sessions Judge, Anand in Sessions Case No.34 of 2010, whereby the accused have been convicted for the offences punishable under section 302 read with section 120-B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life as well as fine of Rs.1,000/- and in case of default in payment of fine, to undergo further simple imprisonment for a period of six months. The appellants have also been convicted for the offence under section 364 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of ten years and fine of Rs.1,000/- and in default of payment of fine, to undergo further simple imprisonment for a period of six months. The appellants have further been convicted for the offence under section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three years and fine of Rs.500/- and in default of payment of fine, to undergo further simple imprisonment for a period of three months. No separate sentence has been awarded in respect of the offence under section 120B of the Indian Penal Code. All the sentences are ordered to run concurrently.
2. The charge against the accused is that both the accused in connivance with each other hatched a conspiracy/made preparations for a pre-planned conspiracy and both the accused, on 19.10.2009 in the evening, with the intention of Page 2 of 54 R/CR.A/1722/2012 JUDGMENT looting a vehicle, met Niteshmiya alias Salimmiya Bhikhumiya Shaikh, resident of Ratanpur, Taluka Matar, near the Civil Hospital at Kheda and told him that they wanted to go to Pavagadh in the Bolero Jeep in his possession bearing registration No.GJ-9-M-9682 and after fixing the hire charges at Rs.2,700/-, set off from there and on the way near Karamsad, both the accused got together and strangulated the driver of the Bolero, namely, Niteshmiya alias Salimmiya Bhikhumiya Shaikh with a string and caused his death and threw the dead body within the limits of the pastures of Ardi village in Petlad Taluka with a view to destroy the evidence and fled with the above Bolero vehicle and left the vehicle unclaimed near Tapi Hotel on the highway near Dashrath village of Vadodara and absconded. The accused were, accordingly, charged with the commission of the offences punishable under sections 302, 201, 364 and 120B of the Indian Penal Code.
3. The prosecution case is that Ramabhai Jadav, Sarpanch of Ardi Village Panchayat addressed a letter dated 20.10.2009 on the Panchayat's letter pad to the first informant S.L. Pateliya, P.S.O., Mahelav Police Station informing him that the dead body of a man was lying in the pastures of Ardi village. Upon inspecting the pastures of Ardi village, the dead body of a male person aged about 25 to 30 years, wearing a white undershirt and black pants was found. Both his hands were tied with strings and there were marks of strangulation with a string on his neck. On the left cheek of his face, there were injuries. Therefore, it appeared that the said unknown deceased person had been strangulated to death, and with a view to destroy the evidence, the dead body had been thrown in the pasture of Ardi village. A first information report to that Page 3 of 54 R/CR.A/1722/2012 JUDGMENT effect was given by Shri P.S.I. Pateliya, which came to be registered as Mahelav Police Station I - C.R. No.43/2009 for commission of the offences punishable under sections 302 and 201 of the Indian Penal Code. Upon the investigation being handed over to Shri Pateliya, the inquest of the dead body was conducted and steps were taken to conduct the postmortem of the same. The panchnama of the scene of offence came to be drawn in the presence of the panchas. The clothes as well as other articles on the dead body came to be seized under a panchnama. The Forensic Science Laboratory was informed and samples of control earth and bloodstained earth came to be collected. During the course of investigation, it was found that the mobile phone of the deceased was missing and on that basis, during the course of investigation, the accused came to be arrested. Upon further investigation, accused Somabhai alias Ghanshyambhai and Kalpeshbhai Somabhai came to be arrested on 3.11.2009 and a panchnama in that regard came to be drawn in the presence of panchas. During the course of further investigation, it was revealed that both the accused, with a view to loot the vehicle, on 19.10.2009, had taken the Bolero Jeep No.GJ-9M-9682 on hire from the deceased Niteshmiya alias Salimmiya Bhikhumiya Shaikh, resident of Ratanpur, for a sum of Rs.2,700/- and on the way, near Karamsad, they strangulated the deceased with a string and threw the dead body in the pastures of Ardi village of Petlad Taluka and then left the jeep unclaimed on the Dashrath village highway of Vadodara and fled. Since it appeared that both the accused had hatched a conspiracy to kidnap the driver of the vehicle along with the vehicle and kill him and loot the vehicle, the charge under sections 364 and 120B of the Indian Penal Code came to be added and a report Page 4 of 54 R/CR.A/1722/2012 JUDGMENT came to be made to the Petlad Court. Upon conclusion of the investigation, since sufficient evidence was found against the accused, the Investigating Officer submitted a charge-sheet in the court of the learned Judicial Magistrate First Class, Petlad, which came to be registered as Criminal Case No.30 of 2010. Since the case was triable exclusively by the Court of Sessions, the same came to be committed to the Sessions Court at Anand, where it came to be registered as Sessions Case No.34 of 2010.
4. The charge came to be framed against the accused as referred to hereinabove. The accused pleaded not guilty and claimed to be tried.
5. Before the trial court, the prosecution examined, in all, 24 witnesses and adduced a plethora of documentary evidence on record. The trial court, after appreciating the evidence on record and considering the rival submissions, found that the prosecution had duly established the charge against the accused and convicted and sentenced them as referred to hereinabove.
6. Mr. Arpit Kapadia, learned advocate for the appellants in Criminal Appeal No.1722 of 2012, submitted that the entire case is based upon circumstantial evidence. The Investigating Officer who had investigated the offence has passed away and, therefore, could not be examined as a witness during the course of trial. It was argued that first and foremost, no motive has been established in the present case. It has been alleged that the accused wanted to commit theft of the vehicle; however, no evidence has been brought on record that either Page 5 of 54 R/CR.A/1722/2012 JUDGMENT of the accused could drive the vehicle. Moreover, the vehicle has been left on the side of the road and hence, the allegation that the motive to commit the offence was to steal the vehicle is not borne out, inasmuch as, if the appellants wanted to commit theft of the vehicle, there was no question of leaving it on the side of the road.
6.1 To bolster his submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Rishipal v. State of Uttarakhand, (2013) 12 SCC 551, wherein it was suggested on behalf of the State that the appellant therein got rid of the deceased by killing him because he intended to take away the car which the complainant had given to him. The court was not impressed by such argument and was of the view that if the motive behind the alleged murder was to somehow take away the car, it was not necessary for the appellant therein to kill the deceased for the car could be taken away even without physically harming the deceased. The court held that, it is fairly well settled that while motive does not have a major role to play in cases based on eyewitness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence.
6.2 It was further submitted that there is no conclusive evidence on record to establish that both the accused have been seen together with the deceased and that the evidence adduced by the prosecution is not cogent and reliable. Reference was made to the decision of the Supreme Court in the case of Nizam and another v. State of Rajasthan, (2016) 1 SCC 550, for the proposition that if prosecution is Page 6 of 54 R/CR.A/1722/2012 JUDGMENT able to prove its case on motive, it will be a corroborative piece of evidence lending assurance to prosecution case. The court held that undoubtedly, the "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by the Supreme Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. Reliance was also placed upon the decision of the Supreme Court in the case of Madhu v. State of Kerala, (2012) 2 SCC 399.
6.3 It was submitted that in this case, a test identification parade came to be conducted to identify the accused; however, such test identification parade is beset with several infirmities, namely that, the accused were shown to the witnesses by the police prior to the test identification parade, and the panchas have not supported the test identification parade; the test identification has not been carried out in accordance with law as while the accused were aged between 25 to 30 years, the dummy persons were of different ages ranging between 21 to 51 years. It was submitted that therefore, a proper test identification parade has not been conducted.
6.4 In support of his submission the learned advocate placed Page 7 of 54 R/CR.A/1722/2012 JUDGMENT reliance upon the decision of the Supreme Court in the case of N. J. Suraj v. State represented by Inspector of Police, (2004) 11 SCC 346, wherein the court observed that the appellant therein was put to the test identification parade where the witnesses were said to have identified the appellant, but in their evidence they admitted that the photograph of the accused was shown to them before holding the test identification parade. In view of the fact that the photograph of the accused was shown to the witnesses, their identification in the test identification parade becomes meaningless and no reliance could be placed thereon. It was submitted that in the facts of the present case, the witness has stated that he had seen the accused prior to the test identification parade, and hence, no reliance could be placed upon such identification. Reliance was also placed upon the decision of the Supreme Court in the case of Vijayan v. State of Kerala, (1999) 3 SCC 54, wherein the court held that the so-called identification in the test identification parade was rightly disbelieved by the Sessions Judge inasmuch as by the date the test identification parade was conducted, not only the photograph of the accused had been shown to PW 3 and in all probability must have been shown to PW 9 but also in all the local newspapers the photograph had already been printed. The court was of the view that in such circumstances, the Sessions Judge rightly came to the conclusion that the test identification parade was nothing but a farce and cannot be relied upon.
