IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 109 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE B.J.SHETHNA and Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- MAHENDRASINH ALIAS MANUDARA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 109 of 1993 MRS KRISHNA V BAROT for Petitioner No. 1 (absent) (MR VIVEK BAROT) for Petitioner No. 1 MR KP RAVAL APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE B.J.SHETHNA and MR.JUSTICE D.P.BUCH Date of decision: 20/12/2001 ORAL JUDGEMENT (Per : MR.JUSTICE B.J.SHETHNA) #. The appellant-accused along with two other accused were tried for the offences punishable under Sections 120-B, 302 read with section 34 and Section 323 read with Section 34 of IPC before the court of Additional Sessions Judge, Vadodara in Sessions Case No.167/91. The appellant-accused No.1 was also tried for the offences punishable under Section 302 of IPC Section 25-C of the Arms Act for committing murder of Dineshbhai Amin, President of Sneaked Taluka Panchayat in the broad day light on 3.5.1991 at 10.45 am. while travelling in the jeep. Number of witnesses were examined by the prosecution to prove the case against all the accused. However, the learned Additional Sessions Judge, Vadodara by his impugned judgment and order dated 22.12.1992 acquitted the accused Nos. 2 and 3 by giving benefit of doubt, but convicted the appellant-accused No.1 present appellant, for committing murder of Dineshbhai Amin by firing gun shot, under Section 302 of IPC and sentenced him to suffer life imprisonment. He has also convicted the appellant-accused No.1 for the offence under Section 323 of IPC and sentenced him to suffer 3 months R.I. and to pay fine of Rs.500/= in default to further undergo 3 months R.I. He has also convicted the appellant-accused for the offence under Section 27 of the Arms Act and sentenced him to suffer 3 years R.I. and to pay fine of Rs.500/= in default to further undergo 6 months R.I. All the sentences were ordered to run concurrently. This order of conviction and sentence passed by the learned judge is challenged in this appeal by the present appellant-accused. #. Initially, this appeal was filed by the appellant-accused through his counsel Shri Vivek Barot. Thereafter, on the untimely death of Shri Vivek Barot, Mrs.Krishna Barot filed her appearance on behalf of the appellant-accused in this appeal. There is yet another Criminal Appeal No.112/96 filed by the present appellant-accused challenging his order of conviction and sentence passed in other case which was tagged along with this appeal and placed at Sr.No.23 in the running final hearing board dated 26.11.2001. Last week when this matter was about to reach, we sent for the learned counsel for the appellant-accused, but instead of Mrs.Krishna Barot, senior counsel Shri Magan Barot appeared before us and stated that out of two appeals the appellant has engaged Shri Adil Mehta in Criminal Appeal No.112 of 1996. We inquired from Mr.Mehta as to whether he will be appearing in this matter or not, to which he said no. Therefore, Criminal Appeal No.112/96 was ordered to be separated from this matter and placed before the concerned court taking up appeals against the order of conviction after the year 1994 as per the present roster. Mr.Barot then submitted that the appellant-accused was advised to engage senior advocate in this matter but thereafter they have not received any instruction, therefore, he may not be able to remain present and argue this case on behalf of Mrs.Barot for the appellant-accused. #. Today, we have sufficiently waited for Mr.Barot and Mrs.Krishna Barot for pretty long time, but nobody put appearance, therefore, in their absence, we heard Shri K.P.Raval, learned APP appearing for the State and decided this appeal on merits. #. As per the prosecution case, the present appellant-accused No.1-Mahendrasinh @Manudada Vikramsinh Maharaul shared common intention with accused No.2-Ganpatsinh Narsinh Parmar and accused No.3-Imambhai Allarakha Malek to commit murder of deceased-Dineshbhai, the then President of Sneaked Taluka Panchayat. They conspired together for this act and thereby committed offence under Section 120-B of IPC. As a part of their conspiracy and in furtherance of their common intention called the death of Dineshbhai. They chased deceased-Dineshbhai, who was driving the jeep bearing No.GJN-1-9773 going from Sneaked to Vadodara in their (accused) jeep bearing No.GEP-9966. They overtook the jeep near village Thuvavi at about 12.45 p.m. The present appellant-accused fired gun shot from 12 bore gun causing injury on the head of deceased-Dineshbhai just above the right ear. Because of that, deceased Dineshbhai who was driving the jeep at that time lost control of his jeep and the jeep was overturned and fell in the ditch of left side of the road. Deceased Dineshbhai died there and