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2017 DIGILAW 304 (GUJ)

Krushnakant v. State of Gujarat

2017-02-07

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

body2017
JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal arises out of judgment dated 28.03.2005 rendered by the learned Additional Sessions Judge, Gandhinagar, in Sessions Case No. 16 of 2003. 2. Briefly stated, the prosecution version was that deceased Salim and deceased Devsi were close friends since many years. Salim had purchased a second hand Indica car by borrowing money from the present appellant, Krushnakant @ Kanubhai Baldevbhai Patel, original accused No. 3. Salim, however, could not repay this amount. Kanubhai, therefore, hatched a conspiracy with four other accused persons and, in furtherance of which, the said four accused killed Salim and Devsi. The actual murder, according to the prosecution, took place late at night on 06.06.2002 near village Raysan in the outskirts of Gandhinagar. The two dead bodies were then put in the back seat of the Indica car. The bodies were then brought in the Indica car near village Vavol. To destroy the evidence, the accused poured petrol on the car and set it on fire. The charred bodies of the two deceased persons were found on the back seat of the car which was also badly damaged due to fire. It was difficult to recognize either the dead bodies or the car also. Charge to this effect was therefore, framed at Exh 12 alleging that the three accused Jasubhai Vishnubhai Patel, accused No. 1, Nischal Bharatkumar Thaker, accused No. 2 and Krushnakant @ Kanubhai Patel accused No. 3 i.e. the present appellant had committed offence under section 364 read with section 120B and offence under section 201 read with section 120B. All these principal offences, in the alternative, were sought to be established through the aid of section 34 of IPC. The fourth accused Arunkumar Jivanbhai Parekh being a juvenile was tried by the Juvenile Court. The fifth person Nirupam @ Bhuriyo Jamnadas Kansagra (Patel) has all along absconded. 3. The learned Sessions Judge, by the impugned judgment, convicted all the three accused for offences under section 364, 302 and 201 of IPC read with section 120B of the Code and sentenced them to life imprisonment in addition to imposing lesser sentences. This judgment was challenged by the three convicted accused by filing three separate appeals. We are informed that, original accused Nos. 1 and 2 died during the pendency of their appeals. Their appeals, therefore, have abated. This judgment was challenged by the three convicted accused by filing three separate appeals. We are informed that, original accused Nos. 1 and 2 died during the pendency of their appeals. Their appeals, therefore, have abated. We are, therefore, concerned only with the conviction of original accused No. 3, Kanubhai Patel, the present appellant. 4. We may record the gist of the relevant evidence. Dr. Jayesh Balwantsinh Rupala, PW 1, Exh 24, was the Medical Officer at Gandhinagar Government Hospital at the relevant time. He had carried out postmortem of both the dead bodies. He had found both the dead bodies badly burnt so much so, that he could not record any injuries, if caused, before the burning occurred. However, on the basis that no carbon partials were found from the windpipe or the throat and no inflammation or blisters were found on the body, he formed an opinion that the burn injuries were postmortem. He had concluded that the cause of death was peripheral circulatory failure. He explained that in simple terms, this means death due to excessive bleeding. The evidence of this witness is relevant to the limited extent of establishing that the two deceased persons had not died due to burn injuries, but had already died due to excessive bleeding before their bodies were burnt. 5. Nizamuddin Riyazuddin Saiyed, PW 3. Exh 30, was the resident of Gandhinagar and was working as an RTO agent. He knew deceased Salim when he was studying in school and college. Through Salim he had also come in contact with deceased Devsi. According to him, at about 11.30 at night on 06.06.2002, he had gone to exchange the scooter of his friend Deepak Gajjar with his motorcycle which was lying at his friend's place. On the way, he had picked up his friend Ravindra Rathod. While returning from the house of Deepak, he had stopped at Fun World for a cup of tea. At the tea stall, he had seen deceased Devsi and Nischal, accused No. 2 in a silver metallic coloured Maruti Zen. He had seen Nischal and Devsi leaving this place after ten or fifteen minutes of his arrival. 6. Dilipsinh Jethubha Parmar, PW 4, Exh 31, also lived in Gandhinagar and worked at Ahmedabad for a private firm. He had come in contact with Salim and Devsi about six years before the incident. He had seen Nischal and Devsi leaving this place after ten or fifteen minutes of his arrival. 