Gujarat High Court
Ashish Kapil Nanda vs State Of ... on 20 February, 2017
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
R/CR.A/1785/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1785 of 2013
With
CRIMINAL APPEAL NO. 623 of 2015
With
CRIMINAL APPEAL NO. 1568 of 2013
With
CRIMINAL APPEAL NO. 198 of 2014
With
CRIMINAL REVISION APPLICATION NO. 660 of 2013
With
CRIMINAL REVISION APPLICATION NO. 661 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
==========================================================
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 ?
==========================================================
ASHISH KAPIL NANDA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
==========================================================
Appearance:
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CR.A 623/15 MR ROHIT S VARMA FOR MR NIRAD BUTCH, ADV for the Appellant No. 1
CR,A 1785/13 MR ROHIT S VARMA FOR MR. RUTURAJ NANAVATI, for the Appellant No. 1
MR H K PATEL, APP for the Opponent(s)/Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 20-21/02/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. These appeals arise out of a common judgement dated 08.08.2013 passed by the learned Additional Sessions Judge, Rajkot, in Sessions Cases No.107 of 2006 and 54 of 2007.
2. Briefly stated, the prosecution version was that Piyush, son of the complainant Jalaram Keshavrambhai Pujara and accused No.1, Ashish Kapilbhai Nanda were friends. Ashish was in need of money. He and one Naresh @ Sarap Katarmal and Salim @ Sallo Aamadbhai Khafisumra, accused No.7 hatched a conspiracy to kidnap Piyush for ransom. These persons executed a plan for kidnapping Piyush with active help and support from other accused, notably, Diptiben @ Deepa Haresh Pabari, accused No.2, who was sister of Naresh @ Sarap on 04.07.2006. Piyush was kidnapped from a place called Shastri maidan at Rajkot. The money and other valuable articles which Piyush was carrying, such as gold chain and locket were taken away by the accused. A ransom call was made to Jalaram Pujara. However, under the fear of being identified, accused Page 2 of 61 HC-NIC Page 2 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT No.1-Ashish, accused No.7-Salim Aamadbhai and Naresh @ Sarap took Piyush at an isolated place in the forest near Hingolgadh village where he was murdered. These accused poured petrol and set his body on fire. It appears that the burnt remains of the body were devoured by the wild animals to such an extent that a few days later, when the investigating team visited the site, all that they could find was the skull and a few bones scattered around.
3. It appears that Naresh @ Sarap, who according to the prosecution had given the fatal blows, was absconding for sometime and eventually, is reported to have been killed in an encounter with the police. A charge was, therefore, framed against the remaining accused for commission of the offences punishable under sections 363, 364, 364A, 343, 346, 345, 386, 387, 465, 467, 468, 471, 474, 504, 506(2), 302, 201, 212 read with sections 34 and 120B as well as section 188 of IPC. Accused Nos. 1 and 7 were also charged with offence punishable under sections 27 and 30 of the Wild Life (Protection) Act.
4. The learned Sessions Judge, by the impugned judgement, convicted accused No.1 Ashish and Salim-accused No.7 for offences punishable under sections 302, 364, 364A, 346, 365, 386, 387, 465, 467, 468, 471, 474, 504, 506(2), 201, 118, 120B read with section 34 of IPC as also for the offences under sections 27 and 30 of the Wild Life (Protection) Act. The rest Page 3 of 61 HC-NIC Page 3 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT of the accused were acquitted of all the charges. The learned Judge was pleased to sentence accused Nos. 1 and 7 for life imprisonment for offence under section 302 of IPC as well as for section 364A of the Code. For remaining offences, lesser sentences were awarded. Fines were also imposed.
5. The two convicted accused i.e. accused Nos. 1 and 7 have challenged their conviction and sentence. Criminal Appeal No. 1785 of 2013 is filed by accused No.1. Criminal Appeal No. 623 of 2015 is filed by accused No.7. The State has preferred Criminal Appeal No. 198 of 2014 challenging the acquittal of the remaining accused. Criminal Appeal No. 1568 of 2013 is filed by the victim challenging the acquittal of accused persons and also challenging the acquittal of accused Nos. 1 and 7 for offence under sections 363, 343, 212 read with section 34 of IPC. Criminal Revision Application No. 660 of 2013 is filed by the victim seeking death sentence for the convicted accused. The victim has also filed Criminal Revision Application No. 661 of 2013 for enhancement of sentence of the convicted accused for the offences under the Wild Life (Protection) Act.
6. The evidence on record is bulky. The prosecution examined large number of witnesses and produced number of documents before the Trial Court to establish the case of kidnapping and murder and the theory of conspiracy amongst all the accused. The entire evidence however is in the nature of circumstantial evidence. To appreciate such evidence, we may record the gist Page 4 of 61 HC-NIC Page 4 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT of the relevant evidence.
7. PW 1 Exh 179 Jalarambhai Keshavrambhai Pujara was the first informant and also the father of deceased Piyush. In his deposition he gave the landline numbers at his shop and the mobile number. He was dealing in imitation jewelery and had a shop at Rajkot on Bhavnagar road. He was doing the business in the name of Jalaram sales. His elder son Piyush at the relevant time was aged about 16 years, studying in F.Y.B.Com. In the afternoons, Piyush would sit at the shop and help him in the business.
On 14.07.2006, Piyush had gone home at night. He left home at about 10 O'clock saying that he would return shortly. On the landline at his shop he received a call from Piyush's mobile number at 10:45. Some unknown person was speaking. He threatened that Piyush had become headstrong. He was in the custody of the caller. This person also put Piyush on the line who told the father that he was with these people and that father should act according to their instructions. He immediately called his wife at home. He got in touch with Piyush's friend Hiren. He told him that at 9:30, Piyush had asked him to accompany to Shastri maidan in connection with a phone call received from a lady. He could not accompany Piyush since he was having dinner. He went to the Shastri maidan and found Piyush's motorcycle parked there. The witness with his relatives, therefore reached the said place and found the Page 5 of 61 HC-NIC Page 5 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT motorcycle parked. They searched for Piyush for the entire night. Since Piyush was not found, they informed the Pradyuman Nagar Police Station at 4 O'clock in the morning about disappearance of Piyush. He learned from Piyush's friend that on 12.07.2006 also Piyush had got a call from an unknown girl asking him to meet her at some place.
When Piyush's search was going on, at 10:50 a phone came from an unknown caller from mobile no. 9998621835 on the mobile of his nephew Hardik being No. 9898632380 asking for Jalarambhai. He, therefore, talked to the caller who told him that his son has been kidnapped. He was unhappy that police was informed about it. He also told the complainant that he would indicate the ransom amount and the place and time for payment later on. At his request, the caller put Piyush on line. Piyush, however, did not know where he was kept. Initially he thought that Piyush and his friends may be playing a prank and therefore, did not file a police complaint immediately. However, since till 18.07.2006 Piyush was not found, he lodged a complaint of kidnapping before the Pradumannagar Police Station on 18.07.2006 which was produced at Exh 184.
The witness produced the bill for purchase of mobile phone by Piyush. He further stated that he knew Ashish, accused No.1 before the incident. Ashish was also engaged in the business of imitation jewelery. Ashish would sit on the shop of his uncle. This shop and the shop of the complainant were both situated Page 6 of 61 HC-NIC Page 6 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT close by. Ashish would also come to the shop of the complainant for business. Ashish was given a shop on rent for Rs. 7000/- which was right next to his own shop from where Ashish was doing his business. Piyush and Ashish, therefore, had become good friends. Ashish would also visit his house. Ashish would also borrow money occasionally from Piyush. Once Piyush had given Rs. 1,00,000/- to Ashish. Ashish did his business at the said shop for about four months and then vacated it and went back to Jamnagar. When Piyush disappeared, the witness also tried to contact Ashish since he was Piyush's friend. Ashish's mother picked up the phone and told him that he had gone to Ahmedabad for recoveries. He called Ashish's number. Ashish told him that he was near Sanand though as a friend he should have been concerned about disappearance of Piyush. Instead, he switched off his mobile phone.
At the time of his kidnapping, Piyush was wearing a gold locket and a chain, rings and was carrying Rs. 5000/- in cash. The police had recorded his statements. He and his wife were taken for blood samples for DNA test.
In the cross examination, this witness was challenged by the defence on the issue of his spare shop having been given to Ashish on rent. The witness, however, stuck to his version in chief.
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8. The missing person's report Exh 183 referred by the said witness in his deposition contained similar version of Piyush having left home at about 10:15 promising to return soon but, later on, on a clue by his friend Hiren finding his motorcycle parked at Shastri maidan area. In Exh 184, the FIR, the complainant had given the version of first call coming at the landline of his shop at night after Piyush left home and thereafter a phone coming on the mobile phone of Hardik, his nephew from the kidnappers.
