Judgment:
A.M. Kapadia, J.
1. Both these appeals arise out of common judgment and order recorded by learned Additional Sessions Judge, Ahmedabad (Rural), in Sessions Case No. 169 of 1991 passed on 29.1.1994 and raise questions as to whether culpability of the appellant/accused Satishkumar Kantilal Dave, held to be proved under Section 302 of Indian Penal Code ('IPC' for short) and order of sentence to suffer imprisonment for life imposed upon him can be said to be lenient and not adequate in view of the culpability of the accused who was charged with the offence of double murder of a Malayalee couple in an incident occurred between 5.15 and 5.30 in the early morning on 20.8.1991 when they visited the house of the accused in search of their victim daughter Geeta who was induced by the accused to marry him and forcibly detained her in his custody by claiming as his lawfully wedded wife inspite of the fact that he has married twice and has two wives and four children and, therefore, they are being dealt with simultaneously by this common judgment.
2. Criminal Appeal No. 317 of 1994 is filed by original accused challenging conviction recorded against him under Section 302 and 201 of IPC and under Section 135 of the Bombay Police Act and sentencing him to suffer imprisonment for life and to pay fine of Rs.2,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of three months for the offence under Section 302 of IPC, rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- and in default of payment of fine to undergo rigorous imprisonment for a further period of one month for the offence under Section 201 of IPC and rigorous imprisonment for a period of four months and to pay a fine of Rs.100/- and in default of payment of fine to undergo rigorous imprisonment for a further period of 15 days for the offence under Section 135 of the Bombay Police Act whereas Criminal Appeal No. 479 of 1994 is filed by the State questioning the legality and validity of the sentence on the ground that looking to the culpability of the appellant/accused, that is, double murder of a Malayalee couple, on the ground that sentence is inadequate and on the facts and circumstances of the case, it is the fit case falling in category of rarest of the rare case attracting punishment of death and, therefore, prayed in this appeal that punishment imposed by the learned Additional Sessions Judge being inadequate, therefore, death sentence may be imposed on the accused.
3. Obviously, a skeleton of the spectrum of material relevant facts, leading to the rise of these group of two appeals needs narration at this stage.
4. The first informant, Preeti, a daughter of the victim couple, was staying at Satyam Apartments, Naranpura, Ahmedabad, at the relevant time alongwith her parents as her father was serving in Ahmedabad Sarangpur Cotton Mills. Preeti has two sisters. Elder sister Geeta and younger sister Priya. Elder sister Geeta was serving in Life Insurance Corporation of India, at Anand Office. She is B.Sc. Electronics and B. Ed. qualified. For attending her service at Anand, she used to commute Ahmedabad to Anand daily and for catching train from Ahmedabad Railway station for going to Anand, she used to board AMTS bus from Grid Bus Stand, Naranpura.
5. It is further case of the prosecution that accused was serving as a driver in AMTS bus at the relevant time. Geeta who was daily travelling in AMTS bus from Grid Bus Stop on Sola Road driven by accused came in contact with him. It is further alleged that in course of contact between the accused and Geeta, Geeta was induced by the accused to marry him. Deceased parents of Geeta came to know about the previous two marriages of the accused and, therefore, they did not like the affairs of Geeta with the accused. It is further alleged that on 7.6.1991 when they all were at their home, Geeta came back in between 8.45 and 9 alongwith the accused. The accused showed a certificate in respect of his marriage with Geeta. As her parents had no trust on accused, her parents inquired about his past life and during inquiry it was revealed that accused was having two wives and four children. Therefore, when accused Satish came on the next day to their house, they informed about his past life. Satish therefore fled away leaving Geeta in their house. Thereafter they informed the police.
6. It is further alleged against the accused that on 9.6.1991 her sister Geeta went to her place of service at Anand. Thereafter she did not return. Therefore they inquired and during inquiry, on 30.6.1991 she was found from Shah-Alam Ambar Video Cassette Centre and Geeta told them that Satish gave threat that whereever she go he would kidnap her from that place and from that day onwards Geeta came back to their house.
