Gujarat High Court
Vijaykumar vs State on 10 October, 2008
Author: Bhagwati Prasad
Bench: Bhagwati Prasad
Gujarat High Court Case Information System
Print
CR.A/675/2006 44/ 44 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 675 of 2006
With
CRIMINAL
APPEAL No. 677 of 2006
To
CRIMINAL
APPEAL No. 680 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2
To be
referred to the Reporter or not ? NO
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ? NO
=========================================================
VIJAYKUMAR
RASIKLAL PATHAK - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance:
CRIMINAL APPEAL NO. 675/2006
MR. P.M.
THAKKAR, LD. SR. COUNSEL WITH MR. UTPAL M PANCHAL for
Appellant(s) : 1,
MR. MAULIK NANAVATI, APP, for the Opponent
CRIMINAL
APPEAL NO. 677/2006
Mr.
K.B. Anandjiwala and Mr. Utpal Panchal for the appellant
Mr.
MAULIK NANAVATI, APP, for the opponent
CRIMINAL
APPEAL NOS. 678/2006 TO 68/2006
Mr.
Utpal Panchal for the appellants
Mr.
Maulik Nanavati, APP, for the opponent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 10/10/2008
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeals are filed by the appellants-accused against conviction and sentence as recorded by learned Sessions Judge, Surat, by his judgement and order dated 10.2.2006 in Sessions Case No. 78/2000.
2. Briefly stated, the facts of the case as recorded by the learned Sessions Judge, Surat, are that heinous crime is to the extent that one Bipinchandra J. Patel residing at Bhagunagar Society, Bhesan Road, Rander, Surat, resides with his wife Nitaben and two children. He was serving with Swami Atmanand Saraswati Ayurvedic Sahakari firm at Varachha Road, Surat. His eldest son Chintan aged 9 years and a daughter aged about 5 years reside with them. Bipinchandra used to proceed on duty early in the morning at about 7.30 a.m. and used to return by evening at about 6.00 p.m. His wife Nitaben Satbhaya was a Corporator in Surat Municipal Corporation. She was a Chairperson of Law Committee. She was also President of Mahila Morcha ? BJP. Everyday she used to attend Corporation at about 4.00 p.m. And used to return by 6.00 to 7.00 p.m. During noon, she used to remain at home. Number of people used to attend her for social work. It is further case of the complainant Bipinchandra Patel that, on 19.12.1998 at about 7.30 a.m., he proceeded on his duty, his wife and children were at home. At about 4.00 to 4.15 p.m., he got message from Vijaybhai Jagdishbhai Patel. Bipinchandra was informed about emergency and was requested to rush to his house. Immediately he left his office and proceeded to his house. Number of people gathered near his house. He went into the house and found his wife Nitaben in a pond of blood. She was murdered. There were incise wound on her cheek and throat. Profuse bleeding resulted into her death. He was unable to control himself. People took him to downstairs. It is further case of Bipinchandra that, his daughter Binny told him that she and her mummy Nitaben Satbhaya were at residence, at that time, three unknown persons having white uniform had come. They caught hold of Nitaben and cut her throat by knife. She was frightened. She was also throttled but fortunately she survived. It is further case of the complainant that his daughter Binny shouted and requested one Kokiben. Kokiben came to the house. Meanwhile, thousands of people gathered on the scene of offence. Bipinchandra lodged a complaint before the Deputy Commissioner, Surat. Offence was registered. Investigation was entrusted to Shri Bhimsing Sursing Vasawa, Dy. Commissioner ?SG?? Division, Surat. He was present on the spot. Inquest panchnama in presence of panchas was reduced into writing. The FSL authority and dog squad were invited on the spot. Blood samples from different parts of the house were collected. Panchnama of the scene of offence was reduced into writing on the same day. Dead body was sent to civil hospital for post-mortem. The clothes found on the dead body was produced by police constable and the clothes were seized. Further investigation was entrusted to DCB Police Station, Surat, as per direction given by the Commissioner of Police, Surat.
3. On the aforesaid facts, investigation was conducted in the manner as recorded by learned Sessions Judge, Surat, in paragraph Nos. 3 and 4 of the judgement as under:
?Spara 3 - Shri Mathurdas Gokuldas Kaneria was P.I., DCB at the relevant time. He inquired about the work and duty of deceased Nitaben Satbhaya as a Corporator of Surat Municipal Corporation. He also inquired as to the representation made by deceased against certain employees and officers of Surat Municipal Corporation. Mr. Kaneria found that Nitaben had represented against one Bhagatsinh working with Assessment Department. He also inquired about builder Maheshchandra Dhanraj Jain. 5 teams, each team headed by Police Inspector were trying to find out the culprit. The statement of Dipak Shukla and Vijay Pathak were recorded. Some indication were towards Chandrakant Kahar and Naresh Naptha. According to Mr. Kaneria, Chandrakant Kahar had admitted the offence inter alia contending that Naresh and Kalu were involved in the crime. All the three persons namely Chandrakant Kahar, Naresh Naptha and Kalu were arrested on 12.1.1999. Police custody remand for pretty long 10 days were obtained. According to Mr. Kaneria, it was found that the admission of guilt by Chandrakant Kahar was not voluntary one. Lie detection was not in favour of the prosecution. The child witness Binny refused to identify these three persons as accused. The statement of Hemantbhai Chapatwala ? the then Law Minister was recorded. One application was received by the Commissioner of Police. It was in Hindi language. Investigation on that line was entrusted to one Mr. PSI Mavani and ASI Vasant Eknath. The prosecution was unable to submit the charge sheet against arrested three persons namely Chandrakant Kahar, Kalu Dagga and Naresh Naptha within 90 days. On 20.4.1999, ACP Mr. Raj was directed to supervise the investigation.
On 9.12.1999, Mr. Kaneria was transferred from Surat to Baroda, and the investigation was entrusted to PI Shri Gohil. Opinion from the Government Pleader was sought for, and it was opined that the evidence against above referred three persons was not sufficient to submit the charge sheet.