9. Hirenbhai Arvindbhai Doshi, PW 66, Exh 459, was the friend of Piyush to whom the complainant had first contacted on the night of 14.07.2006. This witness deposed that he had business relations with complainant Jalarambhai. He had learnt the business of imitation jewelery at his shop. He also had friendly relations with Piyush. He had met Piyush in the evening of 14.07.2006. At 9:30 at night Piyush had called him and told him about conversation with a girl on phone calling him near Royal circus. Piyush also asked Hiren to come but he could not accompany. Piyush went alone. He had tried to call Piyush at night but after receiving the phone the receiver did not respond. He had received call from Jalarambhai telling him about Piyush not returning home. He, therefore, located Piyush's motorcycle near Royal Circus at Shastri maidan and called Jalaram to the said place.
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10. Kapilbhai Dhirajlal Nanda, PW 152, Exh 837, father of accused No.1 Ashish deposed that he was a constable in the police department. He did not know Jalarambhai personally but knew about him because his son was working with Jalarambhai. When he was at home on leave, he had received a phone call from Jalarambhai inquiring about Ashish to whom he had said that Ashish had gone to Ahmedabad for business work. He knew that Ashish and Jalarambhai's son were friends, since both of them were in the same business. He had tried to contact Ashish, who told him that he was out of station. He had told Ashish about the inquiries made by Jalarambhai. Police had recorded his statement and instructed him to inform the police if Ashish contacted. Same day at night, Ashish called and said that he was returning home upon which, he informed the Rajkot Police. Two police persons from Rajkot had come to interrogate Ashish. From then on, this witness turned hostile and was cross- examined by the prosecution.
11. Jitendra Mansukhbhai Bhadiyadra, PW 3, Exh 229 was the panchwitness in whose presence, the IMEI number of a Nokia 6708 mobile phone, allegedly discovered from the house of Ashish at his instance, was recorded. According to the prosecution, IMEI number of his phone was 35757800/11/7899/9 and it was the mobile phone of the deceased Piyush.
12. According to the prosecution, mobile phone number used Page 9 of 61 HC-NIC Page 9 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT by the kidnappers for making certain calls was obtained in the name of one Prakash Darji by using his identity and certain documents which Prakash Darji had lost alongwith his wallet near Chotila area of Rajkot district. The prosecution produced at Exh 240 an application form for mobile connection filed before Airtel company in the name of said Prakash Darji. At Exh 241, the prosecution produced driving license of said Prakash Darji.
13. At Exh 277, the prosecution produced a panchnama of the scene of incident which was shown by accused No.1 Ashish to the police party and the panch-witnesses. The panchnama records that Ashish, who was in the police jeep, asked the driver to take the jeep first to the Chotila village. From there he guided the jeep through internal dirt road and then on to the tar road. After passing various villages, the vehicle arrived in the outskirts of village Hingolgadh. The jeep was driven for about 3 kilometers from the village when Ashish asked the jeep to be stopped. He and others got down from the jeep. Ashish led them to an open area where they came across a stone wall of about 3 ft. hight. Crossing the wall they entered the forest area. After walking for about half a kilometer distance, he showed where Piyush was made to lie down and then killed. The panchnama records area of 4 ft where the ground was burnt. Burnt pieces of wood were found. A big stone had dried blood stains on it. Somewhere to the south of this place, scattered bones were found which included a skull. Several teeth from the skull were missing. The investigation collected the bones, the stone, blood Page 10 of 61 HC-NIC Page 10 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT stained soil and the sample soil from the region.
14. Exh 253 is also panchnama of the scene of incident, according to which, accused No.7 Salim led the panchwitness and the police party to the same place. However, we may notice that the panchnama Exh 277 recorded the events of 28.07.2006 whereas panchnama Exh 253 referred to the events of 30.07.2006. In other words, thus, the panchnama of Exh 277 was made before the panchnama Exh 253.
15. Anand Rameshbhai Sitapara PW 16 Exh 318 was the panchwitness to the panchnama of search of an Indica car seized by the police allegedly used by the accused for commission of the offence. The panchnama was produced at Exh 321. The Indica car was searched in presence of the officers from FSL. As per this witness, in the panchnama, from the Indica car from the pocket of the backside of the left hand front seat one gray coloured handkerchief was found and seized. The handkerchief seemed to be carrying blood stains. More minute examination of this object by the FSL officer showed that the handkerchief seemed to have been used for wiping a sharp edged weapon.
16. Hanifbhai Hussainbhai, PW 41, Exh 376 was the panch of the panchnama Exh 378 under which, the clothes of accused Ashish were recovered from his house. Though this witness Page 11 of 61 HC-NIC Page 11 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT turned hostile, he admitted his signature on the panchnama.
17. Exh 407 is the panchnama, under which, mobile phone of deceased was discovered at the instance of accused No.1 Ashish from his house. Though the panchwitness Bharatbhai Devrajbhai, PW 50, Exh 406 turned hostile, the discovery was proved through the evidence of IO. As per this panchnama Exh 407, accused Ashish voluntarily led the police party and the panchwitnesses to his father's house where he also lived. He then went inside bedroom of the house and led them to a bathroom. The bathroom had a window with sliding glass. The glass was non-transparent. From between the two sliding shutters by inserting the hand a mobile phone instrument covered in a plastic bag was found.
18. Under panchnama Exh 413, the investigation discovered the knife allegedly used for the commission of offence and pieces of broken number plate of the Indica car both at the instance of accused No.7 Salim. As per this panchnma, the said accused volunteered to show the place where these articles were thrown away from a moving car. He led the panchwitness and the police party to the highway. He stopped the car at the milestone showing Rajkot 35 kilometers. After walking for about one and half kilometer, from the side of the road near the cactus bushes, the knife was found and recovered. Though further efforts were made, numberplate was not found.
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19. Pieces of broken number plate were, however, discovered under panchnama Exh 422, according to which, one more attempt was made for such recovery and at the instance of accused No.7, Salim, these articles were found from the same highway.
20. Under panchnama Exh 432, the investigation team had recovered three mobile phones on the person of deceased Naresh @ Sarap Vanrajbhai, during the course of inquest panchnama. These numbers were as under:
Idia Mobile Sim card No 8991240200001008238 Airtel mobile Sim card No. 8991980604050198477 Mobile phone with sim card no 8991980000014964882
21. Nileshbhai Rameshbhai Joshi, PW 74, Exh 478, was the owner of Indica car, whose car, according to the prosecution, Ashish had hired and was used for the commission of the offence. This witness, however, turned hostile and did not support the prosecution.
22. Maheshbai Jayantibhai Chitara, PW 133, Exh 721, was engaged in the business of number plate and banner paintings. According to the prosecution, Ashish had got a fake number plate printed by this witness which was fixed on the Indica car Page 13 of 61 HC-NIC Page 13 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT used for the commission of the offence. This witness, however, turned hostile. His statement was recorded by the Executive Magistrate under section 164 of IPC in which, he had disclosed that Ashish had contacted him for painting the number plate of a specific number.
23. Maulikbhai Manharlal Anadkat, PW 77, Exh 492, was running the mobile shop business in the name of Bhawani Enterprise. He had the sim card agency of Airtel company. He had issued sim card of number 9998621835 to one Kajal Studio. According to the prosecution, Kajal Studio, in turn, had issued this number to accused No.1 Ashish but in the name of Prakash Darji.
24. Ajitbhai Ramdasbhai Kapadiya, PW 78, Exh 500 was employed as a salesman at the said Bhawani Enterprise. According to his deposition, he had handed over the sim card of the said number 9998621835 to Samirbhai Tanna and Kajal Studio for issuance of the same in the name of Prakash Darji.
25. Samirbhai Natwarlal Tanna, PW 84, Exh 512 was serving at Kajal Studio. He confirmed that number 9998621835 was issued from Kajal Studio after obtaining necessary documents. The documents were brought by a thin boy. The form carried a photograph of a different person. The photograph and the identity proof matched but were not of the said boy. The boy explained that the photograph was of his father who did not Page 14 of 61 HC-NIC Page 14 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT keep good health. The witness therefore obtained the signature of this boy on the form on behalf of his father and then sent these documents to the company.
26. Prakashbhai Jethabhai Darji, PW 91, Exh 524, was the person in whose name, the said mobile sim card was issued. He deposed that he had gone to Chotila during the Diwali vacation of the year 2006. At that time, he had lost his wallet which contained his passport size photograph, a duplicate driving license and his visiting card in the name of Laxmi Traders besides some cash. He was shown the form Exh 240 and stated that the form contained his photograph but not his signature. He was shown document Exh 241 to which he said that it was a copy of his driving license but here also the signature was not of his.
27. Ghanshyambhai Arjanbhai Solanki, PW 96, Exh 561, was working at the shop of complainant Jalarambhai. He deposed that since Piyush did not have identity proof, he had requested the witness to help him to take out a sim card. Accordingly, a sim card in his name was obtained by Piyush which had the number of 9898700070.
28. Aauchadbhai Ratnabhai Bhojani, PW 103, Exh 588, was the Executive Magistrate who had carried out the test identification parade of various accused including accused No.1, Ashish and accused No.7 Salim at the hands of different Page 15 of 61 HC-NIC Page 15 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT witnesses. The panchnama of such identification parade was produced at Exh 591. We may not refer to at much length the contents of the evidence of this witness of the panchnama since what would be crucial for us is whether the concerned witnesses identified the accused before the Court during their deposition or not.