6.5 The decision of the Supreme Court in the case of Ravindra alias Ravi Bansi Gohar v. State of Maharashtra and others, (1998) 6 SCC 609, was cited for Page 8 of 54 R/CR.A/1722/2012 JUDGMENT the proposition that the identification parades belong to the investigation stage and they serve to provide the investigating authority with materials to assure themselves if the investigation is proceeding on the right lines. In other words, it is through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits - and not by showing the suspects or their photographs. Such being the purpose of identification parades, the investigating agency, by showing the photographs of the suspects whom they intended to place in the TI parade, made it farcical. If really the investigating agency was satisfied that the witnesses did know the appellants therein from before and they were in fact amongst the miscreants, the question of holding the TI parade in respect of them for their identification could not have arisen. The court held that a vital factor for determining the value of an identification parade is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aids or assistance so as to facilitate the identification of the accused concerned. The court observed that in the facts of the said case, not only the photographs of the appellants therein and other accused were shown before the TI parades, but they were held in the lock-up of the investigating agency, thereby giving sufficient opportunity to the identifying witnesses of seeing the persons to be identified. It was submitted that the above decision would be squarely applicable to the facts of the present case.
Page 9 of 54R/CR.A/1722/2012 JUDGMENT 6.6 The decision of the Supreme Court in the case of State of Goa v. Sanjay Thakran and another, (2007) 3 SCC 755, was cited wherein the court found certain irregularities in the manner of conducting the identification parade. A-1 and A-2 were placed in the same identification parade with six dummies each, which was contrary to para 16(2)(h) of the Criminal Manual issued by the High Court of Bombay, which mentioned that, "If two suspects were not similar in appearance or where there were more than two suspects, separate parade should be held using different person on each parade." It was submitted that in the facts of the present case, the above provision has been given a complete go-bye and a common test identification parade has been conducted in respect of both the accused persons who are not similar in appearance. Reference was made to the decision of the Supreme Court in the case of Rajesh Govind Jagesha v. State of Maharashtra, (1999) 8 SCC 428, for the proposition that in case where a person is alleged to have committed the offence and is not previously known to the witnesses, it is obligatory on the part of the investigating agency to hold identification parade for the purposes of enabling the witnesses to identify the person alleged to have committed the offence. The test identification is considered as a safe rule of prudence for corroboration. Though the holding of the identification proceedings may not be substantive evidence, yet such proceedings are used for corroboration purposes in order to believe or not the involvement of the person brought before the court for the commission of the crime. Hence, identification parade ought to be held strictly in accordance with the settled position of law and expeditiously. The delay, if Page 10 of 54 R/CR.A/1722/2012 JUDGMENT any, has to be explained satisfactorily by the prosecution. 6.7 Reliance was placed upon the decision of the Supreme Court in the case of Sunil Rai alias Pauya and others v. Union Territory, Chandigarh, (2011) 12 SCC 258, wherein the court observed that no effort was made to take the blood sample of Sunil Rai and it is not known what is his blood group. Moreover, the jacket was recovered from a rickshaw standing out in the open where it was accessible to anyone. In the aforesaid circumstances, the recovery of the bloodstained jacket, on its own, is a circumstance too fragile to bear the burden of the appellants' conviction for murder. Likewise, the fact that Sunil Rai had got his money and clothes stolen and he believed that Dile Ram had committed the theft, normally, cannot be said to make out sufficient motive for him to kill Dile Ram. In any event, motive alone can hardly be a ground for conviction. The court held that on the materials on record, there may be some suspicion against the accused, but as is often said, suspicion, howsoever strong, cannot take the place of proof. The court, therefore, found and held that the conviction of the appellants therein is based on completely insufficient evidence and is wholly unsustainable. It was submitted that in the facts of the present case, the blood sample of the accused had not been taken to verify the blood group. Moreover, the conviction of the appellants is based on insufficient evidence mainly on the basis of suspicion.
6.8 Reference was made to the decision of the Supreme Court in the case of Surendra v. State of Rajasthan, (2011) 15 SCC 78,, wherein the court observed that the appellants were arrested on 11.1.2001 and the recoveries were made two-three days thereafter, but the articles were sent to the Page 11 of 54 R/CR.A/1722/2012 JUDGMENT laboratory on 19.3.2001. The court was of the opinion that even otherwise, as the evidence of last seen itself was unacceptable, the recoveries by themselves would not make any difference. Moreover, even if a false plea had been taken by the accused that by itself will not be enough to maintain their conviction and as the prosecution story itself suffers from glaring infirmities, the infirmities in the prosecution case cannot be filled up by a false plea of alibi. The decision of the Supreme Court in the case of Prakash v. State of Karnataka, (2014) 12 SCC 133, was cited wherein the court held thus:
"40. The second discrepant statement was that Shivanna stated that the police had kept Prakash's clothes on the table. It was submitted, in other words, that the blood stained clothes were already seized by the police and kept on the table. We are not sure whether the actual statement made by Shivanna has been lost in translation.
41. In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains on Prakash's seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains on Prakash's clothes were those of Gangamma's blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it Page 12 of 54 R/CR.A/1722/2012 JUDGMENT is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh.P-27] was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains on Prakash's clothes were his own blood stains and that his blood group was also AB."
6.9 Reliance was placed upon the decision of the Supreme Court in the case of Govindaraju alias Govinda v. State by Sriramapuram Police Station and another, (2012) 4 SCC 722, wherein the court held that the recoveries made therein were not in conformity with the provisions of section 27 of the Evidence Act, 1872. The memos did not bear the signatures of the accused upon their disclosure statements. Firstly, this was a defect in the recovery of weapons and secondly, all the recovery witnesses had turned hostile, thus creating a serious doubt in the said recovery. It was submitted that the above decision would be squarely applicable to the facts of the present case.
6.10 Reliance was also placed upon the decision of the Supreme Court in the case of State of M.P. v. Kriparam, (2003) 12 SCC 675, for the proposition that recoveries by themselves would not take the prosecution case any further where the evidence of eyewitnesses is not acceptable.
6.11 Reference was made to the decision of the Supreme Court in the case of Mustkeem alias Sirajudeen v. State Page 13 of 54 R/CR.A/1722/2012 JUDGMENT of Rajasthan, (2011) 11 SCC 724, wherein the court observed that the AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the appellant unless the same was connected with the murder of the deceased by the appellants therein. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of Mustkeem was not sufficient for test as the same had already disintegrated. The court was of the view that at any rate, due to the reasons elaborated in the subsequent paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable it to arrive at the conclusion that the latter were used for the murder.
6.12 It was urged that the prosecution has failed to establish the motive behind commission of the offence and has further failed to prove the case against the accused beyond reasonable doubt. It was, accordingly, urged that the judgment and order of conviction and sentence deserves to be quashed and set aside and the accused are required to be set at liberty.
7. Ms. Rekha Kapadia, learned advocate for the appellant in Criminal Appeal No.1241 of 2014 adopted the arguments advanced by Mr. Arpit Kapadia.
8. Vehemently opposing the appeals, Mr. Mitesh Amin, learned Public Prosecutor, submitted that the prosecution case, as unfolded during the course of investigation, is that the Page 14 of 54 R/CR.A/1722/2012 JUDGMENT Sarpanch of Ardi village reported having found a dead body on 20.10.2009, pursuant to which the police registered an accidental death case bearing No.9/2009. The inquest panchnama as well as the scene of offence panchnama were drawn on the same day. Samples of earth came to be collected and the FSL report shows that the blood group was that of the deceased. On the same day, clothes of the deceased found on the dead body came to be recovered after the postmortem was performed. The pant as well as undershirt and two pieces of string, in all four articles, were collected and during the scientific examination, all the four articles were found to be stained with blood of "B" group. The attention of the court was invited to the report of the Forensic Science Laboratory in this regard.
8.1 It was submitted that when the autopsy of the dead body was performed, and investigation of accidental death came to be concluded, it was found that it was not a case of accident, but a case of homicidal death. Therefore, a first information report came to be filed at about 5:45 p.m. on 20.10.2009. Till then, there were no suspects. On 22.10.2009, PW-14, Urmilabahen Jashbhai Patel reported to the Kheda Town Police Station that her motor vehicle Bolero together with the driver was missing and this information came to be registered as Janvajog No.119/2009 at 1:45 in the afternoon. It was pointed out that on 23.10.2009, a relative of the deceased, viz., his brother-in-law Liyakatkhan Amirkhan Pathan (PW-12) identified the dead body in the cold room of the SSG Hospital, and for the first time, the deceased came to be identified. It was pointed out that on the same day, that is, on 23.10.2009, during the course of investigation, the Bolero was found on the Vadodara Page 15 of 54 R/CR.A/1722/2012 JUDGMENT Highway and was identified. It was submitted that in the presence of the FSL officers, four samples of blood stained cloths came to be collected, which were subsequently found to be of blood group "B".