Para 4 - Thereafter, further investigation was carried out by Shivsing Maansing Goil. On 17.12.1999, Mr. Gohil got certain information and learnt that on the cross roads of Bhatar, some persons from Uttar Pradesh were discussing something about the murder of Nitaben Satbhaya near one tea pot holder. Inquiry was made. One Mr. Lalmani ? Rickshaw driver interrogated. It was so learnt that Dharmendrasingh, Haider and Durga were involved in the offence. Durgaprasad and Haider were under PASA. Possession was obtained. Police custody remand was sought for. One Kakkusingh was also found to be connected with the crime. Dharmendra Omprakashsingh and Bambaiya were found to be connected with the crime. Ransom was given by accused Vijay Pathak and Dhirubhai Thummar through Munnabhai Dudhwala, according to prosectuion. One R.P. Singh wrote a letter to the Commissioner of Police somewhre in January, 1999. That investigation was still pending. Mr. Gohil submitted report under Section 169 of the Code of criminal Procedure on 18.12.1999 against Chandrakant Kahar, Kalu Dagga and Naresh Naptha and requested the Court to discharge them. On 19.12.1999, Dharmendrasing Malhar, Omprakash Mishra, Kakkusing, Munno @ Dharmendarsing, his father Hansrajsingh, Vijay Rasiklal Pathak and Tehsildar Jaduvansingh were arrested. Haider and Durgaprasad were arrested on 23.12.1999. Hansraj produced the Bullet Motorcycle used and occupied by accused Munna @ Dharmendra. Motorcycle used by Kakkusingh was produced on 20.12.1999. It was Hero Honda motorcycle. Section 120-B of India Penal Code was placed at service. Section 212 r.w.Sec. 201 were added with the charge. PSI Ganasva was deputed to U.P. to trace out accused Bambaiya. Satyen Vijaykumar, son of Vijaykumar Rasiklal Pathak produced Fiat Car No. GJ 5-N 7898 allegedto have been used by accused for conspiracy of the crime. Yadi to Executive Magistrate for Test Identification Parade resulted into Test Identification parade on 21.12.1999. Minor Binny identified two persons as an accused. According to Mr. Gohil, accused Vijaykumar had partnership with Chhaganbhai Odhavji Patel. Mr. Gohil learnt that accused No. 3 Munna @ Dharmendrasinh had given certain amount out of ransom amount to one Zakirhusein to purchase one tractor. He had also given rs. 50,000/- to one Lali to purchase Tata Sumo car. Mr. H.P. Singh was interrogated on 22.12.1999. He ascertained his authority of the letter. According to Mr. Gohil, Durgaprasad Mishra was the owner of Rickshaw No. 858 and it was used during the conspiracy. Investigation towards bank account of Munna @ Dharmendrasing and Vijay Rasiklal was in charge of PSI Mr. J.M. Patel. On 25.12.1999, Zakirhusein produced Rs. 35,000/- alleged to be part-payment towards purchase of tractor before PSI Patil. It was seized in presence of panchas. According to Mr. Gohil, Munna @ Dharmendrasinh Dudhwala had voluntarily produced the amount of ransom from one Niranjanbhai. Kakkusing had advanced Rs. 10,000/- to one Vijaykumar Tiwari. It was also recovered. On 15.3.2000 charge sheet was submitted against 11 accused.??
4. After submission of the charge-sheet, case is committed by the Committing Court to the Court of Sessions. The Court of Sessions framed charges against the accused persons in the following terms:
1.
Whether the prosecution proves beyond reasonable doubt that the death of Nitaben Satbhaya was not a natural death?
2. Whether the prosecution proves beyond reasonable doubt that there was a conspiracy to commit a murder of Nitaben Satbhaya? If yes, who are found to be conspirators for the same?
3. Whether the prosecution proves that accused Dharmendrasinh @ Malharsinh Tehsildarsing and Omprakash Ramdular Mishra along with absconding accused Badru @ Bambaiya murdered Nitaben on 19.12.1998?
4. Whether the prosecution proves that the ransom amount for the murder of Nitaben Satbhaya was given by accused No. 1 Vijaykumar Rasiklal Pathak and accused No. 2 Dhirubhai Virjibhai Thummar through accused No. 3 Dharmendrasing @ Munna Hansrajsinh Thakur?
