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Gujarat High Court
Judgename :J.N.Bhatt, J.R.Vora
RAJESH @ RAJU CHANDULAL GANDHI - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL153 of 1995
Decided On : 07/07/2000
Of course, offence of criminal conspiracy as contemplated by Sec. 120-A of Chapter V-A of the IP Code is not required to be established by direct evidence. It can be established and shown by circumstantial evidence and other set of facts emerging from the record. In order to constitute an offence of criminal conspiracy, there must be two or more persons who should agree to do an illegal act or an act which is not legal by illegal means and such an agreement is designated as criminal conspiracy. In the light of the factual scenario emerging from the proved facts, that the manner and mode in which the accused persons reached to the farm-house of the deceased with deadly weapons with them, with a pre-determined mind on account of animosity generated due to the relationship between Namrata and Montu, nothing would prevent us in, straightway, concluding that they had agreed to do away with the deceased in case he failed to settle the issue of Namrata and Montu.
[Para 62]
Of course, criminal conspiracy under Sec. 120-A is a distinct offence. The very agreement is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they participate in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common aim or goal of the conspiracy. Obviously, conspiracy is hatched in secrecy and it is very difficult to adduce direct evidence of the same. The offence can only be proved largely upon inference of the proved set of facts and circumstances.
[Para 63]
(b) Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sec. 157 — Sending report (FIR) forthwith to the concerned Magistrate by the S.H.O. — Delay — Report sent next day to the Magistrate — Explanation — Effect — Held, ipso facto no ground to throw the case due to such delay — Delay due to formalities in investigation — FIR lodged immediately after occurrence — No evidence to show that FIR was manipulated — Delay explained, so not fatal.
Delay in sending such a report to the concerned Magistrate by the concerned Police Officer or the Investigating Officer is not, always, fatal. It could be explained. It could be accounted for. Even otherwise, the delay in despatch of first information report is not a circumstance due to which the entire prosecution case cannot be thrown to the wind, which is, otherwise, unerringly proving the culpability of the accused persons beyond any doubt. Firstly, it cannot be said that there was an inordinate delay in sending special report under Sec. 157 of the Code. Secondly, the prosecution has accounted for the delay. Thirdly, otherwise also, in the light of the evidence on record and our thorough and threadbare examination of the other testimonial collections of the documentary evidence led by the proseuction and relied on by the trial Court, undoubtedly, merely because there was little delay in sending the special report as contemplated under Sec. 157 of the Code, it would not affect the merits of the case. Therefore, no capital can be made out in the present case on account of the delay in sending the special report nor it would lead to even a remote inference that there was possibility of manipulation.
[Para 48]
(c) Appreciation of evidence — Three prosecution witnesses were relinquished by the P.P. — One witness had died — Remaining two witness could turn hostile — Held, it is not proposition that all the witnesses should be examined.
It may be noted that it is very clear from the said purshis of the Public Prosecutor that in so far as witnesses Shantaben and Sitaben are concerned, they were dropped because they turned hostile to the prosecution case. It appears from the note of the defence upon the said purshis that these two ladies had not seen the blows being inflicted by the accused persons. It was, therefore, submitted that they were dropped and that would be suggestive of the fact that no such incident had occurred. We dont find any merit in such contention. They were the employees of the farm-house. One employee of the farm-house, namely, Satish, prosecution witness No. 12, is examined at Exh. 51, who was working as a cook in the house. Two eye-witnesses are examined and one of them is the cook, Satish, PW. 12. It is not the proposition that all the eye-witnesses should be examined.
[Para 53]
(d) Appreciation of evidence — Testimony — Relative witness — Minor discrepancies — Effect — Nephew (first informant) of the deceased and cook of the scene of occurrence were examined as eye witnesses, whose statements were supported by widow of the deceased and the Doctor — Held, it is not the relationship or interestedness of the witnesses, but reliability and credibility is to be considered — Minor discrepancies in their statements are natural and the case cannot be thrown on this ground.
Of course, both the eye-witnesses are, also, alleged to be interested and, therefore, emphasis was laid that other two witnesses should have been dropped. Needless to reiterate the settled proposition that it is not the relationship or interestedness of the witnesses, but the reliability and credibility, which must be considered. Ordinarily, interested persons or closed relatives, like family members, as in the present case, the complainant, would not be interested in manipulation or in involving strangers in place of the real accused persons or real assailants. On the contrary, their anxiety would be to see that to real culprits are brought to book. Therefore, the submission that the aforesaid two witnesses are not examined and, therefore, the version of the prosecution should be discarded cannot be accepted.
[Para 54]
Corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason, therefor, should not render the evidence of eye-witness unbelievable, unreliable and untrustworthy. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence of the prosecution.