8.2 Reference was made to the communication dated 23.10.2009 of Shri S.L. Pateliya (Exhibit-110), to point out that it was found that the mobile phone of deceased Niteshmiya alias Salimmiya Bhikhumiya Shaikh bearing No.98793 12173 was missing. and hence, efforts be made to call for the call details. Reference was made to the call details of the phone number of the deceased. The attention of the court was invited to the toll tax receipt (Exhibit-92) to point out that the same establishes that the Bolero vehicle in question crossed Vasad Toll Plaza at about 10:30 at night. It was submitted that on 3 rd November, the accused came to be arrested on the basis of the IME number of the mobile phone of the deceased. It was pointed out that the mobile phone was recovered from accused Kalpeshbhai at the time of his arrest as evidenced by the panchnama (Exhibit-46). It was pointed out that vide panchnama Exhibit-53, the shirt as well as mojdi (shoe) of the deceased were recovered at the instance of accused Kalpeshbhai Somabhai Vasava and that the shirt was found to be stained with blood which in terms of the FSL report, was of blood group "B" and the mojdi (shoe) was also found to be stained with human blood. It was further pointed out that the panchnama Exhibit-53 may strictly speaking not be a discovery panchnama, but it shows that a shirt and a mojdi which are crime articles have been found. Referring to the panchnama Exhibit-54, it was pointed out that broken pieces of the sim card came to be recovered at the instance of Kalpeshbhai Page 16 of 54 R/CR.A/1722/2012 JUDGMENT Somabhai Vasava. Reference was made to Exhibit-127 which is a communication of the Scientific Officer addressed to the Police Sub Inspector, Mahelav Police Station informing him that physical matching shows that the sim card had number ICCID 89910 54070 15332 415. It was pointed out that by the panchnama Exhibit-54, the wallet of the deceased and a copy of the driving licence were also recovered. That the clothes worn by accused Kalpeshbhai Vasava were also recovered from his maternal uncle's house at village Govali and the same were stained with blood and the FSL report of the said article indicated human blood "B" group. Referring to the serological report of the Forensic Science Laboratory, it was pointed out that the string which was found from the Bolero as well as from the body of the deceased all bore the blood group "B". The clothes of the deceased as well as bloodstained earth recovered from the scene of offence as well as the pieces of cloth and the shirt as well as clothes of the accused were found to be stained with blood of "B" group, which is the blood group of the deceased.
8.3 It was submitted that in this case, the testimonies of three witnesses, viz., PW-15 Farukhbhai Yusufbhai Vora, PW-16 Kasambhai Sulemanbhai Khalifa and PW-18 Razzakmiya Rasulmiya, are of utmost importance. It was submitted that both Farukhbhai Yusufbhai Vora and Kasambhai Sulemanbhai Khalifa have identified both the accused. Referring to the testimonies of the said witnesses, it was pointed out that from their cross-examination, it is evident that they had deliberated with the accused prior to the accused going with the deceased in the Bolero vehicle. It was submitted that if the testimony of the witnesses de hors the test identification parade inspires Page 17 of 54 R/CR.A/1722/2012 JUDGMENT confidence, the test identification parade becomes insignificant. Referring to the testimony of PW-16 Kasambhai Sulemanbhai Khalifa, it was pointed out that in the entire cross-examination the defence does not say that because the witness had seen the accused prior thereto, it has prejudiced the identification. It was submitted that both the witnesses have given credible versions of the incident. Moreover, neither of the witnesses have any axe to grind against the accused nor do they have any enmity with the accused so as to falsely implicate them. Referring to the testimony of PW-18 Razzakmiya Rasulmiya, it was submitted that except for the fact that in paragraph 3 of his cross-examination it has been elicited that he had identified the accused in the police station, it has not been established as to how the identification by the accused before the identification before the court or the test identification parade has caused prejudice to the accused.
8.4 Reference was made to the testimony of PW-18 Razzakmiya Rasulmiya, to submit that the said witness had alighted from the vehicle and it is not known as to what happened after he alighted from the vehicle. It was submitted that the mobile phone and the wallet of the deceased were found from the accused, and hence, the element of robbing the deceased has been clearly made out. It was submitted that furthermore there is a strong suspicion of robbing the vehicle and as to why the accused left the vehicle on the road is solely within the knowledge of the accused. It was submitted that after crossing the Vasad Toll Plaza, the dead body of the deceased was thrown in the pastures of Ardi village and thereafter, the Bolero was left unclaimed near the Tapi Hotel, which indicates the intention of robbing the Bolero, but for the Page 18 of 54 R/CR.A/1722/2012 JUDGMENT reasons best known to the accused, they have abandoned the vehicle. Therefore, the motive for commission of the offence stands clearly established.
8.5 Insofar as the contention that there is no evidence that the deceased was last seen together with the accused is concerned, it was submitted that the prosecution witnesses being PW-15, PW-16 and PW-18 have proved the circumstances of the deceased having been found in the company of the accused before he was murdered with cogent evidence. As regards the contentions about the infirmities in the test identification parade, it was submitted that in the cross-examination, there is nothing to suggest even remotely that there is any infirmity in conducting the test identification parade. It was submitted that unless it is borne out from the cross-examination that prejudice is caused, the submission of infirmity should not be accepted. It was submitted that therefore, the prosecution has duly proved the chain of circumstances, viz., that the deceased was last seen together with the accused; as well as strong incriminating circumstances of accused being instrumental in finding out wherein the articles (i) mojdi seen with blood stains, (ii) shirt of deceased with blood stains of "B" group, (ii) T-shirt seen with human blood "B" group; (iv) pant stained with human blood, group not detected.
8.6 It was submitted that apart from the recovery of the above four articles, from the Bolero, three pieces of cloths and bloodstained string were found, all of which were found to be of "B" group. The string recovered from the Bolero was similar Page 19 of 54 R/CR.A/1722/2012 JUDGMENT to the string recovered from the dead body of the deceased. It was submitted that if the prosecution case is believed, the accused have to explain as to how the Bolero was stained with blood and other four articles were found with bloodstains.
8.7 It was submitted that there is yet another circumstance, viz. that at the instance of accused Kalpeshbhai, three pieces of sim-card and the wallet with the driving licence of deceased were found. Referring to the statement of the accused recorded under section 313 of the Code, it was pointed out that the same contains only denial and no explanation has been given and therefore, the accused have failed to discharge the onus of explaining the circumstances against them. Reference was made to the panchnama Exhibit-53 to point out that accused No.1 Somabhai had pointed out the place where they had stopped the Bolero which is the place from where the Bolero was found. The attention of the court was invited to Exhibit-118 which is a certificate dated 6.11.2009 issued by the Proprietor of Ganesh Welding & Engineering Works to the effect that accused No.1 Somabhai alias Sanjay alias Ghanshyam as well as his relative Kalpeshbhai used to do labour work at his factory. It was submitted that these circumstances corroborate the version given by the witness that the accused have told them that they were working in a factory at Bavla.
8.8 In support of his submissions, the learned Public Prosecutor placed upon the decision of the Supreme Court in the case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600, wherein the court noticed the Page 20 of 54 R/CR.A/1722/2012 JUDGMENT distinction highlighted in Prakash Chand v. State (Delhi Administration), (1979) 3 SCC 90, between the conduct of an accused which is admissible under section 8 and the statement made by a police officer in the course of investigation which is hit by section 162 of the Cr.P.C. The court held that the evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where stolen articles or weapons used in the commission of the offence were hidden, would be admissible as "conduct" under section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct, falls within the purview of section 27. The court further held that conducting the test identification parade relates to the stage of investigation and the omission to conduct the same will not always affect the credibility of the witness who identifies the accused in the court. It was submitted that therefore, identification of accused in the court by PW-15 and PW-16 would not affect the credibility of those witnesses.
8.9 It was pointed out that the court in the above decision has further held that the evidence of the prosecution witnesses who could identify two accused persons could be safely relied upon for more than one reason. Firstly, the time lag between the date of the first and next meeting was not much, it was just a few days or at the most two weeks. Secondly, there was scope for sufficient interaction so that the identity of the accused could be retained in their memory. It was not a case of mere "fleeting glimpse". The learned Public Prosecutor submitted that in the facts of the present case, PW-15 Farukhbhai Yusufbhai Vora and PW-16 Kasambhai Sulemanbhai Page 21 of 54 R/CR.A/1722/2012 JUDGMENT Khalifa had sufficient interaction with the accused so that their identity could be retained in their memory. It was pointed out that both the witnesses had doubted the accused and they had suspicion about the character of both the accused. In this case, the trial was finally concluded within a year and therefore, it was possible for the said witnesses to identify the accused. Therefore, non-holding of the test identification parade would not take away the credibility or reliability of the case of the prosecution and the evidence of the witnesses cannot be eschewed. It was submitted that one court of fact has believed the testimony of these witnesses and there is no reason for this court to disbelieve the same. It was submitted that insofar as PW-18 Razzakmiya Rasulmiya is concerned, the test identification parade has been conducted which further corroborates his testimony and the truthfulness of all the witnesses together. This makes out a case of rightly identifying both the accused persons.
