CR.A/1691/2005 1/50 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1691 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================= 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 ? ========================================= STATE OF GUJARAT Versus DHRAMRAJ BHANUSHANKAR DAVE & ORS ========================================= Appearance : MR KC SHAH APP for Appellant MR TUSHAR MEHTA for Respondents ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date :30/10/2007 CR.A/1691/2005 2/50 JUDGMENT CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 Leave to Appeal granted. Appeal is Admitted. Learned Advocate Mr. Tushar Mehta waives for all the respondents. 2 Instant Appeal is preferred by the State under Section 378 of the Code of Criminal Procedure, against the judgment and Order dated 19th of November, 2004, delivered by learned Additional Sessions Judge, Fast Track Court No. 5, Jamnagar, in Sessions Case No. 82 of 2001, whereby all the respondents herein, were accused of the said Sessions Case. Original accused No.5 Vijay Laxmanbhai Parmar, being juvenile, was sent to Juvenile Court, while accused Nos. 1, 2, 3 and 4, present respondents came to be acquitted by the Trial Court, vide judgment and order impugned in this Appeal, for the charges levelled against them under Sections 120-B, 201, 302, 364, 404 to read with Section 34 of the Indian Penal Code and under Section 135 (1) of the Bombay Police Act. 3 Learned APP Mr. K.C. Shah for the appellant State and learned Advocate Mr. Tushar Mehta for respondents requested this Court to hear the Appeal finally at this stage as the Record and Proceedings of the Trial Court is available with this Court and that they would provide extra copies of the evidence recorded during CR.A/1691/2005 3/50 JUDGMENT the trial as well as the copies of the documents produced before the Trial Court. In the facts and circumstances of the matter, request is granted and the matter is heard finally. 4 Prosecution case briefly stated deceased in this case is one Gajendrasinh Balvantsinh Rana happened to be friend of accused No.1 Dharmraj Bhanushankar Dave. All the four respondents were residents of Jamnagar and were friends. The dispute had arisen between the deceased and respondents in respect of one Santro Car, and on account of that, according to prosecution case, deceased Gajendrasinh was threatening respondents and was extorting money and, therefore, all these respondents being friends, joined together, to do something about this. On 2nd of March, 2001, all the respondents decided to kill deceased Gajendrasinh. One of the respondents had called Gajendrasinh telephonically from his house on 2nd of March, 2001, but deceased Gajendrasinh did not turn up. Therefore, on 3rd of March, 2001, at about 8.15, deceased was called by accused near Mahila College by telephonic message. All the respondents got together in one Qualis car bearing Regn. No. GJ-10-F 9654 belonged to father of respondent No.1. The deceased came on his own motor cycle near Mahila College and parked his motor cycle there. The deceased was made to sit in the said Qualis car and the respondents had concealed the weapons in the said Qualis car like iron rod, sword, small knife, etc. The respondents had removed CR.A/1691/2005 4/50 JUDGMENT number plate of the car. Respondents and deceased thereafter through the city of Jamnagar, went near Ranjit Sagar Dam and descended from the car. Thereafter, all the respondents attacked deceased with iron rod, sword, knife, etc and inflicted serious injuries, due to which, deceased died on the spot. According to prosecution case, respondents thereafter dragged deceased and loaded his body in Qualis car and thereafter the dead body was taken to Sapada Dam, and behind thick bushes, the dead body was thrown. Respondents poured kerosene and petrol on dead body and was ignited and