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2019 DIGILAW 1079 (GUJ)

Rawal Vijaykumar Pashabhai v. State of Gujarat

2019-10-25

R.M.CHHAYA, V.B.MAYANI

body2019
JUDGMENT : V.B. Mayani, J. 1. Both these appeals are directed against the common judgment and order dated 25-2-2014 passed by the learned Sessions Judge, Mehsana in Sessions Case No. 73 of 2012, whereby the learned Sessions Judge has convicted both the appellants-original accused for offences punishable under Secs. 302, 394, 397, 201 and 120B of the Indian Penal Code and have sentenced the appellants-accused to undergo life imprisonment for the offence punishable under Sec. 302 read with Sec. 120B and fine of Rs. 5,000/- and in default to undergo further S.I. for 6 months. For the offences under Sec. 397 read with Sec. 120B of I.P.C., the learned Sessions Judge was pleased to convict the appellants for a period of 7 years R.I. and fine of Rs. 5,000/- and in default S.I. for 6 months. For the offence under Sec. 201 of I.P.C., the learned Sessions Judge was pleased to convict the appellants to undergo R.I. for 5 years and fine of Rs. 3,000/- and in default, S.I. for 3 months. No separate sentence was imposed for the offence punishable under Sec. 394 of the I.P.C. The learned Sessions Judge has also ordered that all the sentences shall run concurrently. 2. The following facts emerge from the record of the appeal: 2.1. It is the case of the prosecution that the date of offence is not known. However, the date of the complaint is 26-11-2011. As the facts reveal on 3-12-2011, at about 17-30 hours, a dead-body was shown by Rajubhai Rawal Pashabhai, which was found in putrefied condition. The Vijapur Police Station was informed about the same and inquest was carried out by P.S.I., Vijapur Police Station on 4-12-2011 between 14-00 to 14-30 hrs. and the same was registered as accidental death No. 9 of 2011. 2.2. As the record reveals, the post-mortem was carried out at the scene of the offence. On 7-12-2011, the son of the deceased-Nareshbhai informed the Investigating Officer about his missing mother from last few days and informed that the dead-body found might be of his mother and statement of Nareshbhai was recorded. Ultimately, on 24-1-2012, the complaint was registered as I-C.R. No. 4 of 2012 against the appellants-accused and the accused came to be arrested. On 7-12-2011, the son of the deceased-Nareshbhai informed the Investigating Officer about his missing mother from last few days and informed that the dead-body found might be of his mother and statement of Nareshbhai was recorded. Ultimately, on 24-1-2012, the complaint was registered as I-C.R. No. 4 of 2012 against the appellants-accused and the accused came to be arrested. The Investigating Agency carried out the investigation and recorded the statements of various witnesses and also gathered documentary evidence including D.N.A. report, on the basis of which the F.I.R. came to be lodged for the offences punishable under Secs. 120B, 302, 397, read with Sec. 34 and 201 of I.P.C. and also for robbery of ornaments amounting to Rs. 79,700/-. The case was committed to the Sessions Court and came to be registered as Sessions Case No. 73 of 2012. The charge has been framed vide Exh. 6 under Secs. 120B, 302 read with Sec. 34, Secs. 394, 397 read with Secs. 34 and 201 of the Indian Penal Code and as the appellants did not plead guilty, they came to be tried by the learned trial Court. The prosecution examined 17 witnesses and also relied upon documentary evidence before the trial Court. 2.3. Before the learned Sessions Court, it was the case of the prosecution that the motive for murder was robbery of ornaments of deceased Hetiben and the full chain of circumstances is complete and that the prosecution has been able to establish the guilt of the accused to its hilt. The learned Sessions Court appreciated the evidence on record and believed the case of the prosecution and convicted the appellants-accused for the offences as narrated hereinabove. Being aggrieved by the same, the accused have filed the present appeals. 3. As both the appeals arise out of the common judgment and order of conviction passed by the learned Sessions Judge, Mehsana in Sessions Case No. 73 of 2012, whereby the appellants-accused have been convicted for the offences punishable under Secs. 302, 394, 397, 201 and 120B of the Indian Penal Code and have been sentenced as narrated hereinabove, both the appeals were heard together and are disposed of by this common judgment and order. 4. Heard Mr. Yogendra Thakore, learned Advocate for the appellant of Criminal Appeal No. 834 of 2014 and Mr. 302, 394, 397, 201 and 120B of the Indian Penal Code and have been sentenced as narrated hereinabove, both the appeals were heard together and are disposed of by this common judgment and order. 