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WRONGFUL CONFINEMENT AND MURDER = the confessions made by the accused persons and the issue of leading to discovery of articles.=There can be no shadow of doubt that the confession part is inadmissible in evidence. It is also not in dispute that the panch witnesses have turned hostile but the facts remains that the place from where the dead body of the deceased and other items were recovered was within the special knowledge of the appellant.- wherein it has been ruled that by virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer the place where the dead body of the kidnapped person was found would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act or not. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. In the case at hand, the factum of information related to the discovery of the dead body and other articles and the said information was within the special knowledge of the present appellant. Hence, the doctrine of confirmation by subsequent events is attracted and, therefore, we have no hesitation in holding that recovery or discovery in the case at hand is a relevant fact or material which can be relied upon and has been correctly relied upon.; the last seen theory = The appellant has been identified by Kantibhai, PW-13, and Durlabhbhai, PW-15, and their evidence remains totally embedded in all material particulars. It has been proven by the prosecution that the Maruti Zen car belongs to the appellant. There has been no explanation offered by the accused in this regard, though such incriminating materials were put to him. – the injuries found on the dead body were approximately four days old. On the contrary, from the testimony of Madhuben, PW-14, wife of the deceased, it is evincible that she had talked on telephone to both the accused persons. Thus, the circumstance pertaining to the theory of last seen deserves acceptance. ;WHEN THE QUESTION OF NON- EXAMINATION OF WITNESS ARISE = “It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, nonexamination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself — whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of nonexamination of other witnesses.”; NON- explanation under Section 313 CrPC = Though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 CrPC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances.; SCOPE OF SEC.120 -B =It is urged by him that A-2 stood on the same footing as the appellant and hence, the High Court should have acquitted him. It is also canvassed by him that A-2 has been acquitted of the charge of criminal conspiracy and, therefore, the appellant deserves to be acquitted. The High Court has taken note of the fact that A-2 was not identified by any one in the test identification parade. It has also noticed number of material contradictions and omissions and, accordingly, acquitted A-2. As far as the appellant is concerned, all the circumstances lead towards his guilt. As far as conspiracy under Section 120B is concerned, we are inclined to think that the High Court erred in not recording an order of acquittal under Section 120B as no other accused had been found guilty. The conviction under Section 120B cannot be sustained when the other accused persons have been acquitted, for an offence of conspiracy cannot survive if there is acquittal of the other alleged co-conspirators.- Resultantly, the appeal fails except for the acquittal for the offence of conspiracy. However, as we have sustained the conviction under Section 302 IPC and all the sentences are directed to be concurrent, the acquittal for the offence punishable under Section 120B would not help the appellant.

PUBLISHED IN http://judis.nic.in/supremecourt/filename=40453

 

Page 1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1044 OF 2010
Harivadan Babubhai Patel … Appellant
Versus
State of Gujarat .. Respondent
J U D G M E N T
Dipak Misra, J.
The appellant, A-1, along with Dipakbhai Zinabhai Patel, A-
2, Raghubhai Chaganbhai Patel, A-3, and Babubhai Khushalbhai
Patel, A-4, faced trial in Sessions Case No. 28 of 2006 in the
Court of the learned Sessions Judge, Valsad, for the offences
punishable under Sections 342, 346, 302, 120B and 201 read
with Section 34 of the Indian Penal Code (for short “IPC”). The
learned trial Judge acquitted A-3 and A-4 as he found them
innocent and convicted A-1 and A-2 for all the offences and
imposed rigorous imprisonment for life and fine of Rs.1,000, in
1Page 2
default of payment of fine, to undergo further imprisonment for
one month under Section 302 and separate sentences for the
other offences with the stipulation that all the sentences shall
run concurrently.
2. Grieved by the aforesaid conviction and sentence, the
accused-appellant and A-2 preferred Criminal Appeal
No. 860 of 2007 and the High Court, by the impugned
judgment dated 20th April, 2009, acquitted A-2 but
sustained the conviction of the appellant for all the
offences. Hence, the present appeal by the accusedappellant, A-1.
