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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1044 OF 2010

Harivadan Babubhai Patel ... Appellant

Versus

State of Gujarat        .. Respondent

J U D G M E N T

Dipak Misra, J.

The appellant, A-1, along with Dipakbhai Zinabhai Patel, A-

2, Raghubhai Chaganbhai Patel, A-3, and Babubhai Khushalbhai  

Patel, A-4, faced trial in Sessions Case No. 28 of 2006 in the  

Court of the learned Sessions Judge, Valsad, for the offences  

punishable under Sections 342, 346, 302, 120B and 201 read  

with Section 34 of the Indian Penal Code (for short “IPC”).  The  

learned trial  Judge acquitted  A-3  and A-4  as  he found them  

innocent and convicted A-1 and A-2 for  all  the offences and  

imposed rigorous imprisonment for life and fine of Rs.1,000, in  

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default of payment of fine, to undergo further imprisonment for  

one month under Section 302 and separate sentences for the  

other offences with the stipulation that all the sentences shall  

run concurrently.   

2. Grieved by the aforesaid conviction and sentence, the  

accused-appellant  and  A-2  preferred  Criminal  Appeal  

No. 860 of 2007 and the High Court, by the impugned  

judgment  dated  20th April,  2009,  acquitted  A-2  but  

sustained  the  conviction  of  the  appellant  for  all  the  

offences.  Hence,  the  present  appeal  by  the  accused-

appellant, A-1.

3. Filtering the unnecessary details, the prosecution case  

is  that  on 23.1.2006,  deceased,  Ashokbhai  Nanubhai,  

accompanied  by  his  brother-in-law,  Kantibhai  Manilal  

Patel, PW-13, had gone to Udwada R.S. Zanda Chowk on  

his scooter and went to a tea stall where the deceased  

was engaged in a conversation with one Durlabhbhai  

Kikubhai  Bhandari,PW-15.   Durlabhbhai  took  the  

deceased near the railway crossing where 3-4 persons  

were waiting in a Maruti car.  As the prosecution story  

further gets unfurled, the deceased had discussion with  

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them and, thereafter, those persons informed that they  

would take the deceased to the house of Gulia at Valsad  

and,  accordingly,  they  took  him  in  the  Maruti  car  

bearing  No.  GJ-15-K-9263.   They  had  provided  one  

mobile number stating that if there would be any delay  

in the return of the deceased, they could be contacted  

on  that  mobile  number.   The  brother-in-law  of  the  

deceased  supplied  that  mobile  number  to  his  sister  

Madhuben, PW-14, and went to Daman for his work and  

came back in the evening about 5.00 p.m.  Thereafter,  

he enquired from his sister whether she had talked with  

the deceased on the given number or not and he was  

informed by her that the mobile phone was picked up  

by  different  persons  who  spoke  differently  and,  at  a  

later stage, it was switched off.  Someone speaking on  

the mobile had also enquired from Madhuben whether  

she had gone to the police station.  Coming to know  

about  the  situation,  Kantibhai  made  enquiry  and  

searched about the deceased for two days and when  

the deceased did not return, he lodged a complaint at  

Pardi Police Station on 25.1.2006 which was registered  

as C.R. No. 1-12/2006.  After the criminal law was set in  

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motion,  the  investigating  agency  examined  the  

witnesses  and after  coming to  know about  the  place  

where the accused persons had hidden themselves, the  

Investigating Officer arrested them and they confessed  

before the police that they had wrongfully confined the  

deceased and assaulted him.  They also confessed that  

they  had  pressurized  the  deceased  for  returning  the  

money as the money was paid to the passport agent,  

namely,  Bharatbhai,  who  was  introduced  by  the  

deceased,  in  the  presence  of  one  Ashokbhai  alias  

Amratbhai.  They also stated that they had assaulted  

the  deceased  on  23.1.2006  and  when  the  deceased  

succumbed to the injuries, they buried the dead body in  

an agricultural farm.  At the instance of the accused,  

the dead body of the deceased was taken out in the  

presence  of  the  panch  witnesses.   Discovery  

panchnama was prepared in presence of the Executive  

Magistrate.  After carrying out the seizure of footwear,  

clothes and jute old blanket, samples of the same were  

sent for forensic examination and thereafter, the dead  

body,  after  being  identified  by  wife  Madhuben,  was  

initially  sent  to  the  Dungri  Primary  Health  Centre  for  

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post mortem, but as the Medical Officer opined that it  