7. It is further case of the prosecution that on 4.8.1991 when Preeti woke up at 5 - 5.30 in the morning, Geeta was not found on her bed and, therefore, on inquiry, they came to know from neighbour that three persons came in one jeep and they took away Geeta with them. Thereafter again they inquired about her but they could not find Geeta. Therefore, her deceased father gave a criminal complaint in the Court of Metropolitan Court at Mirzapur against accused Satish and one Dilavarkhan. It was further alleged that on the day of the incident, at about 4 in the morning, her father and mother told her that they are going to Chandkheda where accused Satish resides in search of Geeta and both of them proceeded on a moped for going to the house of Satish. Thereafter she went to college at 6 in the morning. When she returned from college at 11 O' clock, Gandhinagar Police came to her house and took her to Chandkheda where she saw dead body of her father and mother. Thereafter she came to know that they have been murdered. She therefore lodged complaint for the alleged offence before Gandhinagar Police. The said complaint is on record at Ex.9.
8. It is also the case of the prosecution that Police Sub Inspector Ramji Devaji Chavda who was in-charge of Adalaj Police Station at the relevant time received message on 20.8.1991 at 6.15 A.M. about two dead bodies lying at Chandkheda in open place. Therefore, he noted the said information in station diary and went to the scene of occurrence alongwith his staff. He saw two dead bodies, one of male and another of female. Therefore, he by calling panchas prepared inquest report. He also prepared panchnama of the scene of offence. Thereafter the complainant Preetiben came there and identified both the dead bodies and, therefore, a detailed complaint was also taken from her and pursuant to the said complaint, offence was registered against the accused and he started investigation.
9. During investigation he recorded statements of witnesses, recovered muddamal by drawing panchnama and thereafter the investigation was transferred to Vithalbhai S. Patel, Police Inspector, Gandhinagar Police Station. During his further investigation, Geeta, daughter of the deceased reported herself before Ahmedabad Ladies Police Station. Her statement was recorded. Thereafter he arrested the accused who has reported himself before Adalaj Police Station. Thereafter panchnama of the person of the accused was also prepared. Muddamal sheath (miyan) was recovered at his instance by preparing panchnama under section 27 of the Evidence Act. At the conclusion of the investigation, offence against accused was divulged for committing double murder. Therefore, he was charge-sheeted in the Court of learned Chief Judicial Magistrate, Ahmedabad (Rural).
10. On committal, learned Additional Sessions Judge, Ahmedabad (Rural), framed charge against accused for commission of the offence punishable under Sections 302 and 201 of IPC and under Section 135 of Bombay Police Act, which was read over and explained to him to which he pleaded not guilty and claimed to be tried. Thereupon the accused was tried by learned Additional Sessions Judge in Sessions Case No. 169 of 1991.
11. In order to bring home the charge levelled against accused, prosecution has examined 22 witnesses and also placed reliance on several documents. Prosecution has also ascribed deep seated motive for commission of the crime and in order to prove the deep seated motive prosecution has mainly relied upon the evidence of P.W.1, complainant Preetiben, P.W.3 Geetaben and P.W.3 Dr. Pushpaben. Prosecution has also placed emphasis on the oral testimony of P.W.12, Amrutbhai Lallubhai, an eye witness to the incident and also relied upon the evidence of extra judicial confession made by accused before his wife Shakuntala in presence of P.W.2 Geeta.
12. Upon assessment and evaluation of the testimonial collections and documentary evidence relied upon by the prosecution, trial Court found that there was a motive behind the crime as deceased were coming in his way and objecting to the marriage of the accused with Geeta, daughter of the deceased and, therefore, to fulfil that motive, accused killed father and mother of Geeta on the day of the incident when they came to his house and, therefore, trial Court found that the accused is guilty for the offence punishable under Section 302 of IPC and also guilty for the offence punishable under Section 201 of the IPC as he has screened the offence by concealing sward which he has used and also committed offence punishable under Section 135 of the Bombay Police Act and he was sentenced to suffer imprisonment as aforesaid. Consequently, the convict/original accused has challenged the impugned judgment and order by filing Criminal Appeal No. 317 of 1994 while State of Gujarat has filed Criminal Appeal No.479 of 1994 challenging the same judgment and order on the ground that the imprisonment of life imposed on the accused being inadequate for enhancement of the sentence to capital punishment.
13. Learned advocate Mr. Shethna appearing for the accused in both the appeals have vehemently raised following contentions before us:
(i) The prosecution has not been able to establish the deep seated motive. On the contrary, Geeta was in an affair with accused and, therefore, even after knowing that accused was having a married wife she accompanied him.
(ii) Evidence of P.W.1, Preetiben, does not inspire any confidence and the complaint lodged by her is not the FIR as prior to that complaint message was already conveyed to Adalaj Police Station.
(iii) P.W.2, Geetaben, herself is an accomplice in this case and, therefore, her evidence also does not inspire any confidence and the evidence of so-called extra judicial confession made by the accused before his wife Shakuntala in presence of Geeta is also not proved.
