Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 1015 (GUJ)

Prafulbhai Virchandbhai Shah v. State of Gujarat

2023-08-11

A.S.SUPEHIA, M.R.MENGDEY

body2023
JUDGMENT : A.S. SUPEHIA, J. 1. The present criminal appeals preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as “the Cr.P.C.” for short) are directed against the judgment of conviction and order of sentence dated 12.05.2015 passed by 6th Additional Sessions Judge, Surat in Session Case No. 2 of 2010, wherein and whereby, the appellants i.e. the accused No. 1 and accused No. 2 are convicted for the offences punishable under Sections 302 and, 120(B) of the Indian Penal Code, 1860 (hereinafter referred as “the IPC” for short) and sentenced for rigorous imprisonment for life and a fine of Rs.15,000/- each and in default of payment of fine, simple imprisonment for one year is imposed. In addition to the aforesaid sentence, the accused No. 1 is convicted for the offence under Section 452 of the IPC and sentenced to undergo one year rigorous imprisonment and a fine of Rs.2,000/- and in default of payment of fine, simple imprisonment of one month is imposed. The accused No. 1 is also convicted for the offence punishable under Section 25(1)-B of the Arms Act, 1959 and sentenced him to undergo three years rigorous imprisonment and a fine of Rs.2,000/- and in default of the payment of fine, simple imprisonment of one month is imposed. All the aforesaid sentences are ordered to be served concurrently. CASE OF THE PROSECUTION: 2. The case of the prosecution in short as per charge (Exh.7) and the complaint (Exh.77) registered by father of the deceased (the complainant - PW-13) is that the accused No. 2 - Prafulbhai Virchandbhai Shah and the complainant (PW-13) - Bipinchandra Maganlal Shah were the partners in a firm viz. Chetan Cars Private Limited, which was dealing in the business of four wheeler accessories. As per the case of the prosecution, the dispute arose between the partners and hence, the firm was dissolved on 01.09.2004 and it was mutually agreed at that time that the accused No. 2 shall pay to the complainant (PW-13), an amount of Rs.12,00,000/- and Rs.2,00,000/- against the delayed payment and hence, the appellant - accused No. 2 was to pay Rs.14,00,000/- to the complainant (PW-13), out of which, the appellant-accused No. 2 paid Rs.6,00,000/- in installments as agreed. 3. 3. It is further alleged that the accused No. 2 since did not want to pay the remaining amount, despite the repeated demands, hence, he had engaged the accused No. 1 - Farukh Hussain Habibbhai Shaikh and entrusted him the task of killing the deceased - Gautambhai Shah, who was son of the complainant (PW-13) and accordingly, they hatched a conspiracy and the accused No. 1 - Farukh Hussain Habibbhai Shaikh killed the deceased by shooting him on 18.10.2009 at 10:00 a.m. while the deceased was in his shop viz., Chetan Motors, which was situated at Sagrampura, Kailashnagar, White House, Surat. It is further alleged that the accused No. 1, while firing on the deceased uttered the words, “why are you extorting (ughrani) money from my employer (sheth) Prafulbhai?” 4. Thereafter, the complainant (PW-13), father of the deceased i.e. Bipinchandra Managanlal Shah lodged a complaint at Athwalines Police Station on 18.10.2009 being C.R. No. I-190/2009 for the offences punishable under Sections 302, 452, 120-B, 188 and 114 of the IPC and under Section 25(1)(B) of the Arms Act against the accused No. 1 and one another i.e. Praffulbhai Virchandbhai Shah. On conclusion of the investigation, the Investigation Officer filed charge-sheet before 3rd Additional Senior Civil Judge and J.M.F.C. Surat and it was numbered as Criminal Case No. 28936 of 2009 and as the offence was triable by the Sessions Court, the case was registered as Sessions Case No. 2 of 2010. 5. The accused were charged as per Exh.7 for the offences, as mentioned hereinabove, their plea was recorded below Exh.8 and Exh.9. The Trial Court, after examining the oral evidences of 42 witnesses and also placing reliance on the documentary evidences, convicted the accused and sentenced them vide judgment and order dated 12.05.2015, as narrated hereinabove. SUBMISSIONS ON BEHALF OF ACCUSED NO. 2: 6. Learned advocate Ms.Kruti M. Shah, appearing for the appellant (accused No. 2) - Prafulbhai Virchandbhai Shah, while placing reliance on the deposition of the eye-witness (PW-15) - Shri Nirav Dipakbhai Patel, who was the employee of the deceased in Chetan Motors, has submitted that in fact, the accused has stated that he had heard the accused No. 1 while firing on the deceased that why he is demanding money from his or the master - Prafulbhai i.e. the accused No. 2. It is narrated by PW-15 that while uttering these words, he had shot the deceased. 7. Learned advocate Ms.Shah, has submitted that the accused No. 2 is arraigned in the offence only on the statement of PW-15. She has submitted that there is no evidence emerging from the record that the accused No. 2 was in fact, demanding money from the deceased and there was an outstanding amount of Rs.10,00,000/- which was required to be paid by the accused no. 2. While referring to the deposition of the eye-witness (PW-15), she has submitted that in fact in his cross-examination, he has admitted that he does not know that there was some dispute going-on between the deceased and the accused No. 2. She has further submitted that in fact, it is elicited from the statement of the eye-witness (PW-15) that he is not aware about the name of the employer of the accused No. 2. Learned advocate Ms.Shah, has further referred to the deposition of the complainant (PW-13) and has submitted that in fact, the complainant (PW-13) has admitted in his cross-examination that there was no dispute going-on between the accused No. 2 and the deceased. She has further submitted that in fact, he had admitted that there was no outstanding amount remaining to be paid by the accused No. 2 to the deceased and further, there was no agreement and no Income Tax Return as well as any statement of accounts, which show that there was an outstanding amount to be paid by the accused No. 2 to the deceased. On the contrary, she has submitted that the complainant has admitted that the accused No. 2 had paid anamount of Rs.14,00,000/- to 15,00,000/- by cheques, after the firm was dissolved. Thus, she has submitted that even the evidence of the complainant does not reveal that there was dispute going-on between the deceased and the accused No. 2 with regard to any outstanding amount, after dissolution of firm on 01.09.2004. She has submitted that on the contrary, both the deceased and the accused No. 2 were undertaking the necessary business transactions and hence, it cannot be said that there was any motive of murdering the deceased by the accused No. 2 for the reason that the accused No. 2 did not want to pay the amount, as mentioned in the charge as well as in the complaint. 