Gujarat High Court
Rafik @ Munno @ Mundiyo Janmohammedbhai ... vs State Of Gujarat on 10 May, 2019
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, A.C. Rao
R/CR.A/1191/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1191 of 2018
With
CRIMINAL MISC.APPLICATION (TEMPORARY BAIL) NO. 1 of 2018
In
R/CRIMINAL APPEAL NO. 1191 of 2018
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
2 of 2018
In
R/CRIMINAL APPEAL NO. 1191 of 2018
With
R/CRIMINAL APPEAL NO. 961 of 2019
With
R/CRIMINAL APPEAL NO. 1209 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MR.JUSTICE A.C. RAO Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
MOHAMADNOMAN IQBALAHEMAD RAJPUT
Versus
STATE OF GUJARAT
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Appearance:
CR.A NO.1191 OF 2018:-
MR. J. M. PANCHAL, LD. COUNSEL with MR MAULIN G PANDYA(3999) for
the Appellant(s) No. 1
CR.A NO.1209 OF 2018:-
MR. D.P. KINARIWALA, LD. COUNSEL with MR. N.D. BALAR, for the
Appellant (s) No.1
CR.A 961 OF 2019:-
MS. S.S. PATHAN & MS. ALPA J. DAVE, LD. COUNSEL for the Appellant(s)
No.1
MR. H. K. PATEL, ADDL. PUBLIC PROSECUTOR(2) for the
Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR.JUSTICE A.C. RAO
Date : 10/05/2019
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. As all the captioned appeals arise from the selfsame judgment and order of conviction passed by the 2nd Addl. Sessions Judge, Bhavnagar, Camp at Botad in the Sessions Case No.46 of 2016, those were heard analogously and are being disposed of by this common judgment and order.
2. The appellants-original accused Nos.1,2 and 3 were put on trial in the court of the 2nd Addl. District & Sessions Judge, Bhavnagar Camp at Botad for the offence punishable under sections 302, 120B, 201 read with 34 and 109 of the IPC. All Page 2 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT the appellants were held guilty by the Trial Court of the offence punishable under sections 302 and 120B read with 109 and 34 of the IPC. However, all the accused came to be acquitted of the offence punishable under section 201 of the IPC. The accused came to be sentenced to life imprisonment with fine of Rs.25,000/- each, and in default of the payment of the amount of fine, to undergo further simple imprisonment of one year.
3. Being dissatisfied with the judgment and order of conviction passed by the Trial Court, the appellants are here before this Court with their respective appeals.
4. The case of the prosecution may be summarized as under:-
4.1 One Tarunbhai Komal Prasad Bagdi (PW No.22) lodged a first information report dated 15th December, 2015 before the Gaddha Police Station, District: Botad, inter alia, stating as under:
"My name is Tarunbhai Komal Prasad Bagdi Brahman, Age-23, Occupation- stitching work, residing at Soma Textile Chawl, Raliyal Road, House No.-9, Ahmedabad. Mobile no. 9173833307 On being asked personally, I declare and dictate the fact of my complaint that I live with my family at aforesaid address and do inter lock stitching work. My father's name is Komal Prasad Chetanlala Bagdi who died in 2005. My mother's name is Laxmiben w/o Komal Prasad Chetanlal Bagdi who lives with me. We are three brothers. I and my brother Trilokbhai are twins and he is elder to me. My younger brother is Himanshu @ Rajan Marwadi. We all live in a joint family. I have studied till 10th standard.Page 3 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT
My younger brother Himanshu @ Rajan Marwadi, who runs a grocery shop in Manubhai Kuvali Chawl, Near Quick Metal, Odhav, went to the shop in the morning on 11/12/2015. My mother went to the shop carrying lunch for him in the afternoon. When my mother returned home alone at about 08:00 hrs in the evening, she stated that Himanshu left the shop at about 05:00 hrs in the evening saying that his boss, who runs a security agency, has some work regarding marriage for two-three days. Therefore, I called my brother Himanshu on his mobile numbers 9662024041 and 7227069414, but the phones were switched off. Therefore, I called his boss Nikunjbhai regarding Himanshu, but he told that Himanshu had not come to his place.
Thereafter, my friend Devendrasinh Rampursinh Parihar residing at Shubham Galaxy Flat, Near Haridarshan Chokdi, Nikol Naroda Road, Ahmedabad came to my house at night on 12/12/2015 and told me that Ahmedabad Crime Branch had arrested Himanshu's friend namely Ravi Ramdhyalsinh Chaudhary, residing at Krushnanagar, Ahmedabad in the loot of cash from a bank's cash van in Krushnanagar yesterday and came to know the fact that Himanshu @ Marwadi Rajan is also an accused person in the said offence of loot. On hearing this, I and Devendrasinh both went to the office of Ahmedabad Crime Branch and met Ravi Ramdhyalsinh Chaudhary and asked about my brother Himanshu @ Marwadi Rajan. He told that I, Himanshu and my friends Mahamad Noman Ikbal residing at Rakhiyal, Opposite Lal Bahadur Shastri Stadium, beside Nutan Bharatiya School, Ahmedabad and his friend Rafik @ Munno Janmahamad residing at Gomtipur, Ahmedabad and native of Gadhada (Swa.) looted cash from a cash van and the loot money was loaded in a vehicle brought by Noman. All four of us left for Gadhada at the behest of Rafik @ Janmahammad. On the way, Rafik called one of his friends and talked about going to his farm. Having packed meals from Botad, we went to the farm of Rafik's friend namely Ghanshyambhai residing at Gala village and reached there at 02:00 hrs at night. All four of us sat together to have meals. At that time, Ghanshyambhai was also present at his farm. After having meal, Mahamad Noman, Rafik @ Munno and Ghanshyambhai were talking privately at a little distance. As I suspected them, I went Page 4 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT closer to them. Noman and Rafik @ Munno were talking with Ghanshyambhai that Rajan Marwadi is quarreling in connection with distributing share of money and he should be eliminated. Therefore, Ghanshyambhai stated that I will show you a place far from here; take him over there and kill him. I heard so and I suspected the said persons.
Thereafter, Rafik stated at the farm of Ghanshyambhai after an hour at night that we have to leave this place and go to another farm. We sat in the vehicle and Ghanshyambhai went ahead riding on his motorcycle. Rafik and all of us were following him in the vehicle. Meanwhile, the vehicle was stopped at a farm and we all got off. Having got off the vehicle, Rafik @ Munno and Noman both quarreled and scuffled with Himanshu. Noman had a knife in his hands. He inflicted blow of the knife to Himanshu @ Rajan Marwadi. As I feared that they would kill me too, I escaped from them at night. On reaching Ahmedabad, Ahmedabad police caught me. Rafik @ Munno and Noman both made off with the loot money. I came to know the said fact as Ravi told me. Thereafter, I came to know from the office of Ahmedabad Crime Branch in the evening on 14/12/2015 that police from Gadhada Police Station, Botad district recovered a dead body of an unknown person. Therefore, I inquired at Gadhada Police Station. I was told that they had sent the recovered dead body to Bhavnagar Government Hospital for PM. As my brother Himanshu @ Rajan Marwadi had not come home since 11/12/2015, I, my uncle Bharatbhai Chetanlal Bagdi, my brother-in-law Mukeshbhai Harichand Joshi, Devendrasinh etc came to Sir T. Hospital, Bhavnagar. On seeing the dead body kept in PM room of Sir T. Hospital, Bhavnagar, I identified the dead body of my younger brother Himanshu @ Rajan Marwadi Komalprasad Bagdi, age-21.
