NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL NO. 773 of 2005

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE AKIL KURESHI

and
HONOURABLE MR.JUSTICE BIREN VAISHNAV

==========================================================

1 Whether Reporters of Local Papers may be allowed

to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of

the judgment ?

4 Whether this case involves a substantial question of

law as to the interpretation of the Constitution of
India or any order made thereunder ?

==========================================================
KRUSHNAKANT @ KANUBHAI BALDEVBHAI PATEL....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
==========================================================
Appearance:
MR. JAY M THAKKAR, ADVOCATE for the Appellant
MR HIMANSHU K PATEL, APP for the Opponents
==========================================================

CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI

and
HONOURABLE MR.JUSTICE BIREN VAISHNAV

Page 1 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

Date : 07/02/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)

1. This appeal arises out of judgement dated 28.03.2005 rendered

by the learned Additional Sessions Judge, Gandhinagar, in
Sessions Case No. 16 of 2003.

2. Briefly stated, the prosecution version was that deceased Salim

and deceased Devsi were close friends since many years. Salim
had purchased a second hand Indica car by borrowing money
from the present appellant, Krushnakant @ Kanubhai
Baldevbhai Patel, original accused No.3. Salim, however, could
not repay this amount. Kanubhai, therefore, hatched a
conspiracy with four other accused persons and, in furtherance
of which, the said four accused killed Salim and Devsi. The
actual murder, according to the prosecution, took place late at
night on 06.06.2002 near village Raysan in the outskirts of
Gandhinagar. The two dead bodies were then put in the back
seat of the Indica car. The bodies were then brought in the
Indica car near village Vavol. To destroy the evidence, the
accused poured petrol on the car and set it on fire. The charred
bodies of the two deceased persons were found on the back seat
of the car which was also badly damaged due to fire. It was
difficult to recognize either the dead bodies or the car also.
Charge to this effect was therefore, framed at Exh 12 alleging
that the three accused Jasubhai Vishnubhai Patel, accused No.1,

Page 2 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

Nischal Bharatkumar Thaker, accused No.2 and Krushnakant @

Kanubhai Patel accused No.3 i.e. the present appellant had
committed offence under section 364 read with section 120B
and offence under section 201 read with section 120B. All these
principal offences, in the alternative, were sought to be
established through the aid of section 34 of IPC. The fourth
accused Arunkumar Jivanbhai Parekh being a juvenile was tried
by the Juvenile Court. The fifth person Nirupam @ Bhuriyo
Jamnadas Kansagra (Patel) has all along absconded.

3. The learned Sessions Judge, by the impugned judgement,

convicted all the three accused for offences under section 364,
302 and 201 of IPC read with section 120B of the Code and
sentenced them to life imprisonment in addition to imposing
lesser sentences. This judgement was challenged by the three
convicted accused by filing three separate appeals. We are
informed that, original accused Nos.1 and 2 died during the
pendency of their appeals. Their appeals, therefore, have abated.
We are, therefore, concerned only with the conviction of
original accused No.3, Kanubhai Patel, the present appellant.

4. We may record the gist of the relevant evidence. Dr. Jayesh

Balwantinh Rupala, PW 1, Exh 24, was the Medical Officer at
Gandhinagar Government Hospital at the relevant time. He had
carried out postmortem of both the dead bodies. He had found
both the dead bodies badly burnt so much so, that he could not
record any injuries, if caused, before the burning occurred.

Page 3 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

However, on the basis that no carbon partials were found from

the windpipe or the throat and no inflammation or blisters were
found on the body, he formed an opinion that the burn injuries
were postmortem. He had concluded that the cause of death was
peripheral circulatory failure. He explained that in simple terms,
this means death due to excessive bleeding. The evidence of this
witness is relevant to the limited extent of establishing that the
two deceased persons had not died due to burn injuries, but had
already died due to excessive bleeding before their bodies were
burnt.

5. Nizamuddin Riyazuddin Saiyed, PW 3. Exh 30, was the

resident of Gandhinagar and was working as an RTO agent. He
knew deceased Salim when he was studying in school and
college. Through Salim he had also come in contact with
deceased Devsi. According to him, at about 11.30 at night on
06.06.2002, he had gone to exchange the scooter of his friend
Deepak Gajjar with his motorcycle which was lying at his
friend's place. On the way, he had picked up his friend Ravindra
Rathod. While returning from the house of Deepak, he had
stopped at Fun World for a cup of tea. At the tea stall, he had
seen deceased Devsi and Nischal, accused No.2 in a silver
metalic coloured Maruti Zen. He had seen Nischal and Devsi
leaving this place after ten or fifteen minutes of his arrival.