8. 8. While referring to the deposition of the Investigating Officer (PW-41) at Exh.173, she has submitted that in fact, he has deposed that there was no evidence found linking the accused No. 1 to the accused No. 2 as there were no call details between both the accused, and no transactions of money are found. 9. Learned advocate Ms. Shah, has further submitted that the Trial Court has erred in convicting the accused No. 2 for the offences punishable under Section 302 read with Section 120-B of the IPC, since the Investigating Officer has not found that there was any conspiracy between the accused No. 1 and the accused No. 2 and there is no evidence, which suggests that the conspiracy was hatched by both the accused to commit the murder of the deceased in view of the money dispute. 10. It is further submitted that only because of the alleged utterances, as narrated by the eye-witness (PW-15) naming some - Prafulbhai, it cannot be said that it was the accused No. 2, who was the employer of accused No. 1 since the evidence does not in any manner reveal that the accused No. 2 i.e. the appellant is the employer of accused No. 1 in absence of any such evidence establishing the relationship between the accused No. 1 and the accused No. 2 of the employer and employee, it cannot be said that in fact, the eye-witness (PW-15) was specifically naming the accused No. 2, who was the employer of the accused No. 1. She has submitted that the Trial Court ought to have appreciated that the complainant (PW-13), in fact has admitted that there was cordial relationship between the accused No. 2 and the complainant. It is further submitted that in the complaint, which is filed by PW-13 at Exh.77, does not refer the accused No. 2 - Prafulbhai as the employer or master of the accused No. 1, who shot the deceased. 11. Learned advocate Ms.Shah, has further submitted that there is no evidence emerging from the investigation about the payment of Rs.2,00,000/- to the accused No. 1 by the accused No. 2 for murdering the deceased since neither the call records nor any evidence is established from the investigation that in fact, the accused No. 2 had paid or had contacted the accused No. 1 to murder the deceased by paying an amount of Rs.2,00,000/-. 12. 12. Learned advocate Ms.Shah, has further submitted that the call records though produced do not in any manner show that even a single call has been made between the accused No. 2 and the deceased-Gautambhai Shah and there is no evidence to show that any witness has seen the deceased along with the accused No. 2 and hence, it cannot be believed that the accused No. 2 has given threat or has contacted the accused No. 1 to kill the deceased. Thus, it is submitted that the prosecution has miserably failed in establishing the motive of contacting the accused No. 1 to commit the murder of the deceased in view of some money dispute. She has further submitted that the prosecution case is premised only on the circumstantial evidence, so far as the accused No. 2 is concerned and in absence of any motive having been proven by the prosecution, the accused No. 2 cannot be convicted in a serious offence of murder on such evidence, which does not inspire any confidence. 13. Learned advocate Ms.Shah, has submitted that the Trial Court has also placed reliance on the evidence of one- Arvindbhai Nandlal Shah (PW-17), who is examined at Exh.102, Pratishbhai Hasmukbhai Kothari, (PW-18), who is examined at Exh.105 and Rajesh Virajlal Sheth (PW-23) who is examined at Exh.117 to prove the motive by placing reliance on their evidence that there was some enmity between the deceased and the accused No. 2 with regard to transactions of money, however she has submitted that even if their evidence with regard to the dispute of money is believed, then also, the prosecution has not established the link between the accused No. 1 and the accused No. 2 of contacting him in any manner or paying the money for killing the deceased and hence, such evidence could not have been placed reliance by the Trial Court in convicting the accused. It is thus submitted that the entire case of the prosecution is premised on two circumstances, however such circumstances not admissible as the prosecution is unable to prove any conspiracy being hatched by the accused No. 2, as there is no complete chain of circumstances established by leading cogent evidence and hence, the appellant - accused No. 2 cannot be convicted and the Trial Court has fallen in error by placing reliance on such evidence, which does not establish the complete chain of circumstances against the accused No. 2 in commission of offence. Thus, she has submitted that the impugned judgment and order of conviction may be set aside. SUBMISSIONS ON BEHLAF OF ACCUSED NO. 1: 14. Learned advocate Mr.Popat, appearing for the accused No. 1 has submitted that the Trial Court has misdirected itself in convicting the accused on the foundation of the deposition on the evidence of eye-witness (PW-15). While referring to the evidence of PW-15 at Exh.92, he has submitted that in fact, the accused No. 1 was known to him. Learned advocate Mr.Popat, has referred his examination-in-chief and has submitted that he has named the accused No. 1 that he used to visit the workshop where the accessories of the four wheelers were being fitted. 