CR.A/415/1988 of TIWARI GOVINDLAL KANAIYALAL Vs STATE OF GUJARAT on 1 December 1995

1. Whether Reporters of Local Papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? No

3. Whether their Lordships wish to see the fair copy of judgment? No

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? No

5. Whether it is to ...

Civil Judge? No

---------------------------------------------------------------- Shri P.M. Thakkar, Advocate, with Smt. V.P. Thakkar,Advocate, for the Appellant in Criminal Appeal No. 415 of 1988and for the Respondents in Criminal Appeals Nos. 716 and 717 of1988

Shri K.J. Shethna, Advocate, for the Appellants in CriminalAppeal No. 416 of 1988

Shri S.R. Divetia, Addl. Public Prosecutor, for the Respondentin Criminal Appeals Nos. 415 of 1988 and 416 of 1988 and forthe Appellant in Criminal Appeals Nos. 716 and 717 of 1988---------------------------------------------------------------- CORAM: A.N. DIVECHA & H.R. SHELAT, JJ(Date: 20th/21st December 1995)

ORAL JUDGMENT (per Divecha, J.)

All these appeals arise from the judgment and order ofconviction and sentence passed by the learned AdditionalSessions Judge of Kheda at Nadiad on 13th April 1988 in SessionsCase No. 148 of 1987 convicting original accused No. 1 of theoffences punishable under sec. 302 and under sec. 201 readwith sec. 34 of the Indian Penal Code, 1860 (the IPC for brief)and under sec. 25(1)(a) of the Arms Act, 1959 (the Act forbrief) and original accused No. 2 of the offences punishableunder sec. 201 read with sec. 34 of the IPC and under sec.29(b) of the Act and original accused No. 3 of the offencespunishable under sections 217 and 218 of the IPC and sentencingoriginal accused No. 1 to rigorous imprisonment for life forthe offence punishable under sec. 302 of the IPC and rigorousimprisonment for 6 months and fine of Rs. 300 in defaultrigorous imprisonment for 15 days for the offence punishableunder sec. 201 read with sec. 34 of the IPC and rigorousimprisonment for three months for the offence punishable underthe Act, original accused No.2 to rigorous imprisonment for 6months and fine of Rs. 300 in default rigorous imprisonment for15 days for the offence punishable under under sec. 201 readwith sec. 34 of the IPC and rigorous imprisonment for 3 monthsfor the offence punishable under the Act, and original accusedNo.3 to rigorous imprisonment for one month for the offencespunishable under sections 217 and 218 of the IPC. Originalaccused No. 3 has challenged his conviction and sentence bymeans of Criminal Appeal No. 415 of 1988 and original accusedNos. 1 and 2 have done so by means of Criminal Appeal No. 416of 1988. The prosecution agency was not happy with the judgmentand order of conviction passed by the lower court resulting inacquittal of accused No. 2 of the offence punishable under sec.302 read with sec. 34 of the IPC. Similarly, the prosecutionagency was unhappy over the lenient sentence imposed on originalaccused No.3 by the lower court. It has therefore preferredCriminal Appeals Nos. 716 and 717 of 1988 for questioning thecorrectness of the order of acquittal of accused No.2 qua thecharge of the offence punishable under sec. 302 read with sec.34 of the IPC and for enhancement of the sentence imposed onoriginal accused No. 3. Since all the four appeals aredirected against the very same judgment and order of convictionand sentence and since common questions of law and fact arefound arising in all these four appeals, we have thought it fit

to dispose of all these four appeals by this common judgment ofours.