was to be done by a forensic expert, it was sent to Surat  

Civil Hospital Forensic Department.  The identification of  

the accused persons was carried out by the Executive  

Magistrate.   The  Maruti  car  which  was  used  for  the  

offence was taken into possession.   The investigating  

agency  examined  number  of  witnesses  and,  after  

completing the investigation,  placed the charge-sheet  

before  the  competent  court  for  all  the  offences  in  

respect of A-1 to A-3 and as far as A-4 was concerned,  

he  was  charge-sheeted  for  the  offence  punishable  

under Section 201 IPC.

4. The  accused  persons  pleaded  innocence  and  false  

implication and claimed to be tried.

5. The prosecution,  in  support  of  its  case,  examined 19  

witnesses and got number of documents including the  

FIR,  discovery  panchnama,  panchnama  of  the  seized  

articles,  the  FSL  report  and  the  serology  report  and  

panchnama of the test identification parade, exhibited.  

In the statement under Section 313 CrPC, the accused  

persons made a bald denial of every aspect and did not  

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offer  any  explanation  and  chose  not  to  adduce  any  

evidence.

6. The learned  trial  Judge,  on  the  basis  of  the  material  

brought on record, found A-1 and A-2 guilty of all the  

offences and the High Court affirmed the conviction and  

sentence in respect of A-1 only as stated hereinbefore.

7. We have heard Mr. Rauf Rahim, learned counsel for the  

appellant and Ms. Hemantika Wahi, learned counsel for  

the respondent-State.

8. It  is  the  undisputed  position  that  the  death  was  

homicidal  in  nature  and  the  case  of  the  prosecution  

rests on the circumstantial evidence.  Learned counsel  

for the appellant has assiduously endeavoured to point  

out  certain  loopholes  and contended that  because of  

the said dents, the prosecution version deserves to be  

discarded.   Per  contra,  learned  counsel  for  the  

respondent  would  support  the  analysis  made  in  the  

judgment  of  the  High  Court  and  stand  for  its  

sustenance.

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9. We shall  deal  with  the  challenges  and  the  stance  in  

oppugnation one by one.  The first ground of attack is  

that  there  is  delay  in  lodging  of  the  FIR  and  in  the  

absence  of  explanation,  the  case  of  the  prosecution  

should  be  thrown  overboard.   On  a  perusal  of  the  

judgments,  it  is  noticeable  that  the  said  aspect  has  

been dealt with in great detail and the plea of delay has  

been negatived.  It is urged before us that though the  

occurrence, as alleged, had taken place on 23.1.2006,  

yet  the  FIR  was  lodged  only  on  25.1.2006  indicating  

that efforts were being made to search for the deceased  

and the said effort is based on some kind of surmises  

which do not inspire confidence.  On a close scrutiny, it  

is evident that as per the FIR and the evidence of the  

informant,  PW-13,  and  Madhuben,  PW-14,  they  had  

searched for the deceased and realizing that it was an  

exercise in futility, they went to the police station.  It  

has  been  deposed  by  them  that  they  had  never  

apprehended that the deceased would be done to death  

though  there  was  a  previous  quarrel  pertaining  to  

demand  of  money  from  the  deceased  as  he  had  

introduced  the  passport  agent  to  A-1  who  had  paid  

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more  than  rupees  one  lakh  to  obtain  the  necessary  

