IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 660 of 1995 with CRIMINAL APPEAL No 771 of 1995 For Approval and Signature: HON'BLE MR.JUSTICE N.G.NANDI and HON'BLE MR.JUSTICE M.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus RAJESH @ RAJU @RAJA SHAKHARAM DIGE -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 660 of 1995 MR. A.J. DESAI, LD. APP for Petitioner No. 1 MR BS PATEL for Respondent No. 1-3/NIT MRS RANJAN B PATEL for Respondent No. 1,2,3/NIT NOTICE SERVED for Respondent No. 1,2 (MR SD PATEL) for Respondent No. 1,2/NIT 2. Criminal Appeal No. 771 of 1995 MR KJ SHETHNA, Ld. Advocate for Appellant No. 1 to 4, 8, 9, and 13 MR. P.M. THAKKAR, Ld. Advocate for 5-7, 10-12. MR. A.J. DESAI, LD. APP for Respondent State. -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE N.G.NANDI and HON'BLE MR.JUSTICE M.C.PATEL Date of decision: 01/10/2003 CAV JUDGEMENT (Per : HON'BLE MR.JUSTICE N.G.NANDI) 1. Criminal Appeal No. 660 of 1995 under section 378 of the Code of Criminal Procedure ( hereinafter as the 'Code') against the acquittal of original accused No. 10, 17 and 18; and Criminal Appeal No. 771 of 1995 under section 374 (2) of the Code challenging the conviction under section 302 read with section 149 of I.P. Code of original accused No. 1, to 4, 7 to 9 and 11 to 16; are directed against the judgment & order rendered in Sessions Case No. 171 of 1994 (old TADA Case No. 15 of 1993) by the Learned Addl. Sessions Judge, Vadodara. 2. The facts giving rise to the filing of both these appeals, one under section 378 of the Code challenging the acquittal by the appellant State and the appeal under section 374 (2) of the Code by the appellants-convicts, shortly stated are; that one Dinesh Ramanlal Pathak was working as the Resident Editor of local daily newspaper "Sandesh" at Vadodara; that Dinesh Pathak was also dealing in the land business; that Raju Kisan Bhoi was employed as the driver for Fiat Car bearing No. GBW-633 owned by Dinesh Pathak; that one Parimal Chimanlal Bhatt working with Dinesh Pathak used to accompany Dinesh Pathak whenever he used to go out; that Dinesh Pathak in 'Sandesh' newspaper used to report news in respect of Raju Risaldar, President of local unit of "Shiv Sena" and the activities of Shiv Sena; that Raju Risaldar had become enraged and had therefore administered threats to kill Dinesh Pathak; that in 1992 Navratri Garba Mahotsav at Ellora Park was cancelled because of the threats by Shiv Sena; that Garba Mahotsav was later resumed and in a public speech Raju Risaldar referred to Dinesh Pathak and also stated that along with Ashwin Shah and Maulin Vaishnav, Dinesh Pathak would be liquidated; that some of the persons from the group of Raju Risaldar had met Dinesh Pathak and informed him that Raju Risaldar had conspired to kill him and in furtherance of the said conspiracy on 22-5-1993 at about 7.15 p.m. one boy pretending that, he has applied for job and if Dinesh Pathak recommends him, he would get a job, entered the premises of Sandesh Press along with Dinesh Pathak and Parimal Bhatt, whereupon Dinesh Pathak asked him to come to the office and Dinesh Pathak was followed by that boy; that after walking some distance the boy took out a knife from his pocket. Seeing this, Parimal Bhatt who was closely following them speeded up, in the meantime that boy dealt blow in the chest of Dinesh Pathak. Parimal Bhatt jumped and tried to over power the boy and grappled with him to snatch knife from the assailant; that boy raised shouts whereupon 13 to 14 persons having deadly weapons like swords, gupties, pipes, samurai came inside the compound of Sandesh Press and assaulted Dinesh Pathak; that Raju Bhoi hearing the cries from inside the press premises rushed inside and tried to intervene; that while trying to rescue Dinesh Pathak, Parimal Bhatt and Raju Bhoi also sustained injuries; that 13 to 14 persons who had rushed inside dealt number of blows on the person of Dinesh Pathak by gupti, Samurai, knife etc.; that Dinesh Pathak on receipt of number of blows delivered by assailants fell down and the assailants ran away; that the staff members of the Sandesh Press, other injured Parimal Bhatt and Raju Bhoi and other witnesses took injured Dinesh Pathak to SSG Hospital where he was declared dead. The complaint about the incident came to be lodged by driver injured Raju Bhoi in Karelibaug Police Station within about one hour of the incident. Postmortem examination was conducted on the dead body of Dinesh Pathak; that on the basis of the