CR.A/1422/2005 1/125 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1422 of 2005 With CRIMINAL APPEAL No. 1544 of 2004 With CRIMINAL APPEAL No. 1925 of 2004 With CRIMINAL APPEAL No. 2234 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAMESHBHAI MOHANBHAI KOLI - Appellant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= CR.A/1422/2005 2/125 JUDGMENT Appearance : Criminal Appeal Nos. 1422 of 2005, 1925 of 2004 and 2234 of 2004 MR MC Barot for Appellants MR RC Kodekar APP for Respondent MR YS Lakhani for original complainant Criminal Appeal No. 1544 of 2004 Mr SV Raju for appellant Mr RC Kodekar APP for respondent Mr YS Lakhani for original complainant ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 16-17-18-25/10/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. These four criminal appeals under Section 374 of the Code of Criminal Procedure ('the Code' for short) are directed against the judgment and order dated 23.8.2004 rendered in Sessions Case No.34 of 2000 by the learned Additional Sessions Judge, Second Fast Track Judge, Gondal, by which the appellants of Criminal Appeal No.1422 of 2005 CR.A/1422/2005 3/125 JUDGMENT and appellant of Criminal Appeal No.2234 of 2004 (A-1, A-2, A-3 and A-4) are convicted for commission of the offence under Section 302 of the Indian Penal Code ('IPC' for short) read with Section 34 IPC and under Section 135 of the Bombay Police Act ('BP Act') and each of them is sentenced to suffer imprisonment for life and fine of Rs.5,000/-, in default, R.I. for one year for the offence under Section 302 IPC read with Section 34 IPC and RI for one year and fine of Rs.1,000/-, in default, RI for one month for the offence under Section 135 of the BP Act whereas appellant of Criminal Appeal No.1544 of 2004 (A- 6) and appellants of Criminal Appeal No. 1925 of 2004 (A-5 and A-7) are convicted for commission of the offence under Section 302 IPC read with Section 120B IPC and sentenced to suffer imprisonment for life and fine of Rs.5,000/-, in default, RI for one year for the offence under Section 302 IPC read with Section 120B IPC. It is also further directed that A-5 and A-6, each, shall pay Rs.1,50,000/- as compensation to the widow of deceased Prakashbhai Raveshia and on CR.A/1422/2005 4/125 JUDGMENT their depositing the said amount the same shall be paid to her. The order further stipulated that A-8 who was charged for commission of offence under Section 312 IPC for harbouring the accused, has been acquitted. 2. Background facts as projected by the prosecution as also disclosed in the FIR as well as unfolded during the trial are as under: 2.1. P.W.116, Vinubhai Pragjibhai Raveshia, uncle of the deceased-victim Prakash Raveshia, has, inter alia, stated in his complaint that Prakash Raveshia was an Ex-President of the Morbi Municipality and at the time of the incident he was Chairman of the Morbi Nagrik Bank and was a member of the Executive of the Gujarat Pradesh B.J.P. It is alleged by him in the complaint that on 16.9.1999 at 5:30 in the evening, he was at his Stall/Cart at the Nehru Gate. At that time, Kishoresinh Durbar had come and told him that Prakash had been attacked near the bank, he has been taken to the hospital and his condition was CR.A/1422/2005 5/125 JUDGMENT serious. Hence, he ran and went straight to the hospital. It is alleged in the complaint that on reaching the hospital, the doctor and the staff told him that Prakash was no more. In the meanwhile he had met Bhupat, son of his elder brother Parmanandbhai and he told him that “before the incident took place at the bank, he was going on the road, at that time the Directors of the Bank, Amubhai Kotak, Ashokbhai Kathrani, Jagdishbhai Seta and Anilbhai Mehta and the Bank staff as well as Prakashbhai were present there. They all had a meeting at the bank. Thereafter when he again passed from there after three minutes, he saw Prakash lying in a heavily bleeding condition. He has sustained knife injuries and could not speak. At that time, Anilbhai, Ashokbhai and Amubhai were present there and Prakashbhai was taken in the Bank's Sumo car and Anilbhai had come to the hospital”. It was further alleged in the complaint that Bhupatbhai has come to the hospital on a scooter and Anilbhai was present at the hospital and he had informed him that he had reached there at the CR.A/1422/2005 6/125 JUDGMENT time of the incident and had seen three persons running towards the hotel with open knives. It is further case of the complainant that as his nephew was involved in politics since about eight