15. Learned advocate Mr.Popat, has submitted that the eye-witness (PW-15) has specifically stated that he has seen the accused No. 1 firing from the revolver, however the deposition of the Investigating Officer as well as the FSL report reveals that the bullet was fired from a pistol, which houses a magazine hence, it is submitted that there is a major contradiction relating to the use of weapon i.e. whether it was a revolver or the pistol. It is submitted that in the examination-in-chief, the eye witness (PW-15) has not named the accused No. 1 but has referred to one person, who had fired from his revolver on the deceased, however in the cross-examination, it is submitted by Mr.Popat that he has referred to the accused No. 1 by his name. Thus, it is submitted that the Test Identification (TI) Parade as well as identification of the accused by the eye-witness (PW-15) is an afterthought since his evidence reveals that the accused No. 1 used to work in the firm of the complainant i.e. PW-13 and time and again, he used to come to get his work done. Thus, it is submitted that the Test Identification (TI) Parade as well as identification of the accused by the eye-witness (PW-15) is an afterthought since his evidence reveals that the accused No. 1 used to work in the firm of the complainant i.e. PW-13 and time and again, he used to come to get his work done. Similarly, learned advocate Mr.Popat, has referred to the evidence of PW-27 (Exh.125), who is the brother of the deceased, who has admitted that the accused No. 1 used to visit for some work at the shop. 16. While referring to the evidence of PW-13 (Exh.76), who is the complainant, learned advocate Mr.Popat, has submitted that as per his complaint and his deposition, he had given a complaint at Sagrampura Police Station between 12:00 to 12.50 and at that time, the accused No. 1 was present with him, whereas PW-14 in his evidence (Exh.86), who is the Police Officer, who apprehended the accused No. 1 and he was taken to him at Athwa Police Station. It is thus submitted that there is a major contradiction between the depositions of the complainant with the evidence of PW-14 as the presence of accused No. 1, is shown at Sagrampura Police Chowki, whereas PW-14, who had apprehended the accused No. 1 and his presence is shown at the Athwa Police Station. While referring to the deposition of PW-14 (Exh.86) the Police Officer, who apprehended the accused No. 1 and recovered the pistol and cartridge, he has submitted that accused No. 1 was apprehended on the very same day after few minutes of the incident and hence, his arrest can be said to be doubtful. Learned advocate Mr.Popat, has submitted that recovery of pistol as well as the cartridge from the accused No. 1 on 18.10.2019 cannot be said to be discovery as the same does not satisfy the ingredient of Section 27 of the Evidence Act. It is submitted by him that there is a major contradiction in the deposition of PW-14, as it is admitted by him that after the accused No. 1 was apprehended, he was brought in a rickshaw, whereas in the examination-in-chief, he has referred that he brought the accused No. 1 to Athwa Police Station in a private vehicle. It is submitted that the entire evidence of PW-14 is tainted. It is submitted that the entire evidence of PW-14 is tainted. Learned advocate Mr.Popat, while referring to his evidence, has submitted that the same does not corroborate with the evidence of the Investigation Officer (PW-14) and hence, such evidence cannot be placed reliance for convicting the accused No. 1 for the offence. 17. Learned advocate Mr.Popat, while referring to the FSL report at Exh.180, has submitted that the clothes of the accused No. 1 does not show any presence of nitrate and hence, it is doubtful that the accused No. 1 had used the firearm. It is submitted that the evidence of Investigating Officer (PW-41) and the Police Officer (PW-14) reveal that the accused has tucked the gun inside the pants and in absence of the nitrate recovered from the clothes of the accused No. 1 he cannot be implicated in the offence of murder. 18. Learned advocate Mr.Popat, has further submitted that non-examination of the material witnesses, who were present at the scene of offence, would be fatal for the prosecution. It is submitted that the prosecution has placed reliance on the eye-witness (PW-15) and the other witnesses, who were concerned with the deceased and since the incident has occurred in a public view and it is a specific case of the prosecution that the accused No. 1, after the alleged shooting had ran away by threatening the members of the public, who tried to apprehending, in absence of such examination of witnesses, the accused No. 1 cannot be convicted and hence, it is submitted that the Trial Court has fallen in error in recording the conviction of the accused No. 1. 19. Learned advocate Mr.Popat, has finally submitted that the prosecution is unable to establish the motive of crime and in order to implicate the accused No. 1 in such a serious offence, and the evidence should have been of a sterling quality. It is submitted that the case of the prosecution is that the accused No. 1 had come on a motorcycle and after opening fire on the deceased, he tried to flee away on his motorcycle but he left the motorcycle at the place of incident. It is submitted that PW-17, who is the owner of the motorcycle in his deposition at Exh.109 has deposed that the motorcycle was stolen and accordingly, he has registered an F.I.R. on 14.09.2009. It is submitted that PW-17, who is the owner of the motorcycle in his deposition at Exh.109 has deposed that the motorcycle was stolen and accordingly, he has registered an F.I.R. on 14.09.2009. It is also submitted that thereafter, the accused No. 1 was also arraigned as an accused in the theft of the motorcycle, however subsequently, the accused No. 1 has been acquitted for the aforesaid theft of bike in the year 2012. Thus, it is submitted that the prosecution has tried to create a circumstance against the accused No. 1. SUBMISSIONS OF THE STATE: 20. In response to the aforesaid submissions, learned Additional Public Prosecutor Mr.Ronak Raval, has submitted that the impugned order of conviction and sentence does not require any interference since the same is precisely passed after examination of ocular as well as documentary evidences by the Trial Court. Learned Additional Public Prosecutor has submitted that PW-15, who is the eye-witness of the entire incident, has categorically described the incident while implicating the accused No. 1 in the offence. It is submitted by him that PW-15, who had seen the accused No. 1 firing from a pistol on the deceased, has also named accused no. 2. It is submitted that the evidence of PW-15 is of a sterling quality and he implicates both the accused in the offence. Learned Additional Public Prosecutor has submitted that the evidence of PW-15 reveals that while shooting the deceased with the firearm, he has specifically uttered about harassment of demanding money from his employer - Prafulbhai. It is submitted that the evidences of PW-17, PW-18 and PW-23 as well as PW-25 reveal that there was some dispute going on between the deceased and the accused No. 2 with regard to some outstanding amount, which was to be paid by the accused No. 2 to the deceased after dissolution of the partnership firm. Learned Additional Public Prosecutor, while referring to the deposition of the Investigating Officer (PW-41) has submitted that the investigation has revealed that in fact, after the dissolution of the partnership firm, the accused No. 2 was agitated with the demand of extra money, hence, he had contacted the accused No. 1 to commit the offence. 