then. Thus, all the three accused were tried for the offence under Section 302 read with Section 34 of IPC and the appellant-accused No.1 was also tried for the offence under Section 25-C of the Arms Act. #. To prove its case, the prosecution has examined number of witnesses. Out of them three witnesses (1) Jashubhai Patel, who lodged FIR was examined at Ex.17; (2) Kantaben Chunilal Ex.18 and (3) Fatehsinh Tadvi Ex.21. In addition to that, Kamalkant Shankarlal Ex.19, Hasmukhbhai Ex.43 were examined to show that on that road Mahendrasinh had passed in his jeep immediately after the incident. Dr.Abdula, who performed postmortem note had been examined as medical witness. Similarly, Khandelwal, who is an expert, was examined. In addition to it, one Dy.S.P. and one P.I. and three P.S.Is. were examined who carried out in this case. The learned Judge has not relied upon the evidence of eye witness Kantaben Chunilal PW-2 Ex.18 and Hasmukhbhai Kesurbhai PW-9 Ex.43 who claimed to have seen the appellant in jeep. We have also carefully gone through their evidence and we are fully convinced that the learned judge has rightly not relied upon their evidence. However, the learned Judge has relied upon the evidence of Jashbhai-complainant, who lodged the complaint within less than two hours of the incident before the police station as well as Fatehsinh Ex.21, who were travelling in the jeep at the time of incident and also received injuries because the jeep was overturned. #. Thus, we have to carefully appreciate mainly the evidences of two eye witnesses Jashbhai-complainant PW-1 Ex.17 of the Fatehsinh PW-5 Ex.21. #. Jashbhai-complainant PW-1 Ex.17 has stated in his chief examination before the court that he is staying at village Indral of Taluka Sankheda. In the past he was Sarpanch of Indral. On the day of incident i.e. on 3.5.1991 at 10.45 am. he along with Dineshbhai (deceased), Bharatsinh and Bhupendrabhai were gong to Baroda to attend one meeting of dairy. They had gone in jeep. When they started from Sankheda, Bharatsinh was driving the jeep and Dineshbhai was sitting next to Bharatsinh and he was sitting next to Dineshbhai. Bhupendrabhai was sitting just behind driver seat. When they came to Lotiya, relative of Bhupendrabhai came there, therefore, Bharatsinh went with his relative and deceased-Dineshbhai started driving the jeep. Two ladies were also sitting in the jeep along with Fatehsinh. From Lotiya they came to Mangrol bust stand. There, Deepak, Ashok and Kanu sat in jeep. Deepak sat next to Dineshbhai and three others sat at the back seat. When they reached Fartikui, Hasmukhbhai came on scooter opposite side and waved his hand. When they went just ahead of it, one jeep came from behind and when it came near to them gun shot was fired by Manudada, who was sitting in the jeep at deceased-Dineshbhai. The bullet hit just below the ear of deceased-Dineshbhai because of that Dineshbhai lost control of the jeep and it went into ditch and that other jeep went towards Baroda. They came out from the jeep but Dineshbhai died there and then on the spot. Thereafter, he came to police station in truck and lodged his FIR at Ex.13/1. Dispute was going on between deceased-Dineshbhai and accused-Manudada regarding no confidence motion of Taluka Panchayat. After lodging the FIR, he came to the place of incident with the police and showed the place of incident. He had identified accused-Manudada in the court who was known to him since long. He had also received some minor injuries for which he had taken treatment at Sneaked dispensary. His further statement was recorded by the police on the next day of lodging FIR. Thus, in his chief examination he has completely supported the prosecution. #. Now, we have to consider his evidence in cross-examination. We would not like to reproduce the entire cross-examination because many relevant and irrelevant questions were put in his cross-examination. The learned Judge in his judgment running into about 92 typed pages considered the evidence of complainant-Jashbhai in detail. However, we have considered the relevant portion of his cross-examination. He frankly stated that he was knowing when the offence of murder took place. He had immediately informed about the same to the police. He had an occasion to pass through village Thuvavi where many persons have got telephones at their residence. But he had not contacted any person at Thuvavi to inform about the incident on telephone. According to him he had reached the police station at about 12.00 noon and within half an hour his FIR was reduced into writing in the police station. Thereafter, he went to the place of incident at about 3.00 p.m. He was knowing that Fatehsinh Tadvi was one of the witnesses. He had seen Fatehsinh for the first time on the day of incident. When he had gone to the police station he had not given name of Fatehsinh in his FIR