3. Filtering the unnecessary details, the prosecution case
is that on 23.1.2006, deceased, Ashokbhai Nanubhai,
accompanied by his brother-in-law, Kantibhai Manilal
Patel, PW-13, had gone to Udwada R.S. Zanda Chowk on
his scooter and went to a tea stall where the deceased
was engaged in a conversation with one Durlabhbhai
Kikubhai Bhandari,PW-15. Durlabhbhai took the
deceased near the railway crossing where 3-4 persons
were waiting in a Maruti car. As the prosecution story
further gets unfurled, the deceased had discussion with
2Page 3
them and, thereafter, those persons informed that they
would take the deceased to the house of Gulia at Valsad
and, accordingly, they took him in the Maruti car
bearing No. GJ-15-K-9263. They had provided one
mobile number stating that if there would be any delay
in the return of the deceased, they could be contacted
on that mobile number. The brother-in-law of the
deceased supplied that mobile number to his sister
Madhuben, PW-14, and went to Daman for his work and
came back in the evening about 5.00 p.m. Thereafter,
he enquired from his sister whether she had talked with
the deceased on the given number or not and he was
informed by her that the mobile phone was picked up
by different persons who spoke differently and, at a
later stage, it was switched off. Someone speaking on
the mobile had also enquired from Madhuben whether
she had gone to the police station. Coming to know
about the situation, Kantibhai made enquiry and
searched about the deceased for two days and when
the deceased did not return, he lodged a complaint at
Pardi Police Station on 25.1.2006 which was registered
as C.R. No. 1-12/2006. After the criminal law was set in
3Page 4
motion, the investigating agency examined the
witnesses and after coming to know about the place
where the accused persons had hidden themselves, the
Investigating Officer arrested them and they confessed
before the police that they had wrongfully confined the
deceased and assaulted him. They also confessed that
they had pressurized the deceased for returning the
money as the money was paid to the passport agent,
namely, Bharatbhai, who was introduced by the
deceased, in the presence of one Ashokbhai alias
Amratbhai. They also stated that they had assaulted
the deceased on 23.1.2006 and when the deceased
succumbed to the injuries, they buried the dead body in
an agricultural farm. At the instance of the accused,
the dead body of the deceased was taken out in the
presence of the panch witnesses. Discovery
panchnama was prepared in presence of the Executive
Magistrate. After carrying out the seizure of footwear,
clothes and jute old blanket, samples of the same were
sent for forensic examination and thereafter, the dead
body, after being identified by wife Madhuben, was
initially sent to the Dungri Primary Health Centre for
4Page 5
post mortem, but as the Medical Officer opined that it
was to be done by a forensic expert, it was sent to Surat
Civil Hospital Forensic Department. The identification of
the accused persons was carried out by the Executive
Magistrate. The Maruti car which was used for the
offence was taken into possession. The investigating
agency examined number of witnesses and, after
completing the investigation, placed the charge-sheet
before the competent court for all the offences in
respect of A-1 to A-3 and as far as A-4 was concerned,
he was charge-sheeted for the offence punishable
under Section 201 IPC.
4. The accused persons pleaded innocence and false
implication and claimed to be tried.
5. The prosecution, in support of its case, examined 19
witnesses and got number of documents including the
FIR, discovery panchnama, panchnama of the seized
articles, the FSL report and the serology report and
panchnama of the test identification parade, exhibited.
In the statement under Section 313 CrPC, the accused
persons made a bald denial of every aspect and did not
5Page 6
offer any explanation and chose not to adduce any
evidence.
6. The learned trial Judge, on the basis of the material
brought on record, found A-1 and A-2 guilty of all the
offences and the High Court affirmed the conviction and
sentence in respect of A-1 only as stated hereinbefore.
7. We have heard Mr. Rauf Rahim, learned counsel for the
appellant and Ms. Hemantika Wahi, learned counsel for
the respondent-State.
8. It is the undisputed position that the death was
homicidal in nature and the case of the prosecution
rests on the circumstantial evidence. Learned counsel
for the appellant has assiduously endeavoured to point
out certain loopholes and contended that because of
the said dents, the prosecution version deserves to be
discarded. Per contra, learned counsel for the
respondent would support the analysis made in the
judgment of the High Court and stand for its
sustenance.
6Page 7
9. We shall deal with the challenges and the stance in
oppugnation one by one. The first ground of attack is
that there is delay in lodging of the FIR and in the
absence of explanation, the case of the prosecution
should be thrown overboard. On a perusal of the
judgments, it is noticeable that the said aspect has
been dealt with in great detail and the plea of delay has
been negatived. It is urged before us that though the
occurrence, as alleged, had taken place on 23.1.2006,
yet the FIR was lodged only on 25.1.2006 indicating
that efforts were being made to search for the deceased
and the said effort is based on some kind of surmises
which do not inspire confidence. On a close scrutiny, it
is evident that as per the FIR and the evidence of the
informant, PW-13, and Madhuben, PW-14, they had
searched for the deceased and realizing that it was an
exercise in futility, they went to the police station. It
has been deposed by them that they had never
apprehended that the deceased would be done to death
though there was a previous quarrel pertaining to
demand of money from the deceased as he had
introduced the passport agent to A-1 who had paid
7Page 8
more than rupees one lakh to obtain the necessary
documents to go to United States of America. It has
been clearly proven that the informant was engaged in
search and he had not apprehended that the life spark
of the deceased would be extinct. The issue is whether
such an explanation is to be believed. In this context,
we may refer with profit to the authority in State of
H.P. v. Gian Chand1
wherein a three-Judge Bench has
opined that the delay in lodging the FIR cannot be used
as a ritualistic formula for doubting the prosecution
case and discarding the same solely on the ground of
delay. If the explanation offered is satisfactory and
there is no possibility of embellishment, the delay
should not be treated as fatal to the case of the
prosecution.