29. Vinodbhai Ukabhai Koshiya, PW 113 Exh 632 was the person from whose shop according to the prosecution, the accused had purchased the knife used for the commission of the offence. He deposed that he had a shop in the Virpur station road area by the name of Krishna Novelty. He was selling cutlery, toys and other household articles. About six years back the police had brought one boy to his shop and asked him whether the boy had purchased a knife from his store or not. He confirmed that the boy had purchased four knives from his store. At that time, the boy was alone. Soon, another boy came there. He, however, did not purchase any articles. These boys had paid Rs. 500/- for the four knives. He confirmed that his statement was recorded by the Magistrate. He produced the bills for the sale of knife. He was shown muddamal articles the knife but stated that they were somewhat different from those sold by him. He was also called for test identification parade during which he had identified the two boys who had come for the purchase. Significantly, however, this witness was never called upon to identify the accused before the Court. We would refer to this aspect at a later stage. At this stage, we may only record Page 16 of 61 HC-NIC Page 16 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT that the purchase of the knives by the particular accused which knife was found to have been used for the commission of offence would be an important factor in favour of the prosecution. If the purchase of knife by a particular accused was, therefore, established, the prosecution could have claimed some benefit out of this factor. Before the Court this witness was not called to identify any of the accused and accordingly, did not point out before the Court if any of the persons present before the Court had purchased the knives from his shop.
30. Jasubhai Lalabhai Dabha, PW 126, Exh 692, was the Senior Jailor at Rajkot. He deposed that on 17.10.2006, Deputy Forest Conservative and Range Forest Officer had come to the jail for recording statement of Salim and Ashish with Court permission for such purpose. He had, therefore, called both these under trial prisoners to his office where the statements were recorded by the forest officers. Such statements were produced at Exh 693 and 694. He identified the accused before the Court. He clarified that Ashish refused to sign his statement Exh 694.
31. Under statement Exh 693, accused No.7 Salim Aamad Sumra had stated that at about 7:30 at night on 16.10.2006, he along with Ashish, Naresh @ Sarap had taken Piyush and entered the sanctuary where they had brought petrol for setting the body of Piyush on fire after killing him. He had lit the fire Page 17 of 61 HC-NIC Page 17 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT with the match stick after pouring the petrol. He admitted that he had entered the sanctuary unauthorizedly and also lit the fire.
32. Somewhat similar but differently worded disclosure was allegedly made by Ashish in the statement Exh 694 but, as noted, the statement was not signed by Ashish.
33. Dr. Hitesh Keshavlal Rathod, PW 130, was called to carry out the postmortem. Obviously, any postmortem in the conventional sense was not possible since all that the investigation could collect of the dead body was the remains of a few bones and the skull. Such articles were presented before the doctor in a sealed plastic bag. He found that such articles included the skull, separated teeth, pieces of bones of the body. He opined that the bones were of human being. The skull was of a male. From the skull, he could estimate the age of the deceased to be between 13 to 17 years. The bones were chewed by the wild animals.
In the cross examination, he agreed that the skull did not show the evidence of crushing injury.
34. Tansukhbhai Nathalal Aashra, PW 134, Exh 727, was the Officer from FSL. At the relevant time, he was posted as Scientific Officer, FSL Rajkot. Under his supervision and guidance, the police had collected various articles from the scene of the incident such as, a stone which had blood stains, the bones etc. He deposed that at the site, in an area of about Page 18 of 61 HC-NIC Page 18 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT half a kilometer, pieces of bones were found in scattered condition. At the site, there was a patch of about 4 ft. which was though wet, had the sign of burnt pieces of wood. He had instructed that the bones and other articles be sent to Gandhinagar laboratory for DNA testing.
He was called for the search of Indica car which was lying at the police station. This happened on 31.07.2006. Because of the rainfall, from the outside of the car no useful clues could be found. However, one handkerchief was found from the pouch of the front left seat. Upon closer scrutiny the handkerchief showed stray reddish stains. It appeared that the handkerchief was used for wiping a sharp instrument. On wiping with wet cotton swabs, presence of blood was seen.
35. Parasbhai Mansukhbhai, PW 139, Exh 757, was in the business of selling mobile sim cards in the name of Shiv Mobiles. He had sold mobile sim card with number 9824596630 to Naresh @ Sarap. He produced at Exh 758 list of different mobiles sold by him which included the present one.
36. Natubha Kalyansinh Wala, PW 140, Exh 762, deposed that he knew accused No.1, Ashish. Ashish had contacted him for hiring a house. He had come in white coloured Indica car. He had told Ashish that normally, he does not rent the house to a local person and would prefer a government servant. Ashish had told him that he needed the house for a medical representative. He had showed the house to Ashish and rented it Page 19 of 61 HC-NIC Page 19 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT for monthly rent of Rs. 3000/-. He had given the keys to Ashish. Later on, in the evening, he had gone to the house. The house was open and an unknown person was occupying it. He had inquired with this person about the luggage. This person said that he was Ashish's man and identified himself as Rajesh. This witness was shown two photographs of deceased Naresh and was asked whether the person at the house was the same as one in the photographs and he confirmed this. He had inquired with this person about whereabouts of Ashish and was told that Ashish had gone out for bringing food. He had insisted that the salesman who is coming to occupy his house may be put in touch with him. Next day, in the morning, again he went to the house and found that the house was open and nobody was present there. Later in the day, he heard about the possible involvement of Ashish in kidnapping of Piyush. He had, therefore, contacted the police and given the information which he had.
37. Mukeshbhai Bhikhubhai Rajyaguru, PW 143, Exh 800, had obtained a mobile sim card from New Kajal Studio with the number 9998621832. He deposed that after activating the sim card, the said sim card of Airtel company had worked for only a couple of minutes and thereafter, despite his repeated attempts for about one and half month, the number never worked.
38. Vinodbhai Talshibhai Dobariya, PW 149, Exh 830, deposed that he resided at Botad. He was shown a form for Page 20 of 61 HC-NIC Page 20 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT obtaining mobile sim card and stated that he had not signed it. The signature purported to be his was not his. He had never got the mobile sim card from Jamnagar. He had gone to Sanangpur with his two friends where his pocket was picked. The wallet had copies of his driving license, some money and his photographs.
39. Hiteshbhai Ganeshbhai Sudani, PW 163, Exh 921, had mobile shop in the name of Om Mobile. He had sold one mobile instrument to Piyush for which, he produced a bill at Exh 922. This showed a sale of Nokia 6708 mobile phone to Piyush Pujara on 15.06.2006 for a cost of Rs. 19,200/-.
40. Virjibhai Devjibhai Bala, PW 173, Exh 1001, was the Forest Officer at Hingolgadh at the relevant time. He had recorded the complaint for the offences under the Wild Life (Protection) Act. Under the instructions of his superior, he had gone to the Rajkot jail on 17.10.2006 to record the statements of the two accused which we have referred to at Exh 693 and 694. He also stated that Ashish refused to sign the statement Exh 694 without consulting his advocate.
41. Various articles collected during the course of investigation were sent for forensic analysis. The report of the FSL read with serological report Exh 1068 would show that the human blood of group 'O' was found from the soil collected from the scene of the incident in Hingolgadh forest area. The Page 21 of 61 HC-NIC Page 21 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT stone recovered from the said place also carried the marks of blood of group 'O'. The handkerchief recovered from the Indica car also had traces of blood of the same group. The defence would argue that the blood group of deceased Piyush was not established. It was also be pointed out that accused Nos. 1 and 7 both had blood group 'O'.
42. The scattered bones found from the scene of incident were matched with the DNA group of the parents of Piyush. The report of the Forensic Science Laboratory, Gandhinagar dated 20.09.2006 was produced at Exh 1218. The result of the analysis was as under:
"1. One of the allele of DNA Profile of teeth-Ex-D of the deceased matches with one of the respective allele in the DNA Profile of blood sample-Ex C (of the mother)
2. Non-maternal alleles of the DNA Profile of teeth-Ex-D (of the deceased) are present in the DNA Profile of blood sample-Ex-B (of father).
From the above observations, it is concluded that DNA profiles of Mr. Jalaram Keshavlal Thakkar (source of Ex B: Blood sample) & Mrs. Urmilaben Jalaram Thakkar (source of Ex.C) is consistent as biological Parent of the deceased Piyush Jalaram Thakkar (source of Ex D)."
43. We have not referred to various witnesses from the mobile service provider companies and the documents in the nature of call details between different mobile and landline Page 22 of 61 HC-NIC Page 22 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT telephone numbers on which the prosecution relies. The testimony of these witnesses being more in the nature of a formal presentation of the documents in the form of call data collected from the electronic source it would not be necessary to refer to the contents of such deposition at length. Since there are large number of documents, call details and such other related materials on record, to simplify, we may record the summary of the details, which are relevant for our purpose, which is as under:
(a) From accused No.1, Ashish, following mobile phones were recovered:
• Mobile phone with sim card number 9227700160 (call details Exh 540) • Mobile phone with sim card number 9228172017 (call details Exh 539) • Mobile phone with sim card number 9898514247 (call details Exh 707) • Mobile phone with sim card number 9824050756 (call details Exh 644)
(b) Naresh @ Sarap had the following telephones:
• 9824596630 • 9998621835 • 9898700070 (this was the mobile of deceased Piyush which was found from this accused) Page 23 of 61 HC-NIC Page 23 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT
(c) It appears that accused No.7 did not carry any mobile though the prosecution case is that his brother had a mobile which was used by accused No.7 on one or two occasions.