On seeing the dead body of my brother Himanshu @ Rajan Marwadi, cut injury marks were seen on his head, on right temple, on chest, left side of belly and the dead body was eaten by animals. Rafik @ Munno Janmahamad and Mahamad Nomin Ikbal residing at Rakhiyal, Ahmedabad decided to kill my brother in order that they do not have to give his share of loot money. Ghanshyambhai- resident of Gala village helped them. My brother Himanshu was killed by inflicting knife blows Page 5 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT and blows of other weapon. Therefore, it is my complaint to take legal action against them. My witnesses are those who may be found during investigation.
Facts of my complaint as dictated by me are true and correct."
4.2 Thus, it appears that the first informant is the brother of the deceased. On the basis of the information provided to him by the PW 43 Ravikumar Ramdev Chaudhari, Exh. 168, the brother of the deceased lodged the first information report. The PW 43, Ravikumar Chaudhari, at the relevant point of time, was serving as a cash van driver in a Company by name CMS. His brother-in-law by name Devendrasinh used to reside at Rakhiyal in a Chawl known as Soma Textile Chawl. It appears that the appellant of the Criminal Appeal No.1191 of 2018, namely, Mohammed Nauman used to visit the house of the brother-in-law of the PW 43. That is how the PW 43 came in touch with Mohammed Nauman (A1). Mohammed Nauman used to work in a motor garage at Bapurnagar. The PW 43 used to drive the cash van and used to visit different ATM Centers for the purpose of depositing cash at such ATM Centers. It is the case of the prosecution that the accused persons hatched a conspiracy to commit robbery of the cash. The accused persons asked PW 43- Ravikumar to come with the cash van at the Victoria Heights, New Naroda Road, Ahmedabad. The PW 43 reached the place where he was asked to come by the accused persons. The accused persons, thereafter, came in one Chevrolet Car. At this stage, it is necessary to clarify that in the initial part of the case of the prosecution, only two accused persons figure, namely, Mohammed Nauman and Rafik @ Munno. The original accused Page 6 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT No.1-Ghanshyambhai comes into picture at a later stage and he has been held guilty of the offence of criminal conspiracy. It appears that, thereafter, the original accused Nos.2 and 3 took away the keys of the cash van and asked the PW No.43 to sit in the Chevrolet Car. At that point of time, the PW 43 was introduced by Mohammed Nauman (A1) to one Rajan Marvadi (deceased) and Munna @ Rafik (A3). According to the case of the prosecution, the accused Nos.2 and 3 along with the deceased and PW 43, reached at the farmhouse of the accused No.1. They had dinner at the farmhouse of the accused No.1 and, thereafter, according to the case of the prosecution, the accused No.1 guided them to a particular road in the mid of the night. This is the only role attributed so far as the accused No.1, i.e, the appellant of the Criminal Appeal No.1209 of 2018 is concerned. According to the case of the prosecution, the accused No.3 Rafik @ Munna all of a sudden stopped the car. The accused No.2-Mohammed Nauman got down to empty his bladder. Rafik (A3) also got down from the car. Both, thereafter, asked the PW 43 to get down from the car. However, the PW 43 exhibited reluctance to get down from the car. The deceased, namely, Rajan was also asked to get down from the car as he sensed some trobule. As the deceased resisted, he was caught hold from his neck and was dragged out of the car. It is the case of the prosecution that at that time, Nauman (A2) took out a knife and hit a blow in the abdomen of the deceased. The PW 43 got frightened and he got out of the car and started running. Rafik (A3) is alleged to have ran after the PW 43 with a hammer in his hand. The PW 43 shouted and asked the deceased to run but before he could make good his escape, Rafik (A3) is alleged to have hit a blow on the head of the deceased with a hammer. It is the case of Page 7 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT the prosecution that this is how the PW 43 ran away from the place of the occurrence and was able to save his life. Thereafter, what happened has been deposed by the PW 43 in his evidence.
4.3 It appears that the PW 43 was arrested by the police in connection with one another offence under the Arms Act for which he was wanted and while he was in the custody of the police, the first informant happened to meet the PW 43 at the police station. It is at that point of time that the PW 43 is said to have revealed about the incident to the brother of the deceased and that is how the brother of the deceased lodged the first information report.
4.4 Thus, to put it briefly, the plan, according to the case of the prosecution, was to ask the PW 43 to come with the cash van so that the cash can be taken out and divided amongst the four persons, i.e., A2, A3, deceased and PW 43. According to the case of the prosecution, all of a sudden, A2 and A3 changed their mind and decided to eliminate the PW 43 and the deceased so that they could get a big share of the cash.
4.5 The entire case of the prosecution hinges on the evidence of the solitary eye witness, i.e, the PW 43.
4.6 The police carried out the investigation and at the end of the same, filed charge-sheet for the offences enumerated above in the Court of the Judicial Magistrate, First Class, Gaddha. The filing of the charge-sheet culminated in the Criminal Case No.126 of 2016. As the case was exclusively triable by the Sessions Court, the same came to be committed Page 8 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT to the Sessions Court under the provisions of Section 209 of the Cr.P.C. The committal of the criminal case culminated in the Sessions Case No.46 of 2016. The Trial Court proceeded to frame the charge by Exh.12. The accused persons pleaded not guilty and claimed to be tried. The prosecution examined the following witnesses in the course of the trial:
Sr. Name Exhibit Detail
No.