2. The facts giving rise to all these appeals move in anarrow compass. One person, named, Ramabhai Somabhai (thedeceased for convenience), was working as a Watchman in thecompany by the name of Jyoti Switchgears Ltd. (the company forconvenience) having its plant situated at village Mogar talukaAnand district Kheda. Accused No.1 was working as an AssistantSecurity Officer and accused No. 2 as the Security Officer inthe company at the relevant time. The incident in question isstated to have occurred on 25th August 1981 at about 12.45 p.m.Accused No. 3 was working as a Senior Police Sub-Inspector atthe relevant time attached to the Rural Police Station at Anand.It is the case of the prosecution that on that day, that is, on25th August 1981, some cash was required to be withdrawn fromthe company's account in UCO bank at Anand. The cashier wasdeputed to Anand for the purpose and accused No.2 as theSecurity Officer accompanied him for the purpose. The amount tobe withdrawn from the bank was in the sum of about Rs.2,75,000. It is the prosecution case that both the cashier andaccused No. 2 reached the bank at about 10.55 a.m. and theyleft the bank at about 12.20 p.m. after the cash was receivedfrom the bank cashier. They are stated to be back in thefactory compound of the company at about 12.45 p.m. Accordingto the prosecution version, both the cashier and accused No.2travelled in a jeep driven by a driver. After the jeep enteredthe factory compound of the company, accused No.2 made the jeepstop near the Security Officer's office near the main gate. Thedeceased was standing thereat. Accused No. 2 had a loaded firearm (the pistol for convenience) with a holster containing 17live cartridges. He wanted his fire arm together with theholster to be placed in the cupboard in his office. Hethereupon handed over its custody to the deceased for thepurpose. Thereafter the jeep proceeded to the administrativeoffice. The cashier got down and placed the cash withdrawn fromthe bank in safe custody. Thereafter accused No.2 appears tohave set out for going back to his office. It may be mentionedat this stage that the company's factory is housed in a parcelof land having three gates. One abuts on National Highway No.8.It is always kept closed. The other is in the lane leading tovillage Rupale. That is the main gate. The other gate is about1500 ft. away on the other side of the compound wall abuttingcertain fields. The prosecution version is to the effect thatthe deceased reported for work around 10.00 a.m. on 25th August1981. At that time another watchman by the name of Hassan AliSaiyed Ali Saiyed (Prosecution Witness No. 2 at Ex. 10) wasposted at the main gate. It appears that the deceased was themain watchman and he was therefore posted at the main gate inthe place of Prosecution Witness No. 2 and the latter wasposted on Gate No. 2 about 1500 ft. away on the other side of

the compound wall as aforesaid. It appears that a short whilefrom leaving the cashier in the administrative office of thecompany by accused No. 2, the deceased was reported to havereceived a bullet injury. The deceased was immediately carriedto Municipal Hospital at Anand. He appears to have died thereatabout an hour later at about 2.30 p.m. on that day. It appearsthat accused No.2 went to the Rural Police station at Anand togive information of the incident. It was taken down by thepolice official in charge of the Police Station (ProsecutionWitness No. 11 at Ex. 35) in absence of accused No. 3. Itwas taken down in the Register of Miscellaneous Information,popularly known in the police parlance as 'Janva Jog Yadi'. Itappears that thereupon Prosecution Witness No.11 went to theMunicipal Police Hospital for investigation and he found thereatthat the injured victim was unable to speak. ProsecutionWitness No.11 thereupon appears to have come back to his policestation and he appears to have handed over the investigation toaccused No.3. According to the prosecution story, in themeantime, a message was received at the Rural Police Station atAnand about the death of the deceased at about 2.30 p.m. onthat day. It was reported that it was a case of accident. Thenecessary noting was made in the accident case register. Itappears that some four years later the wife of the deceased madeone complaint suspecting the homicidal death of her deceasedhusband at the relevant time. It appears that the case was thentaken up for re-investigation. On conclusion of suchre-investigation, a charge-sheet came to be submitted to theCourt of the Judicial Magistrate (First Class) at Anand chargingaccused Nos. 1 and 2 with the offences punishable under sec.302 read with sec. 34 of the IPC and under sec. 201 read withsec. 34 thereof and under sec. 25(1)(a) of the Act qua accusedNo. 1 and sec. 25(1)(c) thereof qua accused No.2 and accusedNo.3 with the offences punishable under sections 217 and 218 ofthe IPC. Since the trial of the case was beyond the competenceof the learned Judicial Magistrate at Anand, it was committed tothe Sessions Court of Kheda at Nadiad for trial and disposal.It came to be registered as Sessions Case No. 148 of 1987. Itappears to have been assigned to the learned Additional SessionsJudge of Kheda at Nadiad for trial and disposal. The chargeagainst the accused was framed on 16th October 1987. No accusedpleaded guilty to the charge. They were thereupon tried. Afterrecording the prosecution evidence and recording the furtherstatement of each accused under section 313 of the CriminalProcedure Code, 1973 and after hearing rival submissions, by hisjudgment and order of conviction and sentence passed on 13thApril 1988 in Sessions Case No. 148 of 1987, the learnedAdditional Sessions Judge convicted and sentenced the accused asaforesaid. That aggrieved all the three accused and they havepreferred their respective appeals for challenging theirrespective conviction and sentence. The State is also aggrievedby the judgment and order in question to the extent that it did not result in conviction of accused No.2 of the offencepunishable under sec. 302 of the IPC and to the extent ofimposition of a lenient sentence on accused No. 3. It has alsotherefore preferred the respective appeals to the extent of itsdissatisfaction with the judgment and order in question.