complaint offence was registered, thenafter usual investigation started; that before the completion of investigation against accused persons - 18 in number the chief conspirator Raju Risaldar died on 3-6-1993 in police encounter and he was not shown as an accused in the chargesheet. The accused persons were committed to the Court of Sessions to stand trial. Sessions Court framed charge vide exhibit-2. All the accused persons denied the charge levelled against them and claimed to be tried. The prosecution inorder to bring home the guilt to the accused adduced voluminous evidences, oral as well as documentary. Sessions Court recorded further statements of the accused persons under section 313 of the Code; giving opportunity to the accused persons to explain the circumstances emerging from the prosecution evidence, incriminating against them. The defence is that of total denial. The trial court appreciating the oral as well as documentary evidence and also considering statements under section 313 of the Code found accused No. 1 to 4, 7 to 9, and 11 to 16 guilty for the offence under section 302 read with section 149 of I.P. Code and convicted each of them to suffer imprisonment for life. No separate sentence was provided for remaining offence proved against these accused persons. The trail court by the said judgment & order acquitted accused No. 5, 6, 10, 17 and 18 of the charges levelled against them. It is this judgment & order of conviction and sentence for the offence under section 302 read with section 149 I.P.C. which has been assailed by the appellants original accused No. 1 to 4, 7 to 9, 11 to 16 by filing Criminal Appeal No. 771 of 1995; whereas acquittal of original accused No. 5, 6, 10, 17 and 18 has been challenged by the appellant State by filing Criminal Appeal No. 660 of 1995. 3. We have been taken through the oral as well as documentary evidence by Mr. K.J. Shethna, Learned Sr. Advocate for appellant Nos.1-4, 8,9 and 13 and Mr. P.M. Thakkar, Learned Sr. Advocate for appellant Nos 5-7and 10-12 in course of their submissions. We have also perused and reappreciated the oral as well as documentary evidence and statements under section 313 of the Code. 4. It may be noted at the out set that the Learned Trial Judge in para-12 of the judgment framed points for determination. Point No.2 is ' whether the prosecution proves that all the accused persons along with Raju Padmakant Ramakant Risaldar (deceased) hatched conspiracy between 16-5-1993 to 20-5-1993 to commit murder of Dineshbhai Pathak, Resident Editor of 'Sandesh' daily newspaper on 22-5-1993, and for that purpose during this period between 16-5-1993 to 20-5-1993 they collected at the residence of Raju Risaldar and in the open plot of Kasturinagar, behind Shreyas High School, Manjalpur and on the road from GIDC to Majalpur, and thereby committed offence under section 120B I.P. Code. Learned Trial Judge on appreciation of evidence found Point No.2 in the negative, meaning thereby the charge under section 120-B of I.P. Code was found not proved against the accused persons. It may be noted at this juncture that, by filing Criminal Appeal No. 660 of 1995 the appellant State has challenged the acquittal of the original accused No. 10, 17 and 18 only and no appeal challenging the acquittal of original accused No. 5 & 6 has been filed by the State, meaning thereby the State also has not challenged the acquittal under section 120-B of I.P. Code of the appellants of Criminal Appeal No. 771 of 1995 by filing appeal in that regard. Thus the findings as regards failure to establish charge under section 120-B of the I.P. Code against the appellants of Criminal Appeal No. 771 of 1995 and original accused No. 5 and 6 has become final. 5. It has been mainly argued by learned advocate Mr. K.J. Shethna, appearing for appellant No. 1 to 4, 8, 9 and 13 that the identify of the accused in the incident as well as in the test identification parade is not established; that the identification parade is not free from suspicion and loses its credibility as the same does not inspire any confidence; that the description as regards height, complexion, colour of skin and the features of the first assailant or any of the assailants have not given in the previous statement by the so called eye witness, and therefore, the identification in the parade by the eye witnesses cannot be said to be reliable and trustworthy; that there was no basis on which the Executive Magistrate (PW-48) could call for dummy; that the story as regards