Gujarat High Court
Dashrathbhai Nahtabhai Bilval vs State Of Gujarat on 25 July, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1274 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI Sd/-
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DASHRATHBHAI NAHTABHAI BILVAL
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK B BAROT, ADVOCATE for the Appellant
MR HK PATEL, APP for the Respondent - State
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 25/07/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 ("the Code" for short), has been Page 1 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 directed against the judgment and order of conviction dated 31.08.2012 rendered by the learned 4th Additional Sessions Judge, Dahod in Sessions Case No.30 of 2012, whereby the appellant - accused has been convicted for the offence under Sections 302 and 201 of the Indian Penal Code, 1860. The appellant - accused is ordered to undergo life imprisonment for the offence under Section 302 of the Indian Penal Code and fine of ₹15,000/-, and in default of fine, is ordered to undergo further simple imprisonment of six months and is ordered to undergo three years imprisonment for the offence under Section 201 of the Indian Penal Code and fine of ₹500/-, and in default of fine, is ordered to undergo further simple imprisonment of three months.
2. The brief facts of the prosecution case are as under :
ASI, Mahendrasinh Rathod, Garbada Police Station, PW4, lodged an FIR on 04.01.2012, in which it has been mainly stated that the accidental death entry No.1 of 2012 came to be registered at the instance of Keshavbhai Nanjibhai Parmar. After registration of the said accidental death entry, an inquiry was conducted under Section 174 of the Code. The information was given by the said person that dead-body of the child (boy) is seen lying in a Well of Dhola Data Faliya. Thereafter, an inquiry under Section 174 of the Code was entrusted to the said person i.e. Mahendrasinh Rathod, ASI, Garbada Police Station. A dead- body of the deceased was taken out from the Well, inquest panchnama was prepared and thereafter, postmortem was conducted. The photographs of the dead-body was clicked, Page 2 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 scene of offence panchnama was also carried out and the statements of the witnesses residing in nearby periphery were also recorded. It is further stated that with the help of the photographs of the dead body, inquiry was being conducted at village : Nadhelav at Dhul Mahendi Faliya. It is further stated that statement of one Narsingbhai Bhuriya was recorded. It was revealed that the photograph shown to him was of boy named Devraj, who was the grand-son of the said witness. He has stated that the deceased was in company of his son-in-law (present appellant - accused). The appellant approached him and told him to keep Devraj. Upon denying the son-in-law of the said witness i.e. present appellant,, left in the company of the deceased. Thereafter, the statement of the appellant - accused was recorded who has confessed before the first informant by stating that deceased is his son begotten out of relationship between him and his second wife - Humliben. It is further stated that on 30.12.2011, as on account of divorce agreement prepared and executed between him, the custody of his son was handed over to him by Humliben, however, the first wife of the appellant - accused was not ready to keep the deceased with her, on 31.12.2011, when the appellant - accused visited the house of the father-in-law - Narsingbhai Bhuriya in order to drop him at the said place, the said witness was not agreeable to keep the custody of the deceased and therefore, the appellant
- accused went towards the Well at village : Abhlod at around 08:00 a.m. and thereafter, his son was thrown into a Well. Thus, on the basis of the said information, the FIR came to be registered by the ASI Mr. Rathod.Page 3 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022
R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022
3. After registration of the FIR, the Investigating Officer carried out the investigation and recorded the statements of the witnesses. The Investigating Officer collected the relevant material during course of investigation and thereafter, filed charge-sheet against the appellant - accused before the concerned Magistrate Court. As the case was exclusively triable by the Court of Session, the concerned Magistrate Court committed the case to the learned Sessions Court, Dahod, where it was registered as Sessions Case No.30 of 2012.
4. Before the learned Sessions Court, the prosecution examined 19 witnesses and produced documentary evidence as observed in paragraph 4 of the impugned judgment and order. Thereafter, further statement of the appellant - accused was recorded under Section 313 of the Code. The trial Court thereafter passed the impugned judgment and order of conviction, by which the appellant - accused has been convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code, as observed hereinabove. The appellant has therefore preferred the present appeal.
5. Heard learned advocate Mr. Pratik Barot appearing for the appellant - accused and learned APP Mr. H.K. Patel appearing for the respondent - State.
6.1 Learned advocate Mr. Pratik Barot appearing for the appellant - accused has mainly contended that in the present case, there is no eye-witness to the incident in question and the Page 4 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 case of the prosecution rests on circumstantial evidence. It is contended that the prosecution has failed to prove the factum of last seen together. In support of the same, he has referred to the deposition given by PW8 - Narsingbhai Bhuriya, father-in- law of the appellant - accused. It is submitted that the said witness has turned hostile and not supported the case of the prosecution. At this stage, it is contended that in the examination of chief conducted by the learned Public Prosecutor and before the said witness was declared hostile, the said witness has, in specific terms, not supported the last seen together theory. Thereafter, while the said witness was cross- examined by the learned Public Prosecutor, the affirmation was also procured. Once again in the cross-examination conducted by the defence, the story of last seen together was not supported by the said witness. At this stage, it is submitted that even if a police statement of the said witness is confronted to the Investigating Officer and an affirmation is derived from the Invsestigating Officer as to witness having one stated so in his police statement on the point of last seen together theory, is only a contradiction, which can be proved through the Investigating Officer. At this stage, learned advocate Mr. Barot has also referred to the deposition given by PW9 - Rajudiben Bilval, who is wife of the appellant - accused. It is submitted that the said witness has also turned hostile and has not supported the case of prosecution and thus, the prosecution has failed to prove the theory of last seen together and therefore, the trial Court ought to have acquitted the appellant - accused.