(iv) P.W.12, Amrutlal Lallubhai, a so-called eye witness is a got up one as against him so many criminal complaints have been filed and therefore he is under the impression of the investigating agency and as he is a witness of the police agency, no reliance can be placed upon his oral testimony.
(v) Lastly the recovery of sheath without sword at the instance of accused by preparing a discovery Panchnama under Section 27 of the Indian Evidence Act is absolutely bogus document and no reliance whatsoever can be placed upon the evidence of panch witness.
Therefore, according to him, there is absolutely no evidence to connect the accused of the aforesaid crime. Geeta, daughter of the deceased, with whom he had an affair and that does not lead to the conclusion that the accused has killed her father and mother. Therefore, the judgment and order convicting and sentencing the accused is bad in law which requires to be quashed and set aside by allowing the appeal.
14. In counter submission, Mr. M.A. Bukhari, learned A.P.P. with all vehemence at his command, tried to persuade us that the judgment and order recording conviction is absolutely based on appreciation of true facts and legal position and in the facts and circumstances of the case no other conclusion can be arrived at except the one which is arrived at by the learned trial Judge as there is ample evidence to connect the accused with the crime. According to him, alleged motive is also established by prosecution and victim Geeta has supported the case of prosecution throughout who was kidnapped frequently by accused by giving threats of killing father and mother, to her. According to him, the eye witness P.W.12, Amrutlal Lallubhai whose presence was very natural at the scene of occurrence in the very early morning because of his engagement in milk business. Further, according to him, though another eye witnesses have turned hostile, evidence of Amrutlal Lallubhai is so clinching, trustworthy, unimpeachable and inspire confidence and that itself is sufficient to connect the accused with the crime.
15. In view of the aforesaid submissions, he prayed that finding of conviction does not require any interference at the hands of this Court whereas looking to heinousness of crime sentence of imprisonment for life is required to be enhanced by imposing capital punishment on the facts and circumstances of the case. He, therefore, submitted that the appeal filed by the accused may be dismissed while appeal filed by the State may be allowed by imposing capital sentence.
16. So far as homicidal death of deceased K.P. Narayan and his wife Deviben is concerned, it is not disputed even by the defence. The prosecution in order to prove the homicidal death has examined P.W.10, Dr. Kanaiyalal Shankerlal at Ex.23, who was medical officer of Civil Hospital, Gandhinagar at the relevant time and who performed autopsy on 20.8.1991 on the dead bodies of Krishnan Paduwal Narayan and Deviben which were sent by Adalaj Police Sub Inspector. During autopsy he found as many as 13 external injuries and one internal injury on the dead body of K.P. Narayan while he found 3 external injuries and one internal injury on the body of Deviben. He has prepared post mortem reports which are on record at Ex.24 and 25. According to his opinion all the injuries were possible by sword and they were sufficient in ordinary course of nature of cause death and the cause of death was certified to be shock due to haemorrhage due to injuries.
17. In view of the aforesaid evidence of Dr. Kanaiyalal, homicidal death of both the deceased is proved and there is no room for any manner of doubt that the deceased died a homicidal death.
18. This takes us to the next question as to whether accused did the said act and whether the prosecution has been able to bring home the charge against the accused beyond any manner of doubt and accused only and none else has committed the act of murdering both the deceased.
19. Prosecution has placed reliance on the evidence of P.W.1, Preetiben Narayan, whose oral testimony is recorded at Ex.8 who lodged the complaint which is at Ex.9. In her evidence she has inter alia testified that they are three sisters. Geeta is elder and she is younger than Geeta and third one is Priya who is youngest among them. They all were staying with their parents at Satyam Flats, Sola Road, Naranpura, Ahmedabad at the relevant time. Her elder sister Geeta is B.Sc. (Electronics) and B. Ed., and was serving in LIC, Anand at the relevant time. Therefore she was regularly commuting between Ahmedabad and Anand and to get train she was regularly travelling at a fixed time in AMTS bus which she used to get from nearby their house. Her father was serving at Ahmedabad Sarangpur Cotton Mills at the relevant time. As she was travelling fixed time bus she came in contact with Satish who was the driver of the said bus. She further testified that on 7.6.1991 in the evening her sister Geeta came back alongwith accused Satish who produced marriage certificate and declared that he has married Geeta. Therefore her father asked one day's time for verification of the facts stated by the accused as her father did not believe him as a genuine person. From the information collected by her father it was revealed that accused was serving as a driver in AMTS and he has two wives and four children. Therefore, on the next day when the accused came, her father told about his past record. Thereafter the accused ran away leaving Geeta at their house. Thereafter the matter was informed to police.
