JUDGMENT L.DAVE (1) These four appeals arise out of a judgment and order rendered by Sessions Court, Banaskantha, Camp at Deesa, in Sessions Case No.34 of 2002 on 30.9.2003. Before the Sessions Court, there were seven accused persons being, (1) Riyasatali Mohammedsafi Musalman, (2) Saman Nasruddin Musalman, (3) Yunus Mohammedsafi Musalman, (4) Jahid Yunus Mohammedsafi Musalman, (5) Binnu alias Dinesh Jaipalsingh Harijan (Chamar) (6) Jaswantsingh alias Bittu Kapursingh Jat, and (7) Nirmalsingh alisa Nimma Charamsingh Jat. (2) Accused Nos.1 to 4 came to be convicted by the Sessions Court. Accused No.1 has preferred Criminal Appeal No.1 of 2004, accused No.2 has preferred Criminal Appeal No.15 of 2004 and accused Nos.3 and 4 have preferred Criminal Appeal No.1292 of 2004. 2.1 The Sessions Court acquitted accused Nos.5, 6 and 7 of the charges levelled against them and the State, therefore, has preferred Criminal Appeal No.68 of 2004. Since all these appeals arise out of a common judgment, they are heard together and are disposed of by this common judgment. For the sake of convenience, the appellants or the respondents, as the case may be, are referred to by their original status of accused with the respective numbers. (3) The case of the prosecution, in brief, is that accused Nos.1 to 5 belong to Salarpur (UP) and accused Nos.6 and 7 belong to Punjab. A-1 to A-4 are interrelated closely. It is the case of the prosecution that one Kavindersingh alias Gandhi had developed a relationship with Zaheda, daughter of accused No.3, and despite opposition, tried to continue the relationship even after the marriage of Zaheda. This had resulted into a quarrel between Kavindersingh and accused no.2 about a week prior to 4.8.2001. However, the dispute was then compromised. 4.1 It is the case of the prosecution that accused Nos.1 to 5 along with deceased Kavindersinh started from Salarpur on 4.8.2001 for the purpose of attending a fair at Gondal for business purpose. It is the case of the prosecution further that during the night falling between 6th and 7th August 2001, accused nos. 1 to 4 assaulted the deceased and caused his death in the truck's cabin itself, to be more specific, A-2 dashed the head of the deceased with the gearbox and caused injuries, whereas A-3 caused multiple injuries with knife on person of the deceased and A-1 and A-4 have also assaulted the deceased. 1 to 4 assaulted the deceased and caused his death in the truck's cabin itself, to be more specific, A-2 dashed the head of the deceased with the gearbox and caused injuries, whereas A-3 caused multiple injuries with knife on person of the deceased and A-1 and A-4 have also assaulted the deceased. It is further the case of the prosecution that A-5 had caught hold of the leg of the deceased and helped in unloading the dead body of the deceased from the truck near village Jerda of Deesa taluka of Banaskantha district. A-6 and A-7, who were drivers of the truck, are indicated to have opposed the assault, but later on, after the incident was over, they are alleged to have washed the truck and thereby caused disappearance of the evidence of murder of deceased Kavinder. 4.2 The dead body of the deceased Kavinder was noticed lying on side of the road covered with a blanket. Police was informed. Police after completing the formalities got the photograph of the dead body published/circulated amongst the police stations. (4) On the other hand, around 27.8.2001, when the accused persons returned to Salarpur, the parents of Kavinder inquired of them about the whereabouts of the deceased and they were informed by accused No.1 that since the deceased was not feeling comfortable in the fair, he was permitted to go back after paying an amount of Rs.1,000/-. The search continued. Around 11.9.2001, the dead body was identified with the help of the photograph to be that of deceased Kavinder by Virkumar. FIR was lodged and the case was, ultimately, investigated and chargesheet was filed in the Court of learned JMFC, Deesa. Learned JMFC, in turn, committed the case to the Court of Sessions, as the offences were triable exclusively by a Court of Sessions and Sessions Case No.34 of 2002 came to be registered. 