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2016 DIGILAW 524 (GUJ)

Taher Vajiyuddin Rangwala v. State of Gujarat

2016-03-03

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. The appellants in the instant case, assail their conviction for commission of offences under Sections 302, 201 and 120(B) of the Indian Penal Code by the judgment and order of sentence dated 21st October, 2008 passed by the Additional Sessions Judge, Surat at Vyara in Sessions Case No. 30 of 2007 whereby they have been sentenced to undergo rigorous imprisonment for life and also been imposed fine of Rs. 5,000/-. Again for default of payment of fine, it has been directed that they shall undergo rigorous imprisonment for one year under Section 302 of IPC. So far as Section 120(B) of Indian Penal Code is concerned, they have been sentenced to undergo rigorous imprisonment for five years and imposed fine of Rs. 2000/- in default rigorous imprisonment for two months. The accused have also been sentenced to rigorous imprisonment for two years and have been imposed fine of Rs. 1000/- in default rigorous imprisonment for two months under Section 201 of Indian Penal Code. The sentences were ordered to run concurrently and the benefit of set off has also been granted to the appellants. 2. The case of the prosecution is in a narrow compass and is briefly encapsulated hereunder:- "2.1 As per the original complaint, the appellants herein hatched a criminal conspiracy to murder one Salimbhai (hereinafter referred to as the deceased) who happens to be the brother of the complainant. On 17.07.2006, in the morning hours, the appellants had told the deceased that they had to go to Ankleshwar to play a game of volleyball and the appellants allegedly took the deceased to the house of in-laws of appellant No. 2 and while returning to Surat, they went near the bank of river Purna in Vankla village. It is the case of the prosecution that the appellants and deceased went to the village with a view to take bath in Purna river and at around 04.30 pm, near the check dam of the said river, the appellants gave alcohol to the deceased and drowned the deceased in the river. It is the case of the prosecution that as per the original complaint, the deceased had a love affair with the sister of appellant No. 1 and appellant No. 2 had a grudge against the deceased with regard to certain fights which had taken place over a game of cricket. It is the case of the prosecution that as per the original complaint, the deceased had a love affair with the sister of appellant No. 1 and appellant No. 2 had a grudge against the deceased with regard to certain fights which had taken place over a game of cricket. 2.2 Thereafter, a phone call was received by ASI Naginbhai Chaudhary on 17.07.2006 with regard to certain persons gathering near the place of incident as the body of deceased had got caught in the flow of river. Thereafter, the original complainant gave a statement on 18.07.2006 and the case was initially registered as an accident case. However, the original complainant thereafter gave applications to the DSP (Rural) against the present appellants. It is the case of the prosecution that the complainant doubted the involvement of the appellants and therefore an FIR was registered in that regard. Accordingly, investigation was carried out and during the course of investigation, the appellants were apprehended. A charge-sheet was submitted against the appellants. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court. 2.3 The trial was initiated against the appellants and during the course of trial the prosecution examined following witnesses whose evidence have been read before us:- PW No. Name of Witness Exhibit 1. Dr. Vipulbhai Gamit 9 2. Nareshbhai Gamit 17 3. Fatehsinh Chaudhary 19 4. Ramanbhai Bharti 21 5. Shaikh Shabbir Mansoor 23 6. Ishwarbhai Gamit 27 7. Ukajibhai Kotvaliya 28 8. Navinbhai Kotvaliya 29 9. Shardaben Gamit 30 10. Manishbhai Gamit 31 11. Jayaben Gamit 32 12. Mahmad Desai 34 13. Yasmin alias Munni Usmanbhai Desai 40 14. V.M. Jadeja 41 15. Sabera Desai 46 16. B.Z. Patel 47 17. R.V. Rabari 48 18. Pravinbhai Patel 51 19. Hemantbhai Patel 52 20. Dr. Sumitkumar Jagani 78 2.4 The prosecution also relied upon the following documents as documentary evidences which have been perused by us such as complaint at Ex. 36, Application before DSP at Ex. 37, police yadi at Ex. 10, 15, P.M. Note at Ex. 11, cause of death certificate at Ex. 12, 13, Medico-legal report at Ex. 14, inquest panchnama at Ex. 25, index at Ex. 43, muddamal dispatch note at Ex. 44, FSL report at Ex. 73, Serological report at Ex. 74, bail application of accused at Ex. 75 etc. 37, police yadi at Ex. 10, 15, P.M. Note at Ex. 11, cause of death certificate at Ex. 12, 13, Medico-legal report at Ex. 14, inquest panchnama at Ex. 25, index at Ex. 43, muddamal dispatch note at Ex. 44, FSL report at Ex. 73, Serological report at Ex. 74, bail application of accused at Ex. 75 etc. 2.5 At the end of the trial and after recording the further statement of the accused under section 313 of Cr. P.C. and hearing arguments on behalf of prosecution and the defence, the trial court convicted the accused as aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the accused have preferred the present appeal." 3. Representing the case of the appellants, Mr. P.P. Majmudar, learned advocate laid challenge to the findings arrived at by the trial court which as per the advocate, were totally perverse and against the well settled principles of law. Mr. Majmudar submitted that there is a delay in lodging the complaint and the same has not been explained in the complaint. He submitted that the deceased had accidentally slipped into the river and therefore initially a case was registered as an accident case as per the list produced below Ex. 43 in the said Sessions Case. 3.1 Mr. Majmudar submitted that the complaint is not corroborated with material evidence. He submitted that there is material contradiction and omission in the evidence of the witnesses produced by the prosecution. He submitted that there is no eye witness to the alleged incident and therefore the trial court has wrongly convicted the appellants on merely circumstantial evidence. He has drawn the attention of this Court to the post mortem report and submitted that from the same it is clear that the deceased had died an accidental death. He submitted that the appellants deserve to be granted atleast benefit of doubt as there is no clear evidence against them. 3.2 Mr. Majmudar submitted that last seen together circumstance is a weak piece of evidence and therefore in absence of any eye witness to the case, the trial court ought not to have convicted the appellants. He submitted that there is no direct or indirect evidence indicating the guilt of the appellants and the chain of circumstances is not established in the instant case to prove the guilt of the appellants. Mr. He submitted that there is no direct or indirect evidence indicating the guilt of the appellants and the chain of circumstances is not established in the instant case to prove the guilt of the appellants. Mr. Majmudar has relied upon a decision of the Apex Court in the case of Ashok vs. State of Maharashtra, (2015) 4 SCC 393 more particularly paras 7, 14 & 15 which are reproduced hereunder: "7. We have heard the learned counsel for both the sides. The main point of consideration that arises in this case is whether the burden of proof shifts on the accused to explain the death of the deceased persons due to last seen together rule? However, before venturing to answer that question, it may be relevant to keep in mind following few points: 7.1 There is an unexplained delay of almost one month in filing the FIR. The dead bodies of Namrata and Shubhangi were found on 29th and 30th August, 2008 respectively while the FIR was filed on 27th September, 2008. 