20. She further testified that on 9.6.1991 her sister Geeta had gone to Anand at the place of her service but she did not come back home. Therefore they inquired at various places and on 30.6.1991 they found Geeta near Shah-Alam Ambar Video cassette Centre. At that time Geeta told them that Satish gave her threat and wherever she would go he would kidnap her. However, Geeta came back to her parental house and thereafter she again started residing with them.
21. According to this witness, again on 4.8.1991 Geeta was kidnapped as per the information given by neighbours to the effect that three persons came in jeep early in the morning and they took away Geeta with them. Thereafter her father K.P. Narayan filed a criminal complaint in the Court of Metropolitan Magistrate at Mirzapur against Satish and Dilavarkhan. She has further testified that on the day when the incident had taken place she was informed by her deceased parents that they were going in search of Geeta at Chandkheda where the accused resides and, therefore, early in the morning her parents riding moped had gone to Chandkheda and thereafter she went to college and when she returned home at 11 O' Clock, police personnel from Gandhinagar were waiting at her residence and taken her to the place where the dead bodies were lying and at that time she came to know that her parents were murdered. From her evidence the complaint Ex.9 was proved. It may be appreciated that during her cross-examination nothing substantial has been brought out which can impeach credibility of her evidence and she withstood the test of cross-examination successfully.
22. Prosecution then placed reliance on oral testimony of P.W.2, Geetaben who is the centre around main motive who has been examined at Ex.10. She inter alia testified similar version as testified by Preetiben with regard to their family background. She has also testified about the place of her service, regularly commuting between Ahmedabad and Anand, going by the same bus of AMTS regularly which was driven by accused Satish and therefore they were started talking with each other. During that time accused put proposal for marriage with her by saying that he is a bachelor. He was pressurizing her to marry him. Therefore, they have entered into civil marriage on 10.9.1990 by filling up forms in the office at Mirzapur. The said document is produced at Ex.51. After the marriage also she was attending her service by regularly commuting between Ahmedabad and Anand. She further testified that while travelling in the bus which was driven by accused Satish, she saw one woman with two children boarded the said bus alongwith a lunch box. Therefore she suspected and inquired from her and during inquiry it was found that she is wife of accused Satish and both the children are also of Satish. After this she got angry upon Satish and told him that he has spoiled her life and therefore she did not want to continue the relations with him. On 7.6.1991 again she went to Anand and when she returned at 8.30 P.M. Satish was with her. She came in a rickshaw to her house with Satish who showed memorandum of marriage to her father and informed that both of them got married. Her parents shocked and her father became angry and Satish was removed by her father from their house. On 8.6.1991 she had not attended her service and on the next day evening Satish came to her house and told her to go with him otherwise he will kill her. Therefore, her parents allowed her to go and thereafter they informed the police.
23. It may be appreciated that this witness has unequivocally admitted that the relations between both of them were of husband and wife and therefore she conceived by him. He informed her parents and, therefore, her parents arranged to abort her pregnancy by admitting her in a nursing home of Dr. Pushpaben.
24. She has further testified that thereafter again she has stated attending the place of service here also she was harassed by Satish by telling that as her father and mother has done abortion and, therefore, he will kill them and also will not spare her and insisted to accompany him. After great persuasion he allowed her to go to her parental house. Thereafter on 19.6.1991 her father lodged a complaint against accused Satish in Jamalpur AMTS office and on 25.6.1991 her father lodged a complaint in the Court of Chief Judicial Magistrate, Ahmedabad (Rural) at Mirzapur. She has further testified that thereafter again she started attending the place of her service and on 9.7.1991 when she came back from Anand, Satish met her at Kalupur Railway Station and by force taken her with him for the purpose of swearing one affidavit and thereafter on 30.7.1991 she was sent to her parental house with his friend Dilavarkhan Pathan. She further testified that in the early morning on 4.8.1991 Satish came to her house and forced her to go with him otherwise he would kill her father and therefore she had gone with him. He took her to his one relative Naranbhai Jadav. She has also stated that as her father has lodged complaint Satish took her to police station on 8.8.1991 and 19.8.1991 for recording her statement. On the day of the incident, that is, 20.8.1991, she was at the place of Naranbhai Jadav in the company of Satish. At the relevant time Satish was not there but he came at 6 O' clock wearing one black coloured pant and without shirt. It was stained with mud having one read coloured sheath in his hand and on arrival he shouted to prepare immediately. Shakuntala, wife of Satish also came thereafter. Thereafter they all the three went to Sabarmati Railway Station. At that time Satish told his wife Shakuntala that father and mother of Geeta have been finished and therefore they have to take special care of her. After saying this Satish went to purchase tickets and his wife Shakuntala went to attend natural call and taking advantage of the situation she thought that Satish has committed murder of her father and mother and she saw Satish in the morning from head to leg wearing black coloured pant which was stained with mud. Therefore she fled away from there. She has further testified that when they proceeded from their house to Sabarmati there was one bag wherein clothes and small pieces of sheath were put inside and the bag was carried by Satish.