8.10 Next, it was submitted that the accused had pointed out certain places and there was recovery of crime articles at their instance. Their own clothes were found bloodstained. A strong circumstance is the theory of "last seen together" which is duly established through the testimonies of the above referred three witnesses. It was submitted that in this case, when the identity of the accused is established and the circumstance of last seen together is also established, then non-explanation by the accused of crime articles would raise a grave doubt. Reference was made to the provisions of section 6 of the Evidence Act, which bears the heading "Relevancy of facts forming part of same transaction" and lays down that facts which, though not in issue, are so connected with a fact in Page 22 of 54 R/CR.A/1722/2012 JUDGMENT issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. The learned Public Prosecutor also referred to section 106 of the Evidence Act, which bears the heading "Burden of proving fact especially within knowledge"
and lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
8.11 Reliance was placed upon the decision of the Supreme Court in the case of State of Himachal Pradesh v. Raj Kumar, (2018) 2 SCC 69, for the proposition that it is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Moreover, all circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. It was submitted that in this case, there are three witnesses, viz., PW-15 Farukhbhai Yusufbhai Vora, PW-16 Kasambhai Sulemanbhai Khalifa and PW-18 Razzakmiya Rasulmiya and their evidence deserves to be accepted as they are truthful and credible witnesses. If the evidence of these three witnesses is accepted, the fact remains that both the accused travelled in the vehicle, viz., Bolero and accused Somabhai Parmar pointed the place where they had abandoned the car, which is relevant under section 8 Page 23 of 54 R/CR.A/1722/2012 JUDGMENT of the Evidence Act and on the scientific examination of the vehicle, bloodstained cloths and strings were found to be of the blood group of the deceased. It was submitted that the identity of the accused has also been established through the testimony of the above referred witnesses. Under the circumstances, the prosecution having successfully established the chain of circumstances which unerringly point towards the guilt of the accused, the trial court did not commit any error in convicting the accused, and hence, no interference is required at the hands of this court.
9. In this case, there are no eyewitnesses and the entire case is based upon circumstantial evidence. The prosecution case is based mainly upon the theory of "last seen together"
along with the evidence of recovery and discovery at the instance of the accused as well as demonstration panchnamas whereby the accused are alleged to have pointed out the places where the offence was committed.
10. Since the core of the prosecution case is based upon the theory of "last seen together", the evidence in this regard may be examined at the outset. In this regard, the prosecution has placed reliance upon the testimonies of three witnesses, viz., PW-15 Farukhbhai Yusufbhai Vora, PW-16 Kasambhai Sulemanbhai Khalifa and PW-18 Razzakmiya Rasulmiya.
11. PW-15 Farukhbhai Yusufbhai Vora has, in his examination-in-chief, stated that on 19.10.2010, it was New Year's Day. He was standing in front of Kheda Civil and there were two other drivers with him. At that time, the person present in the court wearing a blue T-shirt approached him and Page 24 of 54 R/CR.A/1722/2012 JUDGMENT informed him that he wanted to go to Pavagadh, and hence, a vehicle may be arranged for him. The witness informed him that no vehicle was available, whereupon, the said person said that they were tired and that they were working in a mill at Bavla and that their employer had given them leave and they wanted to go for darshan, but were not able to get any vehicle. Hence, he told him that they do not hire vehicles to unknown persons. Thereafter, the said person made repeated requests. As his friend Salim, while going home at 5 o'clock, had told him that in case if someone comes to hire a vehicle, he should be informed, he made a phone call to Salim and informed him that someone wanted to go to Pavagadh, however, the party was not known. Thereafter, Salim told him to fix the vardhi for returning back on the next day, and accordingly, hire charges were fixed at Rs.2,700/-. Thereafter, the party said that they were in a hurry as they had to take passengers from Bakrol. Thereafter, he (the witness) told Kasambhai that the party appeared to be doubtful, and hence, he should obtain details from them. Thereafter, Kasambhai made inquiries from them and they told him that they were serving in a mill at Bavla and that they wanted to go to Pavagadh for darshan and their employer had given them money. In the meanwhile, Salim arrived and the witness told him that he did not know the party and he should ponder over it. Salim told him that he was leaving and would be returning on the next day. Thereafter, a driver by the name of Razzakbhai who was also standing nearby sat in the vehicle as he wanted to go to Raghvanaj which was on the way. Thereafter, the witness returned home. Subsequently, he had gone to Ambaji and on the way, he received a phone call from Jashbhai, the owner of the vehicle, asking him as to whether he knew the party and he answered Page 25 of 54 R/CR.A/1722/2012 JUDGMENT in the negative. He was informed that Salim had taken the vehicle and gone since four days, but had not returned. The witness has stated that on the 19th, at about 10 o'clock, he had made a phone call to Salim and he had said that he was sitting and that thereafter, he had tried to call him again, but the phone did not connect. Thereafter, on 22.10.2009, he learned from Mahelav Police Station that a dead body had been found and at that time, Salim's relatives had gone there to inquire. And there, they were shown the photographs of the dead body which were Salim's photographs. They were told that the dead body was found at near the canal near Mahelav village and thereafter, they had sent the dead body to the hospital at Vadodara. Thereafter, his relatives had brought his dead body home and performed the last rites. The witness has deposed that the police had recorded his statement in this regard and that he knows the person who had come to take a vehicle on hire and that he was wearing a blue T-shirt and sitting in the court room. Upon asking the name of the person, it was declared that he was the accused No.1.
11.1 In the cross-examination of this witness, it has come out that in his statement recorded by the police, he had not given any description of the persons who had come to hire the vehicle. He has admitted that when he came to the court in the morning, he had seen the accused sitting outside. He has admitted that the relatives of the deceased had come with him on that day. He has denied that the relatives of the deceased had acquainted him with the accused. He has admitted that at the time when his statement came to be recorded, he had not raised any suspicion against any person. He has admitted that no test identification parade of the accused was conducted Page 26 of 54 R/CR.A/1722/2012 JUDGMENT through him. He has denied that he had seen the accused for the first time and has stated that he had seen the accused when they were brought in a jeep before the Mamlatdar. In his cross-examination, it has further come out that he (the witness), Kasambhai and Razzakbhai, all three of them had gone to the Mamlatdar's office. He has denied the suggestion that all three of them had seen the accused. He has admitted that he and Kasambhai harboured doubts about the party which had approached them and had deposed that they had told Kasambhai and that they were doing labour work. He has admitted that whatever hire charges and place were fixed with Salimbhai, was in his presence and on his (the witness's) phone. In his cross-examination, it has been elicited that he had not asked the persons who had come as to in which mill they were working in Bavla and who was the owner of the mill. He or Kasambhai had not asked for any reference from the employer at Bavla. Salim has set out at 7 o'clock in the evening. He has also admitted that Kasambhai knew Razzakbhai very well.
12. PW-16 Kasambhai Sulemanbhai Khalifa has deposed that on 19.10.2009 at 4:30 in the evening, he was standing at the Kheda stand when two persons approached him. They asked him whether he was willing to go to Pavagadh and that he answered in the negative. Thereafter, he was required to go to Matar to drop a corpse and when he returned, both the persons were talking with Salim about the vehicle. Thereafter, he had parked his vehicle and was cleaning it, when Salim and Faruk called out to him and asked him as to what the party was like. The witness has stated that from the persons who had come, one person was slim and used to do welding work Page 27 of 54 R/CR.A/1722/2012 JUDGMENT and upon asking him as to what was in his bag, he said that their employer had given them sweets and upon showing him the sword, he had said that it was to be offered at the Pavagadh temple. Thereafter, Salim had made a phone call to his relatives at Bakrol that he was coming and had fixed the hire charges and set off from there. Razzak went with Salim up till Raghvanaj. Thereafter, he went off in his vehicle and was at Kalavad when a person named Firoz phoned him and asked him as to where Salim's vehicle was sent and he said that he had not sent him and that he had talked with Faruk and taken the vardhi. Thereafter, when he returned, he came to know that Salim's dead body was in the cold storage. Thereafter, the funeral rites were performed. The witness has deposed that out of the two persons who had come, one person was slim and had sparse hair. The other person who was fat was standing at a distance. Both were aged about 30 to 35 years. The person who was fat wore jeans and a shirt. The witness has stated that he knows both the persons and has thereafter gone near them in the courtroom and identified them as the persons who had come to hire the vehicle.