(d) The call details when processed would show that shortly before the incident, from the mobile phone number of accused No.1, 9227700160, 16 calls were made on telephone number 9824596630 used by Naresh @ Sarap which number was registered in the name of Vinod Darji. Likewise between 15.07.2006 to 17.07.2006, 23 calls were made from this number of Naresh @ Sarap to the telephone No. 9227700160 of accused No.1.
44. This, in the nutshell, is the evidence on record. On the basis of such evidence, learned counsel for the convicted accused first attacked the conviction of accused No.7, Salim Aamadbhai contending that there was insufficient evidence to hold that accused No.7 was responsible for kidnapping and murder of Piyush. Counsel submitted that the so-called discovery panchnama Exh 253 under which, the said accused is supposed to have shown the place of incident from where the remains of the body were found, has no validity in eye of law. He pointed out that the very same place and the remains of the body were shown to the police by accused No.1, Ashish as recorded in the panchnama Exh 277. There cannot be a discovery of an own fact.
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45. Counsel further submitted that the discoveries of the knife and parts of the number plate at the instance of this accused are also hugely doubtful. Earlier, a failed attempt was made when neither of these two objects were recovered. Later on, under panchnama Exh 413 a knife is stated to have been discovered at the instance of this accused. Even at that time, the parts of the number plate were not recovered. Yet another attempt was made during which apparently, it was shown under panchnama Exh 422 that the pieces of number plate were also found. He submitted that quite apart from such discoveries being quite unbelievable and therefore unreliable the mere discoveries of the articles would not prove the charge against the said accused.
46. There is no connection established between the said accused and the deceased or his family. Last seen together theory is also not propounded. The said accused did not carry any mobile. Admittedly he has not used any mobile to be in touch with any of the accused.
47. Drawing our attention to the statement of this accused recorded by the Forest Officers Exh 693 counsel would submit that such statement would be inadmissible in evidence. Since it was not a voluntary statement and it would also be hit by section 26 of the Evidence Act. Counsel relied on the decision of learned Single Judge of this Court in case of Ashokbhai Page 25 of 61 HC-NIC Page 25 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT Chaturbhai Devipujak and ors vs. State of Gujarat dated 29.10.2015 to contend that statement of an accused whether confessional or otherwise is not evidence within the meaning of sub section (9) of section 50 of the Wild Life (Protection) Act.
48. Counsel relied on certain other decisions on general principles to which reference may be made at an appropriate stage.
49. In connection with accused No.1 Ashish, counsel submitted that the entire case rests solely on circumstantial evidence. The proved circumstances do not form a complete chain to establish the guilt of this accused. Mere familiarity with the accused would not be sufficient. Howsoever strong suspicion, cannot substitute the requirement of sound proof of commission of the offence. He would point out that the statement Exh 694 stated to have been recorded by the Range Forest Officer was not signed by Ashish clearly pointing out that the statement was not voluntary.
50. On the other hand, learned APP Mr Patel opposed the appeal of the accused and supported the State appeal contending that the internal call details and the movements of the accused emerging from the position of the mobile towers from where such calls were made would establish that all of them were working in close connection with each other. Accused No.1 had the motive and also the means to commit the offence. Accused Page 26 of 61 HC-NIC Page 26 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT No.7 and deceased accused Naresh aided the accused No.1 in commission of the offence. The other accused had taken part in conspiracy and also taken active part in commission of the offence. In particular, accused No.2 Deepa @ Dipti had lured deceased Piyush into coming to an isolated place late at night posing to be an unknown lady admirer. He submitted that accused No.7 had also made two calls with the help of the mobile phone of his brother. The said accused had also shown the scene of incident. The knife and the pieces of number plate were also discovered at his instance. With respect to accused No.1, according to the counsel, there were large number of circumstantial factors pointing to his involvement.
51. Reliance was placed on decision of Division Bench of Bombay High Court in case of Emerico Dsouza vs. State through Deputy Conservator of Forests reported in 1994 Lawsuit (Bom) 267 to contend that Forest Officers acting under section 50 of the Wild Life (Protection) Act are not Police Officers and therefore, statement made to such officers be it confessional or otherwise, would be admissible evidence and would be hit neither by section 25 nor section 26 of the Evidence Act.
52. Learned advocate Mr. Thakkar for the complainant, in addition to the submissions made by the learned APP, submitted that there was sufficient evidence against the remaining accused and in particular, accused No.2 whose call details would Page 27 of 61 HC-NIC Page 27 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT establish live contact with the two convicted accused and deceased Naresh. He also pressed in service the revision petition for enhancement of the sentence of the convicts.
53. The case undoubtedly rests on circumstantial evidence. It is not necessary to refer to judicial pronouncements in support of the well settled legal proposition that, where a case, rests solely on circumstantial evidence, conviction of the accused can be recorded only if, the proved circumstances form a complete chain as to point unerringly to the guilt of the accused to the total exclusion of any theory to the contrary. Before, however, ascertaining for ourselves whether the proved circumstances, in the present case, form such a complete chain or not, it would be necessary to come to the conclusion as to which are such circumstances. This would be in the realm of assessment of evidence. Before undertaking this exercise, a few legal issues may be cleared.
54. First is with respect to the validity of the discovery of the parts of the dead body at the instance of the two accused i.e. Ashish and Salim Aamadbhai. We may recall, as per panchnama, Exh 277, recorded on 28.07.2006, accused No.1, Ashish led the police party and the panchwitnesses to the forested area in the sim of village Hingolgadh. The entire fleet had started from Rajkot and the jeep was first, as instructed by Ashish, driven upto Chotila. From Chotila, he guided the jeep through partly on dirt road and partly on the tar road. The jeep Page 28 of 61 HC-NIC Page 28 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT travelled and arrived at village Hingolgadh. Some 3 kilometers further down from the village, the jeep was stopped. Ashish, accused No.1 led the police party and the panch-witnesses to the forested area by first crossing the stone wall. After walking some distance into forest area, he showed a place where a burnt spot was found. Around the area, with great difficulty, the police party could collect a human skull and few teeth and pieces of bones. Sofar as this panchnama is concerned, certainly it would qualify as discovery panchnama since the place would be totally within the knowledge of the accused. He volunteered to show the place and, in confirmation of such fact so disclosed, parts of the human body were found. By very description and the video-graph portion of the panchnama which was accepted and which was shown to us during the course of arguments, the terrain was a completely forested area, away from main road and from any human movement. The dead body in the burnt condition was apparently attacked by the wild animals. The bones were found scattered over a vast area. We may recall, the doctor who carried out the postmortem, had certified that all the bones were chewed at the edges by the wild animals. Insofar as the discovery of the parts of the dead body from the scene of the incident at the instance of accused No.1 is concerned, the same would be admissible and reliable.
55. Once this place was already shown to the Investigating Agency by accused No.1 and once the parts of the dead body were already found by the police, the question of validity of yet Page 29 of 61 HC-NIC Page 29 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT another discovery of the parts of the body at the instance of another accused would arise. In case of Sukhvinder Singh and ors vs. State of Punjab reported in (1994) 5 SCC 952, the Supreme Court observed as under:
"16. The first piece of circumstantial evidence relied upon against them revolves around the recovery of the dead body of Varun Kumar from the house of Sukhvinder Singh and his parents on the disclosure statement made by Sukhvinder Singh, Sukhdev Paul and Puran Chand Ex. PW.10/B, EX. PW10/C and Ex. PW10/D respectively. We are surprised at the manner in which the disclosure statements were recorded by the investigating agency and relied upon by the Designated Court. That Section 27 of the Evidence Act is an exception to the general rule that a statement made before the police is not admissible in evidence is not in doubt. However, vide Section 27 of the Evidence Act, only so much of the statement of an accused is admissible in evidence as distinctly leads to the discovery of a fact Therefore, once the fact has been discovered Section 27 of the Evidence Act cannot again be made use of to 're-discover* the discovered fact. It would be a total misuse - even abuse-of the provisions of Section 27 of the Evidence Act. From the testimony of PW14, SI Kashmir Singh it transpires that in the presence of PWs Hari Dutt and Jugal Kishore during the interrogation by SI Amar Singh, Sukhavinder Singh appellant made a disclosure statement to the effect that he alongwith others had concealed the dead body of Varun Kumar in the stack of hay in the room and that he could get the same recovered. His disclosure statement Ex. PW10/B was accordingly recorded which was signed by him and attested by the panch witnesses. Except for the discovery of the dead body of Varun Kumar on the basis of the disclosure statement of Sukhvmder Singh, EX.FW10/B, no other portion of the statement of Sukhvmder Singh implicating himself and others with the commission of the crime is admissible in evidence. After the disclosure statement was made by Sukhvinder Singh disclosing as to where the dead body of Varun Kumar had been Page 30 of 61 HC-NIC Page 30 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT concealed and from where it could be recovered, the recording of the disclosure statements of Sukhdev Paul and Puran Chand Ex. PW10/C and Ex. PW10/D was a wholly impermissible exercise and an obvious attempt to rope in Sukhdev Paul and Puran Chand with the aid of Section 27 of the Evidence Act. Since, the information had already been given by Sukhvinder Singh, appellant in his disclosure statement Ex. PW10/B, the (wo subsequent statements Ex. PW10/C and Ex.PW10/D were not admissible in evidence because at the best they were leading to the "re-discovery of a fact aleady disclosed and capable of discovery. It has been admitted by PW14 that the disclosure statement, Ex. PWIO/B, made by Sukhvinder Singh was the first in point of time and that he had disclosed where the dead body had been concealed and that he could point out the place and gel it recovered. The investigating officer should have immediately acted upon disclosure statement Ex. PW10/B, rather than wait and record two more disclosure statements, as if the authenticity of recovery of dead body could be achieved by the mere number of disclosure statements leading to the discovery of one and the same fact. In the face of the admission of PW14 as noticed above, it is obvious that the so-called disclosure statements of Sukhdev Paul and Puran Chand Ex. PW10/C and Ex. PW10/D were not admissible in evidence and the Designated Court fell in error in relying upon the same. Admittedly, so far as Puran Chand is concerned, apart from the disclosure statement Ex. Pw10/D, there is no other piece of circumstantial evidence relied upon by the prosecution and once we rule out of consideration the disclosure statement allegedly made by Puran Chand Ex, PW10/D, the conclusion is inescapable that the prosecution has not been able to establish the case against Puran Chand beyond a reasonable doubt and there is no circumstance which can connect him with the alleged crime. The prosecution has led no evidence to show any connection inter-se so far as the three appellants are concerned."