in the said condition, all the respondents returned to Jamnagar and accused No.4 took the car to his house and washed it because the car contained bloodstains. The complaint was lodged by one Maumaiybhai Chanabhai before Police. According to him while he was near Sapada Dam with one Dilipsinh on 3rd of March, 2001, at about 10.00 a.m., they noticed one white colour car appearing like Tata Sumo car, came from Jamnagar in excessive speed and went near thick bushes. After about 20 minutes, the said car was returned towards Jamnagar. When complainant looked behind bushes, he noticed that there was thick black smoke coming out behind the bush. He informed his brother-in-law Vajibhai Rukhadbhai to run and note the number of the car, but the driver of the car was in speed and Vajibhai Rukhadbhai could not note the number of the car. Thereafter, three other boys residing in near vicinity, named as, Ramaiya Kana Charan, Luna Parbhat Charan and Sakhraj Kama Charan met CR.A/1691/2005 5/50 JUDGMENT the complainant and they informed complainant that one dead body was burning behind the bushes. When complainant and Dilipsinh visited the said place, they found that a dead body was burning. The complainant went to village Sapada and conveyed this incident to the Vice President of panchayat, who informed police before `A' Division Police Station and the Police Inspector Mr. Vadher and his team visited the place and draw panchnama at about 13.30 hours to 15.30 hours including inquest panchnama. The dead body had injuries. The complaint was, therefore, recorded. From the description of car, Police investigated and inquired from RTO and came to know that father of respondent No.1 was owning one white colour Qualis car and, therefore, investigation was headed on that line. During investigation, it was also found that near Mahila College, some witnesses had seen the deceased boarding in the Qualis car along with respondents. Motor cycle parked near Mahila College was attached by the Police, which was turned out to be of the deceased. It was inquired from the father of the deceased and it was ascertained that deceased had been out of their house on 3rd of March, 2001 and had not returned from 4th of March, 2001. Therefore, the dead body which was recovered from near Sapada Dam was shown to the father of the deceased and he identified the deceased. A crime came to be registered as Crime Register No. I-27 of 2001 in the Panchkoshi `A' Division Police Station, Jamnagar and thereafter it was transferred to `B' Division Police Station, Jamnagar and was registered as Crime Register No. CR.A/1691/2005 6/50 JUDGMENT I-207 of 2001 on 29th of April, 2001. According to the police, accused No.1 was arrested on 5th of March, 2001, accused No.2 was arrested on the same day; accused No.3 and accused No.4 were also arrested on 5th of March, 2001. Accused No.5 Vijay Laxmanbhai Parmar, Juvenile offender, was arrested on 6th of March, 2001. It was also found that when Gajendrasinh Balvantsinh Rana went out of his house on 3rd of March, 2001 he was wearing golden chain and tiger nail and other ornaments and during the investigation, according to police, these ornaments were recovered from the respondents. A charge sheet came to be filed at the end of investigation against five respondents, in the Court of learned JMFC, Jamnagar, and was registered as Criminal Case No. 2050 of 2001. The case thereafter was committed to the Court of Sessions and was registered as Sessions Case No. 82 of 2001. The above Sessions Case was thereafter ultimately made over to learned Additional Sessions Judge and Fast Track Court No.5 at Jamnagar and the learned Trial Judge in detail framed charges against all the four accused vide Exhibit – 37 on 16th of June, 2004. Accused No.5, as afore stated, was sent of Juvenile Court. Accused pleaded not guilty and, therefore, they were put