Sethi, J. - (1.)Fairly conceding that in a criminal case while hearing an appeal by special leave this Court cannot ordinarily embark upon a re-appreciation of evidence, in view of concurrent findings Mr. Sushil Kumar, learned Senior Counsel for the appellant has contended that without appreciating afresh their testimony, the statements of Rakesh Pravinchandra Kinarivala (P.W. 1) and Satish (P.W. 12), the alleged eye-witnesses cannot be accepted as their presence on spot is highly improbable. In support of his contention he has referred to circumstances which allegedly show that the FIR had been ante-timed only for the purposes of planting the aforesaid witnesses as eye-witnesses to the occurrence. Non-mention of the FIR number and the name of the witnesses in the inquest panchanama (Exh. 37) has been cited as an instance to probabilise that the aforesaid witnesses were introduced later. Learned counsel has further submitted that as despite taking finger prints from the place of occurrence and sending it to the expert for his opinion, the prosecution did not produce the opinion of the expert in the Court, which amounted to withholding of evidence, the Courts should have drawn an inference against the prosecution. It is submitted that the well settled position of law is that where suppression of evidence is proved, a presumption of law has to be drawn that if such an evidence was actually produced, the same would have gone against the party withholding it. Presence of blood at various places inside the house of the deceased is suggested to be a strong ground to hold that occurrence had not taken place outside the house as deposed by eye-witnesses but the deceased was killed inside the house by some miscreants. The appellants are alleged to have been implicated merely on suspicion and convicted completely ignoring the submissions made on their behalf.
(2.)In order to appreciate the submissions of the learned counsel for the appellants, it is necessary to have a resume of the facts of the case leading to the conviction and sentence of the appellants. Montu a young lad, nephew of deceased-Girish Namdar, had allegedly abducted damsel Namrata, daughter of Mukesh Chandulal Gandhi and sister of accused-Sachin (A2) and accused-Duniya (A3). According to the prosecution, seeds of enmity between the families of complainant and the accused-party had been sown on account of love affair between Namrata and Montu. The enmity thus conceived is stated to be the motive for the ghastly and macabre killing of Girish Namdar.
(3.)On 7-2-1993 at about 1.00 p.m. Girish Namdar alias Girish Ambalal Gandhi is stated to have come to his farm known as Namdar Farm which is situated near Vatva village about 10-15 kilometers from the metropolitan city of Ahmedabad. The accused are stated to have hatched a conspiracy, in furtherance of which they committed the crime. The accused persons came at the farm in a Maruti Fronti Model car. On hearing the blow of horn, the deceased called the visitors inside his house through his Cook Satish (P.W. 12). Rajesh (A1) and Duniya (A3) came inside the house whereas Sachin (A2) remained in the car. Accused-Rajesh and Duniya initiated the talk about the proposed marriage of Montu with Namrata. The issue was hotly debated but as the deceased allegedly did not agree to the proposal, A1 and A3 got enraged and agitated. When A-1 started to leave the house, the deceased persuaded him to sit by catching hold of him and offered him wine but A1 refused to oblige him. As A1 went out, the deceased also came out of his house to see him off near the sitting portion in front of the house. Again there was some talk between the deceased and A1 about Namrata. A-1 felt that the deceased was the only obstruction and impediment between the relationship of Namrata and Montu. The deceased consoled him that some conciliation and settlement shall be reached by calling the fathers of the two lovers. It is alleged by the prosecution that A-1 called the deceased on the side and took him near the Maruti car where A-1 called Sachin (A-2) and Duniya (A-3) to take out weapons from the car. Rajesh (A1) took out revolver from his pocket and Sachin (A2) and Duniya (A3) took out sharp edged weapons from the rear side of the Maruti car with which they started assaulting the deceased. Girish Namdar was given several blows one after the other by the accused persons. Rakesh (P.W. 1) who was standing there was threatened at the point of revolver by Rajesh (A1) to get out therefrom and get into the house, since he happened to be the son of sister of the deceased, to which he obeyed. The Cook, Satish (P.W. 12) who was talking on phone to the wife of the deceased-Uma, was intercepted and the complainant-Rakesh took the telephone from the hands of Satish and told Uma, his aunt, about the assault on Girish by the accused persons requesting her to immediately rush to the spot with somebody. When Rakesh again came out of the house, he was threatened and directed to go inside. He received another telephone call from Smt. Uma, his aunt who was enquiring from him as to what was earlier told to her was correct or not. Satish (P.W. 12) who was a cook was threatened by the accused to run away from the spot. Sachin (A-2) came inside the house of the deceased and snapped the telephone connection and broke the telephone instrument. By the time Rakesh (P.W. 1) came out from the house, Girish had virtually succumbed to the injuries received by him from the accused persons who had by that time fled away from the scene of occurrence.