4. Heard Mr. Yogendra Thakore, learned Advocate for the appellant of Criminal Appeal No. 834 of 2014 and Mr. Shirish Patel, learned Advocate for the appellant of Criminal Appeal No. 176 of 2015 and have also perused the original record and proceedings. 5. Learned Advocate Mr. Yogendra Thakore for the appellant has mainly submitted that both the appellants-accused were convicted for the above-mentioned offences punishable under Secs. 302, 394, 397, 201 and 120B of the Indian Penal Code by the learned Sessions Judge, Mehsana. The learned Sessions Judge has considered that both the appellants conspired for the murder and committed murder of Hetiben and robbery of ornaments of the deceased-Hetiben, and thereby, committed the above mentioned offence. The learned Advocate for the appellants has also submitted that the offence of murder is not established at all. It was contended that the cause of death of deceased-Hetiben is not established. The learned trial Court has believed the offence of murder on the basis that original accused No. 1 discovered spade and the panch of the said panchnama has supported the case of the prosecution but the evidence of panch witness is not properly appreciated. Moreover, no blood-stains were found on the spade as per the panchnama as well as F.S.L., report, therefore, the discovery of spade cannot be the basis for the conviction of the accused for the offence of murder. The another aspect taken into consideration by the learned trial Court is that, the ornaments of deceased-Hetiben has been recovered from the goldsmith at the instance of accused No. 2-Vijaykumar. He submitted that discovery of ornaments at the instance of accused cannot connect the accused with the murder. He has submitted that the evidence regarding the seizure of ornaments from the goldsmith at the instance of accused-Vijaykumar is also not properly established and the evidence is full of infirmity. He has submitted that on the discovery of the ornaments of deceased Hetiben, the accused cannot be convicted for the offence of murder. There is no eyewitness and the whole case of the prosecution depends upon the circumstantial evidence. He has submitted that on the discovery of the ornaments of deceased Hetiben, the accused cannot be convicted for the offence of murder. There is no eyewitness and the whole case of the prosecution depends upon the circumstantial evidence. The chain of circumstances is not completed, and therefore, the offence against the accused is not established or proved beyond reasonable doubt. He has cited some decisions which are considered. 6. Mr. Shirish Patel, learned Advocate for the appellant in Criminal Appeal No. 176 of 2015 has adopted the arguments made by Mr. Yogendra Thakore for the appellant of Criminal Appeal No. 834 of 2014 and has submitted that the whole case of the prosecution is based on circumstantial evidence and chain of circumstances is not complete, and therefore, the offence against the accused is not established or proved beyond reasonable doubt. 7. Mr. Hardik Soni, learned A.P.P. for the opponent-State has submitted that the dead-body of deceased-Hetiben was found after a long time in a decomposed state and though the post-mortem was difficult, the Doctor has performed post-mortem. Moreover, rope has been found near the dead-body. He submitted that D.N.A. of deceased-Hetiben and D.N.A. of Naresh, who happens to be son of Hetiben are matched as per the D.N.A. report, and therefore, the unidentified dead-body has been considered as the dead-body of Hetiben who is mother of complainant. He has submitted that the prosecution has established the motive of robbery of the ornaments of Hetiben, and therefore, she was murdered. The gold ornaments were seized from the goldsmith at the instance of the accused which has been identified by the complainant Naresh who is son of deceased Hetiben. It was contended that the knowledge of the ornaments being sold to a particular goldsmith was only with the accused which establishes that the robbery is connected with the murder of deceased-Hetiben. He submitted that the discovery of ornaments at the instance of accused is directly connected with the murder of deceased-Hetiben. Moreover, at the time of incident, economic condition of the family of accused was weak and after the murder of Hetiben and sale of ornaments of Hetiben, the economic condition of the family of accused suddenly improved. He contended that the accused paid Rs. 15,000/- at a stretch to the owner of the land from whom the land was taken on rent by the family of the accused. He contended that the accused paid Rs. 15,000/- at a stretch to the owner of the land from whom the land was taken on rent by the family of the accused. Moreover, the spade has been discovered at the instance of accused No. 1-Dharmendraji R. Thakore and the same is connected with the offence of murder. He has submitted that the learned trial Court has considered all the evidence in the right manner, and hence, there is no need to interfere with the judgment of the trial Court. 