to trial. Prosecution examined as many as 65 witnesses as under : PW-1 Hemantsinh Gagubha Jadeja Exh. 59 PW-2 Pravin Vashrambhai Exh. 60 PW-3 Satubha Narubha Exh. 61 PW-4 Jitesh Prabhujibhai Chavda Exh. 62 CR.A/1691/2005 7/50 JUDGMENT PW-5 Nitinkumar Dhanjibhai Exh. 63 PW-6 Hira Parbat Exh. 64 PW-7 Kana Kara Exh. 65 PW-8 Iqbal Umarbhai Nayak Exh. 66 PW-9 Mahebub Sadiq Exh. 67 PW-10 Kishorsinh Bahadursinh Exh. 69 PW-11 Lakhabhai Danabhai Exh. 70 PW-12 Raghuvirsinh Navalsinh Exh. 71 PW-13 Nathubhai Hirabhai Exh. 72 PW-14 Digvijaysinhji Lalsinh Exh. 73 PW-15 Vijaysinh Kanubha Chavda Exh. 74 PW-16 Dolatram Devandas Exh. 75 PW-17 Jethnand Bhudarmal Exh. 76 PW-18 Ashok Chhatrav Exh. 77 PW-19 Laxmidas Suraji Exh. 78 PW-20 Tembha Mahobatsinh Exh. 79 PW-21 Dr. Chetan Biharilal Jani Exh. 81 PW-22 Raghuvirsinh Balvantsinh Exh. 93 PW-23 Bhagvanji Parbatbhai Exh. 96 PW-24 Ajitsinh Gaguba Exh. 97 PW-25 Harish Amrutlal Exh. 98 PW-26 Jay Shyamlal Nagpal Exh. 99 PW-27 Jilubha Bhimsinh Bhatti Exh. 100 PW-28 Surubha Shivubha Exh. 101 PW-29 Gulabkhan Akabarkhan Exh. 102 CR.A/1691/2005 8/50 JUDGMENT PW-30 Jasubha Balvantsinh Exh. 103 PW-31 Hemantbhai Bhanjibhai Exh. 104 PW-32 Sanjay Lilaram Exh. 105 PW-33 Bodu Taiyab Exh. 107 PW-34 Bachubhai Chimanlal Exh. 108 PW-35 Hitesh Ramniklal Exh. 109 PW-36 Vikramsinh Devubha Exh. 112 PW-37 Gopal Mandan Exh. 119 PW-38 Dilipsinh Shankardas Exh. 120 PW-39 Balraj Amubhai Exh. 122 PW-40 Dipak Pasottambhai Exh. 123 PW-41 Balvansinh Motibhai Exh. 124 PW-42 Mamaiyabhai Chanabhai Exh. 126 PW-43 Laxmiben Laxmanbhai Exh. 127 PW-44 Manubhai Shivubha Exh. 129 PW-45 Vajibhai Rukhadbhai Exh. 130 PW-46 Nirmalsinh Dolubha Exh. 131 PW-47 Subhash Girjashankar Exh. 132 PW-48 Sakhraj Kamabhai Exh. 133 PW-49 Rajesh Hiralal Exh.134 PW-50 Bhavesh Pravinbhai Exh. 135 PW-51 Osman Kasam Exh. 136 PW-52 Vijay Govindbhai Exh. 137 PW-53 Navjivan Janardan Exh. 138 PW-54 Navalsinh Murubha Exh. 141 CR.A/1691/2005 9/50 JUDGMENT PW-55 Arvind Fulchand Exh. 146 PW-56 Jatin Kishorbhai Exh. 147 PW-57 Dhanraj Ramabhai Exh. 148 PW-58 Jagdevsinh Takhatsinh Exh. 155 PW-59 Manshukhbhai Ghelabhai Exh. 158 PW-60 Bhupatsinh Mansinh Exh. 160 PW-61 Mahmadhussain Osman Exh. 161 PW-62 Subhash Fogabhai Exh.167 PW-63 Manish Navalbhai Exh. 178 PW-64 Dilipsinh Gatursinh Exh. 179 PW-65 Gurudayalsinh Sodagarsinh (IO) Exh. 193 The prosecution has also produced voluminous documentary evidence, as under : 1. Arrest Panchnama of accused Dharmraj Exh. 68 2. Police Yadi as received by Dr. Jani Exh. 82 3. Copy of Police letter of P.M. Exh. 83 4. P.M. Note Exh. 84 5. Copy of Police Yadi for adding name in P.M. Note Exh. 85 6. Last page of the copy of P.M. Note Exh. 86 7. Copy of Yadi for P.M. of dead body Exh. 87 8. Copy of letter for getting scull of deceased Exh. 88 9. Statement of information as given by witness Raghuvirsinh Balvantsinh Rana on 4.3.01 Exh. 94 10. Copy of Proclamation of banning of Arms Exh. 110 CR.A/1691/2005 10/50 JUDGMENT 11. Copy of Govt. Gazette dt. 19.2.01 regarding above proclamation Exh. 111 12. Copy of letter sent to RTO for information as to Yamaha motor cycle Exh. 113 13. Letter of the RTO as to aforesaid vehicle Exh. 114 14. Copy of R.C. Book of Yahama Exh. 115 15. Letter of RTO regarding ownership of Qualis Exh. 117 16. Information sheet as to ownership of Qualis Exh. 118 17. Letter of Shri V.M. Mehta Muni. College Exh. 121 18. Receipt of handing over of dead body Exh. 125 19. Print of telephone calls as given by witness Laxmiben Laxmanbhai Exh. 128 20. Copies of the muster rolls of Institute of Yoga Exh. 139 & 140 21 Letter sent to Telecom Department Exh. 142 22 Letter sent to Telecom Department Exh. 143 23 Original letter of CPI written to General Manager, Telecom Department Exh. 144 24 Police Yadi for preparation of maps Exh. 149 25 Copy of Police Yadi for maps Exh. 150 26 Copies of letters of Maps Exh. 151& 152 27 Maps Exh.153 & 154 28 Panchnama of recovery of Yamaha Motor cycle Exh. 156 29 Police Yadi of sending papers and Yamaha Exh. 157 30 Police Yadi as to production of accused Dharmraj Bhanushanker Exh. 159 31 Police Yadi of I.T. Parade Exh. 162 CR.A/1691/2005 11/50 JUDGMENT 32 Panchnama of I.T. Parade Exh. 163 33 Panchnama of I.T. parade Exh. 164 34 Panchnama of I.T. parade Exh. 165 35 Complaint Exh. 168 36 Copy of abstract of entry No.10 of police Station diary as made PSI Vadher Exh. 169 37 Inquest Panchnama Exh. 170 38 Copy of forms of P.M. Exh. 171 39 Panchnama of place from where dead body was found Exh. 173 40 Police Yadi for registration of offence Exh. 174 41 Copy of abstract of Entry No. 16/2001 of Station Diary of Panchkosi “A” Div. Exh. 175 42 Arrest Panchnama of accused Jigar Exh. 176 43 Panchnama of demonstration Exh. 180 44 Copy of FIR of Manish Navalbhai Exh. 181 45 Police Yadi as to preparation of panchnama Exh. 182 46 Copy of abstract of entry of station diary Exh. 183 47 Copy of yadi as to take blood samples of the accused Exh. 184 48 Copies of forms of taking of blood sample of each of accused Exh. 185 to 189 49 Police Yadi as to taking over Investigation Exh. 190 50 Print of telephone calls as given by witness Gopalbhai Mandanbhai Exh. 191 CR.A/1691/2005 12/50 JUDGMENT 51 Copy of letter of RTO regarding owners of Qualis Exh. 192 52 Letter of appointment of investigation team Exh. 194 53 Panchnama of identification of dead body Exh. 195 54 Police Yadi as to sending of investi- gating papers Exh. 196 55 Panchnama of seizure of vehicle used in the offence Exh. 197 56 Panchnama of scene of offence as shown by accused Dharmraj Bhanushanker Exh. 198 57 Discovery of panchnama Exh. 199 58 Arrest panchnama of accused Mahipalsinh Mahendrasinh Exh. 200 59 Report of P.I. Of L.C.B. Exh. 201 60 Panchnama of place as shown by accused Mahipalsinh Mahendrasinh Exh. 202 61 Panchnama of weapon as produced by accused Jigar Natha Exh. 203 62 Discovery panchnama of weapon as shown by accused Jigar Natha Exh. 204 63 Panchnama of facts as stated by the accused Jigar Natha Exh. 205 64 Arrest Panchnama of Dharmendrasinh Exh. 206 65 Report as prepared by P.I. of LCB Exh. 207 66 Discovery panchnama of weapon as shown by accused Dharmendrasinh Narendrasinh Exh. 208 67 Panchnama of identification of muddamal Exh. 209 68 Primary report of inspection of place Exh. 210 CR.A/1691/2005 13/50 JUDGMENT 69 Copy of letter sending muddamal for analysis to FSL Exh. 211 70 Copy of certificate of authority Exh. 212 71 Copy of out-ward note Exh. 213 72 Receipts of muddamal Exh. 214 to 217 73 Forwarding letters as to analysis reports Exh. 218, 220, 222 & 224,227, 229 & 233 74 Analysis Reports Exh. 219, 221, 223 & 225 75 Serological analysis report Exh. 226 76 Analysis report of ash Exh. 228 77 Copy of certificate of authority Exh. 230 78 Copy of forwarding letter Exh. 231 79 Receipt of muddamal Exh. 232 80 Analysis report with three photographs Exh. 234 81 Copy of letter as to take finger print of the deceased Exh. 235 82 Copy of letter as to calling for information of Qualis Exh. 236 83 Letter of Traffic PSI Exh. 237 84 Copy of letter of adding Sec. 120(B) and Sec. 405 of the IPC Exh. 238 85 Copy of letter sent to the Principal VM Mehta Arts & Commerce College Exh. 239 86 Copy of letter sent to the Principal DCC High School Exh. 240 87 Letter of the Principal, DDC High School Exh. 241 CR.A/1691/2005 14/50 JUDGMENT 88 Copy of muster roll as sent by the Principal Exh. 242 89 Copy of letter as to transfer offence Exh. 243 90 Copy of complaint filed by Jigar Natha Exh. 244 91 Copy of letter as written by CPI to PI, City “B”. Exh. 245 92 Copy of letter for information of Qualis Exh. 116 5 After the prosecution evidence was over, the circumstances appearing against each of the respondents were put by the learned Trial Court to respondents and their statements were recorded under Section 313 of the Code of Criminal Procedure. The stand of the respondents was that they were innocent and they had been falsely implicated in the serious case. It appears that their defence was of total denial. 