6. Dilipsinh Jethubha Parmar, PW 4, Exh 31, also lived in

Gandhinagar and worked at Ahmedabad for a private firm. He

Page 4 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

had come in contact with Salim and Devsi about six years
before the incident. Through them he had also come in contact
with Kanubhai Patel, accused No.3 and other accused, Nischal.
According to him, Salim and Devsi had their hangout place near
a mango tree in Sector 12 of Gandhinagar. About four months
before the incident, Salim had come to this witness with his
friend Nenusinh and told him that one Indica car in good
condition was for sale for about two lacs rupees. Salim was
interested in purchasing the car. He could not, however, obtain
loan. The car was, therefore, purchased in the name of
Dilipsinh, for which, a sum of Rs. 1,97,000/- was paid, out of
which, Kanubhai had loaned Rs. 80,000 to 82,000/- to Salim.
Rest, Salim had raised from his personal source and other
sources. Though the car was registered in his name, Salim was
using it. About five days before the incident, he had met Salim
and Devsi who had come in the Indica car when Salim had told
him that he had sold the car to Devsi. On 7th June, 2002 when he
was at his office in the afternoon, his friend Nenusinh called
and told him that the car purchased in his name was found in
burnt condition at Vavol-Uvarsad road and there were two dead
bodies in the car.

In the cross examination, he stated that the car was purchased in

his name so that a loan can be raised and the money can be paid
over to the lenders. The loan was to be obtained from Vishal
Finance. They had gone to raise the loan but, had failed. He had
not seen Kanubhai giving money to Salim but was told so by

Page 5 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

Salim himself.
7. Rajendrakumar Kubersinh Gol, PW 5, Exh 33 was a resident of
Village Vavol. He deposed that on the night of the incident at
about 3 O'clock, he was at his home. Other residents of the
village came to his house for making a phone call and told him
that it appears that a car was burning on Uvarsad road. He had,
therefore, made a phone call and informed the Pethapur Police
Station. After that, he had gone to the road with his
companions. He saw the car burning. Soon the police and the
fire brigade arrived. The fire was extinguished. They found that
in the car, two burnt dead bodies were also lying on the back
seat. His FIR was registered by the police which was produced
at Exh 34.

8. Satuji Shivaji Gol, PW 6, Exh 35, was also a resident of Village

Vavol. He deposed that on the night of 6th June 2002, when he
was sleeping at his house, one Udaji told him that something
was burning. He had gone to the place alongwith Pawankumar,
his son, and many other residents of the locality. From a
distance, they could see the car burning. He had come back and
the villagers had made a phone call to the police. After that, he
had gone back to the place, at which time, one car was coming
towards Vavol. He and others tried to stop the car but the car
came right towards them. The lights of the car were put off and
the car immediately went away. It looked like a Zen car. He
could not state how many people were sitting in the car.

Page 6 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

In the cross examination, he stated that it had taken about half

an hour for his son to go and make a call and come back. He
agreed that on the Vavol-Uvarsad Road, many vehicles passed
regularly. The car had come from the direction of the burning
car.

9. Kokilaben Prabhatsinh Thakore, PW 8, Exh 39 lived in Sector

16 of Gandhingar. She knew Salim and his brother Firozbhai.
Salim had got her odd job in the hostel in Sector 12. Through
Salim, she had come in contact with some of his friends viz.
Nischal, accused No.2 and Kanubhai, accused No.3 and
deceased Devsi. Salim used to hang around right next to her hut.
She knew that Salim had purchased Indica car which Salim and
Devsi both were using. About a week before the incident,
Arunkumar i.e. the juvenile accused, Kanubhai, accused No.3
and Nischal, accused No.2 had come near her hut at about 10
O'clock looking for Salim and Devsi. They were abusing them.
Some four or five days later, Jasubhai, accused No.1 and
Arunkumar and Nischal came on two motorcycles. They were
again looking for Salim and Devsi. On 6th June,2002, she was
cooking in her hut when, Kanubhai Patel, Nischal, Jasubhai and
Arunkumar came. They asked one boy Ravi about Salim and
Devsi because they wanted to beat them up. Ravi had come to
where she was cooking and told her that these people were
looking for Salim and Devsi to beat them up. Salim was on the
terrace at that time. She had informed him that his enemies were
looking for him. Sometime later, Salim and Devsi left in the car.