and on the next day i.e. on 4th he realised that he could not give the name of Fatehsinh in the FIR. He has admitted that when jeep overtook them his attention was on their own jeep because deceased-Dineshbhai lost the control of his jeep. He has categorically denied the fact that the complaint was lodged by him at 3.00 p.m. and not at 1.30 p.m. At this stage, we may state that the incident in question took place around 12.00 noon and the complaint was lodged at 1.30 p.m. i.e. within half an hour, wherein, name of the accused-appellant was clearly disclosed. Even assuming for the sake of argument the complaint was lodged at 3.00 p.m. then also in our considered opinion it would not have made much difference. Nothing substantial has come out in his cross-examination regarding the actual incident. In fact, in his cross-examination he had categorically stated that he was sitting on the left side of the jeep next to deceased-Dineshbhai. If that is so, then while jeep of appellant-accused which was overtaking them, he could have very well seen the accused who fired the gun shot from his jeep. It may be stated that this witness was never hostile to the appellant-accused. In that view of the matter we are of the considered opinion that the learned Judge has rightly relied upon his evidence for convicting the appellant-accused for the offence under Section 302 of IPC and other offences. #. There is one more eye witness Kantaben Chunilal at Ex.18. However, we have refrained ourselves from dealing with her evidence in detail because in our considered opinion the learned Judge was right in discarding her evidence. ##. Evidence of another eye witness Fatehsinh Tadvi PW-5 Ex.21 is required to be considered by us carefully. He has stated in his chief-examination that he is serving as Audit Clerk in Cooperative Society. He stays at village Varnama and serving at Karjan. He was doing up and down from Varnama to Karjan. On the day of incident i.e. on 3.5.2001 he left at 10.00 am. for going to his job. He was waiting for bus, but it did not come. Therefore, he was going towards Sankheda on the tempo. He got down at Lotiya bus stand. There jeep of Dineshbhai came which was driven by Bharatsinh. Dineshbhai was sitting next to driver and Jashbhai (complainant) was sitting next to him. Bhupendrabhai, Clerk of Taluka Panchayat, was also in the jeep. He raised his hands and jeep was stopped. Deceased-Dineshbhai asked him where he wanted to go. He stated that he wanted to go to Baroda. Dineshbhai gave him lift. He was sitting on the left side of the jeep. Two other ladies also sat in the jeep. Relative of Bharatsinh came there, therefore, he got down from the jeep and from Lotiya jeep was driven by Dineshbhai. At Kali Talavdi four boys got the jeep stopped, three sat in the rear side and one sat on the front side. From Mangrol they reached Timbi crossing. There MLA, Babarbhai had a brief talk with Dineshbhai. Thereafter, they came near Fartikui at about 11.45 p.m. There one jeep overtook them and he heard the gunshot fired by appellant-accused-Manudada from his gun. He knows accused-Manudada. He had identified him in the court. When jeep overturned they came out and saw that Dineshbhai received bullet injury and died there on the spot. He had also received some injuries on his head as well as on his waist. From there Jashbhai and he came in tempo near Vega Petrol Pump and from there he went to his village Suryagodha in truck. On 4th he took the treatment from Government dispensary and did not attend his job. On 7th his statement was recorded. This was the story narrated by Fatehsinh in his chief examination. ##. In his cross-examination he had stated that since Jashbhai was going to police station, he did not go along with him. When he had gone to Government Hospital, doctor inquired from him that how he received injuries. He never felt that he should go to the police station because Jashbhai had already gone to police station. He also stated that he was eye witness to the incident and he was aware that he should contact the police, but he did not do so because Jashbhai had already gone to the police station. Except his family members he had not disclosed about the incident to anyone else between 4th to 7th. He also stated that on the next day i.e. on 4th he attended cremation of deceased-Dineshbhai. He categorically denied the suggestion made to him that on 4th it was decided to cite him as eye witness to the incident, therefore, he was advised to go to the Government Hospital for taking treatment. Expect this, there is nothing in his cross-examination. From his entire cross-examination, we find that it is not even suggested that he was hostile to the accused or he had strange relation with him. His presence is most natural and the way in which he deposed in the court in his chief examination and cross shows that he is most