Dipak @ Kano Vinodbhai Soni vs State of Gujarat

Akil Kureshi, J.—The appeal is filed by original accused No. 2 challenging the judgment dated 21.07.2010 passed by the learned Additional Sessions Judge, Ahmedabad (Rural), in Sessions Case No. 24 of 2008. He along with accused No. 1 was charged with the offences punishable under Sections 302, 34 read with Section 120B of the Indian Penal Code and Section 135(1) of the Bombay Police Act. Both the accused were convicted for the offences and sentenced to imprisonment for life. We are informed that accused No. 1-Padmaben has not preferred any appeal. Briefly stated, the prosecution version was that accused No. 1-Padmaben though described as wife of deceased Rajendrabhai alias Rajubhai Kalbe, had a live-in relation with him. She resided in Gokuldham Apartment, Vejalpur, Ahmedabad Nearby her residence, accused No. 2 - Deepak alias Kano Vinodbhai Soni also lived. Accused Nos. 1 and 2 developed intimate relationship with each other. The deceased Rajendrabhai disliked this. He had few times warned accused No. 2 and also picked up quarrels with his wife - accused No. 1 - Padmaben. The accused finding deceased Rajendrabhai a hindrance in their extramarital relations, conspired to eliminate him. With this intention, late at night on 30th December 2007, accused No. 1 - Padmaben gave a phone call to accused No. 2 - Deepak and called him at her residence when her husband Rajendrabhai was fast asleep. Accused No. 2 came to the house of accused No. 1 armed with a hammer and other weapons. He repeatedly assaulted deceased Rajendrabhai with the hammer causing multiple injuries on the head and other parts of the body. Due to such injuries, Rajendrabhai expired. In order to give a different twist to the incident, hands and legs of accused No. 1 - Padmaben were tied with a Duppata and the door was bolted from the outside. In the morning, Padmaben kicked the door with the feet upon which a neighbour came and released her. She claimed that at night two unknown people had come and made her smell something due to which she lost consciousness and therefore did not know what happened in the night.

During the course of the investigation, the investigating agency found the version given by the wife of the deceased highly suspicious. It was revealed that she had an affair with accused No. 2 - Deepak Soni. The murder weapon hammer was discovered at the instance of accused No. 2 from the river. Blood stained clothes were discovered from his residence. The details of the mobile phone numbers allegedly used for the conversation on the night of December 30th were also collected.

Charge was framed at Exh. 6 in which it was alleged that accused No. 1 - Padmaben, wife of Rajendrabhai had developed illicit relations with accused No. 2 � Deepak Soni since about one year. In absence of deceased Rajendrabhai they enjoyed physical intimacy. Rajendrabhai had come to know about it. Despite his warning, the two continued to maintain the relations. They found the deceased an obstacle in their relations and in order to eliminate him, they entered into a conspiracy. At 1:36 a.m. on the night of 30th December 2007, accused No. 1 gave a call on the mobile of accused No. 2 and called him, when Rajendrabhai was fast asleep. Accused No. 2 gave repeated blows with the hammer on his head and thereby caused his death.

The FIR was lodged by accused No. 1 - Padmaben herself. This FIR makes interesting reading. We may record gist of the complaint. She stated that she resided at Gokuldham Apartment, Vejalpur since about 3 years with her husband Rajubhai. He was previously married to one Nandaben. She was herself previously married to one Laxmanbhai Chavda. She had developed relations with Rajendrabhai upon which she took divorce from her husband 7 to 8 years back. Since then she was residing as a kept with Rajendrabhai. Rajubhai''s first wife Nandaben came to know about her relation and therefore severed her relations with her husband. On 29.12.2007, she and her husband watched television till late night. At about 12:30 they went to sleep in the bedroom. Late that night i.e. early morning of 30.12.2007, at about 3:00 O''clock, she heard the doorbell. She went and opened the door and saw that two people with faces covered with the handkerchiefs, were standing there. They inquired about her husband. She asked them to wait outside so that she could wake her husband, at which time, they suddenly entered the house. One of them covered her face with a handkerchief. Upon smelling the handkerchief she lost consciousness. She regained her consciousness at about 6:30 in the morning. She found that her hands and legs were tied with a cloth. She freed her legs and kicked the door which was locked from outside. Upon which her neighbour Dineshbhai came and opened the door and released her hands. She immediately went to the bedroom and saw pool of blood there. She started screaming. Her neighbour Surekhaben and her husband also arrived. She did not open the door in the fear of the police. After calling the mother of the deceased and Nandaben, the previous wife, who arrived at about 10:00 O''clock, the door was opened. They found that her husband was lying dead on the cot. She further stated that her husband was in the habit of drinking liquor. Some 4-5 days before the incident, he had gone to Makarba for that purpose where he picked up a quarrel with someone. He was beaten up.

