THE STATE OF GUJARAT vs ANILKUMAR PARSHOTTAMBHAI PATEL & ORS.

This appeal is preferred under section 378(1)(3) of the Code of Criminal Procedure 1973 against the order of acquittal dated 30.6.2006 passed by learned Additional Sessions Judge, Fast Track Court No.2, City Civil & Sessions Court, Ahmedabad in Sessions Case No.65 of 2006 whereby the respondents accused are acquitted for the offences under sections 364, 302, 201 read with section 120-B of Indian Penal Code and section 135(1) of the B.P.Act as the prosecution failed to prove its case beyond reasonable doubt.

The broad facts of case of the prosecution are that the respondents accused hatched criminal conspiracy in order to teach lesson to deceased Yogesh who was having illicit relation with the wife of respondent No.1 - Anilkumar Patel, abducted him firstly to the toll booth at Ahmedabad Vadodara Express Highway wherein during nocturnal hours, accused Nos.1 to 4 beaten deceased Yogesh severally, due to which, he succumbed to the injuries. It is the case of the prosecution that accused No.5 also associated in calling and bringing deceased Yogesh to his house and thereby the accused Nos.1 to 5

committed the offence of abduction as well as murder, whereas accused Nos.6 and 7 along with accused No.1 destroyed the clothes as well as chappals of deceased Yogesh and thereby committed the offence of destruction of evidence. All the aforesaid offences came to be committed by the accused in furtherance of the conspiracy hatched by them and the FIR being CR No.I - 65 of 2005 was accordingly registered with Vatva GIDC Police Station against the accused persons. At the end of investigation and on filing of the chargesheet, the case came to be committed and registered as Sessions Case No.65 of 2006 in which the prosecution examined for about 25 witnesses and also tendered for about 37 documentary evidence and on appreciation thereof, learned trial Judge found that the prosecution was not able to establish the charge having nexus with the guilt of the accused which resulted into acquittal.

Being aggrieved and dissatisfied by the above judgment and order of learned trial Court, the State of Gujarat has preferred this appeal.

4.1 Mr.Rutvij Oza, learned APP has taken us through the entire record and submitted that since the case of the prosecution rested upon the evidence in the nature of circumstantial evidence coupled with extra judicial confession as no direct evidence is available on record, the

prosecution successfully brought on record the evidence linking each one of the accused so far as the crime in question is concerned. He submitted that the said evidence is not properly appreciated and considered by learned trial Judge and wrongly recorded the acquittal. He submitted that wife of accused No.1 had illicit relation with the deceased and therefore, all the accused hatched criminal conspiracy and in execution thereof, the accused abducted the deceased in order to teach him lesson and they done him to death at the toll booth under construction upon Ahmedabad Vadodara Express Highwway. He submitted that the presence of deceased Yogesh came to be secured firstly from his house at Mehsana and thereafter he was abducted to the aforesaid toll booth where during nocturnal hours, he was stripped off and thereafter by using plastic pipe rod and stick, he was severally beaten and hence, he received serious injuries over his person, due to which, accused No.1 admittedly taken deceased Yogesh to LG Hospital for treatment and he was also present there. He submitted that the said fact is also being established in the evidence of the Doctor who treated the deceased as well as his own accountant who arrived there to hand over the amount for expenditure of treatment. He submitted that during the treatment, deceased Yogesh succumbed to the injuries and other evidence on record is clearly linking the accused as to how accused Nos.1 to 5 abducted and

inflicted injuries over the person of the deceased and clear circumstances are brought on record through oral as well as documentary evidence. He submitted that so far as destruction of clothes as well as chappals of the deceased by accused Nos.6 and 7 is concerned, the said evidence has also been brought on record and in view of the aforesaid evidence on record, learned trial Judge could have convicted the accused, as such. Therefore, it is submitted that appeal deserves to be allowed by reversing acquittal and the respondents be convicted of the offences for which they were charged and to impose maximum sentence under the statute.