3. The entire case is based on circumstantial evidence.

There is no eye witness to the incident. It is a settledprinciple of law that circumstantial evidence can be the solebasis of conviction if all incriminating circumstances in thechain of events are fully established. The learned trial Judgehas found such incriminating circumstances to have beenestablished at the trial. That finding is challenged by learnedAdvocate Shri Shethna appearing for accused Nos. 1 and 2 andlearned Counsel Shri Thakkar for accused No. 3 but is supportedby learned Additional Public Prosecutor Shri Divetia for theState. The learned lawyers appearing for the parties have takenus through the entire evidence on record. Muddamal articlesNos. 1 and 2 in the list at Ex. 1 in the record of thesessions case were also summoned at the instance of the learnedAdditional Public Prosecutor. Since they were no longerrequired to be retained in this Court after hearing of rivalsubmissions, we have passed a separate order for their return tothe custody from which they were summoned.

4. It cannot be gainsaid that in a case based oncircumstantial evidence the motive behind the crime plays a veryimportant and significant role. No ruling is needed in supportof this principle of law. A reference may however be made tothe one handed down by the Apex Court in the case of State(Delhi Administration) v. Gulzarilal Tandon reported in AIR1979 SC 1382. As rightly submitted by learned Additional PublicProsecutor Shri Divetia, absence of proof of motive does notresult in negation of the prosecution case altogether. He hasrightly relied on the binding rulings of the Supreme Court inthe case of The State of Madhya Pradesh v. Digvijay Singhreported in AIR 1981 SC 1740 and in the case of Rajinder Kumarand another v. State of Punjab reported in AIR 1966 SC 1322 Forthe purpose. The learned Additional Public Prosecutor has alsorelied on the Division Bench ruling of the Calcutta High Courtin the case of Parimal Banerjee v. The State reported in 1986Criminal Law Journal at page 220 in that regard.

5. The motive of the alleged crime in this case has not atall been established. Except a vague reference by the widow ofthe deceased in her communication nearly four years after theincident giving rise to the re-investigation, no witnessexamined by or on behalf of the prosecution has stated anythingabout the deceased in the context of his relations with othermembers of the staff, more particularly with accused Nos. 1 and2. The letter from the widow of the deceased about 4 years

after the incident is at Ex. 34 on the record of the case. Itscontents show that it was written about 4 years after theincident. It has been stated therein that the deceased was veryhonest and he used to detect theft in the company, and as suchincurred displeasure of security officers involved in thosetheft cases. It may be noted that the widow has not beenexamined as a witness by or on behalf of the prosecution attrial. Prosecution Witness No. 7 at Ex. 17 was serving as aPlant Manager in the company at the relevant time. He had putin about 14 years' service on the date of the incident. He hasstated in no uncertain terms in his cross-examination thatduring the period of his service he knew that no watchman wasever awarded any prize for detecting theft or doing good work.He has further deposed that no certificate was issued to any onefor rendering good service or for detecting theft because it wasnot the company's system or policy. That apart, all witnessesworking in the company examined by the prosecution at trial haveunequivocally asserted that the deceased had no inimicalrelations with any one including the accused, more particularly,accused Nos. 1 and 2. In fact, the son of the deceased hasbeen examined as Prosecution Witness No. 10 at Ex. 33. He hasnot stated anything about his father's honesty and integrity anduprightness in detection of theft cases or earning of laurels byhis father for the purpose. He has also stated in no uncertainterms that his father had no enmity with any one in thecompany's factory. Taking into consideration the aforesaidevidence on record, the learned trial Judge has recorded aclear-cut finding to the effect that the prosecution has notbeen able to establish any motive behind the alleged crime. Inview of the aforesaid overwhelming evidence on record, we areleft with no alternative but to concur with the learned trialJudge on this score.

6. Learned Additional Public Prosecutor Shri Divetia isright in his submission to the effect that absence of the proofof motive behind the crime does not result in negation of theprosecution case altogether in view of the aforesaid bindingrulings of the Supreme Court. It may however be necessary forthe prosecution to bring on record the incriminatingcircumstances to lead to the one and only conclusion that theaccused and none else is or are guilty of the alleged crime. Itis needless to say that all the incriminating circumstances haveto be brought on record beyond reasonable doubt. Keeping thiswell-known principle in mind, we should now revert to theincriminating circumstances stated to have been brought onrecord by and on behalf of the prosecution at trial.

7. The following circumstances are pressed into service byand on behalf of the prosecution for the purpose of fasteningthe criminal liability on the accused, more particularly accusedNos. 1 and 2 qua the offence punishable under sec. 302 read

(i) The deceased received a bullet injury from the pistol ofaccused No. 2.

(ii) The used cartridge of the bullet was found from near thescene of the incident.

(iii) The medical evidence clearly shows that it was a homicidaldeath and not a suicidal or accidental death.

(iv) The evidence and the report of the ballistic expert areeloquent enough not only to connect the bullet found in the bodyof the deceased with the muddamal pistol of accused No. 2 butalso to suggest the case of homicidal death.