21. Learned Additional Public Prosecutor, while referring to the deposition of the Investigating Officer (PW-41) has submitted that the investigation has revealed that in fact, after the dissolution of the partnership firm, the accused No. 2 was agitated with the demand of extra money, hence, he had contacted the accused No. 1 to commit the offence. 21. Learned Additional Public Prosecutor, while referring to the Serological Report of the Forensic Laboratory (Exh.179) has submitted that the blood of the deceased was found from the clothes of the accused No. 1 as both the blood samples reveal that the deceased was having the blood group “O” which has been recovered from the pant of the accused No. 1. Learned Additional Public Prosecutor has further submitted that when such a specific question was put to the accused No. 1, while recording his statement under Section 313 of the Cr.P.C. he did not tender any explanation and hence, it is submitted that in absence of any explanation, the Trial Court has appropriately recorded the conviction of the accused No. 1. 22. Learned Additional Public Prosecutor has submitted that the postmortem report (PM report) as well as the evidence of PW-4 - Doctor at Exh.46 reveals that death of the deceased has occurred due to an injury of bullet, which was recovered from the dead-body of the deceased. While referring to the FSL report at Exh.180, it is submitted by the learned APP that the FSL report specifically narrates and establishes that the bullet bares same barrel marks of the pistol, which was used by the accused No. 1. While referring to the sample/mark “B” as well as sample/mark “J” learned APP has submitted that the FSL report establishes the fact that the firearm, which was used by the accused No. 1 in committing the crime was a pistol and the identical marks have been found from the cartridge, which was recovered from the body of the deceased and with the examination undertaken by the FSL of the barrel of the pistol, which was used in committing the offence. 23. 23. Learned Additional Public Prosecutor has submitted that merely because though no nitrate and lead has been found from the clothes of the accused No. 1, hence it cannot be said that the bullet, which was not fired from the same pistol, which was recovered from the accused, when he was apprehended by the Police Officer (PW-14). 24. Learned Additional Public Prosecutor has also referred to the deposition of the Investigating Officer and has submitted that in his deposition, he has specifically referred that the weapon, which was used for committing the offence, was a pistol and merely because the questions have been asked in his cross-examination with regard to the revolver and the Investigating Officer has accordingly answered the same, the same cannot in any manner dent the deposition of the Investigating Officer with regard to the usage of the pistol in the offence. Thus, it is submitted that the evidence reveals that the accused no. 2 had engaged the accused No. 1 for committing the crime of murdering the deceased and hence, the Trial Court has precisely recorded the conviction of both the accused in the offence. Hence, it is urged that the order of conviction and sentence passed by the Trial court may not be disturbed. ANALYSIS OF EVIDENCE (A) COMPLICITY OF ACCUSED NO. 1 IN THE OFFENCE: 25. We have perused the evidences - both ocular as well as the documentary, which are available on record and have also gone through the paper-books, which are supplied to this Court. 26. The case of the prosecution, as mentioned hereinabove, as per the charge (Exh.7) and the complaint (Exh.77) lodged by the complainant - father of the deceased (PW-13) is that on 18.10.2009 at 10:00 a.m. the accused No. 1 shot dead the deceased by opening fire from a pistol and fled away from the scene of the offence. It is the case of the prosecution that due to some financial dispute between the accused No. 2 with the deceased, the accused No. 2 had engaged the accused No. 1 to commit murder of the deceased on the payment of Rs.2,00,000/-. 27. We may first examine the complicity of the accused No. 1 in the offence. 28. It is the case of the prosecution that due to some financial dispute between the accused No. 2 with the deceased, the accused No. 2 had engaged the accused No. 1 to commit murder of the deceased on the payment of Rs.2,00,000/-. 27. We may first examine the complicity of the accused No. 1 in the offence. 28. The prosecution, in order to establish the charges against the accused No. 1 as well as the accused No. 2, has primarily placed reliance on their star-witness PW-15, who is the eye-witness of the incident. He was an employee of the deceased and PW-15, the complainant. His evidence at Exh.92, if closely read, establishes that he has seen the accused No. 1 firing on the deceased while he was present in his shop on 18.10.2009 at around 10:00 a.m. In his deposition, he reveals that he had seen the firing done by the accused No. 1 through his “revolver” and while he was fleeing, there were some persons, who have gathered and while leaving his motorcycle at the scene of offence by threatening such persons, he fled away. In the cross-examination, it is elicited from PW-15 that he had seen the accused No. 1 on the day of the incident and he did not have any occasion to see him. It is further elicited from him that at the time of shooting by the accused No. 1 the deceased had immediately got up from his chair and in order to save himself, he had turned sideways and hence, the bullet had hit him in the left side of the shoulder. In his cross-examination done by the accused No. 1, it is elicited that at the time of firing on the deceased, he was six to seven feet away and accordingly, after such firing, he immediately raised hue and cry and other persons, who were present on the outside of the shopping centre also started shouting. Thus, the evidence of PW-15, who is the eye-witness specifically, establishes the fact that the accused No. 1 had open fired on the deceased and he ran away from the scene of offence. We have not found any major contradiction or omission, which would in any manner blemish of the deposition of the eye-witness (PW-15), who was present at the scene of offence on the unfateful day of 18.10.2009. We have not found any major contradiction or omission, which would in any manner blemish of the deposition of the eye-witness (PW-15), who was present at the scene of offence on the unfateful day of 18.10.2009. Merely because, this witness has referred the firearm as “revolver” the same will not blemish his testimony. The witness is not an expert in firearm. Hence, the complicity of the accused No. 1 in the offence is established beyond reasonable doubt. Thus the Trial Court cannot be said to be fallen in error in convicting the accused No. 1 for the offence of murder. 