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2017 DIGILAW 432 (GUJ)

Ashish Kapil Nanda v. State of Gujarat

2017-02-20

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

body2017
JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. These appeals arise out of a common judgment dated 08.08.2013 passed by the learned Additional Sessions Judge, Rajkot, in Sessions Cases No. 107 and 54 of 2007. 2. Briefly stated, the prosecution version was that Piyush, son of the complainant Jalaram Keshav Pujara and accused No. 1, Ashish Nanda were friends. Ashish was in need of money. He and one Naresh @ Sarap Katarmal and Salim @ Sa...., accused No. 7 hatched a conspiracy to kidnap Piyush for ransom. These persons executed a plan for kidnapping Piyush with active help and support from other accused, notably, Dipti @ Deepa, accused No. 2, who was sister of Naresh @ Sarap on 04.07.2006. Piyush was kidnapped from a place called Shastrinagar maidan at Rajkot. The money and other valuable articles, such as gold chain and locate were taken away by the accused. A ransom call was also made to Jalaram. However, under the fear of being identified, accused No. 1-Ashish, accused No. 7-Salim Ahmed and Naresh @ Sarap took Piyush at an isolated place in the forest near Hingolgadh village where he was murdered. These accused poured petrol over and set his body on fire. It appears that the burn remains of the body were divavolved by the wild animals to such an extent that a few days later, when the investigating team visited the site, all that they would/could find was the skull and a few bones scattered around. 3. It appears that Naresh @ Sarap, who according to the prosecution had given the fatal blows, was absconding for sometime and eventually, is reported to have been killed in an encounter with the police. A charge was, therefore, framed against all the accused for commission of the offences punishable under sections 363, 364, 364A, 343, 346, 345, 386, 387, 465, 467, 468, 471, 474, 504, 506(2), 302, 201, 212 read with sections 34 and 120B as well as section 188 of IPC. Accused Nos. 1 and 7 were also charged with offence punishable under sections 27 and 303 of the Wild Life Protection Act. 4. Accused Nos. 1 and 7 were also charged with offence punishable under sections 27 and 303 of the Wild Life Protection Act. 4. The learned Sessions Judge, by the impugned judgment, convicted accused No. 1 Ashish and Salim-accused No. 7 for offences punishable under sections 302, 364, 364A, 346, 365, 386, 387, 465, 467, 468, 471, 474, 504, 506(2), 201, 118, 120B read with section 34 of IPC as also for the offences under sections 27 and 30 of the Wild Life Protection Act. The rest of the accused were acquitted of all the charges [check from behind some modification is there]. The learned Judge was pleased to sentence accused Nos. 1 and 7 for life imprisonment for offence under section 302 of IPC as well as for section 364A of the Code. For remaining offences, lesser sentences were awarded. Fines were also imposed. 5. The two convicted accused i.e. accused Nos. 1 and 7 have challenged their conviction and sentence. Criminal Appeal No. 1785 of 2013 is filed by accused No. 1. Criminal Appeal No. 623 of 2015 is filed by accused No. 7. The State has preferred Criminal Appeal No. 198 of 2014 challenging the acquittal of the remaining accused. Criminal Appeal No. 1568 of 2013 is filed by the victim challenging the acquittal of accused persons and also challenging the acquittal of accused Nos. 1 and 7 for offence under sections 363 and 343 read with section 114 of IPC. Criminal Revision Application No. 660 of 2013 is filed by the victim seeking death sentence for the convicted accused. The victim has also filed Criminal Revision Application No. 661 of 2013 for enhancement of sentence of the convicted accused for the offences under the Wild Life Protection Act. 6. The evidence on record is bulky. The prosecution examined large number of witnesses and produced number of documents before the Trial Court to establish the case of kidnapping and murder and the theory of conspiracy amongst all the accused. The entire evidence further is in the nature of circumstantial evidence. To appreciate such evidence, we may record the gist of the relevant evidence. 7. PW 1 Exh 179 Jalaram was the first informant and also the father of deceased Piyush. In his deposition he gave the landline numbers at his shop and the mobile number. The entire evidence further is in the nature of circumstantial evidence. To appreciate such evidence, we may record the gist of the relevant evidence. 