56. In the present case also, very similar facts emerge. Having recorded the disclosure statement of accused No.1, Ashish, and having visited the site where the parts of dead body were found, Page 31 of 61 HC-NIC Page 31 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT yet another attempt was made by the Investigating Agency to show discovery of the same place and the body parts at the instance of accused No.7. Such statement was recorded on 30.07.2006 and the discovery was also carried out on the same day. Once the scene of the incident was already known to the Investigating agency and it was also verified that the parts of the dead body were lying there, thereafter, there was no further question of recording disclosure statement of accused No.7 or to seek confirmation of such a statement through the aid of discoveries.
57. Learned APP had placed much reliance on statements of the witnesses recorded by the Executive Magistrate under section 164 of the Criminal Procedure Code in context of such witnesses having turned hostile and not supporting the prosecution before the Court. It is well settled that the statements recorded by the Magistrate under section 164 of the Code do not carry any evidentiary value. Statement of a witness does not form independent evidence. It is the statement of a witness before the Court in the form of deposition which alone would qualify as evidence. Merely because the statement of a particular witness was recorded by the Magistrate under section 164 of Cr.P.C., the requirement of such a witness coming before the Court and deposing the facts before the Court and standing the test of cross-examination would not be done away with.
58. We may now come to the admissibility of the two Page 32 of 61 HC-NIC Page 32 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT statements, Exh 693 and 694 stated to have been made by accused No.7 and accused No.1 respectively to the Forest Officers. We may recall, the statements were recorded broadly to the effect that these accused had entered the forest area unauthorizedly alongwith Naresh and Piyush. They had tresspassed the forest area and set a portion on fire, while trying to dispose of the dead body of Piyush. Such statement was recorded when these accused were in jail and in judicial custody. The statements were recorded by the Forest Officers with the permission of the Court and in presence of the Jailor.
59. Before deciding the admissibility of these statements, we may also recall that, accused No.1, Ashish refused to sign the statement Exh 694 purported to have been made by him. Quite apart from the admissibility of any statement be it a confession, admission, inculpatory or exculpatory statement by the accused the very foundation of the liberty to act on such statement would proceed on the statement being voluntary in nature. Any statement which tends to implicate an accused or is a circumstance or a factor against him, even if admissible in evidence, could be relied upon by the prosecution only if it is established that such a statement was voluntarily made. Thus, section 27 of the Evidence Act, even though provides for an exception to the rule of non-admissibility of a confessional statement made to a police officer or made while an accused is in custody of a police officer, primarily requires that the Page 33 of 61 HC-NIC Page 33 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT statement is voluntarily made. When Ashish thus, refused to sign the statement, it would automatically establish that he did not agree to the contents thereof. His insistence of not signing the statement can also be seen as opposition to whatever might have been recorded in such a statement. In other words, even before the statement was formally made, he refused to be bound by it. Insofar as accused No.1 Ashish is concerned, this statement has, in any case, no evidentiary value. However, since such a statement duly signed by accused No.7, Salim is also on record, we may examine, the legal aspects touching such a statement.
60. We may recall, admissibility of this statement was attacked by the defence on two counts:
(i) That the Forest Officer under section 50 of the Wild Life (Protection) Act does not have any power to record the statement of the accused. Reliance was placed on the decision of learned Single Judge of this Court in case of Ashokbhai Chaturbhai Devipujak and ors vs. State of Gujarat (supra).
(ii) That in any case, any such confessional statement would be hit by section 26 of the Evidence Act.
61. Chapter VI of the Wild Life (Protection) Act pertains to prevention and detection of offences. Section 50 contained in the said chapter pertains to power of entry, search, arrest and Page 34 of 61 HC-NIC Page 34 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT detention and reads as under:
"50. Power of entry, search, arrest and detention.--
(1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer or any forest officer or any police officer not below the rank of a sub-inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act,--
(a) require any such person to produce for inspection any captive animal, wild animal, animal article, meat, 1[trophy, uncured trophy, specified plant or part or derivative thereof] in his control, custody or possession, or any licence, permit or other document granted to him or required to be kept by him under the provisions of this Act;
(b) stop any vehicle or vessel in order to conduct search or inquiry or enter upon and search any premises, land, vehicle or vessel, in the occupation of such person, and open and search any baggage or other things in his possession;
(c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy, or any specified plant or part or derivative thereof, in respect of which an offence against this Act appears to have been committed, in the possession of any person together with any trap, tool, vehicle, vessel or weapon used for committing any such offence and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant, and detain him:
Provided that where a fisherman residing within ten kilometres of a sanctuary or National Park, inadvertently enters on a boat, not used for commercial fishing, in the territorial waters in that Page 35 of 61 HC-NIC Page 35 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT sanctuary or National Park, a fishing tackle or net on such boat shall not be seized.
(3) It shall be lawful for any of the officers referred to in sub-
section (1) to stop and detain any person, whom he sees doing any act for which a licence or permit is required under the provisions of this Act, for the purposes of requiring such person to produce the licence or permit and if such person fails to produce the licence or permit, as the case may be, he may be arrested without warrant, unless he furnishes his name and address, and otherwise satisfies the officer arresting him that he will duly answer any summons or other proceedings which may be taken against him.
(3A) Any officer of a rank not inferior to that of an Assistant Director of Wild Life Preservation or 5[an Assistant Conservator of Forests], who, or whose subordinate, has seized any captive animal or wild animal under clause (c) of sub- section (1) may give the same for custody on the execution by any person of a bond for the production of such animal if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.] (4) Any person detained, or things seized under the foregoing power, shall forthwith be taken before a Magistrate to be dealt with according to law 6[under intimation to the Chief Wild Life Warden or the officer authorised by him in this regard].
(5) Any person who, without reasonable cause, fails to produce anything, which he is required to produce under this section, shall be guilty of an offence against this Act.
(6) Where any meat, uncured trophy, specified plant or part of derivative thereof is seized under the provisions of this section, the Assistant Director of Wild Life Preservation or any other officer of a gazetted rank authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer may arrange for the disposal of the same in such manner as may be prescribed.
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(7) Whenever any person is approached by any of the officers referred to in sub-section (1) for assistance in the prevention or detection of an offence against this Act, or in apprehending persons charged with the violation of this Act, or for seizure in accordance with clause (c) of sub-section (1), it shall be the duty of such person or persons to render such assistance.
(8) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild Life Preservation or (9) [an officer not below the rank of Assistant Conservator of Forests authorised by the State Government in this behalf] shall have the powers, for purposes of making investigation into any offence against any provision of this Act,--
(a) to issue a search warrant;
(b) to enforce the attendance of witnesses;
(c) to compel the discovery and production of documents and material objects; and
(d) to receive and record evidence.] (9) Any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate provided that it has been taken in the presence of the accused person."
62. It can thus be seen that under sub section (8) of section 50, any officer not below the rank of an Assistant Director of Wild Life Preservation or an officer not below the rank of Assistant Conservator of Forests for making investigation into any offence against any provision of the Act, would have power to issue a search warrant, to enforce the attendance of witnesses and to compel discovery and production of documents and Page 37 of 61 HC-NIC Page 37 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT material objects as also to receive and record evidence. This sub-section is couched in non-obstante clause and such powers would be available notwithstanding anything contained in any law for the time being in force. Under sub section (9) of section 50 any evidence recorded under clause (d) of sub section (8) would be admissible in any subsequent trial before a Magistrate provided that it has been taken in presence of the accused person.