10. In Ramdas and others v. State of Maharashtra2
, it
has been ruled that when an FIR is lodged belatedly, it
is a relevant fact of which the court must take notice of,
but the said fact has to be considered in the light of
1
(2001) 6 SCC 71
2
(2007) 2 SCC 170
8Page 9
other facts and circumstances of the case. It is
obligatory on the part of the court to consider whether
the delay in lodging the report adversely affects the
case of the prosecution and it would depend upon the
matter of appreciation of evidence in totality.
11. In Kilakkatha Parambath Sasi and others v. State
of Kerala3
, it has been laid down that when an FIR has
been lodged in a belated manner, inference can rightly
follow that the prosecution story may not be true but
equally on the other side, if it is found that there is no
delay in the recording of the FIR, it does not mean that
the prosecution story stands immeasurably
strengthened. Similar view has also been expressed in
Kanhaiya Lal and others v. State of Rajasthan4
.
12. Scrutinized on the anvil of the aforesaid enunciation of
law, we are disposed to think that there had been no
embellishment in the FIR and, in fact, there could not
have been any possibility of embellishment. As we find,
3
AIR 2011 SC 1064
4
2013 (6) SCALE 242
9Page 10
the case at hand does not reveal that the absence of
spontaneity in the lodgment of the FIR has created a
coloured version. On the contrary, from the other
circumstances which lend support to the prosecution
story, it is difficult to disbelieve and discard the
prosecution case solely on the ground that the FIR was
lodged on 25.1.2006 though the deceased was taken by
the accused persons some time on 23.1.2006. The
explanation offered pertaining to the search of the
deceased by the informant has been given credence to
by the learned trial Judge as well as by the High Court
and, in our considered opinion, adjudging the entire
scenario of the prosecution case, the same deserves
acceptation. Hence, the said submission is sans
substance.
13. The next limb of attack relates to the confessions made
by the accused persons and the issue of leading to
discovery of articles. It is submitted that the confession
part is absolutely inadmissible and that apart, when the
panch witnesses had not supported the panchnama, the
recovery or discovery of the seized articles cannot be
10Page 11
utilized against the appellant. There can be no shadow
of doubt that the confession part is inadmissible in
evidence. It is also not in dispute that the panch
witnesses have turned hostile but the facts remains that
the place from where the dead body of the deceased
and other items were recovered was within the special
knowledge of the appellant. In this context, we may
usefully refer to A.N. Venkatesh and another v.
State of Karnataka5
wherein it has been ruled that by
virtue of Section 8 of the Evidence Act, the conduct of
the accused person is relevant, if such conduct
influences or is influenced by any fact in issue or
relevant fact. The evidence of the circumstance,
simpliciter, that the accused pointed out to the police
officer the place where the dead body of the kidnapped
person was found would be admissible as conduct
under Section 8 irrespective of the fact whether the
statement made by the accused contemporaneously
with or antecedent to such conduct falls within the
purview of Section 27 of the Evidence Act or not. In the
5
(2005) 7 SCC 714
11Page 12
said decision, reliance was placed on the principle laid
down in Prakash Chand v. State (Delhi Admin.)6
. It
is worth noting that in the said case, there was material
on record that the accused had taken the Investigating
Officer to the spot and pointed out the place where the
dead body was buried and this Court treated the same
as admissible piece of evidence under Section 8 as the
conduct of the accused.
14. In State of Maharashtra v. Damu S/o Gopinath
Shinde and others7
, it has been held as follows: –
“It is now well settled that recovery of an object is
not discovery of a fact as envisaged in the section.
The decision of the Privy Council in Pulukuri Kottaya
v. Emperor8
is the most quoted authority for
supporting the interpretation that the “fact
discovered” envisaged in the section embraces the
place from which the object was produced, the
knowledge of the accused as to it, but the
information given must relate distinctly to that
effect.”