the speech stated to have been made by Raju Risaldar threatening the deceased and others by saying that the " snake has gone but the marks are left" is a concoction; that it would be impossible that after receiving the first blow Dinesh Pathak would be able to stand and could move upto the bath room and at the same time assault would continue; that no Rampuri chaku (knife) is before the Court; that there is no evidence about vehicles outside the gate of Sandesh Press premises seen before the incident or even at the time of incident; that looking to the map exh-172 from near the ota bathroom cannot be seen; that the injury suffered by PW-7 Parimal Bhatt is minor; that after he had seen first assailant i.e. accused No. 12 inflicting knife blow to Dinesh Pathak, then in that event the conduct of the first assailant would be to inflict serious injury to PW-7 as he is stated to have been seen by PW-7 inflicting injury on Dinesh Pathak; that the assailants must have been shown to the witnesses before the Test Identification Parade and that is why there is quick identification of the assailants by the witnesses in the parade; that unless police playing its part dummies for Test Identification parade could not have been brought resembling the accused in height, complexion, etc as PW-48 did not have any basis for calling the dummies of particular height, complexion, colour etc.; that the conduct of Dinesh Pathak even after receipt of first knife blow is highly unbelievable in as much as after receiving knife blow the injured would not have remained standing at that very place when PW-7 is stated to have been grappling with accused No.12; the attempt is to nab as many persons as possible of Shiv Sena; that the complaint exhibit-90 is not free from doubt because how the complainant who himself was injured could give such a lengthy complaint; that looking to the evidence of PW-9 he could not have seen faces of the assailants so as to identify the assailants in the incident; that there is delay in filing report under section 157 of the Code. Mr. K.J. Shethna has cited the following decisions :- 1. AIR 1991 S.C. pg. 56 2. AIR 1991 S.C. pg. 63 3. AIR 1970 S.C. pg. 1321 4. AIR 1998 S.C. pg. 2864 It is submitted by Mr. P.M. Thakkar, learned advocate appearing for appellant No. 5, 6, 7, 10, 11 & 12 that the accused not named in the FIR exh-90 are subsequently got up, and through the defective identification parade they have been languishing in jail since last ten years; that there is possibility of accused having been seen by the witnesses before the identification parade; that the police selected 52 dummies and not the investigating agency; that neither PW-48 says that he has asked Panch No. 1 Jagdishbhai to stay out nor Panch No. 1 Jagdishbhai states that he was asked by PW-48 to stay out; that no reliable and independent panch was kept present in the parade nor any precaution was taken by PW-48 as required under the circular issued by the State Government for holding identification parade; that there is no evidence to suggest that the faces of the accused were covered/muffled; that neither the panch nor the witnesses were told that the identification parade is arranged for the identification of the accused in the murder case of Dinesh Pathak; that the panch and the witnesses did not know as to for which case the accused are to be identified; that it is in the evidence of PW-55 panch Jagdishbhai an attempt is made to introduce Dinesh Pathak Murder Case which even PW-48 does not know; that exh. 165 Test Identification Parade panchnama does not refer to Dinesh Pathak Murder Case. Mr. P.M. Thakkar, has cited the following decisions:- 1. AIR 1991 S.C. Pg. 1938 2. AIR 1987 S.C. pg. 1222 (1999) 8 SCC pg. 428 3. AIR 1994 SCC (Cri.) 232 4. AIR 1993 S.C. 2618 5. AIR 1981 S.C. 1392 6. AIR 1970 S.C. 1321 7. XXXVII (2) GLR Pg. 821 8. 1993 (2) GLH (U.J) pg. 13 9. 1993 (1) GLH pg. 33 10. 1988 (1) GLH pg. 264 11. 