29. The Test Identification Parade was also undertaken after three days and as per his deposition, the eye-witness (PW-15) has identified the accused No. 1 as Farukh Hussain Habibbhai Shaikh in the Court also. The veracity of Test Identification Parade is not questioned, however it is the case of the accused No. 1 that he was known to the PW-15 as he used to time and again visit the office of the deceased as well as the complainant in relation to their business. PW-27, who is the brother of the deceased, in his deposition at Exh.125 has stated that the accused no. 1 was not in touch with PW-15, Nirav since he was only employed before 4 to 6 months. He has also deposed that accused no. 1 used to visit their shop as and when any work was to be undertaken from R.D. Oversees as he was working there. 30. The accused no. 1 has also raised suspicion about his arrest and has contended that the evidence of the complainant and the I.O. PW-41 read with PW-14 does not reconcile with each other and casts doubt about his presence. It is the case of the accused No. 2 that the complainant (PW-13) has said in his deposition that at the time of his registering the complaint at 12 to 12:50 the accused No. 1 was present at Sagrampura Police Chowki. It is contended that in fact after he was apprehended by PW-14, he was taken to the Athwa Police Station and hence, it cannot be said that the accused was present in both the places. We have examined the deposition of the complainant (PW-13) and the Police Officer (PW-14), who apprehended the accused No. 2 as well as the investigating Officer (PW-41). We have examined the deposition of the complainant (PW-13) and the Police Officer (PW-14), who apprehended the accused No. 2 as well as the investigating Officer (PW-41). The complainant (PW-13) at Exh.76 has in fact in his cross-examination deposed that “when the complaint was given by him at that time, the accused was at the police station, my statement was not recorded in presence of the accused. He did not meet the accused before the registration of the complaint. He had given the complaint at Navsari Market Police Chowki. He has remained for one and half hours at the police station.” Further in his cross-examination, he has specifically stated that he had not gone to Athwa Police Station for lodging the complaint. Thus, the evidence of PW-13 does not reveal that the accused No. 2 was present at Sagrampura Police Chowki, where he has lodged the complaint. The Investigating Officer (PW-41) in his deposition at Exh.173 has clarified in his cross-examination that the distance between the place of incident and Sagrampura Police Chowki is two to three minutes by car, whereas the distance is of five to seven minutes from Athwa Police Station. It is also narrated by him that the complainant was present at Sagrampura Police Chowki and accordingly, he went to the Sagrampura Police Chowki. It is further deposed by him that he has received a call from PW- 14, Kirtipalsingh Harishchandra Pawar, after he was apprehended by him and accordingly, a Pachnama was undertaken by him and the weapon as well as cartridges were recovered. Thus, his deposition gets collaborated by the deposition of PW-14, who has narrated that after he apprehended the accused No. 2, he immediately called the Investigating Officer. Thus, there is no discrepancy found in the versions of the PWs relating to the presence of accused No. 2, who was brought to Athwa Police Station after he was apprehended and the complainant having been present at Sagrampura Police Chowki, when he lodged the complaint. 31. The defence of accused No. 1 has also raised question with regard to the weapon or firearm used in committing offence by raising the doubt as to whether the same was a pistol or a revolver. An attempt is made to discredit the recovery of pistol from the accused No. 1. 32. 31. The defence of accused No. 1 has also raised question with regard to the weapon or firearm used in committing offence by raising the doubt as to whether the same was a pistol or a revolver. An attempt is made to discredit the recovery of pistol from the accused No. 1. 32. It is submitted that PW-15, who is an eye-witness in his deposition has referred the firearm as a revolver and the Investigating Officer in his deposition has also referred the same as revolver, whereas PW-14 in his evidence at Exh.86, who apprehended the accused no. 1 and recovered the pistol and cartridge, one of them was a empty shell of the bullet. Thus, it is the case of the accused No. 1 that the prosecution has not explicitly established the exact category of firearm, whether the bullet was fired from a pistol or a revolver. 