CHANDRAKANT CHIMANLAL DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The first accused Subamiya Deshmohmed is the appellant in Criminal Appeal No. 495 of 1979 and the second accused Chandrakant Chimanlal Desai is the appellant in Criminal Appeal No. 327 of 1979. They were charged under S. 302 read with 120B and Ss. 302 read with 34, 201/34, 404 and 507, I.P.C. for having entered into a criminal conspiracy to kidnap and murder a four years old child by name Tinu and for having committed, in furtherance of a common intention and the conspiracy, the murder of the said child. The motive for the commission of such heinous crime was stated by the prosecution to be the deep craving of the second accused, who was childless, to have a child and the confidence or advice he had received from a Sadhu or a Saint, who had assured him that his desire would fructify if he offered the tuft of hair of a young boy to Kalka Mata a deity. The prosecution case as brought out in the evidence show that the deceased Tinu is the son of one Budhi Prasad (P.W. 35) and this child was born to him after the birth of six daughters. Budhi Prasad is a Kandoi by profession and runs a shop of sweets and Nimkins at Prantij, a town in Gujarat State. The deceased Tinu used to go to shop of his father, which was situated near the S.T. Bus Stand, in the town and be with the father playing in or around that area. On the day of occurrence, namely, 27th of August, 1977 the boy was as usual with his father and around 1.30 p.m. both father and the boy went to their house for noon meal and returned around 3.00 or 3.30 p.m. At the time the first accused who was known to the family and who used to play with the child was also seen sitting on a bench lying near the shop. Around 4.30 p.m. Budhi Prasad noticed that his son was missing. He immediately sent his servant to find out where the child had gone. On being told that he was not found even in his house he became suspicious and made a search for the child in the entire town. Not finding any clue regarding his whereabouts at about 7.00 p.m. he informed the Prantij Police that his son Tinu was missing. It was the further case of the prosecution that, around 10.30 p.m. the news of missing of the child having spread like fire, a crowd of people collected near Nagar Panchayat office and the people had caught hold of accused No. 1 obviously on suspicion. The second accused was also a member of that crowd. At that time accused I asked or enquired of Budhi Prasad who had come there whether he had any doubts in his mind against him. Since Budhi Prasad at that time did not entertain any doubts about him he informed the people that he entertained no suspicion against him. The crowd accordingly freed accused 1. The prosecution case further went on to say that on the next day, namely, 28th of August, 1977 at about 5.30 p.m. Budhi Prasad was going to S.T. Stand and that time he saw accused 2 sitting near the Octroi Cabin. The second accused inquired of Budhi Prasad as to whether Tinu had been traced. Budhi Prasad gave a negative reply and was proceeding further. However, the second accused called him and told him that there was a Jasa Chitthi demanding a ransom. When Budhi Prasad demanded accused 2 to give him the Jasa Citthi the accused did not hand it over but allowed him to read the same while keeping the Jasa Chitthi in his own hand. This Jasa Chitthi cautioned that the fact of the demand should not be told to the police on pain of certain consequences. The details of the Jasa Chitthi need not be set out at this stage. Budhi Prasad went home and later in the day he sent his brother Chinubhai (P.W. 27) to the second accused to bring the said Jasa Chitthi and accordingly Chinubhai went to the second accused and got the Jasa Chitthi and handed over the same to Budhi Prasad. Later Budhi Prasad is said to have handed over that letter to one Dhirubhai (P.W. 28). It is further stated that on the 29th of August, 1977 around 5.30p.m. Budhi Prasad heard the news that a dead body of a boy has been seen in the Nalia going to village Lakroada. Budhi Prasad went with his brother and others to the spot. The dead body was identified as that of missing child Tinu. Meanwhile, the President of Prantij Nagar Panchayat had informed the police that a dead body was seen at the Nalia. Budhi Prasad then gave his complaint under S. 302. The first accused was arrested at 9.00 p.m. on 30th of August, 1977 and on the same night in the early morning at 4.30 a.m. on 31st of August, 1977, the second accused also was arrested. The first accused was kept in police custody until the 6th of September, 1977 when he was remanded to judicial custody. On the 8th of September, 1977 he was produced before the Judicial Magistrate (P.W. 40) on the ground that the first accused desired to make a confessional statement. On the 9th of September, 1977 the confessional statement given by the first accused was recorded. As many as 42 witnesses were examined for the prosecution and a number of documents produced. The learned Sessions Judge Sabarkantha District at Himatnagar acquitted both the accused. The State of Gujarat preferred an appeal to the High Court. A Division Bench of the High Court came to the conclusion that the prosecution has proved beyond all reasonable doubts that the accused had committed the murder and accordingly convicted them for offences punishable under S. 302 read with 34 and also 302 read with 120B, Indian Penal Code and sentenced them to life imprisonment. We may also mention that the High Court was also of the view that both the accused are guilty of committing the other offences mentioned in the charge but it was not necessary to award any separate sentences in respect of those charges. It is against this conviction and sentence that the appellants have preferred these two appeals.

(2.) There are no eye witnesses to the occurrence and the whole case of the prosecution depends on the circumstantial evidence. The trial Court noted the well-settled principle of law that in a case depending on circumstantial evidence the prosecution must fully establish the incriminating facts and circumstances by cogent and reliable evidence and the facts so established must be consistent with the guilt of the accused and should not be capable of being explained away on any other reasonable hypothesis than of his guilt. Keeping this principle in mind according to the learned Judge if the facts are analysed most of the prosecution witnesses could not be relied on and even if some of them are relied on they do not prove the guilt of the accused. As regards the confessional statement he said it was not reliable because the prosecution had not proved that necessary precautions were taken, necessary warnings were given and that it appeared that a copy of the confessional statement was in the hands of the police even on the day when the confessional statement was recorded. On these reasoning the trial Court held that the prosecution had not proved the guilt of the accused beyond all reasonable doubt and accordingly acquitted them. The High Court also had expressly referred to the law on this subject lating to circumstantial evidence and also warned itself on two other aspects in approaching the evidence on record. Firstly, the trial Court which had the opportunity of witnessing the demeanour of the witnesses had not relied on most of the prosecution witnesses and that in an appeal against acquittal in addition to the presumption of innocence of the accused the fact of acquittal had also to be kept in mind. Secondly, it appears that this case had evoked a lot of public attention and considerable attention had also been given to the case in the press and that therefore it was required that the heinous nature of the crime or the attraction of the press or the public should not at all adversely affect the approach to the evidence and that detached approach to the whole case with an anxious desire to find out the real truth was needed. Even after taking these precautions and warnings the learned Judges were of the view that the prosecution has proved the guilt of the accused and convicted the appellants of murder and conspiracy and sentenced them to life imprisonment.

(3.) In these appeals Mr. T. U. Mehta, who appeared for the second accused and Mr. Y. C. Dhingra, who appeared for the first accused took us through the entire evidence for a reconsideration of the material evidence available so as to enable us to come to an independent conclusion on the question of guilt or otherwise of the accused. We have also given our serious and anxious consideration to the entire evidence. But we think it will suffice if we notice in this judgment only some of the important aspects of the evidence without going into the minute details about the entire prosecution case though we have the full power to review at large the entire evidence and to reach an independent conclusion of our own. We have however concentrated upon such evidence and such matters on which the High Court differed from the trial Court both on the credibility of the witnesses and the incriminating nature of facts and circumstances spoken to by those witnesses.