Page 7 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

Next day, Devsi's father had come to her hut looking for Devsi
and Salim. Later, Salim's brother had also come.

In the cross examination she agreed that she came to know

about the details through the boy. She did not have independent
information. She agreed that she had friendship with Salim. She
had not stated in her police statement about the earlier visits of
these accused looking for Salim and Devsi. She also appears to
have agreed to the suggestion that she had not heard what was
told to Ravi but gathered the information when Ravi told her the
same.

10. Nenusinh Durgasinh Chauhan, PW 9, Exh 41, was also a

common friend of Salim and others. He was a resident of
Gandhinagar and worked as an RTO agent. He also knew about
Salim having purchased Indica car by borrowing money from
Kanubhai. According to him, Salim had raised the required
amount from different sources which included Rs.
21,500/- from Kanubhai. He had given full breakup of the
amounts borrowed by Salim. According to him, in his
deposition, this amount was to be returned by raising a loan
from a finance company in the name of Dilipsinh. This,
however, did not materialize due to which, Kanubhai would
frequently raise the demand for returning the amount and
eventually, Salim had passed on the car to Devsi.

He further stated that on 06.06.2002 at about 7 O'clock in the

Page 8 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

evening when he was at home, Salim and Devsi and one Ashish
came to his house in their Indica car and told him to accompany
them to Ahmedabad. Since he was unable to leave, they all went
for a short excursion. They came to Sector 12 after which, he
was dropped at his house. He stated that at that time, Devsi was
wearing a white coloured full sleeve shirt and blue coloured
jeans pants and Salim was wearing a yellow coloured full
sleeve shirt with metal buttons and a blue jeans pants. Next day,
he had gone to the site with Salim's brother and could identify
the Indica car from a metal flag-stick fixed on the front
mudguard of the car.

In the cross examination he was mainly questioned on the

breakup of the amount raised by Salim. He stated that he knew
such details since Kanubhai, about fifteen days later, had told
him to write it down on a piece of paper. He had preserved such
note but had not mentioned about it in his police statement. He
agreed that his two statements were recorded by the police on
the same day. In the first of the two statements, he had not
mentioned about the borrowed money. After he left the police
station, he was immediately called back and his second
statement was recorded.

11. Santosh Haricharan Sharma, PW 10, Exh 43, was the

resident of Ahmedabad and was engaged in electronic fitting
work. He was working as a helper of one Pareshbhai Babulal
Shah. He deposed that in the month of June 2002, he was

Page 9 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

working with Paresh at one Waghela farm near Gunghat hotel.

Everyday he and Pareshbhai would travel on one scooter and
return. On 06.06.2002, he had gone for work to Waghela farm
from where he was returning with Pareshbhai at about 2.30 to
quarter to 3 at night. When they were passing by the village
Vavol, they saw one burning car on the road. Next to this
burning car, one Zen car was standing. He gave registration
number of this Zen car and also stated that four persons were
standing near the car. Pareshbhai tried to stop his scooter. These
people asked them to disappear. He and Pareshbhai got scared
and left the place. Next day, he read in the newspaper that two
persons were burnt in an Indica car near village Vavol. He had
told his employer Bhawan Bharwad that they had seen the
burning car. Bhavan Bharwad told him that the car belonged to
his brother's brother-in-law. He identified accused Jasubhai and
Nischal before the Court. He, however, could not identify
Kanubhai Patel, accused No.3, since because of his physical
impairment, he was not made to sit in the accused dock but was
sitting separately in the wheelchair.

In the cross examination he stated that he was working at the

Waghela farm since about three months. It was dark at night
when he was passing by the place. The police had never called
him for test identification parade of the four persons standing
next to the car. He had gone to the police on 11.06.2002 with
Pareshbhai when his statement was recorded.
Normally, they would leave the farm in the evening after

Page 10 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

completing the work. The work did not involve any urgency. He
had not told the police that he and Pareshbhai had tried to stop.
He agreed that he had seen the car from the running scooter. He
agreed that it was Bhawan Bharwad, who had brought him and
Pareshbhai to the police station. In his police statement,
apparently, he had not given description of the four people
standing by the car nor stated that he would be in a position to
identify them. He had not seen the two accused identified by
him before the Court either before the incident of the night of 6th
June,2002, or after that. Except for the night of 6th June, 2002,
he had never returned from the farm as late as 3 O'clock at
night.