7. PW 1 Exh 179 Jalaram was the first informant and also the father of deceased Piyush. In his deposition he gave the landline numbers at his shop and the mobile number. He was dealing in imitation jewellery and had a shop at Rajkot on Bhavnagar road. He was doing the business in the name of Jalaram sales. His elder son Piyush at the relevant time was aged about 16 years, studying in F.Y.B. Com. In the afternoons, Piyush would sit at the shop and help him in the business. On 14.07.2006, Piyush had gone home at night. He left home at about 10 O'clock saying that he would return shortly. On the landline at his shop he received a call from Piyush's mobile number at 10:45. Some unknown person was speaking. He threatened that Piyush had become headstrong. He was in the custody of the caller. This person also put Piyush on the line who told the father that he was with these people and that father should act according to their instructions. He immediately called his wife at home. He got in touch with Piyush's friend Hiren. He told him that at 9:30, Piyush had asked him to accompany to Shastrinagar maidan in connection with the phone call received from a lady. He could not accompany Piyush since he was having dinner. He went to the Shastrinagar maidan and found Piyush's motorcycle parked there. The witness with relative, therefore reached the said place and found the motorcycle parked. They searched for Piyush for the entire night. Since Piyush was not found, they informed the Pradyman Nagar Police Station at 4 O'clock in the morning about disappearance of Piyush. He learned from Piyush' friend that on 12.07.2006 also Piyush had got call from an unknown girl asking him to meet her at some place. When Piyush's search was going on at 10:50 a phone came from an unknown caller from mobile No. 9998621835 on the mobile of his nephew Hardik No. 9898632380 asking for Jalaram. He, therefore, talked to the caller who told him that his son has been kidnapped. He was unhappy that police was informed about it. When Piyush's search was going on at 10:50 a phone came from an unknown caller from mobile No. 9998621835 on the mobile of his nephew Hardik No. 9898632380 asking for Jalaram. He, therefore, talked to the caller who told him that his son has been kidnapped. He was unhappy that police was informed about it. He also told the complainant that he would indicate the ransom amount and the place and time for payment later on. At his request, the caller also put Piyush on line. Piyush, however, did not know where he was kept. Initially he thought that Piyush and his friends may be playing a prank and therefore, did not file a police complaint immediately. However, since still 18.07.2006 Piyush was not found, he lodged a complaint of kidnapping before the Pradumannagar Police Station on 18.07.2006 which was produced at Exh 184. The witness produced the bill for purchase of mobile phone by Piyush. He further stated that he knew Ashish, accused No. 1 before the incident. He was also engaged in the business of imitation jewellery. Ashish would sit on the shop of his uncle. This shop and the shop of the complainant were both situated close by. Ashish would also come to the shop of the complainant for business. Ashish was given a shop on rent for Rs. 7000/- which was right next to his own shop from where Ashish was doing his business. Piyush and Ashish, therefore, had become good friends. Ashish would also visit his house. Ashish would also borrow money occasionally from Piyush. Once Piyush had given Rs. 1,00,000/- to Ashish. Ashish did his business at the said shop for about four months and have vacated it and went back to Jamnagar. When Piyush disappeared, the witness also tried to contact Ashish since he was Piyush's friend. Ashish's mother picked up the phone and told him that he had gone to Ahmedabad for recoveries. He called Ashish's number who told him that he was near Sanand though as a friend he should have been concerned about disappearance of Piyush. Instead, he switched off his mobile phone. At the time of his kidnapping, Piyush was wearing a gold locate and a chain, rings and was carrying Rs. 5000/- in cash. The police had recorded his statements. He and his wife were taken for blood samples for DNA test. Instead, he switched off his mobile phone. At the time of his kidnapping, Piyush was wearing a gold locate and a chain, rings and was carrying Rs. 5000/- in cash. The police had recorded his statements. He and his wife were taken for blood samples for DNA test. In the cross examination, this witness was challenged by the defence on the issue of his spare shop having been given to Ashish on rent. The witness, however, stuck to his version in chief. 8. The missing person's report Exh 183 referred by the said witness in his deposition contained similar version of Piyush having left home at about 10:15 promising to return soon but, later on, on a clue by his friend Hiren finding his motorcycle parked at Shastrinagar maidan area. In Exh 184, the FIR, the complainant had given the version of first call coming at the landline of his shop at night after Piyush left home and thereafter a phone coming on the mobile phone of Hardik, his nephew from the kidnappers. 