As against the above, Mr.J.M.Panchal, learned senior advocate assisted by Mr.K.J.Panchal, learned advocate appearing for respondent No.1 and Mr.N.D.Nanavati, learned senior advocate appearing for rest of the accused have supported the impugned judgment rendered by learned trial Court and argued that learned trial Judge has recorded ample reasons for arriving at the decision on various points raised for its determination and the findings recorded thereon are based upon the evidence available on record and there appears no other plausible view and therefore, this Court may not disturb the findings recorded by learned trial Judge. Learned senior counsel further argued that though the prosecution examined about 25 witnesses,

majority of the witnesses have turned hostile including real mother, brother-in-law and near relatives had also not supported the case of the prosecution. Learned senior counsel further submitted that other documentary evidence in the nature of discovery and recovery of muddamal articles linking the accused with the crime in question also could not be proved in accordance with law. As per their submission, the prosecution has miserably failed to link the accused with the crime in question. They further argued that near relatives have turned hostile to the case of the prosecution and therefore, entire evidence in order to link the accused with the crime in question, especially the evidence as regards to hatching conspiracy based upon the motive stating that the deceased had illicit relation with the wife of accused No.1 could not be established and therefore, the prosecution has miserably failed to establish hatching of conspiracy itself and stray pieces of evidence laid before the trial Court linking the accused with the crime in question remain to be insignificant as the prosecution has miserably failed to link each one of the accused with the chain of circumstances so as to establish the guilt on the part of the accused as the case is based upon the circumstantial evidence. Precisely, as per their submission, the prosecution has miserably failed to establish hatching of conspiracy on the part of the accused

in execution thereof and also failed to establish discovery, recovery and participation of the accused in order to execute the conspiracy as the mother and brother-in-law of the deceased had turned hostile to the case of the prosecution. Therefore, in absence of motive, the case of the prosecution based upon the circumstantial evidence cannot take any further to link the accused with the crime in question.

Having given our thoughtful consideration to rival submissions made by

learned APP for the State and learned counsel appearing for the defence and perusal of the paper book containing the record of the case, we are of the view that judgment and order of acquittal by learned trial Judge cannot be said to be perverse, contrary to the evidence on record or in any manner illegal so as to warrant interference of this Court in exercise of the appellate powers under section 378 of the Code of Criminal Procedure 1973. Ordinarily, while agreeing with the reasons assigned by learned trial Judge for which findings and conclusions are drawn for acquittal of the accused, it is not necessary for the appellate court to assign detailed reasons and to discuss the evidence threadbare. However, in the facts of this case, we have again carefully examined the evidence of PW 1 - Bipin Kanjibhai Patel - complainant who in his testimony has clearly deposed that he is resident of Mehsana and is running his business of Auto Spare Parts and Manguben Vitthalbhai is his mother-in-law and deceased victim Yogesh was his brother-in-law. The witness has deposed that in the month of June 2005, his mother-in-law arrive at his home at about 5.00 O''clock in the morning and appraised him that Yogesh did not arrive at home during the night and he had been beaten by somebody and he is at the LG Hospital where he is undergoing treatment. The witness has deposed that she did not give the name of any assailant. He, thereafter, along with Manguben and others visited the deceased at LG Hospital. The deceased was lying on the bed and was unconscious and he had sustained several injuries over his person. None of the accused were present there. As the witness did not support the case of the prosecution, he was declared hostile. Though extensive cross examination was carried out of this witness as regards to his complaint, but he did not support it. In the cross examination undertaken on behalf of the accused, he deposed that houses of deceased Yogesh and accused No.1 are adjacent to each other having one common wall and they have very good relation. The witness has admitted that his mother-in-law Manguben told him that on 9.6.2005 Yogesh went out for his business purpose and did not return on that day. The witness has admitted that deceased Yogesh had no illicit relation with any woman.