reliable. ##. Once we accept the evidence of these two eye witnesses, then evidence of other witnesses which have been been relied upon by the learned Judge for the purpose of convicting the accused would be hardly material for our purpose. We would not like to reproduce the same. But we must state that Kamalkant PW-3 Ex.19 categorically stated that he had seen accused-Manudada going in his jeep on that day at the time of incident. Thus, the presence of the accused in the jeep at the place of incident is clearly proved. The evidence of Dr.Abdula clearly support the evidence of eye witnesses Jashbhai and Fatehsinh. He has completely ruled out possibility of assault being made by the assailant in front of the jeep. We may state that an attempt was made that point blank firing was made in front of the deceased when they were travelling in jeep was specifically denied by Dr.Abdula in his evidence. Similarly, Mr.Khandelwal, who is expert clearly supported the prosecution case. ##. In the instant case, motive is very well established by the prosecution. Admittedly, there was political rivalry between the appellant-accused and deceased-Dineshbhai. Both were contesting the election of President of Sneaked Taluka Panchayat. When there is a direct evidence of at least two eye witnesses then motive would become hardly material and if any further corroboration is required it was very much there. ##. Before parting, we must state that in this case there were in all three eye witnesses. The learned Judge as well as this court has discarded the evidence of lady witness Kantaben on several grounds. One of the important grounds was that the photograph of the accused-Manudada was already published immediately after the incident and she had to admit in her cross-examination that having seen his photograph she could identify him before the Mamlatdar as well before the court. This practice adopted by the prosecution is required to be condemned strongly. Recently, we have noticed that media is taking lot of interest in sensational cases and thereby putting the trial at stake. It is high time that check is required to be put on such type of cheap publicity by media. Neither photograph of the accused should be published in newspaper nor their interviews should be permitted on televisions. In the instant case, if there was only eye witness is Kantaben, then perhaps we would have to acquit the accused who had committed the murder in broad day light because of such type of cheap publicity adopted by media in publishing his photograph in the newspaper immediately after the incident. The photographs of the accused are to be published in the newspapers only when they are absconding and not available for pretty long time, that too after obtaining necessary orders from the competent court. ##. In view of the above, we direct the State Government and its Police Machinery to see to it that in future photographs of the accused are published in newspapers or shown on televisions only after obtaining necessary permission from the competent court, if the accused is absconding. Any violation of these directions by press or media or the concerned police officer will be viewed seriously and they may be subjected to contempt of court proceedings. Accordingly, the State Government may issue necessary directions to the concerned parties forthwith to the effect that in future photographs of the accused are published in newspapers or telecast on television by Media only after obtaining necessary permission from the competent court if the accused of the offence is absconding for a considerable time. Any violation of the same would be subjected to the contempt proceedings. ##. Lastly we must state that it has come on record in the evidence of Dy.S.P., Shri Khan that after the alleged incident the accused was absconding, therefore, the proclamation under Section 82 of Criminal Procedure Code had to be issued and after a period of more than one and half month the accused could be arrested. This was never a circumstance to be relied upon against the appellant-accused because it is not a case of circumstantial evidence. In the instant case, there is a direct evidence of at least two eye witnesses who have clearly stated that it was appellant-accused-Manudada who fired gun shot from his jeep and killed deceased-Dineshbhai. ##. In that view of the matter, we have no option but to dismiss the appeal. ##. In view of the above discussion, we do not find any substance or merit in this appeal accordingly it fails and is hereby dismissed. ##. The Registry is directed to send the copy of this judgment to the Home Department, Legal Department, Information Department, Director General of Police forthwith for its compliance which shall be reported to this court at the earliest and not later than two months from the receipt of the said order. (B.J.Shethna, J.) (D.P.Buch, J.) *Pvv