33. In order to satisfy the aforesaid submissions, it would be apposite to refer to the deposition of PW-14 the Police Officer. In his evidence at Exh.86 PW-14 has specifically narrated that the accused No. 1 was apprehended by him on the very same day from Majura Gate Crossroads, after he received a secret information. He has narrated that on receiving such information, he immediately rushed to Kaillashnagar Majura Gate, Crossroads and after a scuffle, he apprehended the accused No. 1 with the pistol with a plastic bag, which contained magazine of six cartridges. It is narrated by him that there was one empty shell of cartridge and 10 live cartridges in the plastic pouch and accordingly, he was taken to Athwa Police Station. In his cross-examination, it is elicited from the said witness that he had recovered the pistol from the accused No. 1 and accordingly, he had taken the accused No. 1 in a rickshaw to the police station and thereafter, they reached the police station and he received a call from the police inspector and accordingly, he informed the Police Inspector i.e. the Investigating Officer (PW-41) about the custody of the accused No. 1. In the cross-examination, it is deposed by him that he had apprehended the accused from the crossroads near the bridge after some scuffle with him and accordingly, he had brought the accused in a rickshaw to the Athwa Police Station and at 14:30 hours, he presented the pistol along with the magazine as well as the cartridges recovered from the accused No. 1. There is a minor inconsistency in the deposition of this witness relating to the vehicle in which, the accused No. 1 was brought by him after he was apprehended to Athwa Police Station. In the examination-in-chief, PW-14 has referred that the accused was brought in a private vehicle, whereas in the cross-examination done by the accused no. 1, it is elicited twice from him that he brought the accused no. 1 in the rickshaw. Except minor inconsistency, there is nothing to dent the overall testimony of PW-14, who had apprehended the accused No. 1 with the firearm. The evidence of PW-14 establishes that the firearm, which was recovered from the accused No. 1 was a pistol, which houses the magazine and his evidence does not reveal that there was a revolver recovered from the accused No. 1. 34. We have noticed that the trial Court has incorrectly referred the firearm/weapon as revolver in paragraph Nos. 60 and 61 of the judgment. 35. It would be apposite to refer to the deposition of the Investigating Officer (PW-41), who in his deposition at Exh.173, has specifically referred the muddamal article of firearm as a ’pistol’ and has identified the same. It is the case of the accused No. 1 that in his cross-examination, the Investigation Officer has referred the firearm as a revolver. The close reading of the cross-examination and the questions put to the Investigating Officer reveals that in fact, the Investigating Officer has not admitted the weapon as a revolver as the question put therein was relating to revolver not to pistol. Thus, the deposition of the Investigation Officer does not suggest that he has referred the weapon as revolver instead of pistol. 36. It is also contended by accused no. Thus, the deposition of the Investigation Officer does not suggest that he has referred the weapon as revolver instead of pistol. 36. It is also contended by accused no. 1 that the doctor (PW-4), who has performed the postmortem (PM) of the deceased has referred that the bullet could have been fired from the pistol/revolver/rifle and hence, it cannot be said that the firearm was in fact the pistol, which was seized from the accused No. 1. Such a contention does not merit acceptance since the deposition of PW-4 at Exh.46 specifically refers to the pistol/revolver/rifle and a like weapon. The doctor is not supposed to be an expert in firearms/weapons and hence, such mentioning or enumerating of the firearm by the doctor in his deposition cannot come to the rescue of the accused No. 1. 37. The PW-4, Dr. Pankajkumar Gandabhai Prajapati, in his evidence at Exh.46 has asserted that the bullet was recovered from the body of the deceased. His deposition also reveals that the bullet had entered in the chest and thereafter, it had travelled deep into the body penetrating the lungs of the deceased as well as his heart. The aforesaid bullet was sent to the FSL along with the pistol, which was recovered from the accused No. 1. 38. Item No. 3 of the Dispatch Note Exh.176 refers the pistol (Mark-B) and note therein refers that the muddamal i.e. the pistol is recovered from the accused No. 1 at Majura Gate, Four Crossroads by Police Officer, Shri Kirtipalsingh Harishchandra Pawar i.e. PW-14. Item No. 7 refers to the black shirt as well as jeans pants (Mark-F) and Item No. 12 (mark-J) refers to the bullet recovered from the deceased. 39. The Serological Report at Exh.179 opines that the traces of the blood group “O” were found from the pant of the accused No. 1. The blood group of the deceased was ascertained as the blood group “O” whereas the blood group of the accused No. 1 has been found as blood group “A.” Thus, the Serological Report establishes that the blood group “O” was found from the pant of the accused No. 1, which matches the blood group of the deceased. The blood group of the deceased was ascertained as the blood group “O” whereas the blood group of the accused No. 1 has been found as blood group “A.” Thus, the Serological Report establishes that the blood group “O” was found from the pant of the accused No. 1, which matches the blood group of the deceased. It is the case of the accused No. 1 that since there was some scuffle between him and PW- 14, Police Officer, in all probabilities from the blood which was found on the pant belongs to PW-14 and since no blood sample from PW-14 has been collected, such a piece of evidence cannot be placed reliance for conviction. Such a submission does not merit acceptance since a specific question was asked to the accused in this regard, while recording the statement under Section 313 of the Cr.P.C. and the accused No. 1 has not tendered any explanation of the blood of the deceased having been found on his pants. In absence of any explanation tendered by the accused No. 1 an adverse inference is required to be drawn against him, and he cannot be allowed to take any benefit of scuffle between him and PW-14, while he was apprehended. 40. The FSL report, relating to the sample/mark “B” i.e. the pistol as well as sample/mark “J” the bullet unequivocally signify that the bullet, which was found from the dead body of the deceased, was having the identical marks of the barrel of the pistol, which was recovered from the accused No. 1. The same FSL report refers that no nitrate and lead was found from the clothes of the deceased, however mere absence of nitrate and led from the clothes of the deceased cannot dilute the evidence as mentioned hereinabove. 41. Thus, the overall evidence of the eye-witness (PW-15) as well as the forensic evidence establishing the fact of the blood of the deceased having been found on the clothes of the accused No. 1 coupled with the fact that the bullet, which was found from the dead body of the deceased was fired from the pistol, which was recovered from the accused, in the considered opinion of this Court, we find that the charges against the accused no. 1 firmly stand proved. Hence, we do not find any reason to interfere with the conviction recorded by the Trial Court. 