Page 5 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 At this stage, learned advocate for the appellant has placed reliance upon the decision rendered by this Court in the case of Irfan Mohammad Modhia (Musalman) versus State of Gujarat reported in 2017 (3) GCD 2480, more particularly paragraph : 64 thereof.
6.2 Learned advocate Mr. Barot thereafter contended that even the extra-judicial confession made by the appellant - accused before his wife - PW9 - Rajudiben Bilval is not established through proved and conclusive evidence. It is submitted that PW9 - Rajudiben Bilval has turned hostile and therefore, the prosecution has not conclusively proved extra- judicial confession of the appellant before the said witness. It is further contended that even otherwise extra-judicial confession is a weak piece of evidence and unless it inspires confidence and is fully corroborated by other evidence, conviction for the offence of murder should not be made only on that basis. He has placed reliance upon the decision rendered by the Hon'ble Supreme Court of India in the case of Chandrapal versus State of Chhattisgarh reported in AIR 2022 SC 2542, more particularly paragraph : 11 thereof.
6.3 Learned advocate Mr. Barot would thereafter contend that the prosecution has also failed to prove the motive of the appellant for commission of the alleged crime. It is submitted that the prosecution has examined PW12 - Humliben Ninama - Exh.29. It is submitted that the said witness was the second wife of the appellant - accused and deceased was a younger son of the said witness. It is submitted that as per the deposition given Page 6 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 by the said witness, because of certain dispute between the appellant - accused and the said witness, she left her matrimonial home. At that time, she was pregnant. The said witness was thereafter residing with her brother and she delivered a baby boy at the parental house. It is stated that she thereafter initiated maintenance proceedings against the appellant - accused and ultimately, settlement was arrived at on 30.12.2011. Agreement was executed and as per the terms of the settlement, the custody of the deceased son was given to the appellant - accused on 30.12.2011. It is submitted that thereafter, PW9, the first wife of the appellant - accused, was not agreeable to keep the custody of the deceased, on the next day i.e. on 31.12.2011, the appellant - accused in company with the deceased approached PW8 for the purpose of dropping him at the place of the said witness. However, when the PW8, father-in-law of the appellant, was not ready to keep the custody of the deceased, while returning from the house of PW8, the appellant - accused thrown his son into the Well.
At this stage, learned advocate Mr. Barot submitted that aforesaid story put-forwarded by the prosecution attributing the motive to the appellant - accused for commission of the alleged crime is not fully supported by any material. It is submitted that in case of circumstantial evidence, motive plays important role. Thus, learned advocate for the appellant urged that the impugned judgment and order be quashed and set aside.
6.4 At this stage, learned advocate Mr. Barot further Page 7 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 submitted that factum of homicidal death was also not proved by the prosecution by leading cogent evidence before the trial Court. He has referred to the deposition given by PW1 - Dr. Meetbhai Shah, Exh.7. It is submitted that the said witness conducted the postmortem of the deceased. It is submitted that the said witness has not specifically opined that the deceased was died out of the homicidal death. It is submitted that in order to convict the accused for the offence punishable under Section 302 of the Indian Penal Code, the prosecution has to prove the homicidal death. At this stage, he has referred to the postmortem report of the deceased. It is submitted that the said witness has shown the possibility of the deceased having slipped from the Well and he had died out of an accident. Learned advocate Mr. Barot therefore urged that on this ground also, the impugned order passed by the concerned trail Court be quashed and set aside.
Learned advocate Mr. Barot at this stage has placed reliance on the decision rendered by the Hon'ble Supreme Court of India in the case of Chandrapal (supra), more particularly paragraphs : 8, 9 and 18 thereof.
6.5 Learned advocate Mr. Barot would thereafter submit that on the basis of the information given by one Keshavbhai Nanjibhai Parmar, accidental death entry No.1 of 2012 came to be registered and the inquiry under Section 174 of the Code was entrusted to PW4 - Mahendrasinh Rathod, ASI, Garbada Police Station. The said officer has conducted the inquiry during Page 8 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 the period between 01.01.2012 to 04.01.2012. It is submitted that under Section 174 of the Code, the said witness was only to undertake an exercise to ascertain whether a person has died under suspicious circumstances an unnatural death and if so, what is the exact cause of death. Despite that, the said witness, after recording statement of witness Narsingbhai Bhuriya - PW8, recorded statement of the appellant - accused before the appellant - accused was officially arrested and thereafter, the said witness i.e. ASI - Mahendrasinh Rathod himself lodged the FIR on the basis of the statement of father-in-law of the appellant and the confessional statement of the appellant - accused, which is not permissible. Learned advocate for the appellant has placed reliance upon the provisions contained under Sections 25 and 26 of the Indian Evidence Act and also placed reliance upon the decision rendered by the Hon'ble Supreme Court of India in the case of Manoj Kumar Sharma versus State of Chhatisgarh reported in (2016) 9 SCC 1. He has also placed reliance upon the decisions rendered by the Hon'ble Supreme Court of India in the case of :- (i) Dipakbhai Jagdishchandra Patel versus State of Gujarat reported in (2019) 16 SCC 547 and (ii) State of A.P versus Gangula Satya Murthy reported in (1997) 1 SCC 272.