63. Under sub section (8) of section 50 thus, the concerned officer would have wide powers of issuing search warrant, enforce the attendance of witnesses, to compel discovery and production of documents and material objects and most importantly, receive and record evidence. This officer, however, does not have power of arrest while he carries on investigation as referred to under sub section (8) of section 50. We are not oblivious to the provision contained in sub section (3) of section 50, under which, it is lawful for any officer referred to in sub section (1) to stop and detain any person, whom he sees doing any act for which a license or permit is required under the said Act, for the purposes of requiring such person to produce the license or permit and if such person fails to produce the license or permit, he may be arrested without warrant, unless he furnishes his name and address, and otherwise specifies the officer arresting him that he will duly answer any summons or other proceedings which may be taken against him. Powers of Page 38 of 61 HC-NIC Page 38 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT detention for the purpose of requiring a person to produce license or permit cannot be equated with the power of a police officer-in-charge of the police station to arrest a person upon disclosure of commission of a cognizable offence. Even the power of arrest envisaged in sub section (3) of section 50 are extremely limited and can be exercised only if the person concerned fails to produce the license or permit. This is also further subject to a rider that no such power would be exercised, if such a person furnishes his name and address and satisfies the officer that he will duly answer any summons or other proceedings which may be taken against him. Thus, only if the person concerned fails to produce the permit or the license and further fails to furnish his name and address and satisfy the officer arresting him that he will answer any summons or produce things which may be taken against him, such power of arrest cannot be exercised. These powers of arrest are thus extremely limited. The Forest Officer acting under sub section (8) of section 50 is thus, not a Police Officer and any statement made to him whether inculpatory or otherwise would, therefore, not be hit by section 25 of the Evidence Act. In this context, we may refer to the decision of Division Bench of the Bombay High Court in case of Emerico Dsouza vs. State through Deputy Conservator of Forests (supra), in which, while interpreting the similar provision contained in section 72 of the Indian Forest Act, following observations were made:
"6. ....... ..... .... ....
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It is urged that this provision empowers the Range Forest Officer to carry out the search under the Code of Criminal Procedure. In sub-section (2) of section 72, it is laid down that the evidence recorded by the Forest Officer shall be admissible in any subsequent trial before the Magistrate provided that it has been taken in presence of the accused persons. According to him, this provision almost empowers the Range Forest Officer to discharge the Rule of the police officer. He has further relied on sections 64 and 65 of the Forest Act., which enable the Forest Officer to arrest the person without warrant and also to release the person involved in the forest offence on bond.
7. The forest offences are punishable under sections 33 and 26 of the Forest Act. Section 33 relates to reserved forests and offence committed therein whereas section 26 deals generally with the offences for falling trees, tresspassing in the forest land, putting quarries of stones etc. Basing his arguments on this provision, the learned advocate has contended that this provision clearly relates to the duties performed by the police station officer and hence the statements are hit by the above provisions of the Indian Evidence Act.
8. The learned P.P., on the other hand, has contended that so long as the Forest Officer is not empowered to file the charge sheet or that so long as he cannot investigate as required under the Code of Criminal Procedure, the question of the said officer being branded as a police officer can not be sustained.
9. The learned P.P. has relied upon the observations of the Supreme Court in in the case of Baduka Joti Svant v. The State of Mysore and Attorney General of India. The provisions of section 21 of the Central Excise and Salt Act were referred to and the Court has observed that the statements made by an accused person to the Deputy Superintendent of Customs and Excise would not be hit by section 25 of the Evidence Act. It was held that the officers were not empowered to file charge sheet under section 173 of the Code of Criminal Procedure and hence ex-facie, the above provision of section 21 cannot be read Page 40 of 61 HC-NIC Page 40 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT as the customs officers being police officers. Section 21 empowers the Central Excise Officer to send the person arrested to a Magistrate and, therefore by virtue of that authority, he can proceed to enquire into the charges. He was entitled to exercise the same powers as are conferred on the officer in-charge of the police station. Inspite of this, it was observed that those officers were not the police officers.
10. While referring to section 21, the Court was pleased to compare the provisions of this section with the provisions of section 70(3) of the Bihar and Orissa Excise Act. Under the Bihar and Orissa Excise Act, it was clearly provided that the Central Excise Officer shall be deemed to be an officer in- charge of the police station and the area under his charge shall be deemed to be a police station. In that background, the Excise Officer was deemed to be the police officer. The Court, however, held that section 21 of the Centre Excise and Salt Act, 1944 could not be equated with the Bihar and Orissa Act and, therefore, the Excise Officer could not be deemed to be the police officer.
64. We are in respectful agreement with the view expressed. We may therefore safely conclude that the officer acting under section 50 of the Wild Life (Protection) Act cannot be deemed to be a police officer.
65. Insofar as objection to the admissibility of the statement on the premise of section 26 of the Evidence Act is concerned, we may recall, that under the said section, no confession made by any person whilst he is in the custody of a police officer would be admissible in evidence unless made in the immediate presence of a Magistrate. In the present case, however, the statement of the accused No.7 was recorded by the Forest Page 41 of 61 HC-NIC Page 41 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT Officer while he was in judicial custody. There is a clear distinction between the custody of an under trial prisoner being either with the police while under interrogation or being in the nature of judicial custody while he is posted in a jail pending further trial where access to the investigating officer in the nature of a custodial interrogation is not available.
66. In case of Imam Din vs. Emperor reported in AIR 1934 Lahore 75 the Division Bench of the Supreme Court considered the case where a confessional statement was made by an accused to his fellow prisoners while he was in judicial lockup. It was argued that such a statement would be in presence of the policeman guarding the lockup and that therefore, such a statement would not be admissible in evidence. This contention was negatived by the Court making following observations:
"The second contention of the learned counsel is also equally untenable. At the time when the confession is said to have been made, the accused was in Magisterial custody as opposed to police custody. The presence of the policemen whose duty it was to guard the lock up is quite immaterial. It is clear from the Sub Inspector's own statement that he could not even approach the accused without the permission of the Sub Divisional Magistrate who was in charge of the lock up. It was held in Nadir v. Emperor that a confession made by an accused person, while he was in the custody of a jailor, is admissible in evidence notwithstanding that a police officer was present at the time when the confession was made. In Queen Empress v. Tatya (2), which was followed in the aforesaid ruling, it was held that the custody of the keeper of a jail in a Native State, who is not a Page 42 of 61 HC-NIC Page 42 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT police officer, does not become that of a police officer, merely because his subordinate the warders of the jail, are members of the police force of that State. In the absence of any suggestion of a close custody inside the jail such as may possibly occur when an accused person is watched and guarded by a police officer investigating an offence, S. 26 Evidence Act, does not exclude such a jailor from giving evidence of what the accused told him while in jail. The learned counsel for the appellant referred to Emperor v. Mallangowda. The facts of that case were however entirely different. In that case, the accused, an under trial prisoner, was sent up by the Magistrate in whose lock up he was, in the custody of two policemen, to a hospital for treatment. The policemen made him over to the doctor and waited in the verandah to take him back. While with the doctor in his room, the accused made a confession of his guilt. It was held that the confession was excluded by Section 26, Evidence Act, because the accused who was in police custody up to his arrival at the hospital remained in that custody while the policemen were standing outside in the varandah. It is clear that in that case the confession was made when the accused had been removed from the custody of the Magistrate and placed in the custody of the police. I am clearly of opinion that the learned Sessions Judge rightly allowed the confession to be proved."
67. There is yet another angle to the admissibility of this statement though not in so many words canvassed before us and it is the application of clause (3) of Article 20 of the Constitution. As is well known, Article 20 guarantees three basic fundamental rights to an accused. Clause (3) of Article 20 provides that no person accused of any offence shall be compelled to be a witness against himself. This right is also often times described as a right of silence of an accused. In other words, no accused can be compelled to stand in a witness box and can be compelled to give evidence. An accused in Page 43 of 61 HC-NIC Page 43 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT essence would have a right of silence leaving the entire burden to prove the charge on the prosecution. The question however is, would this principle apply to the present case? We may recall, the statement Exh 693 of accused No.7 was recorded by the Forest Officers in connection with the offence under the Forest Act. At the time when such statement was recorded, the accused was already in judicial custody in case of kidnapping and murder of Piyush while he was not yet shown to be accused for offence under Wild Life (Protection) Act. Insofar as Wild Life (Protection) Act is concerned, such a statement may therefore, be still admissible. However, in our opinion, such a statement cannot be proved against the accused in connection with the offence of kidnapping and murder. This is so for the reason that by the time his statement was recorded, he was already an accused. He was subjected to remand and was sent to judicial custody pending further investigation. Under sub section (8) of section 50 of the Wild Life (Protection) Act, the competent Forest Officer would have the powers to issue a search warrant, to enforce attendance of witness, to compel the discovery and production of documents and material objects and to receive and record evidence. As part of the exercise of such powers, it would also be open for the Forest Officer to compel any person to make a statement. Such a person would have no choice of refusing to disclose any information whether inculpatory or otherwise, which may be demanded by the Forest Officer and in terms of sub section (9) of section 50 as long as such a statement was voluntarily made, and was in the nature of Page 44 of 61 HC-NIC Page 44 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT evidence recorded under clause (d) of sub section (8), would also be admissible in subsequent trial before a Magistrate as long as the same was taken in presence of the accused person. On one hand therefore, as the scheme of sub section (8) of section 50 unfolds, a person would be under the duty to attend before the Forest Officer as a witness, submit to the discovery and production of documents and material objects demanded and to give evidence as may be recorded by the competent Forest Officer. On the other hand, if such a statement is made admissible and allowed to be proved against him in a case where he is already made an accused, it would certainly breach his right of silence guaranteed under clause (3) of Article 20 of the Constitution.
