Gujarat High Court
Hirenbhai Jayantibhai Patel vs State Of Gujarat on 15 April, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/1246/2013 JUDGMENT DATED: 15/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1246 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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HIRENBHAI JAYANTIBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR PV PATADIYA(5924) for the Appellant(s) No. 1
MS CM SHAH APP for the Respondent No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 15/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This Criminal appeal preferred by the appellant – Hiren
Patel (A-1) under Section 374(2) of the Cr.P.C. is
directed against the judgment of conviction and order
of sentence dated 15.04.2013 passed by the learned
Additional Sessions Judge, Vadodara in Sessions Case
No. 206 of 2010 by which the appellant has been
convicted under Section 302, 363, 364A and 201 of
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the IPC and sentenced as tabulated hereinunder:
Accused Conviction Punishment Fine In default of
under fine
Section
Hiren Section 363 Rigorous 10,000/- Simple
Jayantibhai of IPC imprisonment imprisonment
Patel (A-1) for 7 years for 6 months
Hiren Section 364- Life 20,000/- Simple
Jayantibhai A of IPC imprisonment imprisonment
Patel (A-1) for 6 months
Hiren Section 302 Life 25,000/- Simple
Jayantibhai of IPC Imprisonment imprisonment
Patel (A-1) for 6 months
Hiren Section 201 Rigorous 10,000/- Simple
Jayantibhai of IPC imprisonment imprisonment
Patel (A-1) for 7 years for 4 months
2. The case of the prosecution leading to conviction of
the appellant accused is as follows:
2.1 The appellant herein – Hiren Patel is resident of Village
Chapad, City Vadodara and at the time of incident i.e.
on 05.07.2010, he was living with his father
Jayantibhai, mother Dharmishthaben and brother
Nimish in a joint family at Village: Chapad. PW.13
Jignesh Patel with his family was also residing in the
same village and his house is situated adjacent to the
house of appellant-accused. The relations of the
parties as neighbors were cordial and they had been
living as a family.
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2.2 PW.13 on 05.07.2010, was not in his village as he had
gone to Amarnath Pilgrimage and his son-Shrey aged
about 8 years was at the house of his village and did
not accompany to him at Amarnath. On 05.07.2010, at
about 6:00 p.m., the child Shrey had gone to purchase
sweets and pepsi at the shop of PW.9 Nagin Patel and
accordingly, after purchasing the same, he was on
way to his house. The appellant-accused before the
child could reach at his house, kidnapped him for
ransom of Rs.10 lakh and took the child at his room
situated at the frst foor of the house, there he was
strangulated to death with a cotton rope by the
accused-appellant herein. The family members had
made extensive search of the child as till late evening
on that day he did not return to the house. The cousin
brother PW.6 Harshad Patel lodged a missing
complaint (Exh.63) with Makarpura Police Station.
PW.13 Jignesh Patel was informed about missing of his
child and he immediately returned to Vadodara on
06.07.2010. Meanwhile, the Makarpura police made
extensive search in the nearby area, but the
whereabouts of the child could not be found. PW.13 –
father of the child requested the police to deploy a
dog squad for scientifc search. On 07.07.2010, before
dog squad could come, the appellant-accused at about
12:00 p.m., talked with the PW.13 Jignesh Patel on his
landline no.221919 allegedly dialed by him from the
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STD/PCO booth owned by Pritesh Shah (PW.12). The
appellant-accused demanded a ransom amount of
Rs.10 lakh from PW.13 and further informed that, the
child is with him and presently he is safe. The
accused-appellant also informed that they are total 5
persons and they took the child from where he had
bought pepsi. PW.13 was further informed by the
caller i.e. appellant that his informer is standing near
the transformer of the village and giving every update
of every movement and therefore, he had been
cautioned not to play any mischief. PW.13 after
hearing the conversation from the caller -appellant,
agreed and conveyed that he is ready to pay Rs.10
lakhs and further requested that he wants to talk to
his child. The caller -appellant thereafter, said that he
would call him at 7:00 p.m. and cut down the call.
PW.13, did not disclose anyone except his brother
about the call conversation and waited up to 9 o’ clock
evening because he was in waiting of call as assured
by the caller. Thereafter, when there was no response
of the caller, the PW.13 had realized and identifed
that the voice of the caller is of his neighbour
appellant Hiren. In such circumstances, as a last
resort, he lodged a complaint at about 10:00 p.m. on
07.07.2010 narrating the facts of the call
conversations as referred above, alleging inter alia,
that the appellant-accused and fve others kidnapped
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his child for ransom. The Makarpura police registered
an offence under Sections 363, 364A read with Section
114 of the IPC against the appellant and fve unknown
persons.
2.3 PW.22, I.O. Raghuveersingh Bhadoriya during the
course of investigation, went to Village: Chapad and
called the appellant-accused and upon his preliminary
inquiry, it was revealed that, on 05.07.2010, when
minor Shrey after eating the sweet and pepsi from the
shop of PW.9 Naginbhai, was on the way to his house,
had been kidnapped for ransom of Rs.10 lakh by the
appellant-accused and under the guise of learning
computer, the minor Shrey was taken to the house of
accused Hiren and taking him at the room situated at
frst foor, he had been strangulated to death with
cotton rope. It was further revealed that, in order to
dispose of the dead body, it was put in the plastic bag
and then in the tin barrel. Thereafter, the tin barrel
was brought down from frst foor to ground foor by
using a ladder made of iron and then taken to the
farming yard situated near the house by the appellant.
The accused purchased a 15 kg bag of salt from the
provision store of the village. The accused -appellant
then after digging the mud, put the dead body of the
child into water tank of the yard and after sprinkling
the salt on it, he buried the dead body.
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2.4 The investigating ofcer PW.22 during the course of
investigation, arrested the appellant and at the
instance of the accused, seized and recovered the
slippers of the child and discovered his body from the
yard. The body was sent for postmortem and
according to opinion of the doctor PW.17, the cause of
death was asphyxia due to strangulation. The PW.22
as a part of investigation, called a Scientifc Ofcer,
FSL, Vadodara for investigation. PW.19 – R.L.