1 Vallabhbhai Jadavbhai 19 Panch
Parmar witness
2 Raghubhai Noghabhai 22 Panch
witness
3 Mukeshbhai Gopalbhai 23 Panch
Makwana witness
4 Kantibhai Devjibhai 32 Panch
witness
5 Jentibhai Devjibhai Vasani 33 Panch
witness
6 Dr. Devendra Nanabhai 36 Witness
Panchal (medical
officer)
7 Shailesh Gordhanbhai 44 Panch
witness
8 Damjibhai Gordhanbhai 46 Panch
Ramani witness
9 Alkubhai Dadubhai Khuman 47 Panch
witness
10 Jetubhai Bhagubhai Sansad 50 Panch
witness
11 Sureshbhai Jivabhai Chavda 52 Panch
witness
12 Janibhai Jamalbhai Sumra 54 Panch
witness
13 Rameshchandra 56 Witness
Chandrakantbhai Pandya
14 Viththalbhai Jivabhai 60 Panch
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Vaghasiya witness
15 Aamirbhai Hanifbhai Pathan 62 Panch
witness
16 Aminbhai Husenbhai Metar 67 Panch
witness
17 Kantibhai Jasmatbhai 68 Panch
Raghvani witness
18 Sajidbhai Isubhai 69 Panch
witness
19 Harpalsinh Khumansinh 71 Witness
Zala
20 Kevalkumar Maheshbhai 76 Witness
Patel
21 Rajnibhai Girdharbhai 87 Witness
Prajapati
22 Tarunbhai Komalprasad 91 Complainan
Bagdi t
23 Jitendrabhai Devshibhai 93 Panch
Gajera witness
24 Sanjaybhai Sukhabhai 96 Panch
Rathod witness
25 Jahangirbhai Jumabhai 97 Witness
26 Afzalbhai Kadarbhai 98 Witness
27 Manchaben @ Madhuben 99 Witness
Ghanshayambhai
28 Majidbhai Jumabhai Hothi 100 Witness
29 Manjuben Ghanshyambhai 101 Witness
Gabu
30 Dhiren Jayantilal Lariya 103 Witness
31 Bhavik Arvindbhai Joshi 110 Witness
32 Sujit Nair Gopinath 127 Witness
33 Pranavbhai Mahendrakumar 134 Witness
Almani
34 Mukeshbhai Keshubhai 147 Witness
Khasiya
35 Vikramsinh Halubhai 153 Witness
Parmar
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36 Hemrajbhai Jamsangbhai 154 Witness
Barad
37 Mandabhai Giganbhai 155 Witness
Dhama
38 Ramjibhai Khimabhai Satiya 161 Witness
39 Harshadkumar Chaganbhai 163 Witness
Ratanpara
40 Haribhai Vashrambhai 164 Witness
Jograna
41 Shaileshbhai Dashrathbhai 165 Witness
Thakore
42 Sanjaybhai Darshratbhai 166 Witness
Thakore
43 Ravikumar Ramdev 168 Witness
Chaudhari
44 Chaganbhai Naranbhai 169 Witness
45 Trilok Komalprasad Bagdi 171 Witness.
46 Mukeshkumar 172 Witness
Harishchandra Joshi
47 Vimal Dhirajlal Ghorda 174 I.O
48 Anilbhai Prabhubhai Selaiya 178 I.O.
49 Rameshbhai Vashrambhai 185 Witness
Dhaduka
50 Darshanbhai Harshadbhai 186 Witness
Chauhan
51 Mukeshbhai Manubhai 187 Witness
Suthar
52 Rajubhai Lakhabhai Solanki 189 Panch
witness
53 Ramdevsinh Sajubha Gohil 191 Panch
witness
54 Husenbhai Kalubhai Chavda 192 Panch
witness
55 Dhirubhai Devjibhai 194 Panch
Bavadiya witness
56 Dr. Bhimjibhai Laljibhai 195 Witness
Dabhi (medical
officer)
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57 Saurav Shyamkumar 201 Witness
Divakar
58 Pankaj Bhagwandas Khatri 202 Witness
59 Vamanbhai Karshanbhai 203 Witness
Chohla
60 Hardasbhai Khimabhai 205 I.O.
Bhuva
61 Chetnaben Mohanbhai 266 Witness.
Kansagra
4.7 The prosecution also led documentary evidence in support of their case.
4.8 The statements of the accused under section 313 of the Cr.P.C. were recorded. The accused persons claimed to be innocent and stated that they were falsely implicated in the alleged crime.
5. Submissions on behalf of the appellants:-
5.1 Mr. J.M. Panchal, the learned senior counsel assisted by Mr. Maulin G. Pandya appearing for the appellant of the Criminal Appeal No.1191 of 2018 (A2) vehemently submitted that the Trial Court committed a serious error in holding the accused guilty by placing implicit reliance on the evidence of the solitary eye-witness-PW 43. According to Mr. Panchal, the solitary eye-witness -PW 43 is a wholly unreliable witness. Mr. Panchal submitted that even if PW 43 is believed to be neither wholly reliable nor wholly unreliable, there is no other evidence to lend credence to his evidence. Mr. Panchal submitted that the conduct of the PW 43 speaks for itself. In such circumstances, referred to above, Mr. Panchal submitted that his client deserves to be acquitted.Page 12 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT
5.2 Mr. Panchal further highlighted the following:-
(i) The PW 43 himself is a criminal. Pistol and ammunitions were recovered from his possession;
(ii) The PW 43 could be said to have betrayed his employer by running away with the cash van containing lakhs of rupees;
(iii) The PW 43 had a mobile with him. He could have immediately informed about the incident to anyone;
(iv) The PW 43, in his deposition, has stated that he stayed at two places before he reached Botad and disclosed about the incident to two persons. However, he has not stated the names of those two persons and there is no investigation in this regard;
(v) After reaching Ahmedabad, why PW 43 thought to go to his brother-in-law's house and not his house.
(vi) After reaching Ahmedabad why he did not go to the police and informed about the incident?
(vii) Why he went off to sleep on a footpath and not at his own house.
(viii) As per the say of the PW 43, while he was on his way reach the house of his brother-in-law, he was intercepted by the Crime Branch near the Dynasor Circle and he is said to have narrated the entire incident before the Crime Branch. If Page 13 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT that be so, why the Crime Branch did not register the first information report?.
6. Submissions on behalf of the appellant of the Criminal Appeal No.1209 of 2018:
6.1 Mr. D.P. Kinariwala, the learned counsel appearing for the appellant (A1) submitted that so far as his client is concerned, the only role attributed to him is that on the date of the incident, in the night hours, he guided the car to a particular road. Except this part of the evidence, there is nothing to indicate anything about the conspiracy alleged to have been hatched by the accused persons. Mr. Kinariwala submitted that even otherwise no reliance could have been placed by the Trial Court on the evidence of the PW 43. In such circumstances, referred to above, Mr. Kinariwala prays that there being merit in this appeal, the same be allowed and his client may be acquitted.
7. Submissions on behalf of the State:-
7.1 Mr. Patel, the learned APP appearing for the State has vehemently opposed both the appeals. He submitted that no error, not to speak of any error of law, could be said to have been committed by the Trial Court in holding the accused persons guilty of the offences they are charged with. According to Mr. Patel, there is no good reason for the PW 43 to falsely depose against the accused persons. Mr. Patel would submit that there is a ring of truth in the evidence of the PW 43 and there is no good reason to disbelieve his version. He submitted that the ocular version gets corroborated with the Page 14 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT medical evidence on record. Mr. Patel submitted that the PW 43 might be in a state of shock having witnessed the coldblooded murder of the deceased and almost a fatal attack on himself. According to Mr. Patel, the PW 43 was fortunate enough to save his life, otherwise, he would also have been killed by the accused Nos.2 and 3. it is submitted that there is nothing unnatural in the conduct of the PW 43 so as to render his evidence doubtful in any manner.
7.2 In such circumstances, referred to above, Mr. Patel, the learned APP submits that there being no merit in both the appeals, those be dismissed and the judgment and order of conviction may be affirmed.
8. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the Trial Court committed any error in holding the accused persons guilty of the offence of murder by placing reliance on the evidence of the solitary eye-witness PW 43.
9. Although the prosecution has examined almost 61 witnesses, the evidence of two witnesses, i.e, PW 6-Dr. Devendra Nanabhai Panchal, Exh. 36 and the evidence of the PW 43-Ravikumar Ramdev Chaudhari, Exh.168 (eye-witness) would be relevant for the purpose of deciding the two appeals.