6.6 Learned advocate Mr. Barot appearing for the appellant - accused further submits that in a case of circumstantial evidence, the entire chain of circumstances, on which the conclusion of guilt is to be drawn, is to be fully established. He placed reliance upon the decision rendered by the Hon'ble Page 9 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 Supreme Court of India in the case of Sharad Birdhichand Sharda versus State of Maharashtra reported in (1994) 4 SCC 116.
6.7 Learned advocate Mr. Barot lastly submitted that in the present case, when the prosecution has failed to prove an established circumstances; like last seen together, extra-judicial confession and motive against the appellant - accused has substantive pieces of evidence, the appellant - accused not registering missing report and his action of not locating the whereabout of his son, only on the strength of his conduct - post incident under Section 8 of the Indian Evidence Act, he cannot be convicted for a serious offence like murder solely relying upon his conduct. At this stage, learned advocate Mr. Barot has placed reliance upon the decision rendered by this Court in the case of Kanubhai Shanabhai Gamechi versus State of Gujarat reported in 2014 (2) GLR 1620.
6.8 Learned advocate Mr. Barot therefore urged that this appeal be allowed and the impugned judgment and order of conviction passed by the concerned trial Court be quashed and set aside and thereby, the appellant - accused be acquitted.
7.1 On the other hand, learned APP Mr. H.K. Patel appearing for the State has vehemently opposed this appeal. Learned APP has referred to a deposition given by PW12 - Humliben Ninama at Exh.29 as well as deposition of PW16 - Javsingbhai Ninama at Exh.36. Learned APP has also referred to a divorce deed at Page 10 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 Exh.30, which was executed on 30.12.20211 between the appellant - accused and the witness i.e. PW12 -Humliben Ninama. It is submitted that the said stamp-paper was purchased by the appellant - accused on 30.12.2011 and thereafter, as the dispute was settled between the parties, agreement was executed on the very same day. It is submitted that pursuant to the said agreement, the custody of the son (Devaraj - deceased) of the appellant - accused and the said witness was handed over to the appellant - accused. Learned APP therefore urged that from the evidence produced by the prosecution, it is clear that the deceased was in company of the appellant - accused from 30.12.2011 and thereafter, the incident in question took place in the early morning of 31.12.2011.
7.2 Learned APP also referred to the deposition given by PW1
- Dr. Meetbhai Shah and also placed reliance upon the postmortem report of the deceased. It is submitted that the cause of death, opinion given by the said Doctor in column No.23 of the postmortem report, he has specifically stated that the cause of the deceased is asphyxia due to drowning. It is further submitted that it is not the case of even the appellant - accused that deceased slipped into the Well accidentally. At this stage, learned APP has referred to the map produced by PW-6 - Premchandbhai Jadav, Circle Inspector at Exh.19. Learned APP referred to the deposition of the said witness and the map Exh.21. It is submitted that the distance between the house of the father-in-law of the appellant - accused and the Well from Page 11 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 which the dead-body of the deceased was found, is only 350 meters. It is further submitted that the appellant - accused is residing in village : Ukardi, whereas the dead-body of the deceased was found from the Well, which is situated in different village. Thus, it is difficult to believe that a child (Devraj - deceased) aged about 4½ years old reached from his village i.e. Ukardi to the other village i.e. Abhlod and accidentally, he fell into the Well. It is further submitted that the conduct of the appellant - accused is required to be considered by this Court along with the other evidence produced by the prosecution.
7.3 Learned APP thereafter referred to the deposition given by the police witnesses i.e. PW17 - Kalubhai Jalaiya at Exh. 37 as well as PW19 - Ravirajsinh Jadeja at Exh.39. Learned APP has also referred to the deposition given by PW4 - Mahendrasinh Rathod, ASI, Garbada Police Station, who has filed the FIR. Learned APP also referred to the FIR - Exh.16. Thereafter he has referred to the Panchnanma of the place of incident i.e. a Well, prepared while conducting inquiry under Section 174 of the Code. The said panchnama is produced at Exh.33. It is further submitted that the prosecution has proved the motive of the appellant - accused for commission of the alleged offence and when the appellant - accused was lastly seen in company of the deceased, when the custody of the child was handed over to him, looking to the conduct of the appellant - accused, the prosecution has proved the case against the appellant - accused beyond reasonable doubt and therefore, the trial Court has rightly passed an order of conviction.
Page 12 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 7.4 Learned APP has submitted that the provisions contained in Sections 25 and 26 of the Indian Evidence Act upon which the reliance is placed by the learned advocate for the appellant as well as the decisions upon which the reliance is placed by learned advocate of the appellant, would not be applicable to the facts of the present case. At this stage, it is clarified that the statement of the appellant - accused was recorded by ASI - Mr.Rathod before registration of the FIR. It is submitted that FIR was registered on 04.01.2012 and thereafter, the appellant
- accused was arrested on 05.01.2012, whereas the statement of the appellant - accused was recorded during the course of inquiry under Section 174 of the Code on 04.01.2012. Learned APP therefore urged that the provisions contained in the aforesaid Sections would not be applicable. Learned APP therefore urged that this appeal may be dismissed.
8.1 We have considered the submissions canvassed by the learned advocates appearing for the parties. We have also gone through the material placed on record.