PW 3 - Dr.Chiragbhai Mansukhlal Thakkar who treated the victim has deposed that on 10.6.2005, the patient i.e. Yogesh Viththalbhai was brought before him and he was in injured condition. He was brought by one Anilkumar and in the history, it was stated that he was beaten by stick by unknown person. Upon his examination, sub-dural hemorrhage was found over his frontal temporal as well as other several injuries were found over his entire body. The witness has deposed that injuries were so severe that a person may die and such injuries could be possible by hard and blunt substance. In his deposition, medical certificate and case papers were brought on record at Exh.12 and 20. In the cross examination, the witness has admitted that a person who brought the deceased was stated to be Anilkumar, but his father''s name was not recorded.

PW 4 - Dilipkumar Shankerlal Vyas has been examined at Exh.21 and he deposed that on 10.6.2005, he carried out autopsy over the dead body of Yogesh in between 3.00 pm and 5.00 pm in the panel with Dr.B.C.Patel. The witness has deposed that during the course of autopsy, they found for about 36 injuries over the person of Yogesh and all the injuries were antemortem. According to their opinion, the cause of death was shock and hemorrhage due to multiple injuries

sustained over the body. In his deposition, PM report came to be admitted in evidence. The aforesaid injury, according to their opinion, could be possible by hard and blunt substance as well as pointed sharp instrument.

PW 5 - Manguben Vitthalbhai Patel has been examined at Exh.23 who is mother of the deceased has deposed that her husband died in the year 1987. The witness has deposed that she was staying along with his son who was unmarried and he was doing his auto garage work. The witness has deposed that Tarun @ Chiman Patel was friend of deceased Yogesh and accused Anilkumar was residing nearby the house to her and the name of his wife is Hina. The witness has deposed that regarding the death of his son Yogesh, Tarun informed her that somebody had beaten him and he was hospitalized, except that nothing was told to her. Upon receiving such information, she visited along with Bipinbhai Kantibhai and Harshad to LG Hospital where his son was lying in the bed and was unconscious. At that time, Tarun was present at the hospital, but he did not tell anything regarding incident. She identified accused Nos.1 to 4 before the learned trial Court, but she denied that Tarun had told anything against them. She further deposed that she did not know as to who has beaten Yogesh and where he was beaten. As she did not support the case of the prosecution, she was declared hostile.

Thereafter, learned Additional Public Prosecutor carried out extensive cross examination, but she did not at support her previous statement before the police. On the contrary, in the cross examination undertaken by the accused, she admitted that her son Yogesh had no illicit relation with any woman and on the day of incident, Yogesh gone for car repairing.

PW 6 - Dhirajbhai Vadilal Valand has been examined at Exh.24 who was panch in whose presence, the panchnama at toll plaza situated at Ahmedabad Vadodara Express Highway wherein the detail panchnama of room was undertaken. However, in the cross examination, he has admitted that while carrying out such panchnama, the police was recording statements of other labourers who were working there. The labourers informed the police that one unknown person was beaten by the labourers believing him to be thief, due to which, his employer was informed and he had taken such beaten person to the hospital.

PW 8 - Tarunkumar Chimanbhai Patel has been examined at Exh.36 who was cousin brother, friend and neighbour of deceased Yogesh. The witness has deposed that he was residing at 5A, Shreyash Society, whereas decesed Yogesh was residing in 5B, Shreyash Society. The father of decesed Yogesh expired in the year 1987. Yogesh