5. Whether the prosecution proves any of the charge against any of the accused?
5. Charges were considered by the Court of Sessions. The charge against accused vijaykumar Rasiklal Pathak, Dhirubhai Virjeebhai Thummar, Dharmendrasing @ Munna Hansrajsinh Takur, Dharmendrasinh @ Malharsinh Tehsildarsinh Rajput, Omprakash Ramdular Mishra, Kakkusinh @ Udaypratapsinh Ramashankersing Rajput, Durgasing Fatehbahadursing Thakur, Rajmangal @ Haider Deepnarayan Kurmi Patel, Umesh Gangaprasad Gaud, Mahesh Pratapsing Samarbahadursing Rajput and Tehsildar Jaduvansing Rajput is to the extent that accused No. 1 Vijaykumar Rasiklal Pathak belongs to Surat. He was serving as an officer with Insecticides of Surat Municipal Corporation. There were number of allegations pertaining to fraud and misappropriation against him. Somewhere on 14th February, 1998, accused No. 1 Vijaykumar Pathak was suspended. Departmental inquiry was initiated against him. On 18th February, 1998 accused No. 1 Vijaykumar Pathak resigned from the services. It is further charge against the accused that on 4.5.1998, the Commissioner of Surat Municipal Corporation gave a charge sheet to accused No. 1 inter alia contending that he misappropriated Rs. 12,50,375.75 from the Corporation. A complaint under Secs. 419, 420, 467, 468, 471, 477-A r.w. s. 409, 120-B coupled with Sec. 13(2) of the Prevention of Corruption Act was lodged against accused No. 1. It is further charge against the accused that accused No. 1 was apprehending that Nitaben Satbhaya was behind the curtain for all these problems. It was at the initiation of Nitaben Satbhaya according to accused No. 1 and thereby accused No. 1 was having a profound feeling of revenge. It is further charge against the accused that son, daughter, wife and mother of accused No. 1 were the partners of accused No. 2 Dhirubhai Virjeebhai. They were dealing in building constructions. Accused No. 1 and accused No. 2 made a mind to remove Nitaben Satbhaya from this world. There was a conspiracy for the same. Accused No. 3 Dharmendrasing @ Munna Hansrajsinh Thakur was in contact with accused No. 2 Dhirubhai Virjeebhai Thummar from the period of Swati Chamber construction. They planned to offer ransom to the tune of Rs. 4,50,000/- to murder Nitaben Satbhaya. It is further charge against the accused that as a part of conspiracy, accused Nos. 1 and 2 took accused No. 3 at the residence of Nitaben Satbhaya. Fiat Car No. GJ-5N-7898 owned by accused No. 1 was used for the same. It is further charge against the accused that accused No. 4 Dharmendrasinh @ Malharsinh Tehsildarsinh Rajput and accused No. 6 Kakkusinh @ Udaypratapsinh Ramashankersinh Rajput were invited in the conspiracy. Accused Nos. 6 and 7 were utilizing Hero Honda Motorcycle No. GJ-5-SS-230 and were keeping watch over the activities of Nitaben Satbhaya. It is further charge against the accused that accused No. 4 Dharmendrasinh @ Malharsinh Tehsildarsinh Rajput; accused No. 5 Omprakash Mishra and `wanted' accused Badru @ Bambaiya along with accused No. 7 Durgasingh Thakur, accused No. 8 Rajmangal @ Haider Deepnarayan Kurmi Patel, accused No. 9 Umesh Gangaprasad Gaud and accused No. 10 Mahesh Pratapsing Samarbahadursing Rajput joined in the conspiracy and prepared a plan to commit a murder of Nitaben Satbhaya. It is further charge against the accused that, as a part of conspiracy, on 19.12.1998 at about 4.00 p.m., accused No. 4 Dharmendrasinh @ Malharsinh Tehsildarsinh Rajput, accused No. 5 Omprakash rAmdular Mishra, accused No. 8 Rajmangal @ Haider Kurmi Patel and `wanted' accused Badru @ Bambaiya @ Umashanker Matadin went to the house of Nitaben Satbhaya. They utilized Hero Honda Motorcycle No. GJ-5-SS-2663 and a rickshaw. It is further charge against the accused that accused Nos. 4, 5 and Badru @ Bambaiya entered into the house of Nitaben Satbhaya, caught hold her from the throat and cut her throat by using knife. It is further charge against the accused that bay Binny Bipinchandra, aged 5 years, was in the house. Accused also tried to murder her by throttling, and thereby committed an offence punishable under Sections 452, 302, 307 r.w. Sec. 120B of the Indian Penal Code. It is further charge against the accused that accused No. 11 Tehsildar Jaduvansing Rajput was serving as Asst. Sub-Inspector, and he is father of accused No. 4 Dharmendrasinh @ Malharsinh Tehsildarsinh Rajput. He was aware about the conspiracy. He was supposed to disclose this conspiracy being a State Government servant. He ought to have arrested accused No. 4. Instead of it, accused No. 11 Tehsildar Rajput allowed accused No. 4 Dharmendrasinh @ Malharsinh Tehsildarsinh Rajput to escape and send him to his native place in U.P. It is further charge against accused No. 11 that threats were given. Accused No. 11 tried to see that the amount of ransom remain with his son Dharmendarsinh @ Malharsinh Rajput, and thereby, accused committed an offence punishable under Section 202, 212, 217, 225-A read with Section 120B of the Indian Penal Code. Thus, the charge against all the accused is for conspiracy to commit a murder of Nitaben Satbhaya which is punishable under Section 120B, 452, 302, 307, 202, 212, 217, 225-A of the Indian Penal Code. Thus, the charge against all the accused is for conspiracy to commit a murder of Nitaben Satbhaya which is punishable under Section 120-B, 452, 302, 307, 202, 212, 217, 225-A of the Indian Penal Code. It is further charge against the accused that at the relevant time, there was a notification by Commissioner of Police under Section 135 of the Bombay Police Act. Accused moved with deadly weapons like knife in open and thereby, committed an offence punishable under Section 135 of the Bombay Police Act.
6. Accused persons denied the charges and claimed trial. The prosecution examined witness as delineated hereinbelow and tendered documents as narrated in the following paragraphs.