8.2 The prosecution has examined Dr. Meetbhai Shah, PW1 at Exh.7, who has conducted the postmortem of the deceased. He has deposed that cause of death of the deceased was asphyxia due to drowning. The postmortem note is produced at Exh.9. In cross-examination, he has stated that injuries shown in column Nos.14 to 17 could be possible by aquatic animal. He has further stated that a boy slips into a Well by facing his chest Page 13 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 position, the injuries sustained by the deceased could be possible. PW-2 - Laxmanbhai Bablabhai Bhuriya, Exh.10, is a panch witness of a panchnama of reconstruction. The said witness has however not supported the case of the prosecution case as he turned hostile. Similarly, PW-3 - Jumabhai Pargi, a second panch witness to the aforesaid panchnama, has also turned hostile. PW-4 - Mahendrasinh Rathod, who was working as ASI at Garbada Police Station. His deposition is recorded at Exh.13. He has deposed that one Keshavbhai Nanjibhai Parmar, PW-17, informed that the dead-body of four years child is lying in the Well. On the basis of the said information, accidental death entry was recorded. The inquiry was handed over to the said witness. He has further stated that inquest panchnama was prepared, postmortem was conducted, the photographs of the dead-body was clicked, scene of offence panchnama was also carried out and the statements of the witnesses residing in nearby periphery were also recorded. It is further stated that thereafter on the basis of the information received during the course of inquiry, he has lodged the FIR at Exh.16 for the offence punishable under Sections 302 and 201 of the Indian Penal Code against the appellant - accused. He has identified the accused who was sitting in the Court. In the cross- examination, he has stated that it is not true that he has arrested the accused on 04.01.2012. He has also stated that he did not record the statement of Narsingbhai Bhuriya i.e. father- in-law of the appellant - accused on 01.01.2012 and 02.01.2012.
8.3 PW-5 - Keshavbhai Nanjibhai Parmar, Exh.17, is a Page 14 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 prosecution witness who has given information about the dead- body of the deceased lying in the Well to the concerned police station and on the basis of which, accidental death entry No.1 of 2012 came to be recorded and thereafter, inquiry under Section 174 of the Code was initiated. During the cross-examination, he has stated that when he came to know that dead-body of a child is lying in the Well, he has immediately informed the Sarpanch of the village. Accidental death entry was produced at Exh.18.
8.4 PW-6 - Premchandbhai Manilal Jadav, Exh.19, who was working as a Circle Inspector at Mamlatdar Office at Gardaba. The said witness has prepared a map of the place of incident i.e. a Well. During his examination-in-chief, he has stated that he has prepared a map of the place of incident which was produced vide Exh.21. The said witness has specifically stated that the house of Narsingbhai Bhuriya (PW-8) is 350 meters away from the Well, from where the dead-body was found.
8.5 PW-7 - Javsingbhai Bhabhor, Exh.22 was working as PSO at Garbada Police Station. The said witness has prepared a panchnama of the clothes of the deceased in presence of two panch witnesses and during the cross-examination, he has stated that he has not made accidental death entry.
8.6 PW-8 - Narsingbhai Bhuriya, Exh.23, who is a father-in- law of the appellant - accused. The said witness has not supported the case of the prosecution and he has turned hostile. He has denied the fact that the appellant - accused came to his Page 15 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 house with his son (deceased - Devraj) with a view to keep at the place of the said witness. He has further denied the fact that he has not accepted the request of the appellant - accused. Thereafter the cross-examination of the said witness was conducted by the learned APP. Further cross-examination was done by the advocate of the appellant - accused. Similarly, PW-9
- Rajudiben Bilval, Exh.24, is a wife of the appellant - accused. The said witness has also turned hostile and not supported the case of the prosecution.
8.7 PW-10 - Jasbhai Jokhabhai Bhabhor, Exh.25, who is a panch witness of the panchnama of the recovery of the clothes of the deceased. Pursuant to the inquiry conducted under Section 174 of the Code, the said witness has not supported the case of the prosecution and has turned hostile.
8.8 PW-11 - Mahendrasinh Bhabhor, Exh.27, was working as in-charge Police Station Officer at Garbada Police Station on 04.01.2012. He has stated that he has recorded the FIR of ASI - Mahendrasinh Laxmansinh Rathod (PW-4). The said witness has produced the original station diary vide Exh.28.
8.9 PW-12 - Humliben Ramanbhai Ninama, Exh.29, is the important witness of the prosecution. She has stated in her deposition that she got married with the appellant - accused and thereafter she was residing at the house of the appellant - accused. During the said wedlock, one son viz., Mehul was born and thereafter, when she was pregnant, quarrel took place with Page 16 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 the appellant - accused & his first wife - Rajudiben and therefore, she left her matrimonial house and she was residing at her parental house. At her parental house, she delivered a second son whose name was Devraj. Thereafter, she filed the proceedings for maintenance before the competent Court at Dahod. During the pendency of the said proceedings, settlement was arrived at with the appellant - accused. Said settlement / agreement is a divorce deed / agreement. As per the said settlement, the custody of the child - Devraj was demanded by the appellant - accused and therefore, custody of the son was given to the appellant - accused. Said settlement agreement was executed on 30.12.2011. Said agreement is produced at Exh.30. During the cross-examination, the said witness has stated that as the appellant - accused has demanded the custody of minor child - Devraj, custody of the child was given to him. The agreement was prepared by the advocates. She has further admitted that her son - Mehul is residing with the appellant - accused & his first wife. A divorce deed is produced at Exh.30.
8.10 PW-13 - Rameshbhai Maganlal Parmar, Exh.31, is a panch witness of the panchnama of the place of incident, which is produced at Exh.32 and so also a panch witness of the inquest panchnama, which is produced at Exh.33. Both the panchnamas were prepared on the very same day while conducting the inquiry under Section 174 of the Code. The said witness has supported the case of the prosecution.