The dead body was recovered under the inquest panchnama Exh. 20. The panch-witness Vinodbhai Laxmishankar, P.W. 2 was examined at Exh. 19. The dead body was covered with blood. There were serious head injuries. The skull was split open from the left eye right up to the head covering the entire temporal region from where flesh had come out. Over the right eye also another injury was there. On the body particularly on the chest also several bruises were there.

The mobile phone allegedly used for the conversation in the night between 29th/30th December by Padmaben was discovered under a panchnama Exh. 24 at the instance of accused No. 2 -Deepak Soni. The panch-witness Thakkar Subodhchandra Somchand, P.W. 3, Exh. 23, turned hostile. The investigating officer mentioned the manner in which the discovery was made. The discovery panchnama shows that accused No. 2 having shown willingness to show the mobile used by Padmaben, the accused and the police party along with the panch-witnesses travelled in a police vehicle. As directed by the accused they arrived near Paldi Mahalaxmi Junction from where they travelled on foot and reached a garden. After entering the garden, from underneath the bushes of flowering plant, one mobile phone of Reliance Co. was recovered.

Under discovery panchnama Exh. 27, the clothes worn by the accused and the mobile phone used by accused No. 2 were discovered. The panch-witness Maheshkumar Dahyabhai Parmar P.W. 4, Exh. 26 supported the prosecution. The panchnama shows that after drawing a preliminary panchnama, upon the accused showing willingness to show the said articles, both the accused, police party and the panch-witnesses travelled in a police vehicle. The vehicle was directed by the accused. First they arrived at the house of Padmaben. The accused No. 2 - Deepak Soni was kept in the car. Padmaben led the panchas and the police to her house and from underneath the mattress spread on the cot she took out a gown which she had worn on the night of the incident.

7.1. Thereafter, as directed by accused No. 2, they arrived at his house. This time, Padmaben was instructed to stay in the car. Accused No. 2 led the police party and the panch-witnesses to his house. After opening the house with his own keys, he took out the clothes which he had worn on the night of the incident from a wooden cupboard which included his pants, T-shirt, underwear and underpants. The mobile allegedly used by him was also recovered from the same cupboard.

The murder weapon hammer was discovered under a panchnama Exh. 41. The panch-witness Sabirhusein, P.W. 6, Exh. 40 turned hostile. This discovery, was however, proved through other witnesses including the deposition of the investigating officer. The panchnama records that after drawing preliminary panchnama, as the accused had shown willingness to show the hammer used in the commission of the offence, other weapons i.e. a pair of scissors and a poker and the sim-card of Padmaben which he had thrown in the river from Sardar Bridge. After drawing preliminary panchnama, the said accused travelled in a police vehicle along with the police and the panch-witnesses as directed by the accused. They arrived at Jamalpur Sardar Bridge. He showed the place from where he had thrown the said articles into the river. The police thereupon summoned the help of staff of the fire-brigade. The staff of fire-brigade thereupon procured a magnate and searched the article with the help of the magnate which was tied to a rope and a bamboo pole. Initially nothing was found. The staff of the fire-brigade thereafter entered the river sitting on a rubber tube and thereafter lowered the magnate tied to a nylon rope. After much effort the hammer was found from the water. Rest of the articles could not be found.