(v) The presence of both accused Nos. 1 and 2 at the sceneof offence at the time of the incident.

(vi) There was no reason for accused No. 2 to give his pistolwith the holster to the deceased when accused No.1 himself waspresent and accused No. 1 was the Assistant Security Officerworking in the company at the relevant time.

(vii) The conduct of both accused Nos. 1 and 2 inmisreporting to the police the incident as an accident.

(viii) The conduct of both accused Nos. 1 and 2, moreparticularly of accused No. 2, in removing the muddamal pistolfrom the scene of offence after occurrence of the incident.

(ix) The conduct of accused No.3 in screening the offendersby making perfunctory make-believe investigation into theincident.

8. As aforesaid, principles of criminal jurisprudence as toconviction on the sole basis of circumstantial evidence wouldprompt us to examine whether or not all the aforesaidcircumstances are fully established at trial.

9. The one circumstance heavily relied on by and on behalfof the prosecution is removal of the weapon of offence from thescene of offence immediately after occurrence of the incident.It is an admitted position on record that the weapon of offencewas recovered from its position by accused No. 2. It was lyingin the cupboard in his office. As pointed out hereinabove, theoffice of accused No.2 as the Company's Security Officer wasnear the main-gate. Adjacent to it was the office of thegate-keeper or the gate-supervisor. The administrative officeof the company was admittedly inside the factory compound at adistance of more than 1500 ft. by the tar road leading thereto.

Its plant was presumably still further inside. The scene ofoffence panchnama at Ex. 41 was drawn between 4.30 p.m. and5.30 p.m. on the day of the incident itself. As aforesaid, thefire-arm was recovered from accused No. 2 under the panchnamaat Ex. 43. That was drawn on 5th April 1987 between 1.15 p.m.and 2.50 p.m. It however transpires from the scene of offencepanchnama at Ex. 41 that the fire-arm was found lying in thecupboard in the office of accused No. 2 as the Security Officerof the Company. It is not in dispute that a bullet from thevery said fire-arm (pistol) wounded the deceased resulting inhis death. Learned Additional Public Prosecutor Shri Divetia isright in his submission that ordinarily the fire-arm ought tohave been allowed to remain where it was lying after occurrenceof the incident; nobody ought to have even touched it, much lessremoved it therefrom. The very fact that it was found lying inthe cupboard in the office of accused No.2 would go to show thatit was removed from the place where it was lying afteroccurrence of the incident resulting in the death of thedeceased.

10. The finding of the used bullet from the scene of offenceis not disputed by or on behalf of the accused at any point oftime. The panchnama at Ex. 41 bears ample testimony in thatregard.

11. The evidence of the ballistic expert at Ex. 67(Prosecution Witness No. 18) does unequivocally connect theused bullet with the pistol in question. He has clearlyestablished the same through his deposition at Ex. 67 andthrough his report containing his written opinion at Ex. 29.

12. So far as the presence of accused Nos. 1 and 2 at thescene of offence at the relevant time is concerned, it isdifficult to come to the conclusion that the prosecution hasfully succeeded in proving it at trial. There is no exact timegiven by or on behalf of the prosecution as to at what time theincident in question occurred. The Rural Police Station atAnand has received its information at 1.45 p.m. through accusedNo. 2. That information was reduced to writing. It is at Ex.36 on the record of the case. There the time of the incident isstated to be around 1 p.m. on that day. The prosecution hasexamined the cashier of the company at Ex. 9 on the record ofthe case. He had gone to the bank at Anand for withdrawal ofcash in a jeep driver by a driver. He was accompanied byaccused No. 2. The cashier at Ex. 9 has stated in nouncertain terms that they were back in the factory at about12.45 p.m. on that day. According to him, accused No. 2 madethe jeep to have a brief halt near his office for the purpose ofhanding over his pistol with the holster to the deceased forplacing it in the cupboard inside the office. One cannotoverlook the fact that sometime was consumed when the jeep proceeded to the administrative office of the company, thecashier got down therefrom, he put his cash in his hand in thesafe custody, and thereafter accused No. 2 set out for hisreturn journey to his office. The cashier at Ex. 9 has clearlydeposed that his office is on the first floor. The distancebetween the office of accused No.2 near the main gate and theadministrative office in the factory compound would be about1500 ft., if not more. It would roughly be half a kilometer.One cannot overlook the fact that the jeep was inside thecompound. It would not have travelled at a very excessive speedthroughout. In that view of the matter, in absence of anyclear-cut evidence in that regard, we think that the time lostbefore accused No. 2 set out for his return journey would beabout 15 minutes. It would therefore be around 1 p.m. thataccused No. 2 was about to set out for his return journey tohis office. If the incident is stated to have occurred at 1p.m., the presence of accused No. 2 at the scene of offence atthe relevant time would certainly be a doubtful proposition.