25. It may be appreciated that this witness has been cross-examined at length by the learned advocate for the accused and several suggestions were put to her about lodging of complaint, accompanying accused at her own will, staying with accused as husband and wife and with respect to extra judicial confession made by the accused to his wife Shakuntala. It may be appreciated that she has repelled all these suggestions but we could notice one aspect that she had an affair with Satish but as soon as she came to know that Satish is married and having two children she wanted to withdraw from him. However, under compulsion and threat Satish did not allow her to withdraw from his company. Only one contradiction which we could notice from her evidence is with regard to extra judicial confession made by accused to his wife Shakuntala and in this regard investigating officer Vithalbhai Patel has admitted that she has not stated in her police statement that the accused made extra judicial confession before his wife Shakuntala to the effect that her father and mother have been finished. However, Investigating Officer has clarified that Geeta did state before him that accused told Shakuntala that father and mother are no more and, therefore, to her special care is required.
26. In order to prove that Geeta had conceived as a result of matrimonial relations with accused and abortion was done by Dr. Pushpaben, prosecution has placed reliance upon the oral testimony of P.W.3, Dr. Pushpaben Bhatt, Ex.22. She has inter alia stated that on 10.6.1991 Geeta Narayan came to her dispensary alongwith her parents. She was carrying. She was found nervous and Geeta's father told her that his daughter was induced by some married person to marry him as a result of the same she has become pregnant. Therefore, Geeta was admitted in her nursing home on 10.6.1991 for abortion which was done on 12.6.1991 and she was discharged on 13.6.1991. A certificate was also given by her which is produced on record at Ex.11.
27. On overall appreciation of the evidence of the aforesaid three witnesses, it is seen that none of the witnesses are eye witnesses but they are witnesses of circumstantial evidence. From their evidence following aspects are proved which, according to us, have remained uncontrovertible and unimpeachable:
(i) Highly educated family of the deceased alongwith their three daughters were staying in Satyam Flats, Sola Road, Naranpura, Ahmedabad at the relevant time;
(ii) Geeta, a daughter of the deceased, was serving at Anand, in LIC office and, therefore, she was regularly commuting between Ahmedabad and Anand, the place of her service, and for that purpose she regularly boarded fixed time AMTS bus from the nearby bus stop which was being driven by accused Satish;
(iii) Because of regular travelling in the said bus accused developed intimacy with the her;
(iv) Accused presented himself as a bachelor before her and, therefore, he put proposal to marry her;
(v) Geeta, because of inducement, entered into marriage with the accused and started living as husband and wife;
(vi) As a result of matrimonial relations with accused she conceived and, therefore, as soon as she came to know that accused was having wife and children, Geeta wanted to withdraw from him with the help of her parents;
(vii) Accused regularly gave threat to kill them. Therefore, under compulsion and threat she was accompanying him;
(viii) The marriage between the two i.e., Geeta and accused did not like by parents of Geeta and therefore her parents got aborted her pregnancy with the help of Dr. Pushpaben Bhatt;
(ix) Deceased father of Geeta was minded to save Geeta from the clutches of accused. Therefore, he left no stone unturned to save her by lodging complaint before the AMTS authorities, in the Court of law and made inquiries from the Malayalee families residing in the vicinity of Chandkheda;
(x) Deep seated motive is also proved;
(xi) On the day of alleged incidence both the deceased started in the early morning at 4 A.M. for going to Chandkheda on moped in search of their daughter Geeta by informing complainant Preeti who was very much in the house at the relevant time;
(xii) Dead bodies of the deceased were found nearby the house of deceased in Chandkheda;
(xiii) Accused got annoyed as Geeta got aborted at the instance of her father;
(xiv) Accused was frequently giving threat to Geeta to kill her and her parents which is a strong deep seated motive;
(xv) On the day of the incident, Geeta saw accused wearing black pant stained with mud and a red coloured sheath in his hand and shouted to get ready and thereafter alongwith his wife Shakuntala they went to Sabarmati;
(xvi) At Sabarmati Railway Station accused made extra judicial confession to his wife Shakuntala in presence of Geeta that he has finished her father and mother and therefore she is required special care. The said extra judicial confession is seriously challenged by the defence as there is a contradiction. However, the investigating officer has stated that Geetaben used the words in her statement that father and mother has gone and therefore she is to be taken special care. According to us, the word 'gone' will have the same meaning of 'killed' or 'murdered'. Therefore, the extra judicial confession is also proved.