7. The prosecution examined Ashwin Balwantbhai Patel at Exh. 164; Geetaben Bhaskarbhai Desai at Exh. 167; Satishkumar Fulsingh Rajput at Exh. 169; Dr. Mohd. Ilyas Ishak Mohd. Shaikh at Exh. 173; Danjibhai Arjunbhai Baraiya at Exh. 180; Naginbhai Somabhai Prajapati at Exh. 183; Dawoodbhai Gulam Mohammed Mistry at Exh. 185; Kiritbhai Rameshbhai Patel at Exh. 186; Dharmesh Uttamsingh Bundela at Exh. 188; Pravinbhai Virjeebhai Sarvaiya at Exh. 190; Bilal Ahmed Abdul Hamid at Exh. 191; Sanjay Hasmukhlal at Exh. 193; Firoz Rasul Siddi at Exh. 194; Kanubhai U. Patel at Exh. 195; Niranjanbhai Damodar Bhagat at Exh. 199; Vijaybhai Ramkishan Tiwari at Exh. 200; Rajeshbhai Chandrakantbhai Modi at Exh. 201; Jitubhai Gangabhai Kahar at Exh. 203; Zakir Gulamrasul Kadiwala at Exh. 206; Chintan Bipinchandra Patel at Exh. 207; Dr. Jayantibhai D. Patel at Exh. 208; Kokilaben Rameshbhai Patel at Exh. 209; Dharmendra @ Lali Amarsinh Hanjra at Exh. 210; Bipinchandra Jaganbhai Patel (Satbhaya) at Exh. 212; Lalmani Satyanarayan Mishra @ Deviprasad Mishra at Exh. 214; Mumtazali Rasulmiya Saiyed at Exh. 218; Binny Bipinchandra Patel (Satbhaya) at Exh. 223; Mohammed Jafferbhai Tarofawala at Exh. 231; Udaysinh Shivsinh Rajput at Exh. 232; Hansrajsinh Rajdevsinh Thakur at Exh. 236; Chhaganbhai Odhavji Vaghani at Exh. 237; Sehatbahadur Ramnaresh Patel at Exh. 248; Ranjitsinh B. Rajput at exh. 252; Vasant Eknath at Exh. 256; Asifkhan D. Pathan at exh. 258; Bhimsing Sursing Vasava at Exh. 268; Jayantilal Mafatlal Patel at Exh. 270; Parbatsinh P. Vasava at Exh. 275; Navinbhai devjibhai Chauhan at Exh. 281; Manharbhai Devjibhai Solanki at Exh. 282; Mathurbhai G. Kaneria at exh. 294; Chhibubhai Uttambhai Patel at Exh. 302; Mahendrabhai H. Jagiwala at Exh. 310; Virandra Bhanuprasad Bhatt at Exh. 313; Arvindbhai Ratilal Desai at Exh. 315; Shivsing Maansing Gohil at Exh. 329; Vinodchandra B. Patel at Exh. 343; Vijaybhai Harishbhai Shkla at Exh. 348; Nareshkumar Banwarilal Agrawal at Exh. 353. The prosecution has produced the documents as under:
1. Slip signed by the panchas Exh. 165
2. Panchnama of place of offence Exh. 166
3. Inquest Panchnama Exh. 168
4. Panchnama of seizure of muddamal Exh. 170
5. P.M. Report Exh. 175
6. Medical Certificate Exh. 176
7. Panchnama of Motorcycle Exh. 181
8. Panchnama of Bullet Motorcycle Exh. 182
9. Panchnama Exh.184
10. Panchnama of Fiat Car Exh. 187
11. Panchnama of vehicle and amount Exh. 189
12. Panchnama of amount Exh. 192
13. Panchnama of rickshaw Exh. 196
14. Panchnama of identification of letter Exh. 202
15. Panchnama of RPAD cover Exh. 204
16. Letter of holding Identification Parade Exh. 219
17. Test Identification Parade notes Exh. 220
18. Letter from Addl. Exe. Magistrate, Surat City Exh. 222
19. Panchnama of recovery of ransom amount Exh.233
20. Copy of Deed of Partnership Exh. 238
21.
-do- Exh. 239 22. Cover containing letter addressed to Shri Kuldeep Sharma, Commissioner of Police, Surat (Muddamal Art. No. 15) Exh. 249 23. Cover received by Police Commissioner Surat (Muddamal Art. No. 16) Exh. 250 24. Extract
of Telephone Vardi of Rander P.S. Exh. 259
25. Copy of Station Diary Entry of Rander P.S. Exh. 259-A
26. Extract of Station Diary Entry of Rander P.S. Exh.261
27. FIR Exh.269
28. Extract of statement of A/c. from Canara Bank of Bhakti Vijay Pathak and Mukesh Bhatt Exh.271
29. Extract of statement of A/c. from Canara Bank of Ketki Vijay Pathak and Bhakti Vijay Pathak Exh. 272
30. Extract of statement of A/c. from Canara Bank of Swati Vijay Pathak and Bhakti Vijay Pathak Exh. 273
31. Office order by Commissioner, Surat Muni.
Corporation Exh. 283 32. Office
order of Surat Municipal Corpn. Exh. 284
33. Office order of Surat Municipal Corpn. Exh. 285
34. Resignation letter of accused Vijay Pathak Exh.286
35. Office order of Surat Municipal Corpn. Exh. 287
36.
-do- Exh. 288 37. Charge
sheet filed against V.R. Pathak Exh. 289 by Commissioner, Surat Muni. Corpn.
38.
-do- Exh. 290
39. Copy
of letter by V.R. Pathak to Section
Officer, SMC Exh. 291
40. Letter
by Departmental Inquiry Officer
to
V.R. Pathak Exh. 292
41.
-do- Exh. 293
42. Extract
of statement of account from
Canara
Bank in the name of Bhakti
V.
Pathak and Mukesh Bhatt Exh. 303
43. Copy
of Form for opening account in Bank Exh. 304
44. Copy of Ration Card Exh. 304-A
45. Copy of extract from bank account Exh. 305
46. Copy of Form for opening account in Bank Exh. 306
47. Statement of account of Swati Vijaykumar Pathak Exh.307
48. Form of opening account Exh. 308
49. Copy of Ration Card of V.R. Pathak Exh. 308-A
50. Details of account from Dena Bank for Dhirubhai Virjibhai Exh. 311
51. Statement of account from Dena Bank for Dhirubhai Virjibhai Patel Exh. 312
52. Statement of account from Dena Bank for M/s. Sonal Developers Exh. 314
53. Account Card No. 1275 by The Surat District Co-op. Bank Ltd. Exh. 316
54. Extract of statement of account of Vijaykumar Rasiklal Pathak from The Surat Dist. Co-op. Bank Ltd. Exh. 317
55.