Gondaliya, Scientifc Ofcer inspected both the places
i.e. where murder took place and the dead body
buried at the yard. According to opinion of the PW.19,
the lowering down of the tin barrel flled with the dead
body from frst foor to ground foor and then at the
yard, it could not be possible for a single person to
execute the entire act and according to his opinion,
considering the position of the staircase, the
involvement of other persons cannot be ruled out. The
PW.19 also found stains on the computer gadgets as
well as on the foor of the room, which in his opinion, it
might be a fuid of decomposed body. The PW.19,
found clothes allegedly lying on the chair situated in
the kitchen of the house. The clothes found with foul
smell and having human blood. In such circumstances,
the I.O. PW.22 had arrested the father, mother and
brother of the accused and according to prosecution
case, the accused with their common intention, killed
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the deceased for ransom and in order to save the
appellant – their son, have caused the offence of
disappearance of evidence. The I.O. during the course
of investigation, recorded the statements of witnesses,
obtained the postmortem report, sent the seized
articles to FSL for chemical analysis and thereafter,
fled the chargesheet against the appellant and 3
others who are father, mother and brother of the
accused Hiren for the offence punishable under
Sections 363, 364A, 302, 201, read with Sections 34
and 114 of the IPC. Thereafter, the case was
committed to the Sessions Court, Vadodara.
3. After due framing of charge, and upon accused not
pleading not guilty, the trial commenced before the
Additional Sessions Judge, Vadodara. The prosecution
examined following witnesses and exhibited following
documents:
Oral evidence
PW 1 – Exh.27 Ramanbhai Bavabhai Patel, panch witness
PW 2 – Exh.29 Maheshbhai Sajanbhai rabari, panch witness
PW 3 – Exh.33 Gopalbhai Narottambhai Patel, panch witness
PW 4 – Exh.39 Chandrakantbhai Kashibhai Patel, panch witness
PW 5 – Exh.54 Rajendrabhai Shankarbhai Patel, panch witness
PW 6 – Exh.62 Harshadbhai Taljabhai Patel
PW 7 – Exh.66 Ajitsinh Motisinh Makwana
PW 8 – Exh.67 Maheshbhai Dilipbhai Padhiyar
PW 9 – Exh.68 Naginbhai Kashibhai Patel
PW 10 – Exh.69 Umakantbhai Tanajirao Sonavane
PW 11 – Exh.70 Sharmilaben Mohanbhai TadviPage 7 of 42
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PW 12 – Exh.71 Pritesh Suryakant Shah
PW 13 – Exh.72 Jigneshbhai Hasmukhbhai Patel
PW 14 – Exh.76 Naranbhai Varsing Rathva, complainant (father of deceased)
PW 15 – Exh.77 Shabdadasiben Pramodbhai Patel, sarpanch
PW 16 – Exh.80 Narendrabhai Shravanbhai Bhavsar
PW 17 – Exh.84 Dr. Ashok K. Mahajan, medical officer
PW 18 – Exh.88 Shyamsunder K. Prajapati, nodal officer
PW 19 – Exh.93 Ramniklal L. Gondaliya, FSL officer
PW 20 – Exh.96 Punjabhai Arjunbhai, Police Station officer
PW 21 – Exh.102 Amitbhai Bhailalbhai Patel
PW 22 – Exh.104 Raghuvarsinh M. Bhadoriya, Investigation officer
PW 23 – Exh.112 Nisarg Vasantbhai Patel, Investigation officerDocumentary evidence
Exh.28 Panchnama of physical examination of body
Exh.30 Panchnama of physical examination of body
Exh.34-37 Muddamal notes
Exh.38 Panchnama for collecting clothes of body
Exh.40-48 Muddamal receipts
Exh.49 Handwritten note
Exh.50 Panchnama of scene of offence
Exh.55 Panchnama of collection of slippers of deceased
Exh.56 Discovery panchnama as per Section 27of Evidence Act
Exh.57 Inquest panchnama
Exh.63 Application about missing child
Exh.64 Statement recorded upon application about missing child
Exh.73 Complaint
Exh.74 Telephone bill
Exh.78 Certificate by Chapad Gram Panchayat
Exh.81 Photographs
Exh.85 Yadi for post mortem
Exh.86 Post mortem note
Exh.89 Application for phone connection
Exh.90 Certificate under Section 65-B of Evidence Act
Exh.91 Forwarding letter for demanding call details
Exh.92 Call details
Exh.94 Investigation report by FSL van
Exh.95 FSL report
Exh.97-99 Copy of extracts of station diary
Exh.100 Order of handing over investigation
Exh.106 Sketch of scene of offencePage 8 of 42
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Exh.107 Yadi for registering offence
Exh.108-109 FSL forwarding note
Exh.110 FSL yadi
Exh.111 FSL report
4. After closure of the prosecution evidence, the
appellant was questioned under Section 313 of Cr.P.C.,
to which he stated that he has been falsely implicated
and prosecuted in the serious offence of murder. The
witnesses are interested and related persons and
deposed against them at the behest of PW.13. In
nutshell, they have denied the entire case of the
prosecution and evidence adduced before the Trial
Court.
5. The accused appellant has not adduced any evidence
in their defence.
6. The learned Additional Sessions Judge, after hearing
the parties and upon appreciation of the evidence,
found the accused Hiren Patel guilty of the charges,
consequently, he has been convicted under Sections
363, 364A and 302, 201 of the IPC. The co-accused
who are father, mother and brother have been
acquitted from the charge of murder; however, they
have been convicted under Section 201 read with
Section 114 of the IPC.
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7. Being dissatisfed with the judgment and order of
conviction, the appellant Hiren Patel has come up with
the present appeal.
8. We have heard Mr. P.V. Patadiya, learned counsel
appearing for the appellant and Ms. C.M. Shah,
learned APP for the State.
