1 APPA-143/11, 144/11, 145/11 & 146/11 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 143 OF 2011 IN APPEAL NO.1020 OF 2009 Ramesh Rupabhai Chandana : Applicant (org.Accused No.12) versus The State of Gujarat & anr. : Respondents. WITH CRIMINAL APPLICATION NO. 144 OF 2011 IN APPEAL NO.1022 OF 2009 Bipinchandra Kanaiyalal Joshi @ Lala Doctor : Applicant(org.Accused No.6) versus The State of Gujarat & anr. : Respondents. WITH CRIMINAL APPLICATION NO. 145 OF 2011 IN APPEAL NO.1023 OF 2009 1] Kesharbhai Khimabhai Vohania 2] Pradip Ramanlal Modhyya : Applicants 3] Bakabhai Khimabhai Vohania (org.Accused Nos.7, 8 & 9.) versus The State of Gujarat & anr. : Respondents. WITH CRIMINAL APPLICATION NO. 146 OF 2011 IN APPEAL NO.1021 OF 2009 1] Rajubhai Babulal Soni 2] Mitesh Chimanlal Bhatt : Applicants(org.Accd 10 & 11) versus The State of Gujarat & anr. : Respondents. 2 APPA-143/11, 144/11, 145/11 & 146/11 Mr. H H Ponda i/by Mr.Mangesh Pawar a/w Mr. V I Pajwani a/w Mr. Mukesh Modi for the Applicants. Mr. D N Salvi, for the Respondent No.CBI-Gujarat State. Mr. D P Adsule APP for the State/Respondent. CORAM : NARESH H PATIL & MRS.MRIDULA R BHATKAR, JJ DATE : 30th JUNE 2011 P C : [ PER NARESH H PATIL, J] 1 The Applicants have prayed for grant of bail pending hearing and final disposal of their appeals filed against judgment and order of conviction and sentence passed by the Special Judge, Greater Mumbai, in Sessions Case No.634 of 2004 on 21st January 2008 2 The conspectus of facts of the prosecution case could be gathered from few paragraphs of the deposition of complainant (P.W. No.1). We refer to paragraphs Nos. 6, 7, 8, 9 and 10 of the deposition of PW No.1. The same are reproduced herein as under :- 6 As we were moving along the kaccha road two white vehicles came from village Chhapparwad side. These vehicles were loaded with 25 to 30 male persons. They halted the vehicles. They were carrying sharp edged weapons like sword, sickles and sticks. They were shouting : `Aa raya Musalmano. Emne Maro kaop.’ in Gujrati. (Assult and cut these muslims.) They attacked us. They were from our village Randhikpur. I can name them. They were Shailesh Bhatt, Mitesh Bhatt, Voind Nai, Jasvant Nai, Baka Khema, Keshar Khema, Lala Doctor, Lala Vakil, Raju Soni, Naresh Mordia, Pradeep Mordia, Ramesh Chandana. There were others too whom I may identify, To save ourselves we ran helter and skelter. 3 APPA-143/11, 144/11, 145/11 & 146/11 7 Saleha was with me when I was running. The accd – Shailesh Bhatt snatched Saleha and smashed her on the rocky ground. Suddently accd – Jasvant Nai, Govind Nai and Naresh Mordia caught me. I was pleading with them not to kill my daughter. I was pleading with them that they were like my brothers and uncles and should spare me. They caught me from behind and tore my clothes. They assaulted me. They took me to a place beneath a tree. Jasvant Nai was carrying sword. When he was about to hit me, I tried to ward off the sword blow and tried to save myself with left hand. In the process I suffered a cut injury between thumb and index finger of my left hand. The accd. Govind Nai and Naresh Mordia caught hold of my hands. Govind Nai was about to place his leg on my neck. I kept on looking around for somebody to save me, but I found nobody from my family who could save me. I saw my family members being assaulted and their clothes torn off. 8 The accd Jasvant Nai did foul act about that time. He raped me. I was pleading with him not to do such foul act as I was carrying a baby in womb and he was like my brother or uncle. I asked him to spare me. About that time the accd Jasvant Nai and Naresh held my hands. Thereafter I was raped by the accd Naresh Mordia. I became unconscious. They left me believing that I was dead. 9 One or two hours thereafter I regained consciousness. I found myself naked. I saw dead bodies of my family members lying around. I got frightened. I looked around for some cloth to cover myself. I found my peticoat, whcih was given by Nayak to wear, lying in the vicinity. We had asked for clothes with Nayak before leaving his place. He had given us clothes from his residence to wear in order to camaflouge ourselves. Accordingly, I had received peticoat (ghagra) and blouse from the residence of Nayak before leaving his place and I was wearing it. 10 I put on that peticoat, found in the vicinity. I was carrying fear in my heart. I felt that I was saved by God. I went sitting and squatting up the hill. As I proceeded up the hill, I saw dead body of Shamim’s new born daughter. Many dead bodies were there. I did not try to know whose dead bodies were lying there. I stayed at the top of the hillock the entire day and night following thereto. 