-do- Bhaktiben Vijaykumar Pathak Exh. 319
56. Account Card from the Bank Exh. 320
57. Extract of statement of account of Swatiben Vijaykumar Pathak from The Surat Dist. Co-op. Bank Ltd. Exh. 321
58. Account Card from the Bank Exh. 322
59. Extract of statement of account of Ketki Vijaykumar Pathak from The Surat Dist.
Co-op. Bank Ltd. Exh. 323 60. Letter by Police Inspector, DCB Police Station, Surat Exh. 330 61. Copy of acknowledgement of return of Income of M/s. Sonal Developers Year 1999-2000 Exh. 354 62. Copy of Return of Income in Form No. 2 of M/s. Sonal Developers Exh. 355 63. FSL report Exh. 374 64. Serology report Exh. 375 65. List regarding the work and complaint by Nitaben Satbhaya Exh. 376 66. Xerox copy of letter written by Nitaben Satbhaya to the Commissioner, Surat Muni. Corpn. Exh. 377 67. -do Exh. 378 68. -do- Exh. 379 69. -do- Exh. 380 70. -do- Exh. 381 71. -do- Exh. 382 72. -do- Exh. 383 Exh. 384 73. Xerox
of report from City Engineer, SMC Exh. 385
74. Xerox copy of letter from Vigilance and Inspection Officer, SMC Exh. 386
75. Xerox copy of report from I/c Toll & Octroi Supdt., SMC Exh. 387
76. Xerox copy of letter written by Nitaben Satbhaya to Commissioner, SMC (with paper cutting) Exh. 388
77. Xerox copy of letter written by Nitaben Satbhaya to Commissioner, SMC Exh. 389
78. Xerox copy of letter written by Nitaben Satbhaya to the Collector, Surat Exh. 390
79. Reply given by Nitaben to the Town Planner, Surat Municipal Corpn. Exh. 391
80. Xerox copy of letter written by Zonal Officer, South Zone, Udhna, to Dy.
Commissioner
(Spl.) Exh. 392
81. Xerox
copy of letter written by Zonal
Officer,
South Zone, Udhna to Office
Supdt.,
SMC Exh. 393
82. Xerox
copy of letter written by Nitaben
Satbhaya
to Comm., Surat Municipal
Corporation,
Deputy Collector, Choryasi
Prant Exh.
394
83. Written
submission regarding works
related
to Commissioner, Surat
(with
letters) Exh. 395
84. Xerox
copy of letter writte by Nitaben
Satbhaya
to Vigilance & Inspection
Officer,
SMC Exh. 396
85. Xerox
copy of letter written by Nitaben
Satbhaya
to Section Officer, North Zone Exh. 397
86. Letter written to Commissioner, Surat, regarding misappropriation committed in Assessment Department, Katargam Zone Exh.
39887. Copy of letter addressed to Commissioner, SMC from R.S.S. Vande Matram to carry out inquiry about irregularities in various Depts.
Exh. 399
88. Original letter from F.S.L., Surat Exh. 401
89. Original letter from F.S.L. Ahmedabad Exh. 402
90. Report on Lie Detection Examination Exh. 403 by F.S.L. Ahmedabad
91. Report under Sec. 169 Cr. P.C. from Police Inspector, DCB, Surat Exh. 404
92.
-do- certified copy of order Exh. 405
93. Original
letter written by F.S.L.,
Ahmedabad Exh.
406
94. Exaimination
Report of Narco-Analysis
from
F.S.L., Ahmedabad Exh. 407
8. After
considering the case of the prosecution, learned Sessions Judge framed the charges as stated above.
9. Learned Sessions Judge after considering the case of the prosecution came to the conclusion that Nitaben Satbhaya had unnatural death and her death was culpable homicide amounting to a murder amounting to murder and thus decided point No. 1 accordingly.
10. Learned Sessions Judge also recorded that it is a case of prosecution that accused No. 4 Dharmendrasinh @ Malharsing Tehsildarsing, Omprakash Ramdular Mishra and absconding accused (who is now arrested) Badru @ Bambaiya finalized the plan and took active action on 19.12.1998 at about 4.00 p.m. According to prosecution, accused No. 4 Dharmendrasinh @ Malharsing, accused No. 5 Omprakash Mishra, accused No. 8 Rajmangal @ Haider Dipnarayan and Badru @ Bambaiya Matadin proceeded on Hero Honda motorcycle No. GJ-5-SS-2663 and a rickshaw to the residence of Nitaben Satbhaya. Accused No. 4 Dharmendra, accused No. 5 Omprakash and Badru @ Bambaiya entered into the house, climbed the staircase, caught hold sleeping Nitaben Satbhaya and brutally cut her throat keeping no space for survival. She died on the spot. To prove this charge, prosecution has examined number of witnesses. We will consider their evidentiary value one by one. But broadly speaking, the evidence produced by the prosecution can be considered in three categories. The first category comprise of expert's evidence; second category comprise of circumstantial evidence; and third is of eye witness.