7.2 The prosecution has not put forth any story or any version of its own as to how was the murder of three persons committed by the accused. 7.3 There is no question asked even in Section 313statement of the accused as to whether he killed the deceased persons. 14. In the present case, the Sessions Judge found following incriminating evidence against the accused: (i) Taking half day casual leave on 26th August 2008. (ii) Last seen when all the deceased were in the company of accused-appellant. (iii) Mysterious disappearance of the three deceased persons from the said company. (iv) Conduct of the accused appellant: (a) Requiring the colleague to prepare the dinner. (b) Reporting to police about the missing on the next day. (c) Attitude of the accused appellant in presence of the relatives of the deceased. (d) Leaving of 2 daughters and wife at H.P. Gas Agency. (v) Falsity in defence. (vi) Disliking towards the deceased. (vii) Demand of amount which was kept in the name of Shubhangi by Shalinibai. (viii) Post-mortem Report. 15. Now, it may be noted that following lackings in the case of prosecution cannot be overlooked: (1) The FIR was lodged after a delay of one month and no explanation has been given for such delay. (vi) Disliking towards the deceased. (vii) Demand of amount which was kept in the name of Shubhangi by Shalinibai. (viii) Post-mortem Report. 15. Now, it may be noted that following lackings in the case of prosecution cannot be overlooked: (1) The FIR was lodged after a delay of one month and no explanation has been given for such delay. (2) There has been no previous incident of any physical cruelty committed by the accused against the any of the deceased. (3) The motive as alleged by the prosecution, even if accepted does not explain how will the accused get the money which is in the bank account of Shailinibai by killing Shubhangi. Shubhangi was merely a nominee in that account and did not own the money. Her death would not have made accused a rightful claimant of that money. In any case, this motive is completely irrelevant for explaining the death of the daughters. (4) The prosecution has not given its own story at all with respect to what things transpired on 26th August 2008. " 4. Refuting the arguments of the advocate for appellants, Mr. H.S. Soni, Additional Public Prosecutor for state, advanced his argument in support of the findings arrived at by the learned Trial Court. Mr. Soni, submitted that the trial court has rightly considered that the prosecution had successfully completed the chain of circumstantial evidence and therefore this court may not interfere in the alleged appeal. 4.1 Mr. Soni submitted that so far as delay in lodging the FIR is concerned, the same was done as soon as the body was fished out of the water and as soon as they came to know about the murder. He submitted that the family members of the deceased also submitted a memorandum to the police authorities for appropriate inquiry. 4.2 Mr. Soni submitted that the medical evidence supports the oral evidence. He submitted that even if there is no eye witness to the present case, the chain of circumstances strongly point a finger on the accused persons. He submitted that the accused persons were last seen together with the deceased and that the accused persons are not in a position to satisfactorily explain the death of the deceased. He submitted that the story put forward by the accused that the deceased got drowned while taking a bath is not supported by cogent evidence. He submitted that the accused persons were last seen together with the deceased and that the accused persons are not in a position to satisfactorily explain the death of the deceased. He submitted that the story put forward by the accused that the deceased got drowned while taking a bath is not supported by cogent evidence. He has drawn the attention of this Court to the conduct of the deceased after the incident. 4.3 Mr. Soni further contended that the motive in the alleged offence is proved from the record. He submitted that the deceased had a love affair with the sister of accused No. 1 which had taken a toll on her marriage life and therefore accused No. 1 wanted to avenge the same. He submitted that so far as accused No. 2 is concerned, the deceased had an altercation with him during the course of a cricket match and therefore both of them were in search of an appropriate opportunity to do away with him. He submitted that the accused had meticulously planned the crime in question and it can be seen from the records that the murder was a premeditated one. 4.4 Mr. Soni further submitted that the question of granting benefit of doubt to the accused does not arise in the present case as the evidence against the accused persons is very clinching. He submitted that the evidence of the family members of the deceased, PW-8, 18 & 19 coupled with the evidence of PW-1 and the panchnama of scene of offence prove the case against the accused beyond reasonable doubt. He submitted that this court may not show any leniency towards the accused. 5. We have heard learned counsel for the parties at considerable length and given our thoughtful consideration to the arguments advanced by them. We have also perused the record of this case and closely scrutinised the evidence led by both the parties. Out of the ocular evidence considered by the trial court, PW-1 & 20 are medical officers. PW-12 is the complainant and PW-2 to 6 are panch witnesses. PW-14, 16 & 17 are police witnesses who were part of the investigation whereas PW-7, 8, 18 & 19 are independent witnesses who had last seen the deceased together with the accused persons. Out of the ocular evidence considered by the trial court, PW-1 & 20 are medical officers. PW-12 is the complainant and PW-2 to 6 are panch witnesses. PW-14, 16 & 17 are police witnesses who were part of the investigation whereas PW-7, 8, 18 & 19 are independent witnesses who had last seen the deceased together with the accused persons. It shall be pertinent to note some of the points from the evidences of these witnesses which shall throw some light on the prosecution case. 6. PW-1 - Dr. Vipulbhai Gamit is the medical officer who had performed the post mortem of the dead body of deceased. This witness has been examined by the prosecution vide Ex. 9. He has stated that the probable cause of death is cardio respiratory arrest due to asphyxia due to drowning. This witness has stated that the following injuries were found on the body of the deceased at the time of post mortem: "(1) A contused lacerated wound approximately 4.5 cm x 0.75 cm in size deep to frontal bone with irregular margin red colour red edges in which blood present is at left side of fore head just above the left eye brow . (2) Abrasion present in between left eye & left ear which is dark and is approximately 2 cm x 1/2 cm in size reddish colour. (3) Abrasion present on right mid clavicular region which is approximately 1 cm x 1 cm in size and reddish in colour." 