9. Jitu.... PW 3 Exh 229 was the panch witness in whose presence, the IMEI number of a Nokia 6708 mobile phone allegedly discovered from the house of Ashish at his instance, was recorded. According to the prosecution, IMEI number of his phone was 357578001178999 and it was the mobile phone of deceased Piyush. 10. According to the prosecution, mobile phone number used by the kidnappers for making certain calls was obtained in the name of one Prakash Darji by using his identity and certain documents which Prakash Darji had lost alongwith his wallet near Chotila area of Rajkot district. The prosecution produced at Exh 240 an application form for mobile connection filed before Airtel company in the name of said Prakash Darji. At Exh 241 the prosecution produced driving license of said Prakash Darji. 11. At Exh 277, the prosecution produced a panchnama of the scene of incident which was shown by accused No. 1 Ashish to the police party and the panch witnesses. The panchnama records that Ashish who was in the police jeep asked the driver to take the jeep first to the Chotila village. From there he guided the jeep through internal dirt road and then on to the tar road. After passing various villages, the vehicle arrived in the outskirts of village Hingolgadh. The panchnama records that Ashish who was in the police jeep asked the driver to take the jeep first to the Chotila village. From there he guided the jeep through internal dirt road and then on to the tar road. After passing various villages, the vehicle arrived in the outskirts of village Hingolgadh. The jeep was driven for about 3 kilometers from the village when Ashish asked the jeep to be stopped. He and others got down from the jeep. Ashish led them to an open area where they came across stonewall of about 3 ft. height. Crossing the while they entered a forest area. After walking for about half a kilometer distance, he showed where Piyush was made to lie down and then killed. The panchnama records area of 4 ft where the ground was burnt. Burnt pieces of wood were found. A big stone had dried blood stains on it. Somewhere to the sought of this place, scattered bones were found which included a skull. Several teeth from the skull were missing. The investigation collected the bones, the stone, blood stained soil and the sample soil from the region. 12. Exh 253 is also scene of incident panchnama, according to which, accused No. 7 Salim led to the panch witness and the police party to the same place. However, we may notice that the panchnama Exh 277 recorded the events of 28.07.2006 whereas panchnama Exh 253 referred to the events of 30.07.2006. In other words, thus, the panchnama of Exh 277 was done before the panchnama Exh 253. 13. Anand Citapara PW 16 Exh 318 was the panch witness to the panchnama of search of an Indica car seized by the police allegedly used by the accused for commission of the offence. The panchnama was produced at Exh 321. The Indica car was searched in presence of the officers from FSL. As per this witness in the panchnama from the Indica car from the pocket of the backside of the left hand front seat one ash coloured handkerchief was found and seized. The handkerchief seems to be carrying blood stains. More minute examination of this object by the FSL officer showed that the handkerchief seems to have been used for wiping out a sharp edged weapon. 14. The handkerchief seems to be carrying blood stains. More minute examination of this object by the FSL officer showed that the handkerchief seems to have been used for wiping out a sharp edged weapon. 14. Hanif PW 41 Exh 376 was the panch of the panchnama Exh 378 under which the clothes of accused Ashish were recovered from his house. Though this witness turned hostile, he admitted his signature on the panchnama. 15. Exh 407 is the panchnama under which mobile phone of deceased was discovered at the instance of accused No. 1 Ashish from his house. Though the panch witness Bhu.... PW 50 Exh 406 turned hostile, the discovery was proved to the evidence of IO. As per this panchnama Exh 407 accused Ashish voluntary led the police party and the panch witnesses to his father's house where he also lived. He then went inside bedroom of the house and led them to a bathroom. The bathroom had a window with sliding glass. The glass was non-transparent. From between the two sliding shutters by inserting the hand a mobile phone instrument covered in a plastic bag was found. 16. Under panchnama Exh 413, the investigation discovered the knife allegedly used for the commission of offence and pieces of broken number plate of the Indica car both at the instance of accused No. 7 Salim. As per this panchnama, the said accused volunteered to show the place where these articles were thrown away from a moving car. He led the panch witness and the police party to the highway. He stopped the car at the milestone of Rajkot 35 kilometers. After walking for about one and half kilometer from the side of the road near the cactus bushes, the knife was found and recovered. Through further efforts were made, pieces of number plate were not found. 