12.1 In the cross-examination of this witness, it has been elicited that from the morning to the evening, the accused had approached him three times for the purpose of hiring a vehicle and that on account of suspicion, he had refused three times. He has admitted that Salim had taken the passenger in his presence. He has deposed that he had tried to stop Salim by telling him that the passengers were not worth taking. He has denied that in his statement, he had not stated that a driver named Razzak had accompanied Salim till Ragvanaj. He has denied that in his statement, he had given the name of Rafiq Page 28 of 54 R/CR.A/1722/2012 JUDGMENT driver.
13. PW-18 Razzakmiya Rasulmiya has deposed that on 20.10.2009 in the morning at 8 o'clock, he had gone from Balapir to Pir Bhadiya-ni Dargah and had returned to the stand at 5:30 in the evening and at that time, Kasambhai who was at the bus stand called out to him and told him that a vehicle was going to Pavagadh and that he should go till Raghvanaj chokdi. Salim was driving the vehicle, and hence, he asked Salim whether he knew the person who wanted to take the vehicle on hire and that if he does not know him, he should not take the passengers. Whereupon Salim had told him that since one month, he had not got any passengers and that normally, the hire charges for going to Pavagadh are Rs.2,000/-, whereas these persons have offered Rs.3,000/-. Therefore, he (the witness) asked him as to why he was going when the party was not known to him. The witness has further deposed that he does not know the age of the person who had come to hire the vehicle. One of the persons was wearing a pink shirt and jeans and the other person was wearing a T-shirt and pants. Thereafter, he had alighted at Raghvanaj chokdi. The witness has further deposed that he had a Sony Ericsson mobile phone and since the passengers were unknown, he had taken their photographs. The witness has further deposed that he was called for a test identification parade and that from the persons present there, he had identified accused, but he does not know their names. The witness has further stated that the unknown persons who were sitting in the vehicle in which he had gone to Raghvanaj chokdi were the same persons who are present in the court and that they had come to take the vehicle on hire.
Page 29 of 54R/CR.A/1722/2012 JUDGMENT 13.1 In his cross-examination, it has come out that the
deceased Salim was his friend. He has further stated that when Salim did not return after taking the passengers, he did not suspect anything. The witness has admitted that when on the 27th, the police told him the facts about the incident, he had given his statement. The witness has admitted that whenever the police needed him in connection with Salim's murder, he used to go to the police station. He has stated that he had gone to the police station twice. The witness has deposed that when the police apprehended the accused, they had called him and has admitted that he had identified them in the police station.
13.2 In his cross-examination, it has further been elicited that deceased Salim used to work on a fixed pay with his employer. Apart from the salary, drivers get allowance of Rs.100/- per day. The witness has deposed that one of the accused was sitting between Salim and him and the other one was sitting on the rear seat. A contradiction has been brought out in his statement recorded by the police to the effect that before the police, he had not stated that "When I told Salim, he said that hire charges are rupees two thousand five hundred to rupees two thousand and he is getting rupees three thousand and therefore he was going". He has admitted that in his statement before the police, he had not stated that "you don't know the passengers, why are you going?" The witness has denied that Salim had passed away and as he was his friend he was giving a false testimony.
14. From the testimonies of the above three witnesses, it Page 30 of 54 R/CR.A/1722/2012 JUDGMENT emerges that PW-15 Farukbhai Yusufbhai Vora had stated that Kasambhai had put queries to the two persons as they had found the persons who had come to hire the vehicle to be suspicious. These persons had said that they were working in a mill at Bavla. However, though this witness and PW-16 Kasambhai Sulemanbhai Khalifa, both found the said persons to be suspicious, they have not thought it fit to ask them their names and details of their addresses as well as the name of their employer. Vide Exhibit-118, a letter of Mistry Jayesh Vinodbhai, Proprietor of Ganesh Welding & Engineering Works, has been placed on record, wherein he has stated that Somabhai alias Sanjay alias Ghanshyam, resident of Morad and his brother-in-law Kalpeshbhai, resident of Valiya Sinada were doing labour work since about four months and were staying at his factory, and that Somabhai had withdrawn Rs.33,350/- in installments which was outstanding and was to be recovered out of the labour work in connection with which the certificate has been given.
15. PW-15 Farukhbhai Yusufbhai Vora has further stated that he made a phone call to Salim at 10:30 at night on the 19th and he had said that he was sitting there and that thereafter, there was no connection. In this regard, a perusal of the call details of the mobile phone of deceased Salim which have been produced on record together with Exhibit-113, shows that no call was made or received after 8:30 at night on that day, which falsifies the version that he had made a phone call to Salim at 10:30 at night.
16. In the cross-examination of PW-15 Farukhbhai Yusufbhai Vora, it has been brought out that he had not given any Page 31 of 54 R/CR.A/1722/2012 JUDGMENT description of the persons who had come to hire the vehicle to the police and that he had not suspected anyone at the time when his statement came to be recorded. In his cross- examination, it has further come out that when he came to the court in the morning, the accused were sitting outside. This witness has identified the accused for the first time before the court and it is an admitted position that no test identification parade came to be carried out at the relevant time. In his cross-examination, it has been elicited that he, Kasambhai and Razzakbhai had gone to the Mamlatdar's office together and at that time, the accused were brought in a jeep and he had seen them. This part of the evidence of witness indicates that though this witness and PW-16 Kasambhai Sulemanbhai Khalifa, both were available for conducting the test identification parade, for reasons best known to the Investigating Officer, no test identification parade was conducted through them.
17. Another fact which is revealed through the cross- examination of PW-16 Kasambhai Sulemanbhai Khalifa is that they were called to the Mamlatdar's office and that all three of them, namely, Farukhbhai Yusufbhai Vora, Kasambhai Sulemanbhai Khalifa and Razzakmiya Rasulmiya had gone together. It is, therefore, surprising as to why PW-15 Farukhbhai Yusufbhai Vora and PW-16 Kasambhai Sulemanbhai Khalifa were called to the Mamlatdar's office when the test identification parade was conducted through PW-18 Razzakmiya Rasulmiya, despite the fact that no test identification parade was to be conducted through them. Thus, though the presence of these two witnesses was not necessary, they were summoned to the Mamlatdar's office, Page 32 of 54 R/CR.A/1722/2012 JUDGMENT where they got to see the accused, as is clearly borne out from the testimony of the witness, which gives rise to a grave suspicion about the conduct of the investigating agency and false implication of the accused cannot be ruled out.
18. PW-18 Razzakmiya Rasulmiya has identified the accused in a test identification parade held at the Mamlatdar's office at Petlad. Insofar as the test identification parade is concerned, both the panch witnesses, viz., PW-9 Arvindbhai Somabhai and PW-10 Dhulabhai Mohanbhai Rana have not supported the prosecution case and have been declared hostile. The panchnama of the test identification parade has been proved through the testimony of PW-3 Yatin Shankarbhai Choudhary, the Executive Magistrate who conducted the test identification parade. From the testimony of PW-3 Yatin Shankarbhai Choudhary, it emerges that a common test identification parade had been carried out for both the accused. Nine persons having similar looks were brought. When the accused were brought, their faces were covered with black cloths. Razzakbhai Rasulbhai Malek identified both the accused. The panchnama of the test identification parade has been exhibited as Exhibit-31.
18.1 In his cross-examination, PW-3 Yatin Shankarbhai Choudhary has admitted that six out of the nine persons used as dummies were of the age group of 35 or more. He has admitted that generally separate test identification parades should be held for each accused. He has also admitted that prior to the test identification parade, the witness should not have seen the accused and he was required to take care in that regard. He has admitted that in the panchnama, it has not Page 33 of 54 R/CR.A/1722/2012 JUDGMENT been recorded that the accused were brought by the police with their faces covered. He has admitted that he had not made any arrangements for the accused to change their clothes. He had deposed that he had not asked for any proof of identification from Razzakbhai and had also not obtained his signature on the panchnama as the person who identified the accused. He had also not asked as to since when the accused was in police custody and as to whether during the time he was in police custody, the accused had been shown to the witness.
19. A perusal of the panchnama of the test identification parade Exhibit-31 reveals that in all nine persons were brought in as dummies. The age of such persons was 45, 21, 35, 35, 50, 39, 30, 51 and 21 years. Thus, while both the accused belong to the age group of 30 to 35 years, the ages of the dummies range from 21 to 51 years.