9. Mr. P.V. Patadiya, while assailing the impugned
judgment, vehemently contended that the complete
chain of events leading to the involvement of the
appellant in the crime in question have not been
established by the prosecution. According to him, the
prosecution has failed to prove its case beyond
reasonable doubt. The case is of one of circumstantial
evidence and the onus to prove the case by leading
cogent, appropriate and linking evidence is on the
prosecution. The appellant had been implicated on the
basis of suspicion as there is no evidence of last seen
together i.e. none of the witnesses have stated that
the accused appellant was seen with the child
together on 05.07.2010. Thus, the ingredients of
Section 363 of IPC are not proved and established.
There are no any incriminating circumstances proved
by the prosecution to establish that on 05.07.2010,
the child was kidnapped or abducted by the appellant;
so far as offence of kidnapping for ransom is
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concerned, the prosecution failed to prove that the
accused has kidnapped or abducted or detained the
child and was in his custody; that the factum of
demand of ransom also has not been proved;
according to the case of the prosecution, the accused
made a call on the landline number of PW:13 and
demanded a ransom of Rs.10 lakhs; that PW:12 Pritesh
Suryakant Shah refused to identify the accused when
he was taken to his shop where as per the
prosecution, call was made; the address of the STD
PCO booth was shown at the different address of
Vadodara and according to the prosecution case, call
was made from the shop situated at Sayajiganj area of
Vadodara; the I.O. failed to obtain the transcript of
conversation nor he did a voice spectrography of the
accused to identify the voice of the call; thus, the
prosecution failed to prove the necessary ingredients
of Section 364A of the IPC; that the witnesses are
interested witnesses and closely associated with
PW:13 as he is a politically infuence person and his
wife was the Sarpanch of the village. Thus, the
witnesses viz. PW:4 Chandrakant Patel, PW;5 Rajendra
Patel, PW:7 Ajit Makwana, PW:8 Mahesh Padhiyar,
PW:9 Nagin Patel are highly interested persons and
therefore, in absence of any independent evidence,
their testimonies do not inspire confdence; that PW:9
Nagin Patel being an owner of cold-drinks shop had
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did not disclose about the child in his frst two
statements recorded by the police and later on, the
theory of purchasing sweets and pepsi being projected
by him; that PW:11 Sharmila Tadvi is improving her
version about throwing dead body in the tank by the
accused, as such she did not disclose the said facts in
her police statement and therefore, she seems to be a
got up witness and her presence at the place creates a
doubt; that the place where the dead body found
belongs to the accused or his family members and
according to PW:15, the land is a gaucher land vest
with the village panchayat and as per the prosecution
case, surrounding the plot, there is no boundary and
therefore, the place is open for accessible to all; that
when the possession and ownership of yard is not
proved and established then the discovery and
recovery of the dead body of the child from the place
and at the instance of the accused, cannot be
accepted; that the evidence of recovery or discovery
of the dead body is not trustworthy and reliable. There
are material contradictions in the testimony of panch
witnesses of the panchnama at Exh.56, and deposition
of I.O. PW:22. That the contents of panchnama Exh.56
have not proved by the panch witnesses as well as I.O.
and therefore, the factum of recovery or discovery
cannot be used to connect the accused in the crime.
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10. In such circumstances, referred to above, Mr.Patadiya,
learned counsel submitted that the Court below has
committed a serious error in appreciating the evidence
against the appellant and wrongly convicted them
under Sections 363, 364A, 302 and 201 of the IPC and
therefore, he submitted that the judgment of the
conviction and order of sentence are not sustainable
in law and the same may be quashed and set aside,
the appellant be acquitted from all the charges.
11. On the other hand, learned APP Ms. C.M. Shah
supported the view taken by the Court below and
further contended that the prosecution in this case,
has proved beyond reasonable doubt the factum of
discovery or recovery of dead body at the instance of
appellant accused for which he has not explained
anything in his further statement recorded under
Section 313 of the Cr.P.C.; that the accused and the
complainant party were neighbours and taking
disadvantage of the situation, the accused kidnapped
the child and taken him to the room at the frst foor of
the house and strangulated to him to death; the
cotton rope and one handkerchief found from the body
of the deceased and the same were taken by P.M.
doctor and handed over to the police (Exh.38); that
the contents of panchnama at Exh.56 have been
proved by the panch witnesses Rajendra Patel PW:5
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and Subhash Patel PW:6 and the I.O. PW:22 in his
deposition stated the statement made by the accused
voluntarily about his willingness to discover the dead
body buried by him in the yard; the accused and
PW:13 since long they were neighbours and based on
their relations, PW:13 identifed the voice of the caller,
who had demanded the amount of ransom; thus, the
factum of discovery of the dead body at the instance
of the accused is proved and ingredients of
demanding ransom is also being proved by the
prosecution; that the bloodstained clothes found from
the house of the accused and the blood matched with
the blood of the deceased; that there is no any
explanation on the part of the accused about the
incriminating material and circumstances, as referred
above, which would be additionally to prove the
complicity of the accused in the crime.
12. Ms. C.M. Shah, learned APP in the aforesaid
contentions submitted that the Court below has rightly
appreciated the oral as well as documentary evidence
and each one of the circumstances as referred have
been established and all circumstances put to gather
lead to the inference that the accused has committed
the murder of the deceased and motive behind the
murder was the ransom amount. Thus, therefore, she
submitted that there being no merits in the appeal
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and the same may be dismissed.
13. We have heard at length learned advocate for the
respective parties and perused the case records.
14. Before dealing with the rival contentions of the
parties, it would be useful to analysis the evidence of
some of the relevant witnesses.
(A) PW:17 Dr.Ashok Mahajan – the witness had
conducted the postmorterm and while conducting
the postmorterm, he noticed that the body was
decomposed body and there was one cotton rope
and handkerchief around the neck as well as face
of the deceased. The doctor further noticed the
external injuries viz. (i) contusion, 3×4 cm present
on right side of the face, on chick irregular
margins, faint in read colour; (ii) ligature mark
around the neck, totally horizontal, diffused,
depressed, total length 26 cm and 2.5 to 4 cm
wide with foul smell below the level of thyroid
cartilage found in red colour. The doctor also
noticed the 40 grams of partly digested non
smelling food present in mucusa. According to
opinion of the doctor, the cause of death was
asphyxia following strangulation. It was the
opinion of the doctor that the external injury no.2
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corresponding injuries mentioned in column no.20
were sufcient in ordinary course of nature to
cause death. The time of death as per the doctor
was between 48 hours to maximum to 72 hours
from the time of commencement of the
postmorterm.