17. Such pieces of broken number plate were, however, discovered under panchnama Exh 422, according to which, one more attempt was made for such recovery and at the instance of accused No. 7, Salim, these articles were found from the same highway. 18. Under panchnama Exh 432, the investigation team had recovered three mobile phones on the person of deceased Naresh @ Sarap. During the course of inquest...these numbers were as under:- Idia Mobile Sim card No. 8991240200001008238 Airtel mobile Sim card No. 8991980604050198477 Mobile phone with Sim card No. 8991980000014964882 19. 18. Under panchnama Exh 432, the investigation team had recovered three mobile phones on the person of deceased Naresh @ Sarap. During the course of inquest...these numbers were as under:- Idia Mobile Sim card No. 8991240200001008238 Airtel mobile Sim card No. 8991980604050198477 Mobile phone with Sim card No. 8991980000014964882 19. Hiren PW 66 Exh 459 was the friend of Piyush to whom the complainant had first contacted on the night of 14.07.2006. This witness deposed that he had business relations with complainant Jalaram. He had learnt the business of imitation jewellery at his shop. He also had friendly relations with Piyush. He had meet Piyush in the evening of 14.07.2006. At 9:30 at night Piyush had called him and told him about conversation with a girl on phone him near Royal circus. Piyush also called Hiren but he could not accompany. Piyush went alone. He had tried to call Piyush at night but after receiving the phone the receiver did not respond. He had received call from Jalaram telling him about Piyush not returning/returned home. He, therefore, located Piyush's motorcycle near Royal Circus at Shastrinagar maidan and called Jalaram to the said place. 20. Nilesh Joshi PW 74 Exh 478 was the owner of Indica car whose car, according to the prosecution, Ashish had hired and was used for commission of the offence. This witness, however, turned hostile and did not support the prosecution. 21. Maulik Manharlal PW 77 Exh 492 was running the mobile shop business in the name of Bhawani Enterprise. He had the sim card agency of Airtel company. He had issued sim card of number 9998621835 to one Kajal Studio. According to the prosecution Kajal Studio, in turn, had issued this number to accused No. 1 Ashish but in the name of Prakash Darji. 22. Ajit.... PW 78 Exh 500 was employed as a salesman at the said Bhawani Enterprise. According to his deposition, he had handedover the sim card of the said number 9998621835 to Samir...and Kajal Studio for issuance of the same in the name of Prakash Darji. 23. Samir PW 84 Exh 512 was serving at Kajal Studio. He confirmed that number 9998621835 was issued from Kajal Studoi after obtaining necessary documents. The documents were brought by the thin boy. The form carried a photograph of a different person. The photograph and the identity proof matched but were not of the said boy. 23. Samir PW 84 Exh 512 was serving at Kajal Studio. He confirmed that number 9998621835 was issued from Kajal Studoi after obtaining necessary documents. The documents were brought by the thin boy. The form carried a photograph of a different person. The photograph and the identity proof matched but were not of the said boy. He explained that the photograph is of his father who did not keep good health. The witness therefore obtained the signature of this boy on the form on behalf of his father and then sent these documents to the company. 24. Prakash Darji PW 91 Exh 524 was the person in whose name, the said mobile sim card was issued. He deposed that he had gone to Chotila during the Diwali vacation of the year 2006. At that time, he had lost his wallet which contained his passport size photograph, a duplicate driving license and his visiting card in the name of Laxmi Traders besides some cash. He was shown the form Exh 240 and stated that the form contained his photograph but not his signature. He was shown document Exh 241 to which he said that it was a copy of his driving license but here also the signature was not of his. 25. Ghanshyam PW 96 Exh 561 was working at the shop of complainant Jalaram. He deposed that since Piyush did not have identity proof, he had requested the witness to help him to take out a sim card. Accordingly, a sim card in his name was obtained by Piyush which had the number of 9898700070. 26. Ouchad Bhoj.... PW 103 Exh 588 was the Executive Magistrate who had carried out the test identification parade of various accused including accused No. 1, Ashish and accused No. 7 Salim at the hands of different witnesses. The panchnama of such identification parade was produced at Exh 591. We may not refer to at much length the contents of the evidence of this witness of the panchnama since what would be crucial for us is whether the concerned witnesses identified the accused before the Court during their deposition or not. 27. Vinod.... PW 113 Exh 632 was the person from his shop according to the prosecution, the accused had purchased the knife used for commission of the offence. 