8. No other or further submissions have been made by the learned Advocates appearing for the respective parties. 9. Before reverting to the submissions made on behalf of the parties, it would be appropriate to note that the basis of the case of the prosecution is that Naresh Kumar Rawabhai Rawal residing at Asoda, Taluka : Vijapur at presently residing at Aud-Kamod, Taluka : Dascroi, Dist. Ahmedabad lodged F.I.R. dated 24-1-2012 in which he has mainly narrated that on 3-12-2011 the dead-body of his mother was found in the agricultural land of Patel Ramesh Kachrabhai, and therefore, his brother Ashok telephoned him and told that whether his mother has come to the house of the complainant as his mother has told Ashok that she is going to Ahmedabad to the house of the complainant and Ashok has not received any information regarding his mother, and therefore, he had a doubt that the dead-body found might be of his mother. Ashok saw the dead-body, but it was in decomposed state, and therefore, could not identify. There was a rope on the neck of the dead-body. Afterwards, for identifying the dead-body, the blood sample of complainant was taken for the D.N.A. test and the clothes of the dead-body as well as some metal in the teeth denote that it was the dead-body of his mother. The gold ornaments which his mother used to wear permanently were not found on the dead-body. Therefore, doubt was there that his mother was murdered for the ornaments. That during the last month, he observed that economic condition of family of Raval Vijaykumar Pasabhai-accused No. 2 and Thakore Dharmendraji Ranchhodji-accused No. 1 was weak. Even though, they were spending excessive money and living luxurious life, and therefore, he kept a watch upon them. Therefore, doubt was there that his mother was murdered for the ornaments. That during the last month, he observed that economic condition of family of Raval Vijaykumar Pasabhai-accused No. 2 and Thakore Dharmendraji Ranchhodji-accused No. 1 was weak. Even though, they were spending excessive money and living luxurious life, and therefore, he kept a watch upon them. Afterwards, he came to know that the accused have mortgaged the ornaments with Radhe Finance, near railway crossing at Kukarvada, and therefore, he met Mr. Babubhai Patel, owner of Radhe Finance, and inquired regarding the mortgage of ornaments by the accused and Babubhai informed the complainant that accused No. 2 came to him and he had said that he wanted to mortgage the ornaments of his mother, and therefore, the accused No. 1 has mortgaged the ornaments of gold and silver and at that time the accused No. 1 accompanied with him and the accused No. 2 had taken Rs. 11,300/- on the mortgage of ornaments with the condition that after two or three days, he will come back and repay the amount and will take away the ornaments with him. The description of ornaments given by Babubhai Patel is the same as the mother of the complainant was wearing. Moreover, the D.N.A. report received by the Police describes that the D.N.A. of the dead-body found, and the D.N.A. of the complainant are matching, and therefore, the complainant lodged F.I.R. against both the accused alleging that accused have murdered his mother on 26-11-2011 for the purpose of robbery of above-mentioned ornaments which is amounting to Rs. 79,700/-. 10. According to the prosecution, the motive for the murder is robbery of the ornaments of deceased-Hetiben. In case of circumstantial evidence, the motive has its own importance. Therefore, here we will first of all consider the motive, in other words, the evidence regarding the robbery. 11. It is the case of prosecution that the ornaments seized by the Police from the goldsmith by way of discovery at the instance of the accused No. 2 were identified by the complainant Naresh. The evidence regarding the robbery, and the seizure of ornaments are discussed hereinafter. 12. Babubhai Joitaram Patel, P.W. No. 5 is examined vide Exh. 30 who is the owner of Radhe Finance. He has mainly deposed that accused No. 2-Vijaykumar came with the ornaments and mortgaged the same for Rs. The evidence regarding the robbery, and the seizure of ornaments are discussed hereinafter. 12. Babubhai Joitaram Patel, P.W. No. 5 is examined vide Exh. 30 who is the owner of Radhe Finance. He has mainly deposed that accused No. 2-Vijaykumar came with the ornaments and mortgaged the same for Rs. 11,500/- and afterwards, he has repaid the amount and that the witness had given back the ornaments to accused No. 2. The witness has identified the accused as well as ornaments in the Court. The witness has been cross-examined but nothing has been elicited that is helpful to the prosecution. 