(B) PW:6 Harshad Patel being a cousin brother of
PW:13 has stated that on 05.07.2010 till evening,
despite of extensive search of the child, they could
not get any input as a result, he lodged a missing
complaint with Makarpura Police Station. In the
cross examination, nothing fruitful brought on
record to substantiate the version of the
prosecution.
(C) PW:13 Jignesh Hasmukhbhai Patel being a father
of the child has stated that on 05.07.2010, when
he was in Amarnath Pilgrimage, he informed by
one Hajibhai who was school vehicle driver of
Shrey that Shrey was missing. The witness has
stated that he immediately came to his village
Chapad and on 06.07.2010, at about 11:00 to
12:00 noon, when he was sitting with his brother
Ashok, one call on his landline number was
received and according to caller, the child Shrey
was kidnapped by him on 05.07.2010, from the
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shop where he had eaten the sweets and pepsi
and further informed that they were in number of
fve persons. The caller had further informed
PW:13 that his informer is giving all the
information about the every movement of search
of child and is standing near the transformer of
the village and therefore, he caused not to play
any mischief. PW:13, during the conversation with
the caller, agreed to pay Rs.10 lakhs and asked
the caller that he wants to talk with his child. The
caller said that he would call him at 07:00 p.m.
PW:13 in his testimony further stated that he
waited till evening and did not disclose about the
demand of ransom to anyone, except the family.
The witness has further stated that till 09:00
o’clock p.m., he did not receive any call and
during the interregnum period, he realized and
identifed that the caller was Hiren Patel his
neighbour. The witness thereafter decided to lodge
an FIR for the offence of kidnapped for ransom
and accordingly, the FIR came to be registered
with Makarpura Police Station against Hiren Patel.
The witness has stated that after registration of
the offence, the involvement of the appellant was
surfaced and he strangulated to death his son in
the room of the frst foor of his house and
thereafter, the dead body was removed in a tin
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barrel and taken into the farm yard of the
appellant accused where he buried it in the water
tank. In the cross examination, the question
regarding his connection with the political party,
and the status of his wife being asked which he
had answered accordingly. In the cross
examination, nothing substantially proved that
due to his political infuence, the accused was
falsely implicated in the offence and the witnesses
deposed at their instance.
(D) PW:5 Rajendra Patel – the said witness was the
witness of discovery of sleepers of the child and
dead body at the instance of the appellant
accused. It was stated by the witness that he
along with Subhash Patel had been called at about
10:00 o’clock on 06.07.2010 by the police and at
that time, the witness accused Hiren Patel
voluntarily stated that he had saw the sleeper of
the deceased lying nearby the canal of the village
and accordingly, in their presence, the sleeper was
shown by the accused and seized it by the police
by drawing the panchnama at Exh.55. The witness
has further stated that thereafter, at about 02:20
p.m., the police had called them. The witness has
further stated that at that time, the accused Hiren
Patel was under police custody and he voluntarily
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made a statement that he would like to point out
the place where he had buried the dead body after
killing the deceased at his room of the house. The
witness has further stated that after narrating the
said fact in the panchnama, they had been taken
to the place where the dead body was buried. The
witness has further stated that in the presence of
the accused and at his instance, the dead body
was found from the water tank. The witness has
further stated that thereafter, in the presence of
the accused, they went to his house where the
police seized a computer gadget and taken a
sample of bloodstained in the presence of FSL
Ofcer. The witness identifes the signature made
by him at Exh.56 and also identifes the accused
and other things recovered and seized by the
police. In the cross examination, it was asked that
he and other panch Subhash Patel known to
PW:13. However, the facts remain that in the
presence of witnesses, at the instance of accused,
the dead body of the child was discovered.
(E) PW:7 Ajitsingh Makwana being an owner of the
provisions store, has stated that on 07.07.2010 at
about 08:00 a.m., the appellant accused came to
his shop and purchased 15 bags of shops for
earthing purpose and his helping hand PW:8
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Mahesh Padhiyar had accompanied the accused in
his scooter to deliver the salt at the yard. In the
cross examination, usual questions were being
asked but nothing brought on record to disprove
the facts of purchasing of the salt by the accused.
(F) PW:8 Mahesh Padhiyar was a part time associated
with PW:7 as part time worker. The witness has
stated that after purchasing the 15 bags of the
salt, he carried the bags and seated on the rear
side of the two wheeler for delivery. The delivery
was made at the yard of the accused and
thereafter, he returned alone as the accused
stated that he has some work in the yard. In the
cross examination, questions were asked with
regard to his employment of PW:7 and nothing
else.
(G) PW:9 Nagin Patel being an owner of cold-drinks
shop, stated on oath on 05.07.2010 at evening
06:00 o’clock, the child Shrey came to his shop
and purchased sweets (laddu) and pepsi and
thereafter, he proceeded towards his home. In the
cross examination, the witness has denied to the
suggestion that the child has never come to his
shop.
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(H) PW:4 Chandrakant Patel being a panch witness
(Exh.50), has stated on oath that on 08.07.2010,
he along with Vishnu Barot had been called by the
police at the house as well as the yard of the
accused. The witness has stated that in their
presence, the FSL ofcer inspected the house as
well as the yard and seized the bloodstained
clothes from the house and other things.
(I) PW:10 Umakant Sonvane has stated on oath that
on 07.07.2010, at about 07:00 o’clock, when he
was going towards the milk dairy, he met the
appellant accused, carrying with a drum and
when he asked that why you are carrying such
heavy things, then he said that he is going to
clear the garbage. The witness has been
confronted on the aspect of his presence, but
nothing being brought on record that he was
telling lie.