28. The above stated aspects which are proved by the prosecution are unerringly pointing towards guilt of the accused only and none else which according to us is sufficient to connect the accused with the crime.
29. In order to sustain the conviction on the basis of circumstantial evidence, law has been expounded in extenso by catena of decisions of the Honourable Apex Court. It is not necessary to recapitulate them here merely to cover the ideal parade of familiar knowledge. However, one can profitably refer the important decisions on this aspect.
(i) Jaharlal Das v. State of Orissa, AIR 1991 SC 1388;
(ii) State of Haryana v. Ved Prakash, AIR 1994 SC 468;
(iii) Ramkumar Madhusudan Pathak v. State of Gujarat, 1998 (7) SCC 702;
(iv) Sharad Birdhichand Sarla v. State of Maharashtra, AIR 1984 SC 1622.
(v) Gokaraju Venkatanarasa Raju v. State of Andhra Pradesh, (1993) 3 Supreme Court Journal (SC), 265.
30. The Supreme Court has laid down following principles to base conviction on the basis of circumstantial evidence:
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. Further in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.
31. Keeping in forefront the aforesaid ratio laid down in the aforesaid cases and the factual aspects of the case which we have adverted hereinabove, the circumstances from which the inference of guilt is to be drawn are cogently and firmly established and they have definite tendency of unerringly pointing towards guilt of the accused and that the circumstances taken cumulatively form a chain so complete that there is no scape from the conclusion that within all human probability the crime was committed by the accused and none else. These circumstances are complete and incapable and explanation of any other hypothesis than that of guilt of the accused and they are inconsistent with his innocence. At the cost of repetition we may say that all the above circumstances get corroboration from he evidence of extra judicial confession made by the accused before his wife in presence of P.W.2, Geeta, who is a daughter of the victim.
32. The matter does not rest here. In order to prove culpability of the accused the prosecution has examined one eye witness whom can be branded as star witness. P.W.12, Amrutlal Lallubhai whose oral testimony is recorded at Ex.35, who inter alia testified that he is residing at Chandkheda in Laxminagar Society and doing the job of selling milk by keeping cows. He knows neighbour Somabhai Barot and his brother Kantilal Dave who is residing in Gujarat Housing Board Colony. He also knows Satish - the accused, son of Kantilal, who was serving in red bus (AMTS). He has further testified that on the day of the incident i.e., 20.8.1991 in the early morning at 5 A.M. he went to chowk to milk cows. At that time he saw one person came running from Chamunda side and shouted for help. One person was coming behind him armed with sword and they were scuffling. The person who was armed with sword gave three blows on the body of the person shouted for help. The person receiving blows fell down. This witness has identified the assailant accused in the Court also and he reiterated before the Court that he is the same person who has given blow with sword to the person shouted for help. He has also testified that the accused was wearing black pant and something like jersey. He has also deposed that there were two poles of electricity about 6 ft. near the place of offence. He also testified that the dead body of the male was seen near a heap of dirt. He has further inter alia testified that he knows Balvantsinh whom he saw at that time who informed him that there is one dead body of a female lying at some distance. He has unequivocally stated that he has not seen the dead body of female but he had seen dead body of male. This witness has been cross-examined by the advocate for the defence at length with respect to his engagement in selling milk, topography of the area where the crime had taken place. He has admitted that he had not gone near the victim as he did not indulge himself into involvement with the police. Number of documents were produced by the defence during his cross-examination showing his antecedents and involvement in criminal cases though he stuck to the version that he has been falsely implicated in all the criminal cases. Learned advocate Mr. Shethna will trying to assail the evidence of this eye witness has contended that his record is not good and he has involved in so many criminal cases and his presence at the odd hours in the early morning is not natural one and therefore he is a got up witness and not a natural one and, therefore, no reliance whatsoever can be placed upon his oral testimony. Then Mr. Shethan drew our attention that he was a panch witness of panchnama Ex.70 which was drawn at the earliest point of time. At the time of preparing panchnama he has not declared before Investigating Officer that he saw the incident and, therefore, he is not an eye witness. In this view of the matter, runs the further submission that when he claims to be an eye witness he ought to have informed the investigating officer but he elected not to inform the police the way and manner in which the incident has taken place which has been witnessed by him and simply remained a silent spectator and became panch of the panchnama of the place of incidence. Therefore, on this score also no reliance whatsoever can be placed on his evidence.