Though he agreed that he knew Bhawan Bharwad well, he

denied that he was a witness created by Bhawan Bharwad. He
could have gone to the police between 7th and 10th of June,2002,
but did not want to get involved in the mess. Later on, since the
deceased was a relative of his employer Bhawan Bharwad, he
decided to go to the police. Though he knew that Bhawan
Bharwad had three or four cars, he did not know the registration
number of any of them.

12. Naresh Himmatlal Paliya, PW 16, Exh 58 was also a resident of

Gandhinagar and an RTO agent. He had his office at
Gandhinagar. He deposed that in June 2002, accused No.1
Jasubhai Patel had set up Shivsena Office in sector 16 of
Gandhinagar. Jasubhai was its President. He was Vice President

Page 11 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB
th
alongwith Nishchal and one Kulvinder Gil. On 6
June,2002, a meeting of Shivsena was convened at 9 O'clock at
night in the office. He had attended the meeting. Nishchal had
come in an Indica car. Jasubhai had come in Maruti Zen car
which belonged to his friend. Other accused Kanubhai and
Arunkumar were also there. At that time, Kanubhai had stated
that he had to recover Rs. 1,40,000/- from Salim. He told
Jasubhai and Nischal that they were unable to recover since 15
days. Jasubhai told him that they were looking for Salim since
three to four days but were unable to find him. Kanubhai urged
them to do something, upon which, Jasubhai told Kanubhai that
today, we will either get the money or finish him. Kanubhai also
told them to either recover money or to finish him. Next day, he
learnt that Salim and Devsi were burnt in their Indica car. His
statements were recorded by the police on 7th June and 9th
June,2002.

In the cross-examination he stated that on 7th June,2002, he had

told the police whatever he remembered. He was called again
by the Police Inspector, Vataliya on 9th June,2002. On 7th June,
2002, he had got extremely scared and that therefore, not given
the full details. On 9th June, 2002 he was less scared. He agreed
that in his police statement of 7th June,2002, he had not referred
to the conversation between Kanubhai and Jasubhai during the
meeting of 6th June,2002. He agreed that in neither of his two
statements he had referred to his being scared.
He agreed that Kanubhai was neither an office bearer nor a

Page 12 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

member of Shivsena and therefore, he had no reason to be

present during the meeting. This witness was also questioned on
Kanubhai having initiated ACB trap against two RTO officers
for which, the witness had tried to persuade Kanubhai to drop
the cases suggesting that since Kanubhai refused to oblige, he
was giving false evidence against Kanubhai.

13. Surendrasinh Sajubha Zala, PW 19, Exh 72, was serving on a

petrol pump situated in Sector 23 of Gandhinagar. According to
him, he was on night duty on 6th June,2002 when at about 12
O'clock at night, one person came in a Maruti car with two
containers and had taken five litre petrol in each of them from
the petrol pump. He had initially refused to give the petrol but
the person told him that another car had run out of petrol for
which, he needed it. He, however, was unable to identify such a
person.

14. Anandram Maganram Maharaj, PW 20, Exh 73, was the

pujari of a temple at Vavol. According to him, on the night of
the incident when he was sleeping outside the temple, one
person woke him up and asked for a matchbox which he had
given. He, however, stated that he had cataract and was not
wearing his glasses and therefore, could not see the faces.

15. Barot Rajeshkumar Babubhai, PW 21, Exh 76, was the

employee of one Anand guest house at Gandhingar. He was on
night duty on 6th June,2002, when at about 1.30 at night,

Page 13 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

accused No.1, Jasubhai Patel had come there. He knew him.

Accused Jasubhai was a frequent visitor of the guest house. His
clothes were blood stained. He had used the guest house
bathroom for a bath and changed his clothes, some of which
were ordinarily lying at the guest house. Jasubhai was a
headstrong person and his boss therefore had told him not to
charge Jasubhai.

In the cross-examination, he agreed that he had not mentioned

about the incident to anybody for about 12 to 13 days.