5.1 Charge was framed against the accused persons at Exh. 14 . All the accused persons pleaded not guilty to the charge and claimed to be tried. The trial Court found that the prosecution was successful in proving the charges against A-1 to A-4 and convicted them for the offence punishable under Sections 302 and 120B of IPC and sentenced them to undergo RI for life with fine of Rs.1,000/-, in default, RI for six months. The trial Court found that the prosecution was successful in proving the charges against A-1 to A-4 and convicted them for the offence punishable under Sections 302 and 120B of IPC and sentenced them to undergo RI for life with fine of Rs.1,000/-, in default, RI for six months. The trial Court acquitted A-1 to A-4 for the offence punishable under Section 201 IPC. 6.1 The trial Court, however, found that the prosecution was not successful in proving charges against A-5, A-6 and A-7 and, therefore, recorded their acquittal. 6.2 Aggrieved by the judgment recording conviction, A-1 and A-2 preferred Criminal Appeals No.1 and 15 of 2004 respectively, and A-3 and A-4 preferred Criminal Appeal No.1292 of 2004, whereas the State preferred Criminal Appeal No.68 of 2004 against acquittal of A-5, A-6 and A-7. (5) We have heard learned Senior Advocate Mr Patel appearing for HL Patel Advocates, Mr Dagli for original accused No.1, Mr Harnish Darji for original accused No.2, Mr Imtiyaz Qureshi for original accused No.5 and Mr Mehul Rathod for original accused Nos.6 and 7. The State is represented by learned APP Mr Pandya. (6) Learned advocates for the convicted accused, the appellants in Criminal Appeals No. 1, 15 and 1292 of 2004, have submitted that the prosecution case is founded on suspicion. The evidence led by the prosecution is weak and not sustainable. It is submitted that the investigation is not properly carried out and the accused persons are roped in only on the basis of suspicion. 8.1 It is also submitted that the case of the prosecution hangs mainly on evidence of Arif and Ramzan, who were both minors at the time of incident. These two witnesses implicate the accused persons, but do not explain as to why they did not disclose the details of incident and involvement of the accused in the incident at earlier point of time when they had all the opportunity to disclose. This failure to disclose the knowledge about the incident at the earliest is requested to be viewed seriously. It is submitted that the eye-witnesses are young boys, one of them, was sitting on the cabin of the truck and the other one, was sitting in the cabin of the truck. The boy, who was on the cabin of the truck, could not have seen the incident. It is submitted that the eye-witnesses are young boys, one of them, was sitting on the cabin of the truck and the other one, was sitting in the cabin of the truck. The boy, who was on the cabin of the truck, could not have seen the incident. Their version involving the accused persons at a later point of time, could not and should not have inspired any confidence of any Court. It is submitted that at the best, there is involvement of A-2 and A-3 and, as such, there is no evidence so far as A-1 and A-4 are concerned. It is submitted that the prosecution has suppressed version of Arif and Ramzan before Incholi Police. It is submitted that it is only after arrest of A-1 that the entire story is developed by the prosecution on imagination. On behalf of the State, it was argued that the trial Court has committed an error in recording acquittal of A-5, A-6 and A-7. Involvement of A-5 is emerging from the evidence of PW-14 Ramzan (Exh.95). It is revealed from the evidence that A-5 had played role in committing assault on the deceased and A-6 and A-7 had involved in the incident by washing out the truck and thereby causing disappearance of evidence with the help to save the main culprit. It is submitted further that the trial Court has overlooked this reliable piece of evidence and has recorded acquittal of A-5, A-6 and A-7, which may be set aside. (7) We are taken through the relevant abstracts of evidence of Arif and Ramzan. (8) Learned advocate for the acquitted accused persons have argued that the police has acted in a highhanded manner; that A-6 and A-7 have only cleaned the truck being the drivers of the truck. A-6 and A-7 had also preferred an application to be approvers. It is indicated that though witnesses Arif and Ramzan had involved other persons, steps are taken only against the accused. Ramzan was sitting on the cabin, therefore, he could not have seen the incident. Hence, Arif was the sole witness to the incident. His evidence, as a child witness, does not inspire confidence for the reason that at earlier point of time, he had not stated before the police about involvement of any of the accused. Ramzan was sitting on the cabin, therefore, he could not have seen the incident. Hence, Arif was the sole witness to the incident. His evidence, as a child witness, does not inspire confidence for the reason that at earlier point of time, he had not stated before the police about involvement of any of the accused. 