13. In this connection it would be quite proper to look at the oral testimony of Prosecution Witness No. 3 at Ex. 11.According to him, at about 12.45 p.m. he had gone to the busstand at Mogar on his motorcycle to drop his guest thereat.According to him, within five minutes therefrom practicallyimmediately after dropping the guest at the bus stand, hereturned to the factory. He has further deposed that, on hisway back to the factory, accused No. 1 was standing in theverandah of his gate office, with information that the deceasedhad received a bullet injury. That should be around 12.50 p.m.If that be so, the presence of accused No. 2 at the scene ofoffence at the relevant time would be all the more doubtful inview of what is discussed hereinabove.

14. The witness at Ex. 11 has further stated thatthereafter he went on his motorcycle to his office. At thattime, according to the witness, another Senior Manager Mr.Kapoor was also there and accused No. 2 was on the lawnsshouting at the witness that the watchman (the deceased) was hitby a bullet. This unequivocal statement of the witness at Ex.11 would go to show that accused No. 2 was not present at thescene of offence at the relevant time. He was in the lawns ofthe administrative office of the company situated at about morethan 1500 ft. from the main gate. It is needless to repeat orreiterate that the office of accused No. 2 as the SecurityOfficer was near the main gate of the factory compound.

15. Learned Additional Public Prosecutor Shri Divetia isright that people would not be very serious about statementspertaining to time with exactitude. It is true that people inour country are by and large lethargic in their sense of timefactor. It is however not in dispute that the company had its recess time between 12.30 p.m. and 1 p.m. The witness at Ex.11 was an officer in charge of the sales and excise departmentof the company. He was a retired military personnel. His senseof time can reasonably be presumed to be somewhat accurate.Coupled with the fact is that it was recess time. He isreported to have dropped his guest at the bus stand at Mogar alittle after 12.30 p.m. This statement of his is indicative ofthe fact that he left his office to leave his guest at the busstand soon on commencement of the recess at 12.30 p.m. The timesense of the cashier of the company at Ex. 9 also need not bedoubted. He would be aware that he entered the factory compoundduring his recess time. In that view of the matter, the timingsgiven by him would also be somewhat accurate with variation ofhardly a minute or two. Taking into consideration all thesefactors appearing on the record of the case, we are of theopinion that the prosecution has not been able to establishbeyond reasonable doubt the presence of accused No.2 at thescene of offence at the relevant time.

21.12.1995

16. It cannot be gainsaid, and the parties are not atdispute, that the muddamal pistol was in possession of accusedNo. 2 at the relevant time. It was a licenced fire-arm.Accused No.2 was working as the Security Officer of the companyat the relevant time. He was therefore equipped with thefire-arm in question. It is again not in dispute that thedeceased died of a bullet injury received from the muddamalpistol in possession of accused No. 2. The report of theballistic expert at Ex. 29 is a clear pointer to the fact thatthe bullet found in the body of the deceased emanated from themuddamal pistol at the relevant time. The ballistic expert(Prosecution Witness No. 18) has again testified so in his oraltestimony at Ex. 67.

17. It is true that the medical evidence in the form of oraltestimony of Prosecution Witness No. 14 (Dr. JagdishchandraFakirbhai) at Ex. 72 suggests that the deceased died ahomicidal death. The medical evidence in the form of thedeposition at Ex. 72 rules out the possibility of both anaccidental or a suicidal death. So is the case of an expertfrom the forensic science laboratory (Prosecution Witness No.24 Dr. Ravindra Deshmukh) at Ex. 100. He has also clearlyopined to the very same effect. Both in his report and in hisdeposition Dr. Deshmukh at Ex. 100 has clearly ruled out thepossibility of the death of the deceased to be on account of anaccident or a suicide. The learned trial Judge has acceptedboth the medical evidence and the forensic expert's evidence inthat regard.

the respective accused have highlighted the case of anaccidental death on the part of the deceased. According to boththe learned Advocates, the deceased was a watchman and, onreceipt of the holster containing the loaded pistol from accusedNo. 2, might have just tried to put the holster around his neckand might have taken out the pistol from its pouch and, whiletaking out the holster from his neck with the pistol in his lefthand, his hand might have unwittingly pressed the triggerresulting into the shot piercing his right arm and entering inthe abdomen just 4 inches above the navel. As against this,learned Additional Public Prosecutor Shri Divetia has submittedthat no person, much less a watchman in the employment of acompany, would like to play with a fire-arm.