11. Examining the nature of evidence against the accused persons, learned Single Judge came to the conclusion that child witness minor daughter Binny informed the complainant about the culprits, three unknown persons who had entered their house and were wearing white dress who had done away her mother . On the date of incident it was a holiday in the school and therefore she had reason to be at her residence. According to learned Sessions Judge the child witness Binny and deceased Nitaben Satbhaya were at their residence on the fateful day where three accused persons who were wearing white dress, came and slew the deceased. In the first part of the investigation, certain other accused were apprehended who were later on found not to be the persons involved and on later developments the present two accused persona and third person who was not apprehended at the time of the trial were actually the culprits. Test Identification parade of the persons was held and in the Test Identification parade the child witness Binny identified accused Nos. 4 and 5 in presence of the Magistrate. Learned Sessions Judge noticed that there was an attempt on the part of the defence to discard the testimony of the child witness qua the identification that she has withheld the test of identification. Learned Sessions Judge has noticed that cross-examination enabled to stabilise the testimony of child witness Binny and thus the testimony of child witness qua accused No. 4 so far as identification parade was concerned which was held admissible. This has been recorded by the trial Court at paragraph No. 28 thus: Binny Bipinchandra Patel at Exh. 223 was 9 years old on the date of her deposition. She was studying in Std. V. She knows well what is Advocate, who is Corporator, what is school and what is worship. The then learned Additional Sessions Judge took a precaution that, not only the accused of the present case, but he kept the accused of other case along with the accused of present case and thereafter he observed the behaviour of the witness. The then Addl. Sessions Judge found her mentally matured and found her competent enough to offer rational answer to the question put to her. Now, Binny declared on oath that her mother was an Advocate and Corporator. They were residing at Bhagunagar on the first floor. She was in Sr. Kindergarten while her brother was in standard IV. On the date of incident, her brother had been to the tuition classes. This fact is supported by the evidence of Chintan. Binny further declared on oath that she was sleeping with her mother in the house. There was a noise of falling down. She woke up and found one person pressing her mother's head; while another two persons were piercing a knife. Her mother was in sleeping condition only. Binny further declared on oath that one person caught hold her from the neck and thereafter, they left. She was frightened. After some time, she got down and requested Kokididi to help. She was asked to identify three persons if present in the Court. In reply, she identified accused Nos. 4 and 5 only. It is pertinent to note that third person namely Badru @ Bambaiya is arrested now and supplementary charge sheet is before the Court of Sessions. So, it is pertinent to note that she has identified only two accused namely accused No. 4 Dharmendrasinh @ Malharsinh Tehsildarsinh and accused No. 5 Omprakash Ramdular Mishra. She has not preferred to identify third person only because she has stated three persons committing murder. On the contrary, she had positively stated that third person is not present in the Court. It is pertinent to note that we may take it for granted that before the date of Test Identification Parade, she had an opportunity to have a look at accused Nos. 4 and 5. But then, if at all she had a tendency to identify false person, then she should have identified any third person. But the record shows that after the lapse of long time, third accused i.e. to say Badru was arrested, and during Test Identification Parade, she identified Badru also before Executive Magistrate. Now the cross-examination of Binny shows that she was studying in Lokmanya Vidhyalaya when the incident took place. She denied that they are having wooden staircase. She has also denied that she was not present during the incident. The cross-examination on page 5 of her deposition is having admission that she had not seen the culprit prior to her mother's murder. She has not narrated the physiognomy of the culprit. She was never asked to identify any one except accused Nos. 4 and 5 and Badru. An attempt was made whether she was sleeping on left or she was sleeping on the right; whether she had seen the incident or not? But, here, it is pertinent to note that the FSL report shows that there were bloodstains on the frock, that means and include that, she was present during the incident. Not only that much, the evience of Chintan and the evidence of Kokilaben clearly establish the presence of Binny during incident. Now, the evidence of this Binny is consistent. Right from the FIR, it shows that she had stated three persons having white dress. She stands with her version during cross-examination all throughout. The learned advocate for the accused remain unable to shake her testimony during the cross-examination. On the contrary, the cross-examination of this witness on page 7 strengthens her version. She has fairly admitted that she never narrated physiognomy of the culprit to any of the relative also. That is also with the FIR. She has not narrated the physiognomy to her father also. Does it mean that her evidence is not trustworthy? The answer is NO. The simple reason for this conclusion is, she is a daughter. Obviously, every child is having special love and affection to the parents. Irrespective of age criteria, certain incidents are such which engraves its own impression throughout the life span. It is an admitted fact that the brain of each person is a computer. It has number of compartments, and the important events are stored, while routine episodes are brushed day to day. And that's why person may not remember what he at before a day. But positively he will remember the incident or accident which took place before years to come only because of its overall impact on his or her personal life. How a child will forget a culprit who murdered her mother? The chief and the cross of this Binny is found trustworthy. Not only that much, but the version of Binny is supported by the evidence of her father, the evidence of her brother and the evidence of neighbour Kokididi. The time stated by her is also supported by medical evidence. The say of Binny that her mother was murdered with the help of knife and two persons had pierced the knife into the neck of her mother, is supported by the evidence of Medical Officer. The presence of the witness on the scene of offence is right from the FIR. There is no reason to discard the FIR and the contents of FIR. It was immediate without any partiality. The precaution by the then learned Addl. Sessions Judge deserves compliments. What he did is, he allowed the accused of another case to sit with the accused of the present case and thereafter, prosecution was allowed to lead the evidence of this Binny and the child witness successfully identified accused Nos. 4 and 5 before the Court also. The same Test Identification Parade was before Executive Magistrate after the lapse of one year. As it is held by the Hon'ble Supreme Court, there is no specific time limit for such Test Identification Parade. The real test is: whether the witness, more particularly child witness, is having potential understanding to offer rational answer to the question put to him or her. In the case of Binny, the answer is in the affirmative. True it is, the weapons are not seized. But that is because of negligent investigation by particular Investigating Officer. The fault or negligence on the part of the Investigating Officer does not create any stigma on the evidentiary value of the witness. Naturally, after the lapse of one year, it is not possible to trace out the weapon. A prudent person will never expect any of the culprit to preserve the weapon for pretty long one year. On the contrary, if such weapon is produced after a lapse of one year, then obviously it creates some doubt about the investigation, more particularly, in a case of professional killer. This Court have reason to observe so. Admittedly, accused Nos. 4 - 5 and Bambaiya had no enmity whatsoever with deceased Nitaben Satbhaya. The way in which she was murdered is not ordinary one. Murder was committed by a person who is having sound knowledge about the sensitive organ of the body. Murder was committed by the person who was well aware as to a blow on vital organ of the body which remain fatal all throughout. The way in which Nitaben Satbhaya was murdered clearly shows that no opportunity of survival was allowed to remain. No opportunity for medical treatment was allowed to remain open. Under the circumstances, this Court comes to the conclusion that the evidence of Binny Bipinchandra Patel is found trustworthy. It is supported by medical evidence and also by immediate witnesses who were present at the scene of offence in a natural course. Hence, this Court comes to the conclusion that prosecution proves beyond reasonable doubt that accused Dharmendrasinh @ Malharsinh Tehsildarsinh Rajput and Omprakash Ramdular Mishra along with absconding accused Badru @ Bambaiya murdered Nitaben Satbhaya on 19.12.1998 at about 4.00 p.m. at her residence, result of which point No. 3 answered in the affirmative.
12. Thus, the trial Court was of the opinion that complicity of accused Nos. 4 and 5 is established as it has been held by the trial Court that point No. 3 is proved in favour of the prosecution.
