JUDGMENT HONOURABLE MR.JUSTICE J.C.UPADHYAYA 1. Being aggrieved by and dissatisfied with the impugned judgment and order rendered by learned Additional Sessions Judge, Fast Track Court, Patan on 8.2.2003 in Sessions Case No.412 of 2002 (Sessions Case Old No.63 of 2001) the appellant who was original accused in the aforesaid case preferred this appeal. The learned trial Judge by judgment and order dated 8.2.2003 recorded the conviction of the appellant for the offences punishable under Sections 302 and 397 Indian Penal Code (?IPC?, for short) and the appellant was awarded the sentence of life imprisonment and fine of Rs.1000/- and in default of payment of fine, S.I for six months for the offence punishable under Section 302 IPC and R.I for three years and fine of Rs.1000/-and in default of payment of fine, S.I for six months for the offence punishable under Section 397 IPC. Both the sentences were ordered to run concurrently. 2. The prosecution case as unfolded during the course of trial is that the deceased - Maktambhai Ranchhodbhai Bharwad was resident of village Sankeshwar, District Patan. He was doing labour work during night hours and during day time, he was selling milk. He was residing in joint family along with his parents and brothers, including his brother Rughnathbhai Ranchhodbhai, the first informant. At about 8 pm on 14.12.2000, he left the house for the purpose of doing labour work in Padmavati Dharamshala. As per usual routine the deceased was to return to home at about 5 pm on every morning, but on 15.12.2000, he did not return to home as per his daily schedule. His brother first informant Rughnath made inquiries to Padmavati Dharamshala and was informed that the deceased had not come to Padamavati Dharamshala even on previous night. He continued inquiry about the deceased, but failed in this attempt. However, he was informed that on Sankeshwar to Viramgam road, near Ganga Talawadi, one Jituji Narubhai Zala (PW-12) had heard the noise of screaming during night hours, and on road he found one Tata Sumo car, white in color, bearing registration No. GJ-1-AP-4029 being parked and when Jituji reached near the car, the car left the place. First informant Rughnath and his friends and relatives carried extensive search of the deceased near Ganga Talawadi and approximately 200 ft away from Ganga Talawadi, the dead-body of the deceased was found in a pool of dried blood. First informant Rughnath and his friends and relatives carried extensive search of the deceased near Ganga Talawadi and approximately 200 ft away from Ganga Talawadi, the dead-body of the deceased was found in a pool of dried blood. Rughnath noticed that golden earrings from the body of the deceased were missing and both the earlobes were cut. One silver waistband was also missing. However, some of the silver ornaments were found there on the dead-body. First informant Rughnath reported the incident to Sami police station and his FIR was registered. During the course of investigation, statements of material witnesses were recorded. Appellant came to be arrested. At the instance of the appellant muddamal earrings with bloodstain came to be recovered from his house. His bloodstained clothes came to be seized. Tata Sumo car was inspected by FSL experts. One screwdriver having its edge damaged with bloodstain came to be recovered from the car. It further transpires that when PSI Mr. G.L.Gol (PW-19) was coming from Ahmedabad to Sami police station along with appellant, the appellant escaped during their brief halt at Viramgam. However, again the appellant came to be apprehended. During the course of investigation, it was revealed that the vehicle Tata Sumo belonged to PW-17 Bhavanbhai Manubhai Parmar and said Bhavanbhai was plying his vehicle as passenger taxi by employing the appellant as his driver. It further reveals that since the appellant was plying the taxi of PW-17 Bhavanbhai in Sankeshwar and surrounding villages, deceased was known to him and with a view to commit robbery, deceased was done to death by him. After collecting required material for the purpose of lodgment of chargesheet, chargesheet came to be filed in the Court of learned JMFC, Harij - Sami. Since the offence was exclusively triable by the Court of Sessions, learned JMFC committed the case to the Court of Sessions at Patan, which was numbered as Sessions Case No.412 of 2002 (Sessions Case Old No.63 of 2001). 3. Learned trial Judge framed charge against the appellant at Exh.7 for the offences punishable under Sections 302 and 397 IPC, to which he did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. The prosecution examined 20 witnesses and produced necessary documentary evidence. 