68. We are unable to persuade ourselves that under clause (d) of sub section (8) of section 50, the concerned Forest Officer would not have the power to record a statement. The learned Single Judge in case of Ashokbhai Chaturbhai Devipujak and ors vs. State of Gujarat (supra) has taken a contrary view which we find unable to concur with. Sub section (8) of section 50 of the Wild Life (Protection) Act is worded in an expansive manner and clothes the competent Forest Officer with wide powers of issuance of a search warrant of compelling the attendance of witness, discovery and production of documents and material objects as also to receive and record evidence. Recording the statement of any person which may or may not be eventually relied upon as evidence in a subsequent trial is Page 45 of 61 HC-NIC Page 45 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT certainly a power enjoyed by such an officer. As long as the maker of the statement is not accused in any case of offence under the Wild Life (Protection) Act, such a statement would also be admissible in evidence against himself if later on, he is arraigned as an accused whether such a statement is inculpatory or exculpatory. Parallel statutory provisions are found in number of other statutes. For example, section 67 of the Narcotic Drugs and Psychotropic Substances Act refers to the power of a competent Officer to call for information from any person for specifying whether any contravention of the provisions of the said Act has been made or not, to require any person to produce or deliver any document or thing useful or relevant to such enquiry and to examine any person acquainted with the facts and circumstances of the case. Not being the Police Officer even inculpatory statement made by a person when he was yet not made an accused is held admissible in evidence in a later trial, in which he may be facing the charges. Similar provision can be traced under section 108 of the Customs Act where the Customs Officers have the power to record statement but not being equated with the position of a police statement, such statement would be admissible in evidence against the maker of the statement. To conclude, even the statement of accused No.7 Exh 693 recorded by the Forest Officer under section 50(8) of the Act would not be admissible. The statement Exh 694 stated to have been made by accused No.1 Ashish would be inadmissible on the additional ground that he refused to sign such a statement.
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69. With this legal clarity, we may piece the evidence in form of the circumstances successfully brought on record by the prosecution:
(A) The fact, that deceased Piyush and accused No.1, Ashish knew each other and had friendly relations is duly established on record. The evidence of the first informant Jalarambhai, PW 1, Exh 179, is sufficiently clear and substantially unchallenged on this aspect. According to this witness, Ashish for a brief while before the incident was engaged in the same business of imitation jewelery. Piyush would also attend the family shop in his spare time after college hours. Deceased Ashish had also tried his hand at the same business alongwith his uncle whose shop was situated close to that of Jalarambhai. In fact, for about three to four months, Ashish had rented Jalarambhai's shop next to his own. Jalarambhai also referred to Ashish borrowing money from his son Piyush occasionally. Once Piyush had lent him Rs. 1 lac for his expenses;
B. Piyush had left his house at about 10:30 at night on 14.06.2006 saying that he would return soon. Soon thereafter, as per the testimony of Jalarambhai, he received a phone call at his shop from the mobile number of Piyush. An unknown person first spoke to Jalarambhai and threatened that Piyush had become headstrong and he may be liquidated. The caller also Page 47 of 61 HC-NIC Page 47 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT put Piyush on line who told Jalarambhai that he was in custody of the callers and that he may act according to their instructions;
C. When Jalarambhai immediately contacted his house and then Piyush's friend Hiren, he learned that Piyush had left home on his motorcycle. Hiren told him that he had gone towards Shastri maidan;
D. Hiren immediately went to the place and found Ashish's motorcycle abandoned with the keys still in the ignition;
E. When Jalarambhai with his family members and friends of Piyush failed to search the boy finally, at about 4 O'clock in the early morning, lodged a missing person's report in the police station;
F. Next morning, at about 10:30, the caller called on the mobile phone of nephew of Jalarambhai and spoke to Jalarambhai and referred to the ransom demand. The amount, place and time of delivery would be indicated later;
G. Ashish, accused No.1 himself was not at home during this period and he claimed to be away on business work. His father Kapil Nanda, PW 152, Exh 837, though turned hostile, in part supported the prosecution insofar as his contact with Page 48 of 61 HC-NIC Page 48 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT Jalarambhai and the son's movement around the same time are concerned. He deposed that Jalarambhai had called him up on the phone inquiring about Ashish since Piyush was not found. In turn, he called up Ashish and was told that he was away for work and would return shortly. Ashish, accordingly, returned home on 16.06.2006 and the witness informed the Rajkot Police about the same;
H. The fact, that Piyush had never returned home after he went missing on 14.06.2006 and was killed at the forested area of Hingolgadh has also been established beyond doubt. The evidence of witnesses would show that in the forested area of Hingolgadh, a small patch of burnt grass was found. From near this place, scattered human skull and bones were recovered. It is true that under the condition in which, such human body parts were found, identification of the dead body was simply out of question. However, with the means of scientific technology, the prosecution could establish that the person who was done to death at the said site was none other than Piyush. This was with the aid of DNA testing. The skull, loose teeth and other bones recovered from the place were sent for scientific analysis. These body parts were matched with the DNA profile of the parents through the aid of their blood samples. The expert opinion was that Jalarambhai and his wife were the parents of the person whose bones were found from the said site. In no uncertain terms thus, it was established that the dead body was that of Piyush;
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I. Though the defence would argue that there was nothing
on the record to suggest that Piyush had blood group 'O', the same is nothing but a necessary corollary to our conclusion that the skull and the other body parts recovered by the prosecution from the site were those of Piyush. The blood found from the ground and from the stone allegedly used for hitting Piyush both carried human blood of group 'O'. We have therefore, no hesitation in holding that Piyush had the blood group 'O'. This would be relevant when we refer to the serological report concerning other articles seized by the investigation;
J. The fact that Ashish was using an Indica car at the same time has also been established. We are conscious that Nileshbhai Joshi, PW 74, Exh 478 from whom Ashish had allegedly rented the Indica car, turned hostile. We are also conscious that Maheshbhai Chitara, PW 133, Exh 721, whom Ashish had allegedly instructed to prepare a fake numberplate for the said car, also turned hostile. However, Natubha Kalyansinh Wala, PW 140, Exh 762 from whom Ahsish had rented a house had supported the prosecution. He had referred to the meeting with Ashish in connection with renting the house when Ashish had come in an Indica car. We have no reason to discard the version of this witness;
K. This witness would also establish that the Ashish was
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working closely with Naresh @Sarap around the same time. We may recall, Natubha had visited the house after renting it to Ashish for occupation of a salesman. When he went there he found an unknown person at the house. When inquired, he was told that Ashish had gone out for fetching food. Next morning he went again to verify but found the house was open and unoccupied. When showed the photographs of Naresh who had then died, the witness identified him as the person who was occupying the said house;
L. Under the panchnama Exh 277, Ashish had made a disclosure statement and led the police party to the site of the murder where the skull and stray bones of the human body were found. We have already discussed at length the reason for accepting such disclosure statement under Exh 277 at the instance of accused No.1 Ashish while discarding the later so- called disclosure of the same place and the dead body at the instance of accused No.7 Salim;
M. We may also recall, from the Indica car seized by the police with the aid of the Forensic experts, a handkerchief was recovered. This handkerchief showed presence of blood stains apparently made while wiping out a sharp edged weapon. When sent for forensic analysis, these stains turned out to be those of blood of group 'O';
N. The mobile numbers recovered from accused No.1 Ashish
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and from the dead body of deceased Naresh @ Sarap also showed a peculiar pattern. One of the mobile sim cards used by accused No.1 was registered in the name of Prakashbhai Darji, PW 91, Exh 524. He, however, claimed that he had never applied for such a mobile. He had lost his wallet in which a copy of his driving license and photographs were there. This was also corroborated by the mobile provider agencies. The witness pointed out that when the application form for sim card was presented, the photograph was not that of the present accused. It was claimed that his father is unwell. He instead put a signature for the father. Likewise, Sarap was also using a sim card issued in the name of Vinod Dobariya, PW 149, Exh 830 who also claimed that he had never applied for such a sim card. His pocket was picked. The wallet contained his personal details. It is true that the same sim number was apparently issued to one Mukesh. The evidence would, however, show that the sim was activated for barely couple of minutes after which, the sim card never worked for over month and a half. The mobile sim of deceased Piyush was also found from Sarap. We also have evidence on record of Piyush having purchased Nokia 6708 phone from Hiteshbhai Sudani, PW 163, Exh 921 and securing of a sim from Ghanshyam Solanki, PW 96;
21.02.2017 O. The Nokia mobile instrument of deceased Piyush was discovered at the instance of accused No.1 from his house.