27. Vinod.... PW 113 Exh 632 was the person from his shop according to the prosecution, the accused had purchased the knife used for commission of the offence. He deposed that he had a shop in the Virpur station road area by the name of Krishna Novelty. He was selling cutlery, toys and other household articles. About six years back the police had brought one boy to his shop and asked him whether the boy had purchased a knife from his store or not. He confirmed that the boy has purchased four knives from his store. At that time, the boy was alone. Soon another boy came there. He, however, did not purchase any articles. These boys had paid Rs. 500/- for the four knives. He confirmed that his statement was recorded by the.... He produced the bills for the sale of knife. He was shown muddamal articles the knife but stated that they were somewhat different from those sold by him. He was also called for test identification parade during which he had identified the two boys who had come for the purchase. Significantly, however, this witness was never called upon to identify the accused before the Court. We would refer to this aspect at a later stage. At this stage, we may only record that the purchase of the knives by the particular accused which knife was found to have been used for commission of offence would be an important factor in favour of the prosecution. If the purchase of knife by a particular accused was, therefore, established, the prosecution could have claimed some benefit out of this factor. Before the Court this witness was not called to identify any of the accused and accordingly, did not point out before the Court if any of the persons present before the Court had purchased a knife from his shop. 28. Jasubhai De.... PW 126 Exh 692 was the senior Jailor at Rajkot. He deposed that on 17.10.2006, Deputy Forest Conservative and Range Forest Officer had come to the jail for recording statement of Salim and Ashish with Court permission for such purpose. He had therefore called both these under trial prisoners to his office where the statements were recorded by the forest officers. Such statements were produced at Exh 693 and 694. He identified the accused before the Court. He had therefore called both these under trial prisoners to his office where the statements were recorded by the forest officers. Such statements were produced at Exh 693 and 694. He identified the accused before the Court. He clarified that Ashish refused to sign his statement Exh 694. 29. Under statement Exh 693, accused No. 7 Salim Ahmed had stated that at about 7:30 at night on 16.10.2006, he along with Ashish, Naresh @ Sarap had taken Piyush and enter the sanctuary where they had brought petrol for setting the body of Piyush on fire after killing him. He had lit the fire with the match stick after pouring the petrol. He admitted that he had entered the sanctuary unauthorizedly and also lit the/a fire. 30. Somewhat similar but differently worded discloser was allegedly made by Ashish in the so called statement Exh 694 but, as noted, the statement was not signed by Ashish. 31. Dr. Hitesh PW 130 was called to carry out the postmortem. Obviously any postmortem in the conventional was not possible since all that the investigation could collected of the dead body was a remains of a few bones and the skull. Such articles were presented before the doctor in a sealed plastic bag. He found that such articles included the skull, separate teeth, pieces of bones of the body. He opined that the bones were of a human being. The skull was of a male. From the skull, he could estimate the age of the deceased to be between 13 to 17 years. The bones were chewed by the wild animals. In the cross examination, he agreed that the skull did not show the evidence of crushing injury. 32. Hitesh. PW 133 Exh 721 was engaged in the business of number plate and banner paintings. According to the prosecution, Ashish had got a fake number plate printed by this witness which was fixed on the Indica car used for the commission of the offence. This witness, however, turned hostile. His statement was recorded by the Executive Magistrate under section 164 of IPC in which, he had disclosed that Ashish had contacted him for painting the number plate of a specific number. 33. Tansukh PW 134 Exh 727 was an officer from FSL. He deposed that at the relevant time, he was posted as Scientific Officer, FSL Rajkot. His statement was recorded by the Executive Magistrate under section 164 of IPC in which, he had disclosed that Ashish had contacted him for painting the number plate of a specific number. 