3. Learned trial Judge framed charge against the appellant at Exh.7 for the offences punishable under Sections 302 and 397 IPC, to which he did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. The prosecution examined 20 witnesses and produced necessary documentary evidence. After the prosecution concluded its oral evidence, learned trial Judge recorded further statement of the appellant under Section 313 Cr.P.C. The appellant in his further statement denied generally all the incriminating circumstances put to him by the trial Court and stated that he was falsely implicated in this case by his brother and brother’s wife and that he is innocent. 3.1 Trial Court after considering the evidence on record and the submissions made on behalf of both the sides came to the conclusion that the entire prosecution case rests upon the circumstantial evidence and the prosecution successfully proved the circumstantial evidence and successfully established its chain. The circumstances that emerge from the record relied upon by the trial Court for recording the conviction of the appellant broadly are as under:- 1. Recovery of bloodstained earring belonging to the deceased from the house of the appellant. 2. Corresponding cut marks on earlobes of both the ears were found on the body of the deceased and the deceased used to wear those earrings till he was found missing. 3. Find of blood of deceased on the shirt of the appellant. 4. Conduct of the appellant as on 16.12.2000 when PSI Mr. Gol was escorting the appellant from Ahmedabad to Sami police station, the appellant jumped the custody and escaped. 5. Recovery of screwdriver from the Tata Sumo car and the sharp edge of the screwdriver was found damaged and bloodstain found on the screwdriver was of the blood group of the deceased. 6. Opinion of Medical Officer, who performed the autopsy that the fatal injury on neck was possible by said screwdriver. 7. Tata Sumo car GJ-1-AP-4029 at the relevant time was of the ownership of PW-17 Bhavanbhai and combined reading the evidence of PW-17 Bhavanbhai and PW-19 PSI Mr. Gol reveals that the appellant was employed as driver by PW-17 Bhavanbhai in said Tata Sumo car to ply it as passenger taxi. 8. 7. Tata Sumo car GJ-1-AP-4029 at the relevant time was of the ownership of PW-17 Bhavanbhai and combined reading the evidence of PW-17 Bhavanbhai and PW-19 PSI Mr. Gol reveals that the appellant was employed as driver by PW-17 Bhavanbhai in said Tata Sumo car to ply it as passenger taxi. 8. Evidence of PW-12 Jituji Narubha Zala reveals that at the time of the incident, he heard the noise of screaming nearby the road adjacent to his field and when he reached to the place, he found the Tata Sumo car parked there and he noted the registration number of the car and find of dead-body of the deceased in the nearby vicinity to the road. 9. Evidence regarding the injury on the body of the appellant at the time when he was arrested. 10. Motive behind the murder being robbery of golden ornaments belonging to the deceased. 3.2 Appreciating the evidence regarding the above circumstantial evidence, the learned trial Judge came to the conclusion that the prosecution successfully proved those incriminating circumstances and has established the chain of circumstantial evidence, pointing the finger of guilt to the appellant alone, ultimately recorded the conviction of the appellant for the offences punishable under Sections 302 and 397 IPC and awarded the sentence as herein above referred to in this judgment. 4. We have heard the arguments of learned advocate Mr. S.R. Divetia for the appellant and learned Additional Public Prosecutor Mr. M.G. Nanavati for the respondent State. 5. Learned advocate Mr. Divetia for the appellant submitted that the circumstances relied upon by the trial Court to base the conviction of the appellant are not duly established. No evidence is adduced by the prosecution to show that soon before the incident, deceased was found in the company of the appellant. The discovery panchnama showing the recovery of earrings from the house of the appellant is not proved. There is no evidence to come to the conclusion that those earrings belong to the deceased. The blood group of the deceased is not found on the earrings. So called owner of the Tata Sumo car PW-17 Bhavanbhai is declared hostile witness and did not support the basic case of the prosecution that the appellant was his driver of his Tata Sumo car. The blood group of the deceased is not found on the earrings. So called owner of the Tata Sumo car PW-17 Bhavanbhai is declared hostile witness and did not support the basic case of the prosecution that the appellant was his driver of his Tata Sumo car. PW-12 Jituji whose evidence is much relied upon by the prosecution does not state in his testimony that he heard the screams of the deceased. Since the prosecution failed to establish the nexus between the appellant and the Tata Sumo car, the find of bloodstained screwdriver from the car cannot be used as an incriminating circumstance against the appellant. 