STATE OF GUJARAT Vs. VINUBHAI LALJIBHAI PATEL

JUDGEMENT

(1.) The appellants No.1 to 3 were tried by the learned Addl. Sessions Judge, Ahmedabad in Sessions Case No. 255 of 2000 for offences punishable under Section 363 read with Section 120-B of IPC; Section 364 read with Section 120-B of IPC; Section 302 read with Section 120-B of IPC; Section 201 read with Section 120-B of IPC; and Section 384 read with Section 120-IPC. The learned Judge, at the end of the trial, by judgment and order dated 28th August 2003, convicted A1, A2 and A3 for the offences punishable under Section 302 of IPC. All the accused were also convicted for offences punishable under Sections, 363, 364, 384, 201 read with Section 120-B of IPC. All the accused were ordered to suffer RI for seven years for the offence punishale under Section 363 of IPC and were also ordered to pay a fine of Rs.1,000/- each and in default of payment of fine, to undergo RI for one year. All the accused were sentenced to RI for 10 years for the offence punishable under Section 364 of IPC and were ordered to pay a fine of Rs.3,000/- each and in default of payment of fine, they were ordered to undergo SI for two years. All the accused were sentenced to suffer RI for three years for the offence punishable under Section 384 of IPC and were directed to pay a fine of Rs.1,000/- each and in default of payment of fine, they were ordered to undergo further SI for six months. All the accused were also sentenced to suffer RI for seven years for the offence punishable under Section 201 of IPC and were ordered to pay a fine of Rs.1,000/- each and in default, to undergo further SI for one year. Further, all the accused were sentenced to suffer RI for ten years for the offence punishable under Section 120-B of IPC and were ordered to pay a fine of Rs.2,000/- each and in default of payment of fine, they were ordered to undergo further SI for two years. A1 - Vinubhai Laljibhai Patel and A2 - Hasmukh Karshanbhai Patel were sentenced to death for the offence punishable under Section 302 of IPC and were ordered to be hanged by neck till they are dead, subject to the confirmation by this Court and were also ordered to pay a fine of Rs.5,000/- each and in default of payment of fine, to undergo SI for one year. A3 - Dilip J.Patel was sentenced to undergo RI for offence punishable under Section 302 of IPC and was also ordered to pay a fine of Rs.5,000/- and in default of payment of fine, he was ordered to undergo SI for one year. All the aforesaid sentences were ordered to run concurrently.

(2.) All the appellants have challenged the above judgment and order of conviction and sentence, by filing appeals. A1 has filed Criminal Appeal No. 1112 of 2003; A2 has filed Criminal Appeal No.1157 of 2003 while A3 has filed Criminal Appeal No.1209 of 2003. All the appeals are heard together with Confirmation Case No.3 of 2003.

(3.) The facts giving rise to the prosecution case can be summarised as under: Complainant Jivraj Tulshibhai is residing with his family at 16 "Shreeji" Apartment, in Bapunagar area of the city of Ahmedabad. His minor son, Mayur aged about 11 years, studying in 5th Std. was residing with him and his wife Manjulaben in "Shreeji" Apartment, Bapunagar, Ahmedabad.On the fateful day i.e.on 3.3.2000, in the morning at 9.15, Mayur was playing in the parking place of the complex. The complainant being doing the business of Diamonds had gone to Surat for purchasing raw materials. Manjulaben, for the purpose of sending her son Mayur to School, went to the place of parking, but she could not find him. After making futile attempts to find out the missing child, she and her husband's nephew, Ishwarbhai - PW-22 went to Bapunagar Police Station and informed that her son was missing while he was playing in the parking area of the complex, in the morning, at about 11.00 a.m. An entry to that effect was made in the diary of the Police Station. In the meantime, PW-1 was also informed at Surat, who returned to Ahmedabad in the evening. The entire family of the complainant made all efforts to search the missing child Mayur for two days. On 6.3.2000 at about 9.00 p.m., while PW 1 and PW 2 were sitting in the house, A1 Vinubhai came there and told PW-1 that he wanted to tell him in secret that a serious act had been committed by him for which he was repenting. The complainant then told him that PW-2 was his nephew and whatever he wanted to tell, he may tell. A1 thereafter confessed before them that in greed of money, he sent the complainant's son Mayur on 3.3.2000 at about 11.00 a.m. to Agrawal Pan Shop to purchase a Pan. From there, he took Mayur in his Fiat Car and brought him at Thakkar Bapa Nagar approach road and as per the previous plan conspired by him and his friend A2 Hasmukh Karshanbhai, who was present at the approach road, all the three in his Fiat Car arrived at the Bansari Flat situated in Viratnagar, which was hired by him and in the room of the said Flat, A1 and A2 killed Mayur by throttling his neck and put his dead body in a gunny bag after having tied his hand and legs with Jute string and the dead body was tied with Saran (white stone) used for the purpose of polishing diamonds, after inserting iron chain in its hole and locked with iron chain and carried the said bag containing the dead body of the boy in the car and both A1 and A2 threw the same in the Kans (water canal) situated near the culvert of the said Canal on highway prior to Anand City. PW-1 and PW-2 thereafter went to Bapunagar Police Station. Devendra Bhatt, Sr.Police Inspector, PW-26 of Bapunagar Police Station recorded the complaint as stated by PW-1 and also made a report. PW-28-PSO, Bapunagar Police Station registered the offence at 10.00 p.m. being CR No..I-86/2000 and later on handed over the investigation to the Sr.Police Inspector Mr.Bhatt. A1 was arrested at 1.30 a.m. on 7.3.2000 and A2 was arrested on the same day at 1.30 a.m. Both were taken into police custody. The discovery panchanama was drawn at the place of incident (Bansari Apartment) at the instance of A2 in presence of panchas, and the clothes, a pair of leather chappals of the deceased and two keys of lock were recovered. PW1 identified the clothes and chappals to be of his deceased son. On 7.3.2000 at about 7.30 a.m., A1 made the disclosure statement before the panchas to show the dead body. PI Mr.Bhatt called the staff of fire brigade, Government photographer and panchas and they all went along with A1 at the site, i.e. Kans, where accused had thrown the gunny bag containing the dead body. The bag was tied with hump thread (Sutari). After removing the gunny bag from the water of Canal and opening the same naked dead body of the boy was there. The hands and legs of the deceased boy were tied with jute string and Saran was tied with iron chain and the lock was applied thereon. The body was identified by his relatives. The lock was opened by the key recovered from the room of the flat. The photographs of the dead body were taken, panchanama to that effect was drawn before panchas, muddamal articles recovered were seized under the panchanama, inquest panchanama of the decomposed dead body was also made. The dead body of the deceased boy was sent to Krishna Hospital at Pramukhswami Medical College, Karamsad, Dist.Anand where Dr.Satish Patel, PW-19 performed the post mortem of the dead body. The cause of the death was found to be mechanical Asphyxia (due to throttling of neck) of the boy. Viscera was preserved and was sent to Forensic Science Laboratory (FSL) and no poison was found. The gag was removed from the mouth of the dead body of the boy and one Kanthi of Tulsi worn by the deceased were seized and sent to FSL.