6. Dilipsinh Jethubha Parmar, PW 4, Exh 31, also lived in Gandhinagar and worked at Ahmedabad for a private firm. He had come in contact with Salim and Devsi about six years before the incident. Through them he had also come in contact with Kanubhai Patel, accused No. 3 and other accused, Nischal. According to him, Salim and Devsi had their hangout place near a mango tree in Sector 12 of Gandhinagar. About four months before the incident, Salim had come to this witness with his friend Nenusinh and told him that one Indica car in good condition was for sale for about two lacs rupees. Salim was interested in purchasing the car. He could not, however, obtain loan. The car was, therefore, purchased in the name of Dilipsinh, for which, a sum of Rs. 1,97,000/- was paid, out of which, Kanubhai had loaned Rs. 80,000 to 82,000/- to Salim. Rest, Salim had raised from his personal source and other sources. Though the car was registered in his name, Salim was using it. About five days before the incident, he had met Salim and Devsi who had come in the Indica car when Salim had told him that he had sold the car to Devsi. On 7th June, 2002 when he was at his office in the afternoon, his friend Nenusinh called and told him that the car purchased in his name was found in burnt condition at Vavol-Uvarsad road and there were two dead bodies in the car. In the cross examination, he stated that the car was purchased in his name so that a loan can be raised and the money can be paid over to the lenders. The loan was to be obtained from Vishal Finance. They had gone to raise the loan but, had failed. He had not seen Kanubhai giving money to Salim but was told so by Salim himself. 7. Rajendrakumar Kubersinh Gol, PW 5, Exh 33 was a resident of Village Vavol. He deposed that on the night of the incident at about 3 O'clock, he was at his home. Other residents of the village came to his house for making a phone call and told him that it appears that a car was burning on Uvarsad road. 7. Rajendrakumar Kubersinh Gol, PW 5, Exh 33 was a resident of Village Vavol. He deposed that on the night of the incident at about 3 O'clock, he was at his home. Other residents of the village came to his house for making a phone call and told him that it appears that a car was burning on Uvarsad road. He had, therefore, made a phone call and informed the Pethapur Police Station. After that, he had gone to the road with his companions. He saw the car burning. Soon the police and the fire brigade arrived. The fire was extinguished. They found that in the car, two burnt dead bodies were also lying on the back seat. His FIR was registered by the police which was produced at Exh 34. 8. Satuji Shivaji Gol, PW 6, Exh 35, was also a resident of Village Vavol. He deposed that on the night of 6th June 2002, when he was sleeping at his house, one Udaji told him that something was burning. He had gone to the place alongwith Pawankumar, his son, and many other residents of the locality. From a distance, they could see the car burning. He had come back and the villagers had made a phone call to the police. After that, he had gone back to the place, at which time, one car was coming towards Vavol. He and others tried to stop the car but the car came right towards them. The lights of the car were put off and the car immediately went away. It looked like a Zen car. He could not state how many people were sitting in the car. In the cross examination, he stated that it had taken about half an hour for his son to go and make a call and come back. He agreed that on the Vavol-Uvarsad Road, many vehicles passed regularly. The car had come from the direction of the burning car. 9. Kokilaben Prabhatsinh Thakore, PW 8, Exh. 39 lived in Sector 16 of Gandhinagar. She knew Salim and his brother Firozbhai. Salim had got her odd job in the hostel in Sector 12. Through Salim, she had come in contact with some of his friends viz. Nischal, accused No. 2 and Kanubhai, accused No. 3 and deceased Devsi. Salim used to hang around right next to her hut. She knew Salim and his brother Firozbhai. Salim had got her odd job in the hostel in Sector 12. Through Salim, she had come in contact with some of his friends viz. Nischal, accused No. 2 and Kanubhai, accused No. 3 and deceased Devsi. Salim used to hang around right next to her hut. She knew that Salim had purchased Indica car which Salim and Devsi both were using. About a week before the incident, Arunkumar i.e. the juvenile accused, Kanubhai, accused No. 3 and Nischal, accused No. 2 had come near her hut at about 10 O'clock looking for Salim and Devsi. They were abusing them. Some four or five days later, Jasubhai, accused No. 1 and Arunkumar and Nischal came on two motorcycles. They were again looking for Salim and Devsi. On 6th June, 2002, she was cooking in her hut when, Kanubhai Patel, Nischal, Jasubhai and Arunkumar came. They asked one boy Ravi about Salim and Devsi because they wanted to beat them up. Ravi had come to where she was cooking and told her that these people were looking for Salim and Devsi to beat them up. Salim was on the terrace at that time. She had informed him that his enemies were looking for him. Sometime later, Salim and Devsi left in the car. Next day, Devsi's father had come to her hut looking for Devsi and Salim. Later, Salim's brother had also come. In the cross examination she agreed that she came to know about the details through the boy. She did not have independent information. She agreed that she had friendship with Salim. She had not stated in her police statement about the earlier visits of these accused looking for Salim and Devsi. She also appears to have agreed to the suggestion that she had not heard what was told to Ravi but gathered the information when Ravi told her the same. 10. Nenusinh Durgasinh Chauhan, PW 9, Exh. 41, was also a common friend of Salim and others. He was a resident