11.1 It is also indicated that if cross-examination of PW-32 is seen, it is clear that the witness has implicated the accused persons only at later point of time. The witnesses have not disclosed about the incident for a long time till they were interrogated by the police. It was, therefore, contended that evidence of these witnesses is of no value. It was also contended by learned advocate for the convicted accused that A-1 has discovered shirt of A-3-Yunis, which was stained with blood of group 'A', which was the blood group of the deceased, but blood of none of the accused was taken and, therefore, in absence of details of blood-group of any of the accused, find of blood on the shirt of A-3 is of no consequence. Lastly, it was contended that the two eye-witnesses are child witnesses and no reliance should have been placed on their evidence by the trial Court for recording conviction. Attacking the investigation, it was indicated that when Incholi police was informed about missing of Kavindersingh, it was indicated that he had gone to the fair for the purpose of putting up a stall. This aspect is conspicuously and purposefully missing in evidence. The prosecution, therefore, has tried to suppress this relevant and material fact only to support and canvass the plea of conspiracy and revenge. It was, therefore, urged that appeal preferred by the convicted accused persons may be allowed. (9) Learned APP Mr Pandya has opposed the appeals preferred by the convicted accused persons and has taken us through the evidence to show that the evidence of child witnesses Arif and Ramzan is trustworthy. He submitted that it is true that initially neither of these two witnesses have disclosed about their knowledge to anyone for quite sometime, but that by itself, would not be sufficient to discard their evidence in toto. He submitted that they were young and might have become scared to talk or discuss about the same. He submitted that it is true that initially neither of these two witnesses have disclosed about their knowledge to anyone for quite sometime, but that by itself, would not be sufficient to discard their evidence in toto. He submitted that they were young and might have become scared to talk or discuss about the same. He also submitted that in such an eventuality, the Court may look for corroboration to assess the veracity of evidence of such witness. In the instant case, the version that is given by these eye-witnesses get support from other corroborative pieces of evidence, like presence of blood on shirt of accused No.3, absence of injury on person of accused No.3, non-explanation of blood marks of the group of the deceased on his shirt by accused No.3, find of blood from the cabin of the truck etc. and, therefore, their evidence has rightly been accepted by the trial Court. 13.1 Mr Pandya submitted that the trial Court while convicting A-1 to A-4 has acquitted A-5, A-6 and A-7. He has drawn our attention to evidence of witness Arif, who in terms deposed about active participation of accused No.5-Binnu in the episode. The witness has deposed that Binnu was amongst the persons who assaulted the deceased and had caught hold of his legs while in the truck and also helped the other accused in unloading the dead body of the deceased from the truck. Therefore, he cannot escape from his liability for active participation. Mr Pandya submitted further that so far as accused Nos.6 and 7 are concerned, it has come in evidence that they had washed the truck after the episode because the truck was stained with blood. Differently put, A-6 and A-7 had washed the truck to wipe out the evidence in the form of blood stains and had thereby committed offence punishable under Section 201 of IPC. Mr Pandya, therefore, submitted that the State appeal against acquittal of A-5, A-6 and A-7 may be allowed. (10) Learned advocate for A-5 submitted that what is shown by learned APP is the examination-in-chief, which is an improvement in the original version given by the witness. None of the allegations, which are made in the deposition against accused No.5, forms part of his version before the police and this aspect has been proved through cross-examination of the Investigating Officer. None of the allegations, which are made in the deposition against accused No.5, forms part of his version before the police and this aspect has been proved through cross-examination of the Investigating Officer. The learned advocate, therefore, submitted that the appeal against A-5 may be dismissed. So far as the State appeal against A-6 and A-7 is concerned, learned advocate Mr Rathod appearing for them have submitted that the