years, he used to have differences with a lot of people. Recently during the unveiling ceremony of the statue of Swami Vivekanand and inauguration of the Water Sump held by the Morbi Municipality near Durbargadh, members of the Municipality, the MLA from Morbi, the President of the City BJP Pradeepbhai Vala and Dalchandbhai Mehta were present. When the programme was over, the lady member of the Municipality Jayshreeben Ghoghani orally made a complaint to Prakash that presently all are present and that for the last one and a half years since the death of her husband she had been complaining to all of them that instalments are being recovered from her Travels firm. In this regard, Prakash had told her that the MLA was standing there, complain to him whereupon the MLA said that they should all sit together at the CR.A/1422/2005 7/125 JUDGMENT Circuit House, hence they had all gone there. Khambhalia Saheb had been called there and he was told about the money being taken from Jayshreeben's Travels firm. At that time Prakashbhai had said that why should the instalments be stopped only in case of Jayshreeben alone? Whereupon Khambhalia Saheb had said that if the MLA says so they would stop taking instalments from all. After this incident there was a hot exchange of words between the MLA and Prakashbhai and collars were seized and revolver was taken out, at that time Harishbhai Jadav and Aniruddsinh had intervened and saved Prakash. It is further alleged in the complaint that thereafter, upon reading a press note issued in the newspaper, the MLA had rung him up and asked what was the necessity of giving publicity to the press note in the newspaper and told him that it would be better if he made Prakash understand. Thereafter he had made a telephone call to Pradeep Vala apprising him of the CR.A/1422/2005 8/125 JUDGMENT situation and told him that the reputation of the party should not be spoilt whereupon Pradeepbhai had told him that he and Dalchand should meet him on the next day. On the next day Pradeepbhai told him that upon talking to the MLA on the phone, he had refused to sit with any of them and said that he would come to an understanding with Prakash in his own way. It is further case of the complainant that on the next day in the morning when he went to Prakash's office he had told him that late at night Khambhalia Saheb had called him up on the telephone at home and old him that if he was suspended in connection with the Travels instalments, he would blow him off at the Nagar Darwaza Chowk. It is further case of the complainant that Prakashbhai being a leader, being involved in politics as well as being a stamp vendor was aware of scams in respect of several lands of the town. As per his belief, as Prakash was aware of CR.A/1422/2005 9/125 JUDGMENT the lands of the Marketing Yard, etc., persons connected in the business of such lands as well as other concerned persons together have caused his murder with a view to see that the scams are not exposed. Apart from the aforesaid, Prakash internally had differences with many people and as and when he learnt about the same he would inform them. It is further alleged in the complaint that three persons had, in public, caused grave injuries on the chest and neck as well as other parts of his nephew's body with knives and had intentionally caused his death. The complainant has also explained the delay in lodging the complaint by saying that as apart from their relatives, a lot of people had gathered at the hospital at the time of conducting the post-mortem examination on the dead body of Prakash and their relatives were weeping and wailing and were worried. The said complaint was registered on 16.9.1999 i.e., on CR.A/1422/2005 10/125 JUDGMENT the same day, at Morbi City Police Station, vide CR No.I-319/99 for commission of the offences punishable under Sections 302 and 114 IPC and under Sections 37 (1) and 135 of the BP Act, by P.W.160, Harising Jethabhai Jankat, PI Rajkot District Rural as per the direction of DSP, Rajkot Rural. 2.2. Pursuant to the registration of the complaint, investigation was put into motion. Inquest on the dead body of Prakash was held and thereafter the dead body was sent for autopsy. Panchnama of the scene of offence was drawn. Statements of the eye witnesses as well as other witnesses were recorded, various other panchnamas were also drawn. Thereafter A-1 to A-4 and A-7 were arrested. 