6.1 PW-1 has stated that if a person is hit with a soda bottle which is made of glass and is in a broken condition, then injury No. 1 sustained by the deceased is possible and the person who has been hit can become unconscious and thereafter if the said person is thrown in the river or water, the person can die and the reason or cause of death for the same would be cardio respiratory arrest due to asphyxia as a result of drowning. 6.2 PW-1 has also been cross examined at length by the defence. This witness in his cross examination has agreed that he carried out the Post-mortem of the dead body and it is not mentioned in the P.M. note that since how much time the dead body would be in the water. 6.2 PW-1 has also been cross examined at length by the defence. This witness in his cross examination has agreed that he carried out the Post-mortem of the dead body and it is not mentioned in the P.M. note that since how much time the dead body would be in the water. He has agreed that it cannot be said exactly as to for how much time the dead body may have remained in the water. But, it can be said from the wrinkles of hand and leg of the deceased that the dead body might have remained for minimum 4-5 hours in the water. Any dead body comes on the surface of the water in 24 hours after drowning of a person and it comes up after it gets puffed up. Looking to the condition of the said dead body, it appears that it may not have come on the surface. When someone drowns or is drowned, he puts on weight as water enters his stomach and as a result he goes down into water. 6.3 PW-1 has further agreed to the suggestion that if someone falls into river from the bank or jumps into river to take bath and accidentally, he gets struck with the edge of the stone, then, he can sustain injury as sustained by the deceased. In the same manner, if someone is dragged away in the flow of water and during that, he comes in contact with any substance, then the injury no. (2) can be sustained. He has also stated that if a person gets struck with a blunt substance while jumping into river for taking bath, then, the injury shown in the column no-19, ancillary, to the injury no-1 shown in the column no-17, can be sustained. 7. PW-12 - Mahmad Ayub Usmanbhai Desai is the brother of the deceased and the complainant in the present case. This witness has stated that the incident occurred on 17/7/06. On the day of the incident, at about 6-30 hours in the morning, when he was sleeping, accused No. 1 - Taher came on his motorcycle at his home. He rang door bell the complainant's mother woke up and on opening the door, the accused Taher asked his mother as to where Salim was. Therefore, the complainant's mother asked him as to what work did he have. He rang door bell the complainant's mother woke up and on opening the door, the accused Taher asked his mother as to where Salim was. Therefore, the complainant's mother asked him as to what work did he have. So, Taher told her that they have to go Ankleshwar to play volleyball. This witness has stated that by that time his sister Yasmin woke Salim - deceased. Taher took the deceased on his motorcycle. This witness has stated that at that time, accused No. 2 Ojefa was also a pillion rider on the said motorcycle. Thereafter, all these three - both the accused persons and the deceased left towards Ankleshwar on their motorcycle. 7.1 PW-12 has further stated that he woke up at 7.30 am and asked his mother as to where Salim was. His mother informed him that Salim has gone with Taher at Ankleshwar to play volleyball. Thereafter, this witness went to Piraman village of Ankleshwar Taluka for his business work. He has stated that he returned at 5.30 to 6.00 pm from there and went to take vegetables at Nanpura and returned home thereafter. This witness returned home and asked his mother as to where Salim was. His mother replied that Salim had not returned. 7.2 PW-12 has stated that at that time, his sister Yasmin told him that she had gone to the house of accused No. 2 - Ojefa to ask about Salim and Taher to the wife of accused No. 2. Wife of Ojefa replied that those people had gone to Vasda-to the house of father-in-law of Ojefa. This witness has further stated that thereafter, when he was at his house, he received phone call of Shri V.M. Jadeja - PSI of Vyara Police station on his landline number 0261-2353463 who asked this witness as to whether he had any brother named Salim to which this witness replied in the affirmative. Thereafter, after certain verifications about the colour of the clothes worn by deceased, PSI Mr. Jadeja informed this witness that his brother had drowned in Purna river at Vankla village of Vyara Taluka. This witness has stated that he asked Mr. Jadeja as to where Vankla village was located to which PSI Jadeja asked him to reach Vyara Police station. Thereafter, after certain verifications about the colour of the clothes worn by deceased, PSI Mr. Jadeja informed this witness that his brother had drowned in Purna river at Vankla village of Vyara Taluka. This witness has stated that he asked Mr. Jadeja as to where Vankla village was located to which PSI Jadeja asked him to reach Vyara Police station. 7.3 PW-12 has further stated that he made phone calls to certain relatives and also informed his father who had returned from market during that time. This witness has stated that about 50 persons of surrounding street gathered at his house. He has further stated that his brother had a purse in his pant pocket wherein there was his visiting card. This witness's name and number were written therein and on the basis of that PSI Mr. Jadeja made phone call to his house. 7.4 PW-12 has deposed that Mr. V.M. Jadeja told him over phone that there were two persons with Salim who came on motorcycle and they ran away on their motorcycle. Thereafter, his sister Yasmin received mobile number of Ojefa from Ojefa's wife and made phone call to Ojefa on his mobile number. His sister made phone call to Ojefa and asked him as to where Salim was. Ojefa replied to his sister that they had dropped him at Sahra darwaja at 2.30 pm and Salim was telling to go to his workplace. This witness has stated that during the period of the incident, the deceased was serving in Varun Textiles located in Textiles market in Surat. Thereafter, PW-12 made phone call to Idarbhai under whom the deceased was working and asked as to whether Salim had come there. Idarbhai however replied that Salim had not gone there since morning. 