charge against them is of causing disappearance of evidence with a view to protect culprit. In the instant case, the case against them is that they had washed the truck with a view to wash out the blood marks and thereby caused disappearance of that evidence. But it is indicated that as per the prosecution case, blood spots were found from the cabin of the truck, which was human blood of group 'A' and it, therefore, cannot be said that they had caused disappearance of the evidence. The evidence of the witnesses, who deposed against A-6 and A-7 of having washed the truck, therefore, appear to be not telling the truth and, therefore, the State appeal may be dismissed. (11) We have examined the record and proceedings in context of the submissions made before us. (12) Though number of witnesses are examined, it is true that relevant witnesses would be PW-14 Ramzan (Exh.95) and PW-18 Arif (Exh.109) because they are eye-witnesses to the incident and the moment the incident is sought to be proved by the prosecution with the help of eye-witnesses, the significance of other independent witnesses gets reduced. We, therefore, propose to examine these pieces of evidence. Pw-14 Ramzan had started from Salarpur along with others. He was sitting in the open carrier of the truck and obviously he would have little chance to see or notice what transpires in the cabin of the truck. This witness says that A-1, A-5, A-4, witness Arif and two others were sitting in the driver's cabin along with two drivers, whereas two other persons were sitting with him in the carrier. He has also stated that at about 2-00 AM in the morning, the truck suddenly stopped and he was awakened. He saw that the persons from the cabin were removing Kavinder from the cabin of the truck. He was profusely bleeding from his legs. He has also stated that at about 2-00 AM in the morning, the truck suddenly stopped and he was awakened. He saw that the persons from the cabin were removing Kavinder from the cabin of the truck. He was profusely bleeding from his legs. The witness says that they were trying to remove Kavinder from the cabin, when a vehicle with a green light passed therefrom and the truck was moving slowly. After the said car with green light travelled ahead, the driver of the truck stopped the truck on the side of the road. Kavinder was removed by Yunus, Saman and Riyasat. He states that after that Yunus had removed his shirt and had thrown it away. After travelling in the truck for sometime, they halted for tea and thereafter they got the windshield of the truck replaced. The witness says that he was intimidated by the accused persons and was threatened to keep quiet. The witness has been cross-examined at length, but not so very important material emerges therefrom. He has denied the suggestion about certain statements having not made by him in the police statement. (13) The next important witness is PW-18 Arifkhan Sattarkhan (Exh.109). He is also a minor, but this witness was sitting in the cabin of the truck when the incident is alleged to have occurred. The fact that he was in the cabin is not challenged by the defence. Apart from other evidence, his own evidence, would show that he was sitting in the cabin of the truck. He has deposed that A-2 had dashed the head of the deceased with the gearbox, which resulted into injuries on head of the deceased. When this started, A-2 Saman Nasiruddin shouted to kill and thereafter Yunus caught hold of legs of Kavinder and Yunus inflicted knife blows on the deceased. The son of Yunus and Saman A-2 also caught hold of legs of Kavinder. A-5 was asked to offer a bidi for smoking to the deceased, but the deceased could not, as he was already dead. It is stated by him that Yunus inflicted knife blows on thigh, but he does not know as to how many blows were given. He states that Kavinder had bleeding head injury. He states further that Riyasat and Jahid i.e. A-1 and A-4 had caught hold of legs of the deceased in the episode. It is stated by him that Yunus inflicted knife blows on thigh, but he does not know as to how many blows were given. He states that Kavinder had bleeding head injury. He states further that Riyasat and Jahid i.e. A-1 and A-4 had caught hold of legs of the deceased in the episode. A-5 Binnu and Riyasat, who were in the cabin, had caught Kavinder from inside and they were beating Kavinder. Sardarji was inquiring as to why they were beating him and they stated that he is our man and we are beating him (Sardarji here would mean either A-6 or A-7). 