33. Tansukh PW 134 Exh 727 was an officer from FSL. He deposed that at the relevant time, he was posted as Scientific Officer, FSL Rajkot. Under his supervision and guidance, the police had collected various articles from the scene of the incident such as a stone which had blood stains, the bones etc. He deposed that at the site in an area of about half a kilometer pieces of bones for...per for...in scattered condition. At that site there was a patch of about 4 ft. which was though, wet, had the sign of burnt pieces of wood. He had instructed that the bones and other articles be sent to Gandhinagar laboratory for DNA testing. He was called for the search of Indica car which was lying at the police station. This happened on 31.07.2006. Because of the rainfall, from the outside of the car no useful clues could be found. However, one handkerchief was found from the pouch of the front left seat. Upon closer scrutiny the handkerchief showed stray reddish stains. It appeared that the handkerchief was used for wiping a sharp instrument. On swiping wet cotton goals presence of blood was seen. 34. Paras PW 139 Exh 757 was in the business of selling mobile sim cards in the name of Shiv Mobiles. He had sold mobile sim card with number 9824596630 to Naresh @ Sarap. He produced at Exh 758 list of different mobiles sold by him which included the present one. 35. Natubha PW 140 Exh 762 deposed that he knew accused No. 1 Ashish. Ashish had contacted him for hiring a house. He had come in while coloured Indica care. He had told Ashish that normally he does not rent the house to a local person but would prefer a government servant. Ashish had told him that he needed the house for a medical representative. He had showed the house to Ashish and rented it for monthly rent of Rs. 3000/-. He had given the keys to Ashish. Later on, in the evening, he had gone to the house. The house was open and unknown person was occupying it. He had inquired with this person about the luggage. He had showed the house to Ashish and rented it for monthly rent of Rs. 3000/-. He had given the keys to Ashish. Later on, in the evening, he had gone to the house. The house was open and unknown person was occupying it. He had inquired with this person about the luggage. This persons said that he was Ashish's man and identified himself as Rajesh. This witness was shown two photographs of deceased Naresh and was asked whether the person at the house was the same as one in the photographs and he confirmed this. He had inquired with this person about whereabout of Ashish and was told that Ashish had gone out for bringing the food. He had insisted that the salesman which is coming to occupy his house may be put in touch with him. Next day, in the morning, again he went to the house and found the house was open and nobody was present there. Later in the day, he heard about the possible involvement of Ashish in kidnapping of Piyush. He had, therefore, contacted the police and given the information which he had. 36. Mukesh Rajyaguru PW 143 Exh 800 had obtained a mobile sim card from New Kajal Studio with the number 9998621832. He deposed that after activating the sim card the said sim card of Airtel company had worked for only couple of minutes and thereafter despite his repeated attempts for about one and half month, the number never worked. 37. Vinod Dobariya PW 149 Exh 830 deposed that he resided at Botad. He was shown a form for obtaining mobile sim card and stated that he had not signed it. The signature purported to be his is not his. He had never got the mobile sim card from Jam.... He had gone to Sonapur with his two friends where his pocket was picked. The wallet had true copies of his driving license some money and his photographs. 38. Kapil PW 152 Exh 837 father of accused No. 1 Ashish deposed that he was a constable in the police department. He did not know Jalaram personally but knew about him because his son was working with Jalaram. When he was at home on leave, he had received a phone call from Jalaram inquiring about Ashish to whom he had said that Ashish had gone to Ahmedabad for business work. He did not know Jalaram personally but knew about him because his son was working with Jalaram. When he was at home on leave, he had received a phone call from Jalaram inquiring about Ashish to whom he had said that Ashish had gone to Ahmedabad for business work. He knew that Ashish and Jalaram's son were friends. Since both of them were in the same business, he had tried to contact Ashish who told him that he was out of station. He had told Ashish about the inquiries made by Jalaram. Police had recorded his statement and instructed him to inform the police if Ashish contacted. Same day at night, Ashish called and said that he is returning home upon which, he informed the Rajkot Police. Two police persons from Rajkot had come to interrogate Ashish. From then on this witness turned hostile and was cross examined by the prosecution. 39. Hitesh PW 163 Exh 921 had mobile shop in the name of Om Mobile.