4 APPA-143/11, 144/11, 145/11 & 146/11 3 The accused in this case were tried by the Special Judge, Greater Mumbai in Sessions Case No.634 of 2004. The judgment was delivered on 21.1.2008. Twenty accused persons were tried for various charges levelled against them out of which thirteen accused were convicted and seven were acquitted. Original Accused Nos.6, 7, 8, 9, 10, 11 and 12 have preferred these applications for bail. 4 Shri Ponda, the learned counsel appearing for the applicants/accused submitted that the entire prosecution case is based on appreciation of evidence of P.W. No.1 and her relative P.W. No.8 Master Saddam Hussain Addambhai. He submitted that the evidence of P.W. No.1 is full of contradiction, omission and exaggeration. The evidence of P.W.No.1 is not credit worthy. It would be unsafe to place implicit reliance on the evidence of this witness, according to the learned counsel. It was submitted that in the first information which was provided by P.W.No.1 to the police soon after the alleged incident which took place on 3rd March 2002 did not reveal the names of any of the accused persons. In one of the statement made before police, P.W.No.1 stated that a mob of 500 persons was assaulting P.W.1 and others. Initially the information provided to the police by P.W.No.1 did not refer to the names of the accused persons but later on when the CBI took over the investigation, the names of accused persons specifically were shown as the persons who had committed various offences for which they were charged. The version of PW No.1 involving the names of accused persons, according to the learned counsel was a tutored version. PW No.1 did not attribute any particular role to any of the 5 APPA-143/11, 144/11, 145/11 & 146/11 applicants/accused initially. The version that assailants came in a vehicle was not disclosed by PW No.1 in the statement made by police (Exhibit 56). There is variance and contradictions in respect of weapons allegedly used by the applicants. In respect of spot of incident too there is contradiction in the prosecution case as to whether the incident took place on Kaccha road or in sheer kotar which is at a distance of 3 to 4 kms from kaccha road. As regards PW No.8 Saddam it was submitted that in the light of the medical evidence, his evidence is suspicious and contradictory. He was not present at the time of incident. His claim of identifying the accused persons was a false identification. The learned counsel for the applicants-accused therefore submitted that after the CBI took over the investigation, a false case was prepared against some of the accused persons contrary to the initial version of PW No.1 and, the applicants-accused were falsely involved to face serious charges. 5 It was submitted that the applicants-accused are in jail since last seven years. They are respectable persons. The present appeals would take six to seven years to reach final hearing stage. The Applicants-accused have fair chances of success in the appeals. The Applicants undertake that in case they are released on bail, they would abide by whatever conditions this Court would impose. 6 Shri Salvi, the learned counsel appearing for the CBI submitted that this case has peculiar background and history and the facts and evidence on record will have to be considered from that perspective. The facts of the case and the evidence on record is such that this court will have to appreciate evidence 6 APPA-143/11, 144/11, 145/11 & 146/11 which could be done only at the time of final hearing of the appeals. He, therefore, submitted that any observation made by this court on the material evidence may affect hearing of the appeals finally. The learned counsel submitted that the prosecution has examined 72 witnesses and the defence has examined 8 witnesses. On merits the learned counsel for the CBI submitted that one has to imagine the trauma suffered by PW No.1 who had seen her small child of four years being smashed in front of her eyes by the accused persons. PW No.1 was raped in spite of her pleading with the accused not to do so. Near relatives of PW No.1 were seen killed in front of her eyes. The accused were armed with deadly weapon. In such scenario it was not expected from PW No.1 to be in her senses to file complaint giving necessary details which normally is expected from an informant to police. The learned counsel for the CBI submitted that even in the Limkheda police station, where she had gone, threats were given to her not to disclose the names of the offenders and the fact of commission of rape. As PW No.1 was frightened she did not disclose real facts to police. It was only after the CBI took over the investigation, under the order passed by the Apex Court in the proceedings of Writ Petition (Criminal) No.118 of 2003, the investigation started afresh. According to the learned counsel for the CBI, six to seven bodies were exhumed by Investigating Officer, which according to the prosecution were killed apart from others by the accused persons. He submitted that the assailants had mercilessly assaulted and killed several persons, raped women and, even did not spare small children. Considering the gravity of the offence and seriousness 7 APPA-143/11, 144/11, 145/11 & 146/11 attached to it, the learned counsel for the CBI prayed that the bail applications filed by the applicants-accused be rejected. The learned counsel for the CBI placed reliance on certain judgments which we have perused. He relied upon a judgment of the Apex Court in the case of Vijay Kumar v/s. Narendra and ors reported in (2002) 9 SCC 364. In