(J) PW:11 Sharmila Tadvi has stated on oath that her
parents came to village Chapad for labour work
near the yard of the accused. The witness has
stated that on 07.07.2010, he saw accused Hiren
in the yard and was digging the mud near the area
and also requested her in the digging work. The
witness has stated that the accused Hiren took
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something out of the drum and threw it into the
tank. In the cross examination, she admitted that
in her police statement, she has not stated that
Hiren took out something from the drum and
threw it in the tank.
(K) PW:12 Pritesh Suryakant Shah has stated on oath
that the police came to his shop along with the
appellant accused and asked him to identify the
accused and according to the police, on
06.07.2010, he made a call from his shop using
coin box on the landline number of PW:13 Jignesh
Patel. The witness admitted that he was having a
connection of Airtel company no.9898110746 and
it was used for the customer by inserting coin in
the box. On the issue of identifcation of the
accused, he came to his shop on 06.07.2010, he
could not identify the accused because of long
time gap.
(L) PW:14 Naran Rathva has stated on oath that on
07.07.2010 at Village Chapad, he was employed
as Watchman by the owner of Divydharm
Farmhouse which situated near the open yard of
the accused Jayantibhai Patel who happened to be
a father of the appellant. The witness has stated
that the light connection was sought from his
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farmhouse for the purpose of discovery or
recovery of the dead body of the child and the
same was found from the yard.
(M) PW:15 Ms.S.P. Patel has stated that she is the
sarpanch of the village Chapad and the yard used
by the accused belongs to village panchayat. The
witness has stated that the accused and his father
Jayantibhai using the said yard for keeping their
animals and other farming instruments.
(N) PW:18 Shyamsundar Prajapati – the said witness
has stated that at the relevant time, he was
working as a Nodal Ofcer with Airtel Company
and on the basis of requisition made by Makarpura
Police Station, the call details records of Airtel
no.9898110746, between 06.07.2010 to
10.07.2010, had been provided by his company.
The witness with the certifcate of 65B of the
Evidence Act produced the called details which
have been exhibited as Exhs.90 to 92.
(O) PW:22 the Investigating Ofcer Mr.R.M. Bhadoriya
has stated that when he was working as a P.I. with
Makarpura Police Station, a missing complaint with
regard to child Shrey registered on 05.07.2010,
and on 06.07.2010, the witness Hiren Patel, show
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the sleeper of the deceased which he had seized
in the presence of panchas and drew the
panchnama at Exh.55. Thereafter, he made
extensive search of the deceased and was about
to deploy a dog-squad at the village, however, at
the instance of PW:13, he postponed the
deployment of the dog-squad as the complaint
against the accused for kidnapping, kidnapping for
ransom came to be registered by PW:13. The I.O.
has further stated that after registration of the
offence, he went to village Chapad and during the
interrogation, the accused confessed that he had
killed the deceased. The accused was arrested by
him and during the course of investigation, in the
presence of independent witnesses, the accused
made a voluntarily statement that he would point
out the place where he had committed the offence
and buried the dead body. The witness has further
stated that in the presence of panchas, the
accused pointed out the place where the dead
body was buried and accordingly, the dead body
recovered from the yard of the accused. The
witness has stated that after the inquest, the dead
body was sent for postmorterm. The witness has
stated that he had called the FSL ofcer PW:19 for
inspection of both the places and in his presence
as well as in the presence of accused and
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independent witnesses, the necessary samples of
bloodstained and other stains from the house of
the accused were being collected. The witness has
further stated that the bloodstained clothes
having foul smell found on the chair lying in the
kitchen had been recovered and seized. The I.O.
has further stated that he had recorded the
statement of the witnesses, sent the muddamal
articles to the FSL for chemical analysis, arrested
the father, mother and brother of the accused
Hiren who had helped the accused Hiren in
disposing of the material evidence like dead body,
etc. The I.O. has further stated that he found
sufcient materials against the appellant accused
and three others for the commission of the
offences punishable under Sections 363, 364A,
302, 201 read with Sections 34 and 114 of the IPC
and fled the chargesheet before the Jurisdictional
Court. In the cross examination, the witness has
admitted that, he did not fnd any evidence to
show that on 05.07.2010, the accused was found
presence at the outskirt of the village. The witness
has admitted that on 05.07.2010, no one has seen
the deceased Shrey going towards the house of
the accused. The witness had admitted that the
sleeper of the deceased had not been sent to the
FSL. The witness has admitted that during the
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investigation, it was found that the call was made
from the coin box of one Arvind Limbachiya. He
also admitted that the yard where the dead body
was found is open land and the said land belongs
to the village panchayat. He also admitted that
during the course of investigation, he did not seize
the two wheeler allegedly used by the accused.
The witness has denied to the suggestion that the
accused never disclosed that he would point out
the place where he buried the dead body.
15. The prosecution case rests on the circumstantial
evidence. Law with regard to the conviction on the
basis of circumstantial evidence has been discussed in
detailed by the Supreme Court in the case of
Harishchandra Ladaku Thange Vs. State of
Maharashtra reported in AIR 2007 Supreme Court
2957. It will be useful to reproduce the relevant
paras:-
“8. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence,
the inference of guilt can be justifed only when all the
incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the
guilt of any other person. (See Hukam Singh v. State of
Rajasthan (AIR 1977 SC 1063), Eradu v. State of
Hyderabad (AIR 1956 SC 316), Earabhadrappa v. State of
Karnataka (AIR 1983 SC 446), State of U.P. v. Sukhbasi &
Ors. (AIR 1985 SC 1224), Balwinder Singh alias Dalbir
Singh v. State of Punjab (AIR 1987 SC 350) and AshokPage 26 of 42
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Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The
circumstances from which an inference as to the guilt of
the accused is drawn have to be proved beyond
reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred
from those circumstances. In Bhagat Ram v. State of
Punjab (AIR 1954 SC 621) it was laid down that where the
case depends upon the conclusion drawn from
circumstances the cumulative effect of the circumstances
must be such as to negative the innocence of the
accused and bring home the offences beyond any
reasonable doubt.