16. Dharamsinhbhai Mandanbhai Rabari, PW 23, Exh 78, was the

resident of Borij near Gandhinagar. He had a tea stall in sector
21 opposite a printing press, where, according to him,
Arunkumar and Nischal would hang around. On 7th morning,
Arunkumar and Nischal had come to him and given him a silver
ring to keep for sometime. Some three days later, Nischal
instructed him to collect Rs. 4000/- from Kanubhai which
Kanubhai had to give to Nischal. He had gone to Kanubhai and
given that money to Nischal in presence of Arunkumar and
Jasubhai.

17. Ashish Ashvinbhai Trivedi, PW 40, Exh 118, was the friend of
Salim and Devsi and lived in Gandhinagar. According to him,
in the afternoon of 6th June,2002, Salim and Devsi had come to
his house in the Indica car to take him to see a film. They had
seen the film in city plaza. They had again assembled at night

Page 14 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

near the hut of Kokilaben when Kokilaben had told them that
the accused were looking for Salim and Devsi. Late at night,
they had separated. Salim and Devsi had gone in the Indica car.
He had gone to see the Indica car after it was burnt. He could
identify the car on the basis of one dent on the rear side and the
springs on the windows for curtains.

18. Narendrabhai Kanjibhai Chauhan, PW 41, Exh 123 was also a

common friend. He knew that Salim had purchased an Indica
car by borrowing money which he could not repay. He could
also identify the car even after it was burnt down on the basis of
the springs on the windows and also a scratch mark on the car
which was caused when he was driving the vehicle.

19. PW 43, Pravinbhai Dahyabhai Patel, Exh 128 had a

printing press in Sector 21 of Gandhinagar. Nischal had his
office next to the printing press. In June 2002, Nishcal had
come to his printing press and borrowed Rs. 3500/- for a day.
Later on, he had gone with Dharamsibhai to pay Rs. 4000/- to
Nischal. He had asked Nischal to repay his Rs. 3500/- but
Nischal told him that he will be able to pay later.

20. Kanabhai Vamabhai Bharwad, PW 52, Exh 145, is the father of

deceased Devsi who deposed that his son had purchased an
Indica car from Salim for two lacs of rupees. On 7th June,2002,
he had tried to look for his son. He had gone to the place where
the car was found in burnt condition. He could identify the car

Page 15 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

from the aluminum plate fitted on the wheels and also a dent.
He could also identify one of the bodies as that of his son from
a piece of burnt shirt.

21. Firozkhan Abbaskhan, PW 59, Exh 163, was the brother of

Salim. He was working as a police constable. He deposed that
Salim had bought an Indica car in the name of his friend
Dilipsinh. Salim and Devsi used to use the car. On 6th
June,2002, Salim and Devsi had come home in the afternoon for
lunch. When they left, Salim was wearing a yellow colour shirt
which had metal buttons on which “Lee and Cooper” was
embossed. He was wearing jeans pants. He could identify the
dead body on the basis of the burnt shirt and the car from the
engine and chassis number. According to him, Salim had
borrowed money from Kanubhai. To recover it, Jasubhai,
Kanubhai and Nischal would often come in a Maruti Zen car.
He identified a ring and a key-chain as those belonging to
Salim.

22. Pinakin Madhusudan Aacharya, PW 39, Exh 114, was the

Scientific Officer at Gandhinagar. He had visited the site where
the Indica car was lying. He deposed that it was not possible to
recognize the colour of the car or to read the registration
number. He could however, read the engine number from the
plate and the chassis number. He gave such numbers to the
court.
23. Rajeshkumar Rameshchandra Mehta, PW 57, Exh 158

Page 16 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

was also the Scientific Officer. He had collected samples from

the Maruti Zen car which included blood spots from the
mattress on the rear seat of the car.

24. The prosecution had examined certain witnesses to show

the movements of the other accused immediately after the
offence. According to the prosecution, accused Nos. 1 and 2 and
the juvenile accused had left Gandhinagar soon after the
incident and were hiding in and around Surat. They were
ultimately arrested from the guest house at Navsari on
18.06.2002. It is not even the case of the prosecution that the
present appellant, original accused No.3 had left Gandhinagar.
It is, therefore, not necessary to refer to the evidence of these
witnesses.