documents to go to United States of America.  It has  

been clearly proven that the informant was engaged in  

search and he had not apprehended that the life spark  

of the deceased would be extinct.  The issue is whether  

such an explanation is to be believed.  In this context,  

we may refer with profit to the authority in  State of  

H.P. v. Gian Chand1 wherein a three-Judge Bench has  

opined that the delay in lodging the FIR cannot be used  

as  a  ritualistic  formula  for  doubting  the  prosecution  

case and discarding the same solely on the ground of  

delay.   If  the  explanation  offered  is  satisfactory  and  

there  is  no  possibility  of  embellishment,  the  delay  

should  not  be  treated  as  fatal  to  the  case  of  the  

prosecution.   

10. In  Ramdas and others v.  State of Maharashtra2, it  

has been ruled that when an FIR is lodged belatedly, it  

is a relevant fact of which the court must take notice of,  

but the said fact has to be considered in the light of  

1  (2001) 6 SCC 71

2  (2007) 2 SCC 170

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other  facts  and  circumstances  of  the  case.   It  is  

obligatory on the part of the court to consider whether  

the  delay  in  lodging  the  report  adversely  affects  the  

case of the prosecution and it would depend upon the  

matter of appreciation of evidence in totality.

11. In Kilakkatha Parambath Sasi and others v. State  

of Kerala3, it has been laid down that when an FIR has  

been lodged in a belated manner, inference can rightly  

follow that the prosecution story may not be true but  

equally on the other side, if it is found that there is no  

delay in the recording of the FIR, it does not mean that  

the  prosecution  story  stands  immeasurably  

strengthened.  Similar view has also been expressed in  

Kanhaiya Lal and others v. State of Rajasthan4.

12. Scrutinized on the anvil of the aforesaid enunciation of  

law, we are disposed to think that there had been no  

embellishment in the FIR and, in fact, there could not  

have been any possibility of embellishment.  As we find,  

3  AIR 2011 SC 1064

4  2013 (6) SCALE 242

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the case at hand does not reveal that the absence of  

spontaneity in the lodgment of the FIR has created a  

coloured  version.   On  the  contrary,  from  the  other  

circumstances  which  lend  support  to  the  prosecution  

story,  it  is  difficult  to  disbelieve  and  discard  the  

prosecution case solely on the ground that the FIR was  

lodged on 25.1.2006 though the deceased was taken by  

the  accused  persons  some  time  on  23.1.2006.   The  

explanation  offered  pertaining  to  the  search  of  the  

deceased by the informant has been given credence to  

by the learned trial Judge as well as by the High Court  

and,  in  our  considered  opinion,  adjudging  the  entire  

scenario  of  the  prosecution  case,  the  same deserves  

acceptation.   Hence,  the  said  submission  is  sans  

substance.

13. The next limb of attack relates to the confessions made  

by  the  accused  persons  and  the  issue  of  leading  to  

discovery of articles.  It is submitted that the confession  

part is absolutely inadmissible and that apart, when the  

panch witnesses had not supported the panchnama, the  

recovery or discovery of the seized articles cannot be  

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utilized against the appellant.  There can be no shadow  

of  doubt  that  the  confession  part  is  inadmissible  in  

evidence.   It  is  also  not  in  dispute  that  the  panch  

witnesses have turned hostile but the facts remains that  

the place from where the dead body of the deceased  

and other items were recovered was within the special  

knowledge of the appellant.   In this context,  we may  

usefully  refer  to  A.N.  Venkatesh  and  another  v.  

