M. K. Mukherjee, J. - (1.) This appeal under Section 379 Cr. P. C. is directed against the judgment dated October 15/16, 1987 rendered by the Gujarat High Court in Criminal Appeal No. 746 of 1981 whereby it reversed the acquittal of the appellant of the charges under Section 302, 201, 212, 364, 365 and 397 IPC recorded in his favour by the Sessions Judge, Surat and convicted and sentenced him under Sections 302 and 201 IPC, while upholding the acquittal of three others who were arraigned with him.
(2.) The prosecution case, so far as it is relevant for disposal of this appeal, is an under: (a) Khodabhai Amarshi Patel (the deceased) used to reside in the city of Surat along with his wife Raiben (PW 2) and two children and carry on business in diamonds. On September 2, 1980 (which was the Janmastami day) he left his residence in the morning with a packet containing diamonds worth Rs. 60,000/- after informing his wife that a person was waiting for him in market. As he has not returned home till 3 P. M. his wife requested Shamjibhai Manjibhai (P. W. 8) to enquire of his whereabouts. Shamjibhai first went to the office of Gordhandhai Patel (P. W. 1), a cousin of the deceased, where he found Manjibhai Devjibhai (PW 10) sitting. He (PW 10) disclosed that at noon time he had seen the deceased near the market, sitting on the pillon of a scooter which was being driven by Ramesh (the appellant). They then went in search of the deceased in the market and other places but could not trace him out. Ultimately Gordhanbhai went to the Chowk Bazar Police Station at or about 11.45 P. M. and lodged a missing information (Ext. 63). (b) In the meantime, some people of Patel community, to which the deceased belonged, having learnt that he was missing also started searching for him. In course of the search some of them went to the flat of the appellant, which was on the fourth floor of a building named 'Yagnapurush', at Rampura. On their query the appellant informed them that along with the deceased he had gone to the office of Jayantibhai Master to show him some diamonds but as his office was closed they came back and on the way the deceased got down at Rampura. (c) On the following day, that is, on September 3, 1980 attempts were again made to trace out the deceased but without success. However, in course of the search Gordhanbhai learnt from Mukhesh Chandra Maganlal Parekh (PW 9) that on the previous day at or about 1 P. M. he had also seen the deceased going towards Athwa with the appellant on a scooter. Gordhanbhai then went to the police station at or about 11.30 P. M. and lodged a formal complaint (Ext. 14) alleging that the appellant had kidnapped the deceased to grab the diamonds he was having with him. Police Inspector Chandravadan Himatlal Jaiswal (P. W. 31) recorded that information and registered a case thereupon. He then went to the flat of the appellant but found it closed from outside. (d) As the appellant was not traceable on the next day (September 4, 1980) also Sri Jaiswal started making enquiries about his relatives including his brother-in-law R. R. Seth who was residing at Shrinath Apartment, Timeliswad, Nanpura. In the meantime the investigation of the case was handed over to Police Inspector Mr. A. N. Vaghela (P. W. 43). (e) After taking over investigation Inspector Vaghela, along with R. R. Seth and panchas went to his (appellants) flat in the early hours of September 5, 1981 only to find it still locked. After breaking open the lock he searched the flat but found nothing incriminating except a pair of blood-stained trousers (At. No.1) hanging from a per which he seized under a panchnama (Ex. 53). After completion of search he locked the apartment and handed over the key to Sri Seth. (f) On the same day, at or about 2.00 P. M. he (P. W. 33). received an information that one trunk emitting foul smell was lying in the outskirt of the city by the side of Udhna-Magdalla Road. He therefore left for that place and reaching there found a trunk (Art.2) lying in a bush, at a distance of 10 feet from the road. He broke open the lock in presence of panchas and therein saw a decomposed body tied with string. He held inquest upon the dead body and got its photographs taken. He then sent the dead body to the Civil Hospital for post-mortem examination. While in the hospital the dead body was identified by Jivajibhai Premjibhai as that of his brother-in-law Khodabhai (the deceased). (g) In that night Bhupendrabhai Chunilal (since acquitted) was arrested but as the appellant could not be traced in Surat, Sub-Inspector Devkar (P. W. 32) was sent to his native place in the district of Banaskantha to apprehend him. Ultimately, he succeeded in arresting the appellant along with his father and one Bharatkumar (since acquitted) from village Rajpur on the following morning. On search a packet containing diamonds was found in the pocket of the trousers the appellant was wearing. (g) On September 9, 1980 Mr. Veghela along with panchas and Anil Kumar Mehta, Junior Scientific Assistant, Forensic Scientific Laboratory, went to the flat of the appellant accompanied by him (who was in police custody then) and seized a number of articles including a chair, blanket, trousers and a bush-shirt from its different rooms all of which were found blood stained. Besides, he got photographs of blood-stains found of the wall and the floor taken. (h) On completion of investigation charge-sheet was submitted against the four persons arrested during investigation, including the appellant, and in due course the case was committed to the Court of Session.
(3.) The appellant pleaded not guilty to the charges levelled against him and contended that he had been implicated in the case on mere suspicion.;