10. The PW 6-Dr. Devendra Nanabhai Panchal, in his evidence, Exh.36, has deposed that on 15th December, 2015, he was on duty as a medical officer at the Civil Hospital, Bhavnagar. At that point of time, a dead body of a person by Page 15 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT name Himanshubhai @ Rajan Kamalprasad Bagdi, aged 21, was brought by the PSI, Gaddha Police Station for the purpose of postmortem. The PW 6-Dr. Devendra Panchal, along with two other panel doctors, namely, Dr. M.P. Panchal and Dr. T.C. Patel performed the postmortem and noted the following external and internal injuries:-
"1) Split lacerated wound of 7X15 cm X benedeep on right temporal antero-posteriorly
2) just below & parallel to posterior half of injury no.1, split lacerated wound of 3.5X1 cm X benedeep on right temporal.
3) Split lacerated wound of 3X1 cm X benedeep on right occipital.
4) Split lacerated wound of 6X1 cm X benedeep on right occipital.
5) Split lacerated wound of 4.5X2 cm X benedeep on right forehead, just above lateral end of right eyebrow.
6) Split lacerated wound of 2.5X 0.5 cm X benedeep on right forehead.
7) Oblique stab wound of 3X0.5 cm X cavity deep on left side of abdomen, 5.5 cm left lateral to and in line of umbilicus. Upper medical end-obluse, lacerated end-
Acute. Track established downward, backward, laterally towards left pelvic cavity, where diffuse hematoma seen at and surrounding it.
8) Oblique stab wound of 2.5X 0.5 X cavity deep between left 6th and 7th ribs, with clean cutting of intercostal space. Track established downward- forward,medially by consistent stab wound in left diaphragmatic and fundus of stomach, where diffuse hematoma seen at and surrounding it.
9) vertical stab wound of 3X0.5 cmX cavity deep just below sternum and just right to midline. Track Page 16 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT established backward-downward, laterally with consistent stab wound of 4 cm length in right lobe of liver.
10) Stab wound of 3.5 X 0.5 cm X cavity deep between right 3rd and 4th ribs.
11) Oblique incise wound of 2 cm length on left thumb.
12) Oblique stab wound of 2.5X 0.5X3cm ( bone deep) on front of left forearm, just below left elbow joint.
13) Occipital region scalp hair and skin margin clean cut."
11. The PW 6 has deposed that the injuries could have been caused by a sharp cutting instrument or weapon and the head injuries could have been caused by a hard and blunt object or weapon. The PW 6 has further deposed that the probable time of death could be between 24 hours and 72 hours from the time the postmortem commenced. The PW 6 produced the medical certificates and those were exhibited.
12. We take notice of the fact that there is practically no cross-examination of the PW 6 except few suggestions. However, the PW 6, in his cross-examination, has deposed that it is difficult to opine whether the injuries Nos. 1 to 6 on the head could have been caused by an object like hammer.
13. Thus, it appears from the evidence of the PW 6 and the postmortem report that there were injuries on the head, chest and abdomen of the deceased.
14. We now proceed to consider the evidence of PW 43, the solitary eye-witness.
Page 17 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT15. As the conviction of the appellants is substantially based on the evidence of the solitary eye-witness, PW 43, we reproduce the examination-in-chief, as under:-
"I have been residing in Ahmedabad since birth. I have been residing at Krushna Nagar, D-45, Section-1, Parshwanath Township with my family and I do the work of driving. I have been living separately from my parents. The name of my father is Ramdayal Chiranjivilal Chaudhary. My father is serving as watchman in Fairdeer company. The name of my mother is Taraben. They both are living separately from me in Rabari Colony Ahmedabad in the house of Vipulbhai Desai. We are two brothers; out of which Rajendrasing Ramdayal Chaudhary is my elder brother and he lives near Manohal villa in Naroda. I am younger than he. I have two sisters ; out of which Pinkiben is married and she is living in Amraivadi in Ahmedabad The second sister Sanjayben is also married and she is also living in Naroda-Ahmedabad. I am also married and the name of my wife is Simran @ Manju. I have a son named Nikhil. I have studied upto standard 10th.
I was serving as cash-van driver in C.M.S. Private company. My brother in law Devendrasinh Soma was living in Textile Chawli, Rakhial, Ahmedabad. When I used to visit the house of my brother in law, I came in contact with a person named Mohammad Noman. He was working in a garage in Bapunagar. I sometimes went to meet him at his garage.
When I was working as cash-van driver of C.M.S., as part of my duty, I used to go to deposit money in the ATMs of various banks. The custodian used to know as to how much money was kept in the van which I was driving. I did not know this. Noman told me that, you would give your cash van for one day, I will give you the expense. We had such discussions on 8th date. Thereafter, on 11th, 12th and 15th dates, I took my cash-van to Victoria House, New Naroda Road, Ahmedabad. I went there with my cash-van. Thereafter, Noman and other two unknown persons came there in a Cheverolate car at seven o'clock in the evening. They took the key of cash-van from me and made me sit in the Cheverolate car bearing number Page 18 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT GJ-1-HG-3902. When I was sitting in the car, Noman and other two persons with him were talking something. Thereafter, they got into the car. They left towards Botad in the Cheverolate car. At that time, Noman introduced me with Rajan Marvadi and Munna @ Rafik who were sitting in my car.
I, Noman, Himanshu @ Rajan and Munno @ Rafik left for Botad. On that day, we reached Botad at about eleven thirty o'clock in the night. I do not know as to what was kept in the Cheverolate car in which we arrived Botad. We bought chicken and pau-bhaji from Botad circle. At that time, Munna @ Rafik told to go to the farm of his uncle situated in Gadhada. We reached at the farm at twelve to twelve thirty o'clock in the night. The name of the person was Ghanshyam who was there in the farm. I was introduced to him. One woman and her two children were also sleeping there. Thereafter, we-four went in a room to take dinner. After one or one and half hour, I and Rajan were told to go and sit in the car. They were to discuss some personal matter, therefore we were made to sit in the car. They came out of the room after one hour. They came out and Munna told me that, many cases have been lodged against him over there therefore let's go to another farm house. We left in the car from there and his uncle took his bike. At that time, his uncle Ghanshyam was driving his bike ahead. Therefore, I asked as to why the uncle is coming. Then, I was told that, he is coming to show the road direction. Thereafter, Ghenshyam uncle made sign towards a road ahead therefore we took our car on the uneven road. At that time, it was about three o'clock in the night. Thereafter, Ghanshyam made sign towards another road. Thereafter, Ghanshyam uncle parked his bike. Thereafter, we-four persons went ahead. Rafik made the car stopped at one point over there. I asked as to why the car has been stopped. Then, he told that, the car has been stopped to urinate. Thereafter, Noman got down to urinate and then Rafik. After urinating, they both came to me and told me to get down from the car. Therefore, I refused to get down from the car. Noman took out a knife from under the matting and came to Rajan. He told Rajan to get down and Rajan also refused to get down so he caught his neck and took him out. Thereafter, Noman stabbed the knife in the stomach of Rajan. Therefore he began screaming. Hence, I got down after getting Page 19 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT scarred. Rafik @ Munno ran after me with a hammer to assault me. I screamed at Rajan to run. When I looked back, Rajan was shouting 'save, save'. When I looked back at that time, Munna had inflicted hammer on the head of Rajan. I fled from there. I saw an illuminating bulb on the way. I reached there and narrated the incident to one person and I also asked for bed-sheet to cover myself. That person did not give me the bed-sheet and told me to go away from there. I left to go ahead through the bank of canal. One person met me there. As I sought permission to sit beside him, he permitted me. I narrated him about the incident to him. As I was feeling cold, I requested him to give me shirt and he gave me an old shirt. Thereafter, when I asked for the mobile from him to make phone call, the person told me that, there was no balance in his mobile. I stayed there and he gave me tea. Thereafter, as the dawn light appeared, I left from there. I went towards the highway from there and got into the rickshaw and arrived at Botad. I wandered in Botad throughout the day. As the evening advanced, I left for Ahmedabad in the various vehicles. As it was night when I reached Ahmedabad, I slept on a footpath in Vastral. In the morning, I left to go to my house. Thereafter, I abandoned the idea of going to home and I thought of going to the house of my brother in law. When I was going there, the crime branch personnel caught me when I reached Dinasone circle. The crime branch personnel declared that I was caught with a pistol. When I was in the custody of crime branch, Botad police came to record my statement and Botad police came to record my statement second time when I was in jail. I stated the fact of the incident of Gadhada before crime branch Ahmedabad.