was unmarried and he was his cousin brother. The witness has deposed that he knew accused No.1 - Anilkumar and his wife Hina. The witness has further deposed that he heard that there was some rumour regarding illicit relation between Yogesh and Hina. The witness has deposed that on 9.6.2005 at about 3.18 pm, Anilkumar and Satish - accused Nos.1 and 2 called him and asked as regards to whereabouts of Yogesh and they were also abusing him and he was directed to bring Yogesh to the house of accused No.5 where the discussion as regards to his relation with Hina was required to be settled and he would be made to understand leaving such relation otherwise he would be done to death. Thereafter, he called Yogesh. The witness has deposed that Yogesh replied that he was at Ahmedabad and he did also receive such call from accused Nos.1 and 2 i.e. Anilkumar and Satish and they also told the same thing to him. Thereafter, he visited the house of accused No.5 and stayed upto 5.30 hours, but Yogesh did not arrive there and thereafter at about 3.30 am on 10.6.2005, the father of accused No.1 i.e. Parshottambhai arrived at his house, wake up him and told him that accused Anilkumar, Satish, Naresh Mohanbhai Patel, Dinesh Patel abducted Yogesh and beaten him at toll plaza at Ahmedabad and the victim has been admitted in LG Hospital and he was further directed to inform the said fact to the mother of Yogesh. The witness has deposed that thereafter he informed

Manguben, mother of Yogesh and thereafter they went to LG Hospital where he found accused Dinesh Patel, Naresh Mohanbhai Patel and Anilkumar present in the hospital and Yogesh was unconscious and in critical condition. The witness has deposed that thereafter Yogesh was shifted to Sal Hospital where he succumbed to the injuries at about 8.50 am. The witness has deposed that thereafter his statement came to be recorded before learned Metropolitan Magistrate under section 164 of the Code of Criminal Procedure 1973 which came to be produced during his deposition and shown to him but he did not depose anything as regards to the said statement. The detailed cross examination of this witness was carried out by learned advocate for the accused which runs into for about 11 pages wherein on almost all the points he admitted as regards to contradictions made by him in examination-in-chief and also admitted certain things which he did not state before the police. The witness has improved upon his version.

PW 17 - Rashidaben Mohammadibhai Vora has been examined at Exh.58 who was learned Metropolitan Magistrate, Court No.3, Ahmedabad. The witness has deposed that she recorded the statement of Tarunbhai Patel under section 164 of the Code of Criminal Procedure 1973 and before that, he was given appropriate time for thinking and he was made to understand that he was not

duty bound to make any such statement, but he voluntarily gave such statement and the same was recorded on 2.8.2005 after observing mandatory provisions for recording such statement.

PW 25 - Jyotindra Amratlal Upadhyay has been examined at Exh.80. The witness has deposed that in the year 2005 he was serving as Police Inspector of Vatva Police Station. The witness has deposed that on 10.6.2005, he was informed by PSI Balwantsinh that "one person is admitted in in LG Hospital and he is unconscious". When he visited injured in the hospital, he was unconscious, but at that time, brother-in-law of injured i.e. Bipin was present, his complaint was recorded and thereafter he undertaken the investigation. He recorded statements of various witnesses, carried out panchnama, also drawn panchnama of discovery and recovery of articles linking the accused with the crime in question and at the end of investigation, he filed the chargesheet.

As noted above, the case of the prosecution has rested upon the circumstantial evidence and extra judicial confession alleged to have been made by accused No.1 before the witness and recovery and discovery of incriminating articles relatable to the deceased as well as accused who are involved in the crime in question and therefore, we are called upon to examine as

to whether the prosecution has proved the case beyond reasonable doubt so as to link each one of the circumstances linking the accused with the crime in question or not.

On overall evaluation of the evidence on record, indisputably, there appears no direct evidence on record to link the accused with the crime in question. Indisputably, the case of the prosecution was the result of criminal conspiracy hatched by the accused as the deceased had illicit relation with the wife of accused No.1 - Anilkumar and in consequence thereof, the deceased was abducted on 9.6.2005 during evening hours from his house situated at Mehsana and he was abducted to toll plaza situated at Ahmedabad Vadodara Express Highway at Ahmedabad where it is alleged that accused Nos.1 to 4 inflicted serious injuries over the person of the deceased, stripped off the deceased, due to which, the deceased received serious injuries over his person and ultimately, he succumbed to the injuries on the following day i.e. on 10.6.2005 at about 8.50 am.

