CR.A/96420/2002 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 964 of 2002 With CRIMINAL APPEAL No. 2160 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= SHASHIKANT @ SHASHI RAMSHANKERAGNIHOTRI & 3 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : CRIMINAL APPEAL NO.964 OF 2002 MR EE SAIYED for Appellant(s) : 1 - 4.MS REKHA H KAPADIA for Appellant(s) : 1-4, MR LR PUJARI ASST. PUBLIC PROSECUTOR for Opponent. CRIMINAL APPEAL NO.2160 OF 2004 MR PK SHUKLA for Appellant(s) MR LR PUJARI ASST. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 17/09/2008 ORAL JUDGMENT CR.A/96420/2002 2/34 JUDGMENT 1.0 By way of these appeals, the appellants have challenged the judgment and order of the learned Additional Sessions Judge, Ahmedabad(Rural), Ahmedabad dated 18.11.2002 passed in Sessions Case No. 7 of 1999. 2.0 The appellants, herein, are original accused Nos.1 to 4 and 6 who were charged with the offence punishable under Sections 393, 398, 307 and 400 of the Indian Penal Code as well as Section 135(1) of the Bombay Police Act. The appellants, herein, were convicted for the offence punishable under Section 393 of the I.P.C. and were sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.1,000/-, by each of them, and in case of default to undergo simple imprisonment for a period of fifteen days. The appellants were also convicted for the offence punishable under Section 398 of the I.P.C. and were sentenced to undergo rigorous imprisonment for seven years. The appellants were further convicted for the offence punishable under Section 135(1) of the CR.A/96420/2002 3/34 JUDGMENT B.P. Act and were sentenced to undergo simple imprisonment for six months and to pay fine of Rs.100/-, by each of them, and in case of default to undergo simple imprisonment for a period of ten days. Original accused No.4-Sanjay @ Bablu @ Denny Udhoshyam Keshvani, who caused bullet injury to the mother of the complainant, was separately convicted for the offence punishable under Section 307 of the I.P.C. and was sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.1,000/- and in case of default to undergo simple imprisonment for a period of fifteen days. The appellants were, however, acquitted from the charge of commission of offence punishable under Section 400 of the I.P.C.. Aforesaid sentences were ordered to run concurrently. 3.0 The brief facts of the prosecution case are that on 16.06.1998, the appellants-original accused persons, with the help of each other, forcefully entered into the house of the complainant and tried to commit robbery by CR.A/96420/2002 4/34 JUDGMENT showing deadly weapons like knife and 'Tamancha' to the young sister and mother of the complainant. During the commission of the said offence, original accused No.4- Sanjay @ Bablu @ Denny Udhoshyam Keshvani fired one bullet at the mother of the complainant from his 'Tamancha' and caused grave injury to her. In pursuance of that the complaint was lodged and the accused were arrested. At the end of the trial, the accused were convicted and sentenced as mentioned in Para-2 of the judgment. 4.0 The prosecution, in support of its case has examined as many as fourteen witnesses i.e. (1)Ninaben Kamleshbhai Shukal-P.W.-1, (2)Manishbhai Mrugenbhai Patel-P.W.-2, (3) Gopa @ Sambhvi Kamleshbhai Shukal-P.W.3, (4) Pareshbhai Chandrakantbhai Parikh-P.W.-4, (5) Savdhanji Vajaji Darbar-P.W.-5, (6)Piyush Manubhai Patel- P.W.-6, (7) Kamleshkumar Jawaharbhai Bhoi-P.W.-7, (8)Budhaji Atmaram Thakor-P.W.-8, (9)Baldevbhai Chanaji Thakore-P.W.-9, (10) Rashmin Jaswantlal Parekh-P.W.-10, (11)Satish Maheshkumar-P.W.-11, CR.A/96420/2002 5/34 JUDGMENT (12)Revabhai Vitthaldas Prajapati-P.W.12, (13)Fulsinh Amarsinh Gohil-P.W.-13 and (14) Dr. Manoj Maneklal Shah-P.W.-14. 4.1 The prosecution has also placed reliance on several documentary evidences i.e., complaint(Exhibit-62), panchnama of place of offence (Exhibit-64), medical certificate of injured Ninaben, F.S.L. reports (Exhibit-92 and Exhibit-94) etc.. 5.0 Mother of the complainant-Ninaben Kamleshbhai Shukal-P.W.1 was examined at Exhibit- 59. She deposed that on the date of alleged offence, she was present in her house along with her two daughters. At about 2:45 p.m. the doorbell of her house rang. Hence, she went to open the door. She has deposed that when she peeped out of small window by the door, she found a person standing outside her door who looked to her as if he is known, and hence, she opened the door. As soon as she opened the door, three unknown persons pushed her on the ground and CR.A/96420/2002 6/34 JUDGMENT rushed into her house and locked the door from inside. Then, these persons started beating her, using abusive language and told her to give money. At that