20. At this juncture, reference may be made to certain decisions cited by the learned advocate for the appellants on the aspect of test identification parade. In N. J. Suraj v. State represented by Inspector of Police (supra) the appellant was put to the test identification parade where the witnesses were said to have identified the appellant, but in their evidence they admitted that the photograph of the accused was shown to them before holding the test identification parade. The court held that in view of the fact that the photograph of the accused was shown to the witnesses, their identification in the test identification parade becomes meaningless and no reliance could be placed thereon.
Page 34 of 54R/CR.A/1722/2012 JUDGMENT 20.1 In Vijayan v. State of Kerala (supra), the Supreme Court held that the so-called identification in the test identification parade was rightly disbelieved by the Sessions Judge inasmuch as by the date the test identification parade was conducted, not only the photograph of the accused had been shown to PW 3 and in all probability must have been shown to PW 9 but also in all the local newspapers the photograph had already been printed. The court was of the view that in such circumstances, the Sessions Judge rightly came to the conclusion that the test identification parade was nothing but a farce and cannot be relied upon.
20.2 In Ravindra alias Ravi Bansi Gohar v. State of Maharashtra (supra), the court observed that it is through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits - and not by showing the suspects or their photographs. Such being the purpose of identification parades, the investigating agency, by showing the photographs of the suspects whom they intended to place in the TI parade, made it farcical.
20.3 In State of Goa v. Sanjay Thakran (supra), the court has observed that as far as the case of A-1 is concerned, who was around 38 years old at that time, 5 of the dummy persons belonged to age group of 23-27 and another dummy was 40 years old. Hence, there is a serious doubt regarding the fairness of the test identification.
21. Thus, where the accused in person or their photographs Page 35 of 54 R/CR.A/1722/2012 JUDGMENT were shown to the witness prior to the test identification parade, it has been held that such test identification parade is a farce. Moreover, where the dummy persons belonged to a different age group than the accused who was sought to be identified, the fairness of the test identification has been seriously doubted.
22. Examining the facts of the present case in the light of the above principles, from the testimony of PW-18 Razzakmiya Rasulmiya, it clearly emerges that prior to the test identification parade, at the time when the accused were apprehended by the police, he was called to the police station for the purpose of identification of the accused. In view of these circumstances, the entire test identification parade at the instance of this witness who was shown the accused prior to the test identification parade is rendered farcical. No significance can, therefore, be attributed to such identification parade. Moreover, as noted earlier, a common test identification parade was carried out in respect of two accused though the norm is of carrying out separate test identification parades for each accused. Another significant aspect of the matter is that the age of the accused was between 25 to 30 years whereas, in all, nine dummies were put up in the age group of 21 to 51 years, and six out of the nine dummies were more than 35 years of age, which creates serious doubts regarding the fairness of the test identification parade.
23. It may be noted that PW-15 Farukhbhai Yusufbhai Vora as well as PW-18 Razzakmiya Rasulmiya have not given any description of either of the accused in their deposition. PW-16 Kasambhai Sulemanbhai Khalifa, to a certain extent, has Page 36 of 54 R/CR.A/1722/2012 JUDGMENT described the accused by saying that one person was slim and had sparse hair and the other one was fat. Insofar as PW-15 Farukhbhai Yusufbhai Vora and PW-18 Razzakmiya Rasulmiya are concerned, they did not know the accused by their names, nor did they know them personally. PW-15 and PW-16 have identified the accused for the first time before the court and PW-18 had earlier identified them in the farcical test identification as discussed hereinabove.
24. The Supreme Court, in Rajesh Govind Jagesha v. State of Maharashtra (supra), has held that the absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement. Such a parade may not be necessary in a case where the accused person is arrested on the spot immediately after the occurrence. The evidence of identifying the accused person at the trial, for the first time, is from its very nature, inherently of a weak character. In Surendra v. State of Rajasthan (supra), the court found that in the face of very uncertain evidence, it would have been incumbent on the prosecution to have put the appellants before an identification parade. As discussed hereinabove, the appellants were not put before an identification parade insofar as PW 15 and 16 are concerned and it is an admitted position that both the appellants were identified by the said witnesses in court for the first time during the course of trial. Thus, such identification is inherently of a weak character. Besides, considering the identification in court in the light of the fact that the accused were shown to both the witnesses when PW-18 was called for the test identification parade, such identification loses all significance.
Page 37 of 54R/CR.A/1722/2012 JUDGMENT
25. Insofar as the death of deceased Salim being a homicidal death is concerned, there is no dispute in this regard. PW-1 Dr. Rajendrasinh Kakubha Jhala, the Medical Officer who has conducted the autopsy of the dead body of the deceased, has deposed that both the hands of the deceased were tied with a string and that there was a ligature mark on the neck. The death had occurred during twenty four hours prior to the postmortem and the cause of death was due to cardio- respiratory arrest due to asphyxia due to strangulation. Thus, since the deceased had died due to strangulation, the fact regarding the death being a homicidal one cannot be disputed.
26. In the facts of the present case, as already noted hereinabove, while PW-15 Farukhbhai Yusufbhai Vora and PW- 16 Kasambhai Sulemanbhai Khalifa were called to the Mamlatdar's office at Petlad along with PW-18 Razzakmiya Rasulmiya, at the time when the test identification parade was to be conducted through PW-18 Razzakmiya Rasulmiya, no test identification parade was conducted qua PW-15 Farukhbhai Yusufbhai Vora and PW-16 Kasambhai Sulemanbhai Khalifa. However, both the accused were shown to these witnesses at that time. The prosecution has failed to come up with explanation as to why when both these witnesses were summoned to the Mamlatdar's office at Petlad, no test identification parade was carried out through them which raises serious doubt about the fairness of the investigation. In these circumstances, the identification of the accused by the witnesses for the first time before the court does not inspire confidence. The theory of "last seen together", therefore, cannot be said to have been duly Page 38 of 54 R/CR.A/1722/2012 JUDGMENT established by the prosecution in the light of the circumstances referred to hereinabove.
27. The other evidence which has been adduced by the prosecution is in the nature of various panchnamas, whereby various recoveries are stated to have been made at the instance of the accused. PW-2 Gordhanbhai Dahyabhai Parmar has been examined at Exhibit-29 as a panch of the inquest panchnama Exhibit-22, which indicates that the inquest was carried out between 11:15 to 12:00 hours on 20.10.2009. PW-4 Mukeshbhai Kachrabhai Chunara has been examined at Exhibit-35 as a witness of the panchnama Exhibit-36 of the Bolero vehicle found near Tapi Hotel. This witness has not supported the prosecution case and has been declared hostile. PW-5 Bhimabhai Fojaji Vanzara has been examined at Exhibit- 37 as the second panch of the panchnama Exhibit-36. He too, has not supported the prosecution case and has been declared hostile. A perusal of the panchnama Exhibit-36 reveals that below the steering on the driver's side, there was a brown coloured shoe (mojdi), blood stains were found on the seat cover and mat on the driver's side. Pieces of blood stained cloth as well as blood stained string were found on the back side of the driver seat. From the said vehicle, FSL Officer Mr. Trivedi took pieces of blood stained cloth from the rear side of the driver's seat as well as blood stained cloth from the seat on the side of the driver's seat as well as the string with blood stains. It appears that the mojdi has not been taken as a sample.
28. PW-6 Safawatkhan Basirkhan Pathan is the panch of the panchnama Exhibit-41, which is a panchnama of the mobile Page 39 of 54 R/CR.A/1722/2012 JUDGMENT phone produced by Razzakmiya. Razzakmiya in his testimony has deposed that he had taken photographs of the accused with his mobile phone; however, it appears that such photographs could not be seen, and hence, no such photographs have been recovered from his mobile phone.
29. PW-7 Pravinbhai Fakirbhai Patel has been examined at Exhibit-45 as a witness of the arrest panchnama as well as for recovery of mobile phone of the deceased. The panchnama has been exhibited as Exhibit-46. The witness has not supported the prosecution case and has been declared hostile. It may be noted that though the witness has not proved the contents of the panchnama, the same has been exhibited.
30. PW-8 Mustaqbhai Gulambhai Vora is the second panch of the panchnama Exhibit-46. He, too, has not supported the prosecution case and has been declared hostile. The panchnama Exhibit-46, however, has been proved through the testimony of Investigating Officer, PW-24 Chandansinh Naransinh Rajput, who has been examined at Exhibit-137. He has deposed that while investigating regarding the accused, it was found that the mobile phone of the deceased was also missing. He carried out the investigation on that basis. On the basis of information, the persons who had gone in the vehicle together with the deceased were arrested in the presence of panchas on 3.11.2009, of whom one was Kalpeshbhai Somabhai Vasava and the other was Somabhai alias Ghanshyam Jagabhai. The witness has further deposed that a Nokia 6020 model phone was recovered from Kalpesh in the presence of the panchas and the IMEI number as well as the card number thereof was stated to be that of deceased Page 40 of 54 R/CR.A/1722/2012 JUDGMENT Salimmiya Bhikhumiya.