Page 17 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 8.11 PW-14 - Jagdishbhai Parmar, Exh.34, is a second panch witness of aforesaid both the panchnamas, which are produced at Exh.32 and 33. The said witness also supported the case of the prosecution.
8.12 PW-13 - Ajitbhai Punabhai Ganava has deposed at Exh.35. The said witness is residing at village : Abhlod and he has also seen the dead-body of the deceased lying in the Well. Photograph Exh.14 was shown to the said witness.
8.13 PW-16 - Javsingbhai Ramanbhai Ninama, Exh.36, is a brother of Humliben (PW-12). The said witness has also stated that marriage of her sister - Humliben was solemnised with the appellant - accused and she was having two children out of the said wedlock. Her sister gave birth of second son - Devraj at his place. Thereafter, his sister - Humliben filed the maintenance proceedings before the competent Court at Dahod. During the pendency of the said proceedings, settlement was arrived at between the parties and divorce agreement (Exh.30) was executed.
8.14 PW-17 - Kalubhai Jalaiya, Exh.37, was working as a PSI, Garbada Police Station has stated that initial investigation was carried out by PSI Mr. Jadeja and the said Investigating Officer has recorded statements of the witnesses, prepared the panchnama(s), collected the postmortem note from the doctor and other relevant documents and investigation was handed over to him and thereafter he filed the charge-sheet.
Page 18 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 8.15 PW-18 - Majubhai Bhabhor, Exh. 38, is a second panch witness of the panchnama of the recovery of clothes of the dead-body of the deceased, however, he has turned hostile.
8.16 PW-19 - Ravirajsinh Jadeja, Exh.39, who was working as a PSI at Garbada Police Station. The said witness has carried out the investigation, recorded the statements of the witnesses, collected the relevant documents and thereafter, handed over the investigation to the PSI Mr. Kalubhai G. Jalaiya (PW-17) as the said witness was transferred.
9.1 From the aforesaid deposition of the witnesses, it is clear that there is no eye-witness to the incident in question and the case of the prosecution rests on circumstantial evidence. It is further revealed that PW-8 - Narsingbhai Bhuriya, father-in-law of the appellant - accused and PW-9 - Rajudiben Bilval - wife of the appellant - accused have not supported the case of the prosecution. However, from the deposition of the Investigating Officer - PW-19 - Ravirajsinh Gambhirsinh Jadeja, it is revealed that the said witness has specifically narrated in detail about the statements given by both the aforesaid witnesses. Hence, the prosecution has proved the contradiction by the deposition of the said witness. At this stage, it is pertinent to note that from the deposition given by PW-12 - Humliben Ninama and PW-16 - Javsingbhai Ninama, it is clear that on 30.12.2011, a diverse deed was executed by the said witness as well as the appellant - accused. a stamp-paper was purchased by the appellant -
Page 19 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 accused. If the said deed is carefully seen, it is revealed that custody of the boy - Devraj was handed over to the appellant - accused on 30.12.2011 itself. Thus, both the aforesaid witnesses have seen the deceased in company of the appellant - accused on 30.12.2011 when the custody of the boy - Devraj (deceased) was handed over to the appellant - accused. Further from the evidence produced on record, it is revealed that dead-body of the deceased - Devraj was found from the Well situated in village : Abhlod. The said Well is at the distance of 350 meters away from the house of the witness - Narsingbhai Bhuriya (father-in-law of the appellant - accused). It is also not in dispute that the appellant - accused is a resident of village :
Ukardi. Thus, it is not the case of the defence that the child has accidentally fell into the Well, which is situated in some different village. At this stage, the conduct of the appellant - accused is also required to be kept in view. The child was missing since 31.12.2011, however, the appellant - accused, who is a father of the child aged about 4½ years, has not even cared to lodge the missing complaint before the concerned police station.
9.2 It is the specific case of the prosecution that after the custody of the child - Devraj was obtained from the witness -
Humliben by the appellant - accused, first wife of the appellant
- accused viz., Rajudiben has refused to keep the custody of the child and therefore, on the next day morning i.e. 31.12.2011, the appellant - accused went to the residence of his father-in- law i.e. Narsingbhai Bhuriya - PW8, who is residing at village :
Page 20 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 Abhlod. The said witness has also refused to keep the custody of the said child. As a result of which, immediately after leaving the place of his father-in-law (PW8 - Narsingbhai Bhuriya), the child was thrown in the Well by the appellant - accused. The said Well is at the distance of 350 meters away from the house of Narsingbhai Bhuriya (PW8). Thus, the prosecution has proved the motive on the part of the appellant - accused to commit the alleged offence.
9.3 Further, if the deposition of Dr. Meetbhai Shah, who has conducted the postmortem of the deceased, is carefully seen, coupled with the postmortem report (Exh.9), it is revealed that in column No.23, it has been specifically stated as under :
As per postmortem examination, cause of death of an unknown child of 4 years old is - 'Asphyxia due to drowning'.
Further, PW-1 - Dr. Meetbhai Shah has deposed that cause of death is Asphyxia due to drowning.
Thus, from the aforesaid, it is clear that the prosecution has proved the factum of homicidal death.
9.4 Further, it is pertinent to note that PW4 - Mahendrasinh Rathod, ASI, Garbada Police Station has carried out the investigation under Section 174 of the Code on the basis of the accidental death entry registered at Garbada Police Stat;ion.