5.1 The prosecution failed to prove its case that the appellant came to be absconded while he was escorted by PW-19 PSI Mr. Gol from Ahmedabad to Sami police station. The prosecution failed to explain the injury on the body of the appellant and the trial Court wrongly arrived at the conclusion that the appellant sustained the injury while committing the robbery and murder of the deceased. His blood sample was not collected to ascertain the blood grouping. When the appellant is said to have sustained bodily injuries at the time when he was arrested, and there is no evidence regarding his blood group, the blood found on his cloth cannot be conclusively said to be of the deceased. 5.2 Alternatively learned advocate Mr. Divetia for the appellant submitted that even if the prosecution case is considered at its face value, it clearly reveals that the predominant intention of the appellant was robbery and not murder of the deceased. Even the motive alleged by the prosecution is robbery. There is no evidence whatsoever that there was any enmity between them that the appellant intended to kill the deceased. As per the medical evidence on record, this is a case of solitary blow. There is no evidence to come to the conclusion that the appellant was armed with any lethal weapon. As per the prosecution case, screwdriver was used by the appellant to cause injury to the deceased and this is a case of solitary blow. As per the medical evidence on record, this is a case of solitary blow. There is no evidence to come to the conclusion that the appellant was armed with any lethal weapon. As per the prosecution case, screwdriver was used by the appellant to cause injury to the deceased and this is a case of solitary blow. Therefore, it is submitted that the trial Court erred in recording the conviction of the appellant for the offence of murder punishable under Section 302 IPC, but the offence which can be said to have been constituted is culpable homicide not amounting to murder punishable under Section 304 Part I or Part II IPC. 6. Per contra learned Additional Public Prosecutor Mr. Nanavati for the State vehemently opposed this appeal and submitted that the prosecution successfully proved each and every incriminating circumstance leading to the guilt of the appellant and the chain of circumstantial evidence is well established and the trial Court rightly recorded the conviction of the appellant for the offences charged against him. 7. We have examined the record and proceedings in context with the submissions made by the rival sides. 8. Examining the record of the case in context with the submissions made by the rival side, it clearly transpires that the entire prosecution case hinges on circumstantial evidence. Admittedly, there is no direct evidence connecting the appellant with the crime. In this judgment in above paragraph we have enumerated the circumstantial evidence relied upon by the trial Court while arriving at the conclusion that the appellant is guilty of the offences charged against him by the prosecution. 9. At the outset, undisputed facts emerging from the evidence on record are that the deceased was residing in joint family along with his parents and his brother first informant Rughnath Ranchhodbhai at Sankeshwar, and was doing labour work during night hours and usually he was doing labour work in Padmavati Dharamshala, Sankeshwar. As per his regular routine, during night hours, he was doing labour work and he used to leave his house at 8 pm and used to return back to his house at 5 am on next day morning. As per his regular routine, during night hours, he was doing labour work and he used to leave his house at 8 pm and used to return back to his house at 5 am on next day morning. There is no dispute that on 14.12.2000, at about 8 pm, he left the house, but on 15.12.2000, he never returned to his house and considering the evidence of PW-1 Rughnath Ranchhodbhai and his FIR, Exh.16, it clearly transpires that since the deceased did not return to home, his brother Rughnath started inquiry about the whereabouts of the deceased and during the course of said inquiry, he came to know that one Jituji Narubha whose agricultural field was situated near the road leading to Viramgam from Sankeshwar, Jituji at about 9 pm to 10 pm, on 14.12.2000, heard some sound of screaming and when he reached to the spot from where he heard the sound, Jituji found Tata Sumo car bearing registration GJ-1-AP-4029 parked there, and when Jituji was about to reach near the car, its driver along with the car fled away. However, Jituji had noted down the registration number of the car. This fact is duly corroborated by the evidence of Jitendrasinh @ Jituji Narubha PW-12 examined at Exh.57. In the