2.3. During the course of the investigation, as A-1 to A-4 expressed willingness to show the weapons used by them for commission of the offence of murder of Prakashbhai i.e., knives, four separate preliminary panchnamas were drawn CR.A/1422/2005 11/125 JUDGMENT in presence of panchas. Thereafter at the instance of A-1 to A-4, four knives which were stained with blood were recovered from different places and the clothes of the accused which were also stained with blood were recovered by drawing discovery panchnama. The muddamal articles were sent to FSL for chemical analysis. Thereafter Test Identification Parade was arranged through Executive Magistrate in presence of two panchas. As per the prosecution case, in the T.I. parade, two witnesses have identified A-1 to A-4 in presence of panchas. Statements of two witness i.e., Jayeshbhai alias Jailo Vashram and Abdulbhai Ismailbhai Sanghi were recorded under Section 164 of the Code through the learned JMFC, Wankaner. 2.4. During the course of investigation, it was revealed that on 11.9.1999 there was a heated exchange of words as well as a scuffle between A- 6, Kantilal Shivlal Patel- Amrutiya and deceased Prakashbhai Raveshia in respect of instalments of Travels at the Morbi Circuit House and because CR.A/1422/2005 12/125 JUDGMENT Prakashbhai had threatened to expose the scams in which A-6, Kantilal Shivlal Patel- Amrutiya was involved and because Prakashbhai and A-6 were political rivals, with a view to get rid of him, A-6, Kantilal had a motive to murder Prakashbhai as well as earlier Prakash had assured A-5, Gangaram Tapubhai Koli that he would enable him to purchase lands belonging to Morbi Municipality at cheap rates but could not do so, and hence Gangaram Tapu also had a motive to murder Prakash. Both A-6 and A-5 had the motive to kill Prakash and hence on 11.9.1999 at night telephonically consented and agreed between themselves to murder Prakash and hatched a criminal conspiracy to murder Prakash and A-1, Ramesh Mohan Koli, A-2, Narottam Premji Vala, A- 3, Magan Gokal Koli, A-4, Pravin alias Dalo Laghubhai, A-7, Amit Gangaram Koli and A-8, Bala Bechar Koli later on joined in the conspiracy to kill Prakash and in this manner all the accused hatched a conspiracy to murder Prakash and in furtherance of the same caused the murder of Prakash and as such committed the offence CR.A/1422/2005 13/125 JUDGMENT punishable under Section 302 read with section 120B IPC. It was also revealed that as a part of the conspiracy, on 16.9.1999 at 17:15 hours, near the Nagrik Bank in Morbi town, A-1, Ramesh Mohan Koli, A-2, Narottam Premji Koli, A-3, Magan Gokal Koli and A-4, Pravin alias Dali Laghubhai Koli with the object of accomplishing their common intention to commit the murder of Prakash and with the object of executing the criminal conspiracy previously hatched by them with A-5, Gangaram Tapubhai Koli, A-6, Kantilal Shivlal Patel-Amrutiya and A-7, Amit Gangaram, armed with lethal weapons like knives, attacked Prakashbhai and caused fatal injuries to him and at that time they were aware that such injuries were sufficient in the ordinary course of nature to cause the death of Prakash and with such knowledge they had murdered Prakashbhai and by doing so all four of them had committed the offences punishable under Sections 302, 34 and 120B IPC. CR.A/1422/2005 14/125 JUDGMENT It was also revealed that A-1, Ramesh Mohan Koli, A-2, Narottam Premji Koli, A-3, Magan Gokal Koli and A-4, Pravin alias Dalo Laghubhai Koli were armed with lethal weapons like knives in public and as such had committed breach of the Notification issued by the District Magistrate under Section 34 of the BP Act and committed the offence punishable under Section 135 of the BP Act. It was also revealed that A-5, Gangaram Tapubhai Koli, A-6, Kantilal Shivlal Patel – Amrutiya and A-7, Amit Gangaram Koli had hatched a criminal conspiracy to murder Prakash and in furtherance and as a part of the said conspiracy A-1, Ramesh Mohan Koli, A-2, Narottam Premji Koli, A-3, Magan Gokal Koli and A-4, Pravin alias Dalo Laghubhai Koli had committed the murder of Prakash at the aforesaid place, date and time and by doing so A-5, Gangaram Tapu and A-7, Amit Gangaram had committed the offence punishable under section 302 read with Section 120B IPC. CR.A/1422/2005 15/125 JUDGMENT It was also revealed that during the course of investigation of the crime, A-6, Kantilal Shivlal Patel – Amrutiya had in his statement which was produced before the Court by way of evidence stated false facts regarding A-5 and that he knew that the said statement was false yet had made such false statement and knew that the same amounted to an offence yet with a view to