During the couse of inquiry made under Section 174 of the Page 21 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 Code, it was revealed that the dead-body of the child was of grand-son of Narsingbhai Bhuriya. Photograph of the deceased was shown to the said witness and the said witness has stated that the said photograph is of his grand-son. A statement of the said witness was recorded and thereafter, statement of the appellant - accused was recorded during the course of inquiry on 04.01.2012. During the course of said inquiry, it was revealed that, it is a case of commission of offence punishable under Section 302 of the Indian Penal Code, the FIR was given by the said witness and after registration of the FIR, the appellant - accused was arrested on 05.01.2012. Thus, from the facts and circumstances of the present case, it cannot be said that the appellant - accused was in custody of the police after registration of the FIR and at that time, a confessional statement of the appellant - accused was recorded. Thus, this Court is of the view that the provisions contained in Sections 25 and 26 of the Indian Evidence Act would not be attracted.
9.5 At this stage, this Court would like to refer to the decisions upon which the learned advocate for the appellant has placed reliance, which are as under :
(i) In the case of Irfan Mohammad Modhia (supra), relevant portion of paragraph 64 reads as under :
"64. In the background of the above evidentiary scenario, Mr.I.H.Syed, learned counsel for the appellant, has advanced the following submissions: (1) The learned Judge has fallen into error by using the statement made by Page 22 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 the hostile witness Deepmala under Section 161 of the Code as the basis for the conviction of the appellant. A legal error has been committed by the Trial Court in stating that such statement can be used for corroboration of the case of the prosecution whereas, as per law, the previous statement of a hostile witness, which is denied before the Court, can only be used for the purpose of contradicting the witness and not for corroboration. There is, therefore, a basic flaw in the judgment under challenge. In support of this submission, reliance is placed upon a judgment of the Supreme Court in the case of V.K.Mishra And Another v. State of Uttarakhand And Another - (2015)9 SCC 588, wherein the Supreme Court has held as below:
"16. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162 (1) Cr.P.C. The statements under Section 161 Cr.P.C.
recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the 14 prosecution but with the leave of the Court and (iii) the reexamination of the witness if necessary.Page 23 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022
R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022
17. The court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during crossexamination and also during the crossexamination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction.
xxx "
(ii) In the case of Chandrapal (supra), paragraphs 7 to 11,
13 and 18 read as under :
"7. At the outset, it may be stated that undisputedly the entire case of the prosecution rested on the circumstantial evidence, as there was no eye witness to the alleged incident. The law on the appreciation of circumstantial evidence is also well settled. The circumstances concerned "must or should be" established and not "may be" established, as held in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra1. The accused Page 24 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 "must be" and not merely "may be" guilty before a court can convict him. The conclusions of guilt arrived at must be sure conclusions and must not be based on vague conjectures. The entire chain of circumstances on which the conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground for the conclusion consistent with the innocence of the accused. The five golden principles enumerated in case of Sharad Birdhichand Sarda v. State of Maharashtra laid down in para 152 may be reproduced herein for ready reference:"
152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047]" Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' Page 25 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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."
8. It is also needless to reiterate that for the purpose of proving the charge for the offence under Section 302, the prosecution must establish "homicidal death" as a primary fact. In order to convict an accused under Section 302, the court is required to first see as to whether the prosecution has proved the factum of homicidal death. So far as the facts of present case are concerned, the evidence of PW-13 Dr. R.K. Singh, who had carried out the post-mortem of the deceased Brinda and Kanhaiya, would be most relevant in this regard. He had stated in his deposition before the court, inter alia, that on Page 26 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 12.12.1994, he had carried out the post-mortem of Kumari Brinda, daughter of Bhagirathi, and of Kanhaiya alias Chandrashekhar Gaur. The dead bodies of both the deceased were in decomposed state. He had further stated that the knot mark present on the neck of the deceased Brinda was ante-mortem, and that the cause of death appeared to be Asphyxia due to hanging. The death had taken place within 8 to 10 days and the nature of death was Suicidal. The said Doctor had stated similar facts for Kanhaiya that the dead body of Kanhaiya was found bent towards left side from his neck and a ligature mark having size 10" x 5" was present on the neck. The cause of death appeared to be Asphyxia due to hanging and the death appeared to have taken place within 8 to 10 days. He had further stated that there was neither fracture found on the dead bodies of the deceased, nor any blood clots were found, nor any injuries were found, and therefore he had opined that the cause of death was hanging which normally is found in case of suicide. He specifically stated that as the dead bodies were decomposed, he could not express any opinion whether it was a homicidal death. In the cross- examination by the learned counsel for the accused, he had categorically admitted that he did not find any symptom of homicidal death, nor he had opined in his report given on 12.12.1994 that the deaths of the deceased were homicidal. Of course, he had stated that on the basis of the report submitted on 30.04.1995, an inference could be drawn that the deaths could be homicidal deaths.
9. It is worth noting that the High Court in the impugned judgment has not considered at all the evidence of Dr. R.K. Singh to come to the conclusion whether the deaths were homicidal deaths, before confirming the Page 27 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 conviction of the appellant for the offence under Section 302 IPC. Unfortunately, the Sessions Court also in para 23 of its judgment observed that the statement of Dr. R.K. Singh was not important because he had expressed an opinion which was neither beneficial to the prosecution nor to the defence. In our opinion, when the case of the prosecution rested on circumstantial evidence, it was imperative for the prosecution to prove beyond reasonable doubt that the deaths of the deceased were homicidal deaths and not suicidal, more particularly when the line of defence of the accused was that the Brinda and Kanhaiya had committed suicide, and when Dr. R.K. Singh who had carried out their post-mortems had also opined that the nature of their deaths was Suicidal.