My statement was recorded by Botad police in Sabarmati Jail wherein I did not dictate anything.
I remembered mobile number of Noman when I left from Ahmedabad for Botad. His number was 8000738388. My mobile number was 9904636262. I don't know any other's mobile numbers.
I know the accused persons. Witness identifies the accused persons before the court.
I can identify the clothes worn by Rajan, Noman and Rafik Page 20 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT at the time of our departure. I don't know as to what happened to Rajan after the incident. I am shown T-shirt of muddamal Mark-E. Upon seeing the same, I state that it is the same which was worn by Rajan on the day of incident. I am shown Jacket of muddamal Mark-F. Upon seeing the same, I state that it is the same which was worn by Rajan on the day of incident. I am shown Shoes, Socks and Pant of muddamal Mark-K. Upon seeing the same, I state that they belonged to Rajan.
I am shown T-shirt of muddamal Mark-R. Upon seeing the same, I state that it is the same which was worn by Mahammad Noman at the time of incident. I am shown jacket of muddamal Mark-S. Upon seeing the same, I state that it is the same which was worn by Mahammad Noman at the time of incident. I am shown Night Pant of muddamal Mark-T. Upon seeing the same, I state that it is the same which was worn by Mahammad Noman at the time of incident.
I am shown muddamal Mark-U. Upon seeing the same, I state that it is the same T-shirt which was worn by Munna on the day of incident. I am shown muddamal Mark-V. Upon seeing the same, I state that it is the same jeans pant which was worn by Munna on the day of incident.
I am shown hammer of muddamal Mark-G. It is the same which Munna was armed on the day of incident.
Examination-in-Chief over......
Cross Examination by Ld. Adv. Mr. U.R. Dave
- for the Accused No.1.
I had been doing driving job since five months. I had been doing driving job in CMS Cash Van since last five months. No written order was given to me for appointment in CMS Cash Van. I had not given any evidence to the police that I was CMS Cash Van Driver. I had not given any evidence to the police regarding salary I had drawn during my service in CMS Cash Van. I had not given any details regarding the drivings such as Driving License to the police. It is not true that I am stating false fact that I was serving as a driver in CMS cash van. I had not given any evidence to the police regarding depositing the cash in ATM centre. I had not given any documents Page 21 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT regarding deposit of cash in ATM.
No case is pending against me in Ahmedabad. Now, I say that one case is pending against me in the court at Ahmedabad. It is true that case under Section - 408, 420 and 120B of the IPC registered with Krushnanagar Police Station vide I-C.R. No.140/2015 in the Metropolitan Magistrate Court, Ahmedabad is pending against me. Police arrested me on 13/12/2015 in the said case. It is true that police sought remand in the said case. I was in police custody for eight to nine days in the said case.
I studied upto Standard-10. As per my say, present incident happened on 11/12/2015. I had not informed to any police station about the said incident during 11/12/2015 to 13/12/2015. It is not true that I had not informed the same to anyone before I was sent for police custody on 13/12/2015. I informed police about the present incident on thirteenth when I was sent to the police custody. I informed police about the incident on 13/12/2015 and thereafter, I was stating whenever I was asked by the police. It is true that police was writing the same whenever I state anything about the incident upon being asked.
I came to know on 15/12/2015 that the complaint is lodged regarding the incident. It is not true that the facts of the murder was stated by me to the police first time on 16/12/2015. It is true that I had not lodged any complaint regarding the incident. It is not true that I had not informed Ahmedabad Police about the incident. I had informed Ahmedabad police only. Botad police visited me on fourteenth or fifteenth. Botad police wrote the information narrated by me. Botad police wrote it but the same was not read over to me. Botad police was recording my statement on the paper using a pen. It is not true that the incident of murder has not occurred as stated by me. It is not true that no person is involved in the said incident as stated by me.
It is not true that, I have dictated in my deposition that, "the crime branch personnel mentioned that they seized a pistol from me." No complaint has been filed in this regard before a magistrate or a court, neither it has been declared before any person. It is not true that, I state the false fact before the court that the pistol and cartridges Page 22 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT were not seized from me. It is true that, Ahmedabad Crime Branch drew a panchnama with respect to seizure of a pistol and cartridges from me.
There was no friendship between me and Rajan Marwadi. I did not know him. I saw Rajan Marwadi for the first time when I reached near Victoria Heights, Nava Naroda by my cash van. I did not have any contact with Rajan Marwadi on phone. Another name of Rajan Marwadi was Himanshu. My brother-in-law's name is Devendrasinh. It is true that, Devendra used to live on the chawl of Soma Textiles. It is true that, Rajan Marwadi was residing adjacent to my brother-in-law's house. It is not true that, for this reason Rajan Marwadi came in contact with me.
It is not true that, I have dictated in my police statement that, " I had a friendship with Himanshu @ Rajan Marwadi, as he was living adjacent to my brother-in-law Devendrasinh's house in the chawl of Soma Textiles. It is not true that, I used to make phone calls to Rajan Marwadi. It is not true that I made a phone call to Himanshu @ Rajan Marwadi on 11/12/15. I do not know Ajay Verma. It has not happened that I, Rajan and Ajay Verma decided to go out on 11/12/15. I do not know that, he lives in Karnavati Bungalows-2, near Takshashila, Ring Road, Odhav, Ahmedabad. It is not true that I, Rajan Marwadi and Ajay Verma had decided to loot the bank cash van. It is not true that, I have dictated in my police statement on 16/12/15 that " Another friend Ajay Verma, who lives in Karnavati Bungalows-2, near Takshashila, Ring Road, Odhav, Ahmedabad, was persuaded to accompany in fleeing with the cash van." It is not true that, I dictated to the police that I, Himanshu and Ajay Verma discussed about fleeing with the cash van and made arrangements to do the same. It is not true that, all the three of us decided to loot the cash van and run away with it. It is not true that, Ajay Verma was accompanying us on the day of the incident. The cash van was in my possession on the day of the incident. I had no cash on the day of the incident.