7.5 PW-12 has further stated that Mr. V.M. Jadeja called him and told him that those two persons were with Salim and if both the persons were found, they were required to be brought to Vankla. Thereafter, he again made phone call to Ojefa and asked him as to where he was to which Ojefa replied that he was watching movie in a theater. After about ten minutes, both the accused came to the complainant's house on their motorcycle. During this period, Idarbhai had came to the complainant's house by car. Both the accused were in inebriated state. After about ten minutes, both the accused came to the complainant's house on their motorcycle. During this period, Idarbhai had came to the complainant's house by car. Both the accused were in inebriated state. Both were made to sit in a car and these people left towards Vanka. PW-12 asked Taher and Ojefa as to where Salim was. They replied that they had dropped Salim at Sahra darwaja. This witness has stated that after going bit ahead, both these persons started crying and told that the three of them went to Vasda. While returning from Vasda, they went to take bath in Vasda river wherein Salim drowned. This witness has further stated that these people reached Vankla where Mr. V.M. Jadeja was present. He asked the complainant as to who were accompanying Salim to which PW-12 replied that Taher and Ojefa were accompanying him. 7.6 PW-12 has further stated that Mr. V.M. Jadeja interrogated him and showed him slipper, pant and purse of the deceased which were identified by him. Thereafter, Mr. Jadeja interrogated Taher and Ojefa. Police searched for dead body of his brother, but it was not found. Police called local swimmers to find out dead body of my brother, but dead body was not found. It got dark thereafter. Mr. Jadeja interrogated both the accused persons. During this time, both these persons told that they brought down their motorcycle near the bank of river. 7.7 Thereafter, police took accused persons to Dolvan outpost and interrogated them. On the next day, Vyara Police called persons of fire brigade from Surat. They came and searched dead body of Salim in the water. Dead body of Salim was found out at 6.00 am. The dead body was taken out from the water and at that time this witness saw that there was a mark of a deep wound above his eye and skin at the part of throat was contused. Thereafter, police sent the dead body to Vyara Referral Hospital for postmortem where postmortem of the dead body of Salim was performed. After completion of the postmortem, possession of the dead body was handed over to the complainant and thereafter they performed his final rites as per their custom. 7.8 PW-12 has further stated that he gave a memorandum to DSP, Surat (Rural) in writing as they we were not satisfied with investigation. After completion of the postmortem, possession of the dead body was handed over to the complainant and thereafter they performed his final rites as per their custom. 7.8 PW-12 has further stated that he gave a memorandum to DSP, Surat (Rural) in writing as they we were not satisfied with investigation. He has stated that during the period when DSP sent their complaint to PI, LCB for investigation, son of PI, LCB had committed suicide and therefore he was on leave and his charge was with CPI, Vyara. Thereafter, CPI, Vyara got the offence registered in Vyara Police Station on the basis of their complaint. 7.9 It is very pertinent to note that PW-12 has in his deposition stated that earlier his brother Salim - deceased had a love affair with Farida, the sister of accused Taher. Farida was married at Bilimora. But Farida's husband had such suspicion that even after marriage also, Farida has illicit relations with Salim. Harboring such suspicion, Farida's husband used to beat her often. Moreover, the deceased and both accused persons and other boys used to play cricket together. He has stated that before about one or two days of the incident, a quarrel had taken place between the deceased and the accused Ojefa with regard to game of cricket. He has stated that at that time, Ojefa said that something will have to be done with regard to Salim. 7.10 PW-12 has stated that therefore both accused persons hatched conspiracy of killing his brother and under the pretext of taking him to Ankleshwar for playing volleyball on the day of incident, actually they did not take him to Ankleshwar but took him to Vansda i.e. to the in-law's house of Ojefa where mother-in-law of Ojefa performed some black magic on Salim. Thereafter, accused persons brought his brother back from Vansda. While going to Vankla village, first they had got into a river situated on the road to take bath where both these accused persons quarreled with the deceased. But as women of local area were washing clothes at the bank of river, the accused persons had a doubt that these women would see the incident and therefore, the accused persons came to Vankla with the deceased. 7.11 PW-12 has categorically stated that at Vankla there is a place like river in which water is less and therefore there is no possibility of drowning. 7.11 PW-12 has categorically stated that at Vankla there is a place like river in which water is less and therefore there is no possibility of drowning. At this place, both these persons made Salim to consume liquor and they also consumed. Thereafter, two-three shepherds were there and the accused persons also called them to consume liquor. Thereafter, these persons drowned Salim in water and caused his death. At the time of incident, his brother was wearing clothes including shirt and underwear, but when his dead body was found, these clothes were not there on his body. 8. From the evidence of PW-12 it is clearly borne out that the accused persons had hatched a conspiracy to kill the deceased. The accused had come to the house of deceased to call him for a volleyball match and on the pretext of taking him to Ankleshwar it appears that they did away with him due to the earlier fallout between the deceased and accused No. 2 with regard to the cricket match and accused No. 1 also used to harbour animosity towards the deceased because of the illicit relation between the deceased and accused No. 1's sister. 9. PW-13 - Yasminben has been examined by the prosecution at Ex. 40. This witness has stated that on 17.7.06, at about 6.30 am, Taher came on his motorcycle and rang door bell. Therefore, she woke up and her sister Sabera opened the door. At that time, Taher told her sister that he had to go to Ankleshwar with Salim to play volleyball. She further stated that she also came out of her room and asked accused No. 1 the purpose of his visit to which he replied that he had to go to play volleyball. She has stated that she told him that deceased could not accompany him. Therefore accused No. 1 went away but returned after sometime. This witness has stated that her mother woke Salim up and her brother - deceased went with accused No. 1 after taking bath. She has stated that she went upstairs and saw that the accused Taher, Ojefa and her brother Salim went together on one motorcycle. Salim waved his hand while going. She stated that her brother Salim dropped his bracelet and mobile phone at home and therefore, he could not be contacted on phone. She has stated that she went upstairs and saw that the accused Taher, Ojefa and her brother Salim went together on one motorcycle. Salim waved his hand while going. She stated that her brother Salim dropped his bracelet and mobile phone at home and therefore, he could not be contacted on phone. 