FIR, Exh.16, name of this witness is referred. Considering the evidence of first informant Rughnath and the evidence of PW-12 Jituji, it further transpires that on 15.12.2000 afternoon, when the surrounding place to the road where the Tata Sumo was found parked on previous night was searched at that time near Ganga Talawadi, the dead-body was found in a pool of dried blood, sustaining injury in neck and earlobes of both the ears were found cut. Golden earrings which the deceased used to wear were found missing. As per the prosecution case, vide discovery panchnama, Exh.26 on dated 19.12.2000 at the instance of the appellant, the earrings came to be recovered from the house of the appellant situated in Ahmedabad from one showcase. The prosecution examined one of the panch witnesses of said discovery panchnama, Exh.26, namely, PW-4 Dilip Sheth. As per the prosecution case, vide discovery panchnama, Exh.26 on dated 19.12.2000 at the instance of the appellant, the earrings came to be recovered from the house of the appellant situated in Ahmedabad from one showcase. The prosecution examined one of the panch witnesses of said discovery panchnama, Exh.26, namely, PW-4 Dilip Sheth. We have examined the evidence of panch PW-4 Dilip Sheth and examining his evidence, it is true that he does not say that it was the appellant who disclosed before police and panch that he had concealed those earrings in the showcase of his house, but his evidence reveals that in presence of the appellant, the appellant produced muddamal earring from the showcase of his house. Considering the evidence of Investigating Police Officer PW20 PSI Chauhan, this fact is duly corroborated. In the impugned judgment, the trial Court observed that though the ingredients of Section 27 of the Evidence Act may not be said to have been duly satisfied, but the fact remains that in presence of the panchas and police and at the instance of the appellant, the appellant produced those earrings from the showcase of his house. Considering the FSL evidence, it clearly transpires that though the blood group of the bloodstains found on the earrings could not be ascertained, but the fact remains that the blood of human origin was there on the earrings. In this connection, considering the medical evidence on record and especially the evidence of PW-10 Dr. Zala and the PM report, Exh.47, it clearly transpires that earlobes of both the ears of the deceased were cut. Said medical evidence explains the bloodstains found on the earrings recovered from the house of the appellant in his presence. In the further statement recorded under Section 313 of the Cr.P.C., the appellant does not explain the find of muddamal earrings from his house, but only denies it. Thus, no satisfactory explanation is forthcoming from the appellant regarding the recovery of earrings of the deceased from his house. Considering the evidence of PW-1 Rughnath, Exh.15 and the panchnama, Exh.34, it is duly established that those earrings belonged to the deceased. The earrings came to be identified by PW-1 Rughnath even in his cross-examination on the basis of distinct feature of the earrings. As stated above, no satisfactory explanation is forthcoming from the appellant in his further statement. 10. Considering the evidence of PW-1 Rughnath, Exh.15 and the panchnama, Exh.34, it is duly established that those earrings belonged to the deceased. The earrings came to be identified by PW-1 Rughnath even in his cross-examination on the basis of distinct feature of the earrings. As stated above, no satisfactory explanation is forthcoming from the appellant in his further statement. 10. However, it is true that considering the evidence of PW-17 Bhavanbhai Parmar, the owner of Tata Sumo car, he was declared as hostile witness. However, in his evidence, he admitted his ownership of the Tata Sumo car. Though surprisingly, being the owner of said car, he pleaded his ignorance as to who was his driver. In this connection, considering the evidence of 2nd PSI PW-19 Ghanshyamji Gol, it transpires that since in the FIR, Exh.16 itself, the registration number of the Tata Sumo car was disclosed by the first informant hence from RTO record , the name of the owner of the car being PW17 Bhavanbhai Parmar was revealed and PSI Gol met PW-17 Bhavanbhai and from PW-17 Bhavanbhai he came to know that the appellant was his driver who was driving said Tata Sumo car and on the basis of such information, he went to the house of the appellant situated in Ahmedabad. According to the evidence of PW-19 PSI Gol, when he reached the house of the appellant, the appellant was not found there in the house and he waited for the appellant and during the meanwhile PW-17 Bhavanbhai and the appellant came there. Thereafter, PSI Gol, PW-17 Bhavanbhai along with the appellant left the house of the appellant