of Gandhinagar and worked as an RTO agent. He also knew about Salim having purchased Indica car by borrowing money from Kanubhai. According to him, Salim had raised the required amount from different sources which included Rs. 21,500/- from Kanubhai. He had given full breakup of the amounts borrowed by Salim. He was a resident of Gandhinagar and worked as an RTO agent. He also knew about Salim having purchased Indica car by borrowing money from Kanubhai. According to him, Salim had raised the required amount from different sources which included Rs. 21,500/- from Kanubhai. He had given full breakup of the amounts borrowed by Salim. According to him, in his deposition, this amount was to be returned by raising a loan from a finance company in the name of Dilipsinh. This, however, did not materialize due to which, Kanubhai would frequently raise the demand for returning the amount and eventually, Salim had passed on the car to Devsi. He further stated that on 06.06.2002 at about 7 O'clock in the evening when he was at home, Salim and Devsi and one Ashish came to his house in their Indica car and told him to accompany them to Ahmedabad. Since he was unable to leave, they all went for a short excursion. They came to Sector 12 after which, he was dropped at his house. He stated that at that time, Devsi was wearing a white coloured full sleeve shirt and blue coloured jeans pants and Salim was wearing a yellow coloured full sleeve shirt with metal buttons and a blue jeans pants. Next day, he had gone to the site with Salim's brother and could identify the Indica car from a metal flag-stick fixed on the front mudguard of the car. In the cross examination he was mainly questioned on the breakup of the amount raised by Salim. He stated that he knew such details since Kanubhai, about fifteen days later, had told him to write it down on a piece of paper. He had preserved such note but had not mentioned about it in his police statement. He agreed that his two statements were recorded by the police on the same day. In the first of the two statements, he had not mentioned about the borrowed money. After he left the police station, he was immediately called back and his second statement was recorded. 11. Santosh Haricharan Sharma, PW 10, Exh. 43, was the resident of Ahmedabad and was engaged in electronic fitting work. He was working as a helper of one Pareshbhai Babulal Shah. He deposed that in the month of June 2002, he was working with Paresh at one Waghela farm near Gunghat hotel. 11. Santosh Haricharan Sharma, PW 10, Exh. 43, was the resident of Ahmedabad and was engaged in electronic fitting work. He was working as a helper of one Pareshbhai Babulal Shah. He deposed that in the month of June 2002, he was working with Paresh at one Waghela farm near Gunghat hotel. Everyday he and Pareshbhai would travel on one scooter and return. On 06.06.2002, he had gone for work to Waghela farm from where he was returning with Pareshbhai at about 2.30 to quarter to 3 at night. When they were passing by the village Vavol, they saw one burning car on the road. Next to this burning car, one Zen car was standing. He gave registration number of this Zen car and also stated that four persons were standing near the car. Pareshbhai tried to stop his scooter. These people asked them to disappear. He and Pareshbhai got scared and left the place. Next day, he read in the newspaper that two persons were burnt in an Indica car near village Vavol. He had told his employer Bhawan Bharwad that they had seen the burning car. Bhavan Bharwad told him that the car belonged to his brother's brother-in-law. He identified accused Jasubhai and Nischal before the Court. He, however, could not identify Kanubhai Patel, accused No. 3, since because of his physical impairment, he was not made to sit in the accused dock but was sitting separately in the wheelchair. In the cross examination he stated that he was working at the Waghela farm since about three months. It was dark at night when he was passing by the place. The police had never called him for test identification parade of the four persons standing next to the car. He had gone to the police on 11.06.2002 with Pareshbhai when his statement was recorded. Normally, they would leave the farm in the evening after completing the work. The work did not involve any urgency. He had not told the police that he and Pareshbhai had tried to stop. He agreed that he had seen the car from the running scooter. He agreed that it was Bhawan Bharwad, who had brought him and Pareshbhai to the police station. In his police statement, apparently, he had not given description of the four people standing by the car nor stated that he would be in a position to identify them. He agreed that he had seen the car from the running scooter. He agreed that it was Bhawan Bharwad, who had brought him and Pareshbhai to the police station. In his police statement, apparently, he had not given description of the four people standing by the car nor stated that he would be in a position to identify them. He had not seen the two accused identified by him before the Court either before the incident of the night of 6th June, 2002, or after that. Except for the night of 6th June, 2002, he had never returned from the farm as late as 3 O'clock at night. Though he agreed that he knew Bhawan Bharwad well, he denied that he was a witness created by Bhawan