9.1 PW-13 has further stated that as her brother did not return till noon time, she sent her sister Sabera to wife of accused No. 2 - Ojefa to get his mobile number. After obtaining his number, they made phone call at about 4.00 to 4.30 pm and Ojefa talked with her. He replied that they had already returned and Salim got down near Sahra darwaja at about 2.30 pm. This witness has stated that accused No. 2 told her that deceased might have gone to shop. She has stated that she thereafter made phone call to Indarbhai Bhatilya of Varun Tex where her brother was serving. She asked him as to whether Salim had gone there and she came to know that Salim had not gone to the shop on that day. 9.2 PW-13 has further deposed that she again called the accused Ojefa and told him that the deceased had not reached shop. She stated that she had told accused No. 2 to come to her and show the place where they had dropped her brother. She has stated that she asked Ojefa at that time as to where he was and he replied that he was at the house of his brother. On asking about Taher, he replied that they both were together and she asked accused No. 2 to give mobile to accused No. 1. PW-13 has further stated that she asked Taher as to where they were to which he replied that they both were watching a movie. She has stated that she asked them to come quickly and show her the place and she disconnected her phone. 9.3 PW-13 further stated that thereafter, her brother Ayubbhai - PW-12 came home and he asked as to whether Salim had returned. PW-13 told him regarding the entire conversation with the accused persons Ojefa and Taher over phone. She has stated that during that period, PW-12 received phone call of PSI Mr. Jadeja from Vyara Police station and he told him that pant and purse of Salim had been found. PW-13 told him regarding the entire conversation with the accused persons Ojefa and Taher over phone. She has stated that during that period, PW-12 received phone call of PSI Mr. Jadeja from Vyara Police station and he told him that pant and purse of Salim had been found. 9.4 PW-13 has deposed that the deceased - her brother Salim had love affair with Farida-sister of Taher for the last five to six years. As her brother Aaiyubbhai came to know regarding the same he had persuaded her brother not to enter into a relation. Thereafter, marriage of the aforesaid Farida was solemnized at Bilimora. Husband of Faridaben had doubt regarding love affair of deceased with Farida and therefore, he used to beat Farida. This witness has categorically stated that according to her keeping animosity for the same, her brother had been murdered by the accused persons. 10. At this point, it shall also be crucial to go through the evidence of independent witnesses who were present at or near the alleged scene of offence at the time of the alleged incident. PW-18 - Pravinbhai Patel is the owner of the soda shop. This witness has been examined at Ex. 51. This witness has stated that about two years prior to the date of deposition, three persons came to his shop to purchase soda at about two, half past two or three o'clock in the afternoon. They came on bike. Three of them came together. He has stated that he did not know the said persons. They purchased four soda bottles from his shop. He has stated that as he did not know them, he asked them to give deposit for soda bottles and accordingly he took thirty or forty rupees as deposit. They purchased only soda bottles; nothing else. Thereafter, those persons went away on motorbike with the soda bottles. After about one hour they came to shop to return the bottles. Two persons came to return the bottles. Three persons came to purchase the bottles and two persons came to return the bottles. The two persons who came to give back the bottles, arrived on bike. They had come on the same bike. These two persons who came to return the bottles, gave only three empty bottles. One bottle was less. This witness has stated that as one bottle was less, he deducted five rupees and returned the deposit. The two persons who came to give back the bottles, arrived on bike. They had come on the same bike. These two persons who came to return the bottles, gave only three empty bottles. One bottle was less. This witness has stated that as one bottle was less, he deducted five rupees and returned the deposit. This witness has further stated that when he asked as to why one bottle was missing, they replied that it had broken. 10.1 PW-18 was further questioned by the prosecution as to what was the condition of those two persons when they came to return the bottles. PW-18 replied that it seemed they were in inebriated condition. It seemed their pants were wet with water. It is further deposed by this witness that after about one hour after these two persons returned the three empty bottles, people rushed towards river. Thereafter, he came to know in the evening that someone has fallen into the river. He has stated that he did not go to the river to see and that he did not know as to whether dead body was found as he did not pay much attention to the same. 10.2 PW-18 was again put a question whether he could identify the two persons who, as per his statement, had come to return the empty soda bottles on motorbike to which he replied that that if they came in front of him, he could identify them after seeing. Accordingly, PW-18 was asked to see all the persons sitting in the court and state as to whether the two persons who had come to return the empty soda bottles and who had come to purchase soda bottles, were present in the court. PW-18 identified the accused in the court. 11. Similarly, PW-8 - Navinbhai Kotwaliya is another witness who had last seen the accused with the deceased. This witness who is a labourer and an occasional fisherman has been examined by the prosecution at Ex. 29. This witness has stated that around one and a half years ago, he had gone on the banks of Purna river to fish. He has stated that at that time three male persons were present there. He has stated that he did not know them as they were not from his village. This witness has stated that those persons offered him cigarette and he had cigarette. He has stated that at that time three male persons were present there. He has stated that he did not know them as they were not from his village. This witness has stated that those persons offered him cigarette and he had cigarette. Thereafter, they started consuming alcohol. This witness has stated that those persons asked him if he wanted alcohol which he denied. He has further stated that they had soda bottles with them and were drinking alcohol by mixing soda with it. Thereafter, these people jumped into the water to take bath. This witness has stated that there was neck deep water and then he went for fishing and did not pay attention to what they were doing. He thereafter went home. This witness has stated that while he was there he did not witness any person flowing away with the flow of water or drowning in the water. 