10. This takes the court to examine the incriminating evidence relied upon by the prosecution, that is the extra judicial confession made by the co-accused Videshi. According to the prosecution, the accused Videshi had made self-inculpatory confession before the PW-4 Bhola Singh and also made confession before the PW-5 Chandrashekhar, PW-6 Baran Singh and PW-7 Dukaluram, involving the other accused including the present appellant. The prosecution had also produced an affidavit of Videshi (Ex- P/11) allegedly affirmed before the Notary. Though the Sessions Court relying upon the said evidence of extra judicial confession of Videshi convicted all the four accused, the High Court partly believing the said extra judicial confession, acquitted the three accused i.e., Bhagirathi, Mangal Singh and Videshi from the charges levelled against them under Section 302 read with 34 of IPC, however convicted them for the offence under Section 201 read with 34 by holding that the said accused had Page 28 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 tried to cause disappearance of the evidence.
11. At this juncture, it may be noted that as per Section 30 of the Evidence Act, when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. However, this court has consistently held that an extra judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra judicial confession. As held in case of State of M.P. Through CBI and Ors. v. Paltan Mallah and Ors.3, the extra judicial confession made by the co- accused could be admitted in evidence only as a corroborative piece of evidence. In absence of any substantive evidence against the accused, the extra judicial confession allegedly made by the co-accusedSC2548 loses its significance and there cannot be any conviction based on such extra judicial confession of the co-accused.
13. This takes the court to examine the theory of "Last seen together" propounded by the prosecution. As per the case of prosecution, PW-1 Dhansingh had seen the accused Chandrapal calling the deceased Kanhaiya and taking him inside his house on the fateful night. Apart from the fact that the said Dhansingh had not stated about the time or date when he had lastly seen Kanhaiya with Chandrapal, even assuming that he had seen Chandrapal calling Kanhaiya at his house when he was sitting at the Page 29 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 premises of village panchayat, the said even had taken place ten days prior to the day when the dead bodies of the deceased were found.SC2549 The time gap between the two incidents i.e., the day when Dhansingh saw Chandrapal calling Kanhaiya at his house and the day Kanhaiya's dead body was found being quite big, it is difficult to connect the present appellant with the alleged crime, more particularly when there is no other clinching and cogent evidence produced by the prosecution.
18. As stated hereinabove, in order to convict an accused under Section 302 IPC the first and foremost aspect to be proved by prosecution is the factum of homicidal death. If the evidence of prosecution falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out, in the opinion of this court, the appellant- accused could not have been convicted merely on the basis of the theory of "Last seen together".
(iii) In the case of Manoj Kumar Sharma (supra), paragraphs 10 to 12 read as under :
"Scope of Inquiry under Section 174 of the Code :
10. The proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was Page 30 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 assaulted is foreign to the ambit and scope of the proceedings under Section 174 of the Code. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. The procedure under Section 174 is for the purpose of discovering the cause of death, and the evidence taken was very short. When the body cannot be found or has been buried, there can be no investigation under Section 174. This section is intended to apply to cases in which an inquest is necessary. The proceedings under this Section should be kept more distinct from the proceedings taken on the complaint. Whereas the starting point of the powers of police was changed from the power of the officer in charge of a police station to investigate into a cognizable offence without the order of a Magistrate, to the reduction of the first information regarding commission of a cognizable offence, whether received orally or in writing, into writing. As such, the objective of such placement of provisions was clear which was to ensure that the recording of the first information should be the starting point of any investigation by the police. The purpose of registering FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report and only after registration of FIR, beginning of investigation in a case, collection of evidence during investigation and formation of the final opinion is the sequence which results in filing of a report under Section 173 of the Code. In George and Others v. State of Kerala and Another (1998) 4 SCC 605 : (AIR 1998 SC 1376), it has been held that the investigating officer is not obliged to investigate, at the stage of inquest, or to ascertain as to who were the assailants. A similar view has Page 31 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 been taken in Suresh Rai and Others v. State of Bihar (2000) 4 SCC 84 : (AIR 2000 SC 2207).SC3936
11. In this view of the matter, Sections 174 and 175 of the Code afford a complete Code in itself for the purpose of "Inquiries" in cases of accidental or suspicious deaths and are entirely distinct from the "investigation" under Section 157 of the Code wherein if an officer in- charge of a police station has reason to suspect the commission of an offence which he is empowered to investigate, he shall proceed in person to the spot to investigate the facts and circumstances of the case. In the case on hand, an inquiry under Section 174 of the Code was convened initially in order to ascertain whether the death is natural or unnatural. Learned senior counsel for the appellants claims that the earlier information regarding unnatural death amounted to FIR under Section 154 of the Code which was investigated by the police and thereafter the case was closed. On a careful scrutiny of materials on record, the inquiry which was conducted for the purpose of ascertaining whether the death is natural or unnatural cannot be categorized under information relating to the commission of a cognizable offence within the meaning and import of Section 154 of the Code. On information received by P.S. Mulana, the police made an inquiry as contemplated under Section 174 of the Code. After holding an inquiry, the police submitted its report before the sub-
Divisional Magistrate, Ambala stating therein that it was a case of hanging and no cognizable offence is found to have been committed. In the report, it was also mentioned that the father of the deceased-R.P. Sharma (PW-1) does not want to take any further action in the matter. In view of the above discussion, it clearly goes to show that what was Page 32 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 undertaken by the police was an inquiry under Section 174 of the Code which was limited to the extent of natural or unnatural death and the case was closed. Whereas, the condition precedent for recording of FIR is that there must be an information and that information must disclose a cognizable offence and in the case on hand, it leaves no matter of doubt that the intimation was an information of the nature contemplated under Section 174 of the Code and it could not be categorized as information disclosing a cognizable offence. Also, there is no material to show that the police after conducting investigation submitted a report under Section 173 of the Code as contemplated, before the competent authority, which accepted the said report and closed the case.