time, her younger daughter Vaishnavi came there and sat beside her. One of the accused persons pointed out knife towards the throat of Vaishnavi and asked her to show as to where her mother keeps money. She has deposed that she was shouting and the unknown persons were also speaking loudly in order to scare her. On listening those noises, her elder daughter- Gopa came out of her room. On seeing her elder daughter, one of the accused persons ran after her to catch her. But, she gave signal to Gopa not to come, and hence, Gopa ran into her room and closed the door from inside. Thereafter, suddenly doorbell of her house started ringing constantly and when it came to halt, two persons opened the door and ran out of her house whereas the third person dragged her upto front door and then fired bullet at her. She further deposed that she can identify the person who had fired the bullet at her and then she identified CR.A/96420/2002 7/34 JUDGMENT original accused No.4-Sanjay @ Bablu @ Denny Udhoshyam Keshvani as the person who had fired bullet at her. She also identified the weapon used by accused No.4 as well as the clothes worn by her on the date of alleged offence. She also identified original accused No.2-Punamchand Devilal Suthar as the person who had pointed out a knife towards the neck of her younger daughter Vaishnavi. She further deposed that she had also identified the accused persons at the time of identification parade before the Executive Magistrate-P.W.-5. 5.1 P.W.-1, in her cross-examination, has stated that it is not true that the accused persons never came to her house. She further denied that since her husband has good relations with one Harin Pathak, a well-known politician, at his instance, she has wrongly roped in the appellants in the offence in question. She further denied that before the carrying out of identification parade of the accused, she along with her husband and daughter had gone to police CR.A/96420/2002 8/34 JUDGMENT station and since police had instructed them to identify the two persons as accused persons, she had identified them as the accused. She denied that after receiving the bullet injury, she had become unconscious. On the contrary, she has stated that she was very much conscious till she was taken to the hospital. This witness stated that it is not true that accused No.2 had not pointed out a knife towards the neck of her daughter and only because the police had instructed her to identify the accused persons, she had identified them at the time of identification parade. 6.0 Manishbhai Mrugenbhai Patel-P.W.-2 was examined at Exhibit-60. He deposed that the incident in question took place at about 2:45 p.m. on 16.06.1998. On that day he was at his home along with his parents. In the afternoon, he heard two explosions and some noises, and hence, he came out of his house. At that time, he had seen three persons running away. When he went upstairs, he found that P.W.-1 was lying on CR.A/96420/2002 9/34 JUDGMENT the ground keeping her hand on her stomach and her daughter Gopa was shouting. When he asked P.W.-1 as to what had happened, he was told that some persons had shot her with bullet and had runaway. He, then, told his father to call police. Thereafter, with the help of other neighbours, he took P.W.-1 to hospital. 6.1 P.W.-2, in his cross-examination, stated that his flat is situated on the fourth floor. He has further stated that if noise is coming from a flat from the opposite side, then, the noise could not be heard, but, if the noise is coming from a flat situated on the upper floor then the noise coming from such flat could be heard in the flat situated below such a flat. He has further stated that it is not true that in his statement he had not mentioned that he had heard two explosions. 7.0 The complainant-Gopa @ Sambhvi Kamleshbhai Shukal-P.W.3 was examined at Exhibit- 61. She deposed that on the date of alleged CR.A/96420/2002 10/34 JUDGMENT offence, her father had gone to office as per his routine schedule. She came home at about 12:15 p.m.. After taking lunch along with her mother and young sister, she went to her study room and her mother was completing routine chores. At about 2:45 p.m., while she was still sitting in her study room, she heard the sound of doorbell. Then, she heard the screams of her mother and voices of unknown males, and hence, she opened the door of her room and went towards main room. At that time, she saw that two persons had made her mother lie on the ground and one of them had pointed out a knife towards the throat of her younger sister. On seeing her, one of the persons ran after her to catch her. She, therefore, ran back towards her room and closed the door from inside. Pursuant