12. Similarly, PW-19 - Hemantbhai Patel who was present at a pan parlour near the scene of offence has been examined by the prosecution. This witness has stated that the alleged incident took place before one and half to two years from the date of deposition. On that day, in the afternoon, he went to the shop of his friend Vinodbhai. Vinodbhai stated that, he would take rest, therefore, this witness looked after his shop. At that time, at about 2.30 - 03.00 pm, three persons came on a bike. PW-19 has stated that they asked him as to whether cold drink is available. This witness stated that there was no cold drink in the shop. Thereafter, he told them that they can get cold-drink from the shop located on the opposite side. The shop located on the opposite side was of PW-18 - Pravinbhai Narottambhai Patel. This witness has stated that they purchased a packet of wafer worth Rs. 5/- and a packet of Ratlami-Sev worth Rs. 2/-. Thus, they purchased the things of total Rs. 7/-. They went to the shop of PW-18 from his shop. PW-19 has further stated that after about one to one and a half hours, persons were talking that some boy had been killed and thrown in the river. 5/- and a packet of Ratlami-Sev worth Rs. 2/-. Thus, they purchased the things of total Rs. 7/-. They went to the shop of PW-18 from his shop. PW-19 has further stated that after about one to one and a half hours, persons were talking that some boy had been killed and thrown in the river. On being asked to see all the persons sitting in the court and to state whether any person out of those persons is present in the Court or not, after looking to all the persons sitting in the Court, he identified the accused persons. 13. Thus, from the evidence of these witnesses it is clear that the deceased was last seen in the company of the accused persons. The evidence of these witnesses get corroboration from each other's evidence. PW-8 had seen soda bottles at the scene of incident. PW-18 had stated that he had diverted the accused and deceased to the shop of PW-19 for cold drinks. 14. It is true that initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, it is also a settled position of law that in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus would have burden of proof as per Section 106 of the Evidence Act. 15. We are of the opinion that the trial court has rightly convicted the accused persons. The trial court in its judgment has recorded as under: "(45) If we see further, learned advocate Mr. K.K. Pathan for the accused persons has stated in his submission that this case was first registered as accident case. The doctor has also stated that injury sustained by the deceased can be caused if being hit with any stone while taking bath in the water, and complainant has also stated in his first information that deceased has died due to drowning in the water. Looking to the said fact, such possibility cannot be ruled out that deceased had died after drowning while taking bath in the water. Further, he states that when there are two different opinions for the case of Prosecution against accused persons, the court should take into account only that opinion, which is in favour of accused persons. Looking to the said fact, such possibility cannot be ruled out that deceased had died after drowning while taking bath in the water. Further, he states that when there are two different opinions for the case of Prosecution against accused persons, the court should take into account only that opinion, which is in favour of accused persons. In support of his own aforesaid submission, judgment in the case of Narayan Murti vs. State of Karnataka, 2008 (2) GLH 566 SC, has been produced before me. This court has read the aforesaid judgment completely. I humbly believe that this court is bound by the principle established therein. But, looking to the evidence produced before me and detailed discussion made earlier in this judgment, it is proved beyond reasonable doubt that accused persons hatched criminal conspiracy, and as per the planning of the said criminal conspiracy, he was made to drink liquor, beaten and drowned, and caused his death and committed his murder. Looking to all the evidences, it is not proved that deceased drowned accidentally when he fell in the water to take bath. Further, if we see in this connection, accused persons also fell in the water to have bath along with deceased, and at that time, as algae had accumulated on the shore, all three persons had slipped. As water level was deep, they started drowning. Anyhow both accused persons succeeded in coming out of water. Even if we believe for the sake of argument that deceased had not been able to come out of water, when their one friend is drowning, any mature persons would have got help of nearby persons to save the drowning friend by making hue and cry. Looking to the evidence produced in this case, it is proved that the persons grazing cattle, persons catching fishes and women washing clothes were present a little far from the place of occurrence. They have not heard any shouts of accused persons at that time, and accused persons could have informed some villagers after going to the village, which is situated near the place of occurrence. The accused persons have not done anything. Thereafter, accused persons returned soda bottles to witness Pravin and took back their deposit amount and came to their house at Surat. The accused persons have not done anything. Thereafter, accused persons returned soda bottles to witness Pravin and took back their deposit amount and came to their house at Surat. When sister of deceased asked accused persons about her brother over phone, they have stated false fact that they have left deceased at Sahara Darwaja at half past two. As ASI Rameshbhai received such information through anonymous phone that some person has drowned in the water, he went to the place of occurrence and made inquiry. Hence, as pant of deceased was found in the water near the shore, the said pant was brought out by making one person get down into water and P.S.I. Jadeja was informed about the incident. Mr. Jadeja made a phone call to original complainant of this case on the phone number printed in the visiting card found from the purse of the pant. Therefore, original complainant came to know about the incident and accused persons came there and stated that when they fell to have bath, the deceased drowned accidentally. Looking to all these facts, it is proved beyond reasonable doubt that accused persons had made efforts to mislead the Prosecution from very beginning. The aforesaid submission of the learned advocate for the applicant/accused is not sustainable. (46) If we see further, learned advocate Mr. K.K. Pathan for the accused persons has stated in his submission that it is a case of the Prosecution that blow of soda bottle was inflicted to the deceased. The said bottle has not been shown in the court and got identified by any witness. Therefore also, the case of the Prosecution becomes suspicious. In support of this submission, judgment in the case of Kishorkumar Manubhai Chauhan vs. State of Gujarat and Others, 2008 (2) GLH (NOC) 10 has been produced. This court has perused the aforesaid judgment. If we look at the fact of the case, any witness did not hear screams or shouts of the deceased in the said case. It did not appear that any grocery items were purchased prior to the incident. The presence of those witnesses, who were not residing in the village, was shown at the place of occurrence. No clarification was given in respect of presence. The pieces of cloth, with which mouth was stuffed, were