13. Then the trial Court has proceeded to examine the question of conspiracy. Regarding which it has been shown that witness Sehatbahadur Ramnaresh Patel said on oath that one Ajay Patel told him that Dharmendra and his colleagues are involved in the murder of Nitaben Satbhaya. He wrote a chit and forwarded it to the Police Commissioner. Interestingly, Ajay Patel has not been examined. Further the person referred in the letter regarding ransom was different than accused No. 1. However, learned trial Judge has proceeded to examine that this witness has admitted that the chit is based on the information given by one Ajay Patel. The fact remains that the letter is sufficient to establish that there was some conspiracy as to murder of Nitaben Satbhaya. The trial Court has proceeded to examine the question of conspiracy and came to the conclusion that it is quite possible that businessman may withdraw required amount from his or her account. But for that, there should be reasonable explanation. If we look at further statement of accused Nos. 1 and 2 under Sec. 313 of the Code of Criminal Procedure, then there is only denial. It is pertinent to note that accused No. 1 offered his ignorance in a specific question pertaining to bank account in the name of accused No. 1 and his family members. Similarly, accused No. 2 offered his ignorance. As such, there is no explanation whatsoever for these accounts and withdrawal from it.
14. The trial Court, thus, came to the conclusion that accused Nos. 1, 2 and 3 were involved in conspiracy. Though it has been recorded that the deceased had various enemies as she was in habit of complaining against so many persons, then enmity with accused No. 1 was found established and therefore accused Nos. 1, 2 and 3 were convicted as delineated by the learned Sessions Judge. As regards other accused persons, accused Nos. 6,7,8,9 and 10 have been held to be not involved and therefore they are acquitted of the charges and their acquittal have become final because no appeal is filed by the State. As regards accused No. 11, Tehsildarsinh Jaduvansinh is a Police Officer. As it is discussed earlier, he was ASI on duty. The evidence on record shows that he was aware about the activity of his son accused No. 4 Dharmendrasinh @ Malharsinh Tehsildarsinh. In spite of it, he did allow accused No. 4 to escape from Surat and to proceed to his native. Not only that much, but the evidence of ASI Vasant Eknath at Exh. 256 shows that he was present when the statement of accused No. 4 was recorded. Even otherwise, the evidence is clinching to the extent that he harboured accused No. 4. He concealed accused No. 4 though he was knowing well the activity, the act and omission of accused No. 4. As a matter of fact, being a father, he tried to screen accused No. 4 from legal punishment. In that event, this Court comes to the conclusion that accused No. 11 Tehsildar Jaduvansinh is found guity for the offence punishable under Section 212 read with Section 120-B of the Indian Penal Code. Result ofwhich, point Nos. 2 and 4 answered in the affirmative accordingly so far as accused No. 11 Tehsildar Jaduvansinh is concerned.
15. Consequent to the conviction and sentence, the following order was passed by the learned trial Judge in his ultimate conclusion:
?SUnder Section 235 of the Code of Criminal Procedure, accused No. 1 Vijaybhai Rasiklal Pathak, accused No. 2 Dhirubhai Virjibhai Thummar, accused No. 3 Dharmendrasinh @ Munna Hansraj Thakur, accused No. 4 Dharmendrasinh @ Malharsinh Tehsildarsing and accused No. 5 Omprakash Ramdular Mishra are found guilty for the offence punishable under Section 302, 452 read with Section 120-B of the Indian Penal Code.
Under Section 235 of the Code of Criminal Procedure, accused No. 11 Tehsildar Jaduvansinh is found guilty for the offence punishable under Section 212 of Indian Penal Code.
Under Section 235 of the Code of Criminal Procedure, accused Nos. 6 Kakkusinh @ Udaypratapsinh Ramshankersinh, accused No. 7 Durgasinh Fatehbahadursinh Thakur, accused No. 8 Rajmangal @ Haider Dipnarayan, accused No. 9 Umesh Gangaprasad Gond and accused No. 10 Mahesh Pratapsinh are found entitled for the benefit of doubt for the offence punishable under Sections 302, 452, 307, 202, 212, 217, 225-A read with Section 120-B of Indian Penal Code. They are entitled for benefit of doubt and deserve to be released from the charge levelled against them.??
16. The learned trial Judge after hearing the accused on quantum of sentence passed the following order:
?SUnder Section 235 of the Code of Criminal Procedure, accused No. 1 Vijaybhai Rasiklal Pathak, accused No. 2 Dhirubhai Virjibhai Thummar, accused No. 3 Dharmendrasinh @ Munna Hansraj Thakur, accused No. 4 Dharmendrasinh @ Malharsinh Tehsildarsing and accused No. 5 Omprakash Ramdular Mishra, each of them are hereby sentenced to undergo life imprisonment and to pay a fine of Rs. 500/-, in default, simple imprisonment for one month for the offence punishable under Section 302 read with Sec. 120-B of Indian Penal Code. No separate sentence imposed for rest of the charge.
Under Section 235 of the Code of Criminal Procedure, accused No. 11 Tehsildarsing Jaduvansinh is hereby directed to undergo sentence of five (5) years for the offence punishable under Section 212 of Indian Penal Code and to pay fine of Rs. 500/-, in default, simple imprisonment for one month. Set off to be given to accused No. 11 Tehsildarsing Jaduvansinh only. No set off can be given so far as accused Nos. 1 to 5 are concerned.??
17. Arguing the appeal, learned counsel for the appellants urged that as regards conviction of accused Nos. 1, 2 and 3 is concerned, it is not made out from the facts of the case. The foremost question which has been recorded by the trial Court in this regard is recovery of money but then recovery of money by itself is of no consequence. Money is not an identifiable object and it cannot be identified. Once it is presumed that money is not an identifiable object then proceeding to the source of disbursement is a very weak piece of link. Learned counsel has further urged that money was withdrawn from the joint account of wife of accused No. 1 and accused No. 1. Explanation was found to be not plausible but it was a joint account. Prosecution has not investigated as to why wife has not offered any explanation. Certain money might have been required by wife of accused No. 1. On that lapse coupled with the fact that money is not an identifiable object it cannot be said that the money which has been recovered was the money which was withdrawn from the account of accused No. 1. If the factum of money goes out, there remains no evidence to support that there was conspiracy. Therefore, the learned trial Judge has wrongly recorded findings against accused Nos. 1, 2 and 3. According to learned counsel, thus, the accused persons deserve to be acquitted.