1 firmly stand proved. Hence, we do not find any reason to interfere with the conviction recorded by the Trial Court. (B) COMPLICITY OF ACCUSED NO. 2 IN THE OFFENCE: 42. Now we shall delve into the aspect of the complicity of the accused No. 2 in the offence. 43. The accused No. 2 has been arraigned in the offence only on the statement of PW-15, who is the eye-witness. He has stated that while the accused No. 1 fired shot on the deceased, he uttered that “why you are extorting (ughrani) money from my employer (sheth) Prafulbhai?” The complainant (PW-13) in his complaint at Exh.77 has stated that there was some outstanding amount, which was required to be recovered from the accused No. 2 - Prafulbhai Virchandbhai Shah. It is the case of the complainant that in order to avoid such payment, the accused No. 2 contacted accused No. 1 to murder his son - the deceased. As per the case of the prosecution, the dispute arose between the partners of the partnership firm viz. Chetan Cars Private Limited, which was dissolved on 01.09.2004. It is the case of the prosecution that it was agreed upon by the accused No. 2 to pay an amount of Rs.12,00,000/- and Rs.2,00,000/- against the delayed payment and hence, the accused No. 2 was required to pay an amount of Rs.14,00,000/- to the complainant (PW-13), out of which, the accused No. 2 paid Rs.6,00,000/- in installments as agreed. It is further alleged by the complainant that since the accused No. 2 did not want to pay the amount, the entire conspiracy has been hatched by him and the accused No. 1 has engaged to murder his son. The Trial Court, after examining the evidence has convicted the accused No. 2 and the accused No. 1 with the aid of Section 120(B) of the IPC. 44. In order to appreciate the factum of any dispute with regard to the money, as mentioned hereinabove, it would be apposite to refer to the evidence of the complainant (PW-13) at Exh.76. The complainant has admitted that there was a partnership firm between the accused No. 2 and him and his son, which was dissolved on 01.04.2009 and he has further deposed in his examination-in-chief with regard to the outstanding amount of Rs.12,00,000/- which was required to be paid by the accused No. 2. The complainant has admitted that there was a partnership firm between the accused No. 2 and him and his son, which was dissolved on 01.04.2009 and he has further deposed in his examination-in-chief with regard to the outstanding amount of Rs.12,00,000/- which was required to be paid by the accused No. 2. It is deposed by him that out of Rs.12,00,000/- the accused no. 2 had paid an amount of Rs.6,00,000/- however an amount of Rs.6,00,000/- along with Rs.2,00,000/- remained to be paid by accused no. 2. In his cross-examination, it is elicited from him that he has no evidence with regard to the outstanding amount of Rs.12,00,000/- which was required to be paid by the accused No. 2. He has further deposed that neither he has shown the amount in the Income Tax nor he has referred it to the accountant or he is entered any agreement in this regard with the accused No. 2. It is also admitted by him that the accused No. 2 had paid an amount of Rs.14,00,000/- to Rs.15,00,000/- by way of cheques. He has referred to the deposition of one Arvindbhai Nandlal Shah (PW-17), wherein he has submitted that he heard from him that there was some financial dispute going-on between the accused No. 2 and his son, however the same turns out to be an omission as he had not named the accused No. 2 in his complaint. From his deposition, it is further established that the accused No. 1, who was an employee of some B.K. Motors had demanded more money from them and since they refused, he had joined Jolly Motors. From the deposition, it is manifest that the accused No. 1 was employed with their firm, which was dealing in accessories. B.K. Motors, Proprietorship was in the name of his son Amish and the accused No. 1 used to work in B.K. Motors, however he left the same and joined the R.D. Overseas before the incident. With regard to the outstanding amount, his deposition suffers from major omission. He has also referred to the deposition of one Satishkumar Jajivandas Parmar (PW-42), who has also referred to some financial dispute between the accused No. 2 and the deceased. Thus, the version of the complainant about money dispute with the accused no. With regard to the outstanding amount, his deposition suffers from major omission. He has also referred to the deposition of one Satishkumar Jajivandas Parmar (PW-42), who has also referred to some financial dispute between the accused No. 2 and the deceased. Thus, the version of the complainant about money dispute with the accused no. 2 and the deceased is hearsay and the prosecution is unable to establish any concrete evidence with regard to the outstanding amount with the accused No. 2. 45. In this regard, we may also refer to the deposition of the Investigating Officer (PW-41) at Exh.173 in his cross- examination, the Investigating Officer has categorically admitted that the only circumstance before him for arraigning the accused No. 2 in the offence was the statement made by the eye-witness (PW-15) naming Prafulbhai. He has further admitted that except that there is nothing revealed in the investigation and he has not found any material to connect the accused No. 1 with the accused No. 2. He has further admitted that the investigation does not reveal that the accused No. 1 was working with the accused No. 2 or the accused No. 2, who was the employer of the accused No. 1. He has further admitted that he did not verify as to whether the accused No. 1 in fact had named the accused No. 2 and there are many persons having the name of Prafulbhai. He has further admitted that he has not found any evidence pointing out that the accused No. 2 is the employer of the accused No. 1. He has also admitted that the accused No. 1 was the employee of R.D. Overseas Company at the time of incident and prior to that, he was an employee of B.K. Motors as well as he had worked at Jolly Motors. He has admitted that thus it was found that the accused No. 1 had worked in three companies. It is further deposed by the Investigating Officer that he has not recorded the statements of any persons of R.D. Overseas and Jolly Motors. It is also admitted by him that the accused No. 2 is only arraigned in the statement made by the eye-witness naming one Prafulbhai. 