25. During the investigation, the prosecution had collected

certain materials under various panchnamas which included the
articles from Maruti Zen car under panchnama Exh 50,
discovery of a wallet of Devsi at the instance of accused No.2
under panchnama Exh 53, discovery of weapons at the instance
of accused No.1 under panchnama Exh 57.

26. Arvindkumar Bhagwandas Vataliya, PW 66, Exh 202,

was the Investigating Officer. He gave a detailed account of the
investigation and the steps taken by him during such
investigation. Through the evidence of this witness, the defence
brought on record certain improvements and contradictions in

Page 17 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

the depositions of the witnesses as compared to their police

statements.

27. Though defence had also examined certain witnesses, in

our view their depositions are not of much importance. We may
therefore, not refer to them.

28. This, in the nutshell, is the evidence on record. On the

basis of such evidence, learned counsel for the appellant
submitted that the prosecution failed to establish the charges
against accused No.3 beyond reasonable doubt. The motive for
commission of the offence was not established. The
circumstantial evidence against this accused was insufficient to
establish his role. Identification of the dead bodies as well as
that of the Indica car was unreliable. Certain witnesses were
totally unreliable and had made material improvements and
contradictions. He, therefore, submitted that the Trial Court
committed a serious error in convicting the present appellant.

29. On the other hand, learned APP Mr. H.K.Patel opposed

the appeal contending that there was sufficient evidence to
involve the accused in commission of the offence. He had clear
motive. By very nature of things, direct evidence of conspiracy
would rarely be available. However, in the present case, there
was substantial evidence pointing to the fact that it was solely
on account of Salim's inability to repay the loan to the present

Page 18 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

appellant, that Salim and Devsi were murdered.

30. From the evidence on record a few things clearly emerge. That
Salim and Devsi were friends since long. Salim was also
familiar with all the four accused including the juvenile
accused. The fact, that Salim had purchased an Indica car for a
sum of about two lacs of rupees but that the said car was
purchased in name of Dilipsinh, PW 4 is also duly established.
Devsi explained the reason why the car was registered in his
name. Salimbhai needed to raise the money from borrowed
sources. He hoped to repay such amount by raising loan from a
finance company. Since it was unlikely that Salim himself could
have got the loan, he requested and Dilipsinh allowed him to
register the car in his name. An attempt was also made to raise
the loan from a finance company so that the money borrowed
by Salim from private sources could be repaid. This, however,
did not materialize and that therefore, Salim's private loan
remained outstanding. The fact that part of such loan was raised
from the present appellant Kanubhai Patel is also not in dispute.
Besides Dilipsinh, PW 4, this was also so stated by Nenusinh,
PW 9. He was also an RTO agent where the present accused
also worked. This witness may not be entirely relied upon when
he gives the detailed breakup of the sources from which Salim
might have raised the loan his explanation that he had noted
down such details at the instance of Kanubhai cannot be readily
accepted. We may recall, he had not produced any such note
before the police or at any rate, the police had not produced any

Page 19 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

such rough note before the Court. Despite this, we have no

reason to discard the version of these two witnesses when they
refer to Kanubhai having lent such substantial amount to
Salimbhai for purchase of the car and further that Salim could
not repay the same.

31. With this background, we may first refer to the

identification of the dead bodies and the Indica car. Despite
serious effort made by learned counsel for the appellant, we
have no hesitation that the car found in the burnt condition was
the Indica car of Salim which was, later on, sold by him to
Devsi and that the two charred dead bodies were of these two
friends. Several witnesses referred to the special identification
marks on the car. They referred to the springs for curtains on the
windows. They referred to the metal flag-post on front of the
mudguard. They referred to a particular dent on the rear side of
the car. One of the witnesses referred to a scratch mark for
which he himself was responsible. We need not doubt the
identification of so many witnesses. Further, even the FSL
Officer Pinakinbhai, PW 39 had recorded the chassis and engine
number of the car. It is true that in the initial portion of the
panchnama it is stated that, it was not possible to read the
numbers. However, it appears that the FSL Officer, with efforts,
could note down such numbers.

32. Regarding the identification of the dead bodies also we have no

Page 20 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

doubt. Both the friends were seen through out the day and till
late at night on 6th June,2002 moving around Gandhinagar in
their Indica car. The next morning the Indica car was found
with two charred bodies lying on the back seats. The dead
bodies were identified through their clothes. The witnesses who
ought to know such, as the brother of Salim and father of Devsi,
had given description of the clothes which they were wearing
on 6th June, 2002, in particular, Salim wore a shirt with iron
buttons and blue jeans pant.