thereto, she made telephone call to her neighbour and asked for help. She also called her father. Thereafter, suddenly the doorbell of her house started ringing. When the doorbell came to halt, she came out of her room and saw that two persons had already gone whereas the third person fired one CR.A/96420/2002 11/34 JUDGMENT bullet at her mother and he also ran away. Thereafter, she started screaming and whereupon her neighbours gathered there. Thereafter, her mother was taken to hospital. She deposed that she can identify the accused persons since she had seen them when she came to main room on hearing the noises. Accordingly, she identified accused No.4-Sanjay @ Bablu @ Denny Udhoshyam Keshvani as well as Muddamal Article No.10 i.e. the 'Tamancha' which was used by the accused No.4. She also identified accused No.2- Punamchand Devilal Suthar and the knife Muddamal Article No.12 which accused No.2 had pointed out towards the neck of her younger sister. She further deposed that she had also identified the aforesaid accused persons before the Executive Magistrate, at the time of identification parade. 7.1 P.W.-3, in her cross-examination, stated that, at the time, of identification parade of the accused persons, she along with her parents had not gone to the police station and they had CR.A/96420/2002 12/34 JUDGMENT directly gone to the Court of the Executive Magistrate. She has further stated that there were about ten persons were there and out of those ten persons she had identified both the accused persons. This witness clearly stated that it is not true that the accused persons were wrongly roped in the offence in question. 8.0 Pareshbhai Chandrakantbhai Parikh-P.W.-4 was examined at Exhibit-63. He deposed that he has been residing in Vishwaketu Flats along with his family for about six years. He further deposed that he was panch-witness No.1 to the Panchnama(Exhibit-64). He has deposed that police had taken blood samples from the place of offence and had also recovered one broken ring and one empty shell of the cartridge. He deposed that the aforesaid things were packed in a box and his signature as well as the signature of panch- witness No.2 were taken on that pack. He also identified the Muddamal Article No.1-piece of cotton on which sample of the blood of the injured-P.W.-1 was taken as well as Muddamal CR.A/96420/2002 13/34 JUDGMENT Article No.2-broken ring and Muddamal Article No.3 empty shell of cartridge as well as the panchnama(Exhibit-64) and his signature thereon, before the Court. 8.1 P.W.-4, in cross-examination, stated that it is not true that no panchnama was drawn in his presence and that he was wrongly deposing at the instance of police. This witness clearly stated that panchnama(Exhibit-64) was prepared as per the information given by him and panch-witness No.2. This witness also denied to have read the panchnama before giving his deposition. 9.0 Savdhanji Vajaji Darbar-P.W.-5 was examined at Exhibit-69. He deposed that, at the relevant point of time, he was serving as Executive Magistrate at Ahmedabad. On 20.08.1998, one Nanabhai Hamirbhai, Jamadar, Satellite Police Station came to Court along with the accused persons for holding their identification parade. He specifically deposed that the accused persons and the complainant CR.A/96420/2002 14/34 JUDGMENT along with her parents were called separately. He further deposed that when the accused persons were produced before him, they were not handcuffed. He had asked them as to whether, except, the police any other persons were there with them or not and they said that except police nobody was there in the vehicle. He deposed that he had instructed peon to call several persons from outside for the said identification parade. Thereafter, on arrival of the complainant along with her parents, they were made to sit in a separate room. The accused persons, who were sitting in another room, were told to take place of their choice among the other persons standing in a queue who were called by P.W.-5 from outside. When the accused were asked as to whether they want to change their clothes, they denied. Then, the complainant-Gopaben was called first and she identified both the accused. In pursuance of that the accused were again asked to change their position. Then, the mother of the complainant-Ninaben was called and she also identified both the accused persons, CR.A/96420/2002 15/34 JUDGMENT successfully. A panchnama was drawn to the aforesaid effect and the signatures of the panchas were also taken thereon. This witness has specifically stated that when the identification parade of the accused persons was carried out, neither police nor any person from outside was present. 9.1 P.W.