18. Arguing the appeal on behalf of accused Nos. 4 and 5, learned counsel for the appellants urged that these two accused persons are said to have committed the crime along with one identified person who is later on apprehended and is facing trial. These persons are said to have been identified by child witness Binny. This, according to learned counsel, witness was of impressionable age and cannot be said to be competent enough to identify the accused persons and cannot be said to be the competent witness to establish that in such a case conviction can be recorded and thus only on the strength of the testimony of the witness, who is a child witness uncorroborated testimony, conviction should not have been recorded by the trial Court because it is unsafe to rely on a solitary child witness without there being any sufficient corroborative evidence available on record.
19. As regards conviction of accused No. 11, it has been urged that knowledge of the accused has wrongly been assumed that he was harbouring his son knowing fully well that he was an accused. Thus, the finding of the trial Court on this issue is also not supportable. Learned counsel for the appellants has supported the findings of the trial Court where accused Nos. 6, 7, 8, 9 and 10 have been acquitted because there was hardly any evidence against them. Learned counsel has further urged that when the trial Court was of the opinion that the investigation was valid evidence should have gone to the accused and accused persons should have been given advantage of that. Instead, the prosecution has been given advantage of those factors.
20. Per contra: learned counsel for the respondent has urged that the findings recorded by the trial Court are perfectly in line with the criminal jurisprudence of the country. The accused were the best persons to know as to how money had flown from account of accused No. 1 to the other persons and he was required to explain it. Having not explained it, utilisation of money for purchase of Tata Sumo car and other cash should have been the conclusive fact of conspiracy.
21. As regards conviction of accused Nos. 4 and 5, learned counsel for the respondent urged that the testimony of the child witness Binny was perfect and unshakable, tutoring element was put to the child witness and the child witness withstood the test of cross-examination and has not been shaken in cross-examination. No doubt, Binny is a child witness but she has shown maturity of her presence . Naturally there was reason of her being at the place of incident and she has rightly fixed complicity of accused Nos. 4 and 5 and her testimony has right been believed by the trial Court.
22. As regards accused No. 11, he is Police Official. He has indicated that money is given to his son and he should be able to know what is the source of money. In that background, as rightfully as police official he should have knowledge about the activity of his son to whom he has shielded and permitted to free away to U.P. on some filthy ground and thus that conviction is also supportable.
23. We have heard learned counsel for the parties nd given our thoughtful consideration. As regards accused Nos. 4,5 and 11, this Court is of the opinion that there being strong evidence of the child witness corroborated by the previous test identification parade of the accused persons, it cannot be said that she was not mature enough to identify the accused persons, her identification in Court was sufficient to corroborate that accused Nos. 4 and 5 along with one another person who stands trial separately were the persons who had made attack on the deceased. The deceased being the person of complaining character cannot misdirect that there was enmity of this person with many other persons. On that count, we cannot say that there was a possibility of some other unknown persons having committed the crime. None other than the person whose presence at the house was natural has deposed about complicity of the accused, the accused have been identified in Court and also at the test identification parade witness has withstood the test of cross-examination. Therefore, nothing can be said of such character which would go against the testimony of this witness. We, therefore, express our complete agreement with the findings recorded by the learned trial Judge as regards complicity of accused Nos. 4 5 and 11. Thus, their conviction and sentence recorded by the learned trial Judge are also not disturbed.
24. As regards case of accused Nos. 1, 2 and 3 are concerned, we are constrained to observe that the findings recorded by the learned trial Judge have been wanting in many material details. Bank account was a joint account of accused No. 1 and his wife. His wife having not included as accused and then was not required to give any explanation, it cannot be said, with certainty, that the amount was withdrawn for accused No. 1 for the purpose which is subject matter of the present incident. Some more explanation was required to be tendered by the wife of accused No. 1. That having not done, we would not be able to convince ourselves that the money was involved to that extent in this case wherein it was withdrawn. Once the factum of money as withdrawn from the joint account of accused No. 1 and his wife goes, there remains hardly any evidence to support the influence of conspiracy. This has also to be gone into. The amount of money recovered has not been traced to Bank. Therefore, the payment of money of accused No. 1 alone is subject to denial and in that count the findings recorded by the trial Court in relation to accused Nos. 1, 2,3 are not required to be confirmed.
25. Accused Nos. 6,7,8,9 and 10 have already been acquitted by the trial Court and the findings of the trial Court in that regard are confirmed. Conviction and sentence of accused No. 11 is confirmed. He is ordered to serve out for five years. Five years have already been over. He might have by now been released.
26. In the result, Criminal Appeal No. 675/2006 filed by accused No. 1 Vijaykumar Rasiklal Pathak, Criminal Appeal No. 677/2006 filed by accused No. 2 Dhirubhai Veerjibhai Thummar, Criminal Appeal No. 678 of 2006 filed by accused No. 3 Dharmendrasing @ Munna Hansrajsingh Thakur are allowed. They are acquitted of the charges levelled against them. They are ordered to be released forthwith if not required in any other case.
27. Criminal Appeal No. 679 of 2006 filed by accused Nos. 4 and 5 ? Dharmendrasingh @ Malharsinggh Tehsildarsinh Rajput and Omprakash Ramdular Mishra and Criminal Appeal No. 680 of 2006 filed by accused No. 11 ? Tehsildar Jaduvansingh Rajput are dismissed. Their conviction and sentence as ordered by the Trial Court is confirmed. They should undergo their sentence as ordered by the trial Court and confirmed by this Court.
(BHAGWATI
PRASAD, J) (BANKIM.N.MEHTA, J)
(pkn)
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