33. Regarding the cause of death, we have seen that the

doctor Jayesh Rupala, PW 1, who carried out the postmortem
formed a conclusive opinion that the bodies were burnt after the
death was caused. In other words, both the persons were first
killed and thereafter burnt. According to the doctor, the death
was due to excessive bleeding. There was no presence of carbon
in the windpipe or in the throat clearly indicating that despite
severe burning, the persons did not inhale the carbon in turn,
implying that both the persons were already dead by the time
they were set on fire. There is also evidence of independent
witness suggesting that some incident of people being thrashed
up had taken place late at night near Uvarsad further indicating
that the two persons were first killed. Their bodies were then
brought near Vavol where they were set on fire alongwith car.

34. The question is, is there sufficient evidence to link the

present appellant with the commission of the offence? The

Page 21 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

prosecution would rely on the following factors:

a. Borrowing of money by Salim from the present appellant

for purchase of the Indica car which he could not repay;

b. Alleged conversation at Shivsena meeting between the

present appellant and the other accused on the night of 6th
June,2002;

c. Deposition of Kokilaben that the accused, in last week or

so before the incident, were searching for Salim and further
that, on 6th June,2002 itself, the accused had come to her hut
looking for Salim;

d. Evidence of Santosh Sharma, PW 10, who claimed to

have seen the accused outside their Zen car right next to the
burning Indica car in the night of 6th June,2002 itself.

35. We will refer to these factors while we assess the evidence of

different witnesses. The fact, that Salim had borrowed sizeable
amount of money from present appellant Kanubhai to purchase
the Indica car which amount he could not repay is duly
established. We have already recorded our reasons for coming
to such a conclusion. To briefly reiterate, several witnesses, in
particular, PW 4, Dilipsinh had in detail referred to these facts.
Salim was keen on buying the car for which, he had borrowed

Page 22 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

money from different sources including from Kanubhai. The

whole plan was to raise a loan from the finance company for
which, the car was registered in the name of Dilipsinh. The plan
failed when finance company refused to give loan. Salim was,
in fact, forced to sell the car to Devsi. Insofar as Salim's death is
concerned, the motive could be stated to have been established.

36. The motive by itself, however, cannot form the basis of

evidence. At any rate, we find no motive for the present accused
to liquidate Devsi. We may, therefore, at this stage, bear in
mind two aspects. Firstly, that though so far as death of Salim is
concerned, the accused had sufficient motive to carry out the
plan but that by itself cannot substitute the requirement of proof
and secondly, that at any rate, the accused had no reason to
eliminate Devsi.

37. We may now refer to the remaining three different factors

listed above. Insofar as the testimony of Santosh Sharma, PW
10, is concerned, the same simply does not inspire confidence.
There are many reasons for the same. He is completely a chance
witness. According to him, he was passing by that side at about
3 O'clock at night when he saw the Indica car burning. A Zen
car was parked next to it. Four people were standing outside.
According to him, he was returning home with Pareshbhai for
whom he worked as an electric assistant. They had been
working at a farmhouse in Gandhinagar since couple of months.

Page 23 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

38. First and foremost, the presence of this witness so late at night
for the reason cited by him is not probable. In the cross
examination he stated that he had never returned home from
work so late in the past. The work was not of an urgent nature.
If, that be so there was no reason for Pareshbhai and this
witness to have worked till 2.30 at night before returning from
Gandhinagar to Ahmedabad, a good distance of at least 30
kilometers or so. Further, the prosecution has not examined
Pareshbhai before the Court. This witness himself was
employed by Bhawan Bharwad who was a relative of deceased
Devsi Bharwad. He had not gone to the police station to offer
his statement till 11th June,2002 i.e. four days later, though
according to his own account on the next day through the news
paper he had come to know about the incident. He had, in fact,
conveyed this to Bhawan Bharwad but thereafter had not
thought of going to the police station for recording his
statement. His version that four people were standing outside
the Zen car of which, he remembered the registration number
and could identify the accused further raises a serious doubt
about his truthfulness. Admittedly, the incident happened at an
isolated place where there was no source of any light.
According to this witness, they were shooed away by the four
people and therefore, could not stop the scooter though they
wanted to. It is not possible to accept that this witness could
recognize the faces of the accused who were standing there
under such condition and also remembered the registration
number of the car. We may recall, in the cross examination he

Page 24 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

agreed that his boss Bhawan Bharwad had three or four cars but
he did not remember the registration number of any of them.
His giving registration number to police of Zen car and his
identification of the two of the accused before the Court
therefore has to be totally ignored. We may also recall, he could
not identify the present appellant before the Court since he was
not kept in the accused box since he was suffering from
physical handicap. Testimony of this witness would, therefore,
be of no help to the prosecution.

