IMPORTANT POINT
Charge of withholding a material witness from court leveled against prosecution should be examined in background of facts and circumstances of each case.

JUDGMENT

Dipak Misra, J.—The appellant, A-1, along with Dipakbhai Zinabhai Patel, A-2, Raghubhai Chaganbhai Patel, A-3, and Babubhai Khushalbhai Patel, A-4, faced trial in Sessions Case No. 28 of 2006 in the Court of the learned Sessions Judge, Valsad, for the offences punishable under Sections 342, 346, 302, 120B and 201 read with Section 34 of the Indian Penal Code (for short “IPC”). The learned trial Judge acquitted A-3 and A-4 as he found them innocent and convicted A-1 and A-2 for all the offences and imposed rigorous imprisonment for life and fine of Rs.1,000, in default of payment of fine, to undergo further imprisonment for one month under Section 302 and separate sentences for the other offences with the stipulation that all the sentences shall run concurrently.

2. Grieved by the aforesaid conviction and sentence, the accused-appellant and A-2 preferred Criminal Appeal No. 860 of 2007 and the High Court, by the impugned judgment dated 20th April, 2009, acquitted A-2 but sustained the conviction of the appellant for all the offences. Hence, the present appeal by the accused/appellant, A-1.

3. Filtering the unnecessary details, the prosecution case is that on 23.1.2006, deceased, Ashokbhai Nanubhai, accompanied by his brother-in-law, Kantibhai Manilal Patel, PW-13, had gone to Udwada R.S. Zanda Chowk on his scooter and went to a tea stall where the deceased was engaged in a conversation with one Durlabhbhai Kikubhai Bhandari,PW-15. Durlabhbhai took the deceased near the railway crossing where 3-4 persons were waiting in a Maruti car. As the prosecution story further gets unfurled, the deceased had discussion with them and, thereafter, those persons informed that they would take the deceased to the house of Gulia at Valsad and, accordingly, they took him in the Maruti car bearing No. GJ-15-K-9263. They had provided one mobile number stating that if there would be any delay in the return of the deceased, they could be contacted on that mobile number. The brother-in-law of the deceased supplied that mobile number to his sister Madhuben, PW-14, and went to Daman for his work and came back in the evening about 5.00 p.m. Thereafter, he enquired from his sister whether she had talked with the deceased on the given number or not and he was informed by her that the mobile phone was picked up by different persons who spoke differently and, at a later stage, it was switched off. Someone speaking on the mobile had also enquired from Madhuben whether she had gone to the police station. Coming to know about the situation, Kantibhai made enquiry and searched about the deceased for two days and when the deceased did not return, he lodged a complaint at Pardi Police Station on 25.1.2006 which was registered as C.R. No. 1-12/2006. After the criminal law was set in motion, the investigating agency examined the witnesses and after coming to know about the place where the accused persons had hidden themselves, the Investigating Officer arrested them and they confessed before the police that they had wrongfully confined the deceased and assaulted him. They also confessed that they had pressurized the deceased for returning the money as the money was paid to the passport agent, namely, Bharatbhai, who was introduced by the deceased, in the presence of one Ashokbhai alias Amratbhai. They also stated that they had assaulted the deceased on 23.1.2006 and when the deceased succumbed to the injuries, they buried the dead body in an agricultural farm. At the instance of the accused, the dead body of the deceased was taken out in the presence of the panch witnesses. Discovery panchnama was prepared in presence of the Executive Magistrate. After carrying out the seizure of footwear, clothes and jute old blanket, samples of the same were sent for forensic examination and thereafter, the dead body, after being identified by wife Madhuben, was initially sent to the Dungri Primary Health Centre for post mortem, but as the Medical Officer opined that it