46. The Investigating Officer further deposed that his investigation does reveal that the accused No. 2 had threatened the deceased with regard to the financial transactions. It is also admitted by him that the accused No. 2 is only arraigned in the statement made by the eye-witness naming one Prafulbhai. 46. The Investigating Officer further deposed that his investigation does reveal that the accused No. 2 had threatened the deceased with regard to the financial transactions. The Investigating Officer has also admitted that he procured the call details of the accused No. 1 and accused No. 2 and from the call details do not reveal that there was any contact or conversation between them. It is also admitted by him that his investigation does not reveal that both the accused No. 1 and accused No. 2 had gathered at a place and had hatched a conspiracy. He has further deposed that he has not investigated as to whether the accused No. 2 and the deceased had any conversation between them. Finally, it is admitted by the Investigating Officer that his investigation does not in any manner reveal about the transaction of money between the accused Nos.1 and 2. 47. Thus, the evidence of both the complainant and the Investigating Officer reveals that there was no contact between the accused No. 1 and the accused No. 2 and there is no evidence of hatching of conspiracy of murdering the deceased due to financial dispute with the deceased. There is no evidence surfacing on record showing that the accused No. 2 had in any manner contacted the accused No. 1. There is no evidence of outstanding amount to be paid by the accused No. 2 to the deceased or to the complainant. There is also no evidence suggesting that such an amount remained outstanding after the partnership firm was dissolved. On the contrary the complainant has admitted that after the partnership firm was dissolved the accused No. 2 had paid an amount of Rs.14,00,000/- to Rs.15,00,000/- to him through cheques. The call details do not indicate any contact between the accused No. 1 and the accused No. 2. On the contrary the complainant has admitted that after the partnership firm was dissolved the accused No. 2 had paid an amount of Rs.14,00,000/- to Rs.15,00,000/- to him through cheques. The call details do not indicate any contact between the accused No. 1 and the accused No. 2. The prosecution has placed reliance on the evidences of PW-17 at Exh.102, PW-18 at Exh.105, PW-23 at Exh.117, PW-25 at Exh.122, in order to establish some dispute with regard to the payment of money between the deceased and the accused No. 2, however on a scrutiny of the evidence, it discloses that the evidence is only hearsay as none of the witnesses have asserted of seeing the accused No. 2 with the deceased. Their evidence runs contrary to the evidence on the Investigating Officer, who has admitted that he has not found any proof of any transactions between the accused No. 1 and accused No. 2 or any contact by the accused No. 2 made with the deceased. 48. The overall appreciation of the evidences - both ocular as well as documentary establish the complicity of the accused No. 1 in committing the murder of the deceased by firing from the pistol is proved beyond reasonable doubt. The eye-witness (PW-15), the evidence of PW-14, the PM report and the evidence of doctor (PW-4) read with the Serological Report and the forensic examination of the weapon and the bullet, unequivocally confirms that the accused No. 1 murdered the deceased by firing from a pistol. With regard to the absence of motive, since the evidence is in the form of direction evidence and not circumstantial, even if the motive is not established, the absence of motive cannot in any manner dilute the evidence against accused no. 1. 49. So far as the complicity of the accused No. 2 is concerned, the investigation does not remotely connect the accused No. 2 with the offence. The case of the prosecution against accused no. 2 is premised on circumstantial evidence. The evidence does not suggest that there was any outstanding amount remained to be paid by the accused No. 2 to the complainant or the deceased and the deceased was extorting or demanding money from him. It also does not suggest that in fact, there was any dispute with the deceased and the accused No. 2 with regard to any money transaction. It also does not suggest that in fact, there was any dispute with the deceased and the accused No. 2 with regard to any money transaction. There is no link established between the accused No. 1 and the accused No. 2. The investigation does not reveal that the accused No. 1 or the accused No. 2 have contacted each other and hatched the conspiracy. It is also not established that the accused No. 2 had paid any amount to the accused No. 1 for committing the murder of the deceased. In absence of any reliable and clinching evidence, the theory of conspiracy hatched between the accused No. 2 and the accused No. 1 falls flat on the face of the prosecution. 50. Thus, on the substratum of the analysis of the evidence as a whole, we do not find any complicity of the accused No. 2 in the offence and hence, the following order is passed: 50.1 The Criminal Appeal No. 821 of 2015 is allowed. 50.2 The accused No. 2 - Prafulbhai Virchandbhai Shah, is acquitted from the charges levelled against him. The judgment of conviction and order of sentence convicting the accused No. 2 for the offences under Section 302 read with Section 120(B) of the IPC is hereby quashed and set aside. The accused No. 2 is already released on bail, his bond stands cancelled. 50.3 So far as the accused No. 1 - Farukh Hussain Habibbhai Shaikh is concerned, there is ample evidence to establish that he has committed the offence and charges against him stand confirmed, and the conviction recorded by the Trial Court does not require any interference hence, Criminal Appeal No. 124 of 2016 is hereby rejected. The judgment of conviction and order of sentence convicting the accused No. 1 passed by the Trial Court stands confirmed qua the accused No. 1. 50.4 We are informed that the appellant-accused No. 1 is on bail, his bail bond shall stand cancelled. He is, therefore, directed to surrender himself before the Jail Authority to undergo the remaining sentence, if any, within a period of four weeks from the date of receipt of this writ, failing which the trial Court concerned is directed to issue non-bailable warrant against the appellant to effect his arrest. 51. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.