State of Karnataka5 wherein it has been ruled that by  

virtue of Section 8 of the Evidence Act, the conduct of  

the  accused  person  is  relevant,  if  such  conduct  

influences  or  is  influenced  by  any  fact  in  issue  or  

relevant  fact.   The  evidence  of  the  circumstance,  

simpliciter, that the accused pointed out to the police  

officer the place where the dead body of the kidnapped  

person  was  found  would  be  admissible  as  conduct  

under  Section  8  irrespective  of  the  fact  whether  the  

statement  made  by  the  accused  contemporaneously  

with  or  antecedent  to  such  conduct  falls  within  the  

purview of Section 27 of the Evidence Act or not.  In the  

5  (2005) 7 SCC 714

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said decision, reliance was placed on the principle laid  

down in Prakash Chand v. State (Delhi Admin.)6.  It  

is worth noting that in the said case, there was material  

on record that the accused had taken the Investigating  

Officer to the spot and pointed out the place where the  

dead body was buried and this Court treated the same  

as admissible piece of evidence under Section 8 as the  

conduct of the accused.

14. In  State  of  Maharashtra  v.  Damu  S/o  Gopinath  

Shinde and others7, it has been held as follows: -

“It is now well settled that recovery of an object is  not discovery of a fact as envisaged in the section.  The decision of the Privy Council in  Pulukuri Kottaya  v.  Emperor8 is  the  most  quoted  authority  for  supporting  the  interpretation  that  the  “fact  discovered” envisaged in the section embraces the  place  from  which  the  object  was  produced,  the  knowledge  of  the  accused  as  to  it,  but  the  information  given  must  relate  distinctly  to  that  effect.”

15. Same  principle  has  been  laid  down  in  State  of  

Maharashtra  v.  Suresh9,  State  of  Punjab  v.  6

AIR 1979 SC 400

7  (2000) 6 SCC 269

8  AIR 1947 PC 67

9  (2000) 1 SCC 471

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Gurnam Kaur and others10, Aftab Ahmad Anasari v.  

State  of  Uttaranchal11,  Bhagwan  Dass  v.  State  

(NCT) of Delhi12,  Manu Sharma v. State13 and Rumi  

Bora Dutta v. State of Assam14.

16. In the case at hand, the factum of information related to  

the discovery of the dead body and other articles and  

the said information was within the special knowledge  

of  the  present  appellant.   Hence,  the  doctrine  of  

confirmation  by  subsequent  events  is  attracted  and,  

therefore,  we  have  no  hesitation  in  holding  that  

recovery or discovery in the case at hand is a relevant  

fact or material which can be relied upon and has been  

correctly relied upon.

17. The next circumstance that has been seriously criticized  

by Mr. Rauf Rahim, learned counsel for the appellant,  

10  (2009) 11 SCC 225

11  (2010) 2 SCC 583

12  AIR 2011 SC 1863

13  AIR 2010 SC 2352

14  Crl.A. 737 of 2006 decided on 24.5.2013

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pertains to the last seen theory.  It is submitted by him  

that  as  per  the  testimony  of  the  informant,  the  

appellant along with others had taken the deceased in a  

Maruti car, but there is no material evidence to suggest  

that the accused was in the company of the deceased  

for two days.  The learned counsel would further submit  

that the last seen theory faces a hazard because of the  

time gap and, hence, should be totally discarded.  It is  

evident from the material on record that the deceased  

was taken away from Zanda Chowk in a Maruti car.  The  

appellant has been identified by Kantibhai, PW-13, and  

Durlabhbhai, PW-15, and their evidence remains totally  

embedded  in  all  material  particulars.   It  has  been  

proven  by  the  prosecution  that  the  Maruti  Zen  car  

belongs  to  the  appellant.   There  has  been  no  

explanation  offered  by  the  accused  in  this  regard,  

though such incriminating materials were put to him.  It  

is also worth noting here that from the testimony of Dr.  

Pandav  Vinodchandra  Prajapati,  PW-16,  who  had  

conducted the autopsy on 28.1.2006 about 10.00 a.m.,  

that  the  injuries  found  on  the  dead  body  were  

approximately four days old.  Thus, the argument that  

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there is long gap between the last seen and the time of  

death melts  into  insignificance inasmuch as  the time  

the deceased was seen in the company of A-1 and the  

time of death is not long and the said fact has been  

duly established by the medical evidence and we see  

no reason to discredit the same.  It is apt to note here  

that A-1 had said that they were taking the deceased to  

the house of Gulia but during investigation, nothing was  

found in the house of Gulia.  On the contrary, from the  

testimony of Madhuben, PW-14, wife of the deceased, it  

is evincible that she had talked on telephone to both  

the  accused  persons.   Thus,  the  circumstance  

pertaining  to  the  theory  of  last  seen  deserves  

acceptance.   