Bharwad. He could have gone to the police between 7th and 10th of June, 2002, but did not want to get involved in the mess. Later on, since the deceased was a relative of his employer Bhawan Bharwad, he decided to go to the police. Though he knew that Bhawan Bharwad had three or four cars, he did not know the registration number of any of them. 12. Naresh Himmatlal Paliya, PW 16, Exh 58 was also a resident of Gandhinagar and an RTO agent. He had his office at Gandhinagar. He deposed that in June 2002, accused No. 1 Jasubhai Patel had set up Shivsena Office in sector 16 of Gandhinagar. Jasubhai was its President. He was Vice President alongwith Nishchal and one Kulvinder Gil. On 6th June, 2002, a meeting of Shivsena was convened at 9 O'clock at night in the office. He had attended the meeting. Nishchal had come in an Indica car. Jasubhai had come in Maruti Zen car which belonged to his friend. Other accused Kanubhai and Arunkumar were also there. At that time, Kanubhai had stated that he had to recover Rs. 1,40,000/- from Salim. He told Jasubhai and Nischal that they were unable to recover since 15 days. Jasubhai told him that they were looking for Salim since three to four days but were unable to find him. Kanubhai urged them to do something, upon which, Jasubhai told Kanubhai that today, we will either get the money or finish him. Kanubhai also told them to either recover money or to finish him. Next day, he learnt that Salim and Devsi were burnt in their Indica car. Kanubhai urged them to do something, upon which, Jasubhai told Kanubhai that today, we will either get the money or finish him. Kanubhai also told them to either recover money or to finish him. Next day, he learnt that Salim and Devsi were burnt in their Indica car. His statements were recorded by the police on 7th June and 9th June, 2002. In the cross-examination he stated that on 7th June, 2002, he had told the police whatever he remembered. He was called again by the Police Inspector, Vataliya on 9th June, 2002. On 7th June, 2002, he had got extremely scared and that therefore, not given the full details. On 9th June, 2002 he was less scared. He agreed that in his police statement of 7th June, 2002, he had not referred to the conversation between Kanubhai and Jasubhai during the meeting of 6th June, 2002. He agreed that in neither of his two statements he had referred to his being scared. He agreed that Kanubhai was neither an office bearer nor a member of Shivsena and therefore, he had no reason to be present during the meeting. This witness was also questioned on Kanubhai having initiated ACB trap against two RTO officers for which, the witness had tried to persuade Kanubhai to drop the cases suggesting that since Kanubhai refused to oblige, he was giving false evidence against Kanubhai. 13. Surendrasinh Sajubha Zala, PW 19, Exh. 72, was serving on a petrol pump situated in Sector 23 of Gandhinagar. According to him, he was on night duty on 6th June, 2002 when at about 12 O'clock at night, one person came in a Maruti car with two containers and had taken five litre petrol in each of them from the petrol pump. He had initially refused to give the petrol but the person told him that another car had run out of petrol for which, he needed it. He, however, was unable to identify such a person. 14. Anandram Maganram Maharaj, PW 20, Exh. 73, was the pujari of a temple at Vavol. According to him, on the night of the incident when he was sleeping outside the temple, one person woke him up and asked for a matchbox which he had given. He, however, stated that he had cataract and was not wearing his glasses and therefore, could not see the faces. 15. 73, was the pujari of a temple at Vavol. According to him, on the night of the incident when he was sleeping outside the temple, one person woke him up and asked for a matchbox which he had given. He, however, stated that he had cataract and was not wearing his glasses and therefore, could not see the faces. 15. Barot Rajeshkumar Babubhai, PW 21, Exh. 76, was the employee of one Anand guest house at Gandhinagar. He was on night duty on 6th June, 2002, when at about 1.30 at night, accused No. 1, Jasubhai Patel had come there. He knew him. Accused Jasubhai was a frequent visitor of the guest house. His clothes were blood stained. He had used the guest house bathroom for a bath and changed his clothes, some of which were ordinarily lying at the guest house. Jasubhai was a headstrong person and his boss therefore had told him not to charge Jasubhai. In the cross-examination, he agreed that he had not mentioned about the incident to anybody for about 12 to 13 days. 16. Dharamsinhbhai Mandanbhai Rabari, PW 23, Exh. 78, was the resident of Borij near Gandhinagar. He had a tea stall in sector 21 opposite a printing press, where, according to him, Arunkumar and Nischal would hang around. On 7th morning, Arunkumar and Nischal had come to him and given him a silver ring to keep for sometime. Some three days later, Nischal instructed him to collect Rs. 4000/- from Kanubhai which Kanubhai had to give to Nischal. He had gone to Kanubhai and given that money to Nischal in presence of Arunkumar and Jasubhai. 