-5 in his cross-examination stated that it is not true that he had not asked the accused person as to whether they wanted to change their clothes or not, before carrying out identification parade. He further stated that it is not true that panchnama was prepared as per the instructions of the police and the signatures of the panchas were taken on that subsequently. 10.0 Piyush Manubhai Patel-P.W.-6 was examined at Exhibit-72. He deposed that on 24.08.1998 he was called by police. He along with police personnels and the accused had gone towards Memnagar and from there one revolver was recovered. Then, the same was taken to the CR.A/96420/2002 16/34 JUDGMENT police station and there it was sealed and the signatures of panchas were obtained thereon. This witness identified the muddamal article No.10 as the weapon recovered from Memnagar on 24.08.1998. He also identified his signature on the panchnama. 10.1 P.W.-6 in his cross-examination stated that it is not true that his signatures were taken on ready made panchnama and that they had neither gone to any place nor the accused had produced anything. This witness further stated that it is not true that he had wrongly deposed since police had told him to do so. 11.0 Kamleshkumar Jawaharbhai Bhoi-P.W.-7 was examined at Exhibit-74. He deposed that on 23.08.1998 he was called by police to remain as panch witness. When he went to police station one Mohmedbhai Hasambhai and one Sanjaybhai and several police personnels were present. From police station, they went towards Memnagar and there Mohmed showed one pistol which was kept in CR.A/96420/2002 17/34 JUDGMENT a plastic bag under the piles of pieces of wood. The same was sealed and the signatures of the panchas were taken thereon. This witness identified the Muddamal Article No.10 as the weapon which was recovered on 23.08.1998 as well as his signature on the Panchnama (Exhibit- 73)which was drawn on the same day. 11.1 P.W.-7 in his cross-examination has stated that it is not true that since he resides near police station, he is often called by the police and he often used to sign the panchnamas. This witness specifically stated that it is not true that he had not gone anywhere, but, since he is friend of Piyushbhai, he had signed the panchnama. This witness also denied that it is not true that since he had read the panchnama, he has deposed as per the details given in the panchanama. 12.0 Budhaji Atmaram Thakor-P.W.-8 was examined at Exhibit-8. He deposed that on 27.06.1998, he was called by police. At police CR.A/96420/2002 18/34 JUDGMENT station, he was shown blood stained clothes of a lady. He further deposed that if those clothes are shown to him, he can identify the same and accordingly he identified Muddamal Article Nos.4, 5 and 6 as the clothes which were shown to him on 27.06.1998. He deposed that, then, those clothes were sealed and he signed thereon. This witness further deposed that a panchnama was also drawn to the aforesaid effect and he had signed it. He also identified his signature on the said Panchnama(Exhibit-77). 12.1 P.W.-8, in his cross-examination, denied that he had signed ready made panchnama. 13.0 Baldevbhai Chhanaji Thakore-P.W.-9 was examined at Exhibit-79. He deposed that on 17.08.1998, he was called to the police station and there a scooter and a motor cycle were recovered by the police in his presence and other persons. A panchnama was also drawn to the aforesaid effect. This witness deposed that he had signed the said recovery Panchnama(Exhibit- CR.A/96420/2002 19/34 JUDGMENT 80) as panch No.2. He has further deposed that on 23.08.1998, he was again called by the police and on that day he along with police, accused and other persons went to Memnagar water tank. This witness identified the said accused before the Court namely Mohmmed Abaid. On reaching there, the aforesaid accused went near the compound wall and dug out a small pit and took out one 'Rampuri' knife and six cartridges. In pursuance of that the aforesaid articles were sealed and a Panchnama(Exhibit-81) was drawn in the presence of the panchas. This witness identified the aforesaid 'Rampuri' knife and six cartridges before the court as Muddamal Article Nos.13 and 14, respectively. 13.1 P.W.-9, in his cross-examination, stated that it is not true that the vehicle was directly driven towards Memnagar, but, they went there as per the way shown by the accused. He further stated that it is not true that they had not gone to Memnagar and that he was called in the police CR.A/96420/2002 20/34 JUDGMENT station and there his signature was taken on the panchnama which was already prepared and that the accused was not present at that time. He denied that since the accused was shown to him outside the court, he identified him in the court. He specifically stated that the panchnama was drawn on the spot. This witness further stated that it is not true that he was wrongly deposing at the instance of the complainant. 