not found. It did not appear that any grocery items were purchased prior to the incident. The presence of those witnesses, who were not residing in the village, was shown at the place of occurrence. No clarification was given in respect of presence. The pieces of cloth, with which mouth was stuffed, were not found. Now, if we look at the facts of the case before me, panchnama of place of occurrence has been produced vide exhibit No. 18 in this case, and the same has been admitted for the accused persons. It gets complete corroboration from the evidence of the panch witness of the said panchnama Nareshbhai Gamit. It has been clearly noted in connection with aforesaid glass bottle in the said panchnama that glass pieces of broken soda bottle have been found from the aforesaid place. The said panch witness has stated in his deposition on oath that police had seized pieces of glass bottle, empty cover of Miraj, pouch of Ratlami Sev, etc. at the time of this panchnama. This witness has also admitted this fact during the cross examination. Looking to the said fact, glass pieces have not been shown to the witness. Taking into account other evidence produced in this case, it cannot be presumed from the said fact only that the case of the Prosecution fails. (47) If we see further, accused persons took deceased from his house before the incident saying that we have to go to Ankleshwar for playing volley ball. They took him to Vansada instead of Ankleshwar and thereafter, brought him to the place of occurrence. Looking to the said fact, accused persons have not shouted for saving deceased from drowning, got help of anyone. When sister of the deceased asked accused persons about the deceased, they state the false fact that they left him at Sahara Darwaja at half past two in the afternoon. Thereafter, they falsely stated that all three persons fell in the river to have bath and the deceased has drowned accidentally. Looking to this fact and conduct of the accused persons after the incident, this court believes that the conduct of accused persons before the incident and after the incident draws adverse presumption against them as per section 8of the Indian Evidence Act. Looking to this fact and conduct of the accused persons after the incident, this court believes that the conduct of accused persons before the incident and after the incident draws adverse presumption against them as per section 8of the Indian Evidence Act. (48) Taking into account aforesaid all the evidences and all the discussions made in this judgment, accused No. 1 and 2, in collusion with each other, hatched criminal conspiracy to kill deceased because deceased had a love affair with Farida, the sister of accused No. 1 Taher and with a concern that Farida's married life may not spoil as she was married, took deceased from the home on the pretext of going to Ankleshwar for playing volleyball, consumed liquor at the place of occurrence and made the deceased consume liquor, broke one soda bottle out of four purchased soda bottles, caused injuries to the deceased with the same, and thereafter, he was drowned in the deep water and committed his murder by causing his death and threw pant of deceased in the water after committing murder in order to destroy evidence of conspiracy of murder against them and offence of murder and left the dead body in the water and misled Prosecution witnesses as stated earlier, and this court believes that the Prosecution has proved the case beyond all reasonable doubts that both accused persons have committed offences punishable u/s. 120(B) of I.P.C. and u/s. 302 of the I.P.C. read with 120(B) of I.P.C. and u/s. 201 of the I.P.C. This court decides the aforesaid issues against the accused persons." 16. We are in complete agreement with the reasonings adopted by the trial court. The fact that the deceased had gone with the accused persons to Purna river has been proved beyond reasonable doubt from the evidence of PW-8, 19 & 20. It has also come on record that the deceased had earlier been to the banks of Olan river at Vankla but as there were ladies washing clothes and people grazing cattle, the accused persons shifted to purna river. 17. It has also come on record that the deceased had earlier been to the banks of Olan river at Vankla but as there were ladies washing clothes and people grazing cattle, the accused persons shifted to purna river. 17. Even if the say of the defence is accepted that the deceased had died an accidental death by drowning, the conduct of the accused in not informing the family members of the deceased and/or in not calling immediate help from nearby villagers or shopkeepers goes a long way in showing that the accused persons had deliberately concocted the story of the accused slipping away into the water. It is required to be noted that the accused persons had even gone to return the empty soda bottles to PW-19. They did not inform about the so called drowning incident, if any, to PW-19. Thereafter, when the family members of the deceased called accused No. 2 he stated that he had dropped the deceased at Sahran Darwaja. Accused persons thereafter also went to watch a movie. Had the deceased drowned in the water, the accused persons would not have been in a frame of mind to watch a movie. 18. The panchnama of the scene of offence corroborates with the evidence of witnesses as there were soda bottles including the broken one, packet of ratlami sev etc. The subsequent conduct of the accused-appellants in lying to the family members of deceased about the whereabouts of the deceased, has been found to be compatible with their guilt and in consonance with their meticulously chalked out plan for the commission of the offence. 19. It has been time and again held by the courts of law that the last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration. In the present case, the prosecution has clearly and amply corroborated its case with the last seen theory. 20. Moreover, in the bail application filed by the accused before the trial court the accused have admitted that on 17.07.2006 they along with the deceased had gone on motorcycle to many places. In the present case, the prosecution has clearly and amply corroborated its case with the last seen theory. 20. Moreover, in the bail application filed by the accused before the trial court the accused have admitted that on 17.07.2006 they along with the deceased had gone on motorcycle to many places. They have stated therein that they had gone to Vansda village where the in-laws of accused No. 2 stayed and from there they went to Vankla village and tried to bathe in the river. They have admitted therein that as the river was not deep enough they went to the checkdam to take a bath. They have admitted that there were huge stones/rocks near the bank which were covered with algae and therefore the same were slippery. They have further admitted that none of them knew to swim and that the deceased drowned in the river. They have also admitted therein that they somehow managed to come out of the river and without informing anyone they came to Surat. They feared for a beating from the deceased's brother and therefore they remained silent over the entire episode. 