Nathulal Jivanprakash, P.W. 19, Exh. 77 was working as the fire-man. He deposed that he was sent to Sardar Bridge by his superior along with other staff members. He described the recovery of the hammer from the river water with the help of magnate.

Taraben Harishchandra Kalbe, mother of the deceased, P.W. 8 was examined at Exh. 44. She deposed that her son Rajubhai was engaged in rickshaw driving. He had come in contact with Padmaben. His son�s wife Nandaben came to know about such relations. She and Nandaben had also gone to the house of Padmaben to persuade her against such relations. Her son was residing in Gokuldham in Vejalpur with Padmaben. On the date of the incident she was informed by their neighbour Dagdubhai calling her immediately to the house of Rajubhai. When she reached there, she found that many people had gathered there where she found her son lying on the cot covered with blood. When her son had come to her house previously, he had informed her about Padmaben''s relation with Deepak. Her son and Padmaben quarreled frequently. Padmaben had once even consumed poison during such quarrel. Her son and Deepak were moving around together often.

10.1. In the cross-examination she admitted that she did not have personal knowledge about quarrels between Rajubhai and Padmaben over the issue of Deepak but she was informed about it by her son.

Nandaben, the previous wife of deceased, P.W. 9 was examined at Exh. 46. She deposed that her husband had an affair with Padmaben. On 30th December, she had also reached the house of her husband where she found that he got injuries on the head. Padmaben and Deepak had intimate relations due to which her husband had beaten her up some 4-5 months back and also warned Deepak against such relations.

One Dagdu Tukaram Malusera, P.W. 10, Exh. 47 was a friend of deceased Raju. He was a neighbour of Rajubhai when he was residing at Dariyapur. On the date of the incident, he was called at the place of Rajubhai. He found Rajubhai lying on the cot covered with blood. He also stated that Deepak and Padmaben had an affair. When Rajubhai came to know about it they had quarreled. He had also beaten up Deepak.

12.1. In the cross-examination he admitted that about the quarrels between Rajubhai and Padmaben he had no personal knowledge but was told by some people.

One Jogindersinh Umedsinh Bhadoria, P.W. 14, Exh. 63, officer of Reliance Communication was examined to bring on record the call details of two mobile phones allegedly used by accused No. 1 to call accused No. 2. He produced the call details of sim-cards No. 9377420706 and 9376813008 for the relevant period which included the night of 29th/30th December, 2007. He clarified that the first sim-card was registered in the name of one Tulsi Maratha and the other one in the name of Jignesh Vaghela. The call details do show that from phone number 9377420706 a call was made at 1:36 a.m. on 30th December, 2007 on the telephone number 9376813008 and the call duration was 60 seconds.

Khemchand Modaji Solanki, P.W. 15, Exh. 70 was owning a telephone kiosk. He used to recharge telephone of accused No. 2 - Deepak.

Bharat Mahadevbhai Harvani, P.W. 17, Exh. 72 deposed that Deepak had taken a sim-card from his shop about a year and half before the date'' of the deposition.

Tulsiram Shankarrao Maratha, P.W. 18, Exh. 75 deposed that he used a sim-card of Reliance Company and his number was 9377372967. He stated that his brother Ramesh had used such phone for about 6 months but he did not know if he had ever given this phone to anyone else. He did not know either Padmaben or deceased Rajendrabhai.

Doctor Saumil Premchandbhai Merchant, P.W. 13, Exh. 52 had carried out the postmortem. In his deposition as well as in the postmortem report Exh. 53, he mentioned following injuries:

(1) contuse lacerated wound present on mid of the forehead, going horizontally size � 5 cm x 0.75 cm x bone deep

(2) contuse lacerated wound present on forehead, starting from medial end of the left eyebrow, going above up to injury No. (1) size - 5.5 cm x 0.75 cm x bone deep.

(3) contuse lacerated wound present on the right side forehead going above starting from lateral end of the right eyebrow size 3.5 cm x 0.5 cm x bone deep.

(4) contuse lacerated wound present on left temporal region going anterior to posterior size 2 cm x 0.25 cm x muscle deep.

