KALPESHBHAI SOMABHAI VASAVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By these appeals under section 374 of the Code of Criminal Procedure, 1973, the appellants (convicts) have challenged the judgment and order of conviction and sentence dated 20.9.2012 passed by the learned Additional Sessions Judge, Anand in Sessions Case No.34 of 2010, whereby the accused have been convicted for the offences punishable under section 302 read with section 120-B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life as well as fine of Rs.1,000/- and in case of default in payment of fine, to undergo further simple imprisonment for a period of six months. The appellants have also been convicted for the offence under section 364 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of ten years and fine of Rs.1,000/- and in default of payment of fine, to undergo further simple imprisonment for a period of six months. The appellants have further been convicted for the offence under section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three years and fine of Rs.500/- and in default of payment of fine, to undergo further simple imprisonment for a period of three months. No separate sentence has been awarded in respect of the offence under section 120B of the Indian Penal Code. All the sentences are ordered to run concurrently.

(2.) The charge against the accused is that both the accused in connivance with each other hatched a conspiracy/made preparations for a pre-planned conspiracy and both the accused, on 19.10.2009 in the evening, with the intention of looting a vehicle, met Niteshmiya alias Salimmiya Bhikhumiya Shaikh, resident of Ratanpur, Taluka Matar, near the Civil Hospital at Kheda and told him that they wanted to go to Pavagadh in the Bolero Jeep in his possession bearing registration No.GJ-9-M-9682 and after fixing the hire charges at Rs.2,700/-, set off from there and on the way near Karamsad, both the accused got together and strangulated the driver of the Bolero, namely, Niteshmiya alias Salimmiya Bhikhumiya Shaikh with a string and caused his death and threw the dead body within the limits of the pastures of Ardi village in Petlad Taluka with a view to destroy the evidence and fled with the above Bolero vehicle and left the vehicle unclaimed near Tapi Hotel on the highway near Dashrath village of Vadodara and absconded. The accused were, accordingly, charged with the commission of the offences punishable under sections 302, 201, 364 and 120B of the Indian Penal Code.

(3.) The prosecution case is that Ramabhai Jadav, Sarpanch of Ardi Village Panchayat addressed a letter dated 20.10.2009 on the Panchayat's letter pad to the first informant S.L. Pateliya, P.S.O., Mahelav Police Station informing him that the dead body of a man was lying in the pastures of Ardi village. Upon inspecting the pastures of Ardi village, the dead body of a male person aged about 25 to 30 years, wearing a white undershirt and black pants was found. Both his hands were tied with strings and there were marks of strangulation with a string on his neck. On the left cheek of his face, there were injuries. Therefore, it appeared that the said unknown deceased person had been strangulated to death, and with a view to destroy the evidence, the dead body had been thrown in the pasture of Ardi village. A first information report to that effect was given by Shri P.S.I. Pateliya, which came to be registered as Mahelav Police Station I C.R. No.43/2009 for commission of the offences punishable under sections 302 and 201 of the Indian Penal Code. Upon the investigation being handed over to Shri Pateliya, the inquest of the dead body was conducted and steps were taken to conduct the postmortem of the same. The panchnama of the scene of offence came to be drawn in the presence of the panchas. The clothes as well as other articles on the dead body came to be seized under a panchnama. The Forensic Science Laboratory was informed and samples of control earth and bloodstained earth came to be collected. During the course of investigation, it was found that the mobile phone of the deceased was missing and on that basis, during the course of investigation, the accused came to be arrested. Upon further investigation, accused Somabhai alias Ghanshyambhai and Kalpeshbhai Somabhai came to be arrested on 3.11.2009 and a panchnama in that regard came to be drawn in the presence of panchas. During the course of further investigation, it was revealed that both the accused, with a view to loot the vehicle, on 19.10.2009, had taken the Bolero Jeep No.GJ-9M-9682 on hire from the deceased Niteshmiya alias Salimmiya Bhikhumiya Shaikh, resident of Ratanpur, for a sum of Rs.2,700/- and on the way, near Karamsad, they strangulated the deceased with a string and threw the dead body in the pastures of Ardi village of Petlad Taluka and then left the jeep unclaimed on the Dashrath village highway of Vadodara and fled. Since it appeared that both the accused had hatched a conspiracy to kidnap the driver of the vehicle along with the vehicle and kill him and loot the vehicle, the charge under sections 364 and 120B of the Indian Penal Code came to be added and a report came to be made to the Petlad Court. Upon conclusion of the investigation, since sufficient evidence was found against the accused, the Investigating Officer submitted a charge-sheet in the court of the learned Judicial Magistrate First Class, Petlad, which came to be registered as Criminal Case No.30 of 2010. Since the case was triable exclusively by the Court of Sessions, the same came to be committed to the Sessions Court at Anand, where it came to be registered as Sessions Case No.34 of 2010.