TMI Blog1996 (5) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) to enquire of his whereabouts. Shamjibhai first went to the office of Gordhanbbhai Patel (P.W.1), a cousin of the deceased, where he found Manjibhai Devjibhai (PW 10) sitting. He (PW 10) disclosed that at noon time he had seen the deceased near the market, sitting on the pillion of a scooter which was being driven by Ramesh (the appellant). They then went in search of the deceased in the market and other places but could not trace him out. Ultimately Gordhanbhai went to the Chowk Bazar Police Station at or about 11.45 P.M. and lodged a missing information (Ext. 63). (b) In the meantime, some people of Patel community, to which the deceased belonged, having learnt that he was missing also started searching for him. In course of the search some of them went to the flat of the appellant, which was on the fourth floor of a building named `Yagnapurush', at Rampura. On their query the appellant informed them that along with the deceased he had gone to the office of Jayantibhai Master to show him some diamonds but as his office was closed they came back and on the way the deceased got down at Rampura. On the following day, that is, on September 3, 1980 attempts where again ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Banaskantha to apprehend him. Ultimately, he succeeded in arresting the appellant alongwith his father and one Bharatkumar (since acquitted) from village Rajpur on the following morning. On search a packet containing diamonds was found in the pocket of the trousers the appellant was wearing. (g) On September 9, 1980 Mr. Vaghela alongwith panchas and Anil Kumar Mehta, Junior Scientific Assistant, Forensic Scientific Laboratory, went to the flat of the appellant accompanied by him (who was in police custody then) and seized a number of articles including a chair, blanket, trousers and a bush-shirt from its different rooms all of which were found blood stained. Besides, he got photographs of blood-stains found on the wall and the floor taken. (h) On completion of investigation chargesheet was submitted against the four persons arrested during investigation, including the appellant, and in due course the case was committed to the Court of Session. 3. The appellant pleaded not guilty to the charges levelled against him and contended that he had been implicated in the case on mere suspicion. 4. To sustain the charges levelled against the accused persons the prosecution r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September 9, 1980 was similar to the string with which the deadbody of Khodabhai was found tied. 6. The trial Court discussed the evidence adduced by the prosecution in support of each of the above circumstances at great length (the judgment runs through 178 pages) and held that the prosecution could not satisfactorily prove any one of them. In setting aside the above judgment and convicting the appellant the High Court recorded the following findings: In our view, therefore, the prosecution has proved beyond reasonable doubt that the accused and deceased were seen together on a scooter on 2.9.80. Thereafter they were seen in the block of accused No.1 at 1.30 p.m. Accused No. 1 was seen panicky at about 4.00 to 4.30 p.m. On the next day i.e. on 3rd September, 1980 the accused along with other persons was seen going with metallic box similar to article No.2 in which the dead body of Khodabhai was found. The box was lifted by two persons i.e. one handle was held by accused No.1 and other was held by an other person. From the apartment of accused No.1 number of articles as stated above containing human blood group A were found. The blood of the deceased Khodabhai is also A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing down the staircase with a big trunk wherefrom blood coloured drops were trickling and the younger brother of the appellant (since acquitted) wiping out the steps of the staircase to remove those drops. After going out of the building they talked to a person standing by the side of rickshaw stationed nearby. One or two minutes thereafter that person left the place with the rickshaw and then the appellant and others proceeded ahead. PW 3 next stated that a little later he had asked Dhirubhai Babulal Shah (P.W.4), as to why those persons had come at that time to which Dhirubhai's answer was that as he was sleeping he did not know anything. In cross-examination he admitted that till his statement was recorded by the police on September 7, 1980 he had not disclosed to anybody what he had seen in the morning of September 3, 1980. He further admitted that though in the evening of `third' (obviously referring to September 3, 1980) and also in the night of September 3, 1980 police officers and other persons had come in search of the appellant and had remained in his flat for some time and that though at that time he know that the appellant was involved in the offence he did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the afternoon of 7th September, 1980 when they were allowed to go after interrogation. The trial Court next observed that PW 4 had also tried to improve upon his police version, in view of the various contradiction appearing in the evidence of this witness which had been brought on record. For all these reasons the trial Court did not feel inclined to rely upon the same. Similar was the comment by the trial Court regarding the other witness, namely, Smitaben (P.W.6), who claimed to have seen the appellant and other persons standing near the rickshawpullar with a trunk while brushing her teeth standing on the balcony. This witness also stated that the police had taken her for recording her statement between 3.00 P.M. to 4.00 P.M. on September 6, 1980 and before that day she did not disclose those facts to the Patels who had come in search of the appellant. The trial Court also referred to the various material contradictions brought on record with reference to her statement recorded under Under Section 161 Cr.P.C. Having carefully gone through the evidence of these three witnesses we find that each of the reasons given by the trial Court for disbelieving them are clear, cogent and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is industrial apartment. Now deceased Khodabhai would have raised shouts and offered resistance in order to save himself from receiving the injuries and that could have been heard by the prosecution witnesses, Dhirubhai Babulal Shah, Pravinchandra Babaldas Parikh and Smitaben Pravinchandra as their flats are situated by the side of flats are of accused No.1. Now P.W.4- Dhirubhai Babulal Shah in cross- examination has stated that on the Janmashtami day, between 12.00 noon to 4.30 P.M. he had not heard any sound coming from the flat of accused No.1-Ramesh, P.Ws. Pravinchandra Babaldas Parikh and Smitaben pravinchandra Parikh have stated that at about 4.00 P.M. on the Janamashtami day, accused No.1- Ramesh had come to their flat. Now this cannot be the conduct of a murderer and therefore the prosecution story that Khodabhai was murdered in flat No. 29 between 1.30 to 4.00 or 4.30 P.M. is most unnatural and improbable. 11. The above conclusions of the trial Court and the reasons for arriving at the same in our view are unexceptionable; and, at the cost of repetition, we would like to mention that the High Court did not even consider these findings of the trial Court, mush ..... X X X X Extracts X X X X X X X X Extracts X X X X
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