33. It is true that panchnama of place of occurrence is produced at Ex.70. He is one of the panchas. Another panch is Prahladbhai Hirachand Panchal. The said panchnama was drawn between 10.15 AM and 12.00 noon and the complaint was recorded by P.W.1 after drawing the panchnama. The investigation was already in motion pursuant to the telephonic message received by Ramaji Devaji Chavda at Adalaj Police Station as the said information was also entered into station diary. He has unequivocally stated that he does not indulge himself into police affairs. Therefore he might have remained silent. That fact by itself is not sufficient to discard the oral testimony as an eye witness.
34. It is true that so many complaints have been lodged against him showing his involvement in criminality which according to us is also not a ground to discard his oral testimony. There cannot be absolute proposition of law that the involvement of witness in criminal activity would always impeach his credibility. However, it is true that and we have to assess and evaluate the evidence of such witnesses who indulge in criminal activities with great care and caution. So far as this witness is concerned, it was a natural one, he being a rustic shepherd, his engagement in milk selling and keeping cows for this purpose is also natural and the time of milking of cows is also very much natural. Therefore, we place lot of reliance on the oral testimony of this witness.
35. It is also seen from the evidence of this witness that he saw the assailant inflicting injuries on the male, that is, K.P. Narayan but he has not seen the assailant inflicting injuries on the female, that is, Deviben. During his examination in chief, he has unequivocally admitted that one Balvantsinh was also present at that time who informed that one dead body of a female was lying at a nearby distance and thereafter during investigation, two dead bodies were found from the same area. This witness saw the assailant inflicting injuries on the male person only and he has deposed accordingly. He has not stated that he saw accused inflicting injuries on both the deceased persons. That fact itself is also one of the grounds to believe that he is a natural witness as he has refrained himself from deposing falsehood.
36. Here again, Mr. Shethna criticized that no one witnessed the accused inflicting injuries to Deviben, therefore, accused cannot be held guilty for murder of Deviben. We are not prepared to accept the aforesaid criticism of Mr. Shethna because witness Amrutlal has unequivocally deposed that he saw accused inflicting injuries to male person and it has come in the evidence that on the fateful day both the husband and wife left for Chandkheda on moped as they were very much minded to get rid of their daughter from the clutches of harassment of the accused. In view of the aforesaid state of affairs, we are fully convinced and satisfied by reading the evidence of star eye witness Amrutlal Lallubhai that he witnessed the incident and therefore he is a witness of sterling quality though involved in criminal activities but he has not been convicted so far and according to us his evidence is unimpeachable, untainted, unassailable which inspire confidence and on the basis of his evidence only conviction can be sustained.
37. In earlier paragraphs of this judgment we have discuss at length the circumstances and deep seated motive established by the prosecution which unerringly pointing towards the guilt of the appellant/accused and the chains of all the circumstances are so complete that no iota of doubt is raised in our mind and not only that the said chain of circumstantial evidence are also got full corroboration from the evidence of the eye witness Amrutlal Lallubhai. Therefore, we are fully satisfied that the offence have been fully brought home against the accused by the prosecution.
38. In view of the aforesaid state of affairs of the evidence we are fully satisfied and convinced that the prosecution has successfully established the case against the accused and we are also of the opinion that the learned trial Judge has very rightly appreciated and evaluated the evidence in its proper perspective. The learned trial Judge has also appreciated the case law referred to by the learned advocate for the accused and has rightly negatived the submission on behalf of the accused holding that those case laws are not applicable to the facts of the present case. Accordingly to us, no other conclusion except the one which is arrived at by the learned trial Judge is possible on the facts and circumstances of the case. Hence, the judgment and order of recording conviction does not require any interference by this Court and on the contrary it requires our affirmation.
39. In the premises, the Criminal Appeal No. 317 of 1994 filed by appellant/accused is liable to be dismissed and resultantly it is dismissed.