protect the accused from being punished he had concealed the true facts and had given false statement and had tampered with the logbook of the hand-shawl Corporation's Tata Sumo No.GJ- 18-A-2701 of 11.9.1999 and 20.9.1999 and rendered them illegible and had changed the kilometres and by doing so he had committed the offence punishable under Sections 199, 201 and 204 IPC. It was also revealed that on 16.9.1999, A-1 to A-4 after committing the murder of Prakash, A-8, Bala Bechar Koli despite having the knowledge that A-1 to A-4 have committed murder, harboured them and with a view to hide them, took CR.A/1422/2005 16/125 JUDGMENT them to different places in an Armada Jeep and by harbouring accused involved in murder, A-8, Bala Bechar Koli had committed the offence punishable under Section 212 IPC. 2.5. After receipt of the autopsy report as well as report from FSL and as sufficient incriminating evidence was found against all the accused persons, including A-8, who is not before us, for commission of the offence of murder of Prakashbhai, filed charge sheet in the Court of learned JMFC, Morbi for commission of offences punishable under Section 302 read with Sections 34 and 120B IPC against all the accused. 2.6. As the offence under Section 302 IPC is exclusively triable by a Court of Sessions, the learned JMFC, Morbi committed the case to the Court of Additional Sessions Judge, at Morbi where it is numbered as Sessions Case No.34 of 2000. 2.7. The learned Additional Sessions Judge to CR.A/1422/2005 17/125 JUDGMENT whom the case was made over for trial, framed charge against all the accused for commission of the offence punishable under Section 302 read with Section 34 IPC read with Section 120B and 135 BP Act. The charges were read over and explained to the accused. The accused pleaded not guilty to the charges and claimed to be tried and, therefore, they were put to trial by the learned Additional Sessions Judge. 2.8. In order to bring home the charges levelled against the accused persons, the prosecution has examined as many as 170 witnesses and relied upon their oral testimonies and also produced 178 documents and relied upon the contents of the same, details of which have been enumerated in paragraph 7 of the impugned judgment and order and as and when required, this Court will discuss the evidence of the witnesses as well as the details of the documents hereinafter in this judgment. 2.9. After recording of the evidence of the CR.A/1422/2005 18/125 JUDGMENT prosecution witnesses was over, the trial court explained to the accused the circumstances appearing against them and recorded their further statement as required under Section 313 of the Code. In their further statement they denied the prosecution case in its entirety and stated that they have been falsely implicated in the murder case of Prakashbhai. They do not know anything about it. A-5 Gangaram Tapu has further stated that he is a reputed member of Koli Community and, therefore, with a view to put an end to his and his son's political career, both of them have been falsely implicated in the murder case. He was also given ticket by the BJP to contest the Assembly Elections from Chotila constituency. So far as A-6 is concerned, he has stated that his wife is not a partner in V.M. Sojitra Company but his wife has taken sub-contract from the said company. He has also stated that with a view to put an end to his political career, false case has been filed against him. In sum and substance, according to the accused persons, they have been falsely roped in the case of murder of CR.A/1422/2005 19/125 JUDGMENT Prakashbhai. However, they neither produced any evidence nor did they examine any witness in support of their defence. 2.10. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court has come to the conclusion that the prosecution has been able to establish that Prakash Raveshia died a homicidal death. The trial court has also held that A-1 to A-4, armed with deadly weapons, which were supplied by A-7, hatched a conspiracy with A-5 to A-7 for committing murder of Prakashbhai and, therefore, complicity of commission of offence punishable under section 302 read with Section 34 IPC read with Section 135 of the BP Act is duly established and the prosecution has successfully proved the charges levelled against A-1 to 4. Similarly, A-5 to A-7 hatched conspiracy with A-1 to A-4 for committing murder of Prakash. Therefore, complicity of A-5 to A-7 for committing murder of Prakash punishable under Section 302 read with Section 120B IPC is also CR.A/1422/2005 20/125 JUDGMENT duly proved. Rest of the charge levelled against A-6 has not been proved by the prosecution. Similarly, the charge levelled against A-8 who is not before us (for commission of offence under section 312 IPC, i.e., harbouring the accused) has also not been established. 