13. Dahyabhai Bechardas Patel, P.W. No. 8 has been examined vide Exh. 38 who is owner of Lakshmi Jewellers. He has mainly deposed that on 29-11-2011 the accused came to his shop at 9-00 a.m. to sell the gold ornaments which had been purchased by him for Rs. 15,000/-. He has further deposed that again the accused came at 3-30 p.m. and gave another gold ornaments to the witness and took Rs. 16,000/-. At that time, the accused has given Rs. 20,000/- for the purchase of 500 grams silver, but the amount was not enough. Afterwards the accused came with silver ornaments, and therefore, the witness has given silver 460 grams to the accused. After two months, the Police came with accused and the ornaments were in the same position with the witness, and therefore, he had given the ornaments to the police which has been seized by the Police. The ornaments as well as the accused are identified by the witness in the Court. The witness was cross-examined by the accused side in which he has denied that he has only the information which is provided by his nephew. He has admitted that other persons may also have such type of ornaments. He has not taken any photograph of the ornaments. He has not read the Police statement. There was no occasion to erase the weight and date in his Police statement. In the above-mentioned deposition of the witness, it has come on record that the accused have sold the ornaments to the witness for the amount mentioned above. In this regard a panchnama was drawn vide Exh. 46 and the panch Raval Harshadbhai Manabhai is examined as P.W. No. 11 vide Exh. 45. In the above-mentioned deposition of the witness, it has come on record that the accused have sold the ornaments to the witness for the amount mentioned above. In this regard a panchnama was drawn vide Exh. 46 and the panch Raval Harshadbhai Manabhai is examined as P.W. No. 11 vide Exh. 45. The panch witness has supported the case of the prosecution in which in the Police Station accused have told them that they are prepared to show the place where they sold the ornaments and afterwards, they went to Lakshmi Jeweler and seized the ornaments. Afterwards, the complainant was there, and therefore, the ornaments were identified by the complainant and another panchnama was drawn there and both the panchnama were exhibited vide Exhs. 46 and 47. He has identified the muddamal as well as the accused in the Court room. In the cross-examination he has deposed that he knew the complainant Naresh as he is from his own village. He knew that murder of deceased, and the ornaments were not found on the dead-body. He has admitted that when they went to the Police Station at that time the accused were in custody. He has admitted that Police told him that accused are showing the ornaments, and therefore, they have to go. Afterwards, he had not talked to the accused. He has admitted that Police told him that it has been informed by the accused that the accused have sold the ornaments to Lakshmi Jeweler. In this regard, it is argued that the discovery of the ornaments were not at the instance of accused, but police informed him, and therefore, the pancha went to the Lakshmi Jeweller. But at the same time, the panch witness has specifically stated in the examination-in-chief that the accused have told that they want to show the place where the ornaments have been sold by them. In the cross-examination it has not come on record that what is told by the accused as per the examination-in-chief is not told by the accused. The fact that has come out in the cross-examination that police told him that accused has stated that the ornaments have been sold at Lakshmi Jeweller, and therefore, they want to go there is in the addition of the fact deposed by the witness in the examination-in-chief. The fact that has come out in the cross-examination that police told him that accused has stated that the ornaments have been sold at Lakshmi Jeweller, and therefore, they want to go there is in the addition of the fact deposed by the witness in the examination-in-chief. It has not come in the cross-examination that the accused themselves have not told anything at all to the panch. Therefore, the deposition of the panch witness can be believed as trustworthy. 14. In view of above-mentioned deposition of P.W. No. 8-Dahyhabhai Bechardas Patel, owner of Lakshmi Jeweller, the deposition of panch witness Raval Harshadbhai Manabhai P.W. No. 11 of the panch of discovery panchnama in which the ornaments were seized at the instance of accused and identified by the complainant, the prosecution has established that the gold ornaments of the deceased have been discovered by the police at the instance of the accused and the knowledge that the ornaments were lying with the specific goldsmith Lakshmi Jeweller is with only accused, and therefore, this part of discovery and seizure of ornaments at the instance of the accused are established by the prosecution beyond reasonable doubt. 