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Learned counsel for the defence had however, argued that the house was previously searched during which time no such recovery was made. The prosecution version of the instrument being found later should, therefore, be discarded. We may, however, recall that the telephone instrument was hidden carefully folded in a plastic bag between sliding shutters of the bathroom window. This in addition to establishing the fact that the instrument hidden was exclusively within the knowledge of accused No.1 would also show that it was not easily traceable and it was entirely possible that during the search of the house, it was not found by the police;
P. Under panchnama, Exh 378 the Investigating Agency had recovered the clothes of accused No.1 from the house of his father. These clothes had blood stains of the group 'O';
70. We may also refer to some of the circumstances which the prosecution would press in service which, according to us, were not established. These circumstances are the follows:
A. As noted, the prosecution places reliance on the two statements made by accused Nos. 7 and 1 before the Forest Officers which were produced at Exhs 693 and 694 respectively. We have given detailed reasons why we hold that these statements would not be admissible in evidence. The so called discoveries of the knife and the pieces of number plate on the Indica car at the instance of accused No.7 also do not inspire Page 53 of 61 HC-NIC Page 53 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT confidence. We may recall, earlier a failed attempt at recovering these articles was made. Subsequently, it was shown that under panchnama Exh 413, accused No.7 led the police party to a spot on the highway to Rajkot from where the knife was recovered. Even during this exercise, the pieces of number plate were not found and further. The search was abandoned. Subsequently, under panchnama Exh 422, it was shown that accused No.7 led the police party to a place from where the pieces of the number plate were found. These multiple attempts and the manner, in which, such discoveries are stated to have been made leave us under grave suspicion regarding the correctness and truthfulness of the discoveries. Both the objects i.e. knife as well as the pieces of number plate were found from the side of the highway. If these objects were, as stated by accused No. 7, were thrown from a moving car, unless he had made a mental note of some landmark where the objects were thrown, it seems highly improbable that a person can recall the spot where the articles were discarded so as to be able to recover it several days later;
B. The investigation of the two accused, who according to the prosecution, had purchased the knife from Vinodbhai Koshia, PW 113 has also not been established. In his deposition before the Court, he stated that one boy came to his shop and selected four knives for purchase. Sometime later, another boy joined him. He was paid Rs. 500/- for the purchase of these four knives. Before the Court, this witness was not asked to identify any of the accused. We therefore do not have any reliable Page 54 of 61 HC-NIC Page 54 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT evidence of any of the accused and if so, which one had gone to the shop of Vinodbhai Koshia to purchase the knives. The contention of the learned APP that this witness had identified accused No.1 during the test identification parade, would not be sufficient. Test identification parade is conducted for identification of the accused when the memory of the witness is fresh. This also convinces the investigating agency that the investigation is proceeding in the right direction. Successful identification during test identification parade lends credence to the identification of an accused before the Court later. However, it is the identification of an accused before the Court which forms the substantive piece of evidence. Mere identification during test identification parade when the accused is not identified before the Court by the witness would not aid the prosecution.
71. The above noted proved and unproved circumstances may be applied viz-a-viz the convicted accused. We may first take up the case of Salim Aamadbhai, accused No.7. Against him, there are virtually no circumstances which will involve him in commission of the offence. As recorded, the discoveries of the knife and the pieces of number plate at his instance were not reliable. He had not been using any mobile phone so as to establish his movements or being in touch with any of the other accused. The prosecution would though contend that the brother of this accused had a mobile phone which was used by him twice. However, there is nothing on the record to establish this Page 55 of 61 HC-NIC Page 55 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT allegation. In any case, mere use of mobile phone on two occasions for talking to any of the accused by itself would not be sufficient to establish the charge against accused. If we discard the discoveries, the panchnama Exh 253 of scene of incident from where the parts of dead body were found, since as discussed earlier, the said place and the body parts were already shown to the police by accused No.1 earlier and if we also discard the statement of this accused made before the Forest Officers, there is little other evidence available against him to connect him with the commission of the offence. In our opinion, the Trial Court therefore, committed error in convicting the said accused.
72. In so far as accused No.1 is concerned, we find following circumstances involving him with the commission of the offence:
(i) He was known to the deceased and his family. In fact, he was a friend of deceased Piyush. In the past, he had borrowed money from Piyush for his expenses;
(ii) He was also not at his house during the entire period when the kidnapping took place and a few days after that under the pretext that he was away for his business work;
(iii) He had hired Indica car from which, a handkerchief containing blood stains were found. The serological expert Page 56 of 61 HC-NIC Page 56 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT opined that the stains were made while wiping out a sharp edged instrument. The blood on the handkerchief was analyzed as of group 'O' same as that of the deceased;
(iv) The mobile telephone instrument of the deceased was discovered at the instance of the accused from his house;
(v) The scene of incident which was a forested area and completely desolate and out of bounds from any human movements was shown by this accused from where the skull and other bones were discovered;
(vi) The clothes of accused No.1 were recovered from the house. Such clothes also carried stains of blood of group 'O';
(vii) Several calls made between this accused and deceased Naresh @ Sarap from various sim cards used including that of the deceased Piyush on couple of occasions, would also be an additional factor;
73. If we carefully put the pieces of such circumstantial evidence together, it clearly emerges that accused No.1 was undoubtedly connected with the commission of the offence. The entire chain of circumstantial evidence is complete leaving no manner of doubt about the involvement of this accused. Most significant of these factors are that it was this accused who Page 57 of 61 HC-NIC Page 57 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT pointed out the scene of the incident to the Investigating Agency from where the body parts of deceased Piyush were found. The discovery panchnama has been examined and perused. Evidence with respect to such discovery is found reliable. At the cost of repetition, we may highlight that the scene of incident was situated in a forest area, well inside from the main road. Human movement was virtually nil. No person who does not have personal knowledge about the place would be in a position to show it to the Investigating Agency. The place was so desolate that barely within a few days after the murder of Piyush and setting his body on fire, the wild animals had apparently attacked the remaining body parts which may, in all probability would comprise of the skeleton. Very few bones were left. Whatever bones left were found in scattered condition over a vast area. The fact that the skull and the bones collected by the investigating agency from the spot were those of deceased Piyush was established through DNA testing. Yet another important factor is the discovery of the mobile phone instrument from the house of accused No.1 at his instance. The handkerchief found from the Indica car contending blood of group 'O' and the clothes of accused No.1 recovered from his house containing blood of the same group are the additional factors. When we examine the case resting only on circumstantial evidence, no factor in isolation can be weighed to judge whether the charge is proved or not. One has to judge the combined effect of several factors together which will ultimately give a final answer whether the complete picture, as Page 58 of 61 HC-NIC Page 58 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT projected by the prosecution, is emerging from such factors or not.
74. Sofar as the acquittal of the rest of the accused are concerned, detailed discussion is really not necessary. Except for projecting the theory of involvement of other accused in conspiracy and abatement, the prosecution has not been able to establish any independent evidence to establish these allegations against the rest of the accused. Even according to the prosecution version, it was only accused No.1, accused No.7 and deceased Naresh who actually carried Piyush to the isolated spot where he was murdered and and his dead body was burnt. The prosecution may argue that it was because accused No.2 Deepa who had spoken to Piyush on mobile and lured him to coming to Shastri maidan area late at night. However, except for advancing such a theory, there is nothing on record in the nature of proof. Mere use of mobile phone or being a relative of deceased Naresh would not be enough.
75. Coming to the question of enhancement of sentence against accused No.1, we may record that the said accused was aged about 22 years at the time of the incident. He had no criminal antecedents. Even otherwise, this accused does not fall in the rarest of rare cases where having lost all hope of reformation the life of the convict must be snuffed out. Learned counsel for the said accused stated, under instructions, that during his jail term, the said accused has been prosecuting Page 59 of 61 HC-NIC Page 59 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT further studies. This would be undoubtedly an additional factor to persuade us that the case of the accused is not beyond reformation. The revision petition of the original complainant for enhancement of sentence is, therefore, required to be dismissed.
76. In the result, Criminal Appeal No. 1785 of 2013 filed by accused No.1 is dismissed. His conviction and sentence recorded by the learned Sessions Judge are confirmed.
• Criminal Appeal No. 623 of 2015 filed by accused No.7 is allowed. He is acquitted of all charges and shall be released, if not required in any other criminal case.
• Criminal Appeal No. 198 of 2014 filed by the State against the acquittal is dismissed.
• Criminal Appeal No. 1568 of 2013 filed by the victim challenging acquittal is dismissed.
• Criminal Revision Application No. 660 of 2013 filed by the victim seeking enhancement of the sentence of the convicted accused is also dismissed.
• Criminal Revision Application No. 661 of 2013 seeking enhancement of sentence of the convicted accused for the Page 60 of 61 HC-NIC Page 60 of 61 Created On Sun Aug 13 18:05:13 IST 2017 R/CR.A/1785/2013 JUDGMENT offence under the Wild Life (Protection) Act is also dismissed.
All proceedings disposed of in above terms. R & P may be transmitted back to the concerned Trial Court.
(AKIL KURESHI, J.) (BIREN VAISHNAV, J.) Jyoti Page 61 of 61 HC-NIC Page 61 of 61 Created On Sun Aug 13 18:05:13 IST 2017