2.11. On the aforesaid findings, the trial court convicted A-1 to A-4 for commission of the offence under Section 302 read with Section 34 IPC and under Section 135 of the BP Act and each one of them is sentenced to suffer imprisonment for life and fine of Rs.5,000/-, in default, RI for one year for the offence under Section 302 IPC read with Section 34 IPC and RI for one year and fine of Rs.1,000/-, in default, RI for one month for the offence under Section 135 of the BP Act whereas A-5, A-6 and A-7 are convicted for commission of the offence under Section 302 IPC read with Section 120B IPC and sentenced to suffer imprisonment for life and fine of Rs.5,000/-, in default, RI for one year for the offence under Section 302 IPC read with Section CR.A/1422/2005 21/125 JUDGMENT 120B IPC and it is also further directed that A-5 and A-6, each, shall pay Rs.1,50,000/- as compensation to the widow of deceased Prakashbhai Raveshia and on their depositing the said amount the same shall be paid to her, which has given rise to instant four appeals at the instance of the accused Nos.1 to 7. It may be noted that A-8 has been acquitted of the offence of harbouring the accused under Section 312 IPC. 3. Criminal Appeal No.1422 of 2005 has been filed by A-1 to A-4, Criminal Appeal No.1544 of 2004 has been filed by A-6 and Criminal Appeal No. 1925 of 2004 has been filed by A-5 and A-7 whereas Criminal Appeal No.2234 of 2004 has been filed by A-4 through jail. 4. Mr. Manubhai Barot, learned advocate for A-1 to A-4, who have filed Criminal Appeal Nos.1422 of 2005 and Criminal Appeal No.2234 of 2004 made his elaborate submissions which are summarized as under: CR.A/1422/2005 22/125 JUDGMENT (i) None of the so-called eye witnesses to the alleged incident of murder of Prakashbhai has supported the prosecution case and, therefore, from their evidence, the prosecution could not establish the complicity of A-1 to A-4 who are allegedly the assailants and have caused murder of Prakashbhai. (ii) The prosecution also tried to establish the complicity of A-1 to A-4 from the evidence of T.I. Parade which was held by two Executive Magistrates but the witnesses who have allegedly identified A-1 to A-4 have not supported the prosecution case. Two panch witnesses have also not supported the T.I. Parade. But one panch witness has supported the TI parade. Merely because the Executive Magistrates have supported the evidence of T.I. parade that itself is not sufficient to hold that in the T.I. Parade the witnesses have identified the accused and that the TI Parade was held in accordance with law and it cannot be said that on the basis of T.I. Parade, complicity of A-1 to A-4 has been CR.A/1422/2005 23/125 JUDGMENT established. According to him, the TI parade was only an empty formality and it was not held as per the rules and regulations of Bombay Police Manual and therefore no reliance can be placed on the so-called evidence of T.I. parade and evidence of the panchas as well as the Executive Magistrates. To canvass the proposition that since the TI parade was not conducted as per the rules and regulations and norms of the Bombay Police Manual the evidence of T.I. Parade is not acceptable, he has relied upon the following decisions: (a) Caetano Fiedade Fernandes and another v. Union Territory of Goa, Daman and Diu, Panaji, Goa, (1977) 1 SCC 707, (b) Wakil Singh and others v. State of Bihar, 1981(Supp)SCC28. (c) Yeshwant and others v. The State of Maharashtra, (1972) 3 SCC 639. CR.A/1422/2005 24/125 JUDGMENT (iii) The prosecution also tried to establish the case against the accused on the basis of the statements of two witnesses recorded under Section 164 of the Code before the JMFC, Wankaner but they have not supported the prosecution case and resiled from the statement made by them before the learned JMFC and have not supported the prosecution case. Out of the two witnesses, one witness's statement was also recorded under Section 161 of the Code before the police. According to him, it is true that the learned JMFC, Wankaner has stated that he has recorded statement of two witnesses wherein it is revealed that conspiracy is hatched by A-1 to A-4 on the one hand and A-5 to A-7 on the other hand. It is well settled law that statement made under