6 Learned APP Mr. K.C. Shah for the State and learned Advocate Mr. Tushar Mehta for respondents were heard in great detail. Both the learned counsels have taken us to each corner of the Record and Proceedings of the Trial Court. 7 We have examined each corner of the record and proceedings strictly and threadbare. We have scrutinized the evidence recorded during the trial and the documents produced on record. Though this is an Appeal against the acquittal, we have re- appreciated the evidence carefully as recorded during the trial. We CR.A/1691/2005 15/50 JUDGMENT have examined and assessed with great anxiety the reasons recorded by the Trial Court for the conclusion of acquittal of the respondents. We have taken into consideration the vital features of the matter and reasonable probabilities arising out of the circumstances of the matter with reference to the appreciation of evidence undertaken by the Trial Court and with reference to re- appreciation of evidence carefully undertaken by us. We have taken into consideration the contentions raised by both the parties at marathon length. 8 Going through the evidence recorded during the trial, it clearly appears that the case rests on circumstantial evidence and no direct evidence is available against the respondents. It was alleged that deceased Gajendrasinh Balvantsinh Rana was called by the respondents on 3rd of March, 2001 in disguise for demand of money and thereafter he was accompanied by the respondents in the Qualis car belonged to the father of the respondent No.1 from Mahila College. The deceased was taken to Ranjitsagar Dam and was murdered there. The accused thereafter carried the dead body of the deceased in the said Qualis car near Sapada Dam and was put to ablaze after pouring petrol and kerosene over the dead body behind thick bushes at Sapada where the complainant and some persons saw that a white vehicle was going fast and coming fast from said place, appearing to be the make of Tata Sumo, and thereafter some persons noticed burning of dead body. CR.A/1691/2005 16/50 JUDGMENT Yamaha Motorcycle was found near Mahila College and it was identified to be of the deceased. The prosecution attempted to rely on the evidence of witnesses who have seen white Qualis car near Sapada dam. Evidence of the persons who noticed the deceased boarded in the Qualis car near Mahila College and the Qualis car belonged to the father of respondent No.1. The prosecution has relied upon the discovery panchnamas, whereby it is alleged that the deceased was wearing some ornaments, which were recovered from the accused, shoes of the deceased also were recovered from the possession of the accused, the clothes of the accused, which they were wearing at the time of committing the crime, were also attached by the Investigating Agency, and it is the prosecution case that, said clothes contained blood group of the deceased. The prosecution has also relied upon the evidence of Test Identification Parade. The prosecution has also relied upon demonstrative panchnama, by which it is alleged that accused have demonstrated that how they committed the crime and show the scene of offence. 9 Now, it is required to be scrutinized the evidence recorded during the trial with respect to the above circumstances, by which the prosecution proposed to prove its case. 9.1 If we peruse the evidence of PW-1 Hemantsinh Gagubha Jadeja, examined at Exhibit – 59, he is the panch of CR.A/1691/2005 17/50 JUDGMENT panchnama at Exhibit – 173 of scene of offence, where it is the prosecution case that complainant Mumaiyabhai Chanabhai show the place of incident. He did not support the prosecution case and like wise second panch of the said panchnama, PW-3 Satubha Narubha, examined at Exhibit-61, also did not support the said panchanama at Exhibit – 173. PW-3 Satubha Narubha is also a panch of panchnama of identification of dead body and he did not support the said panchnama, which is placed at Exhibit – 195. 