40. Now coming to Criminal Appeal No. 479 of 1994 filed by State of Gujarat challenging the sentence being inadequate to the guilty of the offence, it may be noted that the learned trial Judge has imposed minimum sentence of imprisonment for life. By filing the appeal, State of Gujarat has contended that looking to the heinous and ghastly crime of double murder of a Malayalee couple, it falls within the category of rarest of the rare case and therefore deterrent punishment, that is, capital punishment, i.e., sentence of death, is required to be imposed upon the appellant.
41. Learned A.P.P. Mr. Bukhari while taking us through the medical evidence and post mortem notes contended that as many as 13 injuries were found on the person of the dead body of K.P. Narayan which were on the vital part and inflicted with sword while three injuries were found on the dead body of Deviben. All the injuries were brutal in nature. Therefore, the appellant should be dealt with sternly by setting an example in the society by imposing death punishment. His criminal act of killing two innocent persons just to satisfy his carnal desire by inducing to marry the victim girl to marry with him inspite of he is having married wife and children is not pardonable and in support of his contention, he heavily placed reliance on the decision of the Honourable Supreme Court in the case of Govindaswami v. State of Tamil Nadu, 1998 (2) Crimes 238 (SC), wherein Honourable Supreme Court has held as under:
'Indian Penal Code, 1860 - Section 302 - Murder Quantum of sentence - Victim and his entire family except one son who was away, wiped out in a brutal manner obviously to grab his properties Absence of extenuating or mitigating circumstances in favour of accused - Case falls in 'rarest of rare' category - It is fit and deserving case for awarding death sentence to accused.'
By relying on the aforesaid judgment, Mr. Bukhari contended that so far as the instant case is concerned, this case falls in the rarest of rare category and therefore it is fit and deserving case for awarding death sentence to accused.
42. Mr. Shethna appearing on behalf of the accused has contented that this is not a case falling in the category of rarest of the rare case. According to him, though crime of double murder is heinous in nature however in view of the fact that accused was serving as driver in AMTS bus at the relevant time and Geeta was regularly boarding the bus which was being driven by him and as a result of which intimacy between Geeta and accused developed and he married her and the deceased were the obstacle in their way as deceased wanted to withdraw his daughter from his company and he considered the deceased as an obstacle in his way and as a result of it, he might have done this act which is of course not pardonable but does not fall within the category of rarest of rare case and there is no evidence that he is a habitual offender or his presence in future on completing his life tenure he would be a menace to the society at large and his presence in society would be endangering the members of the society and public at large and, therefore, learned trial Judge has very rightly not imposed the death penalty and the reasons assigned for not imposing death penalty is also cogent and it therefore cannot be lightly interfered with.
43. We have given our anxious thought to the rival contentions of the learned advocate for the parties. We are of the opinion that the learned trial Judge has very rightly dealt with this aspect and he has shown all the extenuating or mitigating circumstances in favour of the accused for imposing minimum sentence of imprisonment for life. He has also rightly appreciated the ratio laid down by the Apex Court in various pronouncements referred to before him by the learned advocate for the accused. In conclusion the learned trial Judge has observed as under:
'In this case admittedly the accused is a poor man and a driver in Ahmedabad Municipal Transport Bus Services. He has committed this double murder for his love for Gita, the daughter of the deceased persons. He is not a lethal economic offender nor he is a hardened criminal. It is not on record that he relishes the killing to the extent that he is beyond rehabilitation. This is therefore not the rarest of the rare case as contemplated and as such the accused does not deserve capital punishment in this case.'
44. Since we are in agreement with the aforesaid observations made by the learned trial Judge and we are fully satisfied that this is not a case falling in the category of rarest of rare case which can be called fit and deserving case for awarding death sentence to accused.
45. We are also fortified in our view by the latest decision of the Honourable Apex Court in the case of Panchhi v. State of U.P., (1998) 7 SCC 177. In paragraph 20 of the said judgment, Honourable Apex Court has observed as under:
'We have extracted the above reasons of the two courts only to point out that it is the savagery or brutal manner in which the killers perpetrated the acts on the victims including one little child which had persuaded the two courts to choose death sentence for the four persons. No doubt brutality looms large in the murders in this case particularly of the old and also the under-aged child. It may be that the manner in which the killings were peculiar or very special in these killings. Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the 'rarest of rare cases' as indicated in 'Bachan Singh case'. In a way, every murder is brutal, a and the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder.'
46. In this view of the matter, we confirm the order of sentence passed by the learned trial Judge imposing sentence of imprisonment for life.
47. In the premises, Criminal Appeal No. 479 of 1994 filed by the State of Gujarat is also required to be dismissed and resultantly we dismiss the same.
48. In the net result, both the appeals are dismissed.