15. In view of above-mentioned deposition of Dahyabhai Bechardas Patel-P.W. No. 8 he has sold the silver in the square form to the accused which was of 460 grams. As per the case of prosecution, the said silver of 460 grams was given to Ambica Jewellers at Vijapur by the accused for the preparation of ornaments for the sister of the accused, and therefore, the silver had been given to Ambica Jewellers. In this regard, Soni Chinubhai Natvarlal is examined at P.W. No. 9 at Exh. 37, in which he has deposed that one of the accused, who is present in the Court whose name is Vijaykumar-accused No. 2 had come to his shop, and given silver of 460 grams for preparation of ornaments for his sister, and at that time, the accused has given his name as Digvijaysinh. Afterwards, Police came to his shop with the accused, and seized the muddamal silver of 461 grams. In the cross-examination, he has admitted that complainant is from his area. He has not taken any impression or photograph for the silver square. In this regard, a panchnama has been drawn and produced vide Exh. Afterwards, Police came to his shop with the accused, and seized the muddamal silver of 461 grams. In the cross-examination, he has admitted that complainant is from his area. He has not taken any impression or photograph for the silver square. In this regard, a panchnama has been drawn and produced vide Exh. 53 and in this regard, panch Manishkumar Mangalbhai Patel is examined as P.W. No. 13 vide Exh. 52. He has supported the case of the prosecution. Accused No. 2 has told him that the silver-square was given in the Ambica Jewellers, therefore, the owner of Ambica Jewellers has produced the silver-square which has been seized by the Police. In the cross-examination nothing has come out which adversely affects the case of the prosecution. In view of the above-mentioned evidence, the accused Vijay had taken 460 grams silver against the gold ornaments from the Lakshmi Jewelers which has been given to Ambica Jewellers for the preparation of ornaments of his sister, which is established by the prosecution beyond reasonable doubt on the basis of above-mentioned deposition of the witnesses. 16. Rajubhai Pasabhai Raval who is brother of accused Vijay-accused No. 2 is examined as P.W. No. 6 at Exh. 32, in which he has deposed that his father Pasabhai has taken the field on rent from Rameshbhai Kachrabhai for Rs. 15,000/- and he was going to the field thrice in a day. He had seen the dead-body, and therefore, he declared the same before the police by Janvajog entry, which has been exhibited vide Exh. 33. 17. Rameshbhai Kachrabhai Patel is examined as P.W. No. 7 vide Exh. 35, who is the owner of the land from which the dead-body was found, and he has deposed that he has rented the land to the father of accused No. 2-Vijay for Rs. 15,000/-, and he has received Rs. 15,000/- as rent of the land from Mukeshbhai Ramanlal Patel, who is P.W. No. 4, and Mukeshbhai Ramanlal Patel has deposed that Vijay had given Rs. 15,000/- to him which has been given to Rameshbhai Kachrabhai Patel, owner of the land. Afterwards, Rameshbhai Kachrabhai Patel produced Rs. 15,000/- before the police and the Police seized the same, and drawn panchnama Exh. 50, and the said panchnama has been exhibited in the deposition of panch Rashikbhai Virambhai Thakore P.W. No. 12. 18. 15,000/- to him which has been given to Rameshbhai Kachrabhai Patel, owner of the land. Afterwards, Rameshbhai Kachrabhai Patel produced Rs. 15,000/- before the police and the Police seized the same, and drawn panchnama Exh. 50, and the said panchnama has been exhibited in the deposition of panch Rashikbhai Virambhai Thakore P.W. No. 12. 18. In view of the above-mentioned discussion, the witness-Babubhai Joitaram Patel has deposed that accused No. 2 has mortgaged the ornaments of deceased Hetiben and afterwards, taken back the ornaments. The owner of Lakshmi Jewellers has deposed before the Court that some ornaments have been sold by accused No. 2, and some amount has been taken as purchase price by accused No. 2, and also a silver-square of 460 grams. The owner of Ambica Jewellers has also deposed before the Court that accused No. 2 had taken silver-square of 461 grams for the preparation of ornaments of silver of sister of accused No. 2. All the goldsmiths have identified ornaments as well as the accused before the Court. Moreover, relevant panchnamas are drawn by the police at the time of seizure of ornaments, and silver-square and the panchas of the above-mentioned panchnama have supported the case of the prosecution. Rajubhai Pasabhai, brother of the accused No. 2 has deposed that he had taken the agriculture land on rent from Ramesh Kachrabhai for Rs. 15,000/- per year and Ramesh Kachrabhai has deposed before the Court that he has received Rs. 15,000/- from Mukeshbhai Ramanlal Patel as Rs. 15,000/- has been given by accused No. 2 to Mukeshbhai Ramanlal Patel, so in view of the above-mentioned deposition of different witnesses, deposition of panch witnesses as well as seizure of different ornaments and silver-square at the instance of the accused No. 2, and the witnesses have deposed that at the time of giving the ornaments. accused No. 1 was along with accused No. 2. Moreover, the complainant-Nareshkumar Revabhai Raval has deposed as well as mentioned in the F.I.R. that economic condition of the family of both the accused is weak even though they were living luxurious life and spending excessive money. 