[Para 59]
Undoubtedly, it is the cardinal principles of criminal jurisprudence that the prosecution should establish the guilt of the accused without any shadow of doubt. Despite some minor discrepancies, micro level irregularities, or difference in dimensions would be negligible, if the substratum or the theme of the prosecution is established without any hypothesis or doubt, the proseuction case cannot be allowed to be thrown overboard on such technicalities.
[Para 60]
Again in so far as the appreciation of evidence is concerned, contradictions, inconsistencies, exaggerations and embellishments occur in many cases. It is observed in Lila Ram vs. State of Haryana, 2000 SCC (Cr.) 222. In Para 12 that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment. Some times there could even be a deliberate attempt to offer embellishment and sometimes in their over- anxiety, they may give a slightly exaggerated account. The Court can shift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is tobe considered from the point of view of trustworthiness. If this test is satisfied, it ought to inspire confidence in the mind of the Court.
[Para 58]
( 1 ) WHETHER, the appellants are guilty and responsible for the, ghastly and macabre, killing of deceased Girish Namdar or not, is the central theme, in this conviction appeal under section 374 of the Code of Criminal Procedure, 1973, (Cr. P. C.) challenging the judgment and order of conviction dated 28. 12. 94, recorded by the learned Additional Sessions Judge, Ahmedabad City, in Sessions Case No. 190/93.
( 2 ) UNDER the impugned judgment and order, the appellants, who are, original accused persons have been held guilty under section 302, 120-B, 452, 506 (2) of the Indian Penal Code (IP Code) and section 25 (1) (b) of the Arms Act. The appellants, who are, original accused persons, for the sake of convenience, are hereinafter, referred, to as accused Nos. 1 to 3, as originally arraigned in sessions case. Accused No. 1, Rajesh, (A-1) is ordered to suffer imprisonment for life and pay a fine of Rs. 2,000. 00, in default of payment of fine, to undergo 10 days further rigourous imprisonment for the offence, under section 302, read with section 120-B of the Indian Penal Code. He is also ordered to undergo rigourous imprisonment for 5 years and pay a fine of Rs. 1,000. 00 and in default of payment, to undergo further rigourous imprisonment for 10 days under section 452 of the IP Code. He is further ordered to undergo rigourous imprisonment for one year under section 25 (1) (b) of the Arms Act.
( 3 ) WHEREAS, accused No. 2, Sachin @ Pavan (A-2) and accused No. 3, Duniya @ Kumar (A-3) are ordered to undergo imprisonment for life and a fine of Rs. 250. 00 in default of payment of fine, to undergo rigourous imprisonment for 3 days under section 302 read with section 120-B of IP Code. A-2 and A-3 are, also, ordered to suffer RI for two years and to pay fine of Rs. 250. 00 and in default of payment of fine, to undergo further RI for 3 days under section 452 of the IP Code. Of course, all the accused persons came to be acquitted from the charge under section 135 (1) of the Bombay Police Act. Sentences are ordered to run concurrently. With a view to appreciate the merits of the appeal and the challenge against it, let us have, a brief, spectrum of material and relevant facts leading to the rise of the present appeal.
( 4 ) ON an unfortunate day, i. e. on 7. 2. 93, at about 1. 15 p. m. one Girish Namdar @ Girish Ambalal Gandhi became a victim of a murderous assault by the accused persons, in his own farm house, known as Namdar Farm. Thus, the venue of offence is the house of the deceased situated in Namdar Farm near Vatva, about 10 to 15 k. m. away from the Metropolitan Ahmedabad. The heinous crime is alleged to have been committed by the accused persons, conjointly, after hatching a conspiracy with said motive, according to the prosecution case. As the ill-luck would have been, a strong, cordial intimate relationship culminated into love-affairs, between a girl named, Namrata, and a boy, Montu, became the instrument of the murder of deceased Girish and the bone of contention as per the case of the prosecution.
( 5 ) MONTU is the nephew of deceased Girish, who had allegedly, abducted Namrata, daughter of one Mukesh Chandulal Gandhi, whereas, Namrata happens to be the sister of A-2, Sachin, and A-3, Duniya. On account of love affairs between Namrata and Montu, seeds of enmity and antagonism had been, seriously, sown between two families, like that, of the complainant and the accused party i. e. both the sides. The prosecution has, therefore, ascribed deep-seated motive, for the commission of the crime in question.
( 6 ) THE questioned incident, admittedly, was, also, preceded by not, only, altercations between the deceased and the accused party, but later on was culminated into an incident in which the deceased had to lodge a complaint, which, was registered for the offence punishable under section 452 and 307 of IP Code and under section 25 (1) (c) of the Arms Act, and that complaint has been the subject matter of Sessions C
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