20.1 What is very amazing is that when the deceased had drowned in the river and the accused were in a panic, as per their case, they still had the soberness of returning the empty soda bottles to the shop keeper. They did not seem disturbed or perturbed at their friend having drowned in the water. Moreover, they had given false explanations to the relatives of the deceased about his whereabouts. It has come on record that the accused had informed the sister of the deceased that they were watching a movie and that they had left the deceased at Sahran Darwaja. Even if the story of the deceased having drowned in the river is accepted, how can the accused persons be in a mood to watch a movie is worth thinking. We find the story of the accused preposterous and therefore we are not inclined to accept the same. 21. It is true that last seen together circumstance is a weak piece of evidence as reproduced hereinabove in the case of Ashok (supra) but the incriminating nature is proved to the hilt and therefore the decision relied upon by learned advocate for the appellant in the aforesaid case will go against the accused. 21. It is true that last seen together circumstance is a weak piece of evidence as reproduced hereinabove in the case of Ashok (supra) but the incriminating nature is proved to the hilt and therefore the decision relied upon by learned advocate for the appellant in the aforesaid case will go against the accused. In the present case, considering the evidence of witnesses as well as the medical evidence, we are of the opinion that the prosecution has proved the fact that the deceased died a homicidal death beyond reasonable doubt. Learned advocate for the appellant is not in a position to point out any cogent evidence or circumstance so as to enable this Court to take a view contrary to the one taken by the trial court. 22. Moreover, when a person is accused of committing murder of another, the fact that the accused and the deceased were last seen alive in company of each other and the failure of the accused to satisfactorily account for the disappearance of the deceased is considered a circumstance of an incriminating character. The accused persons in the present case are not in a position to account for the disappearance of the deceased. The fact that the deceased was last seen with the accused is also proved beyond reasonable doubt. 22.1 We are not inclined to accept the factum of accidental death. PW-1 - the Medical Officer who conducted post mortem has categorically stated that if a person is hit with a soda bottle which is made of glass and is in a broken condition, then injury No. 1 sustained by the deceased is possible and the person who has been hit can become unconscious and thereafter if the said person is thrown in the river or water, the person can die and the reason or cause of death for the same would be cardio respiratory arrest due to asphyxia as a result of drowning. It is true that PW-1 has in his cross examination agreed to the suggestion that if someone falls into river from the bank or jumps into river to take bath and accidentally, he gets struck with the edge of the stone, then, he can sustain injury as sustained by the deceased. It is true that PW-1 has in his cross examination agreed to the suggestion that if someone falls into river from the bank or jumps into river to take bath and accidentally, he gets struck with the edge of the stone, then, he can sustain injury as sustained by the deceased. In the same manner, if someone is dragged away in the flow of water and during that, he comes in contact with any substance, then the injury no. (2) can be sustained. However, considering the totality of the case, we do not find that the deceased had died an accidental death. 23. As a result of hearing and perusal of records, we are of the opinion that the prosecution has been successfully able to prove the following points which clearly prove the guilt of the accused person in the alleged offence: "(1) Motive. (2) Last seen with the deceased. (3) Presence of accused near the scene of offence at the time of alleged incident. (4) Homicidal death. (5) The silence of the accused after the incident. (6) Not informing the family members and relatives of the deceased about the incident. (7) The conduct of the accused in lying to Yasminben about the whereabouts of deceased as well as dropping him at Sahran Darwaja. (8) Admission in the bail application. (9) No light is thrown by the accused with regard to the circumstantial evidence adduced by the prosecution." 24. Therefore, in light of the aforesaid, the Sessions Court concluded that the chain of circumstances evince beyond any reasonable doubt that the accused-appellants have committed the alleged offence of murder of the deceased. Thus, in the totality of the circumstances, we affirm the findings arrived at by the trial court qua murder and causing disappearance of evidence and thus, we uphold the conviction of the accused-appellant for offence under Sections 302 and 201 IPC and also affirm the sentence awarded by the trial court. 25. However, in a recent decision in the case of Bhaikon @ Bakul Borah vs. State of Assam, JT 2013 (10) SC 373, the Apex Court has held as under:- "15. This Court, in a series of decisions has held that life imprisonment means imprisonment for whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India. This Court, in a series of decisions has held that life imprisonment means imprisonment for whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India. [Vide - Life Convict @ Khoka Prasanta Sen vs. B.K. Srivastava & Others, (2013) 3 SCC 425 , Mohinder Singh vs. State of Punjab, (2013) 3 SCC 294 , Sangeet and Another vs. State of Haryana, (2013) 2 SCC 452 , Rameshbhai Chandubhai Rathod vs. State of Gujarat, (2011) 2 SCC 764 , Chhote Lal vs. State of Madhya Pradesh, (2011) 8 SCR 239, Mulla and Another vs. State of Uttar Pradesh, (2010) 3 SCC 508, Maru Ram vs. Union of India & Others, (1981) 1 SCC 107 , State of Madhya Pradesh vs. Ratan Singh & Others, (1976) 3 SCC 470 and Gopal Vinayak Godse vs. State of Maharashtra, AIR 1961 SC 600 ]. 16. In view of the clear decisions over decades, the argument of learned senior counsel for the appellant-accused is unsustainable, at the same time, we are not restricting the power of executive as provided in the Constitution of India. For adequate reasons, it is for the said authorities to exercise their power in an appropriate case." 26. For the foregoing reasons, appeal is hereby dismissed. The judgment and order dated 21.10.2008 passed by the Additional Sessions Judge, Surat at Vyara in Sessions Case No. 30 of 2007 is confirmed. However, it is clarified that after the original accused serve sentence for 14 years their cases may be considered for remission as it is not that life imprisonment should be treated till last breath and the case of the original accused may be reviewed by the appropriate authority considering the decision of Apex Court in the case of Bhaikon @ Bakul Borah (supra). The period of sentence already undergone shall be considered for remission and set off in accordance with law. The accused shall surrender before the concerned authority within a period of twelve weeks from today to serve out the remaining period of sentence. R & P to be sent back forthwith.