19. Our attention has been invited to the oral testimony ofProsecution Witness No. 5 at Ex. 13. He was a paternal uncleof the deceased. In his police statement he is reported to haveinformed the investigating officer that his nephew died of anaccidental shot emanating from the muddamal pistol in possessionof accused No. 2 at the relevant time. It may be reiteratedthat, according to the prosecution story, on return from thebank in the company of the cashier after withdrawal of cashamount from the company's bank at Anand, at the office of thegate-supervisor, accused No.2 handed over his holster with aloaded pistol in its pouch to the deceased for its placement inthe cupboard in the office of accused No. 2 working as theSecurity Officer of the company at the relevant time. Aspointed out hereinabove, it was a licenced firm-arm. At thetime of the incident, the muddamal pistol could be said to be inthe custody of the deceased though it was in possession ofaccused No. 2. Relying on this admission on the part of thepaternal uncle of the deceased by means of his police statementat the stage of initial investigation, both learned AdvocatesShri Shethna and Shri Thakkar for the respective accused havesubmitted that the possibility of an accidental death of thedeceased cannot altogether be ruled out.

20. Learned Additional Public Prosecutor Shri Divetiaappears to be right in his submission that the so-called policestatement of Prosecution Witness No. 5 at Ex. 13 wasadmittedly recorded by accused No. 3 at the relevant time. Hisinvestigation appears to be somewhat perfunctory. We shall dealwith it little later. However, in view of the perfunctorynature of the investigation conducted by accused No. 3 at therelevant time, we would be disinclined to accept the submissionurged before us by learned Advocates Shri Shethna and ShriThakkar for the respective accused that it was a case of anaccidental death and not a homicidal death. As pointed outhereinabove, the medical and the expert evidence on record are aclear pointer to the homicidal death of the deceased. Withrespect, the learned trial Judge has rightly accepted the medical and the expert evidence on record for the purpose ofcoming to the conclusion that it was a case of homicidal deathof the deceased and not that of an accidental death or asuicidal death. It may be clarified that neither learnedAdvocate for the accused has propounded at the time of hearingof this appeal the theory of a suicidal death on the part of thedeceased.

21. That brings us to the conduct of the accused at therelevant time. The conduct that is highlighted is that ofaccused Nos. 1 and 2, more particularly accused No. 2, inremoving the muddamal pistol from the scene of the incident atthe relevant time. The scene of offence panchnama at Ex. 41clearly shows that the muddamal pistol was lying in the cupboardin the office of the Security Officer, that is, accused No. 2at that time. The scene of offence panchnama at Ex. 41 wasdrawn on the very same day between 4.30 p.m. and 5.30 p.m. Therecovery panchnama of the muddamal pistol at Ex. 43 is notrelevant for the present purpose for the simple reason that itwas drawn on 5th April 1987, that is, nearly 6 years afteroccurrence of the incident. The fact however clearly emergesfrom the scene of offence panchnama at Ex. 41 on the record ofthe case that the muddamal pistol was removed from the scene ofthe incident. It cannot be gainsaid that, even if it was a caseof an accidental death as a result of a shot from the muddamalpistol, the fire arm in question could not have been removedtill the panchnama of the scene of the incident was drawn. Aspointed out hereinabove, the scene of offence panchnama at Ex.41 is a clear pointer to the fact that the muddamal pistol wasremoved from the place of the incident. It is needless torepeat that it was found from the cupboard in the office of theSecurity Officer of the company, that is, accused No. 2.

22. Learned Advocate Shri Shethna appearing for accused Nos.1 and 2 has submitted that it was the duty of accused No. 2 asthe Security Officer of the company to inform the police of theincident. Apropos, accused No. 2 went to the Rural PoliceStation at Anand to make a report of the incident and it wasreduced to writing and it is at Ex. 36 on the record of thecase. If accused No. 2 had gone to the police station forreporting the incident, he would not have allowed the muddamalpistol to remain at the place of the incident in that fashion.No prudent person, runs the submission of learned Advocate ShriShethna for accused Nos. 1 and 2, would allow a fire-arm toremain in that condition when he goes out of the factorycompound to report the incident to the police station about 8-10Kilometers away therefrom. As against this, learned AdditionalPublic Prosecutor Shri Divetia has submitted that, with a viewto screening the crime, accused No. 2 went to the Rural PoliceStation at Anand for reporting the incident as an accident. Inorder to justify the act of removal of the pistol from the place

of the incident, runs the submission of Shri Divetia for theState, accused No.2 has made a false show by going to the RuralPolice Station at Anand for reporting the incident to thepolice.