in the same car i.e. Tata Sumo car bearing registration No. GJ-1-AP-4029 to go to Sami police station, where the offence was registered and was investigated. The car was driven by the appellant and when they reached to one highway hotel, situated near Viramgam at about 10 pm on 16.12.2000, the appellant alighted from the car and went towards the hotel for refreshment, but he did not return back to the car and was found absconded. Thus, on joint reading of evidence of PW-17 Bhavanbhai and PW-19 PSI Gol, it reveals that PW-17 Bhavanbhai though being owner of the Tata Sumo car, intentionally pleaded his ignorance about his own driver. Thus, on joint reading of evidence of PW-17 Bhavanbhai and PW-19 PSI Gol, it reveals that PW-17 Bhavanbhai though being owner of the Tata Sumo car, intentionally pleaded his ignorance about his own driver. In fact considering the evidence of both these witnesses, the fact clearly reveals that the Tata Sumo car was driven by the appellant in capacity as driver of PW-17 Bhavanbhai. There is no reason to discard the evidence of independent witness like PSI Mr. Gol. His evidence is further required to be considered in connection with one more incriminating circumstance which emerges from his evidence, namely, the suspicious conduct of the appellant about absconding. From the house of the appellant situated in Ahmedabad, PSI Mr. Gol escorted the appellant to Sami police station where offence was investigated and before they could reach to the police station, taking disadvantage of the situation, the appellant made his escape good. In the further statement of the appellant recorded under Section 313 of the Cr.P.C., the appellant merely denied such fact. No satisfactory explanation is forthcoming in his further statement. 11. Considering the evidence on record, it transpires that at the time when the appellant came to be arrested, his clothes were seized from the house of his brother's wife Rupaben and the blood of the deceased of Group 'B' came to be found from his shirt. The learned advocate Mr. Divetia submitted that it is the case of the prosecution that at the time of the arrest of the appellant, injuries were found on his person and in absence of any evidence regarding the blood group of the appellant, the trial Court erred in coming to the conclusion that the blood found on his shirt was of the deceased. It is further submitted that as per the evidence adduced by the prosecution, the alleged bloodstained cloth of the appellant came to the found from the house of his brother's wife Rupaben, as per panchnama, Exh.29. In context with such submission, if the panchnama, Exh.29 is considered, it is true that the bloodstained clothes of the appellant came to be recovered from the house of Rupaben, the brother's wife of the appellant. The prosecution did not examined Rupaben as prosecution witness in this case. In context with such submission, if the panchnama, Exh.29 is considered, it is true that the bloodstained clothes of the appellant came to be recovered from the house of Rupaben, the brother's wife of the appellant. The prosecution did not examined Rupaben as prosecution witness in this case. In this connection even if it is believed that the evidence regarding the recovery of bloodstained cloth of the appellant is shaky, yet, the prosecution does not rely upon this solitary piece of evidence to involve the appellant with the crime. The other circumstantial evidence established on record duly connects the appellant with the crime. 12. In light of the above discussions, we are of the considered opinion that the prosecution duly established its case to the effect that the appellant was serving as driver in the Tata Sumo car belonging to PW-7 Bhavanbhai. Considering the evidence of PW-9 Umarbhai Noorbhai Saiyed and the evidence of Investigating Officer PW-20 PSI Chavda, together with panchnama, Exh.44, it clearly transpires that the Tata Sumo car was extensively searched by FSL expert and during the course of search, one screwdriver came to be found concealed under the rubber mat having some damage in its handle and when said screwdriver was forwarded to FSL, the blood of Group 'B' of the deceased was found on the screwdriver. The said car was found parked during night hours of 14.12.2000 near the place of the incident by PW-12 Jituji Narubhai, and the screwdriver found from the car contained bloodstain of the blood of the deceased. Considering the evidence of PW-10 Dr. Zala and the PM report, Exh.47 it clearly transpires that there was a fatal injury below left side of the neck of the deceased approximately 2.5 cm x 1 cm and 4.5 cm in depth which cause rupture of trachea and aorta arch was broken. Dr. Zala in his evidence clearly opined that said injury was possible by muddamal screwdriver. Under such circumstances, the prosecution successfully established that the injury was caused to the deceased by the screwdriver found from the car which was driven by the appellant. 