It is true that, Mohmmad Noman or Rafik @ Munno are not involved or connected with the cash van or the bank. It is not true that, I do not know both of them. It is true that, I do not know Rafik @ Munno @ Mundiyo. It is not true that, I do not know the person named Page 23 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT Ghanshyambhai. It is true that, no identification parade of Ghanshyam Mama and Rafik @ Munno @ Mundiyo has been conducted before the magistrate in my presence.
I have not told anything to the police while going to Botad from Ahmedabad. There was G.P.S. attached to the cash van. It is true that, I have not given my statement before any magistrate with respect to the said incident. I have not dictated to the police whether there was any light at the place of the incident. It is true that, there was no light between the place of the incident and the place where I had seen the first illuminated bulb, where a person was present. At the place of the incident, the light of a car, whose door was open, was on. It is true that, that light means the light of the cabin of the car. It is true that, there was no light at outside where the incident had taken place. It is not true that, the light of the cabin of the car is limited for the car only. It is true that, the cabin light gets on when a door opens and it gets off on closing the door. I have not dictated such fact to the police as to how much the light of the cabin can be spread. It is not true that, I state it falsely that there was a light in the cabin.
It is not true that, I and my friend Ajay Verma murdered Rajan @ Himanshu in collusion with each other. It is not true that, Ajay ran away with the money of the cash van. It is not true that, we have implicated Munno @ Mundiyo and Noman so that Ajay and me are not charged with the murder case.
It is not true that, I came to know the fact from the police that the place of the incident is surrounded by Mamani Wadi. It has not happened that, I visited Botad, Gadhada or the place of the incident prior to the incident. I did not go to the police station on the next day when I was in Botad. The witness states that he was frightened. It is not true that, there was no danger for me to go to my home. It is true that, I was afraid that the police might arrest me if I go home. It is not true that I had a fear that the Police might arrest me in connection with the murder of Himanshu alias Rajan Marwadi. I had a fear regarding the robbery of cash van. It is true that the case registered in Krushnanagar Police Station is a case regarding robbery of cash van.Page 24 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT
It is not true that I had falsely stated the fact in the examination-in-chief that - "Noman brought out the knife from a place under the matting and came near Rajan. When Rajan was asked to get down, he denied. He was compelled to get down by holding his collar. Thereafter, Noman stabbed the knife into the abdomen of Rajan, therefore, he started shouting. Hence, I got down being scared. Thereafter, Rafiq alias Munno ran after me armed with a hammer to hit me. I shouted to Rajan that 'Rajan run'. As I looked behind, Rajan was shouting 'save, save' at that time. As I looked behind at that time, Munna had inflicted a blow of hammer on the head of Rajan."
It is not true that on the day of incident, Noman and Rafiq alias Mundiyo were not with me in the Chevrolet car. It is not true that I, Ajay Varma and Rajan - we three persons were there in my cash van. It is not true that since the time when we left from Ahmedabad in cash van, we three persons started having dispute among ourselves, therefore, even though we did not want to come to this area, we came in this area. It is not true that on account of the dispute in sharing money of the robbery, I and Ajay Varma had murdered Rajan in this area. It is not true that we did not go to the farm of Ghanshyam Mama to have breakfast or meal. It is not true that there was no Chevrolet car ahead or behind my cash van.
It is not true that I have not dictated in my statement before the Police that, "I had gone with my cash van.
Later on, Noman and two unknown persons accompanying him came in one Chevrolet car at seven o'clock in the evening and they took away the key of my cash van from me and they made me sit in the Chevrolet car. Its number was GJ-1-HG-3902."
It is not true that I falsely state the fact that we roamed around in Botad on the next day. It is not true that on the next day, I and Ajay collectively made settlement of amount of robbery. It is not true that I and Ajay have falsely created the fact about robbery and murder. It is not true that help was taken from Crime Branch, Ahmedabad regarding the facts concocted by me and Ajay about robbery and murder. It is not true that I and Ajay were made witnesses instead of accused in this case of robbery and murder and three accused persons have been wrongfully implicated in this case.
Page 25 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENTIt is not true that Mohammad Noman and Rafiq alias Munna did not commit murder of Himanshu alias Rajan Marwadi by causing injury with any weapon or tool. It is not true that I have misled the investigation by declaring false fact before the Police and Court for escaping from the allegations of levelled on me and my friend Ajay. It is not true that I am a tutored witness. It is not true that I am giving false deposition on oath.
Cross-examination by Ld. Advocate Shri B.A. Gadhiya
- on behalf of accused No. 2.
Cross-examination of accused No. 1 has been adopted and following questions were asked.
It is not true that Rafiq alias Munno alias Mudiyo, Noman and Ghanshyambhai did not hatch any criminal conspiracy. It is not true that I have not dictated in my statement before the Police that, "Noman had told me that you give your cash van for one day, I will give you money for the expenditure."
It is not true that as there were holidays on Saturday and Sunday, there would be more cash in the cash van on Friday. I myself had made plan for robbing the cash van. It is not true that when Crime Branch had arrested me, I had talked to my friend Mahendra Chavda, who lives in Bhilvada and to Ramesh Thapa living in Shivanand Nagar, about the matter pertaining to robbery of cash van before one month. It is not true that I, Ramesh Thapa, Mahendra Chavda and Ajay Varma had collectively hatched a conspiracy for robbing the cash van and killing Rajan.
The Police had asked me regarding the clothes of Muddamal which I identified today before the Court. It is not true that the Muddamal that I identified today before the Court was identified by me wrongfully. It is not true that the clothes, belt, shoes, socks which I identified today do not belong to Mohammad Noman, Rafiq alias Munno alias Mandiyo and Himanshu. It is not true that I have wrongfully identified the hammer.
Cross-examination by Ld. Advocate Shri C.N. Shaikh Page 26 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT
- on behalf of accused No. 3.
Cross-examination of accused No. 1 has been adopted and following questions were asked. It is not true that on 16/12/2015, I had given information regarding the incident to the Police for the first time. It is not true that as I had run away at the time of incident, I falsely state the fact that Rafiq was armed with a hammer. It is not true that as I have never met Rafiq and I do not know him, I am stating false fact. It is not true that even though the accused persons were not present at the time of incident, I wrongfully identify the accused persons. It is not true that I am giving false deposition.
16. While assessing the materials on record and more particularly while looking into the evidence of the solitary eye- witness, PW 43, we have noticed the following infirmities or improbabilities so as to render the evidence of the PW 43 very doubtful.