23. We think that, if it was a case of an accident, theconduct of accused No.2 was quite natural. He was under a dutyto inform the police of the incident in question. It is not indispute that he went to the police station and conveyed to thepolice the information of the incident. It was reduced towriting. It is at Ex. 36 on the record of the case. Whenaccused No.2 left for the Rural Police Station at Anand forreporting the incident to the police, as a prudent person he wasjustified in placing the fire-arm in question in his cupboard inhis office. That conduct on his part might be considered quitenatural if it was the case of an accident. Since we concur withthe finding of the learned trial Judge that it was a case ofhomicidal death, we will have to consider his conduct in thelight of the prevalent circumstances.

24. As pointed out hereinabove, no eye witness was availableto the prosecution for giving the ocular account of the incidentin question. The prosecution has failed to establish the motivebehind the crime. Prosecution Witness No. 3 at Ex. 11 hasalso clearly deposed that accused No. 1 at the relevant timeinformed of a sort of accidental injury from a bullet to thedeceased. The exact words appear to have been used by accusedNo. 1 at the relevant time were "watchman ko goli laga". Tothe same effect were the words used by accused No.2 whileshouting from the lawns in the company's compound near itsadministrative office as deposed to by Prosecution Witness No.3 at Ex. 11. If that be so, the presence of accused No.2 atthe scene of offence becomes quite doubtful. In that view ofthe matter, he can be said to have justifiably received theinformation of the incident as an accident and nothing more. Inthat context, we are of the opinion that his conduct of going tothe Rural Police Station at Anand for reporting the incident tothe police after placing the muddamal pistol in the cupboard inhis office was quite natural in view of the prevalentcircumstances. In any case, since this view is possible, we donot consider his said conduct, even if it is found unnatural inthe context of the homicidal death of the deceased, to be afully established incriminating circumstance on the record ofthe case.

25. A very severe and scathing criticism was levelledagainst the conduct of accused No. 3 in making a perfunctoryinvestigation into the reported incident. In fact, learnedAdditional Public Prosecutor Shri Divetia has gone to the lengthof submitting that accused Nos. 1 and 2 acted on the advice ofaccused No. 3 at the relevant time. If we have to accept such

Arguments

submission of the learned Additional Public Prosecutor, we haveto believe that accused No.3 reached the factory compound, moreparticularly at the scene of the incident, soon after itsoccurrence. The incident is reported to have occurred around12.55 p.m. on 25th August 1981. The entry in the Janva JogYadi at Ex. 37 clearly shows that the incident was reported at1.45 p.m. The prosecution has brought on record the weeklydiary of accused No.3 at Ex. 59 on the record of the case. Inhis weekly diary at Ex. 59, accused No.3 has recorded hispresence in the Rural Police Station at Anand, from 8.15 a.m.to 11.40 a.m. He has further recorded therein that from 11.40a.m. onwards he was engaged in investigation of the crimesregistered as Crime Register No. 187/81. He has furtherrecorded therein that he received information regarding theincident at 1.45 p.m. This prosecution evidence at Ex. 59itself would rule out the presence of accused No. 3 at theplace of the incident or at the scene of alleged offence soonafter occurrence of the incident or prior to 1.45 p.m. Again,it has been further recorded in the weekly diary at Ex. 59 thataccused No. 3 went to the company's factory first and, onlearning therefrom that the injured victim was carried tohospital, accused No.3 went to the hospital. On reaching thehospital, it appears that, in the course of time, accused No. 3learnt that the injured victim succumbed to his bullet injury atabout 2.30 p.m. It appears that only thereafter he undertookinvestigation taking the case papers from Prosecution WitnessNo. 11 at Ex. 35. The witness at Ex. 35 has clearly statedthat, after his return from the hospital on finding the injuredvictim to be under treatment and in coma, he handed over theinvestigation to accused No. 3. It therefore becomes clearthat accused No. 3 did not appear on the scene of the incidentbefore 1.45 p.m. and he could not have therefore advised oraided accused Nos. 1 and 2 or either of them in screening thecrime, if any.

26. It is possible that accused No. 3 has not carried outthe investigation in a proper manner. As rightly submitted bylearned Additional Public Prosecutor Shri Divetia, accused No.3ought to have taken accused No.2 to the task for removal of themuddamal pistol from the scene of the incident. However, itappears that accused No.3 recorded statements of certainwitnesses including that of Himmatsingh Jalansingh (ProsecutionWitness No. 5 at Ex. 13). As pointed out hereinabove, thewitness at Ex. 13 was the paternal uncle of the deceased. Heappears to have reported to accused No.3 that the deceased diedof an accident on account of a shot being fired by him from themuddamal pistol. In that context and in view of the fact thatthere was no ocular account available from any corner or quarterin the factory compound, accused No.3 might have been justifiedin treating the case as that of an accidental death rather thana homicidal death. It would have been better and more advisable and desirable on his part if he had attempted to send the pouchcontaining the pistol for examination of the finger prints foundthereon. It would have been also better and more desirable onhis part to have taken custody of the fire-arm itself and tohave sent it to the forensic science laboratory for examinationof finger prints found thereon. To that extent he can be saidto have not properly conducted his task of investigation.