31. A perusal of the panchnama Exhibit-46 reveals that the same refers to information received from an informant about unknown persons who had committed the murder and that they were going to visit Anand Agriculture and as they were to be apprehended, they had showing their willingness to act as the panchas. Accordingly, the panchas and the police staff came to Anand Borsad Cross Roads and were standing there. Upon the informant gesturing, the accused were apprehended at the spot and upon asking their names, one was Kalpeshbhai Somabhai Vasava and the other was Soma alias Ghanshyam alias Sanjay Jagabhai Parmar. A mobile phone came to be recovered from Kalpeshbhai bearing IEMI No.357937007262266 which belonged to the driver of the Bolero.
32. As noticed earlier, neither of the panch witnesses have supported the prosecution case and have been declared hostile. The arrest panchnama reveals that on the basis of the confidential information, the accused were apprehended. If it is the prosecution case that based upon the IEMI number of the mobile phone of the deceased the accused had been traced, it is difficult to comprehend as to how the confidential informant knew who the accused were and could point out the accused. The entire story about the accused being apprehended on the basis of IEMI number of the mobile phone, as reflected in the panchnama Exhibit-46, therefore, does not inspire confidence and creates serious doubts about the manner in which the accused were identified.
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33. PW-11 Budhabhai Shivabhai Waghela has been examined at Exhibit-50 as a panch witness. This witness has deposed that on 4.11.2009, he was called to the Mahelav Police Station at 9 o'clock in the morning and the second panch with him was Dahyabhai. When he went to the police station, there were other policemen and two other persons. There were two accused there, one was Somabhai and the other was Kalpesh. The accused had informed that they would show the place where they had hidden the mojdi and the shirt. From there, they went in the Government vehicle with the accused as well as the police and the panchas. The witness has deposed regarding the route taken and has stated that when they reached near Kheda Bus Stand near the Civil Hospital where there was something like a rickshaw stand, the accused informed that they had hired a jeep from there and they were showing the way and they took them via Nadiad to Valasan where there was a canal and showed them that place and informed about the incident that had taken place there. Thereafter, they took them further via Valasan and via Ravipura Chokdi through Moradvala road and going further, there was a banyan tree and next to the banyan tree, there was a triangular shaped waste land and the accused informed them about the acts which they had committed there. Thereafter, the vehicle was stopped at Vadodara road and they had shown the place where the mojdi and the shirt were hidden. The mojdi was brown in colour and the shirt was blue in colour. The mojdi and the shirt were seized in their presence and sealed. The slips have been exhibited as Exhibits-51 and 52, and the panchnama has been exhibited as Exhibit-53.
33.1 The witness has further deposed that on 5.11.2009, the
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police had called him to act as a panch in the morning and that he does not know as to who was the second panch. The witness has deposed that they had gone in a Government vehicle and does not remember the place where they had gone. He does not remember if any panchnama of weapons was made, but says that if the article is shown to him, he can identify it. The witness has stated that it has not happened that anything other than the weapons had been seized. The witness has identified his signature on the panchnama mark 9/40, which has been exhibited as Exhibit-54.
33.2 Thereafter, the witness has stated that it has so happened that on 5.11.2009, they had gone towards Shinala village, where there was a house. He does not know as to who was residing there. The sim card of the mobile phone had been cut into pieces and thrown, half of the sim card was found from the entrance of the house and its three pieces were also recovered. Thereafter, the accused pointed out the place where the wallet was thrown and produced it, whereafter it was seized. The witness has further deposed that the accused produced the clothes which had blood stains.
33.3 In his cross-examination, it has been elicited that he was standing at the village square when the police came to call him and on the next day, he was standing at a cabin when the police called him. It may be noted that this witness has acted as a panch on two consecutive days, viz., on 4.11.2009 and 5.11.2009. On 4.11.2009, the panchnama Exhibit-54 came to be drawn and on 5.11.2009, the panchnama Exhibit-53 came to be made. It is strange that the same person has been called Page 43 of 54 R/CR.A/1722/2012 JUDGMENT from two different places as panch consecutively for two days. Even the second panch is also the same. Therefore, it is not possible that by coincidence, the same two persons were found from different places and were asked to act as panchas. Thus, it appears that both the panch witnesses are selected witnesses and nothing has been brought on record as to why same witnesses have been repeated on two consecutive days for drawing totally different panchnamas.
34. A perusal of the panchnama Exhibit-53 reveals that it is recorded therein that the accused through gestures with his hand, had shown certain things. There is a reference to accused Kalpesh showing the bushes near the gutter on the side of the road near Dashrath village, from where he took out the mojdi and the shirt of the deceased and that the accused No.1 Somabhai gestured with his hand and showed the place where the Bolero jeep was parked. Insofar as the panchnama Exhibit-54 is concerned, it is recorded therein that the accused had given their consent to show the place where they had hidden the wallet of the deceased, sim card and the clothes worn by them at the time of commission of the offence. It is also recorded that upon asking them about the wallet and sim card of the deceased and the clothes worn by them at the time of commission of the offence, they have expressed willingness to show the spot. From the testimony of the panch witnesses as well as from the panchnamas Exhibit-53 and Exhibit-54, there is nothing to show that the accused made any confession or disclosed any information. What is recorded is that upon asking them about the wallet, sim card and the clothes used in the commission of the offence, they expressed willingness to show the place. Insofar as the recovery of the mojdi and the Page 44 of 54 R/CR.A/1722/2012 JUDGMENT shirt is concerned, they have been recovered from an open space on the road near Dashrath village.
35. At this juncture, it may be germane to refer to certain decisions of the Supreme Court as regards the application of section 27 of the Evidence Act.
36. In State of Maharashtra v. Damu s/o Gopinath Shinde and others, (2000) 6 SCC 269, the Supreme Court held that the basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact, it becomes a reliable information. Hence, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not a discovery of a fact as envisaged in the section.
36.1 In Madhu v. State of Kerala (2012) 2 SCC 399, it was held that relevance of the confessional statements would depend on the discovery of facts based on the information supplied by the accused. If any fresh facts have been discovered on the basis of the confessional statement made by the accused, the same would be relevant. If not, the confessional statement cannot be proved against the accused, to the detriment of the accused. In Indra Dalal v. State of Page 45 of 54 R/CR.A/1722/2012 JUDGMENT Haryana, (2015) 11 SCC 31, the Supreme Court held that it is clear that section 27 of the Evidence Act is in the form of a proviso to section 25 and 26 of the Evidence Act. It makes it clear that so much of such information which is received from a person accused of any offence, in the custody of a police officer, which has led the discovery of any fact, may be used against the accused. Such information as given must relate distinctly to the fact discovered. In Pawan Kumar alias Monu Mittal v. State of Uttar Pradesh and another, (2015) 7 SCC 148, the Supreme Court held that the "fact discovered" as envisaged under section 27 of the Evidence Act embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. In Raja alias Rajinder v. State of Haryana, (2015) 11 SCC 43, the Supreme Court held that if an accused gives a statement that relates to the discovery of a fact in consequence of information received from him is admissible. The rest part of the statement has to be treated as inadmissible.
37. Examining the facts of the present case in the light of the above decisions, the testimony of the panch witnesses is not in consonance with the panchnamas Exhibit-53 and Exhibit-54. While PW-11 in his testimony has said that the accused had informed him that they wanted to show the place where the mojdi and a shirt had been hidden, the panchnama states otherwise. In the panchnama, it is recorded that upon asking the accused as to where the shirt and the mojdi of the deceased had been hidden, they had expressed willingness to show the same. Having regard to the testimonies of the witnesses as well as the panchnamas Exhibit-53 and Exhibit-
Page 46 of 54R/CR.A/1722/2012 JUDGMENT 54, there is nothing to indicate that any confessional statement or any information was given by either of the accused as contemplated under section 27 of the Evidence Act. As noted hereinabove, section 27 of the Evidence is applicable only if the confessional statement leads to the discovery of some new facts. Evidently therefore, the confessional statement has to precede the discovery of some new fact. In the present case, there is no confessional statement and only objects have been recovered at the instance of the accused. Therefore, in the present case, there is only discovery of objects and no discovery of a fact as envisaged under section 27 of the Evidence Act.