9. We may also make a reference to a decision of this
Court in C. Chenga Reddy & Ors. v. State of A.P. (1996
(10) SCC 193), wherein it has been observed thus : “21.
In a case based on circumstantial evidence, the settled
law is that the circumstances from which the conclusion
of guilt is drawn should be fully proved and such
circumstances must be conclusive in nature. Moreover, all
the circumstances should be complete and there should
be no gap left in the chain of evidence. Further, the
proved circumstances must be consistent only with the
hypothesis of the guilt of the accused and totally
inconsistent with his innocence.”
10. In Padala Veera Reddy v. State of A.P. (AIR 1990 SC
79) it was laid down that when a case rests upon
circumstantial evidence, such evidence must satisfy the
following tests: (1) the circumstances from which an
inference of guilt is sought to be drawn, must be cogently
and frmly established; (2) those circumstances should be
of a defnite tendency unerringly pointing towards guilt of
the accused; (3) 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
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of guilt of
the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence.”
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11. In State of U.P. v. Ashok Kumar Srivastava (1992 Crl.
LJ 1104) it was pointed out that great care must be taken
in evaluating circumstantial evidence and if the evidence
relied on is reasonably capable of two inferences, the one
in favour of the accused must be accepted. It was also
pointed out that the circumstances relied upon must be
found to have been fully established and the cumulative
effect of all the facts so established must be consistent
only with the hypothesis of guilt.
12. Sir Alfred Wills in his admirable book `Wills’
Circumstantial Evidence’ (Chapter VI) lays down the
following rules specially to be observed in the case of
circumstantial evidence: (1) the facts alleged as the basis
of any legal inference must be clearly proved and beyond
reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts
the existence of any fact, which infers legal
accountability; (3) in all cases, whether of direct or
circumstantial evidence the best evidence must be
adduced which the nature of the case admits; (4) in order
to justify the inference of guilt, the inculpatory facts must
be incompatible with the innocence of the accused and
incapable of explanation, upon any other reasonable
hypothesis than that of his guilt; and (5) if there be any
reasonable doubt of the guilt of the accused, he is
entitled as of right to be acquitted.
13. There is no doubt that conviction can be based solely
on circumstantial evidence but it should be tested by the
touchstone of law relating to circumstantial evidence laid
down by this Court as far back as in 1952.
14. In Hanumant Govind Nargundkar and another v. State
of M.P. (AIR 1952 SC 343) it was observed thus: “It is well
to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the frst
instance be fully established, and all the facts so
established should be consistent only with the hypothesis
of the guilt of the accused. Again, the circumstances
should be of a conclusive nature and tendency and they
should be such as to exclude every hypothesis but the
one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any
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reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show
that within all human probability the act must have been
done by the accused.”
15. A reference may be made to a later decision in
Sharad Birdhichand Sarda v. State of Maharashtra (AIR
1984 SC 1622). Therein, while dealing with circumstantial
evidence, it has been held that the onus was on the
prosecution to prove that the chain is complete and the
infrmity of lacuna in the prosecution cannot be cured by
a false defence or plea. The conditions precedent in the
words of this Court, before conviction could be based on
circumstantial evidence, must be fully established. They
are : (1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned must or should and not may be
established; (2) the facts so established should be
consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on
any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature
and tendency; (4) they should exclude every possible
hypothesis except the one to be proved; and (5) there
must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with
the innocence of the accused and must show that in all
human probability the act must have been done by the
accused.”
16. The facts of this case are to be considered on the
touchstone of the law, which has been laid down by
the Apex Court.
17. In the case on hand, the prosecution has relied on the
following circumstances to establish its case:
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(i) On 05.07.2010, the deceased child Shrey when he
was returning back after purchasing the sweets
and pepsi from the shop of PW:9 Naginbhai at
Village Chapad, kidnapped by the appellant
accused for ransom.
(ii) The deceased child then took by the accused at
his house at the frst foor of the room and then
the deceased was strangulated to death;
(iii) On 07.07.2010, at about 07:00 o’clock morning,
the accused, in order to dispose of the body,
removed it by putting the body in the tin barrel
and buried the dead body in the water tank of his
farm yard and then, sprinkled the salt which he
had purchased from the shop of PW:7.
18. We have carefully examined the evidence, as
discussed hereinabove and perused the judgment
impugned. A question that arises for our consideration
is whether the circumstances referred in Para-17 of
this judgment forms a complete chain pointing to the
guilt of the appellant accused and the proved facts are
capable of giving rise to inference of his guilt for
committing the murder and offence of kidnapping for
ransom and causing disappearance of evidence ?
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19. Let be examined the frst circumstances about the
kidnapping the deceased for ransom. Section 364A
defned the act of kidnapping for ransom. Section says
that whoever kidnaps or abducts any person or keeps
a person in detention after such kidnapping or
abduction, and threatens to cause death or hurt to
such person or by his conduct give rise to a
reasonable apprehension that such person may be put
to death or hurt, or cause hurt or death to such person
in order to compel the government or any other
person to do or abstain from doing any act or to pay
ransom shall be punishable with death or
imprisonment for life. The plain reading of section
would say that before section is attracted and a
person is convicted the prosecution must prove the
following ingredients:
(a) the accused must have kidnapped, abducted or
detained any person;
(b) he must have kept such person under custody
or detention; and
(c) kidnapping, abduction or detention must have
been for ransom. To pay a ransom in the ordinary
sense means to pray price or demand for ransom.