18. The next  plank  of  submission  is  that  Gulia  to  whose  

house  the  deceased  was  taken  to  has  not  been  

examined by the prosecution and non-examination of  

such a material witness makes the whole case of the  

prosecution  unacceptable.   The  learned  trial  Judge,  

dealing with the said contention, has opined that during  

the  test  identification  parade,  Shaikh  Gulamhusssain  

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had not identified the accused persons and that is the  

reason the prosecution was of the view that the said  

witness would not support the case of the complainant  

and, accordingly, chose not to examine him.  In  State  

of H.P. v. Gian Chand (supra), it has been opined that  

non-examination  of  a  material  witness  is  not  a  

mathematical formula for discarding the weight of the  

testimony  available  on  record,  howsoever  natural,  

trustworthy and convincing it may be.  The charge of  

withholding a material  witness from the court leveled  

against  the  prosecution  should  be  examined  in  the  

background of the facts and circumstances of each case  

so as to  find whether the witnesses are available for  

being examined in the court and were yet withheld by  

the  prosecution.   The  three-Judge  Bench  further  

proceeded to observe that the court is required first to  

assess the trustworthiness of the evidence available on  

record  and  if  the  court  finds  the  evidence  adduced  

worthy of being relied on, then the testimony has to be  

accepted and acted upon though there may be other  

witnesses available who could also have been examined  

but were not examined.

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19. In Takhaji Hiraji v. Thakore Kubersing Chamansing  

and others15, the Court has opined thus: -

“It is true that if a material witness, who would unfold  the genesis of the incident or an essential part of the  prosecution  case,  not  convincingly  brought  to  fore  otherwise, or where there is a gap or infirmity in the  prosecution case which could have been supplied or  made  good  by  examining  a  witness  who  though  available is not examined, the prosecution case can  be  termed  as  suffering  from  a  deficiency  and  withholding of such a material witness would oblige  the court to draw an adverse inference against the  prosecution by holding that if the witness would have  been  examined  it  would  not  have  supported  the  prosecution  case.  On  the  other  hand  if  already  overwhelming evidence is available and examination  of  other  witnesses  would  only  be  a  repetition  or  duplication  of  the  evidence  already  adduced,  non- examination  of  such  other  witnesses  may  not  be  material. In such a case the court ought to scrutinise  the  worth  of  the  evidence  adduced.  The  court  of  facts  must  ask  itself  —  whether  in  the  facts  and  circumstances  of  the  case,  it  was  necessary  to  examine such other witness, and if so, whether such  witness was available to be examined and yet was  being  withheld  from  the  court.  If  the  answer  be  positive then only a question of drawing an adverse  inference  may  arise.  If  the  witnesses  already  examined  are  reliable  and  the  testimony  coming  from  their  mouth  is  unimpeachable  the  court  can  safely act upon it, uninfluenced by the factum of non- examination of other witnesses.”

15  (2001) 6 SCC 145

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20. In  Dahari and others  v.  State of Uttar Pradesh16,  

while discussing about the non-examination of material  

witness, the Court expressed the view that when he was  

not the only competent witness who would have been  

fully capable of explaining the factual situation correctly  

and the  prosecution case  stood fully  corroborated by  

the medical evidence and thetestimony of other reliable  

witnesses, no adverse inference could be drawn against  

the prosecution.  Be it noted, the Court also took note of  

the  fact  that  during  the  cross-examination  of  the  

Investigating Officer, none of the accused persons had  

voiced  their  concerns  or  raised  any  apprehension  

regarding the non-examination of the material witness  

therein.   