19. accused No. 1 was along with accused No. 2. Moreover, the complainant-Nareshkumar Revabhai Raval has deposed as well as mentioned in the F.I.R. that economic condition of the family of both the accused is weak even though they were living luxurious life and spending excessive money. 19. In view of the above-mentioned evidence, oral as well as documentary evidence and considering the cumulative effect of the above-mentioned evidence, the prosecution has established beyond reasonable doubt that the ornaments of deceased Hetiben was with the accused, and sold to different goldsmiths, and afterwards seized by the Police at the instance of the accused by way of discovery, and therefore, the prosecution has duly proved that the accused were in the possession of the ornaments of deceased-Hetiben beyond reasonable doubt. 20. It is the case of the prosecution that the mother of complainant named Hetiben was murdered by the present accused. In this regard, the dead-body which was found in decomposed position was identified as the dead-body of mother of the complainant-Naresh by way of D.N.A. report which describe that D.N.A. of dead-body and D.N.A. of complainant are matched. Dr. Sunil Dahyabhai Chaudhari is examined as P.W. No. 1 vide Exh. 12 who was the Medical Officer of Kukarvada, who has performed the postmortem on 4-12-2011, in which, he has mainly deposed that dead-body was in decomposed condition and death had occurred about ten days before. In the post-mortem note, he has not mentioned the cause of death, but he has written that cause of death can be given after the F.S.L. report. He has admitted in the cross-examination that after the F.S.L. report, the cause of death was not known. He has admitted that in the decomposed condition, the injury upon the dead-body cannot be identified. He has admitted that it cannot be said that death was due to strangulation or any other way of stoppage of breathing. Therefore, from the deposition of Doctor, he has not deposed that death of deceased-Hetiben was due to culpable homicide. 21. The complainant-Nareshkumar Revabhai Raval has deposed as P.W. No. 2 vide Exh. 22 in which he has mainly deposed as per his complaint. He is not a witness of any circumstance except that the accused were living luxury life after the death of his mother, which he has deposed. 22. Ashaben Ashokbhai Raval is examined vide Exh. 21. The complainant-Nareshkumar Revabhai Raval has deposed as P.W. No. 2 vide Exh. 22 in which he has mainly deposed as per his complaint. He is not a witness of any circumstance except that the accused were living luxury life after the death of his mother, which he has deposed. 22. Ashaben Ashokbhai Raval is examined vide Exh. 26 as P.W. No. 3, who has identified the petticoat of deceased-Hetiben which has been found from the dead-body. 23. Deposition of Raval Kanjibhai Nathubhai, panch has been recorded as P.W. No. 10, who is panch of the panchnama of discovery of spade and showing the place of offence by the accused. He has deposed that the accused have told regarding the showing of place of offence, and afterwards, they went to the place of offence and shown the place of offence by the accused, and at that time, accused No. 1-Dharmendra has taken the spade from the hedges, and the same has been seized by the police and panchnama Exh. 43 is exhibited. In the cross-examination, he has admitted that he has not talked with the accused. 24. We have considered the entire evidence regarding the discovery of spade, and showing/identifying the place of offence. The identification of the place of offence can be considered as demonstration panchnama, but at the same time, the place of offence was known to all the persons and it was not a hidden thing, and therefore, the demonstration panchnama is helpful to the prosecution. Moreover, in the first part of the panchnama, the accused has not told regarding the showing of weapon spade, but afterwards it was found at the place near the place of offence at the instance of accused No. 1. Therefore, there was no voluntary disclosure as regards the discovery of spade. Moreover, in the cross-examination, the witness has admitted that he has not talked with the accused. In such circumstances, the discovery of the weapon used in the offence i.e. spade cannot be believed as discovery at the instance of the accused. Moreover, the said spade was sent to the F.S.L., but no blood-stains has been found on the spade, and therefore, the fact of discovery of spade at the instance of accused No. 1-Dharmendra is not established, as well as it is not helpful to the prosecution. 