17. Ashish Ashvinbhai Trivedi, PW 40, Exh. 118, was the friend of Salim and Devsi and lived in Gandhinagar. According to him, in the afternoon of 6th June, 2002, Salim and Devsi had come to his house in the Indica car to take him to see a film. They had seen the film in city plaza. They had again assembled at night near the hut of Kokilaben when Kokilaben had told them that the accused were looking for Salim and Devsi. Late at night, they had separated. Salim and Devsi had gone in the Indica car. He had gone to see the Indica car after it was burnt. They had seen the film in city plaza. They had again assembled at night near the hut of Kokilaben when Kokilaben had told them that the accused were looking for Salim and Devsi. Late at night, they had separated. Salim and Devsi had gone in the Indica car. He had gone to see the Indica car after it was burnt. He could identify the car on the basis of one dent on the rear side and the springs on the windows for curtains. 18. Narendrabhai Kanjibhai Chauhan, PW 41, Exh 123 was also a common friend. He knew that Salim had purchased an Indica car by borrowing money which he could not repay. He could also identify the car even after it was burnt down on the basis of the springs on the windows and also a scratch mark on the car which was caused when he was driving the vehicle. 19. PW 43, Pravinbhai Dahyabhai Patel, Exh. 128 had a printing press in Sector 21 of Gandhinagar. Nischal had his office next to the printing press. In June 2002, Nischal had come to his printing press and borrowed Rs. 3500/- for a day. Later on, he had gone with Dharamsibhai to pay Rs. 4000/- to Nischal. He had asked Nischal to repay his Rs. 3500/- but Nischal told him that he will be able to pay later. 20. Kanabhai Vamabhai Bharwad, PW 52, Exh. 145, is the father of deceased Devsi who deposed that his son had purchased an Indica car from Salim for two lacs of rupees. On 7th June, 2002, he had tried to look for his son. He had gone to the place where the car was found in burnt condition. He could identify the car from the aluminum plate fitted on the wheels and also a dent. He could also identify one of the bodies as that of his son from a piece of burnt shirt. 21. Firozkhan Abbaskhan, PW 59, Exh. 163, was the brother of Salim. He was working as a police constable. He deposed that Salim had bought an Indica car in the name of his friend Dilipsinh. Salim and Devsi used to use the car. On 6th June, 2002, Salim and Devsi had come home in the afternoon for lunch. When they left, Salim was wearing a yellow colour shirt which had metal buttons on which "Lee and Cooper" was embossed. He deposed that Salim had bought an Indica car in the name of his friend Dilipsinh. Salim and Devsi used to use the car. On 6th June, 2002, Salim and Devsi had come home in the afternoon for lunch. When they left, Salim was wearing a yellow colour shirt which had metal buttons on which "Lee and Cooper" was embossed. He was wearing jeans pants. He could identify the dead body on the basis of the burnt shirt and the car from the engine and chassis number. According to him, Salim had borrowed money from Kanubhai. To recover it, Jasubhai, Kanubhai and Nischal would often come in a Maruti Zen car. He identified a ring and a key-chain as those belonging to Salim. 22. Pinakin Madhusudan Aacharya, PW 39, Exh. 114, was the Scientific Officer at Gandhinagar. He had visited the site where the Indica car was lying. He deposed that it was not possible to recognize the colour of the car or to read the registration number. He could however, read the engine number from the plate and the chassis number. He gave such numbers to the court. 23. Rajeshkumar Rameshchandra Mehta, PW 57, Exh. 158 was also the Scientific Officer. He had collected samples from the Maruti Zen car which included blood spots from the mattress on the rear seat of the car. 24. The prosecution had examined certain witnesses to show the movements of the other accused immediately after the offence. According to the prosecution, accused Nos. 1 and 2 and the juvenile accused had left Gandhinagar soon after the incident and were hiding in and around Surat. They were ultimately arrested from the guest house at Navsari on 18.06.2002. It is not even the case of the prosecution that the present appellant, original accused No. 3 had left Gandhinagar. It is, therefore, not necessary to refer to the evidence of these witnesses. 25. During the investigation, the prosecution had collected certain materials under various panchnamas which included the articles from Maruti Zen car under panchnama Exh. 50, discovery of a wallet of Devsi at the instance of accused No. 2 under panchnama Exh. 53, discovery of weapons at the instance of accused No. 1 under panchnama Exh 57. 26. Arvindkumar Bhagwandas Vataliya, PW 66, Exh. 202, was the Investigating Officer. 50, discovery of a wallet of Devsi at the instance of accused No. 2 under panchnama Exh. 53, discovery of weapons at the instance of accused No. 1 under panchnama Exh 57. 26. Arvindkumar Bhagwandas Vataliya, PW 66, Exh. 202, was the Investigating Officer. He gave a detailed account of the investigation and the steps taken by him during such investigation. Through the evidence of this witness, the defence brought on record certain improvements and contradictions in the depositions of the witnesses as compared to their police statements. 