19.1 This witness has been cross-examined. In cross-examination, it emerges that after the murder was committed, the truck travelled for about 5 kms. where the front windshield was replaced. It is the case of the prosecution that the said windshield was broken by A-6 or A-7. The witness stated that he was quite awaken till the windshield was replaced. It also emerges from the cross-examination of this witness that whatever he has stated was recorded by the police. He denies the suggestion put to him that he has not stated before police regarding involvement of A-5 in the incident of either catching hold of the legs of the deceased or of having assaulted the deceased along with other others. (14) The sum total of these two pieces of evidence would mean that all the accused persons along with deceased Kavinder had started from Salarpur in the truck for going to Gondal and, on the way, the episode occurred whereby Kavinder was done to death by A-2 causing head injury to the deceased and A-3 inflicting knife blows to the deceased. It also transpires that A-1 and A-4 were also present in the cabin and they had actively participated. The defence, in cross-examination to the Investigating Officer Babaji Javanji Vaghela (Exh.120), has been successful in bringing on record the fact that he has not arrested Riyasatali till 19-15 hours. In cross-examination to learned advocate for accused No.5, he has also stated that he had not stated anything in his police statement about the role of A-5. Apart from the above pieces of evidence, the report of Serologist of FSL would indicate that shirt of A-3 was stained with blood of human group 'A'. In cross-examination to learned advocate for accused No.5, he has also stated that he had not stated anything in his police statement about the role of A-5. Apart from the above pieces of evidence, the report of Serologist of FSL would indicate that shirt of A-3 was stained with blood of human group 'A'. It would also indicate that the sample of blood taken from the dead body was also of group 'A'. The evidence does not indicate any injury to have been suffered by A-3 and there is no explanation coming from A-3 about presence of blood on his clothes. (15) It was contended before us by the learned advocate for the convicted accused that there is no evidence to the effect that the sample which was taken by the doctor from the dead body was handed over to the police, who, in turn, sent it to the FSL. In this context, it may be noted that witness Babaji Javanji Vaghela, in his deposition Exh.120, has stated that he had shown the clothes of the deceased to Virkumar. He says that he does not know as to what happened to the sealed packet of the clothes. He, however, in subsequent cross-examination has stated that the clothes were wrapped with cloth, but he does not know where has the paper gone. This would mean that the accused was shown the clothes after opening the packet and the seals were put thereafter upon repacking the cloth. (16) What emerges from these pieces of evidence is that Arif has seen the incident. His presence in the cabin at the time of the incident is proved beyond reasonable doubt. He has narrated what he has seen, which would show active participation by A-2 of having dashed the head of the deceased with the gearbox and A-3 having uttered words ?kill him? and then having given multiple knife blows on vital part of the body, including the scrotum. It also transpires that the deceased bleed profusely and, ultimately, succumbed to the injuries. From the evidence of Arif, it also transpires that both Riyasatali and Jahid, A-1 and A-4 respectively actively participated in the assault. There is no reason to disbelieve this eye-witness. and then having given multiple knife blows on vital part of the body, including the scrotum. It also transpires that the deceased bleed profusely and, ultimately, succumbed to the injuries. From the evidence of Arif, it also transpires that both Riyasatali and Jahid, A-1 and A-4 respectively actively participated in the assault. There is no reason to disbelieve this eye-witness. 