1993 (1) Crimes pg. 451 It is submitted by Mr. A.J. Desai, learned APP that each of the convict is identified by atleast two of the prosecution witnesses; that raising of shouts/cries by accused No.12 when PW-7 was grappling with him to snatch the knife was a signal to the other assailants waiting outside; that the attention of all witnesses were at the victim and accused No.12, and taking advantage of this other assailants entered the premises; that exhibit-172 map suggests the blood was found at the place where the injuries were caused to Dinesh Pathak as deposed by prosecution witnesses; that PW-7 and PW-9 not only witnessed the incident but also sustained injuries; that PW-9 seeing the assailants inflicting blows on Dinesh Pathak went upstairs to call other staff members and when he returned he saw the assailants going away; that PW-9 identified the assailants as he witnessed the incident before going upstairs to inform other staff members about the blows being inflicted on Dinesh Pathak; that it is quite natural for PW-9 having witnessed the incident to fix the identity of the assailants in the incident; that there is no material contradiction in the evidence of PW-9; that PW-8 Pravinsinh Laxmansinh Raul is an independent witness and has identified accused No. 7, 9, 11, 13 and 15; that PW-11 Security Guard Ramakant Ratnagar Yadav had explained why accused No.12 the first assailant was allowed to enter the premises; that complaint exhibit-90 has been given within one hour; that detailed complaint does not mean doubtful complaint and the same cannot be faulted; that the offence has been registered at 10.05 p.m., there was no time for any concoction or manipulation; that there is no evidence for any enmity between accused and witnesses and there is no reason to falsely implicate the accused; that the incident took place at 7.10 p.m.; that PW-21 gave Vardhi exh. 191 which was received by the control room at 7.30 p.m.; that PW-68 I.O. got the message at 7.34 p.m. vide exhibit-13 and reached the place of incident at 7.45 p.m.; that he came to the hospital at 7.55 p.m. and started recording complaint at 8.15 p.m.; that there was no time to create detailed complaint as alleged; that the authorities acted promptly in the matter; that the conduct of accused No. 10, 11 and 12 is suggestive of their involvement in the incident; that accused No.12 has been identified by PW-1, 2, 3, 4 and 5 respectively, whereas accused NO. 11 is identified by PW-1, and PW-3 and PW-3 has also identified accused No. 10. That, the relations and friends of the injured persons have supported the prosecution by deposing against the accused which suggest the truthfulness in the version of the prosecution; that according to the complaint exh. 90 the assailants are of the age of 23/24 years, whereas according to the T.I. Panchnama exh. 165 the accused are of the age of 18 - 35 years; that there is no need to tell the witnesses that the accused of Dinesh murder case are to be identified because the incident had taken place in Sandesh Press and the witnesses were from the Sandesh Press and that was the only incident in the Sandesh Press; that the identification parade was conducted in an absolutely lawful manner consistent with the requirements of the circular issued by the State Government for holding the identification parade; that the identification parade could be arranged only after all the accused are arrested as there cannot be any piecemeal identification parade and the accused persons have been arrested between 3-6-1993 and 10-6-1993 and the yadi exh. 164 for arranging parade was sent on 15-6-1993 and the parade has been arranged on 17-6-1993; that the report was sent under section 157 of the Code without any delay as the incident took place at 7-10 p.m. of 22-5-1993 which was a Saturday and because of the intervening Sunday the report under section 157 of the Code was delivered to Judicial Magistrate on 24-5-1993, and there is no question of delay in sending report; that PW-7 & 9 are interested witnesses but not related witnesses and at the most their evidence is required to be scrutinised carefully; that PW-9 has not been cross examined as to how the names of accused No. 1,2, 3, 7 & 16 named in the FIR were known to the complainant prior to the incident. On behalf of the respondent-State, following decisions have been cited :- 1. (2001) p SCC pg. 362 2. AIR 1974 S.C. pg. 1983 3. AIR 1981 S.C. pg. 697. Mr. B.S. Patel, Learned advocate for the respondents (original accused No. 10, 17 and 18 in Criminal Appeal No. 660 of 1995 has submitted that the charge under section 120-B of the I.P. Code for hatching conspiracy has not been proved and that the respondents have been acquitted for the offence under section 302 r/w section 149 of I.P. Code; that no acquittal appeal at all has been preferred challenging the acquittal of accused No. 5 & 6; that the acquittal of accused No. 1-4, 7-9, 11-16 under section 120-B of the I.P. Code has not been challenged and therefore, and therefore consideration of charge under section 120-B of I.P. Code is out of question for all; that there is absolutely no evidence against accused No. 10, 17 & 18 so as to hold them guilty and that no interference is called for in the judgment of acquittal by the trial Court. 