9.2 PW-4 Jitesh Prabhujibhai Chavda, examined at Exhibit – 62, is panch of panchnama of Test Identification Parade placed at Exhibit – 162, but he also did not support the prosecution case and stated that it did not happen that witness Ajitsinh Gagubha Jadeja identified the accused No.1 and witness Surubha Shivubha Chouhan identified accused No.4 in the identification parade, held on 7th of March, 2001 at 4.25 p.m. in the chamber of the Executive Magistrate. PW-5 Nitinkumar Dhanjibhai is also panch of panchnama of test identification parade, held on 7th of March, 2001, but he has also not supported the prosecution case. He denied that in his presence, witness Ajitsinh Gagubha Jadeja and Surubha Shivubha Chouhan identified accused Nos. 1 and 4 in identification parade. It is the prosecution case that PW-23 Ajitsinh Gagubha and PW-28 Surubha Shivubha, both had seen the respondents and the deceased in one Tata Sumo car, near Sapada Dam. It is the prosecution case that respondents had purchased CR.A/1691/2005 18/50 JUDGMENT coconut from the shop of Ajitsinh and took tea from the tea cabin of Surubha on the day of incident while they were going to Sapada Dam in Qualis car. 9.3 PW-6 Hira Parbat, examined at Exhibit – 64, is panch of recovery of Qualis car and of panchnama Exhibit – 197. He has also turned hostile and did not support the prosecution case that the Investigating Agency, in his presence, attached one Toyota Qualis car bearing No. GJ-10-F-9654 on 5th of March, 2001 at 10.00 a.m. and there were bloodstains on the seats of the car. The witness has not supported the prosecution case and panchnama at Exhibit – 197. PW-7 Kana Kara, examined at Exhibit- 65, is the second panch of panchnama at Exhibit – 197 and he has also not supported the prosecution case that in their presence, the Qualis car was attached from respondent No.1. 9.4 PW-8 Iqbal Umarbhai Nayak, examined at Exhibit- 66, is the panch witness of panchnama at Exhibit – 198 along with other panch Mahebub Sadiq. According to this panchnama, the respondent No.1 – accused No.1 in their presence, show the demonstration of the crime committed by them and took the panchas and police to Ranjit Sagar Dam where he was done to death and their presence, bloodstained earth was attached by the Police. From there, the accused took them to Sapada Dam where the dead body was burnt. However, this panch did not support the CR.A/1691/2005 19/50 JUDGMENT prosecution case and stated that he did not know anything about this panchnama. PW-9 Mahebub Sadiq, examined at Exhibit – 67, and second panch of panchnama at Exhibit – 198 also did not support the prosecution case. 9.5 PW-10 Kishorsinh Bahadursinh, examined at Exhibit – 69 is panch of panchnama at Exhibit – 200, by which sport shoes of the deceased stated to have been recovered from the house of respondent No.1. The second panch – PW-11 Lakhabhai Danabhai, is examined at Exhibit – 70. Both these panchas have not supported the prosecution case and have been declared hostile. Both the witnesses stated that in ready made panchnama their signatures were obtained and on muddamal slips also their signatures were obtained, but nothing they knew about the panchnama. 9.6 PW-12 Raghuvirsinh Navalsinh Jadeja, examined at Exhibit -91, is panch of arrest panchnama of respondent No.3 and according to prosecution case other sport shoes of the deceased having bloodstains and one pant and shirt were recovered from the house of respondent No.3 Jigar Nathalal Faldu from a cup board kept in the house of respondent No.3, but