LexHARIVADAN BABUBHAI PATEL versus STATE OF GUJARAT
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[2013] 10 S.C.R. 889 HARIVADAN BABUBHAI PATEL v. STATE OF GUJARAT (Criminal Appeal No. 1044 of 2010) JULY 01, 2013 [DR. B.S. CHAUHAN AND DIPAK MISRA., JJ.] Penal Code, 1860: A B ss. 342, 346, 302, 1208 and 201rlw. s. 34 - Prosecution c under - Of 4 accused persons - Circumstantial evidence - Conviction of two accused and acquittal of two accused by trial court - High Court further acquitted another accused and convicted the appellant-accused - On appeal, held: The evidence on record are cogent, credible and meet the test of 0 circumstantial evidence - Hence, the appellant-accused rightly convicted - However, since no other accused has been convicted, the appellant-accused could not have been convicted uls. 1208 - Conviction of the appellant confirmed except u/s. 1208. s. 1208 - Conviction of one accused, while other accused persons acquitted - Held: Conviction uls. 120 8 cannot be sustained when the other accused persons are acquitted. E Evidence - Circumstantial evidence - Failure of accused F to give any explanation or giving false answer u/s. 313 Cr. P. C, can be counted as providing a missing link for building chain of circumstances. Criminal Trial - Non-examination of material witness - Effect of - Held: Non-examination of a material witness is not G a mathematical formula for discarding the weight of the testimony available on record. 889 H 890 SUPREME COURT REPORTS (2013] 10 S.C.R. A The appellant-accused (A-1 ), alongwith 3 other accused was prosecuted for the offences punishable u/ ss. 342, 346, 302, 1208 and 201 r/w. s. 34 IPC. Trial court acquitted A-3 and A-4 and convicted A-1 and A-2 for all the charges. In appeal, High Court acquitted A-2, but B sustained the conviction of the appellant. Hence the present appeal. Partly allowing the appeal, the Court HELD: 1. The present case does not reveal that the C 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 D 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 trial Judge as well as by the High Court and, E adjudging the entire scenario of the prosecution case,'the same deserves acceptation. [Para 12] [899-G; 900-A-B] State of H.P. vs. Gian Chand (2001) 6 SCC 71: 2001 (3) SCR 247; Ramdas and Ors. vs. State of Maharashtra (2007) F 2 SCC 170; Kilakkatha Parambath Sasi and Ors. vs. State of Kera/a AIR 2011 SC 1064: 2011 (2) SCR 540; Kanhaiya Lal and Ors. vs. State of Rajasthan 2013 (6) SCALE 242 - relied on. 2. There can be no shadow of doubt that the G confession part is inadmissible in evidence. It is also not in dispute that the panch witnesses have turned hostile. But 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 H appellant. Hence, the doctrine of confirmation by HARIVADAN BABUBHAI PATEL v. STATE OF 891 GUJARAT subsequent events is attracted and, therefore, it can be A held that recovery or discovery in the present case is a relevant fact or material which can be relied upon and has been correctly relied upon. [Paras 13 and 16] [900-D-E; 902-A] A.N. Venkatesh and Anr. vs. State of Kamataka (2005) 7 SCC 714; Prakash Chand vs. State (Delhi Admin.) AIR 1979 SC 400: 1979 (2) SCR 330; State of Maharashtra vs. Damu S/o Gopinath Shinde and Ors. (2000) 6 SCC 269: 2000 B (3) SCR 880; State of Maharashtra vs. Suresh (2000) 1 SCC C 471: 1999 (5) Suppl. SCR 215; State of Punjab vs. Gumam Kaur and Ors. (2009) 11 SCC 225: 2009 (3) SCR 1195; Aftab Ahmad Anasari vs. State of Uttaranchal (2010) 2 SCC 583: 2010 (1) SCR 1027; Bhagwan Dass vs. State (NCT) of Delhi AIR 2011 SC 1863: 2011 (6) SCR 330; Manu Sharma vs. State AIR 2010 SC 2352: 2010 (4) SCR 103; Rumi Bora D Dutta vs. State of Assam 2013 (7) SCALE 535 - relied on. 3. It is evident from the material on record that the deceased was taken away in a Maruti car. The appellant has been identified by PW-13, and PW-15, and their E evidence remains totally embedded in all material particulars. It has been proven by the prosecution that the
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