(5) contuse lacerated wound present on the left parietal region 11 cm above the left ear. Going obliquely size - 2.5 cm x 0.25 cm x bone deep.

(6) contuse lacerated wound present on the right temporal region 4.5 cm right ear size � 6 cm x 0.75 cm x muscle deep going obliquely.

(7) contuse lacerated wound present on the left temporal region 2.5 cm front of the left ear size � 2 cm x 0.5 cm x muscle deep going horizontally.

(8) contuse lacerated wound present on the left cheek region size � 3 cm x 0.75 cm x bone deep.

(9) contuse lacerated wound present on just below the left eye going horizontally size � 4 cm x 0.25 cm x cavity deep (orbit cavity).

(10) contuse lacerated wound present on 1 cm lateral to the left end of the eye size - 1.5 x 0.5 cm obliquely subcutaneous tissue deep.

(11) contuse lacerated wound present on the right side of chin, size � 1 cm x 0.25 cm x bone deep transverse.

(12) contuse lacerated wound present on the mid part of the right clavicle size � 1 cm x 0.5 cm x subcutaneous tissue deep going obliquely.

(13) contuse lacerated wound present on the medial end of the right clavicle size � 1 cm x 0.25 cm x subcutaneous tissue deep going obliquely.

(14) contuse lacerated wound present on the right side 1 cm below injury No. (13) size - 1 x 0.5 cm x subcutaneous tissue deep.

(15) contuse lacerated wound present on the tip of the right shoulder size � 0.5 x 0.25 cm x subcutaneous tissue deep.

(16) multiple red contusion present on the upper chest region size � 6 x 4 to 3 x 4 cm.

(17) contuse lacerated wound present on the dorsum of the right index finger at mid part going obliquely size � 3 cm x 0.5 cm x muscle deep.

(18) contuse lacerated wound present on the medial aspect of the right index finger going obliquely size - 0.5 x 0.25 cm.

(19) contuse lacerated wound present on the mid of the dorsum on part of the right hand size � 6.5 cm x 0.5 cm subcutaneous deep.

(20) contuse lacerated wound present on the posterior - lateral on part of left ring finger in mid part 3.5 cm x 1 cm muscle deep.

(21) contuse lacerated wound present on the medial on part of the left middle finger size - 0.5 x 0.25 cm

17.1. According to him, the death was due to shock as a result of injuries sustained. In his opinion, such injuries could have been caused by the hammer shown to him.

Various articles collected in the course of investigation were sent for forensic analysis. The FSL Report as well as Serological Report was produced at Exh. 61. Combined reading of the FSL Report and Serological Report would show presence of human blood of group ''A'' on the clothes of the accused i.e. his T-shirt, banyan, pants and underwear. The deceased had blood group ''A''. Accused Nos. 1 and 2 had blood group ''AB'' and ''B'' respectively.

The investigation was initially carried out by Babubhai Zenabhai Patel, P.W. 25, Exh. 98. He gave the steps taken by him during the course of the investigation. In the cross-examination, he agreed that the deceased had a quarrel with one Swami regarding liquor who had slapped him. The suggestion was that possibly due to such animosity he was done to death. The defence was also questioned him on the statement of Nareshbhai Somabhai. In fact Nareshbhai had stated that Deepak and the deceased were known to each other. During the accidental death of mother of Deepak, Padmaben came into contact and the two developed romantic relations. Deepak used to visit her in absence of Rajubhai. Deepak had told him and his friend Gajendra that Rajubhai was an obstacle in his relation with Padmaben. He had also threatened to kill Deepak. Deepak would therefore have to eliminate Rajendrabhai. He denied that since Rajendrabhai had married to Padmaben, Padmaben''s first husband had strong objection to that.

Part of the investigation was carried out by Ranjitsinh Gagubha Jadeja, P.W. 26, Exh. 101. He described the discovery of various articles at the instance of accused Nos. 1 and 2. In the statement of Shrvan Becharbhai it was revealed that Padmaben and Kana had developed intimate relation which was not approved by Rajubhai. He had once assaulted Deepak.