In our appreciation of entire evidence on record, it can be seen that the prosecution has failed to establish as to whether the deceased was abducted either from his house or from the house of accused No.5 situated at Mehsana to Toll Plaza, Ahmedabad Vadodara Express

Highway, Ahmedabad. The entire case of the prosecution was rested upon the hearsay evidence of Tarun - PW 8, inter alia, disclosing as if father of accused No.1 i.e. Parshottambhai told him certain things as regards to abduction and beating over the person of deceased Yogesh, however, the prosecution did not cite said Parshottambhai who was father of accused No.1 as witness and examined and therefore, entire story put up by PW 8 - Tarun may be accepted to be true then, in that event also, his entire testimony remains to be hearsay, as such and not more than that. However, said Tarunbhai - PW 8 has not fully supported the case of the prosecution as in our reading of his evidence, initially, in the examination-in-chief, he supported the case of the prosecution, but he did not depose anything as regards to his statement under section 164 of the Code of Criminal Procedure, 1973 and in his cross examination undertaken by the accused, he has admitted many things to be improved by him during the course of trial, which in fact, he has not stated before the police. Several contradictions have been brought on record and therefore, learned trial Judge did not believe his evidence at all. In our appreciation of his evidence also, there appears no uniformity in his evidence as regards to examination-in-chief and cross examination and he has made lots of contradictions which renders his evidence to be unworthy of credit.

So far as the evidence as regards to beating deceased Yogesh at the room situated at Toll Plaza, stray evidence is available on record, but nothing concretely establishing that present accused Nos.1 to 4 had beaten deceased Yogesh. On the contrary, in the prosecution case itself, it reveals that deceased Yogesh was found at the said toll plaza as unknown person and he was considered to be thief by the employees working there and he was beaten by such labourers and noticing the same, accused No.1 took him to LG Hospital. So far as other evidence which came to be collected by undertaking discovery and recovery panchnama, admittedly, none of such panchas have supported the case of the prosecution and the circumstantial evidence brought on record is merely linking the accused No.1 who was present at the LG Hospital as the same fact is coming out from the mouth of Dr.Chirag Thakkar and from the mouth of his own Accountant saying that he had handed over Rs.2000/- to accused No.1 at the LG Hospital and one another circumstance linking the place of incident i.e. room situated at Toll Plaza wherein the blood stains which were found over the wall were relatable to blood group "B" which was of the deceased. Though, as the accused put up the defence that the deceased was found there in beaten condition treating him to be thief by the labourers who were staying there and therefore,

the deceased was taken to the hospital and that defence appears to be plausible as the real mother of the deceased deposed that Yogesh went out for his business purpose from Mehsana and she denied having any illicit relation with the wife of accused No.1 and even she denied as to whether Yogesh was beaten by accused Nos.1 to 4. Similarly, brother-in-law / complainant as well as his cousin are also not supporting the case of the prosecution and the prosecution miserably failed to establish the genesis / motive of the crime as regards to illicit relation of deceased Yogesh with the wife of accused No.1 and therefore, the prosecution has failed to establish hatching of criminal conspiracy on the part of the accused in order to fulfill their motive.

We have thoughtfully considered the rival submissions advanced by learned APP as well as learned senior counsel for the respondents accused as well as evidence of material witnesses, documentary evidence, various panchnamas and other evidence available on record in light of the finding recorded by learned trial Judge. In our reading of the evidence on record, the prosecution has also failed to establish as to whether accused No.1 or any other accused made any extra judicial confession before the complainant - Bipinbhai and Tarun. In our considered view, the prosecution has miserably

failed to establish hatching of criminal conspiracy as well as abduction and committing murder of the deceased by the accused and therefore, we are not inclined to exercise powers under section 378 read with section 386 of the Code of Criminal Procedure 1973 as the order of acquittal impugned in this appeal is based on sound reasonings, findings and conclusions drawn about no guilt of the accused is within four corners of law in appreciating the evidence. In absence of merit, appeal fails and stands dismissed. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.