25. Moreover, the said spade was sent to the F.S.L., but no blood-stains has been found on the spade, and therefore, the fact of discovery of spade at the instance of accused No. 1-Dharmendra is not established, as well as it is not helpful to the prosecution. 25. Babubhai Manjibhai Bodat, P.S.O. is examined as P.W. No. 14 who has registered the F.I.R.; Parag Bharatbhai Chauhan, P.S.I., is examined as P.W. No. 15, who has inquired about accidental death No. 9 of 2011. The Investigating Officer Jagdevsinh Takhatsinh Sisodiya and Mahavirsinh Mahendrasinh Solanki P.W. Nos. 16 and 17 respectively are examined who were the Investigating Officers. They have deposed regarding the investigation held by them. 26. There is a charge of Sec. 120B of the Indian Penal Code. This is the Section for conspiracy for the offence. In view of the above-mentioned evidence adduced before the trial Court, the prosecution has not established the conspiracy to commit the offence. In order to prove the conspiracy, it is necessary that there should be meeting of minds prior to commission of the offence. In the case on hand, there is no any evidence that both the accused met, and thereby, meeting of mind for committing the offence, and thereby, conspired. The conspiracy is not in public domain, but it may be in a hidden manner. The evidence does not disclose even the hidden conspiracy. 27. Regarding the aspect of murder of Hetiben, no other evidence or circumstance have come on record for the murder of deceased-Hetiben, except the recovery of spade as per the case of the prosecution and discovery of the ornaments of deceased-Hetiben at the instance of the accused. In this regard, as earlier discussed the death of Hetiben is proved, but at the same-time, at the time of discussion of the evidence of doctor, who had performed the post-mortem, the prosecution has not established that the deceased-Hetiben died due to culpable homicide as per the medical evidence. The death of deceased Hetiben is proved, but culpable homicide is not proved. Moreover, as per the earlier discussion, the discovery of spade at the instance of accused No. 1 was not proved by the prosecution, not only that, but as per the F.S.L. report, there was no blood-stains on the spade. The death of deceased Hetiben is proved, but culpable homicide is not proved. Moreover, as per the earlier discussion, the discovery of spade at the instance of accused No. 1 was not proved by the prosecution, not only that, but as per the F.S.L. report, there was no blood-stains on the spade. In view of the above-facts and circumstances, the only fact remains that the ornaments had been discovered at the instance of accused. Now, the question arose that the only discovery of the ornaments of deceased-Hetiben at the instance of accused can lead towards connecting the accused with the death, which has been called by the prosecution as murder of Hetiben and the robbery? 28. In this regard, the learned Advocate Mr. Yogendra Thakore for the appellants has cited decision of the Hon'ble Apex Court in the case of Gautam Maroti Umale v. State of Maharashtra, reported in 1993 (0) GLHEL-SC 9347 : [1994 Supp (3) SCC 326], in which there was death of Panchafula, a lady and mother of complainant. In this case the accused was tried for the offences under Secs. 302, 394 and 404 of the Indian Penal Code. The learned trial Court acquitted the accused from all the charges. Afterwards, in appeal the High Court convicted the accused for the offences under Secs. 302 and 394 of the Indian Penal Code. As against this, the convict had preferred appeal before the Hon'ble Apex Court. In this case, there were three circumstances prevailing which have been considered in Para 3 of the judgment as follows: "(a) As per P.W. 1, Punjab, the accused was seen near the spot. (b) As per evidence of P.W. 6 and injury report Exh. 35, the accused sustained injuries on his face and particularly on cheek; and (c) discovery of ornaments of deceased, namely, articles 8 and 13 on memorandum Exh. 24 and seizure memo. Exh. 22." Thereafter, in the above-mentioned circumstances the Apex Court has considered in Para 8 as under: "8. Having gone through the evidence of P.Ws. 1 and 2, we find it difficult to accept the prosecution case that the appellant was seen on the spot. The reasons given by the Sessions Judge, in this context, are quite reasonable and sound. Exh. 22." Thereafter, in the above-mentioned circumstances the Apex Court has considered in Para 8 