20.1. In the cross-examination he agreed that two mobile phones were registered in the name of Tulsi Maratha and Jignesh Vaghela. He also agreed that in their police statements neither Jignesh Vaghela nor Tulsi Maratha had stated that they had given their mobiles for use either to Padmaben or Deepak.

This in the nutshell is the evidence on record.

On the basis of such evidence, learned advocate Shri Dave for the appellant submitted that the entire case was based only on the circumstantial evidence. The mobile phone details do not establish that the sim-cards in question were in use by the accused persons. He, therefore, submitted that the theory of accused No. 1 gave a call on late night of 30th December, 2007 to accused No. 2 was not established. He submitted that solely on the basis of discovery made at the instance of accused No. 2, his conviction cannot be confirmed. With respect to discovery of hammer he submitted that the panch-witness had turned hostile. Counsel further submitted that the learned Judge committed a grave error in convicting accused No. 2 without sufficient evidence.

On the other hand, learned APP Shri Jani supported the judgment and submitted that there was strong circumstance establishing the guilt of the accused. He drew our attention to the evidence on record to highlight his contentions.

Having thus heard learned counsel for the parties and having perused the evidence on record, one thing is clear, viz. that the entire case rests on circumstantial evidence. It is repeatedly held by the Courts that conviction on the basis of circumstantial evidence can be recorded only if the entire chain of circumstances is complete and leads unerringly to only one conclusion viz. that of the guilt of the accused to the exclusion of any other possibility. In the present case, the question is whether such chain of circumstance was complete.

In order to ascertain this, we may re-appreciate the evidence on record. Firstly with respect to the question of the mobile call exchange, as noted, the call details between two phone numbers of Reliance mobile do show a call made at 1:36 in the night of 29th/30th December, 2007. However, the prosecution has not brought on record any evidence to suggest that respective phones were in possession and use of Padmaban and Deepak respectively. We have perused the evidence in this respect. As per the evidence of Jogindersinh, P.W. 14, such telephones were registered in the name of Tulsi Maratha and Jignesh Vaghela respectively. There is no evidence to show how such telephones were being used by the accused. All that Khemchand M. Solanki, P.W. 15 stated was that Deepak used to recharge his mobile from his shop. Bharat M. Hirvani, P.W. 17 only suggests that Deepak had procured a sim-card from his shop. He did not say that it was in the name of some other user. Tulsi Maratha gave another phone number which he had subscribed. He stated that such phone was used by his brother for about six months but he did not know whether his brother allowed the phone to be used by someone else. These materials do not establish that two phone numbers in question were used by two accused at the relevant time. In fact, the investigating officer Babubhai Zenabhai Patel, P.W. 25 stated that during his recording of the statements of Tulsi Maratha and Jignesh Vaghela, it was not revealed that they had given their phones to Padmaben or Deepak. In our opinion, therefore, the prosecution had not brought on record any evidence to show that the telephone numbers from which the phone call was made at 1:36 in the night of 29th/30th December, 2007 were in use of two accused persons.

In our opinion, however, this was just one of the many factors relied on by the prosecution and not the sole factor. We would, therefore, examine the effect of other circumstances brought on record. Such circumstances are as follows:

(1) There was previous romantic relations between accused Nos. 1 and 2. Accused No. 1 � Padmaben though was in live-in relationship with the deceased, she had, according to the witnesses, developed soft feelings for accused No. 2. The two were enjoying physical relations in absence of the deceased. The deceased had come to know about it and obviously did not approve of it. Taraben, mother of the deceased P.W. 8 had also mentioned that decease had frequently quarreled with Padmaben due to her relations with Deepak. This, of course, was informed to her by her son. Dagdu Tukaram, P.W. 10, friend of the deceased had mentioned about such relations and also deposed that because of such relations the deceased had once beaten up accused No. 2.

(2) The deceased was found dead in his own house under mysterious circumstances. Admittedly, on the night of the incident it was only the deceased and Padmaben who were at home. Padmaben had no children with her cohabitation with the deceased, thus there was no body at home at that time.