13. In the impugned judgment the trial Court at length discussed the above circumstantial evidence and came to the conclusion that the prosecution successfully established the chain of circumstantial evidence connecting the appellant with the crime. 13. In the impugned judgment the trial Court at length discussed the above circumstantial evidence and came to the conclusion that the prosecution successfully established the chain of circumstantial evidence connecting the appellant with the crime. The trial Court took in to consideration Section 8, Illustration(a) attached to Section 114 and Section 106 of the Indian Evidence Act. Re-appreciating the evidence on record we find no illegality or any infirmity committed by the trial Court while arriving at the aforesaid conclusion. Learned advocate Mr. Divetia relied upon the case of Inspector of Police, Tamilnadu Vs. Bala Prasanna reported in (2008)3 SCC (Criminal) 959. The facts of the said case reveal that initially the murder case was investigated by a Police Officer PW-40 and he tried to falsely implicate the accused and took signatures of four witnesses on blank papers and High Court ordered to change the Investigating Officer. The prosecution case basically rests upon the recovery of incriminating articles. The jewelery was recovered in the shape of ingot. Honourable Apex Court observed in paragraph 22 as under: “The next recovery relates to the ingots. For the aforesaid aspect, the evidence of PWs 17, 18 and 19 is relevant. Since the gold jewellery had been molten and was recovered in the shape of ingots, it would be very hazardous to come to the conclusion that in fact the gold jewellery belonged to the deceased. If the accused had killed the deceased and stolen the gold jewellery, there is no reason as to why he had also not taken earrings from the deceased. The fact that earrings were on the dead body is admitted by the prosecution.” 14. Now considering the facts and circumstances and the evidence in the case on hand, it clearly transpires that they are totally different than the facts involved in above referred Bala Prasanna's case. In the instant case nothing transpires that the investigation was tainted or bias one. Moreover, missing earrings of the deceased which came to be robbed by the appellant came to be recovered in presence of the appellant from his own house in their original shape. They were duly identified by the PW-1 Rughnath, brother of the deceased. 15. The last contention raised by learned advocate Mr. Moreover, missing earrings of the deceased which came to be robbed by the appellant came to be recovered in presence of the appellant from his own house in their original shape. They were duly identified by the PW-1 Rughnath, brother of the deceased. 15. The last contention raised by learned advocate Mr. Divetia for the appellant is that the trial Court erred in arriving at the conclusion that the offence in the instant case which can be said to have been considered is murder punishable under Section 302 IPC. According to him even if the case of the prosecution is considered at its face value, the offence which can be said to have been constituted would be culpable homicide not amounting to murder punishable under Section 304 either Part I or II IPC. In this context, the medical evidence reveals that the injury was caused on the vital part of body like neck and the penetrating injury caused corresponding serious internal injury to trachea. Moreover, in the instant case, the death of the deceased is caused with a view to rob him of only the golden ornaments. Even the motive alleged by the prosecution for the murder of the deceased is robbery. Thus, while committing the robbery, the deceased was done to death. Keeping the aforesaid fact in mind together with the fact that the injury which was caused to the deceased was on very vital part of the body of the deceased and considering the force used by the appellant in causing the injury, and pulling out the earrings from the ears of the deceased in such a manner that both the earlobes were cut, we are of the considered opinion that the trial Court rightly recorded the conviction of the appellant for the offence of murder. Moreover, there is nothing on record to come to the conclusion that the present case falls within any of the Exceptions annexed to Section 300 IPC. 16. In light of the entire above discussions, we are of the considered opinion that the the trial Court rightly recorded the conviction of the appellant for the offences punishable under Sections 302 and 397 IPC. The appeal, therefore, is devoid of any merits and deserves dismissal. 17. For the foregoing reasons, the appeal stands dismissed.