39. Kokilaben, PW 8, referred to the accused Arunkumar, Kanubhai

and Nischal having come to her hut looking for Salim and Devsi
about a week before the incident. A few days later also,
likewise, Jasubhai, Arunkumar and Nischal had come looking
for them. On the night of the incident again, Arun, Jasubhai,
Kanubhai and Nischal all four came alongwith boy Ravi. Had
this witness herself seen these four people looking for Salim
and Devsi on 6th June,2002 to set them right, it would have
considerably helped the prosecution. However, she was unclear
whether she saw them and heard their conversation with Ravi or
merely Ravi came and told her about the accused searching for
Salim and Devsi. She did relay the news to Salim who was
sitting on the terrace that the accused were looking for him. It is
not clear whether the source of such information was her own or
was in the nature of hearsay. Because in the cross-examination
she stated that she had not heard the conversation but came to

Page 25 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

know about it from Ravi. The benefit of this confusion therefore

must go to the defence. Her reference to the earlier visits of the
accused looking for Salim and Devsi did not form part of her
police statement and thus, clearly was in the nature of
improvements.

40. We may now refer to the evidence of Naresh Palia, PW 16. It is

this witness who refers to the conversation between Kanubhai
and the other accused where Kanubhai is clearly impatient for
the recovery and apparently a conversation took place during
which, the accused agreed that either the money would be
recovered on that day or Salim would be liquidated. According
to Naresh Paliya, this happened on the night of 6th June,2002
when at about 9 O'clock at night, a meeting of Shivsena
members was called. For multiple reasons, the disclosure of this
witness also does not inspire confidence insofar as the role of
Kanubhai is concerned. Firstly, in the cross examination this
witness agreed that Kanubhai was neither an office bearer nor a
member of Shivsena. Kanubhai, therefore, had no reason to be
present in the party meeting. More significantly, the statement
of this witness was recorded on 07th June 2002, when he did not
refer to this conversation at all. It was only in his further
statement recorded on 9th June,2002, that for the first time he
brought the theory of the conversation between the present
appellant and the remaining accused. The conversation, if it had
taken place on 6th June,2002, had a live link with the incident

Page 26 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB
th th
which took place on 7 June,2002 or the late night of 6
June,2002. If two people whom this witness knew well were
under serious threat and in furtherance of such threat, they were
found murdered the next day, the most natural conduct of the
witness would be to report such facts before the police that too
when he was present before the police on 7th June,2002 and his
statement was being recorded. Total omission of this witness to
even refer to any such incident during Shivsena meeting in the
night of 6th June, 2002 raises serious doubt about the correctness
of his further revelation to the police two days later and to the
court in his deposition.

41. Since we are concerned with the conviction of the present

appellant alone, we have not referred to at length and not
discussed the other evidence which has direct or indirect
bearing on the role of other accused but has no connection to
the role of the present accused. If we eliminate the three factors
noted above, mere motive for commission of the offence, that
too only in part, would not establish the guilt of the present
appellant.
42. In the result, judgement dated 28.03.2005 of the learned
Additional Sessions Judge, Gandhinagar, in Sessions Case No.
16 of 2003 qua the present appellant, original accused No.3 is
set aside. He is acquitted of all the charges. Criminal Appeal is
allowed and disposed of. Bail bonds stand cancelled. R & P
may be transmitted back to the concerned Trial Court.

Page 27 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025
 NEUTRAL CITATION

R/CR.A/773/2005 JUDGMENT

2017:GUJHC:4658-DB

(AKIL KURESHI, J.)

(BIREN VAISHNAV, J.)

Jyoti

Page 28 of 28

Uploaded by JYOTI V. JANI(HC00213) on Mon Feb 13 2017 Downloaded on : Tue Jul 15 18:36:01 IST 2025