para 10 of the said judgment the Apex Court observed as under :- “The principle is well settled that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the court should consider the relevant facts like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. Our attention has not been drawn to any material which would show that the learned Single Judge took into consideration the relevant factors while passing the bail order.” In the case of Khilari v/s State of U.P and anr. reported in AIR 2008 SC 1982, the Apex Court observed in para 9 as under : “9 The parameters to be adopted while dealing with the application for bail by suspension of sentence during the pendency of the appeal has been examined by this Court in several cases. In Kishori Lal v. Rupa and Ors. (2004 (7) SCC 638) it was noted as follows: "4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a 8 APPA-143/11, 144/11, 145/11 & 146/11 distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused- respondents were on bail." He relied upon another judgment of the Apex Court in the case of Gajraj Yadav v/s. Rajendra Singh @ Deena & ors reported in 2008 DGLS (Soft) 1211. In para 12 of the said judgment it was observed :- “12 In Vijay Kumkar v Narendra and others (2002 (9) SCC 364) and Ramji Prasad v. Rattan Kumar Jaiswal and another (2002 (9) SCC 366), it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar’s case (supra) it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the court should consider the relevant facts like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the 9 APPA-143/11, 144/11, 145/11 & 146/11 desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. These aspects have not been considered by the High Court while passing the bail order. 7 We heard the learned counsel for the Applicants-accused, the learned counsel appearing for the CBI/Respondent and the learned APP for the State/Respondent. 8 With the assistance of the learned counsel for the applicants- accused and the learned counsel for the CBI we had gone through some of the relevant documents including complaint filed by PW No.1 to police, her statement recorded, relevant portion of deposition of the prosecution witnesses and defence witnesses. We had gone through the deposition of PW No.1 and PW No.8, the evidence of Medical Officer for limited purposes to appreciate plea of the applicants-accused in respect of grant of bail. 9 Prima facie we have noticed that the prosecution has made out serious accusation against the accused persons. They have been charged for serious offences, including offence of rape and murder. The learned counsel appearing for the CBI submitted that in fact though the CBI could exhume dead bodies of seven persons, but more than seven persons were killed whose dead bodies even could not be recovered. The learned counsel for the applicants- accused Shri Ponda vehemently submitted that PW No.1 had narrated before police that a mob of 500 persons had assaulted but later on after the CBI took over the investigation a false case was prepared and the applicants-accused were 10 APPA-143/11, 144/11, 145/11 & 146/11 made to face trial. The discrepancies, infirmities and exaggerations tried to be highlighted by Shri Ponda the learned counsel appearing for the applicants- accused in the arguments could be looked into minutely at the time of final hearing of the appeals. 10 While deciding bail application, this court would consider relevant factors like accusation made against the accused, the manner in which the crime was alleged to have been committed, the gravity of the offence and the desirability of releasing the accused on bail after they are convicted and sentenced for serious offence of murder. 11 Prima facie we find that the applicants-accused are facing serious charges and accusation. The prosecution has come out with a case that though fourteen persons were killed, seven dead bodies could be recovered. PW No.1 has herself deposed about some of the accused committing rape on her. Considering the circumstances surrounding the incident in question, the seriousness and gravity of offence and the charges levelled against the applicants- accused, we are not inclined to release the applicants-accused on bail, pending hearing and final disposal of the appeals. 12 Considering the parameters laid down by the Apex Court in respect of grant of bail, the facts and circumstances of this case and the evidence brought before us, we are, prima facie, not inclined to accept the prayer of the applicants- accused for releasing them on bail. 11 APPA-143/11, 144/11, 145/11 & 146/11 13 Shri Ponda, the learned counsel for the applicants-accused, submitted that the final hearing of the appeals would take more than seven years, therefore, at least on that count request of the applicants-accused for bail could be considered. We are not inclined to accept the request made by the learned counsel for the applicants-accused even on that ground also. 14 For the reasons stated above, the bail applications filed by the applicants herein (original accused Nos.6, 7, 8, 9, 10, 11 and 12) are rejected. (MRS.MRIDULA R BHATKAR J.) (NARESH H PATIL, J.)