12. In view of the above, we are of the opinion that the investigation on an inquiry under Section 174 of the Code is distinct from the investigation as contemplated under Section 154 of the Code relating to commission of a cognizable offence and in the case on hand there was no FIR registered with the P.S. Mulana neither any investigation nor any report under Section 173 of the Code was submitted. Therefore, challenge to impugned FIR under Crime No. 194 of 2005 registered by P.S. Bhilai Nagar could not be assailed on the ground that it was second FIR in the garb of which investigation or fresh investigation of the same incident was initiated."
(iv) In the case of Dipakbhai Jagdishchandra Patel (supra), paragraphs 40 & 41 read as under :
"40. Such a person, viz., person who is named in the Page 33 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 FIR, and therefore, the accused in the eyes of law, can indeed be questioned and the statement is taken by the Police Officer. A confession, which is made to a Police Officer, would be inadmissible having regard to Section 25 of the Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act would also be inadmissible. A confession unless it fulfills the test laid down in Pakala Narayana Swami (supra) and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 of the Cr.PC. Therefore, even if a statement contains admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 of the Cr.PC.
41. Bar under Section 162 Cr.PC, no doubt, operates in regard to the statement made to a Police Officer in between two points of time, viz., from the beginning of the investigation till the termination of the same. In a case where statement containing not a confession but admission, which is otherwise relevant and which is made before the investigation commences, may be admissible. We need not, however, say anything more."
(v) In the case of Gangula Satya Murthy (supra), paragraph 19 reads as under :
"19. The other reasoning based on Section 26 of the Evidence Act is also fallacious. It is true any confession made to a police officer is inadmissible under Section 25 of the act and that ban is further stretched through Section Page 34 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 26 to the confession made to any other person also if the confessor was then in police custody. Such "custody" need not necessarily be post arrest custody. The word "custody"
used in Section 26 is to be understood in a pragmatic sense. If any accused is within the ken of surveillance of the police during which his movements are restricted then it can be regarded as custodial surveillance for the purpose of the Section. If he makes any confession during that period to any person be he not a police officer, such confession would also be hedged within the banned contours outlined in Section 26 of the Evidence Act."
(vi) In the case of Sharad Birdhichand Sharda (supra), relevant paragraphs of this decision has already been taken into considered by the Hon'ble Supreme Court of India while rendering the decision in the case of Chandrapal (supra) noted above, therefore, the same need not be reproduced here.
(vii) In the case of Kanubhai Shanabhai Gamechi (supra), paragraph 55 reads as under :
"55. There cannot be any quarrel with the proposition of the law as explained by the Supreme Court so far as the conduct of the accused relevant under Section 8 of the Evidence Act is concerned. However, an accused cannot be convicted for a serious offence like murder solely relying upon his conduct, more particularly, when the prosecution fails to prove and establish other circumstances against the accused. In the present case we have disbelieved the circumstance of the accused last seen together with the deceased as well as the discovery. Then, in such Page 35 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 circumstances, conviction cannot be affirmed by merely placing reliance on the conduct of the accused, which may be relevant under Section 8 of the Evidence Act."
10. We have considered the proposition of law laid down by the Hon'ble Supreme Court of India as well as by this Court in the aforesaid decisions, however, the said decisions would not be applicable to the facts of the present case.
11. If the facts and evidence of the present case, as discussed hereinabove, are carefully examined keeping in view the principles laid down by the Hon'ble Supreme Court of India as well as this Court in the aforesaid decisions, we are of the view that though the case of the prosecution rests on circumstantial evidence, the prosecution has completed the chain of evidence. The prosecution has also proved the motive on the part of the appellant - accused to commit the alleged offence. All the conditions stipulated in the decision rendered by the Hon'ble Supreme Court of India in the case of Sharad Birdhichand Sharda (supra) are fulfilled. We have also gone through the reasoning given by the trial Court while convicting the appellant
- accused. Upon re-appreciation of all the documentary as well as oral evidence on record minutely, we do not agree with the submissions made by learned advocate Mr. Barot appearing for the appellant - accused. The appeal therefore needs to be dismissed. The trial Court has rightly evaluated the entire evidence and convicted the appellant - accused, which need not be interfered with by this Court. The impugned judgment and order of conviction passed by the trial Court against the Page 36 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022 R/CR.A/1274/2013 JUDGMENT DATED: 25/07/2022 appellant - accused therefore need to be confirmed and accordingly confirmed.
12. We are of the view that the prosecution has proved the case of the appellant - accused beyond reasonable doubt and therefore, the trial Court has not committed any error while passing the impugned judgment and order of conviction against the appellant - accused.
13. Accordingly, this appeal is dismissed.
Sd/-
(VIPUL M. PANCHOLI, J) Sd/-
(SANDEEP N. BHATT,J) M.H. DAVE Page 37 of 37 Downloaded on : Fri Jul 29 20:23:05 IST 2022