27. Though defence had also examined certain witnesses, in our view their depositions are not of much importance. We may therefore, not refer to them. 28. This, in the nutshell, is the evidence on record. On the basis of such evidence, learned counsel for the appellant submitted that the prosecution failed to establish the charges against accused No. 3 beyond reasonable doubt. The motive for commission of the offence was not established. The circumstantial evidence against this accused was insufficient to establish his role. Identification of the dead bodies as well as that of the Indica car was unreliable. Certain witnesses were totally unreliable and had made material improvements and contradictions. He, therefore, submitted that the Trial Court committed a serious error in convicting the present appellant. 29. On the other hand, learned APP Mr. H.K. Patel opposed the appeal contending that there was sufficient evidence to involve the accused in commission of the offence. He had clear motive. By very nature of things, direct evidence of conspiracy would rarely be available. However, in the present case, there was substantial evidence pointing to the fact that it was solely on account of Salim's inability to repay the loan to the present appellant, that Salim and Devsi were murdered. 30. From the evidence on record a few things clearly emerge. That Salim and Devsi were friends since long. Salim was also familiar with all the four accused including the juvenile accused. The fact, that Salim had purchased an Indica car for a sum of about two lacs of rupees but that the said car was purchased in name of Dilipsinh, PW 4 is also duly established. Devsi explained the reason why the car was registered in his name. Salimbhai needed to raise the money from borrowed sources. He hoped to repay such amount by raising loan from a finance company. Devsi explained the reason why the car was registered in his name. Salimbhai needed to raise the money from borrowed sources. He hoped to repay such amount by raising loan from a finance company. Since it was unlikely that Salim himself could have got the loan, he requested and Dilipsinh allowed him to register the car in his name. An attempt was also made to raise the loan from a finance company so that the money borrowed by Salim from private sources could be repaid. This, however, did not materialize and that therefore, Salim's private loan remained outstanding. The fact that part of such loan was raised from the present appellant Kanubhai Patel is also not in dispute. Besides Dilipsinh, PW 4, this was also so stated by Nenusinh, PW 9. He was also an RTO agent where the present accused also worked. This witness may not be entirely relied upon when he gives the detailed breakup of the sources from which Salim might have raised the loan his explanation that he had noted down such details at the instance of Kanubhai cannot be readily accepted. We may recall, he had not produced any such note before the police or at any rate, the police had not produced any such rough note before the Court. Despite this, we have no reason to discard the version of these two witnesses when they refer to Kanubhai having lent such substantial amount to Salimbhai for purchase of the car and further that Salim could not repay the same. 31. With this background, we may first refer to the identification of the dead bodies and the Indica car. Despite serious effort made by learned counsel for the appellant, we have no hesitation that the car found in the burnt condition was the Indica car of Salim which was, later on, sold by him to Devsi and that the two charred dead bodies were of these two friends. Several witnesses referred to the special identification marks on the car. They referred to the springs for curtains on the windows. They referred to the metal flag-post on front of the mudguard. They referred to a particular dent on the rear side of the car. One of the witnesses referred to a scratch mark for which he himself was responsible. We need not doubt the identification of so many witnesses. They referred to the springs for curtains on the windows. They referred to the metal flag-post on front of the mudguard. They referred to a particular dent on the rear side of the car. One of the witnesses referred to a scratch mark for which he himself was responsible. We need not doubt the identification of so many witnesses. Further, even the FSL Officer Pinakinbhai, PW 39 had recorded the chassis and engine number of the car. It is true that in the initial portion of the panchnama it is stated that, it was not possible to read the numbers. However, it appears that the FSL Officer, with efforts, could note down such numbers. 32. Regarding the identification of the dead bodies also we have no doubt. Both the friends were seen throughout the day and till late at night on 6th June, 2002 moving around Gandhinagar in their Indica car. The next morning the Indica car was found with two charred bodies lying on the back seats. The dead bodies were identified through their clothes. The witnesses who ought to know such, as the brother of Salim and father of Devsi, had given description of the clothes which they were wearing on 6th June, 2002, in particular, Salim wore a shirt with iron buttons and blue jeans pant. 33. Regarding the cause of death, we have seen that the doctor Jayesh Rupala, PW 1, who carried out the postmortem formed a conclusive opinion that the bodies were burnt after the death was caused. In other words, both the persons were first killed and thereafter burnt. According to the doctor, the death was due to excessive bleeding. There was no