21. In the case at hand, it was A-1 who had announced that  

he was taking the deceased to the house of Gulia.  On a  

search being conducted, nothing has been found from  

the  house  of  Gulia.   There  has  been  no  cross-

examination of the Investigating Officer about the non-

examination of Gulia.  On the contrary, it was A-1 who  

16  (2012) 10 SCC 256

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had led to the discovery of the dead body and other  

articles.  Thus, when the other evidence on record are  

cogent,  credible  and  meet  the  test  of  circumstantial  

evidence laid down in  Sharad Birdhichand Sarda  v.  

State of Mararashtra17 State  v.  Saravanan18, Sunil  

Kumar  Sambhudayal  Gupta  v.  State  of  

Maharashtra19 and  further  reiterated  in  Jagroop  

Singh v. State of Punjab20, there is no justification to  

come  to  hold  that  the  prosecution  has  deliberately  

withheld  a  witness  that  creates  a  concavity  in  the  

concept of fair trial.

22. Another facet is required to be addressed to.  Though all  

the incriminating circumstances which point to the guilt  

of the accused had been put to him, yet he chose not to  

give  any  explanation  under  Section  313 CrPC  except  

choosing the mode of denial.  It is well settled in law  

that when the attention of the accused is drawn to the  17

(1984) 4 SCC 116

18  (2008) 17 SCC 587

19  (2010) 13 SCC 657

20  (2012) 11 SCC 768

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said circumstances that inculpated him in the crime and  

he fails to offer appropriate explanation or gives a false  

answer,  the  same  can  be  counted  as  providing  a  

missing  link  for  building  the  chain  of  circumstances.  

(See State of Maharashtra v. Suresh21).  In the case  

at hand, though number of circumstances were put to  

the accused, yet he has made a bald denial and did not  

offer  any  explanation  whatsoever.   Thus,  it  is  also  a  

circumstance that goes against him.

23. We will be failing in our duty if we do not note another  

submission of the learned counsel for the appellant.  It  

is urged by him that A-2 stood on the same footing as  

the appellant and hence, the High Court should have  

acquitted him.  It is also canvassed by him that A-2 has  

been  acquitted  of  the  charge  of  criminal  conspiracy  

and, therefore, the appellant deserves to be acquitted.  

The High Court has taken note of the fact that A-2 was  

not  identified  by  any  one  in  the  test  identification  

parade.   It  has  also  noticed  number  of  material  

contradictions  and  omissions  and,  accordingly,  

21  (2000) 1 SCC 471

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acquitted A-2.  As far as the appellant is concerned, all  

the  circumstances  lead  towards  his  guilt.   As  far  as  

conspiracy  under  Section  120B  is  concerned,  we  are  

inclined  to  think  that  the  High  Court  erred  in  not  

recording an order of acquittal under Section 120B as  

no other accused had been found guilty.  The conviction  

under Section 120B cannot be sustained when the other  

accused persons have been acquitted, for an offence of  

conspiracy  cannot  survive  if  there  is  acquittal  of  the  

other alleged co-conspirators.  It has been so laid down  

in  Fakhruddin  v.  The State of Madhya Pradesh22.  

Thus,  the  conviction  of  the  appellant  under  Section  

120B is set aside.

24. Resultantly, the appeal fails except for the acquittal for  

the  offence  of  conspiracy.   However,  as  we  have  

sustained the conviction under Section 302 IPC and all  

the  sentences  are  directed  to  be  concurrent,  the  

acquittal for the offence punishable under Section 120B  

would  not  help  the  appellant.   Therefore,  the  appeal  

stands  dismissed,  but  the  conviction  and  sentence  

22  AIR 1967 SC 1326

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under  Section  120B  IPC  is  set  aside.   The  other  

convictions and sentences will stand.

…………………………….J.    [Dr. B.S. Chauhan]

….………………………….J.                                            [Dipak Misra] New Delhi; July 01, 2013.

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