16.1 The case of the prosecution is that, a dispute arose between the accused and the deceased as regards the distribution of the cash, and therefore, the deceased was murdered. In fact, PW 43, who is the sole eye witness did not support the case of the prosecution in his examination in chief as he has deposed that " he was not aware as to what was kept in Chevrolet car " though it is the case of the prosecution that PW 43 came in his van which was loaded with a cash amount of Rs, 1,08,00,000/ and all the accused persons along with the PW 43 ran away in the Chevrolet car after committing Robbery.
16.2 The PW 43 confirms his above referred version in his cross examination stating that he was not having any cash with him on the day of the incident, though the cash van was in his possession.
Page 27 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT16.3 As per the prosecution case, the incident occurred in two parts, first, the offence of robbery alleged to have been committed by Ravikumar Chaudhary(PW 43), Mohammad Nauman, Rafiq @ Munno and Himanshu @ Rajan and secondly alleging the murder of Himanshu @ Rajan committed by (1 ) Ghanshyambhai Dharmashibhai Gabu (2) Mohammad Noman Iqbalahemad rajput (3) Rafiq @ Munno @ Mundiyo Janmahommad Sama. Indisputably the PW 43 was an accomplice of the so called case of Robbery, wherein Ravikumar cheated his employer by driving away the cash van containing amount of Rs 1,08,00,000/ and while deposing before the Trial Court, he has narrated his version keeping aside the facts of the Robbery so that he may not be fastened with the admission of his own guilt.
16.4 As per the version of the Pw 43, when the alleged incident occurred in the midnight of 11.12.2015, he succeeded to run away from the spot. Though he has said to have narrated the entire incident to two unknown persons, yet he has not disclosed the names of those two persons or their identity so that they could be examined. He reached Botad on the next day morning and moved around at different places for the entire day. Thereafter he left Botad and proceeded towards Ahmedabad, He managed to reach Ahmedabad in different vehicles. However he did not disclose anything to anyone about the alleged incident though he had ample opportunity to disclolse.
16.5 It is the case of the PW. 43 that on 13.12.2015, he was intercepted by the Crime Branch from the "Dynasore Circle"
and was kept in the custody of the Crime branch, where his Page 28 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT statement was recorded by the Botad Police. As per the case of the prosecution, the PW 43 had narrated the alleged incident before the officer of the Crime Branch, Ahmedabad. Our attention has been invited to the fact that the incident had occurred during the midnight of 11.12.2015. The PW 43 was arrested on 13.12.2015, and the body of the deceased found on 14.12.2015 and thereafter, the FIR came to be lodged by the brother of the deceased namely "Tarunkumar Komal Prasad Bagdi" on 15.12.2015. If Ravikumar would have narrated the facts to the officer of the Crime Branch, then in that case FIR could have been registered by the said officer or at least they could have recorded the statement of the PW 43 but indisputably, there is no evidence so far as narration of fact before the officer is concerned,. and no one from the office of the Crime branch, Ahmedabad has been examined in the present case and therefore, the conduct of the so called sole eye witness, PW 43 in maintaining silence for a long time, and his failure to disclose about the incident to others creates serious doubt about the PW 43 having actually witnessed the incident.
16.6 The first informant, PW 22 " Tarunkumar Komalprasad Bagdi" lodged the FIR on 15.12.2015 stating that while he visited the office of the Crime branch, one officer arranged a meeting with PW 43Ravikumar, and at that point of time Ravikumar informed him about the so called incident. On the contrary, the PW 43 has remained silent about the said meeting with the PW 22. It is also important to note that although Tarunkumar Komalprasad Bagdi, came to know about the so called on 12.12.2015, yet he did not lodge any FIR nor did he disclosed the fact to any other person on the said day.Page 29 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT
Even on 14.12.2015 when the dead body of the deceased was found after which a complaint was registered on 15.12.2015, i.e. after delay of 3 days is also not believable and thus prosecution failed to prove that from where the complainant or the investigation agency gathered the information about the involvement of the present appellants.
16.7 The Conduct of the PW 43 could be termed as unnatural prior to the incident, at the time of the incident and after the so called incident. Prior to the alleged incident he cheated his employer. Though PW 43 was having Pistol and bullets, he did not make any efforts to save the deceased. He exhibited unnatural conduct even after the alleged incident as he did not disclosed anything to the police while he was in the police custody.
16.8 The PW 43 at one place in his examination in chief has stated that while he came out of the car, Rafiq @ Munno ran after him with a hammer in his hand, and at the same time, in the cross examination, he admitted about the statement given by him before the police that at the time of the incident, he was scared, and ran away from the spot. When he looked back, he saw Munna (Rafiq) hitting a blow with a hammer on the head of the deceased. The version of the PW 43 is highly improbable and unreliable because how at one point of time Rafiq Munna gave hammer blow to the deceased and at the same time followed the PW 43. It is further admitted that there was no sufficient light at the place of the occurrence which could enable him to identify the assailants even if he had seen the occurrence when Rafiq was totally unknown to him.Page 30 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT
16.9 The PW 43 has himself admitted in his examination in chief that he is an accused of one another case and was having pistol and bullets with him, which were recovered from him while he was intercepted by the Crime branch. Furthermore, he also admits that he had apprehension of his arrest by the police in connection with the robbery case and therefore, he was moving around in Botad on the next day of the incident and thereafter reached Ahmedabad travelling in different vehicles. He did not contact anyone though he had a mobile phone, slept on the footpath for the whole night, not disclosing anything about so called incident to the police officer.
16.10 So far as the allegation against the appellant Mohammad Nauman, of having inflicting knife injuries on the body of the deceased is concerned, no independent or corroborating evidence is found on record. In fact the knife has not been recovered or discovered during or after the investigation. No blood stains were found on the clothes of the present appellant. Furthermore, the Chevrolet car was also sent to FSL but nothing incriminating was found. The cash amount has not been recovered for which the so called incident had occurred. In fact none of the witnesses was examined to prove the facts that on the day of the occurrence, cash amount was actually lying in the cash van.
16.11 It is the case of the prosecution that the accused poured petrol on the lower part of the body of the deceased so as to destroy the body of the deceased. That no evidence on record to prove such theory of the prosecution and therefore, the appellant and other accused have been acquitted by the trial court from the offence punishable under section 201 of Page 31 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT the IPC. Even otherwise the theory of the prosecution, pouring the petrol on the lower part of the body of the deceased does not have any logic in its behind, because even as per the prosecution case the injuries inflicted to the deceased on stomach and head and therefore, pouring petrol on the lower side of the body and trying to burn it would not have serve the purpose of the assailants for destroying the identity of the deceased.
16.12 All panch witnesses have turned hostile and there is no incriminating evidence against the appellants-accused to prove their involvement in the offence of murder. Furthermore, it is the case of the prosecution that the appellant, namely Nauman was in the judicial custody at "Bulandshaher" in connection with another offence punishable under the Arms Act and therefore, the investigation agency had applied for the transfer warrant on 11.01.2016. The same had been issued on 12.01.2016 and thereafter, the appellant accused (Nauman) was taken in the custody on 18.01.2016. Such theory of the prosecution creates a doubt as regards the presence of the appellant accused at the time of the occurrence as there is nothing on the record to indicate that on which date he was actually arrested in connection with the offence under the Arms Act and for what period of time he remained in the judicial custody at Bulandshaher.