6. The death of Dinesh Pathak in the incident of 22-5-1993 in the premises of daily news paper "Sandesh" being homicidal death is not disputed by the appellants. The inquest panchnama exh. 49 on the dead body of Dinesh Pathak suggest as many as 30 injuries. Postmortem report exh. 83 prepared by PW-1 Dr. Vaishaki Dave (exh. 82) suggests as many as 87 external injuries on the dead body of Dinesh Pathak; that all the injuries were ante mortem and in the ordinary course of nature sufficient to cause death. Thus in the incident of 22-5-1993 at 7.10 p.m. in the premises of Sandesh Press Dinesh Pathak died a homicidal death. 7. As far as the occurrence is concerned PW-7 Parimal Chimanlal Bhatt, PW-8 Pravinsinh Laxmansinh Raul, PW-9 Raju Kishanrao Bhoi, PW-10 Niranjansingh Kishanal Jat - security guard, and PW-11 Ramakant Ratnagar Yadav security guard are the eye witnesses to the occurrence. According to the prosecution on 22-5-1993 at about 7.10 p.m. Dinesh Pathak, Resident Editor of daily newspaper 'Sandesh' (Vadodara) along with Parimal Bhatt (PW-7) came to Sandesh Press premises in his fiat car bearing No. GBW-633 driven by driver Raju Kisanrao Bhoi (PW-9); that the car was stopped near the main gate, Dinesh Pathak and Parimal Bhatt got down from the car and through wicket (small) gate entered the compound; that Dinesh Pathak and Parimal Bhatt were going towards the office inside the press and the driver was parking the car inside the main gate, at that time one boy entered from the small gate and told Dinesh Pathak that he has applied for a job and his recommendation would get him the job. Dinesh Pathak asked him to come to the office. Thereafter all of them walked towards the office when Dineshbhai was going towards the passage, at that time the boy who was walking behind Dineshbhai followed by Parimal Bhatt near the staircase in the passage that boy walked quickly, took out the knife and opened it, Parimal Bhatt seeing this shouted 'Dineshbhai...' . but by that time that boy had dealt knife blow in the chest of Dinesh Pathak. Dinesh Pathak moved backward and Parimal Bhatt jumped and intervened and tried to snatch the knife from the assailant, and was grappling with the assailant. In the process Parimal Bhatt sustained injury on the left hand. The boy was trying to escape as he was tightly held by Parimal Bhatt. Hearing the shout from inside complainant Raju Bhoi rushed in the press premises and tried to snatch knife from the assailant who raised shouts "come....come"; whereupon a mob of 13-14 persons came inside with sword, Samurai, pipe etc. Parimal Bhatt told Dinesh Pathak to go upstairs from the nearby staircase but Dinesh Pathak could not climb the stair case and started going towards bath room. The mob chased Dinesh Pathak inflicting blows, Dinesh Pathak fell down near the bath sustaining number of blows with the weapons. The mob of assailants then ran away shouting that ' whoever comes against their boss Raju Risaldar, he would meet the same fate'; that thereafter the assailants went away on scooter and rikshaws towards Sadhnanagar Society. 8. It is suggested from the evidence of PW-7 Parimal Bhatt, who was learning the work of newspaper reporting from Dinesh Pathak that, when he and Dineshbhai entered Sandesh Press compound, one boy also entered the Press compound telling Dineshbhai that he has applied for job and if Dineshbhai recommends he would get the job; that Dineshbhai asked him to come to the office upstairs; that the witness followed that boy who was walking behind Dineshbhai going towards the office; that reaching near the staircase that boy speeded up and came near Dineshbhai and opened the knife, seeing this the witness shouted 'Dineshbhai'. In the meantime that boy dealt knife blow in the chest of Dineshbhai. Dineshbhai moved backward. The witness jumped and intervened and tried to snatch knife from that boy, in the process witness sustained injury on the left hand. The assailant was trying to free from the grip of the witness and both were grappling. At that time driver Raju Bhoi came inside. He also tried to snatch the knife from the assailant but did not succeed. At that time Dinesh Pathak came near the witness and the assailant started shouting " come, come, beat.. beat" whereupon from the gate a mob of 13-14 boys came with sword, gupti, samurai etc. and