23.1 The defence has only raised a plea that he had not disclosed about having seen the incident either immediately or soon after the incident, but disclosed for the first time only before the police. In our view, nothing much would turn on this because the witness is a child witness and he may not know the seriousness of not disclosing such an important fact immediately after the incident. That apart, the version of this eye-witness gets corroboration by the fact that the shirt of A-3 was stained with human blood of group 'A', which is the blood group of the deceased. At this stage, it would be appropriate to record that the argument of the defence that the blood sample of the accused is not taken, would be of no significance for the reason that A-3 had no injury on his person and, therefore, the blood that is found on his clothes would not be his own blood. On the contrary, A-3 has failed to explain the presence of blood on his clothes, which would be within his special personal knowledge and it was incumbent upon him to explain how his shirt came to be stained with blood. Further, it is worth to note that A-1 to A-4 are interrelated and A-3 had a strong motive to do away with deceased Kavinder because deceased had developed relations with Zaheda, daughter of A-3, with whom deceased had continued the relationship even after the marriage of Zaheda. 23.2 It is true that in the report to the Incholi police, it was indicated that the deceased had gone to Gondal for putting up a stall in the fair. 23.2 It is true that in the report to the Incholi police, it was indicated that the deceased had gone to Gondal for putting up a stall in the fair. It is equally true that this part is not emerging from the record, but the fact remains that the deceased had gone in the truck along with the accused persons; that his dead body was found lying on the road near Jerda, Taluka Deesa and, therefore, if the motive that the accused persons were having and the evidence of the eye-witnesses, which is trustworthy, are seen together, in our opinion, the prosecution has proved the case against A-1 to A-4. So far as the conspiracy is concerned, there cannot by any direct evidence, but the fact that A-1 to A-4 are closely related; that they all have actively participated in the incident and A-1 after returning to Salarpur, on inquiries being made about the deceased, has given a false explanation that the deceased was not comfortable at the fair and, therefore, he was permitted to go after giving Rs.1,000/-, would go to show that he was trying to cover up the entire episode and, therefore, the conspiracy of A-1 to A-4 becomes very conspicuous. In our view, so far as conviction of A-1 to A-4 is concerned, it is well-founded and we do not find any merits in their appeals. (17) Coming to the appeal preferred by the State against acquittal, it may be noted that as narrated earlier, involvement of Binnu A-5 is emerging from evidence of Arif, but from the suggestions put during cross-examination of the witness that he had not stated this aspect in his police statement, which are, of course, denied by him and from the cross-examination of the Investigating Officer, it is proved that in fact the witness had not stated anything about involvement of A-5 in the episode. This is a clear improvement in his deposition made by him. Barring evidence of Arif, there is no other evidence, which would show any active participation of A-5 Binnu and the trial Court was, therefore, justified in recording his acquittal. (18) So far as A-6 and A-7 are concerned, their role is of having caused disappearance of evidence to protect the accused persons by washing the truck to free it from the bloodstains. (18) So far as A-6 and A-7 are concerned, their role is of having caused disappearance of evidence to protect the accused persons by washing the truck to free it from the bloodstains. It has come in evidence that the deceased was bleeding profusely and there was blood in the cabin and, therefore, the truck was washed. The prosecution case does not find support from its own evidence. The Investigating Agency has collected sample of blood from the seat in the rear part of the driver's seat and from the wooden strip on the lower portion and is found to contain human blood of group 'A', which was of the deceased. Therefore, A-6 and A-7 cannot be said to have caused disappearance of evidence because evidence is collected from the truck, the disappearance of which is alleged against them. Further, they were both drivers of the truck and were not connected in any manner with the other accused. From the prosecution evidence of Arif itself, it transpires that when the deceased was assaulted upon, the drives objected to that why was he being beaten and was replied by the accused that he is our man and we are beating him. Therefore, the trial Court cannot be said to have committed any error in acquitting A-6 and A-7 either from the charge of causing disappearance of evidence punishable under Section 201 of IPC. The resultant effect is that acquittal of all the respondents in acquittal appeal being Criminal Appeal No.68 of 2004 is justified and legal and we do not find any merits in this appeal either. (19) For the foregoing reasons, all the appeals stand dismissed.

Riyasatali Mohammedsafi Musalman v. State of Gujarat