38. Moreover, while the panch witness has stated that the pieces of sim card which were thrown, were found from the entrance of the house, in the panchnama Exhibit-54 it has been recorded that the accused said that he stood at the door and had thrown pieces of the sim card of the mobile phone and gestured towards the spot and upon looking at the spot, burnt garbage of the house and small pieces of wood were lying and upon minutely looking at the garbage, first half a piece of a sim card was found and thereafter, after removing the entire garbage, two pieces of sim card were found wherein on the bigger piece, it was written 89910 54070 15332 415 and on the reverse side of one piece, it was written HUTCH. It may further be noted that the contents of the panchnama have not been read over to the witness and hence, the contents thereof do not stand proved. While the panchnama records that the driving licence of the deceased was found in the wallet which was recovered at the instance of the accused, the panch has not referred to the driving licence having been Page 47 of 54 R/CR.A/1722/2012 JUDGMENT found in the wallet.
39. Strong reliance has been placed by the learned Public Prosecutor on the provisions of section 8 of the Evidence Act which lays down that any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. It was submitted that the conduct of the accused of pointing out various places where the offence was committed would fall within the ambit of section 8 of the Evidence Act and therefore, the disclosure made by such conduct is a relevant fact. In support thereof, the learned Public Prosecutor placed reliance upon the decision of the Supreme Court in State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru (supra) (paragraphs 205, 206), wherein the court observed that the evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where stolen articles or weapons used in the commission of the offence were hidden, would be admissible as "conduct" under section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct, falls within the purview of section 27. The court further held that conducting the test identification parade relates to the stage of investigation and the omission to conduct the same will not always affect the credibility of the witness who identifies the accused in the court.
40. In the opinion of this court, the above decision would not be applicable to the facts of the present case, inasmuch as, as discussed hereinabove, no information had been given by the accused as per the panchnama Exhibit-53, wherein it is Page 48 of 54 R/CR.A/1722/2012 JUDGMENT recorded that the accused through gestures with his hand, had shown and stated certain things. There is a reference to the accused Kalpeshbhai Somabhai Vasava showing the bushes near the gutter on the side of the road near Dashrath village, from where he took out the mojdi and the shirt of the deceased and that the accused No.1 Somabhai gestured with his hand and showed the place where the Bolero jeep was parked. One wonders as to how, by gesturing with his hand, the accused disclosed that a Bolero jeep was parked by them. Insofar as recovery of the mojdi and shirt of the deceased is concerned, the accused No.2 showed the bushes near the gutter on the side of the open road and took out the shirt and mojdi. Such recovery, however, is not preceded by any information. Therefore, all that is discovered are objects and not facts. The so-called discovery panchnama, therefore, does not meet with the requirements of section 27 of the Evidence Act.
41. Similar is the case with the panchnama Exhibit-54, which records that the accused had given their consent to show the place where they had hidden the wallet of the deceased as well as the sim card from the mobile of the deceased and the clothes worn by them at the time of commission of the offence. It is also recorded in the panchnama that upon asking them about the wallet and the sim card of the deceased and clothes worn by them at the time of commission of the offence, they have expressed willingness to show the spot. From the testimony of the panch witnesses as well as from the panchnama, there is nothing to show that the accused made any confession or disclosed any information. What is recorded is that upon asking them about the wallet and the sim card Page 49 of 54 R/CR.A/1722/2012 JUDGMENT and clothes worn by them at the time of commission of the offence, they expressed willingness to show the place.
42. Insofar as the accused pointing out various places, viz., the place where the offence was committed and the place where the Bolero jeep was parked is concerned, these places were already known to the police and hence, no fresh fact has been discovered at the instance of the accused. Besides, the accused were in police custody when the alleged discovery was made and no fresh fact has been discovered on the basis of the information disclosed. The statement of the accused, if any, would, therefore, be directly hit by sections 25 and 26 of the Evidence Act and would not be admissible in evidence. As held by the Supreme Court in the case of State of Maharashtra v. Damu s/o Gopinath Shinde and others, (supra), if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature, but if it results in discovery of a fact, it becomes a reliable information. Therefore, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. The court held that it is well settled that recovery of an object is not discovery of a fact as envisaged in the section. Thus, if an accused person gives a statement and in consequence of the information received from him a fact is discovered, that part of his statement which relates to such discovery is admissible. The rest of the part of the statement has to be treated as inadmissible. In the present case, the articles have been recovered at the instance of the accused without any Page 50 of 54 R/CR.A/1722/2012 JUDGMENT information being divulged by the accused. Insofar as pointing out the places is concerned, since this part of the so-called statement has not led to the discovery of any fact, it is inadmissible in evidence.
43. Moreover, the manner in which the panchnamas Exhibit- 53 and Exhibit-54 have been prepared, namely, that the same panchas have been called on two consecutive days which clearly shows that they are selected panchas, also gives rise to a suspicion regarding the veracity of the contents thereof. Moreover, what is deposed by the panch witnesses is not in consonance with what is recorded in the panchnamas and the requirements of section 27 of the Evidence Act are not met with, which renders the evidence a very weak piece of evidence.
44. Insofar as the motive for commission of the offence is concerned, it has been contended that the motive was to rob the Bolero jeep. However, had it been so, the accused would not have left the jeep by the side of the road. Moreover, to rob the jeep, there was no necessity to kill the deceased. Therefore, no proper motive for commission of the offence has been made out.
45. Considering the overall evidence that has come on record, the testimony of the three witnesses who claim to have last seen the deceased with the accused is not found reliable for the reasons discussed hereinabove and more particularly, in the context of lack of proper identification of the accused. Once the theory of "last seen together" falls, the other evidence is only in the nature of supporting evidence. Insofar Page 51 of 54 R/CR.A/1722/2012 JUDGMENT as the supporting evidence is concerned, as referred to earlier, the panchas of majority of the panchnamas have not supported the prosecution case and have been declared hostile. It is only the panchnamas Exhibit-53 and Exhibit-54 which relate to discoveries and recoveries at the instance of the accused that have been supported by the panchas; however, for the reasons recorded hereinabove, the said panchnamas are not found to be reliable.
46. While it is true that if the panch turns hostile, the panchnama can be proved through the testimony of the Investigating Officer. However, in the opinion of this court, when the other supporting evidence is cogent and credible, the court may accept the panchnamas proved by the Investigating Officer, even if the panchas do not support the same. But if the accused are to be implicated only on the basis of the panchnamas, such evidence should be cogent and credible and beyond an iota of doubt. In the present case, the panchnamas on which the prosecution places strong reliance are not in the nature of strong and reliable evidence. Hence, the accused cannot be convicted solely on the basis of the material referred to in such panchnamas. Under the circumstances, when the very recoveries and discoveries are not proved beyond reasonable doubt, the findings of bloodstains on the clothes of the accused, is of no consequence. Moreover, in Prakash v. State of Karnataka (supra), wherein the prosecution sought to prove that the blood group of the deceased was AB group and the bloodstains on the clothes of the accused also belonged to the same blood group; the court was of the opinion that this does not lead to a conclusion that the bloodstains on the clothes of the accused Page 52 of 54 R/CR.A/1722/2012 JUDGMENT were those of the deceased. In State of M.P. v. Kriparam (supra), there was recovery of an axe and the witnesses for the recovery said that they found a small stain of blood on it. The Supreme Court held that even otherwise, if the prosecution case with regard to the eye witnesses was not acceptable, then these recoveries by themselves would not take the prosecution case any further. In Mustkeem alias Sirajudeen v. State of Rajasthan (supra), the Supreme Court held that the AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the appellant unless the same was connected with the murder of the deceased by the appellants therein. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of Mustkeem was not sufficient for test as the same had already disintegrated. The court was of the view that at any rate, due to the reasons elaborated in the subsequent paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable it to arrive at the conclusion that the latter were used for the murder. The above decisions would be squarely applicable to the facts of the present case.
47. In the light of the above discussion, it is not possible to state that the prosecution has proved the charge against the appellants beyond reasonable doubt. In cases based upon circumstantial evidence, it is settled law that the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established; the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, Page 53 of 54 R/CR.A/1722/2012 JUDGMENT they should not be explainable on any other hypothesis except that the accused is guilty; the circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except the one to be proved; and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.
48. In the facts of the present case, the circumstances adduced by the prosecution are not of conclusive nature and tendency. Moreover, the prosecution has failed to prove a complete chain of evidence to establish the guilt of the accused. Under the circumstances, the impugned judgment and order of conviction and sentence cannot be sustained.
49. For the foregoing reasons, the appeals succeed and are, accordingly, allowed. The impugned judgment and order of conviction and sentence dated 20.9.2012 passed by the learned Additional Sessions Judge, Anand in Sessions Case No.34 of 2010 is hereby quashed and set aside. The appellants are acquitted of the charges levelled against them. They be set at liberty forthwith, if not required in any other case. Fine paid, if any, be refunded to them.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) B.U. PARMAR Page 54 of 54