27. One fact at this stage may be noted. It has come inevidence that the building housing the office of thegate-supervisor and that of the Security Officer faces one hoteland a petrol pump on the other side of National Highway No. 8running between Ahmedabad and Vadodara. It is not theprosecution case that the pistol was fitted with a silencer. Ashot emanating from such pistol would give an explosive sound.It would be heard from a considerable distance. The incidenthas occurred at about 12.45 p.m. in a broad daylight in themonth of August 1981. It is not the case of the prosecution orthe defence that thundering clouds had gathered in the sky atthe relevant time and the sound of the bullet was drowned inthunder. Since it was a broad daylight and since it is ourcommon experience that National Highway No.8 is frequented bynumerous vehicles during day time, both the petrol pump and thehotel might have quite a few customers thereat. The soundarising from the fire-arm shot could have been heard by peopleat the petrol pump and the hotel on the other side of the road.Even if customers present at that time might not have beenavailable, it was advisable and desirable on the part of accusedNo.3 to have enquired of the manager or the owner of the hotelor the petrol pump about their or either of them having heard afire-arm shot at about 12.45 p.m. That might have furnishedsome clue regarding the incident in the course of investigationundertaken by accused No.3 at the relevant time, moreparticularly when it clearly transpires from evidence on recordthat the man sitting in the office of the gate supervisor andthe Security Officer can see the petrol pump and the hotel onthe other side of National Highway No. 8. To that extent,accused No.3 can be said to have made dereliction in his duty inthe course of investigation. However, we do not agree withlearned Additional Public Prosecutor Shri Divetia in hissubmission to the effect that negligence in carrying out properinvestigation or perfunctory investigation of the incident onthe part of accused No.3 would amount to his complicity in thecrime or that it was done with a view to screening the offendersin accused Nos. 1 and 2 or either of them. There is nomaterial whatsoever on record to show or to suggest that accusedNo. 3 acted in league with accused Nos.1 and 2 or with eitherof them.

28. In view of our aforesaid discussion, we are of theopinion that the conduct on the part of accused Nos. 1 and 2, more particularly of accused No. 2, at the relevant time inremoving the muddamal pistol from the scene of the incidentcannot be said to be absolutely unnatural. Similarly, theconduct of investigation on the part of accused No. 3 can atthe most be said to be perfunctory or negligent but it cannot bebranded as a make-believe type or can be said to be with a viewto screening the offenders in accused Nos. 1 and 2 or either ofthem.

29. The remaining circumstances on record would show andsuggest that the deceased died of a homicidal death. However,in absence of establishment of the unnatural conduct on the partof the accused at the relevant time, it would be difficult tofasten penal liability on the accused or any of them withrespect to the incident in question. The other circumstances onrecord by themselves would not suggest beyond reasonable doubtthat accused Nos. 1 and 2 or either of them was involved in thealleged crime of killing the deceased. The other circumstanceson record might at the most suggest the homicidal death of thedeceased. The question would however remain as to who did it.We do not agree with the learned trial Judge on that score thataccused No. 1 did it. We do not agree with learned AdditionalPublic Prosecutor Shri Divetia that accused No. 2 did it orthat both accused Nos. 1 and 2 with their common object ofdoing away with the deceased did it. We do not agree withlearned Public Prosecutor Shri Divetia that accused No. 3 hasacted in such a manner so as to allow the crime to remainundetected.

30. In view of our aforesaid discussion, we are of theopinion that the impugned judgment and order of conviction andsentence cannot be upheld in law. It has to be quashed and setaside.

31. In the result, Criminal Appeals Nos. 415 and 416 of1988 are accepted. The impugned judgment and order ofconviction and sentence passed by the learned AdditionalSessions Judge of Kheda at Nadiad on 13th April 1988 in SessionsCase No. 148 of 1987 is quashed and set aside. In that view ofthe matter, Criminal Appeals Nos. 716 and 717 of 1988 preferredby the prosecution fails. They are dismissed. We are told thataccused No. 1 is in jail. He may be set at liberty if nolonger required in any other case. Accused Nos. 2 and 3 are onbail. Their bail bonds are ordered to be cancelled. The fineif paid is ordered to be refunded. Muddamal articles Nos. 1and 2 in the list at Ex. 1 are ordered to be returned to theperson from whose custody they were seized. The remainingarticles of muddamal may be disposed of in accordance with thedirections given by the learned trial Judge in his impugnedjudgment and order.