14.0 Rashmin Jaswantlal Parekh-P.W.-10 was examined at Exhibit-83. He deposed that on 23.08.1998, he was called by the police. From police station he along with police personnels and one accused namely Shashikant went towards Memnagar water tank and there the aforesaid accused produced one revolver. A panchnama was drawn to the aforesaid effect on the spot. This witness identified the aforesaid weapon as Muddamal Article No.11. He also identified his signatures on Panchnama (Exhibit-84). 14.1 P.W.-10 in his cross-examination stated CR.A/96420/2002 21/34 JUDGMENT that it is not true that he was deposing on the basis of the panchnama which was read-over to him by the complainant. He further stated that it is also not true that he had not gone anywhere as a panch witness and that he is giving wrong deposition. This witness clearly stated that the panchnama was prepared by the police on the spot and he signed it after reading the same. 15.0 Satish Maheshkumar-P.W.-11 was examined at Exhibit-11. He deposed that he was called to police station on 23.08.1998 and when he reached there one Mr. Gohil, two panch witnesses and other police officials and one accused were present. They went to Chanakyapuri, Sector-5 and there accused person produced one knife which was buried near the babool tree. Police recovered and sealed the said weapon and a panchnama was drawn to that effect. This witness identified the aforesaid accused persons as Devilal and the aforesaid weapon as Muddamal Article No.13. He also identified his signature on Panchnama(Exhibit-86). CR.A/96420/2002 22/34 JUDGMENT 15.1 P.W.-11, in his cross examination, stated that it is not true that he had not gone to the place and had signed the ready-made panchnama. He also stated that it is not true that he was deposing wrongly since the complainant had told him to do so. 16.0 Revabhai Vitthaldas Prajapati-P.W.12 was examined at Ehxhibit-89. He deposed that on 16.06.1998, he was on duty and at that time he received written 'Vardhi' that one incident of firing has taken place on the 5th floor of Vishwaketu Flats, and hence, he went to the place of offence. On reaching there, he gathered information about the incident from one Gopaben i.e. complainant and registered the complaint(Exhibit-62) given by her. He then collected blood sample, one empty shell of the cartridge and one broken ring from the spot and drew panchnama to the aforesaid effect and obtained the signatures of the panchas thereon. He also identified his signature on the said CR.A/96420/2002 23/34 JUDGMENT panchnama. 16.1 P.W.-12, in his cross-examination, stated that the injured Ninaben-herself had told him about the iron weapon with wooden handle. This witness specifically stated that it is not true that he-himself had written the statements. 17.0 Fulsinh Amarsinh Gohil-P.W.-13 was examined at Exhibit-90. He deposed that he took over the investigation of the offence in question from one Mr. M.J. Vaghela on 16.07.1998. He deposed that on receiving secret information, he arrested Sashikant, Punamchand and Mohmmedhasim and recorded their statements. He deposed that the aforesaid accused accepted to have committed the offence in question. On the basis of information given by these accused, a team was sent to Allahabad to arrest other accused persons. He deposed that it is not true that, though, he was knowing that the accused were innocent, he arrested them. CR.A/96420/2002 24/34 JUDGMENT 17.1 In his cross-examination, P.W.-13 stated that it is not true that though there were insufficient evidence against the accused persons, he had filed charge-sheet against them. 18.0 Dr. Manoj Maneklal Shah-P.W.-14 was examined at Exhibit-96. He deposed that on 16.06.1998, he was on duty and at that time he had examined one Ninaben Shukal and performed operation on her. She had received injury on her stomach. Her intestine had come out and there were multiple holes in her small intestine. The patient was in critical condition and she was under great shock. He further deposed that the injury received by the patient could be caused by bullet. He specifically deposed that the injury received by the patient could have proved fatal, had the immediate treatment been not given to her. 18.1 P.W.-14, in his cross-examination, stated that if an injury is caused by bullet, then, CR.A/96420/2002 25/34 JUDGMENT bullet can be seen in X-ray. This witness, after referring the X-ray of the injured Ninaben, further stated that the bullet was visible in the