(3) The explanation of Padmaben about the incident was also rather interesting. In the FIR that she lodged, she gave the version that late at night, someone rang the doorbell. She went to open the door and saw two peoples who had covered their faces with handkerchief. They inquired about her husband. She went inside to call her husband when these peoples entered the house and making her smell something made her unconscious. In the morning when she woke up, her hands and legs were tied. The door was bolted from outside. She had to kick the door to draw the attention of the neighbours to open the door from outside.

This is completely a cock and bull story given by her which was on the face of it totally unbelievable. Firstly, she does not clarify why she went to open the door late at night without her husband. Further, even when she saw two people covering their faces, she was not alarmed. She in fact calmly tried to go inside the house to call her husband as the strangers wanted to see him. We may recall, she herself had alleged that her husband, some few days back, had a tiff with someone in connection with drinking liquor. He was beaten up. Despite such circumstances, she opened the door in the middle of the night without calling her husband and found nothing amiss when the visitors had there faces covered to prevent identification. Her subsequent conduct also was rather curious. It has come on record that she was freed by the neighbours at about 6:30 in the morning. The door of the inside room in which her husband was sleeping on previous night was also bolted from outside. They could see blood on the floor. Despite that she made no attempt to open the door and find out what exactly happened to her husband right up to 10:00 O''clock when the police arrived. Even if someone had attacked her husband, there was every possibility that he might still be alive. Most natural conduct of a person under normal circumstances therefore would be to open the door and rush to see if the person though critically injured was alive or not and ensure treatment if it was so possible to save his life. She did not do any of these things.

(4) The murder weapon hammer was discovered at the instance of the accused. The panch-witness turned hostile. The investigating officer described the manner in which the hammer was fished out from river water with the help of fire-brigade men by using a magnate. The panchnama demonstrates the manner in which the accused led the police party to the bridge over river Sabarmati and showed the place from where from the top of the bridge he had thrown the hammer and other weapons he had carried on the date of the incident. He in fact only used the hammer. Nathulal Jivanprakash, P.W. 19 the fire-brigade official also supported the discovery of the hammer with the help of a magnate. The person from whom such magnate was procured was also examined.

(5) The clothes worn by accused No. 2 allegedly at the time of incident were discovered at his instance from his house. Under panchnama Exh. 27 such articles were discovered. It is true that both the accused were taken in the same vehicle for various discoveries. However, this need not be confused with the joint discovery panchnama since at every stage the parts of two accused were carefully separated. The panchnama records that after accused No. 1 - Padmaben showed the articles to be recovered from her house, the vehicle was taken as directed by accused No. 2. Padmaben was instructed to remain inside the car. Accused No. 2 led the panch-witness and the police party to his house from where, from inside a cupboard, his clothes were recovered.

(6) The FSL report and the serological report confirmed presence of human blood of the group belonging to the deceased from all clothes of the accused viz. his pants, T-shirts, banyan and underwear.

(7) The medical evidence corroborates the death due to various injuries that could be caused by hammer. The postmortem report Exh. 53 as well as the deposition of doctor Saumil Merchant, P.W. 13 confirmed this. He had noted as many as 21 injuries on various parts of the body principally the head. According to him, the head injuries were sufficient in ordinary course of nature to cause death. According to him the said injuries could have been possible with hard and blunt substance such as muddamal article hammer.

(8) The manner in which the incident took place and the multiple injuries suffered by the deceased, it clearly emerges that it was not a handy work of one person alone and in particular a lady. The accused No. 1 had thus clearly summoned the help of someone else. The above circumstances would unerringly point to the involvement of accused No. 2 as that someone else.

As noted above, it is indisputably true that the present case rests only on circumstantial evidence. Conviction in such a case would be possible only if the entire chain of circumstance is complete and leads unerringly to only one conclusion viz. that of the guilt of the accused to the exclusion of any of the hypothesis of the innocence of the accused. In the present case, circumstances noted above form a complete chain. In our opinion, therefore, trial Court committed no error in convicting accused No. 2. The appeal is, therefore, dismissed. R & P be transmitted back to the learned trial Court.