15. Same principle has been laid down in State of
Maharashtra v. Suresh9
, State of Punjab v.
6
AIR 1979 SC 400
7
(2000) 6 SCC 269
8
AIR 1947 PC 67
9
(2000) 1 SCC 471
12Page 13
Gurnam Kaur and others10
, Aftab Ahmad Anasari v.
State of Uttaranchal11
, Bhagwan Dass v. State
(NCT) of Delhi12
, Manu Sharma v. State13 and Rumi
Bora Dutta v. State of Assam14
.
16. In the case at hand, the factum of information related to
the discovery of the dead body and other articles and
the said information was within the special knowledge
of the present appellant. Hence, the doctrine of
confirmation by subsequent events is attracted and,
therefore, we have no hesitation in holding that
recovery or discovery in the case at hand is a relevant
fact or material which can be relied upon and has been
correctly relied upon.
17. The next circumstance that has been seriously criticized
by Mr. Rauf Rahim, learned counsel for the appellant,
10
(2009) 11 SCC 225
11
(2010) 2 SCC 583
12
AIR 2011 SC 1863
13
AIR 2010 SC 2352
14
Crl.A. 737 of 2006 decided on 24.5.2013
13Page 14
pertains to the last seen theory. It is submitted by him
that as per the testimony of the informant, the
appellant along with others had taken the deceased in a
Maruti car, but there is no material evidence to suggest
that the accused was in the company of the deceased
for two days. The learned counsel would further submit
that the last seen theory faces a hazard because of the
time gap and, hence, should be totally discarded. It is
evident from the material on record that the deceased
was taken away from Zanda Chowk in a Maruti car. The
appellant has been identified by Kantibhai, PW-13, and
Durlabhbhai, PW-15, and their evidence remains totally
embedded in all material particulars. It has been
proven by the prosecution that the Maruti Zen car
belongs to the appellant. There has been no
explanation offered by the accused in this regard,
though such incriminating materials were put to him. It
is also worth noting here that from the testimony of Dr.
Pandav Vinodchandra Prajapati, PW-16, who had
conducted the autopsy on 28.1.2006 about 10.00 a.m.,
that the injuries found on the dead body were
approximately four days old. Thus, the argument that
14Page 15
there is long gap between the last seen and the time of
death melts into insignificance inasmuch as the time
the deceased was seen in the company of A-1 and the
time of death is not long and the said fact has been
duly established by the medical evidence and we see
no reason to discredit the same. It is apt to note here
that A-1 had said that they were taking the deceased to
the house of Gulia but during investigation, nothing was
found in the house of Gulia. On the contrary, from the
testimony of Madhuben, PW-14, wife of the deceased, it
is evincible that she had talked on telephone to both
the accused persons. Thus, the circumstance
pertaining to the theory of last seen deserves
acceptance.
18. The next plank of submission is that Gulia to whose
house the deceased was taken to has not been
examined by the prosecution and non-examination of
such a material witness makes the whole case of the
prosecution unacceptable. The learned trial Judge,
dealing with the said contention, has opined that during
the test identification parade, Shaikh Gulamhusssain
15Page 16
had not identified the accused persons and that is the
reason the prosecution was of the view that the said
witness would not support the case of the complainant
and, accordingly, chose not to examine him. In State
of H.P. v. Gian Chand (supra), it has been opined that
non-examination of a material witness is not a
mathematical formula for discarding the weight of the
testimony available on record, howsoever natural,
trustworthy and convincing it may be. The charge of
withholding a material witness from the court leveled
against the prosecution should be examined in the
background of the facts and circumstances of each case
so as to find whether the witnesses are available for
being examined in the court and were yet withheld by
the prosecution. The three-Judge Bench further
proceeded to observe that the court is required first to
assess the trustworthiness of the evidence available on
record and if the court finds the evidence adduced
worthy of being relied on, then the testimony has to be
accepted and acted upon though there may be other
witnesses available who could also have been examined
but were not examined.