17. The Supreme Court in Joseph vs. State of Kerala, (2003) 1 SCC 465 has observed that where there is a sole witness, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of other material on record. Further, in State of Haryana vs. Inder Singh, Page 32 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT (2002) 9 SCC 537, the Supreme Court has laid down that the testimony of a sole witness must be confidence inspiring and beyond suspicion. Thus, leaving no doubt in the mind the Court. Placing reliance on the aforenoted two judgments, the Supreme Court, in Ramnaresh vs. State of Chhattisgarh, (2012) 4 SCC 257, summed up the principles as under:-
"The principles stated in these judgments are indisputable. None of these judgments say that the testimony of the sole eye-witness cannot be relied upon or conviction of an accused cannot be based upon the statement of the sole eye-witness to the crime. All that is needed is that the statement of the sole eye-witness should be reliable, should not leave any doubt in the mind of the Court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of the accused in committing such a crime."
18. The evidence of the sole witness thus needs to be considered with caution and after testing it against the other material, and further such evidence must inspire confidence and ought to be beyond suspicion.
19. It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of Lallu Manjhi and Anr. vs. State of Jharkhand (2003) 2 SCC 401, the Supreme Court had classified the oral testimony of the witnesses into three categories:-
a. Wholly reliable;
b. Wholly unreliable; and Page 33 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT c. Neither wholly reliable nor wholly unreliable.
20. In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence.
21. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eye-witness, then such evidence has to be wholly reliable and trustworthy. The presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty.
22. Mr. Patel, the learned APP vehemently submitted that the post event conduct of the PW 43 should not be the basis for disbelieving his version or doubting his credibility as a witness. In support of such submission, Mr. Patel, the learned APP has placed reliance on the decision of the Supreme Court in the case of Rammi @ Rameshwar vs. State of M.P., AIR 1999 SC 3544, more particularly, the observations as contained in Page 34 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT para-8 of the judgment:-
"8. Such a remark on the conduct of a person who witnessed the murderous attack is least justified in the realm of appreciation of evidence . This Court has said time and again that the post event conduct of a witness varies from person to person. It cannot be a cast-iron reaction to be followed as a model by everyone witnessing such event. Different persons would react differently on seeing any violence and their behaviour and conduct would, therefore, be different. We have not noticed anything which can be regarded as an abnormal conduct of PW 9 Ram Dulare."
23. It is not just the post event conduct of the PW 43 which has shaken our confidence but there are many other features of the evidence of the PW 43 which leads us to take the view that the PW 43 is not a reliable witness.
24. The well-known maxim that evidence has to be weighed and not counted has been given a statutory placement in Section 134 of the Evidence Act which provides as under :
"134. No particular number of witnesses shall in any case be required for the proof of any fact. "
25. This section marks a departure from the English Law, where a number of statutes still prohibit convictions for certain categories of offences on the testimony of a single witness. This difference was noticed by the Privy Council in Mohamad Sugal Esa Mamasan Fer Alslan v. The King, AIR 1946 Privy Council 3, wherein it was laid down as under :
"It was also submitted on behalf of the appellant that Page 35 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT assuming the unsworned evidence was admissible the court could not act upon it unless it was corroborated. In England, where provision has been made for the reception of unsworned evidence from a child, it has always been provided that the evidence must be corroborated in some material particularly implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a court can act upon it; corroboration unless required by statute goes only to the weight and value o the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworned but, this is a rule of prudence and not of law."
26. The Privy Council decision was considered by the Supreme Court in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, in which it was observed as under :-
"On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly established:
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated.
One credible witness outways the testimony o a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in case where the nature o the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon for example, in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this a much depends upon the judicial discretion of the Judge before whom the case comes.
Page 36 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENTIn view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that no particular number of witnesses shall, in any case, be required for the proof of any fact. The legislature determined as long ago as 1872 presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses.
27. The Supreme Court further observed as under :
"It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilty depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, case where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted o rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused may be proved by the testimony of a single witness, the innocence of the accused person may be established on the testimony of the single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories. Namely;
(1) wholly reliable;
(2) wholly unreliable;Page 37 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT
(3) neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness. If it is found to be above approach or suspicion of interestedness, incompetence of subordination. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subordination of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to the suspicion. It becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to be depend and act upon the testimony of a single witness in support of the prosecution."
28. The aforenoted decision has since been followed in Ramratan and others v. The State of Rajasthan, AIR 1962 SC 424; Guli Chand and others v. State of Rajastan, AIR 1974 SC 276; Badri v. State of Rajasthan, AIR 1976 SC 560; Vanula Bhushan @ Venuna Krishnan v. State of Tamil Nadu, AIR 1989 SC 236; and in Jagdish Prasad v. State of M.P., AIR 1994 SC 1251.
29. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevars case (supra) and, therefore, conviction can Page 38 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT be recorded on the basis of the statement of a single eye- witness, provided his credibility is not shaken by any adverse circumstance appearing on the record against him, and the court, at the same time, is convinced that he is a truthful witness. The Court will not then insist on corroboration by any other eye-witness, particularly, as the incident might have occurred at a time or place when there was no possibility of any other eye-witness being present. Indeed, the courts insist on the quality and not on the quantity of evidence.
30. We are also not convinced with the case of the prosecution as regards the criminal conspiracy alleged to have been hatched by the accused persons. It is true that the prosecution is not expected to adduce any direct evidence with regard to conspiracy but even for the purpose of drawing an inference with regard to the criminal conspiracy, the circumstance on record should be of such nature, on the basis of which, the Court can reach to a conclusion that a conspiracy was hatched. So far as the appellant of the Criminal Appeal No.1209 of 2018 is concerned, the only role attributed to him is that in the night hours, the accused persons had food at his house and, thereafter, the appellant led the car of the accused persons to a particular road while the appellant was riding his motorcycle. The role of the appellant of the Criminal Appeal No.1209 of 2018 came to an end with the car of the accused persons being lead to a particular road. There is nothing on record to indicate that reaching the house of the appellant of the Criminal Appeal No.1209 of 2018 in the night hours at his farmhouse was a part and parcel of the conspiracy. In any view of the matter, since we are not willing to accept the evidence of the PW 43, all other issues pale into insignificance.
Page 39 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019 R/CR.A/1191/2018 CAV JUDGMENT31. In the result, all the three appeals succeed and are hereby allowed. The judgment and order of conviction and sentence passed by the 2nd Addl. Sessions Judge, Bhavnagar, Camp at Botad in the Sessions Case No.46 of 2016 are hereby quashed and set aside. The appellants are ordered to be acquitted of all the charges and they be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded. Criminal Misc. Application, if any, stands disposed of.
32. However, all the three appellants shall furnish bail bond and surety bond of Rs.15,000/- each afresh before the Trial Court as prescribed under Section 437-A of the Code of Criminal Procedure, 1973.
(J. B. PARDIWALA, J) (A. C. RAO, J) Vahid Page 40 of 40 Downloaded on : Sun Jun 30 18:56:59 IST 2019