as under: "8. Having gone through the evidence of P.Ws. 1 and 2, we find it difficult to accept the prosecution case that the appellant was seen on the spot. The reasons given by the Sessions Judge, in this context, are quite reasonable and sound. So far as the minor abrasions that were found on the accused are concerned, that by itself cannot connect the accused with murder, and it is probable that he received scratches or abrasions while working in the field. Then, we are left with the recovery. Both the Courts have accepted the fact of recovery, and even that by itself cannot connect the accused with the murder, and to hold him to be the murderer of the deceased. At the most, he can be convicted under Sec. 411 of I.P.C. for being in possession of the stolen-property for which he has no explanation. Under these circumstances, the conviction of the appellant under Sec. 302 of I.P.C. and the sentence of life imprisonment awarded thereunder and his conviction under Sec. 394 of I.P.C. and the sentence awarded thereunder are set aside. Instead, he is convicted under Sec. 411 of I.P.C. and sentenced to undergo two years' R.I. and to pay a fine of Rs. 1,000, in default of payment of which to further undergo three months' R.I. The appeal is allowed to that extent." In view of the above-mentioned discussion, and re-appreciation of evidence adduced before the trial Court, it is established that the ornaments of deceased-Hetiben had been found at the instance of the accused from the jewellers as discussed above. Therefore, the accused were in possession of the ornaments of the deceased-Hetiben. In view of the above-mentioned facts and circumstances the Apex Court convicted the accused under Sec. 411 of the Indian Penal Code whereas acquitted for the offence punishable under Secs. 302 and 394 of the Indian Penal Code. 29. In the case on hand, the similar circumstances prevail only for the possession of ornaments, whereas the circumstances of accused seen near the spot of offence as well as injuries upon accused are not prevailing in this case on hand, and therefore, this citation is helpful to the present appellants. 302 and 394 of the Indian Penal Code. 29. In the case on hand, the similar circumstances prevail only for the possession of ornaments, whereas the circumstances of accused seen near the spot of offence as well as injuries upon accused are not prevailing in this case on hand, and therefore, this citation is helpful to the present appellants. Upon appreciation of the whole evidence, which is relied upon by the prosecution, it clearly appears that the whole case of the prosecution is based on circumstantial evidence, and there is no eye-witness. The prosecution has not been able to establish the complete chain of circumstances, which leads to the guilt of the appellants-accused and thus, as observed hereinabove, the prosecution has not been able to prove the offences under Secs. 302, 394, 397, 201 and 120B of the I.P.C. Considering the set of evidence which is relied upon by the prosecution, the appellants can be convicted only for the offences under Sec. 411 of the I.P.C. 30. In view of the above-mentioned facts and circumstances, as well as discussion and evidence adduced before the trial Court, and the above-mentioned judgment of Apex Court produced by the appellants' side, we come to the conclusion that the learned trial Court has erred in convicting the accused for the offence punishable under Secs. 302, 394, 397, 201 and 120B of the Indian Penal Code. 31. In the result, and as per the above mentioned circumstances the conviction of the appellants and sentence imposed thereunder under Secs. 302, 394, 397, 201 and 120B of the Indian Penal Code is set aside, and the appellants are hereby convicted under Sec. 411 of the Indian Penal Code, and sentenced to undergo the sentence of 3 years rigorous imprisonment each, and a fine of Rs. 5,000/- each, in default, simple imprisonment for three months. The appeals are allowed to the said extent. The judgment and order dated 25-2-2014, passed by the learned Sessions Judge, Mehsana in Sessions Case No. 73 of 2012 of the trial Court is hereby modified to the above extent. 32. For the sentence imposed, the appellants-accused as undertrial prisoner or convict undergone the sentence shall be given set off. If appellants-accused are in jail, and after calculating the above-mentioned sentence, and fine amount if they are not required in any other offence, then they may be released forthwith. 33. 32. For the sentence imposed, the appellants-accused as undertrial prisoner or convict undergone the sentence shall be given set off. If appellants-accused are in jail, and after calculating the above-mentioned sentence, and fine amount if they are not required in any other offence, then they may be released forthwith. 33. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.