This would show that the demand has to be
communicated (Malleshi Vs. State of Karnataka (AIR
2004 Supreme Court 4865));
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In the facts of the present case, admittedly, on
05.07.2010, after 6:00 p.m., deceased child was
missing and he was lastly seen by PW:9 Nagin Patel
who had sold sweet and pepsi to the deceased. A
missing complaint came to be lodged by PW:6. On
next date i.e. 06.07.2010, at late evening, PW:13
came to his village from Amarnath Pilgrimage. The
evidence shows that he was having a connection of
BSNL landline phone no.221919. According to the
version of PW:13, he received a phone call demanding
amount of ransom from the accused, demanding
Rs.10 lakhs and further informed that his child is safe
with him. The accused during the conversation said
that he would call him at 07:00 p.m., for hearing the
voice of the child. In such circumstances, we are of the
opinion that considering tensed situation, it was the
natural conduct of the father waited till evening
however, no phone call was done by the accused. The
PW-13 being a neighbour was having a close
relationship with the accused and his family members.
In other words, the complainant and the accused
known to each other and in that circumstances, the
complainant PW-13 can certainly identifed the
accused by his voice and that is why, after phone call,
the complainant PW-13 was able to identify the voice
of the accused. The PW-13 when he did not receive
the call from the accused till evening, registered a
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complaint by name that the accused abducted his
child for ransom and threatened to cause his death.
The defence counsel raised the contention that, for
recognition of voice, no any spectography being done
by the IO and therefore, relying on testimony of PW-13
for identifcation of voice of accused, is risky in a
criminal trial. On this issue, the Supreme Court in the
case of Dola @ Dola Gobinda Pradhan Vs. State
of Oddisa (AIR 2018 SC 4020), held that, when the
persons are known to each other, a person can
certainly identify the other person by voice. Referring
the judgment of Kirpal Singh Vs. State of U.P. (AIR
1965 SC 712), further observed that, the evidence
about the identifcation by a person by timbre of his
voice depending upon subtle variance in the over
tunes when the person recognizing is not familiar with
the person, recognized may be somewhat risky in
criminal trial but the appellant was intimately known
to Rakhasingh and for more than fortnight before the
date of the offence, he had met the appellant on
several occasions in connection with the dispute with
regard to sugarcane crop. Rakhasingh had heard the
appellant and his brother calling Karamsingh to come
out from the hut and also heard the appellant, as a
prelude to the shooting referring the dispute about
sugarcane. The Supreme Court further observed that,
in light of above observation, the Court found that the
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voice identifcation of the accused by witness whose
credibility had otherwise being accepted by the court
below is not improbable. The Supreme Court while
referring the case of Mohansingh Vs. State of
Punjab (AIR 2011 SC 3534), on the aspect of voice
identifcation of the accused, held that, the voice
identifcation can be accepted if there is no evidence
adduced to challenge the evidence of witness that, he
had acquaintance with the accused and that he knew
the voice of the accused. The Supreme Court after
referring the aforesaid decisions cull out the principle
that the identifcation from the voice of the
accused, may be possible if there is evidence to show
that, the witness was sufciently acquainted with the
accused in order to recognize him or her by voice.
In the matter on hand, PW-13 the father of the
victim, is living adjacent to the house of the accused
in the same village and since long, their relations were
cordial. The PW-13 due to acquaintance of him with
the accused, could able to identify the voice of the
accused and when call was not received again from
the accused, he lodged an FIR disclosing the name of
the accused Hiren Patel for the offence of abduction,
and abduction for ransom. In the cross-examination,
the relationship of the parties and their acquaintance
having not been challenged and there is no any
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motive on the part of PW-13 to involve the accused
falsely. Thus, the evidence of PW-13 on the aspect of
call conversation made by the accused demanding
Rs.10 lakhs as ransom and it was specifcally
communicated by the accused that, he want Rs.10
lakhs and for that purpose, he had kidnapped the child
is trustworthy, acceptable and reliable. Thus, in our
opinion, the circumstance 17(i) referred above has
been proved against the accused as, the deceased
after the abduction was taken by the accused in his
house and considering the incriminating
circumstances of bloodstained cloths and computer
gadgets whereupon the bloodstain of the deceased
was found, for which, there is no explanation offered
by the accused in his statement and therefore, after
the abduction, the deceased was kept by the accused
for the purpose of ransom.
20. The second circumstance relied by the prosecution is
that the child after abduction was taken to the frst
foor of the house and then he was strangulated to
death by the accused. It is relevant to note that on
05.07.2010 the child was abducted. The accused
being a neighbour, was also a member of search party
and at his instance, the sleeper of the deceased being
recovered on 06.07.2010. The IO on the basis of
missing complaint, seized sleepers by drawing
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panchnama Exh. 55. The panchas of the said
panchnama, supported the case of the prosecution.
The another relevant circumstance would be
disclosure statement of the accused on the aspect of
pointing out the place where the dead body had been
buried and the room where he strangulated the
deceased. The FIR came to be lodged on 07.07.2010
by disclosing the name of the accused. The IO PW-22
has clearly stated in his evidence that after
preliminary inquiry, the complicity of the accused in
the offence was disclosed and accordingly, he was
arrested in the late night. The IO PW-22 in the
presence of two independent witnesses – Rajendra
Patel and Subhash Patel, PW-5 and PW-6, have stated
that the accused voluntarily disclosed that he would
point out the place, where the dead body of the
deceased buried by him and also made confessional
statement that he had kidnapped the child for ransom
and took the deceased at his home and strangulated
him. The I.O has specifcally stated that, he noted the
said facts in the preliminary panchnama Exh. 56 and
at the instance of accused, the dead body was found
from the yard of the accused. On this aspect, the
defense has raised the contention that, the confession
of the guilt made by the accused was before the police
and therefore, it is not admissible as evidence. The
other contention raised is that, the discovery of facts
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in terms of Section 27 of the Evidence Act, has not
been proved, in accordance with law and therefore,
said incriminating material cannot be used against the
accused. The IO PW-22, had drawn the discovery
panchnama Exh. 56, as contemplated under Section
27 of the Evidence Act. The IO in his evidence, has
stated about the exact words uttered by the accused
and proved the contents of the discovery panchnama.
The witnesses of the panchnama, have also stated the
exact words uttered by the accused. In such
circumstances, we are not agree with the contention
that the discovery of dead body of the deceased at
the instance of accused cannot be relied or admissible
in evidence. Therefore, the dead body found in the
yard of the accused being discovered at the instance
of accused, for which he has not explained
satisfactorily in his statement recorded under Section
313 of the Cr.P.C. In these context we may refer with
the proft to the ruling in State of Maharashtra Vs.