presence of carbon in the windpipe or in the throat clearly indicating that despite severe burning, the persons did not inhale the carbon in turn, implying that both the persons were already dead by the time they were set on fire. There is also evidence of independent witness suggesting that some incident of people being thrashed up had taken place late at night near Uvarsad further indicating that the two persons were first killed. Their bodies were then brought near Vavol where they were set on fire alongwith car. 34. The question is, is there sufficient evidence to link the present appellant with the commission of the offence? Their bodies were then brought near Vavol where they were set on fire alongwith car. 34. The question is, is there sufficient evidence to link the present appellant with the commission of the offence? The prosecution would rely on the following factors: "(a) Borrowing of money by Salim from the present appellant for purchase of the Indica car which he could not repay; (b) Alleged conversation at Shivsena meeting between the present appellant and the other accused on the night of 6th June, 2002; (c) Deposition of Kokilaben that the accused, in last week or so before the incident, were searching for Salim and further that, on 6th June, 2002 itself, the accused had come to her hut looking for Salim; (d) Evidence of Santosh Sharma, PW 10, who claimed to have seen the accused outside their Zen car right next to the burning Indica car in the night of 6th June, 2002 itself." 35. We will refer to these factors while we assess the evidence of different witnesses. The fact, that Salim had borrowed sizeable amount of money from present appellant Kanubhai to purchase the Indica car which amount he could not repay is duly established. We have already recorded our reasons for coming to such a conclusion. To briefly reiterate, several witnesses, in particular, PW 4, Dilipsinh had in detail referred to these facts. Salim was keen on buying the car for which, he had borrowed money from different sources including from Kanubhai. The whole plan was to raise a loan from the finance company for which, the car was registered in the name of Dilipsinh. The plan failed when finance company refused to give loan. Salim was, in fact, forced to sell the car to Devsi. Insofar as Salim's death is concerned, the motive could be stated to have been established. 36. The motive by itself, however, cannot form the basis of evidence. At any rate, we find no motive for the present accused to liquidate Devsi. We may, therefore, at this stage, bear in mind two aspects. Firstly, that though so far as death of Salim is concerned, the accused had sufficient motive to carry out the plan but that by itself cannot substitute the requirement of proof and secondly, that at any rate, the accused had no reason to eliminate Devsi. 37. We may now refer to the remaining three different factors listed above. Firstly, that though so far as death of Salim is concerned, the accused had sufficient motive to carry out the plan but that by itself cannot substitute the requirement of proof and secondly, that at any rate, the accused had no reason to eliminate Devsi. 37. We may now refer to the remaining three different factors listed above. Insofar as the testimony of Santosh Sharma, PW 10, is concerned, the same simply does not inspire confidence. There are many reasons for the same. He is completely a chance witness. According to him, he was passing by that side at about 3 O'clock at night when he saw the Indica car burning. A Zen car was parked next to it. Four people were standing outside. According to him, he was returning home with Pareshbhai for whom he worked as an electric assistant. They had been working at a farmhouse in Gandhinagar since couple of months. 38. First and foremost, the presence of this witness so late at night for the reason cited by him is not probable. In the cross examination he stated that he had never returned home from work so late in the past. The work was not of an urgent nature. If, that be so there was no reason for Pareshbhai and this witness to have worked till 2.30 at night before returning from Gandhinagar to Ahmedabad, a good distance of at least 30 kilometers or so. Further, the prosecution has not examined Pareshbhai before the Court. This witness himself was employed by Bhawan Bharwad who was a relative of deceased Devsi Bharwad. He had not gone to the police station to offer his statement till 11th June, 2002 i.e. four days later, though according to his own account on the next day through the news paper he had come to know about the incident. He had, in fact, conveyed this to Bhawan Bharwad but thereafter had not thought of going to the police station for recording his statement. His version that four people were standing outside the Zen car of which, he remembered the registration number and could identify the accused further raises a serious doubt about his truthfulness. Admittedly, the incident happened at an isolated place where there was no source of any light. His version that four people were standing outside the Zen car of which, he remembered the registration number and could identify the accused further raises a serious doubt about his truthfulness. Admittedly, the incident happened at an isolated place where there was no source of any light. According to this witness, they were shooed away by the