16Page 17
19. In Takhaji Hiraji v. Thakore Kubersing Chamansing
and others15
, the Court has opined thus: –
“It is true that if a material witness, who would unfold
the genesis of the incident or an essential part of the
prosecution case, not convincingly brought to fore
otherwise, or where there is a gap or infirmity in the
prosecution case which could have been supplied or
made good by examining a witness who though
available is not examined, the prosecution case can
be termed as suffering from a deficiency and
withholding of such a material witness would oblige
the court to draw an adverse inference against the
prosecution by holding that if the witness would have
been examined it would not have supported the
prosecution case. On the other hand if already
overwhelming evidence is available and examination
of other witnesses would only be a repetition or
duplication of the evidence already adduced, nonexamination of such other witnesses may not be
material. In such a case the court ought to scrutinise
the worth of the evidence adduced. The court of
facts must ask itself — whether in the facts and
circumstances of the case, it was necessary to
examine such other witness, and if so, whether such
witness was available to be examined and yet was
being withheld from the court. If the answer be
positive then only a question of drawing an adverse
inference may arise. If the witnesses already
examined are reliable and the testimony coming
from their mouth is unimpeachable the court can
safely act upon it, uninfluenced by the factum of nonexamination of other witnesses.”
15
(2001) 6 SCC 145
17Page 18
20. In Dahari and others v. State of Uttar Pradesh16
,
while discussing about the non-examination of material
witness, the Court expressed the view that when he was
not the only competent witness who would have been
fully capable of explaining the factual situation correctly
and the prosecution case stood fully corroborated by
the medical evidence and thetestimony of other reliable
witnesses, no adverse inference could be drawn against
the prosecution. Be it noted, the Court also took note of
the fact that during the cross-examination of the
Investigating Officer, none of the accused persons had
voiced their concerns or raised any apprehension
regarding the non-examination of the material witness
therein.
21. In the case at hand, it was A-1 who had announced that
he was taking the deceased to the house of Gulia. On a
search being conducted, nothing has been found from
the house of Gulia. There has been no crossexamination of the Investigating Officer about the nonexamination of Gulia. On the contrary, it was A-1 who
16
(2012) 10 SCC 256
18Page 19
had led to the discovery of the dead body and other
articles. Thus, when the other evidence on record are
cogent, credible and meet the test of circumstantial
evidence laid down in Sharad Birdhichand Sarda v.
State of Mararashtra17 State v. Saravanan18, Sunil
Kumar Sambhudayal Gupta v. State of
Maharashtra19 and further reiterated in Jagroop
Singh v. State of Punjab20
, there is no justification to
come to hold that the prosecution has deliberately
withheld a witness that creates a concavity in the
concept of fair trial.
22. Another facet is required to be addressed to. Though all
the incriminating circumstances which point to the guilt
of the accused had been put to him, yet he chose not to
give any explanation under Section 313 CrPC except
choosing the mode of denial. It is well settled in law
that when the attention of the accused is drawn to the
17
(1984) 4 SCC 116
18
(2008) 17 SCC 587
19
(2010) 13 SCC 657
20
(2012) 11 SCC 768
19Page 20
said circumstances that inculpated him in the crime and
he fails to offer appropriate explanation or gives a false
answer, the same can be counted as providing a
missing link for building the chain of circumstances.
(See State of Maharashtra v. Suresh21). In the case
at hand, though number of circumstances were put to
the accused, yet he has made a bald denial and did not
offer any explanation whatsoever. Thus, it is also a
circumstance that goes against him.
23. We will be failing in our duty if we do not note another
submission of the learned counsel for the appellant. It
is urged by him that A-2 stood on the same footing as
the appellant and hence, the High Court should have
acquitted him. It is also canvassed by him that A-2 has
been acquitted of the charge of criminal conspiracy
and, therefore, the appellant deserves to be acquitted.
The High Court has taken note of the fact that A-2 was
not identified by any one in the test identification
parade. It has also noticed number of material
contradictions and omissions and, accordingly,
21
(2000) 1 SCC 471
20Page 21
acquitted A-2. As far as the appellant is concerned, all
the circumstances lead towards his guilt. As far as
conspiracy under Section 120B is concerned, we are
inclined to think that the High Court erred in not
recording an order of acquittal under Section 120B as
no other accused had been found guilty. The conviction
under Section 120B cannot be sustained when the other
accused persons have been acquitted, for an offence of
conspiracy cannot survive if there is acquittal of the
other alleged co-conspirators. It has been so laid down
in Fakhruddin v. The State of Madhya Pradesh22
.
Thus, the conviction of the appellant under Section
120B is set aside.
24. Resultantly, the appeal fails except for the acquittal for
the offence of conspiracy. However, as we have
sustained the conviction under Section 302 IPC and all
the sentences are directed to be concurrent, the
acquittal for the offence punishable under Section 120B
would not help the appellant. Therefore, the appeal
stands dismissed, but the conviction and sentence
22
AIR 1967 SC 1326
21Page 22
under Section 120B IPC is set aside. The other
convictions and sentences will stand.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
[Dipak Misra]
New Delhi;
July 01, 2013.
22

 

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