Damu Gopinath Shinde (2000 (6) SCC 269), wherein, it
has been observed that the basic idea embedded in
Section 27 of the Evidence Act is the doctrine of
confrmation by subsequent events. The doctrine is
founded on the principal that if any fact is discovered
in the search made on the strength of any information,
obtained from the prisoner, such discovery is a
guarantee that the information supplied by the
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prisoner is true. The information might be confessional
or non-inculpatory in nature, but if it results in
discovery of facts, it becomes a reliable information.
Hence, the legislature has permitted such information
to be used as an evidence by restricting the
admissible portion to the minimum. In the facts of the
present case, the accused has led to discovery of dead
body and sleeper of the deceased and the said facts
were within his special knowledge. The FSL ofcer PW-
19 when took visit of the house, the cloths with
bloodstain Group “A” and computer gadgets with
bloodstain “A” had been seized which matched with
blood group of the deceased. The cotton rope
allegedly found from the neck of the deceased and it
was there when the dead body discovered at the
instance of the accused. Thus, the circumstance as
referred in para-17 (ii) of this judgment has been
proved and established.
21. The third circumstance relied by the trial Court that
the accused on 07.07.2010 removed the dead body
from his house and taken it to the yard and buried it
into the water tank and thereafter, he sprinkled the
salt which he had purchased from shop of PW-7.
In order to prove the said incriminating
circumstance, the prosecution has mainly relied on the
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testimony of PW-7 Ajitsinh Makwana, PW-8 Mahesh
Padhiyar, PW-10 Umakant Sonwani and PW-11
Sharmila Tadvi. The appellant accused according to
prosecution case after killing the deceased, the dead
body was kept in the room situated in the frst foor of
the house and it was removed by using tin barrel and
then, the dead body buried in the water tank of the
yard situated near the same village. The accused on
07.07.2010 went to the shop of PW-7 and purchased
15 bags of salt. The said 15 bags delivered at the yard
with the help of PW-8 Mahesh Padhiyar, who worked
part-time with PW-7. In our opinion, we do not fnd any
infrmities in the evidence of aforesaid two witnesses.
The village is not the big village and naturally, the
person living in the village known to each other. Thus,
merely a deposing in support of the prosecution by the
witnesses in the facts of the present case, cannot be
said that they are interested in the outcome of the
case or at the instance of PW-13 they are falsely
deposing against the accused. It is relevant to note
that, when the cause of purchasing salt was being
asked by PW-7, the accused gave false reply that, for
the purpose of earthing he needs salt in bulk. The PW-
8 Mahesh Padhiyar, who had accompanied as a pillion
on the bike, was return back on his bare foot from the
yard, as it was said by the accused that, he has some
work to do in the yard. In such circumstances, the
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purchase of salt for disposing of the dead body having
been proved and established. The another
circumstance, would be a carrying a tin barrel from the
house to the yard by the accused. In the morning,
when accused on the way to yard, carrying the tin
barrel flled with the dead body, was seen by the PW-
10 Umakant Sonwani, and while asking about the
carrying heavy barrel in his hand, the accused gave a
false reply that, for disposal of garbage he is carrying
the barrel. The presence of PW-10 in our opinion, was
natural, as it was his routine schedule to come to a
village for the purpose of selling milk at the dairy of
the village. Therefore, nothing unusual found from the
evidence of PW-10 that, he was intentionally telling lie
against the accused. So far as PW-11 Sharmila Taldi is
concerned, she came to village at her father’s house.
In our opinion, she made some improvement about
the facts which she did not have disclosed in her
police statement and that improvement are material
improvement. Therefore, we do not want to rely on the
testimony of PW-11 on the aspect of throwing the
dead body in the water tank by the accused. In such
circumstances, on 07.07.2010, at about 7-00 to 8-00
in the morning the accused had removed the dead
body from his house and taken it to the yard and
thereafter, he went to the shop of PW-7, where he had
purchased the salt. The evidence shows that some of
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the samples of salt were being collected by the IO in
presence of FSL ofcers. The damaged tin barrel was
also found at the place i.e. yard. In such
circumstances, the ownership of the yard would not be
a ground to discard the other incriminating
circumstances as referred above. The accused and his
father was in possession of the yard for keeping their
animals and other miscellaneous farming instruments
and water tank was also found in the yard.
22. For the discussions made hereinabove, the
circumstances as referred above from which the
conclusion of guilt has to be drawn, has been proved.
The circumstances and the chain of events from
05.07.2010 to 07.07.2010 as referred above proved by
the prosecution is fully established and the
circumstances collectively lead only to the irresistible
conclusion that the appellant accused is the
perpetrator of the crime.
23. Accordingly, the prosecution has been able to prove
that on 05.07.2010 after 6-00 PM the child Shrey was
abducted for ransom and his intention behind the
abduction was ransom as in clear terms he demanded
and conveyed to the PW-13 that, he needs Rs.10 lakhs
and at that time, he had already strangulated to death
the deceased. Despite of this, he did not disclose or
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inform to any one about the death of the deceased
and thereafter, in order to cause disappearance of the
evidence, he removed the dead body from his house
and buried it in his open yard, whereby, he committed
an offence causing disappearance of evidence. In
such circumstances, we are in agreement with the
conclusion arrived at by the trial Court that the
prosecution able to prove the case beyond reasonable
doubt against the accused by adducing sufcient,
cogent and acceptable evidence.
24. In the result, we do not fnd any infrmity in the
judgment passed by the learned trial Court. The
appeal of the appellant is without any merit and same
is dismissed accordingly. The appellant is on bail. The
appellant is directed to surrender within 4 weeks from
the date of this judgment. The bail bond is hereby
cancelled and surety is discharged. R&P, if any, be
sent back to the court concerned forthwith.
(ILESH J. VORA,J)
(SANDEEP N. BHATT,J)
P.S. JOSHI
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