four people and therefore, could not stop the scooter though they wanted to. It is not possible to accept that this witness could recognize the faces of the accused who were standing there under such condition and also remembered the registration number of the car. We may recall, in the cross examination he agreed that his boss Bhawan Bharwad had three or four cars but he did not remember the registration number of any of them. His giving registration number to police of Zen car and his identification of the two of the accused before the Court therefore has to be totally ignored. We may also recall, he could not identify the present appellant before the Court since he was not kept in the accused box since he was suffering from physical handicap. Testimony of this witness would, therefore, be of no help to the prosecution. 39. Kokilaben, PW 8, referred to the accused Arunkumar, Kanubhai and Nischal having come to her hut looking for Salim and Devsi about a week before the incident. A few days later also, likewise, Jasubhai, Arunkumar and Nischal had come looking for them. On the night of the incident again, Arun, Jasubhai, Kanubhai and Nischal all four came alongwith boy Ravi. Had this witness herself seen these four people looking for Salim and Devsi on 6th June, 2002 to set them right, it would have considerably helped the prosecution. However, she was unclear whether she saw them and heard their conversation with Ravi or merely Ravi came and told her about the accused searching for Salim and Devsi. She did relay the news to Salim who was sitting on the terrace that the accused were looking for him. It is not clear whether the source of such information was her own or was in the nature of hearsay. Because in the cross-examination she stated that she had not heard the conversation but came to know about it from Ravi. The benefit of this confusion therefore must go to the defence. It is not clear whether the source of such information was her own or was in the nature of hearsay. Because in the cross-examination she stated that she had not heard the conversation but came to know about it from Ravi. The benefit of this confusion therefore must go to the defence. Her reference to the earlier visits of the accused looking for Salim and Devsi did not form part of her police statement and thus, clearly was in the nature of improvements. 40. We may now refer to the evidence of Naresh Palia, PW 16. It is this witness who refers to the conversation between Kanubhai and the other accused where Kanubhai is clearly impatient for the recovery and apparently a conversation took place during which, the accused agreed that either the money would be recovered on that day or Salim would be liquidated. According to Naresh Paliya, this happened on the night of 6th June, 2002 when at about 9 O'clock at night, a meeting of Shivsena members was called. For multiple reasons, the disclosure of this witness also does not inspire confidence insofar as the role of Kanubhai is concerned. Firstly, in the cross examination this witness agreed that Kanubhai was neither an office bearer nor a member of Shivsena. Kanubhai, therefore, had no reason to be present in the party meeting. More significantly, the statement of this witness was recorded on 07th June 2002, when he did not refer to this conversation at all. It was only in his further statement recorded on 9th June, 2002, that for the first time he brought the theory of the conversation between the present appellant and the remaining accused. The conversation, if it had taken place on 6th June, 2002, had a live link with the incident which took place on 7th June, 2002 or the late night of 6th June, 2002. If two people whom this witness knew well were under serious threat and in furtherance of such threat, they were found murdered the next day, the most natural conduct of the witness would be to report such facts before the police that too when he was present before the police on 7th June, 2002 and his statement was being recorded. If two people whom this witness knew well were under serious threat and in furtherance of such threat, they were found murdered the next day, the most natural conduct of the witness would be to report such facts before the police that too when he was present before the police on 7th June, 2002 and his statement was being recorded. Total omission of this witness to even refer to any such incident during Shivsena meeting in the night of 6th June, 2002 raises serious doubt about the correctness of his further revelation to the police two days later and to the court in his deposition. 41. Since we are concerned with the conviction of the present appellant alone, we have not referred to at length and not discussed the other evidence which has direct or indirect bearing on the role of other accused but has no connection to the role of the present accused. If we eliminate the three factors noted above, mere motive for commission of the offence, that too only in part, would not establish the guilt of the present appellant. 42. In the result, judgment dated 28.03.2005 of the learned Additional Sessions Judge, Gandhinagar, in Sessions Case No. 16 of 2003 qua the